Case: 19-15566, 02/19/2020, ID: 11602553, DktEntry: 122, Page 1 of 23

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
__________
SHAWN 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’ CORRECTED SUPPLEMENTAL BRIEF ON
IMPACT OF CALIFORNIA FAIR PAY TO PLAY ACT
_____________________________________________
STEVE W. BERMAN
CRAIG R. SPIEGEL
EMILEE N. SISCO
Hagens Berman Sobol Shapiro LLP
1301 Second Avenue, Suite 2000
Seattle, WA 98101
(206) 623-7292
steve@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
I.

INTRODUCTION .............................................................................. 1

II.

ARGUMENT ...................................................................................... 4

III.

A.

The California Act, and Defendants’ decision to
permit NIL payments in response to the Act, both
reflect the district court’s finding that consumers
do not support Defendants’ compensation
restraints. ................................................................................. 4

B.

Defendants’ decision to permit NIL payments, in
response to the California Act, cements the
conclusion that O’Bannon does not bar Plaintiffs’
claims. ....................................................................................... 8

C.

The NCAA Board’s decision to permit NIL
payments reinforces the merit of Plaintiffs’ crossappeal. ..................................................................................... 12

CONCLUSION ................................................................................ 14

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TABLE OF AUTHORITIES
Page(s)
CASES
United States ex rel. Hong v. Newport Sensors, Inc.,
728 F. App’x 660 (9th Cir. 2018) ............................................................ 2
Law v. NCAA,
134 F.3d 1010 (10th Cir. 1998) ............................................................. 14
Lowry v. Barnhart,
329 F.3d 1019 (9th Cir. 2003) ................................................................. 2
NCAA v. Board of Regents,
468 U.S. 85 (1984) ................................................................................. 14
O’Bannon v. NCAA,
802 F.3d 1049 (9th Cir. 2015) .............................................................. 7, 9

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I.

INTRODUCTION

As the NCAA has explained, the “State of California last year
adopted legislation that would allow college athletes in California to be
compensated for their name, image and likeness beginning in 2023. In
the meantime, lawmakers in more than 30 other states have introduced
similar bills or intend to do so.”1 The California Fair Pay to Play Act2—
along with Defendants’ response to it—reinforces every position
Plaintiffs have taken in this litigation.
First, the Act underscores—and is a direct response to—the
inequities that the challenged restraints impose on college athletes.
Athletes are expected to work like professionals despite having their
compensation limited by the disingenuous claim that they must be
treated as “amateurs,” while everyone else working in college
athletics—from conference commissioners to college athletic directors to
team trainers—is compensated lavishly from the billions in revenue
http://www.ncaa.org/about/resources/media-center/news/emmertsets-stage-transformative-year-college-sports. See, e.g., Arizona House
Bill (“HB”) 2143; Florida Senate Bill (“SB”) 582, SB 646, HB 251, and
HB 287; Georgia HB 743; Illinois HB 3904; Michigan SB 0660 and HB
5217; Missouri HB 1564, HB 1792, and HB 1748; New Jersey Assembly
Bill 5863; New York SB 6722; Oklahoma HB 3347; South Carolina SB
935 and HB 4973; Tennessee SB 1636/HB 1694, SB 1767, and HB 1710;
Virginia HB 300; Washington HB 1084.
2 Dkt. 99 (Jan. 6, 2020), citing Cal. Educ. Code § 67456.
1

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that the athletes are responsible for generating. None of this
unfairness is lost on consumers, who—as Plaintiffs demonstrated at
trial through survey evidence—would not watch or attend fewer games
if additional benefits were made available to college athletes. Indeed,
many consumers indicated that they might even watch or attend more
games if the athletes were treated more fairly. ER847–48; ER42–44.
The legislation adopted by California and proposed in other states is a
consequence of this consumer consensus. And now the NCAA itself
recognizes this shift in consumer demand, because in response to the
Act, its “top governing board voted unanimously to permit students
participating in athletics the opportunity to benefit from the use of their
name, image and likeness in a manner consistent with the collegiate
model.”3

Board of Governors starts process to enhance name, image and
likeness opportunities, NCAA.ORG (Oct. 29, 2019),
http://www.ncaa.org/about/resources/media-center/news/boardgovernors-starts-process-enhance-name-image-and-likenessopportunities. This Court may take judicial notice of the NCAA’s
statements on its own website. See Fed. R. Evid. 201(b)(2); United
States ex rel. Hong v. Newport Sensors, Inc., 728 F. App’x 660, 661 (9th
Cir. 2018). Moreover, this Court may exercise its inherent authority to
supplement the record, particularly when the evidence is relevant to
this Court’s order. Lowry v. Barnhart, 329 F.3d 1019, 1024–25 (9th Cir.
2003) (“We may … take judicial notice ... and exercise inherent
authority to supplement the record in extraordinary cases….”).
3

