Case 6:21-cv-00299-ADA Document 467 Filed 04/07/21 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION

VLSI TECHNOLOGY LLC,

Plaintiff,

v. Case No. 6:21-cv-299-ADA

INTEL CORPORATION,
Defendant.

DEFENDANT INTEL CORPORATION’S REPLY IN SUPPORT OF OPPOSED

MOTION TO RETRANSFER TO AUSTIN OR ALTERNATIVELY CONTINUE TRIAL
 Case 6:21-cv-00299-ADA Document 467 Filed 04/07/21 Page 2 of 9

TABLE OF CONTENTS

I. INTRODUCTION .............................................................................................................. 1
II. ARGUMENT ...................................................................................................................... 1
A. The Skilling Factors Establish That Transfer To Austin Is Appropriate. ............... 1
B. A Continuance Would Not Prejudice VLSI............................................................ 4
C. Intel Does Not Concede That Voir Dire Could Cure All Prejudice. ...................... 5
III. CONCLUSION ................................................................................................................... 5

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TABLE OF AUTHORITIES

Page(s)

CASES

Crossroads Systems, Inc. v. Dot Hill Systems Corp.,

2015 WL 3773014 (W.D. Tex. 2015) ........................................................................................5

In re Cragar Industries, Inc.,

706 F.2d 503 (5th Cir. 1983) .....................................................................................................2

Leonard v. United States,

378 U.S. 544 (1964) ...............................................................................................................1, 3

Rideau v. Louisiana,
373 U.S. 723 (1963) ...................................................................................................................3

Skilling v. United States,

561 U.S. 358 (2010) ...................................................................................................................2

Solis v. Cockrell,
342 F.3d 392 (5th Cir. 2003) .............................................................................................1, 2, 3

United States v. Beckner,

69 F.3d 1290 (5th Cir. 1995) .....................................................................................................5

United States v. Bieganowski,

313 F.3d 264 (5th Cir. 2002) .....................................................................................................4

United States v. Casellas-Toro,

807 F.3d 380 (1st Cir. 2015) ......................................................................................................3

STATUTES

28 U.S.C. § 1404 ..............................................................................................................................2

EXHIBITS

The exhibits cited in this reply as “Mot. Ex. __” are attached to the Declaration of Thomas
Lampert, filed as an attachment to Intel’s Motion to Retransfer to Austin or Alternatively
Continue Trial. See Dkt. 451.

The exhibit cited in this reply as “Ex. A” is attached to the Reply Declaration of Thomas
Lampert, filed as an attachment to this reply memorandum.

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I. INTRODUCTION

As Intel’s opening brief explained, this Court should retransfer this case from Waco to

Austin, or alternatively continue the trial until July, because the Supreme Court’s Skilling factors

make clear that such action is necessary to protect Intel’s constitutional right to a fair trial by an

impartial jury. Dkt. 451 (“Mot.”) 1-10. In response, VLSI does not dispute that Intel has a

constitutional right to a fair trial or that under the first Skilling factor, Austin would not pose the

risks to that constitutional right that Waco does. Nor does VLSI dispute that with respect to the

second Skilling factor, juror awareness of the prior enormous verdict would be highly prejudicial

to Intel. Nor does VLSI dispute that, under the third Skilling factor, the mere six weeks between

the first verdict and this trial substantially increases the risk of jury bias. Instead, VLSI’s

primary response is that jurors are unlikely to ever learn about the verdict, despite the widespread

news coverage in and out of Waco. Because such thin assurances are insufficient to protect

Intel’s constitutional rights, Intel’s motion should be granted.

II. ARGUMENT

A. The Skilling Factors Establish That Transfer To Austin Is Appropriate.

Transfer to Austin is appropriate because this case involves a highly prejudicial category

of pretrial publicity: reports of another jury’s unprecedently large verdict in a factually related

case involving the same parties tried only six weeks earlier. Indeed, the Supreme Court has

presumed jury bias in a case where the defendant was convicted on similar charges in “two

successive trials” and the “second jury ultimately contained five jurors who had heard the verdict

in the first trial.” Solis v. Cockrell, 342 F.3d 392, 395 (5th Cir. 2003) (citing Leonard v. United

States, 378 U.S. 544, 544 (1964) (per curiam)).

