govinfo:USCOURTS-cand-5_21-cv-02777-3

Case No.: 21-md-02985-EJD; 5:21-md-03001-EJD; 5:21-cv-02777-EJD 
ORDER STAYING CASE PENDING INTERLOCUTORY APPEAL 
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United States District Court 
Northern District of California 
 
 
 
UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA 
SAN JOSE DIVISION 
 
 
IN RE: APPLE INC. APP STORE 
SIMULATED CASINO-STYLE GAMES 
LITIGATION 
 
IN RE: GOOGLE PLAY STORE 
SIMULATED CASINO-STYLE GAMES 
LITIGATION 
 
IN RE: FACEBOOK SIMULATED 
CASINO-STYLE GAMES LITIGATION 
 

 
ORDER STAYING CASE PENDING 
INTERLOCUTORY APPEAL 
 
Re: Dkt. No. 194 
 
 

 
 
 
 

 
 
 
On September 30, 2025, the Court issued an order granting Defendants Apple Inc.’s, 
Google LLC’s, and Meta Platforms, Inc.’s motions to dismiss and certifying the order for 
interlocutory appeal. Order, ECF No. 176. On December 16, 2025, the Ninth Circuit granted 
Defendants’ petition for permission to appeal. ECF No. 185. On January 7, 2026, the parties 
submitted a Joint Status Report, ECF No. 189, after which the Court ordered additional briefing as 

 
Case No.: 21-md-02985-EJD; 5:21-md-03001-EJD; 5:21-cv-02777-EJD 
ORDER STAYING CASE PENDING INTERLOCUTORY APPEAL 
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United States District Court 
Northern District of California 
to whether this Court retains jurisdiction to continue proceedings while the Ninth Circuit considers 
the Section 230 appeal. Order for Additional Briefing, ECF No. 190. The parties submitted the 
requested briefing. Pls.’ Response (“Response”), ECF No. 191; Defs.’ Reply (“Reply”), ECF No. 
192. On February 3, 2026, the parties appeared before the Court for a Status Conference. ECF 
No. 194. 
Based on the parties’ briefing and the discussion at the Status Conference, the Court 
STAYS the case pending a ruling from the Ninth Circuit on the interlocutory appeal. 
I. BACKGROUND 
The Court’s most recent Order summarized the factual background of this case. Order at 
2–3. 
The relevant procedural background is as follows. Defendants first moved to dismiss all 
claims in 2022, arguing that Defendants were immune under Section 230 of the Communications 
Decency Act, 47 U.S.C. § 230 (“Section 230”). ECF No. 92. The briefing focused on three 
theories of liability: (1) the promotion of social casino apps in the app stores (the promotion 
theory); (2) the processing of in-app transactions for virtual chips (the payment processing theory); 
and (3) the provision of support to casino app developers to drive increased user engagement and 
revenue (the business support theory). The Court ruled that Section 230 barred the promotion and 
business support theories but not the payment processing theory. ECF No. 106. The Court 
certified its order for interlocutory appeal, which the Ninth Circuit granted but later dismissed and 
remanded. ECF No. 119. 
Defendants then moved to dismiss a second time, invoking Section 230 immunity as to the 
surviving payment processing theory. ECF No. 145. On September 30, 2025, the Court issued an 
order granting in part and denying in part the motions to dismiss. Order, ECF No. 176. The Court 
allowed some claims to proceed (including most of the consumer protection claims as well as the 
Kentucky loss-recovery claim), dismissed other claims (including most of the loss-recovery 
claims, the unjust enrichment claims, and the RICO claims), and dismissed still other claims with 
prejudice (including the California unjust enrichment and UCL claims). The Court again certified 

