Petition for Writ of Certiorari — Roxana Towry Russell, Petitioner v. Walmart Inc., et al.

Supreme Court briefMar 19, 2026

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IN THE

Supreme Court of the United States

————

ROXANA TOWRY RUSSELL,

Petitioner,

WALMART INC., AND WAL-MART.COM USA, LLC,

Respondents.

————

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

————

PETITION FOR A WRIT OF CERTIORARI

————

GUY RUTTENBERG

BRUCE D. KUYPER

RUTTENBERG IP LAW, APC

1801 Century Park East

Suite 1920

Los Angeles, CA 90067

(310) 627-2270

LUCAS M. WALKER

Counsel of Record

JACKSON A. MYERS

CAROLINE GRUESKIN

MOLOLAMKEN LLP

The Watergate, Suite 500

600 New Hampshire Ave., NW

Washington, D.C. 20037

(202) 556-2000

lwalker@mololamken.com

Counsel for Petitioner

QUESTIONS PRESENTED

Petitioner Roxana Towry Russell is an artist who

designs sculptural lamps. She owns copyrights in both

the lamps and photographs of the lamps. A jury found

Walmart infringed Russell’s copyrights by selling knockoff lamps on its website. Walmart’s product listings used

Russell’s copyrighted photographs and declared the

infringing lamps were “Sold & shipped by Walmart.”

Walmart did not appeal the district court’s denial of its

motion for judgment as a matter of law (JMOL) under

Federal Rule of Civil Procedure 50(b). It appealed only

from the earlier judgment entered on the verdict. The

Ninth Circuit recognized that, as a result, the denial of

the Rule 50(b) motion was not before it on appeal. The

Ninth Circuit nonetheless held it could review the sufficiency of the evidence by reviewing the denial of Walmart’s pre-verdict motion for JMOL under Rule 50(a). It

then held, over a dissent, that there was insufficient

evidence to hold Walmart liable for infringing Russell’s

copyrights in the photographs used in Walmart’s product

listings, even on a secondary-liability theory, because the

photographs allegedly were uploaded by a contractor.

The questions presented are:

1. Whether a court of appeals may assess the sufficiency of the evidence supporting a jury verdict by reviewing the denial of a Rule 50(a) motion.

2. Whether the Court should hold this petition pending Cox Communications Inc. v. Sony Music Entertainment, No. 24-171—which concerns the proper standard

for secondary liability for copyright infringement—and

then dispose of this petition as appropriate following its

decision in Cox.

(i)

PARTIES TO THE PROCEEDINGS BELOW

Petitioner Roxana Towry Russell was the plaintiff in

the district court and the appellee in the court of appeals.

Respondents Walmart Inc. (stock ticker: WMT) and

Wal-Mart.com USA, LLC were the defendants in the

district court and the appellants in the court of appeals.

iii

STATEMENT OF RELATED PROCEEDINGS

The following proceedings are directly related to this

case within the meaning of Rule 14.1(b)(iii):

•

Roxana Towry Russell v. Walmart Inc. et al.,

Nos. 23-55542 & 24-592 (9th Cir.) (judgment

entered June 18, 2025);

•

Roxana Towry Russell v. Walmart Inc. et al.,

No. 2:19-cv-5495 (C.D. Cal.) (judgment entered

May 16, 2023).

TABLE OF CONTENTS

Page

Opinions Below.............................................................

Jurisdiction ...................................................................

Statutes and Rules Involved ......................................

Introduction ..................................................................

Statement ......................................................................

Legal Background ...........................................

A. Review of Jury Verdicts for

Sufficiency of the Evidence and

Judgment As a Matter of Law ................

1. Federal Rule of Civil

Procedure 50 .........................................

2. Federal Rule of Appellate

Procedure 4 ...........................................

B. Direct and Secondary CopyrightInfringement Liability ..............................

II. Factual Background ........................................

A. Russell’s Copyrighted Sculptural

Lamps and Photographs ..........................

B. Walmart’s Infringement...........................

III. Procedural History..........................................

A. District Court Trial and Judgment.........

B. Post-Judgment Proceedings ....................

C. Court of Appeals Proceedings .................

1. Walmart Challenges the

Sufficiency of the Evidence on

Appeal Despite Concededly Not

Appealing the Denial of Its Rule

50(b) Motion ..........................................

(iv)

TABLE OF CONTENTS—Continued

Page

2. The Ninth Circuit Holds It May

Review the Sufficiency of the

Evidence by Reviewing the

Denial of Walmart’s Rule 50(a)

Motion—Then Grants Walmart

JMOL as to Russell’s

Copyrighted Photographs ................... 16

3. The Ninth Circuit Denies

Rehearing and Refuses To

Publish Its Decision ............................. 18

Reasons for Granting the Petition ............................ 18

The Ninth Circuit’s Departure from the

Requirements of Rule 50 Warrants

Review............................................................... 20

A. The Decision Below Conflicts with

Decisions from Every Other Circuit ...... 20

B. The Decision Below Is Wrong ................. 25

C. The Issue Is Important and

Warrants Review ....................................... 29

D. Summary Reversal Is Appropriate ........ 32

II. Alternatively, the Court Should Hold

This Petition for Cox, Then GVR .................. 33

Conclusion ..................................................................... 35

Appendix A – Court of Appeals Opinion

(June 18, 2025)........................................................ 1a

Appendix B – Court of Appeals Order

Denying Appellee’s Motion To Dismiss

the Appeal and Strike Portions of

Opening Brief (Aug. 28, 2024) .............................. 11a

TABLE OF CONTENTS—Continued

Page

Appendix C – District Court Ruling on

Defendants’ Rule 50(a) Motion

(Feb. 9, 2023) ..........................................................

Appendix D – Judgement After Trial

(May 16, 2023) ........................................................

Appendix E – District Court Order Denying

Defendants’ Motion for Judgment

Pursuant to Rule 50(b) (Aug. 17, 2023) ...............

Appendix F – District Court Order Granting

Plaintiff ’s Motion for Attorneys’ Fees

(Jan. 2, 2024) ...........................................................

Appendix G – Court of Appeals Clerk Order

Regarding Pending Post-Judgment

Motion (July 11, 2023) ...........................................

Appendix H – Court of Appeals Order

Denying Petition for Rehearing, Petition

for Rehearing En Banc, and Request for

Publication (Oct. 23, 2025) ....................................

Appendix I – Relevant Statutes and Rules ..............

13a

21a

29a

46a

65a

67a

69a

vii

TABLE OF AUTHORITIES

Page(s)

CASES

A Helping Hand, LLC v. Baltimore County,

515 F.3d 356 (4th Cir. 2008) .............................. 21

Ayers v. City of Cleveland,

773 F.3d 161 (6th Cir. 2014) .............................. 21

Baltimore & Carolina Line, Inc. v. Redman,

295 U.S. 654 (1935) ............................................. 27

BLOM Bank SAL v. Honickman,

605 U.S. 204 (2025) ............................................. 30

Charles Jacquin Et Cie, Inc. v.

Destileria Serralles, Inc.,

921 F.2d 467 (3d Cir. 1990) ............................... 21

Climent-Garcia v. Autoridad de Transporte

Maritimo y Las Islas Municipio,

754 F.3d 17 (1st Cir. 2014) ................................ 21

Coney Island Auto Parts Unlimited, Inc. v.

Burton, 608 U.S. 155 (2026) .............................. 30

Cox Communications Inc. v.

Sony Music Entertainment:

No. 24-171 (U.S.) ......................... 4, 7, 19-20, 33-35

145 S. Ct. 2841 (2025).........................................

Delaware & Hudson Ry. Co. v.

Knoedler Mfrs., Inc.,

805 F. App’x 149 (3d Cir. 2020) ........................ 21

Dupree v. Younger,

598 U.S. 729 (2023) ..................................... 6, 28, 30

Fed. Ins. Co. v. HPSC, Inc.,

480 F.3d 26 (1st Cir. 2007) ................................ 23

viii

TABLE OF AUTHORITIES—Continued

Page(s)

FirsTier Mortgage Co. v. Investors Mortgage

Ins. Co., 498 U.S. 269 (1991) ............................. 30

Fredrick v. District of Columbia,

254 F.3d 156 (D.C. Cir. 2001) ........................... 23

Hairston v. Wormuth,

107 F.4th 867 (8th Cir. 2024) ............................ 22

Hertz v. Woodbury County,

566 F.3d 775 (8th Cir. 2009) .............................. 23

Jackson v. Allstate Ins. Co.,

785 F.3d 1193 (8th Cir. 2015) ............................ 21

Jacques v. DiMarzio, Inc.,

386 F.3d 192 (2d Cir. 2004) ............................ 23, 29

Johnson v. Guerrieri Mgmt., Inc.,

437 F. App’x 853 (11th Cir. 2011) ..................... 23

Kelley v. City of Albuquerque,

542 F.3d 802 (10th Cir. 2008) ............................ 21

Lawrence v. Chater,

516 U.S. 163 (1996) ............................................. 34

Manrique v. United States,

581 U.S. 116 (2017) .......................................... 28, 30

Maxwell v. Dodd,

662 F.3d 418 (6th Cir. 2011) .............................. 27

McLendon v. Big Lots Stores, Inc.,

749 F.3d 373 (5th Cir. 2014) ........................... 21, 23

Merard v. Magic Burgers, LLC,

No. 21-12037, 2022 WL 3023213

(11th Cir. Aug. 1, 2022) ...................................... 25

Metro-Goldwyn-Mayer Studios Inc. v.

