Duane Morris Class Action Review - 2023 - Report - Page 276
Department’s motion for an emergency stay of the injunction, and affirmed the district
court’s ruling granting class certification.
Conversely, in Fund Texas Choice, et al. v. Paxton, 2022 U.S. Dist. LEXIS 188460
(W.D. Tex. Oct. 4, 2022), the court held that the plaintiffs had standing to seek a
preliminary injunction. The plaintiffs, a group of abortion rights groups, filed a class
action and sought a preliminary injunction to bar defendants, Texas Attorney General
Bill Paxton and local district attorneys, from punishing organizations for facilitating
abortion care outside of Texas. The plaintiffs contended that statements made by the
Attorney General chilled their First Amendment rights to speak about and fund abortion
care and restricted their protected ability to facilitate out-of-state abortions. The court
granted plaintiffs’ motion for reconsideration of its previous order granting defendants’
motion to quash the subpoena of Paxton. The court found that direct clarification by
Paxton was needed on his intended scope of the state’s abortion laws and whether he
would restrict out-of-state abortions as illegal. Paxton had argued that the plaintiffs
lacked standing because there was no imminent threat of enforcement for his personal
and professional statements. The court determined that during the preliminary injunction
hearing it was clear that Paxton’s testimony would be necessary in order to determine
whether the plaintiffs’ fears were objectively unreasonable. The court opined that
Paxton therefore would not be able to “repeatedly label his threats of prosecution as
real for the purposes of deterrence and as hypothetical for the purposes of judicial
review.” Id. at *18. The court ruled that if Paxton believes that out-of-state abortion care
violates the trigger ban, then the statutory language suggests he must pursue civil
sanctions against the alleged offenders, which contradicts Paxton’s contention that
there is no imminent threat of enforcement. Therefore, the court found that only Paxton
could testify as to the true representation of his position on the legality of out-of-state
abortion care. For these reasons, the court granted plaintiffs’ motion for reconsideration,
and denied defendants’ motion.
Sonner, et al. v. Premier Nutrition Corp., 2022 U.S. App. LEXIS 27292 (9th Cir. Sept.
29, 2022), considered these issues in 2022 in the context of the defendant seeking an
injunction against re-litigation of certain issues. The plaintiffs filed a class action alleging
that the defendant violated California consumer protection laws in its marketing of its
Joint Juice supplement. The district court previously dismissed the plaintiffs’ action
without leave to amend, and the Ninth Circuit affirmed. The plaintiffs thereafter filed a
virtually identical action in California state court. The Ninth Circuit subsequently affirmed
the district court’s order denying the defendant’s request for a permanent injunction
against a California state court action under the “relitigation exception” of the AntiInjunction Act. The parties disagreed as to whether dismissal for failure to plead an
inadequate remedy of law required dismissal on the merits and thereby precluded
relitigation in an alternative forum. The Ninth Circuit ruled that the district court did not
abuse its discretion in denying the permanent injunction regardless of the previous
action’s preclusive effect. The Ninth Circuit also affirmed the district court’s ruling
granting dismissal of the plaintiffs’ claims for failure to state a claim pursuant to Rule
12(b)(6). The parties disputed whether a dismissal for failure to plead an inadequate
remedy at law was a dismissal “on the merits” and thus precluded relitigation in another
forum. Id. at *2. The Ninth Circuit declined to address the merits of the claim, finding
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Duane Morris Class Action Review – 2023
