Credit: Akshdeep Kaur Raked/

Qualcomm is asking the U.S. Court of Appeals for the Ninth Circuit to intervene in the massive antitrust class action certified last month by U.S. District Judge Lucy Koh.

Qualcomm argues in a petition filed Friday that Koh committed multiple errors, including depriving Qualcomm of a hearing before certifying a class of some 250 million cellphone purchasers. “The court’s analysis was deficient in process, reasoning, and result,” Qualcomm states in the petition, which is signed by Keker, Van Nest & Peters partner Robert Van Nest.

Specifically, Van Nest accuses Koh of improperly applying California antitrust law to a nationwide class contrary to Ninth Circuit precedent; relying on a “pass-through” theory that other courts have rejected; and “casually dismiss[ing] the due-process and manageability issues that a class action of this unprecedented magnitude inevitably will entail.”

The stakes are enormous in In re Qualcomm, with the plaintiffs seeking $5 billion. The case being heard in parallel with a Federal Trade Commission antitrust action, also before Koh. Both sets of plaintiffs allege that Qualcomm inflates prices by, among other things, refusing to supply cellphone modem chips to manufacturers who won’t license Qualcomm patents that are essential to meeting wireless industry standards, a practice they call “no license, no chips.”

Plaintiffs also accuse Qualcomm of demanding license fees after their patents are exhausted by an authorized sale, and of entering into deals with Apple that until recently excluded other chip suppliers such as Intel Corp.

Koh is a veteran of high-stakes, high-complexity cases. In addition to presiding over the three Apple v. Samsung trials, Koh also heard the “no poach” antitrust action that settled for more than $400 million. This year, she has been presiding over high-profile data breach class actions involving Yahoo and Anthem.

Retired Judge Jeremy Fogel, who sat in the same Silicon Valley courthouse and later led the Federal Judicial Center, said in an interview Monday that there’s a wide range of preference for oral arguments among district judges. He personally enjoyed argument, and saw motion hearings as a way to learn about cases and as an opportunity to manage them through interactions with counsel.

But other judges feel that litigants should say what they have to say in the briefs. “There are a lot of good judges around the country who rarely hear oral argument on motions, even on summary judgment,” Fogel said.

In general, whether an argument will be scheduled depends on the judge’s philosophy, the nature of the case and the litigants, whether the judge has any doubt about the proper outcome, and time constraints facing the judge, said Fogel, who now heads the Berkeley Judicial Institute. Paradoxically, excellent lawyering sometimes can cut against a hearing. “Sometimes the briefs are so good, some judges may wonder, ‘What am I going to get from a hearing?’” he said. Conversely, it might seem more important to ensure that an unsophisticated litigant feels heard.

It does not appear Koh is going to change her approach, at least in the Qualcomm cases. On Friday, she canceled a hearing that had been scheduled this week on a key FTC motion for partial summary judgment. The FTC is asking Koh to rule as a matter of law that Qualcomm’s commitment to wireless standard bodies that it will license patents on fair and reasonable terms means that it must license its technology to competing modem-chip sellers such as Intel.

The FTC and Qualcomm jointly submitted a motion to Koh on Monday asking her to hold off for a month on the summary judgment ruling while they try to settle the case. Koh denied the motion the same day, indicating a ruling may be imminent.