On Monday, a brief in opposition to certification to the Supreme Court of the United States was filed in the case of Bristol-Myers Squibb Co., et al. v. Clare E. Connors, Attorney General of Hawaii. The defendant, Clare Connors in her official capacity as the Attorney General of Hawaii, opposes certification and asks that the decision of the Ninth Circuit Court of Appeals stand. The Ninth Circuit had affirmed the abstention of the District Court of Hawaii regarding whether the plaintiffs could sue in federal court and receive an injunction prohibiting the State of Hawaii from proceeding in an enforcement action with civil monetary penalties.
In the underlying state case, the complaint was brought under the State of Hawaii’s Unfair and Deceptive Practices Act (UDAP). The complaint specifically alleged that Plavix was marketed to all patients, despite having clinical evidence that the drug was frequently ineffective for persons of Asian and Pacific Islander descent who have a genetic mutation that results in poor metabolization of the drug. The attorney general deputized private counsel as special deputy counsel to help with the complexity and magnitude of the lawsuit. After 6 years of litigation, the manufacturer sought an injunction against the suit proceeding in state court from the federal court. As a part of the federal complaint, the manufacturer conceded that the action was a civil enforcement action seeking punishment of the marketing practices.
The federal district court abstained from the action and dismissed the complaint under the Younger doctrine. The Younger doctrine acknowledges that certain actions are the province of the state courts and the federal courts should not intervene in such matters. These actions include family law actions such as divorce and child custody, as well as criminal or “criminal-like” actions, which are detailed under Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 187 L. Ed. 2d 505, 571 U.S. 69 (2013). The manufacturer argued that due to the use of private counsel, that the presence of the attorney general as a party was nominal and the case should not be treated as a quasi-criminal action under Sprint. However, the attorney general noted that there is no such exception in the Sprint or Younger doctrines, and to add that as a factor to the tests limits the authority of the states to conduct internal staffing decisions.
Federal petitioner Bristol-Myers Squibb is represented by Arnold & Porter. Respondents are represented by the Department of the Attorney General of Hawaii.