Amicus Curiae Brief — Oracle Corporation, Petitioner v. Hewlett-Packard Company

No. 21-1057

IN THE

Supreme Court of the United States

_______________________________

ORACLE CORPORATION,

v.

Petitioner,

HEWLETT-PACKARD COMPANY,

Respondent.

_______________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEAL OF THE STATE OF CALIFORNIA

_______________________________

BRIEF OF THE RUTHERFORD INSTITUTE

AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

_______________________________

John W. Whitehead Karen G. Johnson-McKewan

William E. Winters

Counsel of Record

THE RUTHERFORD

Max Carter-Oberstone

INSTITUTE

ORRICK, HERRINGTON &

109 Deerwood Road

SUTCLIFFE LLP

Charlottesville, VA 405 Howard Street

22911

San Francisco, CA 94105

(415) 773-5700

kjohnson-mckewan@orrick.com

Katherine M. Kopp

ORRICK, HERRINGTON &

SUTCLIFFE LLP

1152 15th Street, NW

Washington, DC 20005

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... ii

INTEREST OF AMICUS CURIAE .......................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ....................................................... 1

ARGUMENT ............................................................. 5

I.

The Question Presented Is Important And

Recurring. ........................................................... 5

A. The question presented is important. .......... 5

1. Litigants in different jurisdictions

enjoy different First Amendment

protections. ............................................... 5

2. The courts’ division on the scope of

Petition Clause immunity will chill

protected speech and lead to forum

shopping. .................................................. 6

B. The question presented is recurring. ......... 10

II. Oracle’s Announcement Is Protected

Under The Petition Clause Because It

Was “Incidental” To Its Notice of Appeal. ....... 11

CONCLUSION ........................................................ 16

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Allied Tube & Conduit Corp. v. Indian

Head, Inc.,

486 U.S. 492 (1988) ..............................................12

Ams. for Prosperity Found. v. Bonta,

141 S. Ct. 2373 (2021)..........................................12

BE&K Constr. Co. v. NLRB,

536 U.S. 516 (2002) .................................. 12, 14, 15

Bhd. of R.R. Trainmen v. Virginia ex

rel. Va. State Bar,

377 U.S. 1 (1964) ..................................................14

Bill Johnson’s Rests., Inc. v. NLRB,

461 U.S. 731 (1983) ..........................................4, 15

Borough of Duryea v. Guarnieri,

564 U.S. 379 (2011) .................................... 2, 11, 12

Buckley v. Valeo,

424 U.S. 1 (1976) ..................................................12

Cal. Motor Transp. Co. v. Trucking

Unlimited,

404 U.S. 508 (1972) ..............................................12

Cardtoons, L.C. v. Major League

Baseball Players Ass’n,

208 F.3d 885 (10th Cir.)...............................3, 9, 11

iii

Columbia Pictures Indus., Inc. v. Pro.

Real Est. Invs., Inc.,

944 F.2d 1525 (9th Cir. 1991)..............................13

Denver Area Educ. Telecomms.

Consortium, Inc. v. FCC,

518 U.S. 727 (1996) ............................................3, 9

Dombrowski v. Pfister,

380 U.S. 479 (1965) ............................................3, 9

Eastern Railroad Presidents Conf. v.

Noerr Motor Freight, Inc.,

365 U.S. 127 (1961) ........................................13, 14

Fla. Prepaid Postsecondary Educ.

