Qualcomm’s Victory Over FTC Doesn’t Block Class Action: Attorney

Qualcomm Inc.'s recent appeals court victory over the Federal Trade Commission doesn’t preclude some 250 million cell phone purchasers from moving forward as a class, their attorney said.

“Nothing in the FTC decision suggests this case is not suitable for class treatment,” Kalpana Srinivasan of Susman Godfrey LLP said in a Aug. 14 letter to the U.S. Court of Appeals for the Ninth Circuit.

The decision “confirms and does not undermine” the lower court’s determination that facts pertaining to the class predominate over those pertaining to each individual, she said. Whether the case would win on the merits isn’t a consideration in whether it should be a class action at all, she said.

The class, certified in 2018 by Judge Lucy Koh of the U.S. District Court for the Northern District of California, is accusing Qualcomm of stifling competition and raising prices for cell phone headset chips. Koh ruled in both that case and the FTC case that Qualcomm violated antitrust law by inflating the chips’ prices.

The Ninth Circuit Aug. 11 reversed the ruling in the FTC case. Qualcomm’s chip licensing tactics don’t undermine competition, and Koh’s ruling “went beyond the scope” of antitrust law, the appeals court held.

The similarities between the two cases mean a loss for the FTC would “undermine the foundation for antitrust liability” in the class action, Qualcomm told the Ninth Circuit during oral arguments in the consumer case in 2019.

But potential liability has nothing to do with the propriety of certifying a class action, Srinivasan said in her letter to the appeals court. In fact, the appeals court’s findings in the FTC case would apply on a classwide basis if they were made in the consumer case, she said.

The case is Stromberg v. Qualcomm Inc., 9th Cir., No. 19-15159, letter filed 8/14/20.