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czakk wrote:
Two new filings, court ordered settlement conference and an extended briefing timeline as a result.

I want to make sure I'm following this correctly.
There was one (or maybe more) court ordered pretrial settlement conferences, which at least made sense to me and can serve the purpose of reducing case load & conserving court resources.
After those failed we had the trial and then the jury verdict,after which the judge ordered another settlement conference.
The judge then rendered the official verdict, took post trial motions and has now ordered yet another settlement conference?
Is this even normal after the verdict has been delivered since the case should be done for him after the verdict?

Different court - this is the appeals court mandating a settlement hearing now.

CIRCUIT RULE 33. Prehearing Conference

At the conference the court may, among other things, examine its jurisdiction, simplify and define issues, consolidate cases, establish the briefing schedule, set limitations on the length of briefs, and explore the possibility of settlement.

czakk wrote:
Different court - this is the appeals court mandating a settlement hearing now.

RULE 33. APPEAL CONFERENCES

The court may direct the attorneys—and, when appropriate, the parties—to participate in one or more conferences to address any matter that may aid in disposing of the proceedings, including simplifying the issues and discussing settlement. A judge or other person designated by the court may preside over the conference, which may be conducted in person or by telephone. Before a settlement conference, the attorneys must consult with their clients and obtain as much authority as feasible to settle the case. The court may, as a result of the conference, enter an order controlling the course of the proceedings or implementing any settlement agreement.

That's the rule under which the conference has been ordered by the appellate court. One will note that the order came down from the "Conference Committee" or some such at the 7th Circuit Court of Appeals, so what is probably going on is a 'standard' court mandated settlement conference after the initiation of proceedings. I am not terribly familiar with appellate procedure, as that's not really my bailiwick, and I don't know whether the 7th Circuit Court of Appeals does this with every new case, but it seems like that is probably what is going on.

I have no desire to go through 205 pages. Can anyone summarize the verdict for me? Thanks.

There's a few summaries earlier in the thread somewhere.

wildger wrote:
I have no desire to go through 205 pages. Can anyone summarize the verdict for me? Thanks.

Click on "Filter Thread" next to Weeble's or czakk's names, and you'll find what you seek.

wildger wrote:
I have no desire to go through 205 pages. Can anyone summarize the verdict for me? Thanks.

In short?

No.

There has only been a preliminary verdict from trial, as that is going through the appeals process. Factoring the number of claims that didn't even make it to court, CHS won on approximately 2/3-3/4 of the claims GW made. There's a whiff of arbitrariness about the jury rulings though, and with the new law firm on board, that may well go up under appeal.

 azreal13 wrote:

wildger wrote:
I have no desire to go through 205 pages. Can anyone summarize the verdict for me? Thanks.

In short?

No.

There has only been a preliminary verdict from trial, as that is going through the appeals process. Factoring the number of claims that didn't even make it to court, CHS won on approximately 2/3-3/4 of the claims GW made. There's a whiff of arbitrariness about the jury rulings though, and with the new law firm on board, that may well go up under appeal.

Judgment has been entered Az. The jury verdict was accepted as is by the trial Judge.

Here is the judgement. It was broken into 5 different documents for some reason.

Part 1
Part 2
Part 3
Part 4
Part 5

In a nutshell, considering the entire case, Chapterhouse Studios prevailed on over 70% of the asserted claims.

This is from Chapterhouse's opposition to GW's motion for costs:

Games Workshop (“GW”) brought this action to shut down—or, at a minimum, radically alter—the business of Chapterhouse, claiming in a letter to Chapterhouse that “all of the 106 products currently marketed on your website infringe in some way our client’s intellectual property rights.” Ex. A at 5. (DX-175.) See also Ex. B at 1 (requesting that Chapterhouse “cease all such sales”) (DX-639). But GW failed—Chapterhouse can still sell many of those products. And factoring in summary judgment, trial, and dropped claims, Chapterhouse won over two-thirds of GW’s copyright and trademark claims. GW was only successful in obtaining a small fraction of the damages it initially sought.

Chapterhouse won over two-thirds of the copyright claims asserted in this action. More specifically, Chapterhouse won 34 copyright claims on summary judgment. At trial, Chapterhouse won an additional 67 copyright claims. (Judgment, Dkt. No. 403-1 at 1.) All told, Chapterhouse can continue to sell, without modification, at least two-thirds of the accused products.

