Luxpro Corporation v. Apple, Inc.

Filing 79

AFFIDAVIT filed by Apple, Inc. re 77 Reply to Response to Motion to Dismiss the Second Amended Complaint. (Attachments: # 1 Exhibit A)(Plunkett, Stuart)

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS TEXARKANA DIVISION

LUXPRO CORPORATION, a Taiwanese ) corporation, ) ) Plaintiff, ) ) v. ) ) APPLE INC. f/k/a Apple Computer, ) Inc., ) ) ) Defendant. )

Civil Action No. 4:08-CV-04092-HFB

DEFENDANT APPLE INC.'S REPLY IN SUPPORT OF ITS MOTION TO DISMISS THE SECOND AMENDED COMPLAINT

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TABLE OF CONTENTS Page INTRODUCTION........................................................................................................................... 1 ARGUMENT .................................................................................................................................. 4 I. LUXPRO MISCHARACTERIZES ITS PLEADING BURDEN AND IMPROPERLY REQUESTS DISCOVERY TO CURE ITS PLEADING DEFECTS ........................................................................................................................... 4 LUXPRO'S COMPLAINT SHOULD BE DISMISSED IN ITS ENTIRETY BASED ON THE NOERR-PENNINGTON DOCTRINE .............................. 5 A. B. Noerr-Pennington Bars Claims Based on a Party's Legitimate Attempts to Enforce Its Intellectual Property Rights .............................................. 5 Apple's Alleged Conduct Falls Squarely Within Noerr-Pennington...................... 6 1. 2. C. D. E. The SAC's Express Admissions Preclude Any Claim Based on Contact with Luxpro's Purported Customers......................................... 6 Noerr-Pennington Clearly Protects Apple's Communications With Purported Luxpro Customers................................. 7

II.

Luxpro's Argument that Noerr-Pennington Applies Only to Sherman Act Antitrust Claims Is Wrong .............................................................. 11 Luxpro's Argument that Noerr-Pennington Does Not Apply to Conduct Outside the United States Is Wrong........................................................ 13 As A Matter of Law, Neither the "Sham Litigation" Exception Nor the "Pattern" Exception Apply.............................................................................. 15 1. 2. The "Sham Litigation" Exception Cannot Apply, Because Apple Obtained Injunctive Relief Against Luxpro ................................... 15 Luxpro's Purported Challenge to Apple's Intellectual Property Rights Is Nothing More than an Assertion of the Sham Litigation Exception and Fails as a Matter of Law ......................... 17 The "Pattern" Exception Fails as a Matter of Law.................................... 18

3. F.

Luxpro's Assertion that Noerr-Pennington Raises Inherently Factual Issues that the Court Should Not Resolve at the Pleading Stage Is Without Merit .......................................................................................... 19

III.

LUXPRO HAS NOT STATED A CLAIM FOR TORTIOUS INTERFERENCE WITH CONTRACT OR PROSPECTIVE ECONOMIC ADVANTAGE.................................................................................................................. 21

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TABLE OF CONTENTS (continued) Page A. B. IV. Luxpro's Argument that its Tortious Interference Claims Should be Viewed "As a Whole" Has no Merit..................................................................... 21 Luxpro Fails to Address the Pleading Deficiencies Identified in Apple's Brief ......................................................................................................... 22

LUXPRO'S LANHAM ACT CLAIM FAILS.................................................................. 24 A. B. C. Luxpro Has Failed to Show That Any of Apple's Alleged Statements are Actionable under the Lanham Act ................................................ 24 Luxpro Fails to Allege Any Representations to Several Entities.......................... 26 Luxpro's Lanham Act Claim Does not Meet Rule 9(b)'s Requirements......................................................................................................... 26 1. 2. Rule 9(b) Applies to Luxpro's Lanham Act Claim................................... 26 Luxpro Has Failed to Explain How the SAC Pleads the Lanham Act Claim with Particularity ....................................................... 28

V.

LUXPRO FAILS TO STATE A UCL CLAIM ................................................................ 28 A. Luxpro Fails to State a Claim Under Any Prong of the UCL ............................... 28 1. 2. 3. B. Luxpro Fails to Allege "Unlawful" Conduct ............................................ 28 Luxpro Fails to Allege "Unfair" Conduct ................................................. 29 Luxpro Fails to Sufficiently Allege "Fraudulent" Conduct ...................... 29

Because Luxpro Has Failed to Establish an Ownership Interest in Apple's Profits, its Prayer for "Restitution" Should Be Stricken ......................... 30

VI.

LUXPRO FAILS TO PLEAD A "COMMERCIAL DISPARAGEMENT" CLAIM .............................................................................................................................. 30 A. B. Luxpro Does Not Even Attempt to Meet the Requirements for Pleading Defamation or Trade Libel..................................................................... 30 Luxpro Fails to Allege a Writing, and Thus Cannot Plead a Libel or Trade Libel Claim ............................................................................................. 31

CONCLUSION ............................................................................................................................. 32

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TABLE OF AUTHORITIES Page(s) CASES AirCapital Cablevision, Inc. v. Starlink Commc'ns Group, Inc., 634 F. Supp. 316 (D. Kan. 1986) ............................................................................................ 19 Alexander v. Nat'l Farmers Org., 687 F.2d 1173 (8th Cir. 1982)................................................................................................. 19 Amarel v. Connell, 102 F.3d 1494 (9th Cir. 1996)................................................................................................. 18 Animal Fair Inc. v. Amfesco Indus. Inc., 620 F. Supp. 175 (D. Minn. 1985) .......................................................................................... 25 Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) .............................................................................................................. 4 Aten v. Scottsdale Ins. Co., 511 F.3d 818 (8th Cir. 2008)..................................................................................................... 4 Atlantic Recording Corp. v. Raleigh, No. 4:06-CV-1708 CEJ, 2008 U.S. Dist. LEXIS 62977 (E.D. Mo. Aug. 18, 2008) .......... 9, 12 Avery Dennison Corp. v. ACCO Brands, Inc., No. CV 99-1877 DT (MEX), 2000 U.S. Dist. LEXIS 3938 (C.D. Cal. Feb. 22, 2000) ............. ............................................................................................................................................. 7, 24 Axcan Scandipharm Inc. v. Ethex Corp., 585 F. Supp. 2d 1067 (D. Minn. 2007) ................................................................................... 27 Baltimore Scrap Corp. v. David J. Joseph Co., 81 F. Supp. 2d 602 (D. Md. 2000) .................................................................................... 11, 12 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................................................................. 4 BJC Health Sys. v. Columbia Casualty Co., 478 F.3d 908 (8th Cir. 2007)................................................................................................... 28 Brosnan v. Tradeline Solutions, Inc., No. C-08-0694 JCS, 2009 U.S. Dist. LEXIS 48262 (N.D. Cal. June 5, 2009)....................... 27 Buck's, Inc. v. Buc-ee's, Ltd., No. 8:08CV519, 2009 U.S. Dist. LEXIS 53861 (D. Neb. June 25, 2009).............................. 13

