Case 3:20-cv-08437-LB Document 59 Filed 10/07/21 Page 1 of 6
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`QUINN EMANUEL URQUHART & SULLIVAN, LLP
` Shon Morgan (Bar No. 187736)
` (shonmorgan@quinnemanuel.com)
` John W. Baumann (Bar No. 288881)
` (jackbaumann@quinnemanuel.com)
`865 South Figueroa Street, 10th Floor
`Los Angeles, California 90017
`Telephone:
`(213) 443-3000
`Facsimile:
`(213) 443-3100
`
` Cristina Henriquez (Bar No. 317445)
` (cristinahenriquez@quinnemanuel.com)
`555 Twin Dolphin Drive, 5th Floor
`Redwood Shores, California 94065
`Telephone:
`(650) 801-5000
`Facsimile:
`(650) 801-5000
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`Attorneys for ANCESTRY.COM OPERATIONS
`INC., ANCESTRY.COM INC., and
`ANCESTRY.COM LLC
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN FRANCISCO DIVISION
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`MEREDITH CALLAHAN and
`LAWRENCE GEOFFREY ABRAHAM, on
`behalf of themselves and all others similarly
`situated,
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`Plaintiffs,
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`vs.
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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,
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` CASE NO. 3:20-cv-08437-LB
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`DEFENDANTS’ OPPOSITION TO
`PLAINTIFFS’ MOTION FOR INDICATIVE
`RULING
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`Hearing Date: October 28, 2021
`Hearing Time: 9:30 a.m.
`Location: San Francisco Courthouse, Courtroom
`B
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`Defendants.
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`Case No. 3:20-cv-08437-LB
`OPPOSITION TO PLAINTIFFS’ MOTION FOR INDICATIVE RULING
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`Case 3:20-cv-08437-LB Document 59 Filed 10/07/21 Page 2 of 6
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`PRELIMINARY STATEMENT
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`Although this case has reached final judgment and is before the Ninth Circuit, plaintiffs
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`seek the extraordinary relief of an “indicative ruling” under Federal Rules of Civil Procedure 60
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`and 62. Plaintiffs’ motion turns on two unsupportable premises: (a) the Supreme Court’s decision
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`in TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) supposedly effected an “intervening
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`change in controlling law” in holding that a concrete injury may exist where “the injury to the
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`plaintiff has a close relationship to a harm traditionally recognized as a basis for a lawsuit in
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`American courts,” and (b) consideration of this ruling would prompt the Court to vacate its order
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`dismissing plaintiffs’ case. Mot. at 1.
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`Both contentions are easily dispatched. First, the cited proposition in TransUnion marked
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`no change in law—it merely reiterated the Supreme Court’s holding in Spokeo, Inc. v. Robins, 578
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`U.S. 330 (2016), as revised (May 24, 2016) (instructing courts to consider “whether an alleged
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`intangible harm has a close relationship to a harm that has traditionally been regarded as providing
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`a basis for a lawsuit in English or American courts.”). In fact, plaintiffs raised this exact argument
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`in opposing Ancestry’s motion to dismiss, relying on Ninth Circuit decisions that followed
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`Spokeo. Second, this Court accepted this proposition of law in assessing Ancestry’s motion to
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`dimiss but correctly reasoned that the rule did not apply to the statute at issue. ECF No. 30 at 8;
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`ECF No. 46 at 6.
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`Plaintiffs’ motion thus does not ask that the Court apply a new proposition of law but
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`rather that it change its conclusion about the applying the very same proposition of law to this
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`case. That issue is before the Ninth Circuit and warrants no further consideration by this Court.1
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`1 The absence of any true “change in law” argument reveals that plaintiffs had a different
`motive in filing this motion. They wanted to make this Court aware that a Nevada district court
`departed in some respects from this Court’s analysis in a parallel case. Sessa v. Ancestry.com
`Operations, Inc. (ECF No. 57-1). Any conflict between this Court’s reasoning and the order in
`Sessa will be resolved by the Ninth Circuit, not through an improper motion for reconsideration.
