FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AMERICAN BANKERS MANAGEMENT 

COMPANY, INC.,

Plaintiff-Appellant,

v.

ERIC L. HERYFORD, District 

Attorney, Trinity County,

Defendant-Appellee.

No. 16-16103

D.C. No.

2:16-cv-00312-

TLN-EFB

OPINION

Appeal from the United States District Court

for the Eastern District of California

Troy L. Nunley, District Judge, Presiding

Argued and Submitted November 17, 2017

San Francisco, California

Filed March 15, 2018

Before: Richard R. Clifton and Michelle T. Friedland, 

Circuit Judges, and Sharon L. Gleason,* District Judge.

Opinion by Judge Friedland

 *The Honorable Sharon L. Gleason, United States District Judge for 

the District of Alaska, sitting by designation.
2 AM. BANKERS MGMT. V. HERYFORD

SUMMARY**

Civil Rights

The panel affirmed the district court’s dismissal of a civil 

rights action brought by American Bankers Management 

Company seeking declaratory and injunctive relief to 

prevent the District Attorney of Trinity County, California, 

from retaining private counsel on a contingency-fee basis to 

litigate, in the District Attorney’s name, an action against 

American Bankers under California’s Unfair Competition 

Law.

Citing United States ex rel. Kelly v. Boeing Co., 9 F.3d 

743 (9th Cir. 1993), the panel rejected American Bankers’ 

contention that the District Attorney’s retention of private 

counsel on a contingency-fee basis violated federal due 

process principles. The panel held that the District 

Attorney’s retention of private counsel to pursue civil 

penalties under state law cannot be meaningfully 

distinguished from a private relator’s pursuit of civil 

penalties under the qui tam provisions of the False Claim 

Act, an arrangement that this court already held, in Kelly, 

does not violate due process. 

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
AM. BANKERS MGMT. V. HERYFORD 3

COUNSEL

Brian P. Perryman (argued), W. Glenn Merten, and Frank G. 

Burt, Carlton Fields Jorden Burt PA, Washington, D.C.;

Valerie D. Escalante and Meredith M. Moss, Carlton Fields 

Jorden Burt LLP, Los Angeles, California; for PlaintiffAppellant.

Roland K. Tellis (argued) and Jonas P. Mann, Baron & Budd 

P.C., Encino, California; S. Ann Saucer, Baron & Budd P.C., 

Dallas, Texas; Eric L. Heryford, Trinity County District 

Attorney, Weaverville, California; for Defendant-Appellee.

John H. Beisner, Geoffrey M. Wyatt, and Jordan M. 

Schwartz, Skadden Arps Slate Meagher & Flom LLP, 

Washington, D.C.; Kate Comerford Todd and Sheldon 

Gilbert, U.S. Chamber Litigation Center Inc., Washington, 

D.C.; James C. Stansel and Melissa B. Kimmel, The 

Pharmaceutical Research and Manufacturers of America, 

Washington, D.C.; for Amici Curiae Chamber of Commerce 

of the United States of America, and The Pharmaceutical 

Research and Manufacturers of America.

Aileen M. McGrath, Deputy City Attorney; Dennis J. 

Herrera, City Attorney; Office of the City Attorney, San 

Francisco, California; Laura S. Trice, Deputy County 

Counsel; Danny Y. Chou, Assistant County Counsel; Greta 

S. Hansen, Chief Assistant County Counsel; James R. 

Williams, County Counsel; Office of the County Counsel, 

San Jose, California; for Amici Curiae City and County of 

San Francisco and County of Santa Clara.
4 AM. BANKERS MGMT. V. HERYFORD

OPINION

FRIEDLAND, Circuit Judge:

Plaintiff-Appellant American Bankers Management 

Company, Inc. filed this civil rights action seeking 

declaratory and injunctive relief to prevent Eric L. Heryford, 

the District Attorney of Trinity County, California, from 

retaining private counsel on a contingency-fee basis to 

litigate in Heryford’s name an action against American 

Bankers under California’s Unfair Competition Law. 