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TABLE OF AUTORITIES (continued) Page(s) Bulkferts Inc. v. Salatin Inc., 574 F. Supp. 6 (S.D.N.Y.1983)............................................................................................... 14 C&A Plus, Inc. v. Plastic Specialties Mfg., Inc., No. 01-1428 ADM/RLE, 2003 U.S. Dist. LEXIS 12754 (D. Minn. July 23, 2003)............... 12 Caplan v. Am. Baby, Inc., 582 F. Supp. 869 (S.D.N.Y. 1984)............................................................................................ 6 Cardtoons, L.C. v. Major League Baseball Players Ass'n, 208 F.3d 885 (10th Cir. 2000)................................................................................................... 8 Carpenter Tech. Group v. Allegheny Tech. Inc., 646 F. Supp. 2d 726 (E.D. Pa. 2009) ...................................................................................... 25 Carpet Group Int'l v. Oriental Rug Importers Ass'n, 256 F. Supp. 2d 249 (D.N.J. 2003) ......................................................................................... 14 Cel-Tech Comm'ns, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal. 4th 163, 83 Cal. Rptr. 2d 548 (1999).......................................................................... 29 Chavez v. Whirlpool Corp., 93 Cal. App. 4th 363, 113 Cal. Rptr. 2d 175 (2001) ............................................................... 29 Cheminor Drugs Ltd. v. Ethyl Corp., 168 F.3d 119 (3d Cir. 1999).................................................................................................... 11 Coastal States Mktg., Inc. v. Hunt, 694 F.2d 1358 (5th Cir. 1983)............................................................................................. 8, 14 Coca-Cola Co. v. Omni Pac. Co., No. C98-078451, 1998 U.S. Dist. LEXIS 23277 (N.D. Cal. Dec. 9, 1998) ........... 8, 14, 16, 19 Daly v. Viacom, 238 F. Supp. 2d 1118 (N.D. Cal. 2002) .................................................................................. 28 Datascope Corp v. Vascular Solutions, Inc., 165 F. Supp. 2d 933 (D. Minn. 2001) ..................................................................................... 12 Dismuke v. Connor, No. 05-CV-1003, 2008 U.S. Dist. LEXIS 2030 (W.D. Ark. Jan. 10, 2008)........................... 15 Doe v. School Dist. of City of Norfolk, 340 F.3d 605 (8th Cir. 2003)..................................................................................................... 4

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TABLE OF AUTORITIES (continued) Page(s) Entergy Ark., Inc. v. Nebraska, 358 F.3d 528 (8th Cir. 2004)................................................................................................... 13 Futuristic Fences Inc. v. Illusion Fence, Corp., 558 F. Supp. 2d 1270 (S.D. Fl. 2008) ............................................................................... 24, 25 G. Fruge Junk Co. v. Oakland, 637 F. Supp. 422 (N.D. Cal. 1986) ......................................................................................... 29 Gen-Probe, Inc. v. Amoco Corp., 926 F. Supp. 948 (S.D. Cal. 1996) .......................................................................................... 19 Glass Equip. Dev., Inc. v. Besten, Inc., 174 F.3d 1337 (Fed. Cir. 1999)................................................................................................. 8 Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607 (8th Cir. 1980)................................................................................................... 12 Guessous v. Chrome Hearts, LLC, 179 Cal. App. 4th 1177, 102 Cal. Rptr. 3d 214 (2009) ........................................................... 14 Hagerman v. Yukon Energy Corp., 839 F.2d 407 (8th Cir. 1988)................................................................................................... 15 Havoco of Am., Ltd. v. Hollobow, 702 F.2d 643 (7th Cir. 1983)................................................................................................... 11 Healthpoint Ltd. v. Allen Pharm., LLC, No. SA-07-CA-0526 XK, 2008 U.S. Dist. LEXIS 20971 (W.D. Tex. March 18, 2008) ....... 27 Herr v. Pequea Township, 274 F.3d 109 (3d Cir. 2001).................................................................................................... 11 Honeywell Int'l, Inc. v. Univ. Avionics Sys. Corp., 343 F. Supp. 2d 272 (D. Del. 2004) ........................................................................................ 17 Hufsmith v. Weaver, 817 F.2d 455 (8th Cir. 1987)................................................................................................... 11 Huggins v. FedEx Ground Package Sys., Inc., 592 F.3d 853 (8th Cir. 2010)..................................................................................................... 4 IDX Sys. Corp. v. Epic Sys. Corp., 165 F. Supp. 2d 812 (W.D. Wis. 2001), aff'd and rev'd on other grounds, 285 F.3d 581 (7th Cir. 2002) .................................................................................................................. 17 v
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TABLE OF AUTORITIES (continued) Page(s) In re Fresh Del Monte Pineapple Antitrust Litig., No. 04 MD 1628 (RMB)(MHD), 2007 U.S. Dist. LEXIS 1372 (S.D.N.Y. Jan. 4, 2007) ....................................................................................................................................... 18 In re IBP Confidential Bus. Docs. Litig., 755 F.2d 1300 (8th Cir. 1985)............................................................................................. 8, 11 In re NationsMart Corp. Sec. Litig., 130 F.3d 309 (8th Cir. 1997)................................................................................................... 20 In re Terazosin Hydrochloride Antitrust Litig., 335 F. Supp. 2d 1336 (S.D. Fl. 2004) ..................................................................................... 19 Int'l Bhd. of Teamsters, Local 734 Health & Welfare Trust Fund v. Philip Morris, Inc., 196 F.3d 818 (7th Cir. 1999)................................................................................................... 11 Int'l Tech. Consultants, Inc. v. Steward, 554 F. Supp. 2d 750 (E.D. Mich 2008) ................................................................................... 25 Interface Sec. Sys., L.L.C. v. May, No. 4:07CV369 HEA, 2007 U.S. Dist. LEXIS 32416 (E.D. Mo. May 20, 2007) .................. 27 Jackson v. First Fed. Sav. of Ark., F.A., 709 F. Supp. 863 (E.D. Ark. 1988) ........................................................................................... 5 Jackson v. Roe, 273 F.3d 1192 (9th Cir. 2001)................................................................................................. 28 John P. Villano Inc. v CBS Inc., 176 F.R.D. 130 (S.D.N.Y. 1997) ............................................................................................ 26 Kaylor v. Fields, 661 F.2d 1177 (8th Cir. 1981)................................................................................................... 4 Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009)................................................................................................. 29 Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 131 Cal. Rptr. 2d 29 (2003)........................................................................ 30 Laitram Mach., Inc. v. Carnitech A/S, 901 F. Supp. 1155 (E.D. La. 1995) ........................................................................................... 9 Laker Airways Ltd. v. Pan Am World Airways, Inc., 604 F. Supp. 280 (D.D.C. 1984) ............................................................................................. 14 vi
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TABLE OF AUTORITIES (continued) Page(s) Larry Hobbs Farm Equip., Inc. v. CNH Amer., LLC, No. 2:08CV00049 JLH, 2008 U.S. Dist. LEXIS 64844 (E.D. Ark. Aug. 22, 2008) .............. 22 Letica Corp. v. Sweetheart Cup Co., 790 F. Supp. 702 (E.D. Mich. 1992) ....................................................................................... 17 Livingston Downs Racing Ass'n Inc. v. Jefferson Downs Corp., 192 F. Supp. 2d 519 (M.D. La. 2001) ..................................................................................... 19 Logan Graphic Prod., Inc. v. Textus USA, Inc., No. 02C-1823, 2002 U.S. Dist. LEXIS 21801 (N.D. Ill. Nov. 8, 2002) ................................. 25 Ludwig v. Superior Court, 37 Cal. App. 4th 8, 43 Cal. Rptr. 2d 350 (1995) ............................................................... 12, 19 Luxpro Corp. v. Apple, Inc., 658 F. Supp. 2d 921 (W.D. Ark. 2009)............................................................................ passim Manistee Town Ctr. v. City of Glendale, 227 F.3d 1090 (9th Cir. 2000)................................................................................................. 11 Matsushita Elecs. Corp. v. Loral Corp., 974 F. Supp. 345 (S.D.N.Y. 1997)........................................................................................ 7, 9 Max Daetwyler Corp. v. Input Graphics, Inc., 608 F. Supp. 1549 (E.D. Pa. 1985) ......................................................................................... 27 McGuire Oil Co. v. Mapco, Inc., 958 F.2d 1552 (11th Cir. 1992)................................................................................................. 8 Medtronic Inc. Sprint Fidelis Leads Prod. Liab. Litig., No. 08-1905 (RHK/JSM), 2009 U.S. Dist. LEXIS 9236 (D. Minn. Feb. 5, 2009)................... 5 Melea Ltd. v. Quality Models, Ltd., 345 F. Supp. 2d 743 (E.D. Mich. 2004) .............................................................................. 7, 12 Missouri v. Nat'l Org. for Women, Inc., 620 F.2d 1301 (8th Cir. 1980)................................................................................................. 11 Mobius Mgmt. Sys., Inc. v Fourth Dimension Software, Inc., 880 F. Supp. 1005 (S.D.N.Y. 1995)........................................................................................ 25 Occidental Petroleum Corp. v. Buttes Gas & Oil. Co., 331 F. Supp. 92 (C.D. Cal. 1971), aff'd on other grounds, 461 F.2d 1261 (9th Cir. 1972) ....................................................................................................................................... 14 vii
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TABLE OF AUTORITIES (continued) Page(s) Omni Resource Dev. Corp. v. Conoco, Inc., 739 F.2d 1412 (9th Cir. 1984)................................................................................................. 16 Patrick v. Henderson, 255 F.3d 914 (8th Cir. 2001)................................................................................................. 4, 5 Pestube Sys., Inc. v. HomeTeam Pest Def., LLC, No. CIV-05-2832-PHX-MHM, 2006 U.S. Dist. LEXIS 34337 (D. Ariz. May 24, 2006) ....................................................................................................................................... 27 Porous Media Corp. v. Pall Corp., 186 F.3d 1077 (8th Cir. 1999)................................................................................................. 12 Premier Med. Mgmt. Sys., Inc. v. Calif. Ins. Guar. Ass'n, 136 Cal. App. 4th 464, 39 Cal. Rptr. 3d 43 (2006) ............................................................. 9, 12 Primetime 24 Joint Venture v. NBC, 219 F.3d 92 (2d Cir. 2000)...................................................................................................... 19 Prof'l Real Estate Investors v. Columbia Pictures Indus., Inc., 508 U.S. 49 (1993) ........................................................................................................... passim Santana Prods. v. Bobrick Washroom Equip., 249 F. Supp. 2d 463 (M.D. Pa. 2003) ..................................................................................... 12 Schnall v. Hertz Corp., 78 Cal. App. 4th 1144, 93 Cal. Rptr. 2d 439 (2000) ............................................................... 30 Schneider v. Cal. Dep't of Corr., 151 F.3d 1194 (9th Cir. 1998)................................................................................................. 18 Soilworks, LLC v. Midwest Indus. Supply, Inc., No. 06-2141-PHX-DGC, 2007 U.S. Dist. LEXIS 15832 (D. Ariz. March 5, 2007) .............. 27 Sosa v. DIRECTV, Inc., 437 F.3d 923 (9th Cir. 2006)........................................................................................... 8, 9, 11 South Dakota v. Kansas City S. Indus., Inc., 880 F.2d 40 (8th Cir. 1989)..................................................................................................... 11 Storage Tech. Corp. v. Custom Hardware Eng'g & Consulting, Ltd., No. 02-12102-RWZ, 2006 U.S. Dist. LEXIS 43690 (D. Mass. June 28, 2006)........................................................................................................... 7

