XpresSpa Group Inc (XSPA)

[JP33]

Agree, all very strong points / logic. While I am not a lawyer and have not looked at the cases that have been rejected by the CAFC en banc, my guess is many of those who have petitioned for en banc often do so as a hail mary, stall tactic etc, depending on which side of coin you are on.

Thus as this poster has mentioned, simply looking at stats fails to consider the specifics, and odds of an en banc given this very interesting situation.

What would be more interesting to me, is to understand that 1% that was accepted and the type of rationale the CAFC uses in determining its decisions to review.

A real stat which would be impossible to find/determine is of those cases that legitimately had a real rationale for review, how many get an En Banc.

The district courts are still pretty good, so it makes sense that very few cases are reviewed at an en banc level. But it doesn't mean that there was not an error here, so just throwing it into the 1% bucket is a bit of an oversimplification in my view. Safe assumption to avoid disappointement but also potentially overly conservative given the merits.

JMHO