While she is continuing to evaluate, Ms. Russell currently expects to present several reasons for granting a writ. One is that the Ninth Circuit's decision rejecting indirect copyright liability against Walmart here is likely to be impacted by this Court's forthcoming decision in Cox v. Sony Music, Case No. 24-171, which will provide additional guidance as to the appropriate standard for indirect copyright liability. Accordingly, Ms. Russell intends to request a grant of certiorari coupled with a hold pending resolution of Cox.

A second issue is that the lower court's decision conflicts with this Court's decision in Unitherm Food Systems, Inc. v. Swift-Echrich, Inc., 546 U.S. 394, 405 (2006), and other court of appeals decisions applying that precedent. Namely, in contravention of Unitherm, the Ninth Circuit reviewed the sufficiency of the evidence—and reversed the district court's judgment in relevant part—by purporting to review the district court's denial of a Rule 50(a) motion. Unitherm is clear that an appellant "may not challenge the sufficiency of the evidence on appeal on the basis of the District Court's denial of its Rule 50(a) motion." Id. (As the Ninth Circuit recognized, the court of appeals did not have authority to review, and did not purport to reverse based on, the denial of Walmart's Rule 50(b) motion because Walmart never appealed that denial.)

Another reason that Ms. Russell intends to seek certiorari is that the lower court's decision conflicts with this Court's decision in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1896), and the Ninth Circuit's own decision in Unicolors, Inc. v. Urban Outfitters, Inc., 853 F.3d 980, 984 (9th Cir. 2017). As noted by the dissent, the majority improperly reweighed evidence and made fact and credibility determinations.

Whether a federal appellate court may review the sufficiency of evidence by purporting to review a preverdict Rule 50(a) motion when the appellant did not appeal the post-trial Rule 50(b) motion denial