throbber
Case: 21-187 Document: 20 Page: 1 Filed: 09/27/2021
`
`Miscellaneous Docket No. 21-187
`
`
`
`IN THE
`United States Court of Appeals for the Federal Circuit
`
`
`
`
`IN RE APPLE INC.,
`
`Petitioner.
`
`
`
`
`On Petition for Writ of Mandamus to the
`United States District Court for the
`Western District of Texas
`No. 6:21-cv-00926-ADA, Hon. Alan D Albright
`
`
`APPLE INC.’S REPLY IN SUPPORT OF EMERGENCY
`MOTION FOR A STAY OF THE DISTRICT COURT’S
`RE-TRANSFER ORDER PENDING RESOLUTION OF
`MANDAMUS PETITION
`
`
`
`Sean C. Cunningham
`Erin Gibson
`DLA PIPER LLP (US)
`401 B Street, Suite 1700
`San Diego, CA 92101
`
`John M. Guaragna
`DLA PIPER LLP (US)
`303 Colorado Street, Suite 3000
`Austin, TX 78701
`
`Mark D. Fowler
`DLA PIPER LLP (US)
`2000 University Avenue
`East Palo Alto, CA 94303
`
`Melanie L. Bostwick
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`1152 15th Street NW
`Washington, DC 20005
`(202) 339-8400
`
`Edmund R. Hirschfeld
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`51 West 52nd Street
`New York, NY 10019
`
`Melanie R. Hallums
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`2121 Main Street
`Wheeling, WV 26003
`
`Counsel for Petitioner
`
`
`
`

`

`Case: 21-187 Document: 20 Page: 2 Filed: 09/27/2021
`
`TABLE OF CONTENTS
`
`Page
`
`TABLE OF AUTHORITIES ........................................................................ ii
`INTRODUCTION ........................................................................................ 1
`ARGUMENT ................................................................................................ 3
`I.
`Apple’s Stay Motion Is Not Moot. ............................................ 3
`II. The Court Should Stay The District Court’s Re-
`Transfer Order Pending Mandamus Review. ......................... 4
`A. Apple’s petition makes a compelling case for
`mandamus. ....................................................................... 5
`B. Absent a stay, Apple would be irreparably harmed
`by participating in the forthcoming Waco Division
`trial. .................................................................................. 8
`C. A brief stay would not harm Fintiv. ............................. 11
`D. The public interest strongly favors a stay. .................. 12
`CONCLUSION ........................................................................................... 14
`CERTIFICATE OF INTEREST
`CERTIFICATE OF COMPLIANCE
`
`
`i
`
`

`

`Case: 21-187 Document: 20 Page: 3 Filed: 09/27/2021
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`In re Cragar Indus., Inc.,
`706 F.2d 503 (5th Cir. 1983) ................................................................... 5
`Hilton v. Braunskill,
`481 U.S. 770 (1987) ............................................................................. 4, 5
`In re Hulu, LLC,
`--- F. App’x ---, 2021 WL 3278194 (Fed. Cir. Aug. 2, 2021) .................. 8
`In re Intel Corp.,
`841 F. App’x 192 (Fed. Cir. 2020) ............................................... 1, 5, 6, 7
`In re Juniper Networks, Inc.,
`--- F.4th ---, 2021 WL 4343309 (Fed. Cir. Sept. 24, 2021) .................... 8
`In re Lloyd’s Register N. Am., Inc.,
`780 F.3d 283 (5th Cir. 2015) ................................................................... 9
`Nken v. Holder,
`556 U.S. 418 (2009) ....................................................................... 4, 9, 11
`Standard Havens Prods., Inc. v. Gencor Indus., Inc.,
`897 F.2d 511 (Fed. Cir. 1990) ................................................................. 5
`In re Volkswagen of Am., Inc.,
`545 F.3d 304 (5th Cir. 2008) ................................................................... 9
`Statutes
`28 U.S.C. § 1404(a) .......................................................................... 5, 6, 7, 9
`Rules
`Fed. Cir. R. 8(c) ............................................................................................ 3
`
`ii
`
`

