Case Nos , , (Consolidated) UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ESTATE OF ROBERT GRAHAM,

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1 Case = , 09/19/2014, ID = , DktEntry = 91, Page 1 of 19 Case Nos , , (Consolidated) UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ESTATE OF ROBERT GRAHAM, et al., Plaintiffs and Appellants, vs. SOTHEBY'S, INC., Defendant and Appellee. THE SAM FRANCIS FOUNDATION, et al., Plaintiffs and Appellants, vs. CHRISTIE'S, S, INC., Defendant and Appellee. THE SAM FRANCIS FOUNDATION, et al., Plaintiffs' and Appellants, vs. EBAY, INC., Defendant and Appellee. APPELLANTS' SUPPLEMENTAL BRIEF IN RESPONSE TO COURT'S AUGUST 29, 2014 ORDER Appeal From The United States District Court, Central District of California, Case Nos. CV JHN (FFMx), CV JHN ~FFMX~, (FFMx), cv CV s62z J~v JHN ~PLaX~ (PLAx) The Honorable Jacqueline H. Nguyen BROWNE GEORGE ROSS LLP Eric M. George (State Bar No ) Ira Bibbero (State Bar No ) 2121 Avenue of the Stars, Suite 2400 Los Angeles, California Tel: (310) Fax: (310) GREINES, MARTIN, STEIN & RICHLAND LLP Irving H. Greines (State Bar No ) Gary D. Rowe (State Bar No ) 5900 Wilshire Blvd., 12th Floor Los Angeles, CA Tel: (310) Fax: (310) Attorneys for Plaintiffs and Appellant

2 Case = , 09/19/2014, ID = , DktEntry = 91, Page 2 of 19 TABLE OF CONTENTS Page INTRODUCTION... 2 FACTUAL AND PROCEDURAL SUMMARY... 4 ARGUMENT... 9 A. En Banc Hearing is Warranted And Should Be Granted Under FRAP 35(a)(1) Since There Is Inconsistency In The Language Through Not The Holdings Of The Harris And Rocky Mountain Decisions... 9 B. En Banc Review Is Also Warranted Under FRAP 35(a)(2) Because This Case Presents Issues Of Exceptional Importance Involving The Outer Boundaries Of Dormant Commerce Clause Jurisprudence And The Invalidation Of A State Statute Uniquely Benefiting Artists Whose Works Are Sold Either In California Or By California Residents CONCLUSION CERTIFICATE OF COMPLIANCE WITH FRAP 32(A) AND NINTH CIRCUIT RULE

3 Case = , 09/19/2014, ID = , DktEntry = 91, Page 3 of 19 TABLE OF AUTHORITIES FEDERAL CASES Pages) Page(s) American Beverage Assoc. v. Snyder, 735 F.3d 362 (6th Cir. 2013) (Sutton, J., concurring)... 3, 13 Ass 'n 'n des Eleveurs de Canards et d d'oies du Quebec v. Harris, 729 F.3d 937 (9th Cir. 2013)...2, 2, 6-11, 13 Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977)... 8, 12 Healy v. Beer Inst.,, 491 U.S. 324 (1989)...2, 2, 4-11, 13 New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) (Brandeis, J., dissenting)... 4 Pharm. Research &Mfrs. of America v. Walsh, 538 U.S. 644 (2003)...2, 2, 7-9, 11, 12, 13 Quill Corp v. North Dakota, 504 U.S. 298 (1992) Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070 (9th Cir. 2013)...2, 2, 6, 9, 10, 11, 13 Rocky Mountain Farmers Union v. Corey, 740 F.3d 507 (2014)... 7 S.D. Myers, Inc. v. City &County of San Francisco, 253 F.3d 461 (9th Cir. 2001) STATE STATUTES Cal.. Civ. Code Cal.. Civ. Code 986(a)... 4 Cal.. Civ. Code 986(a)(1) ii