Grokster, Ltd., 545 U.S. 913 (2005) ..................

TABLE OF AUTHORITIES—Continued

Page(s)

Nitco Holding Corp. v. Boujikian,

491 F.3d 1086 (9th Cir. 2007) ............................ 24

Nordock, Inc. v. System Inc.,

803 F.3d 1344 (Fed. Cir. 2015) ......................... 22

Ortiz v. City of New York,

706 F. App’x 54 (2d Cir. 2017) .......................... 23

Ortiz v. Jordan,

562 U.S. 180 (2011) ........................................... 6, 30

Perfect 10, Inc. v. Giganews, Inc.,

847 F.3d 657 (9th Cir. 2017) .................... 14, 17, 33

Reighard v. Longo,

669 F. App’x 356 (9th Cir. 2016) ....... 24, 25, 31, 32

Rexing Quality Eggs v. Rembrandt

Enters., Inc., 996 F.3d 354

(7th Cir. 2021) ..................................................... 21

St. Louis Condo. Ass’n, Inc. v. Rockhill Ins.

Co., 5 F.4th 1235 (11th Cir. 2021).................. 22, 25

Unitherm Food Systems, Inc. v.

Swift-Eckrich, Inc.,

546 U.S. 394 (2006) ........... 3-6, 15, 16, 18-22, 24-34

VHT, Inc. v. Zillow Grp., Inc.,

918 F.3d 723 (9th Cir. 2019) ........................... 17, 33

Waetzig v. Halliburton Energy Servs., Inc.,

604 U.S. 305 (2025) ............................................. 30

Washington v. Gilmore, No. 22-2309, 2023

WL 4363113 (3d Cir. July 6, 2023) ................... 22

Youngblood v. West Virginia,

547 U.S. 867 (2006) ............................................. 34

STATUTES AND RULES

17 U.S.C. § 106 .........................................................

TABLE OF AUTHORITIES—Continued

Page(s)

17 U.S.C. § 501 ......................................................... 2, 7

17 U.S.C. § 501(b) .................................................... 12

17 U.S.C. § 504 .........................................................

28 U.S.C. § 1254(1) ..................................................

28 U.S.C. § 1338 ....................................................... 12

Fed. R. App. P. 4 ........................................... 2, 4, 6, 30

Fed. R. App. P. 4(a)(4)(B)(i) ..................................

Fed. R. App. P. 4(a)(4)(B)(ii) ............................... 6, 13

Fed. R. App. P. 4(b) ................................................ 30

Fed. R. Civ. P. 50 ...................... 2, 4, 20, 29, 30, 32, 34

Fed. R. Civ. P. 50(a).................... 2, 3, 5, 6, 12, 15, 16,

18-21, 23-27, 30-32

Fed. R. Civ. P. 50(a)(1)(A) .....................................

Fed. R. Civ. P. 50(b) ......... 2, 3, 5, 6, 13-16, 18-32, 34

Fed. R. Civ. P. 50(b) advisory

committee’s note (1991) .....................................

OTHER MATERIALS

6 Patry on Copyright § 21:40 .................................

Cox Communications Inc. v. Sony Music

Entertainment, No. 24-171 (U.S.):

Petition for Writ of Certiorari

(Aug. 15, 2024) ............................................ 7, 33

Brief for United States as Amicus

Curiae (Mar. 27, 2025) ..................................

Brief for Petitioners (Aug. 29, 2025) ............ 33, 34

Brief for United States as Amicus

Curiae (Sept. 5, 2025) ................................... 33

Brief for Respondents (Oct. 15, 2025) ............. 33

TABLE OF AUTHORITIES—Continued

Page(s)

Hairston v. Dep’t of the Army, No. 5:18cv-96, Dkt. 82 (E.D. Ark. June 6, 2022)...........

IN THE

Supreme Court of the United States

————

ROXANA TOWRY RUSSELL,

Petitioner,

WALMART INC., AND WAL-MART.COM USA, LLC,

Respondents.

————

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

————

PETITION FOR A WRIT OF CERTIORARI

————

Roxana Towry Russell respectfully petitions for a writ

of certiorari to review the judgment of the United States

Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The court of appeals’ opinion (App., infra, 1a-10a) is

unreported, but available at 2025 WL 1703638. The court

of appeals’ order denying Russell’s motion to dismiss

Walmart’s appeal (App., infra, 11a-12a) is unreported.

The court of appeals’ order denying Russell’s rehearing

petition and request for publication (App., infra, 65a-66a)

is unreported. The district court’s order denying Walmart’s motion for judgment as a matter of law (App., infra,

13a-20a) is unreported. The district court’s opinion denying Walmart’s renewed motion for judgment as a matter

of law (App., infra, 29a-45a) is unreported, but available at

2023 WL 5506705. The district court’s opinion granting

Russell’s attorney’s fees motion (App., infra, 46a-64a) is

unreported, but available at 2024 WL 305388.

JURISDICTION

The Ninth Circuit entered judgment on June 18, 2025,

App., infra, 2a, and denied rehearing on October 23, 2025,

id. at 68a. On January 15, 2026, Justice Kagan extended

the time to file this petition to March 22, 2026. No. 25A820.

This Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTES AND RULES INVOLVED

Relevant portions of Federal Rule of Civil Procedure

50, Federal Rule of Appellate Procedure 4, and 17 U.S.C.

§ 501 are set forth in the appendix. App., infra, 69a-76a.

INTRODUCTION

Where a party seeks to challenge the sufficiency of the

evidence supporting a jury verdict, Federal Rule of Civil

Procedure 50 requires two motions: a pre-verdict motion

for judgment as a matter of law (JMOL) under Rule 50(a),

and a renewed, post-verdict motion for JMOL under Rule

50(b). The question here is whether a party may challenge

the sufficiency of the evidence on appeal by appealing only

the denial of a pre-verdict Rule 50(a) motion, or instead

must appeal the denial of a Rule 50(b) motion.

The Ninth Circuit below held that only an appeal from

the denial of a Rule 50(a) motion is necessary. After a jury

found Walmart liable for infringing Roxana Russell’s

copyrights, Walmart failed to appeal the denial of its postverdict Rule 50(b) motion. The Ninth Circuit agreed the

Rule 50(b) ruling was not before it. The Ninth Circuit

nonetheless held it could examine the sufficiency of the

evidence by reviewing the denial of Walmart’s pre-verdict

motion under Rule 50(a). Conducting de novo review, the

Ninth Circuit found the evidence insufficient, reversed the

district court’s Rule 50(a) ruling in part, and ordered partial JMOL for Walmart.

That decision conflicts with decisions from every other

circuit. Ten circuits have held they cannot review the

sufficiency of the evidence absent an appeal from the denial of a Rule 50(b) motion, even if the appellant purports to

challenge the denial of a Rule 50(a) motion. Two circuits

follow the same general rule, while suggesting narrow

plain-error review may be available to prevent manifest

injustice. The Ninth Circuit here followed neither approach: It not only reviewed the denial of Walmart’s Rule

50(a) motion, but did so de novo and (over a pointed dissent) ordered judgment for Walmart. Had this case arisen

in any other circuit, it would have come out differently.

That conflict warrants this Court’s review. Rules of

procedure—particularly those concerning when jury verdicts may be disturbed—should not vary by geography.

The decision below short-circuits the careful, precise

process the Rules establish for sufficiency-of-the-evidence

challenges. That decision threatens to distort review of

jury verdicts in our Nation’s largest circuit.

It also defies this Court’s precedent. In Unitherm

Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394

(2006), this Court held that the only permissible “basis for

review of [a] sufficiency of the evidence challenge in the

Court of Appeals” is a district court’s order denying a

motion under “Rule 50(b).” Id. at 407 (emphasis added).

Denial of a Rule 50(a) motion is “not error,” Unitherm

explained, because district courts always have discretion

to let jurors assess the evidence first. Id. at 406. Accordingly, Unitherm held, a litigant “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. at 405

(emphasis added). The decision below held the opposite—

without mentioning Unitherm. The Ninth Circuit’s error

is so stark as to render summary reversal appropriate.

