PETITION FOR WRIT OF CERTIORARI

Transcription

1 No. In The Supreme Court of the United States TICKETMASTER; TICKETMASTER, LLC; ENTERTAINMENT PUBLICATIONS, INC.; AND IAC/INTERACTIVECORP, Petitioners, v. STEPHEN C. STEARNS, CRAIG JOHNSON, JOHN MANCINI, ET AL., Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit PETITION FOR WRIT OF CERTIORARI Michael M. Berger* David L. Shapiro *Counsel of Record 1563 Massachusetts Ave. Manatt, Phelps & Phillips Cambridge, MA West Olympic Blvd. (617) Los Angeles, CA Of Counsel (310) mmberger@manatt.com Counsel for Petitioners

2 i QUESTIONS PRESENTED In this class action, the 9 th Circuit Court of Appeals held that a federal class action could be certified even though some members of the putative class did not have standing to bring suit on their own. That decision raises these questions: 1. In federal court, must all members of a putative class not just the named plaintiff have Article III standing to sue? 2. Did the 9 th Circuit err in choosing to follow a state s rule that only a named plaintiff need have standing to sue, regardless of the lack of standing of putative class members, and thereby disregarding the requirements of Article III standing?

3 ii PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT There is no company called Ticketmaster. Ticketmaster Entertainment, LLC (formerly known as Ticketmaster) is the predecessor-ininterest to Live Nation Entertainment, Inc., a publicly traded Delaware corporation. According to public records, Liberty Media Corporation owns more than 10% of the common stock of Live Nation Entertainment, Inc. Ticketmaster L.L.C. is a limited liability company organized under the laws of Virginia. Ticketmaster L.L.C. is a wholly owned subsidiary of Live Nation Entertainment, Inc. Entertainment Publications, Inc. is now known as Entertainment Publications, LLC. MH-EPI Holdings, LLC owns 99% of Entertainment Publications, LLC. IAC/InterActiveCorp is a publicly traded corporation with no parent company. No publicly held corporation owns 10% or more of its stock.

4 iii TABLE OF CONTENTS Page PETITION FOR WRIT OF CERTIORARI...1 OPINIONS BELOW...1 JURISDICTION...1 STATUTES AND RULES...2 INTRODUCTION...2 STATEMENT OF THE CASE...3 REASONS FOR GRANTING THE WRIT...5 I. ARTICLE III MUST CONTROL THE QUESTION WHETHER A FEDERAL CASE CAN GO FORWARD AS A CLASS ACTION...6 A. FEDERAL STANDING REQUIREMENTS MAY NOT BE WEAKENED BY THE CLASS ACTION DEVICE...7 B. FEDERAL STANDING REQUIREMENTS MAY NOT BE ALTERED BY STATE LAW...11

5 iv TABLE OF CONTENTS (continued) Page II. THERE IS CONFLICT AND CONFUSION AMONG THE CIRCUITS...14 A. THERE IS DIRECT CONFLICT BETWEEN THE 8TH CIRCUIT AND THE 9TH CIRCUIT WITH RESPECT TO THE SPECIFIC STATUTE AT ISSUE HERE...14 B. THERE IS CONFUSION IN THE FEDERAL COURTS ON THE NEED FOR ABSENT CLASS MEMBER STANDING...15 CONCLUSION...19

6 v TABLE OF APPENDICES Appendix A 9th Circuit Court of Appeals Opinion...App. 1 Appendix B District Court Order Denying Class Certification (August 25, 2008)...App. 31 Appendix C 9th Circuit Order Denying Rehearing...App. 68 Appendix D Rules and Statutes...App. 70

7 vi TABLE OF AUTHORITIES Page CASES Allee v. Medrano, 416 U.S. 802 (1974)...9 Allen v. Wright, 468 U.S. 737 (1984)...6, 7 Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997)... 9, 10, 18 Arizona Christian Sch. Tuition Org. v. Winn, 131 S.Ct (2011)...5, 6, 7 Avritt v. ReliaStar Life Ins. Co., 615 F.3d 1023 (8 th Cir. 2010)... 2, 6, 14, 15 Bertulli v. Indep. Assn. of Cont l Pilots, 242 F.3d 290 (5 th Cir. 2001)...8 Califano v. Yamasaki, 442 U.S. 682 (1979)...8 Denney v. Deutsche Bank AG, 443 F.3d 253 (2 nd Cir. 2006)...8, 16 Deposit Guar. Nat l Bank v. Roper, 445 U.S. 326 (1980)...8 In re General Motors Corp. Dex-Cool Products Liability Litigation, 241 F.R.D. 305 (S.D. Ill. 2007)...18

