MOTOROLA MOBILITY LLC v. AU OPTRONICS CORPORATION En Banc Petition

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

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

Case: 14-8003 Document: 19 Filed: 04/23/2014 Pages: 1CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

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

Phone Number: (202) 362-0636 Fax Number: (866) 574-2033

E-Mail Address: [email protected]

rev. 01/08 AK



CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

Appellate Court No:--------

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):


(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


(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

Phone Number: (213) 622-4750 Fax Number: (213) 622-2690

E-Mail Address: [email protected]

No X

rev. 01/08 AK



CIRCUIT RULE 26.1 DISCLOSU JU: STATEMENT

Appdlatc Court No: ---------

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 ):


(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


(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 --~~-----------------------------------------------

Phone umber (202) 624-2500 ~---------------------------

Fax Number (202) 628-511 6

E-M<~il Address: [email protected] -------------------------------------------------------rev. 0 1 08 A K


iv

TABLE OF CONTENTS

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

CONCLUSION ........................................................................................................................... 15


v

TABLE OF AUTHORITIES

Page(s)

Cases

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

E.E.O.C. v. Neches Butane Prods. Co., 704 F.2d 144 (5th Cir. 1983) ...................................................................................................11

First Bank v. DJL Props., LLC, 598 F.3d 915 (7th Cir. 2010) .....................................................................................................8

Hart v. FedEx Ground Package Sys. Inc., 457 F.3d 675 (7th Cir. 2006) .....................................................................................................8

Johnson v. Burken, 930 F.2d 1202 (7th Cir. 1991) .............................................................................................1, 10

Pella Corp. v. Saltzman, 606 F.3d 391 (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

Sterk v. Redbox Automated Retail, LLC, 672 F.3d 535 (7th Cir. 2012) .....................................................................................................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


vi

Statutes

Foreign Trade Antitrust Improvements Act, 15 U.S.C. § 6a ...........................................................1

Rules

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


1

STATEMENT RESPECTING INITIAL HEARING EN BANC

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


2

motions papers, the district court granted reconsideration and dismissed Motorola’s complaint

with respect to all the panels delivered overseas—ninety-nine percent of the commerce at issue.

The proceedings in this Court began as a straightforward request for interlocutory review

under 28 U.S.C. § 1292(b). At the behest of both petitioner Motorola and the defendants below,

the district court certified its decision for interlocutory review. Motorola then filed in this Court

its currently pending Petition for Permission to Appeal. Dkt. 1 (Feb. 24, 2014). Appellees

responded, agreeing that the petition should be granted. Dkt. 9 (Mar. 10, 2014).

There has never been any dispute that the standards for review under Section 1292(b) are

easily met here. A motions panel (Posner, Rovner, Kanne, JJ.) promptly acted on that petition,

granting it. Dkt. 14 (Mar. 27, 2014). At that point, the Federal Rules of Appellate Procedure and

this Court’s own rules and operating procedures called for the case to be briefed and argued in

due course before a merits panel. See infra at 7-15.

Notably, no party requested that the motions panel depart from the Court’s ordinary

procedures. None requested that the motions panel decide the merits of the case. None

requested expedited review. For its part, the panel did not make a finding that expedited

treatment was warranted, and no reason for expedited or unusual treatment is apparent.

Nonetheless, without permitting the parties or any amici to submit briefing or argument,

the motions panel sua sponte issued an opinion by Judge Posner affirming the district court’s

judgment on the merits. Dkt. 14 (Mar. 27, 2014). That ruling dramatically circumscribes the

scope of the Sherman Act with respect to global cartels, both in private suits and in federal

criminal prosecutions. The opinion addressed a number of issues that were not raised by

defendants in their limited submissions in this Court, were not the basis for the district court’s

opinion, and (as a consequence) were not addressed by Motorola either. Conversely, the panel


3

did not address a number of significant arguments for reversal, which of course had not been

briefed to it. But the panel opined that, because “the petition and the defendant’s response,

together with the district judge’s opinion explaining her order and the record in the district court,

provide an ample basis for deciding the appeal, we dispense with further briefing and with oral

argument.” Op. 1-2. (The opinion criticized Motorola for being “oblivious” to the practical

consequences of its position, although of course the panel had refused to permit Motorola to

submit a brief or appear for oral argument to explain its position. Op. 9.)

Appellant filed a Petition for Rehearing En Banc. Dkt. 20 (Apr. 24, 2014). The petition

noted that no federal court of appeals had ever before employed the procedure used by the

motions panel in this case: ordering a petitioner’s claim dismissed on the merits without briefing

or argument in the course of granting a petition for leave to appeal under Section 1292(b).

