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Case No. 15-60205

United States Court of Appeals
for the
Fifth Circuit
GOOGLE, INC.,
Plaintiff/Appellee,
v.
JAMES HOOD III, ATTORNEY GENERAL
OF THE STATE OF MISSISSIPPI,
IN HIS OFFICIAL CAPACITY,
Defendant/Appellant
______________________________________________________________________________

On Appeal from Order of the United States District Court,
Southern District of Mississippi, Northern Division,
Civil Action No. 3:14-CV-981-HTW-LRA
AMICI CURIAE BRIEF IN SUPPORT OF
MISSISSIPPI’S INTERLOCUTORY APPEAL
Co-sponsored by:
Jack Conway, Attorney General
Commonwealth of Kentucky
Sean Riley, Chief Deputy Attorney General
Todd Leatherman, Executive Director
Office of Consumer Protection
Laura S. Crittenden, Assistant Attorney General
700 Capital Avenue, Suite 118
Frankfort, Kentucky 40601
Telephone: (502) 696-5300
Mark Brnovich, Attorney General
State of Arizona
1275 W. Washington Street
Phoenix, Arizona 85007
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James D. “Buddy” Caldwell, Attorney General
State of Louisiana
P.O. Box 94005
Baton Rouge, Louisiana 70804
Stacie Lambert Deblieux, Assistant Attorney General
Public Protection Division
1885 N. 3rd Street
Baton Rouge, Louisiana 70802
Telephone: (225) 326-6458

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TABLE OF CONTENTS
TABLE OF CONTENTS………………………………………………………….iii
TABLE OF AUTHORITIES……………………………………………………....iv
I.

AMICI CURIAE’S STATEMENT OF INTEREST………………………..1

II.

DISCUSSION………………………………………………………………3
A.

The Court may review the issues of standing and subject matter
jurisdiction raised in Mississippi’s motion to dismiss in the context of
reviewing
the
District
Court’s
preliminary
injunction
order…………………………………………………………………3

B.

Google is unlikely to succeed on the merits of its
arguments……………………………………………………………6

C.

III.

1.

Attorneys General have broad authority to investigate potential
violations of state consumer protection laws and to use civil
investigative
demands
or
subpoenas
in
so
doing……………………….......................................................6

2.

Google’s lawsuit is a premature attempt to short-circuit
Mississippi’s valid administrative subpoena enforcement
process; further, the Court lacks subject matter jurisdiction over
Google’s
claims
as
there
is
no
case
or
controversy…………………………………………………..10

Mississippi and the public interest will suffer significant harm if the
preliminary injunction is allowed to stand, and that harm will not be
outweighed
by
any
harm
or
prejudice
to
Google…………………………………………………………….....17

CONCLUSION……………………………………………………………18

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TABLE OF AUTHORITIES
Federal Cases
Associated Business Telephone Systems Corp. v. Greater Capital Corp., 861 F.2d
793 (3d Cir. 1988)……………………………………………………………..4-5, 5
Association of Co-op. Members, Inc. v. Farmland Industries, Inc., 684 F.2d 1134
(5th Cir. 1982)……………………………………………………………………...4
Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987)……………………………….14
Connell v. Dulien Steel Products, Inc., 240 F.2d 414 (5th Cir. 1957)……………..3
Deckert v. Independence Shares Corp., 311 U.S. 282 (1940)……………………...3
Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d
1157 (9th Cir. 2008) (en banc)……………………………………………………15
Johnson v. Arden, 614 F.3d 785 (8th Cir. 2010)………………………………….15
Jones v. Dirty World Entertainment Recordings, LLC, 766 F. Supp. 2d 828 (E.D.
Ky. 2011)………………………………………………………………………….15
Lewis v. Continental Bank Corp., 494 U.S. 472 (1990)……………………….13-14
Mayflower Industries v. Thor Corp., 184 F.2d 537 (3d Cir. 1950)………………...4
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007)………………………16
Myers v. Gilman Paper Corp., 544 F.2d 837 (5th Cir. 1977)……………………...3
Pang-Tsu Mow v. Republic of China, 201 F.2d 195 (D.C. Cir. 1953)…………...3-4
Smith v. Arthur Andersen LLP, 421 F.3d 989 (9th Cir. 2005)…………………...4, 5
United States v. Morton Salt Co., 338 U.S. 632 (1950)……………………………8