Similarly, Chapterhouse won over 70% of the asserted trademark claims. Though GW added and dropped marks throughout the case, a comparison of its interrogatory responses reveals that GW asserted infringement of over 140 unique marks. See Ex. C, Pl.’s Second Supplemental Resp. to Def.’s Interrogs. Set Four (listing asserted marks); Ex. D, Pl.’s Fourth Supplemental Resp. to Def.’s Interrogs. Set Four (same). But only 92 trademarks remained for trial. Of these, Chapterhouse won on 54. (Judgment at 1.) And Chapterhouse won summary judgment on GW’s federal and state dilution claims.

Chapterhouse was found to not infringe any of GW's registered marks, including: Space Marine, Eldar, Tyranid, Tau, Warhammer, Warhammer 40,000, and Warhammer 40K.

Chapterhouse was found to infringe various marks, mostly those found to be valid and in use in commerce by Judge Kennelly, and marks that were used without qualifiers. "Space Wolf Rhino Doors" infringed, "Mycetic Spore Pod" infringed, etc. In terms of copyright, Chapterhouse mostly lost on whole models, such as the Dark Elf Arch Torturess and the Doomseer. Chapterhouse did not lose on the Lizard Ogre. Chapterhouse did not lose on the Heresy-era shoulder pads, either in terms of copyright or trademark. Chapterhouse did lose on the Tervigon Conversion Kit. Chapterhouse did not lose on the Storm Raven and Razorback weapon options.

Those are just a few examples.

Games Workshop was awarded $25,000.00 in damages, which is precisely what Games Workshop asked the jury for in closing arguments, after Chapterhouse had no ability to respond and with absolutely no direct testimonial support from the trial. The number $25,000.00 had never been spoken by a living soul in the courtroom until it came out of the mouth of Jonathan E. Moskin in closing arguments. I emphasize those facts because otherwise the number might seem really, really odd. Because the jury was not required to parse out how it determined damages on the verdict form, there's really no way to know how that number was arrived at mathematically.

Does that help?

By the way, in looking over the opposition to GW's motion for costs just now, I noticed this little gem. Take a look at that. Folks have been going round and round trying to figure out where this whole lawsuit started. Well, there it is. Read the email chain. It is enlightening.

weeble1000 wrote:

czakk wrote:
Different court - this is the appeals court mandating a settlement hearing now.

RULE 33. APPEAL CONFERENCES

The court may direct the attorneys—and, when appropriate, the parties—to participate in one or more conferences to address any matter that may aid in disposing of the proceedings, including simplifying the issues and discussing settlement. A judge or other person designated by the court may preside over the conference, which may be conducted in person or by telephone. Before a settlement conference, the attorneys must consult with their clients and obtain as much authority as feasible to settle the case. The court may, as a result of the conference, enter an order controlling the course of the proceedings or implementing any settlement agreement.

That's the rule under which the conference has been ordered by the appellate court. One will note that the order came down from the "Conference Committee" or some such at the 7th Circuit Court of Appeals, so what is probably going on is a 'standard' court mandated settlement conference after the initiation of proceedings. I am not terribly familiar with appellate procedure, as that's not really my bailiwick, and I don't know whether the 7th Circuit Court of Appeals does this with every new case, but it seems like that is probably what is going on.

I'm on my phone, but there is a brief summary attached. There is a better longer explanation of the history of rule 33 but I don't have it on hand.

Yeah, sorry, being a layperson I more meant by preliminary in that it isn't settled yet due to the appeal and could change, rather than the actual, correct use of the term!

From that beginning to where we are now - wow!

 azreal13 wrote:
Yeah, sorry, being a layperson I more meant by preliminary in that it isn't settled yet due to the appeal and could change, rather than the actual, correct use of the term!

Yeah, the final judgment is out and in effect but it could be overturned in whole or part as a result of the appeal. The trial decision was not stayed (delayed or paused from going into effect) other than the destruction of the molds, which are being kept by Winston and Strawn currently.

@Weeble:

After reading that e-mail exchange, Mr. Moskin sounds like someone with whom I would not willingly associate on a social basis.

(That's the most polite way I can describe the impression I get from his tone on those e-mails.)

Saldiven wrote:
@Weeble:

After reading that e-mail exchange, Mr. Moskin sounds like someone with whom I would not willingly associate on a social basis.

(That's the most polite way I can describe the impression I get from his tone on those e-mails.)

I love how he asks Mr. Villacci to turn over financial records when he knows the guy does not yet have proper legal counsel. That's classy.

