Beeman, et al v. Anthem Prescription, et al

Filing

FILED OPINION (BETTY BINNS FLETCHER, STEPHEN R. REINHARDT and KIM MCLANE WARDLAW) AFFIRMED. Judge: BBF Authoring, Judge: KMW Dissenting. FILED AND ENTERED JUDGMENT. [7824449] [07-56692, 07-56693]

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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 similarly situated and on
behalf of the general public; doing
business as Pearson Medical
Group Pharmacy,
Plaintiffs-Appellees,
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.;

9723







No. 07-56692
D.C. No.
CV-04-00407-VAP

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9724 JERRY BEEMAN v. ANTHEM PRESCRIPTION MANAGEMENT

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
PEARSON AND PEARSON AND HOUSE,
on behalf of themselves and all
others similarly situated and on
behalf of the general public; doing
business as Pearson Medical
Group Pharmacy,
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.










No. 07-56693
D.C. No.
CV-02-01327-VAP
OPINION

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JERRY BEEMAN v. ANTHEM PRESCRIPTION MANAGEMENT 9725

Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted
March 8, 2011—Pasadena, California
Filed July 19, 2011
Before: Betty B. Fletcher, Stephen Reinhardt, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge B. Fletcher;
Dissent by Judge Wardlaw

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9728 JERRY BEEMAN v. ANTHEM PRESCRIPTION MANAGEMENT

COUNSEL
Thomas M. Peterson (argued), Morgan Lewis & Bockius,
LLP, San Francisco, California, for the defendants-appellants.
Michael A. Bowse (argued), Browne Woods George LLP,
Los Angeles, California, for the plaintiffs-appellees.

OPINION
B. FLETCHER, Circuit Judge:
In this consolidated appeal, defendants-appellants (collectively “Defendants”) appeal the denial by the district court of

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JERRY BEEMAN v. ANTHEM PRESCRIPTION MANAGEMENT 9729

their motions for judgment on the pleadings. Plaintiffsappellees (collectively “Plaintiffs”) brought this diversity suit
against Defendants to enforce California Civil Code §§ 2527
and 2528. These statutes require Defendants to supply the
results of bi-annual studies of California pharmacies’ retail
drug pricing for private uninsured customers to their clients,
who are third-party payors such as insurance companies and
self-insured employer groups. In their motions for judgment,
Defendants argued that California Civil Code § 2527 (hereinafter “§ 2527”) compels speech in violation of the United
States and California Constitutions. The district court denied
the motions, first reasoning that it was not bound by the state
appellate court decisions striking down the statute under the
California Constitution, and then holding that § 2527 does not
unconstitutionally compel speech. Defendants obtained permission to file an interlocutory appeal. We accordingly have
jurisdiction under 28 U.S.C. § 1292(b).
In this appeal, we must decide (1) whether we are bound by
the Erie doctrine to follow the state appellate court decisions
striking down § 2527, and, if not, (2) whether § 2527 violates
the First Amendment or the California Constitution’s free
speech provision. We conclude that Erie does not require us
to follow the state appellate court decisions, and that § 2527
does not unconstitutionally compel speech under either the
United States or California Constitution. We therefore affirm.
I.
A.

Factual Background

Plaintiffs own five independent retail pharmacies licensed
in California. Defendants are current or former pharmacy benefit managers (“PBMs”). They “contract with third-party payors or health plan administrators such as insurers, HMOs,
governmental entities, and employer groups to facilitate costeffective delivery of prescription drugs to health plan members or other persons to whom the third-party payors provide

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9730 JERRY BEEMAN v. ANTHEM PRESCRIPTION MANAGEMENT

prescription drug benefits.” PBMs assist in the “processing of
prepaid or insured prescription drug benefit claims submitted
by a licensed California pharmacy or patron thereof.” In other
words, PBMs act as intermediaries between pharmacies and
third-party payors such as health insurance companies. Pursuant to this role, PBMs may create networks of retail pharmacies that agree to accept certain reimbursement rates when
they fill prescriptions for health plan members. According to
Defendants, network reimbursements “generally are lower
than what pharmacies would charge uninsured, cash-paying
customers.”
Section 2527, the challenged statute, requires “prescription
drug claims processors”1 to conduct or obtain studies every 24
months identifying the fees California pharmacies charge to
private customers for pharmaceutical dispensing services. Cal.
Civ. Code § 2527(c).2 The claims processors must send the
1

Although Defendants maintain that they are not “prescription drug
claims processors” under the statute, the issue is not contested for purposes of this appeal.
2
California Civil Code § 2527(c) reads:
On or before January 1, 1984, every prescription drug claims processor shall have conducted or obtained the results of a study or
studies which identifies the fees, separate from ingredient costs,
of all, or of a statistically significant sample, of California pharmacies, for pharmaceutical dispensing services to private consumers. The study or studies shall meet reasonable professional
standards of the statistical profession. The determination of the
pharmacy’s fee made for purposes of the study or studies shall be
computed by reviewing a sample of the pharmacy’s usual charges
for a random or other representative sample of commonly prescribed drug products, subtracting the average wholesale price of
drug ingredients, and averaging the resulting fees by dividing the
aggregate of the fees by the number of prescriptions reviewed. A
study report shall include a preface, an explanatory summary of
the results and findings including a comparison of the fees of
California pharmacies by setting forth the mean fee and standard
deviation, the range of fees and fee percentiles (10th, 20th, 30th,
40th, 50th, 60th, 70th, 80th, 90th). This study or these studies
shall be conducted or obtained no less of ten than every 24
months.
Cal. Civ. Code § 2527(c).

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JERRY BEEMAN v. ANTHEM PRESCRIPTION MANAGEMENT 9731

results of these studies to “each client for whom [they] perform[ ] claims processing services,” or, in other words, to
third party payors such as insurers. Id. § 2527(d).3 Section
2528 imposes civil penalties ranging from $1,000 to $10,000
for violations of § 2527. Cal. Civ. Code § 2528.
The legislative history of § 2527 reveals that the original
bill, introduced by the California Pharmacists Association in
1981, required pharmacies to be reimbursed according to their
“customary charges” rather than according to rates “unilaterally set by PBMs.” Beeman v. TDI Managed Care Services,
Inc., 449 F.3d 1035, 1038 (9th Cir. 2006) (“TDI Managed
Care”). The bill was then amended in committee to substitute
the reimbursement requirements with the current PBM reporting requirements. According to legislative staff comments, the
“purpose of this [amended] bill is to require claims processors
to present objective data on the range and percentiles of usual
and customary charges of pharmacists in the hope that at a
time in the future this information will become the basis for
reimbursement.” In recommending that the Governor sign the
bill, California’s Department of Insurance advised that § 2527
“is fairly innocuous in its impact, since it merely requires a
study to be made and distributed to clients, and does not
require any action to be taken on the basis of that study.” The
Department further noted that the statute could “help identify
areas for cost-containment in the future.”
3

California Civil Code § 2527(d) reads:
The study report or reports obtained pursuant to subdivision (c)
shall be transmitted by certified mail by each prescription drug
claims processor to the chief executive officer or designee, of
each client for whom it performs claims processing services.
Consistent with subdivision (c), the processor shall transmit the
study or studies to clients no less often than every 24 months.

Cal. Civ. Code § 2527(d).

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9732 JERRY BEEMAN v. ANTHEM PRESCRIPTION MANAGEMENT

B.

Procedural Background

In 2002, Plaintiffs filed a class action complaint in the Central District of California (Beeman 02) alleging, inter alia,
that Defendants failed to conduct the fee studies mandated by
§ 2527(c). In 2004, Plaintiffs filed a second complaint (Beeman 04) alleging the same violation against a second group of
Defendants. Both cases were assigned to Judge Virginia Phillips, but have not been consolidated. The district court has
diversity jurisdiction over both cases pursuant to 28 U.S.C.
§ 1332.4
The district court granted Defendants’ motions to dismiss
both cases, concluding that Plaintiffs lacked an injury-in-fact
sufficient to confer Article III standing. See TDI Managed
Care, 449 F.3d at 1038. The district court found it unnecessary to reach Defendants’ alternative grounds for seeking dismissal, including that § 2527 violated their right to free
speech under the United States and California Constitutions.
Plaintiffs appealed.
While the appeal of the district court’s standing decision
was pending in this court, three of the five Plaintiffs filed suit
against some but not all of the Beeman 02 and Beeman 04
Defendants in Los Angeles County Superior Court. Like the
federal actions, that suit alleged that Defendants failed to
comply with the requirements of § 2527. In Bradley v. First
Health Services Corp., No. B185672, 2007 WL 602969 (Cal.
4

In their Complaints, Plaintiffs allege violations of only state law.
Defendants aver that § 2527 violates the United States Constitution as an
affirmative defense to Plaintiffs’ allegations. Under the well-pleaded complaint rule, therefore, there is no federal question jurisdiction, and the district court’s jurisdiction is based solely on diversity of citizenship. See
Vaden v. Discover Bank, 129 S. Ct. 1262, 1272 (2009) (“Under the longstanding well-pleaded complaint rule, however, a suit arises under federal
law only when the plaintiff’s statement of his own cause of action shows
that it is based upon federal law.” (internal citations, quotation marks, and
alternations omitted)).