`And although it does not bear on the motion before the Court, Sessa incorrectly concluded a
`violation of Nevada’s right of publicity statute, standing alone, constitutes a “concrete injury.” The
`Sessa court ignored that Nevada’s statute, like California’s, imposes a specific injury requirement
`for such claims. Nev. Rev. Stat. § 597.810 (permitting action at law “for any injuries sustained by
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`Case No. 3:20-cv-08437-LB
`OPPOSITION TO PLAINTIFFS’ MOTION FOR INDICATIVE RULING
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`Case 3:20-cv-08437-LB Document 59 Filed 10/07/21 Page 3 of 6
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`ARGUMENT
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`Although plaintiffs’ motion is brought pursuant to Federal Rule 62.1, their entitlement to
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`the relief sought is dependent on Federal Rule 60, which governs relief from a final order or
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`judgment.2 Here, plaintiffs seek relief pursuant to Federal Rule 60(b)(6). Mot. at 2.
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`“This prong is used sparingly as an equitable remedy to prevent manifest injustice and is to
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`be utilized only where extraordinary circumstances prevented a party from taking timely action
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`to prevent or correct an erroneous judgment.” Lipson v. On Marine Servs. Co. LLC, 2014 WL
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`2048195, at *4 (W.D. Wash. May 19, 2014) (quotations, citations omitted) (emphasis added). See
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`also Johnson v. Caliber Home Loans, Inc., 744 F. App'x 477, 478 (9th Cir. 2018) (“Rule 60(b)(6)
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`is used sparingly as an equitable remedy to prevent manifest injustice”) (quotations, citations
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`omitted). “Judgments are rarely set aside under Rule 60(b)(6).” Lipson, 2014 WL 2048195 at *4.
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`Even when a change in law has occurred, it generally “does not constitute an extraordinary
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`circumstance justifying Rule 60(b)(6) relief,” Saavedra v. Eli Lilly & Co., 2018 WL 5905801, at
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`*6 (C.D. Cal. July 19, 2018), aff'd sub nom. Strafford v. Eli Lilly & Co., 801 F. App’x 467 (9th
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`Cir. 2020)—but here plaintiffs cannot surmount the threshold hurdle of identifying a change at
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`all.3
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`reason of the unauthorized use”). As discussed further below, this Court correctly recognized that
`the right of publicity statute’s injury requirement differentiates it from other statutes for which a
`violation, in and of itself, suffices to demonstrate Article III standing. See ECF No. 46 at 6.
`2 Plaintiffs’ motion is also procedurally improper. “[T]here is no basis for an independent,
`free-standing Rule 62.1 motion, asking the district court, in the abstract as it were, to advise the
`court of appeals what it would do if the court of appeals were to remand the case.” Lawson v.
`Grubhub, Inc., 2018 WL 6190316, at *2 (N.D. Cal. Nov. 28, 2018) (quotation, citation omitted).
`Rather, the procedural mechanism set forth in Rule 62.1 applies when a separate, timely motion
`has been made. Id. Plaintiffs have not made a formal Rule 60(b)(6) motion. The Court could
`deny plaintiffs’ motion based on this procedural defect. To the extent the Court entertains the
`motion, it should be construed as a request under Rule 60(b)(6). See id.
`3 Plaintiffs rely on the six-factor test in Phelps v. Alameida, 569 F.3d 1120 (9th Cir. 2009).
`Mot. at 2. However, this Court need not consider each factor. Phelps “was not meant to impose a
`rigid or exhaustive checklist for evaluating Rule 60(b) claims based on a change in law.”
`Strafford v. Eli Lilly & Co., 801 F. App'x 467, 469 (9th Cir. 2020) (quoting Henson v. Fid. Nat’l
`Fin., Inc., 943 F.3d 434, 445 (9th Cir. 2019)) (internal quotations omitted). Rather, where, as
`here, “[i]t is not at all clear . . . whether [the new] holding actually undermines the district court’s
`conclusion . . . that doubt about whether a change in law would impact the original opinion weighs
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`Case 3:20-cv-08437-LB Document 59 Filed 10/07/21 Page 4 of 6
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`Plaintiffs rely on TransUnion, 141 S. Ct. 2190, which reiterated that a concrete injury may
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`exist where “the injury to the plaintiff has a close relationship to a harm traditionally recognized as
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`a basis for a lawsuit in American courts.” Mot. at 1. Although plaintiffs’ entire motion is
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`premised on this having been an “intervening change in controlling law,” it was no change at all.
