Reply Brief — First Solar, Inc., et al., Petitioners v. Mineworkers' Pension Scheme, et al.

No. 18-164

IN THE

Supreme Court of the United States

_________

FIRST SOLAR, INC.; MICHAEL J. AHEARN; ROBERT J.

GILLETTE; MARK R. WIDMAR; JENS MEYERHOFF;

JAMES ZHU; BRUCE SOHN; AND DAVID EAGLESHAM

Petitioners,

v.

MINEWORKERS’ PENSION SCHEME; BRITISH COAL

STAFF SUPERANNUATION SCHEME,

Respondents.

_________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

_________

REPLY BRIEF IN SUPPORT OF CERTIORARI

_________

DANIEL SLIFKIN

NEAL KUMAR KATYAL

MICHAEL T. REYNOLDS

Counsel of Record

KARIN A. DEMASI

EUGENE A. SOKOLOFF

LAUREN M. ROSENBERG

HOGAN LOVELLS US LLP

CRAVATH, SWAINE &

555 Thirteenth St., N.W.

MOORE LLP

Washington, D.C. 20004

Worldwide Plaza

(202) 637-5600

neal.katyal@hoganlovells.com

825 Eighth Ave.

New York, NY 10019

PAUL J. KALETA

JOSEPH ROTH

FIRST SOLAR, INC.

OSBORN MALEDON, P.A.

350 West Washington St.

2929 North Central Ave.

Tempe, AZ 85281

Ste.2100

Phoenix, AZ 85012

Counsel for Petitioners

RULE 29.6 DISCLOSURE STATEMENT

The disclosure made in the petition for a writ of

certiorari remains accurate.

(i)

TABLE OF CONTENTS

Page

RULE 29.6 DISCLOSURE STATEMENT...................i

TABLE OF AUTHORITIES ...................................... iii

INTRODUCTION ........................................................ 1

ARGUMENT ................................................................ 3

I.

THE COURTS OF APPEALS ARE

IRRECONCILABLY DIVIDED........................... 3

II.

RESPONDENTS DO NOT DEFEND

THE NINTH CIRCUIT’S REASONING............. 9

III. THIS CASE IS AN IDEAL VEHICLE

TO ADDRESS AN IMPORTANT

QUESTION ........................................................ 11

CONCLUSION........................................................... 13

(ii)

iii

TABLE OF AUTHORITIES

Page(s)

CASES:

Alaska Elec. Pension Fund v. Flowserve Corp.,

572 F.3d 221 (5th Cir. 2009) .....................6, 8, 10

Anza v. Ideal Steel Supply Corp.,

547 U.S. 451 (2006) ............................................10

Bank of Am. Corp. v. City of Miami,

137 S. Ct. 1296 (2017) ..........................................2

Breuer v. Jim’s Concrete of Brevard, Inc.,

538 U.S. 691 (2003) ............................................12

Caremark, Inc. v. Coram Healthcare Corp.,

113 F.3d 645 (7th Cir. 1997) ...............................8

Dura Pharm., Inc. v. Broudo,

544 U.S. 336 (2005) ..........................................2, 8

Erica P. John Fund, Inc. v. Halliburton Co.,

563 U.S. 804 (2011) ............................................10

FindWhat Inv’r Grp. v. FindWhat.com,

658 F.3d 1282 (11th Cir. 2011) ...............5, 6, 7, 9

Glickenhaus & Co. v. Household Int’l, Inc.,

787 F.3d 408 (2015) .............................................4

Hemi Grp., LLC v. City of New York,

559 U.S. 1 (2010) ..................................................2

In re Vivendi, S.A. Securities Litigation,

838 F.3d 223 (2d Cir. 2016) ....................... passim

In re Williams Sec. Litig.–WCG Subclass,

558 F.3d 1130 (10th Cir. 2009) .................7, 8, 10

Jones v. R.R. Donnelley & Sons Co.,

541 U.S. 369 (2004) ............................................12

Katyle v. Penn Nat’l Gaming, Inc.,

637 F.3d 462 (4th Cir. 2011) ...............................9

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Lexmark Int’l, Inc. v. Static Control Components, Inc.,

