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Janthkin wrote:

AndrewC wrote:Lets say that CHS wins but GW has leave to appeal. Now CHC gets to reclaim their fees from GW

Note that in the US legal system, in most circumstances, the prevailing party is not entitled to recover their legal fees from the losing party. That's a big difference from much of the rest of the world.

CHS' lawyers have laid basis for a claim that GW's lack of specificity was more GW's attempt to preasure an unrepresented CHS into bending to GWs will. That lack of specificity could be shown to be a lack of basis for the claim. The lack of footing on GW's part can be construde by the court as a frivolous claim and opens them up to paying CHS legal fees. Even though CHS lawyers are working pro bono they may still pursue GW for legal fees, frivolousness on GW's part is an exceptions that would allow recoveries.

Eldanar wrote:Most attorneys do not withdraw from cases mid-stream without a very good reason: either some very serious problems with the client, personal issues, or some other sort of hardship. Usually the judge has to agree. And too, there is an added wrinkle of whether a client is actually a client of the firm or of a specific attorney. Quite often, even if a speciifc attorney withdraws, a firm will continue representation. This is handled differently state to state as well as firm to firm.

For example, GW's lead counsel withdrew several weeks back because she left the firm; however, the firm continued to maintain representation of GW, and is presumably putting someone else forward to act as lead counsel.

The only problem with that being that the new representative may not know your case as thoroughly as the original.
happened to my dad last year, he still won the case, but not as easily as he should have done.

Janthkin wrote:Note that in the US legal system, in most circumstances, the prevailing party is not entitled to recover their legal fees from the losing party. That's a big difference from much of the rest of the world.

Now thats a big plus for the American system. No win, no fee lawyers ought to be banned.

I thought that if the case is thrown out, and/or deemed malicious, then the defending party could claim costs. But then I could also be completely wrong. {Forget this part aka_mythos has answered it for me}

Ah well, let look forward to May then. Could someone ask for a webcam to be installed in the court?

Cheers

Andrew

"Sir, there are a bunch of geeks on the internet taking a huge interest in this case. Would you mind if we just opened this 'Skype' thingy and let them watch?"

I'd listen in.

LOL
I probably would, too, actually. : )

Eric

In order to recover fees, I believe Chapterhouse would have to prevail in a malicious litigation claim. Without going into it in any detail, this would basically mean that Games Workshop filed the suit knowing it was without basis for the purpose of causing harm.

Although a finding of malicious litigation first requires a favorable outcome for the defendant, such as a dismissal of the case, the facts for both infringement and malicious litigation are the same and can be tried at the same time, to the best of my knowledge. In that case, the jury would be instructed as the the conditions that must be met in order to make a determination on the malicious litigation claim.

Generally speaking, it's tough to prove this kind of claim, although I think Chapterhouse could could make a counterclaim that would at least survive as a fact issue for the jury. It may not be worth it to do that though.

No such counterclaim has been made thus far, but the case hasn't progressed very far either. Chapterhouse's attorneys may be interested in keeping the dismissal issue clean at this point in time.

Revenent Reiko wrote:

Eldanar wrote:Most attorneys do not withdraw from cases mid-stream without a very good reason: either some very serious problems with the client, personal issues, or some other sort of hardship. Usually the judge has to agree. And too, there is an added wrinkle of whether a client is actually a client of the firm or of a specific attorney. Quite often, even if a speciifc attorney withdraws, a firm will continue representation. This is handled differently state to state as well as firm to firm.

For example, GW's lead counsel withdrew several weeks back because she left the firm; however, the firm continued to maintain representation of GW, and is presumably putting someone else forward to act as lead counsel.

The only problem with that being that the new representative may not know your case as thoroughly as the original.
happened to my dad last year, he still won the case, but not as easily as he should have done.

I agree completely. I have also seen it firsthand (where I was representing a different party) where a firm went through 3-4 attorneys on a case. Each attorney spent hours going over the files and billed their client accordingly. It was involving an estate, which means that there was some judicial oversight over the expenses. And the judge got pissed and cut that firm's fees in half.

