FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARLENE COUCH, and all others
similarly situated,
Plaintiff-Appellee,
v.
No. 08-56357
TELESCOPE INC.; AMERICAN IDOL
PRODUCTIONS INC.; PROJECT SUPPORT D.C. No.
2:07-cv-03916-
TEAM INC.; FREMANTLEMEDIA NORTH
AMERICA INC.; 19 ENTERTAINMENT FMC-VBK
INC.; CKX INC.; FOX
BROADCASTING COMPANY; FOX
INTERACTIVE MEDIA INC.,
Defendants-Appellants.
KAREN HERBERT, and all others
similarly situated; JUDY SCHENKER;
JODI EBERHART; CHERYL BENTLEY,
and all others similarly situated, No. 08-56360
Plaintiffs-Appellees, D.C. No.
v. 2:07-cv-03537-
ENDEMOL USA INC; NBC FMC-VBK
UNIVERSAL, INC.; VERISIGN, INC.; OPINION
M-QUBE, INC.; DON JAGODA
ASSOCIATES, INC.,
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
Florence-Marie Cooper, District Judge, Presiding
9845
9846 COUCH v. TELESCOPE INC.
Submitted July 1, 2010*
Pasadena, California
Filed July 8, 2010
Before: Alex Kozinski, Chief Judge, Stephen S. Trott and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Wardlaw
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
9848 COUCH v. TELESCOPE INC.
COUNSEL
Jeff S. Westerman, Sabrina S. Kim, Michiyo Michelle
Furukawa, and Andrew J. Sokolowski of Milberg LLP (Los
Angeles, CA); Michael C. Spencer of Milberg LLP, New
York, New York; Paul R. Kiesel of Kiesel Boucher & Larson
LLP, Beverly Hills, California; Kevin T. Moore of Kevin T.
Moore Law Offices, Atlanta, Georgia; and William A. Pan-
nell, Atlanta, Georgia, for plaintiff-appellees Darlene Couch
et al.
Chad S. Hummel, Brad W. Seiling, and Joanna S. McCallum
of Manatt, Phelps & Phillips, LLP, Los Angeles, California,
for defendant-appellants NBC Universal, Inc. et al.
Patricia L. Glaser of Glaser, Weil, Fink, Jacobs, Howard &
Shapiro, LLP, Los Angeles, California, for defendant-
appellant Endemol USA, Inc.
COUCH v. TELESCOPE INC. 9849
Ronald L. Johnston and Angel L. Tang of Arnold & Porter
LLP, Los Angeles, California, for defendant-appellant Veri-
sign, Inc. and m-Qube, Inc.
OPINION
WARDLAW, Circuit Judge:
These consolidated interlocutory appeals arise from the dis-
trict court’s denial of defendants’ Rule 12(b)(6) motion to dis-
miss consolidated putative class actions. The district court
ruled that the complaint stated a claim that defendants con-
ducted an illegal lottery under California Penal Code § 319
and thereby violated California’s unfair business practices
law, Cal Bus. & Prof. Code § 17200. Disagreeing vehemently
with this ruling, but citing no California law undermining the
district court’s holding, defendants sought certification under
28 U.S.C. § 1292(b). The district court concluded that there
was no substantial ground for difference of opinion as to its
ruling but certified a set of limited questions to us anyway in
the “interests of comity” and for the sole purpose of facilitat-
ing certification to the California Supreme Court. Because the
district court concluded that there is no substantial ground for
difference of opinion, an essential requirement for § 1292(b)
certification, we vacate our prior order granting permission to
appeal and dismiss these appeals for lack of jurisdiction.
I.
During broadcasts of the hit television programs “American
Idol” and “Deal or No Deal,” viewers had the opportunity to
participate in two cash giveaways (the “Games”).1 Defendants,2
1
These appeals involve only the “American Idol” and “Deal or No
Deal” games. Ten additional cases challenging similar giveaway drawings
have been stayed by the district court pending the outcome of these
appeals.
