(The opinions expressed here are those of the author, a

columnist for Reuters.)

By Alison Frankel

May 22 (Reuters) - In the 18 months since the 9th U.S.

Circuit Court of Appeals agreed to hear a mid-case appeal on

whether Apple ( AAPL ), Google and Meta are immune from claims that they

promoted illegal gambling by processing payments for online

casinos, the tech giants and the consumers suing them have

spared no effort.

The busy litigants have plied the appeals court with

briefs, responded to friend-of-the-court filings from nine tech

and civil rights groups, and presented an hour of oral arguments

to a panel of 9th Circuit judges last month.

Never mind all that.

On Tuesday, the 9th Circuit dismissed both the appeal and a

cross appeal by plaintiffs, ruling that it did not have

jurisdiction to hear the case.

The problem, according to Judges Richard Paez and Jennifer

Sung, as well as U.S. District Judge Sidney Fitzwater of Dallas,

sitting by designation, is that the trial court decision at the

heart of the appeal broadly addressed the viability of

plaintiffs' legal theories - but did not apply those conclusions

to any of the 125 specific causes of action alleged against the

tech companies in three separate complaints.

So even though the trial judge, U.S. District Judge Edward

Davila of San Jose, California, certified his ruling for

immediate appellate review because of what he said was

uncertainty about the scope of immunity for Apple ( AAPL ), Google and

Meta, the 9th Circuit found that the holding was not an

appealable final order but an "opinion on an abstract question

of law."

The 9th Circuit said nothing was wrong with Davila's

decision to issue a ruling on the threshold question of whether

the defendants are shielded from all plaintiffs' claims by

Section 230 of the Communications Decency Act, which protects

internet publishers from liability for content posted by third

parties. But the appeals court said it does not have

jurisdiction without an order specifying the fate of each claim.

As I told you back in 2022, Davila concluded that Section

230 precludes plaintiffs' claims that Apple ( AAPL ), Google and Meta are

liable for allowing access to casino apps and for providing the

apps' developers with data and other services to target big

spenders and retain users. But the judge found that the

liability shield does not extend to claims that the defendants

violated some states' gambling laws by brokering transactions

(and collecting a commission) for the virtual "chips" required

by certain casino apps. (Considerable money is at stake in the

cases. Lawyer Jay Edelson has collected hundreds of millions of

dollars in previous settlements with casino app developers.)

Apple ( AAPL ), Google and Meta did not respond to my requests for

comment on the dismissal of their appeal. The companies' lawyers

- Weil, Gotshal & Manges for Apple ( AAPL ); Wilson Sonsini

Goodrich & Rosati for Alphabet subsidiary Google; and

Gibson, Dunn & Crutcher for Meta - argued in a

supplemental brief addressing appellate jurisdiction that the

9th Circuit should decide the merits of their appeal because a

win for them would end the case. They also said it would be a

shame to waste all of the time and effort already poured into

the appeal.

Plaintiffs' lawyers Jay Edelson and Rafey Balabanian of

Edelson did not respond to my query. Back in 2022, the Edelson

firm urged a separate 9th Circuit motions panel not to grant

interlocutory review of Davila's decision, arguing

unsuccessfully that the trial judge's ruling did not present a

novel or unsettled legal question.

Edelson reiterated that argument last February, after the

9th Circuit merits panel called for supplemental briefing on its

jurisdiction. But the firm also encouraged the panel to issue a

decision on the merits if it concluded that settled precedent

leaves no room for doubt about Davila's decision.

"If these appeals are now dismissed without further

explanation - whether for lack of jurisdiction or otherwise -

then all of the time and expense put into them is guaranteed

wasted," Edelson's brief argued.

Obviously, the 9th Circuit was more concerned with

jurisdictional consistency than with that waste of time and

effort.

So what happens now? Presumably, on remand, Davila could

simply wade through the plaintiffs' combined 125 causes of

action (citing the laws of 23 states) to sort out which remain

viable under the analysis of his 2022 opinion. The dockets,

after all, have been frozen since the 9th Circuit granted review

in 2022.

But the law hasn't. As you know, the U.S. Supreme Court

opted not to clarify the scope of Section 230 immunity despite

an opportunity to do so last year. Some other state and federal

courts, however, have been receptive in the last few years to

plaintiffs' arguments that internet platforms are not immune

from lawsuits alleging that they were negligently or defectively

designed to facilitate illegal conduct by content providers.

Will that line of reasoning prompt Edelson to attempt to replead

claims that Davila dismissed as precluded by Section 230?

The defendants, on the other hand, might ask Davila to

consider additional dismissal arguments instead of limiting his

threshold analysis to Section 230 immunity.

Earlier this month, the 9th Circuit affirmed Davila's

dismissal of a class action against app developer Supercell,

which was accused - like the defendants in the online casino

cases - of duping users into spending real money to play an

online game. The 9th Circuit ruled that the named plaintiffs

failed to show any concrete injury because even if the game

violated California gambling law, consumers nevertheless

"received exactly what they expected" from their purchases.

In other words, after a two-year hiatus, Davila will have a

lot to think about when Edelson's online casino cases come back

to his courtroom.

Read more:

Internet immunity shield gets another dent in fentanyl

victims' case against Snap

Apple ( AAPL ), Meta, Google argue they're not 'bookies' in casino

app appeal

In casino app cases against Apple ( AAPL ), Google and Meta, judge

queries 9th Circ. on immunity issue