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Why can't LU say IDCC has the goods for subscriber units but not infrastructure?
While it is rare that I even remotely agree with ams, i will say that it is quite astonishing that after a $250 million "win" (at least currently) and a $50 million Kyocera 3G license, we are basically at the same level we were before Nokia.
If we signed the Agreement on Sept 1, why wait until today to release? And, what's the rationale for almost always releasing this type of news after hours?
Kyocera license for 3G worth $50 million
$20 million paid this quarter
This has absolutely nothing to do with settlement. IDCC wanted to file some exhibits under seal (because it claims they are confidential and/or proprietary) and the Court requires the parties to seek leave to do so. Today, the Court entered an order allowing IDCC to file under seal. That's it.
The case deals with whether the arbitrators decided an issue within the scope of the contract. Again, IDCC cannot even seek punitive damages in this proceeding - they are not available.
There is nothing to indicate that IDCC is seeking punitive damages. Rather, the table of contents shows that IDCC addressed Nokia's arguments point by point. Moreover, punitive damages would not be available in this proceeding. The cite you provided could have been provided by IDCC to support numerous different positions, including basic points like the standard of review.
Looks like the market didn't love the report and is taking us down. Like I said earlier, the new license needs to exist (not be a prospect) before we move up.
while yesterday's guidance might provide a good medium or long-term prospect of a new license, the very near term news is below what the market expected in terms of revenue. WS may very well judge us on today's facts (lower revenue) and move us up only when the prospect of a license becomes the fact of one.
What were the analyst's estimates for 3Q? Did we meet, exceed or fall short?
Has anyone been able to remotely quantify the revenues we will get from Phillips (and, if so, can you break out between short term and recurring). Thanks
There is less than a 2% chance in my opinion that damages will be awarded here. While I think NOkia's arguments are weak, i don't believe they fall within the realm of frivolous and highly doubt that the court will award fees.
The original brief was filed completely under seal, the new version is about 30% filed under seal, with remainder being public. The new brief appears to have sealed only the business information and gives more insight into Nokia's legal arguments.
New Pacer Filings:
Nokia filed a new version of its Memorandum of law that is "less redacted" and contains the patent license agreements.
In my experience, the fact that no hearing is set makes it LESS likely that the Motion will be granted. If the Court were inclined to grant the motion - an order that is subject to immediate appeal since it is a final judgment - it is my belief that the Court would take every step it could to protect the judgment from being reversed. Once such step is to hold a hearing to create a full factual and legal record.
Actually, it's not. Shareholders have no standing to bring such a suit.
Its difficult to tell because so much of the material is redacted. As best I can tell, which is only from the headings, Nokia is trying to argue that the tribunal erroneously interpreted the contract under the guise that it "exceeded its authority." If the panel was empowered to consider the trigger question (which it was), then it did not exceed its authority in ruling on that question. the only thing it might have done is misinterpreted it, but that shouldnt be overruled. All this is difficult to tell, however, without seeing more of Nokia's arguments which are sealed
That's what IDCC says, and the tribunal agreed. The big question is whether that is correct and will withstand the appeal. Nokia says that the Major Competitors clause contains specific triggers of which S/E is NOT one, and that the tribunal was not permitted to read S/E as one.
You're reading it incorrectly. That is the definition of a non-Major Competitor that does NOT compel Nokia to pay a royalty rate. Nokia can choose to select an entity meeting that definition as an MFL, but cannot be compelled (under what's redacted here) to follow the terms of someone who meets those terms but is not a major competitor.
The specific triggers are the major competitors - a term that is not defined for us here.
The big thing that's missing is how the Major Competitor is defined.
the 10Q contains a redacted version of the IDCC/Nokia agreement, has this been available prior to today?
Has anyone made even the remotest guess as to the amount of money this could potentially bring IDCC?
A footnote of the ruling specifically notes that Nokia cannot complain since it waited 2 years to complain based on its thought that S/SE would win.
We can both rationalize a thousand reasons why it might make sense, but I'm quite confident Nokia will fight all payments (2g and 3g) as far and as long as it can.
You are in gambler's debt to me on statements like that. I believe your 0-2 in double or nothings (though, I readily admit I've collected meals plus some). That said, would you care to go double or nothing again that there will be no 2G/3G combined settlement?
The real question...
how much money will we get from Phillips and when? Does the lack of an 8k indicate that it wont be much?
Legal follow up:
Yesterday, I stated my belief that based on the publicly available documents, Nokia is trying to argue that the tribunal interpreted the contract incorrectly under the guise of an argument that the tribual "exceeded its authority." I indicated that there is a clear distinction between the questions of: (1) whether the panel was entitled to consider the trigger question; versus (2) whether the panel correctly decided the trigger question. Nokia's argument seems to fall under (2), which is reviewable only under a manifest disregard of the law standard. One of the cases Nokia cited is a recent Second Circuit case that further elucidates and supports my thought. I am quoting the relevant part below (its from Hoeft v. MVL Group, 343 F.3d 57 (2nd Cir. 2003):
IV. Whether the Arbitrator Exceeded His Powers
[15] [16] An arbitrator exceeds his powers when he "rule[s] on issues not presented to [him] by the parties." See Fahnestock & Co. v. Waltman, 935 F.2d 512, 515 (2d Cir.1991) (citation and quotation marks omitted); 9 U.S.C. § 10(a)(4). Section 10(a)(4) of the FAA "focuses on whether the arbitrator[ ] had the power, based on the parties' submissions or the arbitration agreement, to reach a certain issue, not whether the arbitrator [ ] correctly decided that issue." DiRussa v. Dean Witter Reynolds, Inc., 121 F.3d 818, 824 (2d Cir.1997). MVL contends that the arbitrator exceeded his powers by calculating Primary Year EBITDA in accordance with his understanding of the parties' intent, rather than in accordance with GAAP. The District Court concluded that § 10(a)(4) does not provide a basis for vacatur of the arbitration award because "MVL's contention that Sherrill failed to apply GAAP is best characterized as a challenge to his application of the law, rather than a challenge under Section 10(a)(4)." (Order, Aug. 30, 2002, at 30.)