4 Case = , 09/19/2014, ID = , DktEntry = 91, Page 4 of 19 TABLE OF AUTHORITIES (cont'd) Page Cal.. Civ. Code 986(b)(2)... 4 Cal. Civ. Code 986(b)(4)... 4 Cal. Civ. Code 986(c)(1)... 4 Cal.. Civ. Code 986(d) :... 4 RULES FRAP3 35(a)(1) , 9, 11 FRAP 35(a)(2)...3, 3, 12, 14 OTHER AUTHORITIES Brannon P. Denning, Extraterritoriality and the Dormant Commerce Clause: A Doctrinal Post-Mortem, 73 La. L. Rev 979, (2013) Dan Farber, Regulators Between a Rock and a Hard Place: The Extraterritorial Dilemma, Legal Planet (June 24, 2013) (accessed at regulators-between-a-rock-and-ahard-place-the-extraterritorial-dilemma/) Office of the Register of Copyrights, Resale Royalties: An Updated Analysis, app. E (2013) (accessed at resaleroyalty/usco-resaleroyalty.pd~ resaleroyalty/usco-resaleroyalty.pdf) iii

5 Case = , 09/19/2014, ID = , DktEntry = 91, Page 5 of 19 INTRODUCTION Plaintiffs-Appellants respectfully submit this brief in response to this Court's August 29, 2014 Order inviting further briefing. Citing Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070, 1101 (9th Cir. 2013) [herein, "Rocky Mountain"] and Ass 'n 'n des Eleveurs de Canards et d'oies du Quebec v. Harris, 729 F.3d 937, 951 (9th Cir. 2013) [herein, "Harris"], the Order asks the parties to address "whether there is a conflict in this Circuit's case law regarding the applicability of Healy v. Beer Inst., 491 U.S. 324 (1989)" and "whether this case should be heard en bane" banc." We submit this case should be heard en banc for two reasons. First: Although the holdings in Rocky Mountain and Harris are entirely in accord, language in the two cases is inconsistent, thereby meriting en banc consideration "to secure or maintain uniformity of the court's decisions." FRAP 35(a)(1). Specifically, as we explain in Section A, below, Rocky Mountain contains language arguably undermining the limitation that Harris and Pharm. Research &Mfrs.& ofamerica v. Walsh, 538 U.S. 644, (2003) [herein "Walsh"] placed on Healy's extraterritoriality doctrine that Healy reaches only statutes and regulations that dictate or control prices in in other states. En banc review is thus needed to secure uniformity of the Court's decisions. FRAP 35(a)(1)

6 Case = , 09/19/2014, ID = , DktEntry = 91, Page 6 of 19 Second: En banc review is warranted under FRAP 35(a)(2) because defendants' challenge to the 37 year-old statute at issue here, the Resale Royalty Act (the "Act"), California Civil Code 986, raises "a question of exceptional importance." The instant case presents an issue whether Healy's extraterritoriality doctrine is indeed limited to statutes or regulations that dictate or control prices in other states at at the forefront of Dormant Commerce Clause jurisprudence. See, e.g., American Beverage Assoc. v. Snyder, 735 F.3d 362, 377, 378 (6th Cir. 2013) (Sutton, J., concurring) (expressing "skepticism about the extraterritoriality doctrine" as "a relic of the old world with no useful role to play in the new"). Although legislation in Australia and some 78 countries throughout Europe, Asia, Africa, and North and South America entitles artists to a royalty when their works are resold, see Office of the Register of Copyrights, Resale Royalties: An Updated Analysis, app. E (2013) (accessed at resaleroyalty/usco-resaleroyalty.pdf), fl, only California has done so in the United States. The Act, though held by the district court to violate Healy's extraterritoriality doctrine, indisputably does nothing to control or regulate the pricing of art sales, either in California or elsewhere. The Dormant Commerce Clause does not preclude California's enactment or enforcement of legislation supporting artists with a resale royalty where, as here, there is neither out-of-state

7 Case = , 09/19/2014, ID = , DktEntry = 91, Page 7 of 19 regulation nor price controls, and where the levy imposed is "California-centric" i.e. limited to transactions completed in California or involving California residents. The district court's holding to the contrary relied upon an unprecedented expansion of Healy to invalidate an Act that has never been shown, during its 37 years of existence, to impede interstate commerce in the arts. The exceptional importance attaching to California's legislative prerogative to further the arts, without judicial interference, justifies en banc review. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) ("It is one of the happy incidents of the federal system that a single courageous State rrsay, may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."). FACTUAL AND PROCEDURAL SUMMARY The facts and procedural events that led to this Court's August 29, 2014 Order are briefly as follows: 1. The Act took effect in See Cal. Civ. Code 986(d). It requires that, when a work of fine art is resold either in California or by a California resident out of state, the seller or seller's agent must pay the artist 5% of the sale price. See Cal. Civ. Code 986(a). The Act applies when fine art is resold, at a profit, for more than $1,000 and the artist is a citizen of the United States or a resident of California for two years. 986(b)(2), (b)(4), (c)(1). When a work of

