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czakk wrote:
If you read Mr Keener's memorandum, he makes it clear that their victories were "multitude".

If by "multitude," he means that they won on more than one count, then sure, they certainly did!

 Guildsman wrote:

czakk wrote:
If you read Mr Keener's memorandum, he makes it clear that their victories were "multitude".

If by "multitude," he means that they won on more than one count, then sure, they certainly did!

To be fair, Games Workshop won on many claims, but objectively, when considered within the context of the litigation as a whole, the plaintiff prevailed on only roughly 25% of asserted claims. Also, it is important to note that having a large number of affirmative defenses dismissed is vastly different from a plaintiff's claims being dismissed with prejudice. A plaintiff does not "prevail" when an affirmative defense is dropped or dismissed, as it is the plaintiff that bears the burden of proving a claim in the first instance. Indeed, a defendant need not even articulate a defense beyond denying liability. A plaintiff only prevails when one finds liability. That a Federal Judge decided to table the question of Games Workshop defrauding the US Copyright Office, for example, did not in any way mean that Games Workshop prevailed on any claim, merely that Games Workshop was not barred from relief with respect to certain claims.

Surviving to trial does not mean that the plaintiff "won" on a particular claim. But to the contrary, when a claim is dismissed, and in particular when a claim is dismissed with prejudice, the plaintiff is not only barred from relief in the current litigation, but barred from articulating such a claim in the future. Consequently, the defendant simply cannot be liable with respect to that claim, and thus the plaintiff cannot possibly prevail. The Court dismissed numerous of the plaintiff's claims with prejudice. This is a ballpark, but I believe more claims of copyright infringement were dismissed with prejudice by the Court than the plaintiff prevailed on at trial.

Among software development issues that sounds like a "don't do that" bug or "Chair-to-keyboard-interface" issue.

I expect more of day one employees.

Kinda funny.
Uh-oh funny.
A "that milk smells funny" kind of way more than a "that made me laugh" kind of way.

weeble1000 wrote:

 Guildsman wrote:

czakk wrote:
If you read Mr Keener's memorandum, he makes it clear that their victories were "multitude".

If by "multitude," he means that they won on more than one count, then sure, they certainly did!

To be fair, Games Workshop won on many claims, but objectively, when considered within the context of the litigation as a whole, the plaintiff prevailed on only roughly 25% of asserted claims. Also, it is important to note that having a large number of affirmative defenses dismissed is vastly different from a plaintiff's claims being dismissed with prejudice. A plaintiff does not "prevail" when an affirmative defense is dropped or dismissed, as it is the plaintiff that bears the burden of proving a claim in the first instance. Indeed, a defendant need not even articulate a defense beyond denying liability. A plaintiff only prevails when one finds liability. That a Federal Judge decided to table the question of Games Workshop defrauding the US Copyright Office, for example, did not in any way mean that Games Workshop prevailed on any claim, merely that Games Workshop was not barred from relief with respect to certain claims.

Surviving to trial does not mean that the plaintiff "won" on a particular claim. But to the contrary, when a claim is dismissed, and in particular when a claim is dismissed with prejudice, the plaintiff is not only barred from relief in the current litigation, but barred from articulating such a claim in the future. Consequently, the defendant simply cannot be liable with respect to that claim, and thus the plaintiff cannot possibly prevail. The Court dismissed numerous of the plaintiff's claims with prejudice. This is a ballpark, but I believe more claims of copyright infringement were dismissed with prejudice by the Court than the plaintiff prevailed on at trial.

F&L's pleading style seems to be to add a little pizzazz similar to say Boies Schiller & Flexner. Overstate the case a little and ask for the stars and hope the judge settles in the middle and gives you the moon.


Objectively this costs motion has the potential to be very interesting. On the one hand you have a rule about prevailing parties being entitled to costs - and GW prevailed on some of their claims. On the other hand, looking at what they won, vs what they claimed is it fair to award them all (or any) of their costs.

