not been challenged by google in this case while the lower court's order to pass the injunction in terms of google's desire to maintain the status quo until the court determines the extent of google's responsibility under the law what this junction has done has usur the state's sovereign authority to investigate and if warranted bring a suit under its consumer protection laws and the injunction does so in the absence of any across the board federal metered prohibiting the state's investigation as we submit the district court abused its discretion in failing to abstain under younger v harris and while the standard of review is an abuse of discretion standard this court reviews the application of the three younger factors to no purposes of younger abstention we disagree and we believe that under this court's this court's decision in texas association business versus our all two thousand and four case there the court said that the issuance of compulsory process including subpoenas in criminal cases initiate ongoing proceedings for the purpose of younger abstention but earle's a grand jury subpoena yes but they talked about and if you look at the logic and what not see with the u s supreme court said in nazi there the court said it talks about judicial in nature which means a state process that investigates and declares and enforces the liabilities as they stand at present the consumer protection act upon which this subpoena was issued has a number of things that are akin and you didn't respond to in your reply brief louisiana debating same hybrid arrangement they are but that the did didn't you distinguish louisiana great debater we believe not nazi is controlling in terms of the fact that this witnesses subpoena documents issues cease and desist the commission in louisiana debating meant to publish this circuit opinion had that same forty we're are we contend that this is still under earl earl's a grand jury case no one disagrees th grand jury subpoena has invoked judicial machinery then we don't want to step in because that's going to be duplicative federal judicial machinery on top of state judicial machinery but the grand jury doesn't operate for the attorney general he's made an  investigative demand in the absence of the ability to make that investigative demand and i think it's important that the court in the spitzer case specifically said youngers principles extend to civil administrator proceedings they are an integral part in potential proceeding against plaintiffs and without such subpoenas attorneys general and seldom amass the evidence necessary to commence the fraud action so it's a catch why isn't i mean what circuit has said that the line isn't one of a threat of enforcement no judicial proceedings no comedy problem no duplicative duplicative we're not doubting that state courts can enforce the the constitutional principles here versus actual enforcement proceedings threat of enforcement younger then you've got a civil proceeding and google had every opportunity to avail itself of that state call but it hasn't happened your honor we believe that they have that opportunity and we believe that the institution of the civil civil subpoena was sufficient to trigger under we believe that this court should reverse and render as to younger abstention now in my limited time left i'm going to address the injunction itself and we believe that the lower court abused its discretion in granting the injunction injunction is broken down into two grounds one the first well before you do that for me this case starts and maybe stops at the district court's finding that google presented significant evidence of bad faith and once that jews factual finding has been made my question to you is in the existing record where do you point us to to have us conclude that that fact of finding is clearly erroneous rather than record itself and there's a number of citations in the record where we believe that bad faith finding was clearly erroneous in the first of all but but that's exactly what i want where in the record give me a specific record cite because you offer very little exhibit evidence and no witness testimony nor to day below but yet the district court comes to a bad faith whining that would get you around younger no matter what your other arguments are it would get you to a first amendment retaliatory claim so we've got a factual finding of bad faith that this isn't investigative this isn't looking for criminal activity this to you know retaliate against protective c d a immunised activity would point to court to record or a way five ninety six where google says to in a letter to the attorney general google has voluntarily in good faith from a conservative strides  addressing the kinds of issues raised in our meetings understand it over a course of eighteen months you turn in general and google and other parties were engaged in dialogue including attorneys generals from many other states google likes to portray this as the attorney general making threats  with an ongoing dialogue between google and the attorney general or away five ninety six are away five ninety nine google has taken very seriously your complaints about autocomplete listings right but that ongoing dialogue preceded t any of the provisions in the requests not in the time that we were negotiating and during that time january fifth was the due date for the subpoena and they said they followed the lawsuit on december nineteenth so during this time google was was was talking with counsel in our office to discuss that issue and then on december nineteenth they file the lawsuit but google ties the issuance of the speed of a tie all the things leading up to the issuance of the