8 Case = , 09/19/2014, ID = , DktEntry = 91, Page 8 of 19 fine art is sold at auction, or by a gallery, dealer, broker, museum or other person acting as the seller's agent, the agent must withhold 5% of the sales price and transmit that amount to the artist. 986(a)(1). The Act gives the artist a right to sue a seller or seller's agent for failing to pay the royalty. 986(a)(1). (See AOB 7-8.) 2. Plaintiffs, a putative class of fine-art artists, sued defendant auction houses, Sotheby's, Christie's, and ebay, all alb of which have a substantial physical presence in California, for failing to withhold and transmit the 5%royalty as required by the Act. 3. Defendants moved to dismiss the complaint under the Dormant Commerce Clause. While defendants have never contended or shown that the Act favors Californians over residents of other states, they claimed the Act violates the Dormant Commerce Clause because it operates outside of California and, thus, violates the Healy extraterritoriality doctrine, which (they argued) prohibits one state from directly controlling commerce in other states. (See AOB 5-7, 8 FOR EOR , ) 4. The district court granted defendants' motion to dismiss on May 17, 2012 and entered Judgment on June 6, (1 FOR EOR ) Invoking the Healy extraterritoriality doctrine, the court below held the Act violated the ) 5

9 Case = , 09/19/2014, ID = , DktEntry = 91, Page 9 of 19 Dormant Commerce Clause because it "explicitly regulates applicable sales of fine art occurring wholly outside California." (1 FOR ) 5. Between the date that the District Court dismissed plaintiffs' claims and the date appellate briefing was completed, this Court decided the Harris and Rocky Mountain cases, which hold as follows: a. Harris: This case was decided on August 30, 2013 (per Judges Pregerson, Fisher, and Daniel). The decision rejected a Dormant Commerce Clause challenge to a California statute banning the sale of foie gras in California. Harris held that, although the statute precluded out-of-state foie gras producers from selling that product in California, it did not discriminate against interstate commerce, nor did it impose an impermissible extraterritorial regulation under Healy. A petition for certiorari in this case is pending. b. Rocky Mountain: On September 18, 2013, a different panel of this Court (per Judges Gould, D.W. Nelson, and Murguia) decided Rocky Mountain by a 2-1 vote. The Court again rejected a ahealy-based Dormant Commerce Clause challenge to California's Low Carbon Fuel Standard, which seeks to reduce greenhouse gas emissions from fuels burned in California, even though some of the fuels are produced in other states and the emissions generated in.the out-of-state production and transportation of the fuels are covered by the regulation. Rocky Mountain held that California's standards neither discriminated

10 Case = , 09/19/2014, ID = , DktEntry = 91, Page 10 of 19 against interstate commerce nor constituted impermissible extraterritorial regulation under Healy, even though such standards could be characterized as regulating conduct taking place outside of California.' The Supreme Court denied certiorari in this case on June 30, On appeal to this Court, Plaintiffs-Appellants offer three principal reasons why the district court erred in holding the Act unconstitutional under Healy: a. By its own terms and those of cases subsequently interpreting it, Healy does not apply to the Act. The Act simply does not control or regulate the out-of-state sale of art: it does not limit a California seller's right to sell art in another state, nor does it dictate the terms, conditions or prices of such sales. Thus, the Act, unlike the Connecticut statute invalidated in Healy, does not compel "an out-of-state merchant to seek regulatory approval in one State before undertaking a transaction in another." Healy, 491 U.S. at 337. The Supreme Court's decision in Walsh and this Court's decision in Harris expressly confirm that Healy is ' Judge Murguia dissented from the non-discrimination holding and, accordingly, did not reach the Healy question. This Court declined to rehear the case en banc. Rocky Mountain Farmers Union v. Corey, 740 F.3d 507 (2014). Judge Gould wrote an opinion concurring in the denial of en banc rehearing, id. at 509, while Judges M. Smith, O'Scannlain, Callahan, Bea, Ikuta, and N.R. Smith dissented from the denial of en banc rehearing. Id. at 512. Judge Murguia joined the dissent from the denial of rehearing en banc only on the issue of discrimination against interstate commerce. Id

