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Nos. 19-15566, 19-15662

In the United States Court of Appeals
for the Ninth Circuit
_____________________________________________
IN RE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION ATHLETIC
GRANT-IN-AID CAP ANTITRUST LITIGATION
__________
SHAWNE ALSTON, ET AL.,
PLAINTIFFS-APPELLEES/CROSS-APPELLANTS
v.
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ET AL.,
DEFENDANTS-APPELLANTS/CROSS-APPELLEES
__________
On Appeal from the United States District Court
for the Northern District of California, No. 14-md-02541,
the Honorable Claudia Wilken, presiding
_____________________________________________
PLAINTIFFS’ REPLY BRIEF ON CROSS-APPEAL
_____________________________________________
STEVE W. BERMAN
CRAIG R. SPIEGEL
EMILEE N. SISCO
Hagens Berman Sobol Shapiro LLP
1918 Eighth Avenue, Suite 3300
Seattle, WA 98101
(206) 623-7292
steveb@hbsslaw.com

JEFFREY L. KESSLER
DAVID G. FEHER
DAVID L. GREENSPAN
Winston & Strawn LLP
200 Park Avenue
New York, NY 10166
(212) 294-6700
jkessler@winston.com
Additional counsel on next page

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BRUCE L. SIMON
BENJAMIN E. SHIFTAN
Pearson, Simon & Warshaw, LLP
350 Sansome Street, Suite 680
San Francisco, CA 94104
(415) 433-9000
bsimon@pswlaw.com

LINDA T. COBERLY
Winston & Strawn LLP
35 W. Wacker Drive
Chicago, IL 60601
(312) 558-5600
lcoberly@winston.com

ELIZABETH C. PRITZKER
JONATHAN K. LEVINE
BETHANY L. CARACUZZO
Pritzker Levine LLP
180 Grand Avenue, Suite 1390
Oakland, CA 94612
(415) 692-0772

JEANIFER E. PARSIGIAN
Winston & Strawn LLP
101 California Street
San Francisco, CA 94111
(415) 591-1000
jparsigian@winston.com

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TABLE OF CONTENTS
Page
INTRODUCTION ....................................................................................... 1
ARGUMENT ............................................................................................... 3
I.

The district court found the challenged restraints unlawful, including with respect to their overbroad restrictions on non-education-related benefits. ......................... 3

II.

Once it found all the challenged restraints unlawful,
the court should have enjoined them, rather than ordering an alternative set of restraints that leave much
of their competitive harm unremedied.................................... 9

III.

If the law required a remedy “as effective” at achieving
the procompetitive justification, the record shows that
a more complete remedy would meet that test here. ........... 13

CONCLUSION ......................................................................................... 18

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TABLE OF AUTHORITIES
Page(s)
Cases
Bhan v. NME Hosps. Inc.,
929 F.2d 1404 (9th Cir. 1990) ................................................................ 6
Cty. of Toulomne v. Sonora Cmty. Hosp.,
236 F.3d 1148 (9th Cir. 2001) ............................................................ 5, 6
Ford Motor Co. v. United States,
405 U.S. 562 (1972) .......................................................................... 9, 10
Knevelbaard Dairies v. Kraft Foods, Inc.,
232 F.3d 979 (9th Cir. 2000) ................................................................ 11
Los Angeles Mem’l Coliseum Comm’n v. Nat’l Football
League,
726 F.2d 1381 (9th Cir. 1984) ........................................................ 10, 11
N. Pac. Ry. v. United States,
356 U.S. 1 (1958) .................................................................................. 11
O’Bannon v. Nat’l Collegiate Athletic Ass’n,
802 F.3d 1049 (9th Cir. 2015) .................................................... 6, 14, 17
United States v. Microsoft Corp.,
253 F.3d 34 (D.C. Cir. 2001) .................................................................. 9
Other Authorities
Areeda & Hovenkamp, Antitrust Law: An Analysis of
Antitrust Principles & Their Application (3d & 4th eds.,
2017–2019) ............................................................................... 10, 12, 13
Exiting Big Ten commish Jim Delany on his 30-year tenure
and the future of college sports, CBSSPORTS.COM, Jan. 2,
2020, https://www.cbssports.com/collegefootball/news/exiting-big-ten-commish-jim-delany-on-his30-year-tenure-and-the-future-of-college-sports/ ............................... 17
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NCAA Bylaw 12.1.2.1 ................................................................................. 4
NCAA Bylaw 12.1.2.1.3.1 ........................................................................... 4
NCAA Bylaw 12.1.2.1.3.2 ........................................................................... 4
NCAA Bylaw 12.1.2.1.4.1 ........................................................................... 4
NCAA Bylaw 12.02.10 ................................................................................ 4
NCAA Bylaw 16.02.2 .................................................................................. 4
NCAA Bylaw 16.02.3 .................................................................................. 4
NCAA Const. Art. 3.3.1.1 ......................................................................... 15
Report of the NCAA Board of Governors October 29, 2019
Meeting,
https://ncaaorg.s3.amazonaws.com/committees/ncaa/exec_
boardgov/Oct2019BOG_Report.pdf ....................................................... 8

