19-08-02 Consumer Class Answering Brief To Qualcomm's Certification Appeal

Case: 19-15159, 08/02/2019, ID: 11386119, DktEntry: 81, Page 1 of 88
No. 19-15159
UNITED STATES COURTS OF APPEALS
FOR THE NINTH CIRCUIT
IN RE QUALCOMM ANTITRUST LITIGATION

_____________________________________________________
Appeal from the United States District Court

For the Northern District of California,
Docket No. 17-md-02773-LHK,
The Honorable Lucy H. Koh, District Judge
RESPONDENTS’ ANSWERING BRIEF
Kalpana Srinivasan (237460) Joseph W. Cotchett (36324)

ksrinivasan@susmangodfrey.com jcotchett@cpmlegal.com
SUSMAN GODFREY L.L.P. COTCHETT, PITRE & MCCARTHY,
1900 Avenue of the Stars, 14th Floor LLP
Los Angeles, CA 90067 840 Malcolm Road, Suite 200
Telephone: (310) 789-3100 Burlingame, CA 94010
Facsimile: (310) 789-3150 Telephone: (650) 697-6000
Facsimile: (650) 697-0577
Counsel for Respondents-Plaintiffs

(Additional Counsel Listed on Inside Page)
Marc M. Seltzer Adam Zapala

mseltzer@susmangodfrey.com azapala@cpmlegal.com
Steven G. Sklaver Michael A. Montaño
ssklaver@susmangodfrey.com mmontano@cpmlegal.com
Amanda Bonn Tamarah Prevost
abonn@susmangodfrey.com tprevost@cpmlegal.com
Oleg Elkhunovich COTCHETT, PITRE &
oelkhunovich@susmangodfrey.com MCCARTHY
Krysta Kauble Pachman 840 Malcolm Road, Suite 200
kpachman@susmangodfrey.com Burlingame, CA 94010
SUSMAN GODFREY L.L.P. Telephone: (650) 697-6000
1900 Avenue of the Stars, Suite 1400 Facsimile: (650) 697-0577
Los Angeles, CA 90067
Telephone: (310) 789-3100 Plaintiffs’ Co-Lead Counsel
Facsimile: (310) 789-3150
Steve W. Berman
Joseph Grinstein steve@hbsslaw.com
jgrinstein@susmangodfrey.com HAGENS BERMAN SOBOL
SUSMAN GODFREY L.L.P. SHAPIRO LLP
1000 Louisiana Street, Suite 5100 1918 Eighth Avenue, Suite 3300
Houston, TX 77002 Seattle, WA 98101
Telephone: (713) 651-9366 Telephone: (206) 268-9320
Facsimile: (713) 654-6666 Facsimile: (206) 623-0594
Katherine M. Peaslee Jeffrey D. Friedman

kpeaslee@susmangodfrey.com jefff@hbsslaw.com
SUSMAN GODFREY L.L.P Rio S. Pierce
1201 Third Street, Suite 3800 riop@hbsslaw.com
Seattle, WA 98101 HAGENS BERMAN SOBOL
Telephone: (206) 516-3880 SHAPIRO LLP
Facsimile: (206) 516-3883 715 Hearst Avenue, Suite 202
Oakland, CA 94618
Plaintiffs’ Co-Lead Counsel Telephone: (510) 725-3000
Facsimile: (510) 725-3001
Plaintiffs’ Steering Committee

TABLE OF CONTENTS
INTRODUCTION ..................................................................................................... 1
ISSUES PRESENTED............................................................................................. 10
COUNTERSTATEMENT OF THE CASE ............................................................. 13

ARGUMENT ........................................................................................................... 17
I. Judge Koh Did Not Abuse Her Discretion in Finding Common

Issues Predominate as to Antitrust Impact. ................................................... 17
A. Qualcomm Fails to Show Judge Koh’s Factual Findings

Concerning Dr. Flamm’s Regression Were Clearly
Erroneous............................................................................................. 20
1. Qualcomm Does Not Dispute that Dr. Flamm’s
Methodology Satisfies Daubert and Is Tied to
Plaintiffs’ Theory of Liability. .................................................. 21
2. Qualcomm Ignores Judge Koh’s Carefully-Reasoned
Rejection of Its Mistaken, Merits-Based Attacks on Dr.
Flamm. ...................................................................................... 24
a. Judge Koh Correctly Held Qualcomm’s “Cost

Change” Argument “Misapprehend[s] the
Relevant Inquiry.”........................................................... 25
b. Judge Koh Correctly Rejected Qualcomm’s
Focal-Point Pricing and Quality-Adjustment
Arguments....................................................................... 28
c. Judge Koh Correctly Rejected Qualcomm’s

Subsidies, Bundles, Discounts, Rebates, and
Free Phone Arguments. .................................................. 32
d. Qualcomm’s New Argument About Different

Overcharges Between Standards Is Wrong and
Waived. ........................................................................... 34
B. Qualcomm Also Fails to Challenge Three Independent Bases

for Judge Koh’s Rule 23(b)(3) Conclusion. ........................................ 36
i
1. Qualcomm Disregards California’s Presumption of

Impact........................................................................................ 36
2. Qualcomm Ignores Economic Consensus and
Empirical Research Supporting Impact. ................................... 37
3. Qualcomm Is Silent on Case-Specific Evidence of

Impact........................................................................................ 39
C. Qualcomm’s Mistaken Merits Arguments Concerning Post-

2016 Apple Customers Do Not Defeat Predominance. ...................... 40
D. The District Court Properly Certified the Injunctive Relief

Class. ................................................................................................... 44
II. Qualcomm’s Manageability and Due Process Arguments Fail to

Show Judge Koh Abused Her Discretion in Finding Superiority
Satisfied. ........................................................................................................ 45
A. Individual Class Members’ Damage Claims Do Not Render

This Case Unmanageable or Violate Qualcomm’s Due
Process Rights. .................................................................................... 46
B. Qualcomm and Its Amici’s Citation to Off-Point Cases Do

Not Alter This Conclusion. ................................................................. 51
C. Plaintiffs’ Unopposed Notice Plan Already Has Been
Successfully Administered. ................................................................. 55
III. Qualcomm Failed to Overcome the Undisputed Presumption that
California Law Applies Nationwide. ............................................................. 57
A. Qualcomm Failed to Show a “True Conflict” Between the
Interests of California and Non-Repealer States on These
Facts..................................................................................................... 59
1. California Has a Significant Interest in Fully Deterring

Qualcomm’s Anticompetitive Conduct. ................................... 59
2. Non-Repealer States Have No Interest in Applying
Their Laws to Qualcomm’s Antitrust Violations in
California. ................................................................................. 60
ii
B. Qualcomm Fails to Show that Any Other State’s Interests

Would Be “More Impaired” than California’s Interests. .................... 63
C. Newly-Raised Constitutional Challenges and Policy-Based
Arguments Are Waived and Without Merit. ....................................... 68
a. Constitutional Arguments Have Been Waived and

Cannot Be Asserted for the First Time on Appeal by
Amici. ........................................................................................ 69
b. Qualcomm’s Waived Constitutional Arguments Lack
Merit. ......................................................................................... 70
CONCLUSION ........................................................................................................ 73
CERTIFICATE OF COMPLIANCE ....................................................................... 75

STATEMENT OF RELATED CASES ................................................................... 76
CERTIFICATE OF SERVICE ................................................................................ 77
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Abrams v. Interco Inc.,

719 F.2d 23 (2d Cir. 1983) ................................................................................. 53
Amgen Inc. v. Conn. Ret. Plans & Trust Funds,
133 S. Ct. 1184 (2013) .................................................................................... 5, 24
Apple Inc. v. Pepper,
139 S. Ct. 1514, No. 17-1204 ............................................................................. 69
AT&T Mobility LLC v. AU Optronics Corp.,

707 F.3d 1106 (9th Cir. 2013) .....................................................................passim
B.W.I. Custom Kitchen v. Owens-Illinois, Inc.,
191 Cal. App. 3d 1341 (1987) ......................................................................37, 48
Boardman v. Pacific Seafood Grp.,

822 F.3d 1011 (9th Cir. 2016) ............................................................................ 45
Bowerman v. Field Asset Servs., Inc.,

242 F. Supp. 3d 910 (N.D. Cal. 2017) ................................................................ 45
Briseno v. ConAgra Foods, Inc.,

674 F. App’x 654 (9th Cir. Jan. 3, 2017) (unpub.) ............................................. 22
Briseno v. ConAgra Foods, Inc.,

844 F.3d 1121 (9th Cir.), cert. denied sub nom.
ConAgra Brands, Inc. v. Briseno, 138 S. Ct. 313 (2017) .......................45, 50, 53
Bruno v. Superior Court,
127 Cal. App. 3d 120 (1981) .............................................................................. 47
California v. ARC America Corp.,
490 U.S. 93 (1989) .............................................................................................. 71
Chamberlan v. Ford Motor Co.,

402 F.3d 952 (9th Cir. 2005) ........................................................................46, 54
iv
Chen v. L.A. Truck Centers, LLC,

7 Cal. App. 5th 757 (2017) ...........................................................................61, 62
Clayworth v. Pfizer,
233 P.3d 1066 (Cal. 2010) .................................................................................. 60
Clothesrigger, Inc. v. GTE Corp.,

191 Cal. App. 3d 605 (1987) .......................................................................... 9, 65
Colman v. Theranos, Inc.,

325 F.R.D. 629 (N.D. Cal. 2018)........................................................................ 68
Comcast Corp. v. Behrend,

569 U.S. 27 (2013) .............................................................................................. 20
Corbett v. Superior Court,

101 Cal. App. 4th 649 (2002) ............................................................................. 18
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993) .....................................................................................passim
Diamond Multimedia Systems, Inc. v. Superior Court,
19 Cal.4th 1036 (1999) ....................................................................................... 64
Edwards v. Nat’l Milk Producers Fed’n,

No. 11-CV-04766-JSW, 2017 WL 3623734 (N.D. Cal. June 26, 2017) ........... 56
Exxon Corp. v. Governor of Maryland,
437 U.S. 117 (1978) ............................................................................................ 71
FTC v. Qualcomm Inc.,
No. 17-CV-00220-LHK, 2019 WL 2206013
(N.D. Cal. May 21, 2019) ............................................................................passim
Healey v. Beer Inst., Inc.,

491 U.S. 324 (1989) ............................................................................................ 71
Hilao v. Estate of Marcos,

103 F.3d 767 (9th Cir. 1996) .............................................................................. 48
Hughes Wood Products, Inc. v. Wagner,

18 S.W.3d 202 (Tex. 2000)................................................................................. 61
v
Hurtado v. Superior Court,

11 Cal.3d 574 (1974) .......................................................................................... 64
In Re Asacol Antitrust Litigation,
907 F.3d 42 (1st Cir. 2018) .......................................................................6, 43, 43
In re Cathode Ray Tube Antitrust Litigation

No. 3:07-cv-5944 ................................................................................................ 57
In re Cipro Cases I & II,

17 Cal. Rptr. 3d 1 (Ct. App. 2004) .........................................................19, 36, 47
In re Graphics Processing Units Antitrust Litigation,

253 F.R.D. 478 (N.D. Cal. 2008)........................................................................ 21
In re Hotel Telephone. Charges,

500 F.2d 86 (9th Cir. 1974) ..........................................................................51, 52
In re Hyundai & Kia Fuel Econ. Litig.,
926 F.3d 539 (9th Cir. 2019) ........................................................8, 12, 57, 58, 59
In re Lithium Ion Batteries Antitrust Litigation,
2018 WL 1156797 (N.D. Cal. Mar. 5, 2018) ..................................................... 21
In re MetLife Demutualization Litig.,

262 F.R.D. 205 (E.D.N.Y. 2009) ........................................................................ 56
In re Nexium Antitrust Litigation,
777 F.3d 9 (1st Cir. 2015) .............................................................................43, 44
In re: Packaged Seafood Prods. Antitrust Litig.,
No. 15-MD-2670-JLS, 2019 WL 3429174 (S.D. Cal. July 30, 2019) ............... 38
In re Qualcomm Antitrust,
17-md-2773-LHK ...................................................................................17, 55, 57
In re TFT-LCD (Flat Panel) Antitrust Litig.,
No. 07-md-1827-SI ............................................................................................. 57
In re TFT-LCD (Flat Panel) Antitrust Litig.,

No. 10-05625-SI, 2013 WL 6327490 (N.D. Cal. Dec. 3, 2013) ........................ 67
vi
In re Urethane Antitrust Litig.,

768 F.3d 1245 (10th Cir. 2014) ....................................................................48, 49
In the Matter of Certain Baseband Processor Chips & Chipsets,
No. 337-TA-43.................................................................................................... 31
Jimenez v. Allstate Ins. Co.,

765 F.3d 1161 (9th Cir. 2014) .....................................................................passim
Just Film v. Buono,

847 F.3d 1108 (9th Cir. 2017) .....................................................................passim
Klaxon Co. v. Stentor Elec. Mfg. Co.,

313 U.S. 487 (1941) ............................................................................................ 58
Knevelbaard Dairies v. Kraft Foods, Inc.,

232 F.3d 979 (9th Cir. 2000) ..................................................................70, 71, 72
Lambert v. Nutraceutical Corp.,
870 F.3d 1170 (9th Cir. 2017), rev’d on other grounds,
139 S. Ct. 710 (2019) ....................................................................................24, 25
Leyva v. Medline Indus., Inc.,

716 F.3d 510 (9th Cir. 2013) ........................................................................17, 52
Mazza v. Am. Honda Motor. Co., Inc.,

666 F.3d 581 (9th Cir. 2012) .......................................................................passim
McCann v. Foster Wheeler LLC,

48 Cal.4th 68 (2010) .....................................................................................64, 66
Mullane v. Cent. Hanover Bank & Tr. Co.,

339 U.S. 306 (1950) ......................................................................................55, 56
NCAA v. Miller,
10 F.3d 633 (9th Cir. 1993) ................................................................................ 71
Nguyen v. Nissan N. America,

--- F.3d ----, No. 18-16344, 2019 WL 3368918 (9th Cir. July 26, 2019) .......... 23
Pecover v. Electronic Arts Inc.,

No. C 08-2820 VRW, 2010 WL 8742757 (N.D. Cal. Dec. 21, 2010) ............... 60
vii
Phillips Petroleum Co. v. Shutts,

472 U.S. 797 (1985) ........................................................................................ 7, 62
Pulaski & Middleman, LLC v. Google, Inc.,
802 F.3d 979 (9th Cir. 2015) ............................................................19, 42, 44, 46
Qualcomm Inc. v. Compal Elecs., Inc.,

