`
`No. 21-1218
`================================================================================================================
`
`In The
`Supreme Court of the United States
`--------------------------------- ♦ ---------------------------------
`
`TYLER AYRES, et al.,
`
`Petitioners,
`
`v.
`
`INDIRECT PURCHASER PLAINTIFFS,
`TOSHIBA CORPORATION, SAMSUNG SDI CO., LTD.,
`KONINKLIJKE PHILIPS, N.V., THOMSON SA,
`HITACHI LTD., PANASONIC CORPORATION, et al.,
`
`Respondents.
`
`--------------------------------- ♦ ---------------------------------
`
`On Petition For A Writ Of Certiorari
`To The United States Court Of Appeals
`For The Ninth Circuit
`
`--------------------------------- ♦ ---------------------------------
`
`REPLY BRIEF
`
`--------------------------------- ♦ ---------------------------------
`
`TRACY R. KIRKHAM
`JOHN D. BOGDANOV
`COOPER & KIRKHAM, P.C.
`357 Tehama Street,
` Second Floor
`San Francisco, CA 94103
`Telephone: (415) 788-3030
`trk@coopkirk.com
`jdb@coopkirk.com
`
`JOHN G. CRABTREE
` Counsel of Record
` CHARLES M. AUSLANDER
` BRIAN C. TACKENBERG
` CRABTREE & AUSLANDER
` 240 Crandon Blvd.
` Suite 101
` Key Biscayne, FL 33149
` Telephone: (305) 361-3770
`jcrabtree@crabtreelaw.com
`
`[Additional Counsel Listed On Inside Cover]
`
`================================================================================================================
`COCKLE LEGAL BRIEFS (800) 225-6964
`WWW.COCKLELEGALBRIEFS.COM
`
`
`
`
`
`
`
`BRIAN M. TORRES
`BRIAN M. TORRES, P.A.
`One S.E. Third Avenue,
` Suite 3000
`Miami, FL 33131
`Telephone: (305) 901-5858
`btorres@briantorres.legal
`
`
`ROBERT J. BONSIGNORE
`BONSIGNORE, LLC
`3771 Meadowcrest Drive
`Las Vegas, NV 89121
`Telephone: (781) 856-7650
`rbonsignore@classactions.us
`
`FRANCIS O. SCARPULLA
`PATRICK B. CLAYTON
`LAW OFFICES OF
` FRANCIS O. SCARPULLA
`3708 Clay Street
`San Francisco, CA 94118
`Telephone: (415) 751-4193
`fos@scarpullalaw.com
`pbc@scarpullalaw.com
`THERESA D. MOORE
`LAW OFFICES OF
` THERESA D. MOORE
`One Sansome Street,
` 35th Floor
`San Francisco, CA 94104
`Telephone: (415) 613-1414
`tmoore@aliotolaw.com
`
`
`
`
`i
`
`TABLE OF CONTENTS
`
`1
`
`1
`
`2
`3
`
`Page
`ARGUMENT ........................................................
`1
`
`I. The courts of appeals are divided over
`whether a judgment moots a pending in-
`tervention appeal .......................................
`A. Two circuits have expressly recog-
`nized the circuit split that the Re-
`spondents deny exists ..........................
`B. The Respondents recast the issue to
`evade the circuit split ..........................
`C. The circuit split is clear and persistent ....
`1. The Second Circuit has consist-
`ently applied the minority rule ......
`2. The Ninth Circuit remains in dis-
`array ...............................................
`3. The D.C. Circuit remains in dis-
`array ...............................................
` II. The case presents an appropriate vehicle
`to address the split ....................................
`A. The Petitioners did not concede moot-
`ness ......................................................
`B. The Respondents’ other arguments
`about why they think they should ul-
`timately win are inapt .........................
