Monarch Content Management LLC v. Arizona Department of Gaming ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MONARCH CONTENT MANAGEMENT No. 20-15047
LLC, a Delaware limited liability
company; LAUREL RACING D.C. No.
ASSOCIATION, INC., DBA Laurel 2:19-cv-04928-
Park, a Maryland corporation, JJT
Plaintiffs-Appellants,
v. OPINION
ARIZONA DEPARTMENT OF GAMING,
a political subdivision; TED VOGT,
Director, in his official capacity;
RUDY CASILLAS, Deputy Director
and Racing Division Director, in his
official capacity; ARIZONA RACING
COMMISSION, a subordinate political
entity; RORY S. GOREE, Chairman, in
his official capacity; TOM LAWLESS,
Vice Chairman, in his official
capacity; J.C. MCCLINTOCK,
Commissioner, in his official
capacity; CHUCK COOLIDGE,
Commissioner, in his official
capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
John Joseph Tuchi, District Judge, Presiding
2 MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING
Argued and Submitted July 17, 2020
San Francisco, California
Filed August 20, 2020
Before: A. Wallace Tashima and Andrew D. Hurwitz,
Circuit Judges, and Consuelo B. Marshall, * District Judge.
Opinion by Judge Hurwitz
SUMMARY **
Civil Rights
The panel affirmed the district court’s denial of a
preliminary injunction in an action challenging Arizona
Revised Statute § 5-112(U), which requires, among other
things, that any simulcast of live horseracing into Arizona
that originates outside the state “must be offered to each
commercial live-racing permittee … and additional
wagering facility” in the state.
The panel held that plaintiffs, Monarch Content
Management, a simulcast purchaser and sales agent for
racetracks, and Laurel Park Racing Association, a Maryland
racetrack whose races Monarch simulcasts, had not shown a
likelihood of success on the merits of their claims.
*
The Honorable Consuelo B. Marshall, United States District Judge
for the Central District of California, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING 3
The panel first held that that the Interstate Horse Racing
Act of 1978, 15 U.S.C. §§ 3001-3007 (“IHA”), pertaining to
interstate horserace wagering at off-track sites, did not
preempt § 5-112(U). The panel determined that on their
faces, the IHA and the Arizona statute regulated different
actors and activities. The IHA did not address how the states
can regulate simulcasts, and the Arizona statute did not
address Laurel Park’s statutory right to consent before
interstate wagering on its races could be conducted. Thus, it
was not facially impossible to comply with both laws. The
panel further rejected plaintiffs’ argument that A.R.S. § 5-
112(U), frustrates the intent of the IHA.
The panel rejected plaintiffs’ argument that A.R.S. § 5-
112(U) is an unconstitutional regulation on commercial
speech and a forbidden content-based restriction. The panel
assumed arguendo that Monarch’s simulcasts were
expressive in certain respects. The panel held, however, that
the Arizona statute did not regulate that expressive content,
but rather only Monarch’s conduct—the “offer” to sell
simulcasts to live-racing permittees and off-track betting
sites. The statute’s requirement that Monarch must make
simulcasts available on equal terms was plainly incidental to
the statute’s focus on Monarch’s non-First Amendment
business practices.
The panel rejected plaintiffs’ Fourteenth Amendment
Due Process challenge. The panel held that because A.R.S.
§ 5-112(U) did not regulate speech, a less strict vagueness
test applied. The panel noted that under the statute,
Monarch’s wish to offer its simulcasts to some live-racing
permittees and off-track betting sites in Arizona, but not to
others was plainly proscribed. The panel further found
A.R.S. § 5-112(U)’s language prohibiting “any
4 MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING
anticompetitive or deceptive practice” to be constitutionally
sufficient.
The panel held that the statute did not violate the
Dormant Commerce Clause. The panel stated that Arizona
treats out-of-state simulcast providers exactly the same as in-
state providers. The statute does not regulate
extraterritorially; it merely sets the terms of doing business
if Monarch chooses to provide simulcasts in the state.
