February 9th Anticipation Station

CIG Responds to Crytek's Response

Very boring document: https://www.scribd.com/document/370105345/031127439162

Annoying effort legal post incoming!

The motion will get denied, as it is being filed under FRCP 12(b)6. This particular rule in the charming Federal Rules of Civil Procedure handbook states that a motion can be filed in defense “for failure to state a claim for which relief can be granted.” This denial is indisputable and inarguable because the standard for a dismissal under FRCP rule 12(b)6 is “In appraising the sufficiency of a complaint for failure to state a claim is that a complaint should not be dismissed …unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson (1957), 355 U.S. 41 (emphasis added). That’s a SCOTUS ruling; this binds all the courts in the Federal system, including our little district court.

That is to say, the standard is to weed out the cases that are either totally incompatible with the legal system – alleging a witch put an evil eye on a child, say. Or asking for declaratory ruling that you’re the God King of Arrakis. As the rule says, there’s no “relief” available to such a claim in the law or equity; we do not recognize the outcome or we do not recognize that this is a “thing” for which you can sue someone over. Really technical analysis of the claims can be very hair-splitting if the elements of the law that support the claim are complex. But if you read that tiny excerpt from the ruling (which is part of every 1L’s CivPro syllabus) then there’s no objective way to grant the motion, because Crytek’s claims are pretty straightforward: there exists a contract, CIG broke it, Crytek was harmed, give us money.

See, whether or not we get to the actual merits of the claims in the response, CIG has already severely fucked up by trying to substitute Crytek’s facts with their own. “Unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim.” CIG does NOT get to do that. You do NOT get to say “well if my version of the facts are right, then you must dismiss!” NO! That’s what 1L students fuck up and civpro professors have to hammer that in to their thick skulls. You dismiss if you look at it under every possible angle and can’t find a way to proceed. The standard is so high that it’s almost never granted when a cause of action is brought by an actual trained lawyer since it’s for obvious losers and they should be getting laughed out of the attorney’s office, nevermind at the stage that you’re reading your rubbish case in front of a judge.

I looked at the table of contents on the response, saw that CIG was trying to argue on the merits and closed the PDF. If you have to argue the very facts of the case, guess what dumbass? You’ve got an actual “case or controversy” ripe for judicial intervention! You’ve proven to the court that procedurally it should hear both sides because the one side where Crytek’s facts prevail, CIG is fucked. On the one hand if the response is true, CIG is not fucked. And the only way to do that…is to go through the entire process of holding a trial and evaluating evidence! Congratulations CIG, you forgot basic CivPro. I’m hope you’re happy.

(I am because this is hilarious to me)

The preliminary injunction will certainly be denied. There’s no irreparable harm that cannot be remedied by a liquidated judgment (i.e., cash money) at the end if Crytek prevails.

The injunction may or may not be granted at the end of the trial if Crytek wins, to which Crytek is entitled to if there’s a copyright violation. If it is, then it takes effect at a time the court deems appropriate, which may be immediately once the judgment is entered. This can be stayed pending any appeals, so if and when the shit truly hits the fan there will be long notice of it happening. How it’ll be enforced is going to be crafted by the court with the plaintiffs strongly advising – Crytek can basically write the order for what they’d like to see to ensure satisfactory behavior, and the judge can sign off on it or modify it. Remember, at this point CIG has had an open and fair opportunity to show no wrongdoing and if the injunction takes place well they’ve fucked up in the eyes of the court and under copyright laws they’re not entitled to any real benefit of the doubt. This can be pretty damn invasive, and as we’ve seen before in other cases the fact it’s fatal to them is of no import to the court; after all, the law itself wants the consequences to be heavy and painful.

I wouldn’t be surprised if CIG is forced to allow Crytek to audit the whole thing top to bottom and Crytek is allowed to go “this is mine, this is mine, this is mine, this garbage is not ours, eww, this is mine…” until there’s naught left but T-posed commandos and jpegs.

Also discovery and stuff like getting all the hearings in place before setting a trial date should start kicking into gear once the initial handshakes finish. If CIG stalls, then the court can get real cross, especially if the other side is ready. The court will be content with delaying things if there’s serious settlement talks going on though; getting out of actually holding a trial is job one in the court system given how many cases are pending on a typical docket. Both sides seem dug in and are lobbing grenades o’er the top, but that could be just a front while serious talks by adults are being held in a conference room somewhere, it’s happened far too often to dismiss. CIG probably has no adults in charge though.

I just hope Chris Roberts is watching the French videos going, “yes, um exactly, he’s er, ummm, he sees it too, I can win a multi million dollar court case this time”.

Feb 9th will be a day of infamy, where us goons feel grief.

