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Ninth Circuit:
Abstention Doctrine Bars Yelp’s Attempt to Stop Legal Action Over Notices on Pro-Life Clinics
Opinion Says District Court Judge in Northern California Properly Dumped Lawsuit to Enjoin Proceedings Brought by Texas Attorney General
By a MetNews Staff Writer
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Above is a “Consumer Notice” appearing on the Yelp page relating to a “crisis prevention center” in Napa, California. The notice, typical of those appearing in Yelp in connection with such establishments, is included in Yelp’s complaint, filed in the U.S. District Court for the Northern District of California against Texas Attorney General Ken Paxton. |
The Ninth U.S. Circuit Court of Appeals held yesterday that a District Court judge in Northern California correctly held that the doctrine of abstention prevents Yelp Inc. from obtaining injunctive relief to block a civil enforcement action by the Texas attorney general of Texas over allegedly misleading notices the review giant placed on the tops of the pages of pro-life pregnancy centers.
Originally indicating that the clinics offer “limited services” and “may not have licensed medical professionals,” Yelp took those warnings down after multiple states objected to the notices, and replaced them with ones that say:
“This is a Crisis Pregnancy Center. Crisis Pregnancy Centers do not offer abortions or referrals to abortion providers.”
In its complaint for declaratory and injunctive relief filed Sept. 27, 2023, Yelp Inc.—which has its principal place of business in San Francisco—noted that “the Office of the Attorney General of the State of California issued a consumer alert to Californians on June 1, 2022 that, in sum and substance, included the same statement.”
Yelp argued in opposition to a motion for dismissal that a bad-faith exception to abstention applies. It contended that the company has been unfairly targeted by Texas Attorney General Ken Paxton—who is now also the leading Republican candidate in a race for a U.S. Senate seat up for grabs in the 2026 midterm elections—over the online giant’s vocal support for abortion following the 2022 U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade.
Following the Dobbs decision, Yelp announced its commitment to “reproductive healthcare” and said it would be imposing the notification on Yelp business pages for crisis pregnancy centers (“CPCs”).
Intent to File
On Sept. 22, 2023, in what Yelp alleges was Paxton’s first public action after he was acquitted on 16 articles of impeachment, the state attorney general sent Yelp a “Notice of Intent to File Suit” based on purportedly false statements in its original consumer warming. The civil enforcement action was initiated about a week later and accused the company of violating the Texas Deceptive Trade Practices–Consumer Protection Act by misrepresenting the status of professionals on site at CPCs and the services offered at such facilities.
Yelp responded by filing a lawsuit in federal court, under 42 U.S.C. §1983, against Paxton and his office, alleging that the defendants “violated the First Amendment by retaliating against Yelp for Yelp’s exercise of its First Amendment rights.” The company sought an injunction to stop Paxton “from taking any action to prosecute, fine, or in any way penalize Yelp” under state law.
It said in its pleading:
“The Court has personal jurisdiction over the Attorney General…because he has engaged in specific conduct purposefully aimed at chilling the speech of a California resident in the State of California, including by transmitting threats to Yelp in the Northern District of California where Yelp is headquartered. The Attorney General’s actions have already caused and, unless enjoined, will continue to cause Yelp irreparable injuries in California.”
It noted that Paxton’s notice of intent to sue “warns that the Attorney General is authorized to seek ‘civil penalties of up to $10,000.00 per violation’ as well as ‘attorneys’ fees,” and “does not confine its threat to Yelp’s ‘violations’ in Texas, but seeks to punish editorial choices—made by a California company—globally.”
District Court Judge Trina L. Thompson of the Northern District of California on Jan. 31, 2024 denied the request for injunctive relief and dismissed the case, “albeit reluctantly,” based on the abstention doctrine announced in the 1971 U.S. Supreme Court decision in Younger v. Harris.
Yesterday’s opinion, authored by Circuit Judge Daniel A. Bress, and joined in by Circuit Judges Mark J. Bennett and Danielle J. Forrest, affirms the dismissal.
Complaint Filed
Yelp does not dispute that the Younger and its progeny have established that abstention is appropriate in civil cases “when the state proceedings: (1) are ongoing, (2) are quasi criminal enforcement actions or involve a state’s interest in enforcing the orders and judgments of its courts, (3) implicate an important state interest, and (4) allow litigants to raise federal challenges” or that those criteria are met in the present case.
The company instead argues that a bad-faith exception applies.
Bress noted that case law has established that “bad faith” in this context generally refers to a prosecution that has been brought without a reasonable expectation of obtaining a valid conviction.
Rejecting Yelp’s contention that this exemption applies because the Texas enforcement action is barred by the First Amendment, Bress opined that “[t]o warrant t enjoining state court proceedings because the state lawsuit is lacking in merit, that lack of merit must thus be so palpable and overwhelming as to fairly demonstrate bad faith.”
Finding a lack of such palpability in the present case, he wrote:
“A core premise of Younger…is that defenses to the state court action, including constitutional defenses, may be raised in state court….To maintain that Attorney General Paxton’s state enforcement action is weak, meritless, or even unconstitutional, as Yelp does, is largely to reprise the presumption that if Yelp’s defenses have merit, they may be raised and vindicated in state court….It is one thing to say that Paxton’s Texas lawsuit should fail, or even that it should fail as a matter of law. It is quite another to put federal courts in the vocation of making these determinations on behalf of state courts, while taking the significant step of enjoining state court proceedings.”
Retaliatory Motive
Addressing Yelp’s assertion that, even if the enforcement action has facial merit and is not patently unconstitutional, the bad-faith exception still applies because Paxton is motivated by a retaliatory motive or a bias against the company based on the company’s public stance on abortion, Bress reasoned:
“Simply because a state court defendant may advance a retaliation-based defense to a state court lawsuit does not mean it has established bad faith sufficient for a federal court to enjoin a state court action….Our obligation to respect the domain of our state judicial counterparts…requires that any retaliatory motive or harassment be sufficiently severe or pervasive to legitimize our halt of state court proceedings in which these same constitutional objections could be raised.”
He continued:
“Younger’s bad faith exception…cannot apply as a matter of course based on the subject matter of the state court action, for those actions do not become automatically retaliatory whenever they touch on hot-button issues. Although Attorney General Paxton’s enforcement action may implicate a sensitive matter on which people disagree, that does not mean his pursuit of Yelp is retaliatory within the meaning of Younger’s bad faith exception, especially when the enforcement action itself is not facially meritless.”
The jurist also said that Thompson properly denied Yelp’s request for discovery and an evidentiary hearing, saying that Yelp did not “present allegations of bad faith sufficient” to justify granting the motions and noting:
“That is especially so considering that intrusive discovery of a state attorney general and his office about a case he filed in state court, as Yelp seeks, would pose comity concerns contrary to the tenor of Younger itself.”
The case is Yelp Inc. v. Paxton, 24-581.
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