`

`Case: 21-187 Document: 20 Page: 4 Filed: 09/27/2021
`
`Other Authorities
`CDC, Domestic Travel During COVID-19,
`https://tinyurl.com/2bj6v8hv (updated Aug. 25, 2021) ....................... 10
`Rhiannon Saegert, Waco region sees highest COVID-19
`hospitalization rate in Texas, Waco Tribune-Herald (Sept.
`17, 2021) ................................................................................................... 9
`
`
`
`iii
`
`

`

`Case: 21-187 Document: 20 Page: 5 Filed: 09/27/2021
`
`INTRODUCTION
`Apple petitioned for mandamus because the district court
`
`impermissibly re-transferred this case to the Waco Division without
`
`statutory authority, directly contravening In re Intel Corp., 841 F. App’x
`
`192 (Fed. Cir. 2020) (“Intel I”). Apple moved for a stay because that
`
`clear abuse of discretion happened on the eve of trial. Without a pause
`
`in district court proceedings, a Waco trial will begin in eight days,
`
`effectively insulating the re-transfer order from this Court’s review.
`
`The Court’s stay authority exists for cases like this. Granting
`
`Apple’s motion will ensure that the Court has time to meaningfully act
`
`on a compelling petition for mandamus relief. It will prevent several
`
`irreparable harms to Apple, including the likely loss of a critical third-
`
`party witness and heightened exposure to COVID-19 during a rushed
`
`move to Waco. A stay will also serve the public’s interest in safety,
`
`proper venue, and conservation of judicial resources. Fintiv,
`
`meanwhile, would suffer no harm from a short delay.
`
`Fintiv’s only answer is a litany of misrepresentations and
`
`unfounded accusations. Its mootness argument is belied by the fact
`
`that the district court ultimately postponed this trial by a single day—
`
`1
`
`

`

`Case: 21-187 Document: 20 Page: 6 Filed: 09/27/2021
`
`certainly not an adequate substitute for a stay from this Court. Fintiv’s
`
`claim of harm misrepresents the proceedings below—where the district
`
`court has not yet decided whether Fintiv can seek injunctive relief—and
`
`contradicts its own President’s deposition testimony about the nature of
`
`Fintiv’s business. See Appx253. Meanwhile, Fintiv’s critique of Apple’s
`
`mandamus petition misreads Intel I and misrepresents Apple’s
`
`exchange with the district court regarding third-party witnesses. Fintiv
`
`discounts the serious risks posed by COVID-19 in an effort to minimize
`
`irreparable harms to both Apple and the broader public. Ultimately,
`
`Fintiv resorts to baseless claims that Apple’s stay request is nothing
`
`more than “gamesmanship.”
`
`All of that is simply an effort to distract from the merits of Apple’s
`
`motion. Once Fintiv’s distortions are set right, every factor of the
`
`governing test squarely favors a stay. This Court should grant the
`
`motion and stay the district court’s re-transfer order until mandamus
`
`proceedings are resolved.
`
`2
`
`

`

`Case: 21-187 Document: 20 Page: 7 Filed: 09/27/2021
`
`ARGUMENT
`
`I.
`
`Apple’s Stay Motion Is Not Moot.
`Fintiv first attempts to distract from the merits of Apple’s motion
`
`by making a baseless mootness argument. Opp. 7-8. Apple sought a
`
`stay in this Court because the district court re-transferred the case from
`
`the Austin Division to the Waco Division less than three weeks before
`
`trial was set to begin on October 4, 2021. Mot. 1, 5. As Apple
`
`explained, that potentially left insufficient time for this Court to resolve
`
`the mandamus petition before trial began in the disputed Waco forum.
`
`Mot. 12-14. Although Apple had also moved for a four-month
`
`continuance or a stay pending mandamus in the district court, it was
`
`“no longer practicable to await a ruling on that motion.” Mot. 1 (citing
`
`Fed. Cir. R. 8(c)).
`
`The district court has now postponed the start of jury selection by
`
`a single day, to October 5, 2021. See Dkt. 17. That slight scheduling
`
`change does not provide the relief Apple seeks here—a stay that
`
`guarantees this Court can resolve the mandamus petition before trial
`
`commences. Yet Fintiv falsely insists that the one-day postponement
`
`“already granted the relief [Apple] sought” from this Court. Opp. 1.
`
`3
`
`

