No more Jury trial, Interplay going for the jugular

Post by **King of Creation** » Thu Nov 10, 2011 3:39 pm

[ Company -> Update ] - More info on <a href="http://fallout.wikia.com/wiki/Bethesda Softworks">Company: Bethesda Softworks</a>

 
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There's a new twist to the Bethesda vs. Interplay Fallout: Online court case. It seems that the trial by jury scheduled for approximately 4 weeks from now will no longer be a trial by jury - it will rather be decided by the court. From one of the latest batch of court documents:
<blockquote>
XIV. Waiver of Jury Trial
The parties agree and consent to a trial by the Court of all issues in dispute in this case in
accordance with the jury trial waiver set forth in Section 7.7 of the APA.
</blockquote>
In the original<a href="http://fallout.wikia.com/wiki/Asset_Purchase_Agreement"> APA</a>, it seems, both Interplay and Bethesda agreed that any legal matters would be decided by the court and not by a jury.
<blockquote>
7.7 WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
</blockquote>
Bethesda was the company which asked for a jury trial first, and Interplay later asked for the same thing. It is still unclear which company decided to use this clause of the APA (or which company forgot about it and then later remembered).
 
The really interesting part, however, comes in Section III of the new document:
A. Interplay proposes to prove the following facts in support of its counter-claims:
(1) The Asset Purchase Agreement signed between Interplay and Bethesda on April 4, 2007, (APA) is void <a href="http://en.wikipedia.org/wiki/Ab_initio">ab initio </a>because there was no "meeting of the minds" with respect to the rights granted between the parties;
It seems Interplay will be going for the jugular here. I've inserted a link into the "ab initio" part so you can get a better idea of the concept, but it looks like Interplay will try and nullify the entire Asset Purchase Agreement. I'm no lawyer, but this would most likely mean all Fallout rights would revert to Interplay and it would legally be as if the the APA never existed. The ramifications for this could be huge, especially given the poor performance of Bethesda's attorneys against Interplay's Mr. Gersh. If the APA is nullified, then the TLA would kick back in. Bethesda could make Fallout 3, 4, 5, and expansions, but they would have to give 12% royalties to Interplay on Fallout 3, New Vegas, Fallout 5 and all expansions plus interest. Interplay would own Fallout, however.
As always, DAC will provide more info as it becomes available.

Ed of Vault 13 · Post by **Ed of Vault 13** » Thu Nov 10, 2011 3:55 pm

I know I might get chewed out a bit here but I'll say this...

While at first the valiant fight that Interplay was putting up in this case was amusing and sort of an "underdog" story in the making, quite honestly I'd never thought it would have come this far.

While I'm a huge fan of the series and especially the Interplay "hey days", I have several concerns about this franchise reverting back to a company that is in a sense poorer than myself.

While I agree to some extent that Beth's foray into the Fallout universe wasn't perfect, in fact far off, I still realized the potential of the franchise finally getting some attention and the money backing it, that it finally deserved. FNV was such an improvement and if that formula is followed - great things can come. Especially if they let Tim Cain and Obsidian get a hand on it.

But with the looming aspect that the franchise can indeed revert back to this shell of a company. It's not going to be all the radiated champagne dreams we thought we'd have. There is no way possibly that they can indeed finish and in hindsight properly support Fallout Online, let alone carry on the series with any form of quality.

This is a mixed bag for me here, outcome isn't looking good in my opinion.

The-Master · Post by **The-Master** » Thu Nov 10, 2011 4:00 pm

If Interplay wins Bethesda would be required to pay 12% of revenue (plus interest) on over 600-700 million of sales of fallout 3, 4 (aka new vegas) , fallout 5 and all the expansions. Thats quite a bit of cash to add to the 35 million in funding Fallout Online already has. Then add court ordered damages into the mix. No if i were Bethesda I would realize that my plan to simply sue Interplay into the ground has clearly not worked and I have in fact cornered an animal into a corner and poked it with a stick.

The smart thing for Bethesda to do here is settle rather than risk paying out the above and losing Fallout. Yet if they want to roll the dice so be it. Either way its very entertaining.

