In The United States Court of Appeals For The Ninth Circuit: Attorneys For Petitioner-Appellee Nouvel, LLC
In The United States Court of Appeals For The Ninth Circuit: Attorneys For Petitioner-Appellee Nouvel, LLC
In The United States Court of Appeals For The Ninth Circuit: Attorneys For Petitioner-Appellee Nouvel, LLC
NOUVEL, LLC,
Petitioner-Appellee,
v.
Respondents-Appellants.
LLC states the following: Nouvel, LLC is a wholly owned subsidiary of Tenute
del Mondo B.V. Tenute del Mondo is a wholly owned subsidiary of Stoli Group
Holding Limited. No publicly held corporation owns 10% or more of the stock of
TABLE OF CONTENTS
PAGE
INTRODUCTION .....................................................................................................1
ARGUMENT .............................................................................................................7
I. The Pitt Parties Are Not Likely To Succeed on the Merits. ................. 7
CONCLUSION ........................................................................................................20
ii
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TABLE OF AUTHORITIES
Page(s)
Cases
Becker v. U.S.,
451 U.S. 1306 (1981) ..........................................................................................18
Bernhardt v. Cnty. of Los Angeles,
279 F.3d 862 (9th Cir. 2002) ..............................................................................17
Church of Scientology of California v. U.S.,
506 U.S. 9 (1992) ................................................................................................16
In re Gorsoan Ltd.,
No. 18-mc-431, 2020 WL 4194822 (S.D.N.Y. Jul. 21, 2020) ...........................20
iii
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In re Gushlak,
No. 11-mc-0218, 2012 WL 2564466 (E.D.N.Y. Jan. 30, 2012) ........................15
In re Gyptec S.A.,
No. 16-cv-20810, 2017 WL 10978838 (S.D. Fla. Nov. 2, 2017) .......................15
In re Microsoft Corp.,
428 F. Supp. 2d 188 (S.D.N.Y. 2006) ................................................................13
In re O’Keeffe,
646 F. App’x 263 (3d Cir. 2016) .......................................................................... 9
In re OOO Promnefstroy,
No. M 19-99, 2009 WL 3335608 (S.D.N.Y. Oct. 15, 2009) ..............................13
Mees v. Buiter,
793 F.3d 291 (2d Cir. 2015) .............................................................................8, 9
Nat. Res. Def. Council, Inc. v. Winter,
502 F.3d 859 (9th Cir. 2007) ..............................................................................17
iv
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Nken v. Holder,
556 U.S. 418 (2009) ........................................................................................6, 16
Rothe v. Aballí,
No. 20-12543, 2021 WL 4429814 (11th Cir. Sept. 27, 2021)............................16
v
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Appellants Mondo Bongo, LLC, William B. Pitt, and Warren Grant (collectively,
the “Pitt Parties”) for a stay pending appeal of the District Court’s July 22, 2022
order denying the Pitt Parties’ motion to vacate a January 12, 2022 order
INTRODUCTION
The Pitt Parties begin by misrepresenting the basis of this § 1782 action.
This action has its roots in Pitt’s ongoing illegal conduct against his former wife,
Angelina Jolie, and her former company, Nouvel, since Jolie filed for divorce in
2016. Pitt has cut Jolie and Nouvel out of any meaningful participation in their
jointly owned Luxembourg company, Quimicum, and has stripped assets from
Quimicum’s wholly owned subsidiary, the French wine company Chateau Miraval.
subsidiary of the Stoli Group in 2021, Nouvel does not seek discovery here for use
retaliation for Nouvel’s § 1782 petition—seeking to set aside that sale. Instead,
Nouvel seeks discovery to defend itself against Pitt’s continuing, baseless legal
No basis exists for a stay. The Pitt Parties do not dispute that the statutory
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factors set forth in 28 U.S.C. § 1782 are met in this case. Their argument that the
District Court abused its discretion in applying the discretionary Intel factors fails
as a matter of law. Under this Court’s precedents, the District Court was not
required to fully resolve disputed issues of foreign law in applying those factors.