Expense Bd. v. College Sav. Bank,

527 U.S. 627 (1999) ................................................8

Gertz v. Robert Welch, Inc.,

418 U.S. 323 (1974) ..............................................15

Lozman v. City of Riviera Beach,

138 S. Ct. 1945 (2018)............................................5

Martin v. Hunter’s Lessee,

14 U.S. (1 Wheat.) 304 (1816) ..............................5

NAACP v. Button,

371 U.S. 415 (1963) ..............................................14

Sosa v. DIRECTV, Inc.,

437 F.3d 923 (9th Cir. 2006)..................................5

TSC Indus., Inc. v. Northway, Inc.,

426 U.S. 438 (1976) ................................................7

iv

United Mine Workers of Am., District 12

v. Illinois State Bar Ass’n,

389 U.S. 217 (1967) ..............................................14

United States v. Koziol,

993 F.3d 1160 (9th Cir. 2021)................................5

Wilson v. Great Am. Indus., Inc.,

661 F. Supp. 1555 (N.D.N.Y. 1987) .......................7

Zippo Mfg. Co. v. Zippo Dot Com, Inc.,

952 F. Supp. 1119 (W.D. Pa. 1997) .......................9

Constitutions, Statutes & Regulations

U.S. Const. amend. I ................................................11

17 C.F.R. § 229.103 .................................................6, 7

Cal. Corp. Code § 1502.1(8) ........................................7

Colo. Rev. Stat. Ann. § 11-51-304(2)(k) ......................7

Kan. Stat. Ann. § 17-12a304(b)(12) ............................8

Okla. Stat. Ann. tit. 63 § 1-852(E)(1) .........................7

Okla. Stat. Ann. tit. 27A § 2-10302(A)(2) .................................................................7

Utah Code Ann. § 61-1-10(2)(k)(ii) .............................8

v

Other Authorities

Brief Amici Curiae of ETW Corp. and

IMG in support of Petition for Writ

of Certiorari, Major League Baseball

Players Ass’n v. Cardtoons, L.C., 531

U.S. 873 (2000) (No. 00-39), 2000

WL 33999839 .........................................................8

Judicial Council of California, 2020

Court Statistics Report: Statewide

Caseload Trends 2009–10 Through

2018–19 (2020) .....................................................10

Leah Chan Grinvald, Policing The

Cease-And-Desist Letter,

49 U.S.F. L. Rev. 411 (2015) ..................................8

Nita Ghei & Francesco Parisi, Adverse

Selection and Moral Hazard in

Forum Shopping: Conflicts Law as

Spontaneous Order,

25 Cardozo L. Rev. 1367 (2004) .............................9

Stephen A. Higginson, A Short History

of the Right to Petition Government

for the Redress of Grievances,

96 Yale L.J. 142 (1986) ........................................12

United States Census Bureau,

QuickFacts California (2021) ..............................10

U.S. Courts, U.S. Courts of Appeals–

Cases Commenced, Terminated, and

Pending by Circuit and Nature of

Proceeding (2020) ...........................................10, 11

vi

U.S. Courts, U.S. District Courts—Civil

Cases Filed, Terminated, and Pending, by Jurisdiction (2021)...................................10

1

INTEREST OF AMICUS CURIAE 1

The Rutherford Institute is an international nonprofit organization headquartered in Charlottesville,

Virginia. Founded in 1982 by its President, John W.

Whitehead, the Institute provides legal assistance at

no charge to individuals whose constitutional rights

have been threatened or violated, and educates the

public about constitutional and human rights issues

affecting their freedoms. The Rutherford Institute

works tirelessly to resist tyranny and threats to freedom by seeking to ensure that the government abides

by the rule of law and is held accountable when it infringes on the rights guaranteed to persons by the

Constitution and laws of the United States. The decision below is inconsistent with the text, history, and

tradition of the Petition Clause. The Rutherford Institute accordingly supports the Petitioner.

INTRODUCTION AND SUMMARY OF

ARGUMENT

When Oracle decided to appeal an adverse ruling

in a closely-watched lawsuit against Hewlett-Packard

Co. (HP), it did what most organizations would do in

a case of this magnitude: It issued a press release. The

press release informed shareholders and other interested members of the public of its intent to appeal,

and briefly detailed the rationale underlying its

1 The parties have consented to the filing of this amicus

brief. No counsel for a party authored the brief in whole or in

part. No party, counsel for a party, or any person other than amicus curiae and their counsel made a monetary contribution intended to fund the preparation or submission of the brief.

2

decision. Pet. App. 22a. Little did Oracle know that

this innocuous act would end up costing it more than

three billion dollars.

At the damages phase of the trial, HP’s expert

opined that Oracle’s press release had contributed to

“uncertainty in the marketplace” that caused HP to

incur $3.014 billion in damages. Pet. App. 81a, 83a,

92a-93a. The jury awarded HP exactly what it asked

for. Pet. App. 29a.

On appeal, Oracle reiterated the objection it had

made below: namely, that the damages award was invalid because it penalized Oracle for exercising its

First Amendment right to petition the courts. Pet.

