IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
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`LUPIN PHARMACEUTICALS, INC., et al., *
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`Plaintiffs,
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`v.
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`CRAIG RICHARDS,
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`Defendant.
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`Civil Action No. RDB-15-1281
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`MEMORANDUM OPINION
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`In this case, Plaintiffs Lupin Pharmaceuticals, Inc.1 (“Lupin Pharmaceuticals”) and
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`Lupin, Ltd. (“Lupin India”) (collectively, “the Lupin Plaintiffs”) seek to enjoin Defendant
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`Craig Richards, the Attorney General of Alaska, (“the Attorney General”) from issuing a
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`civil investigative demand (“CID”) to the Lupin Plaintiffs and from applying Alaskan
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`antitrust law to the Lupin Plaintiffs. The Attorney General has moved to dismiss this action,
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`arguing that this Court should abstain from exercising its jurisdiction under the abstention
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`doctrine established in Younger v. Harris, 401 U.S. 37 (1971). The parties’ submissions have
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`been reviewed, and this Court held a hearing on June 26, 2015 on the Motion. See Local
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`Rule 105.6 (D. Md. 2014). For the reasons that follow, Defendants Craig Richards’ Motion
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`to Dismiss (ECF No. 23) is GRANTED, and this case is DISMISSED.
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`BACKGROUND
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`1 Lupin Pharmaceuticals, Inc is a Virginia corporation with its headquarters and principal place of
`business located in Baltimore, Maryland. Pls.’ Comp. ¶ 10. Lupin Pharmaceuticals distributes
`prescription medications to American customers and is a wholly owned subsidiary of co-Plaintiff
`Lupin, Ltd. (“Lupin India”). Id.
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`1
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`Janssen Ex. 2055
`Lupin Ltd. v. Janssen Sciences Ireland UC
`IPR2015-01030
`(Page 1 of 17)
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`This Court accepts as true the facts alleged in plaintiff’s complaint. See Aziz v. Alcolac,
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`Inc., 658 F.3d 388, 390 (4th Cir. 2011). This dispute arose out of issues pertaining to two
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`drugs, Loestrin FE 24 and Effexor XR. These drugs are manufactured and sold by Warner-
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`Chilcott and Wyeth, respectively, and those companies hold patents on the drugs. See
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`Compl., ¶ 16. The Lupin Plaintiffs allege that neither Lupin Pharmaceuticals, Inc. nor
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`Lupin, Ltd.2 (“Lupin India”) had rights to sell the drugs or approval to sell generic versions.
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`Id. The Lupin Plaintiffs had filed applications with the Food & Drug Administration
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`(“FDA”) in 2006 and 2009 to sell generic versions of the respective drugs, but the brand
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`manufacturers sued the Lupin Plaintiffs for declaratory judgments stating that the sale of
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`such generics would violate their patents.3 Id. at ¶ 17. The Lupin Plaintiffs settled the patent
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`claims in 2009 and 2010 respectively. Id. at ¶¶ 17-18.
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`2 Lupin India is incorporated in India and has its headquarters and principal place of business in
`Mumbai, India. Pls.’ Compl. ¶ 11. Lupin India develops and manufactures branded and generic
`drugs in India.
`3 Specifically, the Lupin Plaintiffs alleged:
`Neither LPI nor Lupin India has ever sold Loestrin or
`Effexor nor have they ever obtained approval from the Food and
`Drug Administration (“FDA”) to sell generic versions of those
`products. On September 30, 2006, Plaintiffs filed with the FDA an
`Abbreviated New Drug Application (“ANDA”) seeking FDA
`approval of a generic version of Effexor. On March 13, 2007,
`Wyeth, the branded manufacturer of Effexor, sued SPI for a
`declaratory judgment that LPI’s generic version of Effexnor would
`infringe Wyeth’s patent. Wyeth and LPI settled the litigation on May
`11, 2009.
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`. . . On July 30, 2009, LPI filed an ANDA seeking FDA
`approval of a generic version of Loestrin. On September 9, 2009,
`Warner-Chilcott, the branded manufacturer of Loestrin, sued LPI for
`a declaratory judgment that LPI’s generic version of Loestrin would
`infringe Warner Chilcott’s patent. Warner-Chilcott and LPI settled
`the litigation on October 10, 2010.
