DocketNumber： Nos. 07-56692, 07-56693
Judges： Fletcher, Law, Reinhardt, Wardlaw
Filed Date： 7/19/2011
Status： Precedential
Modified Date： 11/5/2024
Opinion by Judge B. FLETCHER; Dissent by Judge WARDLAW.
OPINION
In this consolidated appeal, defendants-appellants (collectively “Defendants”) appeal the denial by the district court of their motions for judgment on the pleadings. Plaintiffs-appellees (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 (herein-after “§ 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 Eñe 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 Eñe does not require us to follow the state appellate court decisions, and that
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 cost-effective delivery of prescription drugs to health plan members or other persons to whom the third-party payors provide 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”
The legislative history of § 2527 reveals that the original bill, introduced by the
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 (Bee-man 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.
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.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.
Since this appeal was filed, the district court has granted in part Defendants’ motions for summary judgment based on res 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
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 ease of Erie Railway Co. v. Tompkins, 304 U.S. 64, 71-80, 58 S.Ct. 817, 82 L.Ed. 1188 (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, 61 S.Ct. 179, 85 L.Ed. 139 (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 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 Eñe requires us to follow the reasoning of the state appellate courts on the issue of § 2527’s constitutionality.
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).
1.
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.
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).
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, 72 Cal.Rptr.3d 1 (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.”
Id. at 959, 72 Cal.Rptr.3d 1 (quoting People v. Teresinski, 30 Cal.3d 822, 836-837, 180 Cal.Rptr. 617, 640 P.2d 753 (Cal.1982)); see Gerawan Farming, Inc. v. Lyons, 24 Cal.4th 468, 510-12, 101 Cal.Rptr.2d 470, 12 P.3d 720 (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, 119 Cal.Rptr.2d 296, 45 P.3d 243 (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.
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, 42 Cal.Rptr.3d 256 (discussing Johanns v. Livestock Marketing Ass’n, 544 U.S. 550, 125 S.Ct. 2055, 161 L.Ed.2d 896 (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 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, 126 S.Ct. 1297, 164 L.Ed.2d 156 (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
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 AM. 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, 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, 1465-66 (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).
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. Eñe does not, therefore, require us to apply to this case the state courts’ holding that § 2527 is unconstitutional under the California Constitution.
As we are not bound under Eñe 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, 126 S.Ct. 1297. “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, 97 S.Ct. 1428, 51 L.Ed.2d 752 (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. 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, — U.S.-, 130 S.Ct. 2811, 2817, 177 L.Ed.2d 493 (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, 113 S.Ct. 1439, 123 L.Ed.2d 1 (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, 113 S.Ct. 1439 (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (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, 107 S.Ct. 2095.
Moving to the merits of Defendants’ argument, we evaluate the speech compelled by § 2527 in order to determine whether 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, 63 S.Ct. 1178, 87 L.Ed. 1628 (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, 63 S.Ct. 1178. 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, 63 S.Ct. 1178. The Court again opined on the issue of compelled speech in Wooley, 430 U.S. at 714-15, 97 S.Ct. 1428. 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, 108 S.Ct. 2667, 101 L.Ed.2d 669 (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, 108 S.Ct. 2667. 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, 108 S.Ct. 2667.
Notably, then, under Riley, compelled disclosures of fact, like compelled matters
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, 126 S.Ct. 1297, 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, 126 S.Ct. 1297. 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, 126 S.Ct. 1297 (citing Riley, 487 U.S. at 797-98, 108 S.Ct. 2667). 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.
Consistent with Barnette, Wooley, and Riley, FAIR makes clear that not all fact-based disclosure requirements are subject to First Amendment scrutiny.
We now apply this precedent to the statute at issue here. Defendants argue that § 2527 constitutes a content-based 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, 126 S.Ct. 1297 (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).
Like the speech in FAIR, the compelled speech here does not in any way resemble the type of political messages 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, 126 S.Ct. 1297. 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.
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.
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 “hampering] the legitimate efforts of professional fundraisers to raise money for the charities they represent,” 487 U.S. at 799, 108 S.Ct. 2667, § 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, 126 S.Ct. 1297 (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 exam-pie, 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 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.
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 contabaing 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.
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
3.