At minimum, the Court should hold this petition pending its decision in Cox Communications Inc. v. Sony Music Entertainment, No. 24-171, then GVR. Cox concerns

when online platforms may be held secondarily liable for

insufficient evidence to hold Walmart secondarily liable

for copyright infringement in its online product listings. A

GVR would allow the Ninth Circuit to reconsider Walmart’s sufficiency challenge in light of Cox. In any GVR,

the Court should also direct the Ninth Circuit to consider

whether Unitherm permits it to entertain that challenge

in the first place.

STATEMENT

I. LEGAL BACKGROUND

This case concerns review of a jury verdict of copyright

infringement for sufficiency of the evidence. Review of

evidentiary sufficiency is governed by Federal Rule of

Civil Procedure 50 and Federal Rule of Appellate Procedure 4. Liability for copyright infringement is governed

by the Copyright Act.

A. Review of Jury Verdicts for Sufficiency of the

Evidence and Judgment As a Matter of Law

1. Federal Rule of Civil Procedure 50

“Federal Rule of Civil Procedure 50 sets forth the

procedural requirements for challenging the sufficiency of

the evidence in a civil jury trial and establishes two stages

for such challenges—prior to submission of the case to the

jury, and after the verdict and entry of judgment.”

Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546

U.S. 394, 399 (2006).

Before the case is submitted to the jury, a party may

move for judgment as a matter of law (JMOL) under Rule

50(a). If the district court finds no reasonable jury would

“have a legally sufficient evidentiary basis to find for the

[nonmoving] party on the [relevant] issue,” the district

court “may * * * resolve the issue against the [nonmoving]

party.” Fed. R. Civ. P. 50(a)(1)(A). Granting a Rule 50(a)

motion is discretionary: “[W]hile a district court is

permitted to enter judgment as a matter of law when it

concludes that the evidence is legally insufficient, it is not

required to do so.” Unitherm, 546 U.S. at 405 (emphasis

added). “To the contrary, the district courts are, if anything, encouraged to submit the case to the jury, rather

than granting [Rule 50(a)] motions.” Ibid.

After the jury returns its verdict, the losing party “may

file a renewed motion” for JMOL under Rule 50(b). Fed.

R. Civ. P. 50(b). As a renewal of the earlier motion, a Rule

50(b) motion is limited to arguments made in the party’s

Rule 50(a) motion. Fed. R. Civ. P. 50(b) advisory committee’s note (1991). If the district court finds the evidence

insufficient to sustain the verdict, it may “order a new

trial” or “direct the entry of [JMOL]” for the moving

party. Fed. R. Civ. P. 50(b).

This Court has repeatedly held there is only one way to

obtain appellate review of the sufficiency of the evidence—

by appealing the denial of a post-verdict motion under

Rule 50(b). In Unitherm, for example, the Court held a

litigant “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.” 546 U.S. at 405 (emphasis added).

The “denial of [the] preverdict [Rule 50(a)] motion cannot

form the basis of [the litigant’s] appeal,” the Court explained, “because the denial of that motion [i]s not error.”

Id. at 406. Denying a Rule 50(a) motion is “merely an

exercise of the District Court’s discretion, in accordance

with the text of the Rule and the accepted practice of

permitting the jury to make an initial judgment about the

sufficiency of the evidence.” Ibid.

A Rule 50(b) motion, moreover, calls for “ ‘the judgment

in the first instance of the judge who saw and heard the

witnesses and has the feel of the case which no appellate

printed transcript can impart.’ ” Unitherm, 546 U.S. at

401. Limiting appellate review to the denial of a Rule 50(b)

motion ensures the appellate court has “the benefit of

postverdict input from the district court.” Id. at 401 n.3;

see id. at 401-402. The Court has reiterated those principles time and again. See Dupree v. Younger, 598 U.S. 729,

734 (2023); Ortiz v. Jordan, 562 U.S. 180, 189 (2011).

2. Federal Rule of Appellate Procedure 4

Because Rule 50(b) motions are filed “after the entry of

judgment” on a jury’s verdict, Fed. R. Civ. P. 50(b), parties

sometimes file notices of appeal before those motions are

resolved. Federal Rule of Appellate Procedure 4 specifies

procedures for appealing orders on Rule 50(b) motions in

that situation.

If a party files a notice of appeal after judgment, but

before a Rule 50(b) or other post-judgment motion is

resolved, “the notice becomes effective to appeal [the]

judgment” once all post-judgment motions are decided.

Fed. R. App. P. 4(a)(4)(B)(i). That initial notice does not

cover orders entered after it was filed, such as a later

order denying a Rule 50(b) motion. A “party intending to

challenge an order disposing of any [Rule 50(b) or other

post-judgment] motion” instead “must file a notice of

appeal, or an amended notice of appeal,” after that order

is entered. Fed. R. App. P. 4(a)(4)(B)(ii).

B. Direct and Secondary Copyright-Infringement

Liability

The Copyright Act gives a copyright owner “exclusive

rights” to “reproduce,” “distribute,” and “prepare derivative works based upon the copyrighted work.” 17 U.S.C.

§ 106. “Anyone who violates any of the exclusive rights” is

liable for infringement, § 501, entitling the copyright owner to actual or statutory damages, § 504. Liability may be

direct or indirect. Defendants are directly liable when

their purposeful actions cause the infringement. 6 Patry

on Copyright § 21:40. Defendants may be subject to indirect or “secondary liability on a theory of contributory or

vicarious infringement.” Metro-Goldwyn-Mayer Studios

Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005).

Lower courts have wrestled with how secondary copyright liability applies to internet services, producing a

“split of authority” over “the appropriate standard for imposing contributory liability in this setting.” Gov’t CVSG

Br. 15-16 in No. 24-171. This Court granted certiorari in

Cox Communications Inc. v. Sony Music Entertainment,

No. 24-171, to resolve that conflict. See Pet. i, 16-23 in No.

24-171, cert. granted, 145 S. Ct. 2841 (2025). Argued last

December, Cox is awaiting decision.

II. FACTUAL BACKGROUND

A. Russell’s Copyrighted Sculptural Lamps and

Photographs

Roxana Russell is “a mother, a homemaker, an artist,

and entrepreneur.” 3-ER-137.1 She runs a small business

designing and selling high-quality artistic lamps. Russell

is best known for a series of sculptural pendent lamps that

“_-ER-__” and “_-SER-__” citations refer to the Excerpts of Record

(C.A. Dkt. 20) and Supplemental Excerpts of Record (C.A. Dkt. 32)

filed in No. 23-55542 (9th Cir).

evoke jellyfish, seeking to capture their “ethereal, otherworldly, underwater, floating” qualities. 3-ER-142.

7-ER-889; see 7-ER-882-895.

After receiving “overwhelmingly positive” feedback on

her lamps, Russell took professional-quality photographs

of her lamps for an online portfolio. 3-ER-147-148. She

registered copyrights for both her lamps and her photographs. 7-ER-875-897.

After posting her portfolio online, Russell was “inundated” with requests to purchase her lamps and publish

her photographs. 3-ER-152. Russell’s photographs have

appeared in high-end magazines like Architectural Digest

Italia, Italian Glamour, and Wired Magazine, U.K. 3-ER152-154. The lamps have been featured in popular television shows like Pretty Little Liars and Extreme Makeover

Home Edition, and displayed in aquariums, stores, and

elite hotels. 3-ER-155-160. The lamps retail for between

$375 and $475 each. 3-ER-161-163.

B. Walmart’s Infringement

Long the world’s largest retailer, Walmart has faced increasing pressure from internet retailers like Amazon. To

compete, Walmart sought to aggressively expand its

online offerings. 4-ER-312. It built an online storefront,

Walmart.com, offering millions of products it touts as

“[s]old and shipped by Walmart.” 4-ER-262.

1. In 2019, Russell’s husband received an online popup ad for what seemed to be one of his wife’s lamps—sold

on Walmart.com. 3-ER-164-165. The Russells investigated and found listings on Walmart’s website for

knockoff “Ethereal Jellyfish” pendent lamps. Ibid.; 7-ER907, 911, 915. The listings used Russell’s own copyrighted

photographs of her lamps. App., infra, 4a-5a, 40a-41a; 3ER-165-167.

7-ER-915.

Walmart sold knockoffs of three of Russell’s copyrighted lamps—“Medusa,” “Polyp,” and “Ophelia”—through

listings that used two of Russell’s copyrighted photographs. App., infra, 33a, 36a-37a; 3-ER-165-168; 2-SER355 (comparison). The listings represented that the

knockoffs were “[s]old & shipped by Walmart.” App.,

infra, 4a; 7-ER-906-922.

2. According to Walmart, the lamps were supplied by

Sunsea Grocery, one of Walmart’s “drop-ship vendors”

(DSVs). App., infra, 3a-4a, 32a. DSVs are suppliers that

Walmart selects and contracts with to source items sold on

Walmart.com. Id. at 41a; 4-ER-254-256, 276-277, 279.