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Ct. App. Feb. 28, 2007), the California Court of Appeal
affirmed the state trial court’s dismissal of the suit, declaring
§ 2527 unconstitutional under article I, section 2 of the California Constitution. The Supreme Court of California denied
review on June 13, 2007.
Meanwhile, in TDI Managed Care, 449 F.3d at 1040, we
overturned the district court’s standing decisions in Beeman
02 and Beeman 04 and remanded the case for further proceedings. We did not reach Defendants’ argument that § 2527 is
unconstitutional because the issue was not fully argued before
the district court. Id.
On remand, the Defendants moved for judgment on the
pleadings in Beeman 02 and Beeman 04, arguing that § 2527
unconstitutionally compels speech in violation of both the
United States and California Constitutions. The Defendants
cited three California state appellate court decisions, including
Bradley, all of which held that § 2527 violates the California
Constitution’s free speech provision. The district court denied
the motions for judgment, reasoning that, under the Erie doctrine, it was not bound by the California appellate court decisions because (1) the single published state court decision
relied entirely on interpretations of federal, not state, law; and
(2) there was persuasive evidence that the Supreme Court of
California would not follow the state appellate courts’ holding. The district court accordingly conducted its own constitutional analysis and held that § 2527 does not compel speech
in violation of the First Amendment or the California Constitution’s free speech provision. The district court then granted
Defendants’ requests to file a petition for interlocutory appeal.
Defendants in Beeman 02 and Beeman 04 successfully petitioned this court for permission to appeal under 28 U.S.C.
§ 1292(b), and the cases were consolidated into the current
appeal.
Since this appeal was filed, the district court has granted in
part Defendants’ motions for summary judgment based on res

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9734 JERRY BEEMAN v. ANTHEM PRESCRIPTION MANAGEMENT

judicata. The court held that the three Plaintiffs who brought
suit in Bradley are precluded by the final judgment in that
case from pursuing their overlapping claims in federal court.
The district court further held, however, that the Plaintiffs
who were not parties in that state court suit are not so precluded, and can continue to pursue their federal action. On
February 25, 2008, we stayed the district court proceedings
pending our decision in this appeal.
II.
“In an interlocutory appeal, we review de novo the district
court’s denial of a motion for judgment on the pleadings.”
Metrophones Telecomm., Inc. v. Global Crossing Telecomm.,
Inc., 423 F.3d 1056, 1063 (9th Cir. 2005). Here, we must
decide whether Defendants’ motions for judgment should
have been granted on the ground that § 2527 violates either
the United States or California Constitution.
A.

Erie Doctrine

[1] We first determine whether, in exercising diversity
jurisdiction over this case, we are bound by the California
state appellate courts’ holdings that § 2527 is unconstitutional
under the California Constitution’s free speech provision. The
seminal case of Erie Railway Co. v. Tomkins, 304 U.S. 64,
71-80 (1938), held that federal courts exercising diversity
jurisdiction must apply as their rules of decision the substantive law of the states. Generally, state law is determined by
statutes or by pronouncements from the state’s highest court.
See West v. American Telegraph & Telephone Co., 311 U.S.
223, 236-37 (1940); Vestar Dev. II, LLC v. General Dynamics
Corp., 249 F.3d 958, 960 (9th Cir. 2001). In cases where a
state supreme court has not addressed the presented issue of
state law, “a federal court is obligated to follow the decisions
of the state’s intermediate appellate courts” unless the court
finds “convincing evidence that the state’s supreme court
likely would not follow [them].” Ryman v. Sears, Roebuck

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and Co., 505 F.3d 993, 994 (9th Cir. 2007) (internal quotation
marks and citations omitted). As the inquiry is one purely of
law, we determine de novo whether Erie requires us to follow
the reasoning of the state appellate courts on the issue of
§ 2527’s constitutionality.
Three California appellate court decisions have concluded
that § 2527 violates the free speech clause of the California
Constitution. The first of these decisions, ARP Pharmacy
Servs. Inc. v. Gallagher Bassett Servs., Inc., 42 Cal. Rptr. 3d
256 (Cal. Ct. App. 2006), is set forth in a published opinion.
The two subsequent decisions—A.A.M. Health Group, Inc. v.
Argus Health Systems, Inc., No. B183468, 2007 WL 602968
(Cal. Ct. App. Feb. 28, 2007) and Bradley—decided on the
same day, relied heavily on ARP and remain unpublished. All
three decisions came out of California’s second appellate district; none of the state’s five other appellate districts has
opined on the issue.
The district court, in concluding that it was not bound by
the state appellate court holdings, considered only the ARP
decision. It declined to consider the two unpublished decisions, citing California Rule of Court 977(a).5 Defendants correctly argue that we are not precluded from considering these
unpublished decisions as a possible reflection of California
law, although they have no precedential value. See Employers
Ins. of Wausau v. Granite State Ins. Co., 330 F.3d 1214, 1220
n.8 (9th Cir. 2003). Therefore, we consider all three California appellate court decisions in our analysis.
5

California Rule of Court 977(a) reads: “[Unpublished opinions] An
opinion of a Court of Appeal or an appellate department of the superior
court that is not certified for publication or ordered published shall not be
cited or relied on by a court or a party in any other action or proceeding
. . . .”

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1.
[2] First, the district court reasoned that it was not bound
by the state appellate court decisions because they “rest
entirely on interpretations of federal, not state law.” It is true
that ARP, the first state appellate court opinion on the issue
of § 2527’s constitutionality, “applied legal principles derived
exclusively from federal constitutional law.” The state court
decisions to which ARP cites either were similarly decided
under the federal Constitution or serve only as duplicate references to analogous federal decisions. Nonetheless, the ultimate conclusion reached in ARP is one of state law, not
federal law. See ARP, 42 Cal. Rptr. 3d at 267 (“We conclude
that the reporting requirement in section 2527 and the related
penalty and enforcement provisions in section 2528 violate
the free speech provision of the California Constitution.”). We
note that the state court did not apparently reach its conclusion under the First Amendment and then simply extend it to
California’s free speech provision; its opinion purports to analyze the statute only under article I, section 2 of the California
Constitution. Accordingly, the current operative law in the
State of California’s second appellate district is that § 2527 is
unconstitutional under the California Constitution.
[3] No authority supports the premise that, when a state
court relies primarily on federal cases to reach a conclusion
under state law, its decision is exempt from Erie. Thus, the
state court’s exclusive reliance upon and application of federal case law does not automatically allow federal courts to
disregard its holding as the substantive law of the state. Pursuant to Erie, ARP’s holding as to § 2527’s constitutionality
under the California Constitution’s free speech provision is
the rule of decision that a federal court sitting in diversity
must apply (subject to the “convincing evidence” exception
discussed below).6
6
A.A.M. Health and Bradley rely heavily on ARP, in addition to federal
case law, in reaching the same conclusion. Like ARP, those decisions
interpret only California’s free speech provision, and not the First Amendment.

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2.
[4] The district court alternatively reasoned that, even if
ARP’s holding was one under state law, “there is convincing
evidence that the Supreme Court of California” would not follow them. We agree. We hold that there is convincing evidence that, in assessing the constitutionality of § 2527, the
Supreme Court of California would construe article I, section
2 of the California Constitution as coextensive with the First
Amendment. Because, as we explain in Part B below, § 2527
does not violate the First Amendment, we believe that the
Supreme Court of California would deem § 2527 constitutional under the state constitution as well. Accordingly, we
conclude that, in this case, the state supreme court would not
follow the holdings of the state appellate courts. Erie does
not, therefore, require us to apply ARP, A.A.M. Health, or
Bradley in deciding whether Defendants’ motions should
have been granted.
California courts generally “follow the United States
Supreme Court in matters concerning free speech doctrine . . .
unless persuasive reasons are presented for taking a different
course.” Gallo Cattle Co. v. Kawamura, 159 Cal. App. 4th
948, 959 (2008) (internal citations and quotation marks omitted). California courts have identified and applied “four categories of potential sources of such persuasive reasons”:
(1) something “in the language or history of the California provision suggests that the issue before us
should be resolved differently than under the federal
Constitution”; (2) “the high court ‘hands down a
decision which limits rights established by earlier
precedent in a manner inconsistent with the spirit of
the earlier opinion’ ”; (3) there are vigorous “dissenting opinions [or] incisive academic criticism of those
decisions”; or (4) following the federal rule would
“overturn established California doctrine affording
greater rights.”

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Id. at 959 (quoting People v. Teresinski, 30 Cal. 3d 822, 836837 (Cal. 1982)); see Gerawan Farming, Inc. v. Lyons, 24
Cal. 4th 468, 510-12 (Cal. 2000) (applying these factors).
Considering these limited categories, we find no reason to
believe that the California Supreme Court would not, in
accordance with its general practice, decide the issue before
us by relying primarily, if not exclusively, on First Amendment precedent. The California Supreme Court has interpreted
free speech protections under the California Constitution to be
“in some ways broader” than those under the First Amendment. Kasky v. Nike, Inc., 27 Cal. 4th 939, 958-59 (Cal.
2002). No statutory language, authoritative decision, or California legal doctrine, however, suggests that, to the extent that
California’s free speech provision can be broader than the
First Amendment, such additional breadth operates in the context of compelled speech. Gerawan, a recent case in which the
California Supreme Court interpreted its Constitution more
expansively than the First Amendment, dealt only with the
narrow issue of compelled subsidies for commercial speech,
rather than compelled speech more broadly.7 As discussed
more fully below, cases dealing with commercial speech and
compelled subsidies are of little relevance here.8 Finally, there
7

Notably, Gerawan came down before United States v. United Foods,
Inc., 533 U.S. 405 (2001), another commercial speech subsidy decision by
the U.S. Supreme Court. United Foods approaches and distinguishes prior
compelled subsidy cases in a similar manner as does Gerawan. Therefore,
the distinction between the United States and California Constitutions,
even on the narrow subject of subsidies for commercial speech, probably
no longer exists after United Foods further clarified the scope of First
Amendment protection in this area.
8
ARP cites to Gerawan only in conjunction with federal precedent and
for the general proposition that, “like the First Amendment[ ],” the California Constitution protects against compelled speech. Gerawan, 24 Cal.
4th at 491; ARP, 42 Cal. Rptr. 3d at 260. ARP does not suggest that Gerawan serves as independent state authority for its actual holding that § 2527
compels speech in a manner that infringes upon the California Constitution. In fact, ARP expressly distinguishes compelled subsidy cases and
concludes, as we do, that they are inapposite. See 42 Cal. Rptr. 3d at 262.