`Pls.’ Compl. ¶¶ 17-18.
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`2
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`Janssen Ex. 2055
`Lupin Ltd. v. Janssen Sciences Ireland UC
`IPR2015-01030
`(Page 2 of 17)
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`On February 3, 2015, pursuant to Alaska Stats. §§45.50.5924 and 45.50.495, Attorney
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`General Richards
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`issued separate civil
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`investigative demands
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`(CIDs)
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`to Lupin
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`4 Section 45.50.592 states in full:
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`(a) If the attorney general determines that a person is in possession, custody,
`or control of documentary evidence, wherever situated, that the attorney
`general believes to be relevant to an investigation authorized in AS 45.50.590,
`the attorney general may execute in writing and cause to be served on that
`person an investigative demand requiring the person to produce the
`documentary material, and permit inspection and copying.
`(b) Each demand must
`(1) state the specific statute the alleged violation of which is under
`investigation, and the general subject matter of the investigation;
`(2) describe, with reasonable specificity so as fairly to indicate the
`material demanded, the documentary material to be produced;
`(3) prescribe a return date within which the documentary material is
`to be produced; and
`(4) identify the state employees or representatives to whom the
`documentary material is to be made available for inspection and
`copying.
`(c) A demand may not
`(1) require the production of documentary material that would be
`privileged from disclosure if demanded by a subpoena duces tecum
`issued by a court of the state; or
`(2) contain a requirement that would be unreasonable or improper if
`contained in a subpoena duces tecum issued by a court of the state;
`however, this does not limit the power of the attorney general to
`require production of documents located outside the state that
`pertain to matters affecting the state.
`(d) The demand may be served by the attorney general or the designee of the
`attorney general by
`(1) delivering a copy of it to the person to be served or, if the person
`is not a natural person, to an officer of the person to be served;
`(2) delivering a copy of it to a place of business in the state of the
`person to be served; or
`(3) mailing by registered or certified mail a copy of it addressed to the
`person to be served at a place of business in the state or, if the person
`has no place of business in the state, to the principal office or place
`of business of the person.
`(e) Documentary material produced pursuant to a demand, or copies of it,
`unless otherwise ordered by a superior court for good cause shown, may not
`be produced for inspection or copying by, nor may its contents be disclosed
`to, anyone other than an authorized employee of the state without the
`consent of the person who produced the material. However, under those
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`3
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`IPR2015-01030
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`Pharmaceuticals, Inc., and Lupin, Ltd., demanding production of three categories of
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`documents related to the two drugs. Id. at ¶ 21. The CIDs state that “[t]he Attorney
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`General seeks to determine whether the pharmaceutical manufacturers subject to [the CID]
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`reasonable terms and conditions the attorney general prescribes, copies of
`the documentary material shall be available for inspection and copying by the
`person who produced the material or an authorized representative of that
`person. The attorney general, or a designee, may use copies of the
`documentary material as the attorney general or designee considers necessary
`in the enforcement of AS 45.50.562-45.50.598, including presentation before
`a court; however, material that contains trade secrets may not be presented
`except with the approval of the court in which the action is pending after
`adequate notice to the person furnishing the material.
`(f) At any time before the return date specified in the demand, or within 20
`days after the demand has been served, whichever period is shorter, a
`petition to extend the return date for, or to modify or set aside a demand
`issued under (a) of this section, stating good cause, may be filed in the
`superior court for the judicial district where the parties reside. A petition by a
`person on whom a demand is served, stating good cause, to require the
`attorney general or another person to act in accordance with the
`requirements of (e) of this section, and all other petitions in connection with
`a demand, may be filed in the superior court for the judicial district in which
`the person on whom the demand is served resides.
`(g) A person on whom a demand is served under this section shall comply
`with the terms of the demand unless otherwise provided by an order of court
`issued in response to a petition filed under (f) of this section. A person who,
`with intent to avoid, prevent, or obstruct compliance, in whole or in part,
`with an investigative demand under this section, removes from any place,
`conceals, withholds, or destroys, mutilates, alters, or by any other means
`falsifies, documentary material in the possession, custody, or control of a
`person that is the subject of a demand duly served on any person, or who
`otherwise wilfully disobeys any such demand, is guilty of a misdemeanor, and
`is punishable upon conviction by a fine of not more than $5,000, or by
`imprisonment for a term of not more than one year, or by both. Failure of
`the state to serve the demand properly under (d) of this section is a defense
`to prosecution under this subsection, but invalidity of the demand under (b)
`or (c) of this section is not a defense, and that invalidity may be tested only in
`an action under (f) of this section to modify or set aside the demand.