App. 84a-98a; Borough of Duryea v. Guarnieri, 564

U.S. 379, 387 (2011) (“[T]he Petition Clause protects

the right of individuals to appeal to courts and other

forums established by the government for resolution

of legal disputes.”). And its press release was precisely

the type of activity “incidental” to litigation to which

this Court has historically granted immunity.

The Court of Appeal rejected these arguments. It

acknowledged that Oracle’s prosecution of the appeal

itself was protected under the Petition Clause but

held that its press release—which summarized the

very same facts and arguments being litigated on appeal—was not. Pet. App. 95a.

This holding deepened an extant conflict on the

question of whether the Petition Clause protects litigation-related activity. The decision below reflects the

same conclusion the Tenth Circuit reached when it

held that “when the basis for immunity is the right to

3

petition, purely private threats of litigation are not

protected because there is no petition addressed to the

government.” Cardtoons, L.C. v. Major League

Baseball Players Ass’n, 208 F.3d 885, 893 (10th Cir.

2000) (en banc). This conflicts with the judgment of

the seven other circuit courts to address the issue.

Pet. 13-19.

Resolution of this split is essential to provide litigants clarity regarding their First Amendment rights.

Litigants in different jurisdictions are afforded different First Amendment rights depending on where suit

is filed. This type of “uncertainty may [itself] perniciously chill speech,” as litigants cannot be sure which

speech is protected in which jurisdiction. Denver Area

Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S.

727, 751 (1996) (citing Dombrowski v. Pfister, 380

U.S. 479, 486-87 (1965)). Litigants have many reasons

to speak publicly about litigation efforts, including required securities disclosures, settlement efforts, and

pre-litigation cease-and-desist letters. The California

Court of Appeal’s decision here will chill each of these

categories of speech, because litigants cannot be sure

whether and which statements are protected under

the Petition Clause. The decision will also promote forum shopping, as plaintiffs will prefer jurisdictions

imposing damages for speech that is constitutionally

protected elsewhere.

The decision below is also wrong. This Court has

traditionally extended immunity not only to petitioning activity directed to the government, but also to

private conduct that is related to petitioning. In so doing, it has observed the need to afford the right to petition adequate “breathing space,” the importance of

4

protecting conduct that is “incidental” to the right to

petition, and the imperative to defend against laws

which only “indirectly” encroach on the right. These

varying formulations all communicate the same core

idea: The vitality of the right to petition depends on

courts extending immunity prophylactically to encompass activity that is intertwined with petitioning

conduct. The Court of Appeal’s opinion cannot be

squared with this imperative.

It is also inconsistent with what this Court has

described as a core policy that the right to petition the

courts seeks to vindicate: the “public airing of disputed facts.” Bill Johnson’s Rests., Inc. v. NLRB, 461

U.S. 731, 743 (1983). The “disputed facts” publicized

in the course of litigating the appeal are substantively

identical to the facts detailed in Oracle’s press release. Both are likely to result in the same “marketplace uncertainty.” Yet under the decision below, the

former is immune from liability, while the latter is

not. Such artificial line-drawing finds no support in

this Court’s Petition Clause jurisprudence.

This Court should grant the petition and reverse

the judgment below.

5

ARGUMENT

I.

The Question Presented Is Important And

Recurring.

A. The question presented is important.

1.

Litigants in different jurisdictions

enjoy different First Amendment

protections.

For over two centuries, this Court has emphasized “the importance, and even necessity of uniformity of decisions throughout the whole United

States, upon all subjects within the purview of the

constitution.” Martin v. Hunter’s Lessee, 14 U.S. (1

Wheat.) 304, 347-48 (1816). That is especially true for

the right to petition the government: “one of the most

precious of the liberties safeguarded by the Bill of

Rights.” Lozman v. City of Riviera Beach, 138 S. Ct.

1945, 1954-55 (2018) (citation omitted). But the California Court of Appeal’s decision here directly conflicts with the law of the Ninth Circuit, which holds

that petitioning immunity protects “not only petitions

sent directly to the court in the course of litigation,

but also conduct incidental to the prosecution of the

suit.” Sosa v. DIRECTV, Inc., 437 F.3d 923, 934 (9th

Cir. 2006) (citation omitted); see also United States v.