3:17-cv-01010-GPC-MDD (S.D. Cal.)............................................................... 51
Redwood Theatres, Inc. v. Festival Enters., Inc.,

908 F.2d 477 (9th Cir. 1990) .............................................................................. 65
Reich v. Purcell,
67 Cal.2d 551 (1967) .......................................................................................... 57
Rutledge v. Hewlett-Packard Co.,

238 Cal. App. 4th 1164 (2015) ....................................................................... 8, 58
Six Mexican Workers v. Ariz. Citrus Growers,
904 F.2d 1301 (9th Cir. 1990) ............................................................................ 43
Torres v. Mercer Canyons Inc.,
835 F.3d 1125 (9th Cir. 2016) ......................................................................38, 43
Tyson Foods, Inc. v. Bouaphakeo,

136 S. Ct. 1036 (2016) ..............................................................................3, 20, 21
United States v. Jackson,
697 F.3d 1141 (9th Cir. 2012) ............................................................................ 61
United States v. Microsoft Corp.,
253 F.3d 34 (D.C. Cir. 2001) (en banc) .............................................................. 28
Vestar Development II, LLC v. Gen. Dynamics Corp.,
249 F.3d 958 (9th Cir. 2001) .............................................................................. 53
Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338 (2011) ............................................................................................ 47
Wershba v. Apple Comp., Inc.,

91 Cal. App. 4th 224 (2001) ............................................................................... 58
viii
Wolin v. Jaguar Land Rover N. Am., LLC,

617 F.3d 1168 (9th Cir. 2010) ............................................................................ 45
Yokoyama v. Midland Nat’l Life Ins. Co.,
594 F.3d 1087 (9th Cir. 2010) ............................................................................ 46
Zango, Inc. v. Kaspersky Lab, Inc.,

568 F.3d 1169 (9th Cir. 2009) ......................................................................61, 62
Statutes
California Business & Professions Code § 16760 ................................................... 42
Sherman Act 15 U.S.C. §§ 1 and 2 .......................................................................... 12
Rules
Federal Rules of Civil Procedure 23 .................................................................passim

Treatises
3 William B. Rubenstein, Newberg on Class Actions § 7:30 (5th ed. 2011) .......... 38
Restatement (Second) of Conflicts of Law § 145 .................................................... 55
Restatement (Third) of Conflicts of Law § 6.06...................................................... 55
Other Authorities
Herbert Hovenkamp, State Antitrust in the Federal Scheme,

58 Ind. L.J. 375 (1995) ....................................................................................... 63
ix
INTRODUCTION
For years, Qualcomm coerced cell phone manufacturers (“OEMs”) into
paying supra-competitive royalties for Qualcomm’s Standard Essential Patent
(“SEP”) portfolio, amounting to as much as 5% of each cell phone’s price.
Qualcomm does so by refusing to supply critically important modem chips in
which it has a monopoly unless OEMs pay Qualcomm’s inflated royalties on all
cell phones—a classic tying violation. Qualcomm reinforced this monopolistic
practice by (1) refusing to license competing modem chip suppliers despite a
commitment to standard-setting bodies to do so and (2) pressuring Apple, the most
important modem chip customer, into exclusive dealing contracts that foreclosed
rivals.
Qualcomm’s scheme operates as an industry-wide “tax,” and consumers
ultimately bear its brunt. Plaintiffs are not alone in this opinion. Following a 10-
day trial in the Federal Trade Commission’s companion case, the district court
issued a 233-page order finding Qualcomm violated federal antitrust laws and
enjoining further misconduct. 1 The district court found Qualcomm’s misconduct
1
FTC v. Qualcomm Inc., No. 17-CV-00220-LHK, 2019 WL 2206013, at *1
(N.D. Cal. May 21, 2019) (“FTC Order”). The district court’s findings comport
with those of competition law enforcement agencies worldwide, which have levied
1
“harm[s] consumers” because (1) “OEMs pass those costs along to consumers” and
(2) “unreasonably high royalty rates also prevent OEMs from investing in new
handset features.” Id. at *110. This lawsuit is consumers’ only opportunity to
recover damages from Qualcomm for its multi-billion-dollar, industry-wide,
monopolistic tax.
In seeking to certify a nationwide class, plaintiffs provided overwhelming
evidence that antitrust liability, impact, and damages could be determined using
common, class-wide evidence. Plaintiffs submitted declarations from four experts
totaling nearly 1,400 pages, and they cited to hundreds of documents and dozens of
depositions of Qualcomm and third-party witnesses. The district court
meticulously examined the evidence, reports and briefing in a 66-page order
certifying a class of nationwide purchasers. Judge Koh found “substantial
evidence” that this case “will turn on legal and factual issues that are common to
the proposed class” and that common questions predominate. 1ER27–31.
The district court’s factual findings and grant of class certification are
accorded great deference on appeal. Just Film v. Buono, 847 F.3d 1108, 1115 (9th
Cir. 2017). Qualcomm does not come close to establishing that the district court
hundreds of millions of dollars in penalties against Qualcomm for the same

