[00:00:00] Speaker 04:
The number 21-2024, Amarin Farms, Incorporated, against HICMA Pharmaceuticals USA, Incorporated.

[00:00:10] Speaker 04:
Okay, Mr. Casanova.

[00:00:12] Speaker 01:
Thank you, Your Honor.

[00:00:13] Speaker 01:
Good morning.

[00:00:14] Speaker 01:
May it please the Court.

[00:00:15] Speaker 01:
For my first time ever appearing in front of this Court, I'm going to focus the argument today on four broad themes.

[00:00:23] Speaker 01:
One, fraud.

[00:00:24] Speaker 01:
Two, mistake.

[00:00:27] Speaker 01:
Three,

[00:00:29] Speaker 01:
abuse of discretion, and four, institutional integrity.

[00:00:34] Speaker 01:
Based upon these four... I'm not standing.

[00:00:41] Speaker 03:
Your client under the case law doesn't have action here.

[00:00:48] Speaker 01:
This is not a derivative suit, correct?

[00:00:52] Speaker 01:
Correct, Your Honor, and thank you for that question.

[00:00:54] Speaker 01:
I will address standing.

[00:00:57] Speaker 01:
This is not a derivative suit in the formal sense, but it is like a derivative suit.

[00:01:03] Speaker 01:
It is derivative in nature.

[00:01:04] Speaker 01:
It's clearly not a direct suit, but it is derivative in nature.

[00:01:10] Speaker 01:
And in a case such as this, remember, we're going under Ninth Circuit law.

[00:01:15] Speaker 01:
There are two specific exceptions where standing is granted.

[00:01:21] Speaker 01:
One, when there is privity.

[00:01:23] Speaker 01:
The shareholder corporation relationship is one of privity.

[00:01:28] Speaker 01:
Two, when there are allegations of fraud, these are specific exceptions which allow standing to bring a Rule 60 motion.

[00:01:39] Speaker 03:
So if a non-party's interests are directly... You're claiming standing or cause of action because of the shareholders' interest in the corporation.

[00:01:50] Speaker 03:
We've rejected that in the Star case.

[00:01:56] Speaker 03:
Various state courts in Delaware and your clients incorporated in New Jersey are not your clients.

[00:02:05] Speaker 03:
The corporation is incorporated in New Jersey.

[00:02:08] Speaker 03:
Also, the shareholders can't bring a separate suit.

[00:02:11] Speaker 03:
How do you get around that?

[00:02:14] Speaker 01:
Okay.

[00:02:15] Speaker 01:
I'm glad you asked that, Your Honor.

[00:02:16] Speaker 01:
Thank you.

[00:02:17] Speaker 01:
The Star case is actually distinguishable here, and I reviewed the Star case.

[00:02:22] Speaker 01:
The Star case, the plaintiff only alleged a direct action.

[00:02:27] Speaker 01:
The plaintiff in that case did not, it was not derivative in nature.

[00:02:32] Speaker 01:
This is, we're not alleging.

[00:02:34] Speaker 03:
You agreed earlier this was not a derivative.

[00:02:38] Speaker 01:
It is not a formal derivative suit, Your Honor, because a formal derivative suit involves filing a complaint, starting a whole new lawsuit.

[00:02:48] Speaker 01:
It is derivative in nature.

[00:02:50] Speaker 01:
And I would cite to the court the Intel case cited in our brief, where in Central District of California, where the shareholders were allowed to intervene under Rule 24 to argue on behalf of the corporation.

[00:03:08] Speaker 01:
and secure the rights of the corporation.

[00:03:12] Speaker 01:
So I just want to make this clear that this is not a direct suit and that the Star case is distinguishable for that fact.

[00:03:25] Speaker 01:
So based upon that, and again, that's only the privity ground.

[00:03:31] Speaker 01:
We also have the fraud ground.

[00:03:34] Speaker 01:
And as set forth in our brief,

[00:03:39] Speaker 01:
We allege fraud in this case.

[00:03:42] Speaker 03:
But you're still trying to vindicate the rights of the company in which your clients hold stock, right?

[00:03:54] Speaker 01:
Yes, the rights of the company, but also their individual protected interest.

[00:04:02] Speaker 01:
We allege three under, in our rule 24 motion, we allege three specific

[00:04:08] Speaker 01:
substantially protectable interests that justify the intervention in this case.

[00:04:15] Speaker 01:
But we are trying to, it's a hybrid, Your Honor.