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INTRODUCTION
Defendants’ response brief makes a fundamental mistake: it confuses the remedy phase of an antitrust case with Step Three of the Rule
of Reason. This is the same error the district court made at the remedy
stage—an error that led it to leave a significant portion of the anticompetitive harm unremedied. Defendants’ brief fails to comprehend this
issue, much less give an effective response. As a result, it provides no
basis to deny the relief requested in the Cross-Appeal.
The district court’s analysis under the Rule of Reason was clear.
The court found that the set of challenged restraints has anticompetitive effects in terms of both education-related and non-education-related benefits (Step One). And while the court did find a narrow procompetitive justification—preserving a distinction between college and
professional sports by avoiding unlimited payments (Step Two)—it also
found that a less restrictive alternative would be virtually as effective
(Step Three). As a result, the challenged restraints—with all of their
anticompetitive effects on education-related and non-education-related
benefits—are unlawful under Section 1 of the Sherman Act. ER101–02.

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Having reached this conclusion, the court should have ordered a
more complete, more traditional remedy that enjoins all of the unlawful
restraints. Plaintiffs’ Response Brief and Opening Brief on Cross-Appeal 82–88, Dkt. 59 (“Pls.’ Br.”). Instead, at the remedy stage, the court
returned to the less restrictive alternative analysis of Step Three, substituting its own judgment about how best to achieve the procompetitive
justification. This led the court to enjoin the unlawful restraints only to
the extent they limit certain benefits related to education. Beyond that,
the unlawful restraints—and the anticompetitive effects that the district court found—will continue to inflict harm as before.
As Plaintiffs have explained, this was an abuse of discretion. Id.
Faced with unlawful agreements restraining trade, a trial court’s responsibility is to remove them—not to replace them with a different
combination of restraints that the court finds less unreasonable. Id. at
84–88. The court’s concern that enjoining all the challenged rules
would lead to an uncertain period of “trial and error” reflects both a
mistake of law (id. at 88–90) and an inconsistency with the facts (id. at
90–91). For all these reasons, the liability finding should be affirmed,

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but the Cross-Appeal should be granted and the case remanded for entry of more complete relief that will free the market from all of the anticompetitive effects of restraints the court found unlawful.
ARGUMENT
I.

The district court found the challenged restraints unlawful, including with respect to their overbroad restrictions
on non-education-related benefits.
Defendants’ first argument is premised on the assertion that the

