Sunday, October 16, 2022

Law firms like Wilmer, Perkins, Ashurst, Van Bael should decline to represent astroturfers after MEPs ask EU Commission to suspend access to EP for representatives of Google, Amazon, Meta, Apple-funded CCIA, other lobbying fronts

There was a time when Big Tech companies and maybe even their outside counsel thought astroturfing--using lobbying fronts that pretend to speak for someone other than who actually funds and controls them--was par for the course. Like an all-year Mardi Gras in lobbying that everyone attends, the only difference being the costumes. Not so anymore:

This is the year astroturfing finally got called out big-time. First on social media, then in mainstream media (Bloomberg exposed ACT | The App(le) Association), now in the political arena, and be forewarned: if some don't distance themselves from that kind of activity now, even prestigious law firms risk court sanctions on top of the utter embarrassment of their clients' amicus briefs and petitions for intervention being rejected.

When a client like Apple or Google comes to a world-class law firm and asks them to represent their sock puppets (to give them more weight in the eyes of the judges), it may not be easy to say no. But the ability to say no is commonly known as a key differentiator between winners from losers. Declining to aid and abet in astroturfing is the smarter choice going forward, provided one carefully reads the writing on the wall. What's been happening lately takes all the fun out of astroturfing. It has become absolutely toxic. And now there are well-funded companies like Epic Games that are not going to take it anymore when their adversaries commit foul play.

ACT | The App(le) Association remains the most shameless astroturfing operation. They even got Apple's lobbying subsidized by the U.S. government's Paycheck Protection Program at the start of the pandemic. And even after they've been exposed, they keep spouting insults to human intelligence. For example, on September 30, the day that the IEEE rejoined the mainstream of the standards development world, ACT issued the following statement attributable to its president:

"We are concerned the resulting legal uncertainty from the IEEE SA BOG action will adversely impact small innovators delivering amazing standards-supporting products." (emphasis added)

ACT's primary backer--Apple--hasn't been a "small innovator" since 1976, the year it was founded (its first computer became a blockbuster the following year). And WiFi (that's the IEEE's most popular standard) or other standard-essential patent (SEP) lawsuits against small innovators are hard to come by. This is just about Apple's notorious efforts to devalue SEPs. ACT falsely claims to represent thousands of app developers, and I've never seen an app developer being sued over WiFi (or cellular) SEPs.

CCIA--the so-called Computer & Communications Industry Association, more appropriately dubbed the Cash & Carry Industry Association-- is now also getting money from Apple, and has been a Google and Amazon front for many years.

CCIA and three of its members (Google, Amazon, Meta) are the most well-known four of the eight entities whose access to the European Parliament is now in jeopardy due to astroturfing. Politico Europe first reported in November 2021 on a Green MEP's concern over fake SME (small and medium-sized enterprise) organizations, and named Google and Amazon's backing of Washington-based Connected Commerce Council. On Friday, Politico EU reported on formal complaints that three well-respected, influential, center-left Members of the European Parliament--Paul Tang (from the Netherlands), René Repasi (Germany), and Christel Schaldemose (Denmark)--submitted to the European Commission. Bloomberg's report on those complaints quotes some of the players--they deny any wrongdoing. TechCrunch published a good summary.

I have meanwhile obtained--but am not authorized to publish the original documents--copies of four of the eight complaints. The complaints were filed with the Secretariat of the Transparency Register, which is a Commission department, "[f]ollowing an exchange with EP President Roberta Metsola" (a Maltese center-right politician).

They allege breaches of rules requiring lobbyists to "identify themselves by [...] the entity or entities they work for or represent; [...] specify the clients or members whom they represent [...]; [and] ensure that the information that they provide upon registration [...] is complete, up-to-date, accurate and not misleading [...]" (emphasis added) ("points a, b and f of the rules and principles as listed in Annex I of the Interinstitutional Agreement of 20 May 2021 between the European Parliament, the Council of the European Union and the European Commission on a mandatory transparency register).

