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Novell Asks the 10th Circuit to File Overlength Appeal vs. Microsoft - David Boies and Stuart Singer Are in the House ~pj Updat
Sunday, November 11 2012 @ 12:24 PM EST

Boies Schiller is in the house on behalf of Novell in its appeal against Microsoft in the antitrust case regarding WordPerfect, the firm's name appearing on a new motion asking the US Court of Appeals for the Tenth Circuit for permission to file an overlength appeals brief. Novell asked for 26,500 words. Microsoft did not oppose.

The court said an immediate no the very next day.

They don't know Boies Schiller like we do. One thing you have to say about that firm -- they never give up on a first defeat. The very next day, Novell filed a renewed motion, meaning they probably had it ready already, this time asking for 21,500 or as much as the court might be willing to grant, arguing that without more space, Novell's case would be harmed. Again, Microsoft did not oppose. This time Novell explains a great deal about the position it will be taking in the appeal, and that's how we get to learn about it. It's because this litigation is so complex that Novell believes it requires more space just to bring the court up to speed, both in terms of explaining the facts of the case and the law, because Novell's position is that the judge at the district court level got the law wrong and didn't follow the law of the case, which is, of course, the win that David Boies achieved in 2001. Hence his arrival on the scene.

The judge who granted Microsoft a win on summary judgment, the Hon. Frederick Motz, Novell tells the court in its renewed motion, was wrong in that

"the District Court's test for determining harm to competition in the operating systems market departed markedly (and erroneously) from the test applied in the D.C. Circuit in United States v. Microsoft Corp., 253 F.3d (D.C. Cir. 2001), the law of the case as set as set forth in the District Court’s summary judgment opinion and the Fourth Circuit’s affirmance of the relevant portions of that opinion, see Novell, Inc. v. Microsoft Corp., 699 F. Supp. 2d 730 (D. Md. 2010), aff’d in part, rev’d in part, 429 Fed. App’x 254 (4th Cir. 2011), and the Tenth Circuit’s decision in Multistate Legal Studies, Inc. v. Harcourt Brace Jovanovich Legal & Professional Publications, Inc., 63 F.3d 1540 (10th Cir. 1995). Proper treatment of these legal issues requires an explanation of the tests, how the District Court departed from them, and why those departures were erroneous as a matter of law."
That first case from 2001 was, of course, the victory by David Boies. I get it now, why Novell hired the firm for the appeal of its antitrust case about WordPerfect. He knows more about the law of the case than the judges assigned to hear the appeal, and the judges will realize it. And Stuart Singer, as I've often stated, is extremely skilled at persuasion. He can make you believe that up is down and always was and certainly should be going forward, even if you know better or thought you did. It was he who successfully argued SCO's first appeal, if you recall. The two judges assigned to Novell v. Microsoft, we also now learn, are Judge Paul J. Kelly, Jr. and Judge Neil M. Gorsuch.

The filings:

11/05/2012 - [10016364] - Motion filed by Appellant Novell, Inc. to file an oversize brief 26500 words long. Served on: 11/05/2012. Manner of service: ECF/NDA. [12-4143] JMJ

11/06/2012 - [10016761] - Order filed by Judges Kelly and Gorsuch denying appellant's motion to file over-length filed by Appellant Novell, Inc. Served on 11/06/2012. [12-4143]

11/07/2012 - [10017131] - Motion filed by Appellant Novell, Inc. to file an oversize brief 21500 words long. Served on: 11/07/2012. Manner of service: ECF/NDA. [12-4143] JMJ

Update Nov. 12: Nope. The court has now said no a second time:

11/09/2012 - [10017866] Order filed by Judges Kelly and Gorsuch denying Appellant's Renewed Motion for Leave to File Over-Length Principle Brief. Served on 11/09/2012.

"This matter is before the court on Appellant's Renewed Motion for Leave to File Over-Length Principle Brief. The motion is denied." End update.]

