19-02-23 Qualcomm Proposed Verdict Form

Case 3:17-cv-00108-GPC-MDD Document 884-9 Filed 02/23/19 PageID.
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Exhibit I
Case 3:17-cv-00108-GPC-MDD Document 884-9 Filed 02/23/19 PageID.100610 Page 2 of
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11 UNITED STATES DISTRICT COURT
12 SOUTHERN DISTRICT OF CALIFORNIA
13
14 IN RE: QUALCOMM LITIGATION No. 3:17-CV-0108-GPC-MDD
15 EXHIBIT I: QUALCOMM
INCORPORATED’S PROPOSED
16 VERDICT FORM WITH
OBJECTIONS
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Judge: Hon. Gonzalo P. Curiel
18 Courtroom: 2D
19 Date: March 28, 2019
Time: 1:30 p.m.
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EXHIBIT I: QUALCOMM’S PROPOSED CASE NO. 3:17-CV-0108-GPC-MDD
VERDICT FORM WITH OBJECTION
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1 Pursuant to the Court’s Trial Preparation and Scheduling Order dated

2 December 19, 2018, Qualcomm, Inc. (“Qualcomm”) respectfully submits this
3 Proposed Verdict Form, which includes questions necessary to resolve all claims
4 that must be decided by the jury.
5 Qualcomm’s Proposed Verdict Form does not include questions regarding
6 claims to be decided by the Court, which are: Apple Counts III (Violation of Cal.
7 Civ. Code § 1671(b)), IV (Declaratory Relief: BCPA) (bullets 2, 3 and 6), LX
8 (Declaratory Relief: STA Assignment Agreement), LXI (Declaratory Relief:
9 SULAs) and LXIII (Violations of the California UCL); and CM Counts IV
10 (Violations of the California UCL), VII (Promissory Estoppel), and XII
11 (Declaration of Unenforceability re: SULAs). Qualcomm will submit Proposed
12 Findings of Fact and Conclusions of Law with respect to these claims in
13 accordance with the schedule to be set by the Court.
14 Qualcomm respectfully reserves its right to modify this Proposed Verdict
15 Form prior to the submission of any verdict form to the jury, including with regard
16 to claims that may be resolved before or during trial.
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28 EXHIBIT I: QUALCOMM’S PROPOSED CASE NO. 3:17-CV-0108-GPC-MDD
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1 Subscriber Unit License Agreements (“SULAs”)

2 Breach of Contract1
3 (See Jury Instructions pages [●]-[●].)
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5 1. On Qualcomm’s and the CMs’ claims against each other for breach of the
6 SULAs, we find in favor of:
7
8 Select one for each row below.
9
10 Qualcomm CMs
11 Select one: _____ Qualcomm _____ Compal
12 Select one: _____ Qualcomm _____ Foxconn
13 Select one: _____ Qualcomm _____ Pegatron
14 Select one: _____ Qualcomm _____ Wistron
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16 For each row as to which you found in favor of Qualcomm, answer
17 Question 2 as to that CM.
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19 If you found in favor of all of the CMs, skip to Question 3.
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21 [Apple and the CMs’ Objections to Question 1: Apple and the CMs
22 object to Qualcomm’s proposed Question 1 on the basis that it does not account for
23 the possibility that the jury could find that neither side carried its burden of
24 proving breach of contract. This problem is aggravated because Qualcomm’s
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Resolves: Qualcomm Counts I, III, V, VII and IX (versus CMs); CM
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Count XI.
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1 proposed verdict form does not include affirmative defenses. For example, the
2 jury could find that one party proved its breach of contract claim but that the
3 defending party had proved an affirmative defense. The structure of this question
4 would incorrectly lead the jury to believe that it would be required to find—and
5 would force the jury to indicate—that the defending party had proved its breach of
6 contract claim and that no affirmative defenses applied.
7 Apple and the CMs also object to the phrasing of the instruction following
8 Question 1, which states: “For each row as to which you found in favor of
9 Qualcomm, answer Question 2 as to that CM.” The instruction is unbalanced and
10 improperly suggests to the jury that it should find in favor of Qualcomm on at least
11 one claim.]
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1 2. We award Qualcomm the following damages against each CM:

