The opinion
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6 SAN JOSE DIVISION
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8 Case No. 5:21-md-02985-EJD
IN RE: APPLE INC. APP STORE
9 SIMULATED CASINO-STYLE GAMES ORDER STAYING CASE PENDING
LITIGATION INTERLOCUTORY APPEAL
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11 Re: Dkt. No. 194
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IN RE: GOOGLE PLAY STORE
14 SIMULATED CASINO-STYLE GAMES Case No. 5:21-md-03001-EJD
LITIGATION
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IN RE: FACEBOOK SIMULATED
19 CASINO-STYLE GAMES LITIGATION Case No. 5:21-cv-02777-EJD
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23 On September 30, 2025, the Court issued an order granting Defendants Apple Inc.’s,
24 Google LLC’s, and Meta Platforms, Inc.’s motions to dismiss and certifying the order for
25 interlocutory appeal. Order, ECF No. 176. On December 16, 2025, the Ninth Circuit granted
26 Defendants’ petition for permission to appeal. ECF No. 185. On January 7, 2026, the parties
27 submitted a Joint Status Report, ECF No. 189, after which the Court ordered additional briefing as
1 to whether this Court retains jurisdiction to continue proceedings while the Ninth Circuit considers
2 the Section 230 appeal. Order for Additional Briefing, ECF No. 190. The parties submitted the
3 requested briefing. Pls.’ Response (“Response”), ECF No. 191; Defs.’ Reply (“Reply”), ECF No.
4 192. On February 3, 2026, the parties appeared before the Court for a Status Conference. ECF
5 No. 194.
6 Based on the parties’ briefing and the discussion at the Status Conference, the Court
7 STAYS the case pending a ruling from the Ninth Circuit on the interlocutory appeal.
8 I. BACKGROUND
9 The Court’s most recent Order summarized the factual background of this case. Order at
10 2–3.
11 The relevant procedural background is as follows. Defendants first moved to dismiss all
12 claims in 2022, arguing that Defendants were immune under Section 230 of the Communications
13 Decency Act, 47 U.S.C. § 230 (“Section 230”). ECF No. 92. The briefing focused on three
14 theories of liability: (1) the promotion of social casino apps in the app stores (the promotion
15 theory); (2) the processing of in-app transactions for virtual chips (the payment processing theory);
16 and (3) the provision of support to casino app developers to drive increased user engagement and
17 revenue (the business support theory). The Court ruled that Section 230 barred the promotion and
18 business support theories but not the payment processing theory. ECF No. 106. The Court
19 certified its order for interlocutory appeal, which the Ninth Circuit granted but later dismissed and
20 remanded. ECF No. 119.
21 Defendants then moved to dismiss a second time, invoking Section 230 immunity as to the
22 surviving payment processing theory. ECF No. 145. On September 30, 2025, the Court issued an
23 order granting in part and denying in part the motions to dismiss. Order, ECF No. 176. The Court
24 allowed some claims to proceed (including most of the consumer protection claims as well as the
25 Kentucky loss-recovery claim), dismissed other claims (including most of the loss-recovery
26 claims, the unjust enrichment claims, and the RICO claims), and dismissed still other claims with
27 prejudice (including the California unjust enrichment and UCL claims). The Court again certified
1 its order for interlocutory appeal.
2 On October 21, 2025, Plaintiffs filed a notice of their intent to amend their complaint.
3 ECF No. 178. At a status conference on November 25, 2025, the Court expressed concern that
4 filing an amended complaint would moot a potential decision from the Ninth Circuit. Transcript,
5 ECF No. 184 at 5. Responding to that concern, Plaintiffs proposed filing an amended complaint,
6 against which Defendants could “adopt their same arguments on Section 230,” the Court could
7 “issue likely the same order on 230,” and that decision could be appealed with the amended
8 complaint as the new operative complaint. Id. Plaintiffs shared a draft of their amended
9 complaint with Defendants on December 12, 2025. Status Report at 1. On December 16,
10 however, the Ninth Circuit granted Defendants’ petition for permission to appeal. ECF No. 185.