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State Cases
Commonwealth v. Pineur, 533 S.W.2d 527 (Ky. 1976)………………………….7-8
Com. ex rel. Hancock v. Paxton, 516 S.W.2d 865 (Ky. 1974)……………………..6
Everdry Marketing and Management, Inc. v. Carter, 885 N.E.2d 6 (Ind. Ct. App.
2008)………………………………………………………………………………10
Harmon Law Offices, P.C. v. Attorney General, 991 N.E.2d 1098 (Mass. App. Ct.
2013)……………………………………………………………………………7, 10
Johnson v. Com. ex rel. Meredith, 291 Ky. 829, 165 S.W.2d 820 (Ky. 1942)….6, 7
Ports Petroleum Co., Inc., of Ohio v. Nixon, 37 S.W.3d 237 (Mo. 2001)…………9
Roemer v. Cuomo, 888 N.Y.S.2d 669 (N.Y. App. Div. 2009)……………………..9
Schneiderman v. Rillen, 930 N.Y.S.2d 855 (N.Y. Sup. Ct. 2011)………………….7
State v. Culp, 823 So. 2d 510 (Miss. 2002)………………………………………...7
Ward v. Commonwealth, 566 S.W.2d 426 (Ky. App. 1978)……………………...10
Federal Statutes
28 U.S.C. § 1291…………………………………………………………………...3
28 U.S.C. § 1292…………………………………………………………………...3
28 U.S.C. § 1292(a)(1)……………………………………………………………..3
47 U.S.C. § 230(e)(3)……………………………………………………………..13
State Statutes
Miss. Code Ann. § 75-24-17……………………………………………….1, 11, 13
Miss. Code Ann. § 75-24-27……………………………………………………9-10
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Ky. Rev. Stat. § 367.240……………………………………………………...10 n. 2
Ky. Rev. Stat. § 367.240(1)……………………………………………………….10
Ky. Rev. Stat. § 367.240(2)…………………………………………………..11 n. 3
Federal Rules
Fed. R. App. P. 29(a)……………………………………………………………….1
Other
Emily Myers and Lynne Ross, eds., National Association of Attorneys General,
State Attorneys General Powers and Responsibilities, 2d ed. (2007)……………...8

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Pursuant to Federal Rule of Appellate Procedure 29(a), the duly elected or
appointed Attorneys General for the Commonwealths of Kentucky, Massachusetts,
and Pennsylvania, the States of Arizona, Alabama, Alaska, Arkansas, Colorado,
Connecticut, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana,
Maine, Maryland, Michigan, Minnesota, Missouri, Montana, Nevada, New
Hampshire, New Jersey, New York, North Dakota, Oklahoma, Oregon, Rhode
Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Washington,
West Virginia, and Wisconsin, and the District of Columbia respectfully submit the
following amici curiae brief in support of Mississippi Attorney General James
Hood III’s appeal from the District Court’s Order granting Plaintiff/Appellee
Google, Inc., a preliminary injunction.
I.

Amici Curiae’s Statement of Interest
This is a case about the authority of state Attorneys General to exercise one

of their fundamental powers: the ability to investigate potential violations of state
law.

What should be a routine discovery dispute in Mississippi state courts,

resolved under established state procedures (see, e.g., Miss. Code Ann. § 75-2417), has instead evolved into a contrivance for a company doing business in the
state of Mississippi to invoke federal jurisdiction by asserting potential affirmative
defenses to claims that have never been filed.

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If allowed to stand, the District Court’s March 27, 2015 order (the “Order”)
enjoining the Mississippi Attorney General’s enforcement of his own subpoena
would provide a roadmap for any potential wrongdoer subject to a legitimate state
law enforcement investigation to attempt to thwart such an inquiry. With the
Order as a guide, any target of a state investigation would be invited to conjure up
potential federal defenses to yet-to-be filed civil claims and file a preemptive
lawsuit in federal court against state law enforcement authorities.

Such an

outcome would undermine Attorneys General’s powers, granted to them by state
constitutions and state statutes, to protect the general citizenry from violations of
state law. It would also flood the federal courts with what amount to state-law
discovery disputes. And it should not be countenanced by this Court.
As constitutional officers and the chief law enforcement officers of our
respective states, the amici have an over-riding interest in preserving the ability of
state Attorneys General to carry out their duties—an ability threatened by the
Order, especially if other courts choose to follow the District Court’s
unprecedented decision in this case. Without taking any position on the likely
outcome of the Mississippi Attorney General’s investigation into Google’s
practices, the amici join this brief in strong support of the public interest in
preserving the ability of state Attorneys General to investigate potentially unlawful
and harmful conduct. Amici thus respectfully urge this Court to vacate the Order
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and uphold the authority of the Mississippi Attorney General to investigate
potential violations of state law.
II.

Discussion
A.

The Court may review the issues of standing and subject matter
jurisdiction raised in Mississippi’s motion to dismiss in the
context of reviewing the District Court’s preliminary injunction
order.