The parties debate several other theories under which § 2527 could raise First Amendment concerns and thereby 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 then’ own expression of ideas. FAIR, 547 U.S. at 63, 126 S.Ct. 1297. Rather than looking at whether the challenger himself is being compelled to speak, forced accommodation eases 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, 94 S.Ct. 2831, 41 L.Ed.2d 730 (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, 94 S.Ct. 2831; see also Pac. Gas & Elec. Co. v. Pub. Util. Comm’n of California, 475 U.S. 1, 9-18, 106 S.Ct. 903, 89 L.Ed.2d 1 (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, 115 S.Ct. 2338, 132 L.Ed.2d 487 (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”).
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, 126 S.Ct. 1297 (“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.”).
b.
Defendants also argue that the court should invalidate § 2527 under United States v. United Foods, Inc., 533 U.S. 405, 121 S.Ct. 2334, 150 L.Ed.2d 438 (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, 121 S.Ct. 2334; see also Keller v. State Bar of California, 496 U.S. 1, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990); Abood v. Detroit Bd. of Educ., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (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, 121 S.Ct. 2334 (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, 121 S.Ct. 2334. In striking down the law, United Foods is careful to distinguish Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457, 117 S.Ct. 2130, 138 L.Ed.2d 585 (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, 121 S.Ct. 2334. In the case of the mushroom law, by contrast, collective advertising was “the principal object of the regulatory scheme.” Id.
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, 105 S.Ct. 2265, 85 L.Ed.2d 652 (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, 121 S.Ct. 2334 (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, 105 S.Ct. 2265, courts subject them to a lower form of constitutional scrutiny resembling rational basis review. Milavetz, Gallop & Milavetz, P.A. v. United States, — U.S. —, 130 S.Ct. 1324, 1339-40, 176 L.Ed.2d 79 (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, 105 S.Ct. 2265 (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, 42 Cal.Rptr.3d 256. The Supreme Court has suggested that “commercial speech” is not merely “on a commercial
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.
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, 61 S.Ct. 179; 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)).
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 constitutional 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.AM. 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 Wit-kin, Cal. Proc. 5th, Appeal, § 498 (2008) (“A decision of a Court of Appeal is not
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 decide, we must conclude that § 2527 is constitutional under article I, section 2 of the California Constitution.
III.
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.
. Although Defendants maintain that they are not "prescription drug claims processors” under the statute, the issue is not contested for purposes of this appeal.
. 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 often than every 24 months.
Cal. Civ.Code § 2527(c).
.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).
. 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, 556 U.S. 49, 129 S.Ct. 1262, 1272, 173 L.Ed.2d 206 (2009) ("Under the long-standing 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 alterations omitted)).
. 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....”
. 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.
. Notably, Gerawan came down before United States v. United Foods, Inc., 533 U.S. 405, 121 S.Ct. 2334, 150 L.Ed.2d 438 (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.
. 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, 101 Cal.Rptr.2d 470, 12 P.3d 720; 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.
. The state court’s errors in applying federal law are more fully discussed in our First Amendment analysis in Part B, below.
. 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.
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, 45 Cal.Rptr.2d 241, 902 P.2d 259 n. 1 (Cal.1995)). Moreover, in Bradley, three of the seven California Supreme Court Justices recused themselves from ruling on the petition for review. Final
. As the Supreme Court has held, "charitable appeals for funds ... involve a variety of speech interests' — communication of information, the 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, 100 S.Ct. 826, 63 L.Ed.2d 73 (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.
. 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 FAIR, 547 U.S. at 62, 126 S.Ct. 1297. 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. ERA, 344 F.3d 832, 848-51 (9th Cir.2003).
. 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.
. 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, 108 S.Ct. 2667 (noting that "[tjhere is certainly some difference between compelled speech and compelled silence” but recognizing that the difference has no constitutional significance when protected expression is affected).
.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 § 2527 and noting that "if insurers paid the pharmacies dispensing fees closer to the amount paid by uninsured consumers, pharmacies would be
. 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.
. The Supreme Court’s recent decision in Sorrell v. IMS Health Inc., -U.S.-, 131 S.Ct. 2653, 180 L.Ed.2d 544 (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 2663-64. 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.
. Notably, Defendants do not allege that § 2527 is unconstitutional because it impermissibly regulates conduct.
. Consistent with the cases cited by the Dissent, we readily agree that the transmission of the pricing survey results constitutes speech. The § 2527-reguIated 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 [94 S.Ct. 2831, 41 L.Ed.2d 730] (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 Tomillo, 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, 126 S.Ct. 1297.
. 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.
. Notably, as a matter of state law, the ARP decision expressly distinguishes Johanns v. Livestock Marketing Ass’n, 544 U.S. 550, 125 S.Ct. 2055, 161 L.Ed.2d 896 (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.