`C. Non-publication does not impede this
`Court’s review ...................................... 11
` III. The jurisdictional MDL issue supports
`granting certiorari ..................................... 12
`
`3
`
`4
`
`6
`
`7
`
`7
`
`9
`
`
`
`ii
`
`TABLE OF CONTENTS—Continued
`
`Page
`A. The Ninth Circuit’s failure to reach
`the issue does not preclude review ...... 12
`B. The issue is important ......................... 13
`C. The MDL jurisdictional issue does not
`hinder review ....................................... 13
`CONCLUSION ..................................................... 14
`
`
`
`iii
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`Andrus v. Texas, 140 S.Ct. 1875 (2020) ...................... 12
`C.I.R. v. McCoy, 484 U.S. 3 (1987) .............................. 12
`CVLR Performance Horses, Inc. v. Wynne, 792
`F.3d 469 (4th Cir. 2015) ............................................. 1
`DBSI/TRI IV Ltd. P’ship v. United States, 465
`F.3d 1031 (9th Cir. 2006) ........................................... 6
`DeOtte v. State, 20 F.4th 1055 (5th Cir. 2021) .............. 1
`Dunn v. Reeves, 141 S.Ct. 2405 (2021) ....................... 12
`Energy Transportation Group, Inc. v. Maritime
`Administration, 956 F.2d 1206 (D.C. Cir. 1992) ..... 6, 7
`Intec USA, LLC v. Engle, 467 F.3d 1038 (7th Cir.
`2006) ........................................................................ 14
`
`Kunz v. New York State Comm’n on Judicial
`Misconduct, 155 Fed. App’x 21 (2d Cir. 2005) ...... 3, 4
`Lopez v. NLRB, 655 Fed. App’x 859 (D.C. Cir.
`2016) ...................................................................... 6, 7
`Mitchell v. Forsyth, 472 U.S. 511 (1985) ..................... 12
`National Bulk Carriers v. Princess Management
`Co., 597 F.2d 819 (2d Cir. 1979) ............................ 3, 4
`New York City Transit Auth. v. Beazer, 440 U.S.
`568 (1979) ................................................................ 12
`Nixon v. Fitzgerald, 457 U.S. 731 (1982) .................... 12
`Sinochem Intern. Co. Ltd. v. Malaysia Intern.
`Shipping Corp., 549 U.S. 422 (2007) ....................... 13
`
`
`
`iv
`
`TABLE OF AUTHORITIES—Continued
`
`Page
`
`Smith v. Los Angeles Unified Sch. Dist., 830 F.3d
`843 (9th Cir. 2016) ..................................................... 9
`Spinelli v. Gaughan, 12 F.3d 853 (9th Cir. 1993) ......... 5
`Standard Fire Ins. Co. v. Knowles, 568 U.S. 588
`(2013) ....................................................................... 11
`United States v. Alisal Water Corp., 370 F.3d 915
`(9th Cir. 2004) ............................................................ 9
`United States v. Ford, 650 F.2d 1141 (9th Cir.
`1981) .......................................................................... 4
`United States v. Sprint Communications, Inc.,
`855 F.3d 985 (9th Cir. 2017) .................................. 4, 5
`United States v. State of Oregon, 745 F.2d 550
`(9th Cir. 1984) .......................................................... 10
`
`W. Coast Seafood Processors Ass’n v. Nat. Res.
`Def. Council, Inc., 643 F.3d 701 (9th Cir. 2011) ......... 6
`
`
`STATUTES
`NEWBERG ON CLASS ACTIONS § 16:7 (4th ed. 2002) ...... 11
`
`OTHER AUTHORITIES
`
`A Closer Look at Unpublished Opinions in the
`United States Courts of Appeals, 3 J. APP.
`PRAC. & PROCESS 199 (2001) ................................... 12
`
`
`
`
`
`
`v
`
`TABLE OF AUTHORITIES—Continued
`
`Amy E. Sloan, The Dog That Didn’t Bark:
`Stealth Procedures and the Erosion of Stare
`Decisis in the Federal Courts of Appeals, 78
`FORDHAM L. REV. 713 (2009) ..................................... 5
`
`Page
`
`
`
`1
`
`ARGUMENT
`I. The courts of appeals are divided over
`whether a judgment moots a pending in-
`tervention appeal.
`A. Two circuits have expressly recognized
`the circuit split that the Respondents
`deny exists.
`The first question presented is whether a later-
`
`entered final judgment moots a pending intervention
`appeal. That legal question has long divided the cir-
`cuits. (Pet. 21-31). The Respondents nonetheless tell
`the Court that “the petition posits a circuit split that
`does not exist.” (Resp. 22). It is a surprising position,
`especially given that two circuits have expressly recog-
`nized the split the Respondents deny: DeOtte v. State,
`20 F.4th 1055, 1066 (5th Cir.2021); CVLR Performance
`Horses, Inc. v. Wynne, 792 F.3d 469, 474 (4th Cir.2015).