The lawmakers ask the Commission to impose the ultimate sanction by revoking those organizations' access to the EU legislature:

"We ask you to investigate the issue and, upon concluding your remarks, suspend access to the European Parliament for all representatives of the identified organisation and other registrants of the transparency register who were involved." (emphasis added)

A separate complaint had to be filed for each of these targets:

The complaints focused on lobbying related to the EU's Digital Markets Act (DMA) and Digital Services Act (DSA). ACT has also opposed the DMA, but for what I know has not been nearly as active in the European Parliament in the DMA context. They have, however, lobbied MEPs to ask the Commission written questions about SEP policy, and in at least one case those efforts did result in a formal filing of a parliamentary written question. It's just a question of time when ACT will also be held accountable. ACT (like CCIA) regularly testifies in U.S. Congress, and next time ACT does so, politicians who disagree with its positions may very well bring up the Bloomberg story on whom ACT really represents.

It's getting rougher out there for the astroturfers and their backers. They're increasingly being called out, and formal complaints over their conduct have been and will continue to be brought.

Astroturfers will now also face more resistance to their amicus curiae briefs. So far, most litigants have taken a rather permissive approach and opposed amicus briefs only under the most egregious of circumstances. Now, after those mainstream media reports and complaints by lawmakers, it appears probable that questions will be asked and motions for leave will be opposed. For instance, in an Ericsson v. Apple case before the U.S. International Trade Commission, not only Ericsson but also the ITC staff insisted on knowing more about Apple's backing of ACT (the discovery motion was ultimately granted over Apple's objections).

In the United States, lawyers are officers of the court, and some of the same principles also apply in European jurisdictions. They may vigorously represent their clients, but they have to be truthful. Law firms--especially top-notch firms with an otherwise impeccable reputation--should think twice before they submit briefs on behalf of 5,000 small app developers when the net effect is just that Apple gets to exceed page limits and judges may end up believing that there really are small app developers who are concerned about SEPs or who love Apple's App Store tyranny and tax regime.

I don't mean to name and shame them, but I do want to give examples of astroturfing that was supported by otherwise really great firms:

  • Philips v. Thales, United States Court of Appeals for the Federal Circuit, case no. 21-2106: October 21, 2021 "Brief for Amicus Curiae ACT | The App Association in Support of Appellant" submitted by one of Apple's go-to firms, Wilmer Cutler Pickering Hale and Dorr LLP (a firm I've often had extremely positive things to say, but it should be beneath WilmerHale to represent astroturfers)

  • Continental v. Avanci et al., United States Court of Appeals for the Fifth Circuit, case no. 20-11032: April 20, 2022 "Brief of Amici Curiae ACT | The App Association, Computer and Communication[s] Industry Association, High Tech Inventor[s] Alliance, and Public Interest Patent Law Institute in support of petition for interference en banc" (I haven't mentioned Perkins Coie before, but I know and respect former as well as current Perkins partners)

  • Google v. European Commission, Court of Justice of the European Union, case no. T-604/18 ("Google Android"): Google was supported by the Application Developers Alliance (which is Google's fake developer lobby, i.e., Google's ACT, though less visible in the public debate), which was represented by Ashurst lawyers Parr, Vaz, and Baena Zapatero (Ashurst is also representing European soccer body UEFA in the European Superleague Company case and gave some really good answers at the July hearing)

  • Intel v. European Commission, Court of Justice of the European Union, case no. C-413/14 P: Intel was supported by ACT, which was represented by Jean-François Bellis of Van Bael & Bellis, whom I called the #1 lawyer when it comes to appealing DG COMP decisions; even his firm's website grossly misrepresents ACT as "a trade association of more than 5,000 IT firms worldwide"

Those four firms honestly may not have known what their clients were really about when they filed those amicus briefs or were presenting them before the EU General Court. But by now we may have reached a point at which they can hardly deny having read what Bloomberg, Politico, and others have revealed. Just say no next time.