American Bankers argues that the arrangement violates 

federal due process principles. We disagree. Heryford’s 

retention of private counsel to pursue civil penalties under 

state law cannot be meaningfully distinguished from a 

private relator’s pursuit of civil penalties under the qui tam 

provisions of the False Claim Act, an arrangement that we 

have already held does not violate due process. We therefore 

affirm the district court’s dismissal of American Bankers’ 

civil rights action against Heryford.

I.

The story of this lawsuit starts with a different lawsuit, 

one that Heryford filed against American Bankers and 

several other companies on behalf of the people of California 

under California’s Unfair Competition Law (“the UCL”), 

Cal. Bus. & Prof. Code § 17200 et seq. That lawsuit was 

filed by Heryford in Trinity County Superior Court on behalf 

of “the People of California, by and through the District 

Attorney for the County of Trinity.” Heryford alleged that 

the defendants had “engaged in deceptive marketing and 

sales practices in connection with” services offered to 

California holders of certain credit cards. For these alleged 

violations, the complaint sought injunctive relief, restitution, 

attorney’s fees, and—most relevant here—civil penalties. 
AM. BANKERS MGMT. V. HERYFORD 5

Although private parties may seek injunctive relief and 

restitution under the UCL, only a public prosecutor such as 

Heryford may pursue civil penalties. See California v. 

IntelliGender, LLC, 771 F.3d 1169, 1174 (9th Cir. 2014); see 

also Cal. Bus. & Prof. Code §§ 17204, 17206.

Attorneys from the district attorney’s office were not the 

only counsel listed on the complaint. Attorneys from Baron 

& Budd, P.C. and Carter Wolden Curtis, LLP were too. 

Heryford’s office had retained these law firms along with 

Golomb & Honik, P.C. (collectively, “the Law Firms”) 

under an agreement designating them as “Special Assistant 

District Attorneys.” Under the agreement, the Law Firms 

were charged with “assist[ing] in the investigation, research, 

filing and prosecution” of the UCL suit against American 

Bankers and its co-defendants. More specifically, the 

agreement required the Law Firms to “provide all legal 

services that are reasonably necessary for such 

representation and assistance, including without limitation, 

the preparation and filing of all claims, pleadings, responses, 

motions, petitions, memoranda, brief[s], notices and other 

documents,” and to “conduct negotiations and provide 

representations at all hearings, depositions, trials, appeals, 

and other appearances as may be required.” The agreement 

gave the Law Firms “the authority and responsibility to 

control and direct the performance and details of” their work.

The agreement also stated, however, that the Law Firms 

would work “under the direction of the District Attorney,” 

and that his office did “not relinquish its constitutional or 

statutory authority or responsibility.” Heryford retained 

“sole and final authority to initiate and settle” the UCL suit, 

along with “final authority over all aspects of the litigation.” 

He also had “a general right to inspect work in progress to 
6 AM. BANKERS MGMT. V. HERYFORD

determine whether . . . the services [we]re being performed 

by the Law Firms in compliance with” the agreement.

Heryford retained the Law Firms on a contingency-fee 

basis. Under the terms of the agreement, the Law Firms 

would bear “[a]ll reasonable and necessary costs of 

litigation,” for which they would be reimbursed from any 

recovery in the action. They were also entitled to thirty 

percent of any remaining funds. If the UCL suit did not 

result in a recovery, the Law Firms would neither be 

reimbursed for their expenses nor compensated for their 

services.1 Heryford told the Trinity County Board of 

Supervisors that this arrangement meant there was “a lot of 

upside with not a lot of downside for [his] office or the 

county.” The UCL suit, he contended, was “not going to be 

additional work for [Heryford’s] staff” because the Law 

Firms were “going to handle the litigation part of this.” He 

made similar statements to a local newspaper.

American Bankers filed a civil rights action against 

Heryford in the United States District Court for the Eastern 

District of California, challenging the contingency-fee 

agreement as a violation of its federal due process rights, 

which is the lawsuit now on appeal before us.2 Days after 

that action was filed, Heryford and the Law Firms 

voluntarily dismissed the UCL suit pending in Trinity 

 1 The Law Firms would be “entitled to reasonable payment for 

services rendered” if Heryford decided to terminate their representation.

