MOTOROLA MOBILITY LLC v. AU OPTRONICS CORPORATION en Banc Petition

No.
14-8003

In the
United States Court of Appeals
for the Seventh Circuit

MOTOROLA MOBILITY LLC,
Plaintiff-Appellant,
v.

AU OPTRONICS CORPORATION, et al.,
Defendants-Appellees.

_______________________________________
On Petition for Interlocutory Appeal from an Order of the United States District Court
for the Northern District of Illinois, Eastern Division, No. 1:09-cv-06610.
The Honorable Joan B. Gottschall, J udge Presiding.

PETITION FOR HEARING EN BANC
OF MOTOROLA MOBILITY, LLC

J EROME A. MURPHY
MATTHEW J . MCBURNEY
CROWELL & MORING LLP
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
(202) 624-2500
J ANET I. LEVINE
J ASON C. MURRAY
CROWELL & MORING LLP
515 South Flower Street
40
th
Floor
Los Angeles, CA 90071
(213) 622-4740
THOMAS C. GOLDSTEIN
ERIC F. CITRON
GOLDSTEIN & RUSSELL, P.C.
5225 Wisconsin Ave., N.W.
Suite 404
Washington, D.C. 20015
(202) 362-0636

Counsel for Petitioner, Motorola Mobility LLC

COUNSEL PRESS (866) 703-9373

PRINTED ON RECYCLED PAPER

Case: 14-8003 Document: 65 Filed: 07/09/2014 Pages: 26
CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
Appellate Court No: 14-8003
--------
Short Caption: Motorola Mobility LLC v. AU Optronics Corporation
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must
be filed within 21 days of docketing or upon the tiling of a motion, response, petition, or answer in this court, whichever occurs
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to
complete the entire statement and to use N/ A for any information that is not applicable if this form is used.
[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED
AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(I) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):
Motorola Mobility LLC
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings
in the district court or before an administrative agency) or are expected to appear for the party in this court:
Goldstein & Russell, P.C.
(3) If the party or amicus is a corporation:
i) Identify all its parent corporations, if any; and
ii) list any publicly held company that owns 10% or more of the party's or amicus' stock:
Date: 4/2/2014 Attorney's Signature: s/ Thomas Goldstein
Attorney's Printed Name: Thomas Goldstein
----------------------------------------------
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes X No
Address: Goldstein & Russell, P.C., 5225 Wisconsin Avenue, NW, Suite 404, Washington, DC 20015
Phone Number: (202) 362-0636 Fax Number: (866) 574-2033
E-Mail Address: tgoldstein@goldsteinrussell.com
rev. 01/08 AK
CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
Appellate Court No:--------
Short Caption: Motorola Mobility LLC v. AU Optronics Corporation, et al.
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.
The Court prefers that the disclosure statement be filed immediately followingdocketing; but, the disclosure tatement must
be filed within 21 days of docketing or upon the filing of a motion, response petition, or answer in tlus court, whichever occurs
first. Attorneys are required to file an amended statement to retlect a11y material changes in tbe required information. The text
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to
complete the entire statement and to use N/ A for any information that is not applicable if this form is used.
PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):
in the district court or before an administrative agency) or are expected to appear for the party in this court:
Crowell & Moring LLP
i) Identify all its parent corporations, if any; and
Google Inc.
ii) list any publicly held company that owns 10% or more of the party's or amicus' stock:
Google Inc.
Date: 2/24/2014
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes
Address: Crowell & Moring LLP
515 South Flower St., 40th Floor, Los Angeles, CA 90071
Phone Number: (213) 622-4750 Fax Number: (213) 622-2690
E-Mail Address: JLevine@crowell.com
No X
rev. 01/08 AK
CIRCUIT RULE 26.1 DISCLOSUJU: STATEMENT
Appdlatc Court No: ---------
Short Caption: Motorola Mobility LLC v. AU Optronics Corporation, et al.
To enable the judges to dctcnninc whether rccusal is necessary or appropriate, an allorncy for a non-govcrnmcntal party or
amicus curiae, or a private allorncy repn.:scnting a government party, must furnish a disclosure statement providing the
foll owing informati on in compliance with Circuit Rule 26. I and J-ed. R. App. J' . 26.1 .
The prcfi.:rs that the disclosure statement be filed immediately following docketing; but, the disclosure statement must
be filed within 21 days of docketing or upon the tiling of a motion, response, petition, or answer in this court, whichever occurs
first. Allorncys arc required to file an amended statement to reflect any material changes in the required informat ion. The text
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is rt'lJUired to
complete thl' entire statement and to usc N/A for any information that is not applicahll' if this fonn is used.
PLEASE CHECK HERE II ANY INFORMATION ON T illS FORM IS Nr<_W OR REVISED
(I) The full name of every party that the attorney represents in the case (if the part y is a corporation, you must pro\- ide the
corporate disclosure information required by Fed. R. pp. J> 26. 1 by completing item #3 ):
in the di strict court or before an administrat ive agency) or arc expected to appear for the party in this court:
Crowell & Moring LLP
i) Identify all its parent corporations, if any; und
Google Inc.
ii) li st any publicly held company that owns I0o or more of the party' s or amicus' stock:
Google Inc.
Date 2/24/2014
Pl ease tndtcate if you arc Colmsl!l of Record for the above listed partie. X
Address: Crowell & Monng LLP
'u
1001 Pennsylvania Ave. N.W .. Washington DC 20004