Generally, the Courts of Appeal have jurisdiction to review only final
decisions of the federal district courts. 28 U.S.C. § 1291. By virtue of 28 U.S.C. §
1292, however, the Courts of Appeal have jurisdiction to review certain listed
interlocutory orders, including orders granting preliminary injunctions. 28 U.S.C.
§ 1292(a)(1). Hence, the instant appeal.
Once an interlocutory order listed in § 1292 “is properly before an appellate
court[,] other issues such as the jurisdiction of the trial court may also be
reviewed.” Connell v. Dulien Steel Products, Inc., 240 F.2d 414, 417 (5th Cir.
1957) (citing Deckert v. Independence Shares Corp., 311 U.S. 282 (1940)); see
also Myers v. Gilman Paper Corp., 544 F.2d 837, 847 (5th Cir. 1977) (“It is settled
that an appellate court that has jurisdiction over an interlocutory order containing
injunctive relief may reach and decide other aspects of that order even though the
others would not be reviewable independently by interlocutory appeal.”) (citing
Deckert, 311 U.S. at 287); Pang-Tsu Mow v. Republic of China, 201 F.2d 195, 198
(D.C. Cir. 1953) (“In reviewing this preliminary injunction we may inquire as to
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both the jurisdiction of the District Court and the adequacy of the complaint, for no
preliminary injunction may stand if the complaint itself cannot stand.”) (internal
citation omitted); Mayflower Industries v. Thor Corp., 184 F.2d 537, 538 (3d Cir.
1950) (“Although the denial of a motion to remand itself would not support an
interlocutory appeal, the question of removability is jurisdictional and therefore it
is before us for consideration once it appears that the case is properly here for
review of an appealable order.”) (citations omitted); but cf. Association of Co-op.
Members, Inc. v. Farmland Industries, Inc., 684 F.2d 1134, 1138 (5th Cir. 1982)
(not deciding whether the restriction of appellate review to the injunctive aspects
of a district court’s order is a jurisdictional limitation or a rule of judicial
administration, and declining to exercise any power to consider issues not
pertaining directly to the interlocutory injunctive relief granted in the case). This is
especially the case where “any otherwise non-appealable ruling . . . is ‘inextricably
intertwined’ with or ‘necessary to ensure meaningful review of’ the order properly
before [the appellate court] on interlocutory appeal.” Smith v. Arthur Andersen
LLP, 421 F.3d 989, 998 (9th Cir. 2005) (citations and internal quotation marks
omitted).

See also Associated Business Telephone Systems Corp. v. Greater

Capital Corp., 861 F.2d 793, 796 (3d Cir. 1988) (“The denial of a motion to
dismiss for lack of in personam jurisdiction is a classic example of an interlocutory

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ruling. Such rulings should be reviewed on a section 1292(a)(1) appeal only if
they bear upon the propriety of the preliminary injunction.”).
Here, the Mississippi Attorney General’s motion to dismiss raised important
issues of subject matter jurisdiction and standing. Further, in his opposition to
Google’s motion for preliminary injunction, the Attorney General largely relied on
his motion to dismiss and the arguments presented within that motion. The District
Court granted Google its requested preliminary injunction and denied the Attorney
General’s motion to dismiss in the same order. Accordingly, any review of the
District Court’s Order granting Google a preliminary injunction, and in particular
any review of Google’s likelihood of success on the merits, necessarily implicates
review of Mississippi’s motion to dismiss and the District Court’s denial of same.
Indeed, the District Court’s resolution of the motion to dismiss bears upon the
propriety of and is necessary to ensure meaningful review of the preliminary
injunction ruling. See Associated Business Telephone Systems Corp., 861 F.2d at
796; Smith, 421 F.3d at 998. Moreover, in general “[r]esolution of subject matter
jurisdiction . . . is necessary to ensure meaningful review of the district court’s
interlocutory rulings because if appellate courts lack jurisdiction, they cannot
review the merits of these properly appealed rulings.” Smith, 421 F.3d at 998
(citation and internal quotation marks omitted).

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Google is unlikely to succeed on the merits of its arguments.
1.
Attorneys General have broad authority to investigate
potential violations of state consumer protection laws and to use
civil investigation demands or subpoenas in so doing.

Attorneys General are the chief law enforcement officers of their states and
have considerable common law and statutory authority to investigate matters
affecting the public interest. Carried to the United States from England as part of
the common law, the office of Attorney General has existed in this country since
its founding. See, e.g., Johnson v. Com. ex rel. Meredith, 291 Ky. 829, 165
S.W.2d 820, 826 (Ky. 1942) (“The office of Attorney General existed in England
from an early date. Most of the American colonies established an office of the
same name, and it was carried into the succeeding state governments.”). In
England, “the duty of the Attorney General was to represent the king, he being the
embodiment of the state.” Com. ex rel. Hancock v. Paxton, 516 S.W.2d 865, 867
(Ky. 1974) (citation omitted).