134 S. Ct. 1377 (2014) ..........................................2

Mach Mining, LLC v. EEOC,

135 S. Ct. 1645 (2015) ........................................12

Mass. Ret. Sys. v. CVS Caremark Corp.,

716 F.3d 229 (1st Cir. 2013) ...................... passim

McCabe v. Ernst & Young, LLP,

494 F.3d 418 (3d Cir. 2007) .................................8

Meyer v. Greene,

710 F.3d 1189 (11th Cir. 2013) ...........................5

Norfolk S. Ry. Co. v. Kirby,

543 U.S. 14 (2004) ..............................................12

Ohio Pub. Emps. Ret. Sys. v. Fed. Home Loan

Mortg. Corp.,

830 F.3d 376 (6th Cir. 2016) .....................7, 8, 10

Paroline v. United States,

134 S. Ct. 1710 (2014) ..........................................2

Pub. Emps.’ Ret. Sys. of Miss. v. Amedisys, Inc.,

769 F.3d 313 (5th Cir. 2014) ...............................7

Ray v. Citigroup Glob. Mkts., Inc.,

482 F.3d 991 (7th Cir. 2007) ...................4, 5, 7, 8

Teachers’ Ret. Sys. of La. v. Hunter,

477 F.3d 162 (4th Cir. 2007) ...........................4, 7

Tricontinental Industries, Ltd. v.

PricewaterhouseCoopers, LLP,

475 F.3d 824 (7th Cir. 2007) ...........................5, 9

v

TABLE OF AUTHORITIES—Continued

Page(s)

STATUTES:

Private Securities Litigation Reform Act.....9, 10, 11

15 U.S.C. § 78u–4(b)(4) ......................................11

15 U.S.C. § 78u–4(e)(1) ......................................11

28 U.S.C. § 1292(b) ..................................................11

OTHER AUTHORITY:

Carol Villegas & James Christie, 9th Circ.

Decision Could Be Game-Changer For

Investors, Law360 (Feb. 2, 2018) ...........................2

CORNERSTONE RESEARCH, SECURITIES CLASS

ACTION FILINGS: 2017 YEAR IN

REVIEW (2018) .........................................................2

IN THE

Supreme Court of the United States

_________

No. 18-164

_________

FIRST SOLAR, INC.; MICHAEL J. AHEARN; ROBERT J.

GILLETTE; MARK R. WIDMAR; JENS MEYERHOFF;

JAMES ZHU; BRUCE SOHN; AND DAVID EAGLESHAM

Petitioners,

v.

MINEWORKERS’ PENSION SCHEME; BRITISH COAL

STAFF SUPERANNUATION SCHEME,

Respondents.

_________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

_________

REPLY BRIEF IN SUPPORT OF CERTIORARI

_________

INTRODUCTION

Respondents’ brief in opposition demonstrates that

there are many ways to prove the element of loss

causation in securities-fraud cases. But the question

here is not how plaintiffs can meet their burden; the

question is what they must establish. As respondents’ own analysis confirms, the courts of appeals are

irreconcilably divided—four to four to two—over

whether loss causation requires proof that the market learned of and reacted to “the defendant’s misrepresentation (or other fraudulent conduct),” or

whether some lesser showing can establish that the

fraud “proximately caused the plaintiff’s economic

(1)

2

loss.” Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 346

(2005).

This longstanding split encourages forumshopping, promotes meritless litigation, drives up the

cost of capital, and ultimately destroys shareholder

value. The Ninth Circuit’s decision here—already

acclaimed as a “game-changer” by members of the

plaintiffs’ bar—only deepens the divide. Carol Villegas & James Christie, 9th Circ. Decision Could Be

Game-Changer For Investors, Law360 (Feb. 2, 2018),

available at https://bit.ly/2NDYDIm. And the growing volume of securities-fraud filings makes the

question all the more important. See CORNERSTONE

RESEARCH, SECURITIES CLASS ACTION FILINGS: 2017

YEAR IN REVIEW (2018), available at https://bit.ly/

2kSPg7w. Small wonder, then, that a broad coalition

of business and industry groups is urging this

Court’s intervention. See Br. of Sec. Indus. & Fin.

Mkts. Ass’n, et al.

This Court regularly grants certiorari to maintain

uniform standards under the securities laws. See

Pet. 22. And it has repeatedly reviewed questions

regarding the proper application of proximate-cause

principles to statute-based damages actions. See, e.g.,

Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296

(2017); Paroline v. United States, 134 S. Ct. 1710

(2014); Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014); Hemi Grp., LLC v.

City of New York, 559 U.S. 1 (2010). This Court

should grant the petition and clarify the losscausation standard once and for all.