Eldanar wrote:

Revenent Reiko wrote:

Eldanar wrote:Most attorneys do not withdraw from cases mid-stream without a very good reason: either some very serious problems with the client, personal issues, or some other sort of hardship. Usually the judge has to agree. And too, there is an added wrinkle of whether a client is actually a client of the firm or of a specific attorney. Quite often, even if a speciifc attorney withdraws, a firm will continue representation. This is handled differently state to state as well as firm to firm.

For example, GW's lead counsel withdrew several weeks back because she left the firm; however, the firm continued to maintain representation of GW, and is presumably putting someone else forward to act as lead counsel.

The only problem with that being that the new representative may not know your case as thoroughly as the original.
happened to my dad last year, he still won the case, but not as easily as he should have done.

I agree completely. I have also seen it firsthand (where I was representing a different party) where a firm went through 3-4 attorneys on a case. Each attorney spent hours going over the files and billed their client accordingly. It was involving an estate, which means that there was some judicial oversight over the expenses. And the judge got pissed and cut that firm's fees in half.

theres a fair ruling!
pretty ridiculous conduct from the attorneys.

biccat wrote:

AndrewC wrote:Okay a follow on from that.

Lets say that CHS wins but GW has leave to appeal. Now CHC gets to reclaim their fees from GW, but would they then have to represent CHS at future court appearances? Or is their part finished?

They don't have to represent CHS on appeal. In most cases, a client wouldn't retain the same attorney to represent them on appeal as represented them in the original case. Also, in the US appeal from a final lower court decision is taken as a right. Only appeal to the Supreme Court requires a writ of certiorari.

Now, that's assuming that CHS wins before GW appeals. I don't know if the pro-bono attorney would be required to represent CHS in a mid-trial appeal (which I can't remember the latin term for at the moment...), but those are fairly rare.

My assumption (and mind you, it's quite the uninformed assumption) is that this case was only taken on by CHS' pro-bono attorney because they are interested in generating a bit of precedent in the issues at hand. If (and that's a big IF) that is the case, then I could foresee the bono firm being in it for the long haul, since the higher the appeal goes, the greater the value of the precedence.

Of course, the converse of that is that it's in GW's interest to settle this as quickly as possible, at as low a level as possible.

It's really a fascinating turn of events: now that the possibility of ruinous attorney's fees are out of the picture for CHS, they have almost nothing to lose. GW, on the other hand, has almost nothing to gain, and a massive possible loss. As they make clear in their financial reports, their IP and the licensing thereof are an increasingly valuable part of their portfolio.

Firstly I'm using the works computer and so I can't access some other forums. I see that CHS have posted their reply, thanks Weeble, but my machine wont open the thread.

A a matter of interest I see that CHS are seeking damages and costs against GW. From what little I could see.

Shame Judge Judy couldn't hear this case, at least it would be televised.

Cheers

Andrew

GW's strategy in cases like this is partly to just be bigger than the other guy, thus frightening off companies who might actually have a reasonable claim, and winning without a proper fight.

It has failed this time because Chapter House have got decent legal representation.

My theory is that Chapter House's law firm took on the case pro bono because they want to stop GW from bullying small companies. (Pro bono is short for pro bono publico, which means for the public good, not for the individual litigant's benefit.)

Biffing GW with substantial costs would add to the deterrent effect.

Kilkrazy wrote:GW's strategy in cases like this is partly to just be bigger than the other guy, thus frightening off companies who might actually have a reasonable claim, and winning without a proper fight.

It has failed this time because Chapter House have got decent legal representation.

My theory is that Chapter House's law firm took on the case pro bono because they want to stop GW from bullying small companies. (Pro bono is short for pro bono publico, which means for the public good, not for the individual litigant's benefit.)

Biffing GW with substantial costs would add to the deterrent effect.

So, basically, GW drags them to court and atempts to win as they can outlast the smaller company due to legal costs?

Simpler than that.

A C&D letter from GW's lawyers is usually enough to persuade a small company or fan website to give up before the fight has even begun.

AvatarForm wrote:

Kilkrazy wrote:GW's strategy in cases like this is partly to just be bigger than the other guy, thus frightening off companies who might actually have a reasonable claim, and winning without a proper fight.

It has failed this time because Chapter House have got decent legal representation.

My theory is that Chapter House's law firm took on the case pro bono because they want to stop GW from bullying small companies. (Pro bono is short for pro bono publico, which means for the public good, not for the individual litigant's benefit.)