Finally, the panel held that the statute did not give rise to
a Contract Clause claim. The panel concluded that nothing
on the face of the Arizona statute affects whatever rights
Monarch may have to terminate its contract with Turf
Paradise, a live-racing permittee in Arizona; the statute
regulates only the offering of simulcasts, not termination of
contracts.
COUNSEL
Scot L. Claus (argued), Vail C. Cloar, and Holly M. Zoe,
Phoenix, Arizona, for Plaintiffs-Appellants.
Patrick Irvine (argued) and Charles Markle, Fennemore
Craig P.C., Phoenix, Arizona; Mark Brnovich, Attorney
General; Kelly M. Wagner, Assistant Attorney General;
Office of the Attorney General, Phoenix, Arizona; for
Defendants-Appellees.
MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING 5
OPINION
HURWITZ, Circuit Judge:
The central issue in this case is whether the Interstate
Horse Racing Act of 1978, 15 U.S.C. §§ 3001–3007
(“IHA”), preempts Arizona Revised Statutes (“A.R.S.”) § 5-
112(U), a statute governing “simulcasts” of horse races. We
conclude that it does not, and that the plaintiffs’ other facial
constitutional attacks on the Arizona law also fail. We
therefore affirm the district court’s denial of the plaintiffs’
motion for a preliminary injunction.
I.
A. The Arizona Statutory Scheme
Arizona law generally prohibits gambling, with several
exceptions. See A.R.S. §§ 5-112, 13-3305(A), 13-3301(6).
“Pari-mutuel wagering,” a system that distributes among
successful bettors “the total amount wagered less the amount
withheld under state law,” is the only legal form of gambling
on horseracing. See id. § 5-101(23). That wagering can
occur only at the live-racing track of a permittee, or at
licensed off-track betting sites (“OTBs”), id. § 5-112(A),
(H), sometimes referred to as “additional wagering
facilities” or “teletracks,” see id. § 5-101(1); Ariz. Admin.
Code § R19-2-401(12). 1 OTB wagering typically involves
a “simulcast,” defined in Arizona law in pertinent part as
“the telecast shown within this state of live audio and visual
signals of horse [races] conducted at an out-of-state track or
1
A bettor can wager “within Arizona on a racing program conducted
at an authorized track within Arizona regardless of whether the racing
program is telecast to the teletrack location.” Ariz. Admin. Code § R19-
2-401(14) (defining “teletrack wagering”).
6 MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING
the telecast shown outside this state of live audio and visual
signals of horse [races] originating within this state for the
purpose of pari-mutuel wagering.” A.R.S. § 5-101(26). But,
no provision of Arizona law expressly conditions OTB
wagering on the use of a simulcast. Simulcasts are regulated
by the Arizona Department of Gaming and the Arizona
Racing Commission. See id. §§ 5-107, 5-108; Ariz. Downs
v. Ariz. Horsemen’s Found., 637 P.2d 1053, 1056-57, 1060
(Ariz. 1981); see also Ariz. Admin. Code § R19-2-419.
The Arizona statute at issue in this case requires that
“[a]ny simulcast of live racing into this state that originates
from outside” Arizona “must be offered to each commercial
live-racing permittee . . . and additional wagering facility” in
the state. A.R.S. § 5-112(U). The statute also prohibits a
“provider of simulcasts originating from outside” Arizona
from engaging in “any anticompetitive or deceptive
practice.” Id. The same requirements and proscriptions
apply to providers of simulcasts originating from the
racetracks of Arizona live-racing permittees. 2 Id. § 5-
112(T).
B. The Interstate Horse Racing Act
In the IHA, Congress stressed that “the States should
have the primary responsibility for determining what forms
of gambling may legally take place within their borders.”