In the United States, however, “under the

democratic form of government now prevailing[,] the people are king[.]” Id.
(citation omitted). Thus, today’s Attorneys General represent the people. See id.
“It is generally recognized that unless denied by statute the attorney general
of any state is clothed with all the powers incident to and traditionally belonging to
his office.” Johnson, 165 S.W.2d at 826. Stated otherwise, Attorneys General
“ha[ve] all common law powers and duties except as modified by the constitution
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or statutes,” id. (citation omitted), as well as duties supplied by state statutes and
constitutions. The common law and/or statutory and constitutional duties of
Attorneys General are "many." State v. Culp, 823 So. 2d 510, 514 (Miss.
2002). Among all of the duties of Attorneys General, however, “paramount . . . is
his duty to protect the interests of the general public.” Id. (citation and internal
quotation marks omitted).
In furtherance of this paramount duty, Attorneys General have broad
authority under the common law and/or state statutes 1 to investigate potential
violations of state laws within their jurisdiction, particularly state consumer
protection laws. See, e.g., Schneiderman v. Rillen, 930 N.Y.S.2d 855, 855-56
(N.Y. Sup. Ct. 2011) (“The Attorney General is permitted broad authority to
conduct investigations, based on the complaint of others or on his own
information, with respect to fraudulent or illegal business practices.”) (citation
omitted); Harmon Law Offices, P.C. v. Attorney General, 991 N.E.2d 1098, 1103
(Mass. App. Ct. 2013) (finding that the Massachusetts consumer protection statute
“gives the Attorney General broad investigatory powers to conduct investigations
whenever she believes a person has engaged in or is engaging in any conduct in
violation of the statute”); Commonwealth v. Pineur, 533 S.W.2d 527, 529 (Ky.
1976) (“Even if one were to regard the request for information in this case as

1

In some states, Attorneys General now possess no or limited common law authority.
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caused by nothing more than official curiosity, nevertheless law-enforcing
agencies have a legitimate right to satisfy themselves that corporate behavior is
consistent with the law and the public interest.”) (quoting United States v. Morton
Salt Co., 338 U.S. 632, 652 (1950)). In the words of the United States Supreme
Court, an administrative agency that is charged with seeing that the laws are
enforced, like an Attorney General’s office, has and may “exercise powers of
original inquiry.” Morton Salt Co., 338 U.S. at 642. Indeed, unlike the judicial
function, which “depend[s] on a case or controversy for power to get evidence[,]”
an Attorney General’s office “can investigate merely on suspicion that the law is
being violated, or even just because it wants assurance that it is not.” Id. at 642-43.
The authority to investigate has been recognized to be among the “most
common and important functions identified with the office of Attorney General . . .
.” Emily Myers and Lynne Ross, eds., National Association of Attorneys General,
State Attorneys General Powers and Responsibilities, 2d ed., pp. 12-14 (2007).
Many investigations initiated by an Attorney General’s office involve important
policy issues and efforts to reform widespread fraud and abuse for a state and its
consumers.

Further, Attorneys General frequently cooperate in multistate

investigations, and this cooperation is instrumental in a state’s efforts to advocate
on behalf of its citizen-consumers and hold potential wrong-doers responsible for
any unfair, false, or deceptive acts committed on state citizens. Investigations and
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resulting litigation involving such cooperation have helped to improve the quality
of life and health of citizens in states across the nation.
In carrying out these investigations, administrative subpoenas, also referred
to as civil investigative demands or “CIDs,” are a vital tool. See Ports Petroleum
Co., Inc., of Ohio v. Nixon, 37 S.W.3d 237, 243 (Mo. 2001) (Wolffe, J. dissenting)
(“The civil investigative demand is an investigative tool provided to the attorney
general by statutes that give broad authority to ensure that commerce in this state is
beneficial to consumers.”). Absent use of “the civil investigative demand, the
attorney general may be in the position of having to sue first and ask questions
later.” Id. “The civil investigative demand authorizes him to ask questions first,
and then, if the investigation shows there is a basis for suit, to bring an action
under the relevant statute.” Id.
Recognizing the value of CIDs as investigative devices, many state statutes
and state courts grant Attorneys General considerable latitude and discretion in
issuing them. See Roemer v. Cuomo, 888 N.Y.S.2d 669, 670-71 (N.Y. App. Div.
2009) (noting that the New York Attorney General has “broad authority” to issue
subpoenas in connection with investigations into fraudulent or illegal business
activities). In Mississippi, where General Hood issued the Subpoena relevant to
this case, for example, Miss. Code Ann. § 75-24-27 broadly provides that the
Attorney General may issue subpoenas and subpoenas duces tecum “[t]o
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accomplish the objectives and to carry out the duties prescribed” by the MCPA. In
Kentucky, the Attorney General has authority to issue a civil investigative demand
whenever he has “reason to believe that a violation of the Consumer Protection Act
is being committed, or that the public interest requires his investigation into
potential violations of the Act.” Ward v. Commonwealth, 566 S.W.2d 426, 428
(Ky. App. 1978) (emphasis added); see also Ky. Rev. Stat. § 367.240(1). Further,
in Indiana, as in other states, the Attorney General may issue a CID even to a
person who is not a target of the investigation, so long as “a reasonable basis exists
to believe the non-violator possesses information relevant to the investigation.”
Everdry Marketing and Management, Inc. v. Carter, 885 N.E.2d 6, 10 (Ind. Ct.
App. 2008); see also Harmon Law Offices, 991 N.E.2d at 1103 (“[T]he Attorney
General's power to issue a CID extends beyond the person being investigated.”). 2
2.
Google’s lawsuit is a premature attempt to short-circuit
Mississippi’s valid administrative subpoena enforcement process;
further, the Court lacks subject matter jurisdiction over Google’s
claims as there is no case or controversy.
Although the power of Attorneys General to issue investigative subpoenas is
expansive, there are procedural protections in place that can serve as limitations on
an Attorney General’s authority.

