OD- clearly, if the PSJs remain in effect, then it will be directly due to Bancorp. And conversely, if F&J had made the settlement dependent on the court's vacatur of the PSJs, then the vacatur would have been permanent and we would not have any appeal at all.
Accordingly, I still think that F&J made a very serious, costly, negligent, and easily avoidable error in their mishandling of the vacatur and settlement. And, in the motion to vacate, F&J also mishandled the statement to the court about no other interested parties. These were not small mistakes with little consequences; the first was a huge mistake with monumental ramifications to IDCC.
Today, having read the briefs and Clarence's notes from the oral argument, I expect that IDCC will win the desired result of re-vacating the PSJs; However, this desired result will be achieved not due the lack of applicability of Bancorp, but rather due to the other issues of timeliness, standing, Nok is not a party, lack of Court's own motion (and notice) to reconsider the vacatur, etc.
However, if Nok had intervened earlier and had the proper standing, or the Court had provided its own motion (and notice) to reconsider the vacation, so this appeal came down to the applicability of Bancorp as the only issue, then I would probably feel very differently about IDCC's chances of winning this appeal.
It seems F&J did a good job on the appeal briefs. Fortunately, due to misteps by Nok, it seems IDCC may be spared the ultimate cost of a very serious mistake by F&J in effecting the settlement and PSJ vacatur.
F&J should be held to the standard of no major mistakes, rather than allowing major mistakes to occur that we may get away with due to misteps by Nok.
Surely, F&J won't this same mistake again when it comes to settling a case in concert with vacatur of any interlocutory rulings.
OD- thank you too, for all your many, many contributions to this forum.
MO,
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