CryTek v CIG/RSI

[Orgetorix]

Thus far, there is no evidence that fraud has been committed. And Crytek's lawsuit has no such insinuation. Fraud is a very high bar. It will come into play if/when the Feds or the State|District attorneys take an interest in the case either through referral (from public, attorneys etc) or their own investigations. Lying isn't fraud.

In my opinion that is not true, Crytek's lawsuit has a very specific insinuation of fraud. Ortwin's failure to gain a waiver is clear fraud.

4. Unconscionable dealing; esp., in contract law, the unfair use of the power arising out of the parties' relative positions and resulting in an unconscionable bargain. [Cases: Contracts 1. C.J.S. Contracts §§ 2–3, 9, 12.] — fraudulent,adj.

I digress though. I was just pointing out a hypothetical, that if CIG had settled with Crytek as you previously stated,

According to my sources, they spent the better part of 2017 playing the "come at me bro!" game with Crytek. Until Crytek decided they had had enough. All CIG had to do was settle for having switched engines, and also buy a license for SQ42. That would have been the end of it.

Had CIG modified their agreement with CryTek in such a manner. While still using the core functionalities of CryEngine that aren't present in LumberYard. They would have certainty, in that situation, been operating in fraud, and

That would (NOT) have been the end of it.

There is no need for contention between us. I mainly wanted to post up the definition of fraud from Black's so that everyone else reading this can come to their own conclusion.

Keep to the high road Derek, you're doing good work. 

[StanTheMan]

I mainly wanted to post up the definition of fraud from Black's so that everyone else reading this can come to their own conclusion.

Sure but the law doesn't work that way.

[Orgetorix]

Sure but the law doesn't work that way.

In the end, winning a case in the "Court of Public Opinion". Is just as important if not more so, then winning the case in a "Court of Law".

[dsmart]

In my opinion that is not true, Crytek's lawsuit has a very specific insinuation of fraud. Ortwin's failure to gain a waiver is clear fraud.

4. Unconscionable dealing; esp., in contract law, the unfair use of the power arising out of the parties' relative positions and resulting in an unconscionable bargain. [Cases: Contracts 1. C.J.S. Contracts §§ 2–3, 9, 12.] — fraudulent,adj.

That's not fraud. You can't "insinuate" a cause of action without clear specifics. None of Crytek's cause of actions in the lawsuit, amount to or insinuate fraud.

Ortwin did have a waiver. He just didn't disclose his in-depth affiliation with CIG/RSI, nor recuse himself from dealings. That's the problem with that. And it's not fraud.

Even during the lawsuit, if fraud were to be uncovered by Crytek, they won't be able to take action. It would be up to the attorneys to refer the matter to the district attorney for further action.

[Orgetorix]

That's not fraud. You can't "insinuate" a cause of action without clear specifics. None of Crytek's cause of actions in the lawsuit, amount to or insinuate fraud.

Ortwin did have a waiver. He just didn't disclose his in-depth affiliation with CIG/RSI, nor recuse himself from dealings. That's the problem with that. And it's not fraud.

Even during the lawsuit, if fraud were to be uncovered by Crytek, they won't be able to take action. It would be up to the attorneys to refer the matter to the district attorney for further action.

I wanted to digress and come to a stable term of agreement. That my opinion is mine, and your opinion is yours, but you're not allowing a solid meeting of the minds on this issue.

Fraud is not solely a criminal offense. It's mainly a tortious action,

TORTIOUS Black's Law Dictionary (8th ed. 2004), Page 4647

tortious (tor-sh<<schwa>>s), adj.1. Constituting a tort; wrongful <tortious conduct>. [Cases:
Torts 1. C.J.S. Torts §§ 2–7.] 2. In the nature of a tort <tortious cause of action>.

TORT Black's Law Dictionary (8th ed. 2004) , Page(s) 4644-45

tort (tort).1. A civil wrong, other than breach of contract, for which a remedy may be obtained, usu. in the form of damages; a breach of a duty that the law imposes on persons who stand in a particular relation to one another. [Cases: Torts 1. C.J.S. Torts §§ 2–7.] 2. (pl.) The branch of law dealing with such wrongs.

“To ask concerning any occurrence ‘Is this a crime or is it a tort?’ is — to borrow Sir James Stephen's apt illustration — no wiser than it would be to ask concerning a man ‘Is he a father or a son?’ For he may well be both.” J.W. Cecil Turner, Kenny's Outlines of Criminal Law 543 (16th ed. 1952).

“We may ... define a tort as a civil wrong for which the remedy is a common-law action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation.” R.F.V. Heuston, Salmond on the Law of Torts 13 (17th ed. 1977).