For example, there are mechanisms for

2

See also Ky. Rev. Stat. § 367.240 (authorizing the Kentucky Attorney General to issue a
civil investigative demand to “any person who is believed to have information . . . relevant to the
alleged or suspected violation . . . .”) (emphasis added).
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challenging improper and unduly burdensome subpoenas in the various state
courts. 3 Most relevant here, in Mississippi the MCPA provides that the Attorney
General may seek relief in state court if a person “knowingly and willfully . . . fails
or refuses to obey any subpoena or investigative demand” he issues. Miss. Code
Ann. § 75-24-17. The court, however, may not order compliance and/or sanctions
resulting from failure to comply with a subpoena unless and until the target has
been provided with notice and a hearing. See id. At this hearing, of course, the
target has the opportunity to raise any objection or challenge to the subpoena’s
demands.
Here, Google is attempting to short-circuit Mississippi’s valid administrative
enforcement process by filing suit in federal court. In fact, Google filed suit even
before the parties’ agreed-upon Subpoena response deadline, much less any action
by the Attorney General to compel compliance with the Subpoena under the terms
of § 75-24-17. Moreover, Google’s suit does not merely challenge the Subpoena’s
requests for documents and information, it challenges the claims Google imagines
the Attorney General may file against it at some unknown point in the future.
Correspondingly, the preliminary injunction issued by the District Court enjoins
both enforcement of the Subpoena and the bringing of any civil or criminal
3

See, e.g., Ky. Rev. Stat. § 367.240(2) (“At any time before the return date specified in
an investigative demand, or within twenty (20) days after the demand has been served,
whichever period is shorter, a petition to extend the return date, or to modify or set aside the
demand, stating good cause, may be filed in the Circuit Court where the person served with the
demand resides or has his principal place of business or in the Franklin Circuit Court.”).
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proceedings against Google for making third-party content accessible to internet
users.
Upholding the District Court’s preliminary injunction order would have
broad and unwelcome consequences. Obviously, it would thwart General Hood’s
ability to investigate and enforce, as necessary, violations of Mississippi’s
consumer protection laws.

Significantly, it also would invite federal-court

challenges to scores of civil investigative demands issued every year by state
Attorneys General across the county—slowing investigations, consuming
resources needlessly, and making it harder for Attorneys General to investigate
violations of state law. This Court should not endorse a holding that would limit
states’ authority to advance the public interest and protect the public from false,
misleading, and deceptive business practices.
Google has admitted that the Communications Decency Act (“CDA”) does
not bar a subpoena to investigate unlawful conduct. (See Google’s Memorandum
of Law in Support of Temporary Restraining Order and Preliminary Injunction,
ROA.95)

(“A subpoena limited to seeking the facts necessary to determine

whether immunity exists would be a different matter.”). Google, however, objects
to the breadth of the subpoena. This is exactly the type of dispute that is routinely
resolved, if necessary, in state courts in accordance with state statutes. A target of
an investigation should not be permitted to conjure up federal defenses to
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hypothetical claims for the purpose of forestalling or impeding a legitimate
investigation.