While DSVs can create product listings, Walmart supervises and controls those listings. App., infra, 41a.

Walmart “requires [DSVs] to post photographs on their

listings.” 4-ER-272-273. Walmart employees (“category

specialists”) then can “work with suppliers to improve pictures,” “override” the “content uploaded by the suppliers,” and exercise “ ‘final say when it comes to the content

that appears on [Walmart’s] site.’ ” 4-ER-280-282; see 7ER-898-904.

Walmart considers sales of DSV-listed items to be

“first-party” or “1P” sales. App., infra, 40a; 4-ER-245246, 368. Customers buying those items pay Walmart

directly, and Walmart takes title before the items are

shipped to customers. App., infra, 4a, 42a-43a; 4-ER-265270. Product listings do not mention the DSV supplier;

they describe the merchandise as “sold and shipped by

Walmart.” App., infra, 4a, 41a; 3-ER-368; 4-ER-257, 275.2

There are also “Marketplace Sellers” who sell on Walmart.com.

Unlike DSVs, Marketplace Sellers are “third parties, operating

independently from Walmart,” who “sell in their own name”; their

Walmart asserted that Sunsea uploaded Russell’s copyrighted photographs to Walmart’s servers for use in the

knockoff lamps’ Walmart.com listings. D. Ct. Dkt. 386 at

9-10. But Walmart’s trial witnesses conceded they did not

actually know whether Walmart or Sunsea uploaded them.

E.g., 5-ER-473-475; see D. Ct. Dkt. 416 at 13-14. The

listings nowhere mentioned Sunsea; they represented the

lamps were “Sold & shipped by Walmart.” 7-ER-907, 915;

App., infra, 4a.

III. PROCEDURAL HISTORY

A. District Court Trial and Judgment

Russell sued Walmart for infringing her copyrights in

her lamps and photographs. See 17 U.S.C. § 501(b); 28

U.S.C. § 1338 (jurisdiction). Russell argued that Walmart

was liable for copyright infringement either directly

(because Walmart sold the knockoff lamps and used her

photographs in the Walmart.com listings) or secondarily

(because Walmart at least materially contributed to the

infringement or Sunsea acted as Walmart’s agent). 6-ER795-801. Walmart blamed Sunsea for the infringing products and listings. 6-ER-817-821. It also raised an affirmative defense under the Digital Millennium Copyright Act

(DMCA). 3-ER-123-125.

At the close of Russell’s evidence at trial, Walmart

moved for JMOL under Rule 50(a) on its DMCA defense

and (without elaboration) “causation.” App., infra, 14a.

The district court denied Walmart’s motion in relevant

part. Id. at 19a.

The jury found Walmart liable for copyright infringement with respect to both the lamps and the photographs.

App., infra, 23a. It awarded Russell $75,000 in statutory

products are not listed as “sold and shipped by Walmart.” App., infra,

4a, 40a; 4-ER-252-253, 259. Marketplace Sellers are not at issue here.

damages. Id. at 24a-25a, 27a.3 The district court entered

judgment on the verdict on May 16, 2023. Id. at 21a-28a.

B. Post-Judgment Proceedings

1. On June 13, 2023, Walmart filed a renewed motion

for JMOL under Rule 50(b). D. Ct. Dkt. 386. Walmart

argued that the jury lacked sufficient evidence to find it

directly liable for infringement. Id. at 7-11. Walmart also

sought JMOL on its DMCA defense. Id. at 11-17. The

motion did not challenge Russell’s prima facie case of

secondary liability. App., infra, 44a.

Before its Rule 50(b) motion was decided, Walmart filed

a notice of appeal from the district court’s May 16 judgment. D. Ct. Dkt. 389. After docketing the appeal, the

Ninth Circuit clerk advised that appellate proceedings

would be stayed until Walmart’s Rule 50(b) motion was

decided and that, if Walmart wished to “challenge the district court’s ruling on the motion,” it “must file an amended notice of appeal” as Appellate Rule 4(a)(4)(B)(ii)

requires. App., infra, 65a-66a.

The district court denied Walmart’s Rule 50(b) motion

on August 17, 2023. App., infra, 29a-45a. The court held

the evidence supported a finding that Walmart directly

infringed Russell’s copyrights on both the lamps and the

photographs. Id. at 40a-44a. At the very least, the court

ruled, the evidence showed Walmart was sufficiently

involved in the infringement to establish “secondary

liability.” Id. at 43a-44a. “Walmart’s challenges to the

secondary liability theories [we]re without merit.” Id. at

44a. And, more fundamentally, Walmart “never advanced

any basis for directing a verdict as to the secondary copyright infringement theories” until its Rule 50(b) “Reply.”

Walmart was found not liable on non-copyright claims not at issue

here. App., infra, 25a.

Ibid. “[A]ny challenges to those theories,” the court ruled,

were thus “waived.” Ibid.

Walmart did not file a new or amended notice of appeal

from the district court’s denial of its Rule 50(b) motion.

App., infra, 3a n.1.

2. On January 2, 2024, the district court granted Russell’s motion for attorney’s fees and costs. App., infra,

46a-64a. While reducing the award to reflect Russell’s limited success (on non-copyright claims), the court found

Walmart had forced Russell to accrue “unnecessary attorneys’ fees” by, among other things, “unreasonably” asserting a slew of “defenses that it knew were meritless” even

after the court had rejected them at summary judgment.

Id. at 52a-53a, 63a.

On January 4, 2024, Walmart appealed the attorney’s

fees order. D. Ct. Dkt. 434. That notice of appeal did not

mention the order denying Walmart’s Rule 50(b) motion,

entered over four months earlier. The Ninth Circuit consolidated Walmart’s two appeals and ultimately decided

them in a single judgment. C.A. Dkts. 17, 45.4

C. Court of Appeals Proceedings

1. Walmart Challenges the Sufficiency of the

Evidence on Appeal Despite Concededly Not

Appealing the Denial of Its Rule 50(b) Motion

In its opening appeal brief, Walmart argued it was

“entitled to judgment as a matter of law on the copyright

infringement claim.” C.A. Dkt. 19 at 15 (capitalization

omitted); see ibid. (seeking “ ‘de novo [review of ] the denial of a motion for judgment as a matter of law’ ”). Walmart

attacked the sufficiency of the evidence as to both direct

and secondary liability. Id. at 16-24, 28 (citing Perfect 10,

“C.A. Dkt.” citations refer to No. 23-55542 (9th Cir.).

Inc. v. Giganews, Inc., 847 F.3d 657, 671 (9th Cir. 2017)).

Although the district court’s Rule 50(b) order had ruled

that Walmart waived any challenge to secondary liability

by not raising the issue until its Rule 50(b) reply, App.,

infra, 44a, Walmart’s brief did not mention that ruling.

Russell urged the Ninth Circuit to dismiss or strike

Walmart’s sufficiency challenge.5 Because “Walmart

never filed an amended (or new) notice of appeal” after the

district court denied its Rule 50(b) motion, she explained,

Walmart had not presented “the denial of Walmart’s Rule

50(b) motion” for appellate review. C.A. Dkt. 31 at 23-24;

see C.A. Dkt. 25 at 12-18. Under this Court’s Unitherm

decision, she urged, a litigant “ ‘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.’ ” C.A.

Dkt. 31 at 25 (quoting Unitherm, 546 U.S. at 405) (emphasis added); see C.A. Dkt. 25 at 15-16. Accordingly, Russell

explained, the court of appeals lacked authority “to review

the sufficiency of the evidence.” C.A. Dkt. 31 at 26; see

C.A. Dkt. 25 at 14, 17.

In response, Walmart insisted it was “not seeking to

appeal the order denying the Rule 50(b) motion.” C.A.

Dkt. 26 at 6; see C.A. Dkt. 37 at 14-18. Walmart conceded

it did not “file a new or amended notice of appeal after the

district court denied its renewed motion for judgment as a

matter of law.” C.A. Dkt. 26 at 1; C.A. Dkt. 37 at 14. But

Walmart argued it could challenge the sufficiency of the

Russell moved to dismiss Walmart’s merits appeal and strike corresponding portions of its opening brief. C.A. Dkt. 25. A motions panel

denied the motion without prejudice, App., infra, 12a; Russell then

renewed the arguments in her response brief, while also addressing

the merits, C.A. Dkt. 31.

evidence because it had appealed “the judgment” entered

on the jury’s verdict. C.A. Dkt. 26 at 4; C.A. Dkt. 37 at 16.