2
Defendants in Case No. 08-56357 are Telescope Inc., American Idol
9850 COUCH v. TELESCOPE INC.
the promoters and administrators of the Games, ran commer-
cials during each television broadcast inviting viewers to enter
the Games for a chance to win cash prizes. In the “American
Idol Challenge,” viewers were posed a trivia question about
the wildly popular “American Idol” show. In the “Lucky
Case” game, viewers of “Deal or No Deal” were shown num-
bered briefcases and asked to choose the briefcase corre-
sponding to a winning number. For both Games, viewers
could enter the drawing by submitting the correct answer
within twenty-four hours, either through a text message for a
ninety-nine cent fee (in addition to standard text messaging
fees imposed by the viewer’s wireless carrier) or through the
internet at no charge. Viewers were allowed up to ten entries,
and, for each correct submission, the viewer entered a draw-
ing, from which the eventual winner was chosen at random.
The named plaintiffs, Darlene Couch, Karen Herbert, Judy
Schenker, Jodi Eberhart, and Cheryl Bentley (“plaintiffs”),
entered the Games but did not win a prize. Unsuccessful but
undaunted, they turned to the high-stakes world of class
action litigation. Seeking to represent a class of all individuals
who paid the ninety-nine cent text message fee to enter the
Games but lost, plaintiffs filed suit in federal court, claiming
that the Games are an illegal lottery under California Penal
Code § 319 and thus constitute unfair business practices.3
Under California law, an illegal lottery has three elements: (1)
distribution of a prize, (2) based on chance, (3) to an individ-
ual who has paid valuable consideration. Cal. Gasoline
Productions, Inc., Project Support Team, Inc., Fremantlemedia North
America, Inc., 19 Entertainment, Inc., CKX, Inc., Fox Broadcasting Com-
pany, Fox Interactive Media, Inc. Defendants in Case No. 08-56360 are
Endemol USA, Inc., NBC Universal, Inc., Verisign, Inc., M-QUBE, Inc.,
and Don Jagoda Associates, Inc.
3
They also claim that the Games violate Connecticut General Statute
§ 52-554 on the ground that the “American Idol Challenge” is illegal gam-
bling under that law. The certification order does not involve this claim.
COUCH v. TELESCOPE INC. 9851
Retailers v. Regal Petroleum Corp., 50 Cal. 2d 844, 853-44
(1958); see also Cal. Penal Code § 319.
Defendants moved to dismiss plaintiffs’ class action on the
basis that the third element—consideration—was missing
because the Games had a free method of entry (the internet)
available to all participants. Relying on the four leading Cali-
fornia lottery cases, People v. Shira, 62 Cal. App. 3d 442 (Ct.
App. 1976); Cal. Gasoline Retailers, 50 Cal.2d 844; People
v. Carpenter, 141 Cal. App. 2d 884 (Ct. App. 1956); and Peo-
ple v. Cardas, 137 Cal. App. Supp. 788 (App. Dep’t Super.
Ct. 1933), and finding no California law to the contrary, the
district court denied the motion.
The court then granted defendants’ motion to certify its
order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b)
even though it expressly concluded that the jurisdictional
predicate of a substantial ground for difference of opinion
didn’t exist. Finding instead that certification was warranted
“in the interests of comity,” it certified a set of questions for
the “limited purpose” of having us certify them to the Califor-
nia Supreme Court. Although a two-judge motions panel of
our court granted defendants’ application to pursue these
appeals, we are not bound by this decision. “Although we
give deference to the ruling of the motions panel, we have an
independent duty to confirm that our jurisdiction is proper.”
Kuehner v. Dickinson & Co., 84 F.3d 316, 318-19 (9th Cir.
1996).
II.
[1] Federal courts “have only the power that is authorized
by Article III of the Constitution and the statutes enacted by
Congress pursuant thereto.” Bender v. Williamsport Area Sch.