conduct. Id. at *6–7.
2
“applied an incorrect legal rule” or based its decision on a “factual finding that was
illogical, implausible, or without support in inferences that may be drawn from the
facts in the record.” Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1164 (9th Cir.
2014) (quotation marks and citation omitted). Instead, Qualcomm barely engages
with Judge Koh’s order or her analysis, behaving as if this appeal is an opportunity
to re-argue its original positions subject to de novo review.
Plaintiffs marshaled such extensive common evidence that Qualcomm does
not contest that common issues predominate as to whether it violated federal and
California law. Nor does Qualcomm dispute that common issues predominate in
determining its unlawful royalty overcharge. Qualcomm did not even attempt to
challenge plaintiffs’ expert Mr. Michael Lasinski, who calculated the resulting
industrywide royalty overcharge based on royalty data produced by both OEMs
and Qualcomm.
Qualcomm’s appeal instead focuses on predominance critiques of plaintiffs’
economic expert, Dr. Kenneth Flamm, and his opinion that this overcharge
impacted and damaged plaintiffs. But Qualcomm never challenged Dr. Flamm’s
methodology, nor could it: Dr. Flamm used a hedonic regression formula to
determine the effect upstream costs had on downstream cell phone prices,
3
adjusting for quality—a well-established methodology that Qualcomm’s own
experts employed in the FTC’s investigation.
Qualcomm filed only a limited Daubert motion questioning the sufficiency
of Dr. Flamm’s data. But Dr. Flamm applied his hedonic regression formula to
transactional data accounting for more than 90% of all cell phone sales during the
class period from every step of the distribution chain, including “six major OEMs,
five wireless carriers, six of the largest U.S. retailers, the largest U.S. distributor,
and a major contract manufacturer.” 1ER39. Dr. Flamm considered 971 separate
phone models and 18 distribution channels. The district court denied Qualcomm’s
Daubert motion and concluded Dr. Flamm’s opinions were admissible—a ruling
Qualcomm does not contest on appeal. As the Supreme Court held in Tyson Foods,
Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1049 (2016), “[o]nce a district court finds
evidence to be admissible, its persuasiveness is in general a matter for the jury.”
Dr. Flamm’s admissible opinions demonstrate that all cell phone consumers
paid higher quality-adjusted prices than they would have absent Qualcomm’s
anticompetitive conduct, regardless of cell phone models, channels of distribution,
or retail pricing practices. Still, Qualcomm disputes the merits of Dr. Flamm’s
opinions, arguing that practices such as focal-point pricing would render proof of
class-wide impact impossible.
4
But those arguments go to the weight of Dr. Flamm’s expert evidence, not
its admissibility. If Qualcomm’s arguments are correct, and they are not,
Qualcomm can use them to try to defeat plaintiffs’ claims on summary judgment or
at trial. But they are irrelevant for class certification. See Amgen Inc. v. Conn. Ret.
Plans & Trust Funds, 133 S. Ct. 1184, 1191 (2013) (“Rule 23(b)(3) requires a
showing that questions common to the class predominate, not that those questions
will be answered, on the merits, in favor of the class.”).
Regardless, the district court carefully considered and rejected Qualcomm’s
arguments concerning the merits of Dr. Flamm’s opinions. Qualcomm’s appeal
fails to grapple with the district court’s reasoning at all, let alone demonstrate that
its findings on focal-point pricing and similar issues were “illogical, implausible,
or without support” in the record. Jimenez, 765 F.3d at 1164. Qualcomm similarly
ignores and offers no response to the district court’s additional and independent
bases for concluding common issues predominate, including (1) California’s
presumption of class-wide impact in anticompetitive markets; (2) uncontested
economic consensus and empirical research demonstrating that industry-wide taxes
like Qualcomm’s are passed on to consumers; and (3) extensive case-specific
documents and testimony showing impact and damages.
5
Qualcomm’s final predominance attack is to argue the First Circuit’s
decision in In Re Asacol Antitrust Litigation, 907 F.3d 42 (1st Cir. 2018), requires
reversal because the class contains uninjured class members who purchased Apple
iPhones after Apple’s contract manufacturers temporarily stopped paying royalties
to Qualcomm. But documents Apple and Qualcomm produced demonstrate those
consumers were in fact injured by Qualcomm’s exploiting its chip monopoly to
continue demanding royalties, which Apple factored into decisions regarding
quality and pricing. In any event, Asacol involved the inability to distinguish
uninjured from injured class members. Here, such a method plainly exists and the
court could create a sub-class for the jury to consider Qualcomm’s (non-
meritorious) arguments and plaintiffs’ responses about post-2016 Apple
purchasers. All involve common evidence and do not hinge on any individualized
issues.
Qualcomm’s second certification challenge is to superiority. Qualcomm
invokes due process, contending the class is too numerous and heterogenous for
Qualcomm to litigate its defenses with respect to calculating each class member’s
damages. But these assertions merely repackage Qualcomm’s meritless
predominance arguments and similarly should be rejected. Finding otherwise
6
would render it impossible for consumers to pursue recovery that collectively totals
billions of dollars. As this Court recognized in Just Film:
If a class action is not superior, then individual actions must carry the
day. The court concluded that the “risks, small recovery, and
relatively high costs of litigation” make it unlikely that plaintiffs
would individually pursue their claims .… This case vividly points to
the need for class treatment. The individual damages of each merchant
are too small to make litigation cost effective in a case against funded
defenses and with a likely need for expert testimony.
847 F.3d at 1123.
Nor does the sheer size of the class provide a reason to overturn Judge Koh’s
certification order. The central question remains whether common issues
predominate regardless of class size, and Judge Koh found based on “substantial
evidence” that “common questions will predominate over individual questions in
determining the impact of the antitrust violations,” as well as “damages across the
entire class.” 1ER31, 57. And while Qualcomm now claims any notice plan would
not suffice, it never objected to plaintiffs’ notice plan, which has since been court-
approved and successfully implemented.
Qualcomm’s third and final certification argument is that the district court
erred in concluding California law applies to the claims of class members who
purchased cell phones in the 22 states that follow Illinois Brick’s prohibition on
indirect purchaser suits for damages. That argument, too, is wrong and ignores
7
longstanding California law.
The only federal question implicated by choice-of-law analysis is whether
the nexus between plaintiffs’ claims and the facts giving rise to those claims is
sufficient to satisfy due process. In re Hyundai & Kia Fuel Econ. Litig., 926 F.3d
539, 561 (9th Cir. 2019) (citing Phillips Petroleum Co. v. Shutts, 472 U.S. 797,
823 (1985)). But Qualcomm concedes that California’s antitrust laws
constitutionally may be applied nationwide. See AT&T Mobility LLC v. AU
Optronics Corp., 707 F.3d 1106, 1114 (9th Cir. 2013). Absent any constitutional
concerns—which Qualcomm waived—choice-of-law is purely a question of the
forum state’s choice-of-law rules.
Under California’s choice-of-law rules, California law is presumed to apply
nationwide unless Qualcomm meets its burden of proving otherwise. Hyundai, 926
F.3d at 561. Qualcomm cannot do so. The best Qualcomm can muster is the
argument that each class member’s claim must be governed by the law of the state
of purchase. But this throwback to the lex loci delicti rule is contrary to
California’s governmental-interest analysis, which Judge Koh was bound to apply.
Qualcomm invokes foreign states’ supposed interest in attracting
Qualcomm’s business through liability limits. But that interest is simply not
implicated here. Qualcomm is headquartered and carried out its anticompetitive
8
activities in California. Qualcomm is not alleged to have conducted any relevant
business with consumers outside of California. Instead, out-of-state consumers
bought their cell phones from other businesses that are not parties to this case, such
as Verizon, AT&T, Best Buy, and Apple. In similar circumstances California
courts have not hesitated to apply California law to a nationwide class. See, e.g.,
Rutledge v. Hewlett-Packard Co., 238 Cal. App. 4th 1164, 1187–88 (2015)
(deciding after this Court’s decision in Mazza v. Am. Honda Motor Co., Inc., 666
F.3d 581 (9th Cir. 2012) that California law applied to a nationwide class of
computer purchasers).
Qualcomm also attacks Judge Koh’s conclusion that applying other states’
laws to bar recovery here would disadvantage their citizens for injuries caused by a
California defendant’s unlawful activities in California. But in the absence of any
interest by a non-repealer state in applying its laws to thwart recovery by its
citizens (let alone a more compelling one), “California’s more favorable laws may
properly apply to benefit nonresident plaintiffs.” 1ER55 (quoting Clothesrigger,
Inc. v. GTE Corp., 191 Cal. App. 3d 605, 616 (1987)).
Qualcomm’s Rule 23(f) petition featured most prominently its choice-of-law
argument. That argument is so contrary to settled California precedent that it has
now been relegated to third place in Qualcomm’s brief. But first and second place
9
fare no better. Qualcomm’s predominance arguments are merits disputes in
disguise and are contradicted by overwhelming factual and expert evidence
underscoring the district court’s order—which Qualcomm largely ignores.
Qualcomm’s superiority argument boils down to the proposition that class actions
cannot be maintained if they just feel too “big”—a proposition for which it can
find no support in the law.
None of Qualcomm’s attacks on Judge Koh’s well-reasoned certification
order has merit, and this Court should affirm.
ISSUES PRESENTED
1. Whether Qualcomm established that Judge Koh abused her discretion
in finding common questions predominate with respect to antitrust impact and
damages by employing reasoning that was “illogical, implausible, or without
support in inferences” from the record, Jimenez, 765 F.3d at 1164, where:
a. Qualcomm does not contest Judge Koh’s determination that Dr.
Flamm’s expert testimony showing class-wide impact and
damages was admissible;
b. Qualcomm does not dispute that Dr. Flamm’s model of impact
and damages matches plaintiffs’ liability theory; and
10
c. Qualcomm’s merits-based attacks of Dr. Flamm’s analysis were
carefully rejected by Judge Koh based on record evidence and,
in any event, will rise or fall on a common, class-wide basis.
2. Whether Qualcomm has demonstrated that Judge Koh abused her
discretion in finding class treatment the superior means of adjudicating plaintiffs’
claims where she:
a. Concluded there is “overwhelming” evidence that common
issues predominate and that Qualcomm will have a full
opportunity to litigate its defenses;
b. Determined that the alternative of consumers bringing millions
of individual claims would be inefficient and impracticable; and
c. Carefully considered plaintiffs’ comprehensive notice plan,
which Qualcomm declined to oppose and has now been
successfully implemented.
3. Whether Judge Koh correctly held that Qualcomm failed to meet its
burden of demonstrating that any non-repealer state’s laws, rather than California
law, applies where:
a. Qualcomm conceded that California law may constitutionally
be applied nationwide and thus, under California’s choice-of-
11
law rules, California law presumptively applies unless
Qualcomm establishes otherwise, Hyundai, 926 F.3d at 561;
b. Qualcomm, a California corporation, engaged in the alleged
wrongful conduct in California, targeting California
corporations Apple and Intel, to the detriment of consumers in
California and nationwide;
c. Applying California law would further California’s significant
interest in “maximizing effective deterrence of antitrust
violations, enforcing the state’s antitrust laws against those
violations that do occur, and ensuring disgorgement of any ill-
gotten proceeds” by Qualcomm, AT&T Mobility, 707 F.3d at
1112–13; and
d. Qualcomm offered no evidence that non-repealer states have an
interest in applying their laws to prevent recovery by their
residents for Qualcomm’s anticompetitive conduct carried out
in California, let alone one that would be “more impaired” than
California’s interests would be if its law were not applied.
12
COUNTERSTATEMENT OF THE CASE
This case seeks redress on behalf of consumers who were collectively
overcharged billions of dollars as a result of Qualcomm’s interlocking web of three
anticompetitive practices. These reinforcing actions raised the all-in price of
cellular modem chips and, therefore, the quality-adjusted price consumers paid for
phones incorporating them. Qualcomm’s anticompetitive practices, which are
summarized below, were methodically documented in Professor Einer Elhauge’s
class certification expert report, as well as in Judge Koh’s May 21, 2019, order in
the FTC’s companion case. 4SER549–624; FTC Order at *24–130.
No-License-No-Chips Policy: Qualcomm has a uniform policy of refusing to
sell CDMA and premium LTE modem chips—in which it has a monopoly—to
OEMS unless they pay supra-competitive royalties for Qualcomm’s SEP portfolio
on every cell phone they sell, regardless whether they contain Qualcomm’s chips.
Because of this tying conduct, OEMs were forced to pay Qualcomm’s supra-
competitive royalty rates—rather than challenging Qualcomm’s violation of its
commitments to license on fair, reasonable, and non-discriminatory (FRAND)
terms—because they could not afford to lose access to chips (for which Qualcomm
held over 90% market share) necessary to manufacture phones for Verizon and
Sprint.
13
Refusal to License Rivals: Qualcomm also refused to license its SEPs to
rival chip suppliers, violating its commitments to do so on nondiscriminatory
terms. By preventing rivals from selling chips that exhausted the embedded
intellectual property rights to all SEPs, Qualcomm protected the tie between its
monopoly power in modem chips and its ability to extract supra-competitive
royalties on all cell phones.
Exclusive-Dealing Arrangements: Qualcomm coerced Apple, the most
important customer for modem chips, into exclusive dealing arrangements creating
barriers to entry for rival chip suppliers.
Plaintiffs’ complaint for injunctive and monetary relief against Qualcomm
alleges violations of California’s Cartwright Act and Unfair Competition Law
(“UCL”), as well as Sections 1 and 2 of the Sherman Act. 2ER168–177.
Qualcomm moved to dismiss, including on the ground that California law cannot
be invoked in favor of consumers who purchased cell phones in non-repealer
states. Judge Koh substantially denied Qualcomm’s motion to dismiss and, in
doing so, concluded that California law applied nationwide. 2ER221.
Plaintiffs moved for class certification, submitting voluminous expert reports
from (1) Professor Elhauge, regarding Qualcomm’s antitrust violations; (2) Mr.
Lasinski and Dr. Robert Akl, concerning Qualcomm’s supra-competitive royalty
14
overcharge; and (3) Dr. Flamm, addressing impact and damages. 1ER31–32;
4SER680, ¶64. Those expert reports relied on deposition testimony from dozens of
witnesses and hundreds of produced documents. 3SER467; 4SER639–640, 751.
Qualcomm opposed certification and moved to exclude Dr. Flamm’s report under
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Qualcomm did not “dispute that ‘regression analysis is generally a reliable
method for determining damages in antitrust cases and is a mainstream tool in
economic study.’” 1ER38 (collecting cases, citation omitted). Nor could it when
Qualcomm’s own retained experts used a hedonic regression analysis to analyze
the quality-adjusted prices of cellular phones in an FTC submission. 1ER40;
4SER954–968. Qualcomm challenged only the sufficiency of Dr. Flamm’s data.
1ER38.
Yet Dr. Flamm (1) “use[d] the same ten quality-control characteristics” as
“Qualcomm’s own retained experts” and (2) analyzed “971 models” of cellular
phones, which “far exceeds the approximately 238 models considered by
Qualcomm’s own experts.” 1ER40. He relied on transactional data for
approximately 90% of total phone sales during the class period. 1ER44; see
3SER413–414, ¶261. Dr. Flamm used such data to calculate the pass-through rate
15
for each of the 18 primary cell phone sales channels, as well as a weighted-average
pass-through rate of approximately 88%. 1ER39; 3SER435.
In a detailed, 66-page decision, Judge Koh denied Qualcomm’s Daubert
motion and granted plaintiffs’ class certification motion. Judge Koh rejected
Qualcomm’s Daubert challenge because:
• Qualcomm did not challenge Dr. Flamm’s “widely accepted econometric
methodology,” given it is one that “Qualcomm’s own retained experts
used in a submission to the FTC”;
• Dr. Flamm used “extensive transactional data supplied by actors at every
step of the handset distribution chain,” meaning Qualcomm’s “challenges
to Dr. Flamm’s dataset do not sufficiently undermine the reliability of Dr.
Flamm’s regression analysis to warrant exclusion”;
• In any event, “experts’ decisions about what data to use” in their analysis
bear on the weight, not the admissibility, of expert testimony.
1ER38–40 (citations omitted). Qualcomm does not challenge this Daubert ruling.
In granting plaintiffs’ class certification motion, Judge Koh found that
adjudication of plaintiffs’ claims would “overwhelmingly turn on common legal
and factual issues.” 1ER23. This conclusion was bolstered by “substantial
evidence,” including “substantial documentary and testimonial evidence” and
16
“expert reports using statistical modeling, economic theory, and data.” 1ER31, 43.
Judge Koh carefully considered and rejected the merits-based arguments regarding
Dr. Flamm’s analysis that Qualcomm asserts on appeal. 1ER42–49.
Plaintiffs subsequently moved for adoption of a notice plan, to which
Qualcomm did not object. In re Qualcomm Antitrust, 17-md-2773-LHK (“MDL”),
Dkt. 783. Judge Koh granted plaintiffs’ unopposed motion, MDL Dkt. 815, and
further ordered the notice program proceed during Qualcomm’s appeal, MDL Dkt.
841. Plaintiffs have now completed that program and provided notice to the class,
including through over 300 million impressions delivered via online and social
media platforms targeting likely class members, a press release to over 10,000
newsrooms, and a case-specific website. MDL Dkt. 863 & 863-1 ¶¶5–7.
ARGUMENT
I. Judge Koh Did Not Abuse Her Discretion in Finding Common Issues
Predominate as to Antitrust Impact.
“A class certification order is an abuse of discretion if the district court
applied an incorrect legal rule or if its application of the correct legal rule was
based on a ‘factual finding that was illogical, implausible, or without support in
inferences that may be drawn from the facts in the record.’” Jimenez, 765 F.3d at
1164 (quoting Leyva v. Medline Indus., Inc., 716 F.3d 510, 513 (9th Cir. 2013)).
17
Qualcomm fails to satisfy this standard.
Qualcomm’s only challenge to Judge Koh’s predominance determination is
that she supposedly erred in concluding that Dr. Flamm’s hedonic regression may
establish impact and quantify damages to consumers class-wide. 2 But Judge Koh
“carefully analyzed the specific statistical methods proposed by plaintiffs”—
including considering and rejecting each of Qualcomm’s arguments—and “took
pains to ensure that the statistical analysis [she] did accept conformed to the legal
questions to which the analysis was being applied.” Jimenez, 765 F.3d at 1168.
Qualcomm does not claim that Dr. Flamm’s analysis fails to conform to the legal
questions of impact and damages or to plaintiffs’ theories of liability. Instead,
Qualcomm largely recycles the same merits arguments it raised below, without
contending with Judge Koh’s careful analysis and conclusions that those
arguments were flawed.
Nor does Qualcomm challenge Judge Koh’s conclusion that class-wide
antitrust impact also may be established through three independent sources of
2
Even here, Qualcomm ignores plaintiffs’ UCL claim, which does not
require establishing damages on an individual basis. Instead, the UCL authorizes
restitution on a class-wide basis to effect disgorgement of unfairly gained profits.
Corbett v. Superior Court, 101 Cal. App. 4th 649, 667–68 (2002) (“If, however,
the UCL claim is brought as a class action, the total monies to be disgorged can be
placed in a fluid recovery fund, thus preventing the company from benefiting from
its wrongfully obtained profits.”).
18
common proof in addition to Dr. Flamm’s hedonic regression:
• Legal Presumption of Antitrust Impact: Judge Koh recognized
that under “California substantive law, courts ordinarily may
assume injury to the class where consumers have purchased
products in an anticompetitive market, even if some consumers
did not actually have to pay the overcharge because of their
individual circumstances.” 1ER30 (quoting In re Cipro Cases I
& II, 17 Cal. Rptr. 3d 1, 8 (Ct. App. 2004)).
• Economic Consensus and Empirical Research: Judge Koh noted
plaintiffs established “the economic consensus, confirmed by
theoretical and empirical research, that industry-wide taxes—
like Qualcomm’s here—are passed through to purchasers as
higher prices.” 1ER33.
• Documentary and Testimonial Evidence: Judge Koh observed
that plaintiffs rely on “documentary and testimonial evidence,”
including “Qualcomm’s own internal analysis” and “multiple
pieces of testimony” from “Qualcomm and other participants in
the cellular industry,” evincing that Qualcomm’s overcharge is
19
“incorporated into the price to consumers.” 1ER33–34.
Qualcomm does not seriously attempt to challenge Judge Koh’s conclusion that
Rule 23(b)(3) is satisfied by each of these independent forms of common proof,
thereby conceding that Judge Koh’s order was supported by inferences that may be
drawn from facts in the record.
A. Qualcomm Fails to Show Judge Koh’s Factual Findings

Concerning Dr. Flamm’s Regression Were Clearly Erroneous.
Qualcomm does not dispute that Dr. Flamm’s methodology is admissible
under Daubert and is tied to plaintiffs’ theories of liability as required by Comcast
Corp. v. Behrend, 569 U.S. 27 (2013).
Instead, Qualcomm rehashes a series of arguments it raised in opposition to
class certification, without (1) grappling with plaintiffs’ rebuttal or (2) addressing
Judge Koh’s reasons for rejecting such arguments. Qualcomm complains that it
had “no opportunity to rebut” plaintiffs’ reply arguments. Br. pp.12, 38. If
Qualcomm had any such rebuttal, it not only failed to raise it below—where it
could have sought leave to do so—but still fails to reveal its response on appeal.
That alone is fatal to Qualcomm’s burden of establishing that the district court’s
factual findings were “illogical, implausible, or without support” in the record.
Jimenez, 765 F.3d at 1168.
20
Qualcomm heavily relies on two district court cases decided on entirely
different factual records, In re Graphics Processing Units Antitrust Litigation
(“GPU”), 253 F.R.D. 478 (N.D. Cal. 2008), and In re Lithium Ion Batteries
Antitrust Litigation, 2018 WL 1156797, at *4 (N.D. Cal. Mar. 5, 2018). But they
have no bearing on whether Judge Koh’s factual findings supporting class
certification based on the actual record here—which Qualcomm fails to confront—
were an abuse of discretion.
1. Qualcomm Does Not Dispute that Dr. Flamm’s Methodology

