throbber
Case: 23-80049, 06/09/2023, ID: 12732280, DktEntry: 9, Page 1 of 20
`
`No. 23-80049
`
`IN THE
`United States Court of Appeals
`For the Ninth Circuit
`
`MARIA SCHNEIDER, UNIGLOBE ENTERTAINMENT, LLC, AND AST
`PUBLISHING LTD., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
`SIMILARLY SITUATED,
`
`
`Plaintiffs-Petitioners,
`
`
`v.
`
`YOUTUBE, LLC AND GOOGLE LLC,
`
`
`Defendants-Respondents.
`
`Petition for Review of Order Denying Class Certification from the
`United States District Court for the Northern District of California
`No. 3:20-cv-04423-JD
`District Judge James Donato
`
`REPLY IN SUPPORT OF PLAINTIFFS’ RULE 23(F) PETITION AND
`EMERGENCY MOTION FOR A STAY
`
`Philip C. Korologos
`pkorologos@bsfllp.com
`Eric J. Brenner
`ebrenner@bsfllp.com
`Jeffrey Waldron
`jwaldron@bsfllp.com
`BOIES SCHILLER FLEXNER LLP
`55 Hudson Yards, 20th Floor
`New York, NY 10001
`Telephone: (212) 446-2300
`Facsimile: (212) 446-2350
`
`George A. Zelcs
`gzelcs@koreintillery.com
`Randall P. Ewing, Jr.
`rewing@koreintillery.com
`David Walchak
`dwalchak@koreintillery.com
`KOREIN TILLERY, LLC
`205 North Michigan, Suite 1950
`Chicago, IL 60601
`Telephone: (312) 641-9750
`Facsimile: (312) 641-9751
`Counsel for Plaintiffs-Petitioners
`
`
`
`
`
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`

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`Case: 23-80049, 06/09/2023, ID: 12732280, DktEntry: 9, Page 2 of 20
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`Additional Counsel
`
`
`Joshua Irwin Schiller
`jischiller@bsfllp.com
`BOIES SCHILLER FLEXNER LLP
`44 Montgomery St., 41st Floor
`San Francisco, CA 94104
`Telephone: (415) 293-6800
`Facsimile: (415) 293-6899
`
`Stephen M. Tillery
`stillery@koreintillery.com
`Carol O’Keefe
`cokeefe@koreintillery.com
`KOREIN TILLERY, LLC
`505 North 7th Street, Suite 3600
`St. Louis, MO 63101
`Telephone: (314) 241-4844
`Facsimile: (314) 241-3525
`
`Counsel for Plaintiffs-Petitioners
`
`
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`

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`Case: 23-80049, 06/09/2023, ID: 12732280, DktEntry: 9, Page 3 of 20
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`CORPORATE DISCLOSURE STATEMENT
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`Pursuant to Federal Rule of Appellate Procedure 26.1(a), Plaintiffs-
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`Petitioners state that Uniglobe Entertainment, LLC, and AST Publishing Ltd. have
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`no parent companies and no publicly held corporation owns 10% or more of either
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`company’s stock.
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`Date: June 9, 2023
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`
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`
`
`
`
` /s/ Philip C. Korologos
`Philip C. Korologos
`
`
`
`
`
`
`
`i
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`

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`Case: 23-80049, 06/09/2023, ID: 12732280, DktEntry: 9, Page 4 of 20
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION ..................................................................................................... 1
`
`ARGUMENT ............................................................................................................. 1
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`I.
`
`THE COURT SHOULD GRANT PLAINTIFFS’ EMERGENCY STAY
`MOTION ......................................................................................................... 1
`
`A.
`
`B.
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`Plaintiffs Have Established Irreparable Harm If a Stay Is Denied ....... 2
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`The Other Factors Support Granting a Stay .......................................... 4
`
`II.
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`THE COURT SHOULD GRANT PLAINTIFFS’ RULE 23(f) PETITION .. 5
`
`A.
`
`B.
`
`C.
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`Plaintiffs Proposed Prima Facie Classwide Evidence of Copyright
`Ownership and Infringement ................................................................. 6
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`Plaintiffs Properly Requested an Issues Class ...................................... 7
`
`The District Court Erred in Denying Certification of CMI Classes ..... 9
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`D. Other Issues Do Not Preclude Review and Certification ....................11
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`CONCLUSION ........................................................................................................12
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`ii
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`

