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mojine - I gave up on yahoo after submitting numerous complaints and even a complaint directly to customer care and I received a pro forma letter from Gidgit obviously computer generated; hence I moved to investor village[investorvillage.com] where the old format is functioning with links to yahoo and the raging bull - the investor is able to access quickly 3 message boards for a stock by clicking on the links; there are also many other advantageous features .i.e. sticter posting rules so the yahoo rants are not there; whole boards have migrated as the NBIX longs and CKCM and ELN and others; actually the ease of using the board makes it more analogous to investor heaven. Plus I still have the I-Hub; I rarely even visit the yahoo INSM board anymore.
Is there a definite date set in August for earnings announcement? thanks
coinstarz - I always appreciate your close on your messages - peace - thanks - I receive that from heaven's gates. - Parents
From the time of the filing of TRCA's unfair business practice case in CA, it is likely that INSM's attorneys instructed INSM's salesforce with specific guidlines for marketing; if this is true and the salesforce adhered to the guidelines, then res judicata will prevail on all claims that could have been filed by TRCA in CA as well as the specific complaints TRCA filed. I believe there is little chance a new "violation" of the Lanham Act has occurred. The new suit probably involves claims TRCA should have filed in CA in the first place and thus are still barred; I expect the same outcome in VIRGINIA as in CA; just my view.
Thanks to all for your appreciation for my posts regarding the litigation; I really rely on this board for the science and appreciate all your helpfulness and also in keeping current with the latest events. Many thanks to abharploonta for his insights.
rfoable1 - glad to see you here; actually I post very little on the Yahoo MB except on occassion I tease the shorts or bashers; it is a zoo out there. Actually I have been posting my litigation perspective on the TRCA MB; more reasonable posts there because the TRCA longs have virtually vacated; that is why I cannot understand the rise in TRCA pps. Does anyone have insight regarding this? Regards Parents
yes - I missed it with my first poll; who will get to 2 first is the question; we need some good news or PR to get there and I believe we will have it soon.
now only 3.08 for TRCA; I always wondered who would reach 3 first; now it appears TRCA will. Any updates on the case in Virginia; thanks
http://trimurl.com/6FO
Someone on the yahoo MB had the site.
I recall that I became a member of this board by a web address of turley??? this long would like to be a member of this board; thanks
can anyone give me the link so that a new INSM long from the Elan board can apply to the I-Hub to view this wealth of information here; the screen name is concourier on the Yahoo MB. Thanks
rstor1 - could you give me the link to the I-Hub where a new INSM long from Elan can apply?; he would really like to see the wealth of information here? thanks The screen name on the Yahoo INSM MB is concourier; thank you again.
jellybean -one more comment re the letters you asked about; I served on the Dallas Court of Appeals years ago and learned how things work behind the bench; the process is similar to a Federal Court because each Federal Judge has one or more briefing attorneys. Now I believe the briefing attorneys saw the contents of the letters to determine if amending the pleadings would cure the defects or if a dimissal without prejudice would permit a timely refiling that would include the letters. It is probable that the letters did not present evidence of a Lanham Act violation. This was my sense as I read the opinion: in essence the Court was saying TRCA, you are not even a CA corporation and what are you doing here suing a defendant who is from another state on a meritless claim. I did detect a note of hostility against TRCA's case and it is probable that attorneys fees and certainly court costs will be awarded that were incurred in connection with the litigation. Just my gut view of the matter
jellybean - I know you did not address this question to me; I tried to answer this specific question in a prior post, but I do not know how any person can evaluate the letters as "advertisement under the Lanham Act" without viewing the letters' content. I am sorry the other person did not give you an opinion. But I am sure both sides, TRCA and INSM, will argue opposite views.