“It might be possible to define a tort by enumerating the things that it is not. It is not crime, it is not breach of contract, it is not necessarily concerned with property rights or problems of government, but is the occupant of a large residuary field remaining if these are taken out of the law. But this again is illusory, and the conception of a sort of legal garbage-can to hold what can be put nowhere else is of no help. In the first place, tort is a field which pervades the entire law, and is so interlocked at every point with property, contract and other accepted classifications that, as the student of law soon discovers, the categories are quite arbitrary. In the second, there is a central theme, or basis or idea, running through the cases of what are called torts, which, although difficult to put into words, does distinguish them in greater or less degree from other types of cases.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts§ 1, at 2–3 (5th ed. 1984).

FRAUD Black's Law Dictionary (8th ed. 2004) , Page 1950

fraud,n.1. A knowing misrepresentation of the truth or concealment of a material fact to
induce another to act to his or her detriment. • Fraud is usu. a tort, but in some cases (esp. when the conduct is willful) it may be a crime. — Also termed intentional fraud. [Cases: Fraud 1, 3, 16.]

I don't know how to more plainly illustrate my point???

[Orgetorix]

This is what I've been saying since the beginning of Crytek's actionable case against CGI,

http://www.dereksmart.com/forum/index.php?topic=100.msg6441#msg6441

http://www.dereksmart.com/forum/index.php?topic=100.msg6443#msg6443

http://www.dereksmart.com/forum/index.php?topic=100.msg6446#msg6446

http://www.dereksmart.com/forum/index.php?topic=100.msg6448#msg6448

http://www.dereksmart.com/forum/index.php?topic=127.msg7312#msg7312

http://www.dereksmart.com/forum/index.php?topic=127.msg7313#msg7313

If I'm off base, prove me wrong, with references, because I love to be proven wrong. It's makes me think and reevaluate what I think I know is the truth.

All I'm ever looking for is the truth... 

[Orgetorix]

On Ortwin's "waiver",

WAIVER Black's Law Dictionary (8th ed. 2004), Page 4889
waiver (way-v<<schwa>>r), n.1. The voluntary relinquishment or abandonment — express
or implied — of a legal right or advantage; FORFEITURE <waiver of notice>. • The party alleged to have waived a right must have had both knowledge of the existing right and the intention of forgoing it. Cf. ESTOPPEL. [Cases: Estoppel 52.10. C.J.S. Estoppel §§ 67–68, 70–72, 75–76, 79, 159–160.]

That's where it gets tricky for Ortwin with his waiver from CryTek. Exactly what rights were CryTek waiving? If they didn't know that Ortwin had a financial interest in CIG/RSI. Then there is no way, by definition, that they could have waived any rights that they had no knowledge of possessing.

You see where this is going?

Ortwin Freyermuth is proper fucked.

Also never forget the name of Carl Jones. There very well could have been collusion on both sides of the table. If SKADDEN can prove that there was. Than that's the real bombshell that will blow this case wide open.   

[jwh1701]

Well Orgetorix I do not know law in the slightest but the more charges they can be brought the happier I will be. I feel they are probably doing so much shady stuff with the money but just could be my overactive imagination. Sometimes I think maybe he started with honest intentions but the money kept rolling in. But then I look at some of the people he's been with in the past and have worked with him from the start of SC I wonder. I would really like to see them sued to the extent that it affects their personal bank accounts from ill gotten gains from SC.

[dsmart]

I wanted to digress and come to a stable term of agreement. That my opinion is mine, and your opinion is yours, but you're not allowing a solid meeting of the minds on this issue.

Fraud is not solely a criminal offense. It's mainly a tortious action,

None of that matters. Crytek isn't suing for fraud. There isn't a SINGLE thing in their filing whereby they even hint at that, let alone make it a "cause of action" (claim).

Public opinion on whether CIG committed fraud (of any kind) or not, is irrelevant to the lawsuit (which is what we're discussing).

I have written several blogs (just use my website search for 'fraud' or 'fraudulent') in the past where I made the case for tortuous type claims of fraud - which is what you're describing.

[dsmart]

On Ortwin's "waiver",

WAIVER Black's Law Dictionary (8th ed. 2004), Page 4889
waiver (way-v<<schwa>>r), n.1. The voluntary relinquishment or abandonment — express
or implied — of a legal right or advantage; FORFEITURE <waiver of notice>. • The party alleged to have waived a right must have had both knowledge of the existing right and the intention of forgoing it. Cf. ESTOPPEL. [Cases: Estoppel 52.10. C.J.S. Estoppel §§ 67–68, 70–72, 75–76, 79, 159–160.]

