No. 14-8003 In the United States Court of Appeals for the Seventh Circuit MOTOROLA MOBILITY LLC, Plaintiff-Appellant, v. AU OPTRONICS CORPORATION, et al., Defendants-Appellees. _______________________________________ On Petition for Interlocutory Appeal from an Order of the United States District Court for the Northern District of Illinois, Eastern Division, No. 1:09-cv-06610. The Honorable Joan B. Gottschall, Judge Presiding. PETITION FOR HEARING EN BANC OF MOTOROLA MOBILITY, LLC JEROME A. MURPHY MATTHEW J. MCBURNEY CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, D.C. 20004 (202) 624-2500 JANET I. LEVINE JASON C. MURRAY CROWELL & MORING LLP 515 South Flower Street 40 th Floor Los Angeles, CA 90071 (213) 622-4740 THOMAS C. GOLDSTEIN ERIC F. CITRON GOLDSTEIN & RUSSELL, P.C. 5225 Wisconsin Ave., N.W. Suite 404 Washington, D.C. 20015 (202) 362-0636 Counsel for Petitioner, Motorola Mobility LLC COUNSEL PRESS · (866) 703-9373 PRINTED ON RECYCLED PAPER Case: 14-8003 Document: 65 Filed: 07/09/2014 Pages: 26
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MOTOROLA MOBILITY LLC v. AU OPTRONICS CORPORATION En Banc Petition
MOTOROLA MOBILITY LLC v. AU OPTRONICS CORPORATION En Banc Petition
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No. 14-8003
In the
United States Court of Appeals for the Seventh Circuit
MOTOROLA MOBILITY LLC,
Plaintiff-Appellant,
v.
AU OPTRONICS CORPORATION, et al., Defendants-Appellees.
_______________________________________
On Petition for Interlocutory Appeal from an Order of the United States District Court for the Northern District of Illinois, Eastern Division, No. 1:09-cv-06610.
The Honorable Joan B. Gottschall, Judge Presiding.
PETITION FOR HEARING EN BANC OF MOTOROLA MOBILITY, LLC
JEROME A. MURPHY MATTHEW J. MCBURNEY CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, D.C. 20004 (202) 624-2500
JANET I. LEVINE JASON C. MURRAY CROWELL & MORING LLP 515 South Flower Street 40th Floor Los Angeles, CA 90071 (213) 622-4740
THOMAS C. GOLDSTEIN ERIC F. CITRON GOLDSTEIN & RUSSELL, P.C. 5225 Wisconsin Ave., N.W. Suite 404 Washington, D.C. 20015 (202) 362-0636
Appellate Court No: 14-8003 --------Short Caption: Motorola Mobility LLC v. AU Optronics Corporation
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the tiling of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to complete the entire statement and to use N/ A for any information that is not applicable if this form is used.
[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(I) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):
Motorola Mobility LLC
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court:
Goldstein & Russell, P.C.
(3) If the party or amicus is a corporation:
i) Identify all its parent corporations, if any; and
ii) list any publicly held company that owns 10% or more of the party's or amicus' stock:
Date: 4/2/2014 Attorney's Signature: s/ Thomas Goldstein
Attorney's Printed Name: Thomas Goldstein ----------------------------------------------Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes X No
Address: Goldstein & Russell, P.C., 5225 Wisconsin Avenue, NW, Suite 404, Washington, DC 20015
Short Caption: Motorola Mobility LLC v. AU Optronics Corporation, et al.
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.
The Court prefers that the disclosure statement be filed immediately followingdocketing; but, the disclosure tatement must be filed within 21 days of docketing or upon the filing of a motion, response petition, or answer in tlus court, whichever occurs first. Attorneys are required to file an amended statement to retlect a11y material changes in tbe required information. The text of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to complete the entire statement and to use N/ A for any information that is not applicable if this form is used.
PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):
Motorola Mobility LLC
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court:
Crowell & Moring LLP
Goldstein & Russell, P.C.
(3) If the party or amicus is a corporation:
i) Identify all its parent corporations, if any; and
Google Inc.
ii) list any publicly held company that owns 10% or more of the party's or amicus' stock:
Google Inc.