2. The Ninth Circuit Holds It May Review the

Sufficiency of the Evidence by Reviewing the

Denial of Walmart’s Rule 50(a) Motion—Then

Grants Walmart JMOL as to Russell’s Copyrighted Photographs

The Ninth Circuit held it could review the sufficiency of

the evidence, and on that basis ordered JMOL for

Walmart as to the copyrighted photographs.

a. The Ninth Circuit conceded the denial of Walmart’s

Rule 50(b) motion was not before it. It acknowledged Walmart “fail[ed] to appeal the district court’s order denying

the 50(b) motion.” App., infra, 3a n.1. And it agreed

“Walmart does not challenge the 50(b) order.” Ibid. The

Ninth Circuit nonetheless held it could review the sufficiency of the evidence by reviewing “the district court’s

denial” of “Walmart[’s] mo[tion] for judgment as a matter

of law at trial” under “Fed. R. Civ. P. 50(a).” Id. at 3a, 6a

n.2 (emphasis added). The panel did not cite Unitherm,

despite Russell’s invocation of that precedent, see C.A.

Dkt. 31 at 25; C.A. Dkt. 25 at 15-16.

b. Reviewing the sufficiency of the evidence “de

novo,” App., infra, 3a, the Ninth Circuit reversed in part.

The court affirmed Walmart’s liability as to Russell’s

copyrighted lamps, observing (among other things) that

the “product listings” “did not contain Sunsea’s name,” but

instead “stated that the lamps were ‘[s]old & shipped by

Walmart.’ ” App., infra, 4a. The court recognized that

Walmart disputed its “involvement,” but held “the jury

was not required to believe Walmart over Russell.” Ibid.

Over a dissent, the court found insufficient evidence to

support Walmart’s liability as to the copyrighted photo-

graphs that appeared in the product listings Walmart used

to sell the infringing lamps. App., infra, 4a-6a. Applying

its precedents on copyright-infringement liability for

internet platforms, the panel likened Walmart to the

operator of an “online platform” to which a third party

“uploaded the infringing content.” App., infra, 4a-6a (citing VHT, Inc. v. Zillow Grp., Inc., 918 F.3d 723 (9th Cir.

2019); Giganews, 847 F.3d 657). Most relevant here, the

panel held Russell “did not present adequate evidence for

the jury to find Walmart secondarily liable for Sunsea’s

infringement of the photographs.” App., infra, 6a. It

declared there was insufficient evidence “Walmart materially contributed to or induced Sunsea’s infringement,

which is necessary to prove contributory liability,” or that

“Walmart had a direct financial interest in the infringing

activity, which is necessary to prove vicarious liability.”

Ibid. (citing Zillow, 918 F.3d at 745-746). The panel thus

reversed in part, ordering JMOL for Walmart as to

Russell’s copyrighted photographs. Ibid.

c. Judge Desai dissented as to the photographs. The

infringing photographs, she observed, appeared on product listings that gave “no indication that Sunsea had any

involvement” but instead “stated that the lamps were

‘[s]old & shipped by Walmart.’ ” App., infra, 7a-8a. She

concluded jurors could reasonably find that “Walmart

posted the listings” or, at minimum, “exercised control

over the listings”—not least because “Russell introduced

evidence that Walmart employees can edit the content of

listings posted by third-party vendors and have done so in

the past, retaining ‘final’ say over the content.” Ibid.

Judge Desai criticized the majority for “usurp[ing] the

jury’s judgments” and “relying on Walmart’s evidence,

rather than discarding it.” Id. at 9a. “[V]iewing the evidence in Russell’s favor,” Judge Desai found “sufficient

evidence for the jury to find Walmart liable for copyright

infringement on all counts.” Id. at 8a-9a.6

3. The Ninth Circuit Denies Rehearing and

Refuses To Publish Its Decision

Russell sought panel and en banc rehearing, again

arguing that Unitherm barred the court of appeals from

assessing the sufficiency of the evidence by reviewing the

denial of a Rule 50(a) motion. C.A. Dkt. 52 at 1-2, 12-14.

Russell also requested publication of the panel’s decision.

C.A. Dkt. 51. She urged that, if the Ninth Circuit was

going to adopt a “new rule” “diverging” from this Court’s

precedent, it should at least declare its decision precedential. Id. at 1, 3. And she explained that the panel’s conclusion that “online retailers like Walmart are not liable (either directly or indirectly) for images that are part of their

own listings on their own online marketplace” has “broad

implications for copyright enforcement in the digital era.”

Id. at 2.

The Ninth Circuit denied rehearing and declined to

publish its decision. App., infra, 68a.

REASONS FOR GRANTING THE PETITION

Everyone—the Ninth Circuit, Walmart, and Russell—

agrees that the order denying Walmart’s Rule 50(b) motion was not before the court of appeals. The Ninth Circuit

nonetheless held it could assess the sufficiency of the evidence by reviewing the denial of Walmart’s pre-verdict

Rule 50(a) motion. It then overturned the verdict on

de novo review, ordering JMOL for Walmart as to the

infringing photographs in Walmart’s product listings.

The panel identified no independent error in the fee award, but

vacated in light of “Russell’s [now-]partial success on her copyright

claims.” App., infra, 6a; see id. at 9a-10a n.2 (Desai, J., dissenting).

The fee ruling thus rests on the sufficiency-of-the-evidence ruling.

That decision conflicts with decisions from every other

circuit—as well as from this Court. Circuit after circuit

holds that, when the denial of a Rule 50(b) motion is not

presented on appeal, the court of appeals cannot review

the sufficiency of the evidence supporting a jury verdict.

Correctly so. In Unitherm Food Systems, Inc. v. SwiftEckrich, Inc., 546 U.S. 394 (2006), this Court held that a

party “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. at 405 (emphasis added). A party

can challenge the sufficiency of the evidence only by

appealing the denial of a Rule 50(b) motion—something

Walmart concededly failed to do.

By reviewing the sufficiency of the evidence based

solely on the district court’s denial of Walmart’s Rule 50(a)

motion, the Ninth Circuit did precisely what Unitherm

forbids—and what no other circuit would tolerate. Review

is warranted to resolve that circuit conflict and correct the

Ninth Circuit’s departure from this Court’s precedent.

Indeed, the Ninth Circuit’s error is so stark that the Court

may wish to consider summary reversal.

At minimum, the Court should hold this petition pending Cox Communications Inc. v. Sony Music Entertainment, No. 24-171, and then grant, vacate, and remand the

case for further consideration. Cox involves the standard

for secondary copyright-infringement liability as applied

to the internet. The same issue is presented here: The

Ninth Circuit found insufficient evidence to hold Walmart

secondarily liable for the infringing photographs in its

online product listings. Clarification of the secondaryliability standard in Cox plainly could affect the outcome

here, especially as two of the four judges below found

ample evidence to support Walmart’s liability for the

infringing photographs.

Given Walmart’s failure to appeal the denial of its Rule

50(b) motion, however, the Ninth Circuit never should

have considered Walmart’s sufficiency challenge, on secondary liability or anything else. Because the case must

be returned to the Ninth Circuit at least in light of Cox,

the Court may wish to GVR with directions to consider

Unitherm as well. But the more appropriate course would

be to review and reverse the Ninth Circuit’s patently erroneous decision to review the sufficiency of the evidence

based on the denial of a Rule 50(a) motion.

I. THE NINTH CIRCUIT’S DEPARTURE FROM THE

REQUIREMENTS OF RULE 50 WARRANTS REVIEW

Walmart concedes it did not appeal the district court’s

order denying its Rule 50(b) motion. Indeed, it disclaimed

any challenge to that order. The Ninth Circuit nonetheless reviewed the sufficiency of the evidence de novo, by

purporting to review the denial of Walmart’s pre-verdict

Rule 50(a) motion. That approach conflicts with every

other circuit. It contravenes this Court’s decision in Unitherm. And it thwarts Rule 50’s careful, step-by-step process for challenging the factual sufficiency of jury verdicts.

Review—if not summary reversal—is warranted.

A. The Decision Below Conflicts with Decisions

from Every Other Circuit

The Ninth Circuit reviewed the sufficiency of the evidence underlying the jury’s verdict—and reversed on de

novo review—even though Walmart did not appeal or

challenge the denial of its Rule 50(b) motion. That decision

conflicts with decisions from every other circuit.

1. Ten circuits—the First, Third, Fourth, Fifth, Sixth,

Seventh, Eighth, Tenth, and Eleventh Circuits, plus the

Federal Circuit applying regional circuit law—have held

they cannot review the sufficiency of the evidence under-

lying a jury verdict at all if the appellant does not challenge the denial of a Rule 50(b) motion, even if the appellant seeks to challenge the denial of a Rule 50(a) motion.

