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

Filing 900

NOTICE by Apple Inc.(a California corporation) Translations of Foreign Authority (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 8, #9 Exhibit 9, #10 Exhibit 10, #11 Exhibit 11, #12 Exhibit 12, #13 Exhibit 13, #14 Exhibit 14, #15 Exhibit 15, #16 Exhibit 16, #17 Exhibit 17, #18 Exhibit 18, #19 Exhibit 19, #20 Exhibit 20, #21 Exhibit 21, #22 Exhibit 22, #23 Exhibit 23, #24 Exhibit 24, #25 Exhibit 25, #26 Exhibit 26, #27 Exhibit 27, #28 Exhibit 28, #29 Exhibit 29, #30 Exhibit 30, #31 Exhibit 31, #32 Exhibit 32, #33 Exhibit 33, #34 Exhibit 34, #35 Exhibit 35, #36 Exhibit 36, #37 Exhibit 37, #38 Exhibit 38, #39 Exhibit 39, #40 Exhibit 40, #41 Exhibit 41, #42 Exhibit 42, #43 Exhibit 43, #44 Exhibit 44, #45 Exhibit 45, #46 Exhibit 46, #47 Exhibit 47, #48 Exhibit 48, #49 Exhibit 49, #50 Exhibit 50, #51 Exhibit 51, #52 Exhibit 52, #53 Exhibit 53, #54 Exhibit 54, #55 Exhibit 55, #56 Exhibit 56, #57 Exhibit 57, #58 Exhibit 58, #59 Exhibit 59, #60 Exhibit 60, #61 Exhibit 61, #62 Exhibit 62, #63 Exhibit 63)(Selwyn, Mark) (Filed on 5/7/2012)

Exhibit 22

16 February 2012

Court of cassation
Plenary assembly
Public hearing on 1 December 1995
Appeal no.: 91-15999
Published in the bulletin
Cassation
President: Mr. Drai., president
Rapporteur: Mrs. Fossereau, assisted by Mrs. Merchan de la Pena, auditor, reporting
judge
First Advocate General: Mr. Jéol, advocate general
Attorneys: Partners Boré and Xavier (ruling no. 1), partners Defrénois and Levis, partners
Rouvière and Boutet (ruling no. 2), attorney(s)

THE FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE
RULING NO. 2
On the only grounds for appeal, based on its first prong:

Given articles 1709 and 1710, together with Articles 1134 and 1135 of the Civil Code;

Whereas when an agreement provides for the conclusion of subsequent contracts, the
price indeterminacy of these contracts in the initial agreement does not affect, barring any
specific legal provisions, the validity thereof, price fixing abuse leads only to termination or
compensation;

Whereas, according to the decision granted, that, on 15 November 1982, Bechtel France

(hereinafter, Bechtel) signed with the Compagnie française de téléphone (hereinafter
Cofratel), for a duration of 15 years, a "lease-maintenance" agreement, relating to the
telephone system in its offices; that, on 28 June 1984, Bechtel informed Cofratel about the
closure of part of its facilities and, subsequently, of termination of the contract; that
Cofratel sued Bechtel for payment of the amount of the penalty clause provided in case of
premature termination of the agreement and that Bechtel countered by invoking the
contract revocation for price indeterminacy;

Whereas, to pronounce this revocation, the ruling maintains that if "the obligation to use
Cofratel applies only to intrinsic system changes and does not prevent Bechtel from
contacting other suppliers for the purchase and use of a complementary or similar device,
the fact remains that any changes to the system can only be performed by Cofratel who
benefits in this regard from an exclusivity clause;"

By ruling in this manner, the appellate court violated the aforementioned provisions;

FOR THESE REASONS:

RENDERED NULL AND VOID, in all of its provisions, the ruling given on 26 March 1991,
between the parties, by the Court of Appeals in Paris; consequently places the suit and the
parties in the state where they reside before the said ruling and, as required by law,
remands the case to the appellate court of Paris otherwise composed.

ANNEXED GROUNDS

Grounds produced by partners Richard and Mandelkern, advocate in council, for Le
Montparnasse.

GROUNDS FOR APPEAL:

An objection is raised to the contested reversal ruling for pronouncing the contract signed
on 15 November 1982 by Bechtel France with Cofratel null and void and having dismissed
all claims by the latter;

ON THE GROUNDS THAT if the obligation to use Cofratel applies only to intrinsic system
changes and does not prevent Bechtel from contacting other suppliers for the purchase

and use of complementary or similar devices, the fact remains that any changes to the
system can be made by Cofratel who benefits in this regard from an exclusivity clause;
(...); that also, in the absence of any item in the contract enabling the avoidance of price
fixing of these modifications at the sole discretionary value of Cofratel, with sole authority
to perform them, the entire agreement should be canceled due to price indeterminacy of
services and supplies under Article 8, in accordance with the provisions of Article 1129 of
the Civil Code, and to the extent that the parties were bound by a long-term contract;

1) WHEREAS, the contracts that are intended only for performance obligations are not
subject to the price determination requirements; that in this case, the appellate court
expressly noted that the exclusivity clause stipulated for the benefit of Cofratel involved
intrinsic system changes excluding the purchase and use of a similar or complimentary
device; that the disputed clause thus gave rise to a performance obligation not subject to
the requirement for a certain price, that since, in ruling as it did, the appellate court violated
Article 1129 of the Civil Code; at any rate, its decision has no legal foundation based on
this text;

2) WHEREAS, Cofratel argued, in its final arguments, that if Bechtel decided to use the
services from Cofratel, it had the option to discuss the numerical estimate submitted to it
and was perfectly free not to contract with or to contact the competition; by failing to
respond to these peremptory findings, the appellate court violated Article 455 of the Code
of Civil Procedure.
Publication: Bulletin 1995 A. P. N° 7 p. 13

Contested decision: Court of Appeals of Paris, on 26 March 1991

Titles and summaries: CONTRACTS AND OBLIGATIONS - Subject - Determination Lease-maintenance contract - Price of future services - Fixation - Violation - Sanctions.
Whereas when an agreement provides for the conclusion of subsequent contracts, the
price indeterminacy of these contracts in the initial agreement does not affect, barring any
specific legal provisions, the validity thereof, price fixing abuse leads only to termination or
compensation;

TELECOMMUNICATIONS JOBS- Telephone -Telephone system - Lease and
maintenance contract - Price of services in case of modification or extension - Absence Effect CONTRACTS AND OBLIGATIONS - Subject - Determination - Necessity - Scope of
use - Telephone system - Price of services in case of modification or extension (or not)
CONTRACTS AND OBLIGATIONS - Subject - Determination - Necessity - Scope of use Framework agreement - Subsequent contracts - Price - Fixation - Violation - Sanctions

Applicable laws:
• Civil Code 1709, 1710, 1134, 1135