Carter-Madhu

Right. Just so everyone knows, the Answer to a Complaint is almost a pro-forma document. It comes very, very early in the litigation - typically just a month or two after the Complaint is filed - and so it's based on no discovery, no investigation. In fact, discovery typically can't begin until after the complaint is filed. So it's typical to respond to nearly every allegation (every fact set forth in the complaint) with "we don't have sufficient information".

You are required to respond to every fact set forth in the complaint. You have to "admit" things you know to be true, and you are free to deny everything else. And of course, you have to find a way to deny at least one of the facts that makes up an essential element of each claim against you - if you admit all of those, you admit liability.

Any fact you "admit" cannot be litigated later in the case, so litigators parse the complaint very carefully and look for subjective characterizations, implied legal conclusions, or other embellishments in the complaint that they can hang a denial or an "insufficient information" response on. Sometimes, to a non-legal reader, this can look very picayune. But it's just a standard part of submitting an answer.

For example, Munch and Stroker's complaint was very "talky" - it didn't merely set forth the minimum facts needed to state a cause of action, but it included some narrative and past history of the parties. There are lots of reasons to write a complaint this way - it's good for raising public interest, for example, which is of value in a class action suit - but it also gives LL a lot of ways they can avoid admitting at this stage what might seem like basic facts if they were set forth without the adjectives or without the aspects personal to Munch or Stroker.


ETA: the following two paragraphs are brain-fart, and to the extent there is a point to them that point is unclear. Please ignore them.

Finally, I'll add that the filing of an Answer is already interesting, independently of what it says - it means that LL has waived its right to file what's called a "motion for failure to state a claim" - this is a motion that basically says "even if all the facts in the complaint are true, we are not legally liable." It's the motion I'd file if you sued me for forgetting your birthday - I'd say to the court, "so what - even if I did forget her birthday, there's no legal basis for relief."

By not filing this kind of motion (called a Rule 12(b)(6) motion for short) LL is sort of implicitly admitting that there might be a reading of the facts on which it is legally liable. LL will have other opportunities to have the case dismissed later, but those will be based at least partially on facts in evidence developed through discovery - not on the face of the complaint itself.

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Persephone Milk

Thank you so much for that Carter. You are a wonderful communicator and have made this response much more understandable.

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bladyblue

Thank you for breaking this down like this. The scary part about this deal these big content creators went into with LL is that the outcome will only benefit big content creators. Smaller guys just trying to make enough to pay tier and buy gas for their car will be relegated out of existance.

This purposely gives LL a out on some issues and allow for them to admit what best serves their goals of this 'Certified Content Creator' program. One hand washes the other.

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Carter-Madhu

I really can't agree with your premise that there is a conspiracy between LL and the plaintiffs here, and I don't agree the narrative complaint provides any evidence for any such a conspiracy.

I myself have drafted narrative complaints, and there are a whole host of reasons to do so, none of which involve giving the other side an "out". Telling a cogent story to garner sympathy or public attention is one reason for writing a narrative complaint. Grabbing the judge's or clerk's attention early in the case is another. Giving the other side a preview of the kinds of arguments you plan to make down the road is yet another - there are sometimes strategic reasons you'd want to do this.

The fact that it gives the other side opportunity to base denials on subjective characterizations of facts is neither here nor there. As I tried to make clear in my original post, it's typical to deny everything you can in an Answer, and LL would have tried to do so no matter how minimal the complaint was, because doing otherwise would have meant admitting liability and foregoing their opportunity to litigate the factual and legal questions at stake.

It's standard operating procedure in litigation, not evidence of any kind of conspiracy.

Trout Recreant

The only thing you are absolutely required to do is plead the most basic elements of the case in the complaint. I almost never do this, and I draft a LOT of Complaints. Also, I answer a lot of them and I try extremely hard not to admit anything other than what I have to, or what benefits my clients. For example, most complaints start with a jurisdiction and venue section. Jurisdiction is appropriate in this court, and venue in this location because... I usually want to admit that unless it's some venue on the other side of the mountains or something. Might as well keep it close to home where I'm used to the procedures and don't have to charge my clients to drive all over the place.

As for the substantive pleadings, those are almost always denied to whatever extent possible. If we don't know, then we must deny until we do know, so you get phrases like "The Defendants do not have sufficient basis to either admit or deny, therefore the Defendants deny the allegations in Paragraph X of the Plaintiff's Complaint" If you don't do that, you have admitted it.

Don't get to tied up in what the Answer says. It sounds like an important document, but in reality it isn't too important.

Also, with regards to 12(b)(6). Rule 12(b)(6) allows for the dismissal of a Complaint for failure to state a claim upon which relief may be granted. It has nothing to do with the merits of the case. Every claim has elements. If you fail to claim one in your complaint, they can bring a 12(b)(6) motion. What happens is either the judge orders you to amend your complaint to state a claim, or dismisses with leave to refile. It's a delay tactic, not a game-ender.

Here's an example:

1) Blady had a duty to me to act with reasonable care
2) Blady breached her duty by not acting with reasonable care and she ran me over with her car
3) Blady's breach of her duty caused me significant damage
4) The damage caused by Blady's breach of the duty is broken bones, tire tread marks, fear of streets and loss of respect for the automaking industry ( )

There. Duty, breach, causation and damage. The elements of a negligence claim. That complaint would not be thrown out on a 12(b)(6) motion, although it would need to be much more fleshed out than that. The facts of the case, such as, I have never even met Blady, she never ran me over with a car, caused me harm, nor do I have no damages since nothing happened, are not at play. A CR11 motion is more likely, along with some fraudulent filing charges, potential perjury charges, etc... but 12(b)(6) is not an issue.