8 vii TABLE OF AUTHORITIES (continued) Page In re Tobacco II Cases, 46 Cal.4th 298 (2009)...passim Kister v. Ohio Bd. of Regents, 365 F.Supp. 27 (S.D. Ohio 1973)...18 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)...7 Mazza v. American Honda Motor Co., Inc., 2012 WL (9 th Cir. 2012)...16 Oshana v. Coca-Cola Co., 472 F.3d 506 (7 th Cir 2006)...17 Raines v. Byrd, 521 U.S. 811 (1997)...11 Rivera v. Wyeth-Ayerst Laboratories, 283 F.3d 315 (5 th Cir. 2002)...5, 6, 17 Shady Grove Orhopedic Assocs., P.S. v. Allstate Ins. Co., 130 S.Ct (2010)...8 Sibbach v. Wilson & Co., 312 U.S. 1 (1940)...10 Sullivan v. DB Investments, Inc., F.3d, 2011 WL (3 rd Cir 2011)...16, 17

9 viii TABLE OF AUTHORITIES (continued) Page Summers v. Earth Island Inst., 555 U.S. 488 (2009)...7 Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct (2011)...passim CONSTITUTION U.S. Const., Article III...passim U.S. Const., Article III, STATUTES 15 U.S.C U.S.C. 1254(1) U.S.C U.S.C U.S.C. 2072(b)...10 Cal. Bus. & Prof. Code Cal. Civ. Code RULES Rule 23...passim Rule 23(a)...8 Rule 23(f)...5 Rule , 11

10 1 PETITION FOR WRIT OF CERTIORARI Ticketmaster; Ticketmaster, LLC; Entertainment Publications, Inc. (EPI); and IAC/InterActiveCorp petition for a Writ of Certiorari to review a final judgment of the United States Court of Appeals for the 9 th Circuit. OPINIONS BELOW The U.S. District Court for the Central District of California denied class certification in the lead case of three actions and dismissed the other two as duplicative. The Order on class certification was entered on August 25, (App. B.) The 9 th Circuit Court of Appeals affirmed in part, reversed in part and remanded in an opinion published at 655 F.3d (App. A.) The Order denying the timely Petition for Rehearing En Banc and Panel Rehearing was not published. (App. C.) JURISDICTION The 9 th Circuit entered judgment on August 22, Petitioners timely Petition for Rehearing En Banc and Panel Rehearing was denied on October 11, The time to file this Petition was extended to February 8, (No. 11A626.)

11 2 This Court has jurisdiction under 28 U.S.C. 1254(1). STATUTES AND RULES Pertinent statutes and rules are in App. D. INTRODUCTION The 9 th Circuit, relying on a state court s interpretation of state law, reversed the district court s denial of class certification under Rule 23 1 in spite of the fact that some members of the putative class plainly suffered no harm as a result of Petitioners conduct and therefore lacked standing to sue under Article III of the United States Constitution. That holding abused the purpose of Rule 23, by agglomerating in a class people who could not have sued on their own behalf. It also created direct conflict with a decision of the 8 th Circuit applying the same California statute and refusing to certify a class due to lack of standing of absent class members. (Avritt v. ReliaStar Life Ins. Co., 615 F.3d 1023 [8 th Cir. 2010].) The 9 th Circuit s holding thereby exacerbated national confusion about whether each class member must have suffered injuryin-fact caused by the defendant s alleged 1 All Rule references are to the Federal Rules of Civil Procedure.