Some folks will say, do we want the system to encourage monied plaintiffs loading up their lawsuits with bogus claims so that even if they only win a dollar in the end, the costs of photocopying alone will bury a defendant? On the other hand, do we want to discourage potentially meritorious claims from being brought?


Being indoctrinated in a system with robust cost shifting, I favour letting the plaintiff who refused to settle and then struck out big time pay costs and legal fees. But I might feel different if I was an american

czakk wrote:

Being indoctrinated in a system with robust cost shifting, I favour letting the plaintiff who refused to settle and then struck out big time pay costs and legal fees. But I might feel different if I was an american

As an American ( ), I think I am culturally disposed to favor lawsuits, which means I enjoy things like the mighty counterclaim, torts like abuse of process, and civil suits on the heels criminal and civil rights cases. I think we will see, for example, a wrongful death suit against George Zimmerman.

But we yanks are admittedly pretty crazy.

I agree with you czakk. GW brought these costs upon themselves, and failed to justify them. CHS offered to settle reasonably, and GW insisted on moving forward and incurring those costs.

To do so they were fully aware of the risk of not winning(or should have been), and as such eating all costs associated with this. They played a zero sum game and lost. Not only did they spend their own money losing, they cost the other party who tried to settle early on money by dragging this out for 2.5 years only for the defendant to walk away mostly unscathed.

Any company that does this should be held responsible for the costs associated with it.

One thing you could argue is that if GW won 25% of the claims, then CHS pays 25% of their costs and vice versa, which would end up being GW paying CHS far more than CHS pays GW, and negating that 25k damages they got.

It's almost like GW still doesn't realize how bad they're in. At what point do they cut their losses and admit defeat?

weeble1000 wrote:

I think we will see, for example, a wrongful death suit against George Zimmerman.

But we yanks are admittedly pretty crazy.

Unlikely I believe for two reasons - 1) no money, he's not OJ and Florida has homesteading laws, can't take his house. No point in suing someone who's basically judgment proof. 2) Florida has an additional hurdle for suing someone who's been acquitted by way of self defence.


Automatically Appended Next Post:

 Aerethan wrote:

One thing you could argue is that if GW won 25% of the claims, then CHS pays 25% of their costs and vice versa, which would end up being GW paying CHS far more than CHS pays GW, and negating that 25k damages they got.

That's called a "set-off" or an "offsetting costs" depending on circumstances and jurisdiction. Some places costs always follow the overall victor, in other places each one of the individual motions would have had costs assigned to who ever won that particular motion. And in estate litigation you can also have the estate paying everyone's costs (depending on jurisdiction). This tends to encourage people to challenge wills - they know they won't have to foot the whole bill.

czakk wrote:

weeble1000 wrote:

czakk wrote:

I think we will see, for example, a wrongful death suit against George Zimmerman.

But we yanks are admittedly pretty crazy.

Unlikely I believe for two reasons - 1) no money, he's not OJ and Florida has homesteading laws, can't take his house. No point in suing someone who's basically judgment proof. 2) Florida has an additional hurdle for suing someone who's been acquitted by way of self defence.

This is off topic, so I PM'd you.

Yeah, probably a good idea not to drag that in here.

Indeed.

Any further posts on this tangent will be deleted.

Well dealt with though folks

Does anyone know what the proposed CHS settlement was? (Purely being nosey)

Cheers

Andrew

 AndrewC wrote:
Does anyone know what the proposed CHS settlement was? (Purely being nosey)

Cheers

Andrew

That stuff is not the sort of thing that makes it to a public filing. In the BOLS lounge thread the CHS owner has made some statements about it.

From what I understand, he basically said "I'm willing to be bought out and go away to another industry. It'll probably cost you less than taking this case all the way."

 frozenwastes wrote:
From what I understand, he basically said "I'm willing to be bought out and go away to another industry. It'll probably cost you less than taking this case all the way."

