[00:00:13] Speaker 02: The next case is Halo Electronics versus Pulse Electronics, 2016. [00:00:19] Speaker 02: 2006. [00:00:20] Speaker 02: Mr. Pogge, is it? [00:00:27] Speaker 02: Pogue, your honor. [00:00:28] Speaker 02: Pogue, sorry. [00:00:31] Speaker 05: Thank you, your honor. [00:00:31] Speaker 02: You've been here before. [00:00:32] Speaker 05: I have, your honor. [00:00:34] Speaker 02: Here and elsewhere. [00:00:37] Speaker 05: I've been here for 32 years, sadly, or gladly. [00:00:42] Speaker 05: I'd like to spend my time discussing the wrong statements made by HALO's counsel at the motion hearing for the prejudgment interest. [00:00:51] Speaker 05: In their reply brief they had said that they had taken an appeal to the Federal Circuit under the 1292 C option as they said and At the hearing I called called them on it. [00:01:05] Speaker 05: That was really a false statement. [00:01:06] Speaker 05: Mr. Countryman here agreed that he had actually taken the appeal under 1295 but then [00:01:14] Speaker 05: pushed on and said that the Federal Circuit, he had intended to do a 1292C appeal. [00:01:20] Speaker 05: And at the Federal Circuit, this panel, except for Judge Moore, said that they had exercised jurisdiction under 1292C. [00:01:31] Speaker 05: And Judge Gordon, that was false. [00:01:34] Speaker 05: Judge Gordon did believe it, and he granted the motion for prejudgment interest. [00:01:39] Speaker 05: And why did they do that? [00:01:41] Speaker 05: Why did they say those statements? [00:01:43] Speaker 05: was interesting because they were two years late in making the motion. [00:01:49] Speaker 05: It was a final judgment. [00:01:52] Speaker 04: Can you, before you get into all that, explain what are you taking the appeal from here? [00:01:58] Speaker 04: Is there a final judgment under 1295? [00:02:01] Speaker 04: Because I thought the parties were still disputing the actual amount of pre-Vincent interest owed. [00:02:08] Speaker 05: No. [00:02:08] Speaker 05: We're doing everything. [00:02:11] Speaker 05: Well, then answer the question. [00:02:14] Speaker 04: Is there an order saying you owe x amount of dollars for pre-veteran interest? [00:02:21] Speaker 05: Yes. [00:02:22] Speaker 05: It's in appendix page one. [00:02:29] Speaker 04: And how much do you owe? [00:02:31] Speaker 04: He didn't get that far. [00:02:33] Speaker 04: So this is it. [00:02:34] Speaker 04: Don't tell me he said you owe X amount of dollars when he didn't say that. [00:02:39] Speaker 04: That's really frustrating. [00:02:41] Speaker 04: This is what I'm asking you about. [00:02:43] Speaker 04: Is there a final, precise articulation of damages? [00:02:47] Speaker 04: Or did he just award prejudgment interest and say, figure it out, and if not, come back to me? [00:02:53] Speaker 04: That's what he said. [00:02:54] Speaker 05: I award Halo prejudgment interest. [00:02:56] Speaker 04: So where is a final judgment that sets forth an actual dollar amount? [00:03:02] Speaker 04: Or are you still disputing the actual dollar amount in district court? [00:03:06] Speaker 05: There still is a dispute over the actual dollar amount. [00:03:08] Speaker 05: Then how do we have jurisdiction? [00:03:10] Speaker 05: You have jurisdiction because this is a 1295 case. [00:03:14] Speaker 05: The motion for prejudgment interest has to be made under Rule 59E, and there's a 28-day limit. [00:03:24] Speaker 04: I'm not talking about the merits of your argument on appeal here. [00:03:28] Speaker 04: I'm talking about whether his order awarding prejudgment interest is sufficiently final for you to appeal it. [00:03:35] Speaker 05: It is. [00:03:36] Speaker 05: As a matter of law, it is, because he had no [00:03:38] Speaker 05: He had no jurisdiction. [00:03:40] Speaker 05: He had no right. [00:03:41] Speaker 05: He had no basis. [00:03:42] Speaker 04: He couldn't do it. [00:03:42] Speaker 04: That's not answering my question. [00:03:43] Speaker 04: He could very well be wrong, but his order is still interlocutory because he has not awarded an actual number of damages. [00:03:52] Speaker 05: We're way past final judgment on this case. [00:03:54] Speaker 05: The case is closed. [00:03:56] Speaker 00: This is your argument on the