Further, the context of interlocutory review under Section 1292(b) made such a summary

procedure particularly anomalous, because that statute grants this Court jurisdiction only if the

case presents an important legal question “as to which there is substantial ground for difference

of opinion.” 28 U.S.C. § 1292(b).

The Department of Justice filed an amicus brief on behalf of “the United States and the

Federal Trade Commission” supporting Motorola’s petition for rehearing en banc. Dkt. 23 (Apr.

24, 2014). It explained that, in the government’s view, the panel’s ruling was erroneous and

would present substantial obstacles to the criminal prosecution of international cartels that target

this country. Two private amici supported the petition as well. Dkts. 24, 25 (Apr. 24, 2014).

As is appropriate for requests for en banc review, the petition and amicus briefs focused

on the reasons for the full court to review the case, not the merits. The Court ordered defendants

to respond to the en banc petition. Dkt. 26 (Apr. 25, 2014).


4

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.


5

would aid the full court’s understanding of Motorola’s position because the panel had not

permitted it to submit a merits brief. Dkt. 41 (May 28, 2014). Judge Posner denied the motion

personally. Dkt. 44 (May 29, 2014). The same day, Judge Posner personally granted a motion

by a ministry of the Government of Taiwan to file a letter to the en banc court in support of the

panel’s ruling, although that request was out of time, the movant had not sought consent, and the

motion was filed by one defendant’s principal outside counsel. Dkt. 46 (May 29, 2014).

Because the period for an en banc vote was underway, Motorola filed a request—setting

forth no argument—that its motion to file a reply be distributed for decision by the full court

rather than by Judge Posner individually. Dkt. 48 (May 29, 2014). Judge Posner sua sponte

construed that request as a motion for him to reconsider his own prior order and granted it,

ordering the reply distributed. Dkt. 49 (May 30, 2014). Judge Posner also directed the Clerk to

circulate to the en banc court defendants’ opposition to the motion to file a reply, which defends

the panel’s opinion, Dkt. 43 (May 28, 2014), though none of the other motion papers were

circulated, including Motorola’s motion to file a reply, the initial order denying leave to file a

reply, and Motorola’s request for en banc consideration of its motion.

The panel then issued another order to the Solicitor General. Dkt. 50 (June 2, 2014).

Although the Solicitor General had previously explained that the government’s amicus brief was

based on consultations with all the relevant departments of the federal government, which

disagreed with the panel’s assessment of the effect of Motorola’s claim on U.S. foreign relations,

and although the panel had revoked its order to explain which departments had been consulted,

the panel explained that it still had a “special interest” in the views of the Departments of

Commerce and State. The order expressed concern with “the credibility” of the government’s

first brief disagreeing with the panel’s opinion, and stated that a further submission stating the


6

views of those other departments would be “helpful” in that regard. (The order refers to the brief

of the United States as having been filed merely by “the FTC and the antitrust division,” while

characterizing the short submissions by individual ministries of foreign governments as broadly

setting forth the views of “the Republic of Korea” and “Taiwan.”)

The government responded by filing another brief on behalf of “the United States”

authorized by the Solicitor General. This brief was pointedly signed not only by the Assistant

Attorney General for Antitrust and the General Counsel of the Federal Trade Commission, but

also by senior legal officers of both the State and Commerce Departments. Dkt. 57 (June 27,

2014). The brief disagreed at length and in detail with the panel opinion’s view that a legal rule

permitting Motorola’s claim to go forward would harm U.S. foreign relations.

Before the full court acted on the en banc petition, the panel sua sponte vacated its

opinion, Dkt. 58 (July 1, 2014), even though Motorola had sought only rehearing en banc, not

panel rehearing. Having returned the case to its initial status in this Court, the panel in the

ordinary course would have proceeded to make the straightforward determination—on which

Motorola, the defendants, the district court, and the panel itself had all agreed—that this case

satisfies the requirements for interlocutory appeal under Section 1292(b). That determination

would cause the case to be set for orderly briefing, argument, and decision by a merits panel.