2 In its original complaint, American Bankers alleged that the 

contingency-fee agreement “violates California’s Government Code” in 

addition to due process, but it later filed an amended complaint that 

asserted only a due process violation.
AM. BANKERS MGMT. V. HERYFORD 7

County Superior Court, only to refile it the next month in the 

Eastern District, where it apparently remains pending.

American Bankers alleged that the contingency-fee 

agreement between Heryford and the Law Firms gave the 

latter “a direct and substantial financial stake in the 

imposition of civil penalties and restitution,” which 

“compromise[d] the integrity and fairness of the 

prosecutorial motive and the public’s faith in the judicial 

process.” American Bankers sought a declaration that the 

arrangement violated due process and an injunction 

“allowing the UCL Suit to proceed . . . but prohibiting the 

District Attorney from employing the Law Firms to 

prosecute the UCL Suit under their existing contingency-fee 

agreement.”

Heryford moved to dismiss, and American Bankers 

moved for summary judgment. The district court considered 

the motions together, granting the former with leave to 

amend and denying the latter as moot. American Bankers 

opted not to amend and asked the district court to enter 

judgment, which it did. This appeal followed.

II.

As a threshold matter, Heryford asks us, under Brillhart 

v. Excess Insurance Co. of America, 316 U.S. 491 (1942), to

exercise our “discretion in determining whether and when to 

entertain an action under the Declaratory Judgment Act,” 

Wilton v. Seven Falls Co., 515 U.S. 277, 282 (1995), and to 

decline to decide this case. In addition to declaratory relief, 

however, American Bankers seeks injunctive relief that is 

independent of, but related to, the requested declaratory 

relief. Brillhart does not apply in such circumstances. See 

Vasquez v. Rackauckas, 734 F.3d 1025, 1040 (9th Cir. 

2013). We therefore exercise the jurisdiction given to us and 
8 AM. BANKERS MGMT. V. HERYFORD

proceed to the merits, consistent with our “virtually 

unflagging obligation” to do so. Id. at 1041 (quoting 

Gilbertson v. Albright, 381 F.3d 965, 982 n.17 (9th Cir. 

2004) (en banc)); see also Colorado River Water 

Conservation Dist. v. United States, 424 U.S. 800, 817 

(1976).

III.

Although civil penalty provisions are common across 

federal and state enforcement regimes, we are the first circuit 

to consider whether government officials may, without 

violating federal due process, retain private counsel on a 

contingency-fee basis to litigate an action for civil 

penalties.3 Despite the lack of federal precedent directly on 

point, our decision in United States ex rel. Kelly v. Boeing 

Co., 9 F.3d 743 (9th Cir. 1993), compels us to reject

American Bankers’ due process claim.

A.

In Kelly, we rejected a due process challenge to 

contingent monetary awards for private plaintiffs bringing 

qui tam actions under the False Claims Act. See 9 F.3d at 

759–60. Originally signed into law during the Civil War by 

 3 A handful of state high courts have touched on this question, and 

none has held that such agreements violate due process. See State v. 

Actavis Pharma, Inc., 167 A.3d 1277, 1284–85 (N.H. 2017), cert. denied 

sub nom. Endo Pharm. Inc. v. New Hampshire, No. 17-633, 2018 WL 

1143897 (U.S. Mar. 5, 2018); State ex rel. Discover Fin. Servs., Inc. v. 

Nibert, 744 S.E.2d 625, 630 n.20 (W. Va. 2013); State v. Lead Indus. 

Ass’n, 951 A.2d 428, 475 (R.I. 2008); Philip Morris Inc. v. Glendening, 

709 A.2d 1230, 1242–44 (Md. 1998).
AM. BANKERS MGMT. V. HERYFORD 9

President Abraham Lincoln,4 the False Claims Act exposes 

those who commit fraud against the federal government to 

treble damages and civil penalties, both of which “are 

essentially punitive in nature.” Vt. Agency of Nat. Res. v. 

