A Hint of What's Coming in the Nacchio Appeal

Kevin O'Bien has written a three part series on the reversal by theTenth Circuit of the trial court's approval of a civil settlement in one of the suits against Qwest (New England Health Care Employees Pension Fund v. Woodruff). 

While this has already been raised to some degree, we take a moment and emphasize the implications for the merit review of Joe Nacchio.  This reversal was written by Judge Kelly, who also sat on the panel hearing Nacchio's merit review.  Judge Kelly's opinion is not particularly deferential to the district court, contains a lecturing tone (explicitly telling the trial judge what to do on remand), and comes out in favor of Nacchio and Robert Woodruff.  

Sound familiar?  At the oral argument in the merit appeal, Judge Kelly was deferential to counsel for Nacchio, openly annoyed at the trial judge, and sometimes lecturing in tone.  Whatever the outcome of the merit panel, Judge Kelly's vote can be counted on for reversal. 

Having already predicted the 5-3 vote in Stoneridge and the affirmance by the 7th Circuit in Tellabs, we are of course predicting a reversal of the conviction of Joe Nacchio, with Judge Kelly siding with the former CEO.  It will be a prognostication trifecta.