Phone umber (202) 624-2500

Fax Number (202) 628-511 6
Address: JMurphy@crowell.com
-------------------------------------------------------
rev. 01 08 AK
iv

TABLE OF CONTENTS
CIRCUIT RULE 26.1 DISCLOSURE STATEMENTS .............................................................. i
TABLE OF AUTHORITIES ........................................................................................................ v
STATEMENT RESPECTING INITIAL HEARING EN BANC ................................................ 1
STATEMENT OF THE CASE ..................................................................................................... 1
REASONS FOR INITIAL HEARING EN BANC ...................................................................... 7
I. The Question Whether A Motions Panel May Finally Determine The
Merits Of An Appeal Based On A Section 1292(b) Petition Is
Exceptionally Important.................................................................................................... 7
II. The Motion Panels Apparent Intention To Decide The Merits Under
Extraordinary Procedures Conflicts With Circuit Precedent And All Other
Relevant Authorities. ...................................................................................................... 10
CONCLUSION ........................................................................................................................... 15

v

TABLE OF AUTHORITIES
Page(s)
Cases
Ahrenholz v. Bd. of Trustees of Univ. of Ill.,
219 F. 3d 674 (7th Cir. 2000) ..............................................................................................1, 11
CNF Constructors, Inc. v. Donohoe Constr. Co.,
57 F.3d 395 (4th Cir. 1995) .....................................................................................................10
E.E.O.C. v. Neches Butane Prods. Co.,
704 F.2d 144 (5th Cir. 1983) ...................................................................................................11
First Bank v. DJL Props., LLC,
598 F.3d 915 (7th Cir. 2010) .....................................................................................................8
Hart v. FedEx Ground Package Sys. Inc.,
457 F.3d 675 (7th Cir. 2006) .....................................................................................................8
Johnson v. Burken,
930 F.2d 1202 (7th Cir. 1991) .............................................................................................1, 10
Pella Corp. v. Saltzman,
606 F.3d 391 (7th Cir. 2010) .....................................................................................................8
Restaura, Inc. v. St. Louis Concessions, Inc.,
52 F.3d 189 (8th Cir. 1995) .......................................................................................................8
Rogers v. Bell Atlantic-Virginia, Inc.,
232 F.3d 889 (4th Cir. 2000) .....................................................................................................8
In re Sprint Nextel Corp.,
593 F.3d 669 (7th Cir. 2010) .....................................................................................................8
Sterk v. Redbox Automated Retail, LLC,
672 F.3d 535 (7th Cir. 2012) .....................................................................................................8
In re Text Messaging Antitrust Litig.,
630 F.3d 622 (7th Cir. 2010) .....................................................................................................8
United States v. Houser,
804 F.2d 565 (9th Cir. 1986) ...................................................................................................10
vi

Statutes
Foreign Trade Antitrust Improvements Act, 15 U.S.C. 6a ...........................................................1
Rules
Fed. R. App. P. 5 ..................................................................................................................8, 12, 13
Fed. R. App. P. 10 ..........................................................................................................................13
Fed. R. App. P. 11 ..........................................................................................................................13
Fed. R. App. P. 28(a) .....................................................................................................................12
Fed. R. App. P. 28(c) .......................................................................................................................7
Fed. R. App. P. 29(a) .....................................................................................................................13
Fed. R. App. P. 30 ..........................................................................................................................13
Fed. R. App. P. 31(a) .......................................................................................................................7
Fed. R. App. P. 47 ..........................................................................................................................12
Other Authorities
Alison Frankel, Judge Posner Backs Down (For Now) In Antitrust Policy Duel
With U.S., Reuters (J uly 2, 2014) ..............................................................................................9
Cir. R. 10(a) ...................................................................................................................................13
Cir. R. 28(a)(3)(i) ...........................................................................................................................13
Cir. R. 30 ........................................................................................................................................13
Editorial Board, A Cramped View of Antitrust Laws, The Motorola Mobility
Ruling and Foreign Cartels, N.Y. Times (J un. 15, 2004) .........................................................9
J acob Gershman, Appeals Court Questions Solicitor General in Motorola
Antitrust Case, Wall St. J . Law Blog (May 23, 2013) ...............................................................9

1

STATEMENT RESPECTING INITIAL HEARING EN BANC
Petitioner Motorola Mobility LLC respectfully submits that the en banc Court of Appeals
should hear and determine the following question of exceptional importance:
When may a motions panel of this Court considering only a request for permission to
appeal pursuant to 28 U.S.C. 1292(b) decide the merits of the appeal?
Initial hearing of this question en banc is necessary for two reasons:
(1) This is a question of exceptional importance with respect to the management of
the circuit as a whole, and on which the motions panels proceedings to date in
this case conflict with the practice of every other court of appeals.

(2) The motions panels apparent belief that it has the power to determine the merits
during a Section 1292(b) proceeding conflicts with this Courts holdings in
Ahrenholz v. Bd. of Trustees of Univ. of Ill., 219 F. 3d 674 (7th Cir. 2000) and
Johnson v. Burken, 930 F.2d 1202 (7th Cir. 1991), and the Federal and Local
Rules of Appellate Procedure.