Yes I now understand your response; the issues of Federal Court jurisdiction are difficult to explain to a lay person; I had to go to law school and take a course in Federal Rules of Civil Procedure for a full year to understand the complex issue of a Federal Court's jurisdiction - so how can I explain this complex area of law with a few words?; in summation: CA has no jurisdiction over INSM because INSM is a citizen of Virginia and INSM does not have the business contacts with CA that would enable CA to decide a dispute between TRCA and INSM; The CA Federal Courts and all Federal Courts cannot decide any dispute between a citizen of the Court's state and a DEFENDANT citizen from another state UNLESS certain tests are met or UNLESS federal law is involved; TRCA tried to show INSM violated the Lanham Act, A FEDERAL LAW, to keep the case in California. But the Court decided that TRCA had not shown that INSM violated the Lanham Act, and that CA had no personal jurisdiction over INSM...because INSM was not doing business in CA. Hence TRCA's case was thrown out. TRCA now sues INSM in Virginia the proper forum and venue; jurisdiction is not at issue in Virginia, but the California decision will have an impact there in my view on the merits of TRCA's case. Lets not beat this horse to death. Thanks and I have great admiration for abharploonta...he explains it so well and I really learn from him; thanks
regarding the last part of your post; I could not answer that without reading the letters; I do not believe the letters would have changed the outcome because the lawsuit was basically dismissed with prejudice...in other words, TRCA can not file the same suit again so a later filing [i.e. after the letters were written] would not change the outcome; The Court held that CA had no personal jurisdiction over INSM in this dispute; this is a killer ruling. This is why TRCA runs to Virginia.
Yes I have read the pertinent parts and copied them to a word file - skipped over the usual case citations and background data which I had knowledge of; but the parts regarding jurisdiction and the Lanham Act, concentrated on those; and I know from my federal procedure instruction that if a federal question is present i.e. the Lanham Act, the the Court has jurisdiction to decide all related state claims; TRCA's strategy was to litigate the state claims in its own home court by gerri-rigging the state claims to an alleged violation of the Federal Law. It did not work. The Court held that CA had no personal jurisdiction over INSM and there was no showing of any violation of the Lanham Act; so I was really taken aback by "donotknowit"'s response. One part of the opinion I was puzzled by; the Court noted as I recall, although TRCA corporate headquarters is in California, TRCA is not a CA corporation; now I was stunned by that, not having read the pleadings. True for Motorola in Texas - all the headquarters are here, but Motorola is incorporated in another state. Genius concept because in any litigation with small players in Texas, Motorola can remove a state case to Federal Court based on diversity and defeat the Texas opponent; I know this by experience!! Federal Court litigation is far more expensive. That alone can defeat the little guy. Here with TRCA, the fact that TRCA was not a CA corporation really worked against TRCA in the final ruling; just my view.
I respectfully disagree with your analysis: INSM filed motions to dismiss based on 1.) lack of personal jurisdiction and 2)improper venue. The Federal Court took pages to describe the lack of personal contacts INSM had in California that would have conferred CA's jurisdiction over INSM based on diversity of citizenship [see pg 16,17 etc in the opinion] Secondly, venue is usually an intra-state issue ..i.e. had the specific California Court's venue been improper, it could have transfered the case to the proper venue in California; however because INSM is a Virginia corp the proper venue in not in California ...the Court did not have the authority to transfer the case to another state; The Lanham Act was discussed in detail and the conclusion reached that nothing in the pleadings or before the Court showed any violation of the Lanham Act; furthermore, and this you should note, the Court refused to permit TRCA leave to cure or amend the pleadings. Had the Court found a prima facie case of the violation of the Landam Act, then a federal question is present and the case could have continued in California. That is why changing the accusation to "customer" would not have worked in my view because the Courts are liberal in permiting parties to amend their pleadings and to cure any defects. The Court concluded that in CA there was no showing by TRCA of INSM's violation of the Lanham Act which does not preclude TRCA from alleging violations of that act in Virginia. But I believe that the California ruling that TRCA failed to state a claim and dismissal without leave to amend will impact the Virginia case; just my view. I apologize for making fun of your screen name; believe it or not I graduated Order of the Coif from SMU Law School and some of my highest grades were in procedure. Perhaps my posts were not clearly stated and I always feel I have lots to learn!
