Case: 19-35308, 04/08/2020, ID: 11655476, DktEntry: 46-1, Page 1 of 9

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Rentberry, Inc., and Delaney Wysingle,
Plaintiffs – Appellants,
v.
The City of Seattle,
Defendant – Appellee.

Case No: 19-35308

Before IKUTA, NELSON and
HUNSAKER
Oral Argument to be Rescheduled

PLAINTIFFS-APPELLANTS’ MOTION FOR SUPPLEMENTAL
BRIEFING ON MOOTNESS

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CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, the undersigned
attorney for Appellant Rentberry, Inc. (Rentberry), certifies that Rentberry has no
parent company and no publicly held company holds any stock in Rentberry.
DATE: April 8, 2020.

s/ ETHAN W. BLEVINS
Ethan W. Blevins
Attorney for Plaintiffs – Appellants

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MOTION FOR SUPPLEMENTAL BRIEFING ON MOOTNESS
Pursuant to Fed. R. App. P. 27, and related Circuit Rules, Appellants
Rentberry and Delaney Wysingle respectfully move the Court to order supplemental
briefing on mootness. The City of Seattle believes that the case is moot because it
replaced the original ban on rent-bidding platforms with a new ordinance that
requests research to justify a new ban. See Docket No. 42. Although Appellants
consented to rescheduling oral argument, id., Appellants do not agree that the case
is moot because the repeal ordinance clearly contemplates further similar regulation.
Appellee City of Seattle opposes this motion.
REASONS FOR GRANTING THE MOTION
In its motion to reschedule oral argument and in communications with
Appellants’ counsel in anticipation of filing a status report, Seattle asserts that this
case is mooted by subsequent legislation and that it should be dismissed. The issue
of mootness is not cut-and-dried and the Court would benefit from additional
briefing on the matter.
Although repeal of the previous ordinance creates a presumption of mootness,
Board of Trustees of Glazing Health & Welfare Trust v. Chambers, 941 F.3d 1195,
1197 (9th Cir. 2019), this presumption may be rebutted with evidence that “there is
a reasonable expectation that the legislative body is likely to enact the same or
substantially similar legislation in the future.” Id. Moreover, “[i]f the amended
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ordinance threatens to harm a plaintiff in the same fundamental way—even if to a
lesser degree—the plaintiff will still have a live claim for prospective relief.”
Cuviello v. City of Vallejo, 944 F.3d 816, 824 (9th Cir. 2019) (First Amendment
case).
The Court is “particularly wary of legislative changes made in direct response
to litigation.” Id. The new ordinance, Ordinance 126053, 1 plainly was enacted in
response to this case. See, e.g., Seattle City Council Central Staff, CB 119752:
Repealing a prohibition on use of rental housing bidding platforms, March 2, 2020
(mentioning this litigation in discussing the substance and purpose of the new
ordinance).2 First Amendment law is clear that speech may not be restricted absent
some evidence that it is causing harm. Thompson v. Western States Medical Center,
535 U.S. 357, 373 (2002) (“regulating speech must be a last—not first—resort”).
The first (and extended) moratorium banned communication on rent-bidding
platforms for the express purpose of conducting a study to determine whether the
City could identify some harm. Plaintiffs’ Motion for Summary Judgment, Exh. 1,
ECF 22-1 at 5; ER 18. By banning communication on the platforms, however, the
City ensured that its “study” had no relevant market information on which to base
its conclusions. Ord. 126053 (“WHEREAS, the Office of Housing transmitted its
http://clerk.ci.seattle.wa.us/search/ordinances/126053
https://seattle.legistar.com/View.ashx?M=F&ID=8169362&GUID=13F261E39B02-4F1C-AFEE-B291A12E5B40.
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2

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study on rent bidding (‘Rent Bidding Study’) in July 2019, and found that because
of the brief period of operation of the rental housing bidding platforms in Seattle,
the effects of these platforms on the Seattle housing market and on equitable access
could not be analyzed;”).
The current ordinance seeks to obtain that data by “allowing” landlords and
prospective tenants to communicate via rent-bidding platforms. This language
suggests that Seattle has not altered its view that speech rights exercised by landlords
and prospective tenants are a privilege that the City can micromanage, rather than
fundamental, individual rights that are constitutionally protected. While the City
takes the position that the new ordinance moots the claims here, it has never once
taken the position, either in filings before this Court or in public statements, that it
believes that the recent changes to its ordinance are constitutionally required. Indeed,
the ordinance places the onus on rent-bidding platform companies to proactively
“show evidence of compliance and considerations of current law” before the City
will allow communication via rent-bidding platforms. The clear import of the
ordinance is that Seattle plans to reinstate its ban (or similar speech-restricting
regulations on rent-bidding platforms) after it generates the necessary data. 3 See