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has been no noteworthy criticism of the First Amendment
compelled speech jurisprudence on the basis of which the
California Supreme Court would choose to depart from those
cases. Thus, we find no persuasive basis on which to assume
that the Supreme Court of California would read the state’s
free speech provision differently or more expansively than the
First Amendment in the compelled speech context.
Indeed, none of the state appellate court decisions opining
on § 2527’s constitutionality even suggests that its holding
turns on a more expansive reading of California’s free speech
provision than of the First Amendment. Instead, these opinions rely exclusively on federal First Amendment doctrine to
reach their conclusions. ARP mentions the U.S. Supreme
Court by name six times, and the key parts of its holdings are
expressly based on its purported adoption of federal precedent. See, e.g., ARP, 138 Cal. App. 4th at 1314-15 (discussing
Johanns v. Livestock Marketing Ass’n, 544 U.S. 550 (2005)
and holding that “[u]nder this definition [of compelled
speech], section 2527, which requires drug claims processors
to obtain and transmit drug processing cost reports to [their]
clients, is properly classified as ‘true’ compelled speech”
(emphasis added)). A.A.M. Health is even more explicit on
this point. A.A.M. Health, 2007 WL 602968, at *3 (assuming
for purposes of analyzing FAIR that “the freedom of speech
in the federal and state constitutions are coextensive”).
Although the state appellate courts’ application of First
Amendment precedent was erroneous, those opinions nonetheless make clear that they are attempting to follow federal
law.
It is evident that the California Supreme Court, like the
state appellate courts, would analyze the issue of § 2527’s
constitutionality under article I, section 2 of the California
Constitution by following First Amendment doctrine. And
because, as discussed below, § 2527 is constitutional under
the First Amendment, we believe that the California Supreme

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Court would reach the same conclusion under its own constitution.
Conversely, we conclude that the Supreme Court of California would reject the holdings of ARP, A.A.M. Health, and
Bradley. Indeed, in analyzing and applying First Amendment
law, the state appellate courts committed several critical
errors. First, the ARP court ignored the Supreme Court’s most
recent case on compelled speech, Rumsfeld v. Forum for Academic and Institutional Rights, 547 U.S. 47 (2006) (“FAIR”),
in its discussion and application of federal law. Because FAIR
clarifies the line between compulsion of speech that does and
does not infringe upon the First Amendment, its analysis is
highly relevant and directly undermines the conclusion
reached in ARP. Second, the ARP court incorrectly interpreted
and applied the federal case law that it did cite. Specifically,
the opinion fails to recognize the key distinctions between the
speech at issue in this case and that in Riley v. National Federation of the Blind of North Carolina, 487 U.S. 781 (1988),a
decision on which ARP heavily relies. The compelled disclosure in Riley had a direct chilling effect on protected First
Amendment speech, and it was on this basis that the disclosure was struck down. No such chilling effect exists here.9
Citing ARP extensively, neither subsequent unpublished
state appellate court decision offers any significant analytic
support for its conclusion. Bradley relies almost exclusively
on ARP, and does little to fill the gaps in that opinion’s reasoning. A.A.M. Health, at least, acknowledges the Supreme
Court’s holding in FAIR. 2007 WL 602968, at *3. Nonetheless, A.A.M. Health fails to examine or appreciate FAIR’s significance, simply concluding without analysis that it does not
apply because “section 2527 is not analogous to a law that
governs a course of conduct.” Id. This purported distinction,
9

The state court’s errors in applying federal law are more fully discussed in our First Amendment analysis in Part B, below.

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however, is based on an overly superficial reading of the
FAIR decision.
Thus, all three state appellate decisions are fatally flawed
in their analysis of federal precedent. These errors provide
further evidence that the Supreme Court of California would
not reach the same result. Cf. Briceno, 555 F.3d at 1080-82
(reasoning that the Supreme Court of California would not
adopt state appellate court decisions interpreting a provision
of the California Penal Code); Dimidowich v. Bell & Howell,
803 F.2d 1473, 1482-83 (9th Cir. 1986) (concluding that the
Supreme Court of California would not follow the decision of
an appellate court because its analysis was “flawed”); Owen
By and Through Owen v. United States, 713 F.2d 1461, 146566 (9th Cir. 1983) (pointing out “defects” in a state appellate
court’s interpretations of a California statute governing settlement agreements, and concluding that the California Supreme
Court would follow this circuit’s interpretation instead).
[5] We are convinced that the California Supreme Court
would, consistent with this opinion, rely primarily on (and
correctly apply) First Amendment jurisprudence when presented with the question of § 2527’s constitutionality under
the California Constitution. And because, as explained
below, the statute is constitutional under the First Amendment, the California Supreme Court would not follow the
holdings of the state appellate courts, but rather would uphold
the statute’s constitutionality. Erie does not, therefore, require
us to apply to this case the state courts’ holding that § 2527
is unconstitutional under the California Constitution.10
10

Defendants and our dissenting colleague place great weight upon the
fact that, after the district court’s decision on the motions for judgment on
the pleadings, the Supreme Court of California denied Plaintiffs’ petition
for review of Bradley. According to Defendants, the Supreme Court of
California’s refusal to reject ARP, A.A.M. Health, and Bradley in favor of
the district court’s constitutional analysis is the best evidence that it would
not decide the constitutionality of § 2527 differently from the California
appellate courts.

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B.

First Amendment

[6] As we are not bound under Erie to follow the state
appellate decisions, we now independently assess the constitutionality of § 2527. Because the result under both the United
States and California Constitutions turns on First Amendment
law, we start our analysis there. It is a well-established principle that freedom of speech not only protects the right to speak,
but also “prohibits the government from telling people what
they must say.” FAIR, 547 U.S. at 61. “The right to speak and
the right to refrain from speaking are complementary components of the broader concept of individual freedom of mind.”
Wooley v. Maynard, 430 U.S. 705, 714 (1977) (internal citation and quotation marks omitted). Here, Defendants argue
that § 2527’s requirements violate their First Amendment
right to be free from compelled speech.
1.
As a preliminary matter, we must decide whether Defendants mount a facial or an as applied challenge to § 2527.
A state’s highest court’s refusal to grant discretionary review of a lower
court decision is not dispositive of whether it agrees with the lower court’s
holding. See Ryman, 505 F.3d at 995 n.2. Indeed, the Supreme Court of
California has instructed that its refusal to grant a hearing in a particular
case is not to be construed as an affirmative approval of an intermediate
appellate court opinion. See, e.g., In re K F Dairies, Inc. & Affiliates, 224
F.3d 922, 925 n.3 (9th Cir. 2000) (“The California Supreme Court’s denial
of our certification request is in no way an expression of its opinion on the
correctness of the judgments in those two cases.” (citing Trope v. Katz, 11
Cal. 4th 274, 287 n.1 (Cal. 1995)). Moreover, in Bradley, three of the
seven California Supreme Court Justices recused themselves from ruling
on the petition for review. Finally, the Supreme Court denied review in
Bradley after the district court in this case refused to follow the holdings
of the state appellate courts. Thus, in declining to review the decision in
Bradley, the Supreme Court declined not only to reverse the lower courts,
but also to affirm them in the face of a contrary federal holding. We therefore decline to give the Supreme Court of California’s refusal to hear
Bradley the significance for which Defendants advocate.