subpoenas i don't i don't think you can necessarily separate them and say the dialogue that was issued there was no other factual analysis other than a conclusion in the judge in the district court's order that that constituted bad faith and i might also add that the courts that may be bad faith based upon the district based upon the attorney general's perceived google's violation so it certainly was not a conclusive finding and it was always as it was it is indicative because he had already dysphoric close the other younger factors and said bad faith but i would also point your your honor to doorway six o three google continues to be open to feedback about the next further and additional steps it can take to address the abuse of its systems by rogue actors in the distance in this spirit google continues to incorporate suggestions for filters and algorithmic changes to autocomplete systems why but wise but i mean you're right i mean in my my way of thinking about this case is that you have you two have a vastly more common ground then you don't in that both of you want to stop criminality child pornography any of these things and therefore the dialogues appropriate but then at the subpoena here is dropped on them with terms that are extraordinarily broad like anything you've considered ever true of any you tube that could be dangerous how i doubt that if they take off one hundred eighty million youtube photos in just twenty fourteen how are they going to comply with that you know that's why this  this is a motion to quash if it's anything and that's why the state court proceeding is designed if the attorney general because a subpoena is not self executing if the attorney general filed the enforcement action they can raise all these issues this is a motion to quash they can see they would respond a more narrowly tailored subpoena so right there that throws out the retaliation claim because they never say well if you'd asked us ten fewer questions or ten fewer pages that we will we would deem it not be used think it was if they follow motion aquash mississippi rule forty five like our seventeen at that point you guys you go through it line by line and you'll take out for example any information that is covered by the c d a munity provision yes that would be the process i would just point to they make a big big production of the of the definition to include things that are covered or not covered by the c d a and the reason that has to be there is if we said produce documents that are you don't think are third party content we're liable to get no documents of their position is everything standard party content so there clearly has to be it's a fact intensive in court so we know in an actual filed lawsuit that just raising it and saying third party content courts have already recognized that that is not a valid argument or one step removed from an actual filed lawsuit with actual claims an actual actual documents to look at and there's certainly no textual support whatsoever in the c d a to say that an investigation is somehow prohibited under the c d s a you know what i would point to court to section  and that was suit that's perfectly fine but nothing in the c d a text itself lends any support to the notion that it can be used as a sword during an investigation to go to federal court to get an injunction over a state long vest a geisha so we believe the district court committed abuse of expression by finding there was a likelihood of success on the merits as to the c d a and in fact he didn't even say he said google wants to maintain the status quo while the court determines the extent of google's responsibilities under the law that's what the attorney general's investigation was trying to do when it was an improperly halted so we can say there's any search company like google ever been found to have prosecuted and convicted for consumer protection act violation in state court you know anywhere not that i'm aware of your are they were they entered into the five hundred million dollar non prosecution the liberal press to federate you're not aware of any state ever getting a conviction for a consumer protection violation against this what i'm thinking of as a search engine that forty states are here is because the injunction here which is effectively a federal court action to quash a state subpoena instead of going through the state court process is a grave threat to state law enforcement across this country i also think it is fundamentally inconsistent with younger principles and basic injunctive principles because to your point judge a concern i want to respond on the younger points but also to the extent that you don't think this is sufficiently a way to qualify show irreparable injury and when your irreparable injury is said to flow from a non self executing in that subpoena that doesn't have any impact on your primary conduct unless and until it's in force by a court pursuant to a return date where you have a court hearing an opportunity motion to file a motion for watch there's no injury at all let alone any irreparable injury and that's an independent grant to reverse this injunction which frankly i mean even if you if you wanted to get around the bad faith finding i get you toured the twenty a j filing of judge posner's decision yesterday whenever it was why wouldn't this same veiled threats brought against back page by the sheriff be equivalent to the conversation that's been described by the district judge here but there and judge posner says this is that the cook county sheriff there was not invoking any process at all against back pages he was going against a third party the credit card companies and therefore back pages had