JOINT CASE MANAGEMENT STATEMENT

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Counsel Listed on Signature Page 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION 

FEDERAL TRADE COMMISSION, 

Plaintiff, 

vs. 

QUALCOMM INCORPORATED, a 

Delaware corporation, 

Defendant. 

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

JOINT CASE MANAGEMENT 

STATEMENT 

DATE: October 24, 2018 

TIME: 2:00 p.m. 

CTRM: Courtroom 8 

JUDGE: Hon. Lucy H. Koh 

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Pursuant to the Court’s September 7, 2018 Order Continuing Further Case Management 

Conference (ECF No. 826), Plaintiff Federal Trade Commission (the “FTC”) and Defendant 

Qualcomm Incorporated (“Qualcomm”) (collectively, the “Parties”) have met and conferred and 

submit this Joint Case Management Statement, which reports on developments since the Parties 

filed the September 5, 2018 Joint Case Management Statement. (“CMS”, ECF No. 820) 

I. MOTIONS 

A. Previously Filed Motions 

Since the September 5, 2018 CMS, the Parties have completed briefing on the belowlisted motions. The Court took the Motions under submission on October 12, 2018. (ECF 

No. 900.) 

 Federal Trade Commission’s Motion To Exclude Expert Testimony of Dr. Edward 

A. Snyder;1

 Federal Trade Commission’s Motion To Exclude Expert Testimony of 

Professor Aviv Nevo;2

 Federal Trade Commission’s Motion for Partial Summary Judgment;3

 Qualcomm Incorporated’s Motion To Strike Portions of Rebuttal Expert Report of 

Dr. Robert Akl;4 and 

 Qualcomm Incorporated’s Motion To Exclude Expert Reports of Richard L. 

Donaldson.5

On September 21, 2018, the Court denied Qualcomm’s Motion for Leave to Take the 

Trial Deposition of an Imminently Unavailable Expert Witness. (ECF No. 865.) 

On October 15, 2018, the Parties jointly filed an Administrative Motion To Defer the 

Court’s Ruling on the FTC’s Motion for Partial Summary Judgment, which the Court denied later 

 

1

 ECF No. 788 (Motion); ECF No. 874 (Opposition); ECF No. 891 (Reply). 

2

 ECF No. 790 (Motion); ECF No. 873 (Opposition); ECF No. 889 (Reply). 

3

 ECF No. 792 (Motion); ECF No. 870 (Opposition); ECF No. 893 (Reply); ECF No. 898 

(Objections to Reply Evidence). 

4

 ECF No. 797 (Motion); ECF No. 866 (Opposition); ECF No. 894 (Reply). 

5

 ECF No. 799 (Motion); ECF No. 868 (Opposition); ECF No. 896 (Reply). 

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that day. (ECF Nos. 902, 903.) 

B. Motions in Limine 

The Court’s September 7, 2018 Order Continuing Further Case Management Conference 

(ECF No. 826) required the Parties to be prepared to discuss limits on the number of motions in 

limine that may be filed in this case. The Parties agree that three or fewer motions in limine per 

Party are likely to be sufficient (without prejudice to raising additional issues at trial), consistent 

with Paragraph D(2) of the Court’s Guidelines for Pretrial Conferences in Bench Trials. 

C. Deadlines for Joint Filings 

FTC’s Position

In order to facilitate the orderly submission of joint filings to the Court, and in light of 

several missed deadlines in connection with Qualcomm’s recent Daubert and summary judgment 

opposition filings, the FTC has proposed and the Parties have discussed setting a mutually 

agreeable deadline by which joint filings, including Joint Sealing Motions and Joint Case 

Management Statements, must be completed. The FTC has proposed a deadline of 7:00 p.m. 

Pacific Time for the substantive completion of such filings, after which the parties would agree to 

make no further changes. Contrary to Qualcomm’s contention below, the FTC has articulated 

why it has a renewed interest in the Parties reaching an agreement as to timing. As Qualcomm 

notes below, the process for joint sealing motions requires considerable coordination between the 

FTC and Qualcomm (and often third parties as well), and would proceed more efficiently in 

general if all parties involved were working toward a concrete, workable interim deadline. 

Particularly where additional steps must be taken after the finalization of joint filings (e.g., in the 

case of joint sealing papers that are ancillary to a motion), it would benefit both the FTC and 

Qualcomm to have an enforceable deadline for the substantive completion of filings.6

 

 

6

 Qualcomm filed its oppositions to the FTC’s Daubert motions early on September 25, after the 

midnight September 24 filing deadline. (ECF 873, 874.) The FTC wishes to avoid being at risk of 

missing ECF filing deadlines where it must file jointly with Qualcomm. Recent errors in 

connection with the filing of under seal and public versions of exhibits further reinforce the need 

for earlier coordination. See ECF No. 907 (Ordering Qualcomm to file under seal correct, 

unredacted versions of certain exhibits). 