In response, VLSI does not dispute the prejudicial effect of holding two trials, in close

succession, in factually related cases, from the same geographic jury pool. Instead, VLSI

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attempts to distract from Intel’s constitutional right to a fair trial by asserting that Intel cannot

meet the standard set forth in In re Cragar Industries, Inc., 706 F.2d 503 (5th Cir. 1983). Dkt.

459 (“Resp.”) at 4. But Cragar, which governs retransfer requests under 28 U.S.C. § 1404(a), is

inapplicable to Intel’s present motion, which is grounded in Intel’s constitutional right (under the

Fifth and Seventh Amendments) to a fair trial by an impartial jury. See Skilling v. United States,

561 U.S. 358, 378 n.11 (2010) (Constitution provides independent basis for transfer); Mot. 3-4 &

n.5. VLSI also suggests (at 4) that Intel’s motion amounts to a request for reconsideration

because Intel previously raised prejudicial pretrial publicity as a reason to deny VLSI’s motion to

retransfer this case to Waco pursuant to 28 U.S.C. § 1404(a). This argument is a misdirection—

Intel’s motion was not ripe until the Court actually transferred the case to Waco. Upon the

issuance of the Court’s retransfer order, Intel filed its motion within twenty-four hours, so

VLSI’s characterization of this motion as a “last-minute” effort to “delay” is simply incorrect.

See Resp. 1, 7.1

On the merits, VLSI asserts that “Intel’s motion essentially boils down to whether two

articles published by Waco-based news sources on March 2, 2021 about the verdict in the lead

case warrant transferring this case to Austin under Skilling.” Resp. 4-5. VLSI’s focus on the

quantity of publicity (which is itself factually inaccurate) is noticeably silent on the prejudicial

effect of the type of publicity (i.e., publicity regarding a prior verdict). See Solis, 342 F.3d at 399

(describing Leonard as “extreme case”). Indeed, VLSI does not dispute that familiarity with the

prior verdict would “invite[] prejudgment of [Intel’s] culpability.” Skilling, 561 U.S. at 383.

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VLSI further contends (at 5 n.1) that Skilling and other criminal cases Intel cited are
“inapposite” because they involved Federal Rule of Criminal Procedure 21(a). That is wrong: In
Skilling itself, the Supreme Court made clear that Rule 21 was not at issue. See 561 U.S. at 378
n.11 (“review[ing] … venue-transfer decision only for compliance with the Constitution”
because Skilling had not raised argument under Rule 21). And as Intel’s motion explained, the
constitutional standards developed in criminal cases apply to civil cases. Mot. 4 n.5.

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Instead, VLSI attempts to contrast this case with Rideau v. Louisiana, 373 U.S. 723 (1963),

which involved a videotaped confession from the defendant himself. But Rideau supports Intel:

For one thing, Rideau illustrates that a presumption of prejudice can arise out of only a small

number of instances of publicity (there, just three news telecasts of the confession). And taking

Rideau and Leonard together, it is evident that a prior jury verdict has a prejudicial effect similar

to a defendant’s confession, because in either case, the source of the information cannot be

easily disregarded as mere “outside rumors about the defendant[],” Solis, 342 F.3d at 398, or

“unfounded opinions of the media,” United States v. Casellas-Toro, 807 F.3d 380, 387 (1st Cir.

2015). Thus, just as jurors cannot be expected to ignore or forget the defendant’s own words

admitting guilt, so too are jurors unlikely to ignore or forget the judgment of another jury

determining that defendant’s liability in a related case. See Mot. 6. That is particularly true

where, as here, the prior jury’s verdict was accompanied by a record-setting damages award.

VLSI briefly contends (at 6) that the publicity here is not prejudicial because it was “fair

and even-handed.” But whether the coverage was accurate does not matter because the verdict

itself is prejudicial. See Leonard, 378 U.S. at 544. And in any event, the coverage here was not

fully accurate, as Intel explained in its opening brief. For example, in reporting about the prior

verdict, the Waco Tribune-Herald prominently referenced the allegation that Intel had “pirated

technology concepts … without properly compensating VLSI,” despite the fact that the jury

found no willful infringement. Mot. Ex. 2 at 1 (emphasis added). And multiple outlets

emphasized the size of the damages award without meaningfully explaining the theory

underlying the award or the fact that Intel can, and will, appeal. See, e.g., Mot. Exs. 2-3.

