United States of America v. Apple, Inc.

Filing 16

FORM C, on behalf of Appellant Bob Kohn, FILED. Service date 10/16/2012 by CM/ECF.[746983] [12-4017]

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
CIVIL APPEAL PRE-ARGUMENT STATEMENT (FORM C)
ADDENDUM “B”
List of Issues Proposed to be Raised on Appeal
and Applicable Standard of Review for Each Proposed Issue
Issue
1.

Standard of Review

Whether appellant’s Motion for Leave to

See, 15 U.S.C. §16(f)(3). Abuse of

Intervene for the Sole Purpose of Appeal should discretion. Errors of law or fact may
have been granted, because:
a. Appellant would aid the Court in making

constitute such abuse. U.S. v. Glen Falls
Newspapers, 160 F.3d 853 (2nd Cir.

its public interest determination under 15. 1998); Brennan v. NYC Board of Edu.,
U.S.C §16 (the “Tunney Act”);
b. Appellant has complied with the Federal
Rules of Civil Procedure, because
(i) he has a claim or defense that

260 F.3d 123, 128 (2nd Cir. 2001);
Massachusetts v. Microsoft Corp., 373
F.3d 1199, 1234-1237 (D.C. Cir. 2004).
Findings of fact should be accepted

shares with the main action a common

unless clearly erroneous (Fed. Rule Civ.

question of law or fact, and

Proc. 52(a)(5)); conclusions of law are

(ii) this intervention will not unduly
delay or prejudice the adjudication of the

reviewed de novo. Massachusetts, 373
F.3d at 1207.

rights of the original parties.

2.

Whether the proposed Final Judgment is not in

District Court’s findings of fact should be

the public interest pursuant to the Tunney Act.

accepted unless clearly erroneous (Fed.
Rule Civ. Proc. 52(a)(5)); conclusions of
law are reviewed de novo. Massachusetts
v. Microsoft Corp., 373 F.3d 1199, 1207
(D.C. Cir. 2004). U.S. ex rel. Modern
Electric v. Ideal Electronic Security, 81
F.3d 240, 244 (D.C. Cir. 1996); Salve

Regina College v. Russell, 499 U.S. 225,
231-33 (1991). Whether the proposed
Final Judgment is in the public interest.
15 U.S.C. §16(e), considering the
competitive impact of such judgment and
the impact of entry of such judgment
upon competition in the relevant market
or markets and upon the public generally.
In considering whether the Final
Judgment is in the public interest, District
Court held that “the relevant inquiry is
whether the Government established an
ample ‘factual foundation for the [its]
decisions such that its conclusions
regarding the proposed settlement are
reasonable.’ (quoting, U.S. v. Keyspan
Corp.,783 F.Supp. 2d 633, 637 (S.D.N.Y.
2011).

3.

Whether the United States failed to comply

The District Court’s factual findings

with the Tunney Act by not adequately

should be accepted unless clearly

disclosing documents the Government

erroneous (Fed. Rule Civ. Proc.

considered to be determinative in formulating

52(a)(5)); the District Court’s

its proposal.

conclusions of law are reviewed de novo.
Massachusetts v. Microsoft Corp., 373
F.3d 1199, 1207 (D.C. Cir. 2004).
Whether the documents are either
“smoking guns” or the exculpatory
opposite. United States v. Bleznak, 153
F.3d 16, 20 (2d Cir. 1998).

Whether the District Court erred by failing to

The District Court’s factual findings

exercise its powers under the Tunney Act “to

should be accepted unless clearly

take testimony of Government officials or such

erroneous (Fed. Rule Civ. Proc.

other expert witnesses as the court may deem

52(a)(5)); the District Court’s

appropriate” or to authorize “examination of

conclusions of law are reviewed de novo.

witnesses or documentary materials,” including

Massachusetts v. Microsoft Corp., 373

any determinative documents, with respect to

4.

F.3d 1199, 1207 (D.C. Cir. 2004).

the DOJ’s investigation of allegations of
predatory pricing.

5.

Whether the United States failed to comply

The District Court’s factual findings

with the Tunney Act by failing to file with the

should be accepted unless clearly

court and publish in the Federal Register, by the erroneous (Fed. Rule Civ. Proc.
statutory deadline, the public comments its

52(a)(5)); the District Court’s

received during the 60-day comment period

conclusions of law are reviewed de novo.

pursuant to 15 U.S.C. 16(b).

Massachusetts v. Microsoft Corp., 373
F.3d 1199, 1207 (D.C. Cir. 2004). No
Second Circuit appellate decision has
been found that specifies a standard of
review for Tunney Act procedural
determinations. The Ninth Circuit has
held that entry should be reversed if the
noncompliance went to the essence of
Final Judgment or if appellant was
prejudiced by the noncompliance. U.S. v.
Bechtel Corp., 648 F.2 660, 664 (9th Cir.
1981).

6.

Whether, pursuant to the Tunney Act, a revised

The District Court’s factual findings

version of the Final Judgment comprised of

should be accepted unless clearly

Sections I, II (A through L, and N through T,

erroneous (Fed. Rule Civ. Proc.

only), III, V (E and F only), VI (A only), VII,

52(a)(5)); the District Court’s

VIII, IX, X, XI, and XII, is in the public

conclusions of law are reviewed de novo.

interest.

Massachusetts v. Microsoft Corp., 373
F.3d 1199, 1207 (D.C. Cir. 2004).
Whether the proposed Final Judgment is
in the public interest. 15 U.S.C. §16(e),
considering the competitive impact of
such judgment and the impact of entry of
such judgment upon competition in the
relevant market or markets and upon the
public generally.