And a target of an investigation should not be entitled to the

extraordinary equitable remedy of a preliminary injunction to forestall or impede
that investigation. At the very least, Google’s admission that the CDA does not
categorically bar a subpoena investigating unlawful conduct means there is no
basis for enjoining enforcement of the Subpoena in its entirety. Further, Section
230 of the CDA expressly states that “[n]othing in this section shall be construed to
prevent any State from enforcing any State law that is consistent with this section.”
47 U.S.C. § 230(e)(3). As it stands, the District Court’s preliminary injunction
order prevents the Attorney General from fulfilling his responsibility to investigate
and protect Mississippi’s public from violations of state law.
Google’s lawsuit is premature. At this time, there exists no order from any
Mississippi court requiring Google’s obedience to or sanctioning Google’s failure
to obey the subject Subpoena. See Miss. Code Ann. § 75-24-17. The Mississippi
Attorney General also has yet to make any decision to move forward with
consumer protection litigation against Google. Under these circumstances, there is
no case or controversy ripe for adjudication. See Lewis v. Continental Bank Corp.,
494 U.S. 472, 477 (1990) (“Under Article III of the Constitution, federal courts
may adjudicate only actual, ongoing cases or controversies.”) (citation omitted); id.
(“To invoke the jurisdiction of a federal court, a litigant must have suffered, or be
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threatened with, an actual injury traceable to the defendant and likely to be
redressed by a favorable judicial decision[.]”) (citation omitted). To the extent the
Attorney General’s investigation into the practices and procedures of a corporation
doing business in his state results in the filing of civil or criminal proceedings,
Google would then have all the defenses it raises in this action available to it.
Further, this Court lacks subject matter jurisdiction over Google’s complaint.
Google bases its complaint for declaratory and injunctive relief on consumer
protection claims it predicts or anticipates the Attorney General may file against
Google at some later date. In this way, Google’s federal “claims” actually are
federal defenses to an imagined state cause of action. But a federal defense is not a
proper basis for federal jurisdiction. See Caterpillar, Inc. v. Williams, 482 U.S.
386, 393 (1987) (“[I]t is now settled law that a case may not be removed to federal
court on the basis of a federal defense, including the defense of pre-emption[.]”)
(emphasis omitted). In the absence of subject matter jurisdiction, Google’s case
should be dismissed.
Google attempts to avoid this jurisdictional bar by arguing, in part, that it is
entitled to immunity under the Communications Decency Act for any state law
consumer protection claims the Attorney General may bring against it. Notably,
however, the immunity the CDA affords internet service providers is not absolute.
Although the CDA immunizes an interactive computer service from liability for
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content posted by a third party, it does not provide immunity for content or speech
properly attributable to the service provider itself. See Fair Housing Council of
San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1162 (9th Cir.
2008) (en banc) (“Section 230 of the CDA immunizes providers of interactive
computer services against liability arising from content created by third parties[.]”)
(emphasis added); Johnson v. Arden, 614 F.3d 785, 791 (8th Cir. 2010) (“[T]hese
provisions [of the CDA] bar plaintiffs from holding ISPs legally responsible for
information that third parties created and developed. Congress thus established a
general rule that providers of interactive computer services are liable only for
speech that is properly attributable to them.”) (emphasis added) (citations and
internal quotation marks omitted); Jones v. Dirty World Entertainment Recordings,
LLC, 766 F. Supp. 2d 828, 836 (E.D. Ky. 2011) (“The immunity afforded by the
CDA is not absolute and may be forfeited if the site owner invites the posting of
illegal materials or makes actionable postings itself.”) (citing Roommates.com, 521
F.3d 1157).

Accordingly, the Mississippi Attorney General is entitled to

investigate Google’s activity to determine whether Google may be responsible for
web content violative of Mississippi’s Consumer Protection Act. Indeed, it is
unfair to ask the Attorney General to respond to Google’s contention that the CDA
cloaks it with immunity when Google is withholding, and now has a preliminary

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injunction permitting it to withhold, the very materials that will allow the Attorney
General to evaluate whether the CDA applies to Google’s acts and practices.
In finding the presence of a case or controversy and federal jurisdiction, the
District Court likened the Attorney General’s Subpoena to governmental coercion,
forcing

Google

to

choose

between

abandoning

its

rights

or

risking

prosecution. ROA.2094. Citing MedImmune, Inc. v. Genentech, Inc., 549 U.S.
118, 128-29 (2007), the District Court stated that “[t]he law ‘do[es] not require a
plaintiff to expose himself to liability before bringing suit to challenge the bases
for the threat.’” ROA.2094.

MedImmune, however, discussed whether federal

jurisdiction exists in declaratory judgment actions where the plaintiff has
“eliminated the imminent threat of harm by simply not doing what he claimed the
right to do . . . .” MedImmune, 549 U.S. at 129. The Court held that subject matter
jurisdiction exists in such cases “because the threat-eliminating behavior was
effectively coerced.” Id. Yet, here the Attorney General’s Subpoena merely
represents an investigation. Responding to the Subpoena itself would not force or
coerce Google to change its practices and procedures or otherwise abandon its
rights. And, in fact, Google has not changed its behavior based on the Subpoena in
order to eliminate the threat of potential prosecution--instead, it seeks to eliminate
that threat through its lawsuit and the preliminary injunction. Under these
circumstances, MedImmune is inapposite.
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Because Google filed its lawsuit prematurely, in the absence of a case or
controversy and without a federal claim, the District Court’s decision to deny
General Hood’s motion to dismiss was in error, and Google cannot demonstrate a
likelihood of success on the merits of its arguments. Thus, this Court should
overrule the District Court’s preliminary injunction order.
C.

Mississippi and the public interest will suffer significant harm if
the preliminary injunction is allowed to stand, and that harm will
not be outweighed by any harm or prejudice to Google.