11 Case = , 09/19/2014, ID = , DktEntry = 91, Page 11 of 19 inapplicable to this case because, they hold, Healy applies only to state laws that control prices in other states.2 2 (See ARB 10-15; AOB ) b. The Act's impact is exclusively California-centric. The Act requires the seller of fine art to pay 5% of the sale proceeds, but only if the sale is completed in California or completed out-of-state by a California resident; the levy's impact is thus akin to a gross receipts, income, or capital gains tax on proceeds received by a California resident on any type of out-of-state transaction. For this reason, the applicable test is not Healy, but the four-part test set out in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977) a test that governs the constitutionality under the Dormant Commerce Clause of state taxes and, we submit, other monetary levies that arguably have out-of-state reach. The Act satisfies the Complete Auto test. (See AOB 27-38, ARB ) c. Nor is Healy violated by an application of the Act to defendant auction houses, Christie's, Sotheby's, and ebay, each of which has a substantial physical presence in California. In requiring these defendants to collect and transmit the 5%levy owed by a California seller when the auction sales are conducted outside of California, the Act conforms to a long line of Supreme Court 2 Walsh held that Healy applies only to state laws that "regulate the prices paid" or the "terms of transactions that occur elsewhere." Walsh, 538 U.S. at 658, 669. Harris held that Healy is "not applicable to a statute that does not dictate the price of a product and does not `t[ie] the price of its in-state products to out-of-state prices."' prices.'" Harris, 729 F.3d at 951 (quoting Walsh, 538 U.S. at 669)

12 Case = , 09/19/2014, ID = , DktEntry = 91, Page 12 of 19 cases (culminating in Quill Corp v. North Dakota, 504 U.S. 298 (1992)) holding that under the Dormant Commerce Clause states may properly impose tax collection and transmittal obligations on out-of-state merchants with a physical presence in the state. (See AOB 18-25, ARB ) 7. The present case was argued on April 8, 2014, before a Ninth Circuit panel comprised of Judges Fernandez, N.R. Smith, and Murguia. No decision has issued. ARGUMENT A. En En Banc Banc Hearing Is Is Warranted And Should Be Granted Under FRAP 35(a)(1) Since There Is Inconsistency In The Language Though Not The Holdings Of The Harris And Rocky Mountain Decisions. As addressed in this Court's August 29, 2014 Order, inconsistent language employed in the two cited decisions despite the cases' holdings being entirely in accord warrants en en banc review under FRAP 35(a)(1): Harris expressly restricts application of Healy to legislation or regulation that directly controls out-of-state prices. 729 F.3d at 951 (quoting Walsh, 538 U.S. at 669 (Healy is "not applicable to a statute that does not dictate the price of a product and does not `t[ie] lie] the price of its in-state products to out-ofstate prices"').). prices'").)

13 Case = , 09/19/2014, ID = , DktEntry = 91, Page 13 of 19 Rocky Mountain contains language that arguably interprets Healy more expansively than Harris allows. In upholding California's Low Carbon Fuel Standard, Rocky Mountain stated that the regulation "says nothing at all about ethanol produced, sold, and used outside California, it does not require other jurisdictions to adopt reciprocal standards before their ethanol can be sold in California, it makes no effort to ensure the price of ethanol is lower in California than in other states, and it imposes no civil or criminal penalties on non-compliant transactions completed wholly out of state." 730 F.3d at (emphasis added). One potential implication is that, if California's Low Carbon Fuel Standard imposed penalties on transactions completed outside of California, the result might be different. By listing what California's Low Carbon Fuel Standard is not about, the decision implies that Healy's extra-territorial preclusion might extend to situations well beyond a state's effort to control out-of-state pricing. For example, under the above-quoted language, it might be said that, even if there were no out-of-state price controls, Healy might still apply if a state were to impose a levy on transactions that closed or were completed out of state. Any interpretation of Rocky Mountain that might permit Healy to apply to cases not involving out-of-state price controls would contradict the holding in Harris. While we submit that the holdings in Harris and Rocky Mountain are 4~s~~s.i