Biffing GW with substantial costs would add to the deterrent effect.

So, basically, GW drags them to court and atempts to win as they can outlast the smaller company due to legal costs?

pretty much, its basically bullying.

Revenent Reiko wrote:

AvatarForm wrote:So, basically, GW drags them to court and atempts to win as they can outlast the smaller company due to legal costs?

pretty much, its basically bullying.

I don't think you should go that far. GW shouldn't have to spend thousands of dollars on attorneys fees every time someone infringes their intellectual property. If they were forced into litigation every time they sent out a C&D letter, they would soon run out of money.

From GW's perspective, this is a clear case of infringement and litigating the case is needlessly expensive.

From CH's perspective, GW is being a bully.

biccat wrote:

Revenent Reiko wrote:

AvatarForm wrote:So, basically, GW drags them to court and atempts to win as they can outlast the smaller company due to legal costs?

pretty much, its basically bullying.

I don't think you should go that far. GW shouldn't have to spend thousands of dollars on attorneys fees every time someone infringes their intellectual property. If they were forced into litigation every time they sent out a C&D letter, they would soon run out of money.

From GW's perspective, this is a clear case of infringement and litigating the case is needlessly expensive.

From CH's perspective, GW is being a bully.

Fair enough, ill admit a biased view on behalf of CHS.
Apologies.

Revenent Reiko wrote:Fair enough, ill admit a biased view on behalf of CHS.
Apologies.

Just pointing out that there are reasons for what appears to be "bullying" tactics.

I don't think your biased view is misplaced, CHS appears to have the better case at the moment.

It's a pity that by voting with our wallets we can't leave comments to tell GW why.

I'd like to ask our resident legal types.

Aren't firms required to do a certain amount of pro-bono work each year? I quasi remember something along those lines. Just curious.

It is completely voluntary. Although I'll add the caveat that some State bar associations might have a pro bono requirement (but I doubt it), and I've never heard of any that do. I am a member of 2 State bars, and both are voluntary for pro bono work. Although since I am now a fed, I would probably be excused even if it were somehow required.

Some firms have a policy to do X amount of pro bono work. IIRC from the CHS firms web site, they do have a pro bono requirement. And too, I would imagine practicing in the area of business patent law and IP, there are not a lot of opportunities to do a lot of pro bono work; so they are being able to fulfill part of their firms mission as well as potentially having other motives for taking the case.

Eldanar wrote:It is completely voluntary. Although I'll add the caveat that some State bar associations might have a pro bono requirement (but I doubt it), and I've never heard of any that do. I am a member of 2 State bars, and both are voluntary for pro bono work. Although since I am now a fed, I would probably be excused even if it were somehow required.

I'm not aware of any requirements for any of my bars either. Although some bars include a throwaway line like "I will endeavor to help those who cannot afford legal services" in the admission oath.

Eldanar wrote:Some firms have a policy to do X amount of pro bono work. IIRC from the CHS firms web site, they do have a pro bono requirement. And too, I would imagine practicing in the area of business patent law and IP, there are not a lot of opportunities to do a lot of pro bono work; so they are being able to fulfill part of their firms mission as well as potentially having other motives for taking the case.

I can count pro bono work against my billable hours requirement, but generally I'm busy enough that I wouldn't have time to do any pro bono work. Plus, who wants to learn about family law when I can do doc review instead?

biccat wrote:I can count pro bono work against my billable hours requirement, but generally I'm busy enough that I wouldn't have time to do any pro bono work. Plus, who wants to learn about family law when I can do doc review instead?

Maybe that's what I was thinking of, thanks. It seems like 100 years ago since I worked in a law office and this thread's kinda been a walk down memory lane.

biccat wrote:

Revenent Reiko wrote:Fair enough, ill admit a biased view on behalf of CHS.
Apologies.

Just pointing out that there are reasons for what appears to be "bullying" tactics.

I don't think your biased view is misplaced, CHS appears to have the better case at the moment.

totally agree on the 'bullying tactics', i know theres a reason, it just seems unreasonable to me to do it that way

biccat wrote:I don't think you should go that far. GW shouldn't have to spend thousands of dollars on attorneys fees every time someone infringes their intellectual property. If they were forced into litigation every time they sent out a C&D letter, they would soon run out of money.

