Apple Inc. v. Samsung Electronics Co. Ltd. et al

Filing 262

OPPOSITION (re #256 MOTION for Leave to File Amicus Curiae Brief Regarding Regarding Apple's Motion for a Preliminary Injunction filed by Apple Inc.. (Bartlett, Jason) (Filed on 9/27/2011) Modified text on 9/28/2011 (dhm, COURT STAFF).

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HAROLD J. MCELHINNY (CA SBN 66781)
[e-mail]
MICHAEL A. JACOBS (CA SBN 111664)
[e-mail]
RICHARD S.J. HUNG (CA SBN 197425)
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: [phone]
Facsimile: [phone]

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WILLIAM F. LEE (pro hac vice)
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Telephone: [phone]
Facsimile: [phone]
MARK D. SELWYN (SBN 244180)
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
950 Page Mill Road
Palo Alto, California 94304
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
APPLE INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA
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APPLE INC., a California corporation,

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Plaintiff,
v.
SAMSUNG ELECTRONICS CO., LTD., A
Korean business entity; SAMSUNG
ELECTRONICS AMERICA, INC., a New York
corporation; SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC, a
Delaware limited liability company,
Defendants.

Case No.

11-cv-01846-LHK

APPLE’S OPPOSITION TO
CELLCO/VERIZON
WIRELESS’S MOTION FOR
LEAVE TO FILE AMICUS
CURIAE BRIEF REGARDING
APPLE’S MOTION FOR A
PRELIMINARY INJUNCTION
Date: October 13, 2011
Time: 1:30 p.m.
Courtroom: 8, 4th Floor
Honorable Lucy H. Koh

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APPLE’S OPPOSITION TO MOTION FOR LEAVE TO FILE AMICUS BRIEF
NO. 11-CV-01846-LHK

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Apple asks that the Court deny Verizon’s1 motion to submit an amicus brief as untimely
or, in the alternative, allow Apple to submit a response on October 6, 2011.

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Apple moved for a preliminary injunction to bar Samsung’s2 sales of four products almost
three months ago, on July 1, 2011. The Samsung defendants submitted their opposition to that
motion over a month ago, on August 22, 2011. The September 21, 2011 deadline for discovery
relating to the motion has already passed. Finally, Apple’s reply brief is due in four days, and the
October 13, 2011 hearing on Apple’s motion is in less than three weeks.3

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The Federal Rules of Civil Procedure do not provide for a non-party’s submission of
amicus briefs in district courts. Had Verizon submitted its proposed amicus brief in a federal
appellate court, however, it would have been untimely by several weeks. See Fed. R. App. P.
29(e) (explaining that an amicus brief should be filed “no later than 7 days after the principal brief
of the party being supported”).

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Verizon’s proposed submission of an amicus brief now – long after Samsung submitted its
opposition to Apple’s preliminary injunction motion, after the close of motion-related discovery,
and on the eve of Apple’s reply brief and the Court’s scheduled hearing – is disruptive to Apple’s
ability to present its positions to the Court in an orderly fashion. The belated nature of Verizon’s
request deprives Apple of the opportunity to seek discovery (whether from Verizon, Samsung, or
another company) to rebut Verizon’s claim that a preliminary injunction is contrary to the public
interest. It is important to note that Samsung’s own opposition briefing devoted little space to this
issue, and Verizon itself asserts that it “uniquely” possesses factual information that supports its
positions. See D.N. 257, Mot. for Leave at 1-2 (explaining Verizon’s belief that “it is uniquely
positioned to describe how the requested injunction may harm U.S. consumers, wireless carriers,
and businesses”). For both of these reasons, Verizon’s delay is prejudicial to Apple.

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Cellco Partnership d/b/a/ Verizon Wireless (“Verizon”).
Samsung Elecs. Co., LTD., Samsung Elecs. Am., Inc., and Samsung Telecomm. Am.,
LLC (collectively, “Samsung”).
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See D.N. 86, 115, 164.
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APPLE’S OPPOSITION TO MOTION FOR LEAVE TO FILE AMICUS BRIEF
NO. 11-CV-01846-LHK

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Having failed to explain its delay in seeking leave to submit an amicus brief until
September 23, 2011,4 and in view of the prejudice to Apple, Verizon’s request should be denied.
Should the Court be inclined to consider Verizon’s brief, Apple alternatively asks that it be
allowed to respond to Verizon’s submission on October 6, 2011 – a week after it submits its reply
brief. This would avoid conflicts with Apple’s preparations relating to that brief.

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Dated: September 27, 2011
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HAROLD J. MCELHINNY
MICHAEL A. JACOBS
JENNIFER LEE TAYLOR
JASON R. BARTLETT
MORRISON & FOERSTER LLP

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By: /s/ Michael A. Jacobs
MICHAEL A. JACOBS

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Attorneys for Plaintiff
APPLE INC.

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Verizon’s counsel first sought Apple’s consent for Verizon to submit an amicus brief on
that same day.
APPLE’S OPPOSITION TO MOTION FOR LEAVE TO FILE AMICUS BRIEF
NO. 11-CV-01846-LHK

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ECF ATTESTATION
I, JASON R. BARTLETT, am the ECF User whose ID and password are being used to
file the following document: APPLE’S OPPOSITION TO CELLCO/VERIZON WIRELESS’S
MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF REGARDING APPLE’S
MOTION FOR A PRELIMINARY INJUNCTION. In compliance with General Order 45, X.B.,
I hereby attest that Michael Jacobs has concurred in this filing.

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Dated: September 27, 2011

JASON R. BARTLETT
MORRISON & FOERSTER LLP

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By: /s/ Jason R. Bartlett
JASON R. BARTLETT

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APPLE’S OPPOSITION TO MOTION FOR LEAVE TO FILE AMICUS BRIEF
NO. 11-CV-01846-LHK