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`Case: 23-80049, 06/09/2023, ID: 12732280, DktEntry: 9, Page 5 of 20
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`TABLE OF AUTHORITIES
`
`Cases
`
`Athos Overseas Ltd. Corp. v. YouTube, Inc.,
`No. 21-21698-Civ (S.D. Fla. May 16, 2023) .......................................................... 8
`
`Desire, LLC v. Manna Textiles, Inc.,
`986 F.3d 1253 (9th Cir. 2021) ................................................................................ 7
`
`Flo & Eddie, Inc. v. Sirius XM Radio, Inc.,
`2015 WL 4776932 (C.D. Cal. May 27, 2015) ........................................................ 5
`
`Football Ass’n Premier League Ltd. v. YouTube, Inc.,
`297 F.R.D. 64 (S.D.N.Y. 2013) .............................................................................. 4
`
`Kihn v. Bill Graham Archives LLC,
`2022 WL 18935 (9th Cir. Jan. 3, 2022) (unpublished) .......................................... 4
`
`La Sala v. Am. Sav. & Loan Assn.,
`5 Cal. 3d 864 (1971) .............................................................................................11
`
`Stevens v. CoreLogic,
`899 F.3d 666 (9th Cir. 2018) ................................................................................10
`
`Viacom Int’l. Inc. v YouTube, Inc.,
`940 F. Supp. 2d 110 (S.D.N.Y. 2013) .................................................................... 8
`
`Statutes
`
`17 U.S.C. § 512 ................................................................................................. 3, 7, 8
`
`17 U.S.C. § 1202 ......................................................................................................10
`
`Other Authorities
`
`Todd Spangler, “Why the Viacom-YouTube Case Wasn’t a Giant Waste of Time”,
`Variety (Mar. 18, 2014) .......................................................................................... 9
`
`Rules
`
`Federal Rule of Civil Procedure 23 .............................................................. 2, 3, 4, 5
`
`
`
`iii
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`

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`Case: 23-80049, 06/09/2023, ID: 12732280, DktEntry: 9, Page 6 of 20
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`INTRODUCTION
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`The district court’s class certification ruling, issued three weeks before trial,
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`contained numerous manifest errors. Some errors Defendants hardly dispute.
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`Others Defendants compound by, for example, insisting that the weight of the
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`evidence will support Defendants’ position at trial, when all that matters for now is
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`that Plaintiffs’ common proof meets the prima facie standard that controls at class
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`certification. Defendants’ opposition briefs claim no harm will come if any errors
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`are resolved on an appeal after final judgment. But Defendants’ position requires
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`ignoring the primary arguments in Plaintiffs’ stay motion. This Court should grant
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`Plaintiffs’ petition and stay the trial set three days hence to avoid irreparable harm,
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`correct manifest errors, and ensure that issues of paramount importance to
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`copyright holders worldwide, as well as the jurisprudence of this Court, do not
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`evade review.
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`ARGUMENT
`
`I.
`
`THE COURT SHOULD GRANT PLAINTIFFS’ EMERGENCY STAY
`MOTION
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`Defendants’ opposition brief largely focuses on irreparable harm issues, but
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`ignores Plaintiffs’ primary arguments on such harm. Defendants’ other arguments
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`opposing a stay also do not withstand scrutiny.
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`
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`1
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`

