Turbine v. Atari - Motion to Dismiss

[GoldyGopher]

For those keeping track at home:

Atari has withdrawn the Motion to dismiss the Case. The stipulation (agreement between Atari and Turbine) was filed this afternoon.

Next Court Date is October 14th - Continuation on Turbines two motions, one for a third party auditor and the other to change a member of the legal team.

Turbine has moved to withdraw its Motion to dismiss in Atari v. Turbine, contingent on the two cases being combined. Supposedily agreed to in court Yesterday.
No future court dates for that case.

[oberon131313]

interesting, but not suprising.

[Wakkander]

Not to surprising, but thanks for the update goldy.

[Dark_Helmet]

Ever dance with the devil in the pale moonlight?

I would have been surprised if that DIDN'T happen.

Also, it has been very quiet on the WotC front. I would have expected them to weigh in by now.

[Mockduck]

Yeah, thanks for the update, much appreciated.

[GoldyGopher]

I have been informed that this is finialized and we now only have one combined case.

I'll update the Nitty Gritty once the documentation is online.

As an aside, a personal opinion shared by several in the industry, it appears that Turbine is in a stronger position with the combined case than the two seperate cases. The stipulations were very much in Turbines favor. IE Atari just withdrew there motion to dismiss and Turbine had contingent requirements in theirs.

A third party international royalty expert, with large amounts of experience in litigation and computer gaming, has been asked to examine bith parties books by Turbine and Not Atari. Not the kind of individual you would commision as a neutral third party if you were hiding something in your books.

There are a couple of other reasons to be very optomistic on Turbines part, but as a non-lawyer I am not sure I could explain them.

[captain1z]

Also, it has been very quiet on the WotC front. I would have expected them to weigh in by now.


I would expect thier stance to be nuetral until an issue came up that could negatively impact them came up.
Both Atari and Turbine are business partners of wotc, now and possibly in the future. There is no need for them to choose a side so long as the business is good on wotc end.

[DoctorWhofan]

--chomps popcorn--

THis is better than waiting for the next episode of Doctor Who!

[GreyRogue]

Thank you for the update. :)

[Ulurjah]

Thanks for the update. Despite having canceled my status as a VIP player, I still think Turbine has a solid case and I hope they win. I hope DDO is around for a long time too ... because it's a great game :)

[Ustice]

Darn this limit on giving rep. You'd have some from me, Goldy. Thanks.

[Dark_Helmet]

I would expect thier stance to be nuetral until an issue came up that could negatively impact them came up.
Both Atari and Turbine are business partners of wotc, now and possibly in the future. There is no need for them to choose a side so long as the business is good on wotc end.

If Atari is truly trying to prevent a product (DDO) from being in the market place to compete with another product that is exclusive to Atari , I would expect WOTC to weigh in. WOTC would want both products to succeed - depending on royalties recieved vs. reputation impact of course! If a product deviates from the standard too much, creating issues within the customer base, it can spread to WOTC's reputation as not controlling their intellectual property - which TSR used to run into in the past.

[Pwesiela]

You know, I'm kindof surprised this wasn't sent to arbitration. Guess there wasn't a clause for it.

[GoldyGopher]

If Atari is truly trying to prevent a product (DDO) from being in the market place to compete with another product that is exclusive to Atari , I would expect WOTC to weigh in. WOTC would want both products to succeed - depending on royalties recieved vs. reputation impact of course! If a product deviates from the standard too much, creating issues within the customer base, it can spread to WOTC's reputation as not controlling their intellectual property - which TSR used to run into in the past.

I hate to say this but Wizards of the Coast probably could care less whether a product succeeds or fails cause I am sure they get the same amount of money either way. All of it from Atari.

Now Kate amongst others has already stated they work with the Eberron Team and the Art Team at WotC to make sure that the IP follows the correct path (can't think of a better word) and stay true to the IP as WotC now sees it, as opposed to what Dave and Gary thought 20 years ago.


You know, I'm kindof surprised this wasn't sent to arbitration. Guess there wasn't a clause for it.
I asked one of our corperate lawyers about this, he answer was Large Corporations don't "like" arbitration cause it just adds a step and delays things because they are going to end up in court anyways. (Appeal of the Arbitrator decision). So many save the step and skip arbitration.

[KingOfCheese]

Lol. That was predictable.

The fact that they mentioned this motion (now withdrawn) in their press release to bolster their position that Turbine's suit was frivolous, I had assumed they were wearing crazy pants--but reserved some small doubt. It pretty much looks like crazy pants. It wasn't crazy to file the motion (just a waste of time and money), it was crazy to talk about it in a press release. It shows a real lack of sophistication.

This suggests that someone at Atari with the ability to make judgment calls isn't up to the job. In my experience, this can be a little dangerous. It is hard to get rational deals done when one of the two parties can't judge or understand or learn their real legal position. Ultimately, it makes it easier to win the case (for Turbine), but it can be messier than it needs to be.

[Gattica-b]

Please, please keep us up to date with this. I've been looking for an update for a couple of days now because I thought there was some deadline on a Friday.

I am very interested in what comes of this and I can't find information anywhere else.

[The_Ick]

For those keeping track at home:

Atari has withdrawn the Motion to dismiss the Case. The stipulation (agreement between Atari and Turbine) was filed this afternoon.

Next Court Date is October 14th - Continuation on Turbines two motions, one for a third party auditor and the other to change a member of the legal team.

Turbine has moved to withdraw its Motion to dismiss in Atari v. Turbine, contingent on the two cases being combined. Supposedily agreed to in court Yesterday.
No future court dates for that case.

Any news from todays court room?

[GoldyGopher]

As of 2pm EST nothing new to report yet. (Not sure of the actual court time today but I don't expect to hear until early this evening or tomorrow morning.