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Qualcomm’s Position 

While Qualcomm shares the FTC’s interest in ensuring the orderly submission of joint 

filings to the Court, it does not believe that a departure from the deadline established by Local 

Civil Rule 5-1(e)(4) is appropriate, especially because the Court, Qualcomm and its relevant 

employees, and many of Qualcomm’s counsel are located in the Pacific time zone and not the 

Eastern time zone. See also Fed. R. of Civ. Pro. 6(a)(4)(A). The FTC has not articulated any 

meaningful reason why a departure from the applicable rules—a request the Court previously 

denied—is uniquely necessary in this case. (See Apr. 13, 2017 Order (ECF No. 72).) 

If anything, the work necessary to prepare sealing papers makes it more difficult to 

complete joint filings by the deadline proposed by the FTC. As Qualcomm has explained to the 

FTC, the Parties’ ability to finalize joint filings depends on the FTC timely providing Qualcomm 

with the information Qualcomm needs to prepare its contribution to the joint filing. For example, 

with respect to joint motions to seal papers filed by the FTC, the FTC must first identify to 

Qualcomm what confidential Qualcomm material the FTC intends to file so that Qualcomm can 

then assess whether to seek sealing of that information, provide the basis on which Qualcomm 

seeks sealing and obtain declarations in support of sealing from knowledgeable Qualcomm 

employees that must accompany the joint motion to seal. If the FTC identifies the confidential 

information it will file to Qualcomm late in the day that a filing is due (as has happened), then 

Qualcomm likely would not be able to make a sealing determination and provide the necessary 

information in time to meet the 7:00 p.m. Pacific deadline proposed by the FTC.7

II. PRETRIAL SCHEDULE 

In the Court’s September 7 Order, the Court ordered that the parties may advance pretrial 

 

7

 The FTC’s reference to “missed deadlines” is unwarranted. The opposition papers the FTC 

references were finalized and timely served on the FTC prior to midnight on the day they were 

due. Qualcomm also finalized and obtained the FTC’s signatures on the accompanying joint 

motions to seal and attorney declarations several hours prior to that. As Qualcomm has explained 

to the FTC, the documents were filed on the ECF system after midnight solely because of 

(a) technical issues that initially caused the ECF system to reject Qualcomm’s filings, and (b) the 

need to assemble various documents accompanying the joint motion to seal, such as third-party 

declarations. 

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filing and exchange deadlines by agreement. (ECF No. 826.) The Parties report that they have 

mutually agreed to establish the following deadlines for pretrial filings and exchanges: 

Date Filing or Exchange 

November 1, 2018  Parties to exchange initial lists of proposed stipulated facts 

November 8, 2018  Parties to exchange preliminary lists of exhibits to be offered at 

trial (other than solely for impeachment or rebuttal) and the 

information required by Paragraph B(8) of the Court’s 

Guidelines for Pretrial Conferences in Bench Trials (the 

“Guidelines”)8

 Parties to exchange preliminary witness lists, identifying which 

witnesses each Party expects to call live or by deposition 

 Parties to exchange initial deposition designations 

November 21, 2018  Parties to exchange lists of additional witnesses (identifying 

which witnesses each party expects to call live or by 

deposition) prompted by the other Party’s November 8 witness 

or exhibit lists 

 Parties to exchange lists of additional exhibits to be offered at 

trial (other than solely for impeachment or rebuttal) prompted 

by the other Party’s November 8 witness or exhibit lists and, 

for such additional exhibits, the information required by 

Paragraph B(8) of the Guidelines9

 

8

 The Parties have met and conferred and have also agreed in principle to identify documents for 

inclusion on a joint exhibit list. 

9

 By November 29, each party may add exhibits to be included in the Joint Pretrial Statement if it 

reasonably anticipates counter-designating deposition testimony concerning such exhibits. The 

Parties agree that any exhibit included in the Joint Pretrial Statement that was not identified until 

after November 21 shall be treated as though it were not identified in the Joint Pretrial Statement 

if neither party counter-designates deposition testimony discussing that exhibit. 

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 Parties to exchange deposition designations for witnesses that 

each Party adds to their witness list on this date 

November 29, 2018  Parties to file Joint Pretrial Statement pursuant to Section B of 

the Guidelines 

 Parties to exchange stamped copies of exhibits identified in 

Joint Pretrial Statement pursuant to Paragraph D(1) of the 

Guidelines 

 Each Party to file motions in limine pursuant to Paragraph D(2) 

of the Guidelines 

December 3, 2018  Each Party to file oppositions to motions in limine pursuant to 

Paragraph D(2) of the Guidelines 

December 6, 2018  Each Party to file proposed findings of fact and conclusions of

law pursuant to Paragraph D(4) of the Guidelines 

December 10, 2018  Parties to exchange counter-designations of deposition 

testimony and objections to initial deposition designations 

December 13, 2018  Pretrial conference (ECF No. 678) 

