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The case went to trial earlier this year, on…what was it…July 6th or something? In any case, the lawsuit went to a jury trial. Before then, the Court had dismissed GW's state and federal trademark dilution claims and dismissed something like 40+ of GW's copyright infringement claims with prejudice. Going into the jury trial, the Court had also made a bunch of summary judgment rulings, finding that I think ~70 of GW's trademarks were valid and in use in commerce. GW dropped some claims right before tiral, and dropped more cliams during the trial itself. The Court allowed GW's claims to be considered in sort of an aggregate nature, and ruled that the website photos of Chapterhouse's products were part of the caims agaisnt the actual products as sold. In closing arguments, GW said that it only wanted a dmages award of 25K for copyright infringement.

The jury found that Chapterhouse infringed some of GW's copyrights and some of GW's trademarks, with Chapterhouse prevailing on ~60% of claims before the jury and at least 70% of claims in the context of the entire case, not including the dilution claims that were dismissed. The jury awarded 25K in damages. Winston and Strawn published a statement on its website essentially saying that the trial was successful. GW remained silent.

Subsequent to the jury verdict, the Court entered preliminary judgment essentially along the same lines as the jury verdict. Both parties have filed renewed motions for judgment as a matter of law, seeking to prevail on essentially all claims as a matter of law. The parties have disputed how an injunction should be worded. Both parties have moved to recover costs, and neither party has thus far moved for attorney fees.

Neither party has filed a notice of appeal, but at this point the Court has not entered final judgment, and it would be unusual to file a notice of appeal prior to final judgment. The Court still needs to rule on the motions for judgment as a matter of law, the injunction, and the motions for costs. Once the Court rules on those, the case will be over although it will be subject to appeal. The Court had ordered the parties to have a post verdict settlement negotiation, mediated by magistrate judge Gilbert. The parties have not settled so far as we know, and after something like a few months Judge Kennelly had ordered the parties to proceed with briefings on the above-refenced issues, which he had put on hold while the parties were engaging in obligatory settlement discussions.

The Court can take however long it wants to rule on the issues that it still needs to rule on, and without actually hearing what Judge Kennelly said in status conferences, it is imporrible to know when he intends to rule on those issues. Nevertheless, tbhese issues will get ruled on at some point and the case will proceed from there. The holdup right now is due to the Court.

http://www.archive.org/download/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.462.0.pdf

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 12/5/2013: For the reasons stated in this decision, the Court denies plaintiff's motion for judgment as a matter of law and defendant's motion for judgment as a matter of law or in the alternative for a new trial. (mk)





Automatically Appended Next Post:
Costs denied to both parties:

This docket entry was made by the Clerk on Thursday, December 5, 2013:
MINUTE entry before the Honorable Matthew F. Kennelly: The Court has considered each party's request for an award of costs on the ground that it prevailed. The verdict in this case was decidedly mixed. Plaintiff obtained the damage award it sought at trial, though it was a relatively nominal amount, and it will obtain an injunction, but it lost on the majority of the claims that it presented to the jury. Defendant, for its part, will find itself barred from making and selling a good many of its products, and a party that faces a damage award and an injunction can by no means be considered to have prevailed in the overall scheme of things. In a case like this one in which the result is mixed, a court has the discretion to deny costs, and the Court is exercising that discretion here. See, e.g., Gavoni v. Dobbs House, Inc., 164 F.3d 1071, 1075 (7th Cir. 1999). Each side shall bear its own costs. (mk)



Injunction to be used:


MINUTE entry before the Honorable Matthew F. Kennelly: The Court has considered the parties' various submissions regarding entry of and the form of an injunction against defendant. The Court finds appropriate in substance and form the proposed injunction attached to the parties' second supplemental status report [dkt. no. 461] and will enter an injunction in that form. Plaintiff's counsel is directed to promptly provide a Word version of that draft injunction to the Court, via Judge Kennelly's proposed order e−mail address. (mk)

Thanks Czakk; I can't say that I'm surprised by the court's decision. Well, I suppose we're open for the post-game show, the appeal.

Text of the Injunction is attached,



Also, Chapterhouse is asking to amend the injunction so that during the appeal process the moulds at issue can be sent to Chapterhouses' lawyers, instead of to GW.


