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`Case 3:20-cv-08437-LB Document 57 Filed 09/23/21 Page 1 of 7
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`Michael F. Ram (SBN 104805)
`mram@forthepeople.com
`Marie N. Appel (SBN 187483)
`mappel@forthepeople.com
`MORGAN & MORGAN
`COMPLEX LITIGATION GROUP
`711 Van Ness Avenue, Suite 500
`San Francisco, CA 94102
`Telephone: (415) 358-6913
`Telephone: (415) 358-6293
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`Benjamin R. Osborn (Pro Hac Vice)
`102 Bergen St.
`Brooklyn, NY 11201
`Phone: (347) 645-0464
`Email: ben@benosbornlaw.com
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`Attorneys for Plaintiffs
`and the Proposed Class
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`THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`SAN FRANCISCO DIVISION
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`MEREDITH CALLAHAN and LAWRENCE
`GEOFFREY ABRAHAM, individually and on
`behalf of all others similarly situated,
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`Plaintiffs,
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`vs.
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`Case No.: 3:20-cv-8437-LB
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`MOTION FOR INDICATIVE RULING
`RECOGNIZING INTERVENING CHANGE
`IN LAW
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`ANCESTRY.COM OPERATIONS INC., a
`Virginia Corporation; ANCESTRY.COM, INC.,
`a Delaware Corporation; ANCESTRY.COM
`LLC, a Delaware Limited Liability Company;
`and DOES 1 through 50, inclusive,
`Defendants.
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`Hearing Date: October 28, 2021
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`Hearing Time:
`9:30 am
` Location: San Francisco Courthouse,
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`Courtroom B
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` Magistrate
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`Judge
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`Laurel Beeler
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`MOTION FOR INDICATIVE RULING
` NO. 3:20-CV-8437-LB
`RECOGNIZING INTERVENING CHANGE IN LAW
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`Case 3:20-cv-08437-LB Document 57 Filed 09/23/21 Page 2 of 7
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`PLEASE TAKE NOTICE that, on October 28, 2021, at 9:30 am, or as soon thereafter as
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`counsel may be heard, Plaintiffs Meredith Callahan and Lawrence Geoffrey Abraham, by and
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`through their attorneys, hereby move the Court to issue an indicative ruling pursuant to Fed. R.
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`Civ. P. 62.1.
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`Plaintiffs move for an indicative ruling on grounds that the Supreme Court’s decision in
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`TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) represents an intervening change in
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`controlling law. Plaintiffs respectfully request this Court issue an indicative ruling stating that it
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`would grant a Rule 60(b)(6) motion to reconsider its June 15 Order regarding Plaintiffs’ Article
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`III standing to pursue claims under Cal. Civ. Code § 3344. Alternatively, Plaintiffs respectfully
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`request an indicative ruling that Plaintiffs’ Rule 60(b)(6) argument represents a “substantial
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`issue” and that this Court would accept remand from the Ninth Circuit to hear it.
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`This motion is based on the following points and authorities.
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`I.
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`PRELIMINARY STATEMENT
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`On June 15, 2021, this Court entered an Order dismissing Plaintiffs’ First Amended
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`Complaint on grounds that “the plaintiffs do not have Article III standing.” Dkt. No. 46, at *2
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`(“June 15 Order”).1 On June 25, the Supreme Court of the United States decided TransUnion
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`LLC v. Ramirez, 141 S. Ct. 2190 (2021). TransUnion explained that “concrete injury” under
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`Article III requires that “the injury to the plaintiff ha[ve] a close relationship to a harm
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`traditionally recognized as a basis for a lawsuit in American courts.” Id. at *9, quoting Spokeo v.
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`Robins, 578 U.S. 330, 341 (2016). The Supreme Court held that class members “whose reports
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`were disseminated to third parties suffered a concrete injury” because their harm bore a “close
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`relationship to the harm associated with the tort of defamation.” Id. at *17.
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`1 This Court also ruled that “Ancestry is immune from liability under the Communications
`Decency Act.” This motion does not address this Court’s ruling on the applicability of the CDA
`to Ancestry.com.
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`MOTION FOR INDICATIVE RULING
` NO. 3:20-CV-8437-LB
`RECOGNIZING INTERVENING CHANGE IN LAW
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`Case 3:20-cv-08437-LB Document 57 Filed 09/23/21 Page 3 of 7
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`On September 16, Judge Gloria M. Navarro of the District Court of Nevada denied
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`Ancestry’s motion to dismiss parallel statutory right of publicity claims. Sessa v. Ancestry.com
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`Operations, No. 2:20-cv-022292-GMN-BNW, 2021 WL 4245359 (Sept. 16, 2021).2 The Sessa
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`court ruled that, under TransUnion, “Plaintiffs have standing to sue under the Nevada Right of
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`Publicity Act” because “the right of publicity has existed at common law, and the legislature
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`codified that right.” Id. at *5 (citations omitted). Judge Navarro “decline[d] to follow” this
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`Court’s conclusion regarding standing “because its order did not address whether the plaintiffs’
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`statutory injury had a common law analog as required by Spokeo and TransUnion.” Id. at *6.