[00:04:21] Speaker 01:
This is a very different kind of case.

[00:04:26] Speaker 01:
And I'm not aware of almost any kind of case where shareholders actually brought a Rule 60 motion

[00:04:35] Speaker 01:
after the company refused or showed no interest in bringing a Rule 60 motion.

[00:04:43] Speaker 01:
So there isn't a direct precedent for this type of intervention, yet the law, the law in the Ninth Circuit, on standing and on intervention allows us to intervene here, again, on the grounds of both privity and of both the fraud allegation.

[00:05:03] Speaker 03:
What Ninth Circuit case does the shareholder in a non-derivative student have standing because of its interest in the corporation?

[00:05:15] Speaker 01:
The, this, well, again, the cases, the cases, the cases for standing we rely on are, are in Ray La Sierra and Ayoc, Ayoc Village, Native Village.

[00:05:29] Speaker 01:
Those are the standing cases.

[00:05:30] Speaker 01:
But on the Rule 24 intervention, it was a protectable interest.

[00:05:35] Speaker 01:
Again, the Intel case in Central District of California found a protectable interest where the shareholders can argue and protect the right of the corporation to recover damages.

[00:05:51] Speaker 01:
So those are clearly the precedents that we're relying on to allow this specific kind of intervention and standing in this specific case.

[00:06:01] Speaker 02:
Are all your clients shareholders?

[00:06:05] Speaker 01:
Well, as it says in our introduction, the majority of the potty members are in fact Ameren shareholders, the overwhelming majority.

[00:06:16] Speaker 01:
But there may be people that, for instance, are part of a potty who are involved, say medical professionals,

[00:06:25] Speaker 01:
people that believe in the benefits, the medical benefits of the SEPA.

[00:06:30] Speaker 01:
But this is really, the rank and file of this organization are shareholders in Ameren who were gravely affected when their patents were invalidated on March 30th, 2020.

[00:06:45] Speaker 02:
But just to be fair, not all of your clients here are shareholders.

[00:06:53] Speaker 01:
Well, again,

[00:06:55] Speaker 01:
I can't vouch for every single member.

[00:06:58] Speaker 01:
As we were forthright in our brief, Your Honor, it is an ad hoc organization.

[00:07:04] Speaker 01:
It's not an LLC.

[00:07:06] Speaker 01:
It's basically a bunch of people who, as it states in the mission statement at the very beginning of our statement of the case in the brief,

[00:07:17] Speaker 01:
It's a bunch of people at a grassroots level who are, for the most part, Ameren shareholders, and who believe in large part in the benefits of the SEPA and want to seek to promote the benefits of the SEPA.

[00:07:33] Speaker 02:
If your clients had such a congressman interest in the action, why did they wait so long to do it?

[00:07:43] Speaker 01:
That's a great question, Your Honor.

[00:07:48] Speaker 01:
Yes, we are late in the game, but we have to look at the timeline set forth on pages 14 to 15 of our case.

[00:07:57] Speaker 01:
All right.

[00:07:57] Speaker 01:
Let's go through that timeline, of our brief, rather.

[00:07:59] Speaker 01:
Let's go through that timeline.

[00:08:01] Speaker 02:
You're more than late.

[00:08:03] Speaker 02:
It seems to me that the game was over.

[00:08:07] Speaker 01:
Not for purposes.

[00:08:08] Speaker 01:
We're within the time for Rule 60, Your Honor.

[00:08:12] Speaker 01:
Again, it has to be taken in context.

[00:08:16] Speaker 02:
You're looking to undo an unfavorable decision.

[00:08:22] Speaker 02:
Apparently, if they have a type of interest that you claim they have, then they knew of the lawsuit, they watched it, waited to see what the outcome would be, and then after they found out they don't like the outcome, then now you're seeking to

[00:08:41] Speaker 02:
to join and to participate in a way that it seems to me you should have done from the very beginning.

[00:08:51] Speaker 01:
Understood, Your Honor.

[00:08:52] Speaker 01:
But that's, again, that's not how this unfolded.

[00:08:55] Speaker 01:
Because there are two things that happened that after the judgment was entered, the case went up on March 30th, the case went up on appeal on April 2nd.

[00:09:05] Speaker 01:
In the Ninth Circuit, that appeal divests the court of any jurisdiction to hear a Rule 60 motion.