merits. [00:04:00] Speaker 00: I have to say I share Judge Hughes's concern that putting the merits completely aside, which is all you want to talk about because you feel like you have a strong case on it, [00:04:13] Speaker 00: I'm not sure I can get to those merits because there remains a dispute over the amount of prejudgment interest and therefore that decision of his, whether right or wrong, whether he had jurisdiction to make it or not, is just not properly yet on appeal to us. [00:04:28] Speaker 05: We've had this discussion amongst ourselves. [00:04:30] Speaker 05: I've had this discussion with counsel over here about the issue. [00:04:34] Speaker 05: The fact of the matter is, had we not appealed when we did and gone later and then just gone through all this sort of pointless motion practice at the district court level, they would have been hollering that we had waived the appeal because we didn't do it on the order. [00:04:51] Speaker 04: They would be wrong. [00:04:52] Speaker 05: Well, they're wrong now. [00:04:54] Speaker 05: And this should be heard now. [00:04:56] Speaker 05: This is post-judgment. [00:04:58] Speaker 04: It doesn't get any fun. [00:04:59] Speaker 04: Essentially because this is post-judgment, any adverse order of the district court is appealable to us. [00:05:05] Speaker 04: Do you have any case law that supports that? [00:05:08] Speaker 04: I assume you're not trying to argue that you can appeal a non-final interest order under 1292C, aren't you? [00:05:17] Speaker 05: I'm not arguing anything other than that this is a 1295 appeal. [00:05:22] Speaker 05: The Supreme Court says that this is a level 59E [00:05:27] Speaker 05: motion, and because of rule 59E, it's 1295, and 1295, it was over two years ago. [00:05:36] Speaker 05: That's the law. [00:05:37] Speaker 05: The Supreme Court says that this is a rule 59E motion, and it was made after 28 days, and therefore, they're not entitled to make the motion. [00:05:46] Speaker 04: But it still means that any opinion of the district court on the 59E motion has to be a final opinion and judgment before it can be appealed to us. [00:05:57] Speaker 04: Otherwise, your position is, as long as there's a final judgment, then any post-judgment motions can be appealed, even if they're not final. [00:06:05] Speaker 04: And that can't be the law. [00:06:08] Speaker 05: Well, what is the law, Your Honor, is that this was as final as it has to get when this man started down, when this judge started down, listening to a prejudgment interest motion. [00:06:21] Speaker 04: So what is your precedent for the notion that a judgment awarding interest [00:06:27] Speaker 04: But not putting in an actual number is a final judgment. [00:06:34] Speaker 00: Especially when it's clearly disputed by the parties, when there's clearly a continuing dispute over what that number should be. [00:06:41] Speaker 00: So the case is not resolved. [00:06:45] Speaker 05: My precedent is the Supreme Court, Your Honor. [00:06:49] Speaker 05: And you know what that is. [00:06:51] Speaker 05: That is that this is a post-judgment motion for prejudgment interest under Rule 59E. [00:06:58] Speaker 05: And because of that, he's not entitled to award for judgment and interest. [00:07:05] Speaker 05: That's as final as it needs to get in order for you to see that. [00:07:09] Speaker 00: You just say my precedent is the Supreme Court. [00:07:13] Speaker 00: Well, the Supreme Court is a building or nine people. [00:07:16] Speaker 00: What case are you talking about that you think clearly demonstrates that we have jurisdiction over this Rule 59 order? [00:07:27] Speaker 05: It's Ostronach against Ernst & Winnie, 1989. [00:07:33] Speaker 05: And the Supreme Court says that our conclusion is that a prejudgment motion for discretionary prejudgment interest is a Rule 59E motion. [00:07:49] Speaker 04: I don't know how that helps you. [00:07:51] Speaker 04: That's your merits argument, that the district court untimely exercised jurisdiction over that case. [00:07:56] Speaker 04: His order still has to be final on that point before it can be appealed to us. [00:08:02] Speaker 04: Do you have a case that says an order awarding interest but postponing calculation is final for purposes of appeal? [00:08:12] Speaker 05: I don't have anything that specifically says that, Your Honor. [00:08:16] Speaker 05: No, I don't. [00:08:16] Speaker 05: But I do know this, I do know that had we not appealed when we did, we would have been here anyway later with them saying we had waived and then we would have been litigating whether or not we should have moved earlier. [00:08:28] Speaker 05: That's the discussion I've had with these people and they agreed with that. [00:08:32] Speaker 05: that this is such a contrarian situation. [00:08:35] Speaker 04: I'm sorry. [00:08:35] Speaker 04: You always want to appeal when you get an adverse interlocutory ruling. [00:08:39] Speaker 04: We hear this from every party that appeals an adverse interlocutory ruling that's premature. [00:08:45] Speaker 04: It's better to resolve it now. [00:08:46] Speaker 04: It may be better resolved now, but we have a final judgment rule. [00:08:54] Speaker 05: Every time I read their brief, Your Honor, I can't make any sense out of it, because they want to say that the judgment [00:09:01] Speaker 05: That was issued by Judge Perot. [00:09:03] Speaker 05: It's not a final judgment. [00:09:05] Speaker 05: That's why they made their false statements. [00:09:07] Speaker 05: They tried to turn this into a 1292C. [00:09:11] Speaker 05: And that's why they're attacking, they're saying anything they can to say that this isn't final enough. [00:09:16] Speaker 05: It is final enough. [00:09:17] Speaker 00: I understand. [00:09:19] Speaker 00: uh, your concern over wanting to preserve your right of appeal. [00:09:27] Speaker 00: And you've surely done that now. [00:09:30] Speaker 00: And so you don't, I mean, while it costs your client a lot of money and you're only $200,000 apart in your actual prejudgment interest fight, [00:09:38] Speaker 00: You've nonetheless done it because if we rule that this isn't ripe yet and therefore there's no jurisdiction, then we have surely guaranteed and eliminated their future ability to say it should have been appealed earlier and you're now time-barred, right? [00:09:53] Speaker 00: So even if you lose now, you win. [00:09:56] Speaker 00: If your concern is if we didn't appeal it now later, they would say we should have appealed it now. [00:10:03] Speaker 00: Well, if we say you can't appeal it now, [00:10:06] Speaker 00: You still win because you've preserved the right to appeal it later. [00:10:09] Speaker 05: Right? [00:10:10] Speaker 05: Yes, that's correct. [00:10:12] Speaker 05: I'll reserve further comment after we listen to what they have to say. [00:10:16] Speaker 02: We'll save it for you, Mr. Countryman. [00:10:21] Speaker 01: Thank you, Your Honor. [00:10:22] Speaker 01: May it please the court. [00:10:24] Speaker 01: This court should dismiss the appeal for lack of jurisdiction. [00:10:27] Speaker 01: As has been noted, there is no final order because the amount of prejudgment interest. [00:10:31] Speaker 03: You didn't argue that in your briefs, did you? [00:10:32] Speaker 03: I mean, why are we having to figure this out for ourselves? [00:10:36] Speaker 01: I think we did say that there was a lack of jurisdiction in our briefs, Your Honor. [00:10:42] Speaker 01: Perhaps we could have been more clear about the fact that the prejudgment interest was not quantified. [00:10:46] Speaker 01: But the fact remains that it isn't. [00:10:48] Speaker 01: And so as a result, there is no final order. [00:10:51] Speaker 01: And the parties are quite a ways apart. [00:10:53] Speaker 01: So the reason why you wouldn't want to allow an order like this to be appealable is because then you could have a subsequent appeal over the amount once the district court actually rules on it. [00:11:03] Speaker 01: So there is no jurisdiction because the amount of interest hasn't been quantified. [00:11:08] Speaker 01: There's also the pending issues regarding enhanced damages that are still at the district court that haven't been decided. [00:11:13] Speaker 01: So the judgment additionally is not final for that reason. [00:11:16] Speaker 01: And I would say, I mean, we have never [00:11:19] Speaker 01: suggested that they would be waiving any disputes on this issue if they didn't take the