I shall return.
An Appeal to the Federal Circuit will be forthcoming within 30 days.
Today's Decision is riddled with errors of fact and law.
By way of example, "the critical date for assessing the timeliness of a motion to intervene is when the proposed intervenors should have been aware that their interests would not be adequately protected by the existing parties." Smith v. Los Angeles Unified School District, 830 F.3d 843, 854 (9th Cir. 2016). Contrary to Judge Du's clearly erroneous conclusion, that did not occur in this case until sufficient time passed from Amarin's receipt of eight's Demand Letter, where it became clear that Amarin would not be filing the Rule 60.
Further, it is clear error to measure the timeliness of our filing by reference to the pre-stages of litigation pre-dating the change in circumstances that motivated our decision to intervene. Id. at 856. Here, Judge Du arbitrarily proclaimed that we should have somehow intervened during the litigation, when in fact, we could not have intervened until after the change in circumstances consisting of: (1) the entry of the Judgment on 3/30/2020; (2) the subsequent discovery of the Mistake and Fraud; and (3) Amarin's decision not to file the Rule 60 motion became finally apparent.
The amount of time that has passed since the litigation began is not dispositive, but rather, the Court needed to look at the related circumstances, including the purpose for which the intervention is sought. Id. Here, the sole purpose of the intervention was to file the Rule 60, which could not have been reasonably filed any earlier than when we filed it.
This is just a preview of what will be presented to the Federal Circuit on appeal. Today's result was disappointing, but by no means the end of the road.
I do not plan on commenting at length here on the Board, but instead, our filed papers will speak for themselves.