Just for clarification in response to abharp...comments on the Yahoo MB:
my understanding is that the California claims could be considered in Federal Court based on diversity of citizenship as long as the defendant had some minimal contacts with CA; i.e. doing business in California; otherwise CA would have no personal jurisdiction over the defendant. And that is why the Lanham Act was attached because the federal question does not require mimimal contacts. Hence the Court ruled that the Lanham Act was not violated and CA had no personal jurisdiction over INSM. And that seemed to be the thrust of the opinion; although a clerk wrote the opinion, the judges review the opinion before the ruling is issued.
well obviously TRCA had enough money for a hugh retainer fee but I am not sure how much more it has to pursue these suits considering this second dismissal; also, by contract, TRCA must pay DNA attorney's fees; it could be only a matter of time when the money runs out, and who will buy or even sponsor a secondary? With counterclaims staring TRCA in the face, TRCA is not in a good position for a hugh loan; especially with little revenue flowing in...Why TRCA is doing this is not comprehensible to me; there may be another strategy or purpose in view that I am not aware of....or it could simply be poor advice by TRCA's legal team. Because the lawyers make sure they get their fees regardless of the outcome; when the money runs out, the lawyers run also; just my take
Yes DNA and TRCA are co-plaintiffs in this lawsuit and would be jointly liable for costs and fees should they be awarded; this is a great victory for INSM; but we must wait and see if the Court will grant attorney's fees and costs. The award is discretionary with the Judge as I understand federal practice.
do not know it yet; your screen name is true; the Calif. Court refused to permit TRCA to amend its complaint and yes the language is clear; the Court's holding regarded TRCA's suit as a baseless claim and it was thrown out; the Virginia Court will be far more hostile, being INSM's home turf; the word "customer" will not help; remember the Calif. Court refused to permit TRCA to change its complaint in any form; hence the Calif Court held the suit to be a "baseless" claim although that exact language is not used; the effect is exactly the same. my view
Federal Courts have jurisdiction over the federal claims based on diversity of citizenship as explained in a previous post; however California, in the state law case where the failure to state a claim also failed to invoke any federal law, the Court held that California has no personal jurisdiction over INSM; hence the case was removed to Virginia, INSM's corporate headquarters location, but the case still has no merit for all the reasons stated in the California decision = failure to state a claim. And the Virginia Court would be a more hostile forum; just my view.
I will repost from my message on the Yahoo board my take:
I believe the Virginia Court will agree with California that dismissed on two basis: 1.} TRCA failed to state a claim [INSM did not violate the law] and 2.}California has no personal jurisdiction over INSM;
however, remember California was TRCA's corporate headquarters and Virginia is INSM's; although this case is in Federal Court, supposedly a more neutral forum, this is a VIRGINIA Federal Court and the jury will be Virginians; So TRCA'S chances are nil; furthermore, the California decision will provide a foundation for the Virginia Court to dismiss likewise on TRCA's failure to state a claim leaving TRCA the possibility for being liable for all of INSM's legal fees and court costs incurred in BOTH cases; How low do you have to go TRCA; just my view.
Coinstar...I believe the federal claims of patent infringement may be litigated in California with jurisdiction established by diversity of citizenship...that is TRCA is corporation in California and INSM is in Virginia.....I regret posting otherwise
In my view, California would not have any jurisdiction to decide any issue either the unfair business practice suit or the patent infringement suit because California has no jurisdiction over INSM. I expect the patent infringement case to be dismissed also in California; any other attorney's comments are appreciated.
Thank you for your response. eom
north40000 - question - I know that patent law is unique but in this case, does a legal presumption work in INSM's favor?
[For the layman here - a legal presumption is a truth that the law assumes ex. "a properly posted letter reached its intended destination" Legal presumtions works to shift the burden of proof to the person who did not receive the letter to offer evidence that the letter did not reach its destination]
Now in this case the US Patent Office issued the LATER patents upon which Iplex could be developed and produced. Isn't there a presumption that the US Patent Office WOULD NOT have issued the patents that would infringe upon prior patents given to DNA, one as I recall many years before. The same with Iplex - it was given orphan status as a different drug than Increlex so the presumption would be IPlex is not a generic but something different. Consequently, INSM should be able to rely upon the patents issues to it in developing and manufacturing Iplex, a unique drug.