Nevertheless, the District Court did consider the questions of Luxembourgish and
French law presented by the parties and properly concluded that foreign law does
not prohibit the requested discovery. The Pitt Parties cannot prevail on the merits.
Nor will the Pitt Parties suffer any irreparable harm in responding to routine
discovery requests. The District Court has already prohibited Nouvel from using
the documents other than for purposes of the foreign litigations. By contrast, the
conclude at any time at the discretion of the Luxembourgish judge. Should Pitt be
Nouvel will be irreparably harmed. And Nouvel must act expeditiously in France
to remedy the ongoing harm Pitt and his allies are inflicting on Chateau Miraval,
declining to issue a stay does not moot a § 1782 appeal because the Court can
Thus, all of the relevant factors weigh in favor of denying the Pitt Parties’
2
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RELEVANT BACKGROUND
The Pitt Parties provide no factual support for their claim of irreparable
harm. In lieu of evidentiary support, the Pitt Parties focus much of their
“background” on repeating irrelevant and often false allegations Pitt makes in his
summary of the facts that are actually relevant to this § 1782 appeal.
When Mondo Bongo (owned by Pitt) and Nouvel (owned by Jolie) acquired
Quimicum in 2008, they split ownership 60–40. In 2013, Pitt voluntarily caused
(the “2013 Share Transfer”), making Nouvel and Mondo Bongo equal 50–50
owners of Quimicum. In 2021, Pitt caused Mondo Bongo to sue Nouvel and
2013 Share Transfer on the basis that the eight-year-old transaction lacked
concerning the reason for and any benefits derived from the 2013 Share Transfer,
3
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which Nouvel will use to show that the transfer was supported by “cause”. (Exs. 3
Miraval and, by extension, its incredibly valuable wine business, which includes a
(because Nouvel owns 50%), Pitt masterminded a successful plan to freeze out
Jolie and Nouvel, and obtain de facto control—which he enjoys to this day.
takeover” (Ex. 7 at 89), Pitt has used the deadlock he engineered to take full
management orders directly from Pitt, and they even attempted to appoint Pitt’s
113). That effort failed, but Pitt still runs Chateau Miraval as if it were his
governance on an equal footing with the other 50% owner, Pitt’s wholly owned
4
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Pitt’s usurpation of control over Chateau Miraval has had dire consequences.
Pitt and his directors appear to have wasted the Chateau’s assets, spending millions
pool. (Ex. 12 ¶ 9.) More troubling, since at least 2017, Chateau Miraval’s
France against, among others, Chateau Miraval’s directors and Miraval Provence
Action”). Here, Nouvel seeks documents through § 1782 concerning the assets
and supervision of Chateau Miraval and Miraval Provence for use in the French
2022. (Ex. 13.) On March 17, 2022, the Pitt Parties moved to vacate the order and
quash the subpoenas issued thereunder. (Ex. 7.) Magistrate Judge Eick
recommended denying the Pitt Parties’ motion on June 8, 2022. (Ex. 14.)
The Pitt Parties filed Objections to the Magistrate Judge’s Report &
Recommendation (“R&R”) on June 28, 2022, and therein requested that any order
5
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be stayed pending appeal. (Ex. 15.) The District Court fully adopted the R&R on
July 22, 2022, after reviewing it de novo. (Ex. 16.) The District Court denied the
Pitt Parties’ request for a stay, both on the merits and because the Pitt Parties had
LEGAL STANDARD
for abuse of discretion, Lopez v. Heckler, 713 F.2d 1432, 1435–36 (9th Cir. 1983),
Innovative Sols. v. Thoratec LLC, 762 F. App’x 447, 449 (9th Cir. 2019).
“(1) whether the stay applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be irreparably injured absent a
stay; (3) whether issuance of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest lies.” Nken v.