`
`The Respondents try to discredit those circuits’
`opinions by claiming they were based on “outdated
`cases.” (Resp. 22). But the Fifth Circuit’s DeOtte opin-
`ion was issued in December 2021. Unless a tectonic
`shift occurred in the past five months, the DeOtte panel
`had every relevant case at its disposal when it re-
`affirmed the circuit split at the heart of this petition.
`20 F.4th at 1066.
`
`
`
`
`
`
`
`2
`
`B. The Respondents recast the issue to
`evade the circuit split.
`The Respondents’ substantive argument that the
`
`acknowledged circuit split “does not exist” depends on
`recasting the issue causing the split into something it
`is not. Specifically, the Respondents claim there is no
`split because all the circuits employ a “fact-specific,
`case-by-case” analysis to determine whether an inter-
`vention appeal is moot. (Resp. 16). But the split exists
`because the circuits disagree about whether a pending
`intervention appeal may continue after the dismissal
`of the underlying action.
`
`The majority rule holds that a final judgment does
`
`not moot a pending intervention appeal. (Pet. 21-24).
`Under the minority rule, in contrast, if the underlying
`case is dismissed by a final judgment, the earlier-pend-
`ing intervention appeal becomes moot. (Pet. 24-31). No
`other facts matter. Calling intervention-mootness a
`“fact-specific, case-by-case” analysis is thus no more
`than legerdemain—a hollow statement about moot-
`ness analysis in general that says nothing about the
`certworthiness of the legal issue in this case.
`
`The Respondents’ notion that the Petitioners are
`
`asking the Court to adopt an unspecified “case-by-case
`rule” to determine whether a final judgment moots a
`pending intervention appeal is an exemplar straw-
`man. (Resp. 23). The Petitioners are asking the Court
`to disapprove the minority rule (employed by the
`Ninth Circuit below), under which a final judgment
`automatically moots a pending intervention appeal.
`
`
`
`3
`
`Under that minority paradigm, the mootness analysis
`is binary: if the underlying litigation is finally resolved,
`the pending appeal must be dismissed. The Petitioners
`are challenging the validity of that binary rule.
`
`It is true that there is disagreement among the
`
`majority-rule circuits about the steps a putative inter-
`venor must take to ensure its appeal remains viable
`after entry of a final judgment. Specifically, there is a
`sub-split about whether the later-entered final judg-
`ment must also be appealed to avoid mootness in the
`pending intervention appeal. (Pet. 24). But that nuance
`further proves what this appeal is about: determining
`the procedural effect of a final judgment on a pending
`intervention appeal and, if the minority rule is incor-
`rect, the steps a putative intervenor must take to avoid
`mootness.
`
`
`
`C. The circuit split is clear and persistent.
`1. The Second Circuit has consistently
`applied the minority rule.
`In the Second Circuit, the law is clear: “where the
`
`action in which a litigant seeks to intervene has been
`discontinued, the motion to intervene is rendered
`moot.” Kunz v. New York State Comm’n on Judicial
`Misconduct, 155 Fed. App’x 21, 22 (2d Cir.2005). The
`Respondents’ effort to complicate that precedent fails.
`
`In National Bulk Carriers v. Princess Management
`
`Co., 597 F.2d 819, 825 n.13 (2d Cir.1979), the Second
`Circuit was clear that it “need not reach the merits of
`
`
`
`4
`
`[an intervention] appeal . . . because [the court’s] affir-
`mance on the main appeal render[ed] the intervention
`issue moot.” That determination was founded on one
`fact: “intervention in an action that is now terminated
`could not afford any [relief.]” Id. The Second Circuit’s
`conclusion that intervention would not afford addi-
`tional “protection” was no more than a restatement of
`the dispositive fact that a terminated case cannot pro-
`vide relief. Id.
`
`The Respondents urge the Court to ignore Kunz
`because it used “broad language.” (Resp. 21). It is not
`entirely clear what that means. Kunz mechanically ap-
`plied the minority rule and, if the panel’s language
`leaves any doubt as to that intention, the panel’s cita-
`tion to United States v. Ford, 650 F.2d 1141, 1142–43
`(9th Cir.1981)—a case employing the minority rule—
`leaves no doubt. 155 Fed. App’x at 22. The fact that the
`Kunz court affirmed the orders on appeal (as opposed
`to dismissing the appeal) made sense given that the
`trial court, itself, had denied intervention on the same
`mootness grounds. Id.
