Backpage.com, LLC v. Hawley

Filing 59

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that AG Hawley's motion to dismiss (ECF No. 21 ) is GRANTED. IT IS FURTHER ORDERED that Backpage's motion for preliminary injunction (ECF No. 11 ) and second motion for preliminary injunction (ECF No. 48 ) are DENIED as moot. IT IS FINALLY ORDERED that Backpage's motion to file an amended complaint (ECF No. 51 ) is DENIED as moot. Signed by Magistrate Judge Patricia L. Cohen on 11/28/2017. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BACKPAGE.COM, LLC,

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Plaintiff,
vs.
JOSHUA D. HAWLEY,
Defendant.

Case no. 4:17-CV-1951 PLC

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Missouri Attorney General Joshua
Hawley’s motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). 1
(ECF No. 21). Plaintiff Backpage.com opposes the motion. (ECF No. 34). The Court held a
hearing on AG Hawley’s motion to dismiss. For the reasons that follow, the Court grants AG
Hawley’s motion to dismiss.2
I.

Factual and Procedural Background
In May 2017, AG Hawley issued civil investigative demands (CIDs) to Backpage,

Backpage’s CEO Carl Ferrer, and two other corporate officers (collectively, “Backpage
Recipients”) for the purpose of investigating possible violations of the Missouri Merchandising
Practices Act (MMPA), Mo. Rev. Stat. §§ 407.010, et seq. (ECF Nos. 1 at 12, 21-2). The
MMPA broadly prohibits false, fraudulent, or deceptive merchandising practices and “imposes
1

Plaintiff Backpage.com, LLC and AG Hawley consented to the jurisdiction of the undersigned
pursuant to 28 U.S.C. § 636(c).
2
Causes of action for damages may be stayed but not dismissed on abstention grounds.
Quakenbush v. Allstate Ins. Co., 517 U.S. 706, 721 (1996). In contrast, abstention under
Younger v. Harris, 401 U.S. 37 (1971) applies in a case where only injunctive or equitable relief
is sought, the proper disposition is dismissal of the federal action. Yamaha Motor Corp., U.S.A.
v. Stroud, 179 F.3d 598, 603-04 (8th Cir. 1999). Because Backpage seeks only equitable relief
and no monetary damages, dismissal is proper.
1

criminal penalties and civil liability on persons who engage in conduct that it deems unlawful.”
Huch v. Charter Commc’ns Inc., 290 S.W.3d 721, 725 (Mo. banc 2009).
Each CID advised: “The investigation will inquire into the activities of [Backpage
Recipients] in connection with the sale or advertisement, as defined in Section 407.010, RSMo,
of commercial sexual conduct, other sexually oriented services, massage services, dating services
and other merchandise” to “determine whether the [Backpage Recipients] have used deception,
fraud, false promise, misrepresentation, unfair practice, or the concealment, suppression, or
omission of material fact in connection with the sale or advertisement of the above
merchandise.” (ECF No. 21-2 at 1).
The CID served upon Backpage demanded Backpage provide AG Hawley the
information and documents described in twenty-four numbered paragraphs by June 7, 2017. (Id.
at 3). Among other things, the CID demanded Backpage:


Provide all documents concerning Backpage’s reviewing, blocking,
deleting, editing, or modifying advertisements that appear on its website,
either by Backpage employees or agents, or by automated software
processes, including but not limited to policies, manuals, memoranda, and
guidelines.



Provide all documents concerning advertising posting limitations,
including but not limited to the “Banned Terms List,” the “Grey List,” and
error messages, prompts, or other messages conveyed to users during the
advertisement drafting or creation process.



Provide all documents concerning human trafficking, sex trafficking,
human smuggling, prostitution, or the facilitation or investigation thereof,
including but not limited to policies, manuals, staff training materials,
memoranda, and guidelines.



Identify every posting or advertisement posted in the Adult Section of the
Missouri Locations that was either (a) deleted, edited, or modified by
Backpage employees or agents, or (b) blocked, deleted, edited, or modified
by any automated software process.

2



For each posting or advertisement identified in response [to the preceding
paragraph], provide both (a) a copy of the posting or advertisement as
originally submitted by the Backage user, and (b) a copy of the posting or
advertisement as it was publicly posted on Backpage.

(Id. at ¶¶ 4, 5, 7, 11, 12). The CID advised Backpage that “an extension of time or modification
of the terms of the Investigative Demand may be sought only for good cause pursuant to the
terms of Section 407.070, RSMo.” (Id. at 6). In addition, the CID warned that Section 407.080
“makes certain acts done with the intent to avoid, evade, or prevent compliance in whole or in
part with any Investigative Demand served hereunder a Class A Misdemeanor[.]” (Id.).
The parties dispute whether Assistant Attorney General Mary Morris extended
Backpage’s deadline for responding to the CID. (ECF Nos. 21-1 at ¶ 15, 45 at ¶ 4-5). While the
parties agree that attorney Jim Grant called Ms. Morris and requested an extension of time, they
dispute whether he identified himself as counsel for Mr. Ferrer alone or for Mr. Ferrer and
Backpage. Id. According to Ms. Morris, Mr. Grant identified himself as counsel for Mr. Ferrer,
and she agreed to extend the deadline for Mr. Ferrer’s response from June 7, 2017 until July 7,
2017. (ECF No. 21-1 at ¶¶ 16-19). Mr. Grant avers that he informed Ms. Morris that he
represented Backpage and Mr. Ferrer, as evidenced by his subsequent email to Ms. Morris
thanking the AG’s office for granting “my clients” an extension.3 (ECF Nos. 14-11, 45).
On June 15, 2017, AG Hawley filed in the Circuit Court of St. Charles County a “Petition
for Order to Enforce Civil Investigative Demand” against Backpage pursuant to Mo. Rev. Stat. §
407.090.4 (ECF Nos. 1 at ¶ 43, 21-5). In the petition, AG Hawley stated that he initiated the