'Hey, since you have no idea what is going on here, why don't you turn over discoverable documents to me. That would totally help to get this thing settled out.'

I picked up on the same thing. I'm glad that it sent red flags up for Villacci, too.

It's nice to see, though, for those who didn't believe it when told, that GW's sole intention from the get-go was to shut down CHS in its entirety.

Those emails were eye opening for me. Thanks

New filing, nothing exciting, just CHS affirming the court has jurisdiction to hear the case.

Would it be too much to ask for someone to post what was in those emails for the workblocked?

 jonolikespie wrote:
Would it be too much to ask for someone to post what was in those emails for the workblocked?

I've attached the pdf.

It is nothing earth shattering. Bit of back and forth between Moskin and Villacci. Villacci asks what terms GW might be willing to settle on. Moskin reminds Villacci he should talk to an attorney, tells Villacci he'll discuss any offer he makes with his client (GW) but says any settlement is going to depend on an evaluation of CHS's sales numbers of infringing product. He asks Villacci for those numbers, which he is allowed to do.

We appear to be missing at least one email in the chain (Dec 22).

czakk wrote:
Bit of back and forth between Moskin and Villacci. Villacci asks what terms GW might be willing to settle on. Moskin reminds Villacci he should talk to an attorney, tells Villacci he'll discuss any offer he makes with his client (GW) but says any settlement is going to depend on an evaluation of CHS's sales numbers of infringing product. He asks Villacci for those numbers, which he is allowed to do.

Which he is...sort of...allowed to do. Most attorneys I know would have advised Mr. Villacci to get representation and held off any additional contact until such time as he had engaged representation.

When an attorney is communicating with an unrepresented party regarding litigation, there's an inherent disparity in sophistication, i.e. the non-lawyer does not know as much about the laws, rules, procedures, etc. as the lawyer. Thus the lawyer is in a position to take advantage of the party without representation. Just by saying anything other than, 'you should get yourself a lawyer' the attorney has strayed into treacherous water.

What you have in that email exchange appears to be a lawyer, Mr. Moskin, communicating with a party that he knows does not have representation, highlighting the unrepresented party's ignorance of the law, asking him to provide discoverable documents that would enable Mr. Moskin's client to establish potential damages, and saying that he, the lawyer, cannot see any way to resolve the matter without getting everything, up front, that his client could possibly get at trial.

I haven't worked with a single lawyer that would do such a thing. Just because you can get a 10 year old's lollipop by asking for it doesn't mean you didn't just steal candy from a baby.

He's doing it about a single paragraph after advising him to get some proper professional advice, and in response to a suggestion from Villaci that he might want to discuss working something out without getting an attorney involved on his part.

It's a very sleazy thing to do per se, but if an unrepresented party expresses an interest in trying to settle matters without counsel, without being prompted to do so, at some point it does cease to be your problem. After all, you have a client's interests to keep in mind as well and again, Villaci indicated he'd rather discuss matters further without counsel.
Furthermore, he could have gone for it in a much sleazier way.

I'm not sure here. I certainly wouldn't do something like that myself (unless dealing with a clearly pro se litigant for a protracted period of time already - at some point, it just becomes their problem, not yours anymore - ) but I would argue there's more than a few mitigating factors here as well.

My first instinct with Moskin, by now, is to look for sleaziness and I was going for this one at first, too - but in this case I'd say it's a bit more of a judgment call.

What would have been better is to advise Nick to seek council, again, in that specific context - but asking the question itself is acceptable, IMO.

Furthermore (and I'll admit that what little formal education I've had w.r.t. discovery as in the U.S. amounts to just that - very little), with a bunch of infringement claims which could at least withstand a 12(b)6 motion (and at that point, many of them certainly still could!), getting sales figures for allegedly infringing products is one of the safest discovery requests possible, right? From what I can see there isn't a snowball's chance in Hell that that information could not be obtained as soon as discovery took off properly.
Asking for something you'll pretty much guaranteedly get in discovery anyway is a lot less sleazy than asking for stuff which has a pretty decent chance of not being obtainable through discovery.

Let's face it, if you forget about their general litigation strategy and dubious claims (which is simply an entirely different issue), not wanting to settle without seeing sales figures is basically the kind of advice you'd give a client in any similar case, unless a stellar amount were offered (and that, again, could just make you wonder...). Since GW was intent on litigating the matter, it's information that they would have gotten anyway. Sorry weeble, I can see a lot of deplorable behaviour in the record as a whole, but the more I think about this issue, the more of a non-issue it feels like.