The first request was simple, just basically saying that it was a complicated case, and they needed more space to address everything. After the request was denied, Novell told the court -- and hence us in the peanut gallery -- what the appeal will be focused on, to show the appeals judges all the aspects of the case that will have to be addressed. There is a lot to explain technically, of course, Novell points out, but legally too:

First, this case, which was filed in November 2004 and resulted in extensive fact and expert discovery, presents complicated legal issues pertaining to antitrust law and complex factual issues of a highly technical nature. Specifically this appeal involves the computer software industry and related technical issues that require explanation to properly frame those issues for the Court.
That means we need to have handy the three referenced rulings to understand what they are talking about, so here they are:

The last appeal by Novell was to the US Court of Appeals for the Fourth Circuit, as you'll recall, which means that the new judges in the 10th Circuit are new to the case (yes, the same court that SCO appealed to and where Novell prevailed), and Novell points out that part of the need for more words is that it will have to walk them through all the twists and turns in the case, what Microsoft did to Novell, plus considerable technical information, including explaining what APIs are, and then it lists the following as things it will need to explain to the court:

  • the interaction between the operating systems market and the applications market,
  • the interaction between the two different markets (the operating systems and applications markets), the harm to competition from the elimination of Novell’s products, both as a franchise and as middleware (a technological concept that itself requires significant explanation), to competition in the operating systems market,
  • the relevance of other products discussed in findings of fact from the United States’ case against Microsoft that have collateral estoppel effect in this case, and
  • the importance of the time period at issue in evaluating the harm to competition caused by Microsoft’s conduct.
Why, you may be asking is this appeal going to the 10th Circuit instead of back to the Fourth? Because this case has gone back and forth between Utah and Maryland. Why? Because Microsoft wanted it that way, back in the control of the same judge who has handled a lot of Microsoft antitrust matters. This Novell case began in 2004 in Utah, where Novell wanted it to be tried, then Microsoft successfully got a panel in Maryland to transfer the case to Judge Motz in Maryland, despite Novell's opposition. So to Maryland they went. Then, after Judge Motz tossed out [PDF] most of Novell's case and then all of it on summary judgment, Novell appealed and was granted a new trial, back in Utah.

Oddly, rather than let a Utah judge handled the trial, Judge Motz then decided to commute to Utah to stay with the case and preside over the trial he strongly believed was not needed. Some onlookers, very much including me, thought he favored Microsoft all the way, without much effort to hide his feelings. You can decide for yourself, though, because we have all the trial transcripts beginning here.

Yet the jury deadlocked, with all of them agreeing that Microsoft behaved anticompetitively, but without agreement on whether or not there should be damages paid to Novell, and if so how much. Then, before a new trial with a new jury could be arranged, Microsoft filed a renewed motion for judgment as a matter of law, and Judge Motz once again granted Microsoft a win on summary judgment, with Novell appealing to the 10th Circuit. So here they are, with Novell having to appeal once again, just to get a trial with an resolution without Judge Motz standing in the way.

That's about what it amounts to, as the judge has stuck to this case like a barnacle to a boat's bottom.

I think Novell is right. This case is complicated. Just hitting the highlights, as I have, was complicated, and for sure you can't understand much without reading all the documents I linked to, and that's going to be a lot of words. And there are many, many details I left out. We have been covering this litigation since 2004. Can you believe it? It stands, so far, as a kind of tower of stones in the road, to warn all those passing by that when a judge doesn't understand technology, bad things happen.

Not that I think that was the only problem here.

So, here we are, on the same side as Boies Schiller for the first time in a decade of covering IP litigation on Groklaw (in May we have our 10th anniversary). Yes, it feels weird after the SCO saga to be on the same side, but they are on the right side, in my view, this time, as opposed to in the SCO saga or the Oracle v. Google litigation, so here we both are. The law is funny like that, which is why lawyers almost always get along just fine personally. After a hotly contested hearing, they all go out and have a beer. Yes. Seriously. I won't go that far, but I do think Novell has a much stronger case than the judge allowed them to present to the jury, and his reasoning for tossing a win to Microsoft seemed peculiar to me, to put it as politely as I can.