The answer lies in Chris Roberts irredeemable garbage soul, and Ortwin’s blind greed. It’s really that simple, and no more complicated than it needs to be. Chris Roberts thinks - no, he knows - that he’s making a game. Similarly, Ortwin knows he’s a mighty untouchable lawyer who equates making a demand on a conference call with unilateral acquiescence of said demands. Neither cares about anything else - they don’t see anything else, and they don’t understand anything else. Chris has been instructed to act as if the lawsuit is a foregone conclusion, and Ortwin is prepared to save his own skin if the game doesn’t go his way. Discovery is “irrelevant” for similar reasons - Chris doesn’t think he did anything wrong, and Ortwin won’t be the guy directly responsible for the undead horde of financial skeletons discovery will reveal.

This is nothing more than blindness and arrogance. To search for deeper meaning is pointless. Chris can’t see what’s in front of him, backers see things that aren’t there, everyone else sees what is there and doesn’t see what isn’t. The courts are in the last category. It’s unlikely the members of the first two will ever wake up.

Watching all this shit with CIG is like watching the helicopter footage of a police chase. You know it’s a foregone conclusion, but it’s not only impossible to tell how the chase will end, but it’s impossible to tell moment to moment what will happen. Will the criminal get on the highway? Off? Will he speed through a school zone? Will he stop the car and run on foot through an abandoned building?

No idea moment to moment, so you sit transfixed at the spectacle. Oh, it will end. You already know how it will end. Maybe not exactly though - a bullet to the head? A suicide? Gunned down by cops? Arrested successfully? Car going off a cliff?

When they march Chris Roberts into the courtroom I want the Bad Boys song playing.

Judge : “So where is the so-called video game Star Citizen and all its progress ?”

Chris : “Sorry my Ben ate it.”

It’s all pure arrogance and hubris. Those have been the guiding principles of this shit-show for as long as anyone can recall. And as been proven time and time again, it’s going to continue being their undoing.

After the judge rolls up the MtD and shoves it up Ortwin’s ass without lube, they have to setup a schedule for discovery, depositions etc. During that time, they can still be talking settlement, though as I’ve written, I don’t expect that to be on any friendly terms, given the very public arrogance, hostility, and unprofessional conduct exhibited by the Ortwin-led CIG onslaught.

But attorneys who are in the middle, even with problematic clients, tend to have calmer heads during settlement negotiations because nobody wants to go to trial. And regardless of what Ortwin writes, I have to believe that FKKS should have already seen some the writing on the wall by now that their client stands absolutely no chance of prevailing on any of the accusations. Also, once the MtD fails spectacularly, that’s when FKKS is going to have a “Come To Jesus” discussion with their clients, briefing them about the fucking minefield they’re about to step into, asking them if there is anything they need to know beforehand etc. Since clients lie to their attorneys all the time, it stands to reason that Ortwin will lie to their attorneys, concealing the more egregious things likely to expose them. Then it shows up in discovery, and all hell breaks loose.

The biggest problem they have, and which Ortwin has to know by now, is that this lawsuit has immense scope and there is no way they are going to be able to stifle things from depositions or discovery, without running afoul of the court. I’m sure we’re going to be seeing lots of filings from CIG disputing certain discovery requests, all of which will ultimately fail. Why? Because, right from the onset, by going after Ortwin’s conflict, Skadden set the “reputation + pattern of conduct trap” for Ortwin, ensnared him in it with deadly precision, and set the stage for credibility & reputation to get a front row seat in the proceedings. They’re going to want to establish a pattern of conduct that shows that CIG behaved dishonestly etc. And THAT is how things like their personal lives, expenditures, Ortwin’s involvement etc are all going to be open season for discovery. If they were dishonest enough to breach the terms of the GLA, discovery is going to be the path to establishing that pattern of conduct which is what is going play before the judge and the jury (if it goes to trial).

They have to settle. There is no other way out of this for them. But given the amount of money involved, even with whatever the liability insurance ends up agreeing to pay - if anything - they’re going to find a way to raise that money because my guess is that Crytek isn’t going to risk any long term promises, knowing that CIG is run by a pack of lying, thieving, scumbag scam artists.

Anyway, none of this matters because this pales in comparison to what’s currently developing behind the scenes and which I am certain is the actual final nail in the coffin, regardless of how this distracting lawsuit plays out.

And I still maintain that people are either going to jail, or taking plea deals, over this fiasco.

With goons expecting a huge feast of hilarity from discovery (and some already warning that we’re going to be disappointed), I think it’s worth pumping the brakes a little and realistically considering what we might see in the disclosure process. Due credit to Latin Pheonix for her assistance proofreading all this.