Now we know as Plaintiffs, DNA and TRCA, carry the burden of proof anyway, but would the legal presumptions and reasonable reliance factors strengthen INSM's defenses? I know that abharp ...believe it does not because both parties can plead "legal presumption" but in my view, the legal presumption would only apply to the patents issued later. Thanks
north40000 - question - I know that patent law is unique but why would not a legal presumption be a factor in this litigation. [For the layman here - a legal presumption is a truth that the law assumes ex. "a properly posted letter reached its intended destination" Legal presumtions works to shift the burden of proof to the person who did not receive the letter to offer evidence that the letter did not reach its destination] Now in this case the US Patent Office issued the LATER patents upon which Iplex could be developed and produced. Isn't there a presumption that the US Patent Office WOULD NOT
Thank you north40000; I appreciate the feedback.
No this is still CW's case; a Magistrate hears and even decides pretrial motions which can be appealed to the primary Judge if a party complains about the ruling; CW would not recuse herself because she had been reversed in a similiar case. Actually it is to INSM's great advantage to have her as the judge; she may be on vacation but is still the Judge of this case; perhaps this is why a Magistrate heard the Motions and arguments. Or she could be on another case; hard to determine the reason. Still likely the Magistrate will assign research to a briefing attorney and take the complex matter under advisement and rule later; Also it is unusual for the Judge to reverse the decision of the Magistrate on pretrial matters. I am sure abharp....has more knowledge of federal practice than I do; my practice was primarily in state court.
If I could read the motion[s] I could give a more definitive answer; however, in general, in light of the complexity of a patent case, she will probably take the matter under advisement and have her clerks do some research on the matter and write a memo or recommendation....The issues have to be rather clear cut for an immediate ruling. Wish abharp...could respond.
A judge is a king in his/her universe and everything revolves around the judge's timetable; what may push her to rule early is the trial date and her decision to be fair to all parties. So it is impossible to state with certainty the ruling time frame.
well that is correct; assuming that the prior cases do not settle, the lawsuit would be postponed. But if the prior cases are quickly over, the postponement may not be that much more down the road.
doubtful; no motion for a continuance has been filed in connection with this motion; for a postponement "good cause" must be shown; this is still in the discovery process, but I cannot evaluate because I cannot read the motion.
AGREE thanks coinstarz
just could not understand beachgal's post re unwarrented attacks on biowhatever unless she is her; I know I challenged biowhatever on a number of items and none of it related to her sex but to her violation of SEC regs by alleging an FDA status and pumping other BIO companies, something that would never be done on a public message board by anyone involved in the FDA regulatory process. just my view and its best she is gone.
I politely disagree with part of your assessment of biowoman; when I read her first posts I was not concerned UNTIL she begin to pump her superior picks; also she used her alleged status in the FDA regulatory process as authority to bash INSM and, as it turns out, she believe Increlex is superior. But allegedly she is not an investor in either; now she did not come to the board to inquire or to learn but to instruct INSM investors regarding her views;and I do question her motive; I regard her as nefarious and hope she will not gain access to this board unless she dramatically changes. Furthermore, just my knowledge of SEC regs convinces me that no person in the FDA regulatory process would ever recommend BIO stocks on a public message board; Her "rampage" confirmed my opinion. One more point, it was amazing how her "friends" would show up to support biowoman; how would they know she was posting here if this were not a planned agenda. Just my view Thanks to all on this board for the great assistance you have been to me as an INSM long investor; I appreciate gaining the knowledge re the litigation and other issues; even the science here is understandable to a layman. Regards and thanks to all..Parents
Coin...we really like the picture....
yes I recall that also and that CC was a major reason for us to add to my INSM position [spouse and I]; the preliminary report in the CC regarding diabetics was dramatic as I recall in some patients.
I really like the rocket ship; it symbolizes the launch of Iplex and the future of INSM; just my opinion; thanks coin..