Satisfies Daubert and Is Tied to Plaintiffs’ Theory of Liability.
This Court repeatedly has held it is not an abuse of discretion to certify a
class based on a statistical method for proving class-wide injury, so long as the
methodology (1) is tied to the plaintiff’s theory of liability and (2) satisfies
Daubert. Qualcomm, by contrast, does not cite a single case where this Court held
that it was an abuse of discretion to certify a class action based on a statistical
model tied to plaintiffs’ theory of harm.
In Jimenez, this Court affirmed class certification where “the district court
carefully analyzed the specific statistical methods proposed by plaintiffs” and
“took pains to ensure that the statistical analysis it did accept conformed to the
legal questions to which the analysis was being applied.” 765 F.3d at 1169. In
21
doing so, the Court noted that the case was “[u]nlike the putative class in Comcast,
which relied on statistical analysis that was not closely tied to the relevant legal
question.” Id. at 1168.
In Just Film, defendants argued the district court abused its discretion in
certifying the class because the plaintiff’s “damages model” was “not capable of
classwide proof.” 847 F.3d at 1120. Rejecting that argument, this Court held that
the plaintiff “need only show that such damages can be determined without
excessive difficulty and attributed to their theory of liability, and have proposed as
much here.” Id. at 1121.
In Pulaski & Middleman, LLC v. Google, Inc., 802 F.3d 979, 989 (9th Cir.
2015), this Court concluded that the plaintiff’s “proposed method [of calculating
classwide damages] was not ‘arbitrary’ under Comcast” where the “method
measures the monetary loss resulting from the particular injury alleged.” (quotation
marks and ellipses omitted).
In Briseno v. ConAgra Foods, Inc., 674 F. App’x 654, 657 (9th Cir. Jan. 3,
2017) (unpub.), this Court recognized that “hedonic regression analysis” is a “well-
established damages model[]” and it “was not an abuse of discretion for the district
court to conclude that plaintiffs’ proffered model tracked their theory of liability
and was therefore sufficient to survive class certification.”
22
And most recently in Nguyen v. Nissan N. America, --- F.3d ----, No. 18-
16344, 2019 WL 3368918, *1 (9th Cir. July 26, 2019), this Court reversed the
denial of class certification because the plaintiff demonstrated a nexus between his
legal theory and his damages model.
Qualcomm never challenged Dr. Flamm’s methodology, and Judge Koh
convincingly analyzed why Qualcomm’s limited Daubert challenge lacked merit.
Qualcomm does not challenge that conclusion on appeal, waiving the argument.
The Supreme Court held in Tyson Foods that because the petitioner “did not
raise a challenge to respondents’ experts’ methodology under Daubert,” there was
“no basis in the record to conclude it was legal error to admit that evidence.” 136
S. Ct. at 1048–49. And “once a district court finds evidence to be admissible, its
persuasiveness is, in general, a matter for the jury.” Id. at 1049. At best, Qualcomm
has shown that “[r]easonable minds may differ” as to whether Dr. Flamm’s
analysis is persuasive. Id. “Resolving that question, however, is the near-exclusive
province of the jury” and the “District Court could have denied class certification
on this ground only if it concluded that no reasonable juror could have believed”
Dr. Flamm’s expert testimony. Id.
Qualcomm has waived any argument that Dr. Flamm’s expert analysis is
inadmissible as a matter of law, and Qualcomm’s merits attacks on the
23
“persuasiveness” of Dr. Flamm’s analysis is “a matter for the jury.” Id. at 1049.
2. Qualcomm Ignores Judge Koh’s Carefully Reasoned Rejection

of Its Mistaken, Merits-Based Attacks on Dr. Flamm.
Moreover, Qualcomm’s challenges to Dr. Flamm’s analysis raise issues
which cannot defeat class certification.
Qualcomm complains that Dr. Flamm’s analysis fails to account for (1) how
OEMs and carriers would have reacted to a “small cost changes” and (2) common
retail strategies including “focal-point pricing” and “subsidies, discounts, bundling,
and other pricing practices that reduced the price paid by the consumer….” Br.
p.32. Qualcomm itself acknowledges its critiques relate to “problems caused by
industry pricing practices.” Id. But these are merits-based critiques that will be
resolved using class-wide evidence about common practices of OEMs, retailers,
and carriers, and therefore fail to show individualized issues will predominate.
1ER51; see also 1ER38, 44.
The Supreme Court has made clear that “Rule 23 grants courts no license to
engage in free-ranging merits inquiries at the certification stage.” Amgen Inc., 568
U.S. at 466. And in Lambert v. Nutraceutical Corporation, this Court stated that it
was an abuse of discretion when a district court decertified a class where plaintiffs’
“damages model matched his theory of liability and … had shown that his damages
24
model was supportable on evidence that could be introduced at trial.” 870 F.3d
1170, 1184 (9th Cir. 2017), rev’d on other grounds, 139 S. Ct. 710 (2019). The
Court noted that whether the Plaintiff “could prove damages to a reasonable
certainty” was a “question of fact that should be decided at trial.” Id.
Qualcomm’s additional argument regarding the purported problem of
differing purchase channels illustrates its refusal to confront Judge Koh’s analysis:
As she found, Dr. Flamm’s model in fact accounts for the variety in distribution
channels through which phones travel, 1ER35–36, and cited multiple cases
upholding the use of channel-weighted average pass-through models like plaintiffs’
here, 1ER58. Qualcomm provides no response to Judge Koh’s analysis.
a. Judge Koh Correctly Held Qualcomm’s “Cost Change”

Argument “Misapprehend[s] the Relevant Inquiry.”
Qualcomm repeatedly argues that the relevant question is how OEMs,
retailers, or carriers would react in the face of “small” or “marginal cost changes.”
Br. pp.25–26, 28, 30, 33. This premise underlies Qualcomm’s arguments that
(1) “focal-point prices in this industry may be generally insensitive to marginal
cost changes,” id. at 26, and (2) “OEMs’ actual responses to cost changes are
highly individualized” and may not “impact the cellphone’s price or ‘quality,’” id.
25
at 30. As Judge Koh recognized, the premise that this case is about individual
firms’ reactions to idiosyncratic and unexpected changes in costs is mistaken.
For instance, Qualcomm suggests that when faced “with higher than
expected costs,” an individual “OEM might accept slightly smaller margins or
might pressure other suppliers to make up the difference” if faced with “cost
increases.” Id. at 30.3 This scenario, however, involves a mid-design cycle and
“unanticipated cost increase—one that would prompt an OEM” to “respond” by
“renegotiat[ing] with suppliers to attempt to change other costs” or “adjust[ing]
profit margins.” 2SER69, ¶49.
“By contrast, the ‘but-for’ world is one in which all OEMs industry-wide
would have faced a systematic and predictable decrease in their Qualcomm royalty
rates ex ante before they set the target costs, prices, and features for any devices”
(and thus before any negotiations over other components of a particular phone). Id.
In other words, Qualcomm conflates “a counterfactual cost change (i.e., the change
between Qualcomm’s actual and its ‘but-for’ FRAND rates, both of which are
known and predictable) and a cost change across time (i.e., varying and
unpredictable changes in component costs).” 2SER54–55, ¶19. As Judge Koh
carefully reasoned:
3
All emphases throughout this brief are added unless otherwise specified.
26
Qualcomm appears to misapprehend the relevant inquiry. Plaintiffs’

theory in the instant case is that Qualcomm imposed an industry-wide
supra-competitive royalty charge on all handsets sold by OEMs.
Qualcomm and the OEM enter into a license ex ante that fixes the
royalty rate, which is generally applied to the net sales price that the
OEM charges for the handset. Thus, the relevant question in the
counterfactual “but for” analysis is whether a reduction in
Qualcomm’s systematic and predictable royalty charge would have
resulted in lower quality-adjusted prices for consumers. Dr. Flamm’s
analysis, which relies on testimony from OEMs and basic economic
principles regarding pass-through of industry-wide taxes, answers that
question.
Qualcomm, by contrast, focuses on the slightly different question of

how OEMs can respond to changes in cost. However, the crux of this
case does not involve a situation in which OEMs incurred unexpected
cost reductions on some or all the phone designs already in
production. In fact, Plaintiffs rationally assume that such price
fluctuations would be the same in the “as is” and “but for” worlds
because, in light of intense competition in the smartphone industry,
OEMs can be expected to pursue the profit-maximizing motive of
negotiating the best cost for the components they purchase, all else
being equal.
1ER42–43 (citations omitted).
Qualcomm, however, simply reiterates its baseless “cost change” argument
while saying nothing about Judge Koh’s debunking of that argument above.
Because Qualcomm did not even acknowledge Judge Koh’s analysis on this
score—let alone attempt to demonstrate it was “illogical, implausible, or without
support” in the record—Qualcomm fails to establish any abuse of discretion.
27
b. Judge Koh Correctly Rejected Qualcomm’s Focal-Point

Pricing and Quality-Adjustment Arguments.
Qualcomm argues Dr. Flamm’s analysis fails to account for focal-point
pricing. Once again, Qualcomm does not engage Judge Koh’s thorough analysis of
that argument and thus cannot meet its burden.
Focal-point pricing exists in both the “as-is” and “but-for” worlds. If
Qualcomm were correct that “focal-point prices in this industry may be generally
insensitive to marginal cost changes,” Br. p.26, one would expect Dr. Flamm’s
regression on data from the “as-is” world to show a lack of pass through. Yet, as
Judge Koh recognized, Dr. Flamm’s regression “demonstrates that 88% of
upstream cost changes are passed through to consumers in the form of quality-
adjusted price changes” notwithstanding focal-point pricing. 1ER46 (citation
omitted). Qualcomm is silent about this factual finding.
Further, as Judge Koh concluded, Qualcomm’s argument “fails to
appreciate” that “Dr. Flamm’s model is designed to measure quality-adjusted price,
not simply nominal price.” 1ER46. Qualcomm incorrectly asserts that Dr. Flamm’s
regression does not account for quality changes because it was “designed to
measure the effect of cost changes on price, not on quality.” Br. p.29. Not so. Dr.
Flamm’s analysis measures the effect of cost changes on price “while holding
28
phone characteristics constant,” 2SER95–96, ¶98, thereby measuring the effect
on “quality-adjusted prices” that capture “both the nominal price and total quality
of a particular product.” 1ER46. As a result, even if an OEM would not reduce the
nominal, focal-point price of a device if Qualcomm’s predictable, ex ante royalty
rates decreased, it would have been economically motivated and actually able to
improve features (and thus offer a lower quality-adjusted price) in the “but-for”
world. 1ER46; 2SER69–82, ¶¶50–71. 4
Qualcomm asserts that “plaintiffs offered no actual evidence that any OEM
made any quality reductions due to an alleged overcharge.” Br. p.27. Untrue. Judge
Koh considered extensive documentary and testimonial evidence showing that
OEMs must make quality trade-offs to account for Qualcomm’s supra-competitive
royalty rates. 1ER46. Dr. Flamm identified hundreds of examples of OEMs
requesting Qualcomm “defeature” chipsets and charge slightly discounted rates.
2SER198–244. Qualcomm itself testified that it was routine for OEMs to make
tradeoffs about the features included in devices based on their costs. 4SER947–948
4
Qualcomm’s argument that Dr. Flamm did not explain the meaning of his
coefficients on the quality variable (Br. p.29) is a non-sequitur: Under the hedonic
regression model used by Dr. Flamm and Qualcomm’s own economists, the
coefficients are not meant to have a direct interpretation on the quality
variable. See 3SER410, ¶253.
29
at 418:4–10; 421:1–9; see 2SER76–78, ¶¶62–63. Even Apple, the largest and most
profitable OEM, frequently reduced a phone’s quality to achieve small cost
savings. 2SER78–81, ¶¶64–69.
Judge Koh found credible evidence that OEMs (1) “have the economic
incentive to either improve the phone’s features or lower the price to consumers
because of the intense competition among OEMs in the smartphone industry” and
(2) have “pursued ‘cost breaks’ even smaller than Qualcomm’s royalty overcharge
to obtain modem chips from Qualcomm with disabled functionality.” 1ER46; see
2SER69–77, ¶¶50, 58–62; see also 3SER345–350, ¶¶167–174. Qualcomm neither
challenges Judge Koh’s assessment of the evidence—nor even includes the
relevant evidence in the record with its appeal.
Qualcomm nevertheless contends that focal-point pricing by retailers or
carriers—as opposed to OEMs—necessarily inhibits pass-through because firms at
that level in the distribution chain cannot alter a phone’s quality. Qualcomm is
wrong.
First, as shown by extensive evidence in Dr. Flamm’s report, carriers can
and do alter the value of packages sold to consumers in response to upstream
phone costs. 1ER48–49 (citing evidence that “service contracts are used in
conjunction with subsidies to cover the cost of phones” and that a wireless carrier
30
“can recoup phone subsidies through locked-in service plans”); see 3SER401–406,
¶¶236–244; 2SER114–119, ¶¶134–136 & tbl.5. Qualcomm itself persuasively
admitted as much in an expert submission to the International Trade Commission:
“There is no free lunch.” Hausman, Tr. 462. “If companies such as

Verizon and Sprint have to pay more for their handsets, even if they
give them away for free they have to get that money back in the
monthly service fee, and the way they are going to get that back is not
to lower their monthly service rates as fast as they otherwise would or
not give away as many free minutes.” Id. at 463. Even if the increased
cost to consumers of switching to PDAs or smartphones were
subsidized by a cellular company, “that’s going to lead to higher
service price per minute for consumers.” Hausman, Tr. 587. 5
Second, Qualcomm ignores evidence that retailers’ and carriers’ preference
for focal-point prices is well known to upstream OEMs; this preference affects the
quality of the manufactured phone through the OEMs’ RFP process and setting of
cost targets. See 3SER371–86, ¶¶195–216.
Finally, when Qualcomm’s overcharge causes device quality to be reduced
at the OEM level, that quality reduction is “baked-in” to the device and necessarily
passed on regardless of downstream, nominal prices—precisely because carriers
cannot make quality adjustments to cell phones. 3SER316–19, ¶¶114–120.
5
In the Matter of Certain Baseband Processor Chips & Chipsets, No. 337-
TA-43, Respondent Qualcomm Incorporated’s Post-Hearing Submission of
Responses at p.19 (USITC April 5, 2007). Plaintiffs seek judicial notice of this
testimony.
31
Qualcomm demands that plaintiffs recreate every cell phone’s features in the
“but-for” world. But because neither “plaintiffs nor the court can confidently
reconstruct a product’s hypothetical technological development in a world absent
defendant’s exclusionary conduct,” to “some degree, the defendant is made to
suffer the uncertain consequences of [its] own undesirable conduct.” United States
v. Microsoft Corp., 253 F.3d 34, 79 (D.C. Cir. 2001) (en banc).
c. Judge Koh Correctly Rejected Qualcomm’s Subsidies,