3

Mr. Grant responded to the CID on behalf of Mr. Ferrer and Backpage on July 7, 2017. (ECF
Nos. 21-1 at ¶ 29; 21-7). Their response to the CID consisted entirely of objections and they
produced no documents. (ECF No. 21-7).
4
The court takes judicial notice of the pending state-court docket of State of Missouri, ex rel.
Attorney General Hawley v. Backpage.com, LLC, No. 1711-CC00589 (Circuit Court of St.
Charles County, filed June 15, 2017) available at https://www.courts.mo.gov/casenet. See e.g.,
3

investigation into possible violations of the MMPA and issued the CID based upon a report by
the United States Senate’s Permanent Subcommittee on Investigations, which revealed
Backpage’s role in facilitating and concealing illegal activity, such as human trafficking and
commercial sexual exploitation. (ECF No. 21-5 at ¶ 1). AG Hawley alleged that Backpage had
neither “produced any requested documentation or information, nor . . . filed a petition to extend
the return date for, or to modify or set aside the [CID]” pursuant to Mo. Rev. Stat. § 407.070, and
therefore requested an order enforcing the CID. (Id. at ¶¶ 18, 22, 23).
On July 11, 2017, Backpage filed in this Court a “complaint for injunctive and
declaratory relief,” asking the Court to “enjoin and declare unlawful” AG Hawley’s efforts to
investigate and prosecute it under the MMPA. (ECF No. 1). In the complaint, Backpage argues
that Section 230 of the Communications Decency Act (CDA), 47 U.S.C. § 230, bars state law
claims against internet websites and publishers arising from content created by a third party. (Id.
at 17-18). Backpage also claims that AG Hawley’s investigation and the CID violated: the
rights of Backpage and its users under the First and Fourteenth Amendments; Backpage’s rights
under the Fourth, Fifth, and Fourteenth Amendments; and the MMPA.

(Id. at 18-21).

Approximately two weeks later, Backpage filed a motion for preliminary injunction based on its
purported immunity under the CDA and its constitutional rights under the First, Fourth, and Fifth
Amendments. (ECF No. 11).
AG Hawley moved to dismiss Backpage’s complaint pursuant to Rules 12(b)(1) and
12(b)(6). (ECF No. 21). In his motion, AG Hawley argues that the Court should dismiss the
case pursuant to Younger v. Harris, 401 U.S. 37 (1971) and that Backpage failed to state a claim
upon which relief can be granted. (ECF No. 21 at 10-11). Backpage responded (ECF No. 34),
Matter of Phillips, 593 F.2d 356, 358 (8th Cir. 1979) (a federal court may properly take judicial
notice of state-court proceedings).
4

and the Court heard arguments regarding the application of the Younger doctrine. Backpage has
since filed a “Second Motion for Preliminary Injunction to Prevent Enforcement of 15 CSR 6016.040” (ECF No. 48). In that motion, Backpage contends that the state regulation, entitled
“Conducting Sex Trafficking Under False Pretenses” and effective October 30, 2017, directly
conflicts with the Section 230 of the CDA and unconstitutionally restricts free speech. (Id.).
II.

Legal Standard
Federal courts have a “virtually unflagging obligation ... to exercise the jurisdiction given

them.” Barzilay v. Barzilay, 536 F.3d 844, 849 (8th Cir. 2008) (quoting Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)). However, the United States
Supreme Court has articulated several abstention doctrines as exceptions to the rule, including
the Younger doctrine. Id. Under Younger, the district court has discretion to decline jurisdiction
when federal action would needlessly interfere with an ongoing state proceeding. Geier v.
Missouri Ethics Comm’n, 715 F.3d 674, 678 (8th Cir. 2013).
III.

Discussion5

5

The parties dispute whether the Court should consider the issue of Younger abstention pursuant
to the pleading and burden requirements of either Rule 12(b)(1) or Rule 12(b)(6). AG Hawley
argues that Younger abstention implicates Rule 12(b)(1), providing for dismissal due to a court’s
lack of subject matter jurisdiction, because, according to the Supreme Court, “Younger
abstention is ‘treated as jurisdictional.’” (ECF No. 42 at 2) (quoting Steel Co. v. Citizens for a
Better Env’t., 523 U.S. 83, 100 n. 3 (1998)). Backpage argues Rule 12(b)(1) is not the proper
vehicle for considering Younger abstention because Rule 12(b)(1) motions challenge the
existence of subject matter jurisdiction, and the issue here is not whether the Court has
jurisdiction but whether the Court should exercise that jurisdiction. (ECF No. 34 at 6-7). See
Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619, 626 (1986) (Younger
abstention “does not arise from lack of jurisdiction in the District Court, but from strong policies
counseling against the exercise of such jurisdiction where particular kinds of state proceedings
have already been commenced.”). According to Backpage, AG Hawley’s motion to dismiss
should be treated as a Rule 12(b)(6) motion and, consequently, the Court should not consider
evidence outside the pleadings. (ECF No. 34 at 6-7). However, “Rule 12(b)(6) does not seem
apt because the request for abstention is more in the nature of a defense and depends on
assertions not ordinarily included in a complaint.” Christian Action Network v. Maine, 679
F.Supp.2d 140, 143 n.2 (D.Me. 2010). The Court relies upon neither rule and finds
5

