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Case: 19-15159, 08/02/2019, ID: 11385910, DktEntry: 80-1, Page 1 of 13

No. 19-15159

UNITED STATES COURTS OF APPEALS

FOR THE NINTH CIRCUIT

IN RE QUALCOMM ANTITRUST LITIGATION


_____________________________________________________

Appeal from the United States District Court


For the Northern District of California,
Docket No. 17-md-02773-LHK,
The Honorable Lucy H. Koh, District Judge

Plaintiffs-Appellees’ Motion for Judicial Notice

Kalpana Srinivasan (237460) Joseph W. Cotchett (36324)


ksrinivasan@susmangodfrey.com jcotchett@cpmlegal.com
SUSMAN GODFREY L.L.P. COTCHETT, PITRE & MCCARTHY,
1900 Avenue of the Stars, Suite 1400 LLP
Los Angeles, CA 90067 840 Malcolm Road, Suite 200
Telephone: (310) 789-3100 Burlingame, CA 94010
Facsimile: (310) 789-3150 Telephone: (650) 697-6000
Facsimile: (650) 697-0577

Counsel for Plaintiffs-Appellees


(Additional Counsel Listed on Inside Page)
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Marc M. Seltzer Adam Zapala


mseltzer@susmangodfrey.com azapala@cpmlegal.com
Steven G. Sklaver Mark F. Ram
ssklaver@susmangodfrey.com mram@cpmlegal.com
Amanda Bonn Michael A. Montaño
abonn@susmangodfrey.com mmontano@cpmlegal.com
Oleg Elkhunovich COTCHETT, PITRE &
oelkhunovich@susmangodfrey.com MCCARTHY
Krysta Kauble Pachman 840 Malcolm Road, Suite 200
kpachman@susmangodfrey.com Burlingame, CA 94010
SUSMAN GODFREY L.L.P. Telephone: (650) 697-6000
1900 Avenue of the Stars, Suite 1400 Facsimile: (650) 697-0577
Los Angeles, CA 90067
Telephone: (310) 789-3100 Plaintiffs’ Co-Lead Counsel
Facsimile: (310) 789-3150
Steve W. Berman
Joseph Grinstein steve@hbsslaw.com
jgrinstein@susmangodfrey.com HAGENS BERMAN SOBOL
SUSMAN GODFREY L.L.P. SHAPIRO LLP
1000 Louisiana Street, Suite 5100 1918 Eighth Avenue, Suite 3300
Houston, TX 77002 Seattle, WA 98101
Telephone: (713) 651-9366 Telephone: (206) 268-9320
Facsimile: (713) 654-6666 Facsimile: (206) 623-0594

Katherine M. Peaslee Jeffrey D. Friedman


kpeaslee@susmangodfrey.com jefff@hbsslaw.com
SUSMAN GODFREY L.L.P Rio S. Pierce
1201 Third Street, Suite 3800 riop@hbsslaw.com
Seattle, WA 98101 HAGENS BERMAN SOBOL
Telephone: (206) 516-3880 SHAPIRO LLP
Facsimile: (206) 516-3883 715 Hearst Avenue, Suite 202
Oakland, CA 94618
Plaintiffs’ Co-Lead Counsel Telephone: (510) 725-3000
Facsimile: (510) 725-3001

Plaintiffs’ Steering Committee


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Pursuant to Federal Rule of Evidence 201, Plaintiffs-Appellees (“Plaintiffs”)

move this Court to take judicial notice of the following materials that are relevant

to the instant appeal and are not reasonably subject to dispute:

(1) Judge Lucy H. Koh’s order following the bench trial on antitrust claims

against Qualcomm brought by the FTC (Federal Trade Commission v.

Qualcomm, Inc., No. 17-CV-00220-LHK, 2019 WL 2206013 (N.D.