There is a hole in your logic it is this: our system is built arround just that notion; that every time someone does infringe on your IP it is expressly yours and noone else responsibility to pursue it. I think you've largely muddled two ideas and are treating them as a single thing. In an ideal world GW shouldn't have to worry about IP and infringement, but this isn't an ideal world. If it isn't worth GW fronting the money to pursue legal actions, the IP in question isn't really worth the Governments time or protection.

To turn this around, if GW had to pursue litigation every time it sent out a C&D letter out, they would do more to make sure they had a more thought out case with clear cut examples of infringement, instead of the nebulous claims they time and time again lean against websites in pursuit of shutting them down.

biccat wrote:
From GW's perspective, this is a clear case of infringement and litigating the case is needlessly expensive.

From CH's perspective, GW is being a bully.

The difference is CH took precaution in following legal advice as to how they were legally allowed to present their work. GW on the other hand has presented vague claims of infringement, that doesn't show due diligence and are no different than say "they just are;" that after a poorly written C&D that presented the UK's law as the basis for their claim of infringement against a company not in that jurisdiction, all without pursuing any remedial course in reconciling the disagreement before litigation.

The attitude reminds of this time, when I first moved into my house, I had parked my car infront of my house in the street. The neighbor across the street didn't like it their because it made it harder for them to get their car out of their drive way. They told me I had to move it, I didn't feel I had to it was my house. They called the police and a tow truck. I explained it to the police, who gave a warning to the neighbor who ended up paying for the tow truck drivers time. Welcome to the neighborhood.

My point though is GW has shown it has a sense of entitlement, in using C&D to get its way, but that doesn't mean its always right. It doesn't mean every company should cave to them. GW and many other companies do not know what a "gentle hand" is, they really do have a sense of being exceptional because of size and money and often ignore the fact that by being so tough they hurt society and make this world a colder place.

Those are my thoughts too.

Also, I believe GW have used a heavy hand in the past because some of their IP claims are based on rather shakey foundations.

That is why it will be very interesting if the Chapter House case gets to court. We'll see some of GW's broad assertions tested.

I'll add that I've been pro-GW on this issue from the start but err, here's my attempt to briefly win others over with layman-logic (I am no Lawyer, nor do I know much about law).

But if GW were to lose, wouldn't this not only damage the company (who wants that?) but also risk the IP? And considering the amount of money they make from royalties, well, I don't think we want them losing it...

Henners91 wrote:I'll add that I've been pro-GW on this issue from the start but err, here's my attempt to briefly win others over with layman-logic (I am no Lawyer, nor do I know much about law).

But if GW were to lose, wouldn't this not only damage the company (who wants that?) but also risk the IP? And considering the amount of money they make from royalties, well, I don't think we want them losing it...

Nah, they are going to bat to protect their ip, win or lose. They just have to have it on the record that they defend their IP. If they never do somebody else can come in with the defense that's like "well you didn't sue these guys so how can you sue me?". So the outcome doesn't really matter, as far as workshop is concerned and it is my guess this is the only thing they care about.

They won't lose their IP, they won't be damaged at all, other than losing the money they are throwing at this case.

Just because someone wins the right to continue producing stuff that tangentially uses or references your IP doesn't mean you lose your own rights to it. Half the battle is GW showing up to court to demonstrate they are actively protecting their IP. IMO, they would have been better off pretending that CH doesn't exist and saving themselves the effort of publicly identifying them and than being forced into playing their hand. But now they've gone this far they can't really turn back.

Also cases of copyright infringement are taken on their own merits, what applies to CH won't apply to everyone because circumstances are always different. GW will still be able to take other manufacturers to court if they so wish, the Chapterhouse case may set some precedent that others could point to in their defence but GW can still still send out C&Ds and take people to court, but it still gives no where new for recasters and other ripopff merchants to hide.

The worst that will happen to GW is that they have to start thinking twice about sending out spurious C&Ds and threats of legal actions on the slightest whim because people will know they can't back up their bully tactics legally.

The recent Battlescribe (?) incident says otherwise, maybe!

Not everyone is going to be able to afford a good legal staff, or be able to get one pro bono like CHS was able to manage.

Many will fold at the C&D.

So, I think that tactic will continue...