Amarin Corp Plc (AMRN)

[lettruthringout]

Inadequate representation not ineffective counsel nor legal malpractice

We need only establish that Amarin "might not" advance our arguments.

Did Amarin pursue the Curfman/Bhatt statistical mistake argument?
Did Amarin pursue the cropped table and other fraud arguments?
Did Amarin file the Rule 60 motion?

The answer to all of these questions is a resounding "No". Accordingly, there is no basis to argue that there was adequate representation.

This is not a sixth amendment right to effective counsel case, which only applies to criminal cases. Adequate Representation for Rule 24 purposes is a construct that exists solely for Civil Rules of Federal Procedure and is very much a different standard than the 6th Amendment Constitutional guarantee.

Yet the argument is being put forth that because Amarin didn’t pursue a statistical argument that was published months after the District Court’s decision this is an example of inadequate representation.

The argument is also being put forth that because Amarin didn’t pursue fraud arguments based on a cropped table missing a legend that only added that the nonsignificant results clearly indicated in the table were calculated using a specific statistical test is an example of inadequate representation.

Finally, the argument is put forth that because Amarin didn’t pursue post-trial relief other than its appeals to the Federal Circuit and the Supreme Court that is an example of inadequate representation.

The above are all considered legal strategies and have little to nothing to do with the Civil Rule construct of adequate representation. And adequate representation refers to the time period and interests during the case-in-chief, not during some post-judgment period, so we can throw the “failure to file a Rule 60 motion” out as grounds altogether.

The case-in-chief was “is there a patent infringement and are the patents valid”? The only issue for this required prong of Rule 24 was whether there was adequate representation of EPADI’s interests DURING the case-in-chief. You can’t say “Amarin lost the case and then didn’t pursue the post-trial relief I favored so that shows there was inadequate representation during the already-concluded case.” You’d need a time machine for that. There is perfect overlap between Amarin’s interests and EPADI’s interests, i.e. valid, non-infringed patents. The fact that Amarin deployed attorneys charging hundreds of dollars an hour to fight for Amarin patents means that EPADI’s interests as shareholders in the Company were well represented. Period.

Disagreeing with a legal strategy does not mean a third party’s interests were not adequately represented. If that was the case then EPADI should have added Amarin’s choice of venue for the trial to their list of grounds demonstrating inadequate representation.

EPADI is basically arguing legal malpractice rather than “adequate representation.” But, even dressed up in a malpractice cloak, this effort would fail. A legal malpractice case seeks to show that the lawyer’s representation caused their client not to prevail in their case and the incompetent representation by the lawyer caused damages to the client. Tough to prove in this case given the the Patent Office originally refused to grant patents because of obviousness.

A common example of legal malpractice is a lawyer missing an important filing deadline that caused their client’s case to get dismissed. Critically, in order to recover financial compensation, it must be demonstrated that the attorney made a mistake and if the mistake never occurred, the client would have prevailed in their case.

So, even under a “legal malpractice” standard, which the Appeals Court is not accepting, it would be impossible to definitively prove that “but for” the missing table legend or a comment by opposing counsel that did not get rebutted, there would have been a different outcome in the trial.

EPADI may not like the results of the court case, but getting the Appeals Court to find there was not adequate representation of EPADI's interests DURING TRIAL will not happen.