Case 5:17-cv-00220-LHK Document 1496 Filed 05/28/19 Page 1 of 4

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KEKER, VAN NEST & PETERS LLP MORGAN, LEWIS & BOCKIUS LLP
2 Robert A. Van Nest - # 84065 Richard S. Taffet (pro hac vice)
[email protected] [email protected]
3 Eugene M. Paige - # 202849 101 Park Avenue
[email protected] New York, NY 10178-0060
4 Cody S. Harris - #255302 Telephone: (212) 309-6000
[email protected] Facsimile: (212) 309-6001
5 Justina Sessions - # 270914
[email protected] MORGAN, LEWIS & BOCKIUS LLP
6 633 Battery Street Willard K. Tom (pro hac vice)
San Francisco, CA 94111-1809 [email protected]
7 Telephone: (415) 391 5400 1111 Pennsylvania Avenue NW
Facsimile: (415) 397 7188 Washington, DC 20004-2541
8 Telephone: (202) 739-3000
CRAVATH, SWAINE & MOORE LLP Facsimile: (202) 739-3001
9 Gary A. Bornstein (pro hac vice)
[email protected] MORGAN, LEWIS & BOCKIUS LLP
10 Yonatan Even (pro hac vice) Geoffrey T. Holtz (SBN 191370)
[email protected] [email protected]
11 825 Eighth Avenue One Market, Spear Street Tower
New York, New York 10019-7475 San Francisco, CA 94105-1596
12 Telephone: (212) 474-1000 Telephone: (415) 442-1000
Facsimile: (212) 474-3700 Facsimile: (415) 442-1001
13
Attorneys for Defendant
14 QUALCOMM INCORPORATED

15
UNITED STATES DISTRICT COURT
16
NORTHERN DISTRICT OF CALIFORNIA
17
SAN JOSE DIVISION
18
FEDERAL TRADE COMMISSION Case No. 5:17-cv-00220-LHK
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Plaintiff, DEFENDANT QUALCOMM
20 INCORPORATED’S MOTION TO
v. SHORTEN TIME
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QUALCOMM INCORPORATED,
22 a Delaware corporation Dept.: Courtroom 8, 4th Floor
Judge: Hon. Lucy H. Koh
23 Defendant.

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MOTION TO SHORTEN TIME
31 Case No. 5:17-cv-00220-LHK

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 Case 5:17-cv-00220-LHK Document 1496 Filed 05/28/19 Page 2 of 4

1 Defendant Qualcomm Incorporated, by and through undersigned counsel, hereby

2 respectfully moves pursuant to Civil L. R. 6-3(a)(4) for an order shortening the time for the Court

3 to hear, and the Federal Trade Commission to respond, to Qualcomm’s Motion for Stay Pending

4 Appeal, (the “Stay Motion”), which Qualcomm filed concurrently with this motion. In

5 accordance with Civil L. R. 6-3(a), Qualcomm’s Motion to Change Time is supported by the

6 Declaration of Bryn Williams, counsel for Qualcomm, and a proposed order, filed concurrently

7 herewith. Qualcomm has conferred with the Federal Trade Commission, which declined to

8 stipulate to the relief requested in this motion. Decl. of Bryn Williams (“Williams Decl.”) ¶ 10.

9 Qualcomm respectfully requests that the Court shorten the briefing and hearing time for
10 its Stay Motion by (a) ordering the FTC to submit any response to Qualcomm’s Stay Motion by

11 May 31, 2019, and (b) scheduling a hearing on Qualcomm’s motion as soon thereafter as

12 practicable.

13 Good cause exists to shorten time. In particular, as detailed in its Stay Motion, the

14 injunction issued by this Court in its Findings of Fact and Conclusions of Law, (Dkt. 1490 (the

15 “Order”)), requires Qualcomm to fundamentally reorganize the way it does business, renegotiate

16 existing license agreements, and adopt licensing practices at odds with decades of history and

17 settled industry practice. (Mot. for Stay at 7-10; Rogers Decl. ¶¶ 4-5.) Implementing these

18 changes will irreparably harm Qualcomm if the Court’s Order is overturned, and the risk of

19 irreparable harm increases with each day the Court’s injunction stays in place. (Mot. for Stay at

20 7-10; Rogers Decl. ¶¶ 6-10.) Finally, staying the injunction pending appeal will neither harm

21 competition nor impair the public interest; indeed, for the reasons set forth in the Stay Motion, a

22 timely stay will ensure that Qualcomm can obtain effective appellate review of the Order and

23 support the public interest. (Mot. for Stay at 20-22.)

24 Shortening the FTC’s time to respond to the motion will not impose any prejudice on the

25 FTC, which has been on notice of Qualcomm’s intent to move for a stay since May 24, 2019.

26 (Williams Decl. ¶ 10.)

