VAP as Pearson Medical Group Central District ofPharmacy,… v. TDI MANAGED CARE SERVICES, INC., doing business as ECKERD HEALTH SERVICES

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 JERRY BEEMAN AND PHARMACY
SERVICES, INC., doing business as
Beemans Pharmacy; ANTHONY
HUTCHINSON AND ROCIDA INC.,
doing business as Finleys Rexall
Drug; CHARLES MILLER, doing
business as Yucaipai Valley
Pharmacy; JIM MORISOLI AND
AMERICAN SURGICAL PHARMACY
INC., doing business as American
Surgical Pharmacy; BILL PEARSON
AND PEARSON AND HOUSE, on behalf
of themselves and all others No. 07-56692
similarly situated and on behalf of D.C. No.the general public; doing business CV-04-00407-VAP as Pearson Medical Group Central District ofPharmacy, California,Plaintiffs-Appellees, Riverside
v.
ANTHEM PRESCRIPTION
MANAGEMENT, LLC; ARGUS HEALTH
SYSTEMS, INC.; BENESCRIPT
SERVICES, INC.; FFI RX MANAGED
CARE; FIRST HEALTH SERVICES
CORPORATION; MANAGED PHARMACY
BENEFITS, INC., formerly known as
Cardinal Health MPB Inc.;
NATIONAL MEDICAL HEALTH CARD
SYSTEMS, INC.; PHARMACARE
MANAGEMENT SERVICES, INC.; 
6289

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 PRIME THERAPEUTICS; RESTAT
CORPORATION; RX SOLUTIONS, INC.;
TMESYS, INC.; WHP HEALTH INITIATIVES, INC.; MEDE AMERICA
CORP.,
Defendants-Appellants. 
 JERRY BEEMAN AND PHARMACY
SERVICES, INC., doing business as
Beemans Pharmacy; ANTHONY
HUTCHINSON AND ROCIDA INC, doing
business as Finleys Rexall Drug;
CHARLES MILLER, doing business as
Yucaipai Valley Pharmacy; JIM
MORISOLI AND AMERICAN SURGICAL
PHARMACY INC., doing business as
American Surgical Pharmacy; BILL No. 07-56693
PEARSON AND PEARSON AND HOUSE, D.C. No.
on behalf of themselves and all CV-02-01327-VAP
others similarly situated and on Central District of behalf of the general public; doing California,
business as Pearson Medical Riverside
Group Pharmacy, ORDER Plaintiffs-Appellees,
v.
TDI MANAGED CARE SERVICES,
INC., doing business as ECKERD
HEALTH SERVICES; MEDCO HEALTH
SOLUTIONS, INC.; EXPRESS SCRIPTS,
INC.; ADVANCE PCS, Advance PCS
Health, L.P.; RX SOLUTIONS, INC.,
Defendants-Appellants. 
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Filed June 6, 2012
Before: Alex Kozinski, Chief Judge, Harry Pregerson,
Diarmuid F. O’Scannlain, Sidney R. Thomas,
Kim McLane Wardlaw, William A. Fletcher,
Ronald M. Gould, Marsha S. Berzon, Johnnie B. Rawlinson,
Richard R. Clifton and N. Randy Smith, Circuit Judges.
ORDER
This appeal requires us to decide whether a California stat-
ute, Civil Code section 2527, compels speech in violation of
the California Constitution. The statute requires drug claims
processors to generate studies about pharmacy pricing, sum-
marize the results and disseminate the information to their cli-
ents. The three intermediate California appellate courts and
the two state trial courts that have addressed this question
have held that the reporting requirement of section 2527 vio-
lates article I, section 2 of the California Constitution. See
ARP Pharmacy Servs., Inc. v. Gallagher Bassett Servs., Inc.,
138 Cal. App. 4th 1307 (2006); A.A.M. Health Grp., Inc. v.
Argus Health Sys., Inc., No. B183468, 2007 WL 602968 (Cal.
Ct. App. Feb. 28, 2007); Bradley v. First Health Servs. Corp.,
No. B185672, 2007 WL 602969 (Cal. Ct. App. Feb. 28,
2007). Ordinarily, the Erie doctrine, Erie Railroad Co. v.
