Realnetworks, Inc. et al v. DVD Copy Control Association, Inc. et al

Filing 444

MOTION to Dismiss NOTICE OF MOTION AND MOTION OF DVD COPY CONTROL ASSOCIATION, INC. TO DISMISS COUNTERCLAIMS filed by DVD Copy Control Association, Inc.. Motion Hearing set for 9/14/2009 02:00 PM in Courtroom 15, 18th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Steer, Reginald) (Filed on 7/14/2009)

1 REGINALD D. STEER (SBN 056324) [e-mail] 2 MARIA ELLINIKOS (SBN 235528) [e-mail] 3 AKIN GUMP STRAUSS HAUER & FELD LLP 580 California Street, 15th Floor 4 San Francisco, California 94104-1036 Telephone: [phone] Facsimile: [phone] 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
[PROPOSED] ORDER GRANTING MOTION TO DISMISS CASE NO. C08 04548 MHP; C08 CV 04719 MHP

STEPHEN MICK (SBN 131569) [e-mail] MICHAEL SMALL (SBN 222768) [e-mail] AKIN GUMP STRAUSS HAUER & FELD LLP 2029 Century Park East, Suite 2400 Los Angeles, California 90067-3012 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant and Counterclaimant DVD COPY CONTROL ASSOCIATION, INC.

WILLIAM SLOAN COATS (SBN 94864) [e-mail] MARK WEINSTEIN (SBN 193043) [e-mail] MARK F. LAMBERT (SBN 197410) [e-mail] WHITE & CASE LLP 3000 El Camino Real 5 Palo Alto Square, 9th Floor Palo Alto, California 94306 Telephone: [phone] Facsimile: [phone]

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA REALNETWORKS, INC., a Washington Corporation; and REALNETWORKS HOME ENTERTAINMENT, INC., a Delaware corporation, Plaintiffs, v. DVD COPY CONTROL ASSOCIATION, INC., a Delaware nonprofit corporation, et al. Defendants. Case No. C08 04548 MHP Related Case No. C08 CV 04719 MHP [PROPOSED] ORDER GRANTING MOTION OF DVD COPY CONTROL ASSOCIATION, INC. TO DISMISS COUNTERCLAIMS Before: Courtroom: Date: Time: Hon. Marilyn Hall Patel 15 September 14, 2009 2:00 p.m.

AND RELATED CASES

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The Court having considered the Motion of DVD Copy Control Association, Inc. ("DVD CCA") to dismiss the Counterclaims of RealNetworks, Inc. and RealNetworks Home Entertainment, Inc. (collectively, "RealNetworks"), and good cause appearing, IT IS HEREBY ORDERED that: (1) DVD CCA's motion to dismiss RealNetworks's First, Second, and Third Causes of

Action against DVD CCA is GRANTED. (2) The Court concludes as a matter of law that RealNetworks's First Cause of Action, for

Group Boycott in Violation of Section 1 of the Sherman Act, fails to state a claim upon which relief may be granted because RealNetworks does not plausibly allege that DVD CCA took part in any conspiracy to violate the antitrust laws. Moreover, RealNetworks First Cause of Action fails to state a claim upon which relief may be granted because (1) DVD CCA's conduct as licensor of CSS technology cannot be part of an antitrust conspiracy because it is the conduct of a single entity, not of more than one entity as is required to state a claim for an antitrust conspiracy and (2) all of the actions that are alleged to be part of the supposed conspiracy are immunized from liability by the Noerr-Pennington doctrine. (3) The Court further concludes as a matter of law that RealNetworks's Second Cause of Action, for violation of the Cartwright Act (Bus. & Prof. Code § 16700 et seq.), and Third Cause of Action, for violation of California Unfair Competition Law (Bus. & Prof. Code § 17200 et seq.), fail for the same reasons, because they are premised on the same allegations as RealNetworks's Sherman Act claim. It is so ORDERED. Dated: ___________, 2009 ____________________________ The Honorable Marilyn Hall Patel United States District Judge Submitted by: AKIN GUMP STRAUSS HAUER & FELD, LLP

By: _________/s/________________ REGINALD D. STEER

[PROPOSED] ORDER GRANTING MOTION TO DISMISS CASE NO. C08 04548 MHP; C08 CV 04719 MHP
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