Koziol, 993 F.3d 1160, 1171 (9th Cir. 2021). California

litigants thus enjoy greater petitioning rights in federal court than in state court.

This constitutional dissonance extends beyond

California. Litigants in the Tenth Circuit are subject

to liability for litigation-related activities that would

be protected in other courts, including every single

other federal court of appeals that has considered the

6

issue. Pet. 13-19 (detailing 7-1 split among the federal

circuit courts). This disuniformity will chill protected

petitioning activity, interfere with laws requiring

public disclosure of legal proceedings, disincentivize

attempts to resolve disputes outside of court, and contribute to rampant forum shopping. Infra 6-10.

2.

The courts’ division on the scope of

Petition Clause immunity will chill

protected speech and lead to forum

shopping.

Parties to a controversy engage in litigation-related activities outside of court all the time, for any

number of reasons. Sometimes those activities are

mandated by law. Sometimes they are ethically appropriate, and sometimes they promote efficiency.

But the rule announced by the California Court of Appeal and the Tenth Circuit will chill every one of these

legitimate and protected forms of speech because of

the risk of liability.

Certain litigants are required by law to announce

an intent to sue or appeal. For instance, publicly

traded companies are subject to the SEC’s periodic filing requirements which must describe any “material”

legal proceedings, including the principal parties,

facts giving rise to the proceeding, and the relief

sought. See 17 C.F.R. § 229.103. But under California

state and Tenth Circuit law, this required disclosure

to shareholders could in fact subject a company to liability. Like the press release at issue here, these disclosures are publicly available and are just as likely

to cause “uncertainty in the marketplace.” Pet. App.

83a. Under the rule announced by the decision below,

7

a public filing mandated by federal law may itself be

a source of liability.

This result is even more troubling when one considers all the important reasons that corporations

may wish to disclose litigation risks. Given this

Court’s capacious interpretation of “materiality,”

companies would be well advised to err on the side of

disclosure and transparency. 2 Yet under the California Court of Appeal’s rule here, litigants are put to a

Hobson’s Choice of whether to violate SEC regulations or expose themselves to liability for obeying

them. And this untenable dynamic is multiplied many

times over by the analogous disclosure laws on the

books in California and the States comprising the

Tenth Circuit. See, e.g., Cal. Corp. Code § 1502.1(8);

Colo. Rev. Stat. Ann. § 11-51-304(2)(k); Okla. Stat.

Ann. tit. 27A § 2-10-302(A)(2); id. 63 § 1-852(E)(1);

2 The SEC’s disclosure laws apply to “material” legal proceedings, which excludes 1) “ordinary routine litigation incidental to the business” and 2) proceedings below a certain

damages threshold. 17 C.F.R. § 229.103(a)-(b). And this Court

has held, in the context of these SEC filings, that “[a]n omitted

fact is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to

vote.” TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449

(1976); see also Wilson v. Great Am. Indus., Inc., 661 F. Supp.

1555, 1564 (N.D.N.Y. 1987), rev’d on other grounds, 855 F.2d 987

(2d Cir. 1988) (damages award was material information of

which shareholders should have been informed, even though it

did not satisfy the statutory damages threshold because “there

was a substantial likelihood that the decision would have been

viewed by the reasonable investor as having altered the ‘total

mix’ of information made available”).

8

Utah Code Ann. § 61-1-10(2)(k)(ii); Kan. Stat. Ann.

§ 17-12a304(b)(12).

The rule announced by the decision below will

also frustrate efforts to resolve disputes outside of

court. Owners of intellectual property rights, for example, traditionally have protected their valuable

rights by sending cease-and-desist letters to alleged

infringers as a preliminary step, before having to resort to litigation. See Fla. Prepaid Postsecondary

Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627,

654 n.5 (1999) (Stevens, J., dissenting) (noting that

“‘[t]he first step in enforcing a patent is usually to

send a cease-and-desist or charge-of-infringement letter’”). In many instances, such letters result in an amicable resolution of the matter. 3 And even if those

letters do not result in settlement, they often lead to

information that helps to narrow the claims or

properly identify the appropriate infringer. This process economizes both judicial and litigant resources

by ensuring that litigation is a last, rather than a first

resort.

