Thread by @dsmart

BREAKING! CIG have filed a new MtD in the lawsuit. This comes after the judge threw out 4/6 items in the original MtD. Crytek later filed a new cause of action over a section pointed by the judge in her 08/14 ruling.

pacermonitor.com/public/case/23…

FILING MEMORANDUM

docdro.id/0LxN6Ka

PROPOSED ORDER (used by judge if she grants the MtD)

docdro.id/DIPUrHO

In my coverage of the judge's original MtD ruling, I had written that I expected CIG to file an MtD over that 2.4 section in the updated Crytek filing.

Hilariously, CIG filed a Rule 26 opposition immediately, but ran out the clock on their latest filing.

dereksmart.com/forums/reply/6…

It should come as no surprise that CIG is fighting discovery at every opportunity. They're pulling every trick in the delay tactics book, while trying to get Crytek to the settlement table behind the scenes.

I had always said that they would FAIL.

So...

Barely hours after the latest MtD filing by CIG, the judge immediately filed a Rule 26 (discovery) schedule.

Yes Virginia, we're off to discovery soon enough.

docdro.id/OGVjIHW

law.cornell.edu/rules/frcp/rul…

Whatever is going on with CIG right now over this discovery that's about to hit them, I could very well draw as a Wile Coyote cartoon sketch. Complete with a canyon, a cliff, a stick of dynamite and a match stick.

I had always maintained that I don't see this case being settled because:

1) Crytek aren't primarily interested in money. The bad blood between the two companies, over how CIG execs stripped them of key talent, then breached their contract, changes the motives.

2) CIG had the opportunity to settle this, and correct their alleged breached over ONE YEAR ago. But evn as they kept SCAMMING backers for money, they also kept playing "Come at me bro!" with Crytek, thus severely underestimating the human emotions that govern wars of attrition.

3) That after Crytek had created (CIG had LIED that they created them. the lawsuit brought clarity to that) the promo videos, assets etc, which served to propel the project to be the largest crowd-funded campaign in history, CIG reneged on their deal.

It's not even as if you licensed an engine from a third-party, and thus don't owe them any obligation. When you do cross-promotion deals, that's PRECISELY what they are. When one side renegades, after hitting is big, that's gotta hurt the other party.

And THAT is what happened.

Regardless of the merits of the lawsuits, the entire GLA between the parties is one of co-operation, and not a passive standard license like you would find with any other third-party (e.g. Unity, UE, Lumberyard etc).

Now CIG is litigating what they AGREED to do.

Even when CIG filed a 6 point MtD, they were granted only 1 immaterial (punitive damages) issue which had NOTHING to do with the actual claims. And the 1 claim they were granted, was ambiguous enough for the judge to ref another section, thus prompting the new filing by Crytek.

Setting aside the 1 issue granted, plus 1 added, this would mean that CIG basically LOST 4/6 of their motion. And if the judge rules against them in the latest, that would mean they have lost 5/6.

Going into a lawsuit with that many claims is disaster on steroids.

Which is why it's funny to me that some devout backers and legal "experts" who were claiming that the lawsuit was bs, have grown quiet since the MtD ruling.

If a lawsuit is bs, the claims won't survive an MtD. That's what its designed to do: weed out bs.

That the judge has now setup a Rule 26 conference, while ignoring CIG's opposition filing, speaks volumes. It basically means that the judge doesn't believe that holding up discovery over 1 pending issue, is good use of time.

And even if she did rule in CIG's favor over their latest filing, that would mean 4/6 claims are going to trial - thus discovery HAS to proceed.

Having read the latest CIG filing to dismiss the 2.4 section that's the focus of Crytek's last filing, it doesn't even warrant my time to analyze because it's pure and utter rubbish.

ievThis is 2.4 of the GLA.

In my previous analysis, I had stated that this was going to hinge on a comma. And that is PRECISELY the CIG argument. I love it when I'm right. :)

Here is the CIG argument in its entirety.

Notice how they conveniently emphasized that part, while not bringing focus to the word "business" that's material to it?

Right. So read how a similar case cost a company $5M

nytimes.com/2018/02/09/us/…

They are basically saying that 2.4 isn't a cause of action because, well, they're not "enhaging" in the "business" of doing ANY of those things.

Well, here's the problem (it's hilarious, trust me)...

As per 2.4, they can't do ANY of those things "during the term of the license"

The GLA hasn't terminated. So whether or not they are using the engine, doesn't matter.

Despite the fact that, with their own Star Engine and later Lumberyard, they have been doing all of what 2.4 prohibits below, they're now saying it's not true. Seriously.

- designing
- developing
- creating
- supporting
- maintaining
- promoting

In fact, the only 2.4 conditions which they haven't breached are

- selling
- licensing

That's it.

They're now saying they haven't done ANY of those things because the language in "engage in the business of" protects them because they're NOT doing those things as a "business".

I have to admit, it's a pretty solid & bold argument. But here's the problem..

In their filing, I didn't see any arg that supports how they could get around the issue that they're not, for e.g. "in the business of" doing those 6 things. To wit:

"in the business of designing"

What does it mean?

Obviously they did ALL of those 6 things for not only their custom engine, Star Marine, but also a competing engine, Lumberyard, which they switched to.

It gets better.

What about "in the business of licensing (directly or indirectly) any engine or middleware which compete with CryEngine"

LOL!! It's public knowledge that they did that with Lumberyard.

Arguably, by their own promotions, Star Engine, which like Lumberyard, is built with CryEngine, also qualifies as a competing engine.

I can't wait to read the judge's opinion on this one. After all, she opened that door when she pointed out the merits of 2.4 in her 2.1.2 denial.

I swear if the judge reads this CIG argument, then in her ruling cites the Oakhurst Dairy class action, I would literally die laughing.

I hope that Crytek's lawyers do cite it in their answer because then it would be twice as funny.

Anyway, that's the end of my opinions on this.

Now we wait for the hilarity that is the Crytek response and the judge's ruling.

Meantime, we have Rule 26 fireworks to look forward to later this month.

/END