United States ex rel. Stevens, 529 U.S. 765, 768–69, 784 

(2000). The statute’s qui tam provisions allow private 

plaintiffs—often called “relators”—to bring a civil action to 

recover damages and civil penalties “for the person and for 

the United States Government,” though any such action is 

“brought in the name of the Government.” Kelly, 9 F.3d at 

745–46 (quoting 31 U.S.C. § 3730(b)(1)). The Government 

may choose to take over the litigation, 31 U.S.C. 

§ 3730(b)(2), but the relator otherwise “ha[s] the right to 

conduct the action” alone, id. § 3730(c)(3).5

If successful, relators conducting actions themselves 

generally receive between twenty-five and thirty percent of 

any recovery in the action.6 See 31 U.S.C. § 3730(d)(2)–(3). 

This means that the dollar amount of qui tam relators’ 

compensation for independently litigating enforcement 

actions is not fixed by law. Rather, it depends on there being 

a recovery—and the compensation increases as the damages 

and civil penalties increase. If there is no recovery, relators 

 4 For this reason, the False Claims Act has been called Lincoln’s 

Law. See United States ex rel. Bennett v. Biotronik, Inc., 876 F.3d 1011, 

1013 n.1 (9th Cir. 2017).

5 In Kelly, the government did not intervene in the litigation. 9 F.3d 

at 745.

6 Successful relators also receive reimbursement for expenses, as 

well as attorney’s fees and costs, which are “awarded against the 

defendant.” 31 U.S.C. § 3730(d)(2).
10 AM. BANKERS MGMT. V. HERYFORD

come out worse than empty handed because they bear the 

costs they incurred during the litigation.

The defendant in Kelly argued that this “promise of a 

reward to relators for successful prosecution create[d] a 

conflict of interest between a relator’s desire for pecuniary 

gain and duty as a prosecutor performing ‘government 

functions’ to seek a just and fair result.” 9 F.3d at 759. We 

disagreed, explaining that prosecutors “need not be entirely 

neutral and detached.” Id. (quoting Marshall v. Jerrico, Inc., 

446 U.S. 238, 248 (1980)) (internal quotation marks 

omitted).

We further explained in Kelly that “the fact that relators 

sue in the name of the United States does not mean that they 

wield governmental powers and therefore owe the same type 

of duty to serve the public interest as government 

prosecutors.” Id. at 760. Instead, the False Claims Act 

“effectively assigns the government’s claims to qui tam 

plaintiffs . . . who then may sue based upon an injury to the 

federal treasury,” but who otherwise function in court like 

private civil litigants. Id. at 748, 760. Relators thus “do not 

have the ‘power to employ the full machinery of the state in 

scrutinizing any given individual.’” Id. at 760 (quoting 

Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 

787, 814 (1987)). Unlike government prosecutors, they 

cannot employ “police investigation and interrogation, 

warrants, immunized informers and agents, authorized 

wiretapping, civil investigatory demands, [or] enhanced 

subpoena power.” Id. (quoting Young, 481 U.S. at 811). 

Rather, they “pursue their claims essentially as private 

plaintiffs, except that the government may displace a relator 

as the party with primary authority for prosecuting an 

action.” Id.
AM. BANKERS MGMT. V. HERYFORD 11

For all these reasons, we held that “qui tam litigation 

does not implicate due process concerns.” Id.

B.

Kelly controls this case. It is true, as American Bankers 

argues, that under the contingency-fee agreement with 

Heryford, the Law Firms have a financial incentive to seek 

as much in civil penalties as possible. But the same is true 

of private relators bringing qui tam actions under the False 

Claims Act. See 31 U.S.C. § 3730(d)(1)–(2). It is also true 

that the UCL suit was brought “in the name of the people of 

the State of California,” Cal. Bus. & Prof. Code § 17206(a), 

so the Law Firms are in a sense appearing as representatives 

of the public, which might lend credibility to the plaintiff’s 

position in the eyes of a factfinder. But qui tam actions under 

the False Claims Act are similarly brought “in the name of 

the [United States] Government.” 31 U.S.C. § 3730(b). And 

it is further true that American Bankers faces civil penalties 

designed to punish and deter. Cal. Bus. & Prof. Code 

§ 17206. But so too do defendants in qui tam actions under 

the False Claims Act. See Stevens, 529 U.S. at 784–85.