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TABLE OF AUTORITIES (continued) Page(s) Sugar Busters, LLC v. Brennan, No. 98-1562 S3, 1999 U.S. Dist. LEXIS 2289 (E.D. La. Feb. 19, 1999) ............................... 16 Surgidev Corp. v. Eye Tech., Inc., 625 F. Supp. 800 (D. Minn. 1986) .......................................................................................... 12 Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002) .................................................................................................................. 5 Sybersound Records Inc. v. UAV Corp., 517 F.3d 1137 (9th Cir. 2008)................................................................................................. 29 Tempur-Pedic Int'l, Inc. v. Waste to Charity, Inc., No. 07-2015, 2007 U.S. Dist. LEXIS 55150 (W.D. Ark. July 27, 2007) ......................... 22, 24 Theme Promotions, Inc. v. News Am. Mktg. FSI, 546 F.3d 991 (9th Cir. 2008)................................................................................................. 7, 8 Thomas Info. Servs., Inc. v. Lyons Commercial Data, Inc., No. 97 Civ. 7716 (JSR), 1998 U.S. Dist. LEXIS 5579 (S.D.N.Y. 1998) ................................. 6 Travelers Express Co. v. Am. Express Integrated Payment Sys., 80 F. Supp. 2d 1033 (D. Minn. 1999) ..................................................................................... 18 Twin City Bakery Workers & Welfare Fund v. Astra Aktiebolag, 207 F. Supp. 2d 221 (S.D.N.Y. 2002)....................................................................................... 6 U.S. Philips Corp. v. Princo Corp., No. 02 Civ. 246 (CLB), 2005 U.S. Dist. LEXIS 6820 (S.D.N.Y. Jan. 24, 2005)..................... 7 U.S. Power, Inc. v. Siemens Power Transmission & Distrib., L.L.C., No. 05-525 (JRT/FLN), 2006 U.S. Dist. LEXIS 45919 (D. Minn. July 5, 2006)............. 13, 14 United States ex rel Roop v. Hypoguard USA, Inc., 559 F.3d 818 (8th Cir. 2009)..................................................................................................... 4 USS-POSCO Indus. v. Contra Costa County Bldg. & Constr. Trades Council, 31 F.3d 800 (9th Cir. 1994)......................................................................................... 15, 18, 19 Venetian Casino Resort, LLC v. Nat'l Labor Relations Bd., 484 F.3d 601 (D.C. Cir. 2007) .................................................................................................. 9 Vess v. CIBA-Geisy Corp. USA, 317 F.3d 1097 (9th Cir. 2003)................................................................................................. 28

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TABLE OF AUTORITIES (continued) Page(s) Volunteer Firemen's Ins. Servs., Inc. v. McNeil and Co., Inc., 221 F.R.D. 388 (W.D.N.Y. 2004) ........................................................................................... 27 Wellnx Life Sci. Inc., v. Iovate Health Sci. Research Inc., 516 F. Supp. 2d 270 (S.D. NY 2007)...................................................................................... 27 White Mule Co. v. ATC Leasing Co. LLC, 540 F. Supp. 2d 869 (N.D. Ohio 2008) ............................................................................. 24, 25 White v. Lee, 227 F.3d 1214 (9th Cir. 2000)................................................................................................. 12 Zinus Inc. v. Simmons Bedding Co., 2007 WL 4287391 (N.D. Cal. Dec. 6, 2007) .......................................................................... 24

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TABLE OF AUTORITIES (continued) Page(s) OTHER AUTHORITIES Federal Rule of Civil Procedure Rule 9(b)........................................................................................................................... passim Rule 12(b)(6) ........................................................................................................................... 18 Lanham Act § 43(a) § 6.3(a), n.27 ................................................................................................ 26 Restatement (Second) of Torts § 768............................................................................................ 24

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INTRODUCTION The Noerr-Pennington doctrine is a complete bar to all of Luxpro's claims.1 The Second Amended Complaint ("SAC"), even more clearly than the prior complaint, establishes that the harm Luxpro claims in this case was the direct result of injunctions lawfully obtained by Apple in Taiwan and Germany -- injunctions that this Court has already ruled are protected by NoerrPennington. Luxpro expressly alleges in multiple paragraphs of the SAC that it suffered damage as a result of the business interruption supposedly caused when Apple obtained injunctive relief against Luxpro in Taiwan. (See, e.g., SAC ¶¶ 41, 43.) These allegations concede that Luxpro's claims against Apple are based on nothing more than Apple's conduct in enforcing its intellectual property rights, and leave no doubt that the SAC should be dismissed in its entirety under Noerr-Pennington.2 Forced to confront that the conduct it alleges is covered by Noerr-Pennington, Luxpro resorts to a series of ill-founded arguments in an attempt to avoid the doctrine's impact. Each of Luxpro's arguments is flat wrong. Luxpro contends, for example, that Noerr-Pennington applies only to Sherman Act claims. This argument is contrary to decades of case law applying the doctrine to the very types of non-Sherman Act claims that Luxpro asserts here. Not surprisingly, the only support Luxpro can muster is a footnote from one case (a footnote that Luxpro badly
1