However Turbine did file a response to Atari's lawsuit - link (https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=hU2t/NCvOlBQ+WLRHXP3lw==&system=prod")

Not the most fun thing to read. "Turbine Denies the allegations setforth in paragraph X of the compliant" gets a little old.

[Gattica-b]

Turbine repeatedly claims that Atari had planned, well ahead of time, to use their Audit as a pre-text to "extort" more money from Turbine, all the while having plans to cancel or get out of the agreement to start their own DnD branded MMO.

Both the frequency and the weight of the allegation makes me wonder if they have "smoking gun" evidence of this. The charge by itself is pretty big but they also make it over and over. Do you make that big of a charge that often if you don't have significant proof?

EDIT:

More questions:

Is a rumor posted on a gaming internet site proof enough for a "smoking gun" (I wouldn't think so)?

From what I can tell Turbine wants both money (like. . .30 Million dollars) and for the agreement to be upheld. Can a two companies have a business relation of a ruling in Turbine's favor occurs? I could see it being fine if the agreement was terminated and Turbine got the money or if Turbine didn't get the money (all counts being thrown out) and the Agreement is upheld. But how does that business relationship move forward if both are awarded?

[GoldyGopher]

In the other threads I made a point of mentioning Turbine's (and the lawyers) choice of words and charges. (Fraud rather than Failure to perform Fudicary Duties)

It is pretty obvious that Turbine has "something" whether it's an internal e-mail, an external e-mail, a memo of understanding, or.... to give credence to Turbine's compliant. Because that “smoking gun” is not named one has to believe that an Internal Document to Atari is the source. But that is just my best guess.

[Pwesiela]

Both the frequency and the weight of the allegation makes me wonder if they have "smoking gun" evidence of this. The charge by itself is pretty big but they also make it over and over. Do you make that big of a charge that often if you don't have significant proof?

Strategically, it depends. If you got the proof, you want to hammer it in that this is what it is. If you don't have the proof, you hope that it scares them somehow. Most likely, there's some sort of evidence that could be viewed in some light to hold this as true (ethical rules and all), but it may or may not be tenuous.

Also, in legal writing at least, if the term fits, use it. We've never really been counseled to find synonyms for reoccurring words if the word/phrase fits. Literary license is secondary to legal clarity.

[TechNoFear]

Atari started the audit in Nov 2008.
Atari accepted a new agreement and royalties on 13 May 2009
Atari sends final notice of breach of contract on 26 June 2009.

I can't see how Atari would not have got a preliminary estimate from the auditors prior to signing a new agreement with Turbine (6 months after the audit started).

Nor how the situation could change in 6 weeks to terminating the agreement based on the audit (or is there some other reason I missed?).

[Dark_Helmet]

In the other threads I made a point of mentioning Turbine's (and the lawyers) choice of words and charges. (Fraud rather than Failure to perform Fudicary Duties)

It is pretty obvious that Turbine has "something" whether it's an internal e-mail, an external e-mail, a memo of understanding, or.... to give credence to Turbine's compliant. Because that “smoking gun” is not named one has to believe that an Internal Document to Atari is the source. But that is just my best guess.

Just wait for discovery on that front. ;) I bet it is actually contained in electronic discovery. I wonder if Atari scrubbed their E-Mail and Chat repositories before the lawsuit was presented. ;) E-discovery is one of the most painful things to work with: Having to gather the raw data and sift thru it to find it's native format. :eek:

I know that discovery is not continuing in California, but I am not sure about this jurisdiction. It will be interesting to see if they get those internal documents up to the counter-suit - of course, they could become privileged.

It will be interesting what comes out in subdivision (b).

[Hafeal]

This suggests that someone at Atari with the ability to make judgment calls isn't up to the job.

Could be, could be. Or it could be a decision not to kill the golden goose - yet. With DDO's success in the EU launch, Atari is probably now thinking the money is going to get much better. And they would be right by all accounts, looks like micro-transactions are working for now. Any audit, by anyone is going to net them more money. Further, perhaps the "there is no such thing as bad publicity" has netted them the newslines they want and both parties agreed they want to try to keep more information out of the public's eye, especially knowing that they are being watched.

Let us not forget that vengeance is a dish best served cold. Atari still holds the ultimate power here and down the line, things may change dramatically.


Atari started the audit in Nov 2008.
Atari accepted a new agreement and royalties on 13 May 2009
Atari sends final notice of breach of contract on 26 June 2009.

I can't see how Atari would not have got a preliminary estimate from the auditors prior to signing a new agreement with Turbine (6 months after the audit started).

Nor how the situation could change in 6 weeks to terminating the agreement based on the audit (or is there some other reason I missed?).

My guess would be they either knew of some of the results and laid low. Or some fortuitous event occurred in those 6 weeks alerting them to new information or some impropriety with the audit itself.

[TechNoFear]

Let us not forget that vengeance is a dish best served cold. Atari still holds the ultimate power here and down the line, things may change dramatically.

IMO Atari's big risk is that the amendment (just prior to launch in 2006), removing Turbine's exclusivity to D&D themed MMOs, is negated. This would stop the D&D themed MMO that Atari / Cryptic is rumored to be working on.

[Hafeal]

IMO Atari's big risk is that the amendment (just prior to launch in 2006), removing Turbine's exclusivity to D&D themed MMOs, is negated. This would stop the D&D themed MMO that Atari / Cryptic is rumored to be working on.

Or delay it. They could mothball it for when Turbine's license expires (~2016/17, without looking). It takes years for this stuff anyway. They could have a small team monitoring DDO and picking and choosing the best features for such a game.

[The_Rev09]

This case was mentioned twice in this month's PC Gamer mag, which is more type then they've ever gotten in the past. Then the back cover has a nice big ad for DDO! :rolleyes: