The case over FOOL was already supposed to be over by now, having started December 12th and estimated to last two and a half days (by Interplay). Still, while we're waiting on word what the ruling actually is, a few more documents have made their way to us from the trial. This is mostly old news, but let's go over it again...
First are exhibits 36 and 38, which are the evidence Interplay submitted to prove they fulfilled the financing requirement of $30 million USD. 36 is a production agreement between the Interactive Game Group and Interplay for the production of an unnamed game whose costs "do not exceed $15.0 million and are not less than $0.5 million". 38 is the development agreement with Masthead for the production of "Project: V13" on the PC platforms, the tasks of Masthead including programming, art and design, with Interplay handling the concept art, the majority of design and producing for project oversight, audio broken up into music/voice over (Interplay) and sound effects (Masthead) and cinematics into storyboarding/post-production (Interplay) and modeling/rendering/animation/special effects (Masthead). It also offers details on the royalties but cites no numbers on Interplay's claim that Masthead's side of the bargain "represents" $20 million for the minimum financing agreement.
The outline of Bethesda's claims once again goes on about Interplay not having the right to use any Fallout copyright material except the name Fallout, and I think it bizarre that they keep pushing this angle. That said, Bethesda also claims Interplay did not fulfill one of the requirement of the Asset Purchase Agreement, which would be a breach of contract if true, specifically that Interplay did not deliver "all tangible embodiments" of the purchased IP.<blockquote>Interplay breached Section 2.5 by failing to deliver to Bethesda all tangible embodiments of the Fallout copyrighted works. As will be shown at trial, evidence establishing Interplay’s breach of contract includes, but is not limited to, purported design documents produced by Interplay in this case.</blockquote>No comment there since I have no details on the claim. More interesting, Bethesda offers a stack of evidence that Interplay did not fulfill the minimum financing requirement, and rebuts Interplay's claim on I2g's financing as Frederic Chesnais (owner, founder and sole employee of I2G) has testified that "there is no binding agreement between Interplay and I2G to provide financing to Interplay for the Fallout MMOG" and also that I2G "considered providing no more than five or six million dollars of financing to Interplay for the Fallout MMOG". As for Masthead's side of the deal, Bethesda points out the court ruled that Interplay "was precluded from offering any Masthead employees as witnesses at trial" or "call any Interplay witnesses to testify about any of the work purportedly done by Masthead". The reason being:<blockquote>THE COURT: . . . you [Interplay] are not calling any Masthead folks because you have not given the names in discovery, you did not do it timely in response to interrogatories that were sufficiently br[oad] to have required the identity of anybody at Masthead who has knowledge of or participated in the full scale development.
(...)
MR. GERSH: Your Honor, that is the Masthead. I am talking about the Interplay people prior to April of 2009.
THE COURT: You can talk about what they did themselves not what anybody at Masthead did.</blockquote>Taking the above into account, there is pretty much no chance Interplay will win this case on the merits of having fulfilled the contract stipulations laid out by the license back agreement.
That said, Interplay's claims are taking another angle entirely. It is using Bethesda's rather ridiculous Fallout in name only claim to expound that there was no "meeting of minds" on the terms of the parties' agreement, which by Delaware law would make the contract nul and void (Bethesda states this lacks merit because the written and signed contract is in itself conclusive evidence of mutual assent).
Specifically:<blockquote>Specific language intrinsic to the TLA objectively supports Interplay's reasonable interpretation. Yet BSW contends the same language shows that it intended something entirely different: that Interplay's Fallout MMOG should be just a word on a box.
(...)
Delaware law provides that the TLA is void and unenforceable if the Court cannot objectively determine what rights were conveyed under the TLA. If the TLA is void, the APA also is void and should be rescinded because the TLA is a material term of the APA. If the TLA itself is too indefinite to bind the parties, the APA suffers from the same infirmities because it incorporates the TLA as a material term, as if it were set forth in full within the APA. The TLA, because it is invalid, also constitutes an unfulfilled condition precedent to Interplay's sale of the intellectual property.</blockquote>Interplay points out section 3.4 of the TLA clearly indicates Interplay is given the right to use Fallout-related concepts by the specification that such concepts may not be carried over to a non-Fallout MMO. However, all this hinges on - as the file states - the TLA being invalid "if the Court cannot determine what Interplay was licensed to do." I see no reason for the Court not to simply throw out Bethesda's Fallout-in-name-only claim, and the claim is the only real basis of Interplay's defense here.
Also as a side-note, Bethesda has "dropped as affirmative claims the packaging arguments and the marketing arguments concerning the earlier Fallout games", as in the argument concerning the Fallout Trilogy, though it is not immediately clear if Interplay will still use them as arguments of bad faith.
