The initial, August 20, 2007, decision in Atlantic v. Howell, a pro se Arizona case, was vacated on September 27, 2007.
The RIAA lawyers had cited the initial decision to Judge Davis in Capitol v. Thomas.
The Thomas trial started on October 2, 2007.
On October 4th, there was oral argument in Capitol v. Thomas concerning the jury instructions to be given. Judge Davis wound up agreeing with the RIAA's argument, discarded the instruction he had originally decided to use, and accepted the improper instruction requested by Mr. Gabriel. And as everybody knows, a ludicrous jury verdict was the result.
So a period of seven (7) days had elapsed between the vacatur of the initial Howell decision and the oral argument and jury instruction.
I noted that day, in one blog post, that in two cases my office was handling -- Elektra v. Barker and Warner v. Cassin -- the RIAA's lawyers had "forgotten" to notify the respective judges that the Atlantic v. Howell decision which they had earlier brought to the attention of those judges had been vacated. I wondered, in another blog post, "if the RIAA lawyers ever brought it to the attention of Judge Davis that their favorite case, Atlantic v. Howell, was vacated."
Well I guess Judge Davis's new order answers my question.
They "forgot" to notify him as well.
Just as they "forgot" to notify him about the controlling contrary authority of the National Car Rental case.
Judge Davis seems to be under the misconception that it has been "since" vacated.... i.e. vacated AFTER the trial.
Wait 'til he finds out the truth.
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