Date: 2/24/2014
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes
Address: Crowell & Moring LLP
515 South Flower St., 40th Floor, Los Angeles, CA 90071
Short Caption: Motorola Mobility LLC v. AU Optronics Corporation , et al.
To enable the judges to dctcnninc whether rccusal is necessary or appropriate, an allorncy for a non-govcrnmcntal party or amicus curiae, or a private allorncy repn.:scnting a government party, must furnish a disclosure statement providing the foll owing information in compliance with Circuit Rule 26. I and J-ed. R. App. J' . 26.1 .
The ~ourt prcfi.:rs that the disclosure statement be filed immediately followin g docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the tiling of a motion, response, petition, or answer in this court, whichever occurs first. Allorncys arc required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party's main brief. Counsel is rt'lJUired to complete thl' entire statement and to usc N/A for any information that is not applicahll' if this fonn is used.
PLEASE CHEC K HERE II• ANY INFORMATIO N O N T illS FORM IS Nr<_W OR REVISED AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(I) The full name of every party that the attorney represents in the case (if the party is a corporation, you must pro\- ide the corporate disclosure information required by Fed. R. pp. J> 26.1 by completing item #3 ):
Motorola Mobility LLC
(2) The names of all law firms whose partners or associates have appeared fo r the party in the case (including proceedings in the district court or before an admin istrat ive agency) or arc expected to appear for the party in this court:
Crowell & Moring LLP
Goldstein & Russell, P.C.
(3) If the party or amicus is a corporation :
i) Identify all its parent corporations, if any; und
Google Inc.
ii) li st any publicly held company that owns I0°o or more of the party's or amicus ' stock:
Google Inc.
Date 2/24/2014
Please tndtcate if you arc Colmsl!l of Record for the above listed partie. Yc~ X Address: Crowell & Monng LLP
'u
1001 Pennsylvania Ave. N.W .. Washington DC 20004 --~~-----------------------------------------------
CIRCUIT RULE 26.1 DISCLOSURE STATEMENTS .............................................................. i TABLE OF AUTHORITIES ........................................................................................................ v
STATEMENT RESPECTING INITIAL HEARING EN BANC ................................................ 1
STATEMENT OF THE CASE ..................................................................................................... 1
REASONS FOR INITIAL HEARING EN BANC ...................................................................... 7
I. The Question Whether A Motions Panel May Finally Determine The Merits Of An Appeal Based On A Section 1292(b) Petition Is Exceptionally Important.................................................................................................... 7
II. The Motion Panel’s Apparent Intention To Decide The Merits Under Extraordinary Procedures Conflicts With Circuit Precedent And All Other Relevant Authorities. ...................................................................................................... 10
Ahrenholz v. Bd. of Trustees of Univ. of Ill., 219 F. 3d 674 (7th Cir. 2000) ..............................................................................................1, 11
CNF Constructors, Inc. v. Donohoe Constr. Co., 57 F.3d 395 (4th Cir. 1995) .....................................................................................................10
First Bank v. DJL Props., LLC, 598 F.3d 915 (7th Cir. 2010) .....................................................................................................8
Restaura, Inc. v. St. Louis Concessions, Inc., 52 F.3d 189 (8th Cir. 1995) .......................................................................................................8
Rogers v. Bell Atlantic-Virginia, Inc., 232 F.3d 889 (4th Cir. 2000) .....................................................................................................8
In re Sprint Nextel Corp., 593 F.3d 669 (7th Cir. 2010) .....................................................................................................8
In re Text Messaging Antitrust Litig., 630 F.3d 622 (7th Cir. 2010) .....................................................................................................8
United States v. Houser, 804 F.2d 565 (9th Cir. 1986) ...................................................................................................10
Fed. R. App. P. 5 ..................................................................................................................8, 12, 13
Fed. R. App. P. 10 ..........................................................................................................................13
Fed. R. App. P. 11 ..........................................................................................................................13
Fed. R. App. P. 28(a) .....................................................................................................................12
Fed. R. App. P. 28(c) .......................................................................................................................7
Fed. R. App. P. 29(a) .....................................................................................................................13
Fed. R. App. P. 30 ..........................................................................................................................13
Fed. R. App. P. 31(a) .......................................................................................................................7
Fed. R. App. P. 47 ..........................................................................................................................12
Other Authorities
Alison Frankel, Judge Posner Backs Down (For Now) In Antitrust Policy Duel With U.S., Reuters (July 2, 2014) ..............................................................................................9
Cir. R. 10(a) ...................................................................................................................................13
Cir. R. 28(a)(3)(i) ...........................................................................................................................13
Cir. R. 30 ........................................................................................................................................13
Editorial Board, A Cramped View of Antitrust Laws, The Motorola Mobility Ruling and Foreign Cartels, N.Y. Times (Jun. 15, 2004) .........................................................9
Jacob Gershman, Appeals Court Questions Solicitor General in Motorola Antitrust Case, Wall St. J. Law Blog (May 23, 2013) ...............................................................9
Petitioner Motorola Mobility LLC respectfully submits that the en banc Court of Appeals
should hear and determine the following question of exceptional importance:
When may a motions panel of this Court considering only a request for permission to appeal pursuant to 28 U.S.C. § 1292(b) decide the merits of the appeal?
