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

Filing 270

REPLY in support of ( #256 MOTION for Leave to File Amicus Curiae Brief ) filed by Cellco Partnership dba Verizon Wireless. (Morton, Melinda) (Filed on 9/29/2011) Modified text on 9/30/2011 (dhm, COURT STAFF).

1 DANIEL J. BERGESON, Bar No. 105439
[e-mail]
 MELINDA M. MORTON, Bar No. 209373
[e-mail]
 BERGESON, LLP
303 Almaden Boulevard, Suite 500
 San Jose, CA 95110-272
Telephone: [phone]
 Facsimile: [phone]
 Of Counsel:
MICHAEL E. JOFFRE
 AARON M. PANNER
KELLOGG, HUBER, HANSEN, TODD,

EVANS & FIGEL, PLLC
1615 M Street N.W., #400
 Washington, DC 20036
Telephone: [phone]
 Facsimile: [phone]
 Attorneys for Amicus Curiae
Cellco Partnership d/b/a Verizon Wireless




UNITED STATES DISTRICT COURT



NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

 APPLE INC., a California corporation,

CASE NO. 11-CV-01846-LHK



AMICUS CURIAE CELLCO
PARTNERSHIP’S REPLY IN SUPPORT
OF ITS MOTION FOR LEAVE TO FILE
AN AMICUS CURIAE BRIEF



Plaintiff,
vs.

 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.


Date: October 13, 2011
Time: 1:30 pm
Courtroom 8, 4th Floor
Judge: Hon. Lucy H. Koh







AMICUS CURIAE CELLCO PARTNERSHIP’S REPLY ISO MOTION
FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF

Case No. 11-cv-01846-LHK

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Third-party Verizon Wireless moved for leave to file an amicus brief to inform the Court

2 of the potential adverse effects on the public interest of Apple’s proposed preliminary injunction.
3 Apple opposed that motion and, in the alternative, requested an opportunity to submit a
4 substantive response on October 6. Verizon Wireless takes no position on Apple’s request for a
5 response. Rather, Verizon Wireless’s only interest is to ensure that the Court is made aware of the
6 full impact that an injunction on Samsung’s next-generation devices would have on third parties
7 and U.S. consumers.
8

As Apple’s opposition admits, “Samsung’s own opposition briefing devoted little space” to

9 the public-interest issues relevant to a preliminary injunction motion. Apple’s Opp’n To
10 Cellco/Verizon Wireless’s Mot. For Leave to File Amicus Curiae Br., ECF No. 262 at 1 (Sept. 27,
11 2011) (“Opp’n”). Rather than count against Verizon Wireless’s motion for leave to file an amicus
12 brief, this point strongly reinforces the importance of considering Verizon Wireless’s arguments
13 because they may not be adequately addressed by the parties. And as Apple’s opposition states,
14 Verizon Wireless “ ‘uniquely’ possesses factual information that supports its positions.” Id. The
15 Court should have the benefit of that information in analyzing the harm to the public interest.1 See
16 Roper Corp. v. Litton Sys., Inc., 757 F.2d 1266, 1269 n.2 (Fed. Cir. 1985) (requiring that each
17 factor for a preliminary injunction be considered). Apple’s arguments to the contrary lack merit.
Apple first argues the “Federal Rules of Civil Procedure do not provide for a non-party’s

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19 submission of amicus briefs in district courts.” Opp’n at 1. But this Court has not only allowed
20 amicus briefs, it has held repeatedly that leave to file amicus briefs is freely granted. See, e.g.,
21 Sonoma Falls Developers, LLC v. Nevada Gold & Casinos, Inc., 272 F. Supp. 2d 919, 925 (N.D.
22 Cal. 2003) (“District courts frequently welcome amicus briefs from non-parties concerning legal
23 issues that have potential ramifications beyond the parties directly involved or if the amicus has
24 unique information or perspective that can help the court beyond the help that the lawyers for the
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For the same reasons, Verizon Wireless supports amicus curiae T-Mobile USA, Inc.’s
separate motion for leave to file a brief in this case. See Mot. For Leave to File Br. of Amicus
27
Curiae T-Mobile USA, Inc., ECF No. 263 (Sept. 28, 2011).
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AMICUS CURIAE CELLCO PARTNERSHIP’S REPLY ISO MOTION
FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF

Case No. 11-cv-01846-LHK

1 parties are able to provide.”) (internal quotation marks omitted); NGV Gaming, Ltd. v. Upstream
2 Point Molate, LLC, 355 F. Supp. 2d 1061, 1067 (N.D. Cal. 2005) (same); Infineon Techs. N. Am.
3 Corp. v. Mosaid Techs., Inc., C 02-5772 JFRS, 2006 WL 3050849, at *3 (N.D. Cal. Oct. 23, 2006)
4 (same).
5

Apple next argues that Verizon Wireless’s brief should have complied with Federal Rule

6 of Appellate Procedure 29(e), which requires an amicus brief to be filed within 7 days of the
7 principal brief that it supports. Opp’n at 1. But this case presents an entirely different situation
8 than an appellate case. Appellate briefs are publicly available,2 enabling potential amici to review
9 and decide whether to file a brief within those 7 days. In this case, Samsung lodged its
10 preliminary injunction opposition under seal. See Samsung’s Stipulated Administrative Mot. To
11 File Under Seal, ECF No. 175 (Aug. 22, 2011). Apple has filed a declaration in support of
12 keeping Samsung’s brief confidential. See Decl. of Cyndi Wheeler, ECF No. 194 (Aug. 30,
13 2011). Thus, Verizon Wireless has never been able to review Samsung’s opposition brief. It
14 would make no sense to impose a deadline based on the filing of a brief that Verizon Wireless
15 cannot read. In any event, the schedule of briefing before appellate courts has little applicability to
16 a compressed preliminary injunction briefing schedule.
17

Finally, Apple claims that it is prejudiced because it would need discovery to respond to

18 Verizon Wireless’s brief. See Opp’n at 1. But Verizon Wireless relied solely on publicly
19 available information in support of its brief. Additionally, Apple was provided with a version of
20 the amicus brief as early as September 9, 2011. It is unclear what discovery Apple would need to
21 respond to publicly available information that it has known about for weeks.
22

In sum, Verizon Wireless respectfully submits that its amicus brief may aid the Court in

23 considering the effect Apple’s proposed injunction will have on the U.S. economy and millions of
24 consumers. Verizon Wireless’s request should be granted.
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2

While a party may keep information confidential in appellate briefs, a redacted public version
must be concurrently filed with the confidential brief. See Fed. Cir. Rule 28(d)(2). A redacted
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version of Samsung’s opposition brief has not been filed in this case.
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AMICUS CURIAE CELLCO PARTNERSHIP’S REPLY ISO MOTION
FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF

Case No. 11-cv-01846-LHK

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2 September 29, 2011

/s Melinda M. Morton
Daniel J. Bergeson, Bar No. 105439
[e-mail]
Melinda M. Morton, Bar No. 209373
[e-mail]
Bergeson, LLP
303 Almaden Boulevard, Suite 500
San Jose, CA 95110-2712
Telephone: [phone]
Facsimile: [phone]

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Of Counsel:
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Michael E. Joffre
Aaron M. Panner
KELLOGG, HUBER, HANSEN, TODD,
EVANS & FIGEL, PLLC
1615 M Street N.W., #400
Washington, DC 20036
Telephone: [phone]
Facsimile: [phone]
Attorneys for Cellco Partnership d/b/a Verizon Wireless

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AMICUS CURIAE CELLCO PARTNERSHIP’S REPLY ISO MOTION
FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF

Case No. 11-cv-01846-LHK