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`Case: 23-80049, 06/09/2023, ID: 12732280, DktEntry: 9, Page 7 of 20
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`A.
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`Plaintiffs Have Established Irreparable Harm If a Stay Is Denied
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`Plaintiffs’ primary argument for irreparable harm was unequivocal: vacating
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`or reversing the district court’s denial of class certification after trial will require
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`Plaintiffs to retry the class claims separately from individual claims, and “the
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`putative Class will perversely face the prospect that the class representatives may
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`no longer be viable plaintiffs.” Stay Mot. 17. As Plaintiffs explained and
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`Defendants ignore, this could render any victory on appeal “illusory,” since to then
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`pursue the class claims the Class may have to try to identify new named plaintiffs,
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`who would then face renewed, intensive discovery before again proceeding to trial
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`against defendants with effectively unlimited resources. Id.
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`Defendants offer literally no response. That alone is sufficient basis to grant
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`the stay.
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`The arguments Defendants do make on irreparable harm fail. First,
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`Defendants bizarrely suggest that since the Federal Rules do not provide for an
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`automatic stay for Rule 23(f) appeals, the rules therefore “expressly reject” that a
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`stay is warranted when a class plaintiff will be forced to proceed to an individual
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`trial. Opp. to Stay 11 (emphasis in original). But there are obvious practical
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`reasons why Rule 23(f) petitions do not automatically stay proceedings, including
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`that class certification orders are regularly decided years before trial is set in a
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`2
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`

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`Case: 23-80049, 06/09/2023, ID: 12732280, DktEntry: 9, Page 8 of 20
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`case,1 allowing the decision to be reviewed concurrent with discovery, summary
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`judgment, and trial preparation. Plaintiffs are aware of no case in this Circuit, and
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`Defendants cite none, where trial proceeded concurrently with Rule 23(f) review.
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`Defendants also dismiss the relevance of the fact that, absent a class,
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`Plaintiffs cannot vindicate the interests of copyright claimants in establishing that
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`YouTube fails the eligibility requirements for the DMCA safe harbor under
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`Section 512(i). Opp. to Stay 12–13. Defendants disingenuously assert that their
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`withdrawal of their DMCA safe harbor defense “merely reflects the strength of
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`YouTube’s straightforward license defenses,” contending that license issues will
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`sink Plaintiff Schneider’s case at trial. Id. at 3, 13. But the chronology
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`overwhelmingly establishes that Defendants only withdrew their DMCA defense
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`because they would rather risk individual infringement judgments than have a jury
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`examine how they run their platform and reach a preclusive verdict that the DMCA
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`safe harbor does not apply. Regardless, and even setting aside that it recently came
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`to light that Defendants’ license defense as to Ms. Schneider was based on false
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`evidence, Dkt. 345, Defendants have no similar defense as to Plaintiff Uniglobe.
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`Finally, Defendants again distort the record in claiming that Plaintiffs’
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`claims of irreparable harm are inconsistent with their agreement to the trial
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`1 Rule 23(c)(1) directs courts to rule on class certification at “an early practical
`time after a person sues.”
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`3
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`

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`Case: 23-80049, 06/09/2023, ID: 12732280, DktEntry: 9, Page 9 of 20
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`schedule. Opp. to Stay 6, 13–14. Indeed, the very transcript Defendants quote
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`makes plain that Plaintiffs merely acceded to the district court’s stated preference
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`for a June trial based on the court’s repeated assurances that it would issue its class
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`certification ruling “very briskly in March,” approximately three months in
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`advance of trial. Dkt. 214 at 9:13–15; see also id. at 30:16 (court stating in regards
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`to class certification order that it would “get that out” in March). Instead, the
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`district court issued its class certification ruling on May 22, 2023, only three weeks
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`before trial. Dkt. 330. Plaintiffs never sought such a schedule.
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`
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`B.
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`The Other Factors Support Granting a Stay
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`Defendants’ other arguments in opposition to a stay are flawed. First,
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`Plaintiffs have identified multiple meritorious appeal arguments. Defendants
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`primarily rely on their Rule 23(f) petition briefing to counter this point, and
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`Plaintiffs address those arguments in Part II, infra. Yet, Defendants also fault
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`Plaintiffs for failing to “acknowledge” or “distinguish” an out-of-Circuit district
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`court case and an unpublished decision of this Circuit, both of which they
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`curiously describe as “controlling authority.” Opp. to Stay 14–15 (citing Football
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`Ass’n Premier League Ltd. v. YouTube, Inc., 297 F.R.D. 64 (S.D.N.Y. 2013) and
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`Kihn v. Bill Graham Archives LLC, 2022 WL 18935 (9th Cir. Jan. 3, 2022)
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`(unpublished)). These cases are obviously not “controlling”, nor are they even
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`relevant here. Moreover, Defendants’ suggestion that copyright classes generally
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`4
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`