But in a parallel order, the panel instead set the case for briefing and argument before it,

although it did not specify whether it planned to decide only the question of appellate jurisdiction

or to go on to decide the merits again. Specifically, the panel imposed an extremely expedited

schedule for the parties to submit “supplemental briefs” (although there were no “opening” briefs

to be “supplemented”) and to appear for oral argument. Dkt. 59 (July 1, 2014). Still no party

had suggested that the case should be expedited, and more than five weeks had passed since


7

defendants had answered the petition for rehearing en banc. But the panel ordered Motorola to

submit its brief five business days later (the briefing spanned the Independence Day holiday),

and further required that the brief be physically printed and received by the panel on the fifth

day. But see Fed. R. App. P. 31(a). It ordered defendants to file their brief a week later. But see

Id. Motorola was not permitted to submit a reply. But see Fed. R. App. P. 28(c). The panel set

the case for argument three business days after submission of defendants’ brief, during a four-

week period in which the Court was not otherwise hearing argument.

Appellant filed a motion seeking clarification, Dkt. 62 (July 2, 2014), to which the panel

promptly responded, Dkt. 63 (July 3, 2014). With respect to Motorola’s inquiry whether the

panel had “jurisdiction over the merits of the appeal, so that the case will not be assigned to a

separate merits panel,” the panel provided no further guidance but instead repeated its prior

statement that “[t]he panel has decided to rehear this appeal.” The order specified that “[n]o

extensions of time will be granted in light of the oral argument scheduled for July 21, 2014.”

REASONS FOR INITIAL HEARING EN BANC

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.

The en banc court has a fundamental interest in ensuring the regularity of its proceedings

and safeguarding the process by which cases are prepared for decision and assigned to particular

panels. Motions panels frequently consider preliminary matters in appeals, including petitions

for permission to appeal under 28 U.S.C. § 1292(b). The consistent practice throughout all the

courts of appeal and the entire history of Section 1292(b) is that the motions panel makes a

preliminary determination whether the case is suited for interlocutory appeal (or defers that

question to a merits panel), and then the case is docketed and assigned to a merits panel for

briefing and argument in the ordinary course. See Hart v. FedEx Ground Package Sys. Inc., 457


8

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.


9

both substantively and procedurally. See, e.g., Editorial Board, A Cramped View of Antitrust

Laws, The Motorola Mobility Ruling and Foreign Cartels, N.Y. Times (Jun. 15, 2004), available

at http://goo.gl/FMBRSr; Alison Frankel, Judge Posner Backs Down (For Now) In Antitrust

Policy Duel With U.S., Reuters (July 2, 2014), available at http://goo.gl/SLXmeb; Jacob

Gershman, Appeals Court Questions Solicitor General in Motorola Antitrust Case, Wall St. J.

Law Blog (May 23, 2013), available at http://goo.gl/ws1LxP.

Because the panel has set the case for renewed consideration—and previously reached

the merits on the basis of the Section 1292(b) submissions—the case is uniquely well suited for

en banc consideration of this practice. By contrast, if the en banc court awaits the panel’s

disposition of the case, then the important procedural question raised by the case may be

subsumed by consideration of the merits. And Motorola may be prejudiced substantially by the

panel’s issuance of an opinion that the panel can only issue in violation of the applicable rules.

This Court accordingly has a unique opportunity to right the procedural ship without affecting

any merits decision one way or the other.

As explained below, the practice at issue is fundamentally inconsistent with circuit

precedent, the Federal Rules of Appellate Procedure, the Local Rules, and Section 1292(b) itself.

But this is not just a question about the consistency of the Court’s procedural law; it is a question

about the integrity of the Court’s proceedings as well. As the Court’s Handbook notes, the

procedures for assigning cases to panels should avoid “even the remote possibility of the

deliberate assignment of an appeal to a particular panel.” Practitioner’s Handbook for Appeals

for the Seventh Circuit at 10 (May 2014 ed.) (“Handbook”). But a procedure under which a

motions panel can decide sua sponte to assume power over the merits—perhaps at the suggestion

of the individual motions judge who first considers the case—raises just that possibility, and with


10

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).


11

It would also leave parties in this Circuit completely adrift. This Court’s oft-cited

opinion in Ahrenholz, 219 F.3d at 678 (Posner, J.), emphatically directs parties submitting and

responding to a Section 1292(b) petition to focus on the Section 1292(b) factors, not the merits.

See id. (forcefully criticizing a “petition to us for permission to take an immediate appeal [that]

does not deign to discuss the statutory criteria [and] merely reargues the case for summary

judgment”). Allowing the procedure at issue here turns that advice into a garbled contradiction.

Henceforth, parties would follow Ahrenholz at their extreme peril—potentially forgoing their one

and only chance to brief the merits. But, of course, if they spend their limited time and space

developing merits arguments, they risk the denigration of the Court (or worse, sanctions) for

failing to focus on the Section 1292(b) factors.