3 See, e.g., Leah Chan Grinvald, Policing The Cease-AndDesist Letter, 49 U.S.F. L. Rev. 411, 417 (2015) (observing that

“of fifty-eight experienced intellectual property lawyers … almost all conducted their dispute resolution by using cease-anddesist letters, which typically resulted in a privately negotiated

settlement,” and a large portion “had never brought a trademark

or copyright case to trial over the course of their careers.”); Brief

Amici Curiae of ETW Corp. and IMG in support of Petition for

Writ of Certiorari, Major League Baseball Players Ass’n v.

Cardtoons, L.C., 531 U.S. 873 (2000) (No. 00-39), 2000 WL

33999839, at *7 (amici sent over 100 cease-and-desist letters per

year in the three years before the Tenth Circuit’s decision, with

“a settlement success rate of over 99%”).

9

But by withdrawing First Amendment protections for activities that are incidental to litigation, the

decisions of the California Court of Appeal and the

Tenth Circuit have created great uncertainty about

whether these standard pre-litigation practices are

still viable. Cardtoons, L.C. v. Major League Baseball

Players Ass’n, 208 F.3d 885, 894 (10th Cir. 2000) (en

banc) (Lucero, J., dissenting). This type of “uncertainty may [itself] perniciously chill speech.” Denver

Area Educ. Telecomms. Consortium, Inc. v. FCC, 518

U.S. 727, 751 (1996) (citing Dombrowski v. Pfister,

380 U.S. 479, 486-87 (1965)). Litigants necessarily

will hesitate to send cease-and-desist letters, even

though they are unquestionably reasonable, because

they could lead to a tort claim. Under these circumstances, the result may well be a policy that amounts

to “sue first, talk later.”

Another result of the conflict of authority on the

question presented is the promotion of forum shopping. Given the choice between suing in federal court

in California, which immunizes activity incidental to

litigation, and California state court, which allows

damages based on that very same activity, the choice

is clear. See, e.g., Nita Ghei & Francesco Parisi, Adverse Selection and Moral Hazard in Forum Shopping: Conflicts Law as Spontaneous Order, 25

Cardozo L. Rev. 1367, 1372 (2004) (“plaintiffs will

generally seek to file claims in jurisdictions where the

expected net gain is the largest”).

Moreover, the Internet and other methods of

scalability have expanded the scope of personal jurisdiction over many corporate defendants. See Zippo

Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119

10

(W.D. Pa. 1997). Under the California Court of Appeal’s and Tenth Circuit’s holdings, every communication or action routinely taken in connection with

litigation—settlement discussions, claim investigations, and witness interviews, not to mention any activity that can be interpreted as publicizing one’s

litigation efforts—can subject a litigant to a retaliatory suit in a jurisdiction that does not consider those

activities to be protected under the First Amendment.

B. The question presented is recurring.

The impact of the split over the scope of the Petition Clause is significant. The California state courts

serve nearly 12% of the country’s population. 4 The

California Courts of Appeal receive roughly 6,000 notices of appeal in civil cases each year. 5 More than

10,000 civil suits were initiated in federal district

court in the Tenth Circuit during the 12-month period

ending September 30, 2021. 6 And over 600 civil

United States Census Bureau, QuickFacts California

(2021), https://www.census.gov/quickfacts/CA.

4

5 Judicial Council of California, 2020 Court Statistics

Report: Statewide Caseload Trends 2009–10 Through 2018–19 at

39 (2020), https://www.courts.ca.gov/documents/2020-CourtStatistics-Report.pdf. By comparison, during the 12-month

period ending March 31, 2020, a total of 12,519 in the “Other

Private Civil” category were commenced in the U.S. Courts of

Appeals. U.S. Courts, U.S. Courts of Appeals–Cases Commenced,

Terminated, and Pending by Circuit and Nature of Proceeding

(2020), https://www.uscourts.gov/file/28127/download (Federal

Judicial Caseload Statistics).

6 U.S. Courts, U.S. District Courts—Civil Cases Filed, Ter-

minated,

and

Pending,

by

Jurisdiction

(2021),

11

appeals were lodged with the Tenth Circuit Court of

Appeals during that same period. 7 Every one of these

thousands of litigants operates under a cloud of uncertainty as to which of their litigation-related activities may later be the subject of liability.

