51 F.4th 1182
9th Cir.2022Background
- Proposition 65 requires warnings before knowingly exposing individuals to chemicals known to cause cancer or reproductive toxicity; both the California Attorney General and private parties may enforce it.
- California Chamber of Commerce sought a preliminary injunction barring the Attorney General and "private enforcers" from filing or prosecuting new Proposition 65 suits seeking cancer warnings for acrylamide in food and beverages.
- CERT (Council for Education and Research on Toxics) intervened to defend the enforcement practice; the district court granted the preliminary injunction, covering the AG, his agents, and private enforcers.
- A Ninth Circuit merits panel affirmed the injunction as to CERT, relying on the so-called "illegal objective" doctrine to reject CERT’s First Amendment / prior-restraint challenge.
- The full court denied rehearing en banc; Judge Berzon (joined by four colleagues) filed a statement respecting the denial, arguing the panel misapplied and vastly expanded the "illegal objective" exception and curtailed Petition Clause protections.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does enjoining future Prop 65 suits violate the Petition Clause/First Amendment? | Injunction necessary to prevent improper or pretextual enforcement actions and protect businesses. | Injunction is an unconstitutional prior restraint on the right to petition; blocks access to courts. | Rehearing denied; merits panel had affirmed the injunction as to CERT. Berzon disagrees, arguing the injunction unlawfully restricts petition rights. |
| May the "illegal objective" doctrine (from Bill Johnson’s) be applied outside NLRB/labor context? | Doctrine can justify injunctive relief to block suits that aim to achieve an illegal objective. | Doctrine is labor-specific; cannot be broadened to non-labor contexts without eroding Petition Clause immunity. | Panel applied the doctrine beyond labor law; Berzon argues this expansion is unsupported and erroneous. |
| Can a court enjoin the filing of anticipated lawsuits at the preliminary-injunction stage based on predicted merit? | A preliminary injunction can prevent imminent harms from expected litigation. | Preemptively enjoining good-faith, non-frivolous lawsuits based on predicted defenses improperly denies access to courts; ordinary rules (motions to dismiss, summary judgment, declaratory actions) suffice. | Panel allowed preemptive use of the illegal-objective theory; Berzon contends no precedent permits enjoining unfiled, non-labor suits on predicted failure. |
| Is it permissible to issue an injunction that binds unnamed private enforcers? | Broad relief is necessary to prevent identical private enforcement suits. | Injunction binding unnamed private persons is overbroad and violates limits on issuing injunctions against non-parties. | Panel did not reconsider breadth; Berzon notes Whole Woman’s Health limits injunctions against unnamed private parties and criticizes the injunction’s scope. |
Key Cases Cited
- Bill Johnson’s Restaurants, Inc. v. N.L.R.B., 461 U.S. 731 (1983) (origin of the "illegal objective" footnote relied on by the panel)
- Cal. Chamber of Com. v. Council for Educ. & Rsch. on Toxics, 29 F.4th 468 (9th Cir. 2022) (merits panel opinion affirming preliminary injunction against CERT under the "illegal objective" theory)
- CSMN Invs., LLC v. Cordillera Metro. Dist., 956 F.3d 1276 (10th Cir. 2020) (refused to extend the illegal-objective exception beyond labor context, protecting Petition Clause immunity)
- BE & K Constr. Co. v. N.L.R.B., 536 U.S. 516 (2002) (recognizes protection for "genuine" but unsuccessful litigation under Petition Clause principles)
- N.L.R.B. v. Nash-Finch Co., 404 U.S. 138 (1971) (example of enjoining state-court injunctions where federal NLRB power preempts)
- San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959) (describes Congress’s delegation of certain labor disputes to the NLRB)
- United Mine Workers of Am. v. Illinois State Bar Ass’n, 389 U.S. 217 (1967) (describes the right to access courts as a core liberty)
- Whole Woman’s Health v. Jackson, 142 S. Ct. 522 (2021) (limits on federal courts issuing injunctions that bind unnamed private persons)