Alley....as usual, thoughtful reasoning.
I have my views re Nokia's motion to unseal the records. Obviously the content of the motion is far more telling then the prior press release regarding the arbitration. I have the following observations:
First---Nok expressly designated Ericy as a "triggering" event at a time when Nok was aware Ericy and idcc were involved in litigation. The structure of a settlement agreement in litigation will vary from case to case as much as the weather. Nok was fully aware of this fact and clearly assumed the risk that a settlement w/Ericy COULD occur and in fact, given the percentage of civil actions which settle, WOULD occur and that such settlement could possibly result in unfavorable terms being thrust upon it by virtue of its 1999 agreement w/idcc.
Second - To my knowledge, idcc is not and was not bound contracturally to disclose the progress of settlement discussions with Ericy and as a matter of practice DOES NOT disclose negotiations between one licensee to another. Moreover, Nok knew or should have known of the history of sealing the records in the litigation. Therefore, Nok assumed a risk, by designating Ericy as a trigger, that it would be completely in the dark as to the negotiations between Ericy and Idcc. However, Nok clearly knew or should have known that such negotiations were taking place as they do with all litigation and that a settlement would likely result. At no time prior to settlement did Nok intervene and ask the court to allow it to participate in the proceedings to protect its interest. (Personally, I think this issue is very damaging to Nok)
Third - Nok's claim that some of the patents may have been declared void by summary judgment and that the parties conveniently requested the court to reverse the summary judgment is likewise meaningless since, again, Nok assumed that these types of procedural resolutions would occur. Further, Idcc and Nok already have a license for 2g. Therefore, any PRETRIAL and NONFINAL decision regarding the validity of the patents in the Ericy case is irrelevant.
In short, while Nok makes a good argument that it was somehow set up by the "secret" deal w/ericy, its argument IMO will fall upon deaf ears since, Nok assumed this VERY risk when it allowed Ericy to constitute a triggering event.. Further, Nok has no more right to see the documents which culminated in the ericy settlement and 2g license then it has to see the negotiation trail for the NEC or Sharp deal.
With that said, however, I am concerned that idcc, who purportedly has a beneficial strategic relationship w/Nok, did not communicate w/Nok regarding the impact the Ericy deal, prior to the press release. One would think that, given their relationship, negotiations w/Nok would have existed at the same time as the ericy negotiations and that the outcome would not have been a suprise to Nok. On the other hand, this so called secrecy is a picture painted by Noks lawyers and may be far from accurate. We'll have to wait to read idcc's opposition.
Until then, I hate the price action, but I just don't think the fundamentals have changed.
IMO......2112