court did not find any unlawfulness in the NCAA’s “existing limits on
pay unrelated to education.” Defendants’ Joint Response-and-Reply
Brief 58, Dkt. 87 (“Reply/Resp. Br.”). That is incorrect. This case concerns a single, unified set of price-fixing restraints—what Defendants
refer to as the “current, interconnected set of NCAA rules that limit the
compensation [athletes] may receive in exchange for their athletic services.” ER6; see also ECF No. 1128, Defs.’ Closing Arg. at 29. All of
these interconnected restraints were evaluated together and held to be
unlawful. There was no separate finding that restraints on non-education-related benefits are lawful while restraints on education-related
benefits are unlawful. To the contrary, most of the interconnected,
challenged restraints simultaneously limit both education-related and
non-education-related benefits in the text of the same rules without any
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differentiation. See ER279 (Bylaw 12.02.10 “Pay. Pay is the receipt of
funds, awards or benefits not permitted by the governing legislation of
the Association for participation in athletics”); ER281 (Bylaw 12.1.2.1
“Prohibited Forms of Pay” include Bylaw 12.1.2.1.4.1 “Cash, or the
equivalent thereof (e.g., a trust fund), as an award for participation in
competition at any time”);1 ER288 (Bylaw 16.02.2 “Excessive Expense. An excessive expense is one not specifically authorized under
regulations of the Association concerning awards, benefits and expenses”); id. (Bylaw 16.02.3 “Extra Benefit. An extra benefit is any
special arrangement by an institutional employee or representative of
the institution’s athletics interests to provide a student-athlete or the
student-athlete family member or friend a benefit not expressly authorized by NCAA legislation”).
Defendants’ response depends on ignoring half of the district
court’s conclusions. Defendants point to the court’s Step Two finding

NCAA Bylaws 12.1.2.1.3.1 and 12.1.2.1.3.2 (ER281) prohibit “Educational Expenses” but the definitions include educational expenses prior
to college enrollment or from an outside sports team or organization.
The rules bear no relationship to education-related expenses analyzed
by the court below, which addressed benefits provided by the individual
school after the student enrolls.

1

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that “[r]ules that prevent unlimited payments such as those observed
in professional sports leagues … are procompetitive.” Reply/Resp. Br.
57 (quoting ER50). But then they ignore the court’s Step Three finding
that these very rules are overbroad, that there is a less restrictive alternative, and that, as a result, the entire set of interconnected restraints is unlawful. ER30, 33, 50, 58–69. In reaching this conclusion,
the court specifically found that the less restrictive alternative it identified would be “virtually as effective” in achieving the limited procompetitive justification that the court found at Step Two. ER58–69. As a
consequence, all of the challenged restraints—which collectively restrict both education-related and non-education-related benefits—were
held unlawful. Defendants’ arguments ignore this critical fact.
Indeed, if Defendants were right, the court could not have stopped
the analysis at Step Three. If the restraints on non-education-related
benefits were actually separate—and if the court had found them procompetitive (Step Two) with no less restrictive alternative (Step
Three)—then it would have had to proceed to Step Four to conduct the
balancing test. ER103–106; Cty. of Toulomne v. Sonora Cmty. Hosp.,
236 F.3d 1148, 1160 (9th Cir. 2001) (“Because plaintiffs have failed to
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meet their burden of advancing viable less restrictive alternatives, we
reach the balancing stage”); Bhan v. NME Hosps. Inc., 929 F.2d 1404,
1413 (9th Cir. 1990) (describing the “[f]inal[]” step where “the court
must weigh the harms and benefits to determine if the behavior is reasonable on balance.”). The court here acknowledged this and specifically declined to do it, explaining that balancing was unnecessary because “Plaintiffs have shown a less restrictive alternative to the challenged rules.” ER103. This can mean only one thing: the court found
all the challenged rules—holistically—to be unlawful, including to the
extent that they restrict the award of non-education-related benefits.
In fact, this has to be the case, as the challenged rules work together to
impose the restraints.
This is no surprise, given the record. As the court found, while the
NCAA purports to hew to a strict definition of amateurism, since
O’Bannon v. Nat’l Collegiate Athletic Ass’n, 802 F.3d 1049 (9th Cir.
2015), it simultaneously allows certain athletes to receive “thousands or
tens of thousands of dollars in [] compensation, related or unrelated to
education,” over and above the cost of attendance—without any adverse
impact on consumer demand. ER50; see also ER85–86. These benefits
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include athletic participation awards that may be paid in cash equivalents with a value of more than $5,600 a year, payments of up to
$50,000 for premiums for loss-of-value insurance against the loss of anticipated professional earnings, unlimited food, guaranteed medical care
after graduation, and payments of up to $4,000 to allow family members
to travel to certain games. ER22–23, ER27–28, ER77, ER453–54,
ER666, ER1232, ER1286. The court found that these benefits—all of
which are unrelated to education—did not “affect[] [the athletes’] status
as amateurs” from the perspective of the NCAA. ER28. Nor did these
benefits negatively impact demand for college sports as distinct from
professional sports. ER101–02. In recent years, “demand for college
sports as a distinct product … continues apace,” despite the exponential
growth of the types and amounts of benefits provided above the cost of
attendance. ER86–87. In the words of the district court, the existence
of these benefits “belies Defendants’ position that the challenged current restrictions … are necessary,” including to the extent that the restrictions prevent extending these kinds of non-education-related benefits to all student-athletes. ER101. Indeed, the NCAA Board of Governors, in response to the recent legislative enactment by California,
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unanimously reached the same conclusion when it instructed each Division to promulgate rules permitting athletes to receive compensation for
the right to use their names, images, and likenesses.2
In short, the court found the entire interconnected set of challenged price-fixing restraints to be unlawful. Again, this was not surprising, as Defendants conceded (and Plaintiffs agreed) that the challenged NCAA rules must be evaluated as an interconnected whole.
ECF No. 1128, Defs.’ Closing Arg. at 29 (The NCAA’s rulebook is an “interconnected set of rules, including the amateurism rules and academic
eligibility requirements, which combined make up the collegiate
model.”); ECF No. 1014, Pls.’ Opening Arg. at 12 (“The compensationcap rules are overlapping and circular, and all collectively rise or fall
based on Defendants’ identical amateurism and integration justifications.”).