Cal. May 21, 2019) (“FTC Order”)), attached as Exhibit A;

(2) Qualcomm’s public testimony to the International Trade Commission

(ITC) as set forth in Respondent Qualcomm Incorporated’s Post-

Hearing Submission of Responses to Commission Questions

Regarding Remedy and the Public Interest, submitted in In the Matter

of Certain Baseband Processor Chips and Chipsets, Transmitter and

Receiver (Radio) Chips, Power Control Chips, and Products

Containing Same, Including Cellular Telephone Handsets,

Investigation No. 337-TA-43 (USITC April 5, 2007), attached as

Exhibit B; and

(3) Qualcomm, Inc.’s SEC form 10-Q for the quarter ended March 31,

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2019, reporting on the April 2019 settlement reached between Apple,

Inc. and Qualcomm including the settlement of outstanding royalty

payments owed by Apple, attached as Exhibit C.

Plaintiffs contacted counsel for Qualcomm on July 31, 2019, to seek

Qualcomm’s position on this motion. Qualcomm responded on August 1, 2019,

and in subsequent communications, that it did not consent to Plaintiffs’ motion at

that time. As of filing, Qualcomm has not changed its position.

ARGUMENT

I. Federal Rule of Evidence 201 Permits Judicial Notice of Facts Not


Subject to Reasonable Dispute.

Federal Rule of Evidence 201(b) grants this Court authority to take judicial

notice of a fact that is “not subject to reasonable dispute” because it “can be

accurately and readily determined from sources whose accuracy cannot reasonably

be questioned.” Fed. R. Evid. 201(b)(2). A court “must” take judicial notice of

relevant facts if a party requests notice and supplies the court with the necessary

information. Fed. R. Evid. 201(c).

Documents that cannot reasonably be disputed and are therefore properly

subject to judicial notice include “the records of an inferior court in other cases.”

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United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (citing 9 WRIGHT AND

MILLER, FEDERAL PRACTICE AND PROCEDURE § 2410, at 359–61 (1971)). Similarly,

matters of public record are subject to judicial notice. See, e.g., DeHoog v.

Anheuser-Busch InBev SA/NV, 899 F.3d 758, 763 n.5 (9th Cir. 2018), cert. denied,

139 S. Ct. 1267, 203 L. Ed. 2d 278 (2019) (granting motion “to take judicial notice

of government documents, court filings, press releases, and undisputed matters of

public record”); Dudum v. Arntz, 640 F.3d 1098, 1102 n.6 (9th Cir. 2011)

(judicially noticing information published on municipal website); Daniels-Hall v.

Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010) (judicially noticing

information on government website).

II. The Limited Facts for Which Plaintiffs Seek Judicial Notice are Subject
to Notice under Federal Rule of Evidence 201.

A. The FTC Order is Relevant and Cannot Reasonably be Disputed.

This Court “may take judicial notice of court filings and other matters of

public record.” Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6

(9th Cir. 2006); see United States v. Navarro, 800 F.3d 1104, 1110 (9th Cir. 2015)

(judicially noticing unpublished district court orders).

The FTC’s case against Qualcomm involves the same anticompetitive

conduct alleged by Plaintiffs in this action. Compare 2ER134–52 (Plaintiffs’ First

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Amended Consolidated Complaint alleging that Qualcomm (1) required OEMs to

take a license to its patent portfolio prior to purchasing its modem chips,

(2) refused to license its competitors, and (3) entered exclusive dealing

arrangements with Apple) with Ex. A at *137–38 (enjoining Qualcomm from, inter

alia, (1) requiring OEMs to take a license to its patent portfolio prior to purchasing

its modem chips, (2) refusing to license its competitors, and (3) maintaining

exclusive dealing arrangements with Apple). Judge Koh’s findings of fact and

conclusions of law following the bench trial held in the FTC case are thus relevant

to the instant appeal because they collaterally estop Qualcomm from relitigating

the fact of its anticompetitive conduct as found there by Judge Koh. See Parklane

Hosiery Co., Inc. v. Shore, 439 U.S. 322, 332–37 (1979).