But they didn't, and it did.

The Auld Grump

 TheAuldGrump wrote:

 frozenwastes wrote:
From what I understand, he basically said "I'm willing to be bought out and go away to another industry. It'll probably cost you less than taking this case all the way."

But they didn't, and it did.

The Auld Grump

Which to me shows GW's ignorance of how IP law actually works. Rough estimates put GW's costs in legal fees alone well over 1 million USD. As an American, I can guarantee you that had GW offered 1 mil for CHS to go quietly once things got bad for them, they likely would have. It takes a lot for a man to turn down that amount these days. And instead, GW spent that money to lose their stranglehold on the market that they've decided is theirs alone.

GW's hubris has brought them here, and now we will all see the fallout of it.

 Aerethan wrote:

 TheAuldGrump wrote:

 frozenwastes wrote:
From what I understand, he basically said "I'm willing to be bought out and go away to another industry. It'll probably cost you less than taking this case all the way."

But they didn't, and it did.

The Auld Grump

Which to me shows GW's ignorance of how IP law actually works. Rough estimates put GW's costs in legal fees alone well over 1 million USD. As an American, I can guarantee you that had GW offered 1 mil for CHS to go quietly once things got bad for them, they likely would have. It takes a lot for a man to turn down that amount these days. And instead, GW spent that money to lose their stranglehold on the market that they've decided is theirs alone.

GW's hubris has brought them here, and now we will all see the fallout of it.

Worse, it is money that could have been used to promote the hobby.

Money spent on an unfounded legal case is gone. A sunk cost with no return.

That same money spent on promoting the hobby would have at least had some chance of a return.

Worse, from GW corporate's view* is that it opens the third party market - Chapterhouse may be the first that openly claims compatibility, but it is unlikely to be the last.

The Auld Grump

* Mind you - I think that the corporate view is pretty nearsighted - allowing folks to build the models that they want is going to help promote the hobby - and in order to use custom shoulder pads you need a GW model to attach them to....

The only problem with paying them to go away is it opens a can of worms to any other bitz makers, so if tgey push hard enough GW will pay you a lot to go away, not ideal at all. Though GW seem to be harsh other businesses do the same, has it worked this time no not entirely and the repercussions will be a long time in showing up.

Skullhammer wrote:
The only problem with paying them to go away is it opens a can of worms to any other bitz makers, so if tgey push hard enough GW will pay you a lot to go away, not ideal at all. Though GW seem to be harsh other businesses do the same, has it worked this time no not entirely and the repercussions will be a long time in showing up.

The only reason we know about the offer is because it wasn't accepted. There's this nifty thing called a non disclosure agreement. What would the world have thought if the CHS website suddenly disappeared and GW released a statement that they had successfully asserted their intellectual property rights?

Would we have said, "oh, they must have paid him a million dollars," with any sort of conviction?

I would have.

edit: Well, I would've said "That's dumb. I hope he can retire off of what they bought him out for."

rigeld2 wrote:
I would have.

edit: Well, I would've said "That's dumb. I hope he can retire off of what they bought him out for."

Why would you?

How many small manufacturers and site owners have just complied with a C&D from GW and shut down without a single peep? If GW had made CHS and offer and they had accepted, then they would've just joined those countless others.

PhantomViper wrote:

rigeld2 wrote:
I would have.

edit: Well, I would've said "That's dumb. I hope he can retire off of what they bought him out for."

Why would you?

How many small manufacturers and site owners have just complied with a C&D from GW and shut down without a single peep? If GW had made CHS and offer and they had accepted, then they would've just joined those countless others.

Most of those places put up a notice about their C&D and the closing of their doors...

 Alfndrate wrote:

PhantomViper wrote:

rigeld2 wrote:
I would have.

edit: Well, I would've said "That's dumb. I hope he can retire off of what they bought him out for."

Why would you?