[00:09:14] Speaker 01:
Subsequent to the verdict and the judgment, it was discovered on August 5, 2020, the Kirkman paper came out showing that the Maury

[00:09:26] Speaker 01:
The reliance upon Maury in the district court's decision was mistaken.

[00:09:31] Speaker 01:
It was a statistical mistake.

[00:09:33] Speaker 01:
Thus, this was discovered after, while the case was on appeal, after judgment was rendered.

[00:09:39] Speaker 01:
Second thing, the crop table in Kurbayashi.

[00:09:43] Speaker 01:
The crop table did not appear until defendants post

[00:09:49] Speaker 01:
judgment post-trial proposed findings of fact at page 327.

[00:09:56] Speaker 03:
That table was in the record in the District Court, correct?

[00:10:01] Speaker 01:
The table was part of the record in the District Court.

[00:10:06] Speaker 01:
The entire table was part of the record in the sense that was exchange and discovery,

[00:10:11] Speaker 01:
And I know from the previous appeal, the Amherst appeal was part of the appendix.

[00:10:17] Speaker 01:
I do not believe it was introduced into evidence, but yeah.

[00:10:23] Speaker 03:
But shareholders are normally represented by the corporation.

[00:10:28] Speaker 03:
The corporation actively participated.

[00:10:30] Speaker 03:
The corporation decided to make the Rule 60 motion.

[00:10:35] Speaker 03:
Why is it that you suddenly

[00:10:37] Speaker 03:
uh, can take issue with the corporation strategy after the case is over with seek to intervene and raise a low 60 motion.

[00:10:46] Speaker 03:
If you didn't think the corporation was doing an adequate job, why wouldn't you have intervened early?

[00:10:52] Speaker 03:
We can't, I mean, this would create a situation in which shareholders in any corporation can

[00:10:59] Speaker 03:
after the facts say, oh, well, they didn't make the arguments we thought they should have made.

[00:11:04] Speaker 03:
So we're going to bring a separate claim under dual system.

[00:11:11] Speaker 01:
Your Honor, I understand where the court is coming from on that.

[00:11:14] Speaker 01:
However, this is not the this is this case is facts specific to this case.

[00:11:19] Speaker 01:
This these facts are unique here.

[00:11:22] Speaker 01:
because we again it's not it doesn't have to deal with inadequate representation while the trial was going on we could not make we could not have intervened any earlier than we did because again we did the grounds for the rule 60 did not emerge until afterward until afterwards the kerfman article didn't come out until after the case was on appeal uh and

[00:11:49] Speaker 01:
And the crop table was in the proposed post-trial findings of BAC, it took a while to figure out exactly what was going on there.

[00:12:00] Speaker 01:
Even to this day, Your Honor, in the district court's opinion,

[00:12:06] Speaker 01:
Despite the fact that we laid out the evidence of fraud very clearly in our moving papers, the district court said that there were unsubstantiated claims of fraud.

[00:12:22] Speaker 01:
So the district court didn't even figure out what was going on here.

[00:12:26] Speaker 01:
It took us a while to figure out.

[00:12:28] Speaker 01:
Once it was figured out, the demand letter was served.

[00:12:33] Speaker 01:
Remember,

[00:12:35] Speaker 01:
at an abundance of caution in case this was considered, and it is derivative in nature, but if at some point we filed and they move to dismiss based upon the failure to make a demand under New Jersey's derivative laws, we made a demand.

[00:12:54] Speaker 01:
A demand was made by a lawyer who's a party member and asking that Amarin file the Rule 60.

[00:13:02] Speaker 01:
Under that law, we have to wait 90 days.

[00:13:06] Speaker 01:
That demand letter was served on November 9, 2020.

[00:13:10] Speaker 01:
The 90 days passed in February 2021.

[00:13:16] Speaker 01:
We filed in March of 2021.

[00:13:20] Speaker 01:
So under the facts, we're not, I'm not seeking in this case, I'm not seeking to

[00:13:27] Speaker 01:
enact some broad principle allowing shareholders to reopen every single case.

[00:13:34] Speaker 01:
What I'm saying is in this case, we have a rather unique situation because of the article that came out after the trial and the discovery of the crop table, the fraud on the court after the trial.

[00:13:52] Speaker 03:
And then the crop table after the problem is totally accurate.

[00:13:57] Speaker 03:
You conceded the supposed crop table was in the record in the trial itself.

[00:14:05] Speaker 01:
Yes, it was in the record in the proposed findings back.