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`Case: 23-80049, 06/09/2023, ID: 12732280, DktEntry: 9, Page 10 of 20
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`may not be certified is simply incorrect. See, e.g., Flo & Eddie, Inc. v. Sirius XM
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`Radio, Inc., 2015 WL 4776932 (C.D. Cal. May 27, 2015). To the extent the
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`district court’s order supports such a view, that is even more reason to grant
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`review.
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`Second, Defendants’ assertion that they would suffer harm that precludes a
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`stay can be dismissed out of hand. Opp. to Stay 16–19. Not only are hotel costs
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`and logistical issues present in every case, they are also far outweighed by the cost
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`of having to try this case a second time.
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`Finally, YouTube provides no serious argument why a stay that avoids
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`duplicative trials and ensures class members’ interests are protected would not
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`serve the public interest. YouTube cites the need for “speedy resolution of cases
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`and the conservation of judicial resources,” Opp. to Stay 19, but a stay while this
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`petition and appeal are being considered is plainly the more efficient approach. It
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`also protects the public’s interest in resolving important issues that undergird this
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`case but would otherwise evade review.
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`The Court should grant Plaintiffs’ requested stay.
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`II.
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`THE COURT SHOULD GRANT PLAINTIFFS’ RULE 23(f)
`PETITION
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`In opposing Plaintiffs’ Rule 23(f) petition, Defendants only weakly defend
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`the district court’s flawed ruling and attempt to paper over the faulty arguments
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`and purported bases for decision upon which the district court did not rely.
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`
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`5
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`

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`Case: 23-80049, 06/09/2023, ID: 12732280, DktEntry: 9, Page 11 of 20
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`A.
`
`Plaintiffs Proposed Prima Facie Classwide Evidence of Copyright
`Ownership and Infringement
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`Plaintiffs’ Petition shows that Plaintiffs met their burden of proposing
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`evidence sufficient for a prima facie showing of copyright ownership and
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`infringement based on successful takedown notices submitted to YouTube which
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`can be cross-referenced with copyright databases. Pet. 7–12. Like the district
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`court, Defendants focus their criticisms on the supposed inadequacy of the
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`takedown process. But they wrongly cite the minimum statutory requirements for
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`a DMCA takedown, Opp. to Pet. 10, without regard to the fact that, as Defendants
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`admit, YouTube’s takedown review procedures “go[] well beyond the DMCA”, id.
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`at 3, and thus meet the requirements for prima facie evidence of ownership and
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`infringement. Defendants baldly assert that the district court properly “held
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`Plaintiffs to their burden,” but nowhere point to where the district court did so. Id.
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`at 14. Worse, Defendants make no effort to defend the district court’s significant
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`error in construing record evidence of YouTube’s takedown vetting process. Pet.
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`11–12.
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`In discussing ownership evidence, Defendants’ passing assertion that the
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`United States Copyright Office database of registrations is “neither up-to-date nor
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`complete” (Opp. to Pet. 12–13) does not show that this evidence, when combined
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`with vetted successful takedown notices, would not suffice to prove ownership—
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`and it certainly does not salvage the district court’s order, which failed entirely to
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`6
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`