December 17, 2018  Parties to exchange objections to deposition counterdesignations 

December 21, 2018  Parties to file deposition designations and objections pursuant

to Paragraph D(3) of the Guidelines 

December 28, 2018  Parties to deliver pre-marked exhibits listed in Joint Pretrial

Statement to the Court pursuant to Paragraph D(1)(c) of the 

Guidelines 

January 4, 2019  Trial begins (ECF No. 678) 

To facilitate the Parties’ pre-trial preparations and planning of their trial presentations, and 

without prejudice to either Party’s right to attempt to persuade the Court that good cause exists to 

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adopt a particular approach in this case, the Parties respectfully request the Court’s guidance 

concerning the following trial-related matters: 

 Trial exhibits. The Parties request guidance as to whether the Court anticipates limiting 

the number of exhibits that may be identified in the Joint Pretrial Statement, and, if so, 

request the opportunity to present proposals as to appropriate limits in this case. The 

Parties intend to continue conferring on how to efficiently accomplish the presentation of 

documentary evidence, including after they make an initial exchange of exhibit lists 

pursuant to the schedule shown above. 

 Objections to trial exhibits. The Parties request the Court’s guidance concerning whether 

the Court has a preference concerning the manner and timing of the submission of 

objections to exhibits listed in the Joint Pretrial Statement: for example, whether the 

Court would prefer (1) the submission of objections to all listed exhibits at some specified 

time in advance of the beginning of trial or (2) the submission of objections to specific 

exhibits that a party states it anticipates using in connection with particular testimony, at 

some specified time in advance of that testimony.10

 Trial schedule. The Parties request the Court’s guidance concerning whether the Court 

anticipates using the normal trial schedule stated in Section E of the Guidelines (i.e., 

Mondays, Tuesdays and Fridays from 9 a.m. to 4:30 p.m.). 

 Post-trial briefing. The Parties request the Court’s guidance concerning whether the Court 

would permit the submission of post-trial briefing, either in addition to or in lieu of the 

optional pre-trial briefs provided for by Paragraph D(5) of the Guidelines. 

III. PARTY DISCOVERY 

The Parties have met and conferred regarding the treatment of evidence of events 

occurring after the fact discovery cutoff in this case, including whether, how, and to what extent 

such evidence may be used at trial. 

 

10 In order to facilitate any later exchange of objections, the Parties have agreed that each Party’s 

preliminary list of exhibits may designate up to 500 exhibits to which the opposing party would 

be required to provide objections, if any, by November 21, 2018. 

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FTC’s Position

Qualcomm has informed the FTC that it intends to introduce at trial evidence from 

Qualcomm’s confidential files that post-dates the March 30, 2018 close of fact discovery, beyond 

the two license agreements that are the subject of the FTC’s pending motion to exclude portions 

of Prof. Nevo’s proposed testimony. ECF No. 790. As stated in the FTC’s pending motion, 

Qualcomm should not be permitted to introduce at trial cherry-picked evidence from its 

confidential files that has not been the subject of full discovery. FTC Nevo Reply, ECF No. 889, 

at 3-4. Qualcomm argues that this problem can be cured by requiring the FTC to identify 

supplemental discovery that would be needed on the topics on which Qualcomm plans to 

introduce post-discovery evidence. But it is now too late to conduct the discovery that would be 

required to probe the post-discovery evidence that Qualcomm seeks to introduce. In any event, 

further discovery is not needed to resolve the FTC’s claims that the conduct challenged in this 

case violates the FTC Act and to order any appropriate equitable relief. 

a. The FTC’s Request for Equitable Relief Does Not Require Further Discovery 

In this case, the FTC alleges that Qualcomm has violated the FTC Act over a period of 

years through a series of inter-related and long-standing policies and actions, and seeks equitable 

relief that would prevent Qualcomm from engaging in the challenged conduct in the future. FTC 

Compl., ECF No. 1, at 32. Qualcomm suggests that the Court may not issue a forward-looking 

injunction without allowing the defendant to present evidence that post-dates the close of fact 

discovery. That is not so. If the FTC establishes at trial that Qualcomm violated the FTC Act in 

the past, the Court may issue an injunction if the illegal conduct is “ongoing or likely to recur.” 