15 U.S.C. § 3001(a)(1). However, “in the limited area of
interstate off-track wagering on horseraces,” Congress found
“a need for Federal action to ensure States will continue to
cooperate with one another in the acceptance of legal
2
Other states have similar laws. See Mich. Comp. Laws § 431.318;
Idaho Code § 54-2512(12)(a)–(c); Ohio Rev. Code Ann.
§ 3769.089(B)(1)(a), (D); Fla. Stat. § 550.6305(9)(g)(1).
MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING 7
interstate wagers.” Id. § 3001(a)(3); see id. § 3001(b)
(stating legislative policy “to regulate interstate commerce
with respect to wagering on horseracing, in order to further
the horseracing and legal off-track betting industries”). To
that end, the IHA provides that an “interstate off-track wager
may be accepted by an off-track betting system only if
consent is obtained from” four parties: the host racing
association, the relevant horsemen’s group in the host state,
the host racing commission, and the racing commission in
the state where the off-track wager is placed. 3 Id.
§ 3004(a)(1)–(3). Interstate off-track wagering is otherwise
prohibited by federal law. Id. § 3003.
C. Facts
Monarch Content Management is a simulcast purchaser
and sales agent for racetracks. Monarch has a “Simulcast
Wagering Contract” with TP Racing (“Turf Paradise”), one
of three live-racing permittees in Arizona. Monarch
provides simulcasts to Turf Paradise’s live-racing track and
OTBs, access to the betting pools of out-of-state racetracks
for the races broadcast, and betting information. Monarch’s
simulcasts include jockey, horse, and trainer information,
interviews, analysis, and graphics; Monarch facilitates this
content and controls how races are bundled for distribution.
3
An “off-track betting office” is “any location within an off-track
State at which off-track wagers are accepted,” and an “off-track betting
system” is “any group which is in the business of accepting wagers on
horseraces at locations other than the place where the horserace is run,
which business is conducted by the State or licensed or otherwise
permitted by State law.” 15 U.S.C. § 3002(7), (8); see also id. § 3002(9)
(defining “host racing association”), (10) (“host racing commission”),
(11) (“off-track racing commission”), (12) (“horsemen’s group”).
8 MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING
Laurel Park Racing Association is a Maryland racetrack,
whose races Monarch simulcasts.
Arizona Downs also runs a live-racing track and OTBs.
In 2018, Monarch agreed to provide simulcasts at Arizona
Downs’ live racetrack, but declined to provide simulcasts to
Arizona Downs’ OTBs. Laurel Park followed suit and
refused to allow Arizona Downs’ OTBs to simulcast its
races, or to accept pari-mutuel wagers from Arizona Downs’
OTBs. Monarch and Laurel Park claim that “the location
and character” of Arizona Downs’ OTBs would dilute “the
Monarch wagering product” and compromise their business
interests. 4
After A.R.S. § 5-112(U) was enacted in 2019, Monarch
and Laurel Park sued the Arizona Department of Gaming,
the Arizona Racing Commission, and various state officials,
alleging that the statute is preempted by the IHA and facially
violates the First and Fourteenth Amendments, the dormant
Commerce Clause, and the Contracts Clause. 5 The plaintiffs
sought a temporary restraining order against the statute’s
enforcement; the district court converted that application
into a motion for a preliminary injunction and denied it,
finding that the plaintiffs were unlikely to succeed on the
merits.
4
Like other racetracks, Arizona Downs relies heavily on its OTBs
to generate revenue. Monarch’s refusal to provide its content deprives
Arizona Downs’ OTBs of about 42% of the Arizona market for interstate
horseracing simulcasts.
5
Plaintiffs also alleged that A.R.S. § 5-112(U) violates the Arizona
Constitution, but do not challenge the district court’s rejection of that
claim in this appeal.
MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING 9
II.
We have jurisdiction over this appeal of the district
court’s denial of a preliminary injunction under 28 U.S.C.