Automatically Appended Next Post:

MR.KEENER: If I could briefly respond, your Honor?
22 THECOURT: Lord, can't you guys, like, have some
23 sort of a celebrity death match on whatever planet they play
24 the Warhammer 40K games on?
25 MR. KEENER: Yes.
THECOURT: I mean, seriously, is there no possibility of you --
Everybody had a trial, okay, and everybody won some and everybody lost some. It was a mixed bag, okay. It was real mixed bag. And I know that, you know, 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?

Hah, you think the judge is sick of this case or what?

Nothing is easy in this case, I guess. And I hope that you have hired large pack animals to bring over the chambers copies of the, you know, massive postverdict motions that apparently got filed yesterday.....

Go by his chambers. Tell him his worst nightmares have come to pass: You're back. Don't tell him that; I will tell him that........

You guys could fight until your kids --and you're both very young, okay -- until your kids are standing up here in front of me. You could still be fighting then.........

I suppose the courts don't realize just how much SRS BZNS spehs Merhines and plastic army men are.

lol. They just don't know when to call it a day, do they? I don't feel too badly for the judge; he's played a large role in the snarled mess this case became.

Those quotes are jokes right? The Judge didn't actually say that...did he?

He really, REALLY does sound sick of it.
I can't say I blame him either :/

So those are actual quotes? And not just people pulling our legs?

Shadow Captain Edithae wrote:
So those are actual quotes? And not just people pulling our legs?

Yes, they quotes are from the transcript.


The judge is annoyed because the lawyers in this case are squabbling instead of settling. And there is a lot of juvenile gak happening, like the argument over who holds onto the moulds.

wow a British judge would never say something like that. Pretty funny actually

I am not certain that who holds onto the mould is juvenile - I would be worried that GW would 'accidentally' drop those moulds into the incinerator.

Certainly GW's lawyers have shown a certain willingness to abridge the law in their favour, and GW is the ones that hired them....

The Auld Grump, heck, I might be surprised that if GW does hold on to the moulds then they don't have an 'accident'....

 TheAuldGrump wrote:
I am not certain that who holds onto the mould is juvenile - I would be worried that GW would 'accidentally' drop those moulds into the incinerator.

Certainly GW's lawyers have shown a certain willingness to abridge the law in their favour, and GW is the ones that hired them....

The Auld Grump, heck, I might be surprised that if GW does hold on to the moulds then they don't have an 'accident'....

Who holds onto them isn't juvenile - you see both parties and the judge agreeing that CHS' lawyers will hold on to them for the appeals.

The issue is the behaviour that's going around behind the scenes about the wording of the injunction.


Automatically Appended Next Post:

You are correct that we previously agreed that there would be no need for Chapterhouse to surrender the goods to us. It suffices to certify that Winston & Strawn is holding the goods. As is typically the case, you find a need to point fingers when you might just as well accept >responsibility for not making the change yourself when we submitted the >prior joint status report. All we did was to follow Kennelly's instructions. Regardless, without any finger‐pointing whatsoever, you have our acknowledgment that substantial compliance with this term by certifying you hold the goods suffices. We think that is more efficient than changing the injunction because, at the end of the day, if there are appeals and if those appeals are exhausted, we would then have the right to a turnover of the infringing goods and means of making them

And so on... since day one practically.

czakk wrote:

 TheAuldGrump wrote:
I am not certain that who holds onto the mould is juvenile - I would be worried that GW would 'accidentally' drop those moulds into the incinerator.

Certainly GW's lawyers have shown a certain willingness to abridge the law in their favour, and GW is the ones that hired them....

The Auld Grump, heck, I might be surprised that if GW does hold on to the moulds then they don't have an 'accident'....

Who holds onto them isn't juvenile - you see both parties and the judge agreeing that CHS' lawyers will hold on to them for the appeals.

The issue is the behaviour that's going around behind the scenes about the wording of the injunction.