3

ARGUMENT

I.

THE COURTS OF APPEALS ARE

IRRECONCILABLY DIVIDED

Respondents claim that every circuit applies the

same proximate-cause standard in securities-fraud

cases. But the petition showed that courts apply the

“proximate cause” label to at least three distinct losscausation standards. To recap, one group (the First,

Fourth, Seventh, and Eleventh Circuits) holds that a

plaintiff can establish the required proximate connection between a misrepresentation and a drop in

share price only by proving that the market learned

of the defendant’s fraud. Another (the Second, Fifth,

Sixth, and Tenth Circuits) holds that it is enough to

prove that the market learned the truth concealed by

the defendant’s fraud, even if the fraud itself remains undisclosed. And a third group (the Third and

Ninth Circuits) holds that it is enough to prove that

the market learned of some fact that can be “trac[ed]

* * * back” to the fraud, even if the market remains

unaware of both the fraud and the facts concealed.

Pet. App. 5a. These are major, outcomedeterminative differences in legal tests despite the

fact that there is just one set of federal laws at issue.

1. All that respondents’ analysis of the First,

Fourth, Seventh, and Eleventh Circuits shows is that

plaintiffs in those courts are not confined to a single

means of proving that the fraudulent nature of the

defendant’s conduct was revealed to the market.

That does nothing to dispel the split.

a. Thus, for example, respondents point out that

the First Circuit does not require a plaintiff to identify “a direct admission that a previous statement is

untrue.” Opp. 13 (quoting Mass. Ret. Sys. v. CVS

4

Caremark Corp., 716 F.3d 229, 240 (1st Cir. 2013)).

But whether a disclosure is a “mirror-image” or

merely “relate[s] to the same subject matter as the

alleged misrepresentation,” it must nevertheless

“reveal[] that [the defendant’s] previous statements

were misrepresentations.” CVS Caremark, 716 F.3d

at 239-240 (emphasis added).

b. Respondents note (at 13) that the Fourth Circuit

has “acknowledge[d] the possibility that a plaintiff

could successfully allege loss causation” without

identifying any specific disclosure “by pleading that a

previously concealed risk materialized.” Teachers’

Ret. Sys. of La. v. Hunter, 477 F.3d 162, 187 n.3 (4th

Cir. 2007)). But the reason that alternative is viable

is that “news of the materialized risk would itself be

the revelation of fraud that caused plaintiffs’ loss.”

Id. (emphasis added). It is, in other words, just

another way of showing that “the market reacted to

new facts * * * that revealed [the defendant’s] previous representations to have been fraudulent.” Pet.

10 (quoting Hunter, 477 F.3d at 187).

c. Respondents’ discussion of the Seventh Circuit’s

precedent is likewise consistent with the petition.

The question in the case respondents highlight was

whether the plaintiffs’ damages model properly

accounted for the cumulative effect on the defendant’s share price of a series of false statements. See

Glickenhaus & Co. v. Household Int’l, Inc., 787 F.3d

408, 414, 417-419 (2015). The opinion’s only reference to the issue here was in a parenthetical observing that “[p]laintiffs must show both that the defendants’ alleged misrepresentations artificially

inflated the price of the stock and that the value of

the stock declined once the market learned of the

deception.” Id. at 415 (emphasis added) (quoting Ray

5

v. Citigroup Glob. Mkts., Inc., 482 F.3d 991, 995 (7th

Cir. 2007)). That is no different from the Seventh

Circuit’s admonition in Tricontinental Industries,

Ltd. v. PricewaterhouseCoopers, LLP, 475 F.3d 824

(7th Cir. 2007), that plaintiffs must show that they

“experienced [a] loss as a result of the exposure of

[the defendant’s] misrepresentations.” Id. at 844; see

Pet. 11.

d. The quotation that respondents chose from the

Eleventh Circuit likewise confirms that evidence of a

disclosure can support a loss-causation finding only

“so long as it reveal[s] to the market the falsity of the

prior misstatements.” Opp. 14 (emphasis added)

(quoting FindWhat Inv’r Grp. v. FindWhat.com, 658

F.3d 1282, 1311 & n.28 (11th Cir. 2011)). Thus, in

Meyer v. Greene, 710 F.3d 1189 (11th Cir. 2013), the

court agreed that a short-seller’s critical comments

about a defendant company’s finances could, in

theory, count as a disclosure of the company’s accounting irregularities. Id. at 1197-1200. But the

court ultimately concluded that the plaintiffs had not

met their burden because, among other things, the

comments “were not necessarily revelatory of any

past fraud.” Id. at 1200.