How many small manufacturers and site owners have just complied with a C&D from GW and shut down without a single peep? If GW had made CHS and offer and they had accepted, then they would've just joined those countless others.

Most of those places put up a notice about their C&D and the closing of their doors...

And CHS put up notice of being sued! That is a right worse spot to be in than a C&D.

Why didn't GW put that offer infront of an accountant? Simple assessment, cost vs risk should have told them to seriously consider it.

Ah well.

Cheers for the info though.

Andrew

weeble1000 wrote:

Skullhammer wrote:
The only problem with paying them to go away is it opens a can of worms to any other bitz makers, so if tgey push hard enough GW will pay you a lot to go away, not ideal at all. Though GW seem to be harsh other businesses do the same, has it worked this time no not entirely and the repercussions will be a long time in showing up.

The only reason we know about the offer is because it wasn't accepted. There's this nifty thing called a non disclosure agreement. What would the world have thought if the CHS website suddenly disappeared and GW released a statement that they had successfully asserted their intellectual property rights?

Would we have said, "oh, they must have paid him a million dollars," with any sort of conviction?

GW actually went so far as to use the offer as an opportunity to insult CHS by offering less than what CHS makes in a year. So there was really no way to even believe it was a sincere offer.

weeble1000 wrote:

 Alfndrate wrote:

PhantomViper wrote:

rigeld2 wrote:
I would have.

edit: Well, I would've said "That's dumb. I hope he can retire off of what they bought him out for."

Why would you?

How many small manufacturers and site owners have just complied with a C&D from GW and shut down without a single peep? If GW had made CHS and offer and they had accepted, then they would've just joined those countless others.

Most of those places put up a notice about their C&D and the closing of their doors...

And CHS put up notice of being sued! That is a right worse spot to be in than a C&D.

Sure. And when someone sues you and you shut down without explanation other than "I'm shutting down" my assumption is a settlement with a NDA.
If someone sues you and you shut down without some kind of settlement, there'll be enough rage to fuel at least a short rant as your last words on the subject.

Yeah, I've been wondering about that myself. The biggest investors are dropping their shares for "various reasons." I really do want to know why they're dropping their shares slowly.

 paulson games wrote:
[GW always likes to keep their head in the sand and shovels a load of manure down their investors throats in these reports, but sooner or later they'll realize that saying "La La La I can't hear you!" isn't a viable way to dealing with losing ground to the rest of the gaming industry.

That's been GW policy for the twenty years I've been following them. I'm glad that I'm not seeing the term "the Games Workshop hobby" as much as I used to, but they still pretend that no one else in the industry exists. Oh, and raising prices.

If you own a large amount of shares and sell them quickly it depresses the market and reduces the price you hope to get for them.

 odinsgrandson wrote:
Yeah, I've been wondering about that myself. The biggest investors are dropping their shares for "various reasons." I really do want to know why they're dropping their shares slowly.

The stock market is made up of a bunch of bids and asks. Electronic orders that say "I'll buy 10,000 shares at 7.80" and "I'll sell 5,000 shares at 8" and only when they match up does a sale happen. There are also market makers who will take one order and fill it with others so the numbers line up. So if you start putting "I'll sell tons of shares at this price" onto the market, the price starts going down as you hit all the buyers at the current level and are only left with offers at lower amounts.

It's also an old addage that you should sell into strength. When the stock is rising, there are more and more "I'll buy" orders at even higher prices that you can keep matching as they come in. So you'll get the best possible price. Games Workshop's stock is approaching it's historical high, so if I was an institutional investor, I'd be slowly selling into the strength. Considering most of them bought in at the bottom and have already made a ton of money, it might be time to move on to something else if they think the price is getting close to some sort of ceiling.

Joint motion to extend a filing deadline (for the fight over attorney fees) until after the settlement conference on the 16th of September.

Nothing earth shattering.

Makes me want to patronize CHS a bit more in the future.