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A barrister once told me the first principle of commercial law is never to threaten to sue unless you are fully prepared to do so.

GW have acted like a gang of disorganised clowns in this case. It's as if they have been making it up as they go along.

I feel sorry for their lawyers.

I anticipate that, at the close of the plaintiff's case, defendants will move for summary judgment (which is the normal course of events).

What's abnormal is that I think they have an excellent chance of getting it at that point; most of the time, judges like to let the jury go through the whole case, reach a verdict, and then rule - gives them something to fall back on if the appeal overturns their directed verdict ruling.

 Sean_OBrien wrote:
I do my best to answer what I can - but the judge put it best in his summary judgment opinion:

The Court notes that GW has not identified with specificity what marks it contends Chapterhouse has infringed...Despite GW’s failure to identify in particular what it is claiming...

In a normal case, I could give you are really easy break down of what the plaintiffs are claiming and what the defendants response is. In this case, as the judge notes - GW hasn't really said specifically what they are claiming. Mostly they have just pulled every item from the CHS catalog and said that we don't like these. They don't say why, they don't say what part they don't like - just that they do not like them. So, as of right now - it is pretty much the CHS website...minus the items I listed above for possible copyright and/or trademark claims.

I still don't understand, how a judge can call a jury, before the plaintiff even said what the lawsuit is about. Doesn't the defendant have a right to know what he is accused of, before he is dragged to a 3+ year long lawsuit? I thought "it annoys me, make it stop" isn't enough anymore, but seems I am wrong.

 Kroothawk wrote:

 Sean_OBrien wrote:
I do my best to answer what I can - but the judge put it best in his summary judgment opinion:

The Court notes that GW has not identified with specificity what marks it contends Chapterhouse has infringed...Despite GW’s failure to identify in particular what it is claiming...

In a normal case, I could give you are really easy break down of what the plaintiffs are claiming and what the defendants response is. In this case, as the judge notes - GW hasn't really said specifically what they are claiming. Mostly they have just pulled every item from the CHS catalog and said that we don't like these. They don't say why, they don't say what part they don't like - just that they do not like them. So, as of right now - it is pretty much the CHS website...minus the items I listed above for possible copyright and/or trademark claims.

I still don't understand, how a judge can call a jury, before the plaintiff even said what the lawsuit is about. Doesn't the defendant have a right to know what he is accused of, before he is dragged to a 3+ year long lawsuit? I thought "it annoys me, make it stop" isn't enough anymore, but seems I am wrong.

I am also quite confused about this. How can the judge allow this to reach trial when after close to 3 whole years GW hasn't even stated what pieces CHS is infringing on?

Is this common in a type of lawsuit like this?

It's not supposed to be common.


Your mileage may vary, but this is what I have in my notes from law school from back in the day about pleadings in civil litigation:

Drafting Pleadings:

The Function of Pleadings:

To clearly and precisely define the issues or questions which are in dispute between the parties to the action and which are required to be determined by the court. Effective pleadings are ones which narrow the issues and reduce the time required to try the action.

To require each party to give fair notice to the other of the case it has to meet so that it may prepare its evidence for trial.

To inform the court of the events giving rise to the litigation and the issues between the parties. The pleadings set the limits of the action which may not be extended without amendment.

To provide a permanent record of the issues raised in the action which is readily available for reference for future litigents.

The Contents of Pleadings:

The plaintiff must plead all material facts which are required to establish a legally complete cause of action.

The defendant must plead all facts necessary to establish its defence.

You may plead law. You must not plead evidence by which facts are to be proven.

Distinguishing between material fact, law and evidence is tricky.

Fact: A thing done; an action performed; an incident transpiring, an event or circumstance; an actual occurrence.
Evidence: Any species of proof, legally presented at trial - through witnesses, records, documents, objects - for the purposes of inducing belief in the mind of the court as to their contention

What goes in Pleadings: This is your first shot at the judge. You want to tell a convincing and clear story.

identify the parties

their status

facts to demonstrate the jurisdiction of the court over the parties.

what, where, when and how things happened

why they happened

relief sought.

Additional Stuff in a Defence

traverse (a denial of the plaintiffs claim)

confession and avoidance (well what the plaintiff says is true, but its not the whole story m'lord)

demurrer (even assuming what the plaintiff says is true, the claim is bad in law - no real cause of action)

Plead any matters that may take the plaintiff by surprise - this may include law

admit the obvious and non controversial

Additional stuff: Plead the legal consequences to the material facts. Not strictly necessary but it is good practice, and some things need to be specificaly pleaded, this ensures you always catch them. Plead any statute or regulation and the material facts that trigger the activation of that statute.