So, let's take a look at the two Novell motions and the court's initial denial as text.

The first Novell request:

IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

NOVELL, INC.,

Plaintiff – Appellant,

v.

MICROSOFT CORPORATION,

Defendant – Appellee.

_________________

Case No. 12-4143

_________________

On appeal from the United States District Court
For the District of Utah, Central Division

The Honorable Judge J. Frederick Motz
D.C. No. 2:04-CV-01045-JFM

_____________________

APPELLANT’S MOTION FOR LEAVE TO FILE OVERLENGTH
PRINCIPAL BRIEF

__________________

Appellant Novell, Inc. (“Novell”), by and through its undersigned counsel, and pursuant to Federal Rule of Appellate Procedure 27 and Tenth Circuit Rule 28.3, hereby respectfully moves this Court for leave to file an overlength Appellant’s Brief that exceeds the word limitation by 12,500 words. Appellee Microsoft Corporation does not oppose this motion.

There are extraordinary and compelling circumstances in this case that require Novell to file an overlength Appellant’s Brief:

1. First, this case, which was filed in November 2004 and resulted in extensive fact and expert discovery, presents complicated legal issues pertaining to antitrust law and complex factual issues of a highly technical nature. Specifically this appeal involves the computer software industry and related technical issues that require explanation to properly frame those issues for the Court. 2. Novell appeals from the district court’s grant of judgment as a matter of law that questioned the sufficiency of the evidence, and therefore necessarily relies on the voluminous trial record. The parties’ briefing on that motion required several hundred pages of memoranda to argue the relevant issues based on the sizeable record adduced before, during, and after Novell’s nearly two-month trial. 3. During the trial, fifteen fact witnesses and six expert witnesses testified in person, and the parties presented designated portions of more than a dozen deposition transcripts. In combination, this testimony exceeded 5,500 transcript pages. 4. The record also contains several hundred pages of oral argument transcripts related to pre- and post-trial briefing, as well as more than six hundred documentary exhibits admitted into evidence during trial.

2

5. As the above two paragraphs illustrate, the Appendix to Novell’s brief – although not yet finalized – will exceed 6,000 pages. 6. Novell has diligently worked to make its brief as clear and succinct as possible. Further deletions, however, would materially detract from the substance of relevant facts and legal arguments and would result in a brief that is not as helpful to the Court as it could be. Accordingly, Novell submits that to properly appeal the district court’s decision, it should be permitted to file a brief that exceeds the normal word limitation by 12,500 words. 7. For all of these reasons, Novell respectfully seeks leave to file an overlength brief that exceeds the normal 14,000 word limitation by 12,500 words. If granted, Novell’s brief would contain up to, but no more than, 26,500 words.

3

Dated: November 5, 2012

Respectfully submitted,

/s/ Jeffrey M. Johnson
Jerffry M. Johnson
James R. Martin
Miriam R. Vishio
DICKSTEIN SHAPIRO LLP
[address, phone, fax]

R. Bruce Holcomb
ADAMS HOLCOMB LLP
[address, phone, fax]

David Boies
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Stuart H. Singer
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Max D. Wheeler
Maralyn M. English
SNOW, CHRISTENSEN & MARTINEAU
[address, phone, fax]

Samuel C. Kaplan
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Counsel for Appellant Novell, Inc.

4

CERTIFICATE OF SERVICE

I certify that on November 5, 2012, I caused the foregoing APPELLANT’S MOTION FOR LEAVE TO FILE OVERLENGTH PRINCIPAL BRIEF to be served on all parties or their counsel of record through the Court’s CM/ECF system.

/s/ Jeffrey M. Johnson
Jeffrey M. Johnson

The court's brief answer:

FILED
United States Court of Appeals
Tenth Circuit

November 6, 2012

Elisabeth A. Shumaker
Clerk of Court

IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

NOVELL, INC.,

Plaintiff – Appellant,

v.

MICROSOFT CORPORATION,

Defendant – Appellee.