Bundles, Discounts, Rebates, and Free Phone
Arguments.
Qualcomm says Dr. Flamm’s analysis fails to consider that “sales of cellular
devices during the class period also were subject to many different types of
subsidies, discounts, bundling, and other pricing practices that reduced the price
paid by the consumer—sometimes to zero.” Br. p.32. Qualcomm ignores the
record again.
Judge Koh found that Dr. Flamm’s regression “directly controls for the
subsidization strategy emphasized by Qualcomm, as well as for financing and
other important aspects of carrier phone sales.” 1ER48 (citing 2SER112–114,
¶127, tbl.5). And Judge Koh noted that Dr. Flamm separately calculated and found
statistically significant pass-through rates for each carrier for both subsidized
phones and phones sold without service contracts. 1ER48. Qualcomm does not
32
acknowledge these factual findings, let alone show that they are “illogical,
implausible, or without support” in the record. Jimenez, 765 F.3d at 1164.
Qualcomm’s argument about supposedly “free phones” is equally
misguided. Br. p.32. As explained above, the notion that a consumer cannot be
injured if he receives a nominally “free phone” turns on Qualcomm’s
misunderstanding of quality-adjusted prices. A consumer who received a phone
with a zero nominal price in the “as-is” world—but would have received a higher
quality phone for the same nominally free price in a “but-for” world absent
Qualcomm’s anticompetitive conduct—has suffered antitrust injury.
Judge Koh also relied upon evidence from the carriers that they recoup
phone subsidies through locked-in service plans even for purportedly “free
phones.” 1ER48–49 (citing 2SER116–117 ¶¶130–131); see also supra n.5. Once
again, Qualcomm fails to mention Judge Koh’s analysis of such evidence.
Qualcomm’s only rebuttal to this point is to assert that service plans also
employ focal-point pricing which is “unlikely to change in response to small cost
changes….” Br. p.33. Once again, this simply repeats Qualcomm’s core,
underlying fallacies which Judge Koh persuasively rejected—Qualcomm’s
misapprehension that this case involves only adjustments to nominal pricing in
response to unexpected “small cost changes.”
33
Take, for instance, Qualcomm’s example of a “subsidized Samsung Galaxy”
phone paired with a “24-month service contract.” Id. Qualcomm acknowledges
that Dr. Flamm’s analysis shows that the alleged overcharge to consumers amounts
to $6.24 (or “26 cents more per month” over 24 months). According to Qualcomm,
Dr. Flamm’s methodology requires believing the consumer would have “paid 26
cents more per month on the contract than he or she otherwise would have.” Id.
But Dr. Flamm sets forth extensive examples of OEMs agreeing to restrict features
on Qualcomm chips in order to obtain cost discounts of less than $6.24. 2SER198–
244; see 2SER81–82, ¶70. Even if the downstream, nominal price of the phone
(and thus 24-month service contract) remained the same in such circumstances, the
quality-adjusted price would have been reduced at the OEM level and necessarily
passed on.
Plaintiffs do not “fail to account” for discounts, subsidies, bundling, or
pricing practices of market players. Rather, it is Qualcomm that consistently fails
to address the evidence that Judge Koh relied upon or her findings of fact.
d. Qualcomm’s New Argument About Different

Overcharges Between Standards Is Wrong and Waived.
Finally, Qualcomm raises a new attack on Dr. Flamm’s analysis. Qualcomm
contends for the first time on appeal that (1) the supra-competitive royalty charge
34
calculated by plaintiffs varies by cellular standard and yet (2) “OEMs such as
Apple did not vary the price of their cellphones” by standard, showing it “did not
pass through any alleged ‘overcharge’ to each consumer to the same degree.” Br.
p.31.
Qualcomm did not raise this argument below—at class certification or even
in its merits expert reports—thereby waiving it here. Even if Qualcomm had raised
this erroneous position, it would not change the outcome.
Plaintiffs’ expert calculated the royalty overcharge for each standard by
(1) taking the royalty rate that Qualcomm actually charged and (2) subtracting the
FRAND rate Qualcomm should have charged. 4SER732–733, ¶147. The former,
actual royalty rate did not vary by standard. Only the latter, “but-for” FRAND rate
should have varied by standard because Qualcomm had stronger patent portfolios
in some standards than others. 4SER725–733.
Plaintiffs cited extensive evidence that OEMs based their pricing decisions
on Qualcomm’s actual royalty rates in the “real world” (which did not vary by
standard), not OEMs’ assessment of the amount of that royalty that constituted the
unlawful overcharge compared to the “but-for” world. 3SER334–341, ¶¶147–158.
Because Qualcomm’s actual royalty rates did not vary, Apple would not be
expected to “vary the price of their cell phones” by standard.
35
B. Qualcomm Also Fails to Challenge Three Independent Bases for

Judge Koh’s Rule 23(b)(3) Conclusion.
Qualcomm also ignores three independent bases for Judge Koh’s
predominance ruling apart from Dr. Flamm’s hedonic regression.
1. Qualcomm Disregards California’s Presumption of Impact.
First, Qualcomm says nothing about Judge Koh’s recognition that under
“California substantive law, courts ordinarily may assume injury to the class where
consumers have purchased products in an anticompetitive market, even if some
consumers did not actually have to pay the overcharge because of their individual
circumstances.” 1ER30 (quoting In re Cipro, 17 Cal. Rptr. 3d at 8). As Judge Koh
noted, “[t]his presumption hasMr. Lasinski provided the back-up data for calculating
Qualcomm’s overcharge for each separate device model and performed exemplary
overcharge calculations for five specific device models sold in Q4 2014: the Apple
iPhone 6S Plus; the Samsung Galaxy S6; the LG G4 LGH810; the HTC One M8; and the
Motorola/Lenovo Droid Trio Turbo 2. 4SER733 n.263; 4SER902–907. Mr. Lasinski
noted that these “exemplary” calculations showed it “will be possible to approximate the
overcharge” on a per-device-model basis in addition to a per-OEM basis. 4SER733
n.263. been applied to markets characterized by individually negotiated prices,
varying profit margins, and intense competition, as well as to indirect purchasers
who buy the product from middlemen in a largely unaltered form.” Id.; see also
36
B.W.I. Custom Kitchen v. Owens-Illinois, Inc., 191 Cal. App. 3d 1341, 1351 (1987)
(same). Qualcomm does not mention this conclusion and thus cannot meet its
burden to show that Judge Koh applied an “incorrect legal rule.” Jimenez, 765 F.3d
at 1164.
This waiver is fatal to Qualcomm’s predominance arguments. Qualcomm
does not dispute that California law will apply to whomever is included in the class
(to repealer-state plaintiffs if Qualcomm wins on choice-of-law, or else to all
plaintiffs). Thus, under California law, impact to plaintiffs is presumed (even
though plaintiffs also advanced extensive evidence of class-wide impact in support
of these claims).
2. Qualcomm Ignores Economic Consensus and Empirical

Research Supporting Impact.
Second, Qualcomm overlooks Judge Koh’s conclusion that the “economic
consensus, confirmed by theoretical and empirical research, that industry-wide
taxes—like Qualcomm’s here—are passed through to end purchasers as higher
prices.” 1ER33. Dr. Flamm cited nine such studies, including one review of the
literature that identified over a dozen more. 3SER328–333, ¶¶136–146. As Judge
Koh noted, while market participants “have little ability to pass on idiosyncratic
cost shocks, shared cost changes have increasingly larger impacts, culminating in
37
slightly greater than full pass-through for an industry-wide shock.” 1ER33
(quotation marks and citation omitted).
Qualcomm failed to rebut this “economic consensus” and “empirical
research.” Qualcomm’s expert Dr. John Johnson mentioned such extensive
economic literature only in a footnote to his report and did not dispute that
(1) these studies demonstrate high pass-through rates of industry-wide taxes and
(2) Qualcomm’s supra-competitive royalty operates as an industry-wide tax.
3ER343 n.53. Dr. Johnson also admitted that “he has not found any scholarship
‘support[ing] the inference that an industry-wide reduction in royalty rates would
be unlikely to lead to a reduction in price or an improvement in quality of
[handsets].’” 1ER33.
Qualcomm relegates its discussion of this evidence to a single footnote, in
which it does not even cite its own expert. 6 Qualcomm simply provides its own
ipse dixit that the economic consensus is “inapposite” because “different OEMs
paid different effective royalties and incurred different alleged overcharges,” and
6
Tellingly, Qualcomm is also nearly silent about its own expert, Dr. Johnson
and includes only minimal snippets from his report in the Excerpt of Record. Dr.
Flamm’s reply report, as well as Judge Koh’s decision, dismantled Dr. Johnson’s
flawed analysis. 2SER53–136; 1ER33, 43–45. The district court is not the only one
to find problems with Dr. Johnson’s analysis. See, e.g., In re: Packaged Seafood
Prods. Antitrust Litig., No. 15-MD-2670-JLS, 2019 WL 3429174, at *8–13 (S.D.
Cal. July 30, 2019) (rejecting Dr. Johnson’s analysis and certifying the class).
38
were not “uniform across an industry….” Br. pp.27–28 n.12. But Qualcomm does
not challenge Judge Koh’s conclusion that Qualcomm was able to impose supra-
competitive royalties industry-wide, 1ER59, even if the amount of the overcharge
varied. Nor does Qualcomm offer evidentiary support for its say-so assertion that
the economic consensus and literature is “inapposite.” It is Qualcomm’s argument
that is “implausible” and “without support in inferences that may be drawn from
the facts in the record”—and not Judge Koh’s careful analysis. Jimenez, 765 F.3d
at 1164.
3. Qualcomm Is Silent on Case-Specific Evidence of Impact.
Third, Qualcomm is silent on Judge Koh’s analysis of extensive evidence of
antitrust impact developed through discovery. Judge Koh recognized that
“documentary and testimonial evidence evinc[es] that Qualcomm, OEMs, and
wireless carriers treated Qualcomm’s royalty as a known component cost and
‘included the Qualcomm royalty in their calculations of the total cost of cellular
phones.’” 1ER33. Such evidence included “Qualcomm’s own internal analysis”
showing “Qualcomm considered royalties as one component of the cost to OEMs
that would be incorporated in the price to retailers and then incorporated into the
price to consumers.” 1ER34. The evidence also included “multiple pieces of
testimony in which Qualcomm and other participants in the cellular industry
39
(including OEMs and wireless carriers) stated that Qualcomm’s royalty would be
an added component to the price of the phone.” Id.
Qualcomm asserts that Rule 23(b)(3) must be satisfied “‘through evidentiary
proof’ and not mere assumptions or theory.” Br. p.20. Other than mentioning such
findings in passing in its Statement of the Facts, Qualcomm fails to challenge them
and ignores Judge Koh’s treatment of the extensive record, including deposition
testimony and documentary evidence from Qualcomm and OEMs. Such record
evidence defeats Qualcomm’s arguments against class certification. Just Film, 847
F.3d at 1122 (affirming class certification order based on documents and
deposition testimony, noting while plaintiffs “may or may not prevail,” that “is a
merits question”).
C. Qualcomm’s Mistaken Merits Arguments Concerning Post-2016

Apple Customers Do Not Defeat Predominance.
Qualcomm contends that because Apple temporarily withheld royalty
payments to Qualcomm after 2016, subsequent Apple customers were not injured.
This argument, too, fails.
First, as Judge Koh recognized, “[w]hether or not Apple and its contract
manufacturers elected to stop paying royalties does not definitively answer
whether Apple incorporated potential future payments of the royalties into
40
consumer pricing.” 1ER50. Judge Koh cited “Apple’s internal documents”
showing that it “considered Qualcomm’s royalty when pricing and designing
iPhones to be sold in 2017,” a decision that “makes sense because Qualcomm
continues to charge royalties and has initiated ongoing litigation efforts to collect
those royalties.” Id; see also 2SER248 (forecasting Qualcomm royalty for 2017
iPhones).
Qualcomm suggests that a jury would find that Apple’s “financial accruals”
regarding its anticipated royalty payments are more persuasive than the documents
Judge Koh cited. Br. p.39. This fact dispute, however, is a classic jury issue and in
no way shows that individualized issues will predominate. Judge Koh’s findings
are bolstered by the fact that, in April 2019, Qualcomm and Apple settled their
dispute, including terms that required Apple to pay Qualcomm between $4.5 and
$4.7 billion in previously uncollected royalties—a fact that neither Qualcomm nor
its amici disclosed to this Court.7
Second, Qualcomm wrongly contends that plaintiffs conceded a lack of
injury for post-2016 Apple purchasers because plaintiffs’ expert Mr. Lasinski had
not yet calculated damages for such purchasers when the class certification motion
7
See Qualcomm SEC form 10-Q for the quarter ended March 31, 2019, for
which plaintiffs have moved for judicial notice.
41
was filed. Incorrect. As Judge Koh explained, this is based on a misreading of “Mr.
Lasinski’s and Dr. Flamm’s statements.” 1ER49–51 (citations omitted); see also
2SER21, ¶4 n.4. While Mr. Lasinski had “not yet calculated the above-FRAND
surcharge paid by Apple after 2016” when the class certification motion was filed,
he “confirm[ed] that he would apply the same methodology and common evidence
to quantify the surcharge.” Id. Dr. Flamm merely testified, correctly, that the
“numbers [he] received that apparently reflects Lasinski’s analysis” to date did not
yet reflect any “damages that were going to be claimed for Apple’s purchase after
the date I mentioned earlier.” 2SER253 at 149:11–150:1. That such calculations
had not been completed by class certification does not mean plaintiffs conceded
such class members should be excluded.
Third, regardless of Apple’s royalty payments, post-2016 Apple purchasers
were also injured by Qualcomm’s charging elevated prices for modem chips.
Plaintiffs’ expert Professor Elhauge’s analysis demonstrated that Qualcomm’s
anticompetitive practices allowed it to maintain elevated chip prices, which stifled
innovation in the market and had “a common impact across all OEMs, including
Apple, that persists beyond 2016.” 1ER50 (citing 2SER16–17, ¶9); see 4SER622,
¶148.
Finally, and most importantly, the mere possibility that Qualcomm will
42
prevail in showing post-2016 Apple iPhone purchasers were not injured does not
defeat class certification. Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1136–37
(9th Cir. 2016) (holding denying certification based on the “inevitabl[e]” inclusion
of “some individuals who have suffered no harm” is only warranted if there were
“large numbers of class members who were never exposed to the challenged
conduct”). A subclass could easily be created to deal with this discrete and
identifiable population. See, e.g., Rubenstein, 3 NEWBERG ON CLASS ACTIONS
§ 7:30 (5th ed.) (“[S]ubclassing may be undertaken at any time.”). If plaintiffs’
evidence is persuasive, the subclass will prevail. If Qualcomm’s evidence is more
persuasive, such claims will fail. But this merits question turns on common
evidence.
This case is far afield from In Re Asacol Antitrust Litigation, a putative class
action alleging a brand-name drug manufacturer foreclosed entry of competing
generic products. 907 F.3d at 44. Plaintiffs there had no way to identify which
consumers would have preferred the brand-name drug even if generics had been
allowed into the market. Id. at 53. The court declined to certify a class where “any
class member may be uninjured” and yet there was no “mechanism” to “identify”
those individuals and “manageably remove” them. Id. at 53–54. The First Circuit
distinguished those facts from In re Nexium Antitrust Litigation, 777 F.3d 9 (1st
43
Cir. 2015), where it was “possible to establish a mechanism for distinguishing the
injured from the uninjured class members.” Id. at 19–20. Here, no such problem
exists in identifying the claimed uninjured class members, which turns only on
whether they purchased Apple phones after 2016.
D. The District Court Properly Certified the Injunctive Relief Class.
Qualcomm’s efforts to defeat certification of an injunctive relief class are
equally meritless.
First, Qualcomm contends that because plaintiffs only allege Qualcomm’s
market power in two types of chips, its conduct could not have had a “market-
wide” effect. Br. p.42. To the contrary, under its “No-License-No-Chips” policy,
Qualcomm used its market power in CDMA and premium LTE chips—which all
OEMs required—to extort supra-competitive royalties on all cellular phones.
1ER25; 4SER556–575, ¶¶34–35, 40, 68. Qualcomm does not challenge Judge
Koh’s finding on this issue, which is bolstered by Professor Elhauge’s analysis.
Instead, Qualcomm simply ignores it, thereby waiving the challenge.
Second, Qualcomm repeats its same, failed arguments regarding lack of
class-wide impact and damages, Br. pp.41–42, which are disposed of above and
fail here for the same reasons. Supra § I.A–C.
Finally, Qualcomm completely ignores the prospective, adverse, class-wide
44
effects on innovation alleged and shown by plaintiffs, explained in the economics
literature, and found by the Court in the FTC case. See, e.g., 1ER10; 2SER16–17,
¶9; FTC Order at *120; supra § I.C; see also Boardman v. Pac. Seafood Grp., 822
F.3d 1011, 1023 (9th Cir. 2016) (“[L]essening of competition constitutes an
irreparable injury.”).
II. Qualcomm’s Manageability and Due Process Arguments Fail to Show