AG Hawley argues that the Younger doctrine bars this Court’s consideration of
Backpage’s complaint because the state-court action: (1) is ongoing; (2) implicates important
state interests, namely, enforcement of Missouri’s consumer-protection laws; and (3) provides
Backpage ample opportunity to raise its federal-law arguments in opposition to enforcement of
the CID. (ECF No. 21 at 11-13). In response, Backpage contends that AG Hawley based his
motion to dismiss on “outdated authority” and that “this case presents no basis for abstention
under the limited exceptions of Younger and Sprint Communications v. Jacobs, [134 S.Ct. 584
(2013) (“Sprint”)].” (ECF No. 34 at 26).
The Younger abstention doctrine provides that, in “exceptional circumstances,” a federal
court must “refus[e] to decide a case in deference to the States.” Sprint, 134 S.Ct. at 591
(quoting New Orleans Pub. Serv., Inc. v. Council of the City of New Orleans, 491 U.S. 350, 368
(1989) (“NOPSI”)). This doctrine originates from the underlying principles of: equity, which
provides that “courts of equity should not act…when the moving party has an adequate remedy
at law and will not suffer irreparable injury if denied equitable relief”; and “‘comity,’ that is, a
proper respect for state functions.” Younger, 401 U.S. at 43-44. See also Ohio Bureau of Emp’t
Servs. v. Hodory, 431 U.S. 471, 479 (1977) (Younger abstention “allow[s] the State an
opportunity to ‘set its own house in order’ when the federal issue is already before a state
tribunal.”).
While the Younger doctrine originally applied only to state criminal proceedings, the
Supreme Court has enlarged the doctrine to include certain civil actions. See, e.g., Juidice v.
that,“[b]ecause [Younger] abstention is ‘a prudential rather than a jurisdictional ground for
dismissal,’ the pleading and burden requirements of Rule 12(b)(6) are not applicable, nor is the
court ‘limited to the facts that the plaintiff pleaded to determine whether comity and federalism
counsel against [the] exercise of jurisdiction.” Gall v. Steele, No. 2:13-CV-111 CDP, 2015 WL
75234, at *1 n.2 (E.D.Mo. Jan. 6, 2015) (quoting Christian Action Network, 679 F.Supp.2d at
143 n.2). See also Chicago Ins. Co. v. Diocese of Kansas City-St. Joseph, No. 4:13-CV-678
DGK, 2014 WL 556358, at *1 (W.D.Mo. Feb. 13, 2014).
6

Vail, 430 U.S. 327 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592 (1975). Nevertheless, as the
Supreme Court recently clarified, Younger does not apply to “all parallel state and federal
proceedings.” Sprint, 134 S. Ct. at 593. In Sprint, the Court reaffirmed its holding in NOPSI
that Younger abstention only limits federal-court intervention in the following three categories of
state proceedings:

(1) ongoing state criminal prosecutions; (2) “certain ‘civil enforcement

proceedings’”; and (3) “pending civil proceedings involving certain orders . . . uniquely in
furtherance of the state courts’ ability to perform their judicial functions.” Id. at 591 (citing
NOPSI, 491 U.S. at 368).
The Sprint Court employed a three-step approach to Younger abstention. First, a court
determines whether a particular state proceeding falls within one of the Sprint categories. Sprint,
134 S. Ct. at 591. If so, a court must consider whether the three factors articulated in Middlesex
Cty. Ethics Comm’n v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982) support abstention.
Id. at 593. In Middlesex, the Supreme Court identified three factors a court must consider before
invoking Younger: (1) the existence of an “an ongoing state judicial proceeding,” which (2)
“implicate[s] important state interests,” and (3) provides “an adequate opportunity to raise the
constitutional claims.” Middlesex, 457 U.S. at 432. See also Sprint, 134 S. Ct. at 593 (the
Middlesex factors are “not dispositive; they [are] instead, additional factors appropriately
considered by the federal court[.]”).
If the case satisfies the requirements of Sprint and Middlesex, a court considers whether
any of the exceptions to the Younger doctrine apply. Middlesex, 457 U.S. at 435. The Supreme
Court has held that, even where all of the above factors are satisfied, a court should decline to
invoke Younger if there is a “showing of bad faith, harassment, or some other extraordinary
circumstance that would make abstention inappropriate.” Id.

7

A. Sprint categories
Backpage argues that Younger abstention is improper because the state-court action does
not fit any of the state proceeding categories set forth in Sprint. (ECF No. 34 at 28-29). More
specifically, Backpage contends that the state-court action: (1) is not a criminal proceeding;6 (2)
is not a “civil enforcement proceeding” because the State has not brought any civil claims or
criminal charges against Backpage; and (3) does not concern an order “uniquely in furtherance of
the state court[’s] ability to perform [its] judicial functions.” Id. at 28-29 (quoting Sprint, 134 S.
Ct. at 591). In his reply brief, AG Hawley asserts that the state-court action falls into both the
second and third Sprint categories because it: (1) is a civil enforcement proceeding; and (2)
involves a state court’s ability to perform its judicial functions.
1. Civil Enforcement Proceeding
Younger abstention applies where a state-court, civil enforcement proceeding is “akin to
a criminal prosecution” in “important respects.” Sprint, 134 S.Ct. at 592 (quoting Huffman, 420
U.S. at 604). The Sprint Court identified several indicia of civil enforcement proceedings. Id.
First, “[s]uch enforcement actions are characteristically initiated to sanction the federal plaintiff,
i.e., the party challenging the state action, for some wrongful act.” Id. (citing Middlesex, 457
U.S. at 433-34). Additionally, “[i]n cases of this genre, a state actor is routinely a party to the
state proceeding and often initiates the [state] action” and “[i]nvestigations are commonly
involved, often culminating in the filing of a formal complaint or charges.” Id.
Assessing the nature of the state-court action requires an understanding of the CIDs
issued pursuant to the MMPA. As previously stated, the MMPA prohibits false, fraudulent, or