11 Defendants believed that in granting the petition, the Ninth Circuit divested this Court of
12 jurisdiction over the case while the appeal is pending. Status Report at 5–10.
13 II. DISCUSSION
14 On January 8, 2026, the Court ordered Plaintiffs to submit additional briefing addressing
15 three questions raised in Defendants’ portion of the Status Report: (1) Does the Ninth Circuit’s
16 grant of the interlocutory review divest the Court of jurisdiction over the case while that appeal is
17 pending?; (2) If not, can and should the Court exercise discretion to stay the case?; and (3) May
18 the Court nonetheless proceed to issue orders on discovery? Order for Additional Briefing at 2.
19 The Court first addresses whether the Ninth Circuit’s grant of interlocutory review divests
20 the Court of jurisdiction, and, finding it does, does not reach the question of whether it may
21 exercise discretion to stay the case. The Court then addresses whether it may continue to issue
22 orders on discovery.
23 A. The Ninth Circuit’s Grant of Interlocutory Review Under 28 U.S.C. § 1292(b)
24 Divests the Court of Jurisdiction
25 In general, “an appeal from an interlocutory order does not divest the trial court of
26 jurisdiction to continue with other phases of the case.” Plotkin v. Pac. Tel. & Tel. Co., 688 F.2d
27 1291, 1293 (9th Cir. 1982); accord Song v. MTC Fin., Inc., 812 F. App’x 609, 610 (9th Cir. 2020).
1 That is because an interlocutory appeal only “divests the district court of its control over those
2 aspects of the case involved in the appeal.” California by & through Harrison v. Express Scripts,
3 Inc., 139 F.4th 763, 767 (9th Cir. 2025) (citing Coinbase, Inc. v. Bielski, 599 U.S. 736, 740
4 (2023)).
5 Defendants make two arguments. First, they posit that since the Section 230 issue could
6 terminate these actions in their entirety, the appeal affects—and thus stays—the whole case.1
7 Status Report at 7 (citing Coinbase, Inc. v. Bielski, 599 U.S. 736, 741 (2023)). Defendants also
8 suggest that Section 230 is intended to provide immunity from suit rather than just from liability.
9 Id. at 6 (citing Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d
10 1157, 1174 (9th Cir. 2008) (en banc)). Plaintiffs disagree, contending that Defendants have
11 incorrectly extended Coinbase beyond the arbitration context, and that Section 230 does not
12 protect defendants from having to litigate. Response at 1–2. In Reply, Defendants contend that
13 Coinbase is not limited to arbitration and that the text of Section 230 explicitly protects defendants
14 from suit. Reply at 2.2
15 The Court finds Defendants’ argument that Section 230 provides immunity from suit
16 unavailing. Defendants point to the clause in Section 230 that states that “no cause of action may
17 be brought” that is contrary to the statute. 47 U.S.C. § 230(e)(3). But the Tenth Circuit has held
18 that Section 230 “provides immunity only from liability, not suit.” Gen. Steel Domestic Sales,
19 L.L.C. v. Chumley, 840 F.3d 1178, 1181 (10th Cir. 2016). And the Ninth Circuit case Defendants
20 themselves cite clearly states that Section 230 is designed “to protect websites against the evil of
21 liability for failure to remove offensive content”; that case does not mention protection from suit.
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23 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.
24 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
25 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
26 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
27 interlocutory appeal does not divest the trial court of jurisdiction to continue with other parts of
the case. See Response at 1.
1 Roommates.com, 521 F.3d at 1174. Thus, the Court concludes that Section 230 does not protect
2 Defendants from suit.
3 The Court is, however, persuaded by Defendants’ argument that the interlocutory appeal
4 on the Section 230 issue deprives the Court of jurisdiction while the appeal is pending.
