We just finished up with the oral arguments at the Ninth Circuit courthouse in San Francisco. We’ll have a more detailed report later today, but our initial reaction is that it looks like at least two of the three judges are very skeptical whether there was an appealable final order in the case, and thus may be ready to dismiss the appeal for lack of jurisdiction. One judge seemed to understand and accept the appellants’ jurisdictional arguments, so if the court dismisses, we may see a dissent.
Of course, with appellate arguments it’s always a fool’s errand to predict the outcome based on oral argument (but that doesn’t stop us from doing it, does it?), so we may be totally off the mark. But when the court spends 95% of the time talking jurisdiction and not the merits, if you are the appellants’ lawyer, you must have your doubts.
More to follow soon. Update: here’s our more complete analysis of the arguments.
(Yes, the above photo accurately reflects that we were sitting on the courthouse steps while writing up this post.)