Not unexpectedly but understandably, Qualcomm just filed a 176-page opening brief with the United States Court of Appeals for the Ninth Circuit in its appeal of the Federal Trade Commission's antitrust victory in the Northern District of California--and an 11-page unopposed motion explaining why the opening brief has to be that long.
This has implications for the timeline. The most recent scheduling order, based on another unopposed Qualcomm motion, gave the FTC until October 25 for its responsive brief, and Qualcomm until November 15 for its reply brief. But in that motion Qualcomm already indicated that the FTC could also get an extension (after Qualcomm got two more weeks because the expedited schedule was too expedited even for them) should Qualcomm exceed page limits. It now turns out the FTC will even get twice as much extra time: four weeks. Qualcomm doesn't oppose it, so it's a given that the FTC will use that extra time and then file its responsive brief just before Thanksgiving--and then Qualcomm will have until mid-December for its reply brief.
When the Ninth Circuit's motions panel for August granted Qualcomm's motion to stay the enforcement of two of the FTC's antitrust remedies yesterday morning and ordered that the hearing be scheduled for January, this extension was not factored in. As a result, the appellate hearing will presumably slip into February (February 3-7 or February 10-14), if not March 2-6; at the very earliest it might take place January 21-24 (the later one of the Ninth Circuit's two January 2020 court sessions), but the January 6-10 session doesn't appear to be a practical option anymore. There are San Francisco sessions scheduled for every single one of the periods I just mentioned. The Ninth Circuit is geographically huge and holds sessions in multiple cities, of which San Francisco is the closest one to San Jose and the only one in that federal judicial district. The first Ninth Circuit session in 2020 without a San Francisco hearing will be in late March/early April, and it's unlikely that this hearing would be postponed by that much.
In order to be of service to my esteemed readers, many of whom take a strong interest in the case, I'm now going to publish the opening brief without further comment. I normally always provide some reaction, and yesterday I did so near-simultaneously with Reuters (the first news agency to publish an article on the stay that Qualcomm had obtained), but given that it's an appellate proceeding where nothing will happen between now and the FTC's responsive brief (I'd have commented today if the motion for a stay had still been pending), that it's a weekend, and that this brief is really voluminous, I'm going to take my time to digest it and will do a follow-up post on Sunday or early next week.
19-08-23 Qualcomm Opening B... by Florian Mueller on Scribd
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