27 In light of the gravity of the Court’s injunction, the substantial risk of irreparable harm

28 that could be caused by any undue delay, and the lack of prejudice to the FTC, Qualcomm

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MOTION TO SHORTEN TIME
31 Case No. 5:17-cv-00220-LHK

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 Case 5:17-cv-00220-LHK Document 1496 Filed 05/28/19 Page 3 of 4

1 respectfully requests that the Court shorten time for briefing and hearing Qualcomm’s Stay

2 Motion.
Respectfully Submitted,
3

4 Dated: May 28, 2019 CRAVATH, SWAINE & MOORE LLP

5

6 s/ Gary Bornstein
Gary A. Bornstein
7 Yonatan Even
Worldwide Plaza
8 825 Eighth Avenue
New York, NY 10019-7475
9 Telephone: (212) 474-1000
Facsimile: (212) 474-3700
10 [email protected]
[email protected]
11
Robert A. Van Nest
12 Eugene M. Paige
Cody S. Harris
13 Justina Sessions
KEKER, VAN NEST & PETERS LLP
14 633 Battery Street
San Francisco, CA 94111-1809
15 Telephone: (415) 676-2289
Facsimile: (415) 397-7188
16 [email protected]
[email protected]
17 [email protected]
[email protected]
18
Richard S. Taffet
19 MORGAN, LEWIS & BOCKIUS LLP
101 Park Avenue
20 New York, NY 10178-0060
Telephone: (212) 369-6000
21 Facsimile: (212) 309-6001
[email protected]
22
Willard K. Tom
23 MORGAN, LEWIS & BOCKIUS LLP
1111 Pennsylvania Avenue, NW
24 Washington, DC 20004-2541
Telephone: (202) 739-3000
25 Facsimile: (202) 739 3001
[email protected]
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MOTION TO SHORTEN TIME
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1 Geoffrey T. Holtz
MORGAN, LEWIS & BOCKIUS LLP
2 One Market Plaza, Spear Street Tower
San Francisco, CA 94105-1596
3 Telephone: (415) 442-1000
Facsimile: (415) 442-1001
4 [email protected]
5 Attorneys for Qualcomm Incorporated
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MOTION TO SHORTEN TIME
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 Case 5:17-cv-00220-LHK Document 1496-1 Filed 05/28/19 Page 1 of 3

1 KEKER, VAN NEST & PETERS LLP MORGAN, LEWIS & EOCKIUS LLP
Robert A. Van Nest (SEN 84065) Richard S. Taffet (pro hac vice)
2 [email protected] [email protected]
Eugene M. Paige (SEN 202849) 101 Park Avenue
3 epaige@keker, eom New York, NY 10178-0060
Cody S. Harris (SEN 255302) Telephone: (212) 309-6000
4 [email protected] Faesimile: (212) 309-6001
Justina Sessions (SEN 270914)
5 [email protected] MORGAN, LEWIS & EOCKIUS LLP
633 Eattery Street Willard K. Tom (pro hac vice)
6 San Francisco, CA 94111-1809 [email protected]
Telephone: (415)391-5400 1111 Pennsylvania Avenue, NW
7 Facsimile: (415) 397-7188 Washington, DC 20004-2541
Telephone: (202) 739-3000
8 CRAVATH, SWAINE & MOORE LLP Faesimile: (202) 739-3001
Gary A. Eornstein (pro hac vice)
9 [email protected] MORGAN, LEWIS & EOCKIUS LLP
Yonatan Even (pro hac vice) Geoffrey T. Holtz (SEN 191370)
10 yeven@cravath. eom gholtz@morganlewis .eom
825 Eighth Avenue One Market Plaza, Spear Street Tower
11 New York, NY 10019-7475 San Franciseo, CA 94105-1596
Telephone: (212)474-1000 Telephone: (415)442-1000
12 Faesimile (212)474-3700 Faesimile: (415)442-1001
13 Attorneys for Defendant
QUALCOMM INCORPORATED
14

15 UNITED STATES DISTRICT COURT

16 NORTHERN DISTRICT OF CALIFORNIA

17 SAN JOSE DIVISION

18
FEDERAL TRADE COMMISSION, Case No. 5:17-ev-00220-LHK-NMC
19
Plaintiff, DECLARATION OF BRYN WILLIAMS
20 IN SUPPORT OF MOTION TO CHANGE
V. TIME
21
QUALCOMM INCORPORATED, a
22 Delaware Corporation, Dept: Courtroom 8, 4* Floor-
Judge: Hon. Lucy H. Koh
23 Defendant.
Date Filed: January 17, 2017
24
Trial Date: January 4, 2019
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DECLARATION OF BRYN WILLIAMS IN SUPPORT OF MOTION TO CHANGE TIME

Case No. 5:17-CV-00220-LHK-NMC
 Case 5:17-cv-00220-LHK Document 1496-1 Filed 05/28/19 Page 2 of 3

1 DECLARATION OF BRYN WILLIAMS

2 I, Bryn Williams, declare and state that:

3 1. lam an attorney licensed to practice law in the State of California and am an

4 attorney at the law firm of Keker, Van Nest & Peters, LLP, counsel for Defendant Qualcomm

5 Incorporated. I submit this declaration in support of Qualcomm’s Motion to Change Time. I

6 have knowledge of the facts set forth herein, and if called upon as a witness, I could testify

7 competently under oath.