Those circuits are clear: “On appeal, a party may not

challenge the sufficiency of evidence based on the district

court’s denial of a Rule 50(a) motion alone.” Ayers v. City

of Cleveland, 773 F.3d 161, 168 (6th Cir. 2014) (emphasis

added). A “district court’s denial of a Rule 50(a) motion

‘cannot form the basis of [a sufficiency-of-the-evidence]

appeal’ ” because “the denial does not decide anything; it

just puts off resolution of the sufficiency-of-the-evidence

question until after the verdict.” Kelley v. City of Albuquerque, 542 F.3d 802, 817 (10th Cir. 2008) (emphasis added). “Without a district court Rule 50(b) ruling to review,”

those circuits hold, “an appellate court [is] ‘without power

to direct the District Court to enter judgment contrary to

the one it had permitted to stand.’ ” Ayers, 773 F.3d at 168

(quoting Unitherm, 546 U.S. at 400-401) (emphasis added). A litigant’s failure to present a Rule 50(b) order on

appeal leaves its sufficiency-of-the-evidence challenge

“dead in the water.” Climent-Garcia v. Autoridad de

Transporte Maritimo y Las Islas Municipio, 754 F.3d 17,

20 (1st Cir. 2014).

Circuit after circuit agrees that appellate courts cannot

consider sufficiency challenges absent an appeal from a

Rule 50(b) denial. See, e.g., Charles Jacquin Et Cie, Inc.

v. Destileria Serralles, Inc., 921 F.2d 467, 475 (3d Cir.

1990); Delaware & Hudson Ry. Co. v. Knoedler Mfrs.,

Inc., 805 F. App’x 149, 154 n.5 (3d Cir. 2020); A Helping

Hand, LLC v. Baltimore County, 515 F.3d 356, 369-370

(4th Cir. 2008); McLendon v. Big Lots Stores, Inc., 749

F.3d 373, 374-375 (5th Cir. 2014); Rexing Quality Eggs v.

Rembrandt Enterprises, Inc., 996 F.3d 354, 369 (7th Cir.

2021); Jackson v. Allstate Ins. Co., 785 F.3d 1193, 1205 (8th

Cir. 2015); St. Louis Condo. Ass’n, Inc. v. Rockhill Ins.

Co., 5 F.4th 1235, 1245 (11th Cir. 2021); Nordock, Inc. v.

System Inc., 803 F.3d 1344, 1358 (Fed. Cir. 2015), vacated

on other grounds, 580 U.S. 1028 (2016).

Courts apply that principle in cases indistinguishable

from this one. In Washington v. Gilmore, for example, the

appellant (a pro se prisoner) moved for JMOL under “Fed.

R. Civ. P. 50(b),” but “filed his notices of appeal before the

District Court ruled” and “did not file a new or amended

notice of appeal” after his Rule 50(b) motion was denied.

No. 22-2309, 2023 WL 4363113, at *1 (3d Cir. July 6, 2023).

That was fatal: Absent an appeal from a Rule 50(b) denial,

the Third Circuit held, “we cannot review a challenge to

the sufficiency of the evidence.” Ibid. (citing Unitherm,

546 U.S. at 405). Here, Walmart committed the same

omission as the appellant in Washington—yet achieved

the opposite result.

The Eighth Circuit’s decision in Hairston v. Wormuth,

107 F.4th 867 (8th Cir. 2024), is similarly instructive.

There, as here, a litigant appealed “ ‘from the final judgment’ ” entered on an adverse verdict, but never “amended

the notice of appeal” “[a]fter the district court ruled on her

post-trial motions.” Id. at 869-870. The Eighth Circuit

held that failure barred it from considering the issues in

her post-trial motions, including “her sufficiency of the

evidence challenge.” Id. at 871.7 Yet the Ninth Circuit

held the opposite here.

2. The Second and D.C. Circuits recognize that the

absence of a Rule 50(b) order on appeal generally bars an

evidentiary-sufficiency challenge on appeal. Those courts

While Hairston’s pro se motion was styled as one under Rule 59(e),

it challenged the “evidence” as “insufficient,” à la Rule 50(b). Dkt. 82

in No. 5:18-cv-96 (E.D. Ark. June 6, 2022).

have suggested that, despite that rule, “very narrow”

plain-error review may be possible in “ ‘extraordinary circumstances’ ” to “ ‘prevent a manifest injustice.’ ” Jacques

v. DiMarzio, Inc., 386 F.3d 192, 199-200 (2d Cir. 2004); see

Ortiz v. City of New York, 706 F. App’x 54, 55-56 (2d Cir.

2017) (applying Jacques); Fredrick v. District of Columbia, 254 F.3d 156, 160-162 (D.C. Cir. 2001) (allowing “limited” review to prevent “manifest miscarriage of justice”).

Neither circuit, however, has ever ordered JMOL for a

verdict loser under that standard. Other circuits explicitly

reject such an exception to Rule 50(b). See, e.g., Fed. Ins.

Co. v. HPSC, Inc., 480 F.3d 26, 32 (1st Cir. 2007); Hertz v.

Woodbury County, 566 F.3d 775, 780-781 (8th Cir. 2009);

Johnson v. Guerrieri Mgmt., Inc., 437 F. App’x 853, 857

(11th Cir. 2011). And others acknowledge conflicting

decisions over the availability of plain-error review. E.g.,

McLendon, 749 F.3d at 374-375 & n.2 (collecting and

rejecting decisions allowing “plain error review for unpreserved sufficiency challenges”).

3. The decision below conflicts with all those cases—

and reflects deeper confusion about Rule 50’s commands.

The Ninth Circuit recognized that Walmart did not

appeal (and disclaimed any challenge to) the denial of its

Rule 50(b) motion. App., infra, 3a n.1. But the court held

it could review the sufficiency of the evidence nonetheless,

by reviewing the denial of Walmart’s Rule 50(a) motion.

Id. at 3a & n.1. That conflicts with the First, Third,

Fourth, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits, which hold the absence of an appeal from a

Rule 50(b) order forecloses sufficiency review on appeal,

even if the appellant seeks to challenge the denial of a Rule

50(a) motion. The Ninth Circuit then conducted “de novo”

review of the evidence, found it insufficient (over a dissent), and ordered JMOL for Walmart. Id. at 3a, 4a-10a.

That conflicts with the Second and D.C. Circuits, which at

most allow only limited plain-error review to prevent

manifest injustice—something the Ninth Circuit did not

(and could not credibly) find here.

Even within the Ninth Circuit, there is intolerable

confusion about Rule 50’s requirements. In Reighard v.

Longo, 669 F. App’x 356 (9th Cir. 2016), that court faced

indistinguishable facts—yet reached the opposite result.

There, a pro se litigant (Natalie Reighard) had “filed a

motion for judgment as a matter of law under Rule 50(a),”

which the “district court denied.” Id. at 356-357. After

trial, Reighard “filed a Rule 50(b) motion” for JMOL. Id.

at 357. She then “appeal[ed] pro se from the entry of

judgment against her,” but “limited her appeal to the

denial of the Rule 50(a) motion.” Id. at 356-357 (emphasis

added). The Ninth Circuit held that, “[b]ecause Reighard

did not appeal the district court’s denial of her Rule 50(b)

motion,” the court of appeals was “limited to examining

whether or not the district court erred in denying her pretrial Rule 50(a) motion.” Id. at 357 (emphasis added).

Under Unitherm, however, the “denial of a Rule 50(a)

motion is ‘not error,’ ” and “ ‘cannot form the basis of [an]

appeal.’ ” Ibid. (quoting 546 U.S. at 406). The Ninth

Circuit thus held it was obligated to “affirm the district

court’s denial of Reighard’s Rule 50(a) motion.” Ibid.; see

also Nitco Holding Corp. v. Boujikian, 491 F.3d 1086,

1089 (9th Cir. 2007) (refusing review where appellant

failed to file Rule 50(b) motion). Like Reighard, Walmart

appealed only the denial of its Rule 50(a) motion, not the

denial of its Rule 50(b) motion. Yet rather than summarily

affirm as in Reighard, the Ninth Circuit reversed and

ordered JMOL for Walmart. Those irreconcilable results

underscore the need for this Court’s intervention.8

Nor is the confusion limited to the Ninth Circuit. While

Eleventh Circuit precedent bars sufficiency-of-the-evidence challenges absent an appeal from a Rule 50(b)

denial, see St. Louis Condo., 5 F.4th at 1245, that court has

also taken the approach the Ninth Circuit adopted below.

See Merard v. Magic Burgers, LLC, No. 21-12037, 2022

WL 3023213, at *2-3 & n.4 (11th Cir. Aug. 1, 2022)

(reviewing “denial of [defendant’s] Rule 50(a) motions”

where “Rule 50(b)” denial was “not before [the court] on

appeal”). Unlike the Ninth Circuit here, however, the

Merard court affirmed. Id. at *4.

In short, the Ninth Circuit split from decisions of every

circuit (including itself ) by reviewing and reversing the

denial of Walmart’s Rule 50(a) motion. The conflict is

manifest.

B. The Decision Below Is Wrong

The decision below defies this Court’s precedent.

1. The Ninth Circuit reviewed the sufficiency of the

evidence by purporting to “review the district court’s

denial” of Walmart’s Rule 50(a) “mo[tion] for judgment as

a matter of law at trial.” App., infra, 3a. This Court

squarely rejected that approach in Unitherm.

