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Would that be worthwhile to CH's representation though? Surely a big win is worth more to their reputation in IP than a settlement?

rigeld2 wrote:
I think I know the answer, but can CHs counsel change their mind on the pro bono representation?

Not normally - a contract has been entered...though there are likely a variety of clauses which would allow them to revoke their side or change the agreement.


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 Pacific wrote:
Can't imagine GW offering a settlement to be honest. That would require them to make a concession or acknowledgement of some sort, which I don't think is within the vocabulary of their company culture.

Again, it ends up being an issue where their representation looks at the case and provides advice based on the situation on the ground. GW could pay off CHS and then just pretend like this never happened. You see those sorts of settlements happen fairly often. Generally the pay off is accompanied by various clauses which prevent both sides (in this case especially CHS) from talking about what the agreement actually entails. It would place a cloak over who actually wanted the agreement and what the terms were. Much speculation, but no closure to the issues of the case.


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 scipio.au wrote:
Would that be worthwhile to CH's representation though? Surely a big win is worth more to their reputation in IP than a settlement?

Again, it would largely depend on what the offer actually entailed. While law firms enjoy a feather for their hat - they also enjoy money in the bank. If the settlement offer included a clause for compensating the expenses of the CHS legal team, plus a little bit extra to make it worth their time...it may well be well received by them as well. Keep in mind though, unless there is a specific clause in the representation contract which CHS and W&S entered into...the interests of W&S can not override the interests of CHS (including a big payoff to shut up and go away).

They might rather have a go in court, but they also have to provide honest and truthful legal advice to CHS. Honestly and Truthfully - if someone offered me a few million dollars to go away, I would have to seriously consider the offer.

I think it unlikely that CHS will accept a payoff. Sometimes punching the bully in the face, or kicking them in the crotch, is just too attractive.

YMMV.

Cheers

Andrew

 AndrewC wrote:
I think it unlikely that CHS will accept a payoff. Sometimes punching the bully in the face, or kicking them in the crotch, is just too attractive.

YMMV.

Cheers

Andrew

I dunno.
these folks have families to feed, too. besides, pro bono representation agreements often contain clauses stipulating that a good offer (however they might further define such) being refused could allow the firm to withdraw from further pro bono representation, AFAIK.

Oh I agree, I just feel on the balance of probabilities a refusal is more likely than an acceptance. Just look at some of the... more verbal descriptions of Nick. There is a certain 'stiffness' in the neck when it comes to GW. He doesn't seem to accept critism as to the rights or wrongs of his actions, and that may colour any decision.

Not long to go now before we get a clearer picture.

Cheers

Andrew

Also, if GW did settle, that would be more or less an admission that they're in the wrong. Because if they do settle, what can they do to the other 3rd party companies? Sue them? If they can't win against CHS, then there's nothing they can do against others. Everything that popped in this suit will just be used against them again.

 Tannhauser42 wrote:
Also, if GW did settle, that would be more or less an admission that they're in the wrong. Because if they do settle, what can they do to the other 3rd party companies? Sue them? If they can't win against CHS, then there's nothing they can do against others. Everything that popped in this suit will just be used against them again.

They can still strong arm people by way of attrition. Not everyone can afford to lawyer up against a $300,000,000 company, and not everyone will get pro bono representation.

That said, if GW settled, any future threats against companies might be better put together with the expectation that the little guy will fight back.

GW put together a terrible case and rushed it out the door. They were overly zealous and quite arrogant about it. They expect smaller companies to bow down and fall in line.


Now if GW lose the case altogether, then smaller companies will view that differently, in that they may often decide it's worth fighting over.

As for settlement, at this point I don't think CHS has any reason or need to settle. Then again perhaps he has a number in mind that would mean he could just walk away from the entire industry and retire somewhere.

If GW wanted to settle with me in this case, my demands would be far beyond a simple dollar amount. Free models within a certain degree of moderation for life would be item number 1.

 Aerethan wrote:

Now if GW lose the case altogether, then smaller companies will view that differently, in that they may often decide it's worth fighting over.

As for settlement, at this point I don't think CHS has any reason or need to settle. Then again perhaps he has a number in mind that would mean he could just walk away from the entire industry and retire somewhere.

If GW loses altogether, the matter becomes one of settled law. GW could no longer bring cases unless they are substantially different against anyone in the US (being a Federal Court Case)...well they could, but the case has a much greater chance of being dismissed from the outset and potentially GW being sanctioned for being overly litigious (doesn't happen too often - but it does happen).

I am sure that CHS has a number in the back of their head - pretty much everyone does. It isn't always specifically tied to this case or that, rather it is a number which is pondered from time to time which would allow them to stop doing what they are doing and go do something else they would rather do.