American Bankers contends that this case is nevertheless 

distinguishable from Kelly because the Law Firms are not 

acting in the UCL suit “essentially as private plaintiffs,” 

Kelly, 9 F.3d at 760, as would a relator going it alone under 

the False Claims Act. American Bankers argues that, as 

“Special Assistant District Attorneys,” the Law Firms have 

prosecutorial tools that qui tam plaintiffs lack. But the Law 

Firms do not have “the power to employ the full machinery 

of the state,” id. (quoting Young, 481 U.S. at 814), against 

American Bankers. To the contrary, the contingency-fee 

agreement makes clear that the Law Firms’ resources, not 

those of the state, will be brought to bear in the UCL suit. 

The Law Firms must themselves hire any personnel needed 
12 AM. BANKERS MGMT. V. HERYFORD

to litigate the UCL suit. They must also front the costs of 

the litigation.

And although Heryford has prosecutorial powers at his 

disposal, nothing suggests that the Law Firms may exercise 

such powers unilaterally. For example, American Bankers 

maintains that, unlike private litigants, Heryford could use 

administrative subpoenas under California Government 

Code § 11181 to gather evidence “[i]n connection with any 

investigation or action authorized by this article,” which 

under § 11180(a) includes “[a]ll matters relating to the 

business activities and subjects under the jurisdiction of the 

department.” But American Bankers has not alleged that the 

Law Firms can use Heryford’s administrative subpoena 

power without Heryford’s participation. Nor have they 

alleged that there would be any due process concern with 

Heryford’s issuing an administrative subpoena and then 

litigating the UCL suit on his own.7

American Bankers also maintains that, unlike private 

litigants, Heryford could authorize wiretapping or other 

forms of electronic surveillance to obtain evidence in the 

UCL suit. This argument falls flat too. Federal law would 

prevent any such effort involving wiretapping. Title III of 

the Omnibus Crime Control and Safe Streets Act of 1968, 

18 U.S.C. §§ 2510–2521, sets federal limits on wiretapping 

authorization, and states are not permitted to adopt less 

restrictive controls. Villa v. Maricopa Cty., 865 F.3d 1224, 

1230 (9th Cir. 2017). For example, Title III establishes strict 

 7 Moreover, the root of American Bankers’ concern about the 

administrative subpoena power is that it allows subpoenas to issue before

any action is filed. But no subpoenas issued here before the UCL suit 

was filed. The Law Firms were retained to litigate a particular lawsuit

that Heryford had already agreed to bring, and they signed the 

contingency-fee agreement a mere one day before that lawsuit was filed.
AM. BANKERS MGMT. V. HERYFORD 13

limits on who may apply for a wiretap. In a state proceeding, 

an application for “interception of wire, oral, or electronic 

communications” may be submitted to a state court judge 

only by the “principal prosecuting attorney of any State, or 

the principal prosecuting attorney of any political 

subdivision thereof, if such attorney is authorized by a 

statute of that State.” 18 U.S.C. § 2516(2). The principal 

prosecuting attorney must be “personally familiar with all of 

‘the facts and circumstances’ justifying his or her ‘belief that 

an order should be issued.’” Villa, 865 F.3d at 1234 (quoting 

18 U.S.C. § 2518(1)(b)). The principal prosecuting attorney 

may not merely “state that he or she is generally aware of the 

criminal investigation, that he or she authorizes a deputy to 

seek wiretaps, and that his or her deputy has been authorized 

to review and present to the court the evidence in support of 

the wiretaps.” Id. Also, federal law allows wiretapping only 

in criminal investigations, and only in investigations of 

certain crimes at that. See 18 U.S.C. § 2516; see also, e.g.,

United States v. Garcia-Villalba, 585 F.3d 1223, 1227 (9th 

Cir. 2009) (“Title III of the Omnibus Crime Control and Safe 

Streets Act of 1968, 18 U.S.C. §§ 2510–2520, allows law 

enforcement agencies to conduct electronic surveillance of 

suspected criminal activities.”).