`
`
`2. The Ninth Circuit remains in disarray.
`The Respondents concede that the Ninth Circuit’s
`
`precedent has been in disarray, admitting that there
`“may have been a period during which the Ninth Cir-
`cuit ‘rendered inconsistent decisions’ on” the conflict is-
`sue. (Resp. 18). But then they contend a panel of the
`Ninth Circuit “resolved” the court’s divergent prece-
`dent in United States v. Sprint Communications, Inc.,
`
`
`
`5
`
`855 F.3d 985, 990 (9th Cir.2017). There are two prob-
`lems with this argument:
`
`First, this case itself is vivid evidence that the
`
`Ninth Circuit has not abandoned the minority rule.
`The court of appeals dismissed the Petitioners’ earlier-
`filed intervention appeal as moot on the explicit basis
`that the court was affirming the later-entered final
`judgment. (App. 9). Despite the Respondents’ effort to
`suggest the Ninth Circuit’s decision rested on other,
`“fact-specific” grounds, the decision’s rationale is lim-
`ited to the singular basis that the court was affirming
`the later-entered final judgment. Id.
`
`Second, the Ninth Circuit’s 2017 decision in Sprint
`did not reconcile or rewrite the Ninth Circuit’s prece-
`dent, and the decision could not have done so—even if
`that were the panel’s intent. See Spinelli v. Gaughan,
`12 F.3d 853, 855 n.1 (9th Cir.1993) (“a panel of this
`court cannot overrule Ninth Circuit precedent”); see
`also Amy E. Sloan, The Dog That Didn’t Bark: Stealth
`Procedures and the Erosion of Stare Decisis in the Fed-
`eral Courts of Appeals, 78 FORDHAM L. REV. 713, 726
`(2009) (“Not all circuits use informal en banc review.
`The U.S. Courts of Appeals for the Third, Ninth, Elev-
`enth, and Federal Circuits do not authorize or use it.”).
`
`And while the Sprint panel may have applied the
`
`majority rule in that case, the decision was no water-
`shed moment in which the Ninth Circuit “resolved” its
`prior divergent precedents. Indeed, panels within the
`Ninth Circuit had selectively applied the majority rule
`as far back as 2006—long before Sprint. See, e.g.,
`
`
`
`6
`
`DBSI/TRI IV Ltd. P’ship v. United States, 465 F.3d
`1031, 1037 (9th Cir.2006) (intervention controversy
`survived final judgment because “if it were concluded
`on appeal that the district court had erred . . . the ap-
`plicant would have standing to appeal the district
`court’s judgment.” (internal quotation marks omit-
`ted)). Of course, other panels of the Ninth Circuit have
`since (as in this case) also continued to apply the mi-
`nority rule. See, e.g., W. Coast Seafood Processors Ass’n
`v. Nat. Res. Def. Council, Inc., 643 F.3d 701, 704 (9th
`Cir.2011) (“Because the underlying litigation is over,
`we cannot grant WCSPA any ‘effective relief ’ by allow-
`ing it to intervene now.”).
`
`
`
`3. The D.C. Circuit remains in disarray.
`The Respondents similarly contend that the D.C.
`
`Circuit has harmonized its divergent precedent. (Resp.
`18-19). In contrast to their Ninth Circuit discussion,
`the Respondents do not even point to a case where the
`D.C. Circuit purportedly “shift[ed]” towards the major-
`ity rule. (Resp. 18). Instead, the Respondents hang
`their hat on the fact that Energy Transportation
`Group, Inc. v. Maritime Administration, 956 F.2d 1206
`(D.C. Cir.1992)—a case that indisputably applied the
`minority rule—is “now nearly thirty years old.” (Resp.
`19). But precedent does not have a shelf life. And Lopez
`v. NLRB, 655 Fed. App’x 859 (D.C. Cir.2016)—cited by
`the Respondents—proves that Energy Transportation
`Group is still viable precedent. In Lopez, the D.C. Cir-
`cuit dismissed an intervention appeal when the un-
`derlying case settled, explaining that the “parties’
`
`
`
`7
`
`voluntary settlement of their entire dispute renders a
`case moot, thereby depriving the court of jurisdiction
`to decide the appeal or petition for review.” 655 Fed.