FTC v. Evans Prods. Co., 775 F.2d 1084, 1087 (9th Cir. 1985).11 The Court can make that 

determination based upon the existing discovery record, and is not obliged to either permit 

 

11 As set forth in the FTC’s pending motion to exclude Prof. Nevo’s testimony, past unlawful 

conduct is “highly suggestive of the likelihood of future violations,” CFTC v. Yu, No. 12-cv3921-YGR, 2012 WL 3283430, at *4 (N.D. Cal. Aug. 10, 2012) (quoting CFTC v. Hunt, 591 

F.2d 1211, 1220 (7th Cir. 1979)), and in a government antitrust case, “all doubts as to the remedy 

are to be resolved in [the government’s] favor.” United States v. E.I. du Pont de Nemours & Co., 

366 U.S. 316, 334 (1961). ECF 889, at 7. 

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discovery to drag on up to the eve of trial or to consider evidence proffered by Qualcomm that 

has not been fairly explored through discovery. 

The cases that Qualcomm cites below do not support the proposition that further discovery 

is needed in this case and did not address discovery at all. Qualcomm’s cited precedent involves 

conduct that, unlike the conduct here, had ceased when the complaint was filed. See, e.g., FTC v. 

Evans Prods., 775 F.2d at 1087 (“Evans’ alleged misrepresentations ceased in 1982 long before 

the FTC’s complaint was filed on January 11, 1985”); FTC v. AbbVie Inc., No. 14-5151, 2018 

WL 3830533, at *35 (E.D. Pa. June 29, 2018) (finding that defendant’s two sham lawsuits, 

concluded before the FTC’s complaint was filed, did not establish a pattern or practice of filing 

sham litigation).12 The courts in these cases therefore did not address whether post-discovery 

evidence was required to issue an injunction. Here, in contrast, evidence at trial will establish that 

the core challenged conduct—including Qualcomm’s “no license-no chips” policy and its refusal 

to license competitors—is ongoing. See FTC v. World Wide Factors, Ltd., 882 F.2d 344, 347 

(9th Cir.1989) (affirming injunction where defendant continued to engage in challenged 

practices). Moreover, the FTC is prepared to show at trial a cognizable danger of recurrence of 

Qualcomm’s use of market power in modem chips to leverage non-FRAND license terms. This 

is enough for the Court to enjoin future violations of the FTC Act. See F.T.C. v. Medlab, Inc., 

615 F. Supp. 2d 1068, 1082 (N.D. Cal. 2009).13

Indeed, Qualcomm provides no authority—and none appears in the Federal Rules—

 

12 In FTC v. Merch. Servs. Direct, LLC, No. 13-CV-0279-TOR, 2013 WL 4094394, at *3 (E.D. 

Wash. Aug. 13, 2013), the Court denied a temporary restraining order sought at the outset of 

litigation and directed the parties to propose a schedule for a preliminary injunction hearing. The 

court subsequently entered a Stipulated Order resolving the case, which included injunctive relief. 

See FTC v. Merch. Servs. Direct, LLC, No. 13-CV-0279-TOR, 2014 WL 12796213 (E.D. Wash. 

Nov. 25, 2014); see also Stipulation and Order, 

https://www.ftc.gov/system/files/documents/cases/141125merchantstip.pdf.

13 Qualcomm’s reliance on Los Angeles News Service v. CBS Broadcasting, Inc., 305 F.3d 924, 

930 (9th Cir. 2002), is misplaced. See FTC Nevo Reply, ECF No. 889, at 5. And in Whittaker 

Corp. v. Execuair Corp., 736 F.2d 1341, 1347-48 (9th Cir. 1984), the Court reversed an order 

denying plaintiff’s request to admit into evidence documents obtained from the defendant through 

discovery in a separate action between the parties. In contrast, here Qualcomm is seeking to 

admit its own documents created after the close of fact discovery. 

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requiring discovery to be refreshed up to the eve of trial in actions in which equitable relief is 

sought. And if, as Qualcomm contends, the mere fact that the FTC seeks equitable relief provides 

an automatic justification for supplementing the evidentiary record closer to trial, it could have 

built additional time to conduct discovery on current conditions into the case schedule at the 

outset of this litigation. See April 12, 2018 Joint Case Management Statement at Exhibit A 

(Qualcomm scheduling proposal, with fact discovery closing in November 2018 and trial 

approximately eight months later). 

b. It Is Now Too Late to Conduct Meaningful Discovery 

The FTC has consistently stated that it has been willing to consider proposals to reopen 

discovery, but it is now too late to conduct even targeted further discovery, particularly given the 

breadth of the subject matters that Qualcomm seeks to address through post-discovery evidence. 

By way of background, nearly a year ago, the Parties informed the Court that “Qualcomm 

believes that recent competitive conditions will be relevant to the defenses it plans to assert” and 

that they were “negotiating the scope of any potential production relating to recent competitive 

conditions.” Joint Case Management Statement, Nov. 8, 2017, ECF No. 286. At that time, the 

FTC had expressed “concern[s] that such documents will not be produced in a timely manner that 

is consistent with the discovery schedule, and that the breadth of any additional production may 

prejudice the FTC’s ability to conduct discovery regarding Qualcomm’s defenses.” Id. The 

Parties then proceeded to negotiate the scope of a limited refresh production of documents from 

agreed-upon custodians through September 2017, though they disagreed about the necessary 

timing of the refresh production and presented their competing scheduling proposals to the Court 

on December 8, 2017. ECF No. 378. 

