Current Litigation

[Paul B]

Lawyer jokes split off to here: http://xenforo.com/community/threads/have-you-heard-the-one-about.11855/

 

[CroNiX]

I've won two lawsuits (never lost yet) in American courts against corporations and businesses who had infinitely more money than I had. I've actually been involved in a similar lawsuit that is going on here with a former employer and NCND contracts. I always think its amusing when everybody gets all riled up and says how corrupt the court system when one particular case hits the spotlight and doesn't make immediate sense, but each and every day thousands of cases are correctly decided with no issues. Nothings broken. It just doesn't work correctly 100% of the time, but no system that has humans involved in it ever does...or will. Money doesn't always win, but it sure helps (as with everything in life). At the time I was making under $100k a year and the company was a multi-million dollar corporation. I had to spend $14,000 on court costs to defend myself, which the LOSER had to pay (ahahaha, Eat it).

I'd take the US court system over most of the other court systems out there...any day. Go and try to get a fair trial in a 3rd world country. Let me know how that works out for you.

 

[DoctorWatsOn]

What CroNix said, apart from I would take the UK system first thanks.

I think it's worth pointing out again - I won against the Daily Mail & General Trust group, which publishes one of the largest and most profitable national daily newspapers in the UK plus 100s of local & regional publications in the UK and across Europe, and shedloads more businesses - seriously big boys against little old me.

Although having legal expenses cover under my household insurance, common in the UK, helped.

 

[jadmperry]

A judgment in one court would be a defense to a claim in another court on the same issue.

There are numerous concepts at play here. One would be the idea that the damages (an element of every claim) have already been determined and that the plaintiff is no longer "not whole" by the defendants acts. Some other concepts would include ideas of comity/registration of foreign judgments and res judicata (the idea that once an issue has been litigated between two parties, you can't re-litigate the same issue).

I am giving the Cliff Notes version to why I think that this does not have to be fully fought out in two jurisdictions. Of course, the details are more complicated than the above, but the principles apply. The only thing that would give me pause would be Copyright claims as they do not have extra-territorial application (but I can see how they still might fall under the analysis above under some international law conventions).

 

[ManagerJosh]

Not always. In some states, "judge' is an elected position, meaning a judge is a politician, not a lawyer. But even that is a grey area. Look how many members (in every meaning) serving in the US House and Senate are lawyers?

So it seems to me that lawyer is the pupal form of politicians.

Q: What do you call 100,000 lawyers at the bottom of the ocean?

A: A good start.

Think all this anti-lawyer stuff is new?

Remember this is a FEDERAL court and not a STATE court. Federal judges are nominated by the President of the United States, Confirmed by the United States Senate, and serve for LIFE.

 

[Fred Sherman]

Remember this is a FEDERAL court and not a STATE court. Federal judges are nominated by the President of the United States, Confirmed by the United States Senate, and serve for LIFE.

Please tell me that wasn't suppoed to make me feel better!

 

[Shamil]

I have a question. If the california case proceeds to hearing, will the same judge preside over it? No disrespect or anything but i somehow get a feeling that IB's argument (all the frivolous whiteboard stuff and facebook page arguments) were made with this particular judge in mind. It seems IB's lawyers knew that they could get away with these arguments, which any tech savvy person would throw out immediately, with a person who may not be up to speed with internet technologies which have grown over the last decade.

So if the same judge is to preside over the entire case, XF guys really need to prepare their defense with the internet technology handicap (again, no disrespect intended) of the Judge in mind. And this would make the case much much more difficult for Xenforo i am afraid, compared to if a regular internet user person was to hear it.

The same judge handled this case and its proponents.

 

[Anthony Parsons]

Because if you don't answer a lawsuit or pay attention to it the judge enters a summary judgment against you and you lose.

Whilst that is valid within your own country, I am talking about a UK citizen having to bother about fighting something in a US court, and what can the US court really do to a UK citizen? Nothing, unless there are warrants, etc, then requests to extradite, etc etc... all of which won't / don't happen for a minor civil suite. You need to have done some major things to be extradited across borders, and even then, atleast you get to fight it and challenge that order in your country of residence.

