Case: 19-15159, 08/02/2019, ID: 11385871, DktEntry: 79-1, Page 1 of 11

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 Leave to Supplement the Record or in the

Alternative for Judicial Notice

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

ksrinivasan@susmangodfrey.com
SUSMAN GODFREY L.L.P.
1900 Avenue of the Stars, Suite 1400
Los Angeles, CA 90067
Telephone: (310) 789-3100
Facsimile: (310) 789-3150
jcotchett@cpmlegal.com
COTCHETT, PITRE & MCCARTHY,
LLP
840 Malcolm Road, Suite 200
Burlingame, CA 94010
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 Appellate Procedure 10(e), Federal Rule of

Evidence 201, and this Court’s inherent power, Plaintiffs-Appellees (“Plaintiffs”)

move for leave to supplement the record to include certain documents that are part

of the record in the district court, but which were filed after entry of the order now

on appeal. These documents are necessary to provide a full picture of the

circumstances surrounding this litigation and Plaintiffs’ ability to provide due

process notice to the class.

Plaintiffs seek leave to supplement the record with the following attached

documents filed in the district court:

 Plaintiffs’ Motion to Approve the Form and Manner of Class Notice and the

district court’s Order granting that motion (Dkt. Nos. 783 & 815), Exs. A &

B;

 Plaintiffs’ Request for Guidance Regarding the Dissemination of Class

Notice and the district court’s order granting that request (Dkt. Nos. 840 &

841), Exs. C & D; and

 Plaintiffs’ Notice of Compliance with the Court’s Order Approving the

Form and Manner of Class Notice, along with the declaration of Linda V.

Young and declaration exhibits filed in support of that Notice (Dkt. Nos.

863–863-5), Exs. E–J.

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Should the Court decline to grant Plaintiffs leave to supplement the record

with this material, Plaintiffs move in the alternative for the Court to take judicial

notice of these publicly-filed court records pursuant to Federal Rule of Evidence

201.

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. The Court Should Supplement the Record with Filings Related to

Plaintiffs’ Plan for Class Notice Filed in the District Court.

Federal appellate courts have authority to supplement the record on appeal.

See, e.g., Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003). Federal Rule of

Appellate Procedure 10(e)(3) expressly provides that a court of appeals may

determine the “form and content” of the record. Furthermore, the Court’s inherent

equitable powers includes the authority to supplement the appellate record. See

Dickerson v. Alabama, 667 F.2d 1364, 1367 & n.5 (11th Cir 1982). And the Court

has wide latitude to suspend any provision of the rules for good cause and to “order

proceedings as it directs.” Fed. Rule App. Proc. 2. The determination of “whether

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an appellate record should be supplemented under the particular circumstances of a

case is a matter left to the discretion of the federal courts of appeals.” Dickerson,

667 F.2d at 1367 & n.5.

The documents with which Plaintiffs seek to supplement the record are

critical to providing this Court with an accurate picture of the circumstances of this

case, and specifically of Plaintiffs’ notice to class members. Qualcomm contends

in its opening appeal brief that Plaintiffs could not possibly provide a plan for

notice to the class that comports with due process. See Appeal Br. at 44. But

Qualcomm’s purported concerns are belied by the fact that it did not oppose

Plaintiffs’ Motion to Approve the Form and Manner of Class Notice, Exs. A & B;

Plaintiffs’ dissemination of notice to the class proceeded after the action was

stayed in the district court, Exs. C & D; and class notice has now actually been

provided, Exs. E & F. Full understanding of the context surrounding Qualcomm’s

argument regarding Plaintiffs’ purported inability to provide adequate class notice

requires consideration of the attached notice-related filings in the district court.

This Court has granted motions to supplement the record on appeal to allow

correction of misleading statements in the appellate record. Mangini v. United

States, 314 F.3d 1158, 1160 (9th Cir.), opinion amended on denial of reh’g, 319

F.3d 1079 (9th Cir. 2003) (allowing supplementation of the record on appeal to

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correct misleading statement in the record created by filed affidavit). Qualcomm’s

opening appeal brief states that the district court “brushed aside all issues” related

to notice, “relying on plaintiffs’ counsel’s ‘imagination’ to do so.” Appeal Br. at

49. But Qualcomm’s statement ignores that when the time came to actually

approve Plaintiffs’ notice to the class, (1) Qualcomm did not oppose Plaintiffs’

notice plan—thus raising none of the supposed “issues” Judge Koh purportedly

failed to consider at certification, and (2) Plaintiffs’ notice plan was supported by

ample law and evidence establishing its compliance with due process. See Ex.

A. Documents showing the (unopposed) basis for Plaintiffs’ class notice plan and

the fact of its actual execution should be included in the appellate record to correct

Qualcomm’s misleading suggestion that Judge Koh failed to adequately consider

any “issues” regarding notice to the class.

Further relevant considerations for an appellate court’s exercise of its

discretion to supplement the record include whether remand to the district court for

consideration of any newly presented materials would be in the interest of justice

and efficiency, and whether the opposing party was aware of the newly provided

materials. Dickerson, 667 F.2d at 1367–68. With respect to the former

consideration, there is nothing new for the district court to consider—each

document Plaintiffs now submit was either filed before the district court or issued

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by that court itself. As for the latter consideration, Qualcomm certainly cannot

claim to be unaware of documents publicly filed with the district court in this

matter. Indeed, Qualcomm was well aware of Plaintiffs’ Motion to Approve the

Form and Manner of Notice, the district court’s approval of Plaintiffs’ class notice

plan, and the fact that dissemination of notice was proceeding during the pendency

of its appeal when it filed its opening appeal brief—though it chose to ignore each

of them.

II. In the Alternative, the Court Should Take Judicial Notice of Documents
Related to Plaintiffs’ Class Notice Filed in the District Court.

Under Federal Rule of Evidence 201(b)(2), a court may 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.” It is well settled that an appellate court’s “own records in other cases,

as well as the records of an inferior court in other cases” fall within this category of

documents noticeable under Rule 201(b)(2). 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)). Here, the documents in question are even

more clearly within the category of documents “not subject to reasonable dispute,”

as they are records filed in the district court in this case.

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In Kasey v. Molybdenum Corporation of America, 336 F.2d 560, 563 (9th

Cir. 1964), this Court explained it was taking judicial notice of decisions rendered

by the California District Court of Appeal in a prior series of actions between the

same parties so that the Court would have “a better understanding of the

complicated factual situation here existing.” Id. at 563. Similarly here, a full

understanding of the facts and circumstances surrounding Plaintiffs’ plan for class

notice and the feasibility of disseminating notice to the class—a task Plaintiffs

have already completed—warrants judicially noticing the documents related to

class notice publicly filed in this case.

CONCLUSION

For the reasons above, Plaintiff-Appellees respectfully request leave to

supplement the record with notice-related documents filed in the district court

following the district court’s order granting class certification, attached here as

Exhibits A through J. In the alternative, Plaintiffs request the Court take judicial

notice of these publicly-filed court records.

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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 1,259 words on 6

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