`(h) Nothing in this section impairs the authority of the attorney general or a
`designee to lay before a grand jury of this state evidence concerning a
`violation of AS 45.50.562 - 45.50.596, to invoke the power of a court to
`compel the production of evidence before a grand jury, or to file a civil
`complaint or criminal information alleging a violation of AS 45.50.562 -
`45.50.596.
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`4
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`IPR2015-01030
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`violated Alaska state law by entering into a settlement agreement that terminated ongoing
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`patent litigation regarding the brand name drug listed herein, and thereby delaying generic
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`entry into the marketplace,” in potential violation of Alaska antitrust and consumer
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`protection statutes. See Mem. Supp. Mot. Dismiss 1-2, ECF No. 23-1. The CIDs originally
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`required production of responsive documents within sixty days. Id. at 2. The Lupin
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`Plaintiffs allege that the scope of the CIDs included filings with the Federal Trade
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`Commission (“FTC”) and Department of Justice (“DOJ”), documents produced in the
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`patent litigations, documents discussing the validity of the patents, and agreements between
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`Lupin and the branded manufacturers. Pls.’ Compl. ¶ 21.
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`Alaska law provides that the subject of a CID may within 20 days of service file a
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`petition in Alaska Superior Court stating good cause why the CID should be modified or set
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`aside. Alaska Stat. §45.50.592(f). The Lupin Plaintiffs declined to file any petition requesting
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`modification of the CID. It is undisputed, however, that the Lupin Plaintiffs requested to
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`extend the time for compliance with the CIDs; the Attorney General granted those requests.
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`Thus, the deadline to produce documents responsive to the CIDs was May 4, 2015. Pls.’
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`Compl. ¶23.
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`Instead of complying with or objecting to the CIDs, the Lupin Plaintiffs filed the
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`present action on the May 4 deadline, and filed the Motion for Preliminary Injunction (ECF
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`No. 4) on the following day. The Complaint requests that this Court immediately issue a
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`permanent injunction restraining Defendant from issuing civil investigative demands (CIDs)
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`to Plaintiffs in connection with the Attorney General’s investigation of Plaintiffs’ compliance
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`with Alaskan Antitrust laws, and from applying those state laws to Plaintiffs. Plaintiffs also
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`5
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`request a declaratory judgment that Defendant’s issuance of CIDs to Plaintiffs in connection
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`with the Attorney General’s investigation of Plaintiffs’ compliance with Alaskan antitrust
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`laws regarding the drugs was unconstitutional. The Plaintiffs also seek attorneys’ fees and
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`damages.
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`On May 22, 2015, the Attorney General filed a motion for extension of time to
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`respond, noting that the assistant attorney general assigned to the case (Clyde Sniffen, Jr.)
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`was on vacation when this case was filed and that an extension was needed to allow time for
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`Sniffen to “return from vacation on May 27, 2015 to review the pleadings in this case, confer
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`with Attorney General Richards, and prepare a response to the motion for preliminary
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`injunction.” The motion was opposed by the Plaintiffs but was granted by this Court.
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`On June 1, 2015, the Attorney General filed a petition in Alaska Superior Court for
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`an order to show cause why the Lupin Plaintiffs should not be held in contempt for failure
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`to respond to the CIDs pursuant to Alaska Stat. § 45.50.592(g).5 On June 1, 2015, the
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`Attorney General also filed the subject Motion to Dismiss (ECF No. 23) and a Motion to
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`Stay the Motion for Preliminary Injunction (ECF No. 24) in this Court.
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`This Court held a teleconference on June 3, 2015. As a result of that call, the Motion
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`to Stay the Motion for Preliminary Injunction was granted, and this Court established a
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`briefing schedule for the motion to dismiss. This Court held a hearing on the Motion to
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`Dismiss on June 26, 2015.