STATEMENT OF THE CASE
This case began when plaintiff Motorola filed this antitrust suit under the Sherman Act in
the Northern District of Illinois against defendants, who manufacture LCD panels. Many of the
defendants have pleaded guilty to a conspiracy to fix the prices of those panels, including in sales
to Motorola. Billions of dollars in sales and damages are at stake, as is the Sherman Acts
application to global cartels in both private actions and criminal prosecutions by the government.
The case was consolidated with others before an MDL court in California. Defendants
moved to dismiss the complaint under the Foreign Trade Antitrust Improvements Act (FTAIA),
15 U.S.C. 6a, because they had delivered most of the price-fixed screens overseas. The MDL
court rejected some of Motorolas theories for proceeding, but held that the case could go
forward on another. After the case was remanded to the Northern District of Illinois, defendants
asked the district court to reconsider the MDL courts ruling. Motorola principally opposed that
relief on the ground that the standards for reconsideration were not met, because defendants had
not raised any argument not already considered by the MDL court. But on the basis of those
2

motions papers, the district court granted reconsideration and dismissed Motorolas complaint
with respect to all the panels delivered overseasninety-nine percent of the commerce at issue.
The proceedings in this Court began as a straightforward request for interlocutory review
under 28 U.S.C. 1292(b). At the behest of both petitioner Motorola and the defendants below,
the district court certified its decision for interlocutory review. Motorola then filed in this Court
its currently pending Petition for Permission to Appeal. Dkt. 1 (Feb. 24, 2014). Appellees
responded, agreeing that the petition should be granted. Dkt. 9 (Mar. 10, 2014).
There has never been any dispute that the standards for review under Section 1292(b) are
easily met here. A motions panel (Posner, Rovner, Kanne, J J .) promptly acted on that petition,
granting it. Dkt. 14 (Mar. 27, 2014). At that point, the Federal Rules of Appellate Procedure and
this Courts own rules and operating procedures called for the case to be briefed and argued in
due course before a merits panel. See infra at 7-15.
Notably, no party requested that the motions panel depart from the Courts ordinary
procedures. None requested that the motions panel decide the merits of the case. None
requested expedited review. For its part, the panel did not make a finding that expedited
treatment was warranted, and no reason for expedited or unusual treatment is apparent.
Nonetheless, without permitting the parties or any amici to submit briefing or argument,
the motions panel sua sponte issued an opinion by J udge Posner affirming the district courts
judgment on the merits. Dkt. 14 (Mar. 27, 2014). That ruling dramatically circumscribes the
scope of the Sherman Act with respect to global cartels, both in private suits and in federal
criminal prosecutions. The opinion addressed a number of issues that were not raised by
defendants in their limited submissions in this Court, were not the basis for the district courts
opinion, and (as a consequence) were not addressed by Motorola either. Conversely, the panel
3

did not address a number of significant arguments for reversal, which of course had not been
briefed to it. But the panel opined that, because the petition and the defendants response,
together with the district judges opinion explaining her order and the record in the district court,
provide an ample basis for deciding the appeal, we dispense with further briefing and with oral
argument. Op. 1-2. (The opinion criticized Motorola for being oblivious to the practical
consequences of its position, although of course the panel had refused to permit Motorola to
submit a brief or appear for oral argument to explain its position. Op. 9.)
Appellant filed a Petition for Rehearing En Banc. Dkt. 20 (Apr. 24, 2014). The petition
noted that no federal court of appeals had ever before employed the procedure used by the
motions panel in this case: ordering a petitioners claim dismissed on the merits without briefing
or argument in the course of granting a petition for leave to appeal under Section 1292(b).
Further, the context of interlocutory review under Section 1292(b) made such a summary
procedure particularly anomalous, because that statute grants this Court jurisdiction only if the
case presents an important legal question as to which there is substantial ground for difference
of opinion. 28 U.S.C. 1292(b).
The Department of J ustice filed an amicus brief on behalf of the United States and the
Federal Trade Commission supporting Motorolas petition for rehearing en banc. Dkt. 23 (Apr.
24, 2014). It explained that, in the governments view, the panels ruling was erroneous and
would present substantial obstacles to the criminal prosecution of international cartels that target
this country. Two private amici supported the petition as well. Dkts. 24, 25 (Apr. 24, 2014).
As is appropriate for requests for en banc review, the petition and amicus briefs focused
on the reasons for the full court to review the case, not the merits. The Court ordered defendants
to respond to the en banc petition. Dkt. 26 (Apr. 25, 2014).
4

The panel then issued an order directed specifically to the Department of Commerce and
Department of State, inviting each to file its own separate amicus brief. Dkt. 33 (May 1, 2014).
This appears to have been the first instance in which any federal court of appeals has ever
responded to a brief filed by the United States by soliciting submissions from particular
departments of the executive branch. The same order sua sponte extended defendants time to
respond to the petition (which would trigger the time for the en banc courts vote on the petition)
until those further governmental briefs were due. Solicitor General Donald Verrilli personally
wrote the Court in response, explaining that he had authorized the brief filed on behalf of the
United States, which was submitted after consulting with the relevant departments of the federal
government and which set forth the views of the executive branch. Dkt. 34 (May 19, 2014).
The panel responded by ordering Solicitor General Verrilli personally, within one week,
to not only explain what it means for a brief to reflect[] the views of the United States, but to
identify the specific executive branch officials who had been consulted in the course of preparing
that brief and the nature of that consultation. Dkt. 35 (May 22, 2014).
1
This order was similarly
unusual, to say the least. The next day, the panel sua sponte withdrew its order to the Solicitor
General. Dkt. 38 (May 23, 2014).
Defendants then filed their answer to the petition for rehearing en banc. Dkt. 39 (May
23, 2014). An agency of the Korean government submitted a brief in support of the panels
decision. Dkt. 36 (May 23, 2014).
2

Motorola moved to file a reply in support of en banc review, explaining that the filing

1
Unlike prior orders, this one was issued in the name of the Court rather than the
members of the panel, but a subsequent order indicates that in fact it too was issued by the panel.
Dkt. 50 (J une 2, 2014).
2
This brief failed to note that a firm that had contributed to the drafting was also principal
Korean antitrust counsel to some of the defendants.
5

would aid the full courts understanding of Motorolas position because the panel had not
permitted it to submit a merits brief. Dkt. 41 (May 28, 2014). J udge Posner denied the motion
personally. Dkt. 44 (May 29, 2014). The same day, J udge Posner personally granted a motion
by a ministry of the Government of Taiwan to file a letter to the en banc court in support of the
panels ruling, although that request was out of time, the movant had not sought consent, and the
motion was filed by one defendants principal outside counsel. Dkt. 46 (May 29, 2014).
Because the period for an en banc vote was underway, Motorola filed a requestsetting
forth no argumentthat its motion to file a reply be distributed for decision by the full court
rather than by J udge Posner individually. Dkt. 48 (May 29, 2014). J udge Posner sua sponte
construed that request as a motion for him to reconsider his own prior order and granted it,
ordering the reply distributed. Dkt. 49 (May 30, 2014). J udge Posner also directed the Clerk to
circulate to the en banc court defendants opposition to the motion to file a reply, which defends
the panels opinion, Dkt. 43 (May 28, 2014), though none of the other motion papers were
circulated, including Motorolas motion to file a reply, the initial order denying leave to file a
reply, and Motorolas request for en banc consideration of its motion.
The panel then issued another order to the Solicitor General. Dkt. 50 (J une 2, 2014).
Although the Solicitor General had previously explained that the governments amicus brief was
based on consultations with all the relevant departments of the federal government, which
disagreed with the panels assessment of the effect of Motorolas claim on U.S. foreign relations,
and although the panel had revoked its order to explain which departments had been consulted,
the panel explained that it still had a special interest in the views of the Departments of
Commerce and State. The order expressed concern with the credibility of the governments
first brief disagreeing with the panels opinion, and stated that a further submission stating the
6

views of those other departments would be helpful in that regard. (The order refers to the brief
of the United States as having been filed merely by the FTC and the antitrust division, while
characterizing the short submissions by individual ministries of foreign governments as broadly
setting forth the views of the Republic of Korea and Taiwan.)
The government responded by filing another brief on behalf of the United States
authorized by the Solicitor General. This brief was pointedly signed not only by the Assistant
Attorney General for Antitrust and the General Counsel of the Federal Trade Commission, but
also by senior legal officers of both the State and Commerce Departments. Dkt. 57 (J une 27,
2014). The brief disagreed at length and in detail with the panel opinions view that a legal rule
permitting Motorolas claim to go forward would harm U.S. foreign relations.
Before the full court acted on the en banc petition, the panel sua sponte vacated its
opinion, Dkt. 58 (J uly 1, 2014), even though Motorola had sought only rehearing en banc, not
panel rehearing. Having returned the case to its initial status in this Court, the panel in the
ordinary course would have proceeded to make the straightforward determinationon which
Motorola, the defendants, the district court, and the panel itself had all agreedthat this case
satisfies the requirements for interlocutory appeal under Section 1292(b). That determination
would cause the case to be set for orderly briefing, argument, and decision by a merits panel.
But in a parallel order, the panel instead set the case for briefing and argument before it,
although it did not specify whether it planned to decide only the question of appellate jurisdiction
or to go on to decide the merits again. Specifically, the panel imposed an extremely expedited
schedule for the parties to submit supplemental briefs (although there were no opening briefs
to be supplemented) and to appear for oral argument. Dkt. 59 (J uly 1, 2014). Still no party
had suggested that the case should be expedited, and more than five weeks had passed since
7

