California Case Update

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Morgain said:
Josh there are useful statements`on this thread about how the courts have a strong bias is to "allow them their day in court." Not merely a kind of fair play, but to block a vexatious litigant (hot air troublemaker) from using the appeal process to drag things out forever.
I have now compiled my own research review of this thread and others. I'll put it to work.

[EDIT: All quotes happen to be from this thread (the CCU) ]

Oct 19 jadmperry: ... preferred to let things go to trial so long as there is any plausible theory on which they might win. ... The law favors giving plaintiffs their day in court; ...

Nov 11 ’11. jadmperry: ... if enough evidence is not adduced at trial to support the claim, the judge will not let the jury decide. The law favors letting claims go forward to trial IF there is a plausible basis for the claim (and in deciding this they will assume what the plaintiff claims is true). This is a simplification, but is good enough for discussion purposes. So, in order to avoid appeals from cases that are borderline, many judges will let the case go to trial. But, if at trial there is no evidence supporting the claim, the judge will enter judgment in favor of the defendant.

June 6 ’12. jadmperry: The jury would decide whether there is enough evidence to make a finding. However, the judge also has a role and can find that as a matter of law, there has not been enough evidence to meet this standard (and would result in a JNOV- judgment notwithstanding verdict).

Oct 2 ’12. ENF: Document #128
Proposed Order for Dismissal
jadmperry: 2) The defendant's have moved for involuntary dismissal (which would result in a with prejudice dismissal and award of costs/attorneys fees). The ruling will be either a grant or a denial of this motion. But, the court's decision will be strengthened (for want of a better term) if it considers less harsh measures. I tend to think that if a dismissal without prejudice would come (which I don't think it would- I think you would get either a grant of involuntary dismissal, or strict orders for compliance with non-compliance followed with grant of motion for involuntary dismissal... the court would likely just explain how and why it considered- and then rejected a dismissal without prejudice), it would not be under Rule 41, but under the court's inherent power to manage its own cases and have compliance with its orders. This would give the judge more flexibility in fashioning the court's order.

My reading is that the recent back and forth re Mike and the TAC has thrown up enough dust that this needs to be cleared that it is nothing of substance. Plus the strong principle as above to allow a "day in court" to prevent later appeals: even if that day then decrees the complaints are unworthy of jury assessment, or even lengthy examination by the judge.
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Thanks for the wonderful compilation Morgain. Jadmperry's insights never cease to amaze me, and while his insights carry significant weight on this forum, it does not necessarily reflect the judge's thought process. It is the judge's thought process in which I am eager to see. It may contain valuable information on how the trial will continue from here on out. It may also contain valuable information on whether the Court is choosing to manage its docket by letting the case go to trial in order to prevent future appeals or there is bias from the courts leaning one direction or another.

Eitherway, the transcript gives us an insight to what the Judge is thinking, and his overall attitude towards this case.
 
Kier said:
The motion was denied. At this point, the January trial date stands.
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expected but none the less news we'd rather was in your favour.

Lee said:
So Kier, ill ask again - what happens now for your customers and development?
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Kier's gonna have his employees push an update out and his legal department will make an announcement soon.

Seriously, did you just come out from under a rock? Nothing of substance will happen until the case is settled, it's a no-brainer, since nothing of substance has happened since it started (it has obviously been more of a strain on the team and the personal lives and relations of those involved, as it drags out longer and longer). Unless Kier has some update squirreled away at this point to release & comfort minds like yours then I'm afraid you may be SOL with your expectations.

This is IB vs some dude not IB vs another 100 million dollar business.
Business will not go on as usual. Read between the lines man!
 
ManagerJosh said:
Thanks for the wonderful compilation Morgain. Jadmperry's insights never cease to amaze me, and while his insights carry significant weight on this forum, it does not necessarily reflect the judge's thought process. It is the judge's thought process in which I am eager to see.
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Oct 15 ’12. jadmperry: The judge's view is what matters. That said, I will give my thoughts. …

Always `scrupulous is our jadmperry: a true pro.