Report of the NCAA Board of Governors October 29, 2019 Meeting,
https://ncaaorg.s3.amazonaws.com/committees/ncaa/exec_boardgov
/Oct2019BOG_Report.pdf. Plaintiffs will address these developments in
more detail in the supplemental brief, to be filed in accordance with this
Court’s request.
2

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II.

Once it found all the challenged restraints unlawful, the
court should have enjoined them, rather than ordering an
alternative set of restraints that leave much of their competitive harm unremedied.
Having found the challenged restraints unlawful, the court’s task

at the remedy stage was not to design a less restrictive system of market control and impose it; it was to restore competition by removing the
entire set of challenged restraints, thus permitting competition—in this
case among the conferences—to determine the best market outcome.
See United States v. Microsoft Corp., 253 F.3d 34, 103 (D.C. Cir. 2001)
(a “remedies decree in an antitrust case must seek to ‘unfetter a market
from anticompetitive conduct’”) (quoting Ford Motor Co. v. United
States, 405 U.S. 562, 577 (1972)). Instead, the court below entered an
injunction that perpetuates a significant portion of the anticompetitive
harm from the unlawful restraints. As Plaintiffs’ brief explains (at 80–
92), this was an abuse of discretion.
Defendants’ response misstates the legal standard. They complain that an injunction against all the unlawful rules would not be
“virtually as effective as the challenged rules in preserving the distinction between professional and college sports.” Reply/Resp. Br. 46. But
this conflates the standard for an appropriate remedy with the standard
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for a less restrictive alternative. The purpose of Step Three is to determine whether a restraint with anticompetitive effects is unreasonably
broad—that is, broader than necessary to serve its procompetitive justification. This is a fundamentally different inquiry than the question of
remedy. For example, a less restrictive alternative need not eliminate
all of the anticompetitive harm or restore competitive conditions,
whereas a proper injunction, after a restraint is held to be unlawful,
must do both. See, e.g., Ford, 405 U.S. at 575. The analysis is different,
so a court should not simply import the less restrictive alternative as its
injunction. See Los Angeles Mem’l Coliseum Comm’n v. Nat’l Football
League, 726 F.2d 1381, 1397–98 (9th Cir. 1984). Ordinarily, the injunction simply enjoins the challenged restraints. Areeda & Hovenkamp,
Antitrust Law: An Analysis of Antitrust Principles & Their Application
¶ 1913(b) (3d & 4th eds., 2017–2019) (“Areeda”) (“Once a suitable less
restrictive alternative is found, the ordinary remedy is a declaration
that the challenged restriction is unreasonable.”).
Put another way, at the remedy stage, the court’s role is not to
evaluate alternatives to the unlawful restraint and choose the best one
to serve a particular procompetitive justification. It is the market—not
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the court—that should determine how best to preserve demand. Los
Angeles Mem’l Coliseum Comm’n, 726 F.2d at 1397–98 (because “the
market itself will deter unwise moves,” “regulation … is best left to the
marketplace.”). Here, as Plaintiffs explained (Pls.’ Br. 88–91), that
market determination can be made through competition among the conferences. The alternative of permitting the court to formulate and impose an alternative combination of restraints is inconsistent with the
very purpose of the antitrust laws—to protect free competition.
Knevelbaard Dairies v. Kraft Foods, Inc., 232 F.3d 979, 988 (9th Cir.
2000) (“The central purpose of the antitrust laws … is to preserve competition. It is competition—not the collusive fixing of prices at levels either high or low—that these statutes recognize as vital to the public interest.”).3
Defendants themselves make a similar argument, but in the
wrong part of their brief. In challenging the court’s analysis at Step