It is like IB trying to take legal action against me, US > Australia. They could lodge anything they wanted in a US court, it has zero bearing because I am an Australian citizen. I wouldn't even have to respond. If they lodged it in an Australian court though, then I would have to respond and fight it, but it would be under Australian law, not US law, they they would have to argue.

There is no difference to that example and IB taking Kier only + Xenforo into a US court. UK citizen + UK registered company = Zero real jurisdiction in the US if they don't respond. What can they do? Can anyone really answer that legally? What exactly can the US do if Xenforo didn't respond to the US action. Not the UK action, just the US aspect?

Saving face, defending yourself, I get that... but that is to be done in the UK court, not the US court.

 

[jadmperry]

Whilst that is valid within your own country, I am talking about a UK citizen having to bother about fighting something in a US court, and what can the US court really do to a UK citizen? Nothing, unless there are warrants, etc, then requests to extradite, etc etc... all of which won't / don't happen for a minor civil suite. You need to have done some major things to be extradited across borders, and even then, atleast you get to fight it and challenge that order in your country of residence.

It is like IB trying to take legal action against me, US > Australia. They could lodge anything they wanted in a US court, it has zero bearing because I am an Australian citizen. I wouldn't even have to respond. If they lodged it in an Australian court though, then I would have to respond and fight it, but it would be under Australian law, not US law, they they would have to argue.

There is no difference to that example and IB taking Kier only + Xenforo into a US court. UK citizen + UK registered company = Zero real jurisdiction in the US if they don't respond. What can they do? Can anyone really answer that legally? What exactly can the US do if Xenforo didn't respond to the US action. Not the UK action, just the US aspect?

Saving face, defending yourself, I get that... but that is to be done in the UK court, not the US court.

The risk is that the foreign judgment (US) may be brought as a common law action and enforced in the UK. There is a substantial risk of that. Note that this is particular to enforcing a US judgment in the UK. There are various treaties out there for direct recognition and enforcement of foreign judgments. The difference with the US-UK situation is that to enforce the US judgment, you actually need to bring a second judgment debtor action in the UK. This is not an unusual circumstance and under common law principle, you do not re-litigate the case normally, you are essentially saying that there is a judgment debt and the debtor owes on that debt.

 

[Shamil]

The risk is that the foreign judgment (US) may be brought as a common law action and enforced in the UK. There is a substantial risk of that. Note that this is particular to enforcing a US judgment in the UK. There are various treaties out there for direct recognition and enforcement of foreign judgments. The difference with the US-UK situation is that to enforce the US judgment, you actually need to bring a second judgment debtor action in the UK. This is not an unusual circumstance and under common law principle, you do not re-litigate the case normally, you are essentially saying that there is a judgment debt and the debtor owes on that debt.

I am under the impression that having two lawsuits, both with the same complaint, comes into this as partial protection.

 

[MGSteve]

The only thing that would give me pause would be Copyright claims as they do not have extra-territorial application (but I can see how they still might fall under the analysis above under some international law conventions).

To be honest, the copyright claims are the one bit that with the help of an expert witness, hold absolutely no water whatsoever. There is simply no, *read my (virtual) lips*, no shared code between VB and XenForo.

It would be like saying Windows 7 is based on Mac OS code.

Sure there may be functions or segments of code that look very alike and do the same thing, but there is frankly no way that anyone would think XF is derived from VB, its as completely different as an Apple is from a Pear.

Yes, they're both fruit, with a skin and a fleshy middle bit, oh and pips too. But they are not the same.

 

[jadmperry]

A few points on the judge and his knowledge or lack thereof of internet/technology issues.

Let me preface my comments by saying that it of course can be helpful if the judge is knowledgeable about the technical issues. However, it is not unusual for judges to not know about the technical issues being litigated.

The judge's role is to make rulings of law and to "shepherd" the case to completion with the "help" of the parties. There has been a demand for a jury trial, so if the case gets that far, the jury will make determinations of "fact." That is the main distinction between the judge and the jury. Judges make rulings of law. Juries make determinations of fact. The jury will have to decide what facts are proven. The presentation of evidence will come from the parties. That is, IB will have to demonstrate the "facts" that are in dispute in order to win on the factual issues (in some cases, the judge will rule that the facts, even if shown, do not amount to a violation of the law...in that instance, it will be be a "failure to state a claim upon which relief may be granted" situation....that is a ruling of law, which I mentioned is the judges provenance).

