In my most recent post on Qualcomm's motion to stay the enforcement of the FTC's antitrust remedies, I had written two things that have just been validated by the court's decision to grant Qualcomm's motion:
- "The August [Ninth Circuit motions] panel has a Republican majority, so should that new panel be in charge now, then the DOJ's brief [which included statements by two other federal government departments] would likely be given more weight unless they see that a former Qualcomm lawyer's lobbying for his past client (and possibly also future client when he returns to private practice) doesn't make the idea of healthy competition an ideological cause."
"Qualcomm might internally--and reasonably--view the time that this is taking as a sign that is more likely than not to be positive, especially since I guess they feared a swift denial of their motion."
Indeed, the order relies heavily on the DOJ's input, and the time that this took was good for Qualcomm. Here's the order (this post continues below the document):
19-08-23 Ninth Circuit Orde... by Florian Mueller on Scribd
The order is based on the judges' conclusion that
"Qualcomm has shown, at minimum, the presence of serious questions on the merits of the district court's determination that Qualcomm has an antitrust duty to license its SEPs to rival chip suppliers" (even though the FTC had argued that it's not simply a duty-to-deal case but a question of Qualcomm's overall anticompetitive scheme),
Qualcomm would be harmed by the impact of the injunction entered by Judge Lucy H. Koh on its contractual relationships (though the FTC and its amici had argued that Qualcomm could solve the problem through contract terms that would apply should Qualcomm prevail on appeal), and
that the public interest weighed in Qualcomm's favor because of the federal government (and even the FTC) being divided.
The order says the appellate hearing should be scheduled for January 2020. A different panel of judges may be in charge then--we'll see. This motions panel, however, was easily swayed by the DoJ's Statement of Interest (two of the judges were appointed by Republican presidents, one of them by President Trump) and seems rather sympathetic to Qualcomm's position, as is evidenced by the following sentence:
"Whether the district court's order and injunction represent a trailblazing application of the antitrust laws, or instead an improper excursion beyond the outer limits of the Sherman Act, is a matter for another day."
That means they don't view the district court's decision as being in the antitrust mainstream, the sole question from the vantage point of those circuit judges being whether it's about novel theories that might be affirmed nonetheless or just squarely outside the boundaries of antitrust law.
Even if the same three judges were to evaluate the merits of the case, affirmance would be possible, but it would be an uphill battle for the FTC. With a different panel, however, and extensive briefing on the merits, anything is still possible. At this procedural stage, a panel with a Republican majority simply didn't want to turn a deaf ear to a Republican government's input urging the appeals court to stay the enforcement of remedies and warning of grave consequences even for national security.
Qualcomm's opening brief is due today. Qualcomm had first requested and obtained an expedited appeal, but then it was too tight a schedule even for their purposes, so they asked for an extension, which they got.
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