BRIEF RE OFFER OF PROOF 

Case No. 5:17-CV-00220-LHK-NMC 

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KEKER, VAN NEST & PETERS LLP 

Robert A. Van Nest - # 84065 

rvannest@keker.com 

Eugene M. Paige - # 202849 

epaige@keker.com 

Justina Sessions - # 270914 

jsessions@keker.com

633 Battery Street 

San Francisco, CA 94111-1809 

Telephone: 415 391 5400 

Facsimile: 415 397 7188 

CRAVATH, SWAINE & MOORE LLP 

Gary A. Bornstein (pro hac vice) 

gbornstein@cravath.com 

Yonatan Even (pro hac vice) yeven@cravath.com 

825 Eighth Avenue 

New York, New York 10019-7475 

Telephone: (212) 474-1000 

Facsimile: (212) 474-3700 

Attorneys for Defendant 

QUALCOMM INCORPORATED 

MORGAN, LEWIS & BOCKIUS LLP 

Richard S. Taffet (pro hac vice)

richard.taffet@morganlewis.com 

101 Park Avenue 

New York, NY 10178-0060 

Telephone: (212) 309-6000 

Facsimile: (212) 309-6001 

MORGAN, LEWIS & BOCKIUS LLP 

Willard K. Tom (pro hac vice)

willard.tom@morganlewis.com 

1111 Pennsylvania Avenue NW 

Washington, DC 20004-2541 

Telephone: (202) 739-3000 

Facsimile: (202) 739-3001 

MORGAN, LEWIS & BOCKIUS LLP 

Geoffrey T. Holtz (SBN 191370) 

gholtz@morganlewis.com 

One Market, Spear Street Tower 

San Francisco, CA 94105-1596 

Telephone: (415) 442-1000 

Facsimile: (415) 442-1001 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION 

FEDERAL TRADE COMMISSION, 

Plaintiff, 

v. 

QUALCOMM INCORPORATED, 

a Delaware corporation, 

Defendant. 

NO. 5:17-CV-00220-LHK-NMC 

DEFENDANT QUALCOMM 

INCORPORATED’S BRIEF RE OFFER 

OF PROOF 

JUDGE: Hon. Lucy H. Koh 

Trial Date: January 4, 2019

 

Case 5:17-cv-00220-LHK Document 1394 Filed 01/23/19 Page 1 of 4
2 BRIEF RE OFFER OF PROOF 

Case No. 5:17-CV-00220-LHK-NMC 

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Defendant Qualcomm Incorporated (“Qualcomm”) submits this brief to apprise the Court 

of the status of the parties’ meet and confer that the Court directed on the subject of Qualcomm’s 

offer of proof pursuant to Fed. R. Evid. 103 regarding evidence of competitive conditions after 

March 30, 2018. 

As the Court directed, Qualcomm provided its draft offer of proof to the FTC on Tuesday, 

January 22, 2018. The parties met and conferred by telephone on January 23, 2018 and 

exchanged proposals regarding a procedure for Qualcomm to make its offer of proof. However, 

as of the time of this filing, the parties have not been able to come to an agreement. 

The FTC insists that this issue must be resolved now during Qualcomm’s case, and that 

Qualcomm expend its trial time to make the offer of proof. It further insists that the FTC should 

have the opportunity to object to Qualcomm’s proffer, but without offering that it will do so 

during its own trial time. Qualcomm has advised the FTC that the FTC’s proposal would impose 

unnecessary and additional burdens on both Qualcomm and the Court, and that it would be filing 

this brief. The FTC confirmed that it will file its response brief by 12:00 noon on January 24th. 

By this brief Qualcomm asks the Court to accept its written proffer or allow Qualcomm to 

orally present its proffer in Court on January 25, 2019 before the testimony of Alex Rogers and 

Aviv Nevo. Qualcomm has the right under Rule 103 of the Federal Rules of Evidence to submit 

an offer of proof in order to preserve for appeal any claim of error in an evidentiary ruling. Fed. 