In the case of CHS, a number which is high enough would not need be a number that would cause them to walk away from gaming at all. It could be a sum which is sufficient to roll out a line of products like Mantic, PP or Infinity. As opposed to scratching together bits and pieces over the course of a decade - they could push it out in a single go. A few million would be enough if that were there number - and for GW that would only represent dropping the dividend payment by 10 cents or so per share for a single year.

 frozenwastes wrote:
If I were to be summoned for jury duty, I would go, but I would inform the court that I intend to exercise my right to practice jury nullification if I deem it necessary. And that I would explain to my fellow jurors what their rights are related to jury nullification as well.

I can't imagine a prosecutor who would ever let me sit as part of the jury after hearing that.

I definitely don't support juries for civil cases. The people deciding those need to be experts on the applicable law, not just whomever can be swayed by either side's narrative the most.

Judges are people too, and many times far from experts in applicable law in civil cases, to say nothing of not being experts in rather relevant areas such as the applicable technology in patent cases. As a 'jury' consultant, this year alone I have consulted on as many bench trials as jury trials. If you think a judge is automatically better than a jury, consider the impact of replacing the collective wisdom of a jury of one's peers for the just as potentially biased opinion of a single individual whose biases there is no decent system to probe, account for, or remove. The jury selection process culls bias, and is more effective at doing so the more robust the process is allowed to be. Try convincing a Jude to recuse him or herself.

The sum of a jury is greater than its parts.

I would love to continue discussing the American jury system, but I fear that this is not the thread to do so.

Apart of Chapterhouse, I believe there are more resin SMEs being sued this way just making miniatures that RESEMBLES GWs one way or another (such as slant-cut rifle muzzle)

 Sean_OBrien wrote:
Again, it ends up being an issue where their representation looks at the case and provides advice based on the situation on the ground. GW could pay off CHS and then just pretend like this never happened. You see those sorts of settlements happen fairly often. Generally the pay off is accompanied by various clauses which prevent both sides (in this case especially CHS) from talking about what the agreement actually entails. It would place a cloak over who actually wanted the agreement and what the terms were. Much speculation, but no closure to the issues of the case.

That sounds a bit like what happened with Paulson Games earlier on in this saga, to be honest.

Purely out of interest, by the way, what s this "jury nullification" that frozenwastes mentioned?

 AndrewC wrote:
Oh I agree, I just feel on the balance of probabilities a refusal is more likely than an acceptance. Just look at some of the... more verbal descriptions of Nick. There is a certain 'stiffness' in the neck when it comes to GW. He doesn't seem to accept critism as to the rights or wrongs of his actions, and that may colour any decision.

You will find this amongst many companies and individuals who have had dealings with them over a period of time. I've heard some absolute corkers over the years, both directly and from others I have known who have worked with or for the company, concerning the way the upper management has gone on and behaved with people. It's meant that for anyone aware of it there is a general reservoir of 'ill will' that feeds into this kind of thing, and who knows could even be part of the reason that CHS have managed to get Pro Bono representation.

 Dysartes wrote:

Purely out of interest, by the way, what s this "jury nullification" that frozenwastes mentioned?

http://lmgtfy.com/?q=jury+nullification

Trasvi wrote:

 Dysartes wrote:

Purely out of interest, by the way, what s this "jury nullification" that frozenwastes mentioned?

http://lmgtfy.com/?q=jury+nullification

Unsubtle troll is unsubtle - I'm sure I'm not the only one who was curious, and the explanations given by the IANYLs in this thread have often been short and clear.

For anyone else who is curious, here's a link to the Wikipedia article on the subject.

 Dysartes wrote:
Purely out of interest, by the way, what s this "jury nullification" that frozenwastes mentioned?

Quick cliff notes version - jury nullification refers to the jury saying that while the defendant is guilty of the law as written...the law sucks, so we will let them off. For various reasons, it isn't nearly as popular now as it was back when our courts were first getting started, but it is still an existing part of the system. The basic principle though is to provide a direct feedback from the people regarding laws. If a law is nullified often enough, it can effectively demonstrate that the law no longer represents the will of the people (see the Fugitive Slave Act).

Currently, because of the lack of instruction on the matter - a jury is more likely to just find someone not guilty as opposed to opting for the more technical jury nullification.

*cough*TOPIC*cough*

Jury behaviour is definitely a complicated factor in a civil case. It's all about selling a story. While the judge will instruct them and tell them to not base their decision on some things and to base it on others, in the end, it'll be a group of people deciding which story they buy into the most.

