Amarin Corp Plc (AMRN)

[lettruthringout]

Dead Man talking

Like the Defendants, you do not discuss the three factors considered when determining the adequacy of representation:

(1) whether the interest of a present party is such that it will undoubtedly make all of a proposed intervenor’s arguments;

(2) whether the present party is capable and willing to make such arguments; and

(3) whether a proposed intervenor would offer any necessary elements to the proceeding that other parties would neglect. Aerojet Gen. Corp., supra, at 1153.

You have posted multiple times that above are the criteria for the ‘adequate representation’ element of Rule 24(a)(2). They are not. They are the criteria if you are accepting that there is a rebuttable presumption that you have lost this element (i.e., there was adequate representation). They are the elements if you are going to argue that Amarin, with their expensive attorneys, didn’t provide adequate representation to EPADI during the trial. You’ll need to pack it in if you are conceding that this element weighs against you and that your only hope is rebutting that presumption.

Courts are split on the correct standard for establishing the first type of presumption-that of adequate representation from a party already present in the litigation. One group of courts uses a three-part spectrum test; the others use a same-ultimate-objective test. The three-part spectrum test first categorizes an absentee's interest as adverse, similar, or identical to parties already present in the suit. If a proposed intervenor has an identical interest to a party in the suit, then a presumption of adequate representation arises.

The same-ultimate-objective test creates a rebuttable presumption of adequate representation whenever an absentee shares the same ultimate objective with a party. This inquiry asks whether parties "seek to achieve the same objectives" as an existing party.

So, by making the argument you posted, you are either conceding that EPADI’s interest is either identical to Amarin or that you share the same ultimate objective of Amarin. EPADI’s interest/objective is having the judicial system recognize the grave error in legal reasoning committed at the District Court level, which may and should lead to patent validation. Amarin’s objective (and interest) is validation and non-infringement of its patents without resorting to pointing out the glaring judicial mistake made at the lower court level. Amarin’s and EPADI’s interests aligned until it was clear that Amarin was unwilling to take the most obvious post-judgment relief – getting the lower court to revisit their judicial reasoning that was based on misinterpreting basic statistical principles. EPADI is clearly not being adequately represented in this post-judgment effort and thus is not in a position to need any rebuttable presumption analysis.

It is time to make the arguments befitting the august forum you are entering rather than engaging in the hyperbole that the ‘red meat’ crowd on a message board is most incited by. Of course somebody still has to be thrown under the bus. You know you have to put up a succinct yet comprehensive oral argument. It can be done without a single mention of cropped tables or fraud (with no apologies to the red meaters):
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Esteemed panel, we are here today because a grievous mistake has been made at the lower court and we seek to have that mistake remedied.

But first, the Rule 24 motion. We are in the fairly rare position of seeking intervention post-judgment. Indeed, the required lack of ‘adequate representation’ of the Rule 24(a)(2) ‘intervention of right’ is to be viewed through the lens of the Rule 60 proceeding that we seek to have docketed. EPADI is here because Amarin affirmatively chose not to pursue this billion dollar judicial mistake, and certainly is not providing anything akin to ‘adequate representation’ in the proposed post-judgment proceeding by either the three-part spectrum test or the same-ultimate -objective test. We would have preferred Amarin pursue this mistake through a Rule 60 motion of their own, and they have decided not to do so; thus, while Amarin would undoubtedly like restoration of their patents, their interests in not pursuing the judicial mistake in a Rule 60 forum, obviously outweighs their interest in pursuing a statistical mistake in this case of such gravity that it has been written about in a respected medical journal. Clearly, Amarin and movant’s interest are not aligned. Other elements of 24(a)(2) include ‘an interest relating to the property or transaction that is subject of the proceeding, and shareholders of a company that has had its patent rights unceremoniously stripped away, certainly have an interest relating to Amarin’s intellectual property interests. The last element of 24(a)(2) asks if movant, EPADI, is so situated that disposing of this action without being heard may, and indeed does, impact EPADI’s interest, that of fair value of the shareholder’s investments in a company whose patents were mistakenly stripped away in a judicial proceeding.

I’m not going to spend time on permissive intervention because that ultimately is the judge’s call, and while we think we qualify under 24(b) as well, we will rely on our 24(a)(2) arguments.

The final section, of Rule 24, 24(c), requires Notice and Pleading. Movant certainly provided Notice to the other parties, and, as stipulated in our original submission to the District Court, relied upon the Amarin pleading, because at the time that Amarin originally submitted the pleading, its interests were perfectly aligned with EPADI in seeking to stop the infringement of valid patents.

The standing issue does not come in to the Rule 24 issue, but EPADI surely should have standing to bring the Rule 60 motion. Rule 60 (c) indicates Movant had up to one year to bring their motion and we did. Rule 60(b) states that a legal party may be relieved from a final judgement because of mistake. We are asking that Amarin ultimately be relieved of the faulty judgment that invalidated its patents. Rule 60(b) does not say that it cannot be a third-party movant that requests that relief, it states that a “legal party” may be relieved from a final judgement. EPADI clients have been stripped of millions of dollars by a judicial mistake. A ‘taking by government mistaking’ if you will. If EPADI doesn’t deserve the due process to have this issue heard after being stripped of great monetary sums by a judicial mistake, then I’m not sure who would. EPADI recognizes the possibility that the lower court, or this body, could acknowledge the grave mistake was made but through some other legal reasoning, decide to invalidate the Amarin patents. We find that scenario unlikely given the emphasis on the mistaken reasoning the Court appeared to put on the flawed patent analysis, but we recognize it is a possibility. Movant simply wants the Court to recognize the mistake and rethink its analysis.

Your honors, a grievous mistake was made at the District Court level, by a judge evidently not schooled in some very basic statistical principles. As pointed out in the medical journal article, it was a statistical mistake that is common but one that should never have been relied upon to invalidate valuable patents. Defendants abetted this mistake with their actions and misstatements, be they intentional or just negligent. But it is a mistake that should be corrected and if the company holding the patents is unwilling to call out this costly judicial mistake, for whatever their reasons may be, then it has fallen upon Movant to seek redress from this august panel.

Thank you your honors.