In addressing the need for future refresh productions, the FTC explained its position that 

“whether the Court should, in its discretion, reopen discovery at some later date based on events 

that have not yet occurred will depend on the relevance of the additional discovery, the time to 

trial, and whether a party will be prejudiced, among other factors.” ECF No. 378.14 The Parties 

 

14 Qualcomm references below a proposal that it claims the FTC made during a December 1 meet 

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then “agreed to meet and confer regarding the need for a further refresh of discovery closer to 

trial and the scope of any such refresh.” Id. At that time, the Court ordered Qualcomm to 

complete its production of refresh documents to the FTC by December 18, 2017, ordering that all 

fact discovery in this matter conclude on March 30, 2018. Order Amending Case Schedule, Dec. 

13, 2017, ECF No. 389. 

Until last week, the FTC had not heard from Qualcomm about post-discovery evidence in 

nearly eight months. While the Parties have met and conferred regarding various discovery 

subjects up to and until the close of discovery, there has been no discussion of any potential 

further discovery refresh since February 2018. During the week of October 8, 2018, following 

the submission of the FTC’s pending motion to exclude portions of Prof. Nevo’s testimony that 

rely on license agreements produced after the close of discovery, Qualcomm identified a series of 

post-discovery facts that it believes should be presented to the Court, including recent Qualcomm 

license agreements and information relating to Qualcomm’s market power. Qualcomm advised 

the FTC that the FTC should propose further discovery if it believes it needs more information 

about the post-discovery evidence that Qualcomm plans to introduce. 

The Court has clarified that any evidence presented at trial must derive from “full 

discovery,” and not “cherry picked custodians.” Hr’g Tr. 27:16 17. It is now too late to conduct 

even targeted further discovery that meets the Court’s standard. Under the Parties’ agreed-to 

schedule, supra, the initial exchange of exhibit lists is scheduled for November 8, and under the 

Guidelines, the Parties must exchange stamped exhibits on November 29. The Parties’ 

experience with discovery in this case demonstrates that it is not possible to conduct in mere 

weeks the party and likely third-party discovery necessary to provide a sufficient post-discovery 

evidentiary record. 

This is particularly true given the broad topics on which Qualcomm states that the record 

should be supplemented: (1) OEMs’ alleged reduced reliance on Qualcomm, which bears on 

 

and confer, but the FTC’s position was explicitly set forth in the December 8 filing. The FTC has 

never proposed—nor agreed to—a refresh of discovery on broad and complex topics, the scope of 

which would not be negotiated until October 2018. 

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Qualcomm’s market power, and (2) recent Qualcomm license agreements. Documents and data 

relating to OEM purchasing decisions over time and related market power changes, if any, are the 

subject of many hundreds of pages of disclosed expert opinion in this case. Conducting 

additional discovery on such fact-intensive topics would require not only extensive data analysis, 

but also substantial third-party discovery (including document collections and depositions) from 

OEMs regarding their purchasing decisions. 

Similarly, discovery regarding Qualcomm’s recent license agreements would require 

discovery into the context in which each license was negotiated, including the leverage brought to 

bear by Qualcomm in negotiations. This endeavor would also be highly fact-specific, requiring 

discovery into the chip-supply relationships and needs of the licensees, and other information 

about licensees’ motivation to enter into agreements with Qualcomm. Such discovery would 

require the assessment of documents and testimony from a range of Qualcomm employees, as 

well as third-party discovery from licensees. And while Qualcomm presupposes that recent 

agreements were “demonstrably unaffected by any chip leverage,” establishing whether license 

agreements were in fact influenced by chip supply or other business considerations would require 

substantial detailed discovery.15 

This does not mean, however, that the FTC seeks to conduct the trial with blinders on. 

Either party may, if it wishes, present evidence to the Court that is equally accessible to both 

parties—including, for example, evidence from public sources regarding recent events. But the 

issue here is whether Qualcomm may introduce cherry-picked evidence from Qualcomm’s own 

confidential files where there is no longer sufficient time to conduct discovery regarding that 

evidence. See FTC Nevo Reply, ECF No. 889, at 4, 7. 

c. It is not the FTC’s Burden to Propose Supplemental Discovery 

Finally, the FTC disagrees with Qualcomm’s suggestion that it is incumbent upon the 

FTC to identify the evidence it believes is necessary to probe the post-discovery facts from 

 

15 See also FTC Nevo Mot., ECF 790, at 2 n.3 (post-discovery licenses appear to include terms 

covering multiple standards—where licensees’ reliance on Qualcomm for the contemporaneous 

supply of modem chips is outside of the discovery record). 