2
3 A. Compal: $_______________
4 B. Foxconn: $_______________
5 C. Pegatron: $_______________
6 D. Wistron: $_______________
7 TOTAL: $_______________
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9 Proceed to the next question.
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12 object to Qualcomm’s proposed Question 2 on the basis that it provides for
13 damages against the CMs but not for damages against Qualcomm. If Qualcomm’s
14 and the CMs’ breach of SULA claims are set against each other—and they should
15 not be—the verdict form must account for the possibility that the jury will find for
16 the CMs, and allow the jury to award the CMs damages against Qualcomm.
17 Apple and the CMs also object to the phrasing of Question 2, which asks the
18 jury to award “damages against each CM” but does not specify that those damages
19 must be for breach of a SULA. Given the number of different claims in this case,
20 this vague language could confuse the jury and lead it to award damages based on
21 other causes of action.]
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1 SULAs
2 Tortious Interference 2
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5 3. On Qualcomm’s claim against Apple for tortious interference with one or
6 more of the SULAs, we find in favor of:
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8 Select one: _____ Qualcomm _____ Apple
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10 If you answered “Qualcomm,” answer Question 4.
11 If you answered “Apple,” skip to Question 7.
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13 4. We award Qualcomm the following damages against Apple:
14 $_______________.
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18 [Apple and the CMs’ Objections to Questions 3 and 4: Apple and the
19 CMs object to the structure of Qualcomm’s proposed Questions 3 and 4.
20 Qualcomm alleges Apple interfered with four discrete SULAs—one with each of
21 the four CMs. Separate proof will be required for each SULA: for example,
22 Qualcomm will have to establish that Apple intended to disrupt each individual
23 agreement, or knew disruption was probable. Qualcomm made this point at the
24 summary judgment stage, when it opposed Apple’s statute of limitations argument
25 by asserting (incorrectly) that Apple had failed to provide evidence as to each of
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Resolves: Qualcomm Count I (versus Apple).
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1 the four SULAs. ECF 626 at 5 (challenging Apple’s evidence as to Wistron and
2 Compal). By providing only one line for the jury’s answer on liability and one line
3 for damages, these questions do not account for the possibility that the jury could
4 find liability for one SULA and not others, and could lead the jury to believe that it
5 would be appropriate to award damages based on all four SULAs if it finds
6 tortious interference as to any SULA.
8 jury to award “damages against Apple” but does not specify that those damages
9 must be for tortious interference with a SULA. Given the number of different
10 claims in this case, this vague language could confuse the jury and lead it to award
11 damages based on other causes of action.]
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13 5. Did Apple engage in tortious interference with malice, oppression or fraud?
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15 _____ Yes _____ No
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17 If you answered “Yes,” answer Question 6.
18 If you answered “No,” skip to Question 7.
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20 6. We award Qualcomm the following punitive damages against Apple:
21 $_______________.
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26 CMs object to the inclusion of Qualcomm’s proposed Questions 5 and 6 in the
27 verdict form. Apple objects to instructing the jury on issues related to the amount
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1 of punitive damages prior to any determination of whether Apple is liable for such
2 damages. The jury’s determination of whether punitive damages are appropriate
3 requires consideration of Apple’s financial condition, and for the reasons set forth
4 in Apple’s Motion in Limine, see Apple Inc.’s Motion In Limine No. 5 to Exclude
5 Evidence of Apple’s Wealth, Financial Resources, and Profit Information (ECF
6 No. 861), it would be highly prejudicial to permit the jury to hear this evidence
7 before deciding liability. See Doe v. Rose, 2016 WL 9150617, at *1 (C.D. Cal.
8 July 27, 2016); see also Cal. Civ. Code § 3295(d) (“The court shall, on application
9 of any defendant, preclude the admission of evidence of that defendant s profits or
10 financial condition until after the trier of fact returns a verdict for plaintiff
11 awarding actual damages and finds that a defendant is guilty of malice, oppression,
12 or fraud in accordance with Section 3294.”). These questions should be submitted
13 to the jury only if the jury finds that Apple is liable for tortious interference.
15 jury to award “punitive damages against Apple” but does not specify that those
16 punitive damages must be for tortious interference with a SULA. Given the
17 number of different claims in this case, this vague language could confuse the jury
18 and lead it to award damages based on other causes of action.]
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1 Business Cooperation and Patent Agreement (“BCPA”)

