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No. 218422
http://www.ca9.uscourts.gov/media/view.php?pk_id=0000011455 The arguments put before the circuit court (the one that just denied Penders' appeal)
Mildly interesting, although I had to play it at over double speed because no way was I sitting through all that at normal speed.
Long story short, Penders and his old lawyer filed suit against SEGA of America and Electronic Arts Inc., and Judge Wright threw it out because the case with Archie hadn't been resolved. But Judge Wright made no sense, and seemed to be confused about the whole Archie=/=SEGA thing. And thought there was a separate State case going on (nope, a Federal one). Four days after that, Penders' old lawyer filed the same thing, which initially was going to be seen by a different judge, then someone noticed the "similarities" and gave back to Judge Wright, who went "wtf, this again?!? He can file another suit AFTER the comic case is settled, it's not like waiting will hurt him" and threw it out a second time, this time with threats of penalties if it was filed again before the Archie case was settled. Then the Archie case was settled. And this is the appeal for that second thrown out suit, with Penders' new lawyer. And if basically went down like this...
Three judge appellate panel: "so... your client's first lawyer... when he filed that second suit, why didn't he attach a note/affidavit saying that if he waited until after the Archie case was decided, all the money from the games' sales would be outside the statute of limitations for copyright cases? Because that's something that's not mentioned in the suit. It's new information not found in the suit. You can't introduce new information like that in the appeal. We can't take that into consideration because it wasn't mentioned in the lower courts. That's important information. WE get it, when a new game comes out it's like a slot machine spewing out gold, it only does it for a short time. The pot fills up with gold fast. And then sales drop down to zero. So filing a claim too late puts all the gold out of reach, outside the statute of limitations. But the old lawyer NEEDED to say that, and he didn't. Why not?" Ken's New Lawyer: "Well it was kinda... um... implied?" Judges: "...No." Ken's New Lawyer: "Well there were a lot of errors in Judge Wright's statement when the first suit was thrown out, so the old lawyer thought a whole new suit was okay since the last ruling was so wrong, and when the second suit was thrown out an appeal was filed, which is SORT OF like doing something new..." Judges: "No. There were mistakes in what Wright said, but they didn't affect the reason either suit was thrown out. The only thing that would affect it was information about the pot of gold being outside of the statute of limitations." Ken's New Lawyer: "Yeah, I dunno." Judges: "That might be malpractice. Really shitty lawyering." SEGA lawyer: "If I may? Either way, he filed so late that most of the gold would have been out of the statute of limitations anyway. He might've been able to get a thimble of gold, not a pot." Judges: "What seriously? Ouch. We don't really do... video game law very much." SEGA lawyer: "I love video games and video game law. And you're right, his old lawyer didn't make that point about the damages, could have, and should have. There were a lot of things he could've done differently. He did some weird things. And this might come back to bite me in the ass, but here's some other things his lawyer could do now. He has options even if you throw this out. But no matter what, he filed on the late side."
tldr it's a recording of Ken's new lawyer, SEGA's lawyer, and three appellate judges all saying "Man, Ken's old lawyer was an IDIOT."
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