Again, if I'm making grave mistakes w.r.t. likely scope of discovery, feel free to correct this poor furriner

weeble1000 wrote:
Does that help?

You are a scholar and a gentleman.

Again, we are missing the earlier email where Moskin apparently laid out GWs position and told Villacci to get a lawyer for the first time, but, even in the email where he asked for documents he'd be well onside of the legal ethics rules for dealing with unrepresented persons up here, the main issue is always making sure you tell the other side to get a lawyer and that you aren't their lawyer or working for them.

To me, asking for the discoverable documentation wasn't the most indicative thing about Moskin's and GW's attitude.

Look at his last correspondence. He is communicating with someone who is exploring opportunities for a settlement. His response is to say that everything on CHS's website infringes upon GW's IP and, "we candidly do not know how to resolve this matter without your agreement to cease all such sales." He then goes on to say, "my client and I are disappointed that you have declined the offer."

GW's entire position from the get go was to have CHS stop selling 100% of it items on their website. They weren't interested in any sort of settlement from the very beginning.

Anyone who tries to spin that GW "won" this case in any manner have no understanding of what GW's goal was in bringing the suit.

To be clear, I'm not saying Jonathan Moskin crossed a line here. What I'm saying is that for any lawyer, that type of communication is murky water at best. You said yourself, Bolognesus, that it isn't something you would do.

I agree that at a certain point it isn't your problem anymore, but this email chain appears to be the first communications between the parties since written notification of the lawsuit was sent to Chapterhouse Studios, dated December 22nd if I recall correctly. The lawsuit was filed on December 21st, which says something all on its own (and note that Moskin was apparently out of the country over the Christmas holidays until January 6th).

That email chain starts on December 31st, a date on which Moskin says the complaint hasn't even been served.

And the Court obviously does not consider these communications to constitute confidential settlement negotiations. This document is an exhibit in a post-trial motion, meaning it had to have been on the trial record. If you look on the list of defense exhibits, it's there. Settlement negotiations don't get into the trial record.

So if this isn't a settlement negotiation, that took place before the complaint had been served and before Chapterhouse Studios had legal counsel, what is it? I think Saldiven's characterization is pretty accurate: 'Go out of business, that's the only way to dig yourself out of the mess you're in.'

If Chapterhouse Studios had acquiesced at that point, what a cheap lawsuit that would have been for GW. Blindly sue someone in a venue 1,000 miles away, notify them about it on December 22nd telling them that they have 20 days to respond, then leave the country and decline to discuss the matter until January 6th (16 days after the first communication), and then say that there's no way to resolve it unless your target goes out of business.

Since the appeal has been officially submitted, might it be worth locking this thread and starting a new one with all the suitable links listed in the first message? Given every several pages there is a "what happened in the last hundred pages" question?

One thought on the settlement, is it likely that CHS' lawyers do not want to settle either? Reason being that the initial ruling currently sets a bad precedent for IP law in their view.

 silent25 wrote:
Since the appeal has been officially submitted, might it be worth locking this thread and starting a new one with all the suitable links listed in the first message? Given every several pages there is a "what happened in the last hundred pages" question?

Won't make a difference, because we will still have "I don't have time to read the other thread, can you give me a summary of what happened" posts...

Would be just as easy to update the OP of this one.

 silent25 wrote:
Since the appeal has been officially submitted, might it be worth locking this thread and starting a new one with all the suitable links listed in the first message? Given every several pages there is a "what happened in the last hundred pages" question?

One thought on the settlement, is it likely that CHS' lawyers do not want to settle either? Reason being that the initial ruling currently sets a bad precedent for IP law in their view.

The judge reckoned that CHS lawyers were prolonging the case, I'll try and find the exact quote if you'll give me a sec.

Games Workshop paid a lot of money for its lawyers, and I know that Chapterhouse is getting free lawyers from a very expensive law firm. And I know that the free lawyers who are doing this pro bono work for the very expensive law firm would probably love to continue to do this and argue and appeal and whatnot.
But can't you guys just come up with some way of calling it a day?

Bolded the part that relates directly to your question. Though obviously the judge isn't actually basing that on his knowledge of the CHS and GW legal teams, I should point out.

That's a rather slender reed to lean on there.

Early communications with an attorney always start off so innocuously. Look how quickly things stop being reasonable once he asserts his client's property rights.