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Idle Thoughts While We Wait For Judge Jackson

|Includes: XpresSpa Group, Inc. (XSPA)

Over on the non-YMB board, and privately here on SA, I have been asked from time to time why I have been so quiet. I posted this reply there, and I thought I would post some of it here as well:

To be honest, during the month or two before trial, during the trial, and for a short period after, things were moving pretty hot and heavy in the case with new motions, orders, and issues arising several times a week. Since then, the pace in the case has slowed considerably, and there frankly aren't that many goings on in the case.

I am aware that there are multiple post-trial motions pending, and in bits and pieces, and in different places, I have already touched on my thoughts on most of the pending issues. But for the sake of not having anybody have to search through prior articles or posts, here are some of my thoughts on various topics (in brief form):

Running Royalties
I have been pretty consistent in arguing that I think the safest and most likely outcome is that Judge Jackson will award running royalties of 3.5% on 20% of Google's AdWords revenues. This is the only number that is directly supported by the trial evidence. Of course, the 3.5% was the number that the jury found to be appropriate for a running royalty, and I don't think there is any support in the record for a higher royalty base than 20% (or 20.9%, to be precise).

That having been said, Vringo has some pretty significant arguments in favor of a higher running royalty. Whereas the past royalty would be based on a hypothetical negotiation between the parties at the time the infringement began, taking into account their relative size, need, market power, etc., the FUTURE or running royalty could certainly be based on a different set of negotiation circumstances, namely the fact that Google is now an adjudicated infringer that is using Vringo's IP without its permission. In a previous SA article, I cited to a really well thought out article setting forth good arguments why Courts frequently set running royalties at a HIGHER rate than the royalties set by the jury.

Personally, I am sticking with my 3.5% guess-timate, but mostly because I believe that the ultimate running royalty rate will be at least that much, if not higher.

Google's Renewed JMOL's
I think these will be denied. Again. Excuse me for yawning.

Motion for New Trial on Dollar Amount of Past Damages Only
This is a really good motion. It should probably be granted, but as I have mentioned before, I think the Judge's inclination is going to be to leave the jury verdict intact. If the Judge were writing a law school essay, I'm pretty sure he would say the issue of damages should be retried. Since this is real life, I think the Judge grits his teeth and leaves things the way they are.

I don't think the Judge was right on this one, for strictly procedural and notice reasons. I think he stands an even chance of getting reversed on the laches issue, but this doesn't mean that Vringo therefore automatically gets a crack at all past damages. It means that the appellate court sends the past damages issue back to Judge Jackson, who then gets to address the issue of laches again, and I think next time, he rules the same way, but does it procedurally correctly. I don't see a lot of hope for Vringo on the laches issue, and none of us should be banking on that as a future windfall.

The Ravicher Flip-Flop
I pretty much agree with Alan Brochstein, and for most of the same reasons. I have a few other thoughts, but they would be unseemly, and so are probably best left unsaid. I think the fact that Dan's biggest endorser is Modernist, pretty much tells the tale. That having been said, there is no question that Dan has to be a pretty smart guy. I just wish he would be more responsive to legitimate questions that commenters (including me) have posed in response to his articles.

Adam Gill
Nice article, and I agree that his conclusions are well thought out and reasonable. I don't personally think the Judge has much incentive to grant Google's request to delay briefing over Vringo's objection, though, because: (1) the parties already agreed to a briefing schedule and now Google is trying to depart from it; (2) this Judge seems to be very cooperative to grant continuances that are agreed to, but otherwise he strikes me as a pretty pedal to the metal guy; (3) I think Vringo's argument that they would be prejudiced by further delay is very reasonable, given that in the meantime Google continues to act as an adjudicated infringer and continues to infringe, without paying for its use of Vringo's IP; and (4) I'm guessing that everybody, including Google and Dan Ravicher, already knows that Judge Jackson is probably going to deny the JMOLs (again) for the umpteenth time, and so the idea of delaying the future royalties to chew on the JMOLs doesn't make a lot of sense. Everybody should bear in mind that litigation is inherently unpredictable, so Adam's guess is as good as mine, maybe better. But my feeling on that issue is different from his, though I would not be shocked if he is 100% right on that issue. It's educated guesswork.

Vringo European Litigation
What I am spending more time thinking about these days are the 3 ZTE lawsuits in UK and Germany. I think we got, and are in the process of getting, a resoundingly good result in the Google case. The market certainly doesn't agree yet, but I sincerely believe that it's because the market has to wait for specific decisions to come out in order to price in results. But in a sense, Google is already somewhat in the rear view mirror. Vringo has three cases against ZTE pending in Europe, and I am trying to learn about those cases and legal processes, because I think that's the next area that's going to impact our crazy little stock. If I can put together enough helpful information to help all of us understand what is at stake and what is going on in Europe, I'll certainly disseminate it.

I wish I had more time, as I really do enjoy reading and thinking about the Vringo case. I do try to check into this Board frequently, and I frankly don't have a lot to add to the mix that is any better or different from what anybody else is already saying. I do feel badly if anybody feels like I have abrogated my responsibility to contribute. I view this board as a community, and that we all have a responsibility and that it is a privilege for us to contribute. But time is an issue for me. In truth, I have been very grateful and gratified that ThinkingMan, Tim, and Newbie have stepped up to help with moderation. You guys don't know what a favor they have done us all. And I appreciate the very high level of conversation we have here, although I do enjoy the occasional YMB visit when I need a TIIIIMMMMMMMBERRRRR!!! fix. Or not!


Disclosure: I am long VRNG.