Two recent decisions in California and Arkansas reached different conclusions as to the court’s jurisdiction over a state attorney general based on the issuance of civil investigative demands (CIDs).
In the more recent case, Twitter, Inc. v. Paxton, No. 21-cv-01644 (N.D. Cal. May 11, 2021), the Texas Attorney General’s Office (AGO) issued a CID to Twitter, seeking information for an investigation about possible violations of Texas’s consumer protection law. Instead of responding, Twitter sued Attorney General Paxton in federal court in the Northern District of California, alleging a violation, under section 1983, of Twitter’s First Amendment rights to moderate its platform as it wants.
The court first decided that it had personal jurisdiction over Attorney General Paxton, because Supreme Court precedent supports jurisdiction when a plaintiff alleges that a defendant “engaged in retaliatory conduct expressly aimed at chilling the speech of a [state] resident.” The allegation in the complaint is sufficient, according to the court, to give the court jurisdiction over the defendant.
The court then turned to the question of subject matter jurisdiction. Twitter argued that the Ninth Circuit has recognized a First Amendment retaliation claim based on a theory that the defendant subjected the plaintiff to a retaliatory investigation. One element of this claim is that the defendant’s “actions would chill a person of ordinary firmness from continuing to engage in the protected activity.“ In this case, the Texas AGO has no authority to impose any sanction for a failure to comply with its CIDs. The AGO would instead have to go to court to enforce the CID, “where the only possible consequence adverse to Twitter would be a judicial finding that the CID, contrary to Twitter’s assertion, is enforceable.” There are no fines or penalties that can be imposed by the AGO on its own, because CIDs are not self-executing. As the attorney general has so far taken no action to enforce the CID, Twitter’s suit was premature and was dismissed.
On the other hand, Arkansas Attorney General Leslie Rutledge was not subject to the personal jurisdiction of a Missouri federal court simply by sending letters seeking information in a consumer protection case. Morningside Church, Inc. v. Rutledge, No. 3:20-cv-05050 (W.D. Mo. Aug. 27, 2020). After receiving complaints from several consumers, the Arkansas Attorney General’s Office sought information from several defendants through a CID about fraudulent health claims in connection with a supposed COVID-19 cure. After negotiating the scope of the CID and receiving objections and incomplete answers, the attorney general’s office sent a letter seeking complete information and stating that the state would seek a court order if responses were not received by June 12. On June 5, the plaintiffs filed suit against the state in federal court in Missouri, alleging that the attorney general’s CIDs and any follow-up actions infringed on their rights of religious freedom and other constitutional rights.
The Arkansas Attorney General’s Office argued that the court does not have personal jurisdiction over the office because the two letters sent to the plaintiffs in Missouri are not sufficient “minimum contacts” to provide personal jurisdiction. The court noted that the attorney general has authority “to protect the State of Arkansas and the general public as consumers from illegal, fraudulent, or deceptive practices” as well as the authority to investigate such practices. In this case, the attorney general, through her investigation, did not purposefully avail her office of the “benefits and protections of the forum state to such a degree that her office should reasonably anticipate being haled into court here based on their actions.”
Attorney General Rutledge also argued that the court should abstain from exercising jurisdiction because “a suit for declaratory judgment aimed solely at wresting the choice of forum from the ‘natural’ plaintiff will normally be dismissed,”. The plaintiffs argued that they were the first to file suit and the court should not abstain. The court noted that Eighth Circuit precedent considers the plaintiffs’ knowledge of the state’s intent to seek enforcement of its CID and the plaintiffs’ filing of a declaratory judgment action to be “red flags” indicating that a court should abstain, but since there were insufficient minimum contacts, there was no personal jurisdiction over the attorney general’s office. The court dismissed the case.
