# *Bristol-Myers Squibb Co. v. Connors* March 24, 2021 • Legal Briefs By Misha Tseytlin, Kevin M. Leroy, and [Ilya Shapiro](https://www.cato.org/people/ilya-shapiro) [ Download PDF ](https://www.cato.org/sites/cato.org/files/2021-03/BMS%20v%20Connors%20cert-stage.PDF) Learn more about [Cato’s Amicus Briefs Program](/about/cato-amicus-program). Hawaii sued Bristol-Myers Squibb (BMS) and Sanofi for failing to make the untrue statements that their life-saving drug, Plavix, is less effective for Asian and Pacific Islander patients. It’s not just the companies that believe these statements to be false and controversial; the scientific community strongly agrees. Prominent cardiologists have criticized the disclaimer requirement and a growing body of evidence shows that Plavix works as well, if not better, for patients of Asian descent. In seeking to compel this speech in an area of scientific controversy—and punish its absence—Hawaii discriminates based on the speaker (by targeting only pharmaceutical companies) as well as the content and viewpoint expressed. What’s worse, the suit appears to have been initiated to achieve private financial gain. It was planned and marketed by private contingency-fee lawyers who succeeded in selling their services to the state, which only pays if it wins. In a traditional enforcement matter, government attorneys have a professional and ethical obligation to serve the public interest—not necessarily to win the case, but to make a sound use of public resources and see that justice is done. Here, instead, the higher the verdict the more the lawyers make without regard to medical consequences or constitutional values. BMS and Sanofi raised these concerns, but their First Amendment claims were dismissed by the district court. The Ninth Circuit affirmed by relying on a doctrine called *Younger* abstention. *Younger* abstention bars federal courts from hearing civil rights tort claims brought by a party that is being prosecuted for a matter arising from that same claim in a state court. Because the federal courts’ “obligation to hear and decide a case” within their jurisdiction “is virtually unflagging,” the Supreme Court recently placed further limits on the use of *Younger* abstention. The Court clarified that the only “civil enforcement proceedings” that come within *Younger’s* scope are those “akin to a criminal prosecution” in “important respects.” Yet the Ninth Circuit ignored this command and instead found that “on its face” the enforcement proceeding fell within the class of cases to which *Younger* applies because it had been brought under a consumer protection statute and sought civil penalties and punitive damages. Cato, joined by the Rutherford Institute, have filed a brief supporting BMS’s petition to the U.S. Supreme Court. We argue that the Court should require that federal courts consider the specific characteristics of an underlying state-court civil proceeding to determine whether it is truly akin to a criminal prosecution that warrants *Younger* abstention. Moreover, the Ninth Circuit wrongly held that the state’s use of private counsel to bring a case is irrelevant to whether *Younger* applies. A state’s reliance on private, contingent-fee counsel is an important—and often dispositive—factor counseling against *Younger* abstention because the use of such financially interested lawyers in an actual criminal case would raise grave constitutional concerns. [![B-Myers-Squibb-v-Connors-cover.jpg](/sites/cato.org/files/styles/serial_cover_phone/public/2021-03/B-Myers-Squibb-v-Connors-cover.jpg?itok=5MdXGaPj)](https://www.cato.org/sites/cato.org/files/2021-03/BMS%20v%20Connors%20cert-stage.PDF) ### Download This Legal Brief ##### *Bristol-Myers Squibb Co. v. Connors* [ Download PDF ](https://www.cato.org/sites/cato.org/files/2021-03/BMS%20v%20Connors%20cert-stage.PDF) ##### About the Authors ##### Misha Tseytlin ##### Kevin M. Leroy [![Ilya Shapiro](/sites/cato.org/files/styles/author_picture/public/2021-01/Ilya%20Shapiro.jpg?itok=m1_rdWBG)](/people/ilya-shapiro) ##### [Ilya Shapiro](/people/ilya-shapiro) Former Vice President and Director, Robert A. Levy Center for Constitutional Studies, Cato Institute [ Download PDF ](https://www.cato.org/sites/cato.org/files/2021-03/BMS%20v%20Connors%20cert-stage.PDF)