Piratica--Vringo’s brief and argument lists about 8 reasons why the ex parte Order should not have been granted. Some are based on the merits of the controversy and some on procedural grounds.
The one that stands out to me is the evident lack of notice that was given to Vringo’s counsel. Keep in mind that we’re talking about an EX PARTE order---one given by the court without input from one set of counsel. And it involves an extraordinary remedy, a temporary restraining Order. These aren't easily obtained.
The Federal Rules of Civil Procedure are very specific in the requirements before a Temporary Restraining Order or Temporary Injunction can be granted. Notice and affidavits are required for the TRO. (See FRCP 65)
In its motion to dissolve Vringo says these basics were not complied with.
My experience is that attorneys are usually very, very, very careful about going before a judge without opposing legal counsel present. In almost all cases it just ain’t done. Aside from specific Rule requirements that exist here under FRCP 65 as they pertain to restraining orders and temporary injunctions, the matter of legal ethics is involved. It’s hard to believe that Vringo’s opposing counsel actually made misrepresentations to the court here. Maybe they did.
Further, it’s hard to believe that the court granted the TRO under the circumstances. Judges don’t like being embarrassed and hoodwinked, and judges have memories.
If Vringo’s legal counsel is correct in stating how they were hoodwinked/sandbagged here, this will not go well with ZTE as this progresses. It may even figure in to some settlement discussions (though this is a non-legal guess).