§ 1292 and review for abuse of discretion. Cuviello v. City
of Vallejo, 944 F.3d 816, 825–26 (9th Cir. 2019). “A
plaintiff seeking a preliminary injunction must establish that
he is likely to succeed on the merits, likely to suffer
irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is
in the public interest.” Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 20 (2008).
III.
A. Preemption
There is no express preemption provision in the IHA.
See 15 U.S.C. §§ 3001–3007. But, under the Supremacy
Clause, U.S. Const. art. VI, cl. 2., even if a federal law lacks
an express provision for preemption, state law is preempted
“to the extent of any conflict with a federal statute.” Crosby
v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000)
(cleaned up). The plaintiffs assert that the Arizona statute is
preempted because it conflicts with the IHA. “Conflict
preemption” is present either “where it is impossible for a
private party to comply with both state and federal law,” or
“where under the circumstances of a particular case, the
challenged state law stands as an obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress.” Id. at 372–73 (cleaned up); see also
Nation v. City of Glendale, 804 F.3d 1292, 1297 (9th Cir.
2015) (“Conflict preemption consists of impossibility and
obstacle preemption.”). We must be “cautious” when “a
federal statute is urged to conflict with state law regulations
within the traditional scope of the state’s police powers,” and
10 MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING
therefore “start with the assumption that a state’s historic
police powers will not be superseded absent a ‘clear and
manifest purpose of Congress.’” Chae v. SLM Corp.,
593 F.3d 936, 944 (9th Cir. 2010) (quoting Wyeth v. Levine,
555 U.S. 555, 565 (2009)).
1.
On their faces, the IHA and the Arizona statute regulate
different actors and activities. Under federal law, before an
Arizona “off-track betting system” can accept an “interstate
off-track wager” on Laurel Park’s races, Laurel Park must
consent as the “host racing association,” and the Arizona
Racing Commission must consent as the “off-track racing
commission.” 15 U.S.C. §§ 3002(9), 3004(a)(1), (3). Under
state law, if Monarch wishes to simulcast (provide a live feed
of racing to a live-racing permittee or OTB for purposes of
pari-mutuel wagering) in Arizona, it must offer its signals to
all live-racing permittees and OTBs in the state. A.R.S. § 5-
112(U). The IHA does not address how the states can
regulate simulcasts, and the Arizona statute does not address
Laurel Park’s statutory right to consent before interstate
wagering on its races can be conducted. Thus, it is not
facially “impossible” to comply with both laws. See Crosby,
530 U.S. at 372–73.
The plaintiffs cite their agreement to make common
business decisions and assert that A.R.S. § 5-112(U)
requires Monarch to provide access to wagering on Laurel
Park’s races without Laurel Park’s consent. It does not. The
Arizona statute simply requires Monarch to offer “[a]ny
simulcast of live racing” to each live-racing permittee and
OTB in the state if it offers that simulcast to anyone in
Arizona—it says nothing about providing access to the pari-
mutuel betting pools for Laurel Park’s races. See A.R.S. § 5-
112(U). Although simulcasts are offered “for the purpose of
MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING 11
pari-mutuel wagering,” id. § 5-101(26), only Laurel Park
can consent to wagering on its races, not Monarch, see
15 U.S.C. § 3004(a)(1)–(3). Nothing makes it facially
“impossible” for the plaintiffs to comply with both statutes.
See Crosby, 530 U.S. at 372–73; see also Gulfstream Park
Racing Ass’n, Inc. v. Tampa Bay Downs, Inc., 479 F.3d
1310, 1312 n.3 (11th Cir. 2007) (per curiam) (agreeing with
Florida Supreme Court that the IHA does not preempt the
state’s requirement that permitholders accepting wagers on
simulcasts make those simulcasts available to other eligible
permitholders (citing Gulfstream Park Racing Ass’n, Inc. v.
Tampa Bay Downs, Inc., 948 So. 2d 599, 607–08 (Fla.
2006))).
2.