Holder, 556 U.S. 418, 434 (2009) (citation omitted). “A stay is not a matter of
exercise of judicial discretion.” Virginian Ry. Co. v. United States, 272 U.S. 658,
672–73 (1926) (citation omitted). This Court does not stay all § 1782 appeals
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ARGUMENT
The Pitt Parties argue that they are likely to succeed on the merits because,
they maintain, Intel Corp. v. Advanced Micro Devices, Inc. required the District
Court to make conclusive determinations about disputed issues of foreign law. 542
U.S. 241 (2004); (Mot. 9–10.) This is not the correct standard. This Court has
held that district courts do not abuse their discretion by declining to resolve
disputes about the content of foreign law in weighing the Intel factors.
1108 (9th Cir. 2015). There, the parties submitted competing affidavits about the
20), and the district court expressly declined to resolve the dispute, allowing
discovery. (Ex. 21 at 266-68.) The appellant argued that the district court erred in
concluding that it was “not required and in fact declines to undertake the extensive
efforts required to determine what types of evidence the [foreign tribunals] would
or would not consider”. (Id.; Ex. 22 at 295.) This Court rejected that argument,
holding that the district court had not “abused its discretion by giving ‘short shrift’
to the nonexclusive [Intel] factors” because “[t]he district court was not required to
argued that because the court had refused to accept its evidence of foreign law and
had admitted that it was “unable to judge which side’s telling is more accurate”
was a wholesale failure to consider relevant evidence and to apply the controlling
test set forth” in Intel. (Id. at 338−39.) This Court rejected that argument, and
Assistance from Seoul Dist. Crim. Ct., 555 F.2d 720, 723 (9th Cir. 1977). That
litigation, not to erect obstacles to such discovery. See Advanced Micro Devices,
Inc. v. Intel Corp., 292 F.3d 664, 669 (9th Cir. 2002), aff’d, 542 U.S. 241 (2004).
Requiring district courts to conduct mini-trials on all disputed issues of foreign law
would unnecessarily consume judicial resources and frustrate that purpose. See
Khrapunov v. Prosyankin, 931 F.3d 922 (9th Cir. 2019). Khrapunov involved a
situation in which the foreign proceedings were “finally decided” against the
8
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§ 1782 applicant—and his request to appeal that loss was denied—while the
§ 1782 ruling was on appeal to this Court. Id. at 924. As a result of that
foreign ‘proceeding’—[wa]s called into doubt”. Id. at 925. This Court remanded
so that the district court could engage in “additional fact-finding” with respect to
the Petitioner’s argument that the statutory requirement was satisfied based on the
That some district courts may have fully resolved issues of foreign law in
weighing the Intel factors does not change the analysis. This Court’s precedents
make clear that a district court does not abuse its discretion in declining to resolve
disputed issues of foreign law. See Akebia Therapeutics, 793 F.3d 1108; AIS
GmbH Aachen Innovative Sols., 762 F. App’x 447; In re Request For Jud.
Assistance from Seoul Dist. Crim. Ct., 555 F.2d 720. Other Circuits are in accord.
See Mees, 793 F.3d at 298–99 (rejecting “speculative forays into legal territories
267 (3d Cir. 2016) (“We have never required district courts to determine whether
In any event, contrary to the Pitt Parties’ repeated assertions to the contrary
(Mot. 2, 8–12), the District Court did make findings about foreign law. With
respect to the first Intel factor, the District Court did not “discard[] the Pitt Parties’
9
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(Mot. 10.) Instead, the District Court rejected the Pitt Parties’ position “based on
holding that it was doubtful the discovery sought was available in Luxembourg, the
Magistrate Judge analyzed and even quoted from the declaration of the Pitt Parties’
expert, finding that it “underscor[ed] this doubt”. (Ex. 14 at 159 n.5.) And with
respect to the third Intel factor, after considering the parties’ evidence, the District
Court expressly found that “the discovery sought here does not appear to be
jurists: the former president of the Luxembourg Supreme Court and a tenured
professor at France’s top law school. (Exs. 24 ¶ 1; 25 ¶ 1.) In contrast, the Pitt
Parties submitted declarations solely from their own foreign counsel and, even
then, they did not submit anything from their French counsel to refute the
discussion of French law presented in Nouvel’s declaration from the French law
professor.