See also id. (“‘The Sherman Act was … aimed at preserving free and
unfettered competition as the rule of trade. It rests on the premise that
the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality
and the greatest material progress …. But even were that premise open
to question, the policy unequivocally laid down by the Act is competition.’”) (quoting N. Pac. Ry. v. United States, 356 U.S. 1, 4 (1958)).

3

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Three, Defendants complain that the court engaged in “judicial price administration” by comparing the effectiveness of potential alternatives.
Opening Br. 65–68; see also Reply/Resp. Br. 53–54 (“improper price setting”). But, this is exactly what the court was supposed to do at Step
Three, in deciding whether the restraints are more restrictive than necessary to serve the limited procompetitive justification. At the remedy
stage, by contrast, the court must not formulate its own alternatives; it
must instead clear away the unlawful restraints to restore competition
so that the market can determine the most efficient and procompetitive
outcome. The very source that Defendants cite as “the leading antitrust
treatise” (Opening Br. 66) recommends that, ordinarily, “merely ending
the restraint suffices [to restore competitive conditions], and the court
need go no further.” Areeda ¶ 325. In fact, the Areeda treatise cites
two antitrust cases against the NCAA, Board of Regents and Law, to exemplify situations where “effective judicial intervention may consist of
little more than an injunction against the anticompetitive agreement,
thus permitting market forces to do their work.” Areeda ¶ 1903.

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III. If the law required a remedy “as effective” at achieving
the procompetitive justification, the record shows that a
more complete remedy would meet that test here.
Even if Defendants were right about the court’s role in crafting a
remedy, the facts do not support their argument against a more traditional, more complete injunction here. Their core argument is that enjoining all of the unlawful compensation rules—thus leaving the market
outcome to competition—would not be “virtually as effective” as the current restraints at maintaining the distinction between college and professional sports. Reply/Resp. Br. 61–67. The record squarely contradicts this argument.
To start, the district court found that “[m]uch of this difference
[between college sports and professional sports] is based on the fact that
student-athletes are students playing for their school.” ER89; see also
ER48–49 (“Defense lay witnesses also testified that consumer demand
… is driven by consumers’ perceptions that student-athletes are, in fact,
students” playing for a particular school) (citing testimony). Even a casual observer of college alumni networks and student cheering sections
knows this to be true. Because “student-athletes would remain students even if their compensation were not limited by the challenged