12 3 misconduct in order for a class action to proceed in federal court. The underlying substantive claim arose under California s Unfair Competition Law, Cal. Bus. & Prof. Code (UCL) (as well as under California s Consumer Legal Remedies Act, Cal. Civ. Code 1750, and the federal Electronic Funds Transfer Act, 15 U.S.C. 1693). 2 The 9 th Circuit believed, with respect to the UCL claim, that it was bound to follow the decision of the California Supreme Court in In re Tobacco II Cases, 46 Cal.4th 298 (2009), which solely as a matter of California law allows UCL claims to proceed on a class basis regardless of whether all class members were injured by the defendant s alleged misconduct. Although this approach may be permissible as a matter of state law for suit in state courts, California cannot create law that would undermine the requirements of Article III standing for suit in federal court. STATEMENT OF THE CASE Ticketmaster sells tickets to various events through its website. EPI operates a website 2 The district court s jurisdiction was based on 28 U.S.C and Only the question of class certification of the state-law UCL claim is involved in this Petition.

13 4 that offers an Entertainment Rewards membership program through which consumers may obtain discount coupons from local merchants. After purchasing tickets on the Ticketmaster site, and being told that your order is complete, customers were offered the option of obtaining a discount on a future ticket purchase. To do so, they had to click a button that would transfer them to the EPI site. Upon reaching the EPI site, customers were informed that the ticket discount was only available if they enrolled in the Entertainment Rewards program, for which, after an initial free-trial period, they would be charged a monthly fee through the credit card they used for their ticket purchase. The gravamen of the complaint is that customers were deceived en masse into enrolling in the Entertainment Rewards program under the false impression that they were still completing their ticket purchases. Such is plaintiffs theory, even though it is not disputed that fewer than 2% of Ticketmaster s customers who were presented with the discount offer actually enrolled in the Rewards program. It is also not disputed that there are customers in that 2% who suffered no deception in enrolling, even if they did not go on to take advantage of the program s benefits.

14 5 The district court refused to certify the proposed class of consumers who paid for the Rewards program but did not use it. After accepting an appeal under Rule 23(f), and after the California Supreme Court decided Tobacco II, the 9 th Circuit reversed and remanded with respect to the claim under the UCL, holding that our law [of standing in class actions] keys on the representative party, not all class members... (App. 15.) That meant the class could be certified even though some class members plainly lacked Article III standing to sue on their own. This Petition follows denial of the timely petition for a rehearing by the Circuit en banc, as well as by the panel. REASONS FOR GRANTING THE WRIT This Court is seeing an increasing volume of class litigation. In a message that apparently made no impression on the 9 th Circuit, this Court declared recently: In an era of frequent litigation [and] class actions... courts must be more careful to insist on the formal rules of standing, not less so. (Arizona Christian Sch. Tuition Org. v. Winn, 131 S.Ct. 1436, 1449 [2011].) Standing, after all, is an inherent prerequisite to the class certification inquiry. (Rivera v. Wyeth-Ayerst Laboratories, 283 F.3d 315, 319 [5 th Cir. 2002].)

15 6 As the Court was no doubt serious in Arizona Christian about the need to enforce the rules of standing in class actions, it is important to correct the 9 th Circuit s lax and erroneous view of federal standing requirements, particularly in light of its direct conflict with the earlier, correct view of the 8 th Circuit in Avritt. I. ARTICLE III MUST CONTROL THE QUESTION WHETHER A FEDERAL CASE CAN GO FORWARD AS A CLASS ACTION It is a truism but nonetheless true that federal courts are courts of limited jurisdiction. Cases that might have been appropriate in state court may not be brought in federal court (e.g., under diversity or supplemental jurisdiction) unless they satisfy Article III. Thus, the federal judiciary is restricted to deciding cases and controversies. (U.S. Const., Art. III, 2; Allen v. Wright, 468 U.S. 737, 750 [1984].) To bring such matters to court, there must be a plaintiff with standing to raise the issue. (Rivera, 283 F.3d at 319 [standing must be decided before class certification because it determines the court s fundamental power even to hear the suit ].) Here, the 9 th Circuit adopted a rule that allows