Remember your audience: Overworked judge who probably got your filing at the last minute. Don't piss them off with a long or confusing document. Also true if you get a jury of lay people.
Clarity: You are selling ideas - you want to be sure you are understood.

Sometime you'll have to file a vague or boilerplate claim if you are up against a limitation period (how long you have to sue someone after they do something bad), but you are supposed to amend it after you file the crappy emergency version.

Vagueness in claims and in pleadings is a sign of a) bad lawyering, b) a bad case (legal thuggery), c) an attempt to litigate by ambush (conceal your case until the last minute and spring it as a surprise).

IMHO we have a lot of vagueness in this case because of a, b, and c. It was originally filed with the expectation that CHS would go bankrupt and it would never get to trial (b - thuggery). This lead to a (bad lawyering) coming to light on the GW in house side - no contracts for sculpters, no trademark registrations, etc... and c (litigation by ambush to gain an advantage in the face of a determined foe for ex, hiding the copyright office rejection) on the part of Foley Lardner.

PhantomViper wrote:

 Kroothawk wrote:

 Sean_OBrien wrote:
I do my best to answer what I can - but the judge put it best in his summary judgment opinion:

The Court notes that GW has not identified with specificity what marks it contends Chapterhouse has infringed...Despite GW’s failure to identify in particular what it is claiming...

In a normal case, I could give you are really easy break down of what the plaintiffs are claiming and what the defendants response is. In this case, as the judge notes - GW hasn't really said specifically what they are claiming. Mostly they have just pulled every item from the CHS catalog and said that we don't like these. They don't say why, they don't say what part they don't like - just that they do not like them. So, as of right now - it is pretty much the CHS website...minus the items I listed above for possible copyright and/or trademark claims.

I still don't understand, how a judge can call a jury, before the plaintiff even said what the lawsuit is about. Doesn't the defendant have a right to know what he is accused of, before he is dragged to a 3+ year long lawsuit? I thought "it annoys me, make it stop" isn't enough anymore, but seems I am wrong.

I am also quite confused about this. How can the judge allow this to reach trial when after close to 3 whole years GW hasn't even stated what pieces CHS is infringing on?

Is this common in a type of lawsuit like this?

I think the judge, as stated earlier, is covering his ass for appeals. If he says X is dismissed, and GW appeals it and wins, then it reflects poorly on his judgement.

Now if a jury decides X is not valid, and GW appeals, the blame is not on the judge.

At the same time, the judge apparently can throw stuff out once GW has plead their case in trial. Basically once they have finished their offense, the judge can take that information to make a decision before passing the baton to the jury?

If I'm reading things correctly. That all makes sense to me, even if it's kind of crappy to make CHS or anyone else sit through the process.

Another fun tidbit from my local GW manager who claims to have all manner of legal training(and yet works at a GW store):

"You can't sue someone and not say why you are suing them"

He also seems to think that GW MUST have submitted what items they feel have been infringed, and that "demure" or w/e means that those details are sealed until trial.

I'm inclined to disagree, since we have quotes from the court stating that GW have not claimed any articles being infringed upon yet.

How can GW possible expect their own exhibits to be sealed but not the defendants?

And yet when I quote the legal minds here as well as court documents somehow I'm a "wikipedia lawyer". I've since decided not to discuss the case with him until trial is over.

GW managers are known for not knowing anything about the goings on of the company. Hell, they don't even get told about future releases let alone the goings on of their legal department. Many 'managers' are now people running one man stores and only there to push space marines, not know about the hobby.

Double post somehow...

Sealed means they are kept out of the public record of the case - the judge still gets to see them. It just keeps looky-looos like us from seeing them.

czakk wrote:
Sealed means they are kept out of the public record of the case - the judge still gets to see them. It just keeps looky-looos like us from seeing them.

I understand the term, but he insists that GW has it's own products that it feels were infringed upon sealed.

Now if the court knew what they were, they wouldn't say things like" despite GW not stating what the problem really is here..(paraphrased)".

I'm fairly certain that the fact of GW having such information sealed would have been made public, but I don't see why a judge would allow it.

 Aerethan wrote:

czakk wrote:
Sealed means they are kept out of the public record of the case - the judge still gets to see them. It just keeps looky-looos like us from seeing them.

I understand the term, but he insists that GW has it's own products that it feels were infringed upon sealed.

Now if the court knew what they were, they wouldn't say things like" despite GW not stating what the problem really is here..(paraphrased)".

I'm fairly certain that the fact of GW having such information sealed would have been made public, but I don't see why a judge would allow it.

Any sealed documents are on the docket with the "sealed" notation. None of the complaints are sealed. The claim charts are not sealed. Only 'highly confidential' information is sealed. If it was highly confidential, the Defendant could not have had access to have copied it. If the Defendant had access to it, ipso facto, it cannot be highly confidential unles the Plaintiff is arguing that the Defendant somehow accessed highly confidential information, and no one has said that in any pleadings in this case.