Initial hearing of this question en banc is necessary for two reasons:
(1) This is a question of exceptional importance with respect to the management of the circuit as a whole, and on which the motions panel’s proceedings to date in this case conflict with the practice of every other court of appeals.
(2) The motions panel’s apparent belief that it has the power to determine the merits
during a Section 1292(b) proceeding conflicts with this Court’s holdings in Ahrenholz v. Bd. of Trustees of Univ. of Ill., 219 F. 3d 674 (7th Cir. 2000) and Johnson v. Burken, 930 F.2d 1202 (7th Cir. 1991), and the Federal and Local Rules of Appellate Procedure.
STATEMENT OF THE CASE
This case began when plaintiff Motorola filed this antitrust suit under the Sherman Act in
the Northern District of Illinois against defendants, who manufacture LCD panels. Many of the
defendants have pleaded guilty to a conspiracy to fix the prices of those panels, including in sales
to Motorola. Billions of dollars in sales and damages are at stake, as is the Sherman Act’s
application to global cartels in both private actions and criminal prosecutions by the government.
The case was consolidated with others before an MDL court in California. Defendants
moved to dismiss the complaint under the Foreign Trade Antitrust Improvements Act (FTAIA),
15 U.S.C. § 6a, because they had delivered most of the price-fixed screens overseas. The MDL
court rejected some of Motorola’s theories for proceeding, but held that the case could go
forward on another. After the case was remanded to the Northern District of Illinois, defendants
asked the district court to reconsider the MDL court’s ruling. Motorola principally opposed that
relief on the ground that the standards for reconsideration were not met, because defendants had
not raised any argument not already considered by the MDL court. But on the basis of those
The panel then issued an order directed specifically to the Department of Commerce and
Department of State, inviting each to file its own separate amicus brief. Dkt. 33 (May 1, 2014).
This appears to have been the first instance in which any federal court of appeals has ever
responded to a brief filed by the United States by soliciting submissions from particular
departments of the executive branch. The same order sua sponte extended defendants’ time to
respond to the petition (which would trigger the time for the en banc court’s vote on the petition)
until those further governmental briefs were due. Solicitor General Donald Verrilli personally
wrote the Court in response, explaining that he had authorized the brief filed on behalf of the
United States, which was submitted after consulting with the relevant departments of the federal
government and which set forth the views of the executive branch. Dkt. 34 (May 19, 2014).
The panel responded by ordering Solicitor General Verrilli personally, within one week,
to not only explain what it means for a brief to “reflect[] the views of the United States,” but to
identify the specific executive branch officials who had been consulted in the course of preparing
that brief and the nature of that consultation. Dkt. 35 (May 22, 2014).1 This order was similarly
unusual, to say the least. The next day, the panel sua sponte withdrew its order to the Solicitor
General. Dkt. 38 (May 23, 2014).
Defendants then filed their answer to the petition for rehearing en banc. Dkt. 39 (May
23, 2014). An agency of the Korean government submitted a brief in support of the panel’s
decision. Dkt. 36 (May 23, 2014).2
Motorola moved to file a reply in support of en banc review, explaining that the filing
1 Unlike prior orders, this one was issued in the name of the “Court” rather than the members of the panel, but a subsequent order indicates that in fact it too was issued by the panel. Dkt. 50 (June 2, 2014). 2 This brief failed to note that a firm that had contributed to the drafting was also principal Korean antitrust counsel to some of the defendants.