Brother None · Post by **Brother None** » Thu Nov 10, 2011 4:21 pm

Ed of Vault 13 wrote:While at first the valiant fight that Interplay was putting up in this case was amusing and sort of an "underdog" story in the making, quite honestly I'd never thought it would have come this far.

How far is that? It's only just now going to court. Interplay claiming Bethesda acting in bad faith should surprise no one, and I've never heard anyone except Interplay stockholders suggest the license reverting is actually likely to happen.

I'd be interested if Gamasutra or a similar site with experience and resources got hold of legal commentary on this case.

The-Master · Post by **The-Master** » Thu Nov 10, 2011 4:24 pm

Likely or not its what the Interplay lawyers are trying to do.
IF they can get the 2nd contract null and void its what would happen but anyway it sure is cheap entertainment. So grab a beer, pop some popcorn and watch the show unfold.

Brother None · Post by **Brother None** » Thu Nov 10, 2011 4:30 pm

I know that's how it would happen, dude, I'm saying that would at first glance seem unlikely to happen. That's a pretty drastic reversal to make and it is pretty obvious Interplay hasn't lived up to its end of the contract either. Jeffrey Gersh has been outplaying Bethesda's lawyers all along and that's impressive, but let's not go overboard here.

I'd love to hear expert analysis of the full case from a neutral source. The weak thing about KoC's interpretation is it is just relaying what Interplay stockholders interpret it as, and this acts as a sole source on this stuff, and a lot of gaming sites will just copy KoC's interpretation without knowing they come from an Interplay stockholder. Much like the whole "Bethesda trying to prevent Interplay from producing evidence" headline was not really correct. Should be good for Interplay stock though

Cimmerian Nights · Post by **Cimmerian Nights** » Thu Nov 10, 2011 5:05 pm

BN just trying to justify poaching all your scoops.

Brother None · Post by **Brother None** » Thu Nov 10, 2011 5:20 pm

Don't need to justify, they're nice scoops and I've been posting them as we get them with links and credits on NMA and GB. I even just approved the N4G story! I'm just saying, if I were KoC I'd be a bit more careful about taking a stockholder's interpretation at face value, they obviously are a lot more invested in the representation of fact here than we are.

The-Master · Post by **The-Master** » Thu Nov 10, 2011 5:50 pm

"I'd love to hear expert analysis of the full case from a neutral source."

that would be nice.

Ed of Vault 13 · Post by **Ed of Vault 13** » Thu Nov 10, 2011 10:55 pm

Brother None wrote:
How far is that? It's only just now going to court. Interplay claiming Bethesda acting in bad faith should surprise no one, and I've never heard anyone except Interplay stockholders suggest the license reverting is actually likely to happen.

Well obviously I'm speaking about most of the preliminary stuff, under the assumption that people here at least would have understand what I meant.

Whether it is a snowball's chance in Hell or not and blatantly interpretative, I'm merely over expressing for the sake of my post not deciphering the legalities.

popscythe · Post by **popscythe** » Sun Nov 13, 2011 3:20 am

The problem with this being that only the fact that Bethesda products are fucking garbage guarantees that Interplay won't take another comparatively massive shit into Fallout's coffin the moment they get access to the corpse.

I mean nobody can outshit Beth, but Interplay in our currently Interesting Times might well try.

Post by **Retlaw83** » Sun Nov 13, 2011 4:17 am

If Interplay gets it, we can look forward to Fallout Enforcer II in a misguided attempt to cash in on the console market, oblivious to the fact Bethesda showed them that blueprint.

The smartest thing Interplay could do to the license is give Obsidian full reign with it. They won't.

jetbaby · Post by **jetbaby** » Sun Nov 13, 2011 9:54 am

Whoever wins, anyone who was introduced to Fallout before BOTHERHOOD OF STELE will be disappointed.

ehue.

Cimmerian Nights · Post by **Cimmerian Nights** » Sun Nov 13, 2011 2:18 pm

Interplay is more likely to collapse under the weight of their own incompetence, which would hopefully bury the license for good, and save us all from sequels by either one of those fuckwits.

Post by **Retlaw83** » Sun Nov 13, 2011 2:23 pm

Herve would sell the license to someone else before Interplay collapsed. Again.

After Bethesda had huge commercial and critical success with it, the Fallout name is worth big money now.