Apple files this reply brief pursuant to the Court's Order dated April 13, 2010. By complying with this Court's scheduling order, Apple does not waive its right to transfer of this Action to the United States District Court for the Northern District of California pursuant to the writ issued by the Eighth Circuit on April 19, 2010.
2

Luxpro makes two inappropriate arguments in its brief, both of which should be disregarded. First, Luxpro claims that Apple waived the arguments in its Motion to Dismiss by not responding to Luxpro's motion for leave to file the SAC. (See Luxpro Corporation's Response to Apple Inc.'s Second Motion to Dismiss ("Opp.") at 3.) But as Luxpro is certainly aware, Apple signed a stipulation with Luxpro regarding Luxpro's motion to amend, which expressly stated that Apple was not waiving any arguments or defenses to matters contained in the SAC. (Stipulation re Motion for Leave to File SAC, Docket No. 60.) Second, Luxpro contends that Apple's previous motion to dismiss -- which the Court granted in large part -- was brought solely for the purposes of delay. A motion to dismiss that is granted is hardly evidence of improper delay tactics.

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misreads). Luxpro next claims, against the great weight of authority, that Noerr-Pennington does not apply to foreign proceedings. Courts -- including this Court in its prior decision on Apple's motion to dismiss -- apply Noerr-Pennington to conduct occurring outside the United States. Luxpro also attempts to argue that the so-called "pattern" exception to Noerr-Pennington applies. There is serious doubt as to whether the "pattern" exception exists. As set forth below, it has been rejected by a number of courts and has never been recognized in this Circuit. In any event, the SAC alleges nothing close to the manifold proceedings (a minimum of nine separate lawsuits) found by a few courts to constitute a "pattern" of baseless proceedings. Finally, Luxpro contends that Apple's communications with Luxpro's purported customers are not protected by Noerr-Pennington. That argument fails as a matter of law. Numerous courts hold that pre-litigation cease-and-desist communications -- which is all the SAC alleges -- fall squarely within Noerr-Pennington. In contrast, Luxpro relies on a single case that has been described as an "outlier" and "inconsistent with the weight of authority." Luxpro's attempts to avoid dismissal of particular claims are also meritless. The tortious interference claims in the SAC contain the same defects that this Court identified in dismissing the First Amended Complaint ("FAC"). Luxpro glosses over these defects, arguing that the Court should look at the claims "in their entirety," rather than on an entity-by-entity basis as the Court did in granting in part the motion to dismiss the FAC. The Court should evaluate Luxpro's claims just as it did before, and reject Luxpro's attempt to use vague allegations regarding Apple's supposed interference with unnamed and unknown entities to state an interference claim. The Court should also reject Luxpro's attempted sleight of hand: Luxpro claims that it has alleged particular elements of a tortious interference claim for a particular entity, but Luxpro

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cites to allegations regarding a different entity. Luxpro cannot cobble together a claim by alleging one element for entity X, another element for entity Y, and a third element for entity Z. Luxpro's Lanham Act claim also fails. As courts have repeatedly held, communications by a defendant that allegedly threaten suit against a company are not "commercial advertising or promotion." Luxpro also cannot avoid the fact that its Lanham Act claim is grounded in fraud, thereby triggering Rule 9(b)'s requirements. Luxpro does not even attempt to demonstrate how its allegations meet those requirements. They do not. Luxpro's Unfair Competition Law ("UCL") claim fails as well. Luxpro has not adequately pled a violation of a statute or a common law tort, and thus has not pled a claim under the "unlawful" prong of the UCL. Luxpro also has failed to plead a claim under the "unfair" prong, because it has not alleged an actual or incipient violation of the antitrust laws. Luxpro alleges facts that at most demonstrate harm to itself, not harm to competition. The California Supreme Court has expressly held that the law protects competition, not competitors such as Luxpro. Finally, the SAC does not allege sufficient facts to state a claim under the "fraudulent" prong of the UCL, particularly under the heightened pleading standard of Rule 9(b) which applies to such claims. Luxpro's "commercial disparagement" claim must also be dismissed. Luxpro does not even attempt to meet the requirements for pleading such a claim. Instead, it relies on a mischaracterization of Apple's arguments, the misguided contention that the claim should be viewed "as a whole," and arguments that this Court has already rejected in dismissing the FAC. None of these contentions rescues its claim. The SAC should be dismissed with prejudice.

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ARGUMENT I. LUXPRO MISCHARACTERIZES ITS PLEADING BURDEN AND IMPROPERLY REQUESTS DISCOVERY TO CURE ITS PLEADING DEFECTS

Luxpro incorrectly claims that all it must do is show that its claim can be "considered plausible." (Opp. at 11.) Luxpro must do more than that, however -- it must plead sufficient facts to establish that its claims are plausible. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). Although Luxpro is not required to plead all facts supporting its claims, it must plead sufficient facts to satisfy each element of each of its claims.3 Luxpro fails to do so. Luxpro repeatedly attempts to excuse this failure by claiming that it needs discovery. (See, e.g., Opp. at 11, 33, 37, 41, 62 n.237.) But both Twombly and Iqbal hold that a claim must be well-pleaded before a plaintiff can obtain discovery: "Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Iqbal, 129 S. Ct. at 1950; see also Twombly, 550 U.S. at 557-59. Even before Twombly, the Eight Circuit held that discovery is not "a device to enable a plaintiff to make a case when his complaint has failed to state a claim." Kaylor v. Fields, 661 F.2d 1177, 1184 (8th Cir. 1981); see also United States ex rel Roop v. Hypoguard USA, Inc., 559 F.3d 818, 822 (8th Cir. 2009) (upholding district court's rejection of plaintiff's request for time to conduct discovery to satisfy Rule 9(b)'s particularity requirement). District courts have also held that the need for discovery is no excuse for a deficiently pleaded complaint: "[plaintiffs] are not entitled to `conduct a fishing expedition for

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Luxpro's authority fails to demonstrate otherwise. Aten v. Scottsdale Ins. Co., 511 F.3d 818 (8th Cir. 2008), applied the "no set of facts" standard rejected by Twombly. Both Patrick v. Henderson, 255 F.3d 914 (8th Cir. 2001), and Doe v. School Dist. of City of Norfolk, 340 F.3d 605, 614 (8th Cir. 2003), predate Twombly and Iqbal, and are thus irrelevant to the pleading standard at issue here. Huggins v. FedEx Ground Package Sys., Inc., 592 F.3d 853 (8th Cir. 2010), also does not assist Luxpro, because it did not discuss the Twombly or Iqbal standard and held that plaintiff had failed to sufficiently allege its claim.