2 Breach of Contract
3 and
4 Breach of the Implied Covenant of
5 Good Faith and Fair Dealing 3
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8 7. On Qualcomm’s and Apple’s claims against each other for breach of the
9 BCPA, we find in favor of:
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11 Select one: _____ Qualcomm _____ Apple _____ Neither, because
no contract was
12 formed
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14 If you answered “Qualcomm,” skip to Question 9.
15 If you answered “Apple,” answer Question 8.
16 If you answered “Neither, because no contract was formed,” skip to
17 Question 10.
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19 [Apple and the CMs’ Objection to Question 7: Apple and the CMs object
20 to Qualcomm’s proposed Question 7 on the basis that it does not account for the
21 possibility that the jury could find that neither side carried its burden of proving
22 breach of contract. This problem is aggravated because Qualcomm’s proposed
23 verdict form does not include affirmative defenses. For example, the jury could
24 find that one party proved its breach of contract claim but that the defending party
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Resolves: Apple Counts I, II and IV (bullets 1, 4, 5, 7 and 8); Qualcomm
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Counts VI , VII and IX (versus Apple).
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1 had proved an affirmative defense. The structure of this question would

2 incorrectly lead the jury to believe that it would be required to find—and would
3 force the jury to indicate—that the defending party had proved its breach of
4 contract claim and that no affirmative defenses applied.]
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8. We award Apple the following damages against Qualcomm:
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$_______________.
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Skip to Question 12.
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2 $_______________.
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4 Skip to Question 12.
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6 [Apple and the CMs’ Objection to Questions 8 and 9: Apple and the
7 CMs object to the phrasing of Qualcomm’s proposed Questions 8 and 9, which ask
8 the jury to award “damages against Qualcomm” and “against Apple,” respectively,
9 but do not specify that those damages must be for breach of the BCPA. Given the
10 number of different claims in this case, this vague language could confuse the jury
11 and lead it to award damages based on other causes of action.]
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1 BCPA
2 Unjust Enrichment 4
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5 10. On Qualcomm’s claim against Apple for unjust enrichment, we find in favor
6 of:
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13 11. We award Qualcomm the following amount against Apple:
14 $_______________.
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18 [Apple and the CMs’ Objection to Question 11: Apple and the CMs
19 object to the phrasing of Qualcomm’s proposed Question 11, which asks the jury
20 to award an “amount against Apple,” but does not specify that the amount must be
21 restitution for unjust enrichment with respect to the BCPA. Given the number of
22 different claims in this case, this vague language could confuse the jury and lead it
23 to award an amount based on other causes of action.]
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Resolves: Qualcomm Count VIII (versus Apple).
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1 February 28, 2013 Statement of Work

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5 12. On Qualcomm’s claim against Apple for breach of the February 28,
6 2013 Statement of Work, we find in favor of:
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14 $_______________.
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20 to award “damages against Apple,” but does not specify that those damages must
21 be for breach of the 2013 Statement of Work. Given the number of different
22 claims in this case, this vague language could confuse the jury and lead it to award
23 damages based on other causes of action.]
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Resolves: Qualcomm Count V (versus Apple).
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1 Master Software Agreements (“MSAs”)