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Plaintiffs argue that Defendants’ argument is based on nothing more than “the words of the statute,” and is therefore a
facial challenge. Defendants respond that, because they raise
the statute’s unconstitutionality in response to Plaintiffs’
attempts to enforce the statute against them, this is an as
applied challenge.
We conclude that this case presents a facial challenge. The
thrust of Defendants’ argument is that neither they nor any
other PBM should ever have to comply with § 2527’s directive because the statute itself unconstitutionally compels
speech. See Doe v. Reed, 130 S. Ct. 2811, 2817 (2010) (noting that the presented challenge to Washington’s election law
was “ ‘facial’ in that it [was] not limited to plaintiffs’ particular case, but challeng[ed] the application of the law more
broadly to all referendum petitions”). Defendants challenge
neither the specific manner in which the statute applies to
them nor a particular instance of the statute’s application. See,
e.g., Reno v. Flores, 507 U.S. 292, 300 (1993) (noting that the
case involved a facial challenge because the respondents were
not challenging the regulation’s application in a particular
instance). Although they bring their challenge in response to
an enforcement action, Defendants are not alleging that the
statute is unconstitutional only as applied in the context of
Plaintiffs’ suit. Rather, if we were to find in Defendants’
favor, we would necessarily hold that § 2527 violates the First
Amendment whenever and against whomever it is enforced.
Thus, in order to succeed in their facial challenge to
§ 2527, Defendants must show that “no set of circumstances
exists under which the [statute] would be valid.” Reno, 507
U.S. at 301 (quoting United States v. Salerno, 481 U.S. 739,
745 (1987)) (internal quotation marks omitted). A facial challenge presents a “heavy” burden, and is the “most difficult
challenge to mount successfully.” Salerno, 481 U.S. at 745.
2.
Moving to the merits of Defendants’ argument, we evaluate
the speech compelled by § 2527 in order to determine whether

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it infringes on the First Amendment. The Supreme Court first
established the Constitution’s prohibition on compelled
speech in West Virginia Bd. of Education v. Barnette, 319
U.S. 624 (1943). There, the Court held unconstitutional a state
law compelling students to salute the flag and recite the
Pledge of Allegiance in schools. Id. at 642. The Court reasoned that “a ceremony so touching matters of opinion and
political attitude may [not] be imposed upon the individual by
official authority under powers committed to any political
organization under our Constitution.” Id. at 636. The Court
again opined on the issue of compelled speech in Wooley, 430
U.S. at 714-15. Striking down a New Hampshire law requiring vehicles to bear license plates with the state motto “Live
Free or Die,” the Court reasoned that “a state measure which
forces an individual . . . to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable” invades the sphere protected by the First
Amendment. Id. Even as broadly construed, therefore, the
holdings of both Barnette and Wooley are limited to compelled speech that affects the content of the speaker’s message
by touching on matters of opinion, or to compulsions that
force the speaker to endorse a particular viewpoint.
In the wake of these seminal decisions, the Court has further developed the doctrine of compelled speech in several
specific contexts. As relevant here, ARP and Defendants rely
heavily on Riley v. National Federation of the Blind of North
Carolina, 487 U.S. 781 (1988), to support their argument that,
although it compels only facts rather than an express opinion,
§ 2527 is subject to the highest First Amendment scrutiny. In
Riley, the Court struck down the North Carolina Charitable
Solicitations Act, which required professional fundraisers to
disclose to potential donors the gross percentage of revenues
retained in prior charitable solicitations. Id. at 784-801. As
was well-established in the Court’s precedent, charitable
solicitations “involve a variety of speech interests . . . that are
within the protection of the First Amendment.” Id. at 788.11
11

As the Supreme Court has held, “charitable appeals for funds . . .
involve a variety of speech interests — communication of information, the

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The Court reasoned that the “predictable result” of the compelled disclosure at issue would be to discourage fundraisers
from “engaging in solicitations that result in an unfavorable
disclosure.” Id. at 800. The Court therefore concluded that
this law was subject to “exacting First Amendment scrutiny”
and that its prophylactic rule applicable to all professional
solicitations was not “narrowly tailored” to the State’s interest
in full disclosure. Id. at 798-801. The Riley Court’s reasoning
was thus consistent with the Court’s earlier precedent applying strict First Amendment scrutiny to statutes regulating
charitable solicitations. See id. at 796.
[7] Notably, then, under Riley, compelled disclosures of
fact, like compelled matters of opinion, may infringe upon the
First Amendment. But the decision there turned on the
Court’s finding that the compelled disclosure at issue had a
direct and chilling effect on speech that was otherwise
cloaked in First Amendment protection—charitable solicitations. Contrary to the Dissent’s analysis, Riley, in deciding to
apply First Amendment scrutiny to the compelled disclosures,
expressly reasons that Wooley and Barnette could not be distinguished on the grounds that they involved compelled opinion as opposed to compelled fact, because “either form of
compulsion burdens protected speech.” Riley, 487 U.S. at
797-98 (emphasis added); see also id. at 798 (noting other
examples of compelled factual disclosures that would “clearly
and substantially burden protected speech”). The burden
placed on protected speech, therefore, is precisely why Riley’s
holding with respect to compelled facts is consistent with the
content-based compulsion of speech doctrine established by
dissemination and propagation of views and ideas, and the advocacy of
causes — that are within the protection of the First Amendment.” Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632 (1980). Such
appeals are inextricably “intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views
on economic, political, or social issues,” because “without solicitation the
flow of such information and advocacy would likely cease.” Id.

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Wooley and Barnette. By chilling protected speech, the compelled disclosure “necessarily alter[ed] the content of the
speech.” Id. at 795. Thus, although it required only the disclosure of factual information, the statute at issue in Riley nonetheless altered the speaker’s message and thereby constituted
a content-based regulation subject to “exacting” First Amendment scrutiny.
Recently, the Court further clarified the line between
content-based compulsion of speech that infringes upon the
First Amendment (as in Barnette and Wooley), and that which
does not. In FAIR, 547 U.S. at 60-65, the Supreme Court
upheld against a First Amendment challenge the constitutionality of the Solomon Amendment, which withholds federal
funding from colleges and universities that deny equal access
to military and nonmilitary recruiters. FAIR recognizes that,
in providing recruiting assistance to the military pursuant to
the statute, schools may be compelled to provide “statements
of fact” in the form of notices or emails. Id. at 61-62. FAIR
recognized that compelled factual statements, like compelled
statements of opinion, may affect the content of the speaker’s
message and thereby trigger First Amendment scrutiny. Id. at
62 (citing Riley, 487 U.S. at 797-98). The Court, however,
declined to apply any such scrutiny, expressly distinguishing
the speech compelled by the Solomon Amendment from that
in Barnette and Wooley. Id. As the Court noted, the Solomon
Amendment does not “dictate the content of speech at all” and
does not involve a “Government-mandated pledge or motto
that the school must endorse.” Id. Its requirements, therefore,
did not warrant constitutional scrutiny.
[8] Consistent with Barnette, Wooley, and Riley, FAIR
makes clear that not all fact-based disclosure requirements are
subject to First Amendment scrutiny.12 Instead, such require12

We readily acknowledge, as both FAIR and our dissenting colleague
point out, that compelled disclosures are not immune from First Amendment scrutiny merely because they involve facts rather than opinions. See

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ments implicate the First Amendment only if they affect the
content of the message or speech by forcing the speaker to
endorse a particular viewpoint or by chilling or burdening a
message that the speaker would otherwise choose to make.
[9] We now apply this precedent to the statute at issue
here. Defendants argue that § 2527 constitutes a contentbased compulsion of speech because it forces PBMs to advocate for pharmacies “in the hope that the insurance companies
will provide greater remuneration to [them].” This argument,
however, significantly mischaracterizes the nature of § 2527’s
requirement. The statute requires PBMs merely to conduct or
obtain the results of studies of the prices charged by pharmacies to their private customers and to report the objective data
revealed by these studies to the third-party health plan managers for whom they process claims. The “compelled speech” at
issue, therefore, is nothing more than the reporting of the
purely statistical facts that these studies yield. The statute
does not in any way regulate the content of the
speech—content is instead dictated solely by the results of the
studies themselves. See id. at 57 (noting that the Solomon
Amendment does not focus on the content of the school’s
recruiting policy, but only on results achieved by the policy).
[10] Like the speech in FAIR, the compelled speech here
does not in any way resemble the type of political messages
FAIR, 547 U.S. at 62. But FAIR makes clear that the inquiry requires an
additional step: whether a compelled factual disclosure requires First
Amendment scrutiny depends on whether it involves anything like the
“Government-mandated pledge or motto” at issue in Barnette and Wooley.
Id. The FAIR Court reasoned that “[c]ompelling a law school that sends
scheduling e-mails for other recruiters to send one for a military recruiter
is simply not the same as forcing a student to pledge allegiance, or forcing
a Jehovah’s Witness to display the motto ‘Live Free or Die,’ and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.”
Id. Our own precedent is entirely consistent with this point. See Envtl. Def.
Ctr., Inc. v. EPA, 344 F.3d 832, 848-51 (9th Cir. 2003).

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at issue in Barnette and Wooley. Nothing in the statutory
scheme forces the PBMs to advocate any position or “endorse” any “pledge or motto” that is contrary to their beliefs.
See FAIR, 547 U.S. at 62. In fact, § 2527 does not require
Defendants to convey any “message” at all; Defendants are
not compelled to convey a viewpoint or perform any subjective analysis of the numbers they report.13 Instead, § 2527
requires only a purely objective, informational exercise, the
results of which PBMs must report to their clients.14
We note that Defendants’ and the state appellate courts’
repeated emphasis on the purpose for which § 2527 was
enacted—in hopes that the reported pricing information could
serve as the basis for future increases in pharmacy reimbursements—is of limited significance. That the legislation was
motivated by political considerations does not mean that the
obligations that it places on the speaker are, in fact, political
or ideological in nature.15 Indeed, nearly every piece of pro13

The statute does require, in addition to the data, “a preface, an explanatory summary of the results and findings including a comparison of the
fees of California pharmacies by setting forth the mean fee and standard
deviation, the range of fees and fee percentiles (10th, 20th, 30th, 40th,
50th, 60th, 70th, 80th, 90th).” Cal. Civ. Code § 2527(c). This analysis,
however, is entirely objective, and does not carry with it a particular message or viewpoint.
14
The Dissent argues that our “interpretation of the First Amendment
contradicts decades of Supreme Court precedent extending constitutional
protection to communications containing truthful information.” But this
assertion misapprehends our position. We agree, of course, that the government may not prohibit speakers from disseminating facts. The cases
that the Dissent cites all make this basic point. For the government to compel factual speech, however, is quite different from its prohibiting factual
speech. This case deals only with the former. See Riley, 487 U.S. at 796
(noting that “[t]here is certainly some difference between compelled
speech and compelled silence” but recognizing that the difference has no
constitutional significance when protected expression is affected).
15
As was noted in ARP, the purpose of the enacted bill may have been
for the benefit not only of pharmacies, but also insurers and insured consumers. See ARP, 42 Cal. Rptr. 3d at 265 (discussing the purpose of