`

`Case: 21-187 Document: 20 Page: 8 Filed: 09/27/2021
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`Fintiv also erroneously asserts that Apple “conceded in its papers” that
`
`the first adjournment to October 12 “would provide sufficient time” for
`
`this Court to resolve mandamus. Opp. 8. That plainly is not true. The
`
`page of Apple’s stay motion that Fintiv cites for support instead
`
`anticipates that a stay to resolve mandamus would need to last at least
`
`“a matter of weeks.” Mot. 14. Apple certainly did not concede that a
`
`single day would suffice.
`
`In short, there is no mootness issue here. As of this filing, jury
`
`selection in Waco is set to begin in just eight days. A stay will allow
`
`this Court to resolve Apple’s mandamus petition before the parties must
`
`travel to Waco to prepare for trial.
`
`II. The Court Should Stay The District Court’s Re-Transfer
`Order Pending Mandamus Review.
`As Apple’s motion demonstrated (at 8-18), all four factors of the
`
`governing test favor a stay: (1) the mandamus petition “has made a
`
`strong showing” on the merits; (2) Apple “will be irreparably injured
`
`absent a stay”; (3) a short delay will not “substantially injure” Fintiv;
`
`and (4) a stay is in “the public interest.” Nken v. Holder, 556 U.S. 418,
`
`425-26 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).
`
`Fintiv’s opposition does not call any of those factors into question.
`
`4
`
`

`

`Case: 21-187 Document: 20 Page: 9 Filed: 09/27/2021
`
`A. Apple’s petition makes a compelling case for
`mandamus.
`Apple’s mandamus petition shows that the district court
`
`committed clear legal error and abused its discretion by re-transferring
`
`this case to Waco. Mot. 9-10; Pet. 14-18. The district court moved the
`
`case without citing, let alone applying, any statutory authority for the
`
`change in forum. Pet. 16-17. This Court has already held that such an
`
`unfounded re-transfer order is improper—and gives rise to a clear and
`
`undisputable right to mandamus relief. Intel I, 841 F. App’x at 194-95.
`
`Apple’s merits case is thus compelling. At the very least, it is
`
`“substantial,” which warrants a stay where—as here—“the other factors
`
`militate in [the] movant’s favor.” Standard Havens Prods., Inc. v.
`
`Gencor Indus., Inc., 897 F.2d 511, 513 (Fed. Cir. 1990) (quoting Hilton,
`
`481 U.S. at 778) (emphasis omitted).
`
`Indeed, the right to mandamus relief is even more plain in this
`
`case because § 1404(a) could not have justified re-transfer even if the
`
`district court had invoked the statute. Mot. 10-12; Pet. 18-26. There is
`
`no dispute that the Fifth Circuit permits re-transfer of a case under
`
`§ 1404(a) only in the narrow circumstance where “unanticipatable post-
`
`transfer events frustrate the original purpose for transfer.” In re
`
`5
`
`

`

`Case: 21-187 Document: 20 Page: 10 Filed: 09/27/2021
`
`Cragar Indus., Inc., 706 F.2d 503, 505 (5th Cir. 1983). No such
`
`frustration occurred here. As Apple’s petition shows, the district court’s
`
`original rationale for transfer has not been affected by the COVID-19
`
`pandemic or its impact on trial practice in the Austin Division
`
`courthouse. Pet. 20. At most, the pandemic has separately given rise to
`
`speculative concerns about court congestion in Austin. Pet. 21. But
`
`that is legally insufficient to alter the § 1404(a) analysis. Pet. 23-25.
`
`Fintiv challenges the strength of Apple’s petition only by
`
`repeating three meritless arguments from its mandamus opposition.
`
`First, Fintiv argues that Intel I is not “even applicable” because the
`
`district court there attempted to re-transfer only the trial, rather than
`
`the entire action. Opp. 10. As Apple’s mandamus reply explains,
`
`however, that is not a relevant difference. Pet. Reply 5. Although Intel
`
`I faulted the district court’s procedural approach, it granted mandamus
`
`primarily because the district court failed to “rely on” § 1404(a) or make
`
`the findings that the statute requires—namely, “that re-transfer would
`
`be for the convenience of the parties or witnesses and in the interest of
`
`justice.” Intel I, 841 F. App’x at 194. The district court repeated that
`
`error here. Pet. Reply 5.
`
`6
`
`

