You are on page 1of 9

Case: 19-16122, 07/30/2019, ID: 11381968, DktEntry: 63, Page 1 of 9

No. 19-16122

United States Court of Appeals for the Ninth Circuit

FEDERAL TRADE COMMISSION,


Plaintiff – Appellee,

v.

QUALCOMM INCORPORATED, A DELAWARE CORPORATION,


Defendant – Appellant.
_____________________________
Appeal from the U.S. District Court
for the Northern District of California
The Honorable Lucy H. Koh (No. 5:17-cv-00220-LHK)
_____________________________

CONSENT MOTION TO EXTEND BRIEFING SCHEDULE


_____________________________

Gary A. Bornstein Thomas C. Goldstein


Yonatan Even Kevin K. Russell
CRAVATH, SWAINE & MOORE LLP Eric F. Citron
825 Eighth Avenue GOLDSTEIN & RUSSELL, P.C.
New York, NY 10019-7475 7475 Wisconsin Avenue, Suite 850
(212) 474-1000 Bethesda, MD 20814
(202) 362-0636
Robert A. Van Nest
Eugene M. Paige Michael W. McConnell
Cody S. Harris WILSON SONSINI GOODRICH
Justina Sessions & ROSATI
KEKER, VAN NEST & PETERS LLP 650 Page Mill Road
633 Battery Street Palo Alto, CA 94304
San Francisco, CA 94111-1809 (650) 849-3135
(415) 391 5400

i
Case: 19-16122, 07/30/2019, ID: 11381968, DktEntry: 63, Page 2 of 9

Willard K. Tom Richard S. Taffet


MORGAN, LEWIS & BOCKIUS LLP MORGAN, LEWIS & BOCKIUS LLP
1111 Pennsylvania Avenue NW 101 Park Avenue
Washington, DC 20004-2541 New York, NY 10178-0060
(202) 739-3000 (212) 309-6000
Geoffrey T. Holtz
MORGAN, LEWIS & BOCKIUS LLP
One Market, Spear Street Tower
San Francisco, CA 94105-1596
(415) 442-1000

Geoffrey T. Holtz (SBN 191370)


MORGAN, LEWIS & BOCKIUS LLP
One Market, Spear Street Tower
San Francisco, CA 94105-1596
Telephone: (415) 442-1000
Facsimile: (415) 442-1001
gholtz@morganlewis.com

Counsel for Appellant Qualcomm Incorporated

ii
Case: 19-16122, 07/30/2019, ID: 11381968, DktEntry: 63, Page 3 of 9

CONSENT MOTION TO EXTEND BRIEFING SCHEDULE

Pursuant to Circuit Rule 31-2.2(b), Defendant-Appellant

Qualcomm Incorporated (“Qualcomm”) respectfully moves to extend the

briefing schedule. Qualcomm proposes, and Plaintiff-Appellee the

Federal Trade Commission (“FTC”) consents to, the following briefing

schedule:

• August 23, 2019: Qualcomm files its Opening Brief;

• October 25, 2019: the FTC files its Answering Brief;

• November 15, 2019: Qualcomm files its Reply Brief.

Qualcomm has been diligently litigating this case. (Declaration of

Yonatan Even (“Even Decl.”) at ¶¶4.) Nonetheless, given the

importance of the issues raised on appeal, the complexity thereof, the

length of the District Court’s Order and the need of potential amici to

assess the extensive record, Qualcomm has a substantial need for an

extension. (Id.) Qualcomm therefore respectfully requests a modest two

week extension of its briefing schedule (and a three week overall

extension of the briefing schedule), as noted above.

The FTC consents to Qualcomm’s request. (Even Decl. ¶5.) The

FTC has noted that if Qualcomm were to file an opening brief that is

1
Case: 19-16122, 07/30/2019, ID: 11381968, DktEntry: 63, Page 4 of 9

substantially in excess of the default word-count limitation, the FTC

would likely need a corresponding extension of time to prepare and file

its responsive brief. Qualcomm’s counsel has informed the FTC that, in

that event, Qualcomm would not oppose an additional extension of the

briefing schedule.