In Unitherm, the defendant (ConAgra) moved at trial

for JMOL “under Rule 50(a) based on legal insufficiency

of the evidence.” 546 U.S. at 398. The district court denied

that motion, and the jury returned a verdict for the

plaintiff (Unitherm). Ibid. ConAgra appealed, but failed

Reighard alternatively found no error even “assuming” Reighard

appealed the Rule 50(b) denial. 669 F. App’x at 357. Here, however,

all agree Walmart did not appeal or challenge the Rule 50(b) denial.

to renew its motion for JMOL under Rule 50(b) or appeal

the denial of such a motion. Ibid. The court of appeals

held it could nonetheless “examine the sufficiency of the

evidence” based on ConAgra’s “Rule 50(a) motion.” Id. at

399. It found the evidence insufficient and granted ConAgra “a new trial.” Ibid.

This Court reversed, holding that a litigant “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.” Unitherm, 546 U.S. at 405 (emphasis added).

Relying on decades of precedent, the Court explained that

the only permissible “basis for review of [a] sufficiency of

the evidence challenge in the Court of Appeals” is review

of an order denying “a postverdict motion under Rule

50(b).” Id. at 402, 407 (emphasis added); see id. at 400-404

(collecting authorities).

Challenging the denial of a Rule 50(a) motion does not

suffice, the Court explained, “because the denial of that

motion [i]s not error.” Unitherm, 546 U.S. at 406 (emphasis added). A district court is “not required” to grant

JMOL under Rule 50(a) even where “the evidence is

legally insufficient.” Id. at 405. The denial of a Rule 50(a)

motion is not a final determination of evidentiary sufficiency, but “merely an exercise of the District Court’s discretion, in accordance with the text of the Rule and the

accepted practice of permitting the jury to make an initial

judgment about the sufficiency of the evidence.” Id. at

406. Consequently, “the District Court’s denial of [a Rule

50(a)] preverdict motion cannot form the basis of [a

litigant’s] appeal.” Ibid. (emphasis added).

Unitherm thus expressly rejected the notion that an

appellant can challenge the sufficiency of the evidence by

challenging the denial of a Rule 50(a) motion. The Ninth

Circuit here held precisely the opposite—without ever

mentioning Unitherm. Cf. C.A. Dkt. 25 at 15-17, C.A. Dkt.

31 at 25, C.A. Dkt. 51 at 1, C.A. Dkt. 52 at 12-14 (Russell’s

submissions discussing Unitherm). The conflict with this

Court’s precedent is inescapable. If anything, the error is

even more stark than in Unitherm: There, the court of

appeals merely granted ConAgra “a new trial,” 546 U.S.

at 399, 406 n.6; here, the Ninth Circuit granted Walmart

judgment as a matter of law.

2. The Ninth Circuit made no effort to reconcile its

decision with Unitherm. Nor could it. Although the Ninth

Circuit purported to “review the district court’s denial” of

Walmart’s Rule 50(a) motion, App., infra, 3a, Unitherm is

explicit that denial of a Rule 50(a) motion is “not error,”

546 U.S. at 406. Any “review” of that denial thus could

result only in affirmance, not (as here) reversal.

The Ninth Circuit also observed that Walmart appealed

the “final judgment” entered on the “jury’s verdict.” App.,

infra, 2a-3a. But so did ConAgra in Unitherm. That is

insufficient because, as Chief Judge Sutton has explained,

“appellate courts do not directly review the actions of

juries; they review a trial judge’s assessment of the work

of the jury through a motion for judgment as a matter of

law.” Maxwell v. Dodd, 662 F.3d 418, 420-421 (6th Cir.

2011) (emphasis added); see Unitherm, 546 U.S. at 403 n.4

(discussing Baltimore & Carolina Line, Inc. v. Redman,

295 U.S. 654, 658 (1935)).

Finally, the Ninth Circuit insisted “Walmart’s failure to

appeal the district court’s order denying the 50(b) motion”

did not matter “because Walmart does not challenge the

50(b) order.” App., infra, 3a n.1. But Unitherm instructs

that challenging a district court’s Rule 50(b) order is the

only permissible “basis for review of [a] sufficiency of the

evidence challenge in the Court of Appeals.” 546 U.S. at

407. Failure to challenge a Rule 50(b) order does not salvage a sufficiency-of-the-evidence challenge—it dooms it.

3. Walmart (but not the Ninth Circuit) posited that

“the requirements of Unitherm were met” because Walmart “filed a timely Rule 50(b) motion,” even though it did

not appeal or challenge the denial of that motion. C.A.

Dkt. 26 at 5 (emphasis added); see C.A. Dkt. 37 at 16. That

makes no sense. Unitherm requires the filing of a Rule

50(b) motion because an order denying that motion is the

only permissible “basis for review of [a] sufficiency of the

evidence challenge” on appeal. 546 U.S. at 407. The court

of appeals may “direct the entry of judgment” only by

“revers[ing] the district court’s denial of a Rule 50(b)

motion.” Id. at 401 n.3 (emphasis added); see id. at 400406. Absent an appeal from the Rule 50(b) denial, there is

nothing reviewable to reverse.

“Appellate review, by its nature, requires a lower court

decision to review.” Dupree v. Younger, 598 U.S. 729, 734

(2023). And “[t]o secure appellate review of a judgment or

order, a party must file a notice of appeal from that

judgment or order.” Manrique v. United States, 581 U.S.

116, 120 (2017) (emphasis added). Where no Rule 50(b)

order is before the court of appeals—whether because no

motion was made or because its denial was not appealed—

the court of appeals has no decision to review and is

“powerless” to examine the sufficiency of the evidence,

much less direct JMOL. Unitherm, 546 U.S. at 405.

Nor can Walmart plausibly contend it “satisfied the

policy reasons behind” Unitherm. C.A. Dkt. 26 at 7.

Unitherm makes clear a Rule 50(b) motion “ ‘is not an idle

motion’ ” or mere box to check. 546 U.S. at 401. By confining review to denial of a Rule 50(b) motion, Unitherm

ensures the appellate court has “the benefit of postverdict

input from the district court” “ ‘judge who saw and heard

the witnesses.’ ” Id. at 401 & n.3. Because Walmart never

presented the district court’s Rule 50(b) decision for

review, however, the Ninth Circuit never considered it.

Nor did Walmart meaningfully engage with that decision.

Indeed, the district court held Walmart “waived” its “challenges to the secondary liability theories” by not raising

them until its Rule 50(b) “Reply.” App., infra, 44a. Yet

Walmart’s opening brief never mentioned that ruling.

C.A. Dkt. 19.

4. Some circuits may conduct “very narrow” sufficiency review, even absent an appeal from a Rule 50(b) denial,

to avoid “ ‘manifest injustice.’ ” Jacques, 386 F.3d at 199;

see pp. 22-23, supra. That practice is hard to square with

Unitherm, which rejected a “manifest injustice” exception

proposed by the dissent. 546 U.S. at 408 (Stevens, J.,

dissenting); see id. at 402 n.4 (majority opinion). Regardless, the Ninth Circuit did not invoke that practice; it

applied “de novo” review. App., infra, 3a. Nor would

declining to entertain Walmart’s sufficiency challenge

work any conceivable “injustice.” Two of the four judges

below found the evidence amply sufficient. And the Ninth

Circuit clerk told Walmart it “must file an amended notice

of appeal” if it wanted to “challenge the district court’s

ruling on” its Rule 50(b) motion. App., infra, 66a. Justice

counsels holding Walmart to the rules—not excusing its

delinquency.

C. The Issue Is Important and Warrants Review

Clarity and uniformity of procedural rules are paramount to the orderly administration of justice. That is

especially true where those rules concern review of jury

verdicts. Rule 50 accords respect to juries—and the

district courts “ ‘who saw and heard the witnesses’ ”—by

establishing a careful, precise process for challenging the

sufficiency of the evidence underlying jury verdicts.

Unitherm, 546 U.S. at 399-406 & nn.3-4. Appellate Rule 4

establishes a similarly precise process for appealing

denials of post-verdict Rule 50(b) motions. See p. 6, supra.

It is essential that litigants navigating that process know

with clarity the rules that they (and their opponents) must

follow. And it is vital that all litigants be held to the same

standards. The Rules’ application should not vary by

geography or whim.