`

`Case: 21-187 Document: 20 Page: 11 Filed: 09/27/2021
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`Second, Fintiv intimates that the district court’s re-transfer order
`
`is sufficiently “supported” by § 1404(a) merely because the parties had
`
`previously invoked the statute in correspondence with the court. Opp.
`
`10. Apple’s mandamus reply shows (at 6) that any such argument fails
`
`under Intel I. The parties there had likewise invoked § 1404(a). Intel I
`
`nonetheless granted mandamus because, just as in this case, the
`
`district court’s order failed to apply the statute. 841 F. App’x at 194.
`
`Third, Fintiv again misrepresents the record in suggesting that
`
`Apple’s petition relies on “facts that it deliberately chose not to provide
`
`the District Court in response to a direct request for the same
`
`information.” Opp. 10. Apple’s mandamus reply demonstrates (at 12-
`
`13) that there was no such non-disclosure. During the hearing on
`
`potential re-transfer, Apple informed the district court that it lacked
`
`ultimate “control” over two third-party witnesses, who would be “coming
`
`voluntarily,” and that “a move to Waco would impact [Apple’s] ability to
`
`get them to trial live.” Appx180. The district court acknowledged that
`
`Apple had “a very valid point” about keeping the trial “in Austin.”
`
`Appx181. It simply asked Apple for “a good faith commitment” that
`
`7
`
`

`

`Case: 21-187 Document: 20 Page: 12 Filed: 09/27/2021
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`both witnesses “would attend in Austin if I kept it in Austin,” Appx181,
`
`which Apple provided, Appx199.
`
`Fintiv now misleadingly suggests that the district court also
`
`requested—and Apple failed to deliver—a further “state[ment]” that
`
`these witnesses “would be less likely to attend trial live if it were held
`
`in the Waco Division.” Opp. 11. But the district court made no such
`
`request. It had already accepted (in keeping with this Court’s binding
`
`precedent) that concerns about attendance in Waco were “very valid”
`
`without a further showing of the witnesses’ unwillingness to attend
`
`there. Appx181; see Pet. Reply 12-13 (citing In re Juniper Networks,
`
`Inc., -- F.4th --, 2021 WL 4343309, at *6 (Fed. Cir. Sept. 24, 2021); In
`
`re Hulu, LLC, --- F. App’x ---, 2021 WL 3278194, at *4 (Fed. Cir. Aug. 2,
`
`2021)). Once more, Fintiv’s accusations of “gamesmanship,” Opp. 11,
`
`are entirely unfounded.
`
`B. Absent a stay, Apple would be irreparably harmed by
`participating in the forthcoming Waco Division trial.
`Apple has also demonstrated that it would suffer irreparable harm
`
`from its compelled participation in the upcoming Waco trial. Mot. 12-
`
`13. Parties and witnesses would suffer the very “inconvenience” that
`
`justified transferring the case to Austin in the first place under
`
`8
`
`