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rules” (ER89)—and the rules requiring that athletes be students are not
at issue in this suit—the core distinction between college and professional sports will remain intact with a more traditional remedy that
simply enjoins the unlawful rules.
Nor does the record support Defendants’ argument that the challenged NCAA-wide restraints are the only way to strike a demand-preserving balance in connection with payments untethered to education.
Following the entry of a complete injunction against the unlawful restraints, the individual conferences can work this out themselves. Indeed, the record shows that the conferences have already been allowed
to operate autonomously in many areas with respect to student-athlete
compensation, and permitting them to do so has not damaged the distinction between college and professional sports or reduced demand.
Pls.’ Br. 24–26, 39–40, 70–71.
For example, since shortly after the trial record closed in O’Bannon (i.e., since 2015), there has been a new structure of increased conference autonomy for the Power Five conferences that has allowed “legislative enactments … result[ing] in greater compensation for studentathletes.” ER22–23. These changes include unlimited meals and
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snacks regardless of cost, increased medical benefits, and loans to purchase loss-of-value insurance against potential professional earnings.
Id. The conferences and individual schools also administer millions of
dollars every year in the Student Assistance Fund (“SAF”) and Academic Enhancement Fund, with no limit on the amount of money they
provide to an individual athlete, and with essentially no restrictions on
what the money is used for. ER28–30. More than 4,000 athletes received compensation in excess of their cost of attendance through the
SAF in the 2015–16 season alone (ER1227), and SAF distributions have
increased every year since. ER37. The evidence at trial also established that each conference already has its own rulemaking, compliance, and enforcement structures. ER658 (NCAA Constitution Art.
3.3.1.1); ER67–68. And, notably, following the Board of Regents decision eliminating the NCAA’s output restriction over televising games,
the conferences took over negotiating television broadcast agreements
for their schools and successfully increased output and revenues dramatically. See ER1188–1203 (cataloguing conference broadcast agreements).

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Despite this enhanced autonomy for the conferences, there has
been no “race to the bottom,” and demand for college sports is as robust
as ever. And this positive demand outcome has been achieved even
though there is already a “wide variation among conferences and their
members in Division I” in the types and amounts of benefits provided,
belying any claims that national uniformity is necessary. ER46; see
also ER1220, ER1242–1243 (describing “five distinct compensation rule
variations … within the overall compensation caps set by the challenged NCAA rules”). As Dr. Rascher explained, “[t]his diversity of responses … is strong economic evidence of how each school or conference
is capable of taking its individualized consumer-demand preferences
into account when making compensation offers.” ER1221.
While Defendants point out that conferences “remain constrained
by ‘overarching NCAA limits’” (Reply/Resp. Br. 49 (quoting ER23)),
every conference or school official witness who addressed this topic testified that he or she would take consumer demand into account when allowing new benefits. See, e.g., ER624 (Pac-12 Commissioner confirmed
he would take a long-term strategic view as to how to respond if court

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strikes down current rules); id. at ER649 (Wake Forest President confirmed no university president or employee has indicated they would
pay harmful amounts of compensation if allowed to do so); accord
ER651–52 (America East Commissioner). Even Defendants’ economist,
Dr. Elzinga, testified that he would expect that to be the case. ER611–
12. Outgoing Big Ten Commissioner, Jim Delany, recently publicly echoed this sentiment that the major college conferences “may need more
autonomy” from the NCAA’s overarching limits, because “[y]ou can’t
have the smallest programs telling the larger programs what they can
spend.”4
The case for a more traditional antitrust remedy—simply enjoining the unlawful rules and restoring competition, which would naturally take place among the conferences to determine the correct market
outcome for compensation rules—is thus stronger today than it has ever
been. Defendants have already made the “quantum leap” described in
O’Bannon. Pls.’ Br. 3, 14, 31, 39.

Exiting Big Ten commish Jim Delany on his 30-year tenure and the future of college sports, CBSSPORTS.COM, Jan. 2, 2020, https://www.
cbssports.com/college-football/news/exiting-big-ten-commish-jim-delanyon-his-30-year-tenure-and-the-future-of-college-sports/.

4

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Defendants have not cited any authority for the proposition that a
district court, at the remedy stage, should use its injunctive power to
evaluate and impose an alternative that it finds “virtually as effective”
at achieving a procompetitive justification. But even if that were the
law, overwhelming record evidence demonstrates that the more traditional remedy of enjoining the challenged NCAA rules—and thus allowing the conferences to compete among themselves with respect to compensation for the Plaintiff classes’ athletic services—will be “virtually
as effective” as the challenged rules in preserving demand for college
sports as distinct from professional sports.
CONCLUSION
Although the district court’s Rule of Reason analysis was careful
and correct—with ample support in the law and in the record—its injunction was too narrow, leaving un-redressed a significant portion of
the anticompetitive harm caused by the restraints that Plaintiffs challenged and that the court held to be unlawful. Plaintiffs ask this Court
to affirm the liability finding but vacate the injunction and remand this

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case for entry of a more traditional remedy that enjoins all the challenged rules as an unlawful restraint of trade, thus permitting competition to determine the optimal procompetitive market outcome.