This Court thus has repeatedly granted review to

resolve conflicts over the proper application of Rule 50 and

other procedural rules. E.g., Unitherm, 546 U.S. 394

(Rule 50); Ortiz v. Jordan, 562 U.S. 180 (2011) (Rules 50

and 56); Dupree, 598 U.S. 729 (Rules 50 and 56); Coney

Island Auto Parts Unlimited, Inc. v. Burton, 608 U.S. 155

(2026) (Rule 60(b)(4)); BLOM Bank SAL v. Honickman,

605 U.S. 204 (2025) (Rule 60(b)(6)); Waetzig v. Halliburton

Energy Servs., Inc., 604 U.S. 305 (2025) (Rules 41(a) and

60(b)); Manrique, 581 U.S. 116 (Appellate Rule 4(b));

FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498

U.S. 269 (1991) (Appellate Rule 4(a)(2)). Review is likewise warranted here.

The issue is recurring. Whether an appellant must

challenge the denial of a Rule 50(b) motion, or whether it

need only challenge the denial of a Rule 50(a) motion,

affects every case where a disappointed litigant seeks to

challenge the sufficiency of the evidence underlying a jury

verdict. That is why every circuit has weighed in—and

reached decisions contrary to the Ninth Circuit below.

See pp. 20-25, supra.

The need for review is amplified by the magnitude of

the error. The Ninth Circuit’s decision below is irreconcilable with this Court’s decision in Unitherm. See pp. 2529, supra. Absent review, it will distort review of jury

verdicts in the Nation’s largest circuit. The distortion is

profound. Rule 50(b) is designed to secure “the benefit of

postverdict input from the district court,” which “ ‘has the

feel of the case which no appellate printed transcript can

impart.’ ” Unitherm, 546 U.S. at 401 & n.3 (emphasis

added). That input often comes, as it did here, through

thoughtful written opinions following trial. See App.,

infra, 29a-45a. Reviewing only the district court’s Rule

50(a) decision—here, a two-sentence, pre-verdict bench

ruling, App., infra, 19a—short-circuits that process. It

renders Rule 50(b) meaningless. And it allows litigants to

circumvent inconvenient Rule 50(b) rulings (as Walmart

did with the district court’s Rule 50(b) waiver ruling, p. 29,

supra).

Nor can reconciliation be left to the court of appeals.

Russell repeatedly explained below that assessing the

sufficiency of the evidence by reviewing the denial of a

Rule 50(a) motion would conflict not only with Unitherm,

but also with the Ninth Circuit’s own prior decisions. See

C.A. Dkt. 25 at 15-16; C.A. Dkt. 31 at 25; pp. 15, 18, supra.

Yet the Ninth Circuit did so anyway—without mentioning

Unitherm or its past cases. Russell asked the Ninth

Circuit to resolve the conflict on rehearing. C.A. Dkt. 52

at 1-2, 12-14. It declined. App., infra, 66a. Russell even

took the extraordinary step of asking the court to publish

its decision, so that litigants would at least have clear

notice of the rules going forward. C.A. Dkt. 51 at 1. The

Ninth Circuit refused that request, too—leaving future

litigants to wonder what rules future panels might apply

to them. App., infra, 68a.

That raises serious fairness concerns—as the Ninth

Circuit’s own decisions starkly illustrate. When the pro se

appellant in Reighard failed to appeal the denial of her

Rule 50(b) motion and limited her appeal to the denial of

her Rule 50(a) motion, the Ninth Circuit applied Uni-

therm, held the denial of a Rule 50(a) motion is never

error, and summarily affirmed. 669 F. App’x at 356-357;

see p. 24, supra. But when Walmart failed to appeal the

denial of its Rule 50(b) motion and limited its appeal to the

denial of its Rule 50(a) motion, the Ninth Circuit reviewed

the sufficiency of the evidence de novo, reversed the Rule

50(a) denial, and granted Walmart judgment as a matter

of law. The Ninth Circuit never explained the disparity.

And because it refused to publish its decision, future

litigants can only speculate whether they will be treated

like Reighard or like Walmart.

That state of affairs is untenable. This Court should

grant review—and reverse.

D. Summary Reversal Is Appropriate

Given the Rule 50 issue’s importance and the clear circuit conflict, plenary review is amply warranted. But the

Ninth Circuit’s decision is so plainly contrary to this

Court’s precedent that the Court may wish to consider

summary reversal.

The Ninth Circuit held it could review the sufficiency of

the evidence by reviewing the district court’s denial of

Walmart’s Rule 50(a) motion. App., infra, 3a. But

Unitherm forbids that approach, holding in no uncertain

terms 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.” 546 U.S. at 405;

see pp. 25-29, supra.

Russell repeatedly brought Unitherm to the Ninth Circuit’s attention. See p. 31, supra. But the Ninth Circuit

never even mentioned Unitherm, much less reconciled its

decision with that precedent. Where a decision so clearly

disregards and contravenes this Court’s precedent, summary reversal is appropriate. It would be especially

appropriate here, given the need to return the case to the

Ninth Circuit in any event. See pp. 33-35, infra.

II. ALTERNATIVELY, THE COURT SHOULD HOLD THIS

PETITION FOR COX, THEN GVR

At minimum, the Court should hold this petition pending its decision in Cox Communications Inc. v. Sony

Music Entertainment, No. 24-171, then GVR for further

consideration in light of that decision—and Unitherm too.

Cox concerns the standards for secondary copyrightinfringement liability involving online services. See Brief

for Petitioners 1-3 in No. 24-171; Brief for Respondents

28-38 in No. 24-171; Gov’t Merits Brief 2-3, 10-20 in No. 24171. The same issue is implicated here. Describing Walmart as the operator of an “online platform” to which a

third party (Sunsea) “uploaded the infringing content,”

the Ninth Circuit held Russell “did not present adequate

evidence for the jury to find Walmart secondarily liable for

Sunsea’s infringement of the photographs.” App., infra,

4a-6a. In doing so, the Ninth Circuit applied its precedents in VHT, Inc. v. Zillow Group, Inc., 918 F.3d 723 (9th

Cir. 2019), and Perfect 10, Inc. v. Giganews, Inc., 847 F.3d

657 (9th Cir. 2017). Ibid. Those decisions were identified

as part of the split in Cox, see Pet. 20-21 in No. 24-171, and

discussed in merits briefing, see Brief for Petitioners 42 in

No. 24-171.

Given that overlap, the Court should (at minimum) hold

this petition until Cox is decided, then GVR for further

consideration under the proper legal standard. Clarification of the governing standard plainly could produce a different outcome. The district judge who saw the trial firsthand found ample evidence to support secondary liability.

App., infra, 40a-44a. And Judge Desai in dissent believed

the evidence of Walmart’s involvement and control over

the infringing listings was enough for direct liability; a

fortiori, that involvement could support at least secondary

liability. Id. at 7a-10a.

A GVR would be appropriate even if the defendant prevails in Cox. In Cox, the defendant is an internet service

provider a jury found liable for infringing content that its

subscribers downloaded. Brief for Petitioners 7-12 in No.

24-171. Here, Walmart is an online retailer a jury found

liable for infringing photographs in product listings on

Walmart’s own website, that Walmart had final say over,

and that were used to sell infringing products Walmart

represented as “Sold & shipped by Walmart.” Whatever

the result in Cox, the case for secondary liability against

Walmart is significantly stronger. That amply justifies a

hold and GVR for Cox.

That Cox would necessitate returning this case to the

Ninth Circuit, moreover, underscores why review is warranted on the Rule 50 issue. Further consideration in light

of Cox is necessary only insofar as the Ninth Circuit could

consider Walmart’s challenge to the sufficiency of the

evidence supporting Walmart’s liability. As discussed

above (pp. 25-29), Walmart’s failure to challenge the denial

of its Rule 50(b) motion foreclosed the court of appeals

from doing so.

Rather than remand for the Ninth Circuit to conduct a

sufficiency review that Rule 50 forbids, this Court can

reverse the Ninth Circuit’s erroneous Rule 50 ruling,

whether summarily or on plenary review. Or the Court

could GVR and direct the Ninth Circuit to consider Unitherm as well as Cox. Cf. Youngblood v. West Virginia,

547 U.S. 867, 869-870 (2006) (per curiam) (GVR’ing where

lower court did not address Supreme Court precedent

cited to it); Lawrence v. Chater, 516 U.S. 163, 167 (1996)

(per curiam) (GVR may “fla[g] a particular issue [the

lower court] does not appear to have fully considered”). In

all events, the decision below cannot stand.

CONCLUSION

The Court should grant plenary review or summarily

reverse on the first question presented. Alternatively, the

Court should hold this petition for Cox, then GVR.

Respectfully submitted.

GUY RUTTENBERG

BRUCE D. KUYPER

RUTTENBERG IP LAW, APC

1801 Century Park East

Suite 1920

Los Angeles, CA 90067

(310) 627-2271

LUCAS M. WALKER

Counsel of Record

JACKSON A. MYERS

CAROLINE GRUESKIN

MOLOLAMKEN LLP

The Watergate, Suite 500

600 New Hampshire Ave., NW

Washington, D.C. 20037

(202) 556-2000

lwalker@mololamken.com

Counsel for Petitioner

MARCH 2026

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.