no state court proceeding where they could do anything hook for that we're going to shut it down unless until we get a p r they don't have anything like that they point to some conduct that they changed voluntarily in response to the earlier colloquy is with the attorneys general as to that they don't say that with the pulmonary injunction they've revived any conduct that they ever stopped at any point on the spectrum so i don't really thinking neither party based it but i'm sure you know the case or enterprises the little brooklyn adult bookstore federal subpoena dropped on them give us your customer list for your adult bookstore clients well at that point you've got a substantial first amendment concern enough that the supreme court remanded and the requirement is that the executives got to show that they had at least conceivable relevance to a criminal statute sure you can't be harassing them for their activity and that is a first amendment defense that google can bring equally in state court as it can bring in federal ok and that brings us back to two points and they're both fatal i think to google's effort to go into federal court and get that and once it won is as i've noted the non self executing subpoena there is no irreparable harm but independent of that there is a huge federalism a huge younger problem here and i want to make two points well three points first on that faith this is not a bad faith finding that you can defer to it is a finding that quote on page fourteen of the district court's opinion the there that the conduct of the attorney general may evidence of the united states has never made a finding of bad faith in a younger case because it would be a very big deal for a federal court to make a finding that a state investigation was done in bad faith especially one like this where there's no prior history there's nothing to suggest you know as i look at what happens here what happened here happens to a lot of my clients frankly which is you know some law enforcement agency says we want to change your conduct my client tells them we're not going to change  oh i got a great idea let's not file a motion to quash and state court let's go to federal court and not only can we get a federal court to quash this thing but if unsuccessful i'll get my tourney cities so you even have to pay me isn't that essentially what happened in louisiana debating or both cases you come to federal court to enjoin the state executive officer that's acting in bad faith well first of all we don't have bad faith here i don't think this is a valid finding but second that really brings us to the two related questions one is younger one is represented injury at this point you have to show some irreparable injury before you get this extraordinary injunction in a non self executing subpoena doesn't get you there and that brings us to the rest of the younger analysis and there's really two points i'd like to make on that one is  brings up the sprint case as if sprint was somehow just like a watershed unlike youngers hanging on by a thread after sprinter something now all sprint held as i read that decision is that some of the loose language in middlesex cannot be used to create  ially a fourth category of younger extension but the three sort of court categories criminal proceeding the civil enforcement proceeding and enforcement to enforce state court judgement all three of those are alive and well and so nothing about sprint affects what i think is the only hard question as to younger abstention here which is whether there whether the civil and foresman proceeding which is clearly what's contemplated here is sufficiently far along for it to be pending with what's your best case for not grand jury investigative demands by an executive officer and i give you two ok i think i would like to point you to judge kimba woods analysis in the ceiling case because that is just southern district new york district court in new york on all fours with this case in the sense that it is a civil invest you tory pinion and the it's the martin act and it's very similar to the statute which ultimately could be enforced and the aids work at kaylor what's that what's sort of the second case and the second case is trainer against hernandez the supreme court case and i would particularly ask you to focus on footnote nine of train because in footnote the traitor case involves a civil effort to get back some welfare payments but state authorities that were said to be have have been garnered falsely and there's two proceedings there one of them is a writ of attachment and there's one point the argument this is why footnote nine is a critical where they actually focus just on the writ of attachment and ask whether that alone would be a pending proceeding for younger purposes and what the court says in footnote nine is yes and what it points to is the fact that the read of attachment has a return date and would be subject to a motion to quash in state court had been filed yet but was subject to court i'd like to go right to the point you made your take and send about bad faith because i think it does actually by itself decide this case and there was very substantial evidence as the district court found of bad faith here and when you asked  americal to identify what he thought was the evidence that there wasn't bad faith it was really quite striking because he didn't point to anything that related to what the attorney general's motives were what purposes were what the nature of his requests were he pointed to the fact that google in the course of the investigation was polite and respectful i don't think that's any evidence it was whether his investigation was conducted in bad