16 7 a class action to proceed in federal court when it is clear that the putative class contains members who would not have been able to bring federal suits on their own and thus lack standing to be part of a Rule 23 class action. A. Federal Standing Requirements May Not Be Weakened by the Class Action Device The irreducible constitutional minimum to establish standing demands (1) injury in fact; (2) a causal connection between the injury and the conduct complained of; and (3) that the injury can be redressed through the litigation. (Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, [1992]; emphasis added.) Absent plaintiffs with standing, a suit cannot present a case or controversy for judicial determination. To alter the rules of standing or weaken their requisite elements would be inconsistent with the case-orcontroversy limitation on federal jurisdiction imposed by Article III. (Arizona Christian, 131 S.Ct. at 1449.) Article III standing, the most important element of the case-orcontroversy concept (Allen, 468 U.S. at 759), is a hard floor that cannot be removed by statute (Summers v. Earth Island Inst., 555

17 8 U.S. 488, 497 [2009]). Standing is an inherent prerequisite to the class certification inquiry. (Bertulli v. Indep. Assn. of Cont l Pilots, 242 F.3d 290, 294 [5 th Cir. 2001].) A class action is fundamentally a joinder device and nothing more. It is ancillary to the litigation of substantive claims and can neither add to, nor detract from, those claims, including what is required to assert them. (Deposit Guar. Nat l Bank v. Roper, 445 U.S. 326, 332 [1980].) [T]he parties legal rights and duties [remain] intact and the rules of decision [are] unchanged. (Shady Grove Orhopedic Assocs., P.S. v. Allstate Ins. Co., 130 S.Ct. 1421, 1443 [2010].) Rule 23 is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties. (Califano v. Yamasaki, 442 U.S. 682, [1979], quoted with approval in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2550 [2011].) But that exception can become operative only when the claims of the named plaintiffs are common to, and typical of, those of the unnamed members of the class (Rule 23[a]) and when all members of the class have standing to bring the litigation (Denney v. Deutsche Bank AG, 443 F.3d 253, 264 [2 nd Cir. 2006] [ no class may be certified that contains members lacking... standing ]). To soften the rules of standing in class actions

18 9 would enable parties to enter the federal courts through the back door of a class action (Allee v. Medrano, 416 U.S. 802, [1974] [Burger, C.J., concurring]) when they otherwise would lack standing to enter by the front. That cannot be allowed consistent with the strictures of Article III. Here, however, the 9 th Circuit has created a way for uninjured citizens to be bundled into a class even though they would not have had standing to bring suit in their own right. That violates the purpose of Rule 23, whose underlying theme is that the parties it is joining together all actually have claims, i.e., each suffered injury allegedly caused by the defendant which can be redressed by action against the defendant. (E.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 [1997].) Rule 23 certainly was not intended to allow people without standing, i.e., without injury or without injury having a causal connection to the defendant, to add their collective weight to litigation already designed to exact mass, and often massive, recoveries. The 9 th Circuit s holding flies in the face of this Court s holding in Wal-Mart, 131 S.Ct. at 2550, and indeed is contrary to this Court s settled law that class certification is proper only if it protects the rights of all parties, i.e., plaintiffs, defendants, and absent class

19 10 members. (See Amchem, 521 U.S. at 629.) If, as this Court held in Wal-Mart, a class cannot be certified on the premise that [the defendant] will not be entitled to litigate its statutory defenses to individual claims (131 S.Ct. at 2561), then surely defenses about failure to satisfy Article III s constitutional requirements can be accorded no lesser degree of protection. 3 3 In Wal-Mart, 131 S.Ct. at 2550 this Court concluded that the Rules Enabling Act [28 U.S.C. 2072(b)] forbids interpreting Rule 23 to abridge, enlarge or modify any substantive right..., and therefore held that Rule 23 could not be applied to preclude a defendant s ability to present an otherwise available defense. In Sibbach v. Wilson & Co., 312 U.S. 1, 10 (1940), this Court said that, in addition to the restrictions in the Rules Enabling Act, [t]here are other limitations upon the authority to prescribe rules which might have been, but were not mentioned in the Act; for instance, the inability of a court, by rule, to extend or restrict the jurisdiction conferred by statute. This limitation (which speaks of statutory jurisdiction because it is assumed that the rules may not exceed the constitutional authority of the federal courts) is reflected in Rule 82, which provides that [t]hese rules do not extend or limit the [subject matter] jurisdiction of the district courts. Thus, any reading of Rule 23 that expands district court jurisdiction beyond the limits imposed by