`App’x at 861. Citing Energy Transportation Group, the
`Lopez panel concluded that the intervention appeal
`was moot because “[t]here simply [was] no live case in
`which Lopez can intervene to litigate those settled is-
`sues.” Id. at 862.
`
`II. The case presents an appropriate vehicle
`to address the split.
`A. The Petitioners did not concede moot-
`ness.
`The Petitioners’ actions below were focused on one
`
`goal: ensuring the continued viability of their inter-
`vention-of-right appeal. In light of the Ninth Circuit’s
`“divergent precedents” on whether a subsequently-
`entered final judgment moots an already-pending in-
`tervention appeal, the Petitioners filed a motion in the
`district court to stay final approval of the proposed
`settlement; objected to final approval on the basis that
`entry of a final judgment could moot their appeal; and
`filed a motion to stay final approval in the Ninth Cir-
`cuit. (Pet. 13-16). The Respondents opposed such relief
`at every juncture, arguing there was no possibility that
`entry of a final judgment could moot the pending inter-
`vention appeal. Id.
`
`The Respondents now argue—despite all of the Pe-
`titioners’ efforts to avoid mootness—that the Petition-
`ers conceded their appeal was moot and, thus, cannot
`
`
`
`8
`
`ask this Court for relief. (Resp. 24). The argument mis-
`represents the record.
`
`In their briefing, the Petitioners were clear that
`
`they had standing to object to final settlement ap-
`proval because “if the district court’s final approval or-
`der and final judgment as to the Defendants become
`final, the [Petitioners’] appeal from the district court’s
`order denying them leave to intervene to act as re-
`placement class representatives . . . could be mooted.”
`No. 20-16699, ECF No. 28 at 27 (emphasis added). In
`support of that possibility, the Petitioners cited the
`branch of the Ninth Circuit’s divergent precedent that
`required dismissal under such circumstances while,
`also, acknowledging the other branch, which would al-
`low their appeal to proceed. Id. Recognizing adverse
`precedent does not amount to a concession that such
`precedent is correct.
`
`The Respondents’ reliance on four words from a
`
`30-minute oral argument is also misplaced. (Resp. 24).
`While the Respondents claim that an answer from one
`of the Petitioners’ lawyers addressed a hypothetical in-
`volving what would happen “if the court affirmed the
`district court’s approval of the amended settlement
`agreements” (Resp. 24), that is untrue. The hypothet-
`ical at issue was “if the Defendants are removed from
`the MDL through executing the amended settle-
`ments, will there be an original pleading to amend?”
`(9th Cir. Oral Arg. 13:50-14:00). This hypothetical ad-
`dressed the viability of the Petitioners’ relation-
`back arguments, which they intended to employ if
`
`
`
`9
`
`allowed to intervene—not the viability of their pend-
`ing intervention-of-right appeal.
`
`
`
`B. The Respondents’ other arguments about
`why they think they should ultimately
`win are inapt.
`The Respondents argue that review is inappropri-
`
`ate because the Petitioners would not be able to satisfy
`the substantive test for intervention if the case were
`remanded. (Resp. 25-26 n.8). The parties’ likelihood of
`prevailing on as-yet-to-be-litigated issues is irrelevant,
`but the Respondents’ argument also misconstrues in-
`tervention law and the record.
`
`First, the Respondents argue that the Petitioners’
`
`motion to intervene was untimely because their motion
`was “filed twelve years after the MDL began and nine
`years after it became clear that petitioners’ state-law
`damages claims would not be asserted in the MDL.”
`Id.1 That simplistic timeline ignores the reality of this
`litigation.
`
`“Timeliness is a flexible concept; its determination
`
`is left to the district court’s discretion.” United States
`v. Alisal Water Corp., 370 F.3d 915, 921 (9th Cir.2004).
`Where circumstances materially change during the lit-
`igation, that change can catalyze intervention and re-
`set the timeliness clock. See Smith v. Los Angeles
`
`1 This argument is patently inapplicable to the NRS Plain-
`
`tiff. Lead Counsel always asserted federal antitrust claims seek-
`ing equitable and injunctive relief on behalf of indirect purchasers
`in all 50 states. (DE 5584-1:60-62).