6

Neither party characterizes the state-court action as a criminal proceeding. Therefore, the Court
need not address that Sprint category.
8

deceptive merchandising practices and “imposes criminal penalties and civil liability on persons7
who engage in conduct that it deems unlawful.” Huch, 290 S.W.3d at 725 (footnote added). See
also Mo. Rev. Stat. §§ 407.020.4, 407.100, 407.130. “One of the responsibilities of the AG is
investigating and prosecuting violations of Missouri’s consumer protection statutes[.]” State ex
rel Koster v Charter Commc’ns Inc., 461 S.W.3d 851, 853 (Mo.App.W.D. 2015). In furtherance
of these investigations, the MMPA authorizes the Attorney General to issue a CID when it
“appears. . . that a person has engaged in or is engaging in any method, act, use, practice or
solicitation declared to be unlawful by this chapter[.]” Mo. Rev. Stat. § 407.040.1. A CID is an
administrative subpoena, Charter Commc’ns, 461 S.W.3d at 857, that requires the recipient “to
appear and testify, or to produce relevant documentary material or physical evidence [f]or
examination[.]” Mo. Rev. Stat. § 407.040.1.
The recipient of a CID may, “[a]t any time before the return date specified in a [CID] . . .,
or within twenty days after the [CID] has been served,” file in circuit court “a petition to extend
the return date for, or to modify or set aside the civil investigative demand, stating good cause[.]”
Mo. Rev. Stat. § 407.070. The MMPA further provides that:
Any person who, with intent to avoid, evade, or prevent compliance, in whole
or in part, with any [CID], removes from any place, conceals, withholds, or
destroys, mutilates, alters, or by any other means falsifies any information,
documentary material, or physical evidence[,]…which is the subject of any
such [CID] shall be guilty of a class A misdemeanor.
Mo. Rev. Stat. § 407.080.
CIDs are not self-enforcing. Charter Commc’ns, 461 S.W.3d at 857. This means that the
issuing agency cannot itself sanction non-compliance.
7

Id.

Importantly, however, “[i]f the

The MMPA defines the term “person” to include: “any natural person or his legal
representative, partnership, firm, for-profit or not-for-profit corporation, whether domestic or
foreign, company, foundation, trust, business entity or association, and any agent, employee,
salesman, partner, officer, director, member, stockholder, associate, trustee or cestui que trust
thereof[.]” Mo. Rev. Stat. § 407.010(5).
9

recipient refuses to comply with the CID, the AG may seek to have the court order compliance
pursuant to section 407.090.” Id. See also Mo. Rev. Stat. § 407.090 (if the recipient fails to
comply with the CID, the attorney general “may file, in the trial court of general jurisdiction . . .
a petition for an order of such court for the enforcement of such civil investigative demand[.]”).
Here, AG Hawley is a state actor who initiated the state-court action for the purpose of
obtaining “an Order enforcing the Investigative Demand, and ordering Backpage to produce
responses to [the CID.]”

(ECF No. 21-5).

The state-court action clearly involves an

investigation with the potential to culminate in the filing of a formal complaint or charges. As
such, the state-court action satisfies the indicia of the second Sprint category.
Backpage contends that the state-court action is not “a civil enforcement proceeding” for
purposes of Younger abstention because AG Hawley is only investigating, not prosecuting,
possible MMPA violations. (ECF No. 34 at 28-31). In support of its argument, AG Hawley
cites Cedar Rapids Cellular Tel., L.P. v. Miller, 280 F.3d 874 (8th Cir. 2002).8 In Cedar Rapids
Cellular, the attorney general brought a civil enforcement action against U.S. Cellular, the parent
corporation of Cedar Rapids Cellular and Davenport Cellular, alleging violations of the Iowa
Consumer Credit Code.

Id. at 876. On the same day, Cedar Rapids Cellular, Davenport

Cellular, and a third cellular company, WWC License, filed a complaint in federal district court
seeking to “enjoin the Attorney General from taking any action . . . to enforce” the Iowa
Consumer Credit Code against them. Id. at 877. Citing several abstention doctrines, the district
court abstained. Id. at 878.
8

Plaintiff also cites the Ninth Circuit’s decision in ReadyLink Healthcare, Inc. v. State Comp.
Ins. Fund, 754 F.3d 754 (9th Cir. 2014). ReadyLink is inapposite. In that case, ReadyLink
initiated “parallel judicial proceedings” in state and federal court against the State Compensation
Insurance Fund, “an ‘insurer’ on the same basis as any private carrier offering workers’
compensation.” Id. at 756. The Ninth Circuit held that the district court erred in abstaining
under Younger because a state-court proceeding in which “a state judicial officer resolves a
dispute between two private parties” is not akin to a criminal prosecution. Id. at 760.
10

The Eighth Circuit affirmed the district court’s decision to invoke Younger and abstain
from the claims of the two federal plaintiffs in which U.S. Cellular, the state-court defendant,
had “a controlling interest.” Id. at 882. However, the court found “that Younger does not
provide a basis for abstaining from the claims of WWC” because WWC was neither directly
involved in the state-court proceeding nor closely related to U.S. Cellular. Id.
In reversing the district court’s decision to abstain from deciding WWC’s claims, the
Eighth Circuit rejected the attorney general’s argument that “his attempt to obtain information
from WWC triggered Younger abstention.”

Id.

