FTC’S OBJECTIONS TO REPLY MATERIALS

Case No. 17-cv-00220-LHK 

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Jennifer Milici, D.C. Bar No. 987096 

Joseph R. Baker, D.C. Bar No. 490802 

Geoffrey M. Green, D.C. Bar No. 428392 

Daniel Matheson, D.C. Bar No. 502490 

Mark J. Woodward, D.C. Bar. No. 479537 

Federal Trade Commission 

600 Pennsylvania Avenue, N.W. 

Washington, D.C. 20580 

(202) 326-3695; (202) 326-3496 (fax) 

jmilici@ftc.gov 

Attorneys for Plaintiff Federal Trade Commission 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION 

FEDERAL TRADE COMMISSION, 

 Plaintiff 

 v. 

QUALCOMM INCORPORATED, a Delaware 

Corporation, 

 Defendant. 

Case No. 5:17-cv-00220-LHK 

FEDERAL TRADE COMMISSION’S 

OBJECTIONS TO MATERIALS FILED 

WITH QUALCOMM’S REPLY IN 

SUPPORT OF ITS MOTION FOR STAY 

PENDING APPEAL 

Courtroom: 8, 4th Floor 

Judge: Hon. Lucy H. Koh 

Case 5:17-cv-00220-LHK Document 1507 Filed 06/20/19 Page 1 of 3
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FTC’S OBJECTIONS TO REPLY MATERIALS

Case No. 17-cv-00220-LHK

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Pursuant to Local Rule 7-3(d), the FTC objects to materials that Qualcomm filed with its 

reply in support of its motion for a stay pending appeal and new arguments raised for the first 

time on reply. Specifically, the FTC objects to Exhibits C, D, E, and F to the Declaration of M. 

Brent Byars in Support of Qualcomm’s Reply. (ECF Nos. 1506-5, 1506-6, 1506-7, and 1506-8.) 

The Court should disregard Exhibits C, D, and E because they are offered in support of an 

argument raised for the first time in Qualcomm’s reply. See Reply, ECF No. 1506, at 8 (“The 

irreparable harm is exacerbated by the prospect of inconsistencies between the Order and foreign 

regulators.”). Qualcomm did not make this argument in its opening motion, and the argument 

does not respond to any point advanced by the FTC or any amici. The Court should not consider 

it. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir.2007) (“The district court need not consider 

arguments raised for the first time in a reply brief.”); Oak Point Partners, Inc. v. Lessing, No. 11-

CV-03328-LHK, 2012 WL 4121109, at *4 (N.D. Cal. Sept. 18, 2012) (Koh, J.) (same). 

Moreover, these documents were not introduced at trial and are not part of the record in this case. 

In addition, the Court should disregard and strike Exhibit F to the Byars Declaration as 

unfair and prejudicial. See Tech. & Intellectual Prop. Strategies Grp. PC v. Insperity, Inc., No. 

12-cv-3163 LHK, 2012 WL 6001098, at *14 n.6 (N.D. Cal. Nov. 29, 2012) (striking attachments 

to reply brief). Exhibit F is Qualcomm’s opening statement slide presentation in In re Qualcomm 

Litigation, No. 3:17-cv-0108-GPC-MDD (S.D. Cal.). Qualcomm’s reply brief cites to a single 

slide that Qualcomm asserts is an excerpt from an internal Apple document. (Reply, ECF No. 

1506, at 7 n.4.)1 Qualcomm did not introduce any such document at trial in this case. Had 

Qualcomm sought to introduce a document with the content excerpted in the slide, the document 

would have been the subject of high priority objection procedures mandated by the Court and 

 

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 The excerpts cited in footnote 4 also do not respond to any new argument raised by the FTC or 

amici. Indeed, the footnote quoting purported excerpts of an undated and unadmitted document 

does not even support the argument in the text of Qualcomm’s reply brief. Moreover, the 

footnote improperly asserts that the cited document is an “internal Apple document listing 

strategies”—without any support for the proposition that the document lists Apple strategies and 

without authentication of the document. 

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testimony by an Apple witness. Had the document survived a high priority objection, an Apple 

witness may have testified to, among other things, the document’s context and purpose and the 

meaning of the cited language. Any such testimony would then have been part of the record on 

appeal in this case. Qualcomm’s attempt to introduce excerpts from a document that it obtained 

in pre-trial discovery via a post-trial stay reply circumvents procedures intended to test the 

relevance and reliability of proffered evidence, and thus is unfair and prejudicial to the FTC. 

Beyond this single slide, submission of Qualcomm’s Southern District slide presentation 

as a whole is improper, unfair, and prejudicial. The slides contain excerpts from and counsel’s 

summaries of other materials that Qualcomm had prior to trial and yet chose not to offer as 

evidence in this case. The slides were not subject to the meet and confer and high-priority 

objection procedures mandated by this Court before opening (and closing) slides were presented 

in this case. As a non-party in the Southern District case, the FTC had no opportunity to confer 

about, object to, or respond to the slides that Qualcomm now tries to insert into the record in this 

case. 

The FTC respectfully requests that the Court (i) disregard Exhibits C, D, E, and F to the 

Byars Declaration and Qualcomm’s argument that the Court’s order is inconsistent with foreign 

regulators’ requirements; and (ii) strike Exhibit F to the Byars Declaration. 

 Respectfully submitted, 

Dated: June 20, 2019 /s/ Jennifer Milici 

JENNIFER MILICI 

JOSEPH R. BAKER 

GEOFFREY M. GREEN 

DANIEL MATHESON 

MARK J. WOODWARD 

Bureau of Competition 

Attorneys for Plaintiff Federal Trade 

Commission

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