Judge Koh Abused Her Discretion in Finding Superiority Satisfied.
Qualcomm attempts to repackage its failed predominance arguments—along
with the specter that this class is simply “too big”—into a baseless contention that
this case is unmanageable and violates its due process rights. This too carries no
weight.
“Manageability” is not a stand-alone requirement for class certification; it is
a component of the superiority analysis. Briseno v. ConAgra Foods, Inc., 844 F.3d
1121, 1128 (9th Cir.), cert. denied sub nom. ConAgra Brands, Inc. v. Briseno, 138
S. Ct. 313 (2017). Accordingly, “[m]anageability concerns must be weighed
against the alternatives and will rarely, if ever, be sufficient to prevent certification
of a class.” Bowerman v. Field Asset Servs., Inc., 242 F. Supp. 3d 910, 933 (N.D.
Cal. 2017) (citation omitted). There is a “well-settled presumption that courts
should not refuse to certify a class merely on the basis of manageability concerns.”
Briseno, 844 F.3d at 1128 (quotation omitted).
Judge Koh (1) analyzed the factors set forth in Rule 23(b)(3); (2) considered
45
“the potential difficulties in notifying class members of the suit, calculation of

individual damages, and distribution of damages”; and (3) found that plaintiffs’
class satisfied those considerations. 1ER62 (citation omitted). She did not abuse
her discretion in doing so. Nor does Qualcomm demonstrate that its due process
rights will be impaired, given that “substantial evidence” shows “adjudication” will
“overwhelmingly turn on common legal and factual issues.” 1ER23, 27.
A. Individual Class Members’ Damage Claims Do Not Render This

Case Unmanageable or Violate Qualcomm’s Due Process Rights.
Qualcomm complains for the first time that the district court failed to require
a “trial plan.” Br. p.3. The Ninth Circuit has flatly rejected that a district court’s
“failure to adopt a trial plan or to articulate how the class action would be tried” is
an abuse of discretion at the certification stage. Chamberlan v. Ford Motor Co.,
402 F.3d 952, 961 n.4 (9th Cir. 2005). As to class-wide liability, Qualcomm’s
position is belied by reality: Qualcomm recently completed a trial against the FTC
on overlapping liability questions in 10 days. See FTC Order at *1. Not
surprisingly, Qualcomm conceded that manageability is satisfied with respect to
proving (1) Qualcomm’s antitrust violation and (2) the amount of Qualcomm’s
royalty overcharge.
Qualcomm nevertheless contends plaintiffs have not shown how individual
damages could be calculated, rendering the case unmanageable and violating its
46
due process rights. Br. pp.11, 57. In particular, Qualcomm claims it has due
process rights in “identifying which individual class members were injured, what
their damages might be, or how damages would be fairly and efficiently
distributed.” Id. at 53. But this argument turns a blind eye to the law and the
record.
As an initial matter, California’s Cartwright Act broadly permits
approximate calculations of class-wide damages in the aggregate, providing:
[D]amages may be proved and assessed in the aggregate by statistical

or sampling methods, by the pro rata allocation of illegal
overcharges or of excess profits, or by any other reasonable system
of estimating aggregate damages as the court in its discretion may
permit without the necessity of separately proving the individual
claim of, or amount of damage to, persons on whose benefit the suit
was brought.
Cal. Bus. & Prof. Code §16760; see also Bruno v. Super. Ct., 127 Cal. App. 3d
120, 134 & n.9 (1981) (“[I]n private class actions, such as the present case,
aggregate damage calculation is expressly permitted under the Cartwright Act…”);
In re Cipro, 17 Cal. Rptr. 3d at 7–8 (certifying class under the Cartwright Act
where “the total amount of overcharges to the class as a whole could be
calculated,” as such a “formula is an accepted method of proving aggregate
damages to the class”).
California’s UCL requires “only that some reasonable basis of computation
47
of damages be used, and the damages may be computed even if the result reached
is an approximation,” so the “fact that an amount of damage may not be
susceptible of exact proof or may be uncertain, contingent or difficult of
ascertainment does not bar recovery.” Pulaski, 802 F.3d at 989 (reversing denial of
class certification); see also B.W.I. Custom Kitchen, 235 Cal. Rptr. at 237 (“[W]e
know of no case where [factual determinations of damages] ha[ve] prevented a
court from aiding the class to obtain its just restitution.”). Fluid recovery under the
UCL is also permitted. See supra n.2.
This Court has held that proof of aggregate damage to the class is
permissible. Torres, 835 F.3d at 1140. While the “partitioning of damages among
class members may lead to individual calculations,” such calculations (1) “would
not impact a defendant’s liability for the total amount of damages” and (2)
“typically would not defeat certification.” Id. A defendant’s “interest is only in the
total amount of damages for which it will be liable,” and not in “the identities of
those receiving damages awards.” Hilao v. Estate of Marcos, 103 F.3d 767, 786
(9th Cir. 1996). Thus, “[w]here the only question is how to distribute the damages,
the interests affected are not the defendant’s but rather those of the silent class
members.” Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1307
(9th Cir. 1990). See also In re Urethane Antitrust Litig., 768 F.3d 1245, 1269 (10th
48
Cir. 2014) (holding a defendant “has no interest in the method of distributing the
aggregate damages award among the class members”); NEWBERG ON CLASS
ACTIONS § 12:2 (“[T]here is no absolute requirement in Rule 23 that aggregate
damages be calculable, but where they are, they may be all that plaintiffs need to
prove.”).
Nonetheless, at class certification, plaintiffs still provided a method for
calculating individual damages on a per-consumer basis if so required. Mr.
Lasinski provided the back-up data for calculating Qualcomm’s overcharge for
each separate device model and performed exemplary overcharge calculations for
five specific device models sold in Q4 2014: the Apple iPhone 6S Plus; the
Samsung Galaxy S6; the LG G4 LGH810; the HTC One M8; and the
Motorola/Lenovo Droid Trio Turbo 2. 4SER733 n.263; 4SER902–907. Mr.
Lasinski noted that these “exemplary” calculations showed it “will be possible to
approximate the overcharge” on a per-device-model basis in addition to a per-
OEM basis. 4SER733 n.263. Dr. Flamm’s regression model yields a weighted-
average pass-through rate of 88%, which in turn applies to each overcharge for
each device to arrive at an individual damage number. 1ER36. This more than
satisfies the requirement that there be a “reasonable basis of computation” of
damages, “even if the result reached is an approximation.” Pulaski, 802 F.3d at 989
49
(quotation marks and citation omitted).
For the reasons discussed in Part I.A above, plaintiffs have provided class-
wide and therefore manageable methods of proving the overcharge was passed
through and impacted the entire class. And they have provided reliable methods for
calculating damages in the aggregate, or based on an average for each OEM, or
even on a per-device basis if necessary (though it is not for certification, see
1ER58). Qualcomm offers no compelling reason why its defenses to plaintiffs’
impact and damages model—which admittedly turn on “industry pricing
practices,” Br. p.32—cannot manageably be tried using common evidence,
including Qualcomm’s expert evidence.
Against this backdrop, Qualcomm’s only remaining complaint is its
supposed inability to challenge every individual claimant’s right to receive an
award. But this Court has held in a case with millions of class members that there
“is no due process right to a cost-effective procedure for challenging every
individual claim to class membership.” Briseno, 844 F.3d at 1131–32 (quotation
marks omitted). To the contrary, “parties have long relied on claim administrators,
various auditing processes, sampling for fraud detection, follow-up notices to
explain the claims process, and other techniques tailored by the parties and the
court to validate claims,” and Qualcomm “does not explain why such procedures
50
are insufficient to guard its due process rights.” Id. at 1131.
Qualcomm points to the disparity between plaintiffs’ litigation costs and
potential individual damages awards as weighing against certification, Br. pp.54–
55. But Qualcomm has it backward, ignoring the factors that militate against
plaintiffs bringing millions of individual and expensive-to-litigate suits to recover
comparatively small individual damages. Class action proceedings are particularly
appropriate where “recovery on an individual basis would be dwarfed by the cost
of litigating on an individual basis.” Wolin v. Jaguar Land Rover N. Am., LLC, 617
F.3d 1168, 1175 (9th Cir. 2010).
B. Qualcomm and Its Amici’s Citation to Off-Point Cases Do Not

Alter This Conclusion.
Attempting to avoid this conclusion, Qualcomm and its amici cite a series of
cases that are wholly inapposite.
Qualcomm relies heavily on a single, decades-old case, which it did not even
cite below: In re Hotel Telephone Charges, 500 F.2d 86 (9th Cir. 1974).
Qualcomm calls Hotel Telephone “identical.” Not even close. There, the plaintiffs
alleged a nationwide conspiracy among over 40 hotel chains and 600 individual
hotels to increase room rates via a telephone surcharge added to the quoted rate. Id.
at 88. The plaintiffs’ fraud claims rested on the supposed misrepresentation of
51
these “surcharges”—which for some hotels amounted to varied percentages of
varied room rates and for others was a flat fee—by the many different defendant
hotels. Id. Common issues did not predominate because of individual reliance
issues, among other reasons. Id. at 89.
The court also found that common issues did not predominate as to
plaintiffs’ antitrust claims because they would have to prove each of approximately
600 defendants’ “knowing participation” in the alleged conspiracy. Id.
Additionally, the court noted the amount of the surcharges varied between hotels,
as did the period when they were in effect, and that damages would have to be
individually determined for each of the hundreds of hotel defendants. Id. Unlike
here, plaintiffs did not propose any common means of proof of damages that would
apply on a class-wide basis.
Qualcomm argues that as in Hotel Telephone, class members here would be
required to “prov[e] an eligible purchase,” and that calculating damages would be a
“complex and individualized task.” Br. p.47. But as this Court has consistently
held and Qualcomm itself acknowledges, “damage calculations alone cannot defeat
certification.” Id. at 48 n.18 (quoting Leyva, 716 F.3d at 513); Pulaski, 802 F.3d at
986 (quoting Yokoyama v. Midland Nat’l Life Ins. Co., 594 F.3d 1087, 1094 (9th
Cir. 2010)) (same).
52
This Court rejected the notion that plaintiffs must propose “an
administratively feasible way to determine who is in the class” at this stage in a
case involving millions of plaintiffs who purchased cooking oil—and thus were
significantly less likely to maintain proof of eligibility than consumers who
purchased cell phones costing hundreds of dollars. Briseno, 844 F.3d at 1124. But
even so, here a consumer’s purchase of a relevant device is easily determinable and
historical prices are well documented.
Similarly off-point is Abrams v. Interco Inc., 719 F.2d 23, 25 (2d Cir. 1983).
That decades-old case involved a claim of separate, vertical price-fixing
arrangements involving “thousands of dealers,” and “scores of different products”
including shoes, raincoats, and numerous “other items of men’s, women’s and
children’s footwear and wearing apparel.” Id. at 25, 29. The court held that a class
could not be certified absent “some pattern of conduct on Interco’s part which was
reasonably consistent, affecting all or most of the dealers referred to in the
complaint.” Id. at 29 (quotation marks and citation omitted). The district court
determined, however, “it is abundantly clear from the complaint that plaintiffs have
no such claim in mind.’” Id.
Qualcomm again cites In re Asacol. But in Asacol, it was impossible to
distinguish uninjured class members (who preferred brand-name drugs) from
53
injured ones (who may have chosen generic alternatives), as the question turned on
each class member’s subjective intent. 907 F.3d at 52–53. Thus, there was no way
to “prove an element of liability” on a class-wide basis. Id. at 53.
The cases Qualcomm’s amici cite fare no better. Amicus Washington Legal
Foundation (“WLF”) cites Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) for
the proposition that a defendant must be able to litigate its defenses. WLF p.30.
But, as shown extensively above, Qualcomm will have full opportunity at trial to
litigate all defenses to liability and class-wide impact and damages—which are
subject to common proof—and will have the further right to challenge class
members’ claims as they are filed.
The Chamber of Commerce claims a case of this size will leave Qualcomm
no choice but to settle, “regardless of the merits.”8 Chambers pp.19–22. The
magnitude of plaintiffs’ damages is large; but so is the reach of Qualcomm’s
misconduct. While “the potential recovery here may be unpleasant to a behemoth
company,” it is “hardly terminal.” Chamberlan, 402 F.3d at 960 (quotation marks
8
This amicus additionally takes a comment by Judge Koh out-of-context:
She stated she would be “shocked if this case goes to trial” given she has “only
heard of two or three [class actions] in the last eight years in the Northern District
of California” that have been tried. 1SER7 at 46:16–21. Class actions—indeed,
civil cases in general—frequently settle; but if ever a defendant could litigate a
case to the end, Qualcomm can. One need look no further than the FTC trial.
54
and citation omitted). Tellingly, Qualcomm itself does not raise this argument—
nor the fact that it recently received a settlement from another behemoth company,
Apple, exceeding $4 billion. Supra n.7.
C. Plaintiffs’ Unopposed Notice Plan Already Has Been Successfully