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`Case: 23-80049, 06/09/2023, ID: 12732280, DktEntry: 9, Page 12 of 20
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`consider the significance of such databases in assessing proposed classwide proof.
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`Pet. 10. Moreover, Defendants nowhere dispute, or explain the district court’s
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`failure to address, binding precedent establishing that the United States Copyright
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`Database is presumptive evidence of ownership. See Desire, LLC v. Manna
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`Textiles, Inc., 986 F.3d 1253, 1259 (9th Cir. 2021).
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`B.
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`Plaintiffs Properly Requested an Issues Class
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`Defendants do not dispute that YouTube’s eligibility for the DMCA safe
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`harbor is a common issue that can be tried on a classwide basis. As Plaintiffs
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`explained, whether YouTube has “adopted and reasonably implemented” a repeat
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`infringer policy and “accommodates and does not interfere with standard technical
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`measures,” 17 U.S.C. §512(i), are questions that turn solely on YouTube’s conduct,
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`and Plaintiffs stand ready to prove their points with compelling, class-wide
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`evidence. Pet. 14.
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`Unable to defend the district court’s failure to address the merits of a DMCA
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`issues class, Defendants contend Plaintiffs “forfeited” this argument. Opp. to Pet.
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`16. But even the district court knew better: its Order reads, “certification of an
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`issues class is denied,” not that it was somehow waived. Order at 25. And
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`Defendants’ own briefing concedes (Opp. to Pet. 16) that Plaintiffs argued the
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`propriety of a DMCA issues class—especially after YouTube’s attempted
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`withdrawal of its DMCA affirmative defense put the issue front and center. Dkt.
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`
`
`7
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`

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`Case: 23-80049, 06/09/2023, ID: 12732280, DktEntry: 9, Page 13 of 20
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`309 at 4; see also Dkt. 245 at 25; Dkt. 272 at 15; Dkt. 325 at 29:4–30:11. The
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`district court nonetheless simply pretended like this issue did not exist. Order at
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`25.
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`Procedural issues aside, Defendants’ arguments against an issues class to
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`determine YouTube’s eligibility for the DMCA safe harbor also fail on the merits.
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`This is an issue of obvious importance, central to the class’s claims, and the
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`resolution of it would undoubtedly materially advance the litigation. Defendants’
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`contrary argument rests on the proposition that “a single defense would not resolve
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`liability”. Opp. to Pet. 18. But as Plaintiffs have explained, an issues class need
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`not resolve liability or dispose of an entire case (and in fact rarely does), Pet. 15,
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`and a classwide ruling on DMCA safe harbors would materially advance the
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`litigation for all putative class members, id. at 17.
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`YouTube also claims an issues class is not necessary because it has
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`“repeatedly litigated” DMCA safe harbor issues. Opp. to Pet. 19. But it cites only
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`two cases over the nearly 20-year existence of the world’s largest video platform.
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`Id. The first is an as-yet unadopted report and recommendation that did not
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`involve the eligibility issues under Section 512(i) of the DMCA at issue here. See
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`Athos Overseas Ltd. Corp. v. YouTube, Inc., No. 21-21698-Civ (S.D. Fla. May 16,
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`2023), Dkt. 171. The other, the 2013 decision in Viacom, proves Plaintiffs’ point:
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`there, the claims by large copyright owners are widely understood to have settled
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`
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`8
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`

