This is just too good to be true. So, I'll dive in...
I'm not going to spend too much time on getting into pointless arguments about it, because then I'd probably have to charge you a training fee or something.
How utterly convenient. But
I can help. Since I publicly broke the news about the lawsuit, every single opinion that I've written about this case is on that page - complete with links to blogs, articles, and even Twitter threads. And they're not even long. I'll be waiting.
The judge just dismissed 2.4 without discovery.
Yes, she did. So what?
Also, lets review my actual statement in context, shall we?
"
Even if CIG responds to the SAC and files a motion to dismiss 2.4, as it's an issue that's material to the contract, only discovery via the lawsuit will prove that. So I don't envision the judge granting it. Heck, she was the one who actually pointed it out in her own ruling. And NEITHER side had raised 2.4 before she did. Guess why that is? Because neither side disagrees that the GLA is still in full force and effect. Had it been terminated properly as per the contract, there would be NO lawsuit."
Do you know the meaning of the words "opinion" and "envision". Look them up. While you're at it, look up the definitions of "right" and "wrong".
But just to spell out your basic error:
Not a
SINGLE one of those statements has ANYTHING to do with what I've stated. You're trying to inject your
flawed opinions into something you believe that I was either saying or thinking.
So your claim that "only discovery via the lawsuit will prove that" is clearly false.
OK you're just trolling us now, because that's the dumbest thing yet. Anyone who has ever been involved in a lawsuit, or even followed one, knows that you CAN in fact amend during or even after discovery begins IF additional material facts are "DISCOVERED" during that period. e.g. if the judge dismisses 2.4, and during discovery depositions or an email thread is discovered to support that the the license was to be exclusive, that would warrant an amendment because it pertains to a MATERIAL FACT (the "exclusivity" is one such thing that's heavily contested) that was dismissed due to lack of context. And if the judge refuses to allow it, that's how cases get appealed to a higher court. Look up Rule 15 of the FRCP.
Yet in this Twitter thread commentary you made bombastic statements about the strength of the 2.4 claim:
Nice try. Here, let me quote the entire section which you conveniently mashed together statements to add context to suit your laughable narrative:
As you can see, they have basically abandoned the claims in 2.1.2 in their ENTIRETY, while focusing on the MATERIAL & MORE DAMAGING BREACH in 2.4
It's absolutely mind-blowing that the judge gave them this so early on, rather than waiting for it to come up in discovery & later.
Skadden either set a trap here, or were of the opinion that 2.1.2 was just as damaging as 2.4; but the former would carry more weight than the latter (which would have been dragged into 2.1.2 during trial anyway).
That they hinged on a rather tenuous 2.1.2, rather than the slam dunk that was 2.4, is what's puzzling; and which leads me to believe this had to be some sort of long haul strategy.
Let me explain where I am going with this...
Let's assume for a minute, that 2.1.2 wasn't ambiguous, and that we didn't need a seasoned Federal judge to tell us that we were all ignorant, and then rubbed it in by citing case law proving it.
Let's also ignore the fact that not even the CIG/RSI lawyers made the case for 2.1.2.
They went in a completely different - and hilarious - direction because they claimed that 2.1.2 meant that only CIG/RSI could use CryEngine - and nobody else.
Basically the judge said to both sides (and to all of us in the "exclusive" debate):
"You're all ignorant. Quit wasting my time on this bs; and go look at 2.4 which is what you SHOULD be arguing over"
This was the impetus for her granting (in part) 2.1.2 while POINTING to 2.4
Now that 2.4 is in focus, and we already KNOW that CIG/RSI has NO defense against it, if this was the trial, it would have ended TODAY.
Here's why.
2.1.2 allowed CIG/RSI to use CryEngine. They weren't forced to do because there was no implied (by the GLA) grant of exclusivity even IF that was the understanding by both parties at signing.
Given the declarations in the FAC, I have reason to believe exclusivity WAS the intent.
Even if during discovery (depositions, emails etc) it came out that there was evidence that exclusivity WAS the intent, CryTek could still raise that in a responsive filing and 2.1.2 would be back in play because INTENT can and will overrule contractual language that is ambiguous
Now it won't matter. Any claims in 2.1.2, with or without evidence of intent to an exclusive use, would pale in comparison to the complete and utter destructive force that is the infringement in CryEngine being used in SQ42, and the material breach in 2.4. BOTH are now in play.
The reason that 2.4 is just as destructive as the SQ42 infringement (which the judge allowed to stand) is that there is more than enough evidence that CIG switched to a COMPETING engine: Amazon's Lumberyard.
I also excerpted the last part for you because I am going to excerpt pages 7-8 regarding the judge's ruling on Lumberyard:
i. Promoting
Similar to Plaintiff’s “promotion” argument regarding Star Engine, Plaintiff alleges Defendants promoted Lumberyard only once in connection with its announcement on December
23, 2016 that it intended to replace CryEngine as its game engine. And just like the single instance of purported promotion pertaining to Star Engine, this solitary act is insufficient to establish that Defendants engaged in the business of promoting Lumberyard.
