Jerry Beeman & Pharmacy Services, Inc. v. Anthem Prescription Management, LLC

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…

dissenting:

It has been more than seven decades since the Supreme Court ended the “mischievous” regime of Swift v. Tyson, 41 U.S. 1 , 16 Pet. 1 , 10 L.Ed. 865 (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 , 58 S.Ct. 817 , 82 L.Ed. 1188 (1938). The Eñe 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 , 61 S.Ct. 336 , 85 L.Ed. 284 (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 Eñe Court sought to eradicate. See Erie, 304 U.S. at 74-78 , 58 S.Ct. 817 .

The majority disregards not one but three intermediate California appellate decisions holding that California Civil Code § 2527 violates Article I, section 2 of…