That's where it gets tricky for Ortwin with his waiver from CryTek. Exactly what rights were CryTek waiving? If they didn't know that Ortwin had a financial interest in CIG/RSI. Then there is no way, by definition, that they could have waived any rights that they had no knowledge of possessing.

You see where this is going?

Ortwin Freyermuth is proper fucked.

Also never forget the name of Carl Jones. There very well could have been collusion on both sides of the table. If SKADDEN can prove that there was. Than that's the real bombshell that will blow this case wide open.   

Crytek never made Ortwin's waiver an issue of the lawsuit, nor is it a cause of action in the case.

They mentioned it in order to "conflict him out" as well as make him not only a witness to the case, but also so that he can't claim attorney-client privilege in a matter that he handled.

The fact that he handled the negotiation of the GLA for BOTH parties, is material to the fact that he OUGHT to have known about the intent and the deficiencies within. And they claim that he breached it anyway.

Whether he had a waiver or not, won't have changed any of the above.

- Not having it would have been a procedural issue for him which would lead to a Bar complaint. Which is why he was pissed (as per the response).

- Having it, while being inadequate in its representation, is still an issue that he has to deal with; but it has no consequence to the lawsuit itself in terms of the claims they are bringing.

Skadden aren't idiots, and they are not likely to make procedural, let alone mistakes material to a multi-million Dollar case.

[dsmart]

Well Orgetorix I do not know law in the slightest but the more charges they can be brought the happier I will be. I feel they are probably doing so much shady stuff with the money but just could be my overactive imagination. Sometimes I think maybe he started with honest intentions but the money kept rolling in. But then I look at some of the people he's been with in the past and have worked with him from the start of SC I wonder. I would really like to see them sued to the extent that it affects there personal bank accounts from ill gotten gains from SC.

The Star Citizen project is completely immaterial at this point. The money is going to be their undoing. Not to mention all the other things they have to produce during discovery and which would probably make things even worse. That's why they are being resistant to discovery, thus risking a complaint by Crytek to the court. As we now know, that complaint was forthcoming, which is why CIG pre-empted it by filing a protective order buying them some time until the MtD ruling. So now that's all delayed to the April 17 hearing.

So if the MtD ruling (which they will lose) comes before April 17, they have to comply with discovery. If the MtD ruling doesn't come before 04/17, then the judge will then have to decide (at the 04/17 hearing) whether or not to grant them a stay on discovery until the MtD ruling.

It's a chess game - and I envision CIG losing all the way to the end.

[StanTheMan]

Surely, before the GLA was signed, Crytek knew that Ortwin was likely involved with Star Citizen, or otherwise in bed with Roberts.

After all they had been partners for a while and wan't it a matter of public record ?

[dsmart]

Surely, before the GLA was signed, Crytek knew that Ortwin was likely involved with Star Citizen, or otherwise in bed with Roberts.

After all they had been partners for a while and wan't it a matter of public record ?

That's the thing; Crytek would have known. However, the onus is on Ortwin - the attorney - to weigh the conflicts and recuse himself, regardless. It's like in divorce and similar cases where most attorneys won't represent both parties because if a dispute arises down the road, it could come back to haunt the attorney. In fact, as I read, complaints like this are the most made to the Bar against attorneys.

That Crytek decided to go ahead with Ortwin preparing and negotiating the GLA anyway - no doubt thinking that Ortwin would be seeking the best interests of both parties - is the crux of the matter and the reason they even mentioned it in the complaint I think. Ortwin is well aware that he should have recused himself. And that's why he was so pissed - as evidenced by the response. Even after he provided a waiver, the Skadden attorneys know that's not the crux of that issue because such a waiver still does not absolve Ortwin of his ethical responsibilities. All it does is say that Crytek permitted Ortwin to act obo both parties.

[StanTheMan]

That Crytek decided to go ahead with Ortwin preparing and negotiating the GLA anyway - no doubt thinking that Ortwin would be seeking the best interests of both parties -

Because ......being based on CryEngine any success Star Citizen might achieve was so inextricably tied up with Cryteks ongoing input and success that that they were essentially partners in the same enterprise ? 

[dsmart]

CryTek have filed their answer to the Mar 9th filing for a protective order by CIG.

MEMORANDUM in Opposition to MOTION for Protective Order

Trust me, this one is hilarious. It was only a matter of time before Crytek attorneys started to point out just how hilarious all this is. And boy, some of the things they wrote are going to piss off Ortwin so much.

My analysis will be up later today.