2. Respondents’ opposition likewise confirms the

petition’s conclusion that—unlike the strict revelation-of-fraud standard that applies in the First,

Fourth, Seventh, and Eleventh Circuits—the Second,

Fifth, Sixth, and Tenth Circuits require plaintiffs to

establish only that the market learned the facts

concealed by the alleged fraud.

a. Respondents largely duplicate (at 16) the petition’s description of the Second Circuit’s decision in

In re Vivendi, S.A. Securities Litigation, 838 F.3d

6

223, 261-263 (2d Cir. 2016). As the petition explained, the Vivendi court affirmed a jury’s losscausation finding based on evidence that the defendant had engaged in conduct that “revealed the truth

about [its] liquidity risk”—“the subject of [the] alleged misstatements.” 838 F.3d at 263 (internal

quotation marks and emphasis omitted); see Pet. 13.

Although the means by which the plaintiffs in Vivendi proved their case were “context-specific,” Opp.

16, the standard by which the Second Circuit judged

the evidence was not. The court sustained the verdict

only because “although no specific corrective disclosure ever exposed the precise extent of [the] alleged

fraud, Plaintiffs’ theory of loss causation nevertheless rested on the revelation of the truth.” Vivendi,

838 F.3d at 262 (emphasis added).

b. Respondents’ discussion (at 16-18) of Fifth Circuit precedent hews even closer to the petition’s

analysis. As respondents show, the Fifth Circuit

requires plaintiffs to identify disclosures that reveal

“the truth obscured by the fraudulent statements.”

Opp. 17 (emphasis added) (quoting Alaska Elec.

Pension Fund v. Flowserve Corp., 572 F.3d 221, 230

(5th Cir. 2009) (per curiam)).

Respondents point out (at 18) that the Fifth Circuit

has quoted the Eleventh Circuit’s decision in

FindWhat for the universally accepted proposition

that a plaintiff can prove loss causation circumstantially. But the question is not what evidence plaintiffs can use, but what that evidence must prove. As

respondents’ own quotation shows, the Eleventh

Circuit holds that, whatever form disclosures take,

they must “reveal[] to the market the falsity of the

prior misstatements.” FindWhat, 658 F.3d at 1311

7

n.28 (internal quotation marks omitted); see Opp. 14;

supra, p. 5. The Fifth Circuit sharply disagrees,

holding that plaintiffs need not show disclosures that

“reveal the falsity in a prior statement.” Pet. 14

(quoting Pub. Emps.’ Ret. Sys. of Miss. v. Amedisys,

Inc., 769 F.3d 313, 325 n.5 (5th Cir. 2014)). That is

the textbook definition of a split.

c. Respondents’ cursory discussion (at 18-19) of the

Sixth and Tenth Circuits is to the same effect. Although there are many ways to meet the losscausation standard, that flexibility does not relieve

plaintiffs from the obligation to “explain how the

truth was revealed to the market” and then “link the

revelation of truth to a corresponding loss.” In re

Williams Sec. Litig.–WCG Subclass, 558 F.3d 1130,

1139 (10th Cir. 2009); see Ohio Pub. Emps. Ret. Sys.

v. Fed. Home Loan Mortg. Corp. (“OPERS”), 830 F.3d

376, 388 (6th Cir. 2016).1

3. Respondents’ brief discussion (at 20-21) of the

Third and Ninth Circuits comes no closer to dispelling the split. While every circuit describes its standard as “proximate cause,” the First, Fourth, Seventh

and Eleventh Circuits hold as a matter of law that

misrepresentations proximately cause a loss only

where “the market learned of the deception.” Ray,

482 F.3d at 995 (emphasis added); see FindWhat, 658

F.3d at 1311; Hunter, 477 F.3d at 187; CVS Care1

Respondents claim in passing (at 19 n.*) that “materialization of the risk” describes the “relevant truth” that a plaintiff

must show was revealed to the market. Respondents are wrong.

“[M]aterialization of risk” is just another “method by which a

plaintiff may prove losses resulting from the revelation of the

truth.” Vivendi, 838 F.3d at 261.

