Seventh Circuit Denies Motorola’s Request for En Banc Hearing in FTAIA Litigation
Many of you will recall that on March 27, 2014, the Seventh Circuit issued a long-awaited decision concerning the scope of the Foreign Trade Antitrust Improvements Act (“FTAIA”) in Motorola Mobility v. AU Optronics. The Seventh Circuit held that the higher prices for mobile phones Motorola sold in the United States did not “give rise to” its foreign subsidiaries’ antitrust claims, and that Motorola could not show a “direct” effect on U.S. commerce sufficient to satisfy the FTAIA. Just days after this opinion, Motorola asked for a rehearing. After multiple letters back and forth between the Court, the parties, and the Solicitor General’s Office, on July 1, 2014, the Seventh Circuit vacated its prior opinion. Additional briefing is now underway, and is expected to be completed in October.
On July 9, 2014, Motorola filed a petition for hearing en banc. On July 16 and again on August 26, Motorola sought to conditionally withdraw that petition, explaining that if the Court’s orders “contemplate that the case will now be randomly assigned to a merits panel” Motorola would withdraw its petition for hearing en banc as moot.
On September 2, 2014, the Seventh Circuit denied Motorola’s petition for hearing en banc, explaining that no judge in active service has requested a vote on that petition. (You can read the order here.) Notably, the September 2 Order did not address whether the appeal would be heard by the same panel that issued the March 27 ruling, or would be randomly assigned to a new panel. Motorola has asked that the appeal be decided by a new panel of randomly assigned judges.