Mississippi will suffer significant harm if the preliminary injunction is
allowed to stand and the Attorney General is not permitted to continue to
investigate potential violations of state consumer protection laws by internet
service providers. Further, a decision upholding the preliminary injunction could
significantly undermine the authority and ability of other state Attorneys General
to investigate potential violations of state consumer protection laws by entities
such as Google. This runs to the detriment of the public whom the consumer
protection laws are designed and each Attorney General is sworn to protect.
In comparison, the harm to Google if the preliminary injunction is set aside
would be minimal. Google, for example, may then have to produce documents
responsive to the Subpoena, or it may face administrative enforcement or other
proceedings in state court. In the course of any such proceedings, Google would
have the opportunity to present any and all defenses, receiving all the due process
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protections that a neutral tribunal offers. Under these circumstances, the potential
harm to Google if the injunction is not in place certainly does not outweigh the
harm to the Attorney General caused by its enforcement.
As is evident from the letters of record signed by multiple Attorneys
General, Mississippi is not the only state with concerns about Google’s consumer
practices. (See ROA.1199-1200, ROA.1243-1244, ROA.1245-1246). Mississippi,
like every state, is entitled to address these concerns through further investigation
utilizing proper tools, including administrative subpoenas. Mississippi, like every
state, also is entitled to review information gathered pursuant to its investigation
and make decisions about actions to take—or not take—to enforce its consumer
protection laws for its citizens. Google may challenge Mississippi’s Subpoena
consistent with state law. But Google should not be allowed to bypass state
subpoena review processes and derail a legitimate state consumer protection
investigation by filing premature declaratory judgment lawsuits and obtaining
sweeping preliminary injunctions in federal court. Both the law and public policy
counsel against it.
III.

Conclusion
For the reasons set forth above, the Attorneys General of the

Commonwealths of Kentucky, Massachusetts, and Pennsylvania, the States of
Arizona, Alabama, Alaska, Arkansas, Colorado, Connecticut, Florida, Georgia,
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Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Michigan,
Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New York,
North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota,
Tennessee, Utah, Vermont, Washington, West Virginia, and Wisconsin, and the
District of Columbia urge the Court to set aside the District Court’s Order granting
Google a preliminary injunction.

Respectfully submitted,

JACK CONWAY, ATTORNEY GENERAL
COMMONWEALTH OF KENTUCKY
By:

JAMES D. “BUDDY” CALDWELL
LOUISIANA ATTORNEY GENERAL
/s/ Stacie Lambert Deblieux
Stacie Lambert Deblieux
Bar Roll #29142
Assistant Attorney General
Public Protection Division
1885 N. 3rd Street
Baton Rouge, Louisiana 70802
Telephone: (225) 326-6458
Telefax:
(225) 326-6498
deblieuxs@ag.state.la.us
Counsel for the State of Louisiana

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SEAN RILEY
Chief Deputy Attorney General
TODD LEATHERMAN
Executive Director, Office of Consumer Protection
Laura S. Crittenden
Assistant Attorney General
Kentucky Office of the Attorney General
700 Capital Avenue, Suite 118
Frankfort, KY 40601
laura.crittenden@ky.gov
Counsel for the Commonwealth of Kentucky

MARK BRNOVICH
ARIZONA ATTORNEY GENERAL
1275 W. Washington Street
Phoenix, AZ 85007
Counsel for the State of Arizona

ALSO SUPPORTED BY:
LUTHER STRANGE
ATTORNEY GENERAL OF ALABAMA
501 Washington Ave.
Montgomery, Alabama 36130
CRAIG W. RICHARDS
ATTORNEY GENERAL OF ALASKA
P.O. Box 110300
Juneau, Alaska 99811

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LESLIE RUTLEDGE
ATTORNEY GENERAL OF ARKANSAS
323 Center Street, Suite 200
Little Rock, Arkansas 72201
CYNTHIA H. COFFMAN
ATTORNEY GENERAL OF COLORADO
1300 Broadway, 10th Floor
Denver, Colorado 80203
GEORGE JEPSEN
ATTORNEY GENERAL OF CONNECTICUT
55 Elm Street
Hartford, Connecticut 06106
PAMELA JO BONDI
ATTORNEY GENERAL OF FLORIDA
The Capitol, PL-01
Tallahassee, Florida 32399-1050
SAM OLENS
ATTORNEY GENERAL OF GEORGIA
40 Capitol Square, SW
Atlanta, Georgia 30334
LAWRENCE G. WASDEN
ATTORNEY GENERAL OF IDAHO
P.O. Box 83720
Boise, Idaho 83720-0010
LISA MADIGAN
ATTORNEY GENERAL OF ILLINOIS
100 West Randolph, 12th Fl.
Chicago, Illinois 60601
GREGORY F. ZOELLER
ATTORNEY GENERAL OF INDIANA
303 W. Washington Street
IGC South, 5th Floor
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Indianapolis, Indiana 46204
TOM MILLER
ATTORNEY GENERAL OF IOWA
Hoover State Office Building
1305 E. Walnut Street
Des Moines, Iowa 50319
DEREK SCHMIDT
ATTORNEY GENERAL OF KANSAS
120 SW 10th Avenue, 2nd Floor
Topeka, Kansas 66612-1597
JANET T. MILLS
ATTORNEY GENERAL OF MAINE
6 State House Station
Augusta, Maine 04333
BRIAN E. FROSH
ATTORNEY GENERAL OF MARYLAND
200 Saint Paul Place
Baltimore, Maryland 21202
MAURA HEALEY
ATTORNEY GENERAL OF MASSACHUSETTS
One Ashburton Place, 18th Fl.
Boston, Massachusetts 02108
BILL SCHUETTE
ATTORNEY GENERAL OF MICHIGAN
G. Mennen Williams Building, 7th Fl.
525 W. Ottawa Street
P.O. Box 30212
Lansing, Michigan 48909
LORI SWANSON
ATTORNEY GENERAL OF MINNESOTA
102 State Capitol
75 Rev. Dr. Martin Luther King Jr. Blvd.
St. Paul, Minnesota 55155-1609
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CHRIS KOSTER
ATTORNEY GENERAL OF MISSOURI
207 W. High Street
P.O. Box 899
Jefferson City, Missouri 65102
TIMOTHY C. FOX
ATTORNEY GENERAL OF MONTANA
P.O. Box 200151
Helena, Montana 59620
ADAM PAUL LAXALT
ATTORNEY GENERAL OF NEVADA
100 North Carson Street
Carson City, Nevada 89701
JOSEPH A. FOSTER
ATTORNEY GENERAL OF NEW HAMPSHIRE
33 Capitol Street
Concord, New Hampshire 03301
JOHN J. HOFFMAN
ACTING ATTORNEY GENERAL OF NEW JERSEY
25 Market Street
P.O. Box 080
Trenton, New Jersey 08625
ERIC T. SCHNEIDERMAN
ATTORNEY GENERAL OF NEW YORK
120 Broadway, 25th Fl.
New York, New York 10271
WAYNE STENEHJEM
ATTORNEY GENERAL OF NORTH DAKOTA
600 E. Boulevard Ave.
Dept. 125
Bismarck, North Dakota 58505