A highly confidential designation requires that the party has made an effort to keep the information confidential, which is why, if the Defendant had access to a work of art, well, it isn't highly confidential. Similarly, a trademark cannot, by definition, be confidential, and so most facts related to such claims would be very much completely public. Highly confidential information would be things like trade secrets. In fact, if you want to know what the parties have sought to designate as highly confidential, the parties have had to make arguments to the court to request such designations. The Court decides what is and is not kept out of the record, with the preference being for it being IN the public record.

If you want to file a lawsuit, you have to do it in front of the public. That's the way it is in America.

weeble1000 wrote:

 Aerethan wrote:

czakk wrote:
Sealed means they are kept out of the public record of the case - the judge still gets to see them. It just keeps looky-looos like us from seeing them.

I understand the term, but he insists that GW has it's own products that it feels were infringed upon sealed.

Now if the court knew what they were, they wouldn't say things like" despite GW not stating what the problem really is here..(paraphrased)".

I'm fairly certain that the fact of GW having such information sealed would have been made public, but I don't see why a judge would allow it.

Any sealed documents are on the docket with the "sealed" notation. None of the complaints are sealed. The claim charts are not sealed. Only 'highly confidential' information is sealed. If it was highly confidential, the Defendant could not have had access to have copied it. If the Defendant had access to it, ipso facto, it cannot be highly confidential unles the Plaintiff is arguing that the Defendant somehow accessed highly confidential information, and no one has said that in any pleadings in this case.

A highly confidential designation requires that the party has made an effort to keep the information confidential, which is why, if the Defendant had access to a work of art, well, it isn't highly confidential. Similarly, a trademark cannot, by definition, be confidential, and so most facts related to such claims would be very much completely public. Highly confidential information would be things like trade secrets. In fact, if you want to know what the parties have sought to designate as highly confidential, the parties have had to make arguments to the court to request such designations. The Court decides what is and is not kept out of the record, with the preference being for it being IN the public record.

If you want to file a lawsuit, you have to do it in front of the public. That's the way it is in America.

So what we have here is the judge allowing GW to make fools of themselves in court with a case that isn't even properly filed.

I'm ok with that.

So question: can GW introduce their examples in the trial without first having outlined them in all of this pretrial process? I'd imagine not.

And if not, then the opening argument for CHS seems pretty clear: GW hasn't said what items we are infringing on, therefore we(the public) cannot assume wrong doing based solely on what is currently a baseless accusation.

How can GW honestly move forward with the case being in this state? Surely they understand what is at risk here.

Keep in mind that the Judge would not actually be doing anyone (CHS or other future 3rd party manufacturers) any favors if he dismissed the case now or 6 months ago (or even a couple of years ago when the case was first filed).

Unless he dismissed with prejudice, GW could turn back around and refile against CHS. While they have pro bono representation this time through - a second (or third or fourth) lawsuit might not have that benefit. So, the judge saying - you guys don't have your act together, try again later could spell the death of CHS.

The second issue is that without having a ruling on the general principles (nominative use of GW's trademarks for product identification and fair use of GW's copyrighted materials to design parts that fit existing products), they could file another suit for the next product that CHS releases even if all the counts of this case a dismissed with prejudice.

As the list I posted shows, there are a lot of products which were taken off the board - but the reason they were taken off the board was a procedural one, not a legal one. While CHS can make "Shoulder pads for Deathwatch or Dark Angels - Tactical" - it does not protect them to make a different product of comparable design that GW might stake a claim to (as roughly half of the remaining claims are shoulder pads as well).

The larger thing of it all is that I would not be half surprised if GW were to withdraw all their claims the day before the trial. That would prevent a case from being decided on the core issues of the case and would limit their general exposure to this only to CHS. The judge would likely dismiss the claims with prejudice (on the same basis that he did the claims in his original Summary Judgment) and CHS would go back to what they had been doing. Without much effort - CHS attorneys would probably even be able to convince the judge to have GW pay legal fees and issue an injunction against future lawsuits against CHS. Again, minimal costs and exposure to GW.

That would still allow GW to continue doing what they have been doing and making the claims they have been making. It prevents the chance that an opinion might come down that strips them of the particular claims they made in this case in general since it would be limited specifically to this case, these claims and CHS. Even having to pay out a few hundred thousand (or million) in penalties that the judge might issue against GW would be a pittance compared to the damage that could be done by a wholesale loss.

Should that happen, it should be mildly entertaining hearing all the GW staff try and spin it as some manner of victory for GW anyway.