For a start, here’s the current US Federal court Disclosure and Discovery rules. As stated before, I am NOT going to give specific opinions on this because I’m not that specific kind of lawgoon. Smart lawyers (not naming any names) know when to refer a matter to people who know what they’re doing. But I do have experience of discovery processes and I know what litigators look for and ask for.

So that all said, here’s what we might get. Bearing in mind that as noted by kw0134, this stuff won’t be uploaded the way the court documents have been and will instead be exchanged between the parties. We’ll see the bits that get specifically cited.

1. CIG Financials

Let’s tackle the thread’s holy grail head on. We’re not going to see a line-item for “Mr Roberts’ cocaine dealer”. That’s as much a dream as a fully-functional Javelin. Even a more realistic comedy extravagance like a personal masseuse or executive barista can quietly be shuffled into a “facilities” budget alongside the $14K coffeemaker. The great joy of this lawsuit is that Crytek are certain to want accounts to assess damages, and are very likely indeed to cite points from the accounts that will require attaching them to court documents, but us seeing the complete set is by no means guaranteed. If we’re really lucky perhaps Derek’s sources might quietly do us a solid here, BUT those sources are risking contempt charges so let’s not get our hopes up.

Also, any accounts will be prepared by cynical professional accountants, who are more than familiar with how to keep embarassing financial information quietly buried in a 10-page statement of travel costs. Anything really damaging will be several pages deep behind a phalanx of polite accounting euphemisms. If accounts do appear, expect them to be bland at first sight with the really delightful secrets in the terms and definitions. Areas to keep an eye on:

• Office furniture. Bear in mind this will be high for any technology company; entertainment value will come from just what was purchased for whom.

• A massive executive travel budget (NOT broken down into tickets, just a big number)

• Executive salaries and bonuses (again, unlikely to be listed individually)

• Details of inter-office money and rights shuffles. Any double-dipping? Which company holds what, and when was it transferred? Who’s being paid by multiple companies at once?

• Other licensing and IP points. What was paid to Illfonic to break their contract? Who else has Experienced The Chris? What licenses have CIG themselves taken out?

• Who’s pulled the ripcord on their golden parachutes.

• MOCAP and expenses associated with the film shoots. In particular, check to see if Director Chris and #actress Sandi were paid seperate salaries to the CEO of Cloud Imperium and the Head of Marketing.

• Debt and who holds it.

• Details of investors.

• Genuine refund amounts.

• Genuine funding figures (this will be plenty embarassing enough if they don’t match the funding tracker).

If something shows up big and obvious here, expect the media to pick it up in a frustratingly simplified form (“Star Citizen accounts show Chris spending $X,xxx,xxx,xxx.xx on flights to Monaco!”). Likewise, don’t expect the shitizenry to be too shocked; anything requiring reading more than a single layer is too easy to dismiss.

2. CIG/Crytek correspondence.

Whatever communications were exchanged between CIG and Crytek execs, and CIG and Crytek staff, and especially CIG and Crytek staff who went on to become CIG staff, are going to be utterly crucial to both sides. No question about it, this WILL be dug over again and again. Comedy here will be of the “I’m a big tough executive with no self-awareness whatsoever” kind. The chances of a good old CIG unforced error will be at their highest. If we’re lucky, someone will express their contempt for the backers. If we’re really really lucky, we’ll see someone discussing how he’s totally going to screw Crytek.

But now I’ve whetted everyone’s appetite I have to deliver the bad news. This area is the most likely to be heavily locked down by ALL sides. Crytek themselves may have a few embarassing skeletons in their closet, or just not want their negotiating strategies discussed in public, and the judge isn’t going to want to wade through page after page of chest-thumping. Expect a lot of cut material and tantalising hints of other documents; entire sheaves of AMD Letters that we’ll sadly never see without a leak. The real hilarity in the Ion Storm meltdown came from leaked internal emails, but they were leaked rather than disclosed.

The most likely outcome: Both sides seize on one or two email chains apiece that shore up their case and rely heavily on those. The thread curses as we are teased with references to “the X settlement” or “the unfortunate events at Y’s offices” that remain forever sealed.

3. Pre-action correspondence.

The most likely source of thread entertainment. Whatever correspondence was exchanged before Crytek filed their lawsuit will probably show up in the trial bundle, and could contain some entertaining examples of how Chris & co treat servants peons contractors. Crytek will probably posture just as much as CIG here. Expect chest-thumping roars and much flinging of excrement right up until Crytek hire Skadden whereupon the quality of discourse will probably shoot up.

Not likely to be anything shocking here unless one party did something provocative to the other in the run-up. Probably a lot of CIG delaying tactics, hoping to reach the next big sale or that Crytek will just go bankrupt and stop bothering them.