The Pitt Parties’ argument on the third Intel factor that a French court “held
10
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French case law, that an indirect shareholder, like Nouvel, has an interest in
obtaining discovery in the event of the direct shareholder’s inaction, the very same
French court reversed itself and granted Nouvel’s seizure application. (Ex. 26 at
Because this Court has rejected the Pitt Parties’ argument that a district court
analysis and because the District Court did make findings on foreign law, the Pitt
The Pitt Parties’ argument that the District Court erred by failing to consider
To start, the Pitt Parties do not claim the discovery would raise any comity
concerns with respect to the Luxembourg Action. Nor could they, because, as the
record shows, and the District Court found, the Luxembourg court will receive
Likewise, no comity concerns arise with respect to the French Action. The
District Court expressly found that “the discovery sought here does not appear to
be prohibited under [] French court procedures”. (Ex. 16 at 189.) For support, the
11
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District Court cited Nouvel’s French law expert, who declared that “there is
and [] § 1782 discovery in the United States, even on the same topics, given the
territorial restriction to article 145 CPC”. (Ex. 25 ¶ 39.) Indeed, the discovery
requests at issue here concern different targets, different documents, and different
time periods than the requests in France. (Compare Exs. 3−5 with Ex. 26.)
Moreover, the two categories of documents with which the Pitt Parties take
specific issue raise no international comity concerns. First are what the Pitt Parties
characterize as requests for documents that the “French courts are currently
discoverability in the foreign jurisdiction. But Intel itself cautions that comity and
parity concerns “do not permit our insertion of a generally applicable foreign-
discoverability rule”. See 542 U.S. at 261. Second are documents that the Pitt
Parties contend the “French courts have . . . prohibited [Nouvel] from accessing”.
(Mot. 13.) But, as noted above, the French court later reversed itself and granted
1
The Pitt Parties’ suggestion that there is some substantive principle of
French law prohibiting indirect shareholders from obtaining documents pertaining
to their investments is undercut by the fact that the Pitt Parties do not dispute
having access to the documents—despite being indirect shareholders themselves.
12
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Although the Pitt Parties quote a single line from the Supreme Court’s recent
opinion in ZF Auto, U.S., Inc. v. Luxshare, Ltd. noting that the “animating purpose
of § 1782 is comity”, 142 S. Ct. 2078, 2088 (2022), their argument misses the
mark. The quoted dicta from ZF Auto—a case concerning whether private arbitral
§ 1782—does not disturb or contradict the Court’s prior analysis of the statute’s
animating purpose in Intel. As the Intel Court framed these comity concerns,
information that the tribunals may find useful but, for reasons having no bearing on
international comity, they cannot obtain under their own laws”. 542 U.S. at 262.
Promnefstroy involved a § 1782 application filed for the exact same information
that had been unsuccessfully sought in a Dutch court. No. M 19-99, 2009 WL
3335608 at *9 (S.D.N.Y. Oct. 15, 2009). A Dutch appellate court had weighed the
unwarranted. Id. at *9, *3. Here, there has been no such ruling. And In re
Microsoft Corp. involved a request for the exact same documents, even though the
European Commission had provided a letter to counsel to the § 1782 target stating
that the applicant was seeking to circumvent its rules. 428 F. Supp. 2d 188, 191–
92 (S.D.N.Y. 2006).
13
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The Pitt Parties have failed to identify any relevant comity concerns.