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Qualcomm’s confidential files that Qualcomm seeks to introduce at trial. Rather, if Qualcomm 

had intended to rely on post-discovery evidence, it was Qualcomm’s obligation to identify that 

evidence, propose supplemental discovery, and seek the Court’s leave to conduct that additional 

discovery. Qualcomm has not done so. And while it now seeks a process for establishing a 

supplemental discovery protocol, it is simply too late to conduct further discovery, as set forth 

above. The FTC thus respectfully requests that the Court clarify that Qualcomm will not be 

permitted to introduce at trial cherry-picked evidence from its confidential files that has not been 

the subject of full discovery.

Qualcomm’s Position 

The FTC has asked the Court to enter a prospective injunction, which is something the 

Court cannot do on a stale record. The FTC concedes above, as it must, that it has to “show at 

trial a cognizable danger of recurrence” of Qualcomm’s alleged “use of market power in modem 

chips to leverage non-FRAND license terms” in the future. The FTC asserts that it is prepared to 

make this showing on the basis of the current discovery record, but it improperly seeks to deny 

Qualcomm any opportunity to rebut the FTC’s purported showing with evidence of more recent 

events that bear directly on this issue. For example, the FTC apparently intends to object to 

testimony and other evidence from Qualcomm showing that the Apple iPhone models launched in 

September and October 2018 do not use any Qualcomm baseband processors. But it would be 

plain error for the Court to find after trial that Qualcomm could in the future “leverage” market 

power in the baseband processor markets alleged by the FTC, without even considering that 

Apple and others have determined that they have alternatives to purchasing from Qualcomm. 

Contrary to the FTC’s assertions above, however, Qualcomm does not seek to unilaterally 

introduce “cherry-picked evidence from its confidential files”. Rather, Qualcomm repeatedly has 

offered to discuss with the FTC the scope of any supplemental discovery that the FTC believes 

would be necessary to ensure the fair presentation of such evidence while maintaining the trial 

schedule established by the Court. 

Although the scope of the FTC’s request that the Court “clarify that Qualcomm will not be 

permitted to introduce at trial cherry-picked evidence from its confidential files” is not entirely 

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clear, the FTC apparently seeks to preclude Qualcomm from offering relevant documents that 

were not in existence until after the close of fact discovery, including documents that already 

have been produced to the FTC, and the FTC may also be seeking to bar Qualcomm from 

offering any evidence (such as testimony from Qualcomm or third-party employees) concerning 

post-discovery events unless Qualcomm can show that such evidence is “equally accessible to 

both parties”.16 But because the FTC has requested forward-looking injunctive relief, the Court 

cannot assess Qualcomm’s conduct based on an outdated record that no longer reflects current 

conditions in the cellular industry. See FTC v. Evans Prods. Co., 775 F.2d 1084, 1087 (9th Cir. 

1985) (holding that preliminary injunctive relief was precluded where the anticompetitive conduct 

was neither ongoing nor likely to recur, even if the defendant had engaged in anticompetitive 

conduct in the past); FTC v. AbbVie Inc., No. 14-5151, 2018 WL 3830533, at *35 (E.D. Pa. June 

29, 2018) (denying the FTC’s request for injunctive relief because “the FTC has presented no 

evidence that defendants are currently violating antitrust laws or about to violate antitrust laws”); 

FTC v. Merch. Servs. Direct, LLC, No. 13-CV-0279-TOR, 2013 WL 4094394, at *3 (E.D. Wash. 

Aug. 13, 2013) (declining to enter injunctive relief because the FTC’s evidence about the 

defendant’s conduct was two years old and the FTC did not present evidence of likely “future 

violations of the FTC Act”).17

The FTC seeks to distinguish this precedent on the basis that “core challenged conduct—

including Qualcomm’s ‘no license-no chips’ policy and its refusal to license competitors—is 

 

16 It would be error for the Court to conclude that any evidence created after the close of fact 

discovery is necessarily inadmissible at trial for that reason alone. See Los Angeles News 

Service v. CBS Broad., Inc., 305 F.3d 924, 933-34 (9th Cir. 2002); Whittaker Corp. v. Execuair 

Corp., 736 F.2d 1341, 1347 (9th Cir. 1984). 

17 FTC v. Medlab, cited by the FTC above, does not support its argument because there the 

defendant had offered “no evidence to rebut the FTC’s claim that he is likely to continue” making 

misrepresentations about a product, in violation of the FTC Act. 615 F. Supp. 2d 1068, 1082 

(N.D. Cal. Apr. 21, 2009). Accordingly, the court concluded that there was no factual dispute 

that “there is a cognizable danger that he will persist in these violations” and therefore granted 

summary judgment to the FTC. Id. The court did not suggest that the defendant should be 

precluded from offering contemporaneous evidence bearing on that issue, as the FTC suggests 

here. Neither CFTC v. Yu nor United States v. E.I. du Pont de Nemours, also cited by the FTC, 

addressed the FTC’s burden of proof in cases governed by the FTC Act. 