Tompkins, 304 U.S. 64 (1938), would have required our court
to “follow the decisions of [the] intermediate state courts,”
Stoner v. N.Y. Life Ins. Co., 311 U.S. 464, 467 (1940), but
here the panel majority was convinced that the California
Supreme Court would decide the question differently. The
panel majority concluded that the California Supreme Court
would interpret its free speech clause by relying on federal
judicial interpretations of the First Amendment to the U.S.
Constitution, and conclude that the “statute is constitutional
under the First Amendment.” See Beeman v. Anthem Pre-
scription Mgmt., LLC, 652 F.3d 1085, 1095, reh’g en banc
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granted, 661 F.3d 1199 (9th Cir. 2011). Where there is no
conflict between state courts of appeal, “[d]ecisions of every
division of the District Courts of Appeal are binding upon all
the justice and municipal courts and upon all the superior
courts of this state.” Auto Equity Sales, Inc. v. Superior Court,
57 Cal. 2d 450, 455 (1962). Therefore, were the panel holding
to stand without the California Supreme Court deciding the
question, plaintiffs would be able to sue in federal court to
enforce the state statute, but could not sue in state court to
enforce the very same statute.
To resolve the classic pre-Erie problems of forum shopping
and inconsistent enforcement of state law, a majority of the
active judges of our court voted to rehear this appeal en banc,
for the principal purpose of certifying the question to the Cali-
fornia Supreme Court. Because the constitutionality of a Cali-
fornia legislative enactment under the California
Constitution’s liberty of speech clause will determine the out-
come of this appeal, we respectfully request that the Califor-
nia Supreme Court exercise its discretion to accept and decide
the certified question below.
I. Question Certified
Pursuant to Rule 8.548 of the California Rules of Court, we
request that the California Supreme Court answer the follow-
ing question:
Does California Civil Code section 2527 compel
speech in violation of article I, section 2 of the Cali-
fornia Constitution?
We understand that the Court may reformulate our ques-
tion, and we agree to accept and follow the Court’s decision.
II. Background
The California legislature enacted California Civil Code
sections 2527 and 2528 in 1982 at the behest of the California
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Pharmacists Association. These stand-alone statutory provi-
sions mandate research and reporting requirements for pre-
scription drug claims processors. But unlike disclosure laws,
they do not mandate disclosure to the public; rather, section
2527 requires claims processors to privately generate and pro-
duce information about third parties to their clients. “A ‘pre-
scription drug claims processor,’ [is] any nongovernmental
entity which has a contractual relationship with purchasers of
prepaid or insured prescription drug benefits, and which pro-
cesses, consults, advises on, or otherwise assists in the pro-
cessing of prepaid or insured prescription drug benefit claims
submitted by a licensed California pharmacy or patron there-
of.” Cal. Civ. Code § 2527(b). The statute requires prescrip-
tion drug claims processors to “identif[y] the fees, separate
from ingredient costs, of all, or of a statistically significant
sample, of California pharmacies, for pharmaceutical dispens-
ing services to private consumers,” every two years. Id.
§ 2527(c). It also requires them to transmit that information
“to the chief executive officer or designee, of each client for
whom it performs claims processing services.” Id. § 2527(d).
Section 2528 specifies remedies for section 2527 violations.
Plaintiffs are the owners of five California retail pharma-
cies. Plaintiffs filed class action complaints against defendant
prescription drug claims processors1 in the Central District of
California in 2002 and 2004 (the Beeman cases) alleging,
among other things, that Defendants failed to comply with the
reporting requirements of section 2527. The district court dis-
missed the cases for lack of standing without reaching the
merits. While Plaintiffs’ appeal of the standing issue was
pending in our court, three of the five plaintiffs sued some,
but not all, of the defendants in Los Angeles Superior Court,
again alleging violations of section 2527. The California
Court of Appeal affirmed the trial court’s dismissal of the suit
1Defendants dispute the allegation that they are “prescription drug
claims processors” under section 2527(b), but that issue is not contested
in this appeal.