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`STANDARD OF REVIEW
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`A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure for
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`5 The Court refers to this case as “the Alaska Proceeding.”
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`6
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`IPR2015-01030
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`lack of subject matter jurisdiction challenges a court’s authority to hear the matter brought
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`by a complaint. See Davis v. Thompson, 367 F. Supp. 2d 792, 799 (D. Md. 2005). This
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`challenge under Rule 12(b)(1) may proceed either as a facial challenge, asserting that the
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`allegations in the complaint are insufficient to establish subject matter jurisdiction, or a
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`factual challenge, asserting “that the jurisdictional allegations of the complaint [are] not
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`true.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted). With
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`respect to a facial challenge, a court will grant a motion to dismiss for lack of subject matter
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`jurisdiction “where a claim fails to allege facts upon which the court may base jurisdiction.”
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`Davis, 367 F. Supp. 2d at 799.
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`Where the challenge is factual, “the district court is entitled to decide disputed issues
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`of fact with respect to subject matter jurisdiction.” Kerns, 585 F.3d at 192. “[T]he court may
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`look beyond the pleadings and ‘the jurisdictional allegations of the complaint and view
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`whatever evidence has been submitted on the issue to determine whether in fact subject
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`matter jurisdiction exists.’” Khoury v. Meserve, 268 F. Supp. 2d 600, 606 (D. Md. 2003)
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`(citation omitted). The court “may regard the pleadings as mere evidence on the issue and
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`may consider evidence outside the pleadings without converting the proceeding to one for
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`summary judgment.” Velasco v. Gov’t of Indon., 370 F.3d 392, 398 (4th Cir. 2004); see also
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`Sharafeldin v. Md. Dep’t of Pub. Safety & Corr. Servs., 94 F. Supp. 2d 680, 684-85 (D. Md. 2000).
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`A plaintiff carries the burden of establishing subject matter jurisdiction. Lovern v. Edwards,
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`190 F.3d 648, 654 (4th Cir. 1999).
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`7
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`Janssen Ex. 2055
`Lupin Ltd. v. Janssen Sciences Ireland UC
`IPR2015-01030
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`ANALYSIS
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`The main issue before this Court is whether this Court should abstain from exercising
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`its jurisdiction over this case under the doctrine of Younger v. Harris, 401 U.S. 37 (1971).6 Of
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`course, federal courts have a “virtually unflagging” obligation to hear and decide those cases
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`for which they have jurisdiction. Sprint Communications, Inc. v. Jacobs, 134 S. Ct. 584, 591
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`(2013) (citing Colorado River Water Conservation Dist. V. United States, 424 U.S. 800 (1976)).
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`Certain “exceptional circumstances,” however, “justify a federal court’s refusal to decide a
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`case in deference to the States.” Id. (quoting New Orleans Pub. Serv., Inc. v. Council of City of
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`New Orleans, 491 U.S. 350 (1989)). The first case involving such an “exceptional
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`circumstance” was Younger, where the United States Supreme Court held that considerations
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`of federalism and comity required federal courts to abstain from exercising their equity
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`jurisdiction to enjoin ongoing state criminal prosecutions. Subsequently, the Supreme Court
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`found that such considerations also justified abstention where there were “state civil
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`proceedings that [were] akin to criminal prosecutions” or state proceedings “that implicate[d]
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`a State’s interest in enforcing the orders and judgments of its courts.” Sprint Communications,
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`Inc. v. Jacobs, 134 S. Ct. 584, 588 (2013). The Supreme Court’s most recent opinion
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`addressing Younger abstention—Sprint Communications, Inc. v. Jacobs—does not purport to
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`diverge from the Court’s previous Younger jurisprudence; however, the Court noted that its
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`6 This Court recognizes that the Defendant Attorney General raised several other issues in its
`motion to dismiss, including arguments pertaining to failure to state a claim under Rule 12(b)(6)
`under the Dormant Commerce Clause of the United States Constitution, see U.S. Const. art. 1, § 8,
`cl.3, ripeness doctrine, absolute prosecutorial immunity, and qualified immunity. These issues were
`fully briefed, although the majority of the parties’ papers focused on the abstention issue, and
`argument at the June 26, 2015 hearing was limited to the abstention issue as well. Because this
`Court finds that Younger abstention is proper, this Court does not reach these other issues raised by
`the parties.
