Corp Buyer....we should not assume that F&J made any error regarding the vacatur issues. Don't you agree that if the settlement was conditioned upon vacating the psjs, it could have been rescinded by Ericy if the court subsequently reversed a vacatur order? If not, why not?
See my post from last night (reposted below) regarding this issue. I don't think F&J did anything improper.
Posted by: 2112
In reply to: None Date:3/7/2005 7:38:58 PM
Post #of 97318
FWIW...F&J are very experienced litigators. Their associates pour over every document prepared or filed in any given case (including settlement agreements) and their clients pay dearly for this service.
IMO, conditioning the settlement w/Ericy upon only filing a motion to vacate the PSJs as opposed to actually vacating the PSJs was a calculated risk taken after having received the written informed consent of idcc's BOD. I don't believe it was an oversight or legal "malpractice" as mentioned by some on this board.
Consider this......if the Ericy settlement was expressly conditioned upon vacating the PSJs, and Nok (or some other entity) later moved to reinstate the PSJs, as NOK has done, and if the trial court subsequently granted the motion and reinstated the PSJs, as it has done, Ericy or (Idcc) could have rescinded the settlement agreement (since one of the conditions to the agreement failed.) I don't think Idcc (or Ericy) was willing to take the risk that their settlement agreement could be rescinded months or years after it was reached by a third party intervening and obtaining an order vacating the PSJs. They wanted to completely end the litigation once and for all - not leave it open to possible rescission.
As I see it, Idcc and Ericy both knew that once a motion was filed, the court would rubber stamp an order vacating the PSJs as part of the global settlement. Idcc also knew that that order could later be challenged and possibly reversed by a third party. Idcc was willing to accept the risk of such reversal one, because it felt that the adverse PSJs did not jeopardize the material portions of the IPR which it has and two, because the settlement with Ericy justified the risk of the PSJs coming back to life.
In short, IMO, what is happening now with NOK was entirety anticipated by Idcc and its counsel long before the ink dried on the settlement agreement. Given this, I don't think that the risks of the PSJs being vacated (and possibly used by future infringers) is as serious in the general scheme of Idcc's IPR as many of us may think.
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