California Case Update

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I've never really been interested in reading court documents but I took a glance at this stuff just because of SchmitzIT 'Wow just wow' post. Had me wondering what was wow-worthy. So I scan through and see Adrian from vB's screenshot of Kier's Skype status message and then see the lawyer accusing xenforo of using vbulletin's customer list to advertise. lol

I can honestly say that when I was with vBulletin, no one from xenforo has ever contacted me about this website or software. I saw it on the news, got interested, did research, joined two xenforo forums, ended up liking it, then jumped ship. No sneaky tactics involved on xenforo's part. Just great forum software. I hope they win this.
 
jadmperry said:
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).
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If you were born in England both terms would be correct. England, Scotland and Wales together form Great Britain so you can be English and British.

Just to confuse things further England, Scotland, Wales and Northern Ireland together form the United Kingdom. Then there's the British Isles which encompasses all of that and more :D

Back on topic, exhibit A reads like a comedy sketch or is this some kind of lawyer to lawyer humour that's passed me by?
 
It strikes me as strange the use of declarations and the attorneys statements as evidence in this case. Again, practice in local jurisdictions are different, so this may be the norm in this jurisdiction. But, it is unusual to me, in a theoretical framework, to try to use the lawyer's statements as substantive evidence. My thought is that the the preferred way to reference factual or legal points is to reference the matters adduced in discovery or to the filings of the parties. What has happened in this case may be the norm in that jurisdiction. However, my reaction is that it seems poor form. Though the tone of the filings and letters seems somewhat civil, I would guess the attorneys hate each other (at least within the confines of having feelings about each other in the context of their work on the case). I could be way off the mark here- like I wrote, local practice among attorneys and in the local jurisdictions can widely vary; I would not want to practice in a jurisdiction where these types of tactics are the norm. However, the "culture" in the Ninth Circuit, or among the copyright/patent bar generally, may view this as nothing unusual. We will probably never know whether this is "below the belt," completely outside of the norm, or normal practice. Not sure it matters much either way, unless it is outside the bounds and the judge acts on it.
 
jadmperry said:
It strikes me as strange the use of declarations and the attorneys statements as evidence in this case. Again, practice in local jurisdictions are different, so this may be the norm in this jurisdiction. But, it is unusual to me, in a theoretical framework, to try to use the lawyer's statements as substantive evidence. My thought is that the the preferred way to reference factual or legal points is to reference the matters adduced in discovery or to the filings of the parties. What has happened in this case may be the norm in that jurisdiction. However, my reaction is that it seems poor form. Though the tone of the filings and letters seems somewhat civil, I would guess the attorneys hate each other (at least within the confines of having feelings about each other in the context of their work on the case). I could be way off the mark here- like I wrote, local practice among attorneys and in the local jurisdictions can widely vary; I would not want to practice in a jurisdiction where these types of tactics are the norm. However, the "culture" in the Ninth Circuit, or among the copyright/patent bar generally, may view this as nothing unusual. We will probably never know whether this is "below the belt," completely outside of the norm, or normal practice. Not sure it matters much either way, unless it is outside the bounds and the judge acts on it.
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On a similar note, I too am a bit surprised it is being introduced as evidence into this case. I think we can all agree that this particular statement by Michael Grace is a powder keg waiting to blow up.

"You've confirmed to me several times, however, that your client's objective is not to right a wrong but to shut down XenForo, a smaller competitor with superior product. Given that vBulletin claims to have the dominant market share of the bulletin board software market, this continuous course of conduct raises grave antitrust concerns."
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The anti-trust implication would make any shareholder nervous.
 