faith here's what the evidence was on bad faith you had first the attorney general demanding repeatedly censorship out of search results websites that the motion picture association this business group that's been lobbying me doesn't like repeated demands for that threats if you don't do the nothing wrong with the victim to go to the attorney general and say the end google wants to know if there actually is a pirated film but here's the difference right congress has passed in millennium copyright act the procedure where if you identify a specific film or a specific way page that has infringing content on it you go and you've given notice of that and will takes it down they do it two hundred million times a year that's not what the  who was demanding he was saying if there's a website that has some infringing content down deep down the whole website not just the stuff that's been identified as infringing but everything it's like going to a library and saying look you've got some books by this publisher some of them are obscene take out of provision in our my space decision yes right and pretty clearly we say go after the people that are creating the content don't go after the publisher exactly right ok but what's the case that applies that immunity provision to an investigative context as opposed to an litigation and that one of those burns is the burden of responding to do you know burdensome discovery demands and therefore in the after the cases been filed context the number of cases like mehmet from the fourth circuit and then as from the tenth circuit and say you got to stage the discovery you can do a little acknowledged sort of important because without the c d a in the unity you know as a former prosecutor what i think of here is you've got an attorney general around the country this one in particular desperately trying to respond to online criminality and there's a lot and you don't dispute there is right so they've got two calls about price gouging cyber monday yesterday illegal trafficking people drugs all of that they do properly have jurisdiction over absolute and google is assisting them enormously but they their view is you can't just say trust us i sometimes banks collude with embezzlers and in that context they they file it's a first request for information it's full of a lot of atmospherics where they're telling the public we're going to make sure google clean but fundamentally the only step they've taken is a first subpoena and it's money and time but every big company response to those they don't think that's the only thing that they've done here because we have not just a subpoena but we have repeated demands for censorship and we have repeated threats prosecution of the day before we felt give me your best threat to you for prosecution as as distinct from a public statement that we're public we're going to fulfill our duty to protect children they get online  a letter in november of two thousand and thirteen a letter that the records which is we drafted by the motion picture association and signed by attorney general you keep saying that but what's wrong with a victim assisting an attorney and executive nothing nothing wrong with the what is the letter to you say what's the crime they go end up in a fire pit in the records so these are all in the record so the first thing that we have is we have a demand for something that is well beyond the change and also forty to insist upon and it's a form of censorship and that raises significant first minute concerns when state officials demanding that you censor that's first second we have got i'm sorry i have to ask for records like where did the attorney general demand that you censor just give me a record page i'll look at it not to quote what's the row let's s results and he does say that you should put warnings next to kind of search results and he does say that these are the things you have to do if you want to avoid incurring liability so that's a that's a pretty substantial threat i would say standing alone because it doesn't stand alone just to give you the record cite for that do to avoid further why ability one of the things that's prominent there is that we need to delist that is removing tire websites from search results that's a request for censorship i think it's fair to say as a threat of liability if we don't do it  that is not what you only want your repeated public statements there are statements at the national straight national so sation attorney general's meeting in february of twenty fourteen this is in the record where he says here's the difference what i'm demanding what they're willing to do and he says what i'm saying they should do is delist things from church since that's a request for censorship there is his press conference that he calls on december eighteenth a pretty fourteen in the transcript that is in the record and in that transcript what he says is this is a company that is assisting in a crime should clearly be convicted of a felony and there's going to be a court battle i don't think i'm over reading that to say that that is a threat of prosecution right those are public statements but i guess i still don't understand why don't you just file a motion to quash couple of reasons for that and then you get in there you go line by line through this document and you've got i think the standard is best that would only get us at best half of the problem because we have a problem here not just with the subpoena but with what i think are quite clear threats of prosecution and that is something that we are entitled to redress that federal court judgments that are detailed by such a proceeding that the first problem the second problem is that if