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in an unpublished opinion and declared section 2527 uncon-
stitutional under article I, section 2 of the California Constitu-
tion. See Bradley, 2007 WL 602969. The Bradley court relied
on ARP Pharmacy, 138 Cal. App. 4th at 1312, in which the
Court of Appeal also found section 2527’s reporting require-
ments unconstitutional. The California Supreme Court denied
review of Bradley on June 13, 2007.
In the Beeman cases, the Ninth Circuit panel concluded that
Plaintiffs had standing, reversed the district court and
remanded for further proceedings. See Beeman v. TDI Man-
aged Care Servs., Inc., 449 F.3d 1035, 1037 (9th Cir. 2006).
On remand, Defendants moved for judgment on the pleadings,
arguing that section 2527 unconstitutionally compels speech
in violation of both the United States and California Constitu-
tions. Defendants based their constitutional arguments on the
decisions in Bradley, ARP, and A.A.M. Each of those Califor-
nia Court of Appeal decisions holds the reporting requirement
of section 2527 unconstitutional under article I, section 2 of
the California Constitution. Denying Defendants’ motions, the
district court concluded that there was “convincing evidence”
that the California Supreme Court would not follow the hold-
ings of the intermediate appellate courts. Defendants then
filed this interlocutory appeal.
The majority of a three-judge panel of this court also
declined to follow the intermediate California court decisions
striking down section 2527 as unconstitutional under Califor-
nia’s free speech clause. Instead, it independently assessed the
constitutionality of the statute under First Amendment princi-
ples, reasoning that the California Supreme Court would
decide the state constitutional question “by relying, primarily,
if not exclusively, on First Amendment precedent.” Beeman,
652 F.3d at 1094. The majority identified two critical errors
in the Court of Appeal decisions that it was convinced the
California Supreme Court would not make: (1) giving insuffi-
cient weight to Rumsfeld v. Forum for Academic and Institu-
tional Rights, Inc., 547 U.S. 47 (2006) (“FAIR“); and (2)
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misinterpreting Riley v. National Federation of the Blind of
North Carolina, Inc., 487 U.S. 781 (1988).
The dissent argued (1) we were bound by the Erie doctrine
to follow the California Court of Appeal decisions; (2) the
California Supreme Court would not necessarily rely upon
First Amendment jurisprudence to interpret its own state’s
constitutional free speech clause, which “enjoys existence and
force independent of the First Amendment,” Gerawan Farm-
ing, Inc. v. Lyons, 24 Cal. 4th 468, 489 (2000), and is
“broader and more protective” than the First Amendment,
L.A. Alliance for Survival v. City of L.A., 22 Cal. 4th 352, 366
(2000); and (3) the California Courts of Appeal had in fact
correctly analyzed First Amendment law and incorporated
those principles into the decisions to strike down section 2527
under the California Constitution.
III. Explanation of Certification
The outcome of this appeal is dictated by the scope of the
free speech clause of the California Constitution as applied to
section 2527. This constitutional question is critical to Cali-
fornia’s interest in consistent enforcement and interpretation
of its constitution and laws in both state and federal courts. It
is only because the panel’s Beeman decision has been with-
drawn that the result that section 2527 is enforceable in fed-
eral, but not state, courts has been avoided. The majority of
the three judge panel acknowledged that this situation, if left
in place, would lead to forum shopping and the inconsistent
enforcement of state law. See Erie, 304 U.S. at 74-78. With-
out the California Supreme Court’s examination of this ques-
tion, the risk remains that the en banc court would follow the
lead of the panel majority to the same end. If, of course, the
California Supreme Court itself were to agree with the panel
majority, then it too would conclude that the statute is consti-
tutional, and its decision would control in California state and
federal courts. The conflicting views of the law in the panel
opinion illustrate the importance of this question in the con-
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text of (1) whether our court is bound to follow the precedent
of ARP Pharmacy, and (2) to what degree, if any, federal First
Amendment precedent affects the constitutionality of section
2527 under California’s free speech clause.
A.
The California Court of Appeal, in a published opinion,
held that “the reporting requirement in Civil Code section
2527 violates the free speech rights of prescription drug
claims processors.” ARP Pharmacy, 138 Cal. App. 4th at
1312. Two unpublished opinions of the Court of Appeal reach
the same conclusion.2 “Where there is no convincing evidence
that the state supreme court would decide differently, a fed-
eral court is obligated to follow the decisions of the state’s
intermediate appellate courts.” Ryman v. Sears, Roebuck &
Co., 505 F.3d 993, 995 (9th Cir. 2007) (quotation, alteration
and citation omitted).