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discovery, and only then amend [their] complaint in order finally to set forth well-pleaded allegations." In re Medtronic Inc. Sprint Fidelis Leads Prod. Liab. Litig., No. 08-1905 (RHK/JSM), 2009 U.S. Dist. LEXIS 9236, at *7 (D. Minn. Feb. 5, 2009); see also Jackson v. First Fed. Sav. of Ark., F.A., 709 F. Supp. 863, 884 (E.D. Ark. 1988) (discovery "may not be used to fish around in the hopes that currently unsuspected facts will turn up" which allow a claim to be pleaded). 4 Thus, Luxpro must plead sufficient facts to establish each element of each of its claims, and cannot use the need for discovery as an excuse for its failure to do so. II. LUXPRO'S COMPLAINT SHOULD BE DISMISSED IN ITS ENTIRETY BASED ON THE NOERR-PENNINGTON DOCTRINE A. Noerr-Pennington Bars Claims Based on a Party's Legitimate Attempts to Enforce Its Intellectual Property Rights

Under Supreme Court authority, a party's enforcement of its intellectual property rights is protected by Noerr-Pennington, and claims based on such conduct are barred unless the plaintiff can establish that the defendant's conduct was merely a sham. See Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 53 (1993). In Professional Real Estate, the Supreme Court set forth a rigorous test for determining whether a lawsuit is a sham, equating the standard to that used for malicious prosecution actions. Id. at 62. As a threshold requirement, sham litigation must be "objectively baseless," meaning that "no reasonable litigant could realistically expect success on the merits." Id. at 60. The existence of probable cause to sue, or a "reasonable belief that there is a chance that a claim may be held valid upon
4

Luxpro's reliance on Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002), for the proposition that its claims are better suited for summary judgment after discovery is misplaced. Twombly explicitly discounted summary judgment and discovery as effective tools to weed out flawed claims: "It is no answer to say that a claim just shy of a plausible entitlement to relief can, if groundless, be weeded out early in the discovery process through `careful case management' . . . And it is self-evident that the problem of discovery abuse cannot be solved by `careful scrutiny of evidence at the summary judgment stage[.]'" Twombly, 550 U.S. at 559.

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adjudication," precludes a finding of objective baselessness. Id. at 62-63. Only if the party arguing that the litigation is "sham" meets this high standard does the litigant's motivation for the suit become relevant. Id. at 60-61. To avoid chilling a litigant's exercise of the right to petition, the Professional Real Estate test should be applied as a matter of law at the pleading stage. See Twin City Bakery Workers & Welfare Fund v. Astra Aktiebolag, 207 F. Supp. 2d 221, 223 (S.D.N.Y. 2002) (citing Thomas Info. Servs., Inc. v. Lyons Commercial Data, Inc., No. 97 Civ. 7716 (JSR), 1998 U.S. Dist. LEXIS 5579 (S.D.N.Y. 1998)); Caplan v. Am. Baby, Inc., 582 F. Supp. 869, 871 (S.D.N.Y. 1984)). As demonstrated in the following sections, Luxpro has alleged conduct that falls squarely within Noerr-Pennington, and Luxpro cannot satisfy the Professional Real Estate test to take any of the alleged conduct outside the bounds of the doctrine. B. Apple's Alleged Conduct Falls Squarely Within Noerr-Pennington

This Court has already held that Luxpro's claims related to the litigation in Germany and Taiwan are barred by Noerr-Pennington. Luxpro does not ask the Court to revisit that holding. Instead, Luxpro focuses its arguments on Apple's contacts with Luxpro's alleged customers. Luxpro, however, cannot avoid Noerr-Pennington by refocusing its claims. The SAC admits that Luxpro's claims are all based on Apple's litigation against Luxpro; moreover, the case law is clear that Apple's communications with customers are protected. 1. The SAC's Express Admissions Preclude Any Claim Based on Contact with Luxpro's Purported Customers

The SAC includes multiple, express allegations establishing that Apple's litigation against Luxpro is the sole basis of Luxpro's alleged harm. (See Apple's Brief in Support of its Motion to Dismiss the SAC ("Mot.") at 13-14.) The SAC explicitly alleges that the supposed

6
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harm to Luxpro is the direct result of the business interruption supposedly caused when Apple obtained injunctive relief against Luxpro in Taiwan. (See id. (quoting several passages from SAC).) Luxpro offers no response to this point in its opposition brief. These admissions in the SAC are dispositive of Luxpro's entire complaint, because the Court has already ruled that Apple's suits against Luxpro are protected by Noerr-Pennington. See Luxpro, 658 F. Supp. 2d at 927-28. Even if Luxpro were right that Noerr-Pennington does not apply to customer letters (and Luxpro is clearly wrong on this point), it would be irrelevant since Luxpro admits that the harm it suffered is a direct result of the litigation, not the letters. 2. Noerr-Pennington Clearly Protects Apple's Communications With Purported Luxpro Customers

Luxpro asserts that Apple's alleged conduct -- communications with Luxpro's customers -- "does not qualify as `petitioning conduct' such that it is afforded immunity" under the NoerrPennington doctrine. (Opp. at 44.) Luxpro is wrong as a matter of law. It is clear from the SAC that Apple's alleged communications with Luxpro's purported customers were pre-litigation demand letters. (See Mot. at 16-17 (citing SAC ¶¶ 7, 47, 52).) Luxpro does not deny this. The law is clear that Noerr-Pennington immunity applies equally to demand letters sent to third parties as it does to demand letters sent to the plaintiff (Luxpro). (See Mot. at 17-18 (citing Theme Promotions, Inc. v. News Am. Mktg. FSI, 546 F.3d 991 (9th Cir. 2008); U.S. Philips Corp. v. Princo Corp., No. 02 Civ. 246 (CLB), 2005 U.S. Dist. LEXIS 6820, *14-15 (S.D.N.Y. Jan. 24, 2005); Avery Dennison Corp. v. ACCO Brands, Inc., No. CV 99-1877 DT (MEX), 2000 U.S. Dist. LEXIS 3938, *67 (C.D. Cal. Feb. 22, 2000); Matsushita Elecs. Corp. v. Loral Corp., 974 F. Supp. 345, 359 (S.D.N.Y. 1997); Melea Ltd. v. Quality Models, Ltd., 345 F. Supp. 2d 743, 749, 758-59 (E.D. Mich. 2004); Storage Tech. Corp. v. Custom Hardware Eng'g & Consulting, Ltd., No. 02-12102-RWZ, 2006 U.S. Dist. LEXIS 43690, *112-13 (D. Mass. June 28, 2006); Coca-

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Cola Co. v. Omni Pac. Co., No. C98-078451, 1998 U.S. Dist. LEXIS 23277, at *5, 28-29 (N.D. Cal. Dec. 9, 1998).) Luxpro's argument that Noerr-Pennington does not apply to Apple's letters ignores the authority cited in Apple's motion on this point.5 Instead, Luxpro relies on a Tenth Circuit case -- Cardtoons, L.C. v. Major League Baseball Players Ass'n, 208 F.3d 885 (10th Cir. 2000) -- which has been described as "an outlier, inconsistent with the weight of authority relevant to First Amendment status of presuit litigation-related conduct." Sosa v. DIRECTV, Inc., 437 F.3d 923, 937-38 (9th Cir. 2006). The Cardtoons court, over a vigorous dissent, rejected the decisions of several other courts and held that threats to third parties were not protected by NoerrPennington. Cardtoons, 208 F.3d at 891-93. This Court should not follow Cardtoons, because it is against the majority rule on the issue and has been expressly rejected by numerous courts -- all of which hold that NoerrPennington applies to threats of litigation, including demand letters. Sosa, 437 F.3d at 937 (holding, consistent with the "law of the majority of other circuits that have considered the issue," that Noerr-Pennington immunity extends to "presuit demand letters") (emphasis added); see also Glass Equip. Dev., Inc. v. Besten, Inc., 174 F.3d 1337, 1343-44 (Fed. Cir. 1999) (threat of patent enforcement litigation could not subject patent holder to antitrust liability); McGuire Oil Co. v. Mapco, Inc., 958 F.2d 1552, 1560 (11th Cir. 1992) (threats of litigation are protected under Noerr-Pennington); In re IBP Confidential Bus. Doc. Litig., 755 F.2d 1300, 1310 (8th Cir. 1985) (right to petition "necessarily includes those activities reasonably and normally attendant to effective petitioning"); Coastal States Mktg., Inc. v. Hunt, 694 F.2d 1358,1367-68 (5th Cir.
5

Luxpro discusses only one of these cases -- Theme Promotions. (Opp. at 62.) Luxpro does not dispute that Theme Promotions held that letters to customers could be protected by Noerr-Pennington. Instead, it claims that in Theme Promotions, the threatened litigation was not baseless and that Apple's threatened litigation was baseless. As demonstrated below, this is incorrect.