The plaintiffs also argue that A.R.S. § 5-112(U)
frustrates the intent of the IHA because the federal act
contemplates that the host racing association can consent to
wagering on “an off-track betting system” basis, 15 U.S.C.
§ 3004(a), while the State asserts that it will withhold
consent for wagering on all Laurel Park races that are
simulcast into Arizona if those signals are not offered
equally to all Arizona live-racing permittees and OTBs.
“We discern congressional objectives by ‘examining the
federal statute as a whole and identifying its purpose and
intended effects.’” Chae, 593 F.3d at 943 (quoting Crosby,
530 U.S. at 373). Put differently, we “consider carefully
what Congress was trying to accomplish.” Id. at 944; see
Chamber of Com. of U.S. v. Whiting, 563 U.S. 582, 607
(2011) (“[A] high threshold must be met if a state law is to
be preempted for conflicting with the purposes of a federal
Act.” (cleaned up)). We start from the premise that the IHA
pointedly left intact the states’ “primary responsibility for
determining what forms of gambling may legally take place
12 MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING
within their borders,” thus preserving their traditional police
powers. 15 U.S.C. § 3001(a)(1); see Artichoke Joe’s Cal.
Grand Casino v. Norton, 353 F.3d 712, 737 (9th Cir. 2003)
(noting that “the regulation of gambling lies at the heart of
the state’s police power” (cleaned up)). However, for the
“limited” purpose of ensuring the states’ cooperation in the
acceptance of interstate wagers, Congress allowed interstate
off-track horserace wagering only upon the obtaining of the
four statutory consents. 15 U.S.C. §§ 3001(a)(3), (b),
3004(a)(1)–(3).
In arguing that the Arizona statute conflicts with the
intent of the IHA, Monarch and Laurel Park rely on
Horseman’s Benevolent & Protective Association v.
DeWine, 666 F.3d 997 (6th Cir. 2012). That case involved
an Ohio statute providing that the host horsemen’s
organization could not “unreasonably” withhold its consent
to interstate wagers; if the consent were withheld “without
substantial merit,” the Ohio racing commission could
authorize wagering on out-of-state races with only the
consent of the host racing association. Id. at 1000 (citing
Ohio Rev. Code Ann. § 3769.089(G)). The Sixth Circuit
noted that the “horsemen’s veto is an integral part of the
Act,” which the Ohio statute would “negate.” Id. at 1000–
01. Because the Ohio law allowed the “host racing
association to consent to interstate off-track betting in the
absence of a written agreement with the horsemen’s group,”
it directly conflicted with the IHA. Id. at 1000.
The Sixth Circuit case provides no succor to the
plaintiffs here. As that court recognized, the IHA grants the
host racing association, the host horsemen’s group, the host
racing commission, and the off-track racing commission
each an absolute veto over interstate off-track wagering. Id.at 1000–01; see 15 U.S.C. § 3004(a)(1)–(3). Although “[a]n
MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING 13
interstate off-track wager may be accepted by an off-track
betting system” with the consent of those four parties,
15 U.S.C. § 3004(a)(1)–(3), none is ever required to consent.
Even if, as the State contends, the Arizona Racing
Commission will choose to withhold its consent to interstate
wagering unless simulcasts of the affected races are made
equally available to all live-racing permittees and OTBs, the
IHA contains no “clear and manifest purpose” to limit the
Commission’s veto. 6 Arizona v. United States, 567 U.S.
387, 400 (2012) (cleaned up); see also Chae, 593 F.3d
at 944; 15 U.S.C. § 3001(a)(1), (3). Regardless of the
Arizona statute, Laurel Park retains all rights granted by the
IHA because no wagers can be placed on its races in Arizona
over its objection. 7 See Horseman’s Benevolent &
Protective Ass’n, 666 F.3d at 1000–01.
B. First Amendment
The plaintiffs argue that A.R.S. § 5-112(U) is an
unconstitutional regulation on commercial speech and a
forbidden content-based restriction. The arguments fail.