In Parklane Hosiery, the Supreme Court held that findings from a bench trial

may apply via collateral estoppel in a subsequent jury matter, and that estoppel is

appropriate particularly where (1) it would not “reward a private plaintiff who

could have joined the prior [] action”; (2) the defendant had adequate incentive to

litigate the prior suit “fully and vigorously”; (3) the prior judgment was not

inconsistent with any earlier judgment; and (4) the later action would not afford the

defendant any procedural opportunities that were unavailable in the earlier action

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and would be likely to change the result. Id. at 332. Each of these conditions holds

true here: Class Plaintiffs could not have joined the FTC matter; Qualcomm had

“every incentive” to vigorously defend against the FTC’s action, given both the

seriousness of the FTC’s claims and the pending private actions based on the same

facts; Judge Koh’s decision in the FTC action is not inconsistent with any prior

ruling; and Qualcomm does not have additional procedural opportunities in the

instant case likely to change to the result of Judge Koh’s Order. That Order

accordingly has collateral estoppel effect and its findings regarding the same

anticompetitive conduct alleged by Plaintiffs are relevant to the instant appeal.1

In In re Korean Air Lines Co., Ltd., 642 F.3d 685 (9th Cir. 2011), this Court

judicially noticed the filed documents in a multidistrict litigation pending against

the same defendants for the same claims based on the same underlying conduct as

was at issue in the Korean Air Lines appeal. Id. at 689 n.1. The Court should

1
The fact that Qualcomm has appealed Judge Koh’s order in the FTC matter
does not change the analysis or prevent application of her findings on collateral
estoppel. Hawkins v. Risley, 984 F.2d 321, 324 (9th Cir. 1993); see 18A WRIGHT
AND MILLER, FED. PRAC. & PROC. JURIS. § 4433 (3d ed.) (“[I]n federal courts . . .
the preclusive effects of a lower court judgment cannot be suspended simply by
taking an appeal that remains undecided.”).

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similarly take judicial notice of the FTC Order setting forth Judge Koh’s findings

of fact and conclusions of law in the recently concluded bench trial finding the

same defendant liable for the very same conduct at issue here.

B. Qualcomm’s Testimony to the ITC is Relevant and Cannot


Reasonably be Disputed.

The Court may judicially notice the position taken by Qualcomm in a

publicly-filed judicial submission. See, e.g., S & H Packing & Sales Co. v.

Tanimura Distrib., Inc., 850 F.3d 446, 451 n.4 (9th Cir.), reh’g en banc granted on

other grounds, 868 F.3d 1047 (9th Cir. 2017) (judicially noticing “parties’

positions as set forth in their briefs” filed in another matter); Reyn’s Pasta Bella,

442 F.3d at 746 n.6 (taking judicial notice of parties’ briefs in other courts and the

transcript of the related proceedings to determine arguments made in that

proceeding).

Qualcomm argues in its present appeal that wireless carriers’ subsidization

and discounting of the cellphone prices paid by consumers—“sometimes to

zero”—indicates that those carriers do not pass any overcharge on to consumers.

Appeal Br. (“Br.”) at 32–33. But Qualcomm took a different position in its

testimony to the ITC: There, Qualcomm argued that an increase in the price of

cellphone handsets is passed on to consumers by wireless carriers such as Verizon

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and Sprint in the form of service fees and more expensive service plans. Ex. B at

p.19. Indeed, Qualcomm expressly explained that “[i]f companies such as Verizon

and Sprint have to pay more for their handsets, even if they give them away for

free they have to get that money back in the monthly service fee.” Id. Qualcomm

further confirmed that “[e]ven if the increased cost to consumers of switching to

PDAs or smartphones were subsidized by a cellular company, that’s going to lead

to higher service prices per minute for consumers.” Id. (internal quotation marks

omitted). These statements, which are a matter of public record and cannot

reasonably be disputed, are relevant because they directly contradict Qualcomm’s

arguments on appeal. This public testimony is thus subject to judicial notice here.