4. Insights into CIG’s internal power dynamics

Keep an eye on what CIG say isn’t relevant. What are they insisting is nothing to do with Cloud Imperium as a company? Which servers are they trying to refuse access to? What’s suddenly been declared to be sold to Ris Choberts? This is where CIG will gas up their internal firewalls and I expect Skadden to have to file motions to compel access.

Likewise, watch the email trails. Who holds which company offices? How does a message move around inside CIG? Does everything go to the Head of Marketing who in turn forwards it on the Chairman? Does Chris actually have any control over his underlings? Does he rage directly or passive-aggressively? Whose opinions are consulted, and for what? Who doesn’t CC the Chairman on their emails?

5. Details of who CIG’s been courting

Who pops up unexpectedly in the emails? What’s suddenly redacted? Any institutional investor will have done due dilligence including checks on pending legal action. If this has been pending for a year or more, some entertaining organisations might have stuck their heads around the door during that time (and then Noped out). Does Chris threaten anyone with his big scary new friends? For that matter, who threatens Chris?

6. The Dates and Times of CIG’s largest payments, in and out

This is like signal analysis of encrypted traffic. We won’t be able to see, e.g. how much was paid to Gary Oldman. But we might be able to infer it from sudden lump-sum payments, especially given the rumours of executives demanding their royalties with the release of 2.6. I’ll be very very curious to see how much left their accounts (and which accounts) on 2.6 and 3.0’s release dates.

Was there a large lump sum payment about the time Ben stopped appearing on ATV? To Lando about the time he was rumoured to be leaving? Were there payments to a certain film studio responsible for internationally famous horror epic American Satan - and what else has been paid out of that budget? Who paid what for the rumoured private detective agencies involved in the leak hunt after the AEGIS Potato incident?

I’ll also be interested to look into when CIG leased various properties, and which shell company owns those properties. Most commercial leases terminate in the event of bankruptcy or receivership, so what are Chris & co preparing to sacrifice? Also, comparing the dates of any inward investment or tax credit with the funding tracker may provide considerable comedy dividends. Were any large payments made around the times that, say, Coutts might expect a loan repayment?

and lastly…

7. A Spectacular Unforced Error That Makes Us All Collapse Laughing.

Hey, it is CIG we’re talking about. For that matter it’s Crytek we’re talking about. There’s going to be something totally off the wall that we’ve never ever imagined in a million years, count on it. It might be an unexpected asset (holding a lease on a house somewhere, or a yacht, or a private train car), a hilarious euphemism for payment structures (“enhanced performance dividend”), or something even sillier. But it’s gonna be there. CIG can’t help themselves.

My personal bid is “evidence of an attempt to sue American Satan’s producers using backer money”. I’m sure the thread can think up other possibilities. The reality is probably going to be exponentially more insane than anything we can think up.

So lemme muse about the fated MTD, the Friday of pain foretold many months ago.

**Citizens have absolutely convinced themselves through their own ignorance and delusion that the Crytek suit will be dismissed on Friday. I’m a way, they’ve projected all their feelings towards this little scam into this suit. Packaged neatly into this hearing is simultaneously the total confidence and zeal behind SC and oddly enough all their fears and doubts.

The dismissal of the suit will happen simply because it MUST, because I the backer believe everything I believe about Star Citizen. Crytek in this way represents all the FUD. If the MTD is denied, that both validates the FUD, and brings bubbling to the surface the idea that the backer himself may be wrong about SC.**

In reality the 12b6 MTD will be denied because even a layperson can see that there is a claim stated and that claim is a matter for the courts. That’s all this in reality, a relatively minor procedural first-step in any non-frivolous/meritorious litigation. It doesn’t really mean anything yet in the larger scale beyond that there is a case to be heard here.

BUT a citizen sees this as an attack on Star Citizen, and through narcissistic rage sees the lawsuit as an attack on the self. Even a simple MTD hearing is a titanic struggle of truth vs lie, faith v FUD to invest emotion in.

For these reasons if the MTD is granted it is a massive validation of the product itself for the citizen.

If the MTD is denied basically the sky is falling and it will cause backers to rage so fucking hard. Monumental amounts of fear and doubt and anger. We will see every comments section, every subreddit, every thread explode in activity. That means for a weekend we will get to chase that schadenfreud high again, for the last time for a while, until trial at least, inshallah

TLDR Friday

lol you must be new to backer logic.

If MTD is denied, they will fall back to the next in an infinite queue of rationalizations. Next up: Assume that CryTek will get trounced in court and CIG will enrich themselves from the counter-suit.

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