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Dated:

Respectfully submitted,

February 12, 2020

HAGENS BERMAN SOBOL
SHAPIRO LLP

WINSTON & STRAWN LLP

By s/ Steve W. Berman
Steve W. Berman
Craig R. Spiegel
Emilee N. Sisco
1918 Eighth Avenue, Suite 3300
Seattle, WA 98101
Telephone: (206) 623-7292
steveb@hbsslaw.com
craigs@hbsslaw.com
emilees@hbsslaw.com

By s/ Jeffrey L. Kessler
Jeffrey L. Kessler
David G. Feher
David L. Greenspan
200 Park Avenue
New York, NY 10166-4193
Telephone: (212) 294-6700
jkessler@winston.com
dfeher@winston.com
dgreenspan@winston.com

Linda T. Coberly
PEARSON, SIMON & WARSHAW, 35 W. Wacker Drive
LLP
Chicago, IL 60601
Telephone: (312) 558-5600
lcoberly@winston.com
By s/ Bruce L. Simon
Jeanifer E. Parsigian
Bruce L. Simon
101 California Street
Benjamin E. Shiftan
San Francisco, CA 94111
350 Sansome Street, Suite 680
Telephone: (415) 591-1000
San Francisco, CA 94104
jparsigian@winston.com
Telephone: (415) 433-9000
bsimon@pswlaw.com
Class Counsel for the Consolidated
bshiftan@pswlaw.com
Action Plaintiffs
Class Counsel for the Consolidated
Action Plaintiffs

20

 Case: 19-15566, 02/12/2020, ID: 11595408, DktEntry: 113, Page 26 of 28

PRITZKER LEVINE LLP
By s/ Elizabeth C. Pritzker
Elizabeth C. Pritzker
Jonathan K. Levine
Bethany L. Caracuzzo
180 Grand Avenue, Suite 1390
Oakland, CA 94612
Telephone: (415) 692-0772
Additional Class Counsel

21

 Case: 19-15566, 02/12/2020, ID: 11595408, DktEntry: 113, Page 27 of 28

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Form 8. Certificate of Compliance for Briefs
Instructions for this form: http://www.ca9.uscourts.gov/forms/form08instructions.pdf
9th Cir. Case Number(s)

19-15566, 19-15662

I am the attorney or self-represented party.
This brief contains 3,472 words, excluding the items exempted by Fed. R.
App. P. 32(f). The brief’s type size and typeface comply with Fed. R. App. P.
32(a)(5) and (6).
I certify that this brief (select only one):
[ ] complies with the word limit of Cir. R. 32-1.
[x] is a cross-appeal brief and complies with the word limit of Cir. R. 28.1-1.
[ ] is an amicus brief and complies with the word limit of Fed. R. App. P. 29(a)(5), Cir. R. 292(c)(2), or Cir. R. 29-2(c)(3).
[ ] is for a death penalty case and complies with the word limit of Cir. R. 32-4.
[ ] complies with the longer length limit permitted by Cir. R. 32-2(b) because (select only one):
[ ] it is a joint brief submitted by separately represented parties;
[ ] a party or parties are filing a single brief in response to multiple briefs; or
[ ] a party or parties are filing a single brief in response to a longer joint brief.
[ ] complies with the length limit designated by court order dated _____________.
[ ] is accompanied by a motion to file a longer brief pursuant to Cir. R. 32-2(a).
Signature s/Jeffrey L. Kessler
Date February 12, 2020
(use “s/[typed name]” to sign electronically-filed documents)

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 Case: 19-15566, 02/12/2020, ID: 11595408, DktEntry: 113, Page 28 of 28

CERTIFICATE OF SERVICE
I hereby certify that on February 12, 2020, I electronically filed
the foregoing with the Clerk of the Court for the United States Court of
Appeals for the Ninth Circuit by using the appellate CM/ECF system.
Participants in the case who are registered CM/ECF users will be
served by the appellate CM/ECF system.
Date: February 12, 2020
WINSTON & STRAWN LLP
s/ Jeffrey L. Kessler
Jeffrey L. Kessler
Counsel for the Consolidated Action
Plaintiffs