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5 14. On Qualcomm’s claim against the CMs for breach of the CMs’ Master
6 Software Agreements, we find in favor of:
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10 Qualcomm CMs
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22 object to the phrasing of Qualcomm’s proposed Question 14, which refers to
23 Qualcomm’s “claim against the CMs for breach of the CMs’ Master Software
24 Agreements.” Qualcomm has asserted separate causes of action against each of the
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Resolves: Qualcomm Counts II, IV, VI, VIII and IX (versus the CMs).
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1 CMs and each involves separate proof. To avoid potential jury confusion, the
2 question should refer to Qualcomm’s “claims.”
3 Apple and the CMs also object to the phrasing of the instruction below
4 Question 14, which states: “For each row as to which you found in favor of
5 Qualcomm, answer Question 15 as to that CM.” The instruction is unbalanced and
6 improperly suggests to the jury that it should find in favor of Qualcomm on at least
7 one claim.]
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1 15. We award Qualcomm the following damages against each CM:

2
3 A. Compal: $_______________
4 B. Foxconn: $_______________
5 C. Pegatron: $_______________
6 D. Wistron: $_______________
7 TOTAL: $_______________
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13 to award “damages against each CM,” but does not specify that those damages
14 must be for breach of an MSA. Given the number of different claims in this case,
15 this vague language could confuse the jury and lead it to award damages based on
16 other causes of action.]
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1 FRAND Commitments
2 Declaratory Judgment 7
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5 16. On Qualcomm’s claim against Apple that Qualcomm did not violate its
6 FRAND commitments to ETSI with respect to the SULAs, we find in favor
7 of:
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15 to resolve Qualcomm’s claim “that Qualcomm did not violate its FRAND
16 commitments to ETSI with respect to the SULAs.” The question is not specific to
17 the SULAs between Qualcomm and the CMs. The vague phrasing of the question
18 also suggests that the pertinent inquiry concerns Qualcomm’s conduct concerning
19 SULAs rather than the SULAs themselves. In the parties’ Final Pretrial
20 Conference Order, Qualcomm described this claim as seeking a declaration that
21 “each of its license agreements with the CMs, listed below [the SULAs], does not
22 violate Qualcomm’s FRAND commitment to ESTI.” Final Pretrial Conf. Order at
23 38; accord Qualcomm Second Am. Counterclaims ¶¶ 299, 313. Accordingly, a
24 clearer phrasing for this question would be: “On Qualcomm’s claim against Apple
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Resolves: Qualcomm Count II (versus Apple).
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1 that its SULAs with the CMs do not violate Qualcomm’s FRAND commitment to
2 ETSI, we find in favor of:”]
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1 FRAND Commitments
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5 17. On Qualcomm’s claim against Apple that Qualcomm satisfied its FRAND
6 commitments to ETSI with respect to Apple, we find in favor of:
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Resolves: Qualcomm Count IV (versus Apple).
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1 FRAND Commitments
2 Breach of Contract
3 and
4 Breach of the Implied Covenant of
5 Good Faith and Fair Dealing
6 and
7 Waiver 9
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10 18. On the CMs’ claims against Qualcomm that Qualcomm violated its FRAND
11 commitments with respect to the CMs, we find in favor of:
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15 Qualcomm CMs
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Resolves: CM Counts V, VI, VIII and IX.
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2 object to the phrasing of the instruction below Qualcomm’s proposed Question 18,
3 which states: “For each row as to which you found in favor of Qualcomm, answer
4 Question 19 as to that CM.” The instruction is unbalanced and improperly
5 suggests to the jury that it should find in favor of Qualcomm on at least one claim.
6 Apple and the CMs also object to this instruction and the related instruction
7 “If you found in favor of all of the CMs, skip to Question 20” because there is no
8 reason why a finding in favor of a CM on Question 18 should lead the jury to skip
9 Question 19 for that CM. The causes of action resolved by Question 18 and the
10 CMs’ cause of action for negligent misrepresentation are not pleaded in the
11 alternative.]
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1 FRAND Commitments
2 Negligent Misrepresentation 10
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5 19. On the CMs’ claims against Qualcomm for negligent misrepresentation, we
6 find in favor of:
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10 Qualcomm CMs
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Resolves: CM Count X.
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1 Competition Claims
2 Sherman Act § 211
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5 20. On Apple’s and the CMs’ claims against Qualcomm for violations of
6 Sherman Act § 2, we find in favor of:
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10 Qualcomm Apple and the CMs
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21 object to Qualcomm’s proposed Question 20, which combines Apple’s and the
22 CMs’ Sherman Act Section 2 claims. Apple’s and the CMs’ claims differ and will
23 involve separate proof regarding threat of injury and injury, respectively. Because
24 Apple seeks injunctive relief under Section 16 of the Clayton Act, rather than
25 damages under Section 4, it “need only demonstrate a significant threat of injury
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Resolves: Apple Count LXII; CM Count I.
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1 from an impending violation of the antitrust laws or from a contemporary violation