defendants had answered the petition for rehearing en banc. But the panel ordered Motorola to
submit its brief five business days later (the briefing spanned the Independence Day holiday),
and further required that the brief be physically printed and received by the panel on the fifth
day. But see Fed. R. App. P. 31(a). It ordered defendants to file their brief a week later. But see
Id. Motorola was not permitted to submit a reply. But see Fed. R. App. P. 28(c). The panel set
the case for argument three business days after submission of defendants brief, during a four-
week period in which the Court was not otherwise hearing argument.
Appellant filed a motion seeking clarification, Dkt. 62 (J uly 2, 2014), to which the panel
promptly responded, Dkt. 63 (J uly 3, 2014). With respect to Motorolas inquiry whether the
panel had jurisdiction over the merits of the appeal, so that the case will not be assigned to a
separate merits panel, the panel provided no further guidance but instead repeated its prior
statement that [t]he panel has decided to rehear this appeal. The order specified that [n]o
extensions of time will be granted in light of the oral argument scheduled for J uly 21, 2014.
REASONS FOR INITIAL HEARING EN BANC
I. The Question Whether A Motions Panel May Finally Determine The Merits Of An
Appeal Based On A Section 1292(b) Petition Is Exceptionally Important.
The en banc court has a fundamental interest in ensuring the regularity of its proceedings
and safeguarding the process by which cases are prepared for decision and assigned to particular
panels. Motions panels frequently consider preliminary matters in appeals, including petitions
for permission to appeal under 28 U.S.C. 1292(b). The consistent practice throughout all the
courts of appeal and the entire history of Section 1292(b) is that the motions panel makes a
preliminary determination whether the case is suited for interlocutory appeal (or defers that
question to a merits panel), and then the case is docketed and assigned to a merits panel for
briefing and argument in the ordinary course. See Hart v. FedEx Ground Package Sys. Inc., 457
8

F.3d 675, 679 (7th Cir. 2006) (Wood, J .) (Appeals filed pursuant to 1292(b) are governed by
Federal Rule of Appellate Procedure 5, which requires a party to file a petition for permission to
appeal; the appellate court then either grants the petition, accepting the appeal for filing, or
denies the petition.). To reiterate, there is a plain conflict between this circuit and every other:
No party has been able to identify any case in which a motions panel of another court presented
with a request to appeal under Section 1292(b) went on to decide the merits. But twice recently
a motions panel in this Circuit has taken upon itself the power to decide on the basis of the
motions papers not only the question of appealability under Section 1292(b), but the merits of the
appeal as well. See Sterk v. Redbox Automated Retail, LLC, 672 F.3d 535 (7th Cir. 2012)
(Posner, J .); In re Text Messaging Antitrust Litig., 630 F.3d 622 (7th Cir. 2010) (Posner, J .).
3

The panel chose this multi-billion dollar case over the applicability of the federal antitrust
laws to global cartels to be the first in which a motions panel would hold that the petitioners
claim was dismissed on the merits, without briefing or argument. As illustrated by the Statement
of the Case above, the use of irregular procedures has led to troubling and very public results

3
In previously opposing rehearing en banc of the motions panels since-vacated opinion,
defendants claimed to have identified more than a dozen cases that were contrary to this
argument. See En Banc Opposition 4 n.1. In support, they cited only three. See id. (citing Pella
Corp. v. Saltzman, 606 F.3d 391 (7th Cir. 2010); First Bank v. DJL Props., LLC, 598 F.3d 915
(7th Cir. 2010); and In re Sprint Nextel Corp., 593 F.3d 669 (7th Cir. 2010)). In fact, none
involved a Section 1292(b) petition; none even finally determined a claim on the merits. Out of
all the cases in all the circuits presenting Section 1292(b) appeals, Motorola has been able to
identify only two potentially similar cases, but neither is even analogous. The one-paragraph,
unpublished order in Rogers v. Bell Atlantic-Virginia, 232 F.3d 889 (4th Cir. 2000), can be read
to suggest that the panel might have simultaneously decided a Section 1292(b) application and
the merits, but the docket (available on Westlaw) demonstrates that an appeal was docketed, a
briefing schedule was entered, and informal briefs were submitted. Any deviations from
ordinary procedures would likely reflect that the appellee was pro se. And while the decision in
Restaura, Inc. v. St. Louis Concessions, Inc., 52 F.3d 189, 190 (8th Cir. 1995), might appear on
point, it ultimately reveals that the parties there filed an ordinary appeal, and if the merits panel
was forced to simultaneously decide a Section 1292(b) petition, it was only because the parties
discovered (and attempted to cure) a problem with the finality of the judgment after the fact.
9

both substantively and procedurally. See, e.g., Editorial Board, A Cramped View of Antitrust
Laws, The Motorola Mobility Ruling and Foreign Cartels, N.Y. Times (J un. 15, 2004), available
at http://goo.gl/FMBRSr; Alison Frankel, Judge Posner Backs Down (For Now) In Antitrust
Policy Duel With U.S., Reuters (J uly 2, 2014), available at http://goo.gl/SLXmeb; J acob
Gershman, Appeals Court Questions Solicitor General in Motorola Antitrust Case, Wall St. J .
Law Blog (May 23, 2013), available at http://goo.gl/ws1LxP.
Because the panel has set the case for renewed considerationand previously reached
the merits on the basis of the Section 1292(b) submissionsthe case is uniquely well suited for
en banc consideration of this practice. By contrast, if the en banc court awaits the panels
disposition of the case, then the important procedural question raised by the case may be
subsumed by consideration of the merits. And Motorola may be prejudiced substantially by the
panels issuance of an opinion that the panel can only issue in violation of the applicable rules.
This Court accordingly has a unique opportunity to right the procedural ship without affecting
any merits decision one way or the other.
As explained below, the practice at issue is fundamentally inconsistent with circuit
precedent, the Federal Rules of Appellate Procedure, the Local Rules, and Section 1292(b) itself.
But this is not just a question about the consistency of the Courts procedural law; it is a question
about the integrity of the Courts proceedings as well. As the Courts Handbook notes, the
procedures for assigning cases to panels should avoid even the remote possibility of the
deliberate assignment of an appeal to a particular panel. Practitioners Handbook for Appeals
for the Seventh Circuit at 10 (May 2014 ed.) (Handbook). But a procedure under which a
motions panel can decide sua sponte to assume power over the meritsperhaps at the suggestion
of the individual motions judge who first considers the caseraises just that possibility, and with
10

