T-Mobile U.S.A., Inc. v AU Optronics Corporation, et al

Filing 29

RESPONSE/Opposition to 28 Order on Motion for AUTHORIZING PLAINTIFF TO SERVE DEFENDANTS CHUNGHWA PICTURE TUBES, LTD. AND TATUNG CO. THROUGH THEIR U.S. COUNSEL (SI, COURT STAFF) (Filed on 7/12/2011) by Chunghwa Picture Tubes Ltd, Tatung Company. (Ahern, Patrick) (Filed on 7/29/2011) Modified on 8/1/2011 (ys, COURT STAFF).

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Bruce H. Jackson (State Bar No. 98118)
([e-mail])
BAKER & MCKENZIE LLP
Two Embarcadero Center, 11th Floor
San Francisco, CA 94111-3802
Telephone: [phone]
Facsimile: [phone]
Patrick J. Ahern (pro hac vice)
([e-mail])
Roxane C. Busey (pro hac vice)
([e-mail])
Karen Sewell (pro hac vice)
([e-mail])
BAKER & MCKENZIE LLP
130 E. Randolph Dr., Suite 3500
Chicago, IL 60601
Telephone: [phone]
Attorneys for Defendants
Chunghwa Picture Tubes, Ltd. and Tatung Company

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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IN RE TFT-LCD (FLAT PANEL)
ANTITRUST LITIGATION

Master Docket No. C M:07-01827 SI
Individual Case No. C 3:11-02591 SI

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THIS DOCUMENT RELATES TO:

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T-MOBILE U.S.A., I.N.C.,

DEFENDANTS CHUNGHWA PICTURE
TUBES, LTD. AND TATUNG
COMPANY’S OPPOSITION TO THE
COURT’S RULING AUTHORIZING
PLAINTIFF TO SERVE DEFENDANTS
CHUNGHWA PICTURE TUBES LTD.
AND TATUNG COMPANY THROUGH
THEIR U.S. COUNSEL PURSUANT TO
FED. R. CIV. P. 4(f)(3)

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Plaintiff,

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v.

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AU OPTRONICS CORPORATION, ET AL.

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Defendant.

Date:
Time:
Court Room:

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August 12, 2011
9:00 a.m.
No. 10
Honorable Susan Illston

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DEFENDANTS CHUNGHWA PICTURE TUBES, LTD. AND TATUNG COMPANY’S OPPOSITION IN RESPONSE TO MOTION BY TMOBILE USA, INC. FOR ORDER AUTHORIZING PLAINTIFF TO SERVE DEFENDANTS CHUNGHWA PICTURE TUBES LTD. AND
TATUNG COMPANY THROUGH THEIR U.S. COUNSEL PURSUANT TO FED. R. CIV. P. 4(f)(3)
Master Docket No. C M:07-01827 SI
Individual Case No. C 3:11-02591 SI

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INTRODUCTION

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Defendants Chunghwa Picture Tubes, Ltd. (“CPT”) and Tatung Company respectfully

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submit this opposition to the Court’s tentative ruling dated July 12, 2011, regarding T-Mobile’s Rule

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4(f) motion. Defendants incorporate by reference their prior briefs on this issue in this case. See

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Docket Nos. 1591 and 1715. In addition, Defendants respectfully submit some new authority,

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decided in this District, on the issue of service under Rule 4(f)(3), in support of their opposition.
ARGUMENT

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In Fujitsu Ltd. v. Belkin Int’l, Inc., 2011 U.S. Dist. LEXIS 34076 (N.D. Cal. Mar. 29, 2011),

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the court recently denied plaintiff’s request to serve two Taiwanese corporations through their U.S.

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counsel pursuant to Rule 4(f) in circumstances similar to those present in this case. Similar to CPT

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and Tatung Company, both Taiwanese corporations in Fujitsu were aware of the litigation at issue,

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and were represented by the same counsel, who had already filed motions on behalf of both

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defendants in the case. Id. at 25 n.11. Citing this Court’s decision in In re TFT-LCD (Flat Panel)

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Antitrust Litig., 270 F.R.D. 535, 537, the court noted that effecting service through the letters

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rogatory process would be expensive and time consuming, cause significant delays, and prevent the

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plaintiff from coordinating discovery activities with all of the defendants in the case. Id. at 26.

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Nonetheless, the court held that these circumstances did not justify ordering service on the two

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Taiwanese corporations in a manner not prescribed by Taiwanese law. Id.
Specifically, the court held that it would be “inappropriate” to order service on the two

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Taiwanese corporations through their U.S. counsel because the circumstances at issue in the case

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were distinguishable from those at issue in the three cases the plaintiff cited in its brief: Rio

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Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007 (9th Cir. 2002), Network-01 Sec. Solutions, Inc.

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v. D0Link Corp. et al., no. 6:05-CV-291-LED, Dkt. No. 55 (E.D. Tex. Feb. 8, 2006), and In re TFT-

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LCD. Id. at 29-30. In contrast to the circumstances at issue in Fujitsu, Rio Properties involved “an

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elusive international defendant, striving to evade service;”1 Network-01 involved a waiver of service

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Id. at 27.