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Second, Defendants’ newfound support for name, image, and
likeness (“NIL”) compensation is a complete about-face from the
NCAA’s position in O’Bannon, where it insisted that NIL payments—no
matter how small—would be “anathema to amateurism,” would
constitute “pay-for-play,” and would “blur the clear line between
amateur college sports and their professional counterparts.” See infra
at 8, 15. It is no surprise that Defendants have abandoned their prior
positions. As the district court found, since O’Bannon, Defendants have
provided all kinds of non-education-related benefits substantially above
athletes’ cost-of-attendance (“COA”). E.g., ER27–33. Defendants’
embrace of yet more non-education-related payments shows how
dramatically the economic facts have changed since the O’Bannon
record closed in 2014, and why O’Bannon cannot possibly bar Plaintiffs’
claims in this litigation.
Third, Defendants’ new support for NIL payments reinforces the
merit of Plaintiffs’ cross-appeal, which seeks a more traditional,
complete injunction against all of the anticompetitive effects of the
restraints that the district court held to be unlawful. The NIL
payments that Defendants now support are completely consistent with

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the type of non-education-related-benefits, on top of COA, that would be
permitted if Plaintiffs’ cross-appeal is granted.
II.
A.

ARGUMENT

The California Act—coupled with Defendants’ decision to
permit NIL payments in response to the Act—affirms the
district court’s finding that Defendants’ compensation
restraints are broader than necessary to protect consumer
demand.
The California Act reflects an emerging consensus that the

NCAA’s compensation restraints are anticompetitive and unjustifiable.4
The billions of dollars in revenue in the FBS football and D-I basketball
ecosystems are freely paid to administrators and coaches, but not to
athletes, despite the onerous demands placed upon them—demands
resembling those placed on professional athletes, not on students
participating in a mere avocation. ER109. As the author of the
California Act explained, “80% of full-scholarship athletes live at or
below the federal poverty level. Meanwhile, the NCAA and universities

See Assembly Committee on Arts, Entertainment, Sports, Tourism
and Internet Media analysis (June 25, 2019),
https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=2
01920200SB206 (compensating athletes for NIL “is only fair because it
is the athletes who are the draw in these hugely profitable activities”).
4

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use these athletes to generate billions in profits, through commercial
sponsorships, TV deals and ticket sales.”5
States across the country (see n.2, supra), as well as Congress, are
considering similar legislation for the same reasons. A bill entitled the
“Student-Athlete Equity Act” (H.R.1804), which is pending in the U.S.
House of Representatives, would modify the definition of a tax-exempt
amateur sports organization to exclude organizations that substantially
restrict a student-athlete’s ability to use, or to be reasonably
compensated for third-party use of, his or her own NIL.6 These
legislative efforts reflect the prevailing consumer sentiment that
restricting college athletes from receiving payments for their NIL rights
is fundamentally unfair, anticompetitive, and without procompetitive
justification.7

See “09/04/19 - Assembly Floor Analysis,”
https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=2
01920200SB206. See id. (“The NCAA president Mark Emmert made
over 3 million dollars in salary just last year, while any athletes who
put their bodies on the line struggle to make ends meet.”).
6 https://www.congress.gov/bill/116th-congress/house-bill/1804.
7 While the NCAA has also taken the public position that the
California Act may violate the Commerce Clause (see SNYDER:
California moves to give college athletes piece of pie, THE WASHINGTON
TIMES (Sept. 11, 2019),
https://www.washingtontimes.com/news/2019/sep/11/california-movescut-college-athletes-action/ (“[w]e believe [the California Act] would
inappropriately affect interstate commerce”); see also NCAA responds to
5

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The NCAA’s Board of Governors itself shares this view. In
response to the California Act, the Board “voted unanimously to permit
students participating in athletics the opportunity to benefit from the
use of their name, image and likeness in a manner consistent with the
collegiate model.” Board, supra n.3. This unanimous vote was, in turn,
“based on comprehensive recommendations from the NCAA Board of
Governors Federal and State Legislation Working Group, which
includes presidents, commissioners, athletics directors, administrators
and student-athletes.” Id. The Board’s Chair (the President of The
Ohio State University) said “[w]e must embrace change to provide the
best possible experience for college athletes .... Additional flexibility in
this area can and must continue to support college sports as a part of
higher education.” Id.