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posed and enacted legislation is generated by some sort of
political motive. Our inquiry, however, is limited to whether
the requirements contained within the enacted text infringe on
the First Amendment.16 We conclude that they do not.
Furthermore, in contrast to the factual reporting requirement in Riley, the pricing study results compelled by § 2527
in no way alter, chill, or otherwise affect a PBM message that
enjoys First Amendment protection. Whereas the law in Riley
threatened to interfere with core protected speech, by “hamper[ing] the legitimate efforts of professional fundraisers to
raise money for the charities they represent,” 487 U.S. at 799,
§ 2527 does not in any way burden a PBM’s ability to say
whatever it chooses about pharmacy reimbursements. Cf.
FAIR, 547 U.S. at 60 (noting that “[l]aw schools remain free
under the statute to express whatever views they may have on
the military’s congressionally mandated employment policy”). If, for example, a PBM wanted actively to engage in
lobbying efforts to directly discourage its clients from increasing reimbursements to pharmacies, its simultaneous compliance with § 2527 would in no way chill or impede this
message. Indeed, it is quite possible that the pricing survey
results could serve to enhance this or any other message
§ 2527 and noting that “if insurers paid the pharmacies dispensing fees
closer to the amount paid by uninsured consumers, pharmacies would be
more likely to continue to contract with insurers, and insured consumers
would be able to have their prescriptions filled at the pharmacies of their
choice”).
16
Indeed, most disclosure requirements, from nutritional facts on packaged foods to the financial details of publicly traded companies, are
designed to remedy information asymmetries and potentially alter individuals’ behavior as they become more well-informed market participants. As
long as those who are compelled to disclose are not required to endorse
the possible result of a better-informed market, just as the law schools in
FAIR were not required to “endorse” the military’s hiring policies, the fact
that legislators may desire the resulting behavior is irrelevant. In such
cases, the disclosing party is required only to provide the raw facts that
others may use to make their own decisions.

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related to pharmacy reimbursements; the content of the
reported data can be known only after the studies are actually
conducted. See TDI Managed Care, 449 F.3d at 1040 (noting
the mere possibility that the information will improve reimbursement rates in the future). Simply put, PBMs remain free,
in reporting survey results under § 2527, to assert any viewpoint they would like. They may encourage action or inaction
on the basis of the statistics, or they may say that the report
is worthless, sent only under government mandate. Because
§ 2527 does not alter or burden speech otherwise protected
under the First Amendment, it is readily distinguishable from
the compelled factual disclosures in Riley. The state appellate
courts failed to appreciate this critical distinction.17
Defendants aver that the reasoning in FAIR is inapposite
because the Solomon Amendment primarily regulates conduct, rather than speech. It is true that, in distinguishing its
compelled speech precedent, the FAIR Court notes that “[t]he
compelled speech to which the [plaintiffs] point is plainly
incidental to the Solomon Amendment’s regulation of conduct.” 547 U.S. at 62. Nonetheless, FAIR analyzes whether
the Solomon Amendment’s compulsion of speech implicates
17

The Supreme Court’s recent decision in Sorrell v. IMS Health Inc.,
___ S.Ct. ___, 2011 WL 2472796 (2011), which struck down a Vermont
law that restricts health care-related entities’ dissemination of information,
offers little guidance in the compelled speech context. Recognizing, nonetheless, that the underlying inquiry in any First Amendment case is
whether the challenged regulation burdens protected speech, we note why
IMS Health is entirely consistent with our holding. In that case, because
the Vermont law restricted the ability of the regulated entities to disseminate and use the information for a particular purpose, the Court concluded
that the statute “imposed a burden based on the content of speech and the
identity of the speaker.” Id. at * 8. As a content-based restriction on
speech, therefore, the law in IMS Health placed a burden on protected
expression and therefore required heightened constitutional scrutiny. Id.
As discussed, § 2527 neither directly restricts nor results in the chilling of
protected speech, and accordingly places no such burden on any expression. The absence of any such burden is what saves § 2527 from the Vermont law’s fate.

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the First Amendment by applying Wooley and Barnette, as a
court would in any compelled speech case. Id. Its observation
that the speech at issue was “incidental” to conduct, though
perhaps further supportive of its conclusion, was evidently not
dispositive as a matter of law.
Moreover, even if this part of FAIR’s reasoning was controlling, it applies similarly to the statute here. The primary
prescription of § 2527 is conduct-based: it requires PBMs to
conduct, or obtain the results of, pharmacy pricing studies.
The statute also requires that the results of these studies, that
is, a document containing the results of the performed conduct, be transmitted to a third party. This “compelled speech,”
or the transmission of the study results, is not the main thrust
of the statute’s requirement—this speech is required only as
the method by which PBMs’ clients are to become informed
of the study mandated by the statute.18 Therefore, even if we
limit FAIR’s holding to statutes that primarily regulate conduct, it remains controlling as to § 2527.19
18

Notably, Defendants do not allege that § 2527 is unconstitutional
because it impermissibly regulates conduct.
19
Consistent with the cases cited by the Dissent, we readily agree that
the transmission of the pricing survey results constitutes speech. The
§ 2527-regulated conduct to which we refer, and that we believe is the
statute’s primarily regulatory effect, is the actual performance of the pricing studies, as distinguished from the transmission of their results. We
fully accept that the transmission, even to the extent that it involves some
conduct, constitutes speech. We also recognize that the performance of
pricing surveys is not completely devoid of speech. Our point is simply
that the § 2527 is effectuated primarily through conduct rather than
through speech, just as, under FAIR, the Solomon Amendment’s equal
access requirement primarily regulates the schools’ conduct, even while
such conduct might inherently contain speech.
Moreover, the Dissent incorrectly asserts that to consider § 2527 “as
conduct-based . . . is akin to considering the laws in Wooley and Miami
Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), as primarily regulating conduct because they require the physical display of a license plate
and the tangible allocation of newspaper column inches.” In Wooley and

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[11] We hold that, under the applicable precedent, § 2527
does not offend the First Amendment by compelling speech
that affects the content of the speaker’s message. Therefore,
we need not apply to it any level of constitutional scrutiny.
See Envtl. Def. Ctr., Inc., v. EPA, 344 F.3d 832, 848-51 (9th
Cir. 2003) (upholding an EPA regulation requiring storm
sewer providers to distribute educational materials to the community about potential pollution, noting that this requirement
involved no “compelled recitation of a message” and no “affirmation of belief” and was therefore a non-ideological public information mandate that did not impermissibly compel
speech or offend the First Amendment).20
3.
The parties debate several other theories under which
§ 2527 could raise First Amendment concerns and thereby
Tornillo, the compulsion of speech was the obvious, central purpose of the
laws in question. Any effect on conduct was simply a means to that end.
Here, by contrast, the PBMs’ transmission of survey results — the compelled speech in question — is the means to the statute’s ultimate,
conduct-based end: the reduction of information costs in the prescription
drug market. The Dissent’s formalistic reasoning misses the point of
FAIR’s reasoning: the question is not whether speech is compelled at all,
but whether that compulsion is the law’s primary purpose or only “incidental” to the conduct-based purpose. FAIR, 547 U.S. at 62.
20
Defendants argue that Environmental Defense Center and cases like
it are inapposite because the disclosure requirements at issue there were
part of a “comprehensive regulatory scheme.” This argument misses the
mark. In Environmental Defense Center, we did note that the disclosure
requirements at issue were “consistent with the overall regulatory program
of the Clean Water Act,” 344 F.3d at 851, but this observation was separate from our First Amendment holding, which was explicitly based on our
conclusion that the regulation did not “compel endorsement of political or
ideological views” or impose “restraint on the freedom of any [regulated
entity] to communicate any message to any audience.” 344 F.3d at 850.
Environmental Defense Center, therefore, serves as applicable precedent,
and the district court correctly relied upon it.

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require constitutional scrutiny. We discuss briefly why each
theory is unavailing or inapplicable here.
a.
First, though they do not clearly raise the argument in their
briefs, Defendants refer to a line of cases that concern forced
accommodation of another’s speech. The First Amendment
limits the government’s power to force individuals to accommodate a third party’s message that would interfere with their
own expression of ideas. FAIR, 547 U.S. at 63. Rather than
looking at whether the challenger himself is being compelled
to speak, forced accommodation cases consider whether a
party is being made involuntarily to accommodate the expressive speech of another.
Forced accommodation was first considered in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 254-58 (1974).
There, the Court held that a statute that required newspapers
to print free of charge political candidates’ replies to critical
editorials violated the First Amendment because it forced
newspapers to disseminate certain views, thereby exacting “a
penalty on the basis of the content of a newspaper,” and
because it violated the newspaper’s right to determine the
content of the paper. Id. at 256-58; see also Pac. Gas & Elec
Co. v. Pub. Util. Comm’n of California, 475 U.S. 1, 9-18
(1986) (holding that a state utilities commission could not
require a utility company to include a third-party newsletter
in its billing envelope because the utility company had “the
right to be free from government restrictions that abridge its
own rights in order to ‘enhance the relative voice’ of its opponents” (internal citation omitted)); Hurley v. Irish-American
Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557,
566-70 (1995) (state law cannot require a parade to include a
group whose message the parade’s organizer does not wish to
send because parades are “a [protected] form of expression,
not just motion”).

