California Case Update

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Chimpie

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From 111...
d. Defendants Would Be Prejudiced By The Proposed
Amendment.
Permitting Plaintiff to allege a futile claim would change the nature of the
case to Defendants’ detriment. Defendants face a Plaintiff with enormous financial
resources, a failing vBulletin franchise due to years of neglect, and a powerful
motive to use the court system to drive a smaller but superior competitor out of
business. Defendants have a significant interest in the expeditious resolution of
this case and had hoped that this case would have been over in November 2011,
when it was originally set to be tried. Plaintiff has dragged its feet since the day it
issued a press release in October 2010 announcing its duplicative UK and US
lawsuits and threatened Defendants’ customers with legal action. It is time for the
pleading phase of this case to end so that the Plaintiff’s false allegations may be
exposed.

Hear, Hear!!
 

ManagerJosh

Well-known member
Shortly after the Court’s ruling, the Ninth Circuit published a decision in U.S v. Nosal, 642 F.3d 781 (9th Cir. 2011), which expanded certain aspects of Brekka, namely holding that an employee can be found to have “exceeded authorized access” to computers under the CFAA if the employee violated usage restrictions on information that the employee had the right to access.

I may be totally wrong, but it seems like this point is now moot with the recent decision made by the 9th circuit on this issue: http://threatpost.com/en_us/blogs/s...snt-violate-federal-computer-fraud-law-042012

Kozinski and the Appeals Court, however, concluded that the CFAA does not extend to violations of use restrictions.
“Does an employee who violates such a policy commit a federal crime?” Kozinsky asked in his opinion. “How about someone who violates the terms of service of a social networking website?”
He went on to write, “If Congress wants to incorporate misappropriation liability into the CFAA, it must speak more clearly.”
Kozinsky further justified his ruling by explaining that criminal statutes must be construed narrowly so that citizens may have fair notice of laws and so that Congress will not unintentionally turn citizens into criminals.
Furthermore, he reasoned, the legislative history of the statute in question proves that is intended to punish hackers for the circumvention of technological access barriers. Nosal misappropriated trade secrets. But that is a subject, Kozinsky claims, that Congress has dealt with elsewhere.
 

AdamD

Well-known member
If the judge agrees and signs it, It would restore a tiny fraction of my hope and respect for the court system, but I can't see it happening, if anything, the court system seems to favour these god awful companies' tactics.
 

Fred Sherman

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I think the judge is going to let this go to trial, and for a purely selfish reason. I think he sees the opportunity to establish legal precedence and leave his mark on the law.
 

jadmperry

Well-known member
I think that the selfish reasons are not for "leaving a mark on the law." District Court judges don't have the heft that the appellate court has for doing that. If there is a "selfish" reason, it would be in not being reversed on appeal (which would be a more "selfish" reason; a reversal would be more work. Remember, a dismissal of a claim early would more likely result in a reversible appeal than would letting a claim go to trial).

All that said, I think that if the judge has anything to say about it, at least some claims would proceed to trial. In the usual course of things, the parties would resolve things before trial. However, I tend to think that IB is not interested in engaging in such discussion and given their (so far, at least) lack of any evidence supporting their claims, I can't see any reason (other than financial reasons) for XF to entertain any settlement discussions.

The wildcard for me in the trial vs. no trial equation is how any motions for summary judgment fares. Because IB has not shown a whit of actual evidence, I do see a possibility of grant of motion for summary judgment. We are a ways off from that point (I think).

All of this said, I see nothing so far that indicates anything other than a complete win for XF/KAM (and the numerous other defendants that IB has added). I could be wrong, but as an attorney with more than 10 years of practice under my belt, I don't think I am. (Also, I stayed at a Holiday Inn Express last night).
 

AdamD

Well-known member
I see IB winning, purely because they have more money and can drag this case on and on, which really speaks volumes about the lack of justice, in the "Justice system".
 

ManagerJosh

Well-known member
Any new updates? I have it on good authority that there are some interesting reads.

"Cue StarCraft 2 SFX: Nuclear Launch Detected"
 

jadmperry

Well-known member
I have often thought that there were Antitrust concerns in this case. That is, it seems clear to me, especially given the timing of the initial complaint and the statements on vB that customers of XF might face some unstated consequences, that there are antitrust issues in this case. Whether, as a matter of strategy or otherwise, this made sense to pursue was another issue altogether. But, I think it stinks to high hell of anti-competitive tactics that I think are illegal.

The latest filings are telling as to the strength of XF's defenses.

I am struck by the vitriol and accusations in the filings (mostly on vB's counsel's part). The different courts have different informal standards about what attorneys will say about each other. I tend to see some some bad form in the filings, but this may be the norm in that court (or within the District or Circuit, generally).

Final comment, a tangent really; XF's filings state that Busby is "English." Isn't he more properly "British"? I am not sure on this, but I thought one was a language and the other a nationality. (No need to kill me if this is ignorant...and I am not sure if there are accepted differences in reference to international law, common usage (on either side of the pond), or which is correct- just something that stuck out to my first read).

My overall read of the documents is that XF has (and continues to have) the much stronger argument (never mind, the much stronger facts, evidence, and correct position on near every point).
 
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