The whole discussion about jury duty, civic responsibility, getting out of it, etc., matters in the US. Other places in the world might have juries made up of citizens that see their jury duty as being part of their participation in a system they believe in, but I'm not so sure that's the case for a civil case in Chicago. It's entirely possible that the jury will indeed be full of people who don't want to be there or who were unable to say what they needed to in order to be excluded.

The jury nullification thing I mentioned earlier is a manifestation of my cynicism with the adversarial court system. If I sit on a jury, I don't care what the judge advises or tells me what the law is. When it comes down to it, she won't be there when we deliberate and vote. So I will be only concerned with producing a verdict that I think is just given the information I have at the time. And that means if I disagree with the law in its entirety, I'll vote not guilty out of principle.

Jury selection is probably done with the intent of removing people who already have a principled stance on the particular laws of the case. If it's a pro-stance, the defendant doesn't want the person and if it's a opposed stance, the plaintiff doesn't want the person.

It'll be interesting to see what happens with the jury in this case. My prediction is that jury selection will moderate things and it'll be boring.

Some new documents up on recap, haven't had a chance to read them yet but CHS's looks like motion practice to try to exclude / strike various exhibits and GW seems to have filed a hybrid motion of some sort trying to head of arguements and exclude evidence and prevent lines of questioning during the trial.

http://archive.recapthelaw.org/ilnd/250791/


250.1 Affidavit Keener Declaration

250.2 Exhibit Exhibit 1

250.3 Exhibit Exhibit 2

250.4 Exhibit Exhibit 3

250.5 Exhibit Exhibit 4

250.6 Exhibit Exhibit 5

250.7 Exhibit Exhibit 6

250.8 Exhibit Exhibit 7

250.9 Exhibit Exhibit 8

250.10 Exhibit Exhibit 9

251.0 MOTION by Defendant Chapterhouse Studios LLCin limine (A...

251.1 Declaration of Jennifer A. Golinveaux

251.2 Exhibit A-H to Declaration of Jennifer A. Golinveaux

252.0 Certificate of Conference by Games Workshop


253.0 MINUTE entry before Honorable Matthew F. Kennelly: The Co...



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Ah, here is something of interest, summary judgement should be out in two weeks, but the trial will be delayed:

MINUTE entry before Honorable Matthew F. Kennelly: The Court anticipates ruling on the pending motions for summary judgment within the next 10−14 days.

However, a recent development in the Court's trial schedule will necessitate a continuance
of the trial date in this case to a date sometime after the first of the year. The case is set for a telephone status hearing on 11/15/2012 at 9:00 a.m. for the purpose of resetting the trial date. Plaintiff's counsel is to get defendant's counsel on the telephone and call chambers at that date and time.




Lots of fun stuff hidden away in the two motions. For ex, what the hell is going on at the end of GWs motion?

"4. The Parties Should Be Precluded from Mentioning or Referring to Either Party’s Billing Arrangements With Its Lawyers .

The Parties should be prohibited from offering any statement, reference or criticism of how the Parties employed their attorneys, including how or whether the Parties’ are represented on a pro bono or cash fee basis, or who is paying any litigation expenses. Such matters are not irrelevant and would be raised solely to unfairly prejudice the Parties’ position without any probative value. Fed. R. Evid. 402, 403. Games Workshop has taken no discovery on the issue of Chapterhouse’s billing arrangements, notwithstanding that it has spent lavishly on videotaping depositions, flying attorneys around the world for depositions when Games Workshop has simply used telephone or video links; has hired a jury consultant and has employed teams of lawyers as against the two lawyers employed by Games Workshop. The legal fees and expenses incurred are not relevant to any issues for the jury’s consideration, and would serve to unduly prejudice Plaintiff, mislead the jury, and waste time. Fed. R. Evid. 402, 403."

Is Mr Keener trying to play the old 'rich city slicker lawyer vs simple country lawyer card' or is this a valid concern down in the states? - Also he needs to hire a new proof reader, document is littered with errors.


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Or is he laying the ground work for taxing the bill if costs are awarded against gw?

I'd say they want to head off a line of argument like...
"GW has issued a lot of C&Ds over the years and businesses have capitulated specifically because they couldn't afford the legal battle that's happening right now. So why could Chapterhouse be the one? Because we're working for free. The only reason this business can get the justice they deserve is if we work pro bono."

Or something like that. IANAL and I'm not a public speaker, but I could see that being worked into an opening/closing statement.

Ah yeah - jury trial. Used to judge only civil trials. IIRC there was also a settlement conference where someone said something to the effect of - we want the trial to bankrupt them.

Anyhow, seems a bit florid. Also a bit on the nose to complain about discovery made necessary because of your own vague claims.