This is also not the first time this Court has been

asked to review this issue. The Major League Baseball

Players Association petitioned for review of the Tenth

Circuit’s Cardtoons decision. The Court denied review. 531 U.S. 873 (2000). Since then, the circuit split

has only become more pronounced, with three additional circuits opposing the Tenth Circuit’s holding in

Cardtoons. With eight circuit courts and one state appellate court having weighed in, no additional percolation is necessary. The question presented is ripe for

review.

II. Oracle’s Announcement Is Protected Under

The Petition Clause Because It Was

“Incidental” To Its Notice of Appeal.

The Petition Clause of the First Amendment

guarantees the right of every person to petition the

government for redress of grievances. U.S. Const.

amend. I. This right has a nearly millennia-long pedigree, traceable to the “Magna Carta, which confirmed

the right of barons to petition the King.” Borough of

https://www.uscourts.gov/statistics/table/c-1/judicial-business/2021/09/30.

7 U.S. Courts, U.S. Courts of Appeals—Cases Commenced,

Terminated, and Pending by Circuit and Nature of Proceeding

(2020), https://www.uscourts.gov/file/28127/download (Federal

Judicial Caseload Statistics).

12

Duryea v. Guarnieri, 564 U.S. 379, 395 (2011). The

right became more important with time. In the prerevolutionary era, for example, “the primary responsibility of colonial assemblies was the settlement of

private disputes raised by petitions.” Stephen A. Higginson, A Short History of the Right to Petition Government for the Redress of Grievances, 96 Yale L.J.

142, 145 (1986). Today, “the right to petition extends

to all departments of the Government,” and therefore

encompasses a “right of access to the courts.” Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508,

510 (1972); Guarnieri, 564 U.S. at 387 (Petition

Clause “protects the right of individuals to appeal to

courts and other forums established by the government for resolution of legal disputes.”).

To give this right meaning and effect, those who

petition the government are generally immune from

statutory liability stemming from their petitioning activity. BE&K Constr. Co. v. NLRB, 536 U.S. 516, 525

(2002). But this immunity is not narrowly circumscribed to the petitioning conduct itself. Like all other

First Amendment rights, its vitality depends upon

courts extending protection to activity that is peripheral to the constitutional right. See Buckley v. Valeo,

424 U.S. 1, 17-18 (1976) (conduct may not be regulated where it is “intertwined with” or “integral to”

speech). Such prophylactic immunity is necessary “because First Amendment freedoms need breathing

space to survive,” lest they be “chilled” by overzealous

regulation. Ams. for Prosperity Found. v. Bonta, 141

S. Ct. 2373, 2384 (2021). In practice, this means that

conduct “incidental” to petitioning the courts is also

immune from liability. Allied Tube & Conduit Corp.

v. Indian Head, Inc., 486 U.S. 492, 502 (1988). So, for

13

example, the “decision to accept or reject an offer of

settlement,” which takes place outside of court, “is

conduct incidental to the prosecution of the [law]suit

and not a separate and distinct activity which might

form the basis for … liability.” Columbia Pictures Indus., Inc. v. Pro. Real Est. Invs., Inc., 944 F.2d 1525,

1528 (9th Cir. 1991), aff’d, 508 U.S. 49 (1993).

In this case, Oracle’s press release announcing its

decision to file an appeal is likewise incidental to its

prosecution of the appeal itself. Litigants routinely issue announcements that apprise interested members

of the public of developments taking place in active

litigation. While such announcements, like settlement negotiations, do not appear as judicial docket

entries, they are commonplace in litigation, and

therefore fall within the penumbral immunity afforded to conduct that is “incidental” to the litigation

of the underlying suit.

In Eastern Railroad Presidents Conference v.

Noerr Motor Freight, Inc., the first case to define the

contours of Petition Clause immunity, the Court extended immunity to activity that was incidental to the

core right of petition. 365 U.S. 127 (1961). It held that

a railroad association was immune from liability not

only for efforts to directly lobby elected officials, but

that its related publicity campaign—a robust and professionally-managed operation that included “[c]irculars, speeches, newspaper articles, editorials,

magazine articles, memoranda, and … other documents” (id. at 142)—was also entitled to the same immunity despite being directed at the general public

rather than the government. Id. at 138-45. There is

no reason to reach a different result as to Oracle’s

14

more modest efforts to inform the public of its intent

to appeal.