we did this by way of a motion to quash is not at all clear that the core arguments that we are making here could be heard as medical suggested that that was the case but what the attorney general has said in other cases and also you to the gulf coast claims facility case what he said in state chancery court was there are only three things for the court to consider and i conduct an investigation do i say that this is relevant to my investigation and is there a reason to think that the person who i've asked has the information that effortless and that's what he said in a brief he filed where the only things he said in that case it's just a distraction that the court should not consider whether the conduct that i'm looking at even fits within the statute that was his position in two thousand and twelve in chess records so it's a little rich for them to come into court now and say well you could do all of this by way of emotion aquash proceeding it's not at all clear that we could do all of this but we have a motion to quash proceedings their position has been would be a distraction to ask the court to get into the fundamental issue but whether what they're investigating no there's not an international market under ninety three period and your first point about threats would be piecemeal mississippi's civil rules a dent a call to the federal rule forty five d it doesn't contemplate just oppressive onerous and unreasonable but it says or broad in bad faith so it would seem to me that a motion to quash federally and in state is precisely how a court is going to determine whether there's no conceivable relevance it's being done for retaliatory purpose we would certainly have made that argument in state court actions pointing out that the train general has taken a very different position but if you've got an adequate remedy of law that exists with actually our enterprises nixon brands burke in the first remember context they're all saying moved aquash so so a couple of points on that i mean i think first of all this notion a step back i don't think you can look at this case as just being about a i detailed what i think are clear threats of prosecution and i think you know look at a case like bantam books and bantam books says you know that when there is a effort to coerce censorship what the court should do is look at the substance of what's going on and not at the forms the substance year as we've laid out in the various threats and demands of the attorney general made was an attempt to coerce us to become a censor of what's available on the internet and if we're right about that submission then what bana book says is look at the substance not this one and i think the district court didn't have to go and just aggregate all the different steps that the attorney general had taken and say does this one step by itself constitute a repl harm is there some of the place you could remedy this one step  look it up whole course of conduct and say i look at it as a matter of substance this is an effort to course censorship it's appropriate to enjoying it more all he did in this case of course is just preliminarily enjoying it so that the merits can be assessed on how hardship here's an address the that the trainer case confessed i don't think it said in the breeze i don't remember reading it but as it was described by mr clement it seemed to involve a court order which that rid of attachment i would be very different thing i would fall into the classic third category of  general session which isn't present here the southern district case that he referred to from judge would in a second circuit as we explain in our brief has walked away from a whole bunch of district court cases that were decided priest print that said a subpoena is enough and they've said no you have to analyze it differently after abstention is you need to have some proceeding that's already pending that the federal court ought to be abstaining in favor of and there isn't a proceeding that's laurie pending they're saying we could create a proceeding in state court by filing a motion to quash there is that in fact they trumpet it right and i mean but again that makes me question whether it's hardship any big third party subpoena recipient isn't going to like the time and money but if you don't have something imminent and specific and that gets back to what's the most specific threat given to your client adverse legal action well i think it's the the there are several of them there is the statement in  the november twenty thirteen letter that if you don't change various things you have to change those things in order to avoid incurring further liability think that's pretty specific there in the state as you you've acknowledged to me you guys mutually with a great deal of cooperation set up  flagging system and then you took things down so this dialogue that teated between you has led to you know corrective action well difficult just to be clear the flagging system that there are two flagging systems here let's turn gently asked for was an ability know it doesn't it's not it's not a nothing thing for stage where you don't come and say i did pike ability to censor your speech that's a very serious thing you know and that i think is different from some of the other kinds of investigations that mr cummins talking about but i want to get your question about irreparable  get along and that's exactly the kind of chilling effect that's highly problematic so if you look at the at the at the substance of what's going on here you don't have to desegregate it and say to each step that the train general took by itself constitute a record will harm look at the whole picture going to produce a thing