8

mark, 716 F.3d at 240. By contrast, the Second,

Fifth, Sixth, and Tenth Circuits hold as a matter of

law that a plaintiff can show proximate causation

only if they “link the revelation of truth to a corresponding loss.” Williams, 558 F.3d at 1139 (emphasis

added); see OPERS, 830 F.3d at 388; Vivendi, 838

F.3d at 263; Flowserve, 572 F.3d at 230. Neither of

those standards can be reconciled with the Third and

Ninth Circuits’ holdings that a plaintiff need only

“trac[e] the loss back to ‘the very facts about which

the defendant lied,’’ regardless of what the market

knew. Pet. App. 5a (internal quotation marks omitted); see McCabe v. Ernst & Young, LLP, 494 F.3d

418, 431 (3d Cir. 2007).

Respondents repeatedly protest (at 1-2, 20, 22) that

the Third and Ninth Circuits’ reference to “the very

facts” misrepresented originates in a pre-Dura

Seventh Circuit case. See Caremark, Inc. v. Coram

Healthcare Corp., 113 F.3d 645, 648 (7th Cir. 1997).

But the Seventh Circuit has since distinguished

Caremark, explaining that, in “the ‘fraud-on-themarket scenario’ * * * discussed in Dura” plaintiffs

must show “that the value of the stock declined once

the market learned of the deception.” Ray, 482 F.3d

at 995 (emphasis added). The Ninth Circuit rejected

any such requirement below, holding that

“[d]isclosure of the fraud is not a sine qua non of loss

causation, which may be shown even where the

alleged fraud is not necessarily revealed prior to the

economic loss.” Pet. App. 5a-6a (internal quotation

marks omitted). The split is real.

9

II. RESPONDENTS DO NOT DEFEND THE

NINTH CIRCUIT’S REASONING

The decision below not only deepens the split; it

also breaks sharply with this Court’s precedent,

basic proximate-cause principles, and the structure

of the Private Securities Litigation Reform Act

(PSLRA). Yet respondents do not meaningfully

address these fundamental problems. See Pet. 19-21.

1. Respondents’ principal defense of the Ninth

Circuit’s ruling (at 21-23) is that this case would

come out the same way in every circuit. But that

argument ignores the District Court’s central—and

undisputed—finding that respondents “ha[d] not

presented evidence from which a reasonable jury

could find that Defendants’ alleged fraudulent practices became known to the market during the class

period.” Pet. App. 36a. While that finding did not end

respondents’ case in the Ninth Circuit, it would be

dispositive in the First, Fourth, Seventh, and Eleventh Circuits, each of which requires plaintiffs to

identify disclosures that “reveal[ed] to the market in

some sense the fraudulent nature of the” challenged

conduct. Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d

462, 473 (4th Cir. 2011); see FindWhat, 658 F.3d at

1311 & n.28; Tricontinental, 475 F.3d at 844; CVS

Caremark, 716 F.3d at 239.

Respondents’ argument likewise ignores the undisputed fact that neither the May 3 nor the December

11, 2011 revisions to First Solar’s guidance revealed

the heat degradation problem. Pet. App. 44a, 48a49a; see Opp. 27-28. That did not stop the District

Court from concluding that a jury could find that the

“existence” of that problem contributed to the subsequent declines in share price. Pet. App. 45a. But it

10

would have barred recovery for such losses in the

Second, Fifth, Sixth, and Tenth Circuits, which

require plaintiffs to identify disclosures that reveal

“the truth obscured by the fraudulent statements”

and hold that “loss caused solely by a general impression in the market that ‘something is wrong’ is

insufficient to establish causation.” Flowserve, 572

F.3d at 230, 232; see Vivendi, 838 F.3d at 263;

OPERS, 830 F.3d at 388; Williams, 558 F.3d at 1139.

2. Respondents sidestep the deeper problems with

the Ninth Circuit’s decision. Consistent with basic

proximate-cause principles, this Court’s precedents

teach that a securities-fraud plaintiff must show that

“the revelation of a misrepresentation” caused his

losses. Erica P. John Fund, Inc. v. Halliburton Co.,

563 U.S. 804, 813 (2011); see Anza v. Ideal Steel

Supply Corp., 547 U.S. 451, 458 (2006) (holding that

the “[t]he proper referent of the proximate-cause

analysis” is the conduct that violates the statute).2

Yet the decision below allows a plaintiff to proceed to

trial even if there is no evidence that the market

knew of the defendant’s fraud or even the facts that

it concealed. Respondents have no answer.