II. The Pitt Parties Will Not Be Irreparably Harmed Absent a Stay.
The Pitt Parties’ contention that they will be harmed from the disclosure of
any factual support whatsoever. Indeed, their only “evidence” of harm are their
own allegations in a complaint from a different case that the Stoli Group, an
trying to take control of Chateau Miraval. (Mot. 4, 14–15.) The Pitt Parties have
failed to provide any evidence of this alleged harm or that they possess any
by Johnny Dung, Inc., 2019 WL 4570032, at *4 (C.D. Cal. Apr. 12, 2019)).)
Nor do the Pitt Parties’ allegations make sense. Nouvel’s § 1782 requests
for use in the Luxembourg Actions concern the validity of the 2013 Share
Transfer. The Pitt Parties make no effort to explain why such materials would be
commercially sensitive. As to the French Action, the Pitt Parties fail to explain
why Pitt, his company Mondo Bongo, or his agent Grant are entitled to have
14
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the quiet part out loud, Pitt acknowledges his true fear—that the information
“would allow Stoli to conduct an indirect audit” of his gross mismanagement of the
Nouvel to seek redress in France for Pitt and his allies’ mismanagement.
The Pitt Parties ignore that the District Court entered a protective order
“restricting the § 1782 discovery to be used for the purposes of the Luxembourgish
and French proceedings only”. (Ex. 16 at 189.) Courts have declined to grant
Holding Co., LLC v. Yihan Hu, No. 19-mc-80277, 2020 WL 1274877, at *5 (N.D.
Cal. Mar. 17, 2020); JSC MCC EuroChem v. Chauhan, No. 18-5890, 2018 WL
9650037, at *2 (6th Cir. Sept. 14, 2018). And documents filed in Luxembourg and
France are not publicly available (Exs. 24 ¶ 29; 25 ¶ 49), further limiting any harm.
The Pitt Parties’ argument that a stay is warranted because “the proverbial
S.A., No. 16-cv-20810, 2017 WL 10978838, at *1 (S.D. Fla. Nov. 2, 2017); see
alone, does not constitute irreparable injury warranting a stay pending appeal.”).
15
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Hainan, 2020 WL 1274877, at *5. That “is true in most, if not all, Section 1782
cases (not to mention ordinary discovery orders)”. Id. Under the Pitt Parties’
logic, a stay would be a matter of right in any § 1782 appeal, which is not the
standard. See Nken, 556 U.S. at 427 (a stay “is not a matter of right, even if
The Pitt Parties’ argument that its appeal will become moot absent a stay
also fails. “The test for mootness of an appeal is whether the appellate court can
give the appellant any effective relief in the event that it decides the matter on the
merits in his favor.” In re Burrell, 415 F.3d 994, 998 (9th Cir. 2005) (emphasis
appellate courts may still “effectuate a partial remedy” by ordering the return or
506 U.S. 9, 12–13 (1992). Courts have applied this principle in § 1782 actions.
See, e.g., Rothe v. Aballí, No. 20-12543, 2021 WL 4429814, at *2 (11th Cir. Sept.
27, 2021) (appeal of § 1782 petition was not moot because “the return of private
meaningful relief” (citing Church of Scientology, 506 U.S. at 12–13)); see also
Mangouras v. Squire Patton Boggs, 980 F.3d 88, 96 (2d Cir. 2020) (“[I]f the
16
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Even if the Pitt Parties can demonstrate some measure of irreparable harm,
no stay should issue given that they will fail on the merits. See Nat. Res. Def.
Council, Inc. v. Winter, 502 F.3d 859, 862 (9th Cir. 2007) (“[T]he required degree
The Pitt Parties, citing two unpublished orders, argue that this Court has
harm. (Mot. 8, 14.) But each of those two-page orders simply granted a stay and
referred to precedents without any detailed legal analysis. Neither made a finding
concerning likelihood of success on the merits, and neither stands for the
proposition that where, as here, a § 1782 appellant is almost certain to lose on the
The Pitt Parties’ other cases are distinguishable. John Doe Agency v. John
Doe Corp. concerns a Freedom of Information Act request, 488 U.S. 1306 (1989),
so unlike here a protective order limiting disclosure was impossible. See Nat’l
2
The Pitt Parties’ reliance on Bernhardt v. Cnty. of Los Angeles is
misplaced. Bernhardt states that a request for prospective relief becomes moot
“[w]here the activities sought to be enjoined already have occurred, and the
appellate courts cannot undo what has already been done”. Bernhardt, 279 F.3d
862, 871 (9th Cir. 2002). That is not the case here.
