Last week, the U.S. Federal Trade Commission (FTC) Staff filed a response that attacks the U.S. Department of Justice (DOJ) Statement of Interest in the FTC v. Qualcomm case. (See May 3, 2019 post on DOJ Statement of Interest). FTC Staff stated that it did not request the DOJ filing, which FTC Staff called untimely. FTC Staff also indicated that the focus of DOJ’s Statement of Interest–the need for briefing and an evidentiary hearing on remedy–was misplaced because evidence of remedy already has been considered and the trial court already decided not to consider remedy separately. And FTC Staff disagrees with DOJ’s view of the law.
The FTC Staff position is not unexpected given the differing views of the role of competition law with standard essential patents between the FTC Staff’s position (which was set when this case was filed as a parting-shot in the last few days of the old administration) and the current DOJ administration. That FTC Staff would take off the gloves so soon and start exchanging public, adversarial blows with its sibling agency is a bit unexpected. But, of course, they may argue that DOJ drew first blood in filing the Statement of Interest.
The FTC Staff’s response is fairly short and reproduced below except for footnotes:
The FTC files this short response to the untimely Statement of Interest submitted by the Antitrust Division of the U.S. Department of Justice to clarify that the FTC did not participate in or request this filing. While, as the record shows, the FTC supports and is prepared to provide further briefing and argument on remedy should the Court’s liability ruling make such briefing and argument necessary, we disagree with a number of contentions in the Statement. Among other things, the submission ignores this Court’s prior orders and the parties’ briefing on remedy and misconstrues applicable law and the record. The FTC is cognizant, however, of the Court’s comments about the voluminous existing briefing in this case. The FTC will therefore refrain from further comment on the Statement unless the Court requests otherwise.
Key points raised by FTC Staff, as further informed by their footnotes, are:
- Untimely. FTC Staff consider DOJ’s Statement of Interest to be untimely–i.e., filed too late–with FTC suggesting in footnote 1 citations that the district court should exercise its discretion to not consider the DOJ’s Statement of Interest given unjustified delay and the case already being fully briefed.
- Disagree on Law. FTC Staff did not welcome DOJ’s Statement of Interest, which FTC Staff believes “misconstrues applicable law and the record.”
- Do Not Need More Briefing on Remedy. FTC Staff indicates that the remedy issue already has been argued and that there has been “voluminous” briefing already in the case, so no need to do more–e.g., additional briefing by DOJ or anyone else. FTC’s footnote 3 cites to points in the record indicating that remedy issues already have been considered and the trial court was not going to have a separate remedy phase.
- Apple Gamesmanship Concerns Not Raised Here. The FTC Staff, while not mentioning by name, indicates that DOJ’s concerns about evidence and commentator views on Apple’s licensing tactics in negotiating with Qualcomm is misplaced because Qualcomm affirmatively decided not to put that in the record in this case, stating in footnote 3: “The Statement also cites documents that Qualcomm chose not to introduce at trial and cites a commentator whom Qualcomm chose not to offer as a witness at trial.”