Replies to post #98449 on InterDigital Inc (IDCC)

[Corp_Buyer]

Loop, you are absolutely correct that the "dismissal" followed the "vacatur". The precise sequence of events was just as you indicate:

1 - settlement
2 - joint motion for vacatur
3 - dismissal

Unfortunately, the settlement was NOT explicitly tied to the vacatur as required by Bancorp; Rather the settlement only required the joint motion REQUESTING vacatur, and this became the monumental problem with the settlement as effected, since the settlement was in fact indifferent to whether the vacatur was actually granted (and this is the principle of Bancorp). Of course, in their disregard for Bancorp, the parties evidently ASSUMED the vacatur would be granted and that it would be permanent.

IDCC does not argue, as you do, that the Ericy settlement was DEPENDENT upon the vacatur because it was not, so IDCC cannot argue as you suggest.

On the contrary, IDCC states that the settlement only required a joint motion for vacatur for the settlement to be effective per the Appeal Opening Bief (not posted) as follows (Statement of the Case, page 4):

"Pursuant to that settlement, on March 17, 2003, IDCC and Ericy filed a Joint Motion to Vacate Markman Rulings and Summary Judgment Orders and to Maintain Documents Under Seal ('Joint Motion to Vacate')... On March 18, 2003, the District Court granted IDCC and Ericy's Joint Motion to Vacate ... On March 19, 2003, the District Court signed a 'Stipulation and Order of Dismissal' dismissing the lawsuit with prejudice."

Nok's Motion to Vacate and Judge Lynn's ruling to Reinstate were based on the fact that the settlement was not directly linked to the vacatur, otherwise, Nok's motion would have failed completely. The dismissal occuring last proves nothing it seems.

Of course, I like your suggestion of the temporal sequence of events proving a dependent linkage, but I fear it does not. Nok, Judge Lynn, and IDCC all seem to agree there is no explicit dependency between the settlement and the vacatur as required by Bancorp, unfortunately.

I do agree completely with your thoughts about IDCC winning the appeal based on Nok's misteps (timeliness, standing, non-party, etc.).

I agree with the notion that Judge Lynn originally wanted to send Nok to the arbitration so she agreed to an intervention and full access to sealed documents; Later she was pursuaded by Nok, Bancorp, and other precedents to reinstate the adverse PSJs.

The facts seem to indicate it was F&J's mistakes in effecting the settlement that left a huge hole in IDCC's bucket, so now we are leaking cash, time, and effort towards hopefully fixing this monumental and potentially crippling legal mistake by F&J.

MO,
Corp_Buyer