17
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Archives & Records Admin. v. Favish, 541 U.S. 157, 171 (2004). Becker v. U.S.
records. See 451 U.S. 1306, 1310 (1981). Neither situation applies here.
Although the Pitt Parties acknowledge that “a § 1782 applicant may incur
injury if it does not receive discovery ‘until after expiration of [] deadlines in the
2017 WL 4865549, at *3 (N.D. Cal. Oct. 26, 2017))), they misrepresent the state of
evidence is overseen by the presiding judge, who “may at any time decide that the
investigation phase is complete [and] the time for submission of evidence is over”.
(Mailliet Decl. ¶ 7; Ex. 27 at 423-24, Ex. 28.) Pitt and Mondo Bongo filed the
Luxembourg Action nearly a year ago, and the evidentiary phase has been
proceeding apace. When the presiding judge decides that she has sufficient
evidence to conclude the investigation, she may close the window to submit
evidence and proceed to an oral hearing. If that happens before this appeal is
will be unable to submit evidence directly relevant to one of the central issues in
the case (id. at ¶ 9). The Pitt Parties’ arguments to the contrary (Mot. 15) ignore
18
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French parties who are failing to adhere to proper governance at Chateau Miraval
and enabling Pitt to waste Chateau Miraval’s profits and loot it of its most valuable
assets. Chateau Miraval’s directors have already allowed another entity to register
its trademarks for no consideration (Ex. 12 ¶¶ 7-9), and there is no telling what
further damage they may do if Nouvel cannot immediately act to hold them to
account. Nouvel must commence the French Action as quickly as possible to try to
Miraval and, indirectly, itself. See Scrum All., Inc. v. Scrum, Inc., No. 4:20-cv-
227, 2021 WL 720703, at *2 (E.D. Tex. Feb. 24, 2021) (finding “misappropriation
Imp. Sales Co. v. Labatt Brewing Co., 339 F.3d 101, 114–15 (2d Cir. 2003)
further serves the public interest in justice, fair play and full disclosure. See, e.g.,
In re Application of Procter & Gamble Co., 334 F. Supp. 2d 1112, 1118 (E.D. Wis.
19
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2004) (“[T]he public interest favors allowing the discovery because doing so
furthers the search for the truth in foreign actions . . .”); In re Application of
2017) (denying stay pending appeal, noting denial served “public interests in
justice, fair play, and full disclosure” and “the truth in foreign actions”) (citing In
The Pitt Parties again focus only on France, thereby conceding that no public
interest exists in delaying discovery intended for use in the Luxembourg Action.
With respect to the French Action, the Pitt Parties’ conclusory public interest
Fifth Amendment challenge to a discovery order; the Magistrate held “the public
interest in: (i) protecting [] constitutional rights . . . and (ii) preserving judicial
resources . . . outweighs the general interest in comity between the United States
21, 2020). The Pitt Parties identify no such issue of constitutional significance.
CONCLUSION
Based on the foregoing, Nouvel respectfully requests this Court DENY the
Pitt Parties’ Emergency Motion to Stay. If, however, this Court chooses to grant a
stay, Nouvel requests that the Court expedite the briefing schedule and argument
for this appeal and prohibit any requests for extensions of time.
20
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s/ Keith R. Hummel
21
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CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing opposition complies with the type-
words and page limitation of Ninth Circuit Rule 27-1 as it does not exceed 20
pages. This opposition complies with the typeface and type style requirements of
Federal Rule of Appellate Procedure 27 as this brief has been accurately formatted