_________________

No. 12-4143
(D.C. No. 2:04-CV-01045-JFM)

_________________

ORDER

________________

Before KELLY and GORSUCH, Circuit Judges.

________________

Appellant’s motion for leave to file over-length principal brief is denied.

Entered for the Court

[signature]

ELISABETH A. SHUMAKER, Clerk

The second try:

IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

NOVELL, INC.,

Plaintiff – Appellant,

v.

MICROSOFT CORPORATION,

Defendant – Appellee.

_________________

Case No. 12-4143

_________________

On appeal from the United States District Court
For the District of Utah, Central Division

The Honorable Judge J. Frederick Motz
D.C. No. 2:04-CV-01045-JFM

_____________________

APPELLANT’S RENEWED MOTION FOR LEAVE TO FILE
OVERLENGTH PRINCIPAL BRIEF

__________________

Appellant Novell, Inc., respectfully submits this renewed motion for leave to file an overlength brief under Federal Rule of Appellate Procedure 27 and Tenth Circuit Rule 28.3. 1 Novell’s initial motion sought an enlargement to 26,500 words, explaining that this case presents “complicated legal issues pertaining to antitrust law and complex factual issues of a highly technical nature.” Novell further

described the length and complexity of the record, including a trial transcript and designated deposition transcripts spanning more than 5,500 pages as well as hundreds of documentary exhibits. On November 6, 2012, the Court denied the requested enlargement. This renewed motion seeks an enlargement of the limitation to 21,500 words and provides additional detail explaining the nature of Novell’s claim, the issues presented, the District Court’s ruling, and why the appeal of the District Court’s ruling necessitates the requested enlargement.

Preliminarily, and as an initial reflection of the complexity of the issues presented by this appeal, Novell’s opposition to Microsoft’s renewed motion for judgment as a matter of law was well over 40,000 words. Excluding sections and arguments that are not present in Novell’s appeal, the opposition was approximately 35,000 words, 8,500 more than the amount requested in Novell’s initial motion. Novell’s opposition, moreover, was written for the benefit of the court that had presided over the trial, whereas this appeal will of course be heard by a panel with no prior familiarity with the facts of the case and the interplay between those complex technological issues and antitrust law. Novell’s initial request for a page enlargement itself thus reflected a considerable narrowing of the issues and arguments for appeal in light of the rules of this Court and its desire to present as focused an appeal as possible.

2

Novell’s brief will assert that the District Court erred both in the legal tests that it applied and as to its conclusion that there was insufficient evidence in the record for a reasonable jury to conclude that Microsoft’s conduct was anti- competitive and caused harm to Novell and to competition in the operating systems market. Novell’s claim is that Microsoft’s anti-competitive conduct willfully maintained its monopoly in the operating systems market in violation of section 2 of the Sherman Act by destroying Novell’s office productivity applications, including the WordPerfect word processor, as a viable competitive threat. Microsoft did so by (1) affirmatively inducing Novell’s reliance on a technology that was part of Microsoft’s Windows 95 operating system known as namespace extension Application Programming Interfaces (“APIs”) in developing its applications for that operating system, (2) withdrawing support and documentation for these APIs nearly one year later for no legitimate competitive reason to disadvantage Novell and competing applications, and (3) deceiving Novell and the Independent Software Vendor community as to its reasons for doing so as an essential part of its strategy.

As the foregoing explanation reflects, this appeal requires the Court to apply a notably technical area of the law to a complicated set of technological and economic facts. Proper explanation of why Microsoft’s conduct was anti-

3

competitive and caused harm to Novell requires Novell to explain, among other things:
  • the nature of this technology,
  • its role in the Windows 95 operating system,
  • how Microsoft induced Novell’s reliance on the technology,
  • how it was to be used by Novell’s products,
  • the absence of any competitive justification for Microsoft’s withdrawal of support for the technology,
  • why the withdrawal of support for the technology and its timing left Novell with no viable competitive options, and
  • the basis for Novell’s claim that Microsoft deceived Novell and the independent software vendor community as to the reasons for the withdrawal.