`
`
`
`10
`
`Unified Sch. Dist., 830 F.3d 843, 854 (9th Cir.2016)
`(“[T]he stage of proceedings factor should be analyzed
`by reference to the change in circumstances, and not
`the commencement of the litigation.”); United States v.
`State of Oregon, 745 F.2d 550 (9th Cir.1984) (“the pos-
`sibility of new and expanded negotiations” 15 years af-
`ter the commencement of the case amounted to change
`of circumstances resetting timeliness clock).
`
`On remand from the first appeal, intervention was
`
`necessary because the Petitioners—still members of a
`national certified class—lacked non-conflicted counsel.
`(Pet. 6-7). It was, after all, that very attorney-client
`conflict that had necessitated the remand proceedings.
`(App. 161-63). Without intervention on remand, those
`class-member Petitioners would have had no means to
`protect themselves from their own lawyers (Lead
`Counsel), who were seeking to cut the Petitioners free
`from any claims against the Defendants in order to get
`a settlement for the other class members those lawyers
`represented. (Pet. 6-7). The district court’s reconsider-
`ation of the prior settlement on remand was thus pre-
`cisely the type of “change of circumstances” that makes
`late stage intervention appropriate.2
`
`
`2 The Respondents’ reliance on the 2010 complaint as the
`
`touchstone for when the Petitioners should have known Lead
`Counsel was not pursuing state-law-damages claims on their be-
`half is particularly misleading. The claims raised in the 2010
`amendment were based on a 2010 stipulation that Lead Counsel
`entered with the Defendants (in which counsel sought to horse-
`trade damages claims in some states for others). The district court
`vacated that deal on remand in 2019. (DE 5518).
`
`
`
`11
`
`Second, the Respondents contend that interven-
`
`tion would be inappropriate because the Petitioners
`would not be able to show that denial of intervention
`would “impair or impede [their] ability to protect
`[their] interest[s.]” (Resp. 26 n.8) (quoting Fed. R. Civ.
`P. 24(a)(2)). They claim this is so because “desire to in-
`voke the relation-back doctrine is not a valid basis for
`intervention.” Id.
`
`But that misconstrues the legal standard for inter-
`vention: “Members of a class have a right to intervene
`if their interests are not adequately represented by
`existing parties.” Standard Fire Ins. Co. v. Knowles,
`568 U.S. 588, 594 (2013) (quoting NEWBERG ON CLASS
`ACTIONS § 16:7, p. 154 (4th ed. 2002) (alteration re-
`moved)). On remand, the Petitioners—still class mem-
`bers—undisputedly lacked adequate representation.
`(Pet. 6-7). They thus had the right to intervene so they
`could pursue their claims with adequate representa-
`tion, including the right to assert the relation-back
`doctrine or any other theory that adequate represent-
`atives would present.
`
`
`
`C. Non-publication does not impede this
`Court’s review.
`The Respondents do not explicitly argue that the
`
`Court should deny review because the Ninth Circuit’s
`opinion is unpublished. Yet they repeatedly and point-
`edly invoke the opinion’s unpublished status. The Re-
`spondents’ sotto voce argument for denial should be
`ignored.
`
`
`
`12
`
`Nonpublication has never been a bar to this
`
`Court’s review. See A Closer Look at Unpublished
`Opinions in the United States Courts of Appeals, 3 J.
`APP. PRAC. & PROCESS 199, 228 (2001) (collecting doz-
`ens of cases reviewing unpublished decisions).3 Indeed,
`“the fact that [a] Court of Appeals’ order under chal-
`lenge . . . is unpublished carries no weight in [the
`Court’s] decision to review the case.” C.I.R. v. McCoy,
`484 U.S. 3, 7 (1987).
`
`
`III. The jurisdictional MDL issue supports
`granting certiorari.
`A. The Ninth Circuit’s failure to reach the
`issue does not preclude review.
`The Respondents argue that it would be “inappro-
`
`priate” for the Court to review the jurisdictional MDL
`issue because the Ninth Circuit did not reach that
`issue. (Resp. 26-27). But the Court has long held that
`a “purely legal question . . . is ‘appropriate for [the
`Court’s] immediate resolution’ notwithstanding that it
`was not addressed by the Court of Appeals.” Mitchell v.
