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.