California law of course reflects the restrictions required 

by federal law, and in some ways it goes further. When it 

comes to wiretapping, as mandated by federal law California 

law requires a “specified law enforcement official[],” like a 

district attorney, to obtain a court order, which will issue 

only if, among other things, there is “probable cause to 

believe the target was involved” in a statutorily enumerated 

crime. People v. Leon, 150 P.3d 207, 210 (Cal. 2007); see 

also Cal. Penal Code §§ 629.50, 629.52. California law 

additionally prohibits other forms of “electronic recording 

and eavesdropping,” unless done “in the course of criminal 
14 AM. BANKERS MGMT. V. HERYFORD

investigations.” Rattray v. City of National City, 51 F.3d 

793, 797 (9th Cir. 1994); see also Cal. Penal Code § 630 

(“The Legislature recognizes that law enforcement agencies 

have a legitimate need to employ modern listening devices 

and techniques in the investigation of criminal conduct and 

the apprehension of lawbreakers.” (emphasis added)). 

Whereas federal law allows a private person to record 

conversations surreptitiously if one party to the conversation 

consents, see 18 U.S.C. § 2511(2)(d), California requires the 

consent of all parties, unless law enforcement is involved,8

see Cal. Penal Code §§ 632, 633. In short, federal and 

California law together ensure that wiretapping or other 

forms of electronic surveillance will not be used—let alone 

abused—in the UCL suit at issue here.

In sum, nothing meaningfully distinguishes the Law 

Firms’ pursuit of civil penalties under the UCL from private 

relators’ pursuit of civil penalties under the qui tam

provisions of the False Claims Act. Indeed, nothing 

meaningfully distinguishes the situation here from a 

hypothetical one in which California has amended the UCL 

to allow private plaintiffs to pursue civil penalties—and 

Kelly leaves no doubt that California could, consistent with 

federal due process, do just that.9 Because Kelly held that

 8 It might well be true that, if evidence obtained in a criminal 

investigation using some form of electronic recording or eavesdropping 

spawned a parallel civil action, government prosecutors could use such

evidence in the parallel civil action. See, e.g., Telish v. Cal. State Pers. 

Bd., 184 Cal. Rptr. 3d 873, 883 (Ct. App. 2015). But American Bankers 

has not alleged that anything like that happened in the UCL suit at issue 

here, let alone that the Law Firms were involved in (or given free rein to 

conduct) any prior criminal investigation.

9 To the extent one could argue that the contingency-fee agreement 

between Heryford and the Law Firms thwarts California’s decision not 
AM. BANKERS MGMT. V. HERYFORD 15

the qui tam provisions of the False Claims Act do not offend 

due process, and because the contingency-fee arrangement 

here is not meaningfully different from qui tam litigation in 

terms of the incentives it creates or the powers it confers, we 

hold that the contingency-fee arrangement at issue here does 

not offend due process either.10

C.

Our conclusion accords with Supreme Court precedent. 

In Marshall v. Jerrico, Inc., 446 U.S. 238 (1980), the Court 

observed that prosecutors in an adversary system “are 

necessarily permitted to be zealous in their enforcement of 

the law.” Id. at 248. For this reason, the “constitutional 

interests in accurate finding of facts and application of law, 

and in preserving a fair and open process for decision, are 

not to the same degree implicated if it is the prosecutor, and 

not the judge, who is offered an incentive for securing civil 

penalties.” Id. at 248–49. Thus, the “rigid requirements” 

against financial incentives recognized in cases such as 

Tumey v. Ohio, 273 U.S. 510 (1927), and Ward v. Village of 

Monroeville, 409 U.S. 57 (1972), apply only to public 

“officials performing judicial or quasi-judicial functions,” 

 

to write the UCL like Congress did the False Claims Act, that state-law 

question does not affect American Bankers’ federal due process rights, 

which are the sole bases for the claims at issue here.