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`8
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`decision was intended “to guide other federal courts” and to “clarify and affirm that Younger
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`extends to the three exceptional circumstances identified in [New Orleans Pub. Serv., Inc. v.
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`Council of City of New Orleans, 491 U.S. 350 (1989)], but no further.” Sprint, 134 S. Ct. at 593-
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`94 (internal quotation marks omitted).
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`The Attorney General asserts that the Alaska Proceeding warrants Younger abstention
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`because it is both a civil enforcement proceeding akin to a criminal prosecution (i.e., the
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`second Younger category) and a state proceeding that implicates the State’s interest in
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`enforcing the orders and judgments of its courts (i.e., the third Younger category). The Lupin
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`Plaintiffs characterize the Alaska Proceeding as a discovery dispute that does not qualify
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`under either the second or third Younger categories. Because this Court finds that this case
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`clearly qualifies for the third category of Younger abstention, this Court need not reach the
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`issue of whether this case also satisfies Younger’s second category.
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`A) The Alaska Proceeding Implicates the State’s Interest in Enforcing the Orders
`and Judgments of its Courts
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`In Juidice v. Vail, 430 U.S. 327 (1977), the Supreme Court found that abstention under
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`Younger was appropriate in a federal class action suit brought by individuals who had been
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`found in contempt by state court judges for disobeying subpoenas. The Court recognized
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`that the same principles of federalism and comity that were emphasized in Younger also
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`applied to cases involving a State’s contempt process because “federal-court interference
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`with the State’s contempt process is an offense to the State’s interest . . . likely to be every bit
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`as great as it would be were [it] a criminal proceeding.” Juidice, 430 U.S. at 335-36 (internal
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`quotation marks omitted).
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`9
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`IPR2015-01030
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`The Lupin Plaintiffs attempt to distinguish this case from Juidice on the basis of the
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`type of subpoena at issue. In Juidice, the Supreme Court was faced with contempt
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`proceedings arising out of an individual’s failure to respond to a subpoena in a civil action
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`between private parties. In this case, the civil investigative demands—essentially
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`subpoenas—are administrative in nature. Specifically, AS § 45.50.592 authorizes the
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`Attorney General to issue CIDs when the Attorney General believes a party may have
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`documentary evidence believed to be relevant to an authorized antitrust investigation.
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`Petitions pertaining to such demands “may be filed in the superior court for the judicial
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`district in which the person on whom the demand is served resides.” AS § 45.50.592(f).
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`The Lupin Plaintiffs acknowledge that courts have found that Younger abstention is
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`appropriate in the face of similar civil investigative demands,7 but argue that those cases were
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`“eviscerate[d]” by the Supreme Court’s opinion in Sprint. Pls.’ Resp. at 8. The Lupin
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`Plaintiffs argue that this case is instead analogous to Google v. Hood, --- F. Supp. 3d ----, 2015
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`WL 1546160 (S.D. Miss. Mar. 27, 2015), and that Younger abstention does not apply. In the
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`Google case, the district court found that a subpoena issued under the Mississippi Consumer
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`Protection Act by a state’s attorney general did not fit into any of the three Younger types of
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`cases. In reaching that conclusion, however, the district court noted that there was no
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`pending attempt to enforce the subpoena.8 Id. at *6 (“At this time, there is no ongoing state
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`criminal prosecution relating to this matter, nor are there civil proceedings involving certain
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`7 These cases include Temple of the Lost Sheep, Inc. v. Abrams, 761 F. Supp. 237, 242-43 (E.D.N.Y.
`1989), and Cuomo v. Dreamland Amusements, Inc., 2008 WL 4369270, at *10 (S.D.N.Y. Sept. 22, 2008).
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` 8
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` Notably, the district court also found that the subpoena had been issued in bad faith by the
`attorney general in response to Google’s refusal to comply with certain requests made by the
`attorney general concerning Google’s services.