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`Statutory right of publicity claims originate in common law. Id.
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`Under Fed. R. Civ. P. 62.1, a district court may issue an indicative ruling while an appeal
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`is pending. TransUnion represents an intervening change in controlling law, which justifies relief
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`from the June 15 Order under Fed. R. Civ. P. 60(b). Accordingly, Plaintiffs respectfully request
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`an indicative ruling stating that were the Ninth Circuit to remand for reconsideration under Rule
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`60(b), this Court would grant a motion to reconsider the June 15 Order. Alternatively, Plaintiffs
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`respectfully request an indicative ruling stating that Plaintiffs’ standing represents a substantial
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`issue in light of TransUnion.
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`II.
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`LEGAL STANDARD
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`“To seek Rule 60(b) relief during the pendency of an appeal, the proper procedure is to
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`ask the district court whether it wishes to entertain the motion, or to grant it.” Williams v.
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`Woodford, 384 F.3d 567, 586 (9th Cir. 2004). Under Rule 62.1, the district court has three
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`options: it may “(1) defer considering the motion; (2) deny the motion; or (3) state either that it
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`would grant the motion if the court of appeals remands for that purpose or that the motion raises
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`a substantial issue.” Knight v. Trimble, 10-cv-00276-SBA, 2013 WL 6140743 at *2 (N.D. Cal.
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`Nov. 21, 2013) (quoting Fed. R. Civ. P. 62.1).
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`“Rule 60(b)(6) provides that . . . the court may relieve a party . . . from a final judgment,
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`order, or proceeding for . . . any . . . reason that justifies relief.” Henson v. Fid. Nat’l Fin., Inc.,
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`2 A copy of Judge Navarro’s Order is attached.
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`MOTION FOR INDICATIVE RULING NO. 3:20-CV-8437-LB
`RECOGNIZING INTERVENING CHANGE IN LAW - 2
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`Case 3:20-cv-08437-LB Document 57 Filed 09/23/21 Page 4 of 7
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`943 F.3d 434, 443-44 (9th Cir. 2019). “Clause (6) should be liberally applied to all situations not
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`covered by the preceding five clauses.” Id. (quotation omitted). Courts regularly grant Rule
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`60(b)(6) motions based on an intervening change in the controlling law. See, e.g., id. (granting
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`Rule 60(b) motion based on intervening Supreme Court decision).
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`The Ninth Circuit has adopted a seven-factor test for when a change in intervening law
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`merits the granting of a Rule 60(b)(6) motion for reconsideration. Courts must consider:
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`(1) “[T]he nature of the intervening change in the law.”
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`(2) “Plaintiffs’ diligence in pursuing relief.”
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`(3) “[T]he parties’ reliance interest in the finality of the case.”
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`(4) “Delay between the judgment and the motion for Rule 60(b)(6) relief.”
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`(5) The “relationship between the original judgment and the change in the law.”
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`(6) “[C]oncerns of comity.”
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`(7) “Additional considerations” including “the importance of heeding the intent of the
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`rulings of federal appellate courts.”
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`Henson v. Fid. Nat’l Fin., Inc., 943 F.3d 434, 446-54 (9th Cir. 2019) (quoting Phelps v.
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`Alameida, 569 F.3d 1120 (9th Cir. 2009)).
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`III. ARGUMENT
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`Here, six of the seven of the Henson/Phelps factors support relief under Rule 60(b)(6).
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`The remaining factor is irrelevant because no state court decision is involved.
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`First, the intervening change in law is directly applicable. TransUnion requires that when
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`district courts evaluate Article III standing, they “should assess whether the alleged injury to the
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`plaintiff has a close relationship to a harm traditionally recognized as providing the basis for a
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`lawsuit in American courts.” TransUnion, at *9. In the June 15 Order, this Court did not perform
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`the analysis that is now required by TransUnion. Sessa, at *10; see also June 15 Order.
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`The first factor “favor[s] granting relief” when “the change in the law adopted the legal
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`position that [the plaintiff] had unsuccessfully advocated all along.” Henson, at 446 (citing
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`Phelps, at 1131). That is what happened here. Plaintiffs advocated they had standing because
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`Cal. Civ. Code § 3344 codifies a common law right that “traditionally has been regarded as
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`MOTION FOR INDICATIVE RULING NO. 3:20-CV-8437-LB
`RECOGNIZING INTERVENING CHANGE IN LAW - 3
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`Case 3:20-cv-08437-LB Document 57 Filed 09/23/21 Page 5 of 7
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`providing a basis for a lawsuit.” Plaintiffs’ Opposition to Defendants’ Motion to Dismiss
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`(“Opposition”), ECF No. 38, at *3-4. In its June 15 Order this Court did not address the
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`connection between Cal. Civ. Code § 3344 and the common law right of publicity. See June 15
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`Order (reasoning that “the rights protected by § 3344 are not analogous to the fundamental and
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`historical privacy rights” implicated by CIPA, the Wiretap Act, and Stored Communications Act,
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`but not addressing the historical common law basis for the right of publicity).