C. Qualcomm’s SEC form 10-K Reporting on its Settlement of


Outstanding Apple Royalty Payments is Relevant and Cannot
Reasonably be Disputed.

Qualcomm argues that because Apple (through its contract manufacturers)

withheld royalty payments on devices sold after 2016, Apple could not have passed

on any royalty overcharge to its post-2016 customers. Br. at 37–40. As Plaintiffs

explain in their response brief, this argument ignores that while Apple may not

have been paying royalties to Qualcomm after 2016, Qualcomm still continued to

charge those royalties, and Apple accounted for that charge in its pricing to

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consumers. Qualcomm’s statements in its SEC form 10-K for the quarter ending

March 31, 2019, confirm these circumstances: Qualcomm reports that it settled its

ongoing royalty dispute with Apple in an agreement under which Apple would pay

Qualcomm $4.5 to $4.7 billion, which expressly included settling the

approximately $960 million owed from “the short payment in the second quarter of

fiscal 2017 of royalties by and deemed collectible from Apple’s contract

manufacturers.” Ex. C at pp. 14 & 42.2 Qualcomm’s statements in its public filing

with the SEC are directly relevant to showing that Qualcomm continued to charge

Apple royalties even when royalty payments were being withheld—and indeed that

Apple ultimately ended up paying.

Statements publicly filed with an administrative agency such as the SEC are

not reasonably subject to dispute and are thus properly subject to judicial notice.

See, e.g., Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991) (taking

judicial notice of company’s filings with the SEC). Plaintiffs thus respectfully

request the Court take judicial notice of Qualcomm’s statements in its SEC form

10-K for the quarter ending March 31, 2019, attached here as Exhibit C.

2
This settlement was reached after the district court issued its order granting
certification of Plaintiffs’ class.
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CONCLUSION

For the reasons above, Plaintiff-Appellees respectfully request the Court

take judicial notice of the documents attached as Exhibits A through C, which are

relevant to this proceeding and are not reasonably subject to dispute.

Dated: August 2, 2019 KALPANA SRINIVASAN


MARC M. SELTZER
STEVEN G. SKLAVER
JOSEPH GRINSTEIN
AMANDA BONN
OLEG ELKHUNOVICH
SUSMAN GODFREY LLP

JOSEPH W. COTCHETT
ADAM ZAPALA
MARK F. RAM
MICHAEL A. MONTAÑO
COTCHETT, PITRE & MCCARTHY,
LLP

By: /s/ Kalpana Srinivasan


Kalpana Srinivasan
Attorneys for Respondents-Plaintiffs

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME, TYPEFACE,


AND TYPE-STYLE REQUIREMENTS

This certification is made pursuant to Fed. R. App. P. 32(g). This document

complies with the type-volume limit of Fed. R. App. P. 27(d)(2)(A)-(B) (maximum

of 5,200 words and 20 pages) because, excluding the parts of the document

exempted by Fed. R. App. P. 32(f), this document contains 1,723 words on 8

pages.

This document 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

document has been prepared in a double-spaced typeface using Microsoft Word in

Times New Roman type style with 14-point font.

Dated: August 2, 2019 By: /s/ Kalpana Srinivasan


Kalpana Srinivasan
Attorneys for Plaintiffs-Appellees

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the

Court for the United States Court of Appeals for the Ninth Circuit by using the

appellate CM/ECF system on August 2, 2019.

Participants in the case who are registered CM/ECF users will be served by

the appellate CM/ECF system.

I further certify that some of the participants in the case are not registered

CM/ECF users. I have mailed the foregoing document by First-Class, postage


prepaid, or have dispatched it to a third-party commercial carrier for delivery

within 3 calendar days to the following non-CM/ECF participants:

Jeremiah F. Hallisey Gwendolyn Giblin


HALLISEY & JOHNSON BERMAN DeVALERIO
300 Montgomery Street 44 Montgomery Street, Suite 650
Suite 538 San Francisco, CA 94104
San Francisco, CA 94104

/s/ Kalpana Srinivasan

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