The Eighth Circuit reasoned that, while

administrative proceedings may be judicial for purposes of Younger if they “declare and enforce
liabilities between the parties,” the attorney general’s administrative action against WWC
“involve[d] nothing more than an attempt to obtain information about WWC’s business
practices.” Id. The court stated: “Although the Attorney General’s demand for information may
ultimately result in a judicial proceeding, there is no indication that a judicial proceeding was
imminent at the time this case was filed.” Id. See also Google, Inc. v. Hood, 822 F.3d 212 (5th
Cir. 2016) (district court properly declined to abstain because there was no “ongoing judicial
proceeding” where the attorney general had issued an administrative subpoena but had “not
moved to enforce [it] in any state court[.]”).
Unlike WWC, the federal plaintiff not involved in the state-court action in Cedar Rapids
Cellular, Backpage is the defendant in the state-court action. Because Backpage is the defendant
in the pending state-court action, Backpage more closely resembles the two federal plaintiffs to
which the Eighth Circuit held that Younger applied.

Moreover, whereas no judicial proceeding

against WWC was “imminent,” AG Hawley served the CID and filed the state-court action to
enforce it, thereby triggering judicial oversight of the CID. Based on the above, the Court finds

11

that the state-court action is “a civil enforcement proceeding” as required for application of the
Younger abstention doctrine.
2. Uniquely in Furtherance of State Courts’ Functions
The third category of state-court proceeding justifying Younger abstention encompasses
“civil proceedings involving certain orders . . . uniquely in furtherance of the state courts’ ability
to perform their judicial functions.” Sprint, 134 S.Ct. at 591. Backpage argues that this case
does not satisfy the third Sprint category because Backpage does not challenge a prior judgment
or state-court procedure. (ECF No. 34 at 29). AG Hawley counters that this case falls within the
third Sprint category because it implicates a state court’s ability to enforce subpoenas under state
law. (ECF No. 42 at 7-9).
In establishing the third Sprint category, the Supreme Court cited two cases: Juidice v.
Vail and Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987). In Juidice, the Supreme Court held
that Younger abstention was proper where, after a state court held the federal plaintiff in
contempt of court for failing to comply with a subpoena, the plaintiff filed a federal action
seeking to enjoin the state court’s use of statutory contempt procedures. Juidice, 430 U.S. at
330. The Court held that principles of comity and federalism required abstention because “[t]he
contempt power lies at the core of the administration of a State’s judicial system” and “such
interference with the contempt process . . . ‘unduly interfere(s) with the legitimate activities of
the Stat(e).’” Id. at 335, 336 (quoting Younger, 401 U.S. at 44). The Pennzoil Court followed
Juidice, holding that Younger abstention was proper where the exercise of federal jurisdiction
would interfere with a state court’s proceeding concerning the requirement of the posting of bond
pending appeal. Pennzoil, 481 U.S. at 12-13 (“States have important interests in administering
certain aspects of their judicial systems.”).

12

While Juidice and Pennzoil “involve[d] challenges to the processes by which the State
compels compliance with the judgments of its courts,” nothing in either case established that a
prior judgment is a requisite for abstaining pursuant to the third Sprint category of state-court
proceedings. The “salient fact” in those cases was that federal-court interference with the State’s
process is “an offense to the State’s interest” and “can readily be interpreted ‘as reflecting
negatively upon the state courts’ ability to enforce constitutional principles.’” Juidice, 430 U.S.
at 336 (quoting Huffman, 420 U.S. at 604).
Here, Backpage requests this Court enjoin and declare unlawful AG Hawley’s efforts to
investigate and prosecute Backpage under the MMPA. Pursuant to the MMPA, state courts play
a significant role in the investigation and prosecution of unlawful merchandising practices. As
previously discussed, the MMPA authorizes the attorney general to issue CIDs to investigate
suspected unlawful merchandising practices, and “[a] person upon whom a [CID] is served . . .
shall comply with the terms thereof unless otherwise provided by an order of a court.” Mo. Rev.
Stat. §§ 407.040, 407.080. If the recipient of a CID fails to comply with its demands, the
attorney general may file in state court a petition “for an order of such court for the enforcement”
of the CID,” and “[a]ny disobedience of any final order entered under this section by any court
shall be punished as a contempt thereof.” Mo. Rev. Stat. § 407.090.
AG Hawley filed the state-court action to enforce the CID pursuant to Section 407.090.
As a result, Backpage’s request that the Court enjoin AG Hawley’s efforts to investigate and
prosecute potential violations of the MMPA necessarily affects functions performed by the state
court. The Court therefore holds that the state-court action is a “civil proceeding[] involving
certain orders . . . uniquely in furtherance of the state courts’ ability to perform their judicial
functions.” See e.g., Lupin Pharm., Inc. v. Richards, No. RDB-15-1281, 2015 WL 4068818, at

13

*3-4 (D. Md. July 2, 2015) (federal plaintiff’s action to enjoin enforcement of CIDs, issued by
the state’s attorney general investigating potential violations of antitrust and consumer-protection
statutes, implicated the state’s interest in enforcing the orders and judgments of its courts).
Accordingly, the third Sprint category also requires this Court to abstain pursuant to Younger.
B. Middlesex “additional factors”
Having determined that the state-court action satisfies at least one of the Sprint
categories, the Court must consider the three “additional factors” that the Supreme Court
articulated in Middlesex, 457 U.S. at 432. See also Sprint, 134 S. Ct. at 593. Before invoking
Younger, a federal court must consider whether: (1) there is an ongoing state proceeding that is
judicial in nature, (2) which implicates important state interests, and (3) provides an adequate
opportunity to raise federal challenges. Sprint, 134 S. Ct. at 593.
The parties do not dispute that the state-court action is ongoing and judicial in nature.
Backpage argues, however, that the state-court action “should not constitute a pending statecourt action for abstention purposes” because AG Hawley filed the petition in advance of the
agreed-upon deadline for responding to the CIDs “to obstruct federal jurisdiction.” (ECF No. 34
at 31-32). Backpage cites no case law for the proposition that either a race to the courthouse or
allegedly disingenuous legal maneuvering defeats Younger abstention. Moreover, the Eighth
Circuit has held: “There is no fixed requirement in the law that a state judicial proceeding must
have been initiated before the federal case was filed for abstention to be appropriate, and a court
should examine what was actually taking place in both settings to decide whether to abstain.”
Aaron v. Target Corp., 357 F.3d 768, 775 (8th Cir. 2004). See also Doran v. Salem Inn, Inc.,
422 U.S. 922, 929 (1975) (even though the federal action was filed before the state action,