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There is a considerable measure of overlap between the
forced accommodation cases and the compelled speech analysis in Riley. Both focus on how the compulsion of speech or
the compelled accommodation of another’s speech effectively
chills or frustrates the speaker’s own ability to express his
views pursuant to his First Amendment rights. See FAIR, 547
U.S. at 63 (“The compelled-speech violation in each of our
prior [forced accommodation] cases . . . resulted from the fact
that the complaining speaker’s own message was affected by
the speech it was forced to accommodate.”).
[12] Here, Defendants argue that § 2527 requires them to
provide their clients with surveys that further the
“compensation-enhancing goals” of the pharmacies, which
are at odds with Defendants’ own desired message to their clients that they provide the most cost-effective administration
of any benefit program. Reports of pharmacy price surveys,
however, “lack the expressive quality of a parade, a newsletter, or the editorial page of a newspaper,” and, more importantly, do not “sufficiently interfere with any message” of the
PBMs. FAIR, 547 U.S. at 64. Should the PBMs choose, they
could report the pricing survey results while simultaneously
or more vigorously advocating that their clients do nothing to
change their pharmacy reimbursement rates or offer only the
most cost-effective rates. In other words, § 2527 in no way
chills or hampers PBMs’ independent ability to speak their
views on the subject of pharmacy reimbursements, even if
these views are at direct odds with those of the pharmacies.
Moreover, even if the reporting of objective data could be
construed as advocacy for increases in pharmacy reimbursements, insurance companies “can appreciate the difference
between” voluntary advocacy and statistical information that
Defendants must convey because they are “legally required to
do so.” Id. at 65. And as in FAIR, there is little chance that
the recipient of a report will mistakenly associate its contents
with the PBM that sends it, when that PBM can so easily dissociate itself. Id.; see also PruneYard Shopping Center v.

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Robins, 447 U.S. 74, 87-88 (1980). Defendants’ forced
accommodation argument is therefore unavailing.
b.
Defendants also argue that the court should invalidate
§ 2527 under United States v. United Foods, Inc., 533 U.S.
405 (2001), in which the Supreme Court struck down a law
mandating that fresh mushroom handlers pay fees used to
fund advertisements promoting mushroom sales. Under
United Foods and its predecessors, the First Amendment prevents the government in some instances from compelling individuals to pay subsidies for speech to which they object. 533
U.S. at 409-16; see also Keller v. State Bar of California, 496
U.S. 1 (1990); Abood v. Detroit Bd. of Educ., 431 U.S. 209
(1977). The line of cases deals only with compelled funding,
rather than compelled speech in the literal sense. See United
Foods, 533 U.S. at 417 (Stevens, J., concurring) (noting that
the regulation in United Foods was distinguishable from that
in Wooley and Barnette because it did not compel speech
itself, but rather the payment of money). United Foods reasons that the mushroom producers, who were not voluntarily
collectivized, were being forced to fund the message to which
they were opposed—that any mushroom is worth consuming
regardless of its brand. 533 U.S. at 411. In striking down the
law, United Foods is careful to distinguish Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457 (1997)—a case that
upheld mandatory advertising contributions—noting that the
requirements at issue there were incidental to a “valid scheme
of economic regulation” in which “the producers were bound
together and required by the statute to market their products
according to cooperative rules” and had therefore already surrendered many individual liberties to a collective entity. 533
U.S. at 412. In the case of the mushroom law, by contrast,
collective advertising was “the principal object of the regulatory scheme.” Id.

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[13] Here, Defendants challenge § 2527 for unconstitutionally compelling speech, not for compelling subsidies for commercial speech. And unlike the regulations at issue in the
United Foods line of cases, § 2527 in no way requires Defendants to subsidize a particular message, let alone one to which
they are principally opposed. While the reported data could,
at some point, serve as the basis for political lobbying efforts,
it does not inherently support one message or agenda over
another. Therefore, to the extent that Defendants are expending resources to comply with § 2527’s requirements, such
expenditures are not analogous to the subsidies at issue in
United Foods.21
c.
The parties devote some portion of their briefs to discussing whether the speech compelled under § 2527 constitutes
“commercial speech.” Compelled “commercial speech” cases
generally involve challenges to disclosure requirements
designed to prevent deceptive consumer advertising. See, e.g.,
Zauderer v. Office of Disciplinary Counsel of Supreme Court
of Ohio, 471 U.S. 626, 638 (1985) (“The States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading . . . .”);
see also United Foods, 533 U.S. at 406 (distinguishing
Zauderer because the regulation at issue was not “necessary
to make voluntary advertisements non-misleading for consumers”). Accordingly, although these types of disclosure
requirements implicate the First Amendment by potentially
chilling the advertiser’s protected commercial speech,
Zauderer, 471 U.S. at 651, courts subject them to a lower
21

Notably, as a matter of state law, the ARP decision expressly distinguishes Johanns v. Livestock Marketing Ass’n, 544 U.S. 550 (2005), a
compelled subsidy case that followed United Foods, and holds that it is
inapposite because “the issue [before the court] is compelled speech by
drug processors, not compelled subsidy of government speech.” 42 Cal.
Rptr. 3d at 262.

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form of constitutional scrutiny resembling rational basis
review. Milavetz, Gallop & Milavetz, P.A. v. United States,
130 S. Ct. 1324, 1339-40 (2010) (noting that the “required
disclosures [regarding debt relief assistance] are intended to
combat the problem of inherently misleading commercial
advertisements” and therefore applying Zauderer scrutiny);
Zauderer, 471 U.S. at 650-51 (disclosure requirements on
advertisers are lawful if “reasonably related to the state’s
interest in preventing deception of consumers”); see also
Pharmaceutical Care Mgmt. Ass’n v. Rowe, 429 F.3d 294,
316 (1st Cir. 2005) (financial disclosure requirements
imposed on PBMs were designed to protect against questionable PBM business practices and, therefore, require only a
Zauderer level of scrutiny akin to rational basis review); Nat’l
Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 113-16 (2d Cir.
2001) (because disclosure of “accurate, factual commercial
information presents little risk that the state is forcing speakers to adopt disagreeable state-sanctioned positions” and furthers the First Amendment protection of “the free flow of
accurate information,” it requires less exacting scrutiny).
Though the disclosures mandated by § 2527 are similar to
commercial disclosures in that they contain factual information related to commerce, Defendants and ARP correctly recognize that the disclosures required by § 2527 do not
constitute commercial speech. ARP, 138 Cal. App. 4th at
1317. The Supreme Court has suggested that “commercial
speech” is not merely “on a commercial subject” or “[p]urely
factual matter of public interest.” Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S.
748, 761-62 (1976). Rather, commercial speech is “expression
related solely to the economic interests of the speaker and its
audience.” Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York, 447 U.S. 557, 561 (1980). In
summarizing federal commercial speech jurisprudence, the
Supreme Court of California has noted that these cases generally involve “a speaker engaged in the sale or hire of products
or services conveying a message to a person or persons likely

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to want, and be willing to pay for, that product or service[,]”
that is, speech related to a commercial transaction. Kasky, 27
Cal. 4th at 960.
[14] Section 2527 neither aims to reduce deceptive advertising to consumers nor compels disclosures in the context of
a commercial transaction. Therefore, its requirements do not
qualify as compelled “commercial speech” subject to a lower
form of scrutiny. This conclusion, however, is of little significance in our analysis. Because the reporting requirements of
§ 2527 do nothing to compel or affect the content of any protected speech, commercial or otherwise, they are not subject
to any form of First Amendment scrutiny.
[15] Pursuant to the foregoing analysis, we conclude that
Defendants are not entitled to a judgment that § 2527 violates
the First Amendment.
C.

Article I, section 2 of the California Constitution

Finally, we must decide whether Defendants’ motion
should have been granted on the ground that the statute violates article I, section 2—the free speech provision—of the
California Constitution. Because the California Supreme
Court has not decided this question or one analogous to it, we
must “predict how the highest state court would decide the
issue,” using any relevant material as guidance. Vestar Dev.,
249 F.3d at 960; see also West, 311 U.S. at 237; Air-Sea Forwarders, Inc. v. Air Asia Co., 880 F.2d 176, 186 (9th Cir.
1989) (the duty of the federal courts in a diversity case is to
“predict how the state high court would resolve” the issue
(internal citation and quotation marks omitted)).
[16] As we have held, the California Supreme Court would
construe the state free speech provision as being coextensive
with the First Amendment with respect to § 2527. Therefore,
in accordance with our First Amendment analysis, we believe
that California’s highest court would hold that § 2527 is con-

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stitutional under the California Constitution’s free speech provision. We therefore hold the same.
We realize that, in so holding, we are creating a degree of
disparity between the federal and state courts that could temporarily result in forum-shopping. Plaintiffs and others similarly situated may now sue in federal court to enforce what we
have held to be a constitutional statute, while their ability to
do so in state court remains subject to question. This is the
unavoidable result of our faithful application of the “convincing evidence” standard under Erie.
As a practical matter, however, this concern is a minor one.
ARP, A.A.M. Health, and Bradley were all decided in California’s second appellate district. This is the only one of California’s six appellate districts in which an erroneous
interpretation of federal precedent on this issue operates as the
current law. The other districts are not bound by that position
and are free to resolve the question de novo. See 9 Witkin,
Cal. Proc. 5th, Appeal, § 498 (2008) (“A decision of a Court
of Appeal is not binding in the Courts of Appeal. One district
or division may refuse to follow a prior decision of a different
district or division . . . .”). We are confident that, in light of
this opinion, California courts will henceforth apply federal
precedent in the area of compelled speech as we have here,
thereby alleviating any forum-shopping incentives.
If the Supreme Court of California eventually considers
§ 2527 and decides to construe the California free speech provision more broadly than the First Amendment in this context,
then we will, of course, be bound by its decision. Our decision
today is based on our analysis of First Amendment compelled
speech precedent, or the body of law upon which every single
judge to have opined on § 2527’s constitutionality has relied.
The California Supreme Court may choose to depart from that
analysis; at this stage, however, we have no basis on which
to believe that it would. Thus, as we are currently charged
with predicting how the Supreme Court of California would

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decide, we must conclude that § 2527 is constitutional under
article I, section 2 of the California Constitution.
III.
[17] Because the statute that Plaintiffs seek to enforce is
constitutional under both the United States and California
Constitutions, the district court’s denial of Defendants’
motions for judgment on the pleadings is hereby
AFFIRMED.