Subsidiary issues that also must be addressed in light of the District Court’s opinion include, but are not limited to, evidence as to Microsoft’s knowledge of Novell’s activities, and the reasons why there was no basis for concluding that a reasonable jury could only have found that a separate product (known as Quattro Pro) was responsible for the critical delay that eliminated Novell’s ability to compete.

Novell’s brief further must address the District Court’s conclusions as to the harm to competition in the operating systems market caused by Microsoft’s conduct. To address this issue fully, Novell must explain:

4

  • the interaction between the two different markets (the operating systems and applications markets),
  • the harm to competition from the elimination of Novell’s products, both as a franchise and as middleware (a technological concept that itself requires significant explanation), to competition in the operating systems market,
  • the relevance of other products discussed in findings of fact from the United States’ case against Microsoft that have collateral estoppel effect in this case, and
  • the importance of the time period at issue in evaluating the harm to competition caused by Microsoft’s conduct.

In addition to the foregoing factual issues presented by the District Court decision to grant Microsoft’s renewed motion for judgment as a matter of law, the District Court’s opinion additionally presents legal issues as to the tests that it applied in assessing whether Microsoft’s conduct was anti-competitive and caused harm to competition in the operating systems market. Novell contends that Microsoft’s conduct was anti-competitive for several reasons, that the District Court erroneously addressed only two of those reasons, and that the District Court misapplied the tests that it addressed. Each of the bases for asserting that Microsoft’s conduct was anti-competitive requires significant explanation.

Novell additionally contends that the District Court’s test for determining harm to competition in the operating systems market departed markedly (and erroneously) from the test applied by the D.C. Circuit in United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001), the law of the case as set forth in the District

5

Court’s summary judgment opinion and the Fourth Circuit’s affirmance of the relevant portions of that opinion, see Novell, Inc. v. Microsoft Corp., 699 F. Supp. 2d 730 (D. Md. 2010), aff’d in part, rev’d in part, 429 Fed. App’x 254 (4th Cir. 2011), and the Tenth Circuit’s decision in Multistate Legal Studies, Inc. v. Harcourt Brace Jovanovich Legal & Professional Publications, Inc., 63 F.3d 1540 (10th Cir. 1995). Proper treatment of these legal issues requires an explanation of the tests, how the District Court departed from them, and why those departures were erroneous as a matter of law.

In sum, Novell respectfully submits that the number and complexity of the factual and legal issues, together with the size of the record, presents extraordinary and compelling circumstances that justify the requested enlargement. Novell continues to believe that a brief of the length initially requested would be helpful to the Court in evaluating Novell’s claims, but in deference to the Court’s original decision has reduced its requested enlargement to 21,500 words, a level below which, it has reasonably determined, would significantly harm its ability to present its case. In the event that the Court denies this request – which again reflects Novell’s considered and good faith judgment as to what it believes is necessary to present its argument – Novell requests, in the alternative, that the Court grant an enlargement of as close to that amount as possible.

6

Dated: November 7, 2012

Respectfully submitted,

/s/ Jeffrey M. Johnson
Jerffry M. Johnson
James R. Martin
Miriam R. Vishio
DICKSTEIN SHAPIRO LLP
[address, phone, fax]

R. Bruce Holcomb
ADAMS HOLCOMB LLP
[address, phone, fax]

Max D. Wheeler
Maralyn M. English
SNOW, CHRISTENSEN & MARTINEAU
[address, phone, fax]

David Boies
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Stuart H. Singer
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Samuel C. Kaplan
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]

Counsel for Appellant Novell, Inc.

________________
1 Microsoft does not oppose Novell’s renewed motion.

7

CERTIFICATE OF SERVICE

I certify that on November 7, 2012, I caused the foregoing APPELLANT’S RENEWED MOTION FOR LEAVE TO FILE OVERLENGTH PRINCIPAL BRIEF to be served on all parties or their counsel of record through the Court’s CM/ECF system.

/s/ Jeffrey M. Johnson


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