This situation is entirely of their own making. Selectively forcing USD refunds on their earliest BTC customers while not communicating is not what I call doing 'the best they can'.
And it is not, but you can get a feeling of what their arguments will be. They could work with BFL, but HF screwed it up so badly that they don't really stand a chance. They know it.
Want to prove me wrong? Release the contracts with TSMC and show me how many chips you have in stock right now and how you have used them. You won't, because it would be admitting guilty more than what you already did, but that doesn't mean that i can't force you to do so.
What Josh is doing is simply confusing the ignorant, but it won't work, given the load of proofs we will have against them to make the ignorant aware of all of their behaviours.