Look, we're not fooling around. If I felt that we had a true, insurmountable timeliness problem under applicable law, I would have never filed the case.
The Panel's skepticism about timeliness is understandable on the surface. After all, we undeniably filed our Motion after the case was heavily litigated through a trial, appeal, and denial by SCOTUS.
But in the law, context is everything. As I stated at the end of the oral argument, the Court needs to apply the correct legal standard, and look at the Smith case relied upon heavily in our Briefs.
Under Smith, the crucial date for determining the timeliness of EPADI II’s intervention motion, is when EPADI II should have been aware that its interests would not be adequately protected by Amarin. Smith, 830 F.3d at 854. Further under Smith, the only relevant prejudice is that which flows from a prospective intervenor’s failure to intervene after the intervenor knew, or reasonably should have known that its interests were not being adequately being represented. Id. at 857.
Applying the law as set forth in Smith, to our facts as set forth in the timeline, the time for our intervention accrued after the passage of 90 days without any response from Amarin to the Demand Letter. That was the point we became aware that our interests would not be adequately protected by Amarin.
Additionally, we noted in our Reply Brief that despite us placing primary reliance upon Smith in our opening Brief, Smith is not even mentioned, much less distinguished in Defendants' Brief. Normally in legal briefing, if I were to use a boxing analogy, this is the equivalent to landing a solid right-hook. While one does not have to necessarily distinguish every authority, one proceeds at their own peril by not distinguishing, much less mentioning your adversary's key authorities.
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