F.3d 675, 679 (7th Cir. 2006) (Wood, J.) (“Appeals filed pursuant to § 1292(b) are governed by
Federal Rule of Appellate Procedure 5, which requires a party to file a petition for permission to
appeal; the appellate court then either grants the petition, accepting the appeal for filing, or
denies the petition.”). To reiterate, there is a plain conflict between this circuit and every other:
No party has been able to identify any case in which a motions panel of another court presented
with a request to appeal under Section 1292(b) went on to decide the merits. But twice recently
a motions panel in this Circuit has taken upon itself the power to decide on the basis of the
motions papers not only the question of appealability under Section 1292(b), but the merits of the
appeal as well. See Sterk v. Redbox Automated Retail, LLC, 672 F.3d 535 (7th Cir. 2012)
(Posner, J.); In re Text Messaging Antitrust Litig., 630 F.3d 622 (7th Cir. 2010) (Posner, J.).3
The panel chose this multi-billion dollar case over the applicability of the federal antitrust
laws to global cartels to be the first in which a motions panel would hold that the petitioner’s
claim was dismissed on the merits, without briefing or argument. As illustrated by the Statement
of the Case above, the use of irregular procedures has led to troubling and very public results—
3 In previously opposing rehearing en banc of the motions panel’s since-vacated opinion, defendants claimed to have identified “more than a dozen” cases that were “contrary to” this argument. See En Banc Opposition 4 n.1. In support, they cited only three. See id. (citing Pella Corp. v. Saltzman, 606 F.3d 391 (7th Cir. 2010); First Bank v. DJL Props., LLC, 598 F.3d 915 (7th Cir. 2010); and In re Sprint Nextel Corp., 593 F.3d 669 (7th Cir. 2010)). In fact, none involved a Section 1292(b) petition; none even finally determined a claim on the merits. Out of all the cases in all the circuits presenting Section 1292(b) appeals, Motorola has been able to identify only two potentially similar cases, but neither is even analogous. The one-paragraph, unpublished order in Rogers v. Bell Atlantic-Virginia, 232 F.3d 889 (4th Cir. 2000), can be read to suggest that the panel might have simultaneously decided a Section 1292(b) application and the merits, but the docket (available on Westlaw) demonstrates that an appeal was docketed, a briefing schedule was entered, and informal briefs were submitted. Any deviations from ordinary procedures would likely reflect that the appellee was pro se. And while the decision in Restaura, Inc. v. St. Louis Concessions, Inc., 52 F.3d 189, 190 (8th Cir. 1995), might appear on point, it ultimately reveals that the parties there filed an ordinary appeal, and if the merits panel was forced to simultaneously decide a Section 1292(b) petition, it was only because the parties discovered (and attempted to cure) a problem with the finality of the judgment after the fact.
it, fundamental questions about the fairness and regularity of this Court’s decision making
processes. At the very least, the Court as a whole should determine the standards and procedures
according to which a motions panel may decide the merits of a case, rather than leaving such
critical matters to the potentially inconsistent views of individual judges and panels.4
II. The Motion Panel’s Apparent Intention To Decide The Merits Under Extraordinary Procedures Conflicts With Circuit Precedent And All Other Relevant Authorities.
This Court, like nearly every other circuit, has definitively held that a motions panel,
operating under the procedures for determining a Section 1292(b) petition, cannot even make the
law of the case on the narrow issue of appealability that the panel is empowered to decide. A
subsequent panel considering the merits is free to disagree with the motion panel’s determination
because “[d]ecisions by motions panels are summary in character, made often on a scanty record,
and not entitled to the weight of a decision made after plenary submission.” Johnson, 930 F.2d
1204.5 That rule cannot be reconciled with the proposition that a motions panel can use similarly
extraordinary or abbreviated procedures to make the law of the circuit on important questions of
law—especially because, under Section 1292(b), those questions must necessarily be ones “as to
which there is substantial ground for difference of opinion.” For that reason, the practice at issue
here appears to be unknown in the history of Section 1292(b) proceedings. Were this Court to
implicitly bless that process by allowing it to go forward in this high-profile case, it would create
a split with every other circuit and a deep rift in its own jurisprudence.