VLSI next argues (at 6) that there is “no evidence suggesting” that news of the first

verdict has “been widely read, let alone by likely jurors,” because there are only two “Waco-

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based articles … that commented on the verdict in the lead case.” But multiple jurors listed

those two Waco-based outlets (the Waco Tribune-Herald and KWTX) on their juror

questionnaires as among their primary sources of news. See, e.g., Ex. A at 3, 48, 58, 68, 103,

113, 179. And, again, Rideau itself shows that severe prejudice can arise out of only a small

number of instances of publicity. See supra p. 3; cf. United States v. Bieganowski, 313 F.3d 264,

273 (5th Cir. 2002) (voir dire questioning necessary in light of prejudice caused by one

newspaper article). In any event, the numerous other exhibits to Intel’s motion demonstrate that

coverage of the first verdict went far beyond local Waco sources, and the jury questionnaires

indicate that the prospective jurors rely on those sources as well. See, e.g., Ex. A at 3, 93, 220,

230. Moreover, in this case, a large number of prospective jurors listed social media as a

principal news source. See id. at 8, 33, 38, 43, 48, 53, 68, 78, 113, 159, 164, 240. Following the

first trial’s verdict, “[s]ocial media postings about Intel Corp. more than quadrupled,” and

“Twitter sentiment about Intel [was] somewhat negative.” Mot. Ex. 40 at 1.2

B. A Continuance Would Not Prejudice VLSI.

In arguing that a continuance is unwarranted as an alternative to transfer, VLSI again

does not dispute that the mere six weeks between the prior verdict and this trial exacerbates the

prejudice to Intel. Instead, VLSI first argues (at 7) that the request for a continuance should be

denied as a “last-minute” filing. But as noted above, Intel’s motion was not ripe until the Court

transferred the case back to Waco. See supra p 2. Moreover, requests for relief based on

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Indeed, the risk of prospective jurors gaining exposure to the prior verdict is demonstrated by
the completed jury questionnaires. As one questionnaire answer illustrates, at least one juror
researched the parties upon receiving the questionnaire and discovered that “[t]he info for the
previous court case show[s] up on a Google search.” Ex. A at 201. There is a high risk that
other jurors will do the same. Given the highly prejudicial nature of the prior verdict, that risk
must be accounted for to ensure that Intel receives a fair trial. Transfer to Austin mitigates the
risk substantially by providing a much larger pool of jurors who will lack a localized interest in
the first verdict. See Mot. 6-7.

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prejudicial pretrial publicity are almost always filed close to trial because they are necessarily

based on the state of the jury pool at the time of trial.

VLSI also asserts that it would be prejudiced by a continuance. Resp. 7-8. But VLSI’s

alleged prejudice cannot take priority over Intel’s constitutional right to a fair trial. Indeed,

VLSI’s alleged prejudice amounts to complaints regarding inconvenience to counsel and

generalized concerns regarding delay in the trial date. But “mere delay in collecting … damages

does not constitute undue prejudice.” Crossroads Sys., Inc. v. Dot Hill Sys. Corp., 2015 WL

3773014, at *2 (W.D. Tex. 2015). It is likewise unavailing for VLSI to cite (at 8) to the Court’s

prior statement, in transferring the -254 case, that “patents have a limited term”—as Intel noted

in its motion (at 8 n.9), “of the two asserted patents in this case, one is already expired and the

other will expire in a matter of weeks.” For that and other reasons, any delay “will not prejudice

VLSI because it can be fully compensated by monetary damages if it prevails.” Id.

C. Intel Does Not Concede That Voir Dire Could Cure All Prejudice.

Finally, VLSI is wrong to say that Intel’s request for voir dire amounts to a concession

that any prejudice “can be avoided through appropriate voir dire.” Resp. 9. Litigants routinely

make alternative requests for relief, and such requests are properly treated by courts as just that:

arguments in the alternative, and not concessions. Nor is it “ironic” (Resp. 8) that Intel objected

to VLSI’s proposed questions about pretrial publicity. Intel objected because VLSI’s questions

were insufficient to identify “what information” jurors have “read, heard, or otherwise received.”

