9th Circuit Sides with Hawaii, Dismisses Bid to Halt Blood Clot Drug Marketing Case

On Thursday, the Ninth Circuit Court of Appeals affirmed the dismissal of a lawsuit filed by a handful of pharmaceutical companies seeking to halt Hawaii state court litigation that involved their supposedly deceptive advertising of a heart attack and stroke medication. The appellate panel agreed with the lower court, ruling that Supreme Court precedent required it to abstain from exercising jurisdiction over the matter.

The case centered on the drug Plavix, a medication brought to market in 1997 by manufacturers Bristol-Myers Squibb Company, Sanofi-Aventis U.S. LLC, Sanofi US Services Inc. and Sanofi-Synthelabo LLC. The appellate opinion explained that in 2008, researchers reported that some patients, especially those of Asian or Pacific Islander descent, have a genetic variation that makes Plavix less effective.

In 2014, Hawaii filed a state court lawsuit against the companies, arguing that they knew that the people with the genetic variation, a significant percentage of Hawaii’s population, “experience worse clinical outcomes when taking Plavix.” Hawaii alleged that the companies intentionally concealed this information in violation of the state’s law prohibiting unfair or deceptive acts in commerce. 

In January, the companies filed a federal court suit asking for an injunction against the state court proceeding, contending that the suit violated their constitutional right to free speech. The district court dismissed the suit.

It found that under the Supreme Court’s 1971 Younger v. Harris decision, it had to refrain from exercising jurisdiction. According to the opinion, the so-called Younger abstention doctrine generally bars federal courts from restraining state criminal prosecutions, or, as in the present case, “quasi-criminal enforcement actions.”

In affirming the lower court’s decision, the panel held that “(w)hat matters for Younger abstention is whether the state proceeding falls within the general class of quasi-criminal enforcement actions — not whether the proceeding satisfies specific factual criteria.” The Hawaii action fell within this class of cases because the action was brought “under a statute that punishes those who engage in deceptive acts in commerce, and the State sought civil penalties and punitive damages to sanction the companies for their allegedly deceptive labeling practices.”

The panel rejected the pharmaceuticals’ argument that a more rigorous standard should apply, writing that “(a)ccepting the companies’ invitation to scrutinize the particular facts of a state civil enforcement action would offend the principles of comity at the heart of the Younger doctrine.”

The panel further concluded that the companies’ First Amendment concerns did not cause the case to fall within Younger’s extraordinary circumstances exception. The exception allows federal jurisdiction where the danger of irreparable loss is both immense and immediate. Specifically, the panel held that “Younger abstention routinely applies even when important rights are at stake — indeed, without some claim that a prosecution affects federally protected rights, there would be no basis for federal jurisdiction in the first place, and thus nothing from which to abstain.”

The companies are represented by Arnold & Porter Kaye Scholer LLP and Dentons US LLP. The state is represented by the Department of the Attorney General, Honolulu, Hawaii.