We agree with the District Court. MVL does not contend that the arbitrator resolved an issue that the parties' agreement did not authorize him to resolve. Indeed, the only issue that he resolved--the calculation of Primary Year EBITDA--was the precise issue that the Amendment authorized him to decide. (Amendment to Stock Purchase Agreement § 1(d); Letter from Sherrill to Morris and Smith of 8/15/01, at 4.) MVL does not argue that the arbitrator decided any issue other than the calculation of EBITDA; rather, MVL argues that he calculated EBITDA incorrectly. Even if MVL is *72 correct, however, that argument provides no basis for vacating the award under § 10(a)(4). See DiRussa, 121 F.3d at 824 ("DiRussa's real objection appears to be that the arbitrators committed an obvious legal error in denying him attorney's fees. Section 10(a)(4) was not intended to apply to such a situation."). Accordingly, the District Court correctly concluded that § 10(a)(4) does not provide a basis for vacating the arbitration award.
Automatic right to appeal to the 2nd circuit. No way to side track that.
Legal thoughts:
For what its worth, here are my views on the publicly available briefs - mainly, Nokia's opposition to IDCC's Motion to Enforce.
Most importantly, based on the public information, it looks like Nokia is trying to force the "exceeded authority" rationale into arguments that really boil down to contract interpretation (which are not subject to review). For example, whether S/E is a trigger is a question of contract interpretation (i.e, whether the contract contemplated or called for S/E to be a trigger). Whether the panel properly interpreted the contract is not reviewable except under the manifest disregard of the law, which I dont believe this falls under. Nokia is attempting to avoid that by saying that the panel "exceeded its authority" in making that finding - it didn't. The panel's authority was to do precisely what it did - interpret the contract.
I think this rationale applies to all of Nokia's arguments. That is, the Tribunal made interpretations that Nokia didn't agree with. That is vastly different from making interpretations it did not have the authority to make. Perhaps a clearer example would be if if the tribunal ruled that IDCC's patents were invalid. That would be outside the tribunal's authority because the question of patent validity was not before the tribunal.
That's the good news. The bad news is two-fold. One, courts are inherently uncertain, so what we think is the right result might not be the result we get (not to mention I am working off limited information since much of what I'd want to see is sealed). Two, and more disturbing, Nokia may be lining up for a protracted process. Even if the district court agrees with IDCC, Nokia has an absolute right to appeal the ruling to the 2nd circuit. Even if that appeal is ruled on quickly, it will likely take at least a year. The only hope we have to prevent this is if Nokia doesn't want to risk a year of interest at 9%.
There is substantive informaiton in NOkia's reply to IDCC's motion but I need to run and dont have time to discuss it. Bascially, S/E is not a major competitor, nor an assignee (I dont have time to explain why its neither). So, Nokia argues that it could not be a triggering event and the panel erred in finding that it was a trigger. This is the biggest concern since it could result in totally eliminating the award..
Nokia's arguments:
The entire substantive portion of Nokia's memo is filed under seal. All that is publicly available are the headings to the sections, the cases cited and the conclusion. The headings say that the panel
exceeded their authority in rewriting the major competitors clause
exceeded their authority in rewriting the sequential tender provisions
exeeded their authority in rewriting the rate setting clause
impermissibly punished Nokia for exercising its right to arbitration; and
exceeded their authority by removing the implied covenant of good faith and fair dealing and the Most Favored Licensee clause from the PLA.
It also says that the award contains "other errors" that increase Nokia's royalty obligations and should be vacated.
The Memorandum of law in support is 25 pages long, and basically argues that the tribunal exceeded its authority in either considering certain clauses to the contract or by ignoring others. It also says it made errors in computing royalties. Need to run
Motion to Vacate is only 1 page and says in relevant part that Nokia will move "On September 19, 2005, at 10:00am or as soon thereafter as counsel can be heard, for an order vacating the arbitral tribunal's award"
Kimball Anderson was the dissenting arbitrator.
The Dissent is attached as an exhibit under seal. All the exhibits are under seal but the ICC rules.
Just got out of a depo and checked PACER and low and behold there it was, the motion to vacate (filed late due to the system being down yesterday). I will comment if I get a chance before heading back out.
PACER for SDNY is back up.
As of now, it shows no filing. But, please do not take that to mean that nothing has been filed. It might take anywhere from 1 minute to several days before it could show up.
If Nokia truly believes that it has a chance to overturn all or part of the award (which is what the publicly filed information tends to show), then I think the next steps are the briefing process on that issue. I would expect a ruling on the first set of briefs by the end of the year, and likely in late October.
I think you continue to ignore the facts stated by IDCC and Nokia. Nokia has told IDCC that it is going to move to vacate and a briefing schedule has already been established. Nothing is going to happen today or thursday except that IDCC will announce its earnings, which we already have a preview of.
I'll never understand.....
this board. People speculate and speculate that Nokia will capitulate on monday and not contest the award. Why are people so willing to ignore the facts. IDCC and Nokia have already jointly said in a court filing that Nokia told IDCC that it "intends on" and "will" contest the award. The parties have jointly filed a report with the court establishing a schedule for briefing the motion to vacate. These are the only facts we know. Is it possible that after years of litigation and adversarial briefs the parties came together in the last few days? Sure. But, anything is possible. The facts show taht the substantial likelihood is a filing on monday. To not disappoint yourselves, be prepared.