 
Case No.: 21-md-02985-EJD; 5:21-md-03001-EJD; 5:21-cv-02777-EJD 
ORDER STAYING CASE PENDING INTERLOCUTORY APPEAL 
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United States District Court 
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its order for interlocutory appeal. 
On October 21, 2025, Plaintiffs filed a notice of their intent to amend their complaint. 
ECF No. 178. At a status conference on November 25, 2025, the Court expressed concern that 
filing an amended complaint would moot a potential decision from the Ninth Circuit. Transcript, 
ECF No. 184 at 5. Responding to that concern, Plaintiffs proposed filing an amended complaint, 
against which Defendants could “adopt their same arguments on Section 230,” the Court could 
“issue likely the same order on 230,” and that decision could be appealed with the amended 
complaint as the new operative complaint. Id. Plaintiffs shared a draft of their amended 
complaint with Defendants on December 12, 2025. Status Report at 1. On December 16, 
however, the Ninth Circuit granted Defendants’ petition for permission to appeal. ECF No. 185. 
Defendants believed that in granting the petition, the Ninth Circuit divested this Court of 
jurisdiction over the case while the appeal is pending. Status Report at 5–10. 
II. DISCUSSION 
On January 8, 2026, the Court ordered Plaintiffs to submit additional briefing addressing 
three questions raised in Defendants’ portion of the Status Report: (1) Does the Ninth Circuit’s 
grant of the interlocutory review divest the Court of jurisdiction over the case while that appeal is 
pending?; (2) If not, can and should the Court exercise discretion to stay the case?; and (3) May 
the Court nonetheless proceed to issue orders on discovery? Order for Additional Briefing at 2. 
The Court first addresses whether the Ninth Circuit’s grant of interlocutory review divests 
the Court of jurisdiction, and, finding it does, does not reach the question of whether it may 
exercise discretion to stay the case. The Court then addresses whether it may continue to issue 
orders on discovery. 
A. The Ninth Circuit’s Grant of Interlocutory Review Under 28 U.S.C. § 1292(b) 
Divests the Court of Jurisdiction 
In general, “an appeal from an interlocutory order does not divest the trial court of 
jurisdiction to continue with other phases of the case.” Plotkin v. Pac. Tel. & Tel. Co., 688 F.2d 
1291, 1293 (9th Cir. 1982); accord Song v. MTC Fin., Inc., 812 F. App’x 609, 610 (9th Cir. 2020). 

 
Case No.: 21-md-02985-EJD; 5:21-md-03001-EJD; 5:21-cv-02777-EJD 
ORDER STAYING CASE PENDING INTERLOCUTORY APPEAL 
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That is because an interlocutory appeal only “divests the district court of its control over those 
aspects of the case involved in the appeal.” California by & through Harrison v. Express Scripts, 
Inc., 139 F.4th 763, 767 (9th Cir. 2025) (citing Coinbase, Inc. v. Bielski, 599 U.S. 736, 740 
(2023)). 
Defendants make two arguments. First, they posit that since the Section 230 issue could 
terminate these actions in their entirety, the appeal affects—and thus stays—the whole case.1 
Status Report at 7 (citing Coinbase, Inc. v. Bielski, 599 U.S. 736, 741 (2023)). Defendants also 
suggest that Section 230 is intended to provide immunity from suit rather than just from liability. 
Id. at 6 (citing Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 
1157, 1174 (9th Cir. 2008) (en banc)). Plaintiffs disagree, contending that Defendants have 
incorrectly extended Coinbase beyond the arbitration context, and that Section 230 does not 
protect defendants from having to litigate. Response at 1–2. In Reply, Defendants contend that 
Coinbase is not limited to arbitration and that the text of Section 230 explicitly protects defendants 
from suit. Reply at 2.2 
The Court finds Defendants’ argument that Section 230 provides immunity from suit 
unavailing. Defendants point to the clause in Section 230 that states that “no cause of action may 
be brought” that is contrary to the statute. 47 U.S.C. § 230(e)(3). But the Tenth Circuit has held 
that Section 230 “provides immunity only from liability, not suit.” Gen. Steel Domestic Sales, 
L.L.C. v. Chumley, 840 F.3d 1178, 1181 (10th Cir. 2016). And the Ninth Circuit case Defendants 
themselves cite clearly states that Section 230 is designed “to protect websites against the evil of 
liability for failure to remove offensive content”; that case does not mention protection from suit. 
 
1 This argument derives from the Griggs principle. In that case, the respondent filed a Rule 59 
motion to alter the judgment, then, while that motion was still pending, filed a notice of appeal. 
The Supreme Court noted than an appeal “divests the district court of its control over those aspects 
of the case involved in the appeal” and held that the appeal was null while the Rule 59 motion was 
pending. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). 
2 Defendants also assert that Plaintiffs have wrongly relied on Plotkin v. Pac. Tel. & Tel. Co., 688 
F.2d 1291 (9th Cir. 1982), which predates Coinbase. Reply at 1. The Court finds this argument 
unconvincing because Plaintiffs merely use Plotkin to state the general principle that an 
interlocutory appeal does not divest the trial court of jurisdiction to continue with other parts of 
the case. See Response at 1. 