20 11 B. Federal Standing Requirements May Not Be Altered by State Law When it decided Tobacco II, the California Supreme Court decided matters of California law and nothing more. It was powerless to change the federal law of standing, assuming that it wanted to (and there is nothing to suggest that it did). Indeed, even Congress cannot erase Article III s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing. (Raines v. Byrd, 521 U.S. 811, 820, n. 3 [1997].) A fortiori, if Congress cannot do so, then California surely cannot. Tobacco II wrestled with the tension between an extremely broad, remedial legislative initiative (the UCL) and a later, voter-imposed standing requirement designed to curb abuses of the statute. In a 4-3 decision, the state supreme court construed the breadth of the substantive statutory language as eliminating the standing requirement for everyone in a UCL class action except the named plaintiff. Thus, under Tobacco II, a Article III violates the limitations on the rulemaking power reflected in Rule 82, as well as the Constitution itself.

21 12 UCL class may be certified in the California courts even though some, most, or all of the absent class members suffered no injury, or suffered injury that was not brought about by the defendant s conduct and, in short, have no standing to bring suit (even under the UCL) in their own names. (Tobacco II, 46 Cal.4th at 306, 319, 324.) While, under familiar principles of federalism, California has considerable latitude to decide what claims to allow (and how, by whom, and on whose behalf they may be pursued) in its own judicial system under its own laws, the state has no power whatsoever to dictate fundamental elements of actions in federal court. And yet, despite contrary Article III jurisprudence in this Court and other courts of appeals, the 9 th Circuit decided to follow California s lead in Tobacco II and hold that the standing (or lack thereof) of putative class members has no bearing on whether a UCL claim qualifies for class certification in federal court. This was obvious, and serious, error. The difference between California s law of UCL standing as articulated in Tobacco II and the constitutional requirements for standing to bring an action in federal court is stark, and was noted sharply in the dissent in Tobacco II, which analyzed federal law from courts of appeals and district courts around the country

22 13 and concluded that the majority opinion turns class action law upside down... (46 Cal.4th at 331.) To be clear, the class action law that Tobacco II turned upside down was federal class action law. Nonetheless, the 9 th Circuit saw fit to import this topsy-turvy California law into the jurisprudence for the country s largest federal circuit. As shown below, the 9 th Circuit not only exacerbated confusion in federal courts on general Article III class action standing law; it created direct conflict with the 8 th Circuit on precisely the same issue, i.e., whether a UCL claim can be certified for class treatment without regard to whether each class member would have had standing to bring the action as an individual. The 9 th Circuit said yes, while the 8 th Circuit said no. The 9 th Circuit allowed California law to undermine the bedrock standing precepts of Article III. California s law has no place in federal standing analysis and the 9 th Circuit abused its power by allowing it to usurp this Court s settled standing jurisprudence.

23 14 II. THERE IS CONFLICT AND CONFUSION AMONG THE CIRCUITS A. There Is Direct Conflict Between the 8 th Circuit and the 9 th Circuit With Respect to the Specific Statute At Issue Here In addition to the 9 th Circuit opinion at issue here, the 8 th Circuit has also considered whether to certify a class on a UCL claim under Rule 23 in light of Tobacco II. (Avritt v. ReliaStar Life Ins. Co., 615 F.3d 1023 [8 th Cir. 2010].) These two Courts of Appeals examined the same issue in light of the same state law and came to diametrically opposed conclusions. Where the 9 th Circuit seemed eager to import Tobacco II into Rule 23 jurisprudence, the 8 th Circuit held that: to the extent that Tobacco II holds that a single injured plaintiff may bring a class action on behalf of a group of individuals who may not have had a cause of action themselves, it is inconsistent with the doctrine of standing as applied