`Forsyth, 472 U.S. 511, 530 (1985) (quoting Nixon v. Fitz-
`gerald, 457 U.S. 731, 743 n.23 (1982)); see also New
`York City Transit Auth. v. Beazer, 440 U.S. 568, 583 n.24
`(1979) (same).
`
`
`
`
`3 The Court has, of course, continued to grant certiorari to
`
`review unpublished decisions. See, e.g., Dunn v. Reeves, 141 S.Ct.
`2405 (2021); Andrus v. Texas, 140 S.Ct. 1875 (2020).
`
`
`
`13
`
`B. The issue is important.
`The Respondents make two arguments that the
`
`MDL issue is not important: First, they argue that the
`district court’s jurisdictional determination is correct.
`(Resp. 28). But their analysis—merely invoking the
`language of the MDL statute—is ipse dixit: they fail to
`address this Court’s precedent prohibiting courts from
`ascribing jurisdictional significance to statutes (like
`the MDL statute) that do not clearly speak in jurisdic-
`tional terms. (Pet. 36).
`Second, the Respondents argue the issue cannot
`
`be important because there are only three decisions
`from MDL courts on point. (Resp. 27). But that is be-
`cause it has been almost universally accepted that par-
`ties may file directly in an MDL proceeding. (Pet. 37
`n.9).4 The three cited decisions from MDL courts create
`a body of law that not only conflicts with established
`practice, but would strip members of class actions of
`their due process protections. (Pet. 35).
`
`
`
`C. The MDL jurisdictional issue does not
`hinder review.
`If the Court were to grant review on the mootness
`
`issue, there is no requirement that the Court also ad-
`dress the MDL jurisdictional issue. “[J]urisdiction is
`vital only if the court proposes to issue a judgment
`on the merits.” Sinochem Intern. Co. Ltd. v. Malay-
`sia Intern. Shipping Corp., 549 U.S. 422, 431 (2007)
`
`
`4 The IPPs in this very case undertook such “direct filing.”
`
`(DE 5584-1:5-9).
`
`
`
`14
`
`(alteration in original) (quoting Intec USA, LLC v.
`Engle, 467 F.3d 1038, 1041 (7th Cir.2006)). So, while
`the Petitioners believe review on the MDL jurisdic-
`tional issue is necessary given the clarity and gravity
`of the error presented (Pet. 34-39), the Court is obvi-
`ously free to limit its review to only the mootness issue
`that has split the circuits and leave the jurisdictional
`issue to be decided in the first instance on remand.
`
`CONCLUSION
`The petition for a writ of certiorari should be
`
`granted.
`
`TRACY R. KIRKHAM
`JOHN D. BOGDANOV
`COOPER & KIRKHAM, P.C.
`357 Tehama Street,
` Second Floor
`San Francisco, CA 94103
`Telephone: (415) 788-3030
`trk@coopkirk.com
`jdb@coopkirk.com
`
`FRANCIS O. SCARPULLA
`PATRICK B. CLAYTON
`LAW OFFICES OF
` FRANCIS O. SCARPULLA
`3708 Clay Street
`San Francisco, CA 94118
`Telephone: (415) 751-4193
`fos@scarpullalaw.com
`pbc@scarpullalaw.com
`
`Respectfully submitted,
`JOHN G. CRABTREE
` Counsel of Record
` CHARLES M. AUSLANDER
` BRIAN C. TACKENBERG
` CRABTREE & AUSLANDER
` 240 Crandon Blvd.
` Suite 101
` Key Biscayne, FL 33149
` Telephone: (305) 361-3770
`jcrabtree@crabtreelaw.com
`
` causlander@crabtreelaw.com
` btackenberg@crabtreelaw.com
`BRIAN M. TORRES
`BRIAN M. TORRES, P.A.
`One S.E. Third Avenue,
` Suite 3000
`Miami, FL 33131
`Telephone: (305) 901-5858
`btorres@briantorres.legal
`
`
`
`15
`
`ROBERT J. BONSIGNORE
`BONSIGNORE, LLC
`3771 Meadowcrest Drive
`Las Vegas, NV 89121
`Telephone: (781) 856-7650
`rbonsignore@classactions.us
`
`THERESA D. MOORE
`LAW OFFICES OF
` THERESA D. MOORE
`One Sansome Street,
` 35th Floor
`San Francisco, CA 94104
`Telephone: (415) 613-1414
`tmoore@aliotolaw.com
`
`
`
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