The panel majority (and the district court) found that there
was “convincing evidence” that the California Supreme Court
would find section 2527’s reporting requirement constitu-
tional because it would apply First Amendment freedom of
expression principles to interpret the free speech clause of the
California Constitution. Free speech “[d]ecisions of the
United States Supreme Court . . . are entitled to respectful
consideration and ought to be followed unless persuasive rea-
sons are presented for taking a different course.” Gallo Cattle
Co. v. Kawamura, 159 Cal. App. 4th 948, 959 (2008) (quoting
People v. Teresinki, 30 Cal. 3d 822, 836 (1982)). One persua-
sive reason to deviate from federal precedent is if the “lan-
guage and history” of the free speech clause suggests a
2Although they are not precedent under California Rule of Court 977(a),
we may nonetheless rely on the unpublished opinions in A.A.M. and Brad-
ley to “lend support” to the contention that ARP Pharmacy “accurately
represents California law.” Emp’rs Ins. of Wausau v. Granite State Ins.
Co., 330 F.3d 1214, 1220 n.8 (9th Cir. 2003).
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different result than the First Amendment. Gerawan, 24 Cal.
4th at 511-13 (discussing, in a compelled speech case, the
broad language of California’s free speech clause as a persua-
sive reason not to follow federal First Amendment precedent).
The panel majority did not analyze the language and history
of the free speech clause, or give any weight to the fact that
section 2527 presents a constitutional issue of first impres-
sion. Cf. Gerawan, 24 Cal. 4th at 511 (finding persuasive rea-
sons not to follow federal precedent where “the precise issue
. . . is one of first impression”). Instead, the majority decided
that First Amendment law controlled. This conclusion was
largely based on the ARP Pharmacy court’s discussion of
First Amendment commercial speech cases in its analysis of
section 2527, despite numerous holdings that “[t]he state Con-
stitution’s free speech provision is at least as broad as and in
some ways is broader than the comparable provision of the
federal Constitution’s First Amendment.” Kasky v. Nike, Inc.,
27 Cal. 4th 939, 958-59 (2002) (quotation and citations omit-
ted). The panel majority analyzed section 2527 under First
Amendment precedent, found that it was not a restriction on
speech that merited any level of constitutional scrutiny, and
concluded that the ARP Pharmacy, A.A.M. and Bradley
appeals were all decided incorrectly. Accordingly, the major-
ity held that this court should not follow ARP Pharmacy.
The panel dissent argued that the government-mandated
private speech required by section 2527 is unique and not
squarely within the ambit of any federal or state precedent.
For that reason, federal courts should be wary of constraining
the scope of California’s free speech clause, which “enjoys
existence and force independent of the First Amendment.”
Gerawan, 24 Cal. 4th at 489; L.A. Alliance, 22 Cal. 4th at 366
(“This court, and the California Courts of Appeal, likewise
have indicated that the California liberty of speech clause is
broader and more protective than the free speech clause of the
First Amendment.”); see also, e.g., Best Friends Animal Soc’y
v. Macerich Westside Pavilion Prop. LLC, 193 Cal. App. 4th
168, 174 (2011) (“Even though the First Amendment does not
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protect the right to free speech in a privately owned shopping
mall, the California Constitution does.”). Even assuming that
First Amendment law controls on this California constitu-
tional matter, as explained below, the dissent concluded that
there is no “convincing evidence” that the Supreme Court of
California would uphold the constitutionality of section 2527
under federal precedent.
B.
The panel majority held that the Courts of Appeal, and par-
ticularly the ARP Pharmacy panel, made two errors that the
Supreme Court of California would not repeat. But for those
errors, the majority posited that the California courts, includ-
ing the Supreme Court, would find 2527 valid without engag-
ing in any level of constitutional scrutiny.
1.
The first error identified by the panel majority was the fail-
ure of the ARP Pharmacy court to acknowledge FAIR, 547
U.S. at 47. The ARP Pharmacy court reviewed the constitu-
tionality of section 2527 under the strict scrutiny standard.