California Senate Bill 206 (Sept. 11, 2019),
https://www.ncaa.org/about/resources/media-center/news/ncaaresponds-california-senate-bill-206 (“[w]e urge the state of California to
reconsider this harmful and, we believe, unconstitutional bill”)), it must
recognize that this assertion would not prevail because the NCAA
already permits different conferences and schools to be governed by
very different compensation rules, as found below (ER22–23, 33, 36–37,
67) so that it could not credibly be argued that there is a compelling
Commerce Clause need for uniform nationwide compensation
restrictions.
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The Act and the NCAA’s decision to allow NIL payments in
response to the Act are on all fours with the consumer survey evidence
that Plaintiffs presented at trial, establishing that consumer demand
for D-I basketball and FBS football would not suffer if additional
benefits became available to the athletes. ER44; ER847–850.8 On the
contrary, consumers would tend to watch or attend more college sports
if athletes were treated more fairly. ER847–48; see also ER42–44. The
Act, similar proposed legislation in other states, and the NCAA’s
response all put an exclamation point on this evidence.9

See also Senate Floor Analyses (Sept. 9, 2019), https://leginfo.
legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=201920200SB2
06 (identifying myriad potential costs resulting from the California Act
with no mention of potential lost revenues due to an adverse impact on
consumer demand).
9 Defendants may argue that the fact that legislative bodies are
considering these issues cuts against judicial action. But this Court has
already held in O’Bannon that the strictures of Section 1 of the
Sherman Act apply to NCAA rules, and it is the responsibility of the
courts to enforce this existing law. O’Bannon v. NCAA, 802 F.3d 1049,
1061–64 (9th Cir. 2015). Further, the California Act is directed solely
at eliminating Defendants’ restrictions on NIL payments—which are
not at issue in this litigation. The Act does not address the restrictions
on compensating athletes for working for their teams and generating
enormous revenues for their schools.
8

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B.

Defendants’ decision to permit NIL payments, in response
to the California Act, cements the conclusion that
O’Bannon does not bar Plaintiffs’ claims.
The unanimous decision by the NCAA’s Board of Governors to

allow NIL payments also demonstrates that O’Bannon does not bar this
case. The NCAA’s decision to allow NIL payments “in a manner
consistent with the collegiate model” means the NCAA will eventually
permit small, medium, or large NIL payments, which is yet another
dramatic factual change since the record closed in O’Bannon. There,
the NCAA argued to this Court that permitting any NIL payments
would destroy amateurism and be ruinous to consumer demand because
such payments are not related to educational expenses:
Contrary to the [district] court’s view,
amateurism is not simply a matter of the amount
of any payment. Allowing student-athletes to
receive compensation for specific commercial
revenue generated via use of their NILs is no less
anathema to amateurism than paying football
players $100 per sack.
O’Bannon v. NCAA, Nos. 14-16601 & 14-17068 (9th Cir.), Brief for NCAA
(Dkt. 13-1) at 57 (Nov. 14, 2014) (“NCAA O’Bannon Br.”) (emphasis
added).
Indeed, the factual premise of O’Bannon was that consumers
would perceive even “small sums” of NIL payments as transforming
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student-athletes into professionals—albeit “poorly-paid professional
collegiate athletes”—and thereby “vitiate their amateur status.”
O’Bannon, 802 F.3d at 1076–79 (emphasis added). Now, however, the
NCAA’s Board has unanimously decided to permit the very type of NIL
payments that six years ago they derided as the death knell of
consumer demand. This is yet another profound change in the facts
since the O’Bannon trial record closed in 2014 that makes it
implausible for Defendants to continue to argue that O’Bannon
somehow precludes the claims that Plaintiffs are pursuing on a
completely different evidentiary record. See Pls.’ Response Brief and
Opening Brief on Cross-Appeal, Dkt. No. 59 (“Pls.’ Br.”) at 39–51; Pls.’
Reply Brief on Cross-Appeal, Dkt. No. 113 (“Pls.’ Reply”) at 14–16.
To be sure, the fact that this case concerns compensation for
athletes’ services—rather than their NILs—makes Plaintiffs’ claims
different. But the import of the NCAA’s response to the California Act
is the same for this litigation as it would be if O’Bannon were still open.
In O’Bannon, the NCAA’s opposition to NIL payments rested on its
argument that such payments would amount to “pay-for-play”:
[R]ecognizing that an undisguised claim of pure
pay-for-play was unpalatable, plaintiffs brought

