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 D.C. No. INC.; PROJECT SUPPORT 

TEAM 2:07-cv-03916- 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-

FMC-VBK ENDEMOL USA INC; NBC

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
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). 

9846 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. Pannell, 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 defendantappellant Endemol USA, Inc.

9848 COUCH v. TELESCOPE INC.
Ronald L. Johnston and Angel L. Tang of Arnold & Porter

LLP, Los Angeles, California, for defendant-appellant Verisign, Inc. and m-Qube, Inc.

OPINION

WARDLAW, Circuit Judge:

These consolidated interlocutory appeals arise from the district court’s denial of defendants’ Rule 12(b)(6) motion to dismiss consolidated putative class actions. The district court

ruled that the complaint stated a claim that defendants conducted 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 facilitating 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

1These 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. 

2Defendants in Case No. 08-56357 are Telescope Inc., American Idol

COUCH v. TELESCOPE INC. 9849
the promoters and administrators of the Games, ran commercials 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 numbered briefcases and asked to choose the briefcase corresponding 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 drawing, 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 individual who has paid valuable consideration. Cal. Gasoline

Productions, Inc., Project Support Team, Inc., Fremantlemedia North

America, Inc., 19 Entertainment, Inc., CKX, Inc., Fox Broadcasting Company, 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. 

3They also claim that the Games violate Connecticut General Statute

§ 52-554 on the ground that the “American Idol Challenge” is illegal gambling under that law. The certification order does not involve this claim.

9850 COUCH v. TELESCOPE INC.
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 California 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 People 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 California 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 judgment rule embodied in 28 U.S.C. § 1291, the courts of appeal

COUCH v. TELESCOPE INC. 9851
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 judgment.’ ” Romoland Sch. Dist. v. Inland Empire Energy Ctr.,

548 F.3d 738, 747 (9th Cir. 2008) (quoting Coopers & Lybrand 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 provides: 

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 substantial 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) (internal quotation marks omitted). Thus, “we must determine

whether the district court has properly found that the certification 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 defendants have failed to establish the requisite substantial ground

9852 COUCH v. TELESCOPE INC.
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 Federal 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 support 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. Schubert, 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 identifi4We 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. 

COUCH v. TELESCOPE INC. 9853
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 meaningful 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 substantial ground for disagreement, as the district court properly

recognized. It is well settled that “the mere presence of a disputed 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 difference 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.

9854 COUCH v. TELESCOPE INC.
B.

[8] The district court improperly relied upon the “interests

of comity” in ploughing on to certify the appeals. The “interests of comity” is not one of our statutory bases for jurisdiction 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. Bradley, 1 Cal.3d 80, 86 (1969)). And while we—unlike the district 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 certification 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 certifying these appeals for the “limited purpose” of having us certify certain questions to the California Supreme Court.

However, § 1292(b) does not permit “limited purpose” certification. 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 certify pursuant to § 1292(b) should remain focused on the statutory 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

COUCH v. TELESCOPE INC. 9855
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.

9856 COUCH v. TELESCOPE INC.