                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 AMERICAN BANKERS MANAGEMENT                       No. 16-16103
 COMPANY, INC.,
                Plaintiff-Appellant,                 D.C. No.
                                                  2:16-cv-00312-
                      v.                             TLN-EFB

 ERIC L. HERYFORD, District
 Attorney, Trinity County,                            OPINION
                  Defendant-Appellee.



        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 Plaintiff-
Appellant.

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 plaintiff-
like 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.