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claims that student-athletes should receive
payments for the dissemination of their ‘name,
image, and likeness’ (NIL) in sports broadcasts
and certain other media. That is a distinction
without a difference; pay for use of a player’s
‘image’ is pay-for-play.
NCAA O’Bannon Br. 3 (emphasis in original); see also id. at 29 (“Once
student-athletes are paid, their sports are no longer amateur .... The
district court was not free to simply redefine amateurism to include a
league in which athletes are paid for their NILs.”). Yet the NCAA now
endorses the very NIL-related “pay for play” payments that it
previously claimed would destroy consumer demand.
This has a direct impact on this case, where Defendants have
recycled their failed “pay for play” argument to defend a different set of
restrictions on a different type of athlete compensation. They
characterize the district court’s injunction here—which remediated
restraints only on education-related benefits—as “requir[ing] the NCAA
to allow student-athletes to be paid for participating in intercollegiate
athletics.” Defs.’ Jt. Opening Br., Dkt. No. 39 (“Defs.’ Op. Br.”) at 3.
But their response to the Act underscores the district court’s
unassailable finding that Defendants “do not follow any coherent
definition of amateurism, including [their] proffered definition of no ‘pay

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for play.’” ER33. Indeed, the continuing and profound economic
changes in the relevant markets have even caused one of the NCAA’s
30(b)(6) witnesses to declare publicly that he no longer supports the
NCAA’s compensation restrictions.10
In summary, the response of the NCAA to the California Act
represents a final nail in the coffin of Defendants’ argument that
O’Bannon bars Plaintiffs’ claims here. As the district court found
below, Plaintiffs have brought “new antitrust challenges to conduct
affecting a different class, in a different time period, relating to forms of
compensation that are not the same as those challenged in O’Bannon.”
ER78. The decision by the NCAA to permit NIL payments in response
to the California Act—on top of Plaintiffs’ showing that, since
O’Bannon, conferences and colleges have provided substantial new noneducation-related compensation to student-athletes, well above COA—
further reinforces the district court’s finding that “material factual
differences … defeat Defendants’ preclusion arguments.” The factual

Press Release, NCPA White Paper Lays Out the “Players’ Plan” for
College Athlete Name, Image, and Likeness Compensation, Nat’l College
Players Ass’n (Jan. 15, 2020), https://www.ncpanow.org/news/releasesadvisories/ncpa-white-paper-lays-out-the-players-plan-for-collegeathlete-name-image-and-likeness-compensation.
10

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landscape of O’Bannon simply no longer exists, and that decision does
not in any way preclude the relief that Plaintiffs seek here.
C.

The NCAA Board’s decision to permit NIL payments
reinforces the merit of Plaintiffs’ cross-appeal.
Plaintiffs’ cross-appeal seeks to expand the district court’s

injunction insofar as it fails to remedy the anticompetitive impact that
Defendants’ unlawful restraints impose on non-education-related
benefits. See Pls.’ Br. at 80–92; Pls.’ Reply. Defendants’ rejoinder has
been heavily based on the O’Bannon majority’s statement that the
“difference between offering student-athletes education-related
compensation and offering them cash sums untethered to educational
expenses” is a “quantum leap,” and “[o]nce that line is crossed, we see
no basis for returning to a rule of amateurism and no defined stopping
point.” Defs.’ Op. Br. at 14 (quoting O’Bannon, 802 F.3d at 1078).
Defendants further claim that “restrictions on payments unrelated to
education could not be eliminated without erasing the distinction
between college and professional sports.” Defs.’ Jt. Response-and-Reply
Br. at 4, Dkt. No. 87.
Even before the California Act, Defendants’ attempt to invoke the
language of O’Bannon against the cross-appeal was baseless because

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Defendants have already taken the “quantum leap.” Now, these
arguments completely collapse under the weight of the NCAA Board’s
endorsement of NIL payments in response to the California Act.
In O’Bannon, the NCAA told this Court that permitting even
small NIL payments “would blur the clear line between amateur college
sports and their professional counterparts.” NCAA O’Bannon Br. at 57–
58 (internal quotation marks and citations omitted). Yet, these are the
same NIL benefits that Defendants will now permit individual
conferences and schools to provide. Permitting NIL compensation thus
destroys Defendants’ argument that the NCAA must be permitted to
bar all non-education-related-benefits in order to preserve consumer
demand.
In short, there is no colorable basis for Defendants to continue to
argue that granting the broader injunctive relief sought on the crossappeal—striking down the NCAA’s unlawful restrictions on noneducation-related compensation—will destroy the distinction in
consumers’ minds between college and professional sports. The district
court should have entered a more traditional, complete injunction
against all of the anticompetitive effects of Defendants’ illegal