it, fundamental questions about the fairness and regularity of this Courts decision making
processes. At the very least, the Court as a whole should determine the standards and procedures
according to which a motions panel may decide the merits of a case, rather than leaving such
critical matters to the potentially inconsistent views of individual judges and panels.
4

II. The Motion Panels Apparent Intention To Decide The Merits Under Extraordinary
Procedures Conflicts With Circuit Precedent And All Other Relevant Authorities.
This Court, like nearly every other circuit, has definitively held that a motions panel,
operating under the procedures for determining a Section 1292(b) petition, cannot even make the
law of the case on the narrow issue of appealability that the panel is empowered to decide. A
subsequent panel considering the merits is free to disagree with the motion panels determination
because [d]ecisions by motions panels are summary in character, made often on a scanty record,
and not entitled to the weight of a decision made after plenary submission. Johnson, 930 F.2d
1204.
5
That rule cannot be reconciled with the proposition that a motions panel can use similarly
extraordinary or abbreviated procedures to make the law of the circuit on important questions of
lawespecially because, under Section 1292(b), those questions must necessarily be ones as to
which there is substantial ground for difference of opinion. For that reason, the practice at issue
here appears to be unknown in the history of Section 1292(b) proceedings. Were this Court to
implicitly bless that process by allowing it to go forward in this high-profile case, it would create
a split with every other circuit and a deep rift in its own jurisprudence.

4
The en banc court also could expeditiously resolve the question presented here by
directing the panel to decide only the question of the cases appealability under Section 1292(b).
5
See also CNF Constructors, Inc. v. Donohoe Constr. Co., 57 F.3d 395, 397 n.1 (4th Cir.
1995) (law of the case does not prevent appeals court from revisiting a prior motions panel ruling
on the court's jurisdiction); United States v. Houser, 804 F.2d 565, 569 (9th Cir. 1986) (law of
the case does not apply to motions panel dismissal on jurisdictional grounds); E.E.O.C. v. Neches
Butane Prods. Co., 704 F.2d 144, 147 (5th Cir. 1983) (motions panel dismissal for want of
jurisdiction is provisional and subject to review).
11

It would also leave parties in this Circuit completely adrift. This Courts oft-cited
opinion in Ahrenholz, 219 F.3d at 678 (Posner, J .), emphatically directs parties submitting and
responding to a Section 1292(b) petition to focus on the Section 1292(b) factors, not the merits.
See id. (forcefully criticizing a petition to us for permission to take an immediate appeal [that]
does not deign to discuss the statutory criteria [and] merely reargues the case for summary
judgment). Allowing the procedure at issue here turns that advice into a garbled contradiction.
Henceforth, parties would follow Ahrenholz at their extreme perilpotentially forgoing their one
and only chance to brief the merits. But, of course, if they spend their limited time and space
developing merits arguments, they risk the denigration of the Court (or worse, sanctions) for
failing to focus on the Section 1292(b) factors.
At a minimum, this would constitute terrible judicial policy. Many parties will conclude
that, rather than try to do both X and not X in only ten days and twenty pages, they should
simply preserve their rights to a full-blown merits proceeding by waiting for final judgment. At
best, that will waste the very chance to preserve judicial resources that Section 1292(b) was
designed to provide. At worst, it will lead parties and outside observers to conclude that this
Circuits rules have been intentionally designed to allow the Court to do whatever it wants, and
to arbitrarily criticize or penalize litigants who try in earnest to follow its advice.
Even ignoring binding precedent, however, the Court cannot adopt the procedural
practice at issue (or allow it to continue) because it plainly conflicts with the Federal Rules of
Appellate Procedure as well. See Fed. R. App. P. 47 (local rules must be consistent with the
federal rules). A petition for permission to appeal under Section 1292(b) is governed by Federal
Rule of Appellate Procedure 5, which establishes the limited scope of such a proceeding. The
rule calls for parties to include in their petition a discussion of the basis for appellate jurisdiction,
12