8 2. On May 21, 2019, this Court issued Findings of Fact and Conclusion of Law (the

9 “Order”), ECF No. 1490, and entered judgment in favor of the FTC in the above-captioned

10 matter. ECF No. 1492.

11 3. On May 28, 2019, Defendant filed a Motion for Stay Pending Appeal (the “Stay
12 Motion”).

13 4. As detailed in the Stay Motion and in the accompanying declaration of Alex

14 Rogers, the Court’s Order would impose irreparable harm to Qualcomm if not stayed pending

15 appeal by requiring Qualcomm to immediately change longstanding licensing and sales

16 practices, renegotiate hundreds of license agreements, and force Qualcomm to offer exhaustive

17 licenses to competing chip makers.

18 5. As detailed in the Stay Motion and in the accompanying declaration of Alex

19 Rogers, many of these changes would be impossible to unwind if the Order were overturned. For

20 example, Qualcomm would not be able to unwind licensing agreements it has renegotiated in the

21 shadow of an Order that is later overturned.

22 6. As detailed in the Stay Motion, staying the injunction pending appeal will neither

23 harm competition nor impair the public interest.

24 7. Given these circumstances, Qualcomm believes that expedited consideration of

25 the Stay Motion is appropriate, and that substantial harm and prejudice would occur if the Court

26 does not shorten time to hear the Stay Motion. The probability of irreparable harm detailed in

27 the Stay Motion and in the accompanying declaration of Alex Rogers increases with each day the

28 Court’s injunction stays in place.

1
DECLARATION OF BRYN WILLIAMS IN SUPPORT OF MOTION TO CHANGE TIME
Case No. 5:I7-cv-00220-LHK-NMC
 Case 5:17-cv-00220-LHK Document 1496-1 Filed 05/28/19 Page 3 of 3

1 8. In accordance with Civ. L.R. 6-3(a)(5), a list of all previous time modifications in

2 this case, whether by stipulation or Court order is attached to this declaration as Exhibit A,

3 9. As this Court has entered judgment in favor of the FTC, the requested time
4 modification would have no effect on the schedule for the case.

5 10. Before filing this motion, Qualcomm attempted to obtain a stipulation to the

6 requested time change. Undersigned counsel for Qualcomm emailed counsel for the FTC on

7 Friday, May 24, 2019, requesting that the FTC stipulate to the relief sought in this motion and
8 offering to meet-and-confer further. Counsel for the FTC responded by email the same day,
9 stating without further explanation that “[t]he FTC will not stipulate to the request to shorten
10 time.”

11 I declare under penalty of perjury that the foregoing is true and correct. Executed on this
12 28th day of May 2019, in San Francisco, California.
13
14
By:
15 Bryn Williams

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DECLARATION OF BRYN WILLIAMS IN SUPPORT OF MOTION TO CHANGE TIME

Case No. 5:17-cv-00220-LHK-NMC
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Exhibit A
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List of Time Extensions Granted

1. On February 2, 2017, the Court ordered an extension for filing deadlines governing Qualcomm’s
response to the complaint and briefing on a motion to dismiss. Qualcomm’s response to the
complaint, which had been due 60 days after notice of request of waiver, would be due on March 27,
2017. Opposition to a rule 12(b) motion, which had been due 14 days after the initial motion is filed,
would be due on May 5, 2017. The reply re the Rule 12(b) motion, which had been due 7 days after
the opposition was filed, would be due on May 26, 2017. (Dkt. 42.)

2. On March 27, 2017, the Court ordered an extension for filing deadlines governing Qualcomm’s
response to the complaint and briefing on a motion to dismiss. Qualcomm’s response to the
complaint, which had been due March 27, 2017, would be due on April 3, 2017. Opposition to a rule
12(b) motion, which had been due May 5, 2017, would be due on May 12, 2017. The reply re the
Rule 12(b) motion, which had been due May 26, 2017, would be due on June 2, 2017. (Dkt. 61.)

3. On March 30, 2017, the Court granted the parties’ stipulation to defer the Rule 26(f) conference,
ADR form filings (both had been due March 29, 2017), joint Case Management Conference (“CMC”)
statement, and initial disclosures (both had been due April 12, 2017) to a later date, to be set by the
Court at the April 19, 2017 CMC hearing. (Dkt. 66.)