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`Case: 23-80049, 06/09/2023, ID: 12732280, DktEntry: 9, Page 14 of 20
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`in a manner through which YouTube agreed to roll out its Content ID tool that
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`YouTube denies to smaller copyright owners such as Plaintiffs here.2
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`Finally, Defendants do not dispute that this Circuit has provided limited
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`guidance on issues class certification over the last thirty years—another reason to
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`grant the petition. Pet. 15–16; see Opp. to Pet. 20.
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`C. The District Court Erred in Denying Certification of CMI Classes
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`Defendants scramble to defend the district court’s conclusion that Plaintiff
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`Schneider is not a member of the ISRC Class. Opp. to Pet. 22–24. According to
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`Defendants, the district court rejected her Section 1202 claims because
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`Ms. Schneider did not identify in her complaint the copyrights upon which these
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`claims are based. Id. at 22 (citing Order at 23). But the complaint undisputedly
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`does identify the works for which Plaintiff Schneider owns the unregistered
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`copyrights in sound recordings underlying her ISRC class claims. See Am. Compl.
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`¶ 60 (Dkt. 99). The district court mistakenly equated the pleading of works-in-suit
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`with the pleading of registered copyrights in compositions. Order at 22–23. Ms.
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`Schneider did both.
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`In any event, there is no requirement that a plaintiff plead all requirements
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`
`2 See Todd Spangler, “Why the Viacom-YouTube Case Wasn’t a Giant Waste of
`Time”, Variety (Mar. 18, 2014), https://variety.com/2014/biz/news/why-the-
`viacom-youtube-case-wasnt-a-giant-waste-of-time-1201137664/ (“But here’s what
`Viacom’s lawsuit actually did: It spurred YouTube to accelerate the development
`of tools to detect—and pull down—copyrighted material, in an automated way.”).
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`
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`9
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`

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`Case: 23-80049, 06/09/2023, ID: 12732280, DktEntry: 9, Page 15 of 20
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`for class membership in a complaint—and Defendants do not argue otherwise.
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`Here, Ms. Schneider’s interrogatory responses identified the unregistered sound
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`recordings that form the basis of her Section 1202 claim, and those works were
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`expressly identified in both class certification briefing and oral argument thereon.
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`See Pet. 21 & n.5. This Court should reject Defendants’ attempt to obfuscate the
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`district court’s manifest error.3
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`Plaintiffs’ Petition also shows that the district court’s CMI ruling rested on
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`an untenable reading of Stevens v. CoreLogic, 899 F.3d 666 (9th Cir. 2018), to
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`require individualized proof of Defendants’ scienter. Pet. 21–23; Order at 21–22.
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`Defendants do not claim otherwise. Instead, they argue that as a factual matter
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`under Stevens, Plaintiffs can only show YouTube’s “general awareness that
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`removing ISRCs may” facilitate infringement. Opp. to Pet. 21. In fact, the
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`classwide evidence demonstrates that ISRCs are assigned to virtually every sound
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`recording, the primary purpose of ISRCs is to manage copyrights, and Defendants
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`themselves use ISRCs for this very purpose. Dkt. 245 at 21–22; Dkt. 272 at 13.
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`This is ample prima facie proof that Defendants know that removal of ISRCs will
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`enable and facilitate infringement.
`
`
`3 Defendants exacerbate this obfuscation by claiming Plaintiffs “abandoned” one of
`their CMI theories “in the lead up to trial.” Opp. to Pet. at 10. As Defendants
`know, Plaintiffs only withdrew this CMI theory without prejudice if the class is
`revived.
`
`
`
`10
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`

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`Case: 23-80049, 06/09/2023, ID: 12732280, DktEntry: 9, Page 16 of 20
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`D. Other Issues Do Not Preclude Review and Certification
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`Defendants close their briefing with a host of alternative issues they claim
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`preclude certification. Opp. to Pet. 24–28. None holds water. The district court
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`did not point to the individualized licensing issues Defendants discuss as an
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`independent basis to deny certification—it only highlighted these issues as an
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`example of how Plaintiffs’ purported failure to provide “a viable method of
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`classwide proof” as to ownership and infringement meant that, on balance, other
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`individualized issues predominated. Order at 18. Since the district court’s analysis
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`of these commonality issues is reversible error, its predominance ruling also cannot
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`stand.4
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`As for the remaining issues Defendants cite, the court’s ruling did not
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`discuss fair use, much less find that it precluded certification.5 And the district
`
`
`4 To the extent it matters, the district court was also wrong that licensing issues
`cannot be resolved through common evidence, including data that all licensees
`must provide and that Google stores. Indeed, Defendants themselves can identify
`every one of the relatively small number of class members that they will likely
`assert granted YouTube a license. Dkt. 245 at 12–13; Dkt. 272 at 8–9. And, even
`if the license defenses had significant prevalence within the proposed class, they
`involve contracts of adhesion, which “present ideal cases for class adjudication”
`since they “are uniform, the same principles of interpretation apply to each
`contract, and all members of the class will share a common interest in the
`interpretation of an agreement to which each is a party.” La Sala v. Am. Sav. &
`Loan Assn., 5 Cal. 3d 864, 867 (1971).
`5 In fact, fair use is an issue for a vanishingly small percentage of the class. Dkt.
`272 at 10.
`
`
`
`11
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`

