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 24

16 February 2012

Court of cassation
Plenary assembly
Public hearing on 1 December 1995
Appeal no.: 93-13688
Published in the bulletin
Dismissal
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 Richard and Mandelkern, partners Boré and Xavier., attorney(s)

THE FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE
Sole grounds for appeal, based on two prongs:

Whereas, according to the confirmatory judgment (Rennes, 11 February 1993), that in order
to operate a hotel, Le Montparnasse company, on 27 August 1987, leased from the
Compagnie armoricaine de télécommunications, whose rights are assumed by GST-Alcatel
Bretagne (hereinafter, Alcatel), a telephone system for a duration of 10 years; that in January
1990, Le Montparnasse sold its business and that the transferee did not want to take over the
telephone system; that Alcatel sued Le Montparnasse for payment in the amount of
indemnity for termination, specified in the contract;

Whereas, Le Montparnasse criticizes the ruling having set aside the plea for the revocation of
the contract and the subsequent amendments thereto, drawn from the price indeterminacy of
one portion of the stipulated "services," although, according to the argument, on the one
hand, is neither determined or determinable, as defined by Article 1129 of the Civil Code, the
price the fixing of which relies on not sufficiently specified parameters; that in this case,
Article 2 of the agreement dated 27 August 1987 provides that any extension of the initial
system will increase the lease fee, determined based on the rise of the supplier’s prices since
the last fixing that was "used as a basis," as well as according to the contractual price index
or, if the application of the index may be temporarily suspended following the alternative

measures or legal or regulatory increased coefficient adopted by the public authorities, it
being understood that these same index variations may be applied both to the equipment
associated with the leased or provided system and with the manpower if, as a result of “any
circumstance," increases incurred by the equipment supplier cannot be substantiated; that,
since, by merely stating that the parameters thus defined cannot be controlled by the parties,
to infer that the extent of the increase in the initial fee related to the extensions of the system
was completely determinable without examining whether, by its obscurity and complexity,
the calculation formula in the contract made it impossible for the lessee, bound by an
exclusivity clause, to determine the rate of increase, the appellate court decision had no legal
foundation under the aforementioned provisions; and thus, on the other hand, for the contract
to be valid it is necessary that the quantity of the subject matter of the obligation that is
disputed be determinable; it is indisputable, in this case, that the lessee was required to use
the lessor for any extension whose entry into service was subject, pursuant to Article 3, in
fine, of the contract from 27 August 1987, to payment of the fee claimed by the installer; that
therefore, by failing to investigate if, at the conclusion of amendments thereto provided in
case of modification or extension to the initial system, the prices could be freely discussed
and accepted by the parties, the decision made by the appellate court has no legal foundation
under article 1129 of the Civil Code;

But given that Article 1129 of the Civil Code does not apply to price determination and that
the appellate court did not receive any requests for termination or compensation for price
fixing abuse, its decision is legally justified;

FOR THESE REASONS:

THE APPEAL IS REJECTED. GROUNDS ANNEXED

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

SOLE GROUNDS FOR APPEAL:

The contested ruling was challenged, for having set aside the plea for revocation of the
contract and the amendments thereto because of the indeterminacy of the price of a portion of
the stipulated services;

ON THE GROUNDS THAT, in its Article 2, the agreement from 27 August 1987 stipulates
in particular, on the one hand, that any extension of the system would cause an increase of
this fee based on reference elements not relying exclusively on either party; on the other
hand, that in this case, the company should submit a price to the lessee that the latter would
ratify by signing a purchase order to serve as acknowledgement and discharge; finally, that in
case of disagreement about these proposals, the setting of the additional fee payable by the

lessee would be determined according to objective criteria, in this case the rising prices from
the supplier since the last fixing used as a basis and/or changes in the contractual price index
for manpower and small annexed supplies or any other index that could be replaced by the
public authorities; that it necessarily follows that the lessee had no obligation to extend its
system but especially in the absence of an agreement between the parties, the extent of the
increase of the initial fee associated with such an extension was completely determinable
according to parameters that none of them could control since it is undisputed that the
supplier is a third-party to the contract and that Le Montparnasse does not even argue that the
contractual price index referred to in this agreement does not exist (cf. judgment, p. 3 and 4) ;

1) WHEREAS, is neither determined nor determinable, as defined in Article 1129 of the
Civil Code, the price the fixing of which relies on parameters that are insufficiently specified;
that in this case, Article 2 of the agreement dated 27 August 1987 provides that any extension
of the initial system increase the lease fee, determined based on the rise of the supplier’s
prices since the last fixing "used as a basis" and depending on the contractual price index or,
if use of the index may be temporarily suspended, following alternative measures or the legal
or regulatory increase in the coefficient adopted by the public authorities, it is understood that
these same index variations may be applied both to the equipment associated with the leased
or provided system and with the manpower if, as a result of "any circumstances," the
increase incurred by the equipment supplier cannot be substantiated;

THAT therefore, by merely stating that the parameters thus defined cannot be controlled by
the parties, to infer that the extent of the increase of the initial fee related to the extensions of
the system was completely determinable, examining whether, by its obscurity and
complexity, the calculation formula in the contract made it impossible for the lessee, bound
by an exclusivity clause, to determine the rate of increase, the appellate court decision had no
legal foundation under the aforementioned provisions;

2) WHEREAS, for the contract to be valid it is necessary that the quantity of the subject
matter of the obligation that is in dispute be determinable; it is undisputed, in this case, that
the lessee was required to use the lessor for any extension of the initial system, an extension
whose entry into service was subject, pursuant to Article 3, in fine, of the contract from 27
August 1987, to payment of the fees claimed by the installer;

THAT therefore, by failing to investigate if, at the conclusion of amendments thereto
provided in case of modification or extension of the initial system, the prices could be freely
discussed and accepted by the parties, the decision made by the appellate court has no legal
foundation under Article 1129 of the Civil Code.
Publication: Bulletin 1995 A. P. N° 9 p. 16

Contested decision: Court of Appeals in Rennes, on 11 February 1993

Titles and summaries: CONTRACTS AND OBLIGATIONS - Subject - Determination -

Price - Article 1129 of the Civil Code - Application (or not) . Since Article 1129 of the Civil
Code is not applicable to the determination of price, the abuse in the fixing thereof only gives
rise to termination or compensation.

CONTRACTS AND OBLIGATIONS - Subject - Determination - Price - Fixation - Violation
- Sanctions

Applicable laws:
• Civil Code 1129