"Law and common sense are not twin brothers. All to often, they are distant cousins."
This is one of the best posts you have ever made. However, it also shows why your other posts this evening are completely wrong.
Milestone and others can perhaps comment more on this, but unlike most other professions, the law is designed to separate what is "right" from "wrong", "good" from "bad", and so forth. Since most people have an innate sense of those things, they think they "know what the law must be" to at least some extent, and this makes them want to predict what is "fair" or "reasonable", or whatever else is at issue in a given scenario. In acutality, however, what is "fair" or "reasonable", or what "just has to be right", tends to be in the eye of the beholder --- he who desires a given result tends to use his innate sense of "the law" to justify it. That is exactly what you have done.
SGE, the remainder of this post is not directed at you. I continue to appreciate your having provided your numerical estimates of "win" versus "loss", and while I disagree with some of your other thoughts on the subject of settlement, we can leave that for later. It may be that we simply agree to disagree, which is always acceptable to me.
Yes, B-L, SGE was wrong in the post to which you were referring --- and yes again, he is wrong because I said he is wrong, in that I know what I am talking about and he does not. I don't mean to sound arrogant by using the phrase "because I said so", and I would not have done so had you not posed your inquiry that way. However, I know SGE is wrong because I have practiced law in the field of litigation for over 26 years, while SGE is not a lawyer --- nor are you. If you share SGE's opinion, then you are wrong, too. Both of you are entitled to your opinions, i.e., you are entitled to be wrong if you wish --- but you are still wrong, irrefutably and absolutely.
You are also wrong when you say I refuse to acknowledge even a possibility we came away as the winner in the settlement. I don't recall ever saying that --- I have simply said that the mere fact of the settlement alone, in and of itself and without knowing the numbers, does not tell us one way or the other. That is 100% accurate, and if you find an experienced litigation attorney anywhere that tells you otherwise, I want his or her name and phone number. If you look back at my prior posts, I even agreed with you that a "large" settlement would be "validation" of our position to other potential defendants --- in fact, that's one of the things that started my inquiry to everyone as to what is "large", "huge", etc. in this context.
Sure, you'll see all kinds of talk from lawyers in PRs out there about how they "prevailed" by settling, how they are now "ready to sue other defendants", and so forth. I certainly would not expect any such attorney, who is going to expose himself or herself in a PR, to say he or she lost. You will also see PRs in which both sides say they "won", merely because the litigation was terminated and they can each go about their merry ways. All such public statements are "spinned" so as to accentuate the positive --- obviously, few companies or lawyers would want to accentuate the negative in a public statement.
And by the way, remember that our case was taken to mediation. Interestingly, most experienced mediators will tell you that what they consider to be the best settlements are those in which none of the parties felt they "won" --- otherwise, it wouldn't be a settlment, but instead, a capitulation. I have mediated hundreds of cases, and there are indeed some in which I feel I have "lost" or "won", but they are the exception rather than the rule. In the vast majority of those cases, the ultimate number has been within the range of fairness, which means there is no winner or loser, only that the amount paid is a fair reflection of the risk involved --- as a bottom line propostion, litigation is simply risk management.
On another subject, you are also wrong in one of your other posts this evening when you say that if the settlement was meager, there would be no NDA. I devoted a whole post to this yesterday, which you can go back and read if you wish --- in a nutshell, however, the simple fact of the matter is that NDAs are routine, standard, everyday clauses in settlement agreements with large corporations, especially multinational corporations in these kinds of cases. You can use your "common sense" to spin it any way you want, but you will still be wrong.
I have had cases of my own in which confidentiality clauses were included when the amount of the settlement was as low as $5000.00. Indeed, I sued Best Buy myself last year dealing with a defective computer monitor, and we settled the case for about $230.00 --- you guessed it, Best Buy's settlement form included a confidentiality clause (which I rejected because I wanted to be able to tell other consumers about their business practices --- I can't promise, but if I didn't throw it away and can find it, I might be able to fax it to you). So, on this point, you are, again, 100% wrong --- irrefutably, absolutely, and again, since you asked, because I say so. I'm the guy with the law degree and the litigation experience --- you aren't.
If you do have personal or professional experience that shows the inaccuracy of any of the above, let's hear about it --- or, you could just come out and call me a liar. Otherwise, it might be time for you to consider silence for a change.
Since you apparently have not understood, or have chosen not to understand, my prior posts on this subject, I will summarize my position for you.
First, and hopefully obvious, there has been no judically declared "win" for either party as a result of the settlement. Speaking from the position of TPL/PTSC, there is no "judgment of infringement" or "judgment of validity" that we can mail to other potential defendants with which to enhance our subsequennt settlement demands.
Second, I do not know at this moment who, if either side, "won" the settlement as a practical matter. I won't be able to tell you that until "the numbers" come out in our April 10Q (if they can be discerned), or until the market reacts to whatever is perceived to be "the numbers". Returning to my extreme example from yesterday, if we settled for $1.00, that would certainly be a "loss", while conversely, a settlement of $500 multimegabazillion would certainly be a "win" --- however, for a more realistic idea of such, see my post of last night in which I indicated basic agreement with Milestone's numbers.
I hope this clarifies some of these concepts for you. Best wishes.