2
Case: 19-16122, 07/30/2019, ID: 11381968, DktEntry: 63, Page 5 of 9

July 30, 2019 Respectfully submitted,

Thomas C. Goldstein /s/ Yonatan Even


Kevin K. Russell Gary A. Bornstein
Eric F. Citron Yonatan Even
GOLDSTEIN & RUSSELL, P.C. CRAVATH, SWAINE & MOORE LLP
7475 Wisconsin Avenue, Suite 850 825 Eighth Avenue
Bethesda, MD 20814 New York, NY 10019-7475
(202) 362-0636 (212) 474-1000

Michael W. McConnell Robert A. Van Nest


WILSON SONSINI GOODRICH & ROSATI Eugene M. Paige
650 Page Mill Road Justina Sessions
Palo Alto, CA 94304 KEKER, VAN NEST & PETERS LLP
(650) 849-3135 633 Battery Street
San Francisco, CA 94111-1809
(415) 391 5400

Willard K. Tom Richard S. Taffet


MORGAN, LEWIS & BOCKIUS LLP MORGAN, LEWIS & BOCKIUS LLP
1111 Pennsylvania Avenue NW 101 Park Avenue
Washington, DC 20004-2541 New York, NY 10178-0060
(202) 739-3000 (212) 309-6000

Geoffrey T. Holtz
MORGAN, LEWIS & BOCKIUS LLP
One Market, Spear Street Tower
San Francisco, CA 94105-1596
(415) 442-1000

Counsel for Appellant Qualcomm Incorporated

3
Case: 19-16122, 07/30/2019, ID: 11381968, DktEntry: 63, Page 6 of 9

DECLARATION OF YONATAN EVEN

I, Yonatan Even, declare as follows:

1. I am a member of the law firm Cravath, Swaine & Moore

LLP, counsel for Defendant-Appellant (“Qualcomm”) in the above

captioned matter. I have personal knowledge of the matters set forth

below and if called to testify to them, could do so competently.

2. Qualcomm filed its Notice of Appeal on May 31, 2019. On

June 3, 2019, this Court set the following briefing schedule

(Dckt. No. 1):

• September 9, 2019: Qualcomm to file its Opening Brief;

• October 8, 2019: FTC to file it Answering Brief;

• October 29, 2019: Qualcomm to file its Answering Brief.

3. On July 8, 2019, Qualcomm, with the consent of Plaintiff-

Appellee (the “FTC”), asked this Court to expedite the appeal

(Dckt. No. 12). On July 10, 2019, this Court granted the request to

expedite (Dckt. No. 15), setting the following briefing schedule:

• August 9, 2019: Qualcomm to file its Opening Brief;

• October 4, 2019: FTC to file its Answering Brief;

• October 25, 2019: Qualcomm to file its Reply Brief.


Case: 19-16122, 07/30/2019, ID: 11381968, DktEntry: 63, Page 7 of 9

4. Qualcomm has exercised diligence in pursuing this appeal.

Nonetheless, given the importance of the issues raised in the appeal,

the complexity thereof, the length of the District Court’s Order

(at 233 pages) and the need of potential amici to assess the extensive

record in this case, Qualcomm has a substantial need for a short two

week extension of the date for filing its Opening Brief, to August 23,

2019.

5. On July 29, 2019, I communicated with Michele Arington,

Assistant General Counsel for Litigation and counsel of record for the

FTC in this matter, who indicated that the FTC consents to

Qualcomm’s request for an extension, subject to the FTC obtaining a

three week extension of the filing date of its Answering Brief, to October

25. Qualcomm consents to this extension, and will be prepared to file

its Reply Brief within 21 days thereafter, on November 15, 2019.

6. Qualcomm will continue to exercise diligence in pursuing

this appeal and will file its briefs within the time requested.

7. The court reporter is not in default with regard to any

designated transcripts.
Case: 19-16122, 07/30/2019, ID: 11381968, DktEntry: 63, Page 8 of 9

8. I declare under penalty of perjury under the laws of the

United States that the foregoing is true and correct.

Dated: July 30, 2019 Respectfully submitted,

By: /s/ Yonatan Even


Yonatan Even
Case: 19-16122, 07/30/2019, ID: 11381968, DktEntry: 63, Page 9 of 9

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the

Clerk of the Court for the United States Court of Appeals for the Ninth

Circuit by using the appellate CM/ECF system on July 30, 2019. All

participants in the case are registered CM/ECF users, and service will be

accomplished by the appellate CM/ECF system.

/s/ Yonatan Even


Yonatan Even