[00:14:09] Speaker 01:
But just because it's there doesn't mean that it was discovered or the significance or figuring out the significance of it.

[00:14:17] Speaker 01:
is discoverable.

[00:14:19] Speaker 01:
We submitted with our, we had to figure out, okay, is this its crop?

[00:14:23] Speaker 01:
What's the significance?

[00:14:25] Speaker 01:
We got to go find an expert to confirm.

[00:14:27] Speaker 02:
That's up to the, that's a responsibility of the parties in the litigation to look at evidence that's in the record and to then to base argument on it or to assert that evidence before the court.

[00:14:44] Speaker 02:
The fact that this evidence was in the record and nobody did anything about it doesn't mean that there was fraud or an abuse of discretion here.

[00:14:56] Speaker 01:
Well, just the fraud, the fraud exists, whether someone did something about it for the party or not, it still exists.

[00:15:07] Speaker 03:
You can't have fraud where you're aware of the facts.

[00:15:13] Speaker 01:
You can have, most respectfully, Your Honor, you can have fraud if facts, if the district court relies on facts that are not true.

[00:15:27] Speaker 02:
The district court- What is your argument?

[00:15:30] Speaker 02:
Are you arguing that the district court committed fraud?

[00:15:35] Speaker 01:
No, I'm not arguing that the district court.

[00:15:37] Speaker 01:
I am arguing that the district court made a mistake under- Are you arguing that the parties committed fraud?

[00:15:42] Speaker 01:
Yes.

[00:15:44] Speaker 01:
By cropping that table, yes, and by their expert, Dr. Heinecke, making a scientifically disingenuous statement, which is contradicted by the Kirbayashi study itself.

[00:16:02] Speaker 01:
And with that, Your Honor, I see I've went over.

[00:16:03] Speaker 04:
Well, let me just take just another minute or two on the merits.

[00:16:09] Speaker 04:
I thought your argument was that this was essentially newly discovered evidence that could not have been previously considered.

[00:16:19] Speaker 04:
And therefore, there must be a way in the interests of justice of the correct result of finding a way of bringing this evidence before the court.

[00:16:31] Speaker 04:
Is that correct?

[00:16:32] Speaker 01:
Yes, it is within newly discovered evidence.

[00:16:38] Speaker 01:
Certainly, the scientific article proving a statistical mistake on Maury was newly discovered evidence.

[00:16:46] Speaker 01:
That's correct, Your Honor.

[00:16:49] Speaker 04:
Okay.

[00:16:50] Speaker 04:
Well, as you can see, there are obstacles on the standing issue.

[00:16:54] Speaker 04:
Let's hear from the other side on this issue, and if need be, we'll take up the other points.

[00:17:02] Speaker 04:
Okay, Mr. Barabas.

[00:17:06] Speaker 00:
Good afternoon, Your Honor.

[00:17:07] Speaker 00:
May it please the court?

[00:17:10] Speaker 00:
Jim Barabas on behalf of the Defendant Appellees, Dr. Reddes and Hickma.

[00:17:15] Speaker 00:
Your Honor, we are in a very strange situation.

[00:17:18] Speaker 00:
This case was over.

[00:17:21] Speaker 00:
Obviously, the District Court came out with its ruling in March of

[00:17:25] Speaker 00:
2020, we had an argument before this Court in September of 2020.

[00:17:32] Speaker 00:
This Court affirmed under Rule 36, the District Court, that the patents were invalid, I believe, about a day after or six months after all of that in March of

[00:17:56] Speaker 00:
2021, Mr. Kasnauf and the EPA Drug Initiative first moved to intervene.

[00:18:05] Speaker 00:
So I want to speak initially to timeliness.

[00:18:08] Speaker 00:
Timeliness is an inquiry that the court has to consider for both intervention as a matter of right, as well as permissive intervention.

[00:18:17] Speaker 00:
And this court is reviewing timeliness

[00:18:19] Speaker 00:
For an abusive discretion would have to find that the chief judge of the district of the, excuse me, district of Nevada, Judge Miranda do abuse her discretion and in making a timeliness ruling and.

[00:18:35] Speaker 00:
And obviously, that's a very high standard.

[00:18:37] Speaker 00:
Abuse, court can find reverse for abuse and discretion only if there's a definite, or if there's a clear error of law, there's a clear error in the findings of fact, or if there's a definite and clear conviction that the court made a clear error of judgment.