Since IB will have to show facts, they will either need someone with direct knowledge (i.e., a developer) or an "expert witness" to testify. The difference between an "expert witness" and other witnesses are that experts can give opinion testimony. Non-experts can only testify as to what they have seen, observed, or know about (in some cases, what they have heard). Of course, XF/Kier/Mike/Ashley will also be able to question the IB witnesses and to present their own witnesses. The point is, it won't be the judge looking at the coding or the software and making a decision. It will be the jury who weighs the facts based on the evidence. If it does come to a jury trial, we will have to see what IB presents, but as to the Copyright claims, I think that IB cannot show what they claim to be true in the complaint. (I like Fred Sherman's explanation, here).

Another point. As to evidentiary issues, the judge does play an important role as a "gatekeeper." That is, he is not supposed to allow evidence/testimony that is speculative or is likely to confuse the jury (the evidence being weighed between its probative value and the likelihood of confusion.... Federal Rules of Evidence, "Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.").

I wanted to post this to clarify the mechanics of what will happen. The concern about the judge's technical knowledge is, I think, lessened by the fact that a jury has to be convinced, based on the evidence presented, that IB's claims are true. I don't see what possible evidence they could present to do so. But, we will have to see what is presented.

 

[jadmperry]

To be honest, the copyright claims are the one bit that with the help of an expert witness, hold absolutely no water whatsoever. There is simply no, *read my (virtual) lips*, no shared code between VB and XenForo.

It would be like saying Windows 7 is based on Mac OS code.

Sure there may be functions or segments of code that look very alike and do the same thing, but there is frankly no way that anyone would think XF is derived from VB, its as completely different as an Apple is from a Pear.

Yes, they're both fruit, with a skin and a fleshy middle bit, oh and pips too. But they are not the same.

Agree 100%. That is, as to the underlying merits. I was talking about how a judge might view the issue of whether there is an adequate remedy for a US Copyright claim in a UK court. Understand, under this analysis, the judge would likely have to assume the claim to be valid at this point in the analysis. It does not mean he (or anyone else other than IB) thinks this is true, this is just how they would look at it in order to determine whether CA is the right court to hear the claim.

Actually, I think it is not a comparison between and apple and a pear. It is a comparison between an apple and a rocket ship. They are both objects. Just not the same

 

[jadmperry]

I am under the impression that having two lawsuits, both with the same complaint, comes into this as partial protection.

I think I know what you mean. I would disagree, though. Let's say XF did not defend. After the entry of a default judgment, the court then awards a massive judgment because he only has one side of the story. Then IB takes that massive judgment and files a new action to enforce it in the UK. Well, I would say that XF could use the judgment and action to argue that the first filed suit in the UK (the original claim) should be dismissed. I think they would win, at least as to every issue that was litigated in the US. However, there is still the matter of this massive judgment, which they are not likely to be able to challenge the underlying merits.

We may be talking the same thing when you say "partial protection." However, I think the consequences of not defending could be dire and I don't think it would be much protection at all.

 

[MGSteve]

Agree 100%. That is, as to the underlying merits. I was talking about how a judge might view the issue of whether there is an adequate remedy for a US Copyright claim in a UK court.

Good point. It may well be that the judge wants the trial to go ahead as he thinks CA has authority as the copyright claim is by a US company, i.e. they claim its their code that's been copied, the location of the defendants in that case is irrelevant.

btw I thought of a better (although longer) analogy incase anyone else is interested.

An architect company (Company Y) designs Skyscraper A over a number of years, adding bits on along the way and it ends up at 38 floors high, but it took them 8 years to get there. The lead designer then leaves and after a year unveils Skyscraper B, already at 15 floors, but missing some of the fancier bits of Skyscraper A, it has fewer lifts, but the Aircon system is more efficient and has fancy new self cleaning glass, which makes it look really modern.

Without even seeing the designs of the new Skyscraper, Company Y sues the lead designer because Skyscraper B is tall, has similar glass to what they were going to use when they reached the 40th floor and the doors in Skyscraper B open with a chrome handle, just like theirs in Skyscraper A. They think that because it took them 8 years to get to floor 38, no-one can possibly design & build above floor 4 in a year, they assume he must have copied blue prints from their building and used them as a basis to start Skyscraper B.