`

`Case: 21-187 Document: 20 Page: 13 Filed: 09/27/2021
`
`§ 1404(a). In re Lloyd’s Register N. Am., Inc., 780 F.3d 283, 289 (5th
`
`Cir. 2015) (quoting In re Volkswagen of Am., Inc., 545 F.3d 304, 319 (5th
`
`Cir. 2008) (en banc)). Among other things, one of Apple’s third-party
`
`witnesses, a prior art inventor who works in California and is willing to
`
`attend trial in Austin, would likely not attend the Waco Division trial.
`
`Mot. 12-13. And Apple’s entire trial team would be forced to undertake
`
`significant additional travel within Texas, heightening their exposure to
`
`COVID-19 at a time when hospital beds are in short supply—
`
`particularly in Waco. See Rhiannon Saegert, Waco region sees highest
`
`COVID-19 hospitalization rate in Texas, Waco Tribune-Herald (Sept.
`
`17, 2021), https://tinyurl.com/4tzfhex8.
`
`Fintiv cannot dispute that these harms could not “be put back in
`
`the bottle.” Lloyd’s, 780 F.3d at 289-90 (quoting Volkswagen, 545 F.3d
`
`at 319). So it resorts to belittling them. Fintiv urges this Court to
`
`discount the prior-art inventor because his refusal to attend the Waco
`
`trial is “likely” rather than absolutely certain. Opp. 12. But certainty
`
`is not the standard. As confirmed by Fintiv’s cited authority, Opp. 12, a
`
`showing of irreparable harm must rise above a mere “possibility.”
`
`Nken, 556 U.S. at 434. Apple’s showing far exceeds that threshold,
`
`9
`
`

`

`Case: 21-187 Document: 20 Page: 14 Filed: 09/27/2021
`
`establishing that the prior-art witness likely will not attend a Waco
`
`trial on safety grounds. Mot. 12-13; Pet. 10-11; Appx199. That is why
`
`the district court found Apple’s concerns about the witness’s attendance
`
`“very valid.” Appx181. Fintiv again misrepresents the record by
`
`suggesting that Apple made “no such” showing before the district court.
`
`Opp. 12.
`
`As for the safety of Apple’s trial team, Fintiv pretends not to
`
`“comprehend” the risk of moving from Austin to Waco for trial. Opp. 13.
`
`But the risk is plain. Every single witness and party representative
`
`will have to travel the hundred extra miles to Waco, whose airport is
`
`not served by out-of-state flights. Appx208. Whatever their means of
`
`travel, the marginal risk of COVID-19 exposure is unquestionable. See,
`
`e.g., CDC, Domestic Travel During COVID-19,
`
`https://tinyurl.com/2bj6v8hv (updated Aug. 25, 2021). Moreover, as the
`
`stay motion explained, Apple has spent months carefully implementing
`
`safety precautions in Austin. Mot. 13; Appx199. Exchanging those
`
`precautions for hastily arranged accommodations in Waco—where
`
`COVID-19 hospitalization rates are the highest in the state, supra 9—
`
`poses obvious and needless health risks. Fintiv does not diminish any
`
`10
`
`

`

`Case: 21-187 Document: 20 Page: 15 Filed: 09/27/2021
`
`of that by noting that previous trials in the Waco Division courthouse
`
`appear to have been conducted safely. Opp. 14. Apple has identified
`
`serious risks from the rushed move to Waco, not the procedures within
`
`the courthouse.
`
`C. A brief stay would not harm Fintiv.
`Conversely, Apple has shown that the requested stay would not
`
`“substantially injure” Fintiv. Nken, 556 U.S. at 426; Mot. 14-15. There
`
`is no dispute that the stay is likely to be brief. Mot. 14. Fintiv does not
`
`dispute that it has already agreed to at least three trial extensions,
`
`undercutting any plausible suggestion of urgency. Mot. 15. And Fintiv
`
`could be compensated for any delay with money damages should it
`
`prevail in this lawsuit, as it does not make or sell products that compete
`
`with Apple. Mot. 14-15.
`
`Fintiv disputes this factor of the stay analysis only in a short
`
`footnote. Opp. 14 n.3. There, Fintiv asserts that it is “an operating
`
`company that competes with Apple” and “seeks injunctive relief in this
`
`action,” such that it “would be significantly prejudiced by a stay.” Id.
`
`Again, Fintiv is misrepresenting the facts. As Apple’s mandamus reply
`
`explains (at 17), Fintiv belatedly sought to add a request for injunctive
`
`11
`
`