Dist., 475 U.S. 534, 541 (1986). Therefore, we have a special
obligation to satisfy ourselves of our jurisdiction even where,
as here, the parties do not contest it. Id. Under the final judg-
ment rule embodied in 28 U.S.C. § 1291, the courts of appeal
9852 COUCH v. TELESCOPE INC.
have jurisdiction over “appeals from all final decisions of the
district courts of the United States.” Thus, parties may appeal
only from orders which “ ‘end[ ] the litigation on the merits
and leave[ ] nothing for the court to do but execute the judg-
ment.’ ” Romoland Sch. Dist. v. Inland Empire Energy Ctr.,
548 F.3d 738, 747 (9th Cir. 2008) (quoting Coopers & Lyb-
rand v. Livesay, 437 U.S. 463, 467 (1978)).
[2] Defendants invoke the narrow exception to the final
judgment rule embodied in 28 U.S.C. § 1292(b), which pro-
vides:
When a district judge, in making in a civil action an
order not otherwise appealable under this section,
shall be of the opinion that such order involves a
controlling question of law as to which there is sub-
stantial ground for difference of opinion and that an
immediate appeal from the order may materially
advance the ultimate termination of the litigation, he
shall so state in writing in such order.
Because “[t]he requirements of § 1292(b) are jurisdictional,”
if this appeal “does not present circumstances satisfying the
statutory prerequisites for granting certification, this court
cannot allow the appeal.” Union County v. Piper Jaffray &
Co., 525 F.3d 643, 645-46 (8th Cir. 2008) (per curiam) (inter-
nal quotation marks omitted). Thus, “we must determine
whether the district court has properly found that the certifica-
tion requirements of the statute have been met,” In re Cement
Antitrust Litigation, 673 F.2d 1020, 1026 (9th Cir. 1982), and
the party pursuing the interlocutory appeal bears the burden
of so demonstrating, see McFarlin v. Conseco Servs., LLC,
381 F.3d 1251, 1264 (11th Cir. 2004).
A.
We agree with the district court’s conclusion that the defen-
dants have failed to establish the requisite substantial ground
COUCH v. TELESCOPE INC. 9853
for difference of opinion. Certification under § 1292(b)
requires the district court to expressly find in writing that all
three § 1292(b) requirements are met. Therefore, the question
of law should not have been certified, and the certification
order is jurisdictionally defective.4
[3] To determine if a “substantial ground for difference of
opinion” exists under § 1292(b), courts must examine to what
extent the controlling law is unclear. Courts traditionally will
find that a substantial ground for difference of opinion exists
where “the circuits are in dispute on the question and the
court of appeals of the circuit has not spoken on the point, if
complicated questions arise under foreign law, or if novel and
difficult questions of first impression are presented.” 3 Fed-
eral Procedure, Lawyers Edition § 3:212 (2010) (footnotes
omitted). However, “just because a court is the first to rule on
a particular question or just because counsel contends that one
precedent rather than another is controlling does not mean
there is such a substantial difference of opinion as will sup-
port an interlocutory appeal.” Id. (footnotes omitted).
[4] The district court correctly held that “[a] party’s strong
disagreement with the Court’s ruling is not sufficient for there
to be a ‘substantial ground for difference.’ ” That settled law
might be applied differently does not establish a substantial
ground for difference of opinion. See, e.g., Bush v. Adams,
629 F. Supp. 2d 468, 475 (E.D. Pa. 2009); Hansen v. Schu-
bert, 459 F. Supp. 2d 973, 1000 (E.D. Cal. 2006); Judicial
Watch, Inc. v. Nat’l Energy Policy Dev. Group, 233 F. Supp.
2d 16, 19-20 (D.D.C. 2002). Significantly, defendants have
not provided a single case that conflicts with the district
court’s construction or application of California Penal Code
§ 319. See Union County, 525 F.3d at 647 (“ ‘While identifi-
4
We discuss the reasons the district court correctly concluded that no
“substantial ground for difference of opinion” existed because of the
dearth of authority in the area and to dispose of defendants’ contentions
that § 1292(b)’s third prong has been met.