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restraints, thus effectively permitting competition among conferences
and schools to determine what, if any, limits to impose on noneducational benefits.
III. CONCLUSION
In NCAA v. Board of Regents,11 the NCAA decried schools freely
competing to sell their broadcast rights, claiming that it was an
existential threat to amateurism and consumer demand; today, D-I
basketball and FBS football engage in such competition and, as a result,
enjoy billions in broadcast revenue, and consumer demand still
flourishes. In Law v. NCAA,12 the NCAA opposed allowing schools to
freely compete to compensate assistant basketball coaches as contrary
to the collegiate model; today, such competition is unrestrained,
assistant coaches often earn millions,13 and consumer demand still
flourishes. In White v. NCAA, the NCAA argued against allowing
schools to freely compete by offering COA scholarships, calling such
scholarships “pay for play”; today, such competition is permitted and
468 U.S. 85, 119 (1984) (rejecting NCAA argument that restricting
sale of broadcast rights was necessary “to preserve amateurism”).
12 134 F.3d 1010, 1021 (10th Cir. 1998) (rejecting NCAA’s proposed
procompetitive justifications for restricting assistant coach salaries).
13 For example, between 2009 and 2015, assistant men’s basketball
coaches’ salaries increased by nearly 40%. ER701.
11

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both full COA scholarships and compensation above COA are
ubiquitous, and consumer demand still flourishes.14 And, in O’Bannon,
the NCAA insisted any amount of NIL compensation was “anathema to
amateurism” and would render D-I basketball and FBS football
indistinguishable from the NBA and NFL; today, in response to the Act,
the NCAA’s governing body has indicated unanimous support for NIL
payments—and consumer demand still flourishes.15
In each of the preceding antitrust cases that reached a verdict, the
NCAA was found liable. And in each case, its prognostication that
market competition would doom college sports and consumer demand
has been proven wrong. Plaintiffs have presented an evidentiary record
that is on all fours with this litigation history. It amply supports both
the liability verdict of the trial court below and the more complete relief
Plaintiffs seek on their cross-appeal. The California Act—coupled with
the unanimous actions of the NCAA Board in response—powerfully
reinforces this conclusion.

Cf. NCAA Mem. P. & A. in Supp. Summ. J. 28, White v. NCAA,
No. 06-cv-999 ECF 220 (C.D. Cal Oct. 22, 2007) with ER86–87.
15 Cf. NCAA O’Bannon Br. 57, with Report of the NCAA Board of
Governors, n.3 supra.
14

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Dated: February 19, 2020

Respectfully submitted,

HAGENS BERMAN SOBOL
SHAPIRO LLP

WINSTON & STRAWN LLP

By s/ Steve W. Berman
Steve W. Berman
Craig R. Spiegel
Emilee N. Sisco
1301 Second Avenue, Suite 2000
Seattle, WA 98101
Telephone: (206) 623-7292
steve@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

PEARSON, SIMON & WARSHAW,
LLP
By s/ Bruce L. Simon
Bruce L. Simon
Benjamin E. Shiftan
350 Sansome Street, Suite 680
San Francisco, CA 94104
Telephone: (415) 433-9000
bsimon@pswlaw.com
bshiftan@pswlaw.com

Linda T. Coberly
35 W. Wacker Drive
Chicago, IL 60601
Telephone: (312) 558-5600
lcoberly@winston.com
Jeanifer E. Parsigian
101 California Street
San Francisco, CA 94111
Telephone: (415) 591-1000
jparsigian@winston.com
Class Counsel for the Consolidated
Action Plaintiffs

Class Counsel for the Consolidated
Action Plaintiffs

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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

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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 3,013 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.
[ ] 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.
[x] complies with the length limit designated by court order dated January 6, 2020.
[ ] is accompanied by a motion to file a longer brief pursuant to Cir. R. 32-2(a).
Signature s/ Steve W. Berman
Date February 19, 2020
(use “s/[typed name]” to sign electronically-filed documents)

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Form 8Rev. 12/01/18

 Case: 19-15566, 02/19/2020, ID: 11602553, DktEntry: 122, Page 23 of 23

CERTIFICATE OF SERVICE
I hereby certify that on February 19, 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 19, 2020
HAGENS BERMAN SOBOL
SHAPIRO LLP
s/ Steve W. Berman
Steve W. Berman
Counsel for the Consolidated Action
Plaintiffs

010271-11/1240918 V1