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I think the only case is GlaxoSmithKline LLC v. Teva Pharmaceuticals USA, Inc., No. 14-cv-878 (Apr. 25, 2018) in the District of Delaware. I carefully reviewed Glaxo's response to the Government's Certiorari Brief. They mentioned a bench trial which would answer the Government's concerns. The forum for that bench trial is the Delaware court noted above. I also think Certiorari denied largely based upon that argument, namely that this bench trial still needs to take place, and may refine or even moot the issues.
Briefing completed over the Summer, oral argument in the Fall, and a decision in either late 2023 or early 2024.
You mean the GSK v. Teva proceedings at the District Court level in California?
The ruling stands for now. But with those lower court proceedings, it is possible for the case to make its way back up the appellate ladder again.
I think this a tremendous boost for Amarin's appeal. Amarin's counsel will most likely attempt to use this precedent as their main weapon in securing a reversal.
This was the process unfolding. There was some attraction for them considering the issue, but at the end of the day, there are still proceedings unfolding at the District Court level, so this case was not really fully ripened for their review. Also, they probably want to allow for further Federal Circuit development on this issue in other cases before they decide to hear the case.
You are correct. The case is not ripe. The SCOTUS almost looks for any excuse not to hear the case. This is not a 100% certainty, but well within the range of outcomes is that the SCOTUS denies Certiorari, and decides to let the issue play out more at the Federal Circuit level. Of course it only takes four votes to grant Certiorari, so if enough of the Justices are zealots for the generics, then they will grant Certiorari.
Obviously the most extreme best case scenario is SCOTUS grants Certiorari and then lays the smack down on the generics. But getting there entails a lot of risk and anxiety. The most realistic best case scenario is Certiorari Denied, and the Federal Circuit ruling remains the law of the land until at some undetermined point, the SCOTUS decides to hear a case on this topic, if ever.
Sleven,
I agree. GSK's lawyers wrote an outstanding Brief. But I think the granting of Cert. went from a coin-flip to it should be Certiorari denied. The reason is that there are Remand proceedings already scheduled with the District Court. The SCOTUS generally does not hear cases that have proverbial dangling participles, which this Remand proceeding appears to be.
Thanks zebra. I have not intention of stopping posting. I stay in my legal lane, and happily keep people here informed to the extent practical.
Zero chance. The only way to even theoretically undo that damage would be a fraud on the court suit, which is a longshot.
lizzy, Paragraph 9 of the Notice of Removal states that Amarin plc is English and Wales corporation with its principal place of business in Ireland, but according to Paragraph 11, Amarin, Inc. is a Delaware corporation with its principal place of business in New Jersey.
Captain, my understanding of the term mirrors yours, but the question is whether "change of control" is a defined term in whatever contractual or governing documents applicable to KM's employment and compensation. It is also possible that there are cases out there defining the term it really should be defined in the applicable documents.
All is good Mr. Stockboy. I appreciate your posts and analysis as well. I hear you on KM, but it is nevertheless important for shareholders to have access to as much information that is available. I have easy access to Federal Court filings on PACER, so it is real easy for me to post the filings here for everyone to see.
Lizzy,
In the Notice of Removal, it plainly states that Amarin plc is a Delaware company with its principal place of business in New Jersey.
It might come into play. But for purposes of jurisdiction, because Amarin's principal place of business is in New Jersey, the NJ courts have jurisdiction over virtually every Amarin matter. It's just whether the case stays in state court, or is removed to federal.
Absolutely. Transparency of information is very important.
Mr. Stockboy, your position is misplaced. The majority of shareholders and others who cruise this Board, are interested in legal matters involving Amarin. Indeed, legal matters are material facts that the Company reports in the 10K. You also must have missed that Number sleven specifically asked for information on the lawsuit.
Thus, most respectfully I will continue to post documents relating to Amarin's litigation as there is a demand for the information and the matters are interesting.