14 Case = , 09/19/2014, ID = , DktEntry = 91, Page 14 of 19 consistent,3 3 the divergence between Harris's absolute rule and the variance that Rocky Mountain's language might permit warrants en banc review "to secure or maintain uniformity of the court's decisions" under FRAP 35(a)(1) The holdings are consistent because both cases reject Dormant Commerce Clause challenges based on Healy's extraterritoriality doctrine; both cases affirm as constitutional two California laws that regulate what out-of-state businesses may and may not do when selling products in California. Rocky Mountain rejected a Healy-based claim that California's Low Carbon Fuel Standard had the "practical effect" of "control[ling] conduct beyond the boundaries of the state" because it regulated the "lifecycle" emissions of fuel produced in other states, rather than just the emissions that resulted from burning such fuel in California. Rocky Mountain, 730 F.3d at 1101 (quoting Healy, 491 U.S. 336). Rocky Mountain observed that "the Supreme Court hasrarely rarely held that statutes violate the extraterritoriality doctrine," 730 F.3d at 1101, noted that the "two most prominent of such cases where a violation did occur" involved "price-affirmation statutes," id., and emphasized that Walsh, 538 U.S. at , "declined to extend the [Healy extraterritoriality] doctrine" beyond state laws that regulated `the 'the price of any outof-state transaction'or `t[ied] the price of its in-state products to out-of-state prices."' prices.'" Id. at 1103 (quoting Walsh, 538 U.S. at ). 4 4 Both Harris and Rocky Mountain also rejected the claim the California regulations in question would balkanize the relevant markets and conflict with the laws and regulations of other states. See Harris, 729 F.3d at 951; Rocky Mountain, 730 F.3d Both panels followed S.D. Myers, Inc. v. City &County& of San Francisco, 253 F.3d 461, 470 (9th Cir. 2001), in holding that a party attacking a state law on the ground that it will create conflicting regulatory standards must point to actual or imminent legislative conflict, rather than engage in speculation. See Harris, 729 F.3d at 951; Rocky Mountain, 730 F.3d at

15 Case = , 09/19/2014, ID = , DktEntry = 91, Page 15 of 19 B. En En Banc Banc Review Is Is Also Warranted Under FRAP 35(a)(2) Because This Case Presents Issues Of Exceptional Importance Involving The Outer Boundaries Of Dormant Commerce Clause Jurisprudence And The Invalidation Of A State Statute Uniquely Benefiting Artists Whose Works Are Sold Either In California Or By California Residents. Plaintiffs-Appellants submit that that this case should be heard en banc for the separate reason that it presents questions of exceptional importance. See FRAP 35(a)(2). Defendants successfully challenged the constitutionality of a state statute that, for some 37 years, has expressed the will of California citizens to encourage the arts by affording artists the benefit of a levy imposed on intra-california fine-- art transactions or on the proceeds that a California resident earns from an out-ofstate fine-art sale. The district court invalidated the Act on the basis of arguments that, if correct, would extend the outer boundary of the Dormant Commerce Clause to reach and invalidate laws that that do do not not discriminate against out-of-state residents and that affect only transactions concluded in California or attach to the proceeds California residents earn from sales outside of California. No case has ever gone so far, thus presenting the first-impression question whether, in light of the Supreme Court's decisions in Complete Auto and Walsh, and this Court's decisions