Oracle’s press release is far more integral to the

right to petition than other litigation-related activity

that this Court has immunized. Take United Mine

Workers of Am., District 12 v. Illinois State Bar Ass’n,

in which the Illinois Supreme Court held unlawful an

arrangement by which a union hired an attorney to

represent its members in workers’ compensation

claims. 389 U.S. 217, 218-19 (1967). This Court reversed, reasoning that such an outcome would unduly

impinge on the members’ right to petition the courts.

In so holding, it rejected the contention that the members’ right to petition was not violated because they

were still free to access the courts by hiring their own

attorneys. The Petition Clause, this Court explained,

“would … be a hollow promise” if its “guarantees”

could be “erode[d]” by such “indirect restraints.” Id. at

222. 8

The Court has also relied on the First Amendment

principle of “breathing space” in broadly construing

the scope of petitioning immunity. BE&K, 536 U.S. at

531. “[O]bjectively baseless” lawsuits, for example,

may be afforded immunity even though they “advance

no First Amendment interests of their own.” Id.; see

also Noerr, 365 U.S. at 140, 142, 145 (Petition Clause

protects publicity campaign employing “vicious” and

8 United Mine Workers is just one among a line of cases affording immunity from laws that indirectly affect the right to

petition by regulating various aspects of the attorney-client relationship. See Bhd. of R.R. Trainmen v. Virginia ex rel. Va. State

Bar, 377 U.S. 1 (1964); NAACP v. Button, 371 U.S. 415 (1963).

15

“reprehensible” tactics that “fall[] far short of the ethical standards generally approved in this country”).

Such prophylactic immunity, or “breathing space,” is

necessary to ensure the vitality of the right to access

the courts. Cf. Gertz v. Robert Welch, Inc., 418 U.S.

323, 341 (1974) (“The First Amendment requires that

we protect some falsehood in order to protect speech

that matters.”). If certain forms of unworthy petitioning must be granted immunity in order to afford the

right the “‘breathing space’ essential to [its] fruitful

exercise,” then surely Oracle’s entirely truthful announcement of its intent to appeal must be deserving

of protection. BE&K, 536 U.S. at 531.

Conferring immunity on Oracle’s announcement

also advances the policy at the core of the right to petition the courts. In this case, HP was awarded damages stemming from the public’s appraisal of Oracle’s

announced intent to appeal. Yet this claimed “injury”

is the very policy outcome that the Petition Clause

seeks to advance: The “public airing of disputed facts”

has long been recognized as a principal “[F]irst

[A]mendment interest” that is derived from unfettered access to the courts. Bill Johnson’s Rests., Inc.

v. NLRB, 461 U.S. 731, 743 (1983). Oracle’s announcement, which stated the factual and legal basis

for its disagreement with the trial court’s order (Pet.

App. 22a), advanced this important constitutional interest. Yet according to the decision below, the “public

airing of disputed facts” found in Oracle’s appellate

briefing is constitutionally protected, while the preappeal announcement describing those same facts

may be the source of liability. Such a cramped and

formalistic interpretation of the Petition Clause is inconsistent with the policies that the right seeks to

16

vindicate and cannot be squared with this Court’s

broad and prophylactic application of immunity. 9

CONCLUSION

For the foregoing reasons, the Court should grant

the petition and reverse the judgment of the California Court of Appeal.

Respectfully submitted,

John W. Whitehead Karen G. Johnson-McKewan

William E. Winters

Counsel of Record

THE RUTHERFORD

Max Carter-Oberstone

INSTITUTE

ORRICK, HERRINGTON &

109 Deerwood Road

SUTCLIFFE LLP

Charlottesville, VA 405 Howard Street

22911

San Francisco, CA 94105

kjohnson-mckewan@orrick.com

Katherine M. Kopp

ORRICK, HERRINGTON &

SUTCLIFFE LLP

1152 15th Street, NW

Washington, DC 20005

March 2, 2022

9 Equally unmoored from this Court’s precedents is the

Court of Appeal’s alternative holding that the entire damages

award should be affirmed even if a portion of it is attributable to

First Amendment protected activity. Pet. 24-26.