[00:18:53] Speaker 00:
So, turning to timeliness,

[00:18:56] Speaker 00:
The Ninth Circuit courts look at prejudice, they look at the stage of the case, and they look at the length of and the reason for the delay.

[00:19:05] Speaker 00:
And taking prejudice first, the prejudice here is obviously enormous.

[00:19:09] Speaker 04:
Well, let's assume that the 90 days applies, and let's get more to the substance of the issues we've been talking about.

[00:19:17] Speaker 00:
Okay.

[00:19:21] Speaker 00:
I'm sorry, Judge Newman, what specifically did you want me to address in terms of the substance?

[00:19:26] Speaker 04:
Well, the question is, what do you want to address?

[00:19:29] Speaker 04:
What do you feel needs to be addressed?

[00:19:31] Speaker 00:
Yeah, no, I mean, I just feel that I was giving the court basically an easy way, if it would like.

[00:19:36] Speaker 00:
If the court agrees with Judge Dew's timeliness,

[00:19:40] Speaker 00:
uh, ruling, there's no intervention as of right, and there's no permissive intervention.

[00:19:45] Speaker 00:
And the ruling on timeliness, you look at prejudice, the stage of the case, and the length and the reason for the delay.

[00:19:51] Speaker 00:
The prejudice is enormous, as I think, uh, Your Honors have noted.

[00:19:54] Speaker 00:
Um, the stage of the case is, the stage of the case was over.

[00:19:59] Speaker 00:
Um, you know, and the only thing that had not happened, and it happened three months later, is the Supreme Court denied a petition for riddance of Sir Sherrari.

[00:20:07] Speaker 00:
But the case, uh, had,

[00:20:09] Speaker 00:
This court had ruled in this case, it affirmed this report six months before the drug initiative moved to intervene.

[00:20:18] Speaker 00:
And then finally, in terms of the length of and the reason for the delay, we heard Mr. Kastner's argument there.

[00:20:26] Speaker 00:
And one issue there is we're not looking at whether it would have been appropriate for Ameren, a party, to move under Rule 60 to vacate the ruling.

[00:20:35] Speaker 00:
Mr. Kastner and the EPA Drug Initiative are not a party to this litigation.

[00:20:41] Speaker 00:
So, and he was clearly aware of and following this litigation for a very long time before he moved to intervene.

[00:20:50] Speaker 00:
And you have a duty to intervene as soon as you become aware you have an interest in the case.

[00:20:55] Speaker 00:
And we know that, for example, this court had denied Mr. Casanoff and EPA drug initiatives

[00:21:02] Speaker 00:
Attempt to enter or attempt to file a meeting briefing at the federal circuit.

[00:21:08] Speaker 00:
That was 6 months before the intervention motion.

[00:21:12] Speaker 00:
So, at least 6 months before Mr. Casanoff, I presumably could have done something.

[00:21:20] Speaker 00:
And then turning, so if the court agrees again on just the finding of timeliness, which is courts reviewing for abuse of discretion, there's no intervention as a right and there's no permissive intervention.

[00:21:31] Speaker 00:
And then if I could turn briefly to rule 60.

[00:21:36] Speaker 00:
Rule 60 requires that to move to vacate, you've got to be either a party or a representative of a party, absolutely extraordinary circumstances.

[00:21:45] Speaker 00:
And Mr. Kassel and EPA Drug Initiative are neither.

[00:21:49] Speaker 00:
He's not a party.

[00:21:50] Speaker 00:
The parties are Ameren, Dr. Reddy, and Hickman.

[00:21:52] Speaker 00:
He doesn't represent a party.

[00:21:54] Speaker 00:
Ameren was represented at every stage of this case by a very prominent national law firm.

[00:22:00] Speaker 00:
And so then we turn to what are the extraordinary circumstances?

[00:22:04] Speaker 00:
Well, I've heard two theories this morning.

[00:22:06] Speaker 00:
We're talking about, I guess, privity and a virtual representation would somehow give Mr. Kastner the right to move to vacate under Rule 60 and also

[00:22:18] Speaker 00:
fraud.

[00:22:19] Speaker 00:
And with respect to the first argument, privity, for Ameren to have been a virtual representative would have required, among other things, that Ameren provided adequate legal representation.

[00:22:31] Speaker 00:
But we've heard very clearly from Mr. Kastner this morning that Ameren did not provide adequate legal representation.