2 likely to occur.” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100,
3 130 (1969); see also Datagate, Inc. v. Hewlett-Packard Co., 941 F.2d 864 (9th Cir.
4 1991). The CMs, on the other hand, are seeking damages and so must show that
5 they incurred an antitrust injury. Glen Holly Entm't, Inc. v. Tektronix, Inc., 343
6 F.3d 1000, 1011 (9th Cir. 2003).]
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2 Sherman Act § 1
3 and
4 Cartwright Act12
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7 21. On the CMs’ claims against Qualcomm for violations of Sherman Act § 1
8 and the Cartwright Act, we find in favor of:
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12 Qualcomm CMs
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22 object to Qualcomm’s proposed Question 21, which combines the CMs’ Sherman
23 Act Section 1 and Cartwright Act claims. While the elements of proof for a per se
24 tying violation under Section 16727 of the Cartwright Act are similar to those
25 required under Sherman Act Section 1, courts are clear that a plaintiff bringing a
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Resolves: CM Counts II and III.
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1 claim under Section 16727 of the Cartwright Act need not establish that “a
2 substantial amount of sale was affected in the tied product,” an element that is
3 otherwise required under Sherman Act Section 1 and Cartwright Act Sections
4 16720 and 16726 tying claims. Morrison v. Viacom, Inc., 61 Cal. Rptr. 2d 544,
5 551 (Cal. Ct. App. 1997) (“Under section 16727, a per se violation is established if
6 either element (2) [defendant’s ‘sufficient economic power in the tying market to
7 coerce the purchase of the tied product’] or (3) [‘a substantial amount of sale was
8 affected in the tied product’] is established along with elements (1) and (4).”
9 (emphasis added)); see also CACI No. 3421 (in setting forth the essential factual
10 elements to prove a Section 16727 violation, describing as optional proof that tie
11 restrained competition for a substantial amount of sales in the tied product).
12 Accordingly, it is possible for the CMs to fail to establish a violation under Section
13 1 of the Sherman Act, and Sections 16720 and 16726 of the Cartwright Act, and
14 yet succeed in establishing a violation under Section 16727 of the Cartwright Act.
15 Combining the CMs’ claims would improperly deprive the jury of the ability to
16 find for the CMs on their Cartwright Act claim alone.]
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4
5 22. On Qualcomm’s claim against Apple that the SULAs do not violate
6 competition law, we find in favor of:
7
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10 Proceed to the next page.
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13 object to Qualcomm’s proposed Question 22, which asks the jury to resolve
14 Qualcomm’s claim “that the SULAs do not violate competition law.” The question
15 is not specific to the SULAs between Qualcomm and the CMs, and goes beyond
16 the scope of the declaration sought by Qualcomm, which is limited to Section 2 of
17 the Sherman Act and California’s Unfair Competition Law. See Final Pretrial
18 Conf. Order at 41; accord Qualcomm Second Am. Counterclaims ¶¶ 316, 328. An
19 accurate, and clearer, phrasing of this question is: “On Qualcomm’s claim against
20 Apple that the SULAs between Qualcomm and the CMs do not violate Section 2 of
21 the Sherman Act or California’s Unfair Competition Law, we find in favor of:”]
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Resolves: Qualcomm Count III (versus Apple).
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1 FRAND and Competition Claim Damages