14

Younger abstention was appropriate because litigation of the federal action was “in an
embryonic stage and no contested matter had been decided.”).
As AG Hawley correctly asserts in his reply brief, Younger abstention would be at issue
even if AG Hawley had filed the state-court action after the extended deadline expired or
Backpage responded to the CID.9 The key factor in determining whether Younger abstention is
proper is not the relative timing of the state and federal actions but “[w]hether proceedings of
substance have taken place in either court.” Aaron, 357 F.3d at 775. See also Ewell v. Toney,
853 F.3d 911, 916-17 (7th Cir. 2017). As both this action and the state-court action are in their
preliminary stages with no contested matters having been decided by either court, considerations
of equity and comity support abstention. The Court therefore finds that the state-court action
satisfies the “ongoing state proceeding” factor set forth in Middlesex.
As to the second Middlesex factor, the Eighth Circuit has recognized that a state “has an
important interest in enforcing its consumer protection statutes” and “protecting the public from
deceptive business practices.” Cedar Rapids Cellular, 280 F.3d at 879-80. Because the statecourt action here involves the state’s efforts to enforce the state’s consumer-protection laws, it
satisfies the “important state interests” requirement.
The third Middlesex factor considers whether the federal plaintiff had, or will have, “an
opportunity to present [its] federal claims in the state proceedings.” Juidice, 430 U.S. at 337. A
plaintiff’s “failure to avail [itself] of such opportunities does not mean that the state procedures
were inadequate.” Id.

Additionally, the plaintiff in the federal lawsuit “carries the burden of

demonstrating that the Missouri proceedings do not provide ‘an adequate opportunity’ for it to
9

AG Hawley asserts that, even if the State had waited until the July 7, 2017 deadline when
Backpage responded to the CID, he would have filed the state-court action because Backpage’s
response was “plainly deficient and included no responsive documents or information.” (ECF
No. 21 at 23).
15

raise constitutional claims.” Geier, 715 F.3d at 678-79. Backpage does not argue that the statecourt proceedings will not provide it an adequate opportunity to raise federal preemption or
constitutional challenges.
In this case, there are (or were) adequate opportunities for Backpage to present its federal
claims in the state-court action. As explained above, the MMPA provides a mechanism for the
recipient of a CID to challenge the CID. Mo. Rev. Stat. § 407.070 (“At any time before the
return date specified in the [CID], or within twenty days after the [CID] has been served,
whichever period is shorter, a petition . . . to modify or set aside the [CID], stating good cause,
may be filed in the circuit court[.]”). At such a proceeding, the recipient of the CID may raise
federal challenges. See e.g., State ex rel. Ashcroft v. Goldberg, 608 S.W.2d 385, 388 (Mo. banc
1980) (considering whether the MMPA violated a CID recipient’s rights under the Fourth, Fifth,
and Fourteenth Amendments).

See also Charter Commc’ns, 461 S.W.3d at 858 n.5 (the

defendant in the state court action did not object to the CID pursuant to section 407.070, but the
trial court allowed it to assert federal defenses out of time in its answer to the attorney general’s
section 407.090 civil enforcement petition).
Backpage provides no authority holding that Missouri state courts lack authority to
consider federal preemption and constitutional challenges. “[W]hen a litigant has not attempted
to present his federal claims in related state-court proceedings, a federal court should assume
that state procedures will afford an adequate remedy, in the absence of unambiguous authority to
the contrary.” Pennzoil Co., 481 U.S. at 15. Because Backpage could have raised its federal
preemption and constitutional arguments in state court, the third Middlesex factor has been
satisfied. Based on the above, the Court finds that abstention is proper under either the second

16

or third state-court proceeding categories discussed in Sprint, as well as the three factors set
forth in Middlesex.
C. Exceptions to Younger
Backpage argues that, even if the state-court action satisfies the criteria for Younger
abstention, abstention is improper because: (1) the CDA preempts the state-court action; and (2)
AG Hawley acted in bad faith. (ECF No. 34 at 32-38). AG Hawley counters that: (1) the CDA
does not immunize Backpage from liability under the MMPA; and (2) Backpage failed to
demonstrate AG Hawley’s bad faith.
1. Federal Preemption
Backpage asserts that Younger abstention is improper because the CDA shields it from
“investigation and any possible claims arising from third-party postings on the website.” (ECF
No. 34 at 16). According to Backpage, the CDA “facially” and “conclusively” preempts AG
Hawley’s state-court action because AG Hawley’s allegations suggest only that Backpage
engaged in “content editing, not content creation.” (Id. at 24) (emphasis in original). In reply,
AG Hawley contends that the CDA does not preempt his efforts to enforce the MMPA against
Backpage because: (1) substantial evidence indicates that Backpage actively participated in “the
creation or development of information” displayed on the website; and (2) Backpage
implemented extensive measures to conceal the illegality of advertisements for commercial sex.
(ECF No. 42 at 12-16).
The Supreme Court has held that “the mere assertion of a substantial constitutional
challenge to state action will not alone compel the exercise of federal jurisdiction.” NOPSI, 491
U.S. at 365. However, the Court left open the possibility that Younger might not require