Automatically Appended Next Post:

You are correct that we previously agreed that there would be no need for Chapterhouse to surrender the goods to us. It suffices to certify that Winston & Strawn is holding the goods. As is typically the case, you find a need to point fingers when you might just as well accept >responsibility for not making the change yourself when we submitted the >prior joint status report. All we did was to follow Kennelly's instructions. Regardless, without any finger‐pointing whatsoever, you have our acknowledgment that substantial compliance with this term by certifying you hold the goods suffices. We think that is more efficient than changing the injunction because, at the end of the day, if there are appeals and if those appeals are exhausted, we would then have the right to a turnover of the infringing goods and means of making them

And so on... since day one practically.

Good gravy... are you sure that GW hired professional lawyers, or did GW just... go with Barnum & Bailey?

I have been wondering that since the 'Mr Oh' incident....

Are the Chapterhouse lawyers as bad, or is Moskine & Co.just special?

*EDIT* The only incidents coming to mind have been by GW's pack, but I may well be biased.

The Auld Grump

SO, is there a possibility that the Judge himself never really took this case seriously from the start?

Some of his 'joke' comments seem to be... a bit much, and perhaps also a bit revealing, and not in a good, fair and impartial way - at least not for him.

Judges aren't required to be impartial. They make sure the law is followed and that the jury is impartial, beyond that Judges are free to inject all sorts of personal opinion and personal perspective into stuff.

A lot of his comments may read amusingly online but Judge Kennelly has a very no nonsense attitude and many of these were likely said through angry gritted teeth. Even in the pre-trial stuff you could see his forehead veins throbbing and at times he looked like he wanted to brain GW's lawyer with his gavel. Which I think summarizes his views of the trial since day one.

Judges with that amount of bias might not be making sure of...much.

I'd think he certainly makes some of his judgements seem...less sound and open to potential appeal with some of these latest LULZ.

Certainly seems quite unprofessional.

And for the woefully uninformed? What is going on here? From what I can make of it this CHS is being sued by GW for making bits?

Not overly interested, just kind of apathetically involved I suppose. Would be nice to see the little guy win. I mean, copyrighting a specific shape seems a little silly to me. Like the shoulder pads thing? Come on dudes, it's a lump of plastic. Maybe if GW was so fanatically overpriced then people wouldn't look elsewhere for their needs?

czakk wrote:

Who holds onto them isn't juvenile - you see both parties and the judge agreeing that CHS' lawyers will hold on to them for the appeals.

The issue is the behaviour that's going around behind the scenes about the wording of the injunction.

Yeah, I found the email exchange amusing--as Moskin appeared to be saying (IANAL)--"It's ok if the injunction implies we get ownership of the molds now--trust us when we say we won't press it until after appeal when we'll get them anyways. We're good for it, no need to change the wording"

Given the history of the case (and the fact that's a legal order entered into record)--I could see why CHS said "We'll pass on your offer of trust and get it changed legally."

darkcloak wrote:
And for the woefully uninformed? What is going on here? From what I can make of it this CHS is being sued by GW for making bits?

Not overly interested, just kind of apathetically involved I suppose. Would be nice to see the little guy win. I mean, copyrighting a specific shape seems a little silly to me. Like the shoulder pads thing? Come on dudes, it's a lump of plastic. Maybe if GW was so fanatically overpriced then people wouldn't look elsewhere for their needs?

GW tried to sue Chapterhous, expecting them to fold under the threat of a costly lawsuit like many before them.
CH surprised GW by getting pro bono representation and GW were forced to back up their claims.
GW then went and tried to get shoulderpads copyrighted.
GW's legal team proved to be laughably ineffective thanks to the bull GW was trying to claim ownership of (stuff like fur, halberds, roman numerals and the word jetbike).
GW's legal team pulled a few dirty tricks/illegal moves like being deliberately vague about what they were suing over and swearing they handed over all relevant documentation while hiding emails to and from the copyright office telling them no, shoulderpads couldn't be copyrighted.
GW tried to steal artwork from a couple (several?) artists they hired years ago by telling everyone they owned the rights to the work and just 'lost' the documents and tried to get the artists to sign over the rights 'again'.
GW dropped something like a third of their claims just before the case went before the jury.
Despite going into this case with a single goal, to destroy Chapterhous and put them entirely out of business, in GWs closing statement they asked for only $30,000 or so in damages and won it as a few bits and several whole model kits of CH's were found to infringe GWs copyrights.
Chapterhouse won the other 2/3rds of the claims.
GW's head of legal left suddenly.
Both parties claimed victory and are now preparing for appeals because CH now has even more lawyers on side (who are very very good at this kind of thing apparently) and they mean to overturn things that legally the jury should not have awarded in GWs favour, while GW... I think at this point people at the top are still calling orders down the chain and the legal team are just doing what they are told.