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`Second, Plaintiffs have been diligent in pursuing relief. Plaintiffs filed this motion within
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`a week of Judge Navarro’s decision in Sessa and within three months of the Supreme Court’s
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`TransUnion decision.
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`Third, Ancestry has no relevant “reliance interest in the finality” of the June 15 Order.
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`See Henson, at 450. Ancestry has not “change[d] [its] legal position in reliance on that
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`judgment,” nor has Ancestry invested in building improvements on property that would change
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`hands if the judgment were reversed. See Henson, at 450.
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`Fourth, there has been no delay between the “finality of the judgment” and the present
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`motion seeking relief under Rule 60(b). See Henson, at 451. Under Henson and Phelps, delay is
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`measured from “when the original judgment . . . became final after appeal.” Id. at 452 (quoting
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`Phelps, at 1138 n. 21). Where, as here, an appeal is still pending at the time of the Rule 60(b)
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`motion, there is no delay and this factor “weighs in favor of granting Rule 60(b)(6) relief.” Id.
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`Fifth, there is a “close connection” between this Court’s June 15 Order and TransUnion
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`because TransUnion modifies the standing analysis upon which this Court based its ruling. See
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`June 25 Order, at *6. The TransUnion decision makes clear that district courts analyzing
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`statutory standing must evaluate whether the statute is rooted in a common law right.
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`TransUnion, at *9.
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`Sixth, the “comity” factor does not apply because there is no interaction “between the
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`independently sovereign state and federal judiciaries.” See Henson, at 453. Both this Court’s
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`June 25 Order and TransUnion are federal.
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`Seventh, the “additional factor” identified by Henson weighs in favor of granting relief
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`under Rule 60(b)(6) because this motion implicates “the importance of heeding the intent of the
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`MOTION FOR INDICATIVE RULING NO. 3:20-CV-8437-LB
`RECOGNIZING INTERVENING CHANGE IN LAW - 4
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`Case 3:20-cv-08437-LB Document 57 Filed 09/23/21 Page 6 of 7
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`rulings of federal appellate courts.” Henson, at 453 (reversing district court’s denial of Rule
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`60(b)(6) motion and stating the court should have “consider[ed] how best to stay true to the
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`Supreme Court’s reasoning in [the intervening case].” Id.
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`Courts in the Ninth Circuit regularly issue indicative rulings under Rule 62.1 based on a
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`change in intervening law, or when there are other grounds for relief under Rule 60(b)(6). See,
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`e.g. Bank of Am. v. Ridgeview Homeowners Ass’n, No. 2:16-CV-2211 JCM-NJK, 2019 WL
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`3400627 at *3 (D. Nev. July 26, 2019) (indicative ruling stating that the court “will grant [the
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`movant’s] motion for reconsideration upon remand” based on an intervening ruling of the
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`Nevada Supreme Court); Knight v. Trimble, 10-cv-00276 SBA, 2013 WL 6140743 at *4 (N.D.
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`Cal. Nov. 21, 2013) (indicating Rule 60(b)(6) motion presented a “substantial issue” and court
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`would accept remand to consider); Bollinger v. Gittere, No. 2:98-cv-01263-MMD-PAL, 2019
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`WL 2411417 at * 1 (D. Nev. June 7, 2019) (same).
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`Plaintiffs respectfully request this Court issue an indicative ruling stating that it would
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`grant a Rule 60(b)(6) motion to reconsider its June 15 Order regarding standing in light of
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`TransUnion. Alternatively, Plaintiffs respectfully request an indicative ruling that Plaintiffs’
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`Rule 60(b)(6) motion represents a “substantial issue” and that this Court would accept remand
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`from the Ninth Circuit to hear it.
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`Dated: September 23, 2021
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`By: /s/ Michael F. Ram___
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`Michael F. Ram (SBN 104805)
`mram@forthepeople.com
`Marie N. Appel (SBN 187483)
`mappel@forthepeople.com
`MORGAN & MORGAN
`COMPLEX LITIGATION GROUP
`711 Van Ness Avenue, Suite 500
`San Francisco, CA 94102
`Telephone: (415) 358-6913
`Facsimile: (415) 358-6923
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`Benjamin R. Osborn
`(admitted Pro Hac Vice)
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`MOTION FOR INDICATIVE RULING NO. 3:20-CV-8437-LB
`RECOGNIZING INTERVENING CHANGE IN LAW - 5
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`Case 3:20-cv-08437-LB Document 57 Filed 09/23/21 Page 7 of 7
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`102 Bergen St. Brooklyn, NY 11201
`Telephone: (347) 645-0464
`ben@benosbornlaw.com
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`Attorney for Plaintiffs
`and the Proposed Class
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`MOTION FOR INDICATIVE RULING NO. 3:20-CV-8437-LB
`RECOGNIZING INTERVENING CHANGE IN LAW - 6
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