OSO- your analysis and disctinction (between interlocutory ruling vs final judgment) are exactly what many thought pre-reinstatement by Judge Lynn. The flaw in this view seems to be the issue of "forfeit"ing one's right to appeal.
The forfeit occurs if a party chooses to settle instead of appealing. The choice to settle is a deliberate action whether the ruling is interlocutory or final.
Now, if the settlement is effected with only a request for the court to vacate, then the parties are communicating that they are indifferent to the court's action to vacate, which may or may not be true, but according to Bancorp, this is what has been communicated by the parties. If the parties and the settlement are NOT indifferent to the court's action, then the appropriate way to communicate this is to make the settlement dependent on the court's action to vacate the adverse ruling i.e. make the vacatur an integral, rather than an incidental, part of the settlement.
Unfortunately, IDCC and E, in effecting the settlement, did not make the court's action part of the settlement, since they only REQUESTED the vacatur post settlement. Accordingly, it seems IDCC and F&J took the wrong approach and specifically, by their actions, told the court and the world that the settlement is indifferent to the vacatur, which made the vacatur not permanent, and opened the door for the reinstatment.
Of course, IDCC clearly chose to settle, according to Bancorp regardless of the court's action to vacate, and IDCC chose the settlement instead of pursuing its right to appeal the PSJ. Accordingly, IDCC's right to appeal the PSJs on the merits was forfeit, according to Judge Lynn and Nok, citing Bancorp and it's progeny.
As I recall my reading at the time, while Bancorp dealt with a final judgment, Judge Lynn (and perhaps other cases) dealt specifically with interlocutory rulings in applying the Bancorp principles of "forfeit", "juducial efficiency", and integral v. incidental actions (my words) of the Court in effecting the settlement.
Of course, as a practical matter, and IMO, parties are not always indifferent to the court's action in connection with a settlement, whether or not the court's action is integral or incidental to the settlement. Nevertheless, there is logic and precedence for Judge Lynn's ruling and that is why I am so livid at IDCC and F&J for making this perhaps negligent mistake.
If our settlement was effected properly, then the PSJ vacatur would have been made permanent, Nok could not have achieved the reinstatement, and we would not be in this risky situation involving some of our most valuable company assets, not to mention the extra expenses incurred trying to correct this monumental mistake.
I do think there is a reasonable chance (50% MO) that the Court of Appeal will reverse Nok's intervention, with the direct result of reversing the reinstatement, in which case the Court will not need to review and rule on the merits of the reinstatement. Fortunately, Judge Lynn explicitly stated in her ruling that the reinstatement is based on Nok's intervention.
For the sake of considering all the possibilities (however remote), a truly bizzare outcome could be if the Court of Appeal reverses Nok's intervention, but then on its own motion, allows the reinstatement to stand, since the trial court properly corrected it's error in granting the original vacatur. Without a moving party such as Nok, it seems exceedingly unlikely and illogical that the court would review and allow the reinstatement to stand.
I have sent Pacer 776, Judge Lynn's ruling to reinstate, to JimL in case you want to review it.
All MO,
Cheers,
Corp_Buyer
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