ManagerJosh said:
[ the judge's thought process] may contain valuable information on how the trial will continue from here on out. It may also contain valuable information on whether the Court is choosing to manage its docket by letting the case go to trial in order to prevent future appeals or there is bias from the courts leaning one direction or another.
Eitherway, the transcript gives us an insight to what the Judge is thinking, and his overall attitude towards this case.
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All good bunnies awaiting quietly now, tails upfluffed and paws tucked in.[/quote]
 
D.O.A. said:
Nothing of substance will happen until the case is settled, it's a no-brainer, since nothing of substance has happened since it started.
.
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I agree it's not sensible to expect XF development to take place right now at the peak of the court case.
Aug. 29 ’12. XF ANNOUNCEMENT (Ashley)
http://xenforo.com/community/threads/august-update.35633/
No new announcement has been made on development so we must conclude none will arrive till after the case is decided, other than troubleshooting, bug fixes and third party addons.

But it's not strictly true that "nothing of substance has happened since it started."
The case started up the day before XF went sale. So we've since had the beta, March 2011: 1.0.0 stable/ 1.1.0 stable/ various patches, the active Resource Manager on the core site, hundreds of addons and coding snippets, themes, designs, and a strong real community surviving in spite of external challenges and internal dramas!
Quite a lot really.
 
Morgain said:
I agree it's not sensible to expect XF development to take place right now at the peak of the court case.
Aug. 29 ’12. XF ANNOUNCEMENT (Ashley)
http://xenforo.com/community/threads/august-update.35633/
No new announcement has been made on development so we must conclude none will arrive till after the case is decided, other than troubleshooting, bug fixes and third party addons.

But it's not strictly true that "nothing of substance has happened since it started."
The case started up the day before XF went sale. So we've since had the beta, March 2011: 1.0.0 stable/ 1.1.0 stable/ various patches, the active Resource Manager on the core site, hundreds of addons and coding snippets, themes, designs, and a strong real community surviving in spite of external challenges and internal dramas!
Quite a lot really.
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Obviously at some point there was a software road map and I'd dare say they (xenforo) had more coded in the background then what we have taken on as releases so far, but it is obvious as this case has dragged on more has happened behind the scenes with the actual team involved in this, and I now see Kier carrying the banner for this crusade (xenforo:god), but short a few knights. It started well here, yes, but to think they are still at that same point "spiritually", forget about it.

I'm not a pessimist or optimist but I have been dragged through a court for two years and I know it can severely affect your personal life and business relations. Xenforo is not a business giant that can vomit cash as a solution when backed into a corner legally, like most tech companies do. It's a couple guys who will take this hit hard, personally. I believe this case ending in their favour will be the only thing that inspires the guys to get it all together again.
 
D.O.A. said:
Nothing of substance will happen until the case is settled, it's a no-brainer, since nothing of substance has happened since it started....
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Umm, im pretty sure it started even before XenForo went on sale. so things of substance that has happened since the lawsuit started.

XenForo goes on sale
XenForo hits 1.0 final
XenForo matures to 1.1
XenForo releases addons like Elastic Search
XenForo develops resource manager
XenForo 1.2 is planned and near release before being pulled
 
PACER Updates for: 11/5/2012

Docket Text said:
REPLY Support MOTION to Strike Answers Answer to Complaint[104] Plaintiff's Notice of Motion and Motion for a Court Order Striking the Answers of Defendants Darby and Xenforo Limited and Entering a Default Judgment Against Them as a Sanction, or in the Alte MOTION to Strike Answers Answer to Complaint[104] Plaintiff's Notice of Motion and Motion for a Court Order Striking the Answers of Defendants Darby and Xenforo Limited and Entering a Default Judgment Against Them as a Sanction, or in the Alte MOTION to Strike Answers Answer to Complaint[104] Plaintiff's Notice of Motion and Motion for a Court Order Striking the Answers of Defendants Darby and Xenforo Limited and Entering a Default Judgment Against Them as a Sanction, or in the Alte MOTION to Strike Answers Answer to Complaint[104] Plaintiff's Notice of Motion and Motion for a Court Order Striking the Answers of Defendants Darby and Xenforo Limited and Entering a Default Judgment Against Them as a Sanction, or in the Alte[133] filed by Plaintiff vBulletin Solutions, Inc.. (Attachments: # (1) Declaration of Russell Selmont)(Fraioli, Patrick)
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Documents in this pack:

#136 - Reply to Motion
#136-1 - Declaration of Russell Selmont

This is all that is available as of now.