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ongoing”, but the FTC ducks the critical question of whether Qualcomm’s alleged market power 

is “ongoing”. This case involves a purported monopoly in certain types of baseband processors. 

To be sure, the “core conduct” cited by the FTC includes Qualcomm’s practice of not selling 

modem chips to handset manufacturers that are not licensed to, and therefore infringe, 

Qualcomm’s cellular SEPs. But, by the FTC’s own admission, this practice standing alone is not

sufficient to establish that Qualcomm “is violating, or is about to violate” the Federal Trade 

Commission Act, as the FTC must show to obtain an injunction. 15 U.S.C. § 53(b)(1).18 As the 

FTC has argued, “[c]ore to the FTC’s theory is Qualcomm’s ability to leverage its modem chip 

monopoly in licensing negotiations”. (Nevo Mot. at 3 (ECF No. 790) (emphasis added); see also 

Compl. ¶¶ 37, 47, 86, 87; Opening Report of FTC proposed expert Prof. Carl Shapiro ¶ 260 

(“Fundamentally, Qualcomm’s no-license/no-chip policy involves the use of Qualcomm’s market 

power in modem chips to raise the royalty on its cellular SEPs above a reasonable level”) 

(emphasis added).) Without proof that Qualcomm currently has a “modem chip monopoly”, the 

FTC cannot establish that Qualcomm has any “leverage” in licensing negotiations to obtain 

higher royalties. Deposition of FTC proposed expert Richard Donaldson at 187:11-13 (“If 

Qualcomm wasn’t providing anything needed by the OEM, then they couldn’t use the threat of 

nonsupply as leverage.”). 

To provide the Court with updated information necessary to consider the FTC’s request 

for a prospective injunction—without upsetting the Court’s trial schedule—Qualcomm has sought 

to meet and confer with the FTC about appropriate means for supplementing the record with 

evidence of events that occurred after the close of fact discovery. Until recently, the FTC has 

taken the position that it would be unproductive to discuss supplemental discovery “based on 

events that have not yet occurred” but it had agreed “to meet and confer regarding the need for a 

 

18 For this reason, FTC v. World Wide Factors does not support the FTC’s argument. In that case, 

the FTC proved that the defendants were “attempting to continue their fraudulent activities” that 

would constitute violations of the FTC Act, and the court held that these “attempts to engage in 

further fraudulent activity” were a sufficient basis to grant an injunction. 882 F.2d 344, 347 (9th 

Cir. 1989). But, unlike the “fraudulent activity” at issue in World Wide Factors, Qualcomm’s 

chip supply practice does not even arguably violate the FTC Act in the absence of the market 

power the FTC has conceded is core to its case. 

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further refresh of discovery closer to trial”. (Dec. 8, 2017 Joint Case Management Statement 

at 5-6 (ECF No. 378).) During a meet and confer on December 1, 2017, the FTC itself suggested 

that the window between summary judgment and the final pretrial conference could be an 

appropriate time to engage in supplemental discovery. As described below, Qualcomm has 

identified to the FTC specific, recent events that it believes should be part of the record, and it has 

offered to provide reasonable discovery the FTC believes it needs regarding those events. 

Qualcomm has also asked the FTC to identify whether there are other recent events that the FTC 

believes should be part of the record. Rather than attempt to negotiate a reasonable scope of 

discovery to permit the presentation of an up-to-date record (without “cherry-picking”), the FTC 

now takes the position that it is “not possible” to conduct any supplemental discovery before trial 

and that the Court must therefore ignore critical facts occurring since the close of fact discovery. 

In particular, Qualcomm has proposed the following subjects for supplementation of the 

record. First, the record should include recent evidence demonstrating that major OEMs, 

including Apple, have reduced or eliminated their purchases of baseband processors from 

Qualcomm for their so-called “flagship” phones and for phones that implement CDMA and LTE 

standards. For example, it has been widely reported that Apple has sourced cellular modems 

exclusively from Intel, and not from Qualcomm, for all of its 2018 iPhone models. This 

information bears directly on essential elements of the FTC’s claims, including whether 

Qualcomm has market power in alleged markets for CDMA and “premium LTE” modem chips 

(Compl. ¶ 131) and whether Qualcomm’s challenged conduct has excluded its competitors from 

supplying cellular phone manufacturers, especially Apple, which the FTC has deemed a 

“particularly important” cellular phone manufacturer (Compl. ¶¶ 3(d), 136). Contrary to its 

assertion that it does not expect the Court to “conduct the trial with blinders on”, the FTC 

apparently intends to object to the presentation of evidence by Qualcomm on these critical facts. 