that's you know this is not a self executing subpoena but that's not a costless choice it's not just the burns litigation right but i mean the i guess i sort of how do you harmonize it with branzburg right the newspaper doesn't want to put a loud witness its reporter  testify about this constant confidential sources but they have to sure and that's the same cost to me you don't want to describe it but if if google had a platform that were assisting something like the silk road if google were taking any affirmative right absolutely get a hearing that hearing you could subpoena them in and try to get to the bottom as to whether there's bad faith very unclear whether we could subpoena them in or not their position has been that it's a summary proceeding and that you don't need testimony witnesses and things like that but let me just finish the point that this is important and i know from asking questions in areas that were fenced off from state authority by federal law and we think we have that here because the poor what the subpoena is focused on from the first request forward is immunised activity  to say hey when you're trying to intrude on a federal immunity and investigate an area where you don't have authority the federal court can come in and say no if i let this go forward and just deal with this as an ordinary stay process at night for the full benefit of that respectfully i sort of read that language as just trying to make clear that he wasn't making an ultimate determination of the merits of the case but was simply working at prome an injunction stage i think that's the fairest way to read that we that language i see in my time is up so unless there further questions will rest you few more points about the record hour away three ninety seven the attorney general tells google the state of mississippi is investigating and evaluating google's conduct the purpose of this investigation is to determine whether there exists any violation of mississippi whoa one of these many potential outcomes of the ongoing investigation could be civil or criminal like little litigation i don't think there's anything remarkable about the attorney general having a dialogue in an investigation which is what attorney general do telling a company that o'barr the way under the statute here's what this could be he's telling them this is the statute i'm operating under so i don't think there's anything remarkable what this investigation and in that vein there's been a lot of discussion about th terms of retaliation in the in the in the court lower court even focused on this but i think it's unfortunate instructive to look to have any of us be power decision on administrative subpoenas in the federal court where the court said under the limited review with such a subpoena in federal court there are only two questions whether the investigation is for a proper statutory purpose yes we meet that here without question under the midst of the consumer protection act and to whether to say that but there's no case anywhere in the country that's ever been brought to enforce consumer protection state against a interest on the mississippi has have brought consumer and second against a search company no no your honor no way we have brought consumer protection and not against a search company and you could have submitted anything in camera to the district court if you felt like it was two point nine he didn't want them to see what you're looking at there's nothing stopping you from a new camera submission no your honor but i mean we were completely hamstrung by the fact that we're told on the phone and we can't get any of your documents with underemployment or injunction proceeding being told that we have absolutely no evidence to support oh or defend the preliminary injunction so it's really hard since choice of except what they say is true or do nothing and one final point i want to make is there is an exhaustion requirement in younger footnote fifteen of judge wisdoms decision in to spain addresses that point and and finally your honor there is there is no case with the word he mentioned there there questioned ability as to whether they could raise this in the state court there's certainly no authority side of where that could not be raised in the lower court and whatever position  i will rely on our brief for the remainder of the points we submit to the court because you mean you're familiar with the my space decision yes so would it be was it a correct statement that mississippi is not seeking in any way to have them correct or replace third party postings mississippi's sole interest from an investigative standpoint and this subpoena is to discover whether they promoted illegality themselves is that a fair statement that you're not asking them to correct and replace third party content you accept they can't be asked back under or decision yes and what i would specifically point to in the record or away six forty seven  told in that november letter that mr ninan reference the attorney general said the the a g is is is investigating the actions of google not investigating for the actions of others now does that mean in the course of the investigation there is going to be and let me just make a real quick example is i know i'm over my time but the monetization of a is so if if a you tube as put on there and google puts an ad up the column or runs a prequel be put before would say  a pirated moving there could be questions about what just because it involves third party content just because the content is there google has created other business models since one thousand nine hundred six when it was a search engine there are a lot of other business models those are the