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DEFENDANTS CHUNGHWA PICTURE TUBES, LTD. AND TATUNG COMPANY’S OPPOSITION IN RESPONSE TO MOTION BY TMOBILE USA, INC. FOR ORDER AUTHORIZING PLAINTIFF TO SERVE DEFENDANTS CHUNGHWA PICTURE TUBES LTD. AND
TATUNG COMPANY THROUGH THEIR U.S. COUNSEL PURSUANT TO FED. R. CIV. P. 4(f)(3)
Master Docket No. C M:07-01827 SI
Individual Case No. C 3:11-02591 SI

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pursuant to Rule 4(d);2 and In re TFT-LDC involved a Multidistrict Litigation (“MDL”) where “any
delay in serving the defendant Taiwanese corporation would keep the plaintiff from
coordinating…discovery with the other MDL plaintiffs.” Id. at 28.

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Similar to Fujitsu, none of the circumstances supporting alternate service pursuant to Rule
4(f) in the above-reference cases are present in this case. In contrast to Rio Properties, T-Mobile has
not presented any evidence showing that Defendants are striving to evade process or are unwilling to
accept service in conformity with Taiwanese law. Unlike Network-01, Defendants’ U.S. counsel has
not agreed to waive service of process in this case. And, even though T-Mobile’s individual action is
part of the MDL the court referenced when distinguishing In re TFT-LCD, any delay in serving
Defendants would not preclude T-Mobile from coordinating or participating in discovery with other
MDL plaintiffs, or prejudice T-Mobile in any other way.3 In fact, T-Mobile has already begun
participating in discovery proceedings. On May 26, 2011, the law firm Friedman Kaplan, Seiler and
Adelman LLP made a telephonic appearance on behalf of T-Mobile in Katsuyuki Furujo’s
deposition and, even though T-Mobile’s counsel did not actively participate by asking questions, it
had ample opportunity to do so. Furthermore, T-Mobile’s case in on the DAP Track 2, which does
not have a discovery cut-off as of yet. As such, Fujitsu applies to the circumstances at issue in this
case and T-Mobile’s Motion should be denied accordingly.

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CONCLUSION

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For the reasons stated above, Defendants Chunghwa Picture Tubes Ltd. and Tatung
Company respectfully request that the Motion by T-Mobile USA, Inc. For Order Authorizing
Plaintiff To Serve Defendants Chunghwa Picture Tubes Ltd. and Tatung Company Through Their
U.S. Counsel Pursuant to Fed. R. Civ. P. 4(f)(3) be denied.

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2

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In Network-01 the court ordered service on defendant’s U.S. counsel pursuant to Rule 4(f) after defendant’s counsel
represented at oral argument that he would waive service under Rule 4(d). Id.
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Also distinguishable are the facts that Baker & McKenzie was not counsel for CPT and Tatung in the class, and Tatung
Company was not a defendant in the class.

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DEFENDANTS CHUNGHWA PICTURE TUBES, LTD. AND TATUNG COMPANY’S OPPOSITION IN RESPONSE TO MOTION BY TMOBILE USA, INC. FOR ORDER AUTHORIZING PLAINTIFF TO SERVE DEFENDANTS CHUNGHWA PICTURE TUBES LTD. AND
TATUNG COMPANY THROUGH THEIR U.S. COUNSEL PURSUANT TO FED. R. CIV. P. 4(f)(3)
Master Docket No. C M:07-01827 SI
Individual Case No. C 3:11-02591 SI

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BAKER & McKENZIE LLP

Dated: July 29, 2011

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By: /s/ Patrick J. Ahern
Patrick J. Ahern
Attorneys for Defendant
Chunghwa Picture Tubes, Ltd. and
Tatung Company

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Bruce H. Jackson (State Bar No. 98118)
([e-mail])
BAKER & MCKENZIE LLP
Two Embarcadero Center, 11th Floor
San Francisco, CA 94111-3802
Telephone: [phone]
Facsimile: [phone]
Of Counsel:
Patrick J. Ahern
([e-mail])
Roxane C. Busey
([e-mail])
Karen Sewell
([e-mail])
BAKER & McKENZIE LLP
One Prudential Plaza
130 East Randolph Drive
Chicago, IL 60601
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
CHUNGHWA PICTURE TUBES, LTD.

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DEFENDANTS CHUNGHWA PICTURE TUBES, LTD. AND TATUNG COMPANY’S OPPOSITION IN RESPONSE TO MOTION BY TMOBILE USA, INC. FOR ORDER AUTHORIZING PLAINTIFF TO SERVE DEFENDANTS CHUNGHWA PICTURE TUBES LTD. AND
TATUNG COMPANY THROUGH THEIR U.S. COUNSEL PURSUANT TO FED. R. CIV. P. 4(f)(3)
Master Docket No. C M:07-01827 SI
Individual Case No. C 3:11-02591 SI

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CERTIFICATE OF SERVICE
The undersigned counsel hereby certifies that a true and correct copy of the foregoing
document was served upon the parties and counsel of record, through the Court’s ECF system, on
July 29, 2011.

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/s/ Patrick J. Ahern
Patrick J. Ahern
One of the Attorneys for Defendants
Chunghwa Picture Tubes, Ltd. and Tatung
Company