but makes no mention of the merits. See Fed. R. App. P. 5(b)(1). Rule 5 also does not provide
the time or space required for briefing the merits. It provides only ten days to file a petition,
limits the document to twenty pages, grants no right of reply, and adopts a presumption against
oral argument. See id. Rule 5(a)-(b); 28 U.S.C. 1292(b). Each of those provisions is directly
contrary to the federal rules for merits proceedings. See Fed. R. App. P. 28(a) (different contents
for merits brief); 28(c) (right of reply briefing); 31(a) (forty days for opening brief; fourteen days
for reply brief); 32(a)(7) (longer volume limitations for merits briefing); 34 (strong presumption
in favor of oral argument).
If the motions panel grants permission to appeal, then Rule 5 calls for treating the case as
an ordinary appealwith ordinary briefing and argument. The rule provides that the motions
panels order serves as a notice of appeal, and the clerk of court must enter the appeal on the
docket. And, consequently, this Circuits rule laying out the required contents for merits
briefing provides that, if this is an appeal by permission under 28 U.S.C. 1292(b), the party
must give the particulars and describe the relation between the claims or parties subject to the
appeal and the claims or parties remaining in the district court. Cir. R. 28(a)(3)(i). By
specifying requirements for merits briefs in Section 1292(b) appeals, the Courts own rules
obviously contemplate that such merits briefs will be filed.
The extraordinary process at issue also conflicts with Federal Rule of Appellate
Procedure 29(a), which gives the federal government a right to submit its own amicus brief on
the merits in any case. That right serves to avoid situations in which a decision regarding private
litigation will have substantial impact on governmental interests without allowing the
government a right to be heardexactly as happened here. The absence of ordinary merits
briefing short-circuits the governments ability to file an amicus brief on the merits, depriving
13

the government (and the public) of an important right that the federal rules provide. That can
lead to erroneous outcomes and extreme prejudice to the public interest.
Under Rule 5, the motions panels order granting permission to appeal also triggers the
duty to compile and transmit the record. Fed. R. App. P. 10, 11. Until the case is entered on the
merits docket, the record remains with the district court. The rules serve to ensure that the record
before the court of appeals is accurate and complete, and that the court has the materials required
to evaluate the parties arguments and any claims of waiver. See, e.g., Fed. R. App. P. 10(a)(2)
(preparation of transcripts); 10(e) (corrections or modifications); Cir. R. 10(a) (materials to be
included in the record), 10(g) (record requirements governing assertions of waiver). If the
motions proceeding is instead diverted into a summary merits proceeding, the record is never
assembled and transmitted, an accurate and complete appendix is never prepared (see Fed. R.
App. P. 30 and Cir. R. 30 (governing preparation of an appendix)), and the court is deprived of
an appropriate basis on which to rest its decision.
This case is a perfect demonstration of why these rules require scrupulous adherence. The
United States has an obviously substantial interest in the merits of the appeal, yet there has been
no merits briefing. The record apparently still lies exclusively in the district court. Indeed, after
having decided the merits based on its own review of the record, the panel in this case later
requested that the government provide it with a brief from a foreign governmental ministry that
was already in that record. Such confusion is easily avoided by following the processes
specified in the Federal Rules of Appellate Procedure.
Nor can this practice be defended based on the (suggestively timed) addition to the
Circuit Handbook, after Motorola sought rehearing en banc of the panels since-vacated merits
ruling, of a statement that motions panels may decide the merits if they conclude that a call for
14

briefs would be nothing but an invitation for the parties to waste their money and the courts
time. See http://goo.gl/gxKwCk (Internet Archive Wayback Machine) (archiving both the Mar.
5, 2014 version of the Practitioners Handbook for Appeals to the U.S. Court of Appeals for the
Seventh Circuit, which does not contain that entry, and the May 30, 2014 version, which does)
(visited J uly 4, 2014)). That provision simply cannot apply to Section 1292(b) cases because
they must necessarily present questions as to which there is a substantial ground for
disagreement. See 28 U.S.C. 1292(b). And that is especially obvious here, where the panel
itself has issued a call for briefs from the government and has now scheduled oral argument.
This issue likewise falls outside the scope of Operating Procedure 6(d), which states that
[w]hen a motion panel decides that a motion or petition should be set for oral argument or the
appeal expedited, it may recommend to the chief judge that the matter be assigned for argument
and decision to the same panel. In the absence of such a recommendation, the matter will
ordinarily be assigned in the same manner as other appeals. This procedure recognizes the
prospect that a motions panel will hear argument on and decide a substantial motion that
overlaps significantly with the merits of the casefor example, a motion for a stay or injunction.
In that circumstance, the expedited nature of the proceedings and the need for consistency in the
Circuits jurisprudence may require that a single panel resolve the merits of the case.
Accordingly, Operating Procedure 6(d) refers to cases in which the motion requires oral
argument or the appeal requires expedition, neither of which are even arguably true in this case,
or in any heartland Section 1292(b) case.
So, ultimately, Operating Procedure 6(d) only confirms that this Court should put an end
to the irregular practice of transforming Section 1292(b) filings into opportunities for poorly
briefed merits decisions. The Operating Procedure expressly says that, when it does not apply,
15

the matter will ordinarily be assigned in the same manner as other appeals. This case vividly
shows why adherence to that procedure, the Federal Rules, and the uniform practice in all other
courts of appeal is necessary and appropriate to avoid even the implication of the deliberate
assignment of an appeal to a particular panel, Handbook at 10, as well as the concern that the
single motions judge who first reads a Section 1292(b) petition can play a dramatic role in
determining the panel to whom the merits are assigned.
6