24 15 by federal courts ) (615 F.3d at The 8 th Circuit put it succinctly: a named plaintiff cannot represent a class of persons who lack the ability to bring a suit themselves. (Id.) The 8 th Circuit s analysis of Tobacco II yielded the conclusion that the California decision on standing diverged from federal jurisprudential principles... which we are bound to follow. (Id.) The 9 th Circuit apparently felt no such compunction and accepted the aberrant California rule into its own jurisprudence. B. There Is Confusion in the Federal Courts on the Need for Absent Class Member Standing Apart from the direct conflict identified above, the federal courts are uncertain about how this Court views standing requirements in class actions. As a consequence, they have reached inconsistent and conflicting conclusions on the subject. Nowhere is that confusion more evident than within the 9 th Circuit itself. Here, for example, the court clearly says that the law of the Circuit keys on the representative party, not all of the class members. (App., 15.) In

25 16 other words, we consider only whether at least one named plaintiff satisfies the standing requirements... (App., 15 [quoting with approval].) While this view of federal class standing conflicts with decisions in other circuits, it also conflicts with Mazza v. American Honda Motor Co., Inc., 2012 WL 89176, at *10 (9 th Cir. 2012). In Mazza, the 9 th Circuit relied on a 2 nd Circuit opinion holding that no class may be certified that contains members lacking Article III standing. (Quoting with approval from Denney, 443 F.3d at 264.) Yet Mazza itself both flatly adopts the 2 nd Circuit s holding in Denney that each putative class member must have Article III standing and then cites approvingly the 9 th Circuit s decision in the instant case which just as firmly concluded that we consider only whether at least one named plaintiff satisfies the standing requirements... (App. 15.) This is the epitome of incoherence and confusion. Nor is that all. A recent en banc decision from the 3 rd Circuit shows serious disagreement among the judges of that court on the need for class member standing and, in particular, confusion about the impact of this Court s recent Wal-Mart decision on the issue. (Sullivan v. DB Investments, Inc., F.3d, 2011 WL [3 rd Cir 2011] [en banc].) There, the majority, concluding that a settlement class could be certified if the

26 17 defendant engaged in a common course of conduct, was not concerned with whether each putative class member has a colorable claim. (Id. at *13.) The dissent, by contrast, was just as adamant that Wal-Mart s holding precluded class certification because there could be no commonality if there were class members without standing. (Id. at *54.) The 5 th Circuit has taken a more conservative view of the requirement, demanding the kind of strict adherence to Article III standing that this Court called for in Arizona Christian: [A]rtful pleading... is not enough to create an injury in fact. [ ] These are not merely pleading exercises; Article III s standing requirements assure that the dispute... will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. (Rivera, 283 F.3d at 321.) Decisions from other courts also reflect the confusion that prevails in this field. Some courts demand that each putative class member have standing to bring the case as an individual plaintiff. (E.g., Oshana v. Coca-Cola Co., 472 F.3d 506, 514 [7 th Cir 2006]

27 18 [ Countless members of Oshana s putative class could not show damage, let alone damage proximately caused by Coke s alleged deception ]; Kister v. Ohio Bd. of Regents, 365 F.Supp. 27, 33 [S.D. Ohio 1973] [three-judge district court] [ In order to be a member of a class it is necessary that each individual have standing to bring the suit in his own right ].) Other federal courts (like the California Supreme Court and the 9 th Circuit here) seem satisfied if merely one of the named plaintiffs has standing, regardless of the rest of the class. (E.g., In re General Motors Corp. Dex-Cool Products Liability Litigation, 241 F.R.D. 305, 310 [S.D. Ill. 2007] [ the standing issue focuses on whether the plaintiff is properly before the court, not whether... absent class members are properly before the court ].) There is evident need for this Court to clarify the standing rules as they relate to class actions. In Amchem, this Court concluded that Rule 23 s requirements must be interpreted in keeping with Article III s constraints... (521 U.S. at 613.) Certiorari is needed in order to reiterate the breadth, seriousness, and ultimately jurisdictional nature of the Article III standing requirement in the class action context.

28 19 CONCLUSION In determining whether standing exists in Rule 23 class actions, courts around the country have adopted approaches that conflict with each other and cannot be reconciled with this Court s Article III standing jurisprudence. Petitioners pray that Certiorari be granted to clarify and reaffirm the proper approach to standing in federal class actions. Respectfully submitted, Michael M. Berger* *Counsel of Record Manatt, Phelps & Phillips West Olympic Blvd. Los Angeles, CA (310) mmberger@manatt.com Counsel for Petitioners