About a month ago, Judge Jacqueline Scott Corley of the United States District Court for the Northern District of California further narrowed the class-action lawsuit against Qualcomm that sought to piggyback on FTC v. Qualcomm. By now, the case is down to exclusive-dealing claims under California state laws. There are no more Sherman Act claims, and no more claims that are specifically about the licensing of FRAND-pledged standard-essential patents (SEPs).
The question is where to go from here. Qualcomm would obviously like to get rid of the remnants of that litigation at the earliest opportunity, and I could easily picture a summary judgment motion succeeding. The class-action lawyers' last chance to extract any fees from Qualcomm is to make the continuation of this litigation costly for Qualcomm in different ways. A filing that was made about an hour ago shows that they are now primarily betting on Qualcomm's desire to keep the terms of its 2019 settlement with Apple under wraps. Here's the joint case management statement the parties just filed to state their divergent positions:
The class-action lawyers have made an about-face in the sense that the case was originally about Qualcomm allegedly charging supra-FRAND SEP royalties, and now it's about Qualcomm's discounts to Apple (and potentially other device makers, but the plaintiffs can't name any) that were subject to certain exclusivity arrangements. The class-action lawyers say those discounts were actually just "loyalty penalties" (meaning that Qualcomm could claw them back in the event of disloyalty).
The following sentence shows how the focus has changed:
"Specifically, Plaintiffs’ experts are likely to focus on the chipset overcharge caused by Qualcomm’s exclusive dealing, instead of the overcharge caused by Qualcomm’s licensing practices, which heretofore had been the focus in both Plaintiffs’ and the FTC’s case."
After all these years, they now ask for "limited, additional discovery related to their exclusive dealing claim and to submit expert reports, which will focus entirely on Plaintiffs’ exclusive dealing claims and the antitrust impact those exclusive deals had on consumers." As Qualcomm puts it, "Plaintiffs request to re-open fact discovery for nine months, followed by several months of expert reports and expert discovery, and eventually briefing on the certification of some class, in an attempt to manufacture a claim where none currently exists."
This is how the class-action lawyers seek to justify that request:
"Qualcomm’s 2019 Agreement with Apple: Plaintiffs request that Qualcomm produce its 2019 agreements with Apple (including its settlement agreement, license agreement, and chipset supply agreement). Among other things, based on the public statements describing this agreement, it appears relevant to showing the extent to which Intel was truly foreclosed by Qualcomm’s prior exclusive dealing, thereby requiring Apple to return to Qualcomm for chipset supply even after initially awarding some of its chipset business to Intel."
To me that passage is a non sequitur. What I suspect is that they primarily hope Qualcomm doesn't want to take the risk of that agreement being discussed in public filings and potentially a trial. A secondary motive may be that they hope to find something in those 2019 Apple-Qualcomm contracts that would enable them to develop a new theory, such as in a whole new complaint. They are also talking about the possibility of a third amended complaint, though--as Qualcomm notes--Judge Corley already said last year that the Second Amended Complaint was going to be the last one.
I'd certainly be curious to find out more about the terms of the Apple-Qualcomm settlement, but I think Qualcomm has strong arguments against a reopening of discovery in this multi-year litigation, given that the contract was concluded AFTER the class period.