Our inquiry begins, and ultimately ends, with whether
A.R.S. § 5-112(U) regulates speech. See Expressions Hair
Design v. Schneiderman, 137 S. Ct. 1144, 1150 (2017); see
6
We note that such a construction of the Arizona statute is not
required by the plain text, and no Commission decision is before us. See
Puente Ariz. v. Arpaio, 821 F.3d 1098, 1104, 1107–08 (9th Cir. 2016).
7
The plaintiffs argue for the first time on appeal that A.R.S. § 5-
112(U) conflicts with the requirement that “any off-track betting office
shall obtain the approval of[] all currently operating tracks within
60 miles,” 15 U.S.C. § 3004(b)(1)(A). We decline to address this issue
in the first instance. See Davis v. Nordstrom, 755 F.3d 1089, 1094–95
(9th Cir. 2014).
14 MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING
also Italian Colors Rest. v. Becerra, 878 F.3d 1165, 1175
(9th Cir. 2018). If a “law’s effect on speech [is] only
incidental to its primary effect on conduct,” there is no
“abridgment of freedom of speech . . . to make a course of
conduct illegal merely because the conduct was in part
initiated, evidenced, or carried out by means of language,
either spoken, written, or printed.” Expressions Hair
Design, 137 S. Ct. at 1151 (second quoting Rumsfeld v.
Forum for Acad. & Institutional Rts., Inc., 547 U.S. 47, 62
(2006)); see Nat’l Inst. of Fam. & Life Advocs. v. Becerra,
138 S. Ct. 2361, 2373 (2018) (“The First Amendment does
not prevent restrictions directed at commerce or conduct
from imposing incidental burdens on speech.” (cleaned up)).
We assume arguendo that Monarch’s simulcasts are
expressive in certain respects. However, the Arizona statute
does not regulate that expressive content, but rather only
Monarch’s conduct—the “offer” to sell simulcasts to live-
racing permittees and OTBs. A.R.S. § 5-112(U). The
statute’s requirement that Monarch must make simulcasts
available on equal terms is plainly incidental to the statute’s
focus on Monarch’s non-First Amendment business
practices. See Expressions Hair Design, 137 S. Ct. at 1150–
51. As the Supreme Court has explained, “a law requiring
all New York delis to charge $10 for their sandwiches” is a
regulation of conduct, even though “in order to actually
collect that money” a seller will have to conform its speech
to communicate the price. Id. Here, although Monarch must
offer simulcasts to new customers to comply with A.R.S.
§ 5-112(U), the statute does not affect any expression in
those simulcasts. Id. at 1151.
Rather, the statute is unconcerned with the content of
Monarch’s simulcasts, and does not differentiate based on
the identity of a provider. Although Monarch is required to
MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING 15
offer its product more broadly than it wishes, the statute does
not regulate what Monarch says, only to whom Monarch
must offer its simulcasts when doing business in Arizona.
As the plaintiffs acknowledge, the plain purpose of A.R.S.
§ 5-112(U) is to increase the number of simulcasts, not
restrict them. And, because a simulcast is the telecast of a
race “for the purpose of pari-mutuel wagering,” the statute
does not apply when Monarch offers the same content in
Arizona for any other purpose. 8 A.R.S. §§ 5-101(26), 5-
112(U).
C. Fourteenth Amendment
If a law “implicates no constitutionally protected
conduct,” a facial vagueness challenge under the Due
Process Clause of the Fourteenth Amendment can succeed
only if the law “is impermissibly vague in all of its
applications. A plaintiff who engages in some conduct that
is clearly proscribed cannot complain of the vagueness of the
law as applied to the conduct of others.” Vill. of Hoffman
Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 494–95
(1982); see also Holder v. Humanitarian L. Project,
561 U.S. 1, 18–19 (2010). “The degree of vagueness that the
Constitution tolerates . . . depends in part on the nature of the
enactment. Thus, economic regulation is subject to a less
strict vagueness test.” Vill. of Hoffman, 455 U.S. at 498; see
8
Although the plaintiffs raised a compelled speech argument below,
they did not develop that argument on appeal, so we decline to consider
it. See Ventress v. Japan Airlines, 747 F.3d 716, 723 n.8 (9th Cir. 2014).