For your convenient reference, links to the other documents mentioned above:

#104 -Answer to Amended Complaint (#90-1 SAC, #90-2 21-Day Summons)
#133 - Motion to Strike Answers

This sets another court date for 11/19/2012 @ 10:00 AM
 

Attachments

Stupid random thought... but everytime I read the legalise that comes out ERVIN CO EN & JESSUP LLP's mouth, I can't help but hear a tone of arrogance. Is it just me?
 
In document 136 IB gives information about today's hearing on dismissal:

Screen shot 2012-11-05 at 6.10.05 PM.webp


IB says the court has ruled today that no TAC is required which would mean three things:

1) IB has not failed to file a TAC. That is a strike against XF's motion to dismiss (which we know has been denied).

2) Mike has failed to respond to the SAC within the agreed deadline which supports IB's motion for a default against Mike.

3) XF can be seen as having delayed the case by refusing to hold a Rule 26 meeting. This supports IB's motion for a default against Kier and XF. It also supports IB's request to extend discovery and to allow for amendments, though the judge has said before that he doesn't want any more amendments or delays.

All of these things were based on the fate of the TAC. It seemed clear that IB was required to submit a TAC which would have favored XF in these three points, but now it appears the court has ruled that no TAC is required, hence all this recent stuff falls against XF.

All of these recent motions revolve around a misunderstanding about the fate of the TAC. There does not appear to be any willful disobedience. We will have to wait and see if this results in sanctions or delays. November 19 is the next court date.
 
Jake Bunce said:
This is all pretrial stuff. It has nothing to do with XenForo's defense against the actual allegations. XenForo tried to kill the case early. They failed. Now it appears it will go to trial. This doesn't hurt their legal position.
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We shall see if you are correct come Nov. 19th.
 
Generally speaking off topic. I find it so fascinating that the individuals whom claim to support XF the most are also the loudest and first to speak ill of it whenever possible. This thread is an idea example.
 
Jake Bunce said:
Absolutely I am correct. The issues being addressed right now are procedural. The allegations made by IB (such as copying vB's code) don't enter into it. That stuff will be heard at trial.
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So what are the procedural details still needing ironed out necessitating the hearing on the 19th?
 
Jake Bunce said:
This is all pretrial stuff. It has nothing to do with XenForo's defense against the actual allegations. XenForo tried to kill the case early. They failed. Now it appears it will go to trial. This doesn't hurt their legal position.
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A powerful distinction, thank you.

I think the feeling of This bodes ill for XF.is because generally XF and their lawyers have been right and VBSI wrong. So this is quite a shock to the system.
It's only a bump on the way and as you say, still only pre-trial. But still not nice.

I wonder if it is possible to make a formal apology to the Court for an honest misunderstanding.
That TAC business was certainly complicated enough.
I just think it's worth it to put it on record that it was a genuine misunderstanding. Maybe there is already something like that in the transcript. Important to make it clear to the judge.
Shame it couldn't be checked earlier but I guess the`only person who could clarify was the judge and that means some sort of hearing which there has not been since May.

Look forward both to today's transcript and an outline what Nov. 19 is for.
 
I went back and edited my post to include links for the documents referenced.

Basically, the motion #136 wants to support motion #133 which was to strike the answers given in #104 which was in response to #90-1 and #90-2.

I *think* the idea is to go back and do it all over again. Thus, the court date on 11/19 to decide the fate of the motion to strike. The court gave VBSI legal counsel further ammo by declaring the SAC valid and the TAC invalid.

That's my take on what I've read thus far. 11/19 would only impact the proceedings if the answers in #104 are indeed stricken. (Sticken = somewhat back to square 1)
 
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