[00:22:39] Speaker 00:
And in fact, Ameren did not make the arguments that should have been made about some particular reference

[00:22:46] Speaker 00:
in the litigation.

[00:22:48] Speaker 00:
So given that he's arguing for purposes of intervention, that the representation was adequate.

[00:22:57] Speaker 00:
And then here, he has to argue that the representation is, you know, or I'm sorry, excuse me, he's arguing that representation was inadequate for purposes of intervention.

[00:23:07] Speaker 00:
And then he's arguing here, he has to, by definition, argue

[00:23:11] Speaker 00:
for virtual representation, that the representation is adequate.

[00:23:15] Speaker 00:
I mean, the theories are kind of at war with themselves.

[00:23:19] Speaker 00:
And I note in Mr. Kasnaf's own briefing, he's admitted that he needs intervention to do anything under Rule 60, because otherwise he's not a party or a representative of a party.

[00:23:31] Speaker 00:
But clearly, the privity argument fails.

[00:23:34] Speaker 00:
With respect to the fraud argument,

[00:23:36] Speaker 00:
Even if we assume, and this is something, obviously, we all as the defendant police deny fervently that there was any fraud, much less fraud on the quarter or anything of that nature.

[00:23:48] Speaker 00:
But regardless, that's not Mr. Casanoff's and EPA drug initiatives claim to bring.

[00:23:54] Speaker 00:
Fraud requires to bring a fraud claim as a non-party that you would have to suffer some direct harm.

[00:24:00] Speaker 00:
And Mr. Casanoff's own briefing admits

[00:24:03] Speaker 00:
that they've suffered no direct harm.

[00:24:05] Speaker 00:
At most, they're shareholders.

[00:24:06] Speaker 00:
They suffer only indirect harm as shareholders.

[00:24:10] Speaker 00:
And that's, for example, the Rothenberg case, which is cited in the briefing.

[00:24:14] Speaker 00:
So he does not have standing to bring, you know, flawed claim as a non-party.

[00:24:19] Speaker 00:
So to address the question, Judge Newman,

[00:24:22] Speaker 00:
that you had posed about how do we come in with newly discovered evidence, you know, there's no standing and there's simply no way for Mr. Kasanoff and EPA Drug Initiative to do that.

[00:24:36] Speaker 00:
So unless this court has any questions for me, I have nothing further I will submit.

[00:24:43] Speaker 04:
Any questions for counsel?

[00:24:46] Speaker 00:
No.

[00:24:48] Speaker 04:
Okay.

[00:24:48] Speaker 04:
Thank you, Mr. Kasanoff.

[00:24:50] Speaker 04:
You have rebuttal.

[00:24:52] Speaker 03:
I have another concern, and that is I'm not sure that you complied with the required disclosure because you have not disclosed to the members of this ad hoc group.

[00:25:05] Speaker 03:
And I don't think the rules contemplate avoiding disclosure by forming an ad hoc group and then hiding behind the name of the ad hoc group.

[00:25:22] Speaker 03:
We can't hear you.

[00:25:23] Speaker 00:
I'm sorry, Your Honor.

[00:25:28] Speaker 01:
I was on mute during counsel, sorry.

[00:25:30] Speaker 01:
I apologize.

[00:25:34] Speaker 01:
Your Honor, certainly if we had to, I mean, if the court required it, we could list the members, but I'm not sure if there's a requirement that a group has to list

[00:25:50] Speaker 01:
all of its members to intervene or... I don't know.

[00:25:54] Speaker 03:
That would mean that you could form an ad hoc group of interested people and avoid disclosure.

[00:25:59] Speaker 03:
That seems to me not consistent with the rules.

[00:26:03] Speaker 01:
Right.

[00:26:03] Speaker 01:
Well, no one's trying to avoid any disclosure, Your Honor.

[00:26:06] Speaker 01:
I assure the court of that.

[00:26:09] Speaker 01:
I'm not sure if there's an actual disclosure requirement to list every member of a group.

[00:26:19] Speaker 02:
But in any event, let's- Your group is more, let's say, a loose coalition than any type of legal entity, right?

[00:26:30] Speaker 01:
I think that's fair to say, Your Honor.

[00:26:33] Speaker 02:
So wouldn't you have to show, if that's the case, wouldn't you have to show that every individual of that coalition has a Congressional interest in the litigation?