Nor have they argued on appeal that the commercial act of offering
simulcasts is expressive conduct, or that the Arizona law fails the
“rational basis review that courts apply to non-speech regulations of
commerce and non-expressive conduct.” Retail Dig. Network, LLC v.
Prieto, 861 F.3d 839, 847 (9th Cir. 2017) (en banc); see United States v.
Swisher, 811 F.3d 299, 310–13 (9th Cir. 2016) (en banc).
16 MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING
also IDK, Inc. v. Clark County, 836 F.2d 1185, 1198 (9th
Cir. 1988) (“The absence of a significant first amendment
interest is, however, fatal to a facial challenge of a business
regulation for vagueness unless the regulation is vague in all
possible applications.”).
Because A.R.S. § 5-112(U) does not regulate speech, we
apply “a less strict vagueness test” and easily conclude that
the statute is not facially invalid. 9 Vill. of Hoffman, 455 U.S.
at 494–95, 498. Monarch seeks to offer its simulcasts to
some live-racing permittees and OTBs in Arizona, but not to
others—and that conduct is plainly proscribed. See id.; see
also Kashem v. Barr, 941 F.3d 358, 375 (9th Cir. 2019)
(“[A]s a general matter, a defendant who cannot sustain an
as-applied vagueness challenge to a statute cannot be the one
to make a facial vagueness challenge to the statute.”); Castro
v. Terhune, 712 F.3d 1304, 1311 (9th Cir. 2013) (same).
The statute also defines “an anticompetitive or deceptive
practice” as including “charg[ing] excessive or unreasonable
fees,” and lists relevant factors. A.R.S. § 5-112(U)(1). We
routinely find similar language constitutionally sufficient.
See, e.g., Wash. Mercantile Ass’n v. Williams, 733 F.2d 687,
692 (9th Cir. 1984). Even when considering an as-applied
challenge, the Supreme Court has upheld a statute that
criminalized selling “goods at ‘unreasonably low prices for
the purpose of destroying competition or eliminating a
competitor,’” citing “the additional element of predatory
intent alleged in the indictment and required by the Act [as]
further definition of the prohibited conduct.” United States
9
Contrary to the plaintiffs’ assertions, the criminal penalties in
A.R.S. § 5-112(K) apply only to a violation of the article “with respect
to any wagering or betting,” and would not apply if Monarch’s provision
of simulcasts violated § 5-112(U).
MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING 17
v. Nat’l Dairy Prods. Corp., 372 U.S. 29, 29, 32–33, 35, 37
(1963) (quoting 15 U.S.C. § 13a). The Arizona law similarly
directs the Commission to determine whether an agreement
has “the purpose of securing an excessive or unreasonable
fee,” or “purpose or effect of artificially inflating prices
beyond reasonable market rates.” A.R.S. § 5-112(U)(2), (3).
Because at least some sufficiently definite applications are
plainly possible, we need not consider the plaintiffs’
hypotheticals about future enforcement. See Nat’l Dairy,
372 U.S. at 32; Humanitarian L. Project, 561 U.S. at 21.
D. Dormant Commerce Clause
The Commerce Clause, U.S. Const. art. I, § 8, cl. 3, has
“a ‘negative’ aspect that denies the States the power
unjustifiably to discriminate against or burden the interstate
flow of articles of commerce.” Or. Waste Sys., Inc. v. Dep’t
of Envtl. Quality of Or., 511 U.S. 93, 98 (1994). This so-
called “dormant” Commerce Clause prohibits the states from
imposing “a substantial burden on interstate commerce.”