Not the greatest recap but there you go.
Oh, and fun fact, GW clearly wanted to make an example of CH and discourage any other bitz makers in the future but instead there are now some very clear rules about how to go about starting a bitz company without gettign in trouble.

So with the denial of costs for both parties, does that mean CHS is stuck with the associated costs from the pro-bono defense?

 silent25 wrote:
So with the denial of costs for both parties, does that mean CHS is stuck with the associated costs from the pro-bono defense?

The eat the costs for filing, printing, expert witnesses and all non "lawyer" fees really. Iirc someone threw out a number of about 125k for CHS's costs that they were seeking.

I do find it odd that the judge finds CHS to not have prevailed in general. GW's endgame from day 1 has been the dissolution of CHS. They failed at that, so by default if CHS walked away still in business then they prevailed since GW failed. It was far from a draw.

Part of the appeal will be an attempt to overturn the decisions in favour of GW, however if CH end up stiffed with a bunch of costs, they could make a "Grand High Inquisitioner" kit and probably sell a load of them.

 paulson games wrote:
Judges aren't required to be impartial. They make sure the law is followed and that the jury is impartial, beyond that Judges are free to inject all sorts of personal opinion and personal perspective into stuff.

That is a speciality of US (and British?) law. In Germany, a judge can be officially withdrawn from a case, when he is proven partial. Accusing a judge for being partial ("Befangenheitsantrag") is standard procedure in many major lawsuits here.

 Aerethan wrote:

 silent25 wrote:
So with the denial of costs for both parties, does that mean CHS is stuck with the associated costs from the pro-bono defense?

The eat the costs for filing, printing, expert witnesses and all non "lawyer" fees really. Iirc someone threw out a number of about 125k for CHS's costs that they were seeking.

I do find it odd that the judge finds CHS to not have prevailed in general. GW's endgame from day 1 has been the dissolution of CHS. They failed at that, so by default if CHS walked away still in business then they prevailed since GW failed. It was far from a draw.

i find it hard to believe that you know how to interprit jury decisions better than a judge. He made it quite clear why chs were not the prevailing party - they received a fine and were banned from selling certain products. In no way could they be considered 'winners'.

Not that i would say gw were, though if they had not been so indescriminate in their original claims they may well have been ruled the prevailing party. Maybe in future they'll be more conservative with their claims.

 agnosto wrote:
lol. They just don't know when to call it a day, do they? I don't feel too badly for the judge; he's played a large role in the snarled mess this case became.

Yup! If Judge Kennelly didn't want to be holding this bag he could have done his job. Waiting and hoping that the parties will settle out is not the Court's job. If this goes up on appeal, Kennelly will likely find out exactly what the 7th Circuit Court of Appeals thinks about how he has handled this case, and it might not be rosy.


Automatically Appended Next Post:

czakk wrote:

Shadow Captain Edithae wrote:
So those are actual quotes? And not just people pulling our legs?

Yes, they quotes are from the transcript.


The judge is annoyed because the lawyers in this case are squabbling instead of settling. And there is a lot of juvenile gak happening, like the argument over who holds onto the moulds.

Why is that juvenile? Those are irreplaceable materials. If the case gets flipped on appeal, having those materials safely returned in good condition will be essential to seeing those products back in production. Moskin has been sanctioned by the Court already for reckless or deliberate mishandling of documents. If I were Chapterhouse, I wouldn't want to see irreplaceable materials put into the custody of opposing counsel that has behaved in the manner Jonathan Moskin has been behaving for three years.

Edit: Ninja'd. In any case, czakk has a point that most attorneys would have worked out stuff like this on the back end in a civil manner. This case has been anything but civil, and I have to agree with Grump that most of what I saw in terms of less than professional conduct was on the part of Games Workshop. If you look at the record from the Gallo v Rallo case, things become very, very clear. That record reads very similar to the GW v CHS case, and the constant between the two is Jonathan E Moskin.

