It doesn't take a crystal ball to see that there will be an en banc call in this one. Or that, most likely, it'll prevail, and that the resulting opinion will (depending on the draw) probably reverse existing circuit precedent.
All one needs to do is to read Judge Wardlaw's opinion and count the likely votes.
It's a pretty damning indictment of Judge Tallman's opinion in 2009.
While that one didn't get taken en banc (and it doesn't even look like there was a vote) notwithstanding the dissent by Judge W. Fletcher, my bet is that this one will.