The reason for removal from NJ State Court to NJ Federal Court is a concept known as "diversity jurisdiction". This means that there is diversity of citizenship where the plaintiff, Karim, is a citizen of New York and Amarin GMBH is a citizen of Switzerland, and Amarin is a Delaware corporation with its principal place of business in New Jersey. The Notice of Removal also says that Amarin, plc was fraudulently joined. In any event, because of the diversity of citizenship, there is diversity jurisdiction in the Federal Court.
Yes, the part you quote is potentially a bad fact for Karim and a ripe ground for cross-examination. If Amarin credibly establishes that the Proxy fight was the Proxy fight, heat of battle stuff, but the victors wanted to come together afterward only to be rebuffed by Karim, the jury could penalize Karim as the unreasonable bad guy.
In these types of cases the plaintiff is under an enhanced burden to have clean hands and be perceived as the victim. If both sides are perceived as jerks, the advantage goes to the defense because the plaintiff bears the burden of proof.
So anyone who wants a blow-by-blow behind the scenes look at what happened at Amarin in the aftermath of the proxy fight, Karim's Complaint provides it, at least his perspective. This should generate enough discussion on this Board to last for days, even weeks. I do not understand why Karim's attorneys did not sue Sarissa and the new Board members. Interesting reading nonetheless.
https://drive.google.com/drive/folders/1v8yUXXYu_iDpwCeDDQ29LA44XCWa3YXF?usp=share_link
Most interesting. Screw the article. I found the case on PACER, and will post a Google Drive link to the Complaint which was removed from NJ State Court to Federal Court.
Go to my post #406250 where I discuss the probable timetable for the Appeal.
Hikma moved to dismiss the case in the Delaware court. The Magistrate recommended that the MTD be denied, but Judge Andrews overruled that recommendation and granted Hikma dismissal. The subject of the current Appeal is Amarin's challenge to that dismissal ruling.
Great insight, North. Those credentials are another feather in the cap of the Appeal.
ILT, my take is that the chances of Amarin succeeding on the Appeal need to be analyzed in terms of range of outcomes rather than absolutes. The Stock Twits poster is speaking in terms of an absolute, meaning he is absolutely certain that the Appeal is frivolous and that Rule 36 is forthcoming.
His prediction is certainly within the range of outcomes, especially if Judges Dyk and Reyna preside yet again, but that outcome is far from an absolute certainty. As we discussed last week, Amarin has couple of inherent appellate advantages in this Appeal, namely that the Magistrate got it right, and the standard on a Motion to Dismiss strongly favors denying the Motion while allowing the case to proceed through discovery.
The Magistrate's favorable ruling provides a roadmap for that outcome. Further, appellate review on a Motion to Dismiss is "de novo" as compared to "abuse of discretion". This means that the CAFC Panel need not defer to Judge Andrews, and will engage in its own analysis as to whether the case should have been dismissed.
As to amending the Complaint, Judge Andrews provided Amarin with that opportunity, but Amarin has taken the position that they do not need to amend the Complaint because the facts as pled state a claim, and Judge Andrews got it wrong. So rather than amend, Amarin has chosen to stand on its pleading, and get to the appellate court as soon as they could.
He could, but the chances of that happening are zero, and that might not even be advisable.
While that cannot be clearly and convincingly proven to the point of being actionable at this time, I agree that we cannot completely rule out that some nefarious behind the scenes stuff may be afoot.
Amarin could get treble damages for the resulting lost revenue from the infringement, and injunctive relief ordering anything from the generics being forced to alter their label, or even pulling generic V from the market (I am not saying this will happen, but there are a range of outcomes depending upon many variables). Amarin can also then take such a positive decision, shove it in the insurance companies' face, and advise them that they will be sued for aiding & abetting infringement. This is a big case with a lot of upside for Amarin if it goes well.
Examiner,
I believe that Hikma has 40 days to file their Opposition Brief, and then Amarin has 21 days to file their Reply, which takes us through Memorial Day assuming nobody seeks an extension. Approximately 90 days for calendaring/oral argument which takes us into the Fall of 2023. Then as we have seen, a negative Rule 36 can be issued within as little as 24-48 hours, or the Panel can take several months to issue a decision. So realistically, even if all goes well, Amarin is not looking to return to the District Court until early 2024.