The difference being that the experience that the designer learnt when working on Skyscraper A came into play when designing Skyscraper B from a completely fresh start, a clean slate. Experience and expertise from mistakes, what worked, what didn't when working on Skyscraper A taught him that if he designed it using a modern design methodology, he could get more of the building designed & completed quicker because he didn't have to worry about what effects adding a new floor or extension onto an existing building would have on the rest of the structure - i.e. he had no restrictions when he built his new skyscraper.

Does company Y own the experience and expertise of the head designer that he gained whilst in their employment? No. Otherwise anyone who learnt anything in their job would be sued if they left and worked for someone else, using the skills they had learnt in their previous job.

Maybe that's a bit clearer? I appreciate most of us know the difference anyway, but it might help someone... somewhere!!

 

[TheLaw]

The judge's role is to make ruling of law and to "shepherd" the case to completion with the "help" of the parties. There has been a demand for a jury trial, so if the case gets that far, the jury will make determinations of "fact." That is the main distinction between the judge and the jury. Judges make ruling of law. Juries make determinations of fact. The jury will have to decide what facts are proven. The presentation of evidence will come from the parties. That is, IB will have to demonstrate the "facts" that are in dispute in order to win on the factual issues (in some cases, the judge will rule that the facts, even if shown, do not amount to a violation of the law...in that instance, it will be be a "failure to state a claim upon which relief may be granted" situation....that is a ruling of law, which I mentioned is the judges provenance).

This is most important. For example, if IB fails to show that there is a copyright issue to be resolved by a reasonable jury, there is no claim and it gets bounced before trial. Proving infringement is likely an expensive proposition. There doesn't seem to be any code that they can point to which is "per se infringement" on its face and show the court the smoking gun. Motions to dismiss a claim can be made before trial. We haven't arrived at that stage yet.

 

[Shamil]

Now, how long until we see something on PACER?

 

[Shamil]

I think I know what you mean. I would disagree, though. Let's say XF did not defend. After the entry of a default judgment, the court then awards a massive judgment because he only has one side of the story. Then IB takes that massive judgment and files a new action to enforce it in the UK. Well, I would say that XF could use the judgment and action to argue that the first filed suit in the UK (the original claim) should be dismissed. I think they would win, at least as to every issue that was litigated in the US. However, there is still the matter of this massive judgment, which they are not likely to be able to challenge the underlying merits.

We may be talking the same thing when you say "partial protection." However, I think the consequences of not defending could be dire and I don't think it would be much protection at all.

I was actually thinking along the same lines as you actually

 

[Peggy]

This is most important. For example, if IB fails to show that there is a copyright issue to be resolved by a reasonable jury, there is no claim and it gets bounced before trial. Proving infringement is likely an expensive proposition. There doesn't seem to be any code that they can point to which is "per se infringement" on its face and show the court the smoking gun. Motions to dismiss a claim can be made before trial. We haven't arrived at that stage yet.

Perhaps you should be defending them?

kidding of course

 

[EQnoble]

To be honest, the copyright claims are the one bit that with the help of an expert witness, hold absolutely no water whatsoever. There is simply no, *read my (virtual) lips*, no shared code between VB and XenForo.

It would be like saying Windows 7 is based on Mac OS code.

Sure there may be functions or segments of code that look very alike and do the same thing, but there is frankly no way that anyone would think XF is derived from VB, its as completely different as an Apple is from a Pear.

Yes, they're both fruit, with a skin and a fleshy middle bit, oh and pips too. But they are not the same.

Holy crap EXACTLY ..ITS FRICKEN FORUM SOFTWARE. PERIOD. That's the only thing it shares...the fact that it is software for internet communities. End of that story.

Basically here is how it works...if the judge doesn't properly view the evidence (or lack thereof in this case) the plaintiff can file a motion for mistrial and if they have the money can keep doing that and other loopholes to drag this out.

If the judge is in fact "Your Honor" as they state and they swear to uphold the law "so help me god" when sworn into position, then I believe that the judge would just be honoring the system and giving it due course so another major cooperation can't rape and pillage the little guy. This is what I am telling myself before I loose faith...I wouldn't want to believe the courts here enable those with capital to gain in their interests by passing judgments that allow the rich to rattle their sabers for their ends.