138 Cal. App. 4th at 1317. In contrast, the panel majority here
held that under FAIR the compelled disclosure of pricing
information under section 2527 was not subject to First
Amendment analysis at all because it did not chill speech or
affect the content of the purely factual speech at issue.
The dissent argued that the California courts had not erred
in their analysis, because FAIR does not stand for the broad
proposition that compelled statements of fact are immune
from analysis under the First Amendment. See FAIR, 547
U.S. at 62 (“[T]hese compelled statements of fact (‘The U.S.
Army recruiter will meet interested students in Room 123 at
11 a.m.’), like compelled statements of opinion, are subject to
First Amendment scrutiny.”). Furthermore, the law at issue in
FAIR, the Solomon Amendment, did not “dictate the content
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of the speech at all.” Id. The law compelled schools to give
military recruiters the same access to students as other recruit-
ers, and any resulting compelled speech on behalf of military
recruiters was “plainly incidental to the Solomon Amend-
ment’s regulation of conduct.” Id. Here, section 2527 is not
part of a regulatory scheme. Its only purpose is to compel pre-
scription drug claims processors to obtain or undertake studies
about pharmacy pricing, summarize the results and supply
them to their clients every two years. Cal. Civ. Code
§ 2527(c)-(d). Section 2527 is a stand-alone law that does
nothing more than mandate the content and transmission of
speech. The question is whether section 2527 is subject to
some level of constitutional review because it compels speech
in violation of California’s free speech clause and the First
Amendment. See Sorrell v. IMS Health Inc., 131 S. Ct. 2653,
2667 (2011) (“This Court has held that the creation and dis-
semination of information are speech within the meaning of
the First Amendment.”); id. (citing Supreme Court cases hold-
ing that information on beer labels and credit reports is
“speech”).
2.
The panel majority also faulted the ARP Pharmacy court
for determining, based on First Amendment precedent, that
compelled disclosure of statistical information is a content-
based regulation of speech. The ARP Pharmacy court reached
this conclusion by applying Supreme Court precedent identi-
fying compelled “speech that a speaker would not otherwise
make” as a “content-based regulation of speech.” See ARP
Pharmacy, 138 Cal. App. 4th at 1315 (quoting Riley, 487 U.S.
at 795). Because section 2527 requires “transmission of spe-
cific content,” the Court of Appeal held that it was content-
based regulation, and “[t]he fact that it is essentially statistical
information does not make it less entitled to First Amendment
scrutiny.” Id. The majority rejected this interpretation of
Riley, and held that it was constitutionally permissible to com-
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pel factual speech as long as there was no direct chilling
effect on protected speech.
The dissent argued that this conclusion by the majority was
unsupported by any precedent and amounted to an assertion
that the compelled dissemination of factual speech is not sub-
ject to any First Amendment scrutiny. Allowing the govern-
ment free reign to compel speech as long as the speech is
factual would open up almost all speech to regulation—
”Facts, after all, are the beginning point for much of the
speech that is most essential to advance human knowledge
and to conduct human affairs.” See, e.g., Sorrell, 131 S. Ct.
at 2667. No federal or California precedent supports the con-
clusion that compelled, factual, non-commercial speech is
beyond the ambit of California’s constitution.
We respectfully submit that the disagreement between the
three-judge panel majority and district court on one hand, and
the panel dissent and the California Courts of Appeal on the
other hand, highlights the need for an authoritative decision
on this question of California constitutional law.
IV. Administrative Information
The names and addresses of counsel for the parties are
listed in the appendix attached to this order. Cal. R. Ct.
8.548(b)(1). If the Supreme Court of California accepts this
request, Appellants should be deemed the Petitioners. Id.
The Clerk shall file this order and ten copies, along with all
briefs in this appeal with the Supreme Court of California;
provide certificates of service to the parties; and provide addi-
tional record materials if so requested by the Supreme Court
of California. See Cal. R. Ct. 8.548(c) and (d).
All further proceedings in our court are stayed pending
receipt of the Supreme Court of California’s decision. The en
banc panel retains jurisdiction over further proceedings in this
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court. The parties shall notify the Clerk of this court within
one week after the Supreme Court of California accepts or
declines this request, and again within one week after it ren-
ders its decision.