`

`Case: 21-187 Document: 20 Page: 16 Filed: 09/27/2021
`
`relief to this case, and the district court has deferred ruling on the
`
`timeliness and merits of that proposed amendment until after trial.
`
`Appx247-250. In any event, Fintiv’s request to seek injunctive relief
`
`was not based on it being an “operating company,” an assertion that
`
`contradicts its President’s sworn testimony, Appx253, but on its desire
`
`to assert and license its patents—an alleged harm that is eminently
`
`reparable by money damages. Appx223-224; Appx240-241.
`
`D. The public interest strongly favors a stay.
`Finally, Apple has demonstrated that the public interest strongly
`
`favors a stay. Mot. 16-18. The district court has found that Austin, but
`
`not Waco, has a local interest in the case—one that may well be
`
`vindicated by mandamus relief. Mot. 17. Further, the infectious nature
`
`of COVID-19 means that the heightened safety risks to the parties’ trial
`
`teams and non-party witnesses from a last-minute move to Waco would
`
`extend to the broader public. Mot. 16. A stay would also advance the
`
`public interest in preserving judicial resources. Mot. 17-18.
`
`Fintiv does not meaningfully dispute any of that. It again asserts
`
`that procedures within the Waco Division courthouse are safe. Opp. 14.
`
`As explained, however, that is beside the point. Supra 10-11. Fintiv
`
`12
`
`

`

`Case: 21-187 Document: 20 Page: 17 Filed: 09/27/2021
`
`also contends, without citation, that the public has a competing interest
`
`in “having matters such as these resolved in a timely fashion.” Opp. 15.
`
`But Fintiv offers no reason why a brief stay would offend such an
`
`interest. Nor does it explain why a generic desire for timely
`
`proceedings would outweigh the public’s specific interest in a short
`
`delay here before proceeding with trial. If anything, Fintiv’s argument
`
`highlights the need for a stay, which would ensure that this Court can
`
`issue a “timely” mandamus decision before, not after, the district court
`
`conducts trial pursuant to the challenged re-transfer order.
`
`Ultimately, Fintiv again resorts to baseless attacks on Apple’s
`
`integrity. It revives the false claim that the district court’s one-day
`
`postponement of jury selection “granted” “the relief here sought.” Opp.
`
`15. And it urges that Apple’s true goal is to “delay the resolution of this
`
`action” through “gamesmanship.” Id. None of that is true. Apple
`
`moved for a stay because the merits of its mandamus petition and the
`
`underlying equities emphatically warrant one. This Court should grant
`
`Apple’s motion for the same reasons.
`
`13
`
`

`

`Case: 21-187 Document: 20 Page: 18 Filed: 09/27/2021
`
`CONCLUSION
`The Court should stay the district court’s re-transfer order
`
`pending resolution of Apple’s mandamus petition.
`
`
`
`
`
`Sean C. Cunningham
`Erin Gibson
`DLA PIPER LLP (US)
`401 B Street, Suite 1700
`San Diego, CA 92101
`
`John M. Guaragna
`DLA PIPER LLP (US)
`303 Colorado Street, Suite 3000
`Austin, TX 78701
`
`Mark D. Fowler
`DLA PIPER LLP (US)
`2000 University Avenue
`East Palo Alto, CA 94303
`
`
`
`Respectfully submitted,
`
`/s/ Melanie L. Bostwick
`Melanie L. Bostwick
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`1152 15th Street NW
`Washington, DC 20005
`(202) 339-8400
`
`Edmund R. Hirschfeld
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`51 West 52nd Street
`New York, NY 10019
`
`Melanie R. Hallums
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`2121 Main Street
`Wheeling, WV 26003
`
`
`Counsel for Petitioner
`
`
`14
`
`

`

`Case: 21-187 Document: 20 Page: 19 Filed: 09/27/2021
`
`FORM 9. Certificate of Interest
`
`UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`
`CERTIFICATE OF INTEREST
`
`
`Form 9 (p. 1)
`July 2020
`
`
`Case Number
`Short Case Caption
`Filing Party/Entity
`
`
`21-187
`
`In re Apple Inc.
`
`Apple Inc.
`
`Instructions: Complete each section of the form. In answering items 2 and 3, be
`specific as to which represented entities the answers apply; lack of specificity may
`result in non-compliance. Please enter only one item per box; attach
`additional pages as needed and check the relevant box. Counsel must
`immediately file an amended Certificate of Interest if information changes. Fed.
`Cir. R. 47.4(b).
`
`
`
`
`
`
`
`I certify the following information and any attached sheets are accurate and
`complete to the best of my knowledge.
`
`
`09/27/2021
`Date: _________________
`
`
`
`
`Signature:
`
`/s/ Melanie L. Bostwick
`
`
`
`
`
`Name:
`
`Melanie L. Bostwick
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
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`