Without specific evidence of foul play, corruption or some other wrongdoing, such efforts are probably not going anywhere. Of course if there was any kind of legitimate evidence (GoFundMe to hire a private investigator?), I would be happy to lead the charge, but realistically it is pure fantasy.
Yes, I definitely think there will be oral argument in this case, which has the potential to be a very watched case as next in the line of GSK v. Teva type cases.
We did destroy them with facts and law, but there was a complete and inexcusable dereliction of duty on the party of the federal judiciary at multiple levels, to do what they are sworn to do, namely adjudicate cases based upon facts and law with an on objectivity and the truth. Utter lawlessness.
Captain,
The options for the CAFC are either to affirm the District Court, or reverse the District Court and remand the case back to the District Court, where Hikma would be directed to file an Answer to Amarin's Complaint, and then the case would proceed to discovery, possible summary judgment, possible settlement talks, possible trial, all the stages of a normal case. Amarin does not have a cross-motion for summary judgment, so the CAFC will not make any reversal ruling other than remanding the case back to the District Court for the case to proceed as outlined above.
Amarin has couple of structural advantages in this Appeal that normal Appellants do not have, and these transcend the underlying merits:
1) The Magistrate Judge ruled in their favor, so instead of having just one lower court Opinion, we actually have a difference of opinion between two judges, giving Amarin the opportunity to parrot the Magistrate Judge and say that she got it right.
2) Motions to Dismiss without the benefit of discovery are generally disfavored and are usually not granted. To prevail, the Court has to conclude that that under no set of facts, does Amarin have a meritorious case against Hikma, and Hikma is entitled to prevail as a matter of law. That is essentially what Judge Andrews concluded.
But there are many cases where the Motion to Dismiss is denied, the parties conduct discovery, and then then case loses on summary judgment or at trial. Heck even in Judge Du's court, she did not grant summary judgment when she had the opportunity to do so. She ruled against Amarin after a full trial.
It is not a heavy bar for Amarin to meet in order for the CAFC to reverse and remand at this stage of the proceeding. Unless of course, Judges Dyk and Reyna preside for a third time, in which case, Rule 36 affirmance will inevitably be forthcoming within 24-48 hours after oral argument.
Never say never Nuke. The whole truth may eventually be uncovered.
My pleasure zebra. I will post the Opposition and Reply Briefs when filed.
Below is my Google Drive link containing Amarin's Opening Brief. The document is 166 pages inclusive of the attachments. I am massively under the gun with deadlines on my own stuff, so I don't have time right now for a deep dive analysis, but at least the Brief is here for all who wish to review it.
https://drive.google.com/file/d/1KBHpJkSWq7y8SsisyMVxP7BWF_C6KGl6/view?usp=share_link
PACER usually updates within 24 hours. If the Brief has not yet posted, some potential reasons could be:
1) The attorneys sought a verbal extension of time from the Clerk's Office;
2) The Brief and Appendix was filed under Seal due to involving Trade Secret or other confidential information.
Overall it is very confusing why the Brief and Appendix would not have yet posted on PACER, given the March 21, 2023 due date.
A confession is not necessary. We established the fraud through clear and convincing evidence. Compare the Cropped Table in Defendants' Proposed Post-trial Findings of Fact and the Cropped Table copied directly into the Court's Opinion with the real Table in the actual Kurabayashi article.
It sticks in my craw too. The ship has completely sailed on any "mistake" argument. The only narrow pathway even theoretically available is a fraud on the court action. But as noted by Bouf and others including myself, whether such a case is practical and would ultimately succeed, is a difficult path at best.
That is 100% accurate. I cannot and will not represent Amarin as that would be a conflict. They would never want me to represent them anyway, as they use lawyers from larger establishment law firms, and I have no such delusions of grandeur.
My Amarin docket is strictly limited to representing shareholders, derivatively on behalf of Amarin or otherwise. I would consider collaborating at arms-length with the new leadership and/or their lawyers if they ever reached out to collaborate on a project that would benefit shareholders, and there is no conflict.
But I do not anticipate such an invitation and harbor no delusions of grandeur.