At a minimum, this would constitute terrible judicial policy. Many parties will conclude

that, rather than try to do both “X” and “not X” in only ten days and twenty pages, they should

simply preserve their rights to a full-blown merits proceeding by waiting for final judgment. At

best, that will waste the very chance to preserve judicial resources that Section 1292(b) was

designed to provide. At worst, it will lead parties and outside observers to conclude that this

Circuit’s rules have been intentionally designed to allow the Court to do whatever it wants, and

to arbitrarily criticize or penalize litigants who try in earnest to follow its advice.

Even ignoring binding precedent, however, the Court cannot adopt the procedural

practice at issue (or allow it to continue) because it plainly conflicts with the Federal Rules of

Appellate Procedure as well. See Fed. R. App. P. 47 (local rules must be consistent with the

federal rules). A petition for permission to appeal under Section 1292(b) is governed by Federal

Rule of Appellate Procedure 5, which establishes the limited scope of such a proceeding. The

rule calls for parties to include in their petition a discussion of the basis for appellate jurisdiction,


12

but makes no mention of the merits. See Fed. R. App. P. 5(b)(1). Rule 5 also does not provide

the time or space required for briefing the merits. It provides only ten days to file a petition,

limits the document to twenty pages, grants no right of reply, and adopts a presumption against

oral argument. See id. Rule 5(a)-(b); 28 U.S.C. § 1292(b). Each of those provisions is directly

contrary to the federal rules for merits proceedings. See Fed. R. App. P. 28(a) (different contents

for merits brief); 28(c) (right of reply briefing); 31(a) (forty days for opening brief; fourteen days

for reply brief); 32(a)(7) (longer volume limitations for merits briefing); 34 (strong presumption

in favor of oral argument).

If the motions panel grants permission to appeal, then Rule 5 calls for treating the case as

an ordinary appeal—with ordinary briefing and argument. The rule provides that the motions

panel’s order serves as a “notice of appeal,” and the clerk of court “must enter the appeal on the

docket.” And, consequently, this Circuit’s rule laying out the required contents for merits

briefing provides that, “if this is an appeal by permission under 28 U.S.C. §1292(b),” the party

“must give the particulars and describe the relation between the claims or parties subject to the

appeal and the claims or parties remaining in the district court.” Cir. R. 28(a)(3)(i). By

specifying requirements for merits briefs in Section 1292(b) appeals, the Court’s own rules

obviously contemplate that such merits briefs will be filed.

The extraordinary process at issue also conflicts with Federal Rule of Appellate

Procedure 29(a), which gives the federal government a right to submit its own amicus brief on

the merits in any case. That right serves to avoid situations in which a decision regarding private

litigation will have substantial impact on governmental interests without allowing the

government a right to be heard—exactly as happened here. The absence of ordinary merits

briefing short-circuits the government’s ability to file an amicus brief on the merits, depriving


13

the government (and the public) of an important right that the federal rules provide. That can

lead to erroneous outcomes and extreme prejudice to the public interest.

Under Rule 5, the motions panel’s order granting permission to appeal also triggers the

duty to compile and transmit the record. Fed. R. App. P. 10, 11. Until the case is entered on the

merits docket, the record remains with the district court. The rules serve to ensure that the record

before the court of appeals is accurate and complete, and that the court has the materials required

to evaluate the parties’ arguments and any claims of waiver. See, e.g., Fed. R. App. P. 10(a)(2)

(preparation of transcripts); 10(e) (corrections or modifications); Cir. R. 10(a) (materials to be

included in the record), 10(g) (record requirements governing assertions of waiver). If the

motions proceeding is instead diverted into a summary merits proceeding, the record is never

assembled and transmitted, an accurate and complete appendix is never prepared (see Fed. R.

App. P. 30 and Cir. R. 30 (governing preparation of an appendix)), and the court is deprived of

an appropriate basis on which to rest its decision.

This case is a perfect demonstration of why these rules require scrupulous adherence. The

United States has an obviously substantial interest in the merits of the appeal, yet there has been

no merits briefing. The record apparently still lies exclusively in the district court. Indeed, after

having decided the merits based on its own review of the “record,” the panel in this case later

requested that the government provide it with a brief from a foreign governmental ministry that

was already in that record. Such confusion is easily avoided by following the processes

specified in the Federal Rules of Appellate Procedure.

