Whether a district court’s order changing the time to trial in its case management order from at least 326 days to 146 days, and its time for completion of all discovery (including expert discovery) from 231 days to 108 days, constitutes a fair legal procedure under the due process clause of the Fifth Amendment?

The decision below entrenches an acknowledged split that derives (at best) from misreading this Court’s decision in Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962), and (at worst) from ignoring it altogether. Dairy Queen held that the Seventh Amendment entitled the “owners of [a] trademark” to a jury trial in an infringement action seeking “an accounting” of profits. Id. at 473-78. That the “claim” was “cast in terms of an ‘accounting, rather than in terms of an action for … ‘damages,” made no difference. Id. at 477. Despite Dairy Queen’s clear holding, four circuits now hold the opposite, 1.e., that trademark owners have a jury-trial right only if they seek to recover damages, and lose their jury-trial right on both infringement and the amount of recovery by exercising their statutory right to recover the infringer’s “profits” in lieu of their own “damages.” That decision defies this Court’s precedent, neglects centuries of common- law practice, and forces trademark owners to sacrifice their constitutional rights in order to exercise their statutory right to recover “profits,” a particularly apposite remedy for the most egregious trademark infringement. Put simply, the decision below flouts this Court’s precedent, creates perverse incentives, and puts the Ninth Circuit on the wrong side of a deep split in authority.

The question presented 1s:

Whether, as this Court held in Dairy Queen, the Seventh Amendment jury-trial right apples in trademark-infringement actions seeking monetary relief in the form of the infringer’s profits.

1. Does the Ninth Circuit’s application of res judicata, barring claims based on new material facts arising after prior judgments, conflict with this Court’s precedent in Whole Woman’s Health v. Hellerstedt, 579 U.S. 582 (2016), and create a circuit split with the Fifth and Seventh Circuits on whether post-judgment facts permit new RICO claims, particularly in the context of ongoing social media censorship affecting electoral fairness?

2. Does the Ninth Circuit’s broad application of Section 230 immunity under 47 U.S.C. § 230 to alleged coordinated censorship by social media platforms conflict with district court precedent in Dangaard uv. Instagram, LLC, 2022 WL 17342198 (N.D. Cal. Nov. 30, 2022), and raise significant public policy concerns about immunizing platforms engaged in unlawful conspiracies influenced by government and corporate actors?

3. Did the Ninth Circuit misapply this Court’s precedent in Boyle v. United States, 556 U.S. 938 (2009), by imposing an overly restrictive standard for pleading a RICO enterprise and disregarding new evidence of coordinated censorship, undermining RICO’s role in addressing conspiracies that threaten democratic pro- cesses?