Administered.
In a final salvo, Qualcomm challenges plaintiffs’ Court-approved and now
fully-administered notice plan—despite failing to oppose that plan below. MDL
Dkt. 815. Qualcomm’s sole prior reference to anything bearing on class notice is a
single, one-sentence footnote in its opposition to class certification. 1SER2 n.32.
This argument is meritless.
Rule 23(c)(2)(B) requires “the best notice that is practicable under the
circumstances.” This “includ[es] individual notice to all members who can be
identified through reasonable effort,” id.; but the Supreme Court “has not hesitated
to approve of resort to publication as a customary substitute” in class actions where
individual notice “is not reasonably possible or practicable.” Mullane v. Cent.
Hanover Bank & Tr. Co., 339 U.S. 306, 317 (1950). Individual notice may not be
“practicable” where, “although they could be discovered upon investigation,” “the
practical difficulties and costs” of identifying individual class members would
“impose a severe burden on [collective recovery], and would likely dissipate its
55
advantages.” Id. at 317–18. 9
Trial judges have significant discretion in designing notice to suit the
circumstances of a given case. 3 NEWBERG ON CLASS ACTIONS § 8:29 (5th ed.).
“Particularly with the advent of the Internet and the ability to reach class members
through targeted advertising, courts have increasingly recognized the ability of an
indirect notice campaign to satisfy the requirements of Rule 23.” Edwards v. Nat’l
Milk Producers Fed’n, No. 11-CV-04766-JSW, 2017 WL 3623734, at *4 (N.D.
Cal. June 26, 2017). Rule 23(c)(2) was recently amended to “recognize
contemporary methods of giving notice to class members,” including through “new
technology to make notice more effective.” Fed. R. Civ. P. 23(c) Adv. Comm.
Notes (2018 Amend.). The Advisory Committee noted that “[i]nstead of preferring
any one means of notice…the amended rule relies on courts and counsel to focus
on the means or combination of means most likely to be effective in the case
before the court.” Id.
Plaintiffs’ notice program was specifically tailored to reach a class of
9
See also, e.g., In re MetLife Demutualization Litig., 262 F.R.D. 205, 208
(E.D.N.Y. 2009) (“In view of the millions of members of the class, notice to class
members by individual postal mail, email, or radio or television advertisements, is
neither necessary nor appropriate.”).
56
consumers defined by their purchase and use of smartphones. MDL Dkt. 863-1.
Over 300 million digital notices were delivered through various Google platforms
and Facebook, specifically targeting likely class members. And a press release was
delivered to over 10,000 newsrooms, including print, broadcast, and digital media;
and a case-specific website was established. MDL Dkt. 831-1, ¶¶5–7. See In re
TFT-LCD Antitrust Litig., No. 07-md-1827, Dkts. 4424, 4468 (N.D. Cal. 2011)
(finding publication notice satisfactory for nationwide class of indirect purchasers
of electronic devices); In re Cathode Ray, No. 3:07-cv-5944, Dkts. 3861 at 25,
3906 (N.D. Cal. 2015) (finding combination of publication and targeted email
notice appropriate for indirect purchasers of electronic monitors).
Judge Koh did not abuse her discretion in approving this notice plan—and,
in any event, Qualcomm waived any argument against it.
III. Qualcomm Failed to Overcome the Undisputed Presumption that

California Law Applies Nationwide.
Choice-of-law analysis raises one constitutional question: whether the state
has “a significant contact or significant aggregation of contacts, creating state
interests, such that choice of law is neither arbitrary nor fundamentally unfair.” AU
Optronics, 707 F.3d at 1111 (quotation marks and citation omitted); see also
Hyundai, 926 F.3d at 561. Qualcomm failed to dispute below or on appeal that due
57
process is satisfied. Nor could it. Qualcomm’s anticompetitive conduct occurred at
its headquarters in California, targeted Apple and Intel in California, and harmed
consumers in California (and nationwide). Additionally, Qualcomm has availed
itself of California law, including California choice-of-law provisions in the
licensing agreements giving rise to this suit, 4SER941, and of California courts,
where it has sued to enforce those anticompetitive agreements. See, e.g.,
Qualcomm Inc. v. Compal Elecs., Inc., 3:17-cv-01010-GPC-MDD (S.D. Cal.).
These robust contacts more than satisfy the requirements of due process.
With no constitutional issues, choice-of-law is solely a question of the forum
state’s law. A federal court determining choice-of-law must apply the choice-of-
law rules of the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487,
496 (1941). California’s rule is clear: California law is presumed to apply
nationwide unless Qualcomm meets its burden of proving otherwise. Hyundai, 926
F.3d at 561.
“To meet [its] burden, [Qualcomm] must satisfy the three-step governmental
interest test,” by showing: “(1) that the law of the foreign state ‘materially differs
from the law of California’ … (2) a ‘true conflict exists,’ meaning that each state
has an interest in the application of its own law to ‘the circumstances of the
particular case,’ and (3) the foreign state’s interest would be ‘more impaired’ than
58
California’s interest if California law were applied.” Id. (citations omitted). If
Qualcomm “fail[ed] to meet [its] burden at any step in the analysis, the district
court ‘may properly find California law applicable without proceeding’ to the rest
of the analysis.” Id. at 561–62 (citation omitted).
That is precisely what happened here. Qualcomm failed to show (1) that
foreign “non-repealer” states have an interest in applying their own laws in “the
circumstances of [this] particular case,” or (2) even if there were such an interest,
that it would be “more impaired” if California law were applied than California’s
interest would be if the foreign state’s law were applied. Qualcomm instead relies
on a place-of-injury rule, once embodied in the now-superseded original
RESTATEMENT OF CONFLICTS OF LAWS. But California courts abandoned any such
rule long ago, and a “federal court is obligated to follow the decisions” of
California’s “appellate courts.” Vestar Development II, LLC v. Gen. Dynamics
Corp., 249 F.3d 958, 960 (9th Cir. 2001).
A. Qualcomm Failed to Show a “True Conflict” Between the

Interests of California and Non-Repealer States on These Facts.
1. California Has a Significant Interest in Fully Deterring

Qualcomm’s Anticompetitive Conduct.
Judge Koh recognized that “the ‘primary concern’ of the Cartwright Act is
‘the elimination of restraints of trade and impairments of the free market.” 1ER54
59
(quoting Clayworth v. Pfizer, 233 P.3d 1066, 1083 (Cal. 2010)). This Court has
rejected the argument that “the purpose of the antitrust laws is to compensate
consumers,” and noted the “Cartwright Act’s ‘overarching goals of maximizing
effective deterrence of antitrust violations, enforcing the state’s antitrust laws
against those violations that do occur, and ensuring disgorgement of any ill-gotten
proceeds.” AT&T Mobility, 707 F.3d at 1112–13 (quotation marks and citation
omitted). Judge Koh held this interest would be furthered by “allowing this suit to
proceed to address Qualcomm’s unlawful business activities in California and
deter such anticompetitive conduct perpetrated by a resident California
corporation,” a conclusion Qualcomm does not challenge. 1ER54.
2. Non-Repealer States Have No Interest in Applying Their Laws

to Qualcomm’s Antitrust Violations in California.
Qualcomm contends that Judge Koh failed to accord sufficient weight to
non-repealer states’ interests in “striking [their] own balance between protecting
consumers and ‘shielding out-of-state businesses from what the state may consider
to be excessive litigation.’” Br. p.66 (citation omitted). But Qualcomm makes no
showing that any such interest is implicated here.
Qualcomm is not alleged to have conducted any business relevant to its
alleged antitrust violations in non-repealer states. Instead, Qualcomm carried out
60
its anticompetitive scheme in California, which caused anticompetitive impact to
flow through the stream of commerce, and plaintiffs in non-repealer states
purchased their cell phones from other businesses entirely.
Faced with similar circumstances, the California Court of Appeal recently
held that a foreign state’s “interest in applying its more business-friendly products
liability laws” (1) “initially extends only to [its resident] businesses” and (2) can
extend to foreign businesses doing business” in the foreign state in “some cases.”
Chen v. L.A. Truck Centers, LLC, 7 Cal. App. 5th 757, 760 (2017). The court
declined to apply Indiana’s law, which was “substantially less favorable to
plaintiffs,” where the defendant was not domiciled in and did not conduct relevant
business in Indiana. Id. at 760, 773.
Similarly, any interest non-repealer states may have in protecting resident
corporations, or even foreign corporations who conduct relevant business within
their territories, is not implicated in this case where there is (1) a single, California
defendant; (2) that carried out its anticompetitive scheme in California; and (3) is
facing suit in California under California law.
For instance, Texas—which joined the Department of Justice’s (“DOJ”)
amicus brief—follows the Restatement’s “most significant relationship” choice-of-
law test. Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 205 (Tex. 2000).
61
Under the Restatement, where the “primary purpose” of California’s Cartwright
Act “is to deter or punish misconduct,” the “state where the conduct took place,”
i.e., California, “may be the state of dominant interest….” RESTATEMENT (SECOND)
OF CONFLICT OF LAWS §145, comment c. By contrast, where the purpose of a non-
repealer state’s statute is “denying liability” to protect the courts and defendants,
that interest should only bar actions (1) “brought in the state of its enactment” or
(2) if “the complained-of conduct had taken place in that state and particularly if,
in addition, the defendant had been domiciled there.” Id. Thus, even a Texas court
applying Texas’s choice-of-law rules would in all likelihood apply California law
to plaintiffs’ claims. 10
Here, as in Chen, because “the interests of the foreign state will not be
significantly furthered by applying its law, any conflict is a false conflict, and
forum law will prevail.” Chen, 7 Cal. App. 5th at 767 (quotation marks omitted).
10
The Reporter’s Notes to Preliminary Draft No. 2 to the RESTATEMENT
(THIRD) OF CONFLICTS OF LAWS § 6.06 notes that in “cases featuring conduct-
regulation issues in cross-border torts when the law of the state of conduct favors
the victim, American courts have a strong tendency to apply that state’s law.
Recent surveys concluded that over 83 percent of cases fitting this pattern apply
the law of the state of conduct.” This “resolution is sensible because the state of
conduct has an interest in imposing liability for wrongful conduct within its
borders while the state of injury generally has no interest in thwarting recovery.”
Id.
62
B. Qualcomm Fails to Show that Any Other State’s Interests Would

Be “More Impaired” than California’s Interests.
Judge Koh therefore correctly concluded her analysis at step two of the
governmental interest test. 1ER57. However, even assuming that Qualcomm had
shown a “true conflict”—and it hasn’t—that alone is not enough for Qualcomm to
prevail. Nor would it be enough for Qualcomm to show that non-repealer states
have interests equal to those of California. Instead, Qualcomm was required to
show non-repealer states’ interests would be “more impaired” if their laws were
not applied.
Qualcomm fails to make this showing. Instead, Qualcomm contends that the
law of the place of purchase applies. Yet this Court has recognized—even after
Mazza—that such a “place-of-purchase rule represents a return to the ‘wooden’
and ‘now largely abandoned’ lex loci delicti doctrine,” which is now “obsolete.”
AT&T Mobility, 707 F.3d at 1111–12; see also id. at 1107 (“California antitrust
law” may apply to “claims against defendants based on purchases that occurred
outside California” where “the conspiratorial conduct that led to the sale of those
goods” occurred in California).
Over fifty years ago, California abandoned any choice-of-law rule that
requires the “place of the wrong,” let alone the “state of purchase,” to inflexibly
63
govern choice-of-law. Reich v. Purcell, 67 Cal.2d 551, 553–54 (1967). See also
Hurtado v. Superior Ct., 11 Cal.3d 574, 580 (1974) (recognizing the “place of the
wrong” rule had been “renounced”). California courts have since applied the more
flexible “governmental interest” test and, in so doing, have noted the place of a
plaintiff’s injury and the place where defendant’s wrongful conduct occurred are
not necessarily the same and cannot be applied formulaically to determine choice-
of-law.
In McCann v. Foster Wheeler LLC, 48 Cal.4th 68, 97–98 (2010), the fact
that the defendant “engaged in the allegedly tortious conduct in Oklahoma,” where
the plaintiff was also injured, required that Oklahoma law apply. Here, Qualcomm
“engaged in the allegedly tortious conduct” in California—and products
incorporating Qualcomm’s devices worked their way through the stream of
commerce to injure consumers in other states. In such “instances in which a
defendant is responsible for exposing persons to the risks associated with [its
antitrust violations] through its conduct in California,” California’s choice-of-law
“principle[s] would allocate to California the predominant interest in regulating the
conduct.” Id. at 101 (emphasis in original).
In Diamond Multimedia Systems, Inc. v. Superior Court, 19 Cal.4th 1036,
1064 (1999), the California Supreme Court held that California’s Blue Sky
64
securities laws could apply to a nationwide class given California’s “compelling
interest in preserving a business climate free of fraud and deceptive practices” and
the “importance of extending state-created remedies to out-of-state parties harmed
by wrongful conduct occurring in California.”
In Rutledge, 238 Cal. App. 4th at 1187–88—which was decided after
Mazza—the court reversed the denial of certification of a nationwide class of
consumers who bought notebook computers manufactured by Hewlett-Packard, a
California company. The court noted that “the alleged injuries occurred in
California where HP conducted the repairs,” not in foreign states where plaintiffs
resided and purchased their computers. Id.
In Wershba v. Apple Computer, Inc., 91 Cal. App. 4th 224, 243 (2001), the
court applied California law to a nationwide settlement class over a choice-of-law
objection because “even though transactions may have occurred outside California,
the representations upon which the causes of action rested … necessarily emanated
from California” at Apple’s headquarters.
And in Clothesrigger, Inc.—on which Judge Koh relied—the court reversed
denial of certification of a nationwide class under California’s UCL where “the
fraudulent misrepresentations and unfair business practices forming the basis of the
claim of each member of the proposed nationwide class emanated from
65
California.” 191 Cal. App. 3d at 615.
Even though plaintiffs raised these cases in briefing Qualcomm’s Rule 23(f)
petition, Qualcomm fails to address any of them. Qualcomm cites only one
California case in a footnote, unrelated to choice-of-law. Br. p.20 n.10. Instead,
Qualcomm hinges its argument on a misreading of Mazza as supposedly barring
any nationwide consumer class action under California law.
Mazza did no such thing, but rather applied long-standing California law to
the particular “facts and circumstances of this case ….” 666 F.3d at 594. The court
explained that under California law, a foreign “jurisdiction ordinarily has ‘the
predominant interest’ in regulating conduct that occurs within its borders” so that
it may (1) calibrate “liability for companies conducting business within its
territory” and (2) assure “commercial entities operating within its territory” that
such limitations on liability will be observed. Id. at 592–93 (quoting McCann, 48
Cal.4th at 91, 97–98 (citation omitted)).
In Mazza, the plaintiffs sought to certify a “nationwide class of all
consumers who purchased or leased Acura RLs,” alleging that they were misled by
a “product brochure” and marketing videos that were distributed or shown in
“Acura dealerships” across the country. Id. at 585–86. In other words, the Mazza
plaintiffs sought to impose liability under California law based on the defendant’s
66
interactions with plaintiffs that occurred in other states through its authorized
dealerships.
Mazza did not hold that the law of the state of purchase always governs, but
rather that the “place of the wrong” is one relevant factor for determining which
state has the predominant interest in applying its laws. 666 F.3d at 593. When
determining the “place of the wrong,” California looks to the state where the last
event necessary for liability occurred. Id. In Mazza, “the last events necessary for
liability as to the foreign class members—communication of the advertisements to
the claimants and their reliance thereon in purchasing vehicles—took place in the
various foreign states, not in California.” Id. at 594. In other words, foreign states
had an interest in Mazza because relied-upon misrepresentations were received and
acted upon in those states, not because they were merely the “state of purchase.”
Here, the only state with a “‘predominant interest’ in regulating conduct that
occurs within its borders” is California. Id. at 592 (citation omitted). Qualcomm’s
anticompetitive conduct occurred in California and not in any non-repealer state.
See, e.g., In re TFT-LCD (Flat Panel) Antitrust Litig., No. 10-05625-SI, 2013 WL
6327490, at *5 (N.D. Cal. Dec. 3, 2013) (California law applied to price-fixing
conspiracy in California, although Circuit City purchased in Virginia). There
simply was no interaction between Qualcomm and consumers in non-repealer
67
states giving rise to plaintiffs’ claims; that is why they are “indirect” purchasers.
Qualcomm cites a series of other district court decisions declining to apply
California’s antitrust laws nationwide. Br. pp.64–65 & n.24. But, as Judge Koh
noted, those cases are distinguishable because they were brought against multiple
defendants residing in foreign countries or other states, whose conduct occurred
not only in California but also in other states, including non-repealer states, and
around the world. 1ER56 (citing cases). Qualcomm ignores other such decisions,
before and after Mazza, applying California nationwide where the only defendant
was a California corporation committing misconduct in California. See, e.g.,
Colman v. Theranos, Inc., 325 F.R.D. 629, 649–50 (N.D. Cal. 2018); Pecover v.
Electronic Arts Inc., No. C 08-2820 VRW, 2010 WL 8742757, at *17 (N.D. Cal.
Dec. 21, 2010).
C. Newly-Raised Constitutional Challenges and Policy-Based