9854 COUCH v. TELESCOPE INC.
cation of a sufficient number of conflicting and contradictory
opinions would provide substantial ground for disagreement,’
the County offered no such Iowa opinions, statutes or rules,
and ‘a dearth of cases’ does not constitute ‘substantial ground
for difference of opinion.’ ” (quoting White v. Nix, 43 F.3d
374, 378 (8th Cir. 1994))).
[5] The district court also correctly concluded that the
2005 advisory opinion from the California Attorney General’s
Division of Gambling Control addressing “jackpot poker”
failed to demonstrate a substantial ground for difference of
opinion. The advisory opinion does not provide the factual
context of the underlying game in question, making meaning-
ful analysis and comparison impossible. More fundamentally,
the presence of a single, non-binding, advisory opinion by a
division of the California Attorney General’s office is not a
“substantial” ground for disagreement as to the controlling
law.
[6] Nor does the fact that no California court has addressed
the precise questions at issue satisfy the requirement of a sub-
stantial ground for disagreement, as the district court properly
recognized. It is well settled that “the mere presence of a dis-
puted issue that is a question of first impression, standing
alone, is insufficient to demonstrate a substantial ground for
difference of opinion.” In re Flor, 79 F.3d 281, 284 (2d Cir.
1996); see also Union County, 525 F.3d at 647 (holding that
a “dearth of cases” does not give rise to a substantial ground
for difference of opinion).
[7] Having concluded that its legal ruling did not present
a legal question on which there is a substantial ground for dif-
ference of opinion, the district court erred by certifying its
order for § 1292(b) interlocutory review. Consequently, we
lack jurisdiction to entertain these appeals. See In re Cement,
673 F.2d at 1026.
COUCH v. TELESCOPE INC. 9855
B.
[8] The district court improperly relied upon the “interests
of comity” in ploughing on to certify the appeals. The “inter-
ests of comity” is not one of our statutory bases for jurisdic-
tion over less than final judgments. In point of fact, § 1292(b)
certification does not further the interests of comity—it
merely trades one federal forum for another. Federal rulings
on state-law issues generally don’t affect the state’s law. See
People v. Ponce, 92 Cal. Rptr. 3d 667, 672 (Ct. App. 2009)
(“We . . . ‘are not bound by the decisions of the lower federal
courts even on federal questions.’ ” (quoting People v. Brad-
ley, 1 Cal.3d 80, 86 (1969)). And while we—unlike the dis-
trict court—can certify questions of California state law to the
California Supreme Court, see Cal. R. Ct. 8.548 (“On request
from the United States Supreme Court, a United States Court
of Appeals, or the court of last resort of any state, territory,
or commonwealth, the Supreme Court may decide a question
of California Law if: (1) The decision could determine the
outcome of a matter pending in the requesting court; and (2)
There is no controlling precedent.”), we invoke the certifica-
tion process only after careful consideration and do not do so
lightly. See Kremen v. Cohen, 325 F.3d 1035, 1037 (9th Cir.
2003). The district court attempted to bypass this fact by certi-
fying these appeals for the “limited purpose” of having us cer-
tify certain questions to the California Supreme Court.
However, § 1292(b) does not permit “limited purpose” certifi-
cation. Rather, when an order is certified for appellate review,
“appellate jurisdiction applies to the order certified . . . and
is not tied to the particular question formulated by the district
court.” Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S.
199, 205 (1996). A district court confronting a motion to cer-
tify pursuant to § 1292(b) should remain focused on the statu-
tory requirements, not policy considerations which may or
may not be furthered by certification.
III.
[9] Because the district court expressly, and correctly,
found that defendants had failed to demonstrate a substantial
9856 COUCH v. TELESCOPE INC.
ground for difference of opinion, we VACATE our orders
granting permission to appeal, DISMISS these appeals for
lack of jurisdiction, and REMAND to the district court.