4. On May 19, 2017, the Court ordered an extension for Intel Corp. to seek a supplemental protective
order, which had been due 14 days after the May 1, 2017 protective order was entered, to May 23,
2017. (Dkt. 103.)

5. On May 19, 2017, the Court ordered an extension for non-party Nokia entities to seek a supplemental
protective order, which had been due 14 days after the May 1, 2017 protective order was entered, to
May 23, 2017. (Dkt. 108.)

6. On July 31, 2017, the Court granted the parties’ stipulation to continue the July 19, 2017 CMC to
September 6, 2017, or as soon thereafter as the Court’s calendar would permit. (Dkt. 151.)

7. On August 10, 2017, the Court granted the parties’ stipulation shortening time on Qualcomm’s
motions to approve requests for international judicial assistance in procuring evidence from foreign
entities. The court ordered that the deadline for the FTC response brief be adjusted to August 18,
2017, and that there would be no reply brief and the Court would resolve the motions without a
hearing, unless it deemed a hearing necessary. (Dkt. 178.)

8. On September 8, 2017, the Court granted the parties’ stipulation to continue the September 13, 2017
CMC to November 8, 2017, or as soon thereafter as the Court’s calendar would permit. (Dkt. 199.)

9. On December 18, 2017, the Court granted the parties’ stipulation to extend the December 15, 2017
deadline for a motion to compel documents from Lenovo (U.S.) Inc. regarding to 30 days after
Lenovo completed its document production. (Dkt. 406.)

10. On January 2, 2018, the Court granted the parties’ stipulation to extend the January 5, 2018 deadline
for the production of certain documents by non-party Apple Inc. to January 8, 2018. (Dkt. 438.)

11. On January 8, 2018, the Court granted the parties’ stipulation to extend the January 5, 2018 deadline
for the production of certain documents by non-party Sequans Communications, Inc. to January 19,
2018. (Dkt. 457.)
 Case 5:17-cv-00220-LHK Document 1496-2 Filed 05/28/19 Page 3 of 3

12. On January 18, 2018, the Court partially granted non-parties Contract Manufacturers’ motion to
extend time to produce documents from January 5, 2018 to January 26, 2018. (Dkt. 502.)

13. On February 20, 2018, the Court granted the parties’ stipulation that Mr. Jeff Altman’s deposition
could be conducted after the close of fact discovery on March 30, 2018, but no later than June 1,
2018. (Dkt. 580.)

14. On March 23, 2018, the Court issued a CMC order adjusting the case schedule as follows: Plaintiff’s
opening expert reports, which had been due on April 20, 2018, would be due on April 30, 2018.
Defendant’s expert reports, which had been due on May 25, 2018, would be due on June 4, 2018.
Plaintiff’s rebuttal expert reports, which had been due on June 22, 2018, would be due on July 2,
2018. Close of expert discovery, which had been scheduled for July 20, 2018, would be scheduled
for July 27, 2018. (Dkt. 645.)

15. On April 6, 2018, the Court amended the case schedule as follows: The April 6, 2018 CMC would be
scheduled for April 24, 2018. Plaintiff’s opening expert reports, which had been due on April 30,
2018, would be due on May 24, 2018. Defendant’s expert reports, which had been due on June 4,
2018, would be due on June 28, 2018. Plaintiff’s rebuttal expert reports, which had been due on July
2, 2018, would be due on July 26, 2018. Close of expert discovery, which had been scheduled for
July 27, 2018, would be due August 16, 2018. The last day to file dispositive or Daubert motions was
extended from August 10 to August 30, 2018. Summary judgment oppositions and replies, which had
been due on September 10 and September 28, 2018, respectively, would be due on September 24 and
October 4, 2018, respectively. (Dkt. 678.)

16. On April 23, 2018, the Court continued the April 24, 2018 CMC to May 4, 2018. (Dkt. 706.)

17. On April 30, 2018, the Court granted Plaintiff’s unopposed motion to reschedule the May 2, 2018
discovery hearing to May 4, 2018. (Dkt. 709.)

18. On May 22, 2018, the Court granted the parties’ stipulation to consolidate the May 23, 2018
discovery hearing with the May 24, 2018 hearing on plaintiff’s motion for relief from the
Magistrate’s pretrial order. (Dkt. 749.)

19. On September 7, 2018, the Court continued the September 12, 2018 CMC to October 24, 2018; the
joint case management statement was due October 17, 2018. (Dkt. 826.)

20. On January 5, 2019, the Court granted Samsung’s motion for an extension of time to comply with the
Court’s order re redacted agreement from January 4 to January 5, 2019. (Dkt. 1130.)