Motorola to 7th Circuit: Make Judge Posner follow the rules

By Alison Frankel
July 10, 2014

I didn’t think Motorola’s antitrust appeal at the 7th U.S. Court of Appeals could get any stranger. This, after all, is the billion-dollar case that prompted a bizarre showdown over international antitrust policy between the U.S. solicitor general and a three-judge appellate panel led by Richard Posner.

Earlier this month, the panel backed down and vacated a highly controversial ruling that had effectively erased U.S. antitrust liability for foreign price-fixing cartels that sell component parts to foreign subsidiaries of U.S. companies. Posner and the other judges ordered Motorola and the liquid crystal display screen manufacturers it has accused of price-fixing to submit new briefs on the merits of their arguments, and I thought the case would return to something resembling normalcy.

Boy, was I wrong.

Motorola submitted a brief yesterday, meeting the incredibly tight deadline the Posner panel set. But instead of laying out for the panel the reasons why precedent and policy favor Motorola’s right to sue the alleged LCD cartel, Motorola’s lawyers at Goldstein & Russell asked the entire 7th Circuit to take the case en banc – not to hear the merits, but to reverse the “terrible judicial policy” that has divided the 7th Circuit from every other federal appeals court.

Unless the 7th Circuit assures that its judges cannot violate several of the Federal Rules of Appellate Procedure, the brief said, “it will lead parties and outside observers to conclude that this circuit’s 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.”

Motorola argued that the Posner panel overstepped its authority from the beginning of the appeal. In the ordinary course, the panel would only have decided whether to grant Motorola’s motion for permission to appeal an intermediate lower court ruling that dismissed almost its entire price-fixing case against the alleged LCD price-fixing cartel. That was the only question Motorola and the defendants briefed.

But the Posner motions panel — without the benefit of briefing on the merits, oral argument, or any indication of the views of the U.S. government — issued a ruling that simultaneously granted the appeal and decided it, dismissing Motorola’s claims.

No other federal circuit, according to Motorola, permits appellate panels designated only to hear motions actually to decide cases. The LCD makers had claimed in a previous brief opposing en banc review that in at least three cases outside of the 7th Circuit, federal appellate panels have dismissed appeals without merits briefing. But Goldstein & Russell’s new brief said that deeper research on those cases contradicts the defendants’ assertion.

Even within the 7th Circuit, Motorola said, there have been only two instances of motions panels deciding the merits of an appeal, according to Motorola. You will never guess who wrote the two previous opinions. Actually, I suspect that you will guess: Judge Posner. The Motorola brief is careful not to single out the imperious Posner, but it can’t be a coincidence that one judge is responsible for the only three cases in which a motions panel in any federal appellate circuit “has taken upon itself the power to decide on the basis of the motions papers not only the question of appealability  but the merits of the appeal as well.”

It should not be up to individual judges or particular three-judge panels, Motorola said, to decide when and whether they’re going to rule on the merits of an appeal when the only issue before them is a motion for the appeal to be heard. That’s why the 7th Circuit should hear the issue en banc, according to Motorola: “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.”

That’s especially true, Motorola said, because the 7th Circuit has previously held that briefs addressing petitions for leave to appeal should stick to the question of why the motions panel should (or shouldn’t) grant permission for the appeal to proceed. And who wrote the opinion that, according to Motorola, “emphatically directs parties submitting and responding to a Section 1292(b) petition to focus on the Section 1292(b) factors, not the merits”? You saw that coming: Posner again!

I left a message for Robert Wick of Covington & Burling, who was the lead signer on the LCD makers’ brief opposing en banc review of the since-vacated Posner panel decision. He didn’t call me back, but I’d bet that the LCD defendants will devote most of the brief they file next week to telling Judge Posner and his panel colleagues why they were right the first time around.

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