Nor can this practice be defended based on the (suggestively timed) addition to the

Circuit Handbook, after Motorola sought rehearing en banc of the panel’s since-vacated merits

ruling, of a statement that motions panels may decide the merits if they conclude that “a call for


14

briefs would be nothing but an invitation for the parties to waste their money and the court’s

time.” See http://goo.gl/gxKwCk (Internet Archive Wayback Machine) (archiving both the Mar.

5, 2014 version of the Practitioner’s Handbook for Appeals to the U.S. Court of Appeals for the

Seventh Circuit, which does not contain that entry, and the May 30, 2014 version, which does)

(visited July 4, 2014)). That provision simply cannot apply to Section 1292(b) cases because

they must necessarily present questions as to which there is a substantial ground for

disagreement. See 28 U.S.C. §1292(b). And that is especially obvious here, where the panel

itself has issued “a call for briefs” from the government and has now scheduled oral argument.

This issue likewise falls outside the scope of Operating Procedure 6(d), which states that

“[w]hen a motion panel decides that a motion or petition should be set for oral argument or the

appeal expedited, it may recommend to the chief judge that the matter be assigned for argument

and decision to the same panel. In the absence of such a recommendation, the matter will

ordinarily be assigned in the same manner as other appeals.” This procedure recognizes the

prospect that a motions panel will hear argument on and decide a substantial motion that

overlaps significantly with the merits of the case—for example, a motion for a stay or injunction.

In that circumstance, the expedited nature of the proceedings and the need for consistency in the

Circuit’s jurisprudence may require that a single panel resolve the merits of the case.

Accordingly, Operating Procedure 6(d) refers to cases in which the motion requires oral

argument or the appeal requires expedition, neither of which are even arguably true in this case,

or in any heartland Section 1292(b) case.

So, ultimately, Operating Procedure 6(d) only confirms that this Court should put an end

to the irregular practice of transforming Section 1292(b) filings into opportunities for poorly

briefed merits decisions. The Operating Procedure expressly says that, when it does not apply,


15

“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.


16

Thomas C. Goldstein GOLDSTEIN & RUSSELL, P.C. 5225 Wisconsin Ave. NW Washington, DC 20015

July 9, 2014 (202) 362-0636


17

CERTIFICATE OF COMPLIANCE

The undersigned certifies that the foregoing Petition for Hearing En Banc of Motorola

Mobility, LLC complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because

it is no more than fifteen pages in length, excluding the parts of the petition exempted by Fed. R.

App. P. 32(a)(7)(b)(iii).

The undersigned further certifies that this petition complies with the typeface

requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P.

32(a)(6) because this petition has been prepared in a proportionally spaced typeface using

Microsoft Word Version 97-2003 in 12 point Times New Roman.

/s/ Thomas C. Goldstein


18

CERTIFICATE OF SERVICE

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


19

James A. Morsch BUTLER, RUBIN, SALTARELLI & BOYD 70 W. Madison Street, Suite 1800 Three First National Plaza Chicago, IL 60602

Eugene E. Murphy Jr. MURPHY & HOURIHANE LLC Suite 2550 161 N. Clark Street Chicago, IL 60601

Jeffrey R. Tone KATTEN & TEMPLE LLP 542 S. Dearborn Street, 14th Floor Chicago, IL 60605

William Yu LEWIS BRISBOIS BISGAARD & SMITH LLP 550 W. Adams Street, Suite 300 Chicago, IL 60661

Robert A. Long Jr. Robert D. Wick Derek Ludwin COVINGTON & BURLING LLP 1201 Pennsylvania Avenue N.W. Washington, DC 20004-2401

I further certify that the following participants in the case are not registered CM/ECF

users. On July 9, 2014, two copies of the Petition for Hearing En Banc of Motorola Mobility,

LLC were sent via first-class mail, proper postage prepaid to the following non-CM/ECF

participants:

Carl L. Blumenstein Farshad Farzan Christopher A. Nedeau NOSSAMAN LLP 50 California Street, 34th Floor San Francisco, CA 94111

Jason M. Bussey 2475 Hanover Street Palo Alto, CA 94034

Daniel Cummings ROTHSCHILD, BARRY & MYERS Xerox Centre 55 W. Monroe Street, Suite 3900 Chicago, IL 60603

Jeffrey M. Davidson COVINGTON & BURLING LLP One Front Street San Francisco, CA 94111

Brian H. Getz 44 Montgomery Street Suite 3850 San Francisco, CA 94104

/s/ Thomas C. Goldstein


Documents

MOTOROLA MOBILITY LLC v. AU OPTRONICS CORPORATION En Banc Petition