5 Defendants rely on Coinbase, which held that a district court must stay proceedings while an
6 interlocutory appeal on the question of “arbitrability” was ongoing. Coinbase, 599 U.S. at 738.
7 Plaintiffs argue that Express Scripts limited this finding to the arbitration context. California by &
8 through Harrison v. Express Scripts, Inc., 139 F.4th 763, 767 (9th Cir. 2025). In that case, the
9 Ninth Circuit declined to extend Coinbase to the federal officer removal context. Express Scripts,
10 139 F.4th at 767. The defendants had argued that since the issue on appeal was whether the case
11 belonged in state or federal court, the entire case was essentially involved in the appeal and should
12 be stayed. Id. The Ninth Circuit disagreed, holding that a stay was unnecessary because the venue
13 issue did not overlap with the questions that remained before the state court (including whether the
14 claims had merit and whether the parties were entitled to discovery). Id. at 771. Thus, there was
15 no risk that the district court and court of appeals “would be simultaneously analyzing the same
16 judgment.” Griggs, 459 U.S. at 59.
17 Consequently, though Plaintiffs are correct that Express Scripts read Coinbase as limited to
18 arbitration, it did so in the spirit of distinguishing why the specific concerns in Coinbase were not
19 present in Express Scripts. Fundamentally, Express Scripts relied on the Griggs principle: that to
20 prevent a district and an appeals court from coming to inconsistent judgments, an appeal “divests
21 the district court of its control over those aspects of the case involved in the appeal.” Griggs, 459
22 U.S. at 58. Furthermore, other courts have found that a district court may not grant leave to
23 amend an aspect of the case that is pending before the court of appeals. Dayton Indep. Sch. Dist.
24 v. U. S. Mineral Prods. Co., 906 F.2d 1059, 1063 (5th Cir. 1990); Green Leaf Nursery v. E.I.
25 DuPont De Nemours & Co., 341 F.3d 1292, 1309 (11th Cir. 2003). Here, since the Section 230
26 issue has the potential to terminate the actions in their entirety, the Ninth Circuit’s consideration of
27 the appeal stays any filing of an amended complaint.
B. The Court May Not Issue Orders on Discovery During the Stay
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Plaintiffs ask the Court to lift the discovery stay, at least with respect to written discovery.
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They hope lifting the stay would allow the case to progress while the Ninth Circuit considers the
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appeal and allow depositions to begin promptly after the appeal is concluded. Status Report at 3.
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Defendants argue that an interlocutory appeal also divests the district court of authority to order
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discovery. Id. at 8. (citing May v. Shehan, 226 F.3d 876, 880 (7th Cir. 2000)).
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An appeal “divests the district court of its control over those aspects of the case involved in
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the appeal.” Griggs, 459 U.S. at 58. Here, the Section 230 issue on appeal implicates and could
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theoretically dispose of the whole case. See supra Part II.A. Thus, the Court does not have
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authority to order discovery during the pendency of the appeal. Cf. May v. Shehan, 226 F.3d 876,
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880 (7th Cir. 2000) (finding that an interlocutory appeal of a denial of qualified immunity divested
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the district court of the authority to order discovery during the pendency of the appeal because
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“the ultimate question is . . . whether a public official should have to undergo the burdens of
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litigation.”).
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III. CONCLUSION
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For the foregoing reasons, the Court ORDERS:
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1. All dates, deadlines, and further activity in this case are stayed pending a decision by
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the Ninth Circuit in the interlocutory appeal.
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2. The Parties shall submit a joint status report within fourteen (14) days after the Ninth
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Circuit issues its opinion. That status report shall inform the Court how the parties intend to
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proceed with this case in light of the ruling in the appeal.
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IT IS SO ORDERED.
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Dated: June 1, 2026
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26 EDWARD J. DAVILA
United States District Judge
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