R. Evid. 103(a)(2) (“if the ruling excludes evidence, a party informs the court of its substance by 

an offer of proof . . .”); see United States v. Serrano, 582 F. App'x 729, 730 (9th Cir. 2014) (under 

Federal Rule of Evidence 103(a)(2), court of appeals cannot review a claim of improper exclusion 

of evidence where that evidence was not presented to the district court); see also United States v. 

Vardanian, 116 F.3d 487 (9th Cir. 1997)( the court of appeals “cannot review a claim of improper 

exclusion of evidence where the evidence was not presented to the court”); United States v. 

Pacheco, 912 F.2d 297, 304 (9th Cir. 1990) (“We cannot review evidence that was not presented 

to the district court”). It would be error for the Court to refuse to permit Qualcomm to make an 

offer of proof under Rule 103. United States. v. James, 510 F.2d 546, 551 (5th Cir. 1975) (“The 

judge erred in refusing to allow James' counsel to make an offer of proof”). 

Case 5:17-cv-00220-LHK Document 1394 Filed 01/23/19 Page 2 of 4
3 BRIEF RE OFFER OF PROOF 

Case No. 5:17-CV-00220-LHK-NMC 

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As represented in court, the evidence that is the subject of Qualcomm’s offer of proof 

includes: (a) 59 5G license agreements signed after March 30, 2018; (b) 5G modem 

announcements from Samsung, Intel, and MediaTek; and (c) FCC announcements regarding the 

rollout of 5G. This evidence is directly relevant to the questions of whether the FTC can meet its 

burden of proof to establish that Qualcomm’s challenged conduct violates the antitrust laws and 

whether the FTC is entitled to the injunctive relief it seeks in this case, and, if so, its scope. All of 

this evidence post-dates the March 30, 2018 fact discovery deadline. It was not included on 

Qualcomm’s trial exhibit list as Qualcomm was mindful that such evidence had been excluded by 

the Court’s orders. (See Dkts. 995, 997, 1015.) 

Qualcomm therefore requests the opportunity to make its proffer either in writing or orally 

before it calls its witnesses on Friday, January 25, 2018. 

Dated: January 23, 2019 

By: 

KEKER, VAN NEST & PETERS LLP 

/s/ Robert A. Van Nest 

 Robert A. Van Nest (SBN 84065) 

Eugene M. Paige (SBN 202849) 

Justina Sessions (SBN 270914) 

KEKER, VAN NEST & PETERS LLP 

633 Battery Street 

San Francisco, CA 94111-1809 

Telephone: (415) 391-5400 

Facsimile: (415) 397-7188 

rvannest@keker.com 

epaige@keker.com 

jsessions@keker.com 

 Gary A. Bornstein (pro hac vice)

Yonatan Even (pro hac vice)

CRAVATH, SWAINE & MOORE LLP 

Worldwide Plaza 

825 Eighth Avenue 

New York, NY 10019-7475 

Tel.: (212) 474-1000 

Fax: (212) 474-3700 

gbornstein@cravath.com 

yeven@cravath.com 

Case 5:17-cv-00220-LHK Document 1394 Filed 01/23/19 Page 3 of 4
4 BRIEF RE OFFER OF PROOF 

Case No. 5:17-CV-00220-LHK-NMC 

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 Richard S. Taffet (pro hac vice)

MORGAN, LEWIS & BOCKIUS LLP 

101 Park Avenue 

New York, NY 10178-0060 

Tel.: (212) 309-6000 

Fax: (212) 309-6001 

richard.taffet@morganlewis.com 

 Willard K. Tom (pro hac vice)

MORGAN, LEWIS & BOCKIUS LLP 

1111 Pennsylvania Avenue NW 

Washington, DC 20004-2541 

Tel.: (202) 739-3000 

Fax: (202) 739 3001 

willard.tom@morganlewis.com 

 Geoffrey T. Holtz (SBN 191370) 

MORGAN, LEWIS & BOCKIUS LLP 

One Market, Spear Street Tower 

San Francisco, CA 94105-1596 

Tel.: (415) 442-1000 

Fax: (415) 442-1001 

gholtz@morganlewis.com 

 Attorneys for Defendant 

QUALCOMM INCORPORATED 

Case 5:17-cv-00220-LHK Document 1394 Filed 01/23/19 Page 4 of 4