IT IS SO ORDERED.
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APPENDIX
Counsel for Plaintiffs-Appellees
Michael A. Bowse
Browne George Ross LLP
2121 Avenue of the Stars, Suite 2400
Los Angeles, California 90067
Alan M. Mansfield
The Consumer Law Group
10200 Willow Creek Road, Suite 160
San Diego, California 92131
Counsel for Defendant-Appellant Anthem Prescription Man-
agement LLC
Thomas M. Peterson
Molly Moriarty Lane
Morgan Lewis & Bockius LLP
One Market, Spear Street Tower
San Francisco, California 94105
Counsel for Defendant-Appellant Argus Health Systems, Inc.
Benjamin J. Fox
Morrison & Foerster LLP
555 West Fifth Street, Suite 3500
Los Angeles, CA 90013
Michael I. Katz
Thomas Whitelaw & Tyler LLP
18101 Von Karman Ave, Suite 230
Irvine, CA 92612
Counsel for Defendant-Appellant Benescript Services, Inc.
Kent A. Halkett
Musick Peeler & Garrett, LLP
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One Wilshire Boulevard, Suite 2000
Los Angeles, CA 90017
Counsel for Defendant-Appellants FFI Rx Managed Care and
Pharmacare Management Services, Inc.
Jason Levin
Steptoe & Johnson LLP
633 West Fifth Street, Suite 700
Los Angeles, CA 90071
Martin D. Schneiderman
Steptoe & Johnson LLP
1330 Connecticut Avenue, N.W.
Washington, DC 20036
Counsel for Defendant-Appellant First Health Services Corp.
Thomas Makris
Pillsbury Winthrop Shaw Pittman LLP
2600 Capitol Avenue
Sacramento, CA 95816
Brian D. Martin
Pillsbury Winthrop Shaw Pittman LLP
510 West Broadway, Suite 1100
San Diego, CA 92101
Counsel for Defendant-Appellant Managed Pharmacy Bene-
fits, Inc.
David Alverson
SNR Denton US LLP
601 South Figueroa Street, Suite 2500
Los Angeles, CA 90017
Mark L. Brown
Rachel Milazzo
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Stephen M. O’Brien III
SNR Denton US LLP
211 North Broadway, Suite 3000
St. Louis, MO 63102
Counsel for Defendant-Appellant National Medical Health
Card Systems, Inc.
Marina N. Vitek
Roxborough, Pomerance & Nye & Adreani LLP
5820 Canoga Avenue, Suite 250
Woodland Hills, CA 91357
Counsel for Defendant-Appellant Prime Therapeutics
J. Kevin Snyder
Dykema Gossett LLP
333 South Grand Avenue, Suite 2100
Los Angeles, CA 90071
Brian D. Martin
Pillsbury Winthrop Shaw Pittman LLP
510 West Broadway, Suite 1100
San Diego, CA 92101
Counsel for Defendant-Appellant Restat Corp.
Sean M. Sherlock
Snell & Wilmer LLP
600 Anton Boulevard, Suite 1400
Costa Mesa, CA 92626
Counsel for Defendant-Appellant Rx Solutions, Inc.
Robert Arthur Muhlbach
Kirtland & Packard
2361 Rosecrans Avenue, 4th Floor
El Segundo, CA 90245
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Counsel for Defendant-Appellant Tmesys, Inc.
Brett Linden McClure
Margaret Anne Grignon
Reed Smith LLP
355 South Grand Ave, Suite 2900
Los Angeles, CA 90071
Counsel for Defendant-Appellant WHP Health Initiatives, Inc.
Matthew Oster
McDermott Will & Emery
2049 Century Park East, Suite 3800
Los Angeles, CA 90067
Counsel for Defendant-Appellant Mede America Corp.
Neil R. O’Hanlon
Hogan Lovells US LLP
1999 Avenue of the Stars, Suite 1400
Los Angeles, CA 90067
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PRINTED FOR
ADMINISTRATIVE OFFICE—U.S. COURTS
BY THOMSON REUTERS—SAN FRANCISCO
The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2012 Thomson Reuters.

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