 
Case No.: 21-md-02985-EJD; 5:21-md-03001-EJD; 5:21-cv-02777-EJD 
ORDER STAYING CASE PENDING INTERLOCUTORY APPEAL 
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Roommates.com, 521 F.3d at 1174. Thus, the Court concludes that Section 230 does not protect 
Defendants from suit. 
The Court is, however, persuaded by Defendants’ argument that the interlocutory appeal 
on the Section 230 issue deprives the Court of jurisdiction while the appeal is pending. 
Defendants rely on Coinbase, which held that a district court must stay proceedings while an 
interlocutory appeal on the question of “arbitrability” was ongoing. Coinbase, 599 U.S. at 738. 
Plaintiffs argue that Express Scripts limited this finding to the arbitration context. California by & 
through Harrison v. Express Scripts, Inc., 139 F.4th 763, 767 (9th Cir. 2025). In that case, the 
Ninth Circuit declined to extend Coinbase to the federal officer removal context. Express Scripts, 
139 F.4th at 767. The defendants had argued that since the issue on appeal was whether the case 
belonged in state or federal court, the entire case was essentially involved in the appeal and should 
be stayed. Id. The Ninth Circuit disagreed, holding that a stay was unnecessary because the venue 
issue did not overlap with the questions that remained before the state court (including whether the 
claims had merit and whether the parties were entitled to discovery). Id. at 771. Thus, there was 
no risk that the district court and court of appeals “would be simultaneously analyzing the same 
judgment.” Griggs, 459 U.S. at 59. 
Consequently, though Plaintiffs are correct that Express Scripts read Coinbase as limited to 
arbitration, it did so in the spirit of distinguishing why the specific concerns in Coinbase were not 
present in Express Scripts. Fundamentally, Express Scripts relied on the Griggs principle: that to 
prevent a district and an appeals court from coming to inconsistent judgments, an appeal “divests 
the district court of its control over those aspects of the case involved in the appeal.” Griggs, 459 
U.S. at 58. Furthermore, other courts have found that a district court may not grant leave to 
amend an aspect of the case that is pending before the court of appeals. Dayton Indep. Sch. Dist. 
v. U. S. Mineral Prods. Co., 906 F.2d 1059, 1063 (5th Cir. 1990); Green Leaf Nursery v. E.I. 
DuPont De Nemours & Co., 341 F.3d 1292, 1309 (11th Cir. 2003). Here, since the Section 230 
issue has the potential to terminate the actions in their entirety, the Ninth Circuit’s consideration of 
the appeal stays any filing of an amended complaint. 

 
Case No.: 21-md-02985-EJD; 5:21-md-03001-EJD; 5:21-cv-02777-EJD 
ORDER STAYING CASE PENDING INTERLOCUTORY APPEAL 
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United States District Court 
Northern District of California 
B. The Court May Not Issue Orders on Discovery During the Stay 
Plaintiffs ask the Court to lift the discovery stay, at least with respect to written discovery. 
They hope lifting the stay would allow the case to progress while the Ninth Circuit considers the 
appeal and allow depositions to begin promptly after the appeal is concluded. Status Report at 3. 
Defendants argue that an interlocutory appeal also divests the district court of authority to order 
discovery. Id. at 8. (citing May v. Shehan, 226 F.3d 876, 880 (7th Cir. 2000)). 
An appeal “divests the district court of its control over those aspects of the case involved in 
the appeal.” Griggs, 459 U.S. at 58. Here, the Section 230 issue on appeal implicates and could 
theoretically dispose of the whole case. See supra Part II.A. Thus, the Court does not have 
authority to order discovery during the pendency of the appeal. Cf. May v. Shehan, 226 F.3d 876, 
880 (7th Cir. 2000) (finding that an interlocutory appeal of a denial of qualified immunity divested 
the district court of the authority to order discovery during the pendency of the appeal because 
“the ultimate question is . . . whether a public official should have to undergo the burdens of 
litigation.”). 
III. CONCLUSION 
For the foregoing reasons, the Court ORDERS: 
1. All dates, deadlines, and further activity in this case are stayed pending a decision by 
the Ninth Circuit in the interlocutory appeal. 
2. The Parties shall submit a joint status report within fourteen (14) days after the Ninth 
Circuit issues its opinion. That status report shall inform the Court how the parties intend to 
proceed with this case in light of the ruling in the appeal. 
 
IT IS SO ORDERED. 
Dated: June 1, 2026 
 
 
EDWARD J. DAVILA 
United States District Judge 

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