FAC joins Apple v Samsung appeal to urge disclosure of confidential records filed in court “under seal”

The First  Amendment Coalition has entered into the Apple v. Samsung patent infringement lawsuit in order to advocate for public disclosure of confidential financial records that both Apple and Samsung filed in court under seal.

Apple and Samsung have both appealed an August 9 ruling by the trial court Judge, Lucy Koh, ordering the unsealing of many (but not all) of the sealed records. FAC, a nonprofit organization dedicated to free speech and open-government, filed its motion to intervene in the appeal with the US Court of Appeals for the Federal Circuit, the Washington, DC, appeals court that will decide the validity of Judge Koh’s unsealing order.

The successful effort in the trial court to restrict the parties’ sealing of records was led by Reuters, the news agency. Judge Koh’s unsealing order was the result of Reuters’ motions. Reuters, however,  notified the Court of Appeals that it won’t be filing briefs to oppose Apple’s and Samsung’s appeal of the order.

FAC’s participation in the appeal is therefore crucial to assure that the Court of Appeals’ consideration of the case will include arguments in support of Judge Koh’s order. Without FAC’s presence, the judges will receive only briefs attacking the order. Apple and Samsung, although disagreeing on just about everything else in this case, are in full accord about wanting to maintain total secrecy for their respective financial records.

“The public interest in open and public court proceedings–an interest protected by the first amendment–is especially strong in corporate battles between rival firms over patent rights,” said FAC executive director Peter Scheer. “The outcome of these cases can be highly disruptive, affecting millions of consumers in the prices they pay for smartphones, the functioning of their devices, and the choices they will have in mobile features, services and capabilities.”

“This is not an obscure commercial dispute affecting only two corporate parties and their shareholders,” Scheer said. ” “For better or worse, this is a dispute that will influence the mobile phone industry as directly and profoundly as any act of Congress.”

The jury in the Apple v. Samsung trial, finding that Samsung had infringed six of seven Apple patents for mobile devices, awarded Apple $1.05 billion. Judge Koh recently reduced those damages by roughly one-half. She also ordered a new trial on certain of the infringement claims. i

Judge Koh’s order calls for the unsealing (and release to the public) of business records concerning both Apple’s and Samsung’s costs and profit margins on their respective smartphones, as well as records containing market research information. However, the trial court judge also denied unsealing for other court records containing source codes, information on production capacity, and financial terms for technology license agreements.

“We think Judge Koh’s order is a reasonable and balanced decision that properly weighs both the parties’ interest in confidentiality and the public’s interest in access to records informing the judge’s rulings and the jury’s findings,” said FAC’s Scheer. “If Apple, Samsung and other companies wish to avoid all risk of disclosing competitively sensitive information, they should think twice before using the courts to resolve intellectual property claims against competitors.”

FAC is represented in the Apple v. Samsung appeal by attorneys William Stein and Eric Parnes from the Washington, DC office of Hughes Hubbard & Reed, a national (and international) law firm based in New York City.

Founded in 1989, FAC is a California-based nonprofit corporation tax-exempt under section 501(C)(3) of the federal tax code. FAC provides free legal information services to journalists and others. These include a Legal Hotline, providing one-on-one legal consultations on free speech, freedom of-information and related matters. FAC also files strategic lawsuits against both state and federal government agencies. –PS

FAC’s website: firstamendmentcoalition.org

–Judge Koh’s unsealing order

–FAC’s intervention motion

Peter Scheer, Executive Director
415.886.7081 (direct)

William Stein
Hughes Hubbard & Reed
(202) 721-4650
Eric Parnes
Hughes Hubbard & Reed






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