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1983) (extending petitioning immunity to generalized threats to litigate to protect claim to oil assets); Atlantic Recording Corp. v. Raleigh, No. 4:06-CV-1708 CEJ, 2008 U.S. Dist. LEXIS 62977, at *12 (E.D. Mo. Aug. 18, 2008) (Noerr-Pennington bars claims based on demand letters); Premier Med. Mgmt. Sys., Inc. v. Calif. Ins. Guar. Ass'n, 136 Cal. App. 4th 464, 479, 39 Cal. Rptr. 3d 43, 54 (2006) (immunity extends to actions taken "in anticipation of, or during" litigation).6 Luxpro offers no basis on which this Court could disregard the majority rule, which is the law of this Circuit. Instead, Luxpro contends that the Court has already ruled that Apple's communications with customers were "post-litigation" and thus not protected. (Opp. at 49-50 (citing Luxpro, 658 F. Supp. 2d at 928-29).) But Luxpro is wrong for three reasons. First, the SAC, unlike the FAC, now concedes that Apple's communications with alleged customers were cease-and-desist communications that threatened lawsuits, i.e., pre-litigation contact with these customers. (See, e.g., SAC ¶¶ 7, 47, 52.) The SAC thus makes clear that Apple's conduct was directly related to its "right to petition a court" and protected by Noerr-Pennington. Second, Apple's communications were also not "post-litigation" with respect to the litigation against Luxpro, because that litigation did not conclude until July 7, 2009. (Declaration of Thomas R.

6

Luxpro relies on two other cases, neither of which follows Cardtoons or supports Luxpro's argument. Laitram Mach., Inc. v. Carnitech A/S, 901 F. Supp. 1155 (E.D. La. 1995), does not stand for the broad proposition that pre-litigation contacts with potential customers are automatically outside the protections of Noerr-Pennington. The Laitram court found that Noerr-Pennington did not immunize one defendant for sending letters to the plaintiff's customers, but those letters did not assert the intellectual property rights of that defendant. Id. at 1161 & n.5; see also id. at 1157 (explaining that intellectual property rights at issue were assigned to defendant who was no longer in the case). Moreover, at least one court has criticized Laitram on the grounds that it cited no authority for its conclusion and failed to address a contrary holding of the same court. Matsushita, 974 F. Supp. at 359 n.28. Luxpro's other case, Venetian Casino Resort, LLC v. Nat'l Labor Relations Bd., 484 F.3d 601 (D.C. Cir. 2007), has no relevance at all to this case. Venetian Casino concerned the application of Noerr-Pennington to loud-speaker warnings and citizen's arrests by an employer in the context of a labor protest. Id. at 612. It does not concern prelitigation demand letters. Indeed, the Venetian Court discussed, and then distinguished, the Sosa opinion for this very reason. Id. at 613.

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La Perle in Support of Defendant Apple Inc.'s Motion to Dismiss the Second Amended Complaint ("La Perle Decl."), Ex. 6; Declaration of Meihua Shi in Support of Defendant Apple Inc.'s Motion to Dismiss the Second Amended Complaint ("Shi Decl."), Ex. B.) Finally, Luxpro fails to respond to Apple's authority demonstrating that the timing of alleged communications to customers is irrelevant for purposes of Noerr-Pennington, and that it thus makes no difference whether the letters are characterized as "pre" or "post" litigation. (See Mot. at 16-19.) Rather than confront the clear weight of authority showing Noerr-Pennington applies to the customer communications, Luxpro now for the first time contends that the communications were a "sham." (See Opp. at 59-60.) But to establish this, Luxpro must meet Professional Real Estate's high standard of objective baselessness. Luxpro does not even come close to doing so. The SAC makes clear that the letters about which Luxpro complains threatened the same type of litigation that this Court has already found to be covered by Noerr-Pennington immunity. (See Mot. at 19 (citing SAC ¶¶ 7, 40, 47, 52, 60).) As demonstrated below, Luxpro cannot establish that the litigation was a sham because Apple successfully obtained injunctions against it -- injunctions that are still in place. (See La Perle decl. Exs. 2-6; Shi Decl. Exs. A & B; Declaration of Michael Hofhine in Support of Defendant Apple Inc.'s Motion to Dismiss the Second Amended Complaint, Ex. A.) Because the underlying litigation is not a sham, demand letters threatening similar suits also cannot be objectively baseless. (See id. at 19.) Luxpro contends that the alleged communications were objectively baseless because they were related to products not covered by the injunction, and were made after the Taiwanese trial court lifted the preliminary injunction as to certain Luxpro products. (Opp. at 59-60.) Luxpro cites no allegations to support these contentions, because there are none. The SAC does not allege that Apple identified any particular products in its purported communications. Further,

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the SAC demonstrates that these alleged communications were made while the Taiwanese litigation was ongoing, alleging that "Apple used the pendency of the lawsuit" as the basis for its communications, and that Apple continued to make alleged threats "based on the pendency of the sham litigation." (See SAC ¶¶ 47, 50.) Indeed, the SAC expressly alleges that the communications occurred while appeals were ongoing. (SAC ¶ 48.) Thus, the alleged communications with customers were not objectively baseless and are protected by NoerrPennington. C. Luxpro's Argument that Noerr-Pennington Applies Only to Sherman Act Antitrust Claims Is Wrong

Luxpro's assertion that "Eighth Circuit law provides that Noerr-Pennington immunity . . . extends only to claims based on the Sherman Act" (Opp. at 42 (emphasis in original)) is flat wrong, and ignores decades of Eight Circuit case law to the contrary. See Hufsmith v. Weaver, 817 F.2d 455, 458-59 (8th Cir. 1987) (noting that Court has long recognized application of Noerr-Pennington outside of antitrust, and applying doctrine to bar Arkansas state law claims for tortious interference with contract); In re IBP Confidential Bus. Documents Litig., 755 F.2d at 1312 (acknowledging doctrine has been extended to claims for tortious interference and conspiracy); Missouri v. Nat'l Org. for Women, Inc., 620 F.2d 1301, 1318-19 (8th Cir. 1980) (doctrine applicable to claim of tortious infliction of economic harm); South Dakota v. Kansas City S. Indus., Inc., 880 F.2d 40, 50-52 (8th Cir. 1989) (doctrine applicable to South Dakota state claims of tortious interference with contracts).7

7

Eighth Circuit law is consistent with the law of other Circuits, which have extended Noerr-Pennington to tort and other claims. See, e.g., Sosa, 437 F.3d at 934-36 (RICO); Herr v. Pequea Township, 274 F.3d 109, 115-18 (3d Cir. 2001) (civil rights claim); Manistee Town Ctr. v. City of Glendale, 227 F.3d 1090, 1092 (9th Cir. 2000) (same); Int'l Bhd. of Teamsters, Local 734 Health & Welfare Trust Fund v. Philip Morris, Inc., 196 F.3d 818, 826 (7th Cir. 1999) (RICO); Cheminor Drugs Ltd. v. Ethyl Corp., 168 F.3d 119, 128 (3d Cir. 1999) (tortious interference); Havoco of Am., Ltd. v. Hollobow, 702 F.2d 643, 649 (7th Cir. 1983) (same); Baltimore Scrap Corp. v. David J. Joseph Co., 81 F. Supp. 2d 602, 620 (D. Md. 2000),