WARDLAW, Circuit Judge, dissenting:
It has been more than seven decades since the Supreme
Court ended the “mischievous” regime of Swift v. Tyson, 41
U.S. 1 (1842), in which federal courts sitting in diversity disregarded state court decisions and independently determined
the meaning of state law. Erie Railroad Co. v. Tompkins, 304
U.S. 64, 74 (1938). The Erie doctrine has long required federal courts to “follow the decisions of intermediate state
courts in the absence of convincing evidence that the highest
court of the state would decide differently.” Stoner v. New
York Life Ins. Co., 311 U.S. 464, 467 (1940); see also Ryman
v. Sears, Roebuck & Co., 505 F.3d 993, 994 (9th Cir. 2007).
Today the panel majority returns us to the era of Swift v.
Tyson, openly acknowledging that its opinion will lead to
forum shopping and the inconsistent enforcement of state law,
the very evils that the Erie Court sought to eradicate. See
Erie, 304 U.S. at 74-78.
The majority disregards not one but three intermediate California appellate decisions holding that California Civil Code
§ 2527 violates Article I, section 2 of the California Constitution. See ARP Pharmacy Servs., Inc. v. Gallagher Bassett
Servs., Inc., 42 Cal. Rptr. 3d 256 (Cal. Ct. App. 2006); A.A.M.
Health Group, Inc. v. Argus Health Sys., Inc., No. B183468,

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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). It does so not because of any
convincing evidence that the state high court would rule differently, but because it has convinced itself that its interpretation of federal constitutional law is correct, that the three
panels of the Second District Court of Appeal got it wrong,
and that the California Supreme Court would side with the
views of two federal judges over the seven state appellate
judges and two state trial judges who have all ruled to the
contrary.
In point of fact, the California Supreme Court denied
review of the last of the appellate court decisions, leaving the
precedent intact. The failure to follow the intermediate state
courts violates the Erie doctrine and offends important principles of federalism and comity. Even worse, however, it is the
majority that fails to correctly apply First Amendment principles to fact-based expression, while endorsing unfettered government authority to compel “objective” speech. Not only am
I not convinced that the California Supreme Court would utilize the majority’s flawed analysis of the federal right of free
speech to interpret the distinct, and more protective, state constitutional right, I find it highly doubtful. Therefore, I respectfully dissent.
I.
We confront in § 2527 an unusual law without clear analogies in existing precedent. The statute requires drug claims
processors to undertake or obtain studies about pharmacy
pricing, summarize the results, and transmit the material to
their clients. § 2527(c)-(d). Essentially, it requires Business A
to speak about Business B to Business C. Unlike a disclosure
law, it does not require that regulated entities divulge information about themselves to the public, but rather that they privately produce information about third parties to their clients.
Cf. Zauderer v. Office of Disciplinary Counsel of Supreme

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Court of Ohio, 471 U.S. 626, 651 (1985). Moreover, § 2527
is a stand-alone law that does nothing more than mandate
speech. It is not ancillary to any comprehensive economic
regulatory scheme. Cf. United States v. United Foods, Inc.,
533 U.S. 405, 411-12 (2001).
As our free speech jurisprudence treats “[e]ach method of
communicating ideas [as] ‘a law unto itself,’ ” so must it
afford unique treatment to each different method of government mandated communication of ideas. Metromedia, Inc. v.
City of San Diego, 453 U.S. 490, 501 (1981) (adding that the
“law must reflect the ‘differing natures, values, abuses and
dangers’ of each method”) (quoting Kovacs v. Cooper, 336
U.S. 77, 97 (1949)); Wooley v. Maynard, 430 U.S. 705, 714
(1977) (“The right to speak and the right to refrain from
speaking are complementary components of the broader concept of ‘individual freedom of mind.’ ”) (quoting Bd. of Educ.
v. Barnette, 319 U.S. 624, 637 (1943)). The parties have not
identified any case that squarely controls the federal or state
constitutional analysis of this unique brand of government
mandated private speech about third parties.
The California Constitution provides that “[e]very person
may freely speak, write and publish his or her sentiments on
all subjects, being responsible for the abuse of this right. A
law may not restrain or abridge liberty of speech or press.”
Cal. Const. art. 1 § 2. This clause “enjoys existence and force
independent of the First Amendment” of the United States
Constitution. Gerawan Farming, Inc. v. Lyons, 12 P.3d 720,
734 (Cal. 2000). Indeed, “the California liberty of speech
clause is broader and more protective than the free speech
clause of the First Amendment.” Los Angeles Alliance for
Survival v. City of Los Angeles, 993 P.2d 334, 342 (Cal.
2000); see also Kasky v. Nike, Inc., 45 P.3d 243, 255 (Cal.
2002). Therefore, we should be especially hesitant to tell the

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California courts how to apply their own Constitution to such
a unique and unprecedented state law mandating speech.1
II.
The majority identifies two “critical errors” in the Court of
Appeal panel decisions that it believes the California Supreme
Court would not make: giving insufficient weight to Rumsfeld
v. Forum for Academic and Institutional Rights, Inc., 547
U.S. 47 (2006) (“FAIR”), and misinterpreting Riley v.
National Federation of the Blind of North Carolina, Inc., 487
U.S. 781 (1988). However, the California Court of Appeal
panels reasonably interpreted both cases, and thus there is no
convincing reason to believe that the California Supreme
Court would rule differently.
In FAIR, the Court rejected a First Amendment challenge
to the Solomon Amendment, a statute restricting federal funding to universities that do not grant military recruiters comparable access to other employers looking to hire at their law
schools. 547 U.S. at 52-53. The Court recognized that the “recruiting assistance provided by the schools often includes elements of speech” as “schools may send e-mails or post notices
on bulletin boards on an employer’s behalf.” Id. at 61-62.
However, the Court concluded that this marginal compulsion
of speech did not violate the constitution. The majority analogizes the pricing reports from § 2527 to the hypothetical e1
The case law relied on by the majority illustrates the dangers of disregarding state court decisions and imposing our own interpretations of legal
gray areas. The first case cited by the majority for the proposition that we
can refuse to follow intermediate state appellate decisions that make “analytical errors” is Briceno v. Scribner, 555 F.3d 1069 (9th Cir. 2009). There
a divided panel of our court declined to follow two California Court of
Appeal decisions interpreting a gang sentencing enhancement statute. Id.
at 1080-82. However, the California Supreme Court subsequently disagreed with the Briceno majority, concluding that the Court of Appeal
panels did not erroneously interpret state law. People v. Albillar, 244 P.3d
1062, 1074-75 (Cal. 2010).

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mails and bulletin board postings in FAIR, and holds that
because of its factual nature, such compelled speech does not
give rise to First Amendment scrutiny. This dramatically
overstates the holding of FAIR, as the Supreme Court specifically acknowledged that “these compelled statements of fact
. . . are subject to First Amendment scrutiny.” Id. at 62.
The FAIR Court did not find a constitutional violation
because the particular factual statements at issue were both
hypothetical and ancillary to a comprehensive regulatory
regime. The Court determined that the e-mails and bulletin
board postings would only be “ ‘compelled’ if, and to the
extent, the school provides such speech for other recruiters,”
and that such compulsion would be “plainly incidental to the
Solomon Amendment’s regulation of conduct.” Id. That
stands in stark contrast to § 2527, where the compulsion is not
contingent on any voluntary conduct by the regulated party,
and where it is not ancillary to any comprehensive regulatory
scheme. Rather, § 2527 is a direct, stand-alone government
mandate of speech. Therefore, the Court of Appeal panels’
treatment of FAIR in this context was not erroneous, and it
does not provide convincing evidence that the California
Supreme Court would rule differently.2
2
The majority’s suggestion that § 2527 may primarily regulate conduct
because it requires the compiling and transmission of a document, is contrary to explicit Supreme Court precedent. See Bartnicki v. Vopper, 532
U.S. 514, 527 (2001) (“It is true that the delivery of a tape recording might
be regarded as conduct, but given that the purpose of such a delivery is
to provide the recipient with the text of recorded statements, it is like the
delivery of a handbill or a pamphlet, and as such, it is the kind of ‘speech’
that the First Amendment protects.”). All government compulsion of
speech requires some conduct incident to the expression. Labeling § 2527
as conduct-based on this ground is akin to considering the laws in Wooley
and Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974) as primarily regulating conduct because they require the physical display of a
license plate and the tangible allocation of newspaper column inches. The
majority’s attempt to distinguish “the actual performance of the pricing
studies” from “the transmission of their results” is unavailing, as both “the