17

abstention where a claim of federal preemption is “facially conclusive.”10 Id. at 367. See also
Cedar Rapids Cellular, 280 F.3d at 880. A federal preemption claim is not facially conclusive if
its determination “requires further factual inquiry[.]”11 Id.
Section 230 of the CDA immunizes providers of “interactive computer services”12
against liability arising from content created by third parties. 47 U.S.C. § 230(c). “This grant of
immunity applies only if the interactive computer service provider is not also an ‘information
content provider,’ which is defined as someone who is ‘responsible, in whole or in part, for the
creation or development of’ the offending content.” Fair Hous. Council of San Fernando Valley
v. Roommates.com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (quoting 47 U.S.C. § 230(f)(3)).
In effect, Section 230 “shields website operators from being ‘treated as the publisher or speaker’
of material posted by users of the site, which means that ‘lawsuits seeking to hold a service
10

The Eighth Circuit has recognized a possible exception to Younger abstention for preemption
claims that are “facially conclusive,” but declined to rule on it. Cedar Rapids Cellular, 280 F.3d
at 880. Other federal courts of appeal have held that such an exception exists. See Sirva
Relocation, LLC v. Richie, 794 F.3d 185, 198 (1st Cir. 2015); Hughes v. Attorney General of
Florida, 377 F.3d 1258, 1265 (11th Cir. 2004).
11
The Eighth Circuit has not addressed what makes a claim facially conclusive. See Minnesota
Living Assistance, Inc. v. Peterson, No. 17-1011 (DSD/DTS), 2017 WL 2804905, at *2 (D.
Minn. June 28, 2017). “Other circuits, however, have identified the following scenarios where
preemption claims are not facially conclusive: (1) when a further factual inquiry is required; (2)
when the claim involves a question of first impression; and (3) when the court must conduct a
‘detailed analysis’ of the state statute in question[.]” Id. (internal citation omitted). See also
Sirva, 794 F.3d at 198-99 (“[W]hen a federal statute indisputably preempts a state-law claim,
preemption is facially conclusive . . . But when there is reasonable doubt, the preemption claim is
not facially conclusive and cannot block abstention.”); Hughes, 377 F.3d at 1265 (“[O]nly the
clearest of federal preemption claims would require a federal court to hear a preemption claim
when there are underlying state-court proceedings and when that claim can be raised in the state
forum.”). “When courts have found that preemption was facially conclusive, they merely
applied established precedent that easily resolved the preemption issue.” Minnesota Living,
2017 WL 2804905, at *2 (citing Chaulk Servs., Inc. v. Mass. Comm’n Against Discrimination,
70 F.3d 1361, 1370 (1st Cir. 1995); Gartrell Constr. Inc. v. Aubry, 940 F.2d 437, 441-442 (9th
Cir. 1991)).
12
The CDA defines the term “interactive computer service” as “any information service,
system, or access software provider that provides or enables computer access by multiple users
to a computer server[.]” 47 U.S.C. § 230(f)(2). The parties agree that Backpage is an interactive
computer service” provider.
18

provider liable for its exercise of a publisher’s traditional editorial functions – such as deciding
whether to publish, withdraw, postpone or alter content – are barred.’” Jane Doe No. 1 v.
Backpage, LLC, 817 F.3d 12, 18 (1st Cir. 2016) (internal citations and quotation omitted).
Backpage cites Doe No. 1 for the proposition that, as an interactive computer service
provider, its “choices about what content can appear on the website and in what form, are
editorial choices that fall within the purview of traditional publisher functions,” and are therefore
shielded by the CDA. Id. at 21. In Doe No. 1, the plaintiffs, minor victims of sex trafficking,
alleged that Backpage “tailored its posting requirements to make sex trafficking easier” and
implemented “rules and processes governing the content of advertisements . . . designed to
encourage sex trafficking.” Id. at 16. The First Circuit held that the CDA immunized Backpage
from liability under the state’s anti-sex-trafficking law because:

“[C]laims that a website

facilitates illegal conduct through its posting rules necessarily treat the website as a publisher or
speaker of content provided by third parties and, thus, are precluded by section 230(c)(1).” Id. at
22. See also M.A. v. Village Voice Media Holdings, LLC, 809 F.Supp.2d 1041, 1048 (E.D.Mo.
2011) (Backpage was immune from liability for crimes against minor because “there is no
allegation that Backpage was responsible for the development of any portion of the content of
[the] posted ads or specifically encouraged the development of the offensive nature of that
content.”) (emphasis original).
Doe No. 1 is distinguishable because the plaintiffs’ claims focused on Backpage’s
posting standards. In the state-court action here, AG Hawley alleges that Backpage’s activities
exceeded that of a mere publisher of third-party content. (ECF No. 21 at 17). For example, AG
Hawley claims that Backpage “solicited the posting of illegal advertisements on its website” and
“its own employees actively participated in the creation of those advertisements.” (ECF No. 21

19

at 17). See, e.g., Roommates.com, 521 F.3d at 1166-67 (CDA did not apply where interactive
computer service provider was responsible, at least in part, for development of subscribers’
profiles displaying discriminatory preferences). Additionally, AG Hawley states that Backpage
“implemented a sophisticated system by which it identified posts likely involving illegal
commercial sex, revised the content of those identified posts to limit law-enforcement attention,
and then posted them to Backpage’s website.” (ECF No. 21 at 18). See, e.g., Chicago Lawyers’
Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 670 (7th Cir. 2008)
(Section 230 permits liability for internet service providers that “induce” advertisers to post
illegal advertisements or intentionally design their systems to facilitate illegal acts).
Determining whether the CDA preempts AG Hawley’s state-law MMPA claims would
require the Court to: (1) consider disputed facts relating to Backpage’s role in revising and
posting advertisements and (2) analyze whether those activities constitute “creation or
development” under the CDA. Because this issue requires further factual inquiry and detailed
legal analysis, Backpage’s preemption argument is not “facially conclusive,” and does not defeat
Younger abstention.
2. Bad Faith
Backpage maintains that abstention is improper because AG Hawley acted in bad faith.
(ECF No. 34 at 33-38). Specifically, Backpage alleges that AG Hawley: (1) granted it an
extension of time to respond to the CID and then filed the state-court action before that time
expired; and (2) issued the CID despite his knowledge that the CDA shielded Backpage from
liability for violations of state law. Id. AG Hawley counters that the bad-faith exception to
Younger does not apply in this case “because the State has an appropriate basis for believing that
the CDA does not bar all potential claims against Backpage.” (ECF No. 21 at 13). In addition,