10 Heryford argues that because he supervises the Law Firms and 

maintains ultimate authority over the litigation, and because he is a 

government attorney with no personal financial stake in the outcome of 

the litigation, there is not even the potential for a due process problem 

here. Our holding does not turn on Heryford’s exercise of control, 

however, because Kelly dictates the result in this case regardless of how 

much actual day-to-day supervision Heryford exerts.
16 AM. BANKERS MGMT. V. HERYFORD

not to public officials “acting in a prosecutorial or plaintifflike capacity.” Marshall, 446 U.S. at 248.

Granted, in Marshall the Supreme Court cautioned that 

it was not suggesting “the Due Process Clause imposes no 

limits on the partisanship of” prosecutors, for they “are also 

public officials” who “must serve the public interest,” and 

that a “scheme injecting a personal interest, financial or 

otherwise, into the enforcement process may bring irrelevant 

or impermissible factors into the prosecutorial decision and 

in some contexts raise serious constitutional questions.” Id.

at 249–50. The Court nevertheless declined to “say with 

precision what limits there may be on a financial or personal 

interest of one who performs a prosecutorial function” 

because, on the facts at issue in Marshall, “the influence 

alleged to impose bias [was] exceptionally remote.” Id. at 

250.

American Bankers argues that, by “giving the Law Firms 

a sizeable contingent stake in the UCL Suit’s outcome,” the 

contingency-fee agreement “directly injects the Law Firms’ 

financial interest into the enforcement process” to an extent 

that might have concerned the Court in Marshall. But the 

same was true in Kelly, where we rejected precisely this 

argument. We emphasized in Kelly that the “contention that 

the Marshall Court ‘strongly suggested’ that the Due Process 

Clause prohibits civil prosecutions by financially interested 

prosecutors is exaggerated, and does not support a finding of 

a due process violation.”11 Kelly, 9 F.3d at 759.

 11 The UCL provides that, “[i]f the action is brought by a district 

attorney or county counsel, the penalty collected shall be paid to the 

treasurer of the county in which the judgment was entered” and that those 

funds “shall be” used “for the enforcement of consumer protection laws.” 
AM. BANKERS MGMT. V. HERYFORD 17

Young v. United States ex rel. Vuitton et Fils S.A., 

481 U.S. 787 (1987), is also of no help to American Bankers. 

In Young, the Supreme Court held that “counsel for a party 

that is the beneficiary of a court order may not be appointed 

as prosecutor in a [criminal] contempt action alleging a 

violation of that order.” Id. at 809. Rather than a financial 

conflict, the problem in Young was that the appointed 

prosecutor was forced “to serve two masters”: his client on 

the one hand and a “public responsibility for the attainment 

of justice” in a criminal proceeding on the other. Id. at 814.

Moreover, the decision was grounded in the Court’s 

“supervisory power,” not due process.12 Young, 481 U.S. at 

790. We distinguished Young on these same grounds in 

Kelly, dismissing as “misplaced” the argument that Young

established a due process bar to financial incentives for 

pursuing civil penalties. See Kelly, 9 F.3d at 759–60. The 

argument is as misplaced now as it was then.

 

Cal. Bus. & Prof. Code § 17206(c). American Bankers does not suggest 

that this arguable “prospect of institutional gain,” Marshall, 446 U.S. at 

250, creates an unconstitutional risk of bias for district attorneys like 

Heryford.

12 Similarly, the California Supreme Court’s decisions in People ex 

rel. Clancy v. Superior Court, 705 P.2d 347 (Cal. 1985), and County of 

Santa Clara v. Superior Court, 235 P.3d 21 (Cal. 2010), were based not 

on federal due process principles, but on “the courts’ general authority 

‘to disqualify counsel when necessary in the furtherance of justice.’” 

Santa Clara, 235 P.3d at 29 (quoting Clancy, 705 P.2d at 350). We 

decline to constitutionalize the state-law test set forth in those decisions. 

Accordingly, American Bankers’ request for judicial notice of “prior 

federal litigation in which Heryford and his amici” argued that “UCL 

suits are akin to criminal enforcement actions”—material that would 

only even potentially be relevant if we were to apply the legal test 

articulated in Clancy and Santa Clara—is DENIED.
18 AM. BANKERS MGMT. V. HERYFORD

IV.

For the foregoing reasons, we AFFIRM.