To be clear, once the SCOTUS denied the Petition, that forever and permanently ended the EPADI appeal/Rule 60 effort on grounds of Standing. These failures of the court system amounted to utter lawlessness, given that EPADI did in fact have Standing as a matter of binding Ninth Circuit precedent. Inexplicable lawlessness at the highest levels of the court system. But whether we like it or not, that lawlessness constitutes binding precedent with no viable legal avenue for EPADI to pursue the issue derivatively.
However, as North and I discussed a couple weeks back in response to ILT insightfully raising the issue, Amarin, the party with Standing, does have the viable avenue to file a new lawsuit (Fed. R. Civ. P. 60(d)(1)) to set aside the Judgement for fraud on the court. Fed. R. Civ. 60(d)(3). Under Hazel-Atlas, there is no time-limit (statute of limitations) for filing such an action. The lawsuit is technically viable in the hands of skilled counsel with backbone and vision.
However, because this suit is technically viable, does not mean that it is viable as a practical matter. Bouf is absolutely correct that courts look towards finality. The case is very defensible and it is well within the range of outcomes for a Judge to simply say that Amarin had its shot, Amarin missed raising the issue in the trial court, Amarin did not raise it on appeal, and the proposed intervenor who did raise the issue, was rejected on grounds of Standing all the way up to the Supreme Court.
Nobody should be under any delusion that Amarin filing a Rule 60(d) fraud on the court suit has a cakewalk chance of success. It does not. It faces many obstacles. But greatness among lawyers is daring to grind the tough cases, the ones that are not rear-end collision lay-ups.
My spiritual advisor, Sun Tzu in the Art of War says, "in the midst of chaos, there is also opportunity." Sun Tzu further says "opportunities multiply as they are seized." Amarin should find the right counsel of its choosing and seize the opportunity, notwithstanding the formidable obstacles. But I can understand if they choose not to, as such a case is not for the faint of heart.