Second, the record should include evidence demonstrating that major handset 

manufacturers have recently reached license agreements with Qualcomm, during a time when 

Qualcomm demonstrably lacks market power in any relevant alleged market. For example, 

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Qualcomm has recently executed license agreements concerning 5G technologies when 

Qualcomm does not supply 5G modem chips in commercial quantities and no handset 

manufacturer sells 5G devices. Accordingly, such license agreements were demonstrably 

unaffected by any alleged market power; there is no market for 5G modem chips at this point.19 

Evidence of these recent license agreements—which have all been produced and identified to the 

FTC—is directly responsive to the FTC’s contentions that the “anticompetitive effects from the 

Qualcomm policies at issue in this case” will “continue into the future”. See, e.g., Rebuttal 

Report of Prof. Carl Shapiro ¶ 113; see also Opening Report of Prof. Carl Shapiro ¶ 313 (opining 

that “though recent erosion of Qualcomm’s monopoly power in those markets might eventually 

diminish Qualcomm’s ability to implement” the challenged practices, “the industry’s imminent 

transition to 5G standards may afford Qualcomm an opportunity to renew and fortify that 

ability”). The FTC asserts that it would require “substantial detailed discovery” to determine 

whether the agreements “were in fact influenced by chip supply”. However, as noted, there is 

currently no commercial market for 5G chips or 5G cellular devices, and Qualcomm has in any 

event offered to discuss how to conduct reasonable discovery concerning whether the agreements 

were “influenced by chip supply” (such as by limiting the scope to license agreements with key 

OEMs selected by both Parties). In any event, the Court could not enter injunctive relief 

regarding 5G license agreements without this actual evidence of 5G license agreements. 

Qualcomm believes that the Court should not accept the FTC’s invitation to exclude all 

evidence of events post-dating the close of fact discovery (unless “equally accessible to both 

parties”). Qualcomm has been and is prepared to engage in discovery of relevant recent events to 

avoid the FTC’s “cherry-picking” concerns. The Parties should be ordered to promptly submit an 

agreed discovery protocol for the Court’s approval (with any specific disputes noted for the 

Court’s resolution) addressing (i) any supplemental discovery that the FTC believes is necessary 

to ensure the fair presentation of this evidence and other information the FTC may wish to present 

regarding recent competitive conditions in the cellular industry, and (ii) how to conduct a 

 

19 Two of these 5G agreements are addressed in the FTC’s Motion to Exclude Expert Testimony 

of Professor Aviv Nevo. (ECF No. 790.) 

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reasonable scope of supplemental discovery without interfering with the trial schedule established 

by the Court. Given the importance of this issue, if the Court is inclined to consider the FTC’s 

request to exclude this critical evidence, Qualcomm respectfully requests the opportunity to fully 

brief the issue in connection with an expedited motion. 

Dated: October 24, 2018 

Respectfully submitted, 

FEDERAL TRADE COMMISSION, 

s/ Jennifer Milici 

Jennifer Milici 

J. Alexander Ansaldo 

Joseph R. Baker 

Elizabeth A. Gillen 

Daniel Matheson 

Mark Woodward 

Federal Trade Commission 

600 Pennsylvania Avenue, N.W. 

Washington, D.C. 20580 

(202) 326-2912; (202) 326-3496 (fax) 

jmilici@ftc.gov 

Attorneys for Federal Trade Commission

By: 

CRAVATH, SWAINE & MOORE LLP 

s/ Gary A. Bornstein 

 

Gary A. Bornstein

Yonatan Even 

CRAVATH, SWAINE & MOORE LLP 

Worldwide Plaza 

825 Eighth Avenue 

New York, NY 10019 

Tel: (212) 474-1000 

Fax: (212) 474-3700 

gbornstein@cravath.com 

yeven@cravath.com 

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Robert A. Van Nest 

Eugene M. Paige 

Justina Sessions 

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

Richard S. Taffet 

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 

MORGAN, LEWIS & BOCKIUS LLP 

1111 Pennsylvania Ave. NW 

Washington, DC 20004-2541 

Tel: (202) 739-3000 

Fax: (202) 739 3001 

willard.tom@morganlewis.com 

Donn P. Pickett 

Geoffrey T. Holtz 

MORGAN, LEWIS & BOCKIUS LLP 

One Market, Spear Street Tower 

San Francisco, CA 94105-1126 

Tel: (415) 442-1000 

Fax: (415) 442-1001 

donn.pickett@morganlewis.com 

geoffrey.holtz@morganlewis.com 

 Attorneys for Defendant Qualcomm 

Incorporated

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FILER’S ATTESTATION 

I, Gary A. Bornstein, am the ECF user whose identification and password are being used 

to file this Joint Case Management Statement. In compliance with Civil Local Rule 5-1(i)(3), I 

hereby attest that the signatories on this document have concurred in this filing. 

s/ Gary A. Bornstein 

Gary A. Bornstein

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