jadmperry said:
It strikes me as strange the use of declarations and the attorneys statements as evidence in this case. Again, practice in local jurisdictions are different, so this may be the norm in this jurisdiction. But, it is unusual to me, in a theoretical framework, to try to use the lawyer's statements as substantive evidence. My thought is that the the preferred way to reference factual or legal points is to reference the matters adduced in discovery or to the filings of the parties. What has happened in this case may be the norm in that jurisdiction. However, my reaction is that it seems poor form. Though the tone of the filings and letters seems somewhat civil, I would guess the attorneys hate each other (at least within the confines of having feelings about each other in the context of their work on the case). I could be way off the mark here- like I wrote, local practice among attorneys and in the local jurisdictions can widely vary; I would not want to practice in a jurisdiction where these types of tactics are the norm. However, the "culture" in the Ninth Circuit, or among the copyright/patent bar generally, may view this as nothing unusual. We will probably never know whether this is "below the belt," completely outside of the norm, or normal practice. Not sure it matters much either way, unless it is outside the bounds and the judge acts on it.
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I am very happy that you are out here posting.
 
Onimua said:
"Kill them with kindness" is applicable. ;)
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Yeah, though the way I see it is that the saying assumes actual kindness against Mr. Scrooge, while what we have here is, Kill them with a knife disguised as a flower. In this case, I find the saying from Frank Herbert's Dune Messiah appropriate:
Elaborate euphemisms may conceal your intent to kill, but behind any use of power over another the ultimate assumption remains: 'I feed on your energy.'
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Once again it seems Grace have handed IB's lawyers a big boot to kick themselves up their own arse and wakeup to themselves.

About time IB got handed antitrust statements and accusations, having to now defend with either evidence or shut up and close the case down, never to speak again.
 
Perhaps if there was enough publicity about the antitrust thing, they would reconsider their lawsuit
I'm still amazed this case hasn't been pushed into the public spotlight for it's unfairness.
Maybe a twitter/facebook/digg campaign is in order, assisted by us, the users.
 
A point that has not come up in this case (at least to this point) is that antitrust violations are not only an issue that can be raised/argued/prosecuted by the company that is the target of the violation. The nature of antitrust cases is that the customers/clients/public are the "victim" by being subjected to a marketplace that is limited by the actions of the offending party/organization. The government can and does prosecute antitrust violations.

Personally, I feel that IB's actions have impacted my access to a competitive market and has antitrust implications.

All of this is aside from my sense that they are petty and sore losers. I do not think they want to compete on a level playing field. I think they want to use their resources to limit my access to better products and a competitive marketplace. This is the essence of an antitrust case.
 
Definitely something they need to consider carefully. The current lawsuit is a civil suit. Should the court agree that there are anti-trust issues at play, they turn that over for federal criminal investigation/prosecution. IB better be sure they're not bringing a knife to a gunfight.
 
jadmperry said:
All of this is aside from my sense that they are petty and sore losers. I do not think they want to compete on a level playing field. I think they want to use their resources to limit my access to better products and a competitive marketplace. This is the essence of an antitrust case.
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You have to wonder who "they" are...at this point.

Is it just Bob B pushing for it?

The holding company which holds IB is vastly bigger than IB, but sometimes these holding companies take a hands-off approach to their companies. The parent holding company actually seems relatively enlightened as compared to my perception (from reading and actions) of IB.

Make no mistake about the Holding Company - they have unlimited resources (well, what any of us could consider so!)......but they probably put IB and other companies in a sandbox and as long as those companies report revenue and earnings which match or exceed projections, they may give them total freedom in "little things" like this.

I am in agreement that a grass roots campaign might be effective, but it would have to have absolutely nothing to do with anyone associated with the xf clan (company) and also would have to be positively focused.
 
Serious, 113-2 is pure awesomeness. Michael Grace put the smack down in that letter to Patrick Fraioli. If I ever need some legal council, Grace+Grace is going to be at the top of my list. Favorite part of Michael' response:

As for your off-hand comment that "if your clients simply used vBulletin's backend code to run the XenForo program, please let me know," you made me smile...
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HAHA! Oh and come on antitrust case!
 
I really don't understand the so called Justice system, I mean, if my expert witness/coder says there's no claim on the copyright infringement issue, that there is no stolen code etc, why on EARTH would I keep the case going?

To be honest, it seems to me they're continuing it, purely to bankrupt XF, which just shows you how BAD lawyers can be, not to mention the justice system.
 
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