[00:26:46] Speaker 01:
I'm not so sure we'd have to show that, Your Honor, whether the law requires each individual.

[00:26:52] Speaker 02:
That seemed to me that would be a burdensome requirement for- But to list their names and then make a general assertion or a general statement of interest.

[00:27:04] Speaker 02:
But you haven't done that.

[00:27:05] Speaker 02:
That's why I was asking earlier whether your members or your clients were all shareholders.

[00:27:13] Speaker 02:
And the answer was no.

[00:27:15] Speaker 02:
Now, I would understand what type of Congressional interests a shareholder would have in the case, but just, you know, Jane Doe and John Doe walking down the street, what interests would they have?

[00:27:30] Speaker 01:
I understand what you're saying, Your Honor.

[00:27:34] Speaker 01:
I just can't personally vouch for every single member being a shareholder, but the overwhelming majority of the individuals in this group aren't back shareholders.

[00:27:44] Speaker 03:
So we can't even know that because we don't know who they are.

[00:27:51] Speaker 01:
Well, but we describe who they are.

[00:27:56] Speaker 01:
Certainly, if that's something I could absolutely supplement the record with them listing individuals, if that's what the court would require before rendering decision on this on this matter.

[00:28:10] Speaker 01:
But that that's

[00:28:14] Speaker 01:
I mean, coalitions, maybe not in this specific area, but coalitions and groups like that often in environmental cases, for instance, attempt to intervene and are granted standing routinely, especially in the Ninth Circuit, where a lot of those types of cases take place.

[00:28:36] Speaker 03:
Yeah, the coalition members are identified.

[00:28:41] Speaker 01:
Okay, but we did comply with the Republic.

[00:28:44] Speaker 01:
When we filed, for instance, in Nevada, we did have we did have the member sign off on the filing of of the lawsuit.

[00:28:55] Speaker 01:
And we, we could easily identify, again, supplement the record by identifying those members.

[00:29:05] Speaker 01:
If that's necessary for the court, I'm just not aware of any specific

[00:29:10] Speaker 01:
requirement under case law or court rule requiring specific identification of specific members, even in a loose coalition such as this.

[00:29:24] Speaker 01:
And if there is such a rule, I would gladly comply with that rule.

[00:29:30] Speaker 01:
It's just I didn't see such a rule as we were preparing this filing.

[00:29:38] Speaker 01:
If I may proceed to

[00:29:40] Speaker 01:
Are there any other questions on that specific issue?

[00:29:44] Speaker 04:
Please, we're short on time.

[00:29:47] Speaker 04:
Please give us a summary of the issues.

[00:29:52] Speaker 01:
All right.

[00:29:54] Speaker 01:
I urge the court to look at the Smith case in terms of the issues of timeliness and Rule 24.

[00:30:02] Speaker 01:
The Smith case cited in our brief, not even mentioned on the other side's briefs.

[00:30:07] Speaker 01:
because the wrong standards have been argued by the other side in terms of timeliness.

[00:30:13] Speaker 01:
The issue on timeliness is the date when we should have been aware that the interest would not be adequately protected by AMRIN.

[00:30:23] Speaker 01:
Now, and this is an important point that dovetails with the adequate representation prompt.

[00:30:29] Speaker 01:
Under the adequate representation prong, they were adequately represented during the trial.

[00:30:35] Speaker 01:
There's no argument there in that sense for purposes of Rule 24.

[00:30:40] Speaker 01:
However, once the newly discovered evidence was discovered post-trial, the demand was made for Amarin to file the Rule 60.

[00:30:50] Speaker 01:
At that point, the adequate representation did not

[00:30:55] Speaker 01:
happen anymore.

[00:30:57] Speaker 01:
There was not adequate representation.

[00:31:00] Speaker 01:
Because under adequate representation in the Ninth Circuit, you look at the factors whether the party, the present party, will undoubtedly make the arguments that the intervener is proposing.

[00:31:14] Speaker 01:
The second factor, whether the party is capable or willing to make such arguments.

[00:31:19] Speaker 01:
The third factor,

[00:31:20] Speaker 01:
whether the intervener would offer any necessary elements to the proceeding that the other parties would neglect.

[00:31:26] Speaker 01:
Under Ninth Circuit law, we have satisfied those points because the fact is we made a demand for AMRIN to adequately represent our interests in this case, and that demand was not responded to.

[00:31:44] Speaker 01:
So the present party is capable and willing, capable, but unwilling to make those arguments.