4 The en banc court also could expeditiously resolve the question presented here by directing the panel to decide only the question of the case’s appealability under Section 1292(b). 5 See also CNF Constructors, Inc. v. Donohoe Constr. Co., 57 F.3d 395, 397 n.1 (4th Cir. 1995) (law of the case does not prevent appeals court from revisiting a prior motions panel ruling on the court's jurisdiction); United States v. Houser, 804 F.2d 565, 569 (9th Cir. 1986) (law of the case does not apply to motions panel dismissal on jurisdictional grounds); E.E.O.C. v. Neches Butane Prods. Co., 704 F.2d 144, 147 (5th Cir. 1983) (motions panel dismissal for want of jurisdiction is provisional and subject to review).
“the matter will ordinarily be assigned in the same manner as other appeals.” This case vividly
shows why adherence to that procedure, the Federal Rules, and the uniform practice in all other
courts of appeal is necessary and appropriate to avoid even the implication “of the deliberate
assignment of an appeal to a particular panel,” Handbook at 10, as well as the concern that the
single motions judge who first reads a Section 1292(b) petition can play a dramatic role in
determining the panel to whom the merits are assigned.6
In conclusion, Motorola emphasizes that it is not seeking to disqualify the panel or to
prevent its members from being eligible for random assignment to the case in the ordinary
course. The problem is process, not personnel. It is imperative that the full court regularize the
Court’s procedures, ensure that litigants like Motorola receive the procedural rights to which
they are entitled under the Federal Rules in proceedings on the merits, and avoid the continued
implication that this Court’s proceedings allow particular judges or panels to decide which cases
they should get to decide. Initial hearing en banc is rare, but this case presents a critical issue of
circuit management and an equally rare opportunity for this Court to consider and correct a
practice that leaves it out of step with the entire remainder of the federal judiciary.
CONCLUSION
This Court should grant initial hearing en banc and determine that, absent extraordinary
circumstances, a motions panel considering a Section 1292(b) petition may not proceed to the
merits.
Respectfully submitted,
/s/Thomas C. Goldstein
6 It bears emphasizing that both the motions panel and the district court dismissed Motorola’s claim without full briefing. The latter acted only on the basis of a petition for rehearing of the decision of the MDL court.
I hereby certify that on July 9, 2014, the Petition for Hearing En Banc of Motorola
Mobility, LLC was filed with the Clerk of the Court for the United States Court of Appeals for
the Seventh Circuit by using the appellate CM/ECF system.
The following participants in the case are registered CM/ECF users and will be served by
the appellate CM/ECF system:
Kenneth A. Gallo Craig A. Benson Joseph J. Simons PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 2001 K Street N.W. Washington, DC 20006-1047
Richard M. Brunell AMERICAN ANTITRUST INSTITUTE 68 Adella Avenue Newton, MA 02465
Terence H. Campbell COTSIRILOS, TIGHE STREICKER, POULOS & CAMPBELL, LTD. 33 N. Dearborn Street, Suite 600 Chicago, IL 60602
Christopher M. Curran WHITE & CASE LLP 701 Thirteenth Street N.W. Washington, DC 20005-3807
Allison Ann Davis DAVIS WRIGHT TREMAINE LLP Suite 800 505 Montgomery Street San Francisco, CA 94111
Nathan P. Eimer EIMER STAHL LLP 224 S. Michigan Avenue, Suite 1100 Chicago, IL 60604
William Farmer FARMER BROWNSTEIN JAEGER, LLP 235 Pine Street, Suite 1300\ San Francisco, CA 94104
James Joseph Fredricks Nickolai G. Levin Kristen Ceara Limarzi DEPARTMENT OF JUSTICE Antitrust Division, Appellate Section 950 Pennsylvania Avenue N.W., Room 3224 Washington, DC 20004
Brett K. Gorman SCHMIEDESKAMP, ROBERTSON, NEU & MITCHELL 525 Jersey Street P.O. Box 1069 Quincy, IL 62306
Kirk Christopher Jenkins SEDGWICK LLP One N. Wacker Drive, Suite 4200 Chicago, IL 60606-2841