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`10
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`orders uniquely in furtherance of the state courts’ ability to perform their judicial
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`functions.”). Thus, the Google case is immediately distinguishable because the attorney
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`general in that case never sought to enforce the subpoena through an action in the state
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`court. In this case, the Attorney General has already filed a proceeding in Alaska Superior
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`Court, thereby triggering judicial oversight of the CIDs. In this respect, therefore, the Lupin
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`Plaintiffs’ argument reveals itself as a mere distinction without a difference. The subpoenas
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`at issue in Juidice were not issued by a court itself; instead, they were issued by a private
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`party’s attorney acting “as an officer of the court.” 430 U.S. at 329 n2. Similarly, the CIDs
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`in this case are issued by the Attorney General, but like in Juidice, can only be enforced after
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`involving a state court. Accordingly, this Court finds that Juidice requires this Court to
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`abstain under the third category of the Younger Doctrine.9
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`B) The Alaska Proceeding as a Parallel Action
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`The Lupin Plaintiffs next argue that “this Court should not abstain in favor of the
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`show cause petition because it is not a truly parallel state proceeding that raises the
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`constitutional questions that Plaintiffs have presented in their federal complaint.”10 Pl.’s
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`Resp. 12-13, ECF No. 32. The Lupin Plaintiffs argue that the proceeding will be restricted
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`to whether the Lupin Plaintiffs willfully disobeyed the CIDs and that “it appears unlikely
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`9 In light of this Court’s holding with respect to the third Younger category, this Court sees no need
`to address the issue whether the Alaska Proceeding qualifies as a civil enforcement action akin to a
`criminal prosecution under the second Younger category.
`10 The Lupin Plaintiffs’ argument on this point refers to three factors recognized in Middlesex County
`Ethics Committee v. Garden State Bar Association, 457 U.S. 423 (1982): (1) whether there is an ongoing
`state judicial proceeding; (2) whether the proceedings implicate important state interest; and (3)
`whether there is an adequate opportunity in the state proceedings to raise constitutional challenges.
`See id. at 432. In Sprint, the Supreme Court clarified that these factors were “additional factors
`appropriated considered by the federal court before invoking Younger” rather than “dispositive”
`conditions. See 134 S. Ct. at 593.
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`11
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`Janssen Ex. 2055
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`IPR2015-01030
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`that the Alaska superior court will decide the defense that the AG lacked constitutional
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`authority to issue the CIDs to Plaintiffs.” Id. at 13. The Lupin Plaintiffs assert that the
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`Alaska statute only expressly allows improper service of the CID to be raised and prohibits
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`defenses going to a CID’s validity; thus, the Lupin Plaintiffs argue that their challenge to the
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`Attorney General’s jurisdictional authority to even issue the CIDs to the Lupin Plaintiffs is
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`an issue that will not be reached.
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`The Lupin Plaintiffs’ speculation about the purported inadequacy of the Alaska
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`proceeding fails to prevent the application of Younger abstention in this case. The Supreme
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`Court has explained that “the burden . . . rests on the federal plaintiff to show that state
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`procedural law bar[s] presentation of its claims.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14
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`(1987) (internal quotation marks omitted). “[W]hen a litigant has not attempted to present
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`his federal claims in related state-court proceedings, a federal court should assume that state
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`procedures will afford an adequate remedy, in the absence of unambiguous authority to the
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`contrary.” Id. at 15. The Lupin Plaintiffs have not cited to any case authority from Alaska
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`that suggests constitutional or jurisdictional challenges cannot be raised in response to the
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`show cause petition. Indeed, such limitations is unlikely because the Alaska Superior Court
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`is the court of general jurisdiction in the State. Accordingly, while the statute is somewhat
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`ambiguous as to the full gambit of defenses that may be raised during a show cause petition
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`arising out of a CID, the Lupin Plaintiffs have failed to present unambiguous authority that
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`would justify a conclusion by this Court that an Alaskan state judge would “interpret
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`ambiguities in state procedural law to bar presentation of federal claims.” Id.
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`C) The Timing of the State and Federal Actions
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`12
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`IPR2015-01030
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`The Lupin Plaintiffs next argue that abstention is inappropriate because, in its view,
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`there have been proceedings on the merits in this case, and the Attorney General did not file
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`the Alaska Proceeding until after the Lupin Plaintiffs filed their Motion for Preliminary
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`Injunction in this Court. Citing to Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 238
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`(1984), the Lupin Plaintiffs argue that their motion for preliminary injunction “put the merits
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`of the Plaintiffs’ case in play.” Pl.’s Resp. at 15. However, in Midkiff, the district court had
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`granted an injunction—i.e., there was a ruling on the issues raised by the parties. In this
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`case, however, the Court has not made any substantive rulings to date; therefore, there is no
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`basis for this Court to refuse to abstain based upon proceedings on the merits in federal
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`court.