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As for Riley, the Court of Appeal decisions relied on the
case for the proposition that § 2527 warrants constitutional
scrutiny even though it compels “essentially statistical information.” ARP, 42 Cal. Rptr. 3d at 261. The majority argues
that Riley stands for the narrower proposition that mandated
factual speech only warrants scrutiny if the law has a direct
chilling effect on other protected First Amendment speech.
However, this confuses the initial inquiry into whether a regulation even implicates the First Amendment with the separate
inquiry into whether it survives constitutional scrutiny.
The Riley Court first held quite broadly that “mandating
speech that a speaker would not otherwise make necessarily
alters the content of the speech. We therefore consider the Act
as a content-based regulation of speech.” 487 U.S. at 795. The
Court thus established that the compulsion of factual speech
triggered First Amendment analysis before even considering
whether the regulation burdened other protected expression.
Only then did the Riley Court proceed to discuss Wooley and
Barnette, and the broader question of whether the regulation
burdened other protected speech, as part of the separate and
subsequent inquiries into the precise level of scrutiny to apply
and whether the regulation was sufficiently tailored to fit the
state interest. Id. at 797-99.
In other words, the Riley Court held that the particular law
compelling speech failed exacting scrutiny because of its
creation and dissemination of information are speech within the meaning
of the First Amendment.” Sorrell v. IMS Health, 564 U.S. ___, Slip Op.
at 15, 2011 WL 2472796 at *12 (June 23, 2011); see also Brown v. Entm’t
Merch. Ass’n, 564 U.S.___, Slip Op. at 4 n.1, 2011 WL 2518809 at *4
(June 27, 2011) (“Whether government regulation applies to creating, distributing, or consuming speech makes no difference.”). Finally, the majority asserts that § 2527’s compulsion of speech is merely ancillary to the
legislature’s ultimate goal of reducing information costs. However, the
majority contradicts itself, for elsewhere it correctly notes that the statute’s
purpose “is of limited significance.” What matters is the effect of the statute on speech, and just as in Wooley and Tornillo, the sole tangible directive of this regulation is the compulsion of speech.

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chilling effect; it did not hold that a chilling effect is a prerequisite to any First Amendment scrutiny at all. The FAIR Court
made this clear when it cited Riley for the proposition that
“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.” 547 U.S. at 62. The FAIR Court made no mention
of a chill requirement, and indeed it suggested that the potential compulsion of e-mails and bulletin board postings would
draw constitutional scrutiny despite the nature of the content.
Id.
In faulting the California courts for relying on Riley’s holding about factual speech, the majority makes the stunning
assertion that § 2527 is not subject to any First Amendment
scrutiny because it requires only the dissemination of “objective” data, and “Defendants are not compelled to convey a
viewpoint or perform any subjective analysis of the numbers
they report.” No authority is cited for the proposition that
compelled speech must contain subjective analysis or overt
opinion in order to implicate constitutional rights. Indeed, it
is well established that “the First Amendment’s proscription
of compelled speech does not turn on the ideological content
of the message that the speaker is being forced to carry. The
constitutional harm — and what the First Amendment prohibits — is being forced to speak rather than to remain silent.”
Axson-Flynn v. Johnson, 356 F.3d 1277, 1284 n.4 (10th Cir.
2004).
The majority’s narrow interpretation of the First Amendment contradicts decades of Supreme Court precedent extending constitutional protection to communications containing
truthful information. For instance, the majority’s reasoning
fails to account for fact-based news reporting, which is considered protected speech under both the First Amendment and
the California Constitution. See, e.g., Lafayette Morehouse,
Inc. v. Chronicle Publ’g Co., 44 Cal. Rptr. 2d 46, 51 (Cal. Ct.
App. 1995) (explaining that it is a “faulty premise . . . that

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news reporting activity cannot be characterized as ‘free
speech.’ In fact, courts have consistently described such activity as ‘free speech.’ ”) (citing Philadelphia Newspapers, Inc.
v. Hepps, 475 U.S. 767, 775-776 (1986), Joseph Burstyn, Inc.
v. Wilson, 343 U.S. 495, 501 (1952), and Daily Herald Co. v.
Munro, 838 F.2d 380, 384 (9th Cir. 1988)); see also Bartnicki
v. Vopper, 532 U.S. 514, 527 (2001) (“[S]tate action to punish
the publication of truthful information seldom can satisfy constitutional standards.”) (quoting Smith v. Daily Mail Publ’g
Co., 443 U.S. 97, 102 (1979)). Moreover, the Supreme Court
has extended First Amendment protection to numerous forms
of speech that communicate nothing but factual information.
See, e.g., Linmark Associates, Inc. v. Willingboro Township,
431 U.S. 85, 96 (1977) (striking an ordinance prohibiting the
display of “For Sale” and “Sold” signs in front of houses);
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer
Council, Inc., 425 U.S. 748, 770 (1976) (extending First
Amendment protection to the communication of product price
information).
Most recently, in Sorrell v. IMS Health, 564 U.S. ___, 2011
WL 2472796 (June 23, 2011), the Supreme Court applied
heightened First Amendment scrutiny to a Vermont statute
that restricts how certain entities can use medical prescription
information. The Court approvingly quoted the Second Circuit, which had held that the “First Amendment protects even
dry information, devoid of advocacy, political relevance, or
artistic expression.” IMS Health, Slip Op. at 14, 2011 WL
2472796 at *11 (quoting IMS Health Inc. v. Sorrell, 630 F.3d
263, 271-72 (2d Cir. 2010)). The Vermont law in IMS Health
is the flip side of California’s § 2527; they involve similar
speech that Vermont prohibits and California compels.
The majority asserts that the compulsion of factual speech
is “quite different from” the prohibition of such speech, but
in fact, “in the context of protected speech, the difference is
without constitutional significance, for the First Amendment
guarantees ‘freedom of speech,’ a term necessarily compris-

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ing the decision of both what to say and what not to say.”
Riley, 487 U.S. at 796. As the First Amendment protects the
“concomitant” rights to speak and refrain from speaking, it
follows that § 2527 does not avoid all constitutional scrutiny
merely because it mandates factual speech. Wooley, 405 U.S.
at 714. Facts, including statistics, convey messages. See IMS
Health, Slip Op. at 15, 2011 WL 2472796 at *12 (“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.”). The record in this case clearly “suggests that
the governmental purpose in enacting section 2527 was to
urge third party payors, by the use of statistical information,
to compensate pharmacists at a fairer rate for providing pharmaceutical services to their insureds.” ARP, 42 Cal. Rptr. 3d
at 265. The California Court of Appeal panels properly
applied the holding of Riley to this scenario in which the
Defendants complain that § 2527 compels them to disseminate a message with which they disagree. Nothing about these
decisions provides convincing evidence that the California
Supreme Court would decide the question differently.
III.
“[W]here there is no convincing evidence that the state
supreme court would decide differently, a federal court is
obligated to follow the decisions of the state’s intermediate
appellate courts.” Vestar Dev. II, LLC v. Gen. Dynamics
Corp., 249 F.3d 958, 960 (9th Cir. 2001). “This is especially
true when the Supreme Court has refused to review the lower
court’s decision.” See State Farm Fire & Cas. Co. v. Abraio,
874 F.2d 619, 621 (9th Cir. 1989). The majority gives insufficient weight to the California Supreme Court’s denial of
review here, relying on an inapposite citation about the meaning of the denial of a certification request from this court. See
In re K F Dairies, Inc. & Affiliates, 224 F.3d 922, 925 n.3
(9th Cir. 2000). Here, in the context of the Erie doctrine,
denial of review by a state high court is an appropriate and

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important factor to consider. See Tenneco West, Inc. v. Marathon Oil Co., 756 F.2d 769, 771 (9th Cir. 1985).
The district court issued its ruling in this case on May 15,
2007, after the three California Court of Appeal panels had
rendered their judgments that § 2527 violates the state constitution. However, in opting not to afford Erie deference to
those judgments, the district court did not have the benefit of
the California Supreme Court’s decision to deny review of
Bradley, which occurred on June 13, 2007. See Bradley, 2007
Cal. LEXIS 6365. The panel majority is at no such disadvantage, but it still substitutes its own analysis for that of every
state court to consider this matter.3
Two important “aims of the Erie rule [are] discouragement
of forum-shopping and avoidance of inequitable administration of the laws.” Kohlrautz v. Oilmen Participation Corp.,
441 F.3d 827, 831 (9th Cir. 2006) (quoting Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 428 (1996)). As the
majority acknowledges, its opinion will encourage forum
shopping by creating a disparity in the administration of California law. The proffered justification for this unfortunate
result is that the three California Court of Appeal panels made
critical analytical errors in holding that § 2527 violates the
state constitution, but in fact they properly interpreted the relevant state and federal law, and there is no convincing evidence that the California Supreme Court would rule
differently. As this is a classic case requiring deference to
state court judgments about a state law matter, I would
reverse the decision of the district court.

3

That the California Supreme Court denied review in Bradley, leaving
state precedent intact in the face of a contrary federal district court holding, only further indicates that the intermediate state appellate courts correctly applied state law, and certainly does not count as convincing
evidence that the California Supreme Court would uphold the statute.