Still digging through the documents while attempting to do actual paid work...and something which is REALLY interesting jumped out (which will likely be redacted later on...so download and save now).

http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.251.2.pdf

That is big document containing CHS exhibits for their pretrial limine motions...the interesting part that jumped out so far starts on page 95. It is the breakdown of the value of the trademarks in terms of US sales. Year by year for a bunch of items from 2004 till 2012.


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BTW - for those interested in the trial date - the Judges minute in entry 253 states that an issue with the court's calender has caused the date to be pushed back until after the first of the year.

http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.253.0.pdf

You mean the part of the document marked "Highly confidential"?

 Kroothawk wrote:
You mean the part of the document marked "Highly confidential"?

That's one of the consequences of starting a lawsuit. People get to look at your private gak.

czakk wrote:

 Kroothawk wrote:
You mean the part of the document marked "Highly confidential"?

That's one of the consequences of starting a lawsuit. People get to look at your private gak.

Those would be the ones.

A lot of private stuff is kept private under normal circumstances. Previously that set of documents was filed under seal and I would guess it was a mistake (either on the part of the court record keeper or on CHS lawyers) that they are part of the larger file. Like I said - save it, as it is quite likely that they will disappear from the "official" records sooner rather than later.

Reading CHS's motion over dinner. Same theme as their motion for summary judgement - pointing out every time GW told the court one thing and then turned around and did something else, getting the public domain stuff out of the trial (arrows, roman numerals) and trying to get the late documents knocked out of the trial.


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Now on to GW's motion. Most important thing, GW is planning another suit against Chapterhouse:

"Additionally, during the course of this litigation, Chapterhouse has designed, developed, and released additional products which are not at issue in this case and for which no discovery has taken place and which are the subject of a second planned lawsuit. While Games Workshop believes that many of these new products continue to infringe Games Workshop’s copyrights and trademarks, they are not at issue here and are being addressed in a separate complaint."

Yah, basically the limine motions just formalize the objections which each side brought up in the previous pretrial filings. There are some interesting bits in the supporting exhibits, but they aren't directly relating to the case (though the deposition by GWs expert witness regarding English law does indicate that many of the claims which GW makes aren't nearly as solid as they would like people to believe).

GWs objection to Brewsters testimony kinda also sinks their own expert report (Bloch's) (Page 10 of the pdf).


Also, what's the rule for italics and in limine down there?

czakk wrote:
Now on to GW's motion. Most important thing, GW is planning another suit against Chapterhouse:

"Additionally, during the course of this litigation, Chapterhouse has designed, developed, and released additional products which are not at issue in this case and for which no discovery has taken place and which are the subject of a second planned lawsuit. While Games Workshop believes that many of these new products continue to infringe Games Workshop’s copyrights and trademarks, they are not at issue here and are being addressed in a separate complaint."

I love it when the bully gets surprised by the kid he's picking on and ends up bloodied.
The only thing I like more is when he thinks it was s fluke, comes back for more, and gets hit twice as hard the next time.

Eric

 MagickalMemories wrote:

czakk wrote:
Now on to GW's motion. Most important thing, GW is planning another suit against Chapterhouse:

"Additionally, during the course of this litigation, Chapterhouse has designed, developed, and released additional products which are not at issue in this case and for which no discovery has taken place and which are the subject of a second planned lawsuit. While Games Workshop believes that many of these new products continue to infringe Games Workshop’s copyrights and trademarks, they are not at issue here and are being addressed in a separate complaint."

I love it when the bully gets surprised by the kid he's picking on and ends up bloodied.
The only thing I like more is when he thinks it was s fluke, comes back for more, and gets hit twice as hard the next time.

Eric

The announcement of a second suit says a few possible things about GW:
1. They think they've already lost this one and were dumb enough to inform CHS of the second round, allowing their lawyers to saddle up early for it.
2. They think that if they win CHS would still be around to sue. I'm like 99% sure that if GW wins CHS would just shut down and move on, not that it will happen as things stand.
3. They think that CHS might not get pro bono representation the second time around by the same lawyers, and thus would shut down.

"Well sir, they're beating us pretty bad in our law suit, we're probably going to lose this one."
"Really? Screw it, we'll sue them again for different items and I'm sure that will work. Also, let them know now that we're going to sue them again, I'm sure that will scare them down."
"They have free lawyers sir, I don't think they'll back down if we lose."
"Yeah yeah yeah, and advertising is a good marketing strategy and people over 18 spend more money than children on our products. You and your wacky theories."

 Aerethan wrote:
"Yeah yeah yeah, and advertising is a good marketing strategy and people over 18 spend more money than children on our products. You and your wacky theories."