3
4 If you found in favor of Qualcomm and against each CM in response to
5 Questions 18, 19, 20, and 21, skip to the end of the form, sign and date the
6 form, and return it to Judge Curiel.
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8 If you found in favor of any CM in response to Questions 18, 19, 20, or 21,
9 answer Question 23 as to that CM.
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11 23. We award the CMs the following damages against Qualcomm:
12
13 A. Compal: $_______________
14 B. Foxconn: $_______________
15 C. Pegatron: $_______________
16 D. Wistron: $_______________
17 TOTAL: $_______________
18
19 If you found in favor of any CM as to Questions 20 or 21 (“Competition
20 Claims”), answer Question 24 on the next page as to that CM.
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1 24. For the damages awarded in Question 23, what amount, if any, is attributable
2 to the CMs’ Competition Claims?
3
4 A. Compal: $_______________
5 B. Foxconn: $_______________
6 C. Pegatron: $_______________
7 D. Wistron: $_______________
8 TOTAL: $_______________
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11 CMs object to Qualcomm’s proposed Questions 23 and 24, and to the instructions
12 associated with those questions. The approach taken by Qualcomm—combining
13 the damages inquiries for the CMs’ antitrust and FRAND claims, and then asking
14 the jury to subtract out the damages awarded on the CMs’ antitrust claims—is
15 confusing and unnecessary. It also suggests that an amount of damages awarded
16 on one set of claims cannot also be awarded on another set of claims. That is
17 incorrect. The CMs allege that Qualcomm’s ability to charge above-FRAND
18 rates—and thereby breach its FRAND commitments—by engaging in
19 anticompetitive conduct is an injury of the type the antitrust laws were intended to
20 prevent. As a result, Qualcomm’s above-FRAND royalties are relevant to
21 damages on both the CMs’ FRAND and antitrust claims. The jury should be asked
22 to separately determine damages for the CMs’ FRAND and antitrust claims. The
23 Court can ensure that the CMs do not receive a duplicative award.
24 Apple and the CMs also object to Qualcomm’s approach because it separates
25 the damages inquiry for the CMs’ FRAND claims from the jury’s liability
26 determination on those claims. The better approach would be to ask the jury to
27 determine damages on the CMs’ FRAND claims immediately following the
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1 liability determination on those claims, and to do the same for the CMs’ antitrust
2 claims.]
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4 Sign and date the verdict form and return it to Judge Curiel.
5
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7 _________________________
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9 Date: _________________________
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19-02-23 Qualcomm Proposed Verdict Form

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19-02-23 Qualcomm Proposed Verdict Form

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Case 3:17-cv-00108-GPC-MDD Document 884-9 Filed 02/23/19 PageID.

1 Pursuant to the Court’s Trial Preparation and Scheduling Order dated

1 Subscriber Unit License Agreements (“SULAs”)

1 2. We award Qualcomm the following damages against each CM:

1 Business Cooperation and Patent Agreement (“BCPA”)

1 had proved an affirmative defense. The structure of this question would

1 9. We award Qualcomm the following damages against Apple:

1 February 28, 2013 Statement of Work

1 Master Software Agreements (“MSAs”)

1 15. We award Qualcomm the following damages against each CM:

1 from an impending violation of the antitrust laws or from a contemporary violation

1 FRAND and Competition Claim Damages

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