Nat’l Ass’n of Optometrists & Opticians v. Harris, 682 F.3d
1144, 1148 (9th Cir. 2012) (emphasis omitted). However,
“the commerce power of Congress is not dormant” when it
authorizes state action, and “state actions which it plainly
authorizes are invulnerable to constitutional attack under the
Commerce Clause.” Ne. Bancorp, Inc. v. Bd. of Governors
of Fed. Rsrv. Sys., 472 U.S. 159, 174 (1985). “The primary
purpose of the dormant Commerce Clause is to prohibit
statutes that discriminate against interstate commerce by
providing benefits to in-state economic interests while
burdening out-of-state competitors.” Ass’n des Eleveurs de
Canards v. Harris, 729 F.3d 937, 947 (9th Cir. 2013)
(cleaned up). Thus, when “a statute ‘regulates even-
handedly to effectuate a legitimate local public interest, and
its effects on interstate commerce are only incidental, it will
18 MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING
be upheld unless the burden imposed on such commerce is
clearly excessive in relation to the putative local benefits.’”
Sullivan v. Oracle Corp., 662 F.3d 1265, 1271 (9th Cir.
2011) (quoting Pike v. Bruce Church, Inc., 397 U.S. 137,
142 (1970)).
Although the IHA does not expressly authorize states to
regulate simulcasts originating from out-of-state racetracks,
see Ne. Bancorp, Inc., 472 U.S. at 174, it plainly preserves
the states’ “primary responsibility” for legislating gambling
within their borders, 15 U.S.C. § 3001(a)(1). We therefore
discern no infringement of Congress’ commerce power here.
Arizona treats out-of-state simulcast providers exactly the
same as in-state providers. A.R.S. § 5-112(T), (U). And, the
statute does not regulate extraterritorially; it merely sets the
terms of doing business if Monarch chooses to provide
simulcasts in the state. Because the plaintiffs provide no
support for their claims that the statute otherwise poses an
overwhelming burden on interstate commerce, see Nat’l
Ass’n of Optometrists, 682 F.3d at 1150, 1155, we need not
inquire into the relative benefits and burdens of the Arizona
law, see Ass’n des Eleveurs, 729 F.3d at 951–52.
E. Contracts Clause
Because “not all state regulation of contracts gives rise
to a Contracts Clause claim,” the threshold question is
whether the law substantially impairs a contractual
relationship. LL Liquor, Inc. v. Montana, 912 F.3d 533, 537
(9th Cir. 2018); see U.S. Const. art. I, § 10, cl. 1. Monarch
claims that the Arizona law impairs its right to terminate its
contract with Turf Paradise while continuing to offer
services to other customers in Arizona. Monarch’s argument
is puzzling; nothing on the face of the Arizona statute affects
whatever rights Monarch may have to terminate its contract
with Turf Paradise. The statute regulates only the
MONARCH CONTENT MGMT. V. ARIZ. DEP’T OF GAMING 19
“offer[ing]” of simulcasts, not termination of contracts.
A.R.S. § 5-112(U). Monarch’s contractual rights are not
impaired simply because its contract with Turf Paradise now
subjects Monarch to new regulation in other respects. See
Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 241
(1978); RUI One Corp. v. City of Berkeley, 371 F.3d 1137,
1148–50 (9th Cir. 2004).
IV.
Because the plaintiffs have not shown a likelihood of
success on the merits, the district court did not abuse its
discretion in denying a preliminary injunction. 10
AFFIRMED.
10
We therefore need not address the remaining Winter factors. See
Winter, 555 U.S. at 20; All. for the Wild Rockies v. Pena, 865 F.3d 1211,
1223 (9th Cir. 2017). Monarch requests judicial notice of Commission
meeting minutes and a letter denying an administrative appeal. Because
these documents are irrelevant to Monarch’s facial challenge, we deny
the motion.