FTC Files Brief Responding to Qualcomm, DOJ et al.

Here is a link to the Federal Trade Commission's brief in response to Qualcomm's motion for a partial stay pending appeal.  The brief also responds to the arguments raised in the DOJ's filing last week, that Judge Koh's order threatens national security (see here and here).  From the FTC brief:

If Qualcomm and the DOJ contend that any antitrust remedy that diminishes Qualcomm’s corporate profits constitutes an impermissible threat to national security, that argument is misplaced. Congress determined, in enacting the Sherman Act, that competition furthers the public interest . . . .

Moreover, the apparent assertion by DOJ and its supporting declarants that Qualcomm should be shielded from any financial consequences for violating the antitrust laws—as opposed to identifying specific national security concerns with specific provisions of the remedy—is, in essence, an assertion that Qualcomm should be immune from antitrust scrutiny. But antitrust immunity can only be conferred through the processes established by Congress. .  .  . If  legitimate national security objectives require subsidizing Qualcomm, and taxing Qualcomm’s rivals and United States consumers to do so, there are proper political channels for pursuing those objectives. Interference in the judicial resolution of an action to enforce the antitrust laws is not one of them (pp. 23-24).

For further discussion in Law360, see here.