[00:31:50] Speaker 01:
Therefore, the representation is inadequate.

[00:31:53] Speaker 01:
And what does the intervener bring to this proceeding?

[00:31:56] Speaker 01:
The intervener brings the Rule 60 claims, specifically the mistake

[00:32:02] Speaker 01:
that there is not clear and convincing evidence to overrule, to validate these patents.

[00:32:10] Speaker 01:
The Mori was a statistical mistake.

[00:32:15] Speaker 01:
Likewise, the conclusion that the court drew on Kirby Ashi was different than what was actually in the Kirby Ashi document itself.

[00:32:27] Speaker 01:
And the crop elements of the table show that the difference between the two control groups was not significant, yet the court held that the probiashi showed significant benefit with EPA.

[00:32:44] Speaker 04:
As I recall your brief, you're not requesting a new trial.

[00:32:48] Speaker 04:
You're asking this court to decide, based on what you've just repeated, that the decision of the district court should be vacated.

[00:32:58] Speaker 04:
Is that correct?

[00:33:01] Speaker 01:
That is our most opportune, pristine remedy, the best-case scenario, Your Honor.

[00:33:06] Speaker 01:
But I want to make it clear, if the court is not in, the court has discretion on how, the court has discretion to grant that remedy.

[00:33:15] Speaker 01:
But the secondary remedy, if the court was to find that we have the district court abuse this discretion on standing and intervention, this case could be remanded for the district court to then hold a hearing, a full plenary hearing

[00:33:34] Speaker 01:
on the Rule 60 issue.

[00:33:35] Speaker 01:
So that's another option for this court.

[00:33:37] Speaker 04:
You didn't mention that in your brief, as I recall.

[00:33:42] Speaker 04:
It was quite firm.

[00:33:44] Speaker 04:
It should just vacate the district court decision.

[00:33:49] Speaker 01:
Well, Your Honor, that's an excellent point.

[00:33:52] Speaker 01:
But keep in mind, there are two district court decisions.

[00:33:56] Speaker 01:
There is the original district court decision, and then there is the second district court decision, the one where we tried to intervene.

[00:34:04] Speaker 01:
And the second district court decision in its substance only addressed the intervention and the standing.

[00:34:11] Speaker 01:
It did not address the Rule 60.

[00:34:15] Speaker 01:
So again, if I could have been more clear in that, I apologize.

[00:34:19] Speaker 01:
But in terms of vacating,

[00:34:21] Speaker 01:
The court, again, the pristine remedy is to vacate the original decision.

[00:34:28] Speaker 01:
But if the court is not inclined to vacate the original decision, the court can vacate the second decision.

[00:34:34] Speaker 01:
Vacation of the second decision, meaning the court would not make findings of fact on Rule 60, but would make findings of fact on standing and intervention, specific issues that the district court addressed in our intervention motion,

[00:34:49] Speaker 01:
and then a remand would be appropriate at that time.

[00:34:54] Speaker 04:
Okay.

[00:34:55] Speaker 02:
Judge Raina, I think you were asking a question.

[00:35:00] Speaker 02:
Yes, I was, but I'm fine.

[00:35:02] Speaker 02:
I'm good.

[00:35:02] Speaker 02:
Thanks.

[00:35:10] Speaker 02:
Did you hear me?

[00:35:12] Speaker 02:
Yes.

[00:35:13] Speaker 02:
Oh.

[00:35:14] Speaker 02:
Yeah.

[00:35:14] Speaker 04:
Okay.

[00:35:15] Speaker 02:
Okay.

[00:35:16] Speaker 02:
I'm okay.

[00:35:17] Speaker 04:
I don't have any other... All right.

[00:35:19] Speaker 01:
Okay, yeah, I'm about five minutes over my time.

[00:35:24] Speaker 01:
That's why I didn't say anything.

[00:35:27] Speaker 04:
All right.

[00:35:28] Speaker 04:
Well, you can have a last sentence if you need it.

[00:35:34] Speaker 04:
Otherwise, I think we have the points.

[00:35:38] Speaker 04:
The case is taken under submission.

[00:35:40] Speaker 04:
Thanks to counsel.

[00:35:42] Speaker 02:
Thank you.

[00:35:42] Speaker 02:
Thank you, Your Honor.

[00:35:44] Speaker 02:
Thank you.

[00:35:47] Speaker 03:
The honorable court is adjourned from day to day.