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E. SCOTT PRUITT
ATTORNEY GENERAL OF OKLAHOMA
313 N.E. 21st Street
Oklahoma City, Oklahoma 73105-4894
ELLEN F. ROSENBLUM
ATTORNEY GENERAL OF OREGON
1162 Court Street NE
Salem, Oregon 97301
KATHLEEN G. KANE
ATTORNEY GENERAL OF PENNSYLVANIA
16th Floor, Strawberry Square
Harrisburg, Pennsylvania 17120
PETER F. KILMARTIN
ATTORNEY GENERAL OF RHODE ISLAND
150 S. Main St.
Providence, Rhode Island 02903
ALAN WILSON
ATTORNEY GENERAL OF SOUTH CAROLINA
1000 Assembly Street
Columbia, South Carolina 29201
MARTY J. JACKLEY
ATTORNEY GENERAL OF SOUTH DAKOTA
1302 E. Highway 14, Suite 1
Pierre, South Dakota 57501-8501
HERBERT H. SLATERY III
ATTORNEY GENERAL OF TENNESSEE
P.O. Box 20207
Nashville, Tennessee 37202-0207
SEAN D. REYES
ATTORNEY GENERAL OF UTAH
P.O. Box 142320
Salt Lake City, Utah 84114
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WILLIAM H. SORRELL
ATTORNEY GENERAL OF VERMONT
109 State Street
Montpelier, Vermont 05609
ROBERT W. FERGUSON
ATTORNEY GENERAL OF WASHINGTON
P.O. Box 40100
Olympia, Washington 98504-0100
PATRICK MORRISEY
ATTORNEY GENERAL OF WEST VIRGINIA
State Capitol Complex
Building 1, Room E-26
Charleston, West Virginia 25305
BRAD D. SCHIMEL
ATTORNEY GENERAL OF WISCONSIN
P.O. Box 7857
Madison, Wisconsin 53707
KARL A. RACINE
ATTORNEY GENERAL OF THE DISTRICT OF COLUMBIA
441 4th Street, NW
Washington, D.C. 20001

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME
LIMITATION, TYPEFACE REQUIREMENTS AND
TYPE STYLE REQUIREMENTS
This brief complies with the type-volume limitation of Fed R. App. P.
32(a)(7)(B) because, excluding the parts of the brief exempted by Fed. R. App. P.
32(a)(7)(B)(iii), it contains 4,321 words.
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has
been prepared in proportionally-spaced typeface, including serifs, using Word, in
Times New Roman 14-point font, except for the footnotes, which are in
proportionally-spaced typeface, including serifs, using Word in Times New Roman
12-point font.
The undersigned understands a misrepresentation in completing this
certificate or circumvention of the type-volume limits in Fed. R. App. P. 32(a)(7),
the typeface requirements of Fed. R. App. P. 32(a)(5), or the type style
requirements of Fed. R. App. P. 32(a)(6) may result in the Court’s striking the brief
and imposing sanctions against the person signing the brief.
SO CERTIFIED, this the 29th day of June, 2015.
/s/ Stacie Lambert Deblieux
Stacie Lambert Deblieux

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CERTIFICATE OF SERVICE
On June 29, 2015, the foregoing amici curiae brief was filed with the Clerk
of the Court for the United States Court of Appeals for the Fifth Circuit using the
appellate CM/ECF filing system. As all participants in the case are registered
CM/ECF users, service will be accomplished via the appellate CM/ECF system.

/s/ Stacie Lambert Deblieux
Stacie Lambert Deblieux

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