Take a look at this:

The Court sanctioned Rallo and Rallo's counsel for $10,000.00 as well as other equitable remedies. The relevent decision is at the end of that long opinion, and is quoted here:

“As described above, the discovery disputes in this case have been numerous. Neither party has been entirely without fault in adding to the costs of discovery. However, as pointed out above, Rallo has consistently and repeatedly failed to respond to discovery requests in a straightforward manner necessitating numerous and repeated motions to compel and requiring Gallo to expend tens of thousands of dollars in attorney fees. Furthermore, Rallo has failed to comply with very specific portions of this Court's November 8, 2007 Order.

Accordingly, the Court imposes sanctions against Rallo and counsel in the amount of $10,000.00 for its conduct in necessitating numerous motions to compel by Gallo which were granted by the Court and its specific failure to obey the Court's Order of November 8, 2006.

So there's that, for starters. Now in that context, and remember Moskin's sanction in the Chapterhouse case for "deliberately or at least recklessly" failing to provide discoverable documents, take a look at this (document 71):

This is from a declaration sworn by Moskin.

“Despite Ms. Thomas’ denial, the reason I terminated the meet and confer that I initiated on May 18 was her sarcastic comment to me, after I confirmed the delivery of the roughly 1,000 pages of documents referenced in my May 15 letter: ‘Right, The check is in the mail.’…I declined to continue the conversation after effectively being accused of lying.”(emphasis added)

So there you have Moskin hanging up the phone in protest over an oblique insinuation that he could not be trusted to deliver discoverable documents and then complaining about such treatment to the court...only later to have his firm sanctioned for $10,000.00 for just that sort of behavior. And of course Moskin was personally sanctioned in that case, in addition to the discovery-related sanction, for for being deliberately misleading in settlement negotiations, i.e. lying.

This is what lawyers call a "pattern of behavior." Cry to the heavens, whine to the Court, claim to be the aggrieved party, claim to have tried your best to act reasonably, claim that you are the one being professional, claim that this is totally unfair, that you have been insulted, that opposing counsel won't work with you and won't talk to you, claim that every time they go to the Court for help it is because they don't want to work things out like professionals....

Cry, complain, moan, and do everything to throw around enough muddied chaff that the Court doesn't have the patience to actually deal with what looks for all the world like a petulant food fight between juveniles. That's the MO. The sad thing is that it works...and that is a comment on our justice system.

Haha, certainly sounds like the Judge had a sense of humour.

The case had almost started to feel like a jilted separating husband and wife, with the one trying to take every last button off the other's shirt because things had become so personal.

But, this humour is rather black in nature - this is years of people's lives already, over something that you have to think could have been resolved amicably if it hadn't been (and what I'm sure is the case) for the sociopath(s) with a blank cheque on the GW side, and their law firm smiling, nodding and pocketing that cheque.
The bit that always stuck with me was the filing of the case on Xmas eve the one year.. they knew they were targeting a small company, a family man. That wasn't just down to random chance, I know it's only a small thing but it immediately disposed me against GW just because of the type of person who would decide to do something like that.

xruslanx wrote:

Not that i would say gw were, though if they had not been so indescriminate in their original claims they may well have been ruled the prevailing party. Maybe in future they'll be more conservative with their claims.

Yes, aside from hoping that there aren't any future trials of this nature, if the costs of this have been substantial enough hopefully it will at least make future legal actions more targeted and against particular, smaller elements.

Now is it possible that Moskin's pattern of behavior can be brought up in the appeal with the intent to say that we don't believe that he provided all the documents and evidence that he should have and that we can't be sure of the veracity of the ones that he did?

 skyth wrote:
Now is it possible that Moskin's pattern of behavior can be brought up in the appeal with the intent to say that we don't believe that he provided all the documents and evidence that he should have and that we can't be sure of the veracity of the ones that he did?

I don't think so. From what I understand, the appeal will look at specific concerns as a matter of law, based solely on facts and evidence established by the original trial. Someone please correct me if I am wrong.