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`D) Exceptions to the Younger Doctrine
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`The Lupin Plaintiffs also argue that several of the exceptions to the Younger Doctrine
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`apply to this case. Indeed, the Supreme Court has recognized a few exceptions to Younger
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`abstention. These exceptions include state proceedings initiated in bad faith or for purposes
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`of harassment. Additionally, an exception exists where a statute is “flagrantly and patently
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`violative of express constitutional prohibitions in every clause, sentence and paragraph, and
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`in whatever manner and against whomever an effort might be made to apply it.” Younger,
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`401 U.S. at 53-54.
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`1) The Lupin Plaintiffs’ Alleged Irreparable Loss of Constitutional Claims
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`The Lupin Plaintiffs assert that, through this action, they seek to “vindicate their
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`constitutional right to structure their primary conduct with some minimum assurance as to
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`where that conduct will and will not render them liable to suit.” Pls.’ Resp. at 16 (internal
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`marks omitted). In Younger, the Court alluded to the possibility of an exception for
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`irreparable injury that is “both great and immediate.” See 401 U.S. at 46. The Court
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`clarified, however, that such a threat of injury to federally protected rights “must be one that
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`cannot be eliminated by [the] defense against a single criminal prosecution,” and that “the
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`cost, anxiety, and inconvenience” of responding to a proceeding were insufficiently severe to
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`prevent abstention. Id.
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`In this case, the concerns raised by the Lupin Plaintiffs—although undoubtedly
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`relating to jurisdictional issues—boil down to harms arising from responding to the Alaska
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`Proceeding itself. As discussed above, the Lupin Plaintiffs have failed to demonstrate that
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`they have no way of vindicating their rights through the Alaska Proceeding and, thus, they
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`have failed to show that the threatened harm constitutes an irreparable injury for purposes
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`of Younger.
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`2) The Alleged Retaliatory Nature of the Alaskan Proceeding
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`The Lupin Plaintiffs argue that the Attorney General’s show-cause petition is
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`retaliatory because such a petition is warranted under Alaska law only when a recipient
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`“willfully disobeys” a CID, but not when a recipient merely “challenges” a CID. See Mot. in
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`Opposition, ECF No. 32. The question then becomes whether filing the present motion for
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`injunctive relief constitutes a response to the CID under § 44.62.590(a)(2).
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`Plaintiffs argue that § 45.50.592(f), the provision outlining how a recipient may
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`challenge a CID without being in contempt, could be interpreted to permit the present
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`motion as a “response” for the purposes of § 44.62.590(a)(2). The statute reads in relevant
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`part “a petition to extend the return date for, or to modify or set aside a demand issued
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`under (a) of this section, stating good cause, may be filed in the superior court for the judicial district
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`where the parties reside.” Alaska Stat. Ann. § 45.50.592(f) (emphasis added). The Lupin
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`Plaintiffs contend that because the statute does not expressly foreclose the possibility of
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`filing a challenge to a CID in a federal district court of a different state, the present action
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`must be construed as a valid “response,” and not a refusal that would justify the Attorney
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`General’s show-cause petition. This argument is unpersuasive, as the context of the statute
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`indicates contemplation of a “superior court,” the common denomination of an intermediate
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`court in Alaska, not a federal court established under Article III of the U.S. Constitution. At
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`best, such interpretive creativity hardly reveals the show-cause petition to be “bad faith” or
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`“retaliatory” as alleged by the Lupin Plaintiffs.
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`3) The Alleged Waiver of the Abstention Issue
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`Plaintiffs next contend that by virtue of the Attorney General’s motion for an
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`extension to respond to Plaintiffs’ motion for preliminary injunction, the Attorney General
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`waived any claim for Younger abstention. In support, Plaintiffs cite to Ohio Civil Rights
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`Comm’n v. Dayton Christian Schools, Inc., 477 U.S. 619 (1986). In Ohio Civil Rights Comm’n, the
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`Sup