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`Case: 21-187 Document: 20 Page: 20 Filed: 09/27/2021
`
`FORM 9. Certificate of Interest
`
`1. Represented
`Entities.
`Fed. Cir. R. 47.4(a)(1).
`Provide the full names of
`all entities represented
`by undersigned counsel in
`this case.
`
`Form 9 (p. 2)
`July 2020
`
`2. Real Party in
`Interest.
`Fed. Cir. R. 47.4(a)(2).
`Provide the full names of
`all real parties in interest
`for the entities. Do not
`list the real parties if
`they are the same as the
`entities.
`
`3. Parent Corporations
`and Stockholders.
`Fed. Cir. R. 47.4(a)(3).
`Provide the full names of
`all parent corporations
`for the entities and all
`publicly held companies
`that own 10% or more
`stock in the entities.
`
`(cid:1798) None/Not Applicable (cid:1798) None/Not Applicable
`
`✔
`
`✔
`
`Apple Inc.
`
`Additional pages attached
`
`

`

`Case: 21-187 Document: 20 Page: 21 Filed: 09/27/2021
`
`FORM 9. Certificate of Interest
`
`Form 9 (p. 3)
`July 2020
`
`4. Legal Representatives. List all law firms, partners, and associates that (a)
`appeared for the entities in the originating court or agency or (b) are expected to
`appear in this court for the entities. Do not include those who have already
`entered an appearance in this court. Fed. Cir. R. 47.4(a)(4).
`None/Not Applicable
`Additional pages attached
`
`✔
`
`See Attached
`
`5. Related Cases. Provide the case titles and numbers of any case known to be
`pending in this court or any other court or agency that will directly affect or be
`directly affected by this court’s decision in the pending appeal. Do not include the
`originating case number(s) for this case. Fed. Cir. R. 47.4(a)(5). See also Fed. Cir.
`R. 47.5(b).
`None/Not Applicable
`
`Additional pages attached
`
`✔
`
`6. Organizational Victims and Bankruptcy Cases. Provide any information
`required under Fed. R. App. P. 26.1(b) (organizational victims in criminal cases)
`and 26.1(c) (bankruptcy case debtors and trustees). Fed. Cir. R. 47.4(a)(6).
`None/Not Applicable
`Additional pages attached
`
`✔
`
`

`

`Case: 21-187 Document: 20 Page: 22 Filed: 09/27/2021
`
`Attachment
`
`4. Legal Representatives. List all law firms, partners, and associates
`that (a)appeared for the entities in the originating court or agency or (b)
`are expected to appear in this court for the entities. Do not include
`those who have already entered an appearance in this court. Fed. Cir.
`R. 47.4(a)(4).
`Orrick, Herrington & Sutcliffe LLP: Claudia Wilson Frost, Travis
`Jensen, Tyler S. Miller, Jeffrey T. Quilici
`DLA Piper LLP: Paul R. Steadman, Peter Maggiore, Stephanie Lim,
`Zachary Loney
`Kelly Hart & Hallman LLP: John R. Johnson, J. Stephen Ravel
`Gillam & Smith, LLP: Harry Lee Gillam, Jr.
`
`

`

`Case: 21-187 Document: 20 Page: 23 Filed: 09/27/2021
`
`CERTIFICATE OF COMPLIANCE
`
`This reply complies with the type-volume limitation of Federal
`
`Rule of Appellate Procedure 27(d)(2)(C). The reply is printed in Century
`
`Schoolbook 14-point font, and it contains 2575 words, excluding the
`
`items listed in Federal Rule of Appellate Procedure 27(a)(2)(B).
`
`
`
`
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`
`/s/ Melanie L. Bostwick
`Melanie L. Bostwick
`Counsel for Petitioner
`
`
`
`
`
`

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