 Aerethan wrote:
Should that happen, it should be mildly entertaining hearing all the GW staff try and spin it as some manner of victory for GW anyway.

We've lost the case, and this is a good thing!

The Auld Grump

*EDIT* Just me, or is that good thing! comedy gold?

Both parties have submitted full exhibit lists as part of the proposed pretrial order. That's it as far as exhibits are concerned. If they aren't on that list, they are not in front of the jury, and if they are on that list, the Judge may still rule against allowing them in the trial.

This is how trials work. Also, the Court has decided that the Plaintiff has made a prima facie case, and denied several motions for summary judgment on various claims by the Defendant.

Our legal system favors a jury verdict, especially in subjective, fact intensive inquiries. Now, also keep in mind that the Court still has broad latitude to reign in the case. Like I said, in many cases things do not get properly tightened up until right before you pick a jury.

Yep, quite often a judge will take a look at a case and choose a half dozen or so claims that will determine the outcome of the rest of them.

For example, he might distill it down to the question of nominative use of trademarks (as opposed to dealing with each trademark claim one at a time), the issue of the basic shoulder pad (as opposed to each and every variation of them) and the issue of building matching components (like doors for vehicles and things like the Tervigon kit).

It makes the issues at hand bite sized for a jury who might otherwise get bogged down in the minutia of the case (and looking at the combined exhibit lists from GW and CHS - there is an overwhelming amount of material for someone who is unfamiliar with the products). Those 3 core issues would be able to determine the whole of the case fairly well with a couple of exceptions (mycetic spores and in part the Tervigon as well for example).

 Aerethan wrote:
Should that happen, it should be mildly entertaining hearing all the GW staff try and spin it as some manner of victory for GW anyway.

They will say: "Okay, all flyers now 100$."
Amusing enough?

 Kroothawk wrote:

 Aerethan wrote:
Should that happen, it should be mildly entertaining hearing all the GW staff try and spin it as some manner of victory for GW anyway.

They will say: "Okay, all flyers now 100$."
Amusing enough?

woohoo, price drop!

 Dheneb wrote:

 Kroothawk wrote:

 Aerethan wrote:
Should that happen, it should be mildly entertaining hearing all the GW staff try and spin it as some manner of victory for GW anyway.

They will say: "Okay, all flyers now 100$."
Amusing enough?

woohoo, price drop!

I lol'd.

Then I died a little inside

 Janthkin wrote:
I anticipate that, at the close of the plaintiff's case, defendants will move for summary judgment (which is the normal course of events).

What's abnormal is that I think they have an excellent chance of getting it at that point; most of the time, judges like to let the jury go through the whole case, reach a verdict, and then rule - gives them something to fall back on if the appeal overturns their directed verdict ruling.

To be super nit-picky (and to help the non-lawyers keep the terms straight) the defendants can move for "Judgment as a Matter of Law" (JMOL) after the plaintiffs have presented their case at trial. The defendants can argue that even after the plaintiffs have presented their entire case and settled any questions of material fact that they had, the plaintiffs did not fulfill their duty to satisfy each and every element of the cause of action. If the judge grants the JMOL, then it's case over for the plaintiff.

"Summary Judgment" is a very similar motion, however it is made after discovery, but before trial.

 TheAuldGrump wrote:

 Aerethan wrote:
Should that happen, it should be mildly entertaining hearing all the GW staff try and spin it as some manner of victory for GW anyway.

We've lost the case, and this is a good thing!

The Auld Grump

*EDIT* Just me, or is that good thing! comedy gold?

It definitely has potential to become an internet meme in the GW gaming community.

Imagine a picture of a freeze frame from an MMA fight where someone is being choked out, and the caption explains how this is a "good thing" for the loser.

It is definitely a good thing for the people who bet on the loser.

 Dheneb wrote:

 Kroothawk wrote:
"Okay, all flyers now 100$."
Amusing enough?

woohoo, price drop!

LOL! Nice...

"Good Thing":
http://www.youtube.com/watch?v=HkgFSWtUnNk

Can anyone tell me if the link to the pdf of GW's sales figures still exists in this thread? And what page/post?

Redacted...gone.

Lots ofmpeople should have their private copies (I told them to do as much whenit was posted...) but it is no longer on Pacer or the Recap site.

 Sean_OBrien wrote:
Redacted...gone.

Lots ofmpeople should have their private copies (I told them to do as much whenit was posted...) but it is no longer on Pacer or the Recap site.

I thought I had downloaded it and saved it somewhere, but apparently not... :-\

Would it be illegal for someone to post a link to a copy?

As requested

I have a copy on my home machine, will drop-box it once i get back later today..... and thank you Aerethan, beating me to the punch.