In conclusion, Motorola emphasizes that it is not seeking to disqualify the panel or to
prevent its members from being eligible for random assignment to the case in the ordinary
course. The problem is process, not personnel. It is imperative that the full court regularize the
Courts procedures, ensure that litigants like Motorola receive the procedural rights to which
they are entitled under the Federal Rules in proceedings on the merits, and avoid the continued
implication that this Courts proceedings allow particular judges or panels to decide which cases
they should get to decide. Initial hearing en banc is rare, but this case presents a critical issue of
circuit management and an equally rare opportunity for this Court to consider and correct a
practice that leaves it out of step with the entire remainder of the federal judiciary.
CONCLUSION
This Court should grant initial hearing en banc and determine that, absent extraordinary
circumstances, a motions panel considering a Section 1292(b) petition may not proceed to the
merits.
Respectfully submitted,

/s/Thomas C. Goldstein

6
It bears emphasizing that both the motions panel and the district court dismissed
Motorolas claim without full briefing. The latter acted only on the basis of a petition for
rehearing of the decision of the MDL court.
16

Thomas C. Goldstein
GOLDSTEIN & RUSSELL, P.C.
5225 Wisconsin Ave. NW
Washington, DC 20015
J uly 9, 2014 (202) 362-0636

17

CERTIFICATE OF COMPLIANCE
The undersigned certifies that the foregoing Petition for Hearing En Banc of Motorola
Mobility, LLC complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because
it is no more than fifteen pages in length, excluding the parts of the petition exempted by Fed. R.
App. P. 32(a)(7)(b)(iii).
The undersigned further certifies that this petition complies with the typeface
requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P.
32(a)(6) because this petition has been prepared in a proportionally spaced typeface using
Microsoft Word Version 97-2003 in 12 point Times New Roman.

/s/ Thomas C. Goldstein
18

CERTIFICATE OF SERVICE
I hereby certify that on J uly 9, 2014, the Petition for Hearing En Banc of Motorola
Mobility, LLC was filed with the Clerk of the Court for the United States Court of Appeals for
the Seventh Circuit by using the appellate CM/ECF system.
The following participants in the case are registered CM/ECF users and will be served by
the appellate CM/ECF system:
Kenneth A. Gallo
Craig A. Benson
J oseph J . Simons
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
2001 K Street N.W.
Washington, DC 20006-1047
Richard M. Brunell
AMERICAN ANTITRUST INSTITUTE
68 Adella Avenue
Newton, MA 02465

Terence H. Campbell
COTSIRILOS, TIGHE STREICKER,
POULOS & CAMPBELL, LTD.
33 N. Dearborn Street, Suite 600
Chicago, IL 60602

Christopher M. Curran
WHITE & CASE LLP
701 Thirteenth Street N.W.
Allison Ann Davis
DAVIS WRIGHT TREMAINE LLP
Suite 800
505 Montgomery Street
San Francisco, CA 94111
Nathan P. Eimer
EIMER STAHL LLP
224 S. Michigan Avenue, Suite 1100
Chicago, IL 60604

William Farmer
FARMER BROWNSTEIN
J AEGER, LLP
235 Pine Street, Suite 1300\
J ames J oseph Fredricks
Nickolai G. Levin
Kristen Ceara Limarzi
DEPARTMENT OF J USTICE
Antitrust Division, Appellate Section
950 Pennsylvania Avenue N.W., Room 3224
Washington, DC 20004

Brett K. Gorman
SCHMIEDESKAMP, ROBERTSON,
NEU & MITCHELL
525 J ersey Street
P.O. Box 1069
Quincy, IL 62306

Kirk Christopher J enkins
SEDGWICK LLP
One N. Wacker Drive, Suite 4200
Chicago, IL 60606-2841
19

J ames A. Morsch
BUTLER, RUBIN, SALTARELLI
& BOYD
70 W. Madison Street, Suite 1800
Three First National Plaza
Chicago, IL 60602

Eugene E. Murphy J r.
MURPHY & HOURIHANE LLC
Suite 2550
161 N. Clark Street
Chicago, IL 60601
J effrey R. Tone
KATTEN & TEMPLE LLP
542 S. Dearborn Street, 14
th
Floor
Chicago, IL 60605
William Yu
LEWIS BRISBOIS BISGAARD
& SMITH LLP
550 W. Adams Street, Suite 300
Chicago, IL 60661
Robert A. Long J r.
Robert D. Wick
Derek Ludwin
COVINGTON & BURLING LLP
1201 Pennsylvania Avenue N.W.

I further certify that the following participants in the case are not registered CM/ECF
users. On J uly 9, 2014, two copies of the Petition for Hearing En Banc of Motorola Mobility,
LLC were sent via first-class mail, proper postage prepaid to the following non-CM/ECF
participants:
Carl L. Blumenstein
Farshad Farzan
Christopher A. Nedeau
NOSSAMAN LLP
50 California Street, 34
th
Floor
J ason M. Bussey
2475 Hanover Street
Palo Alto, CA 94034

Daniel Cummings
ROTHSCHILD, BARRY & MYERS
Xerox Centre
55 W. Monroe Street, Suite 3900
Chicago, IL 60603

J effrey M. Davidson
COVINGTON & BURLING LLP
One Front Street
Brian H. Getz
44 Montgomery Street
Suite 3850

/s/ Thomas C. Goldstein

MOTOROLA MOBILITY LLC v. AU OPTRONICS CORPORATION en Banc Petition

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