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`Rather, TransUnion simply restated the Supreme Court’s earlier holding in Spokeo, Inc. v. Robins,
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`578 U.S. 330 (2016), as revised (May 24, 2016). Id. (instructing courts to consider “whether an
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`alleged intangible harm has a close relationship to a harm that has traditionally been regarded as
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`providing a basis for a lawsuit in English or American courts.”). Indeed, TransUnion quoted
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`Spokeo for this proposition. TransUnion, 141 S. Ct. at 2200 (“Central to assessing concreteness is
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`whether the asserted harm has a ‘close relationship’ to a harm traditionally recognized as
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`providing a basis for a lawsuit in American courts”) (quoting Spokeo, 578 U.S. at 340-41).
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`That the holding is not “new law” is further demonstrated by plaintiffs’ reliance on this
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`exact argument in opposing Ancestry’s motion to dismiss. See ECF No. 38 at 3 (contending “a
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`statute ‘codifies a substantive right’ when the ‘harms protected . . . bear a close relationship to
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`ones that have traditionally been regarded as providing a basis for a lawsuit,’” quoting Campbell v.
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`Facebook, Inc., 951 F.3d 1106, 1117 (9th Cir. 2020), which, in turn, quoted Spokeo).
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`And contrary to plaintiffs’ contention that this Court failed to consider this proposition in
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`its dismissal order (Mot. at 1), this Court did apply precisely this rule. ECF No. 46 at 6.
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`Consistent with Spokeo and the later decision in TransUnion, this Court correctly observed that,
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`although “[v]iolations of some statutes can establish standing . . . § 3344(a) imposes liability only
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`where ‘persons [are] injured as a result’ and thus requires injury.” Id. (quoting ECF No. 30 at 8).
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`The cases on which plaintiffs relied—and continue to rely—show merely that “privacy torts do
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`not always require additional consequences to be actionable.” Eichenberger v. ESPN, Inc., 876
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`F.3d 979, 983 (9th Cir. 2017) (emphasis added). Again consistent with this Court’s order, other
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`cases make equally clear that the “right of publicity” is not among those for which a violation
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`‘heavily’ against Rule 60(b) relief” and is sufficient to deny the motion. Strafford, 801 F. App’x
`at 469–70.
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`Case 3:20-cv-08437-LB Document 59 Filed 10/07/21 Page 5 of 6
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`alone suffices to demonstrate a concrete injury. See, e.g., Slivinsky v. Watkins-Johnson Co., 221
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`Cal. App. 3d 799, 807 (1990) (“Resulting injury is the sine qua non of a cause of action for
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`misappropriation of name”); Newcombe v. Adolf Coors Co., 157 F.3d 686, 692 (9th Cir. 1998)
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`(recognizing “resulting injury” as element of claim).
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`It is easy to demonstrate why such distinctions make sense. A wiretapping claim, for
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`example, involves intrusion upon affairs that are private, whereas the information at issue here is
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`not private and the claim instead depends on how the information was used and the resulting
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`consequences. Cf. ECF No. 30 at 7 & n. 12 (“the information in the Yearbook database is not
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`private,” and recognizing “disclosure of public information alone is not a harm”). See also Thane
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`Int'l, Inc. v. Hartford Fire Ins. Co., 2008 WL 11335049, at *6 (C.D. Cal. Mar. 15, 2008)
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`(recognizing “the awkwardness of the ‘privacy’ label” because, for example, celebrities’ fame
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`would be “inconsistent” with a claimed right to privacy, and noting it is “the nature of a plaintiff's
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`injury” that distinguishes between two types of misappropriation claims—“appropriation,” in
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`which the right of privacy is invaded, and “publicity” in which the commercial value of one’s
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`likeness is diminished—both of which require injury, but of different types). Thus, although the
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`common law “right of publicity” may have “derive[d] from the fourth category of invasion of
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`privacy,” Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 409 (2001), both the
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`statutory language and its common law background show it requires an actual injury—a violation
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`alone is not enough.
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`Because plaintiffs cannot identify any “intervening change in controlling law” that
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`undermines this Court’s order—let alone the “extraordinary circumstances” required to grant a
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`motion under Rule 60(b)(6)—their motion should be denied. See, e.g., Strafford, 801 F. App’x at
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`469–70.
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`Case 3:20-cv-08437-LB Document 59 Filed 10/07/21 Page 6 of 6
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`DATED: October 7, 2021
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`QUINN EMANUEL URQUHART &
`SULLIVAN, LLP
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`By /s/ Shon Morgan
`Shon Morgan
`Attorneys for ANCESTRY.COM OPERATIONS
`INC., ANCESTRY.COM INC., and
`ANCESTRY.COM LLC
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