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1348395.2 ADMIN. MOTION OF THE AMERICAN ANTITRUST 

INSTITUTE TO FILE MEMO AS AMICUS CURIAE

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

Eric B. Fastiff (State Bar No. 182260)

efastiff@lchb.com 

LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 

275 Battery Street, 29th Floor 

San Francisco, CA 94111-3339 

Telephone: 415.956.1000 

Facsimile: 415.956.1008 

Counsel for Proposed Amicus Curiae 

The American Antitrust Institute 

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

ADMINISTRATIVE MOTION OF THE 

AMERICAN ANTITRUST INSTITUTE TO 

FILE MEMORANDUM AS AMICUS 

CURIAE (LOCAL RULE 7-11) 

Judge: The Hon. Lucy H. Koh 

 
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1348395.2 - 1 - 

ADMIN. MOTION OF THE AMERICAN ANTITRUST 

INSTITUTE TO FILE MEMO AS AMICUS CURIAE

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

RELIEF REQUESTED 

The American Antitrust Institute (“AAI”) hereby moves the Court, pursuant to Local Rule 

7-11, for leave to file a memorandum as amicus curiae to assist the Court in deciding defendant’s 

motion to dismiss. The proposed brief is attached as Exhibit A to the accompanying Declaration 

of Richard M. Brunell (“Brunell Decl.”). Counsel for the Federal Trade Commission (FTC) 

advises that the FTC does not oppose the filing an AAI amicus brief. Counsel for Qualcomm 

advises that “Qualcomm will defer to the Court’s discretion on AAI’s motion for leave to file an 

amicus brief but requests that, if the Court grants the motion, Qualcomm be given two additional 

pages in its reply brief on the motion to dismiss, to be used only if and as necessary to respond to 

statements or arguments made by AAI.” Brunell Decl. ¶¶ 3, 4. 

MEMORANDUM OF POINTS AND AUTHORITIES 

I. The Court Has the Authority to Permit the AAI to Be Heard 

“The district court has broad discretion to appoint amici curiae.” Hoptowit v. Ray, 682 

F.2d 1237, 1260 (9th Cir.1982). “There are no strict prerequisites that must be established prior 

to qualifying for amicus status; an individual seeking to appear as amicus must merely make a 

showing that his participation is useful to or otherwise desirable to the court.” Infineon Techs. N. 

Am. Corp. v. Mosaid Techs., Inc., C 02-5772 JF(RS), 2006 WL 3050849, at *3 (N.D. Cal. Oct. 

23, 2006) (quoting In re Roxford Foods Litig., 790 F.Supp. 987, 997 (E.D. Cal. 1991)). “District 

courts frequently welcome amicus briefs from non-parties concerning legal issues that have 

potential ramifications beyond the parties directly involved or if the amicus has ‘unique 

information or perspective that can help the court beyond the help that the lawyers for the parties 

are able to provide.’” NGV Gaming, Ltd. v. Upstream Point Molate, LLC, 355 F.Supp.2d 1061, 

1067 (N.D. Cal. 2005) (quoting Cobell v. Norton, 246 F.Supp.2d 59, 62 (D.D.C. 2003)). 

II. Good Cause Exists for Allowing the AAI to Be Heard 

AAI is an independent nonprofit organization that serves the public through education, 

research, and advocacy on the benefits of competition and the use of antitrust as a vital 
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1348395.2 - 2 - 

ADMIN. MOTION OF THE AMERICAN ANTITRUST 

INSTITUTE TO FILE MEMO AS AMICUS CURIAE

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

component of national and international competition policy. AAI frequently appears as amicus 

curiae in important antitrust cases in the Supreme Court and lower federal courts to promote the 

development of sound legal doctrine that protects consumers, businesses, and society. For a full 

listing of AAI’s amicus briefs and description of AAI’s amicus program, see 

http://www.antitrustinstitute.org/aai_activities/amicus-program. 

AAI has a longstanding interest in ensuring that standard setting among competitors is not 

abused and that FRAND commitments, which are central to preventing abuse, are not evaded. It 

has filed several amicus briefs on these matters. See, e.g., Brief of Amicus Curiae The American 

Antitrust Institute in Support of Neither Party, Apple, Inc. v. Motorola, Inc., 757 F.3d 1286 (Fed. 

Cir. 2014); Brief Amici Curiae American Antitrust Institute & Consumer Federation of America 

in Support of Neither Party, Broadcom Corp. v. Qualcomm Inc., 501 F.3d 297 (3d Cir. 2007). 

AAI has also been active in advancing the development of monopolization law, the FTC’s 

“standalone” § 5 authority, and the law governing pleading requirements in antitrust cases. 

Among other monopolization cases in which AAI has filed an amicus brief (and participated in 

oral argument in the Supreme Court) is Pac. Bell Tel. Co. v. linkLine Commc’ns, Inc., 555 U.S. 

438 (2009), a key case on which Qualcomm relies. 

Qualcomm’s motion to dismiss raises the kind of important antitrust questions of 

widespread significance that are central to AAI’s mission. Qualcomm asks the Court to impose a 

high bar for pleading raising rivals’ costs and exclusive dealing theories in a monopoly 

maintenance case under § 2 of the Sherman Act. It also asks the Court to adopt an unduly 

restrictive interpretation of linkLine. And it questions the scope of the Federal Trade 

Commission’s “standalone” Section 5 authority in the standard-setting context, an area in which 

the FTC has been highly active but where the case law is sparse. 

AAI’s memorandum assists the court by providing legal and other analysis that 

supplements the parties’ briefs. See Miller-Wohl Co., Inc. v. Comm’r of Labor and Indus. State of 

Mont., 694 F.2d 203, 204 (9th Cir. 1982) (“classic role of amicus curiae” is “assisting in a case of 

general public interest, supplementing the efforts of counsel, and drawing the court’s attention to 

law that escaped consideration”); Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514 n.3 
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1348395.2 - 3 - 

ADMIN. MOTION OF THE AMERICAN ANTITRUST 

INSTITUTE TO FILE MEMO AS AMICUS CURIAE

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

(9th Cir. 1987) (granting amicus status so court could avail itself of amicus’s thorough legal 

arguments). 

Specifically, as to the FTC’s monopolization theory, the AAI’s brief provides additional 

authority and analysis on, among other things: (1) the legal standard for establishing exclusionary 

conduct under § 2 in general and specifically with respect to theories involving raising rivals’ 

costs and exclusive dealing; (2) the irrelevance of linkLine given the duty to deal created by 

Qualcomm’s FRAND commitment; and (3) pleading standards in § 2 cases. And as to the FTC’s 

standalone Section 5 theory, the brief explains how the requisite harm to competition may be less 

than or different from the competitive harm required for a § 2 violation and details how the 

complaint satisfies the requirements for pleading a standalone § 5 violation, an issue that the 

parties’ briefs do not significantly address. More generally, the brief highlights the importance of 

using the antitrust laws to police anticompetitive abuse of standard setting. 

CONCLUSION 

For the reasons set forth above, this Court should grant the AAI’s request for leave to file 

a memorandum as amicus curiae to assist the Court in deciding Defendant’s Motion to Dismiss. 

Dated: May 12, 2017 Respectfully submitted, 

LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 

By:/s/ Eric B. Fastiff

Eric B. Fastiff 

Eric B. Fastiff (State Bar No. 182260) 

efastiff@lchb.com 

275 Battery Street, 29th Floor 

San Francisco, CA 94111-3339 

Telephone: 415.956.1000 

Facsimile: 415.956.1008 

Counsel for Proposed Amicus Curiae 

The American Antitrust Institute