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`Case: 23-80049, 06/09/2023, ID: 12732280, DktEntry: 9, Page 17 of 20
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`court expressly declined to deny certification on the basis of either numerosity or
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`typicality. Order at 23–24.
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`CONCLUSION
`
`The Court should grant Plaintiffs’ Rule 23(f) petition and stay the June 12
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`trial until the appeal is resolved.
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`12
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`

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`Case: 23-80049, 06/09/2023, ID: 12732280, DktEntry: 9, Page 18 of 20
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`
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`Respectfully submitted,
`
`Dated: June 9, 2023
`
`/s/ Philip C. Korologos
`
`
`
`
`
`George A. Zelcs
`gzelcs@koreintillery.com
`Randall P. Ewing, Jr.
`rewing@koreintillery.com
`David Walchak
`dwalchak@koreintillery.com
`KOREIN TILLERY, LLC
`205 North Michigan, Suite 1950
`Chicago, IL 60601
`Telephone: (312) 641-9750
`Facsimile: (312) 641-9751
`
`Stephen M. Tillery
`stillery@koreintillery.com
`Carol O’Keefe
`cokeefe@koreintillery.com
`KOREIN TILLERY, LLC
`505 North 7th Street, Suite 3600
`St. Louis, MO 63101
`Telephone: (314) 241-4844
`Facsimile: (314) 241-3525
`
`
`
`Philip C. Korologos
`pkorologos@bsfllp.com
`Eric J. Brenner
`ebrenner@bsfllp.com
`Jeffrey Waldron
`jwaldron@bsfllp.com
`BOIES SCHILLER FLEXNER LLP
`55 Hudson Yards, 20th Floor
`New York, NY 10001
`Telephone: (212) 446-2300
`Facsimile: (212) 446-2350
`
`Joshua Irwin Schiller
`jischiller@bsfllp.com
`BOIES SCHILLER FLEXNER LLP
`44 Montgomery St., 41st Floor
`San Francisco, CA 94104
`Telephone: (415) 293-6800
`Facsimile: (415) 293-6899
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`Counsel for Plaintiffs-Petitioners
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`13
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`Case: 23-80049, 06/09/2023, ID: 12732280, DktEntry: 9, Page 19 of 20
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`CERTIFICATE OF COMPLIANCE
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`This reply complies with the type-volume limitations of Federal Rule of
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`Appellate Procedures 27(d)(2)(C) and Ninth Circuit Rule 32-3(2) because it
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`contains 2,598 words, excluding the parts of the brief exempted by Federal Rules
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`of Appellate Procedure 5(b)(1)(E) and 32(f).
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`This reply complies with the typeface requirements of Federal Rule of
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`Appellate Procedure 32(a)(5) and the typestyle requirements of Federal Rule of
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`Appellate Procedure 32(a)(6) because it has been prepared in a proportionally
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`spaced typeface using Microsoft Word for Office 365 in Times New Roman 14-
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`point font.
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`/s/ Philip C. Korologos
`Philip C. Korologos
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`14
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`Case: 23-80049, 06/09/2023, ID: 12732280, DktEntry: 9, Page 20 of 20
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