The type of data sought by the City is unclear. Appellants’ counsel submitted Public
Records Act requests to the Office of Housing and the Office of Civil Rights to
disclose the methodology of their tests and studies. The requests are attached as
Exhibit A.
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Chambers, 941 F.3d at 1198; Ne. Fla. Chapter of Associated Gen. Contractors of
Am. v. City of Jacksonville, 508 U.S. 656, 662 n.3. (1993) (repealing an old law in
favor of a new one that is “sufficiently similar” and “disadvantages [plaintiffs] in the
same fundamental way,” will not moot a plaintiff’s claims). Indeed, the bill’s
sponsor expressed her desire for an interim report in anticipation of taking possible
regulatory action well before the report deadline established by the ordinance. 2020
Finance & Housing Committee, 1:13:22–14:28 (Seattle.gov March 3, 2020). 4
Finally, with the exception of the mootness question now presented, this case
is otherwise fully briefed and ready for oral argument. 5 Given the amount of judicial
resources thus far committed to this case and the key issues of standing and “conduct
versus speech” that will be repeated in any subsequent litigation, this Court should
consider whether the “more flexible doctrine” of mootness applies. See Gator.com
Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1134 (9th Cir. 2005). Where “abandon[ing]
the case at an advanced stage may prove more wasteful than frugal,” Friends of the
Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 191-92

http://www.seattlechannel.org/videos?videoid=x111738&Mode2=Video.
The case was set for oral argument on March 4, 2020, but, at the City’s request,
removed from the calendar to give Seattle the opportunity to draft and enact its repeal
ordinance. Docket No. 43. The ordinance passed on March 9, 2020, and will take
effect April 13, 2020. Appellants did not oppose the request as it was uncertain at
that time what precise provisions the bill, as enacted, would contain.

4
5

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(2000), the Court should consider carefully whether voluntary cessation moots the
case. Further briefing will demonstrate that it should not.
For these reasons, the Court should order supplemental briefing on the issue
of mootness. 6
DATE: April 8, 2020.
Respectfully submitted,
s/ ETHAN W. BLEVINS
Ethan W. Blevins
Pacific Legal Foundation
255 South King Street, Suite 800
Seattle, Washington 98104
Telephone: (425) 576-0484
Email: EBlevins@pacificlegal.org

James M. Manley
Pacific Legal Foundation
930 G Street
Sacramento, California 95814
Telephone: (916) 419-7111
Fax: (916) 419-7747
Email: JManley@pacificlegal.org

Attorneys for Plaintiffs – Appellants

The Court may wish to order briefing deferred until after the Supreme Court issues
its decision in New York State Rifle & Pistol Association v. City of New York (docket
18-280; argued Dec. 2, 2019). In that case, the state amended the challenged laws
expressly to moot the case after the Supreme Court granted certiorari. There were
two rounds of briefing on mootness in the case. The parties filed briefs explicitly on
the question of mootness after the state filed a “suggestion of mootness” and again
when the Court asked the Solicitor General for his opinion on mootness and the
parties filed letter briefs responding to the Solicitor General’s letter. In light of the
extensive briefing, the decision is likely to address how courts should analyze the
effect of a government’s voluntary cessation of activity on mootness.
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CERTIFICATE OF SERVICE
I hereby certify that on April 8, 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.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
s/ ETHAN W. BLEVINS
Ethan W. Blevins

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Certificate of Compliance with Type-Volume Limit, Typeface Requirements,
and Type-Style Requirements
1. This document complies with the word limit of Fed. R. App. P. 27(d)(2)(A)
because, excluding the parts of the document exempted by Fed. R. App. P. 32(f):
[x] this document contains 1,118 words, or
[ ] this brief uses a monospaced typeface and contains [state the number of]
lines of text.
2. This document complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because:
[x] this document has been prepared in a proportionally spaced typeface
using Word 2013 in 14 point Times New Roman font, or
[ ] this document has been prepared in a monospaced typeface using [state
name and version of word-processing program] with [state number of
characters per inch and name of type].
DATE: April 8, 2020.

s/ ETHAN W. BLEVINS
Ethan W. Blevins
Attorney for Plaintiffs – Appellants

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