appeal. [00:11:25] Speaker 01: Now, in fact, we told them to be confers when they took this appeal that we didn't think there was jurisdiction. [00:11:31] Speaker 01: So we think the appeal should be dismissed for jurisdiction. [00:11:34] Speaker 01: We completely agree that everything would be preserved. [00:11:38] Speaker 01: uh... to be taken up and really what should happen is there should be a final uh... appeal at the end and these issues should be dealt with and a final appeal that also deals with our pending motion for enhanced damages and fees uh... I really have a tremendous amount of respect for the fact that you just said all of that on the record because it's very helpful [00:11:56] Speaker 00: Was it your position with opposing counsel? [00:11:59] Speaker 00: Did you communicate to them your belief that they would have the right to appeal after the decision on the amount was reached? [00:12:08] Speaker 00: I'm just wondering about the legitimacy of his concern that you would have challenged their right to appeal later and whether or not you did everything you could to help avoid this. [00:12:20] Speaker 00: I appreciate [00:12:21] Speaker 00: quite really truly appreciate everything you've said. [00:12:25] Speaker 00: And I think that it was a very good thing for you to have said, because now it's on the record. [00:12:29] Speaker 00: And clearly, you can't later dispute for judicial estoppel that they have the right to appeal it. [00:12:34] Speaker 00: I think it's the right thing to have done. [00:12:36] Speaker 00: You can't take the position there's no jurisdiction and not do that, right? [00:12:39] Speaker 00: That would, credibility. [00:12:40] Speaker 00: 100%, you're on top of it. [00:12:42] Speaker 00: But did you communicate that to them in advance that could have mooted the need for all of this? [00:12:47] Speaker 01: So I have to say, I don't know specifically, because I wasn't a party to those discussions. [00:12:52] Speaker 01: But my understanding is that my colleagues did communicate to them. [00:12:55] Speaker 01: And also, we had a status conference in the district court where we were discussing the pending motion for enhanced damages. [00:13:00] Speaker 01: And this appeal came up. [00:13:01] Speaker 01: And we did say to the district court that there was no jurisdiction because the amount hadn't been quantified. [00:13:07] Speaker 01: And so I think, having consistently taken the position that there's no jurisdiction, I think the understanding is, of course, there will be jurisdiction. [00:13:16] Speaker 04: Did you move to dismiss this appeal prior to the filing of the group? [00:13:20] Speaker 04: I see your subject matter jurisdictions, although [00:13:23] Speaker 04: They're a little bit more about whether damages had been determined and whether interest had actually been finally awarded. [00:13:28] Speaker 01: Right. [00:13:29] Speaker 01: We did not move to dismiss it. [00:13:30] Speaker 01: We noted the jurisdictional issue, I think, in our docking statement and our statement of jurisdiction. [00:13:34] Speaker 01: So I apologize if we've caused some trouble. [00:13:37] Speaker 04: I mean, you're not required to, but it certainly would have brought the attention to the forefront before all the briefing, and we had to wade through all of this. [00:13:44] Speaker 01: Understood. [00:13:44] Speaker 01: So apologies for that. [00:13:47] Speaker 01: Unless there are any other questions, we submit that the appeal should be dismissed. [00:13:51] Speaker 02: Thank you, counsel. [00:13:53] Speaker 02: Mr. Hogue, there's some rebuttal time. [00:13:56] Speaker 05: Just a little bit. [00:13:57] Speaker 05: My discussions were with Mr. Cain and not Mr. Countryman over this issue. [00:14:02] Speaker 05: And amongst ourselves, we decided that the better course was to just go forward with the appeal from that award. [00:14:09] Speaker 05: Because at that point, it's not a matter of discretion. [00:14:12] Speaker 05: It is a matter of law. [00:14:13] Speaker 05: And that's where we left it as far as that goes, Your Honor. [00:14:21] Speaker 05: And with that, I will close. [00:14:23] Speaker 02: Thank you, counsel. [00:14:24] Speaker 02: We'll take the case under advisement.