You're talking about an interpretation of fairly technical rules. LL may not even have waived it's right to bring a 12(b)(6) motion. I doubt it will, though, as it would be a waste of time. Don't read into that any admission on LL's part that there is merit to the claim. Note also that I am not commenting on whether there is merit to the claim. I'm just stating that the lack of a 12(b)(6) motion means nothing here.

Trout Recreant

Actually, I should have also said that I was clarifying the 12(b)(6) technicality for the group reading this. It sounded a little patronizing in retrospect, and I apologize to Carter for that. She obviously knew all that, and it wasn't directed at her. Actually, to anyone who found it patronizing, I apologize. I love the technicalities of the CRs and I tend to go over the top a little.

Carter-Madhu

You're right that filing an answer doesn't waive Rule 12(b)(6); that was a brain-fart and I shouldn't have even brought it up. Anyway I didn't mean to suggest that not bringing one was an admission of merit; just that it might suggest the claim isn't so completely out there as to be not even cognizable on its face. But as I said I shouldn't have raised it at all. I've edited my post not to delete them, but to indicate that they should be ignored.

I don't agree with you that a Rule 11 motion is likely, or any kind of allegation of fraud or perjury. What are you basing that on?

Cindy Claveau

Where do you come up with that conclusion?

If the suit forces LL to tighten the way they enforce IP infringement, EVERYBODY who creates content in SL benefits. Indirectly, everybody who is a virtual consumer will also benefit because there will be less motivation for the talented, productive creators to pack up their bags and leave - and more motivation for new creators to jump in and start.

Those are ideal outcomes, of course, but I'd say there's a higher chance of either/both of those happening that your scenario of the little people being "relegated out of existence".

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bladyblue

Understood. But I believe otherwise. I only see large, well established content providers in this action and never saw anything inviting others to become involved. But now the one that filed the claim is advertising it everywhere.

LL admitting to some parts of the complaint immediately gurantees that the ones that filed the complaint will get some sort of releif. Sort of paying a guaranteed consulting fee to them for getting this case in front of a judge.

And I am not sure about this: but if any others attempted to file a similar case they would probably be directed to join the class action case already filed. So LL has complete control.

And I guess this an OK way to go about this. If LL felt threatened they could make this so convoluted it could drag on forever. But as I stated it is a shame the smaller content provider will be no more in Second Life.

Trout Recreant

I meant that to refer to my example where I was alleging that Blady ran me over with a car when she's never been anywhere near me and we've never met. I was just saying that 12(b)(6) wouldn't work if I actually stated a claim, but if it was totally factually bogus like that, then there were lots of alternative options to penalize me in the rules.

eku Zhong

Carter, Trout......
Rule 667.0923456 (XXX)(23.50019)

you guys sound so smexxy when you talk like that

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Arilynn

The complaint asks for class certification to create a class of similarly situated plaintiffs. This is inviting others to be involved without a restriction to only large, well-established content creators.

Trout Recreant

Don't even get me started on the ER's. I love them. They give me the ability to stand up in court and yell "Objection!" then pound my fist and hop up and down and wave my arms while railing on about the sanctity of the Best Evidence Rule or the Ancient Documents exception to Hearsay or some other such nonsense.

It's really a lot of fun.

Edit: I had a law professor who was basically teaching because he was to ancient to make it up the courthouse steps any more. He had to be in his late 80's. Really a funny guy. He always said that when you fall asleep in trial, the first thing you should do when you wake up is shout "OBJECTION" even if you have no objection, because it gives you a couple seconds to figure out what you missed and it screws up the other side. I have never, ever fallen asleep in a trial, and I'm pretty sure he was kidding, but the thought of him doing that still cracks me up.

Brenda Connolly

A little avatar told her.

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Lordfly Digeridoo

Really smart lawyers in our community make me a happy person.

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Lordfly Digeridoo

More legal observations, less LOLCATS!

Gigs

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MoxZ Mokeev

My New DESKTOP!

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Wipe your mouth, there's still a tiny bit of bullshit around your lips.

MoxZ Mokeev

I want to see the Complaint. Anyone have a link to it if it's posted online? I really need to fill in the gaps.

Arilynn

Here's what Perse originally linked: Complaint

Arilynn

You've said this before, and it is wrong. Munch and Stroker requested that a class be certified. Simply filing a request for class certification doesn't create a class, so one does not yet exist, as far as I know. If the judge agrees to create a class (and it is up to the judge, not LL), in all likelihood other plaintiffs will have the option to join the class or pursue their own cases. They just won't be able to do both.

Gigs

I'm pretty sure that being able to opt-out of the class is required. Every class action notice I've ever gotten has had the option. (and I've gotten dozens)

Argent Stonecutter

I'm pretty sure the DMCA does not refer to "DRM" but to "technical measures". Whether something is or is not DRM is, legally, a red herring.

Arilynn

It is my understanding that, except in rare circumstances, one is able to opt out, usually within a deadline imposed by the court. Maybe Trout, C-M, or Sooz has more info.

Sooz Pascale

I was going to write one of my long legal treatises on this but early on Cindy and Arilynn pretty much figured it out and Carter's and Trout's explanations need no further embelishment. They were spot on. Frankly I am a bit surprised that LL did not file a 12(b) motion, I was sort of expecting it,, mainly for delay purposes and to make the plaintiff's waste time on the opposition.

The truly interesting stuff is what is called "discovery" and we will not be privy to any of that as members of the general public unless that information is made available by one side or another. There are traps for the unwary here too, which would be fun to obeserve. Some of LL's PR puffery could, concievably, come back to haunt them.

Sooz

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