First are exhibits 36 and 38, which are the evidence Interplay submitted to prove they fulfilled the financing requirement of $30 million USD. 36 is a production agreement between the Interactive Game Group and Interplay for the production of an unnamed game whose costs "do not exceed $15.0 million and are not less than $0.5 million". 38 is the development agreement with Masthead for the production of "Project: V13" on the PC platforms, the tasks of Masthead including programming, art and design, with Interplay handling the concept art, the majority of design and producing for project oversight, audio broken up into music/voice over (Interplay) and sound effects (Masthead) and cinematics into storyboarding/post-production (Interplay) and modeling/rendering/animation/special effects (Masthead). It also offers details on the royalties but cites no numbers on Interplay's claim that Masthead's side of the bargain "represents" $20 million for the minimum financing agreement.
The outline of Bethesda's claims once again goes on about Interplay not having the right to use any Fallout copyright material except the name Fallout, and I think it bizarre that they keep pushing this angle. That said, Bethesda also claims Interplay did not fulfill one of the requirement of the Asset Purchase Agreement, which would be a breach of contract if true, specifically that Interplay did not deliver "all tangible embodiments" of the purchased IP.<blockquote>Interplay breached Section 2.5 by failing to deliver to Bethesda all tangible embodiments of the Fallout copyrighted works. As will be shown at trial, evidence establishing Interplay’s breach of contract includes, but is not limited to, purported design documents produced by Interplay in this case.</blockquote>No comment there since I have no details on the claim. More interesting, Bethesda offers a stack of evidence that Interplay did not fulfill the minimum financing requirement, and rebuts Interplay's claim on I2g's financing as Frederic Chesnais (owner, founder and sole employee of I2G) has testified that "there is no binding agreement between Interplay and I2G to provide financing to Interplay for the Fallout MMOG" and also that I2G "considered providing no more than five or six million dollars of financing to Interplay for the Fallout MMOG". As for Masthead's side of the deal, Bethesda points out the court ruled that Interplay "was precluded from offering any Masthead employees as witnesses at trial" or "call any Interplay witnesses to testify about any of the work purportedly done by Masthead". The reason being:<blockquote>THE COURT: . . . you [Interplay] are not calling any Masthead folks because you have not given the names in discovery, you did not do it timely in response to interrogatories that were sufficiently br[oad] to have required the identity of anybody at Masthead who has knowledge of or participated in the full scale development.
(...)
MR. GERSH: Your Honor, that is the Masthead. I am talking about the Interplay people prior to April of 2009.
THE COURT: You can talk about what they did themselves not what anybody at Masthead did.</blockquote>Taking the above into account, there is pretty much no chance Interplay will win this case on the merits of having fulfilled the contract stipulations laid out by the license back agreement.
That said, Interplay's claims are taking another angle entirely. It is using Bethesda's rather ridiculous Fallout in name only claim to expound that there was no "meeting of minds" on the terms of the parties' agreement, which by Delaware law would make the contract nul and void (Bethesda states this lacks merit because the written and signed contract is in itself conclusive evidence of mutual assent).
Specifically:<blockquote>Specific language intrinsic to the TLA objectively supports Interplay's reasonable interpretation. Yet BSW contends the same language shows that it intended something entirely different: that Interplay's Fallout MMOG should be just a word on a box.
(...)
Delaware law provides that the TLA is void and unenforceable if the Court cannot objectively determine what rights were conveyed under the TLA. If the TLA is void, the APA also is void and should be rescinded because the TLA is a material term of the APA. If the TLA itself is too indefinite to bind the parties, the APA suffers from the same infirmities because it incorporates the TLA as a material term, as if it were set forth in full within the APA. The TLA, because it is invalid, also constitutes an unfulfilled condition precedent to Interplay's sale of the intellectual property.</blockquote>Interplay points out section 3.4 of the TLA clearly indicates Interplay is given the right to use Fallout-related concepts by the specification that such concepts may not be carried over to a non-Fallout MMO. However, all this hinges on - as the file states - the TLA being invalid "if the Court cannot determine what Interplay was licensed to do." I see no reason for the Court not to simply throw out Bethesda's Fallout-in-name-only claim, and the claim is the only real basis of Interplay's defense here.
Also as a side-note, Bethesda has "dropped as affirmative claims the packaging arguments and the marketing arguments concerning the earlier Fallout games", as in the argument concerning the Fallout Trilogy, though it is not immediately clear if Interplay will still use them as arguments of bad faith.