20

AG Hawley denies Backpage’s claim that his office granted Backpage an extension of time to
respond to or comply with the CID and asserts that Backpage “mischaracterizes” previous
statements made by AG Hawley and his predecessor, Attorney General Chris Koster. (ECF No.
42 at 9-11).
“While the Supreme Court has not ruled out use of the bad faith exception in civil cases,
it has never directly applied the exception in such a case and we have only recognized it in the
criminal context.” Tony Alamo Christian Ministries v. Selig, 664 F.3d 1245, 1254 (8th Cir.
2012) (quoting Aaron, 357 F.3d at 778). Under this exception, federal courts should not abstain
under Younger if “bad faith, harassment, or some extraordinary circumstance . . . would make
abstention inappropriate.” Aaron, 357 F.3d at 778 (quotation omitted). “[I]ntervention by
federal courts in ongoing state proceedings requires that the ‘circumstances must be
“extraordinary” in the sense of creating an extraordinary pressing need for immediate federal
equitable relief, not merely in the sense of presenting a highly unusual factual situation.’” Id. at
779 (quoting Moore v. Sims, 442 U.S. 415, 433 (1979)).
Even assuming the bad faith exception is available in the civil context, AG Hawley’s
alleged agreement to extend Backpage’s deadline for responding to the CID and subsequent
filing of the state-court action prior to that deadline does not constitute bad faith or harassment
for purposes of the bad-faith exception to Younger abstention. See Aaron, 357 F.3d at 779 n.7
(evidence that the defendant failed to respond to the plaintiff’s counterproposal, misrepresented
the status of negotiations, and failed to provide plaintiffs notice of a public hearing did not
demonstrate bad faith). Nor do AG Hawley’s public statements regarding his intention to “shut
down” Backpage render Younger abstention improper. See, e.g., Postscript Enters., Inc. v.
Peach, 878 F.2d 1114, 1116 (8th Cir. 1989) (owner of adult bookstore did not establish bad faith

21

even though the prosecuting attorney publicly declared he would “run [the plaintiff] out of
business.”).
To the extent that Backpage claims that AG Hawley necessarily acted in bad faith
because he knew the CDA preempted the state-court action, the Court has found that Backpage’s
preemption argument is not “facially conclusive.” Moreover, AG Hawley asserts that the State
“has a strong evidentiary basis for concluding that the CDA does not apply to Backpage’s
conduct.” (ECF No. 21 at 15). According to AG Hawley, the CDA does not protect Backpage
from liability under the MMPA because Backpage does not simply publish unlawful content but
creates and develops it. (Id).
In support of its position that AG Hawley acted in bad faith, Backpage alleges that “[AG
Hawley] and his office have admitted Section 230 bars state prosecution of Backpage.” (ECF
No. 34 at 35) (emphasis in original). Backpage points to a letter to Congress from multiple
states’ attorneys general that AG Hawley signed on August 16, 2017. Contrary to Backpage’s
argument, however, the statements in that letter do not constitute an admission that the CDA bars
any state action, especially when considered in light of AG Hawley’s separate letter to Congress
of the same date.13 (ECF Nos. 35-1, 42-1). In that letter, AG Hawley wrote:
Today, I have joined 49 other Attorneys General in sending you a letter urging
Congress to amend the [CDA] to clarify that the CDA does not preempt valid
state and territorial criminal laws directed at suppressing the scourge of human
trafficking on the Internet. . . . I write separately to emphasize that nothing in
our letter to you or in the CDA itself purports to prevent authorities from
investigating and pursuing those who engage in human trafficking on the
Internet by providing content for internet communications related to human
trafficking.
13

Backpage also argues that a July 2013 multi-state letter signed by former Attorney General
Koster evidences AG Hawley’s knowledge that the CDA precludes his “tak[ing] action of the
sort in question here.” (ECF Nos. 34 at 35; 14-5). However, Backpage cites no authority to
support its position that AG Hawley is “bound by his predecessor’s admissions.” (ECF No. 34 at
35).
22

(ECF No. 42-1) (emphasis in original).

Based on the record, the Court finds there was

insufficient evidence of bad faith to support application of an exception to Younger abstention.
IV.

Conclusion
For the reasons stated herein, the Court holds that abstention is proper in this case.

Because the Court abstains on Younger grounds, it declines to address AG Hawley’s argument
that Backpage failed to state a claim upon which relief can be granted.
Accordingly, after careful consideration,
IT IS HEREBY ORDERED that AG Hawley’s motion to dismiss (ECF No. 21) is
GRANTED.
IT IS FURTHER ORDERED that Backpage’s motion for preliminary injunction (ECF
No. 11) and second motion for preliminary injunction (ECF No. 48) are DENIED as moot.
IT IS FINALLY ORDERED that Backpage’s motion to file an amended complaint
(ECF No. 51) is DENIED as moot.

PATRICIA L. COHEN
UNITED STATES MAGISTRATE JUDGE
Dated this 28th day of November, 2017

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