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Indeed, in a multitude of cases over the years, the Eighth Circuit and district courts within the Circuit have applied Noerr-Pennington to a variety of non-antitrust claims, including tort, state law unfair competition, RICO, and civil conspiracy. See, e.g., Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1080 n.4 (8th Cir. 1999) (malicious prosecution); Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607, 614-15 (8th Cir. 1980) (section 1983 civil rights); Atlantic Recording, 2008 U.S. Dist. LEXIS 62977 at *7-12 (Noerr-Pennington bars tort and conspiracy claims where copyright infringement suits were not "sham litigation"); C&A Plus, Inc. v. Plastic Specialties Mfg., Inc., No. 01-1428 ADM/RLE, 2003 U.S. Dist. LEXIS 12754, *42-45 (D. Minn. July 23, 2003) (tort); Datascope Corp v. Vascular Solutions, Inc., 165 F. Supp. 2d 933, 936 (D. Minn. 2001) (tortious interference and unfair competition); Surgidev Corp. v. Eye Tech., Inc., 625 F. Supp. 800, 804-805 (D. Minn. 1986) (tortious interference). Accordingly, there is no question that Noerr-Pennington applies to Luxpro's tort claims. Nor is there any question that the doctrine applies to Luxpro's UCL claim. See Ludwig v. Superior Court, 37 Cal. App. 4th 8, 21-22, 43 Cal. Rptr. 2d 350, 360 (1995) (Noerr-Pennington doctrine retains "full vitality" under California law and applies to "virtually any tort, including unfair competition and interference with contract"); Premier Med., 136 Cal. App. 4th at 470-71 & 478 (doctrine bars Section 17200 claim and tort claim). It also applies to Luxpro's Lanham Act claim. See, e.g., Melea, 345 F. Supp. 2d at 760 (Lanham Act claim barred by NoerrPennington); Santana Prods. v. Bobrick Washroom Equip., 249 F. Supp. 2d 463, 469 (M.D. Pa. 2003) (same), rev'd on other grounds, 401 F.3d 123 (3d Cir. 2005).

aff'd, 237 F.3d 394 (4th Cir. 2001) (malicious process, abuse of process, tortious interference, fraud, and conspiracy). Courts hold that Noerr-Pennington applies to all claims where the right to petition is at stake. See, e.g., White v. Lee, 227 F.3d 1214, 1231 (9th Cir. 2000) (doctrine "applies equally in all contexts"; to "say that one does not have Noerr-Pennington immunity is to conclude that one's petitioning activity is unprotected by the First Amendment").

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Luxpro's sole authority is a footnote from an Eight Circuit case, which Luxpro badly misconstrues. Luxpro incorrectly asserts that Entergy Ark., Inc. v. Nebraska, 358 F.3d 528, 522 n.19 (8th Cir. 2004), holds that Noerr-Pennington cannot apply to non-antitrust claims in the Eighth Circuit. (Opp. at 42-43.) The footnote, which does not address or purport to overrule decades of Eighth Circuit case law, does not even say what Luxpro contends it says. The footnote states only that the defendant in Entergy Arkansas, the State of Nebraska, "has not cited any authority which would extend the Noerr-Pennington doctrine . . . to this type of action." Entergy Arkansas, 358 F.3d at 552 n.19 (emphasis added). Entergy Arkansas involved an equitable claim under the Central Interstate Low-Level Radioactive Waste Compact, a congressionally-sanctioned agreement among five states. Id. at 542. Thus, at most, the footnote is authority for the proposition that Noerr-Pennington may not apply to equitable claims under the Waste Compact -- a proposition that has no relevance here.8 D. Luxpro's Argument that Noerr-Pennington Does Not Apply to Conduct Outside the United States Is Wrong

Luxpro turns to yet another footnote, this time in a district court decision, to argue that Noerr-Pennington is inapplicable to conduct occurring outside the United States. (Opp. at 49-50 (citing U.S. Power, Inc. v. Siemens Power Transmission & Distrib., L.L.C., No. 05-525 (JRT/FLN), 2006 U.S. Dist. LEXIS 45919, *5 n.1 (D. Minn. July 5, 2006)).) But the footnote Luxpro cites provides no authority regarding the reach of Noerr-Pennington. It notes only that the U.S. Power court "declines to consider the applicability of Noerr-Pennington" to foreign petitioning activity, because the parties in that case "have not offered, and the Court has not
8

The only other case Luxpro cites, Buck's, Inc. v. Buc-ee's, Ltd., No. 8:08CV519, 2009 U.S. Dist. LEXIS 53861 (D. Neb. June 25, 2009), relies on the Entergy Arkansas footnote and confirms that there the Eighth Circuit has "only noted" the absence of authority to extend Noerr-Pennington to the claim at issue in Entergy Arkansas. Id. at 24. Buck's does not, and could not, overrule the Eighth Circuit cases holding that Noerr-Pennington applies well beyond the antitrust laws.

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discovered, any reported case law on the issue . . . ." U.S. Power, 2006 U.S. Dist. LEXIS 45919 at *5 n.1 (emphasis added).9 In fact, however, reported cases on the issue do exist, and they hold that NoerrPennington applies to conduct occurring abroad. See, e.g., Coastal States, 694 F.2d at 1366-68; Carpet Group Int'l v. Oriental Rug Importers Ass'n, 256 F. Supp. 2d 249, 266 (D.N.J. 2003) ("lobbying of foreign governments, whether performed at home or abroad, is protected from antitrust liability under Noerr-Pennington"). In Coastal States, the seminal case on the issue, the Fifth Circuit "reject[ed] the notion that petitioning immunity extends only so far as the First Amendment right to petition and then ends abruptly." Coastal States, 694 F.2d at 1366. Thus, the court saw "no reasons why acts that are legal and protected if done in the United States should in a United States court become evidence of illegal conduct because performed abroad." Id. Luxpro offers no reason, nor any persuasive authority, why this Court should decline to follow the principle that conduct occurring abroad is entitled to the same protection under Noerr Pennington as conduct occurring in the United States.

9

Luxpro's other cases are equally inapplicable. The court in Laker Airways Ltd. v. Pan Am World Airways, Inc., 604 F. Supp. 280, 287-88 (D.D.C. 1984), addressed the obligations of a United States court to refrain from taking action that would interfere with an alien's right to petition a foreign government; the court did not address the rights of American citizens to petition abroad under Noerr-Pennington. The decision in Guessous v. Chrome Hearts, LLC, 179 Cal. App. 4th 1177, 1183-84, 102 Cal. Rptr. 3d 214, 218 (2009) does not even mention the Noerr-Pennington doctrine, much less consider the merits of a Noerr-Pennington defense. The court in Bulkferts Inc. v. Salatin Inc., 574 F. Supp. 6 (S.D.N.Y.1983), questioned the applicability of Noerr-Pennington to foreign activities, but did not decide the issue. Id. at 9. Finally, the narrow view of Noerr-Pennington expressed in Occidental Petroleum Corp. v. Buttes Gas & Oil. Co., 331 F. Supp. 92, 108 (C.D. Cal. 1971), aff'd on other grounds, 461 F.2d 1261 (9th Cir. 1972), has been rejected repeatedly since the case was decided. See, e.g., Coca-Cola, 1998 U.S. Dist. LEXIS 23277 at *29-30 (noting criticism of Occidental Petroleum and applying Noerr-Pennington to petitions made to Taiwan customs officials).

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E.

