second post. These are not quotes but just some bad notes I scribbled.
SL then made his 2nd point. Because of the prior arb the panel was required to be bound by 1) Rate can be no higher than Nok, 2) There should be no interest and no adjustement. SL talked about collatoral estoppel here. Judge response was that SL was asking him to become the arbitrator now and interperet the agreements differently than the panel. SL then stated that the Sammy contract provided for no interest while Nok's did (5%). Then disucssion that the Samm contract was silent about interest which I took to mean that there was no explicit wording saying "No Interest". SL then hit on points again about "same or no worse" and that the panel ruling was absurd becuase there rate now was much worse than others and that it turns the MFL on its head. The judge responded...that was the decision you made. why is it my problem? You told the panel is was not an event. SL: not sure I come to the same conclusion.
Then some more exchange about rates "same or no worse" and a discussion about period one. Judge then said something along the lines of...second arb panel made a decision you don't like. Unless you show me more I don't have the authority to upset what they decided. SL: col. est. prevents you from having a Samsung rate higher than others. That is the purpose of an MFL clause. Judge: panel did't ignore issue. They disregarded it. SL: panel mixed and matched PLA's ignoring and not addressing 1st panel. Judge: I don't want to go around in circle. There are 2 different sets of facts for Sam I and Sam II. Panel I did not endeavor to tie the hands of panel II.
Judge then asked about Sam III arb.
SL: ICC accepted terms of reference this morning. )Submitted the fax into record. No objection from IDCC). SL then laid out the timetable: Dec 14 -briefing, Jan 18 replies, hearing on Feb 6.
Judge then asked why we should stay this motion based on ICC.
SL: MFL allows for Sam to adjust as events change and something about unconditional election. He said the outcome of Sam III would affect this court. If panel agrees with us it would make Sam II moot. Judge: When would you expect a decision. SL: May 15 is realistic.
I may really butcher this part because I had a tougher time hearing the IDCC attorney
Judge then turned to IDCCs legal reps for the 1st time. Judge: are you as optimistic? IDCC lawyer (IL): Something about a threshold issue. then he said something along these lines...First, the panel has to decide if Samsung is eligible. If they do then the arguments are submitted to the panel.
IL also talked about the fact that 6 months following terms of reference is the ICC rule of thumb but that they've already seen the time get extended significantly in earlier arbs.
Judge: If I confirm the award what is the resulting scenario? IL: responded with something about mootness not being a reason for something. Judge (seemed a little annoyed): I understand that.
IL: At some point you will have to confirm or vacate. Mootness doesn't call for vacate.
The IL then made a point (which I couldn't follow) that Sam III not superceding Sam II because it runs to 2005. Nok settlement was in 2006. Their right to adjustement would be 2006 forward. Judge asked in SL agreed. SL: No. and something about contractual agreement. Judge: I wanted to make sure you guys weren't agreeing on something.
IL: He then talke about Sam making serial elections to never pay. Sign, raise disputes, rinse and repeat (my words). Judge: when was the last time they paid? IL: 1996
IL then talked about the fact that IDCC earned their revenue in licensing and that if every licensee did this it would harm them greatly.
not sure if it comes across in my notes but judge seemed pretty sensitive to timeline of arb III and process going forward. maybe just wishful thinking on my part but he asked a few questions about ICC schedule and when a Sam III would be resolved
Judge then asked something about Col. est.
IL" They made no election of award. Something about Sammy using the Nok award as a strawman. Panel looked at award but ruled based on Nokia patent agreement. Panel took issues head on. Samsung shot for the moon, missed, and now we are here.
Judge: You are not lookign for attorney fees? IL: No, we haven't looked at it or are asking for it.
Judge: Samsung any last words?
SL: Samsung pre-paid in the past (I think he said 6 mill). For most of the relationship IDCC has been a creditor. Pages 35 and 49 of the award are clear.
Judge to IL: Address interest point.
IL: Don't disagree that Sam I didn't provide interest. Sam elected Nok patent agreement which does provide for interest. Sams own expert recommended 5% interest rate. Judge: waiver? IL: probably. so obvious that panel had to apply interest. Reading the award it is clear 2nd panel did not feel bound by 1st panel.
Judge: I'll consider it and get back to you. It won't be a year. By the end of this year.
AI