The Court therefore GRANTS MTD as to their promotion of Lumberyard for the same reasons it granted the motion with respect to Plaintiff’s allegations that Defendants improperly promoted Star Engine.
The judge is AGREEING with Crytek in that "
promotional" aspect of the GLA. However, a single instance (by case law precedent) isn't sufficient grounds for a breach. And THAT is one of the reasons why she gave them the opportunity to again amend their complaint with additional supporting instances as
required by law.
ii. Licensing
The parties’ arguments pertaining to Lumberyard focus on whether Defendant promoted Lumberyard in violation of section 2.4, but the SAC also alleges that section 2.4 prohibits
Defendants from engaging in the business of licensing any game engine that competes with CryEngine. Id. at ¶ 36. It also alleges that Defendants “announced that they had licensed . . . the Amazon Lumberyard video game engine for Star Citizen in place of CryEngine.” Id. at ¶ 37.
Defendants assume that the “licensing” language in section 2.4 only prohibits it from licensing a competing game engine to a third party. See MTD at 11 (“Crytek does not and could not allege that Defendants ever attempted to promote, license, or sell Lumberyard to any third party.”). While certain passages from Plaintiff’s Opposition imply they believe section 2.4 also prohibits Defendants from licensing from a third party, Plaintiff does not squarely address the issue. See Opp. at 5, (“The public record further suggests that they have engaged in conduct consistent with having both (a) entered into a similar agreement directed at a competing game engine, Lumberyard . . .”), 10 (“Defendants announced that they would no longer use CryEngine for Star Citizen and would instead use a competing game engine, Lumberyard.”).
The judge is AGREEING with CIG in that "
licensing" aspect of the GLA. But...
To the extent Plaintiff alleges that Defendants violated section 2.4 by licensing Lumberyard from Amazon, the Court agrees with Defendants’ interpretation of the GLA. In California, the “whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other. Cal. Civ. Code § 1641 (West); Badie, 67 Cal. App. 4th at 800, 79 (“We ascertain the intent of the parties by considering an agreement as a whole, not by interpreting a provision in isolation.”). When taken in context with the rest of section 2.4, the word “licensing” most appropriately only prevents Defendants from licensing competing game engines to a third party. “Licensing” directly follows “selling,” implying that Plaintiff was concerned with other game engine businesses competing against them by providing game engines to potential Crytek customers. The section does not include “buying,” which makes it less likely that Plaintiff intended this clause to prevent licensees from obtaining the rights to use other game engines from third parties. “Licensing” also fits far better with the words “designing, developing, [and] creating” if the whole section is read to preclude licensees from bringing game engines they designed, developed, or created to market to compete with CryEngine.
The Court therefore determines that “licensing” in section 2.4 prohibited Defendants from licensing a competing game engine to a third-party licensee, but did not preclude Defendants from
licensing Lumberyard from Amazon. The Court GRANTS in the MTD in that respect.
And here comes the fun part:
Leave to Amend
Should a court dismiss certain claims, it must also decide whether to grant leave to amend. Courts should “freely give leave when justice so requires.” (leave to amend should be granted with “extreme liberality”). Courts should grant leave to amend unless “the pleading could not possibly be cured by the allegation of other facts.’”. The decision to grant leave to amend a dismissed complaint lies “within the sound discretion of the trial court.” Because it is possible that Plaintiff could cure the deficiencies identified in this Order by alleging other or different facts, the Court concludes that a final opportunity to amend is warranted.
Please, go ahead and show me the "slam dunk" in her ruling of 2.4. Note that unlike her previous 2/7 ruling of the first CIG MtD, her rulings were FINAL and CIG did not get the opportunity to amend anything. In that same ruling, she gave Crytek the opportunity to amend their complaint because 2.4 was more relevant to their claim than 2.1.2.
Her ruling, in which she granted the motion because Crytek lawyers failed to provide adequate supporting facts, is in line with precisely what I had predicted would be the seriousness of 2.4.
Hey, remember my thread (the same one with the Oxford comma statements) on Jan 6, 2018 where - almost
7 MONTHS before the judge brought it up in her Aug 2018 MtD ruling - I stated that 2.4 was going to be a big deal?
https://threadreaderapp.com/thread/949626014367469568.htmlOh, here's another one:
Wow, it violates the ENTIRE section 2.4? We should put Chris Roberts in jail immediately then! But wait, what happened with that? Oh yeah, the judge blew up that theory without even needing to look at any evidence!
Scroll up. Then read the judge's ruling. Slowly.
It's obvious that you have no idea how the law works, and you're just throwing everything at the wall to see what sticks. In fact, you're not even concerned about the material facts in the case or in the judge's ruling. Instead, you're focused on trying (and failing) to prove me wrong - as if my opinions carry more weight than the attorneys and the judge in the case.
FYI, there is NO discovery yet, and Crytek doesn't need to provide "evidence" of anything.
And what did the judge "blow up" exactly. It's nice how you guys basically ignore what she's writing, while making up things out of whole cloth. It's quite fascinating actually.
It was obvious from the contract that 2.4 was referring to the act of selling a competing engine to third parties, not to using a competing engine in their own product. Oops.
Really? So it was "obvious" to everyone
but the judge?