Nor do respondents explain how the Ninth Circuit’s

ruling can be squared with the PSLRA, which requires plaintiffs to connect their losses to “the act or

2

This language does not describe the Fifth Circuit’s definition

of reliance, as respondents claim (at 11). Rather, the Court

explained that “[t]he fact that a subsequent loss may have been

caused by factors other than the revelation of a

misrepresentation”—i.e. that the plaintiff cannot establish loss

causation—“has nothing to do with whether an investor relied

on the misrepresentation in the first place.” Erica P. John

Fund, 563 U.S. at 813.

11

omission of the defendant alleged to violate” Section

10(b) and ties the measure of damages to the point at

which “the information correcting the misstatement

or omission that is the basis for the action is disseminated to the market.” 15 U.S.C. § 78u–4(b)(4), (e)(1).

Respondents suggest (at 23) that the only alternative to the Ninth Circuit’s rule would require outright confessions by securities-fraud defendants.

That straw man does not reflect First Solar’s position. Rather, this Court’s guidance and the congressional intent expressed in the PSLRA call for a

standard that requires plaintiffs to tie any drop in

market price to the revelation of a misrepresentation, no matter how it comes to be revealed.

III. THIS CASE IS AN IDEAL VEHICLE TO

ADDRESS AN IMPORTANT QUESTION

Despite leading with the claim (at 25) that factual

disputes would remain regardless of this Court’s

decision, respondents fail to identify a single example. Nor can they. The District Court took “the unusual step of certifying the loss causation issue for

immediate interlocutory appeal,” Pet. App. 36a,

because it recognized that this case presented “a

controlling question of law.” 28 U.S.C. § 1292(b). In

accepting the court’s certification, the Ninth Circuit

evidently agreed. See id. That makes this case an

ideal vehicle for review.

Respondents contend (at 25-26) that the Ninth

Circuit’s decision proves that the District Court was

wrong in holding that First Solar would be entitled

to summary judgment “in full” under the circuit’s

more demanding precedents. Pet. App. 36a. But even

if the District Court misunderstood Ninth Circuit

case law, it found there was no evidence “from which

12

a reasonable jury could find that Defendants’ alleged

fraudulent practices became known to the market

during the class period.” Id. Nothing in the Ninth

Circuit’s decision calls that finding into question.

Nor is there any merit to respondents’ claim (at 28)

that the totality of the disclosures here were all but

an “actual admission of fraud.” Again, the District

Court found there was no evidence—none—that

would permit a finding that the market learned of

the alleged fraud. Pet. App. 36a.

Finally, respondents assert (at 29) that the interlocutory posture of this case counsels against review.

But this Court routinely grants review from decisions in such appeals. See Mach Mining, LLC v.

EEOC, 135 S. Ct. 1645, 1650-51 (2015); Norfolk S.

Ry. Co. v. Kirby, 543 U.S. 14, 22 (2004); Jones v. R.R.

Donnelley & Sons Co., 541 U.S. 369, 374 (2004);

Breuer v. Jim’s Concrete of Brevard, Inc., 538 U.S.

691, 694 (2003). And respondents can identify no

practical or legal reason to force First Solar into

what the District Court described as unnecessary

and “expensive expert discovery and a costly and

complex trial.” Pet. App. 36a. There are no factual

disputes relevant to the question presented and no

additional fact-finding that would aid this Court’s

review. That is, after all, why the District Court

certified these questions on an interlocutory basis for

appeal.

13

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

DANIEL SLIFKIN

MICHAEL T. REYNOLDS

KARIN A. DEMASI

LAUREN M. ROSENBERG

CRAVATH, SWAINE &

MOORE LLP

Worldwide Plaza

825 Eighth Ave.

New York, NY 10019

NEAL KUMAR KATYAL

Counsel of Record

EUGENE A. SOKOLOFF

HOGAN LOVELLS US LLP

555 Thirteenth St., N.W.

Washington, D.C. 20004

(202) 637-5600

neal.katyal@hoganlovells.com

PAUL J. KALETA

FIRST SOLAR, INC.

JOSEPH ROTH

350

West Washington St.

OSBORN MALEDON, P.A.

2929 North Central Ave. Tempe, AZ 85281

Ste.2100

Phoenix, AZ 85012

Counsel for Petitioners

SEPTEMBER 2018