ILT, my take is that the chances of Amarin succeeding on the Appeal need to be analyzed in terms of range of outcomes rather than absolutes. The Stock Twits poster is speaking in terms of an absolute, meaning he is absolutely certain that the Appeal is frivolous and that Rule 36 is forthcoming.
His prediction is certainly within the range of outcomes, especially if Judges Dyk and Reyna preside yet again, but that outcome is far from an absolute certainty. As we discussed last week, Amarin has couple of inherent appellate advantages in this Appeal, namely that the Magistrate got it right, and the standard on a Motion to Dismiss strongly favors denying the Motion while allowing the case to proceed through discovery.
The Magistrate's favorable ruling provides a roadmap for that outcome. Further, appellate review on a Motion to Dismiss is "de novo" as compared to "abuse of discretion". This means that the CAFC Panel need not defer to Judge Andrews, and will engage in its own analysis as to whether the case should have been dismissed.
As to amending the Complaint, Judge Andrews provided Amarin with that opportunity, but Amarin has taken the position that they do not need to amend the Complaint because the facts as pled state a claim, and Judge Andrews got it wrong. So rather than amend, Amarin has chosen to stand on its pleading, and get to the appellate court as soon as they could.
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