United States v. Beckner, 69 F.3d 1290, 1293 (5th Cir. 1995) (emphasis added).

III. CONCLUSION

Intel respectfully requests that the Court grant its motion to retransfer this case from

Waco to Austin or continue the trial. Intel also requests that, wherever and whenever the trial is

held, the Court permit voir dire questioning about juror awareness of the prior trial and verdict.

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Dated: April 7, 2021 Respectfully submitted,

/s/ J. Stephen Ravel

OF COUNSEL:
William F. Lee (Pro Hac Vice)
Louis W. Tompros (Pro Hac Vice)
Kate Saxton (Pro Hac Vice)
WILMER CUTLER PICKERING HALE
& DORR LLP
60 State Street
Boston, Massachusetts 02109
Tel: (617) 526-6000
Email: william.lee@wilmerhale.com
Email: louis.tompros@wilmerhale.com
Email: kate.saxton@wilmerhale.com
Gregory H. Lantier (Pro Hac Vice)
Amanda L. Major (Pro Hac Vice)
WILMER CUTLER PICKERING HALE
& DORR LLP
1875 Pennsylvania Avenue
Washington DC 20006
Tel: (202) 663-6000
Email: gregory.lantier@wilmerhale.com
Email: amanda.major@wilmerhale.com
J. Stephen Ravel
Texas State Bar No. 16584975
Kelly Ransom
Texas State Bar No. 24109427
KELLY HART & HALLMAN LLP
303 Colorado, Suite 2000
Austin, Texas 78701
Tel: (512) 495-6429
Email: steve.ravel@kellyhart.com
Email: kelly.ransom@kellyhart.com
James E. Wren
Texas State Bar No. 22018200
1 Bear Place, Unit 97288
Waco, Texas 76798
Tel: (254) 710-7670
Email: james.wren@baylor.edu
Harry L. Gillam, Jr.
Texas State Bar No. 07921800
GILLAM & SMITH, L.L.P.
303 South Washington Avenue
Marshall, Texas 75670
Tel: (903) 934-8450
Email: gil@gillamsmithlaw.com

Attorneys for Intel Corporation

CERTIFICATE OF SERVICE

I hereby certify that, on April 7, 2021, all counsel of record who are deemed to have

consented to electronic service are being served with a copy of the foregoing document via the

Court’s CM/ECF system in accordance with Local Rule CV-5.

/s/ J. Stephen Ravel

J. Stephen Ravel

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 Case 6:21-cv-00299-ADA Document 467-1 Filed 04/07/21 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION

VLSI TECHNOLOGY LLC,

Plaintiff,

v. No. 6:21-cv-00299-ADA

INTEL CORPORATION,
Defendant.

REPLY DECLARATION OF THOMAS LAMPERT IN SUPPORT OF

DEFENDANT INTEL CORPORATION’S MOTION TO TRANSFER TO AUSTIN OR
ALTERNATIVELY CONTINUE TRIAL

I, Thomas Lampert, declare as follows

1. I am an attorney at the law firm of WilmerHale, counsel for Defendant Intel

Corporation (“Intel”) in the above captioned matter, VLSI Technology LLC v. Intel Corp., No.

6:21-cv-00299-ADA (W.D. Tex.). I am licensed to practice law in Massachusetts.

2. I make this reply declaration in support of Intel’s Motion to Transfer to Austin or

Alternatively to Continue Trial.

3. I am familiar with the facts set forth herein.

4. Attached hereto as Exhibit A is a true and correct copy of the juror responses to

the “Questionnaire for Waco Patent Case” sent to prospective jurors in the above captioned

matter. The responses were provided to counsel on April 5, 2021 via email from the Deputy

Clerk of the U.S. District Court for the Western District of Texas. They are being filed under

seal to protect the personally identifiable information of the prospective jurors.

 Case 6:21-cv-00299-ADA Document 467-1 Filed 04/07/21 Page 2 of 2

I declare under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct.

Executed on April 7, 2021

/s/ Thomas Lampert

Thomas Lampert