Thoughts on the oral arguments after re-listening.
Marjac did a great job emphasizing that this is a unique case that doesn't really fit any prior particular case (shareholder driven motion rule 60, hard to classify as truly derivative, but not a direct independent action). He was very clear on timeliness and the unique circumstances, and to my mind, the point that seemed to resonate the strongest was the Curfmann paper being published after Amarin had already appealed.
Newman was the most sympathetic and even reframed the Mori/Curfmann paper issue as a Rule60(B)2 newly discovered evidence, and posed the theoretical question that if there is no standing, how else can the evidence go through to serve the interest of truth/justice.
Dyk and Reyna both clearly had issues, but I still detect a difference between them. Dyk seemed unrelentingly opposed to the idea that shareholders can ever vindicate the rights of the corporation whereas Reyna took greater issue with timeliness and the full member list of EPADI in fact being shareholders, but he seemed willing to allow that shareholders might have a "recognizable interest" and could in theory intervene.
I thought Marjac answered the "all member equal shareholders" just fine: What specific law/rule requires this? Got nothing to hide, and can provide supplementation if this really is a true obstacle. And on timeliness, I don't see how Marjac could have explained the rule60B context more clearly (the post judgement Curffman paper may be the ace in the hole for timeliness).
On the fraud issue, both Dyk and Reyna naturally put up resistance, but Dyk seemed more informed whereas Reyna seemed to not have fully grasped the issue yet.
All in all, my gut tells me Reyna is the swing vote. I'm also very glad we got Newman, because she will fearlessly write a dissent if she thinks she needs to, which would mean if Dyk/Reyna want to affirm, they would have to actually write an opinion that matches the strength of Newman's dissent. And while Dyk and Reyna aired their reservations conversationally, to put things down in writing would mean being more precise/rigorous/careful and actually contending with the 9th circuit caselaw that Marjac laid out.
On a final note, I've listened to quite a few CAFC cases by now, and I must say Marjac's style and tone of delivery was very engaging, and honestly doubt any Covington lawyer can hold a candle to Marjac's performance. Dr. Reddy lawyer by comparison seemed a little bland (but of course he's not fighting the uphill battle Marjac is, so he can afford to be).
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