Arguments Are Waived and Without Merit.
Qualcomm and its amici further rely on policy and constitutional arguments
that were never raised below and are waived. These arguments nevertheless lack
merit and application to this case. The notion that under the Constitution a state
may only apply its laws to its own residents or those who purchase goods within its
68
borders is the product of a fevered imagination. See DOJ p.26; Chambers p.8. 11
a. Constitutional Arguments Have Been Waived and Cannot

Be Asserted for the First Time on Appeal by Amici.
A party may not raise new issues on appeal. United States v. Jackson, 697
F.3d 1141, 1144–45 (9th Cir. 2012). And “arguments not raised by a party in an
opening brief are waived.” Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169,
1177 n.8 (9th Cir. 2009) (citation omitted). Qualcomm raised no constitutional
challenges to the nationwide application of California law below or on appeal,
thereby waiving them. 1SER9 n.8.
The Chamber of Commerce nevertheless argues that applying California law
violates the Due Process, Full Faith and Credit, and Dormant Commerce Clauses.
Chambers p.8. The DOJ suggests that “federalism” prevents California from
applying its antitrust laws extraterritorially. DOJ p.2. However, amici “generally
cannot raise new arguments on appeal.” Zango, 568 F.3d at 1177 n.8. Putting aside
waiver, these arguments are utterly meritless: The constitutionality of applying
California law nationwide cannot reasonably be contested.
11
The DOJ is joined by Louisiana, Ohio, Texas, Alaska, Missouri, and
Oklahoma. Several of these states took a contrary position just months ago in
Apple v. Pepper, advocating in favor of the repeal of Illinois Brick and the virtues
of indirect purchaser suits. See Br. for Texas, Iowa, and 29 Other States as Amici
Curiae in Support of Respondents, Apple Inc. v. Pepper, 139 S. Ct. 1514, No. 17-
1204.
69
b. Qualcomm’s Waived Constitutional Arguments Lack

Merit.
This Court has rejected the argument that applying California law
nationwide runs afoul of the Due Process and Full Faith and Credit Clauses, as a
“state court is rarely forbidden by the Constitution to apply its own state’s laws,
especially where, as here, the case is predicated upon violations of a state’s law
that allegedly occurred within that state.” AT&T Mobility, 707 F.3d at 1113
(citation omitted).
The “modest restrictions” of due process and full faith and credit are
satisfied so long as “more than a de minimis amount of [a] defendant’s alleged
conspiratorial activity took place in California,” even if indirect purchaser
“[p]laintiffs’ purchases of price-fixed goods all took place outside of California.”
AT&T Mobility, 707 F.3d at 1110–11, 1113 (citing Shutts, 472 U.S. at 818, 822).
As Judge Koh noted, “Qualcomm does not dispute that Plaintiffs have sufficiently
alleged that California has a constitutionally sufficient aggregation of the contacts
to the claims of each putative class member in this case.” 2ER217.
Amici’s Dormant Commerce Clause Arguments are equally infirm. The
“Supreme Court has made clear that neither the Sherman Act nor the Commerce
Clause preempts state antitrust laws.” Knevelbaard Dairies v. Kraft Foods, Inc.,
70
232 F.3d 979, 993 (9th Cir. 2000). See also California v. ARC Am. Corp., 490 U.S.
93, 101–02 (1989) (holding “state indirect purchaser statutes” are “consistent with”
and not preempted by “the federal antitrust laws”).
Amici nevertheless suggest that the “extraterritorial application” of
California’s antitrust laws is unconstitutional. DOJ p.26; Chambers p.8. But in
Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 128 (1978), the Supreme
Court rejected the argument that the Commerce Clause barred application of
Maryland’s competition law to out-of-state companies that engaged in out-of-state
transactions. Instead, the Supreme Court has “upheld the right of states to apply
their competition statutes unless lack of uniformity would impede the flow of
goods.” Knevelbaard Dairies, 232 F.3d at 993.
The authorities on which amici rely merely say it may offend the Commerce
Clause for a state to “directly control[] commerce occurring wholly outside” its
boundaries. Healey v. Beer Inst., Inc., 491 U.S. 324, 336 (1989); see also NCAA v.
Miller, 10 F.3d 633, 639 (9th Cir. 1993) (same). By contrast, any concern about
“extraterritorial application of state antitrust law” would “not be noticeably
impaired … provided that the application of such laws is restricted to defendants
or activities located within the state.” Herbert Hovenkamp, State Antitrust in the
Federal Scheme, 58 Ind. L.J. 375, 395 & n. 116 (1995).
71
In Knevelbaard Dairies, this Court held that California’s Cartwright Act
constitutionally could be applied to a buyers’ cartel of cheese makers in Wisconsin
that harmed milk producers in California. 232 F.3d at 993. The Court rejected the
defendants’ Commerce Clause challenge for two reasons: First, the defendants’
relevant conduct took place in both “Wisconsin, where [the buyers’ cartel] was
located” and in “California” where defendants “allegedly purchased milk at prices
artificially depressed by their combination in restraint of trade.” Id. at 993–94.
Second, applying the “Cartwright Act to prevent price-fixing” to an out-of-state
cartel harming California residents “would not impede the flow of goods.” Id.
Any Commerce Clause challenge is even weaker here, where the sole
defendant is a California corporation whose anticompetitive conduct occurred in
California. The commerce at issue did not occur “wholly” outside California.
Instead, “the relevant ‘occurrence or transaction’ in this case includes not only the
sale of the price-fixed goods,” in non-repealer states, but Qualcomm’s
anticompetitive “conduct within California leading to the sale” of phones to
consumers in non-repealer states. AT&T Mobility, 707 F.3d at 1112.
Qualcomm and its amici ring an alarm bell that “federaliz[ing]” California
law and deputizing California as the nation’s antitrust enforcer is at stake in this
case. Br. p.59; DOJ pp.10, 25–26; Chambers p.8. Plainly that is not true. There is
72
no choice-of-law or constitutional impediment, grounded in “federalism” or
otherwise, to applying California nationwide here. Qualcomm happens to be a
technology company headquartered in California, which carried out its
anticompetitive scheme in California targeting other California technology
companies Apple and Intel. This Court has long rejected similar arguments.
Redwood Theatres, Inc. v. Festival Enters., Inc., 908 F.2d 477, 480 (9th Cir. 1990)
(rejecting argument that “where an industry is primarily engaged in interstate
commerce and would benefit from national uniformity of antitrust law,” the
Cartwright Act is preempted).
CONCLUSION
Qualcomm identifies no abuse of discretion in Judge Koh’s thorough order
assessing the extensive evidentiary record before her and granting class
certification under Rules 23(b)(2) and (b)(3). That order should be affirmed.
73
Dated: August 2, 2019 KALPANA SRINIVASAN

MARC M. SELTZER
STEVEN G. SKLAVER
JOSEPH GRINSTEIN
AMANDA BONN
OLEG ELKHUNOVICH
SUSMAN GODFREY LLP
JOSEPH W. COTCHETT
ADAM ZAPALA
MICHAEL A. MONTAÑO
TAMARAH PREVOST
COTCHETT, PITRE & MCCARTHY,

LLP
By: /s/ Kalpana Srinivasan

Kalpana Srinivasan
Attorneys for Respondents-Plaintiffs
74
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
Form 8. Certificate of Compliance for Briefs
Instructions for this form: http://www.ca9.uscourts.gov/forms/form08instructions.pdf
19-15159
9th Cir. Case Number(s) _____________________________________________
I am the attorney or self-represented party.
15,295
This brief contains _____________ words, excluding the items exempted
by Fed. R. App. P. 32(f). The brief’s type size and typeface comply with Fed. R.
App. P. 32(a)(5) and (6).
I certify that this brief (select only one):
[ ] complies with the word limit of Cir. R. 32-1.
[ ] is a cross-appeal brief and complies with the word limit of Cir. R. 28.1-1.
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Cir. R. 29-2(c)(2), or Cir. R. 29-2(c)(3).
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only one):
[ ] it is a joint brief submitted by separately represented parties;
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Signature _________________________________ August 2, 2019
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(use “s/[typed name]” to sign electronically-filed documents)
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Form 8 75 Rev. 12/01/18
STATEMENT OF RELATED CASES
Counsel for Respondents-Plaintiffs are not aware of any related cases
pending in this Court other than the matter identified by Appellant in its opening
brief, FTC v. Qualcomm Incorporated, No. 19-16122.
Dated: August 2, 2019 By: /s/ Kalpana Srinivasan

Kalpana Srinivasan
Attorneys for Respondents-Plaintiffs
76
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system on August 2, 2019.

Participants in the case who are registered CM/ECF users will be served by
the appellate CM/ECF system.
I further certify that some of the participants in the case are not registered
CM/ECF users. I have mailed the foregoing document by First-Class, postage
prepaid, or have dispatched it to a third-party commercial carrier for delivery
within 3 calendar days to the following non-CM/ECF participants:
Jeremiah F. Hallisey Gwendolyn Giblin

HALLISEY & JOHNSON BERMAN DeVALERIO
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Jason Scott Hartley
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19-08-02 Consumer Class Answering Brief To Qualcomm's Certification Appeal

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Case: 19-15159, 08/02/2019, ID: 11386119, DktEntry: 81, Page 1 of 88

UNITED STATES COURTS OF APPEALS

FOR THE NINTH CIRCUIT

IN RE QUALCOMM ANTITRUST LITIGATION

Appeal from the United States District Court

RESPONDENTS’ ANSWERING BRIEF

Kalpana Srinivasan (237460) Joseph W. Cotchett (36324)

Counsel for Respondents-Plaintiffs

Marc M. Seltzer Adam Zapala

Katherine M. Peaslee Jeffrey D. Friedman

Plaintiffs’ Steering Committee

COUNTERSTATEMENT OF THE CASE ............................................................. 13

I. Judge Koh Did Not Abuse Her Discretion in Finding Common

A. Qualcomm Fails to Show Judge Koh’s Factual Findings

a. Judge Koh Correctly Held Qualcomm’s “Cost

c. Judge Koh Correctly Rejected Qualcomm’s

d. Qualcomm’s New Argument About Different

B. Qualcomm Also Fails to Challenge Three Independent Bases

1. Qualcomm Disregards California’s Presumption of

3. Qualcomm Is Silent on Case-Specific Evidence of

C. Qualcomm’s Mistaken Merits Arguments Concerning Post-

D. The District Court Properly Certified the Injunctive Relief

II. Qualcomm’s Manageability and Due Process Arguments Fail to

A. Individual Class Members’ Damage Claims Do Not Render

B. Qualcomm and Its Amici’s Citation to Off-Point Cases Do

1. California Has a Significant Interest in Fully Deterring

B. Qualcomm Fails to Show that Any Other State’s Interests

a. Constitutional Arguments Have Been Waived and

CERTIFICATE OF COMPLIANCE ....................................................................... 75

Abrams v. Interco Inc.,

AT&T Mobility LLC v. AU Optronics Corp.,

Boardman v. Pacific Seafood Grp.,

Bowerman v. Field Asset Servs., Inc.,

Briseno v. ConAgra Foods, Inc.,

Briseno v. ConAgra Foods, Inc.,

Chamberlan v. Ford Motor Co.,

Chen v. L.A. Truck Centers, LLC,

Clothesrigger, Inc. v. GTE Corp.,

Colman v. Theranos, Inc.,

Comcast Corp. v. Behrend,

Corbett v. Superior Court,

Edwards v. Nat’l Milk Producers Fed’n,

Healey v. Beer Inst., Inc.,

Hilao v. Estate of Marcos,

Hughes Wood Products, Inc. v. Wagner,

Hurtado v. Superior Court,

In re Cathode Ray Tube Antitrust Litigation

In re Cipro Cases I & II,

In re Graphics Processing Units Antitrust Litigation,

In re Hotel Telephone. Charges,

In re MetLife Demutualization Litig.,

In re TFT-LCD (Flat Panel) Antitrust Litig.,

In re Urethane Antitrust Litig.,

Jimenez v. Allstate Ins. Co.,

Just Film v. Buono,

Klaxon Co. v. Stentor Elec. Mfg. Co.,

Knevelbaard Dairies v. Kraft Foods, Inc.,

Leyva v. Medline Indus., Inc.,

Mazza v. Am. Honda Motor. Co., Inc.,

McCann v. Foster Wheeler LLC,

Mullane v. Cent. Hanover Bank & Tr. Co.,

Nguyen v. Nissan N. America,

Pecover v. Electronic Arts Inc.,