Last year's trial was a disaster for Qualcomm, with its own witnesses (including the experts) not having much credibility while the FTC put on what appeared to be a very strong case. However, at the appellate stage Qualcomm may benefit from a focus on specific legal questions. I guess we're going to see a mixed ruling.
Meanwhile, the panel for next Thursday's Ninth Circuit hearing has become known:
Circuit Judge Johnnie Rawlinson, a Clinton appointee who was recommended by then-Senator Harry Reid (the #1 Democrat in the Senate over the course of many years), but is considered "moderate to conservative" (though her categorization as "conservative" appears to be attributable to her law-and-order stance)
Circuit Judge Consuelo Callahan, whom Bush 43 appointed to the Ninth Circuit and even considered for the Supreme Court (he then chose Samuel Alito)
District Judge Stephen Murphy III (Eastern District of Michigan), whom Bush 43 nominated for the Sixth Circuit, but couldn't get confirmed after losing the 2006 midterm election; he spoke at some Federalist Society event in 2010 (possibly also others), and in recent years the Federalist Society has supported Qualcomm in this antitrust context with numerous articles and amicus briefs
The worst-case scenario for Qualcomm would have been a panel with a liberal majority (and especially if one or more judges had been Obama appointees). That's definitely not the case here.
At the other end of the spectrum, there would have been a majority of Trump appointees, who might have been most receptive to the DOJ's Antitrust Division's arguments in support of Qualcomm. That's not the case either.
Judge Murphy III, sitting by designation, may understand the automotive industry's concerns about Qualcomm's refusal to extend exhaustive licenses to component makers fairly well, as the Detroit area is part of the district where he normally works.
But other than that, Qualcomm has more reasons to be happy with the composition of the panel than the FTC does. Come Thursday, we may see the appeals court's inclination.
Share with other professionals via LinkedIn: