Motorola, Inc. v. AU Optronics Corporation et al

Filing 464

ORDER DENYING DEFENDANTS' MOTION TO CERTIFY UNDER 28 U.S.C. SECTION 1292(b) 6590 in case 3:07-md-01827-SI; 436 in case 3:09-cv-05840-SI (Illston, Susan) (Filed on 10/1/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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IN RE: TFT-LCD (FLAT PANEL) ANTITRUST
LITIGATION
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Case No. C 09-5840 SI

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No. M 07-1827 SI
MDL. No. 1827

ORDER DENYING DEFENDANTS’
MOTION TO CERTIFY UNDER 28 U.S.C.
§ 1292(b)

This Order Relates to:
Motorola Mobility, Inc. v. AU Optronics
Corporation, et al., C 09-5840 SI

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Defendants’ motion to certify for interlocutory appeal is set for hearing on October 5, 2012.
Pursuant to Civil Local Rule 7-1(b), the Court determines that the matter is appropriate for resolution
without oral argument, and VACATES the hearing. For the reasons set forth in this order, the Court
DENIES the motion.
Defendants seek interlocutory review of this Court’s Order Denying Defendants’ Joint Motion
for Summary Judgment on Motorola Mobility, Inc.’s Sherman Act Claim for Injuries in Foreign
Markets. Defendants’ joint motion asserted that Motorola’s claims based on TFT-LCD purchases in
foreign markets are barred by the Foreign Trade Antitrust Improvements Act, 15 U.S.C. § 6a
(“FTAIA”). In that order, the Court held that there were questions of fact concerning whether
Motorola’s claims for injuries in foreign markets fell within the “domestic injury exception” of the
FTAIA. “[W]hether the price fixing activities alleged by Motorola in this case gave rise to direct,
substantial, and reasonably foreseeable effects on domestic commerce, and whether such effects gave

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rise to a Sherman Act claim, present issues of fact which must be resolved by the jury in this case.”

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Docket No. 6422 at 2:22-3:2. The Court found, inter alia, that “Motorola has presented admissible

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evidence from which a jury could infer that final decisions regarding pricing of LCD panels took place

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in the United States” and that Motorola had submitted evidence to support its claim that foreign affiliates

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issued purchase orders at the price and quantity determined by Motorola in the United States. Id. at 5:5-

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10. The Court held that a reasonable jury could find a “concrete link between defendants’ price setting-

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conduct . . . its domestic effect, and the foreign injury suffered by Motorola and its affiliates.” Id. at

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5:20-22.
An interlocutory appeal of a non-final order may be certified if the district court determines that

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United States District Court
For the Northern District of California

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“such order involves a controlling question of law as to which there is substantial ground for difference

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of opinion and that an immediate appeal from the order may materially advance the ultimate termination

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of the litigation.” 28 U.S.C. § 1292(b); In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th

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Cir.1982). However, “Section 1292(b) is a departure from the normal rule that only final judgments are

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appealable, and therefore must be construed narrowly.” Robin James v. Price Stern Sloan, Inc., 283 F.3d

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1064, 1067 n.6 (9th Cir. 2002). The purpose of the section is to “facilitate disposition of the action by

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getting a final decision on a controlling legal issue sooner, rather than later” in order to “save the courts

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and the litigants unnecessary trouble and expense.” United States v. Adam Bros. Farming, Inc., 369 F.

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Supp. 2d 1180, 1182 (C.D. Cal. 2004).

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The Court concludes that defendants have not demonstrated that interlocutory review is

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appropriate. As an initial matter, the Court notes that at the motion to dismiss stage, the Court granted

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defendants’ request for certification of the March 28, 2011 Order Denying Defendants’ Motion to

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Dismiss the Second Amended Motorola Complaint,1 and the Ninth Circuit denied defendants’ petition

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and declined to hear the appeal. The procedural posture of this case is now quite different: discovery

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has closed, the Court has denied summary judgment, and soon the Motorola case will be transferred to

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the Northern District of Illinois for trial. At this stage of the litigation, the Court finds that an immediate

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In that order, the Court held that the second amended complaint established a “concrete link”
between defendants’ price-fixing of LCD panels, the domestic effect of that conduct, and the injury that
Motorola suffered in connection with deliveries of LCD panels abroad, and thus that Motorola had
alleged facts showing that the domestic injury exception to the FTAIA applied.
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appeal, which would likely be lengthy, will not materially advance the ultimate termination of this

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litigation.
More importantly, defendants have not shown that there is a “controlling question of law as to

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which there is a substantial ground for difference of opinion.” The Court’s summary judgment order

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evaluated the parties’ evidence and concluded that there are triable issues of fact as to whether

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Motorola’s claims for injuries in foreign markets fall within the “domestic injury exception” of the

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FTAIA. Defendants assert that the interpretation of the domestic injury exception is a question of law,

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and that based upon defendants’ view of the evidence, the material facts (“the claims at issue here were

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assigned to Motorola by its foreign subsidiaries and affiliates; the purchase prices for the panels at issue

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United States District Court
For the Northern District of California

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were contractually set outside of the United States; the LCD purchase prices were paid from outside of

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the United States; and the panels were incorporated into phones outside of United States”) show that the

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domestic injury exception cannot be met here. However, even assuming that defendants are correct that

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certain facts are immaterial, the Court’s summary judgment order found that the facts are disputed as

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to whether the purchase prices for the panels were set outside of the United States (as defendants assert),

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or whether final decisions regarding pricing of LCD panels took place in this country (as Motorola

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contends). Thus, the summary judgment order does not present a pure question of law, but rather

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involves the application of law to the factual record of this case.

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Accordingly, the Court DENIES defendants’ motion to certify under 28 U.S.C. § 1292(b).
Docket No. 6590 in M 07-1827 SI and Docket No. 436 in C 09-5840 SI.

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IT IS SO ORDERED.

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Dated: October 1, 2012
SUSAN ILLSTON
United States District Judge

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