As A Matter of Law, Neither the "Sham Litigation" Exception Nor the "Pattern" Exception Apply

Luxpro argues in the alternative that even if Noerr-Pennington applies to its claims (which it does), Luxpro's claims fit within one of two exceptions to the doctrine -- the "sham litigation" exception recognized in Professional Real Estate, and the "pattern" exception adopted by the Ninth Circuit in USS-POSCO Indus. v. Contra Costa County Bldg. & Constr. Trades Council, 31 F.3d 800 (9th Cir. 1994). (Opp. at 50.) These exceptions are inapplicable as a matter of law. 1. The "Sham Litigation" Exception Cannot Apply, Because Apple Obtained Injunctive Relief Against Luxpro

As Luxpro acknowledges, the Court has already found the sham litigation exception inapplicable to Luxpro's claims. Luxpro, 658 F. Supp. 2d at 927-28 (noting that Luxpro "does not challenge" Apple's showing that litigation was not sham). Luxpro nonetheless requests either "reconsideration" of the issue or that it be allowed to "re-raise" the issue. (Opp. at 50 n.209.) "Motions for reconsideration serve a limited function: to correct errors manifest errors of law or fact or to present newly discovered evidence." Dismuke v. Connor, No. 05-CV-1003, 2008 U.S. Dist. LEXIS 2030, *2 (W.D. Ark. Jan. 10, 2008) (quoting Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988).) Luxpro has failed to meet this standard, and provides no other basis for the Court to disregard its prior ruling. Even if the Court reconsiders the sham litigation issue, the result must be the same. Luxpro fails to offer any legal authority to support its argument, fails to discuss or counter any of Apple's authority, and entirely misses the point of the sham litigation exception. (See Opp. at 57-59.) The thrust of Luxpro's argument is its contention that Apple relied on a "vague" and "baseless" trade dress theory in the German and Taiwanese litigations, and "misrepresented" to these courts that Apple owned intellectual property covering Luxpro's products. (Id. at 57.) But 15
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this argument is nothing more than an improper attempt to re-litigate issues already decided in the prior actions -- an attempt precluded by Professional Real Estate. A party's success in litigation conclusively establishes that the suit was not a sham. Prof'l Real Estate, 508 U.S. at 61 n.5 ("A winning lawsuit is by definition a reasonable effort at petitioning for redress and therefore not a sham."). Luxpro concedes that Apple achieved success in the prior litigation: the Taiwanese District Court granted Apple's request for an injunction as to all of Luxpro's products; the Taiwanese appellate courts upheld the grant of the injunction as to Luxpro's Super Tangent (formerly known as the "Super Shuffle"); and Apple won an injunction in Germany, which is still in place today. The case thus falls squarely within Professional Real Estate. Indeed, the mere grant of a preliminary injunction establishes as a matter of law that the litigation is not objectively baseless. (Mot. at 15 (citing Omni Resource Dev. Corp. v. Conoco, Inc., 739 F.2d 1412, 1414 (9th Cir. 1984); Coca-Cola, 1998 U.S. Dist. LEXIS 23277 at *26 n.2; Sugar Busters, LLC v. Brennan, No. 98-1562 S3, 1999 U.S. Dist. LEXIS 2289, *13 (E.D. La. Feb. 19, 1999).) Luxpro fails to respond to any of these cases, and they are dispositive of its purported "sham" claim.10 Furthermore, Luxpro's assertions regarding Apple's alleged subjective motivation to "harass" a competitor and drive Luxpro out of business (Opp. at 56) cannot save its claims. As Luxpro concedes (Opp. at 50 n.208), because Apple's litigation against Luxpro was not objectively baseless, Apple's subjective intent in bringing the litigation is immaterial and cannot be considered by the Court. (See Mot. at 15 (citing Prof'l Real Estate, 508 U.S. at 57-60).)
10

Luxpro's suggestion that Apple needed to have succeeded on its claims with respect to all of Luxpro's products to satisfy Professional Real Estate (Opp. at 58-59) is wrong. The fact that Apple won preliminary injunctive relief as to all products is more than sufficient to bar Luxpro from demonstrating that the Taiwanese litigation was objectively baseless.

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Because Apple achieved success in the underlying cases in Taiwan and Germany, Luxpro cannot demonstrate that the sham litigation exception applies. Successful litigation cannot, as a matter of law, be a sham under Professional Real Estate. The inquiry should end there. 2. Luxpro's Purported Challenge to Apple's Intellectual Property Rights Is Nothing More than an Assertion of the Sham Litigation Exception and Fails as a Matter of Law

Luxpro contends that the Noerr-Pennington doctrine cannot apply, because Apple has not sought to protect any legitimate intellectual property rights. (Opp. at 47-48.) Luxpro claims that "Apple has made no showing . . . that it owns a registered, valid intellectual property right in either Germany or Taiwan related to the shape and design of the Apple iPod Shuffle product." (Id. at 47.) Luxpro's challenge to Apple's underlying intellectual property rights is nothing more than a sham litigation argument under Professional Real Estate. See Honeywell Int'l, Inc. v. Univ. Avionics Sys. Corp., 343 F. Supp. 2d 272, 325 (D. Del. 2004) (claim that patent holder knew patents were invalid when it filed lawsuits is part of "sham litigation" analysis); IDX Sys. Corp. v. Epic Sys. Corp., 165 F. Supp. 2d 812, 821 (W.D. Wis. 2001), aff'd and rev'd on other grounds, 285 F.3d 581 (7th Cir. 2002) (claim that defendant did not have trade secrets part of "sham litigation" analysis). As demonstrated above, the sham litigation exception fails in this case as a matter of law. Luxpro ignores the fact that the Taiwanese and German courts held that the shape and design of Apple's iPod Shuffle was protected intellectual property. The Noerr-Pennington doctrine applies to efforts to protect trade dress, just as it does to efforts to protect all intellectual property. See, e.g., Letica Corp. v. Sweetheart Cup Co., 790 F. Supp. 702, 704-05 (E.D. Mich. 1992) (applying Noerr-Pennington to dismiss claim based on defendant's protection of trade dress in disposable drink cups).

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3.

The "Pattern" Exception Fails as a Matter of Law

Luxpro's alternative argument -- that the "pattern" exception to Noerr-Pennington allows its claims to proceed to discovery -- is meritless. First, it is questionable whether the "pattern" exception even exists. The "pattern" exception has been rejected by a number of courts, including courts in the Eighth Circuit. See, e.g., Travelers Express Co. v. Am. Express Integrated Payment Sys., 80 F. Supp. 2d 1033, 1042 (D. Minn. 1999) (holding that the "appropriate inquiry is to determine whether each of the prior lawsuits was objectively baseless"). Moreover, the pattern exception is not pled in the SAC and has never before been raised by Luxpro; Luxpro cannot raise it now. Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) ("In determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint to a plaintiff's moving papers, such as a memorandum in opposition to a defendant's motion to dismiss."). In any event, Luxpro cannot allege a pattern here. The "pattern" exception, generally associated with the Ninth Circuit's decision in USS-POSCO, applies only where a defendant has brought "a whole series of legal proceedings." USS-POSCO, 31 F.3d at 810-11 (twenty-nine actions). A "series" means more than just a few lawsuits; it means "a large volume of repeated, consistently baseless litigation." In re Fresh Del Monte Pineapple Antitrust Litig., No. 04 MD 1628 (RMB)(MHD), 2007 U.S. Dist. LEXIS 1372, *54 n.19 (S.D.N.Y. Jan. 4, 2007) (two lawsuits insufficient). There is no "pattern" here. Apple commenced one action against Luxpro in Germany and another in Taiwan.11 It also commenced an administrative proceeding in Taiwan. The case
11

Luxpro attempts to add to the number by counting the appeals in the Taiwan litigation. There is no basis for counting appeals separately, since they are obviously part of the same proceeding. Cf. Amarel v. Connell, 102 F.3d 1494, 1519 (9th Cir. 1996) (counterclaim containing same allegation as earlier suit not counted as separate litigation).

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law discussed above establishes that two court cases and one administrative proceeding cannot constitute a "pattern." See Coca-Cola, 1998 U.S. Dist. LEXIS 23277 at *24 (four cases not a pattern); Ludwig, 37 Cal. App. 4th at 29 n.33 (same). Indeed, in the cases Luxpro cites, the lowest number of proceedings found to constitute a pattern is nine. See Livingston Down