16 Case = , 09/19/2014, ID = , DktEntry = 91, Page 16 of 19 in Harris and Rocky Mountain, Healy's extraterritoriality doctrine may permissibly be extended to apply here even though the Act does not dictate, control or regulate out-of-state pricing and, indeed, burdens in-state residents alone. This issue lies at cutting edge of Dormant Commerce Clause jurisprudence, especially in this interconnective age, where millions of commercial transactions occur daily across state borders and regulations invariably have effects in other states. See, e.g., Am. Beverage Assoc., 735 F.3d at 379 (6th Cir. 2013) (Sutton, J., concurring) ("The modern reality is that the States frequently regulate activities that occur entirely within one State but that have effects in many."); Brannon P. Denning, Extraterritoriality and the Dormant Commerce Clause: A Doctrinal Post-Mortem, 73 La. L. Rev 979, (2013) (tracing "retrenchment" of the Healy extraterritoriality doctrine after Walsh, where "lower courts have generally restricted extraterritoriality along the lines suggested by the court's narrow reading of its previous cases," in the process making "clear that extraterritoriality is not an all-purpose deregulatory tool allowing interstate companies to escape the reach of state legislators and regulators where they do business, even though compliance causes effects that are felt beyond the regulating jurisdiction."); Dan Farber, Regulators Between a Rock and a Hard Place: The Extraterritorial Dilemma, Legal Planet (June 24, 2013) (accessed at regulators-between-a-rock-and-a-hard-place-the-extraterritorial-dilemma/) -a -rock -and -a -hard -place -the -extraterritorial -dilemma/) 4~s~~s.i ,1 13

17 Case = , 09/19/2014, ID = , DktEntry = 91, Page 17 of 19 ("Current dormant commerce clause doctrine creates an incredible dilemma for state lawmakers. No matter what they do, they are at serious risk of attack under the dormant commerce clause."). For this reason, too, en banc review is appropriate and should be granted under FRAP 35(a)(2). CONCLUSION This case merits an en banc hearing to secure uniformity of decision and to resolve questions of exceptional importance. DATED: September 19, 2014 Respectfully submitted, BROWNE GEORGE ROSS LLP Eric M. George e~eorgena egeorge@bgrfirm.com e,bgrfirm.com Ira Bibbero ibibbero@bgrfirm.com e,bgrfirm.com GREINES, MARTIN, STEIN & RICHLAND LLP Irving H. Greines Gary D. Rowe By /s/ Eric M. George e Eric M. George Attorneys for Plaintiffs/Appellants The Sam Francis Foundation, Estate of Robert Graham, Chuck Close, and Laddie John Dill, individually and on behalf of all others similarly situated a~s~~s.i

18 Case = , 09/19/2014, ID = , DktEntry = 91, Page 18 of 19 CERTIFICATE OF COMPLIANCE WITH FRAP 32(a) AND NINTH CIRCUIT RULE 32-1 Pursuant to F.R.A.P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, the attached supplemental brief is proportionately spaced, has a typeface of 14 points or more and contains 2,955 words, including footnotes. Counsel relies on the word count of the computer program used to prepare this brief. DATED: September 19, 2014 Respectfully submitted, BROWNE GEORGE ROSS LLP Eric M. George e~eor~e(a~b~rfirm.com egeorge@bgrfirm.com Ira Bibbero ibibbero(a~,bgrfirm.com ibibbero@bgrfirm.corn GREINES, MARTIN, STEIN & RICHLAND LLP Irving H. Greines Gary D. Rowe By /s/ Eric M. George e Eric M. George Attorneys for Plaintiffs/Appellants The Sam Francis Foundation, Estate of Robert Graham, Chuck Close, and Laddie John Dill, individually and on behalf of all others similarly situated 4~s~~s.i

19 Case = , 09/19/2014, ID = , DktEntry = 91, Page 19 of 19 9th Circuit Case Numbers) Number(s) , , (Consolidated) NC~TI;: NOTE: To "f`o secure se~~u~e your ~'ot:~r input, you yott yc~t~ should print the tilled-in fille.cl-ire form ~[`orm to PDF Pl)1~' (Tile (1-'ile `Print > Print :`> I'!)! I'1)f~` Prinleri( /'r ri~~~r%"c'~~eatur). realor). ********************************************************************************* CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CM/ECF System I hereby certify that 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 on (date) on (date) Sep 19, 2014 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. Signature (use "s/" format) s/ Eric M. George ********************************************************************************* ********************************************************************************* CERTIFICATE OF SERVICE When Not All Case Participants are Registered for the Appellate CM/ECF System I hereby certify that 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 on (date) Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-cm/ecf participants: Signature (use "s/" format)