Evans et al: file and counter-file

On July 10th, lawyers representing Linden Research and Philip Rosedale filed a Motion to Dismiss in the ongoing case filed on behalf of Carl Evans et al. Rather than deal with the specific claims made by the plaintiffs relating to the “sale” of virtual land, the Motion focuses on why the case should not be heard in the forum of the District Court of Eastern Pennsylvania. In doing so, the lay observer cannot help but wonder if Linden Research haven’t managed to play somewhat into Archinaco’s hands on the matter.

The Linden Research Motion to Dismiss hinges on four points:

  • Of the four named plantiffs, only one – Evans himself – has any connection to the District  in which the papers have been filed, and it is therefore an inappropriate venue
  • The plaintiffs have accused Linden Research of breaking a number of Californian state laws, therefore the more appropriate venue to hear the case is in California, wherein the Defendants reside
  • Evans has, on many, many, occasions not only fully accepted Linden Research’s Terms of Service (which includes matters of arbitrary and legal recourse), he has done so on many occasions using multiple accounts
  • The the plaintiffs have wrongly asserted prior point of law, vis Judge Robreno’s holdings in the matter of Bragg versus Linden Research.

Of these, the first claim has some merit in part: with two of the plaintiffs residing in Florida, why not file there? Obviously, there is a degree of  game play in force here: in 2007, during the Bragg vs. Linden Lab case, Robreno issued holdings that are broadly sympathetic towards the Plaintiffs. As such, Jason Archinaco, the Plaintiffs Counsel, has played towards getting the case heard in the same Court where Robreno resides – if not before Robreno himself.

Archinaco’s rebuttal of this point (which can be found here, as a ZIP file containing an amended original filing), would appear somewhat weak, suggesting that while Evans is *currently* the only plaintiff residing in the Court’s jurisdiction, discovery *may* reveal “hundreds or even thousands” of other Plaintiffs within the same District. However, this would appear to be the only weakness in his overall rebuttal.

LL’s argument for Dismissal on the basis of the Plaintiffs citing LL to have broken a number of Californian State laws would appear to be very shaky.  While the Motion reflects a similar – and successful – argument put forth by the Linden Research legal Counsel during the Bragg case in 2007, the situation today is somewhat different:

  • In the Bragg case, papers for the Plaintiff were initially filed at State level (West Chester, Penn). However, as they referenced Californian laws, LL  successfully argued that the case should be removed to Federal jurisdiction. The case was duly moved to the United States District Court for Eastern Pennsylvania – a Federal Court, where it came before Judge Eduardo Robreno.
  • In this case, the papers have been filed directly at Federal level, with the same Court Linden Research found acceptable when hearing the Bragg case in 2007. As such, there could be an argument to say that if the Court was good enough for them in 2007, it should be good enough for them now.

The last two reasons in LL’s Motion are altogether more boggling to the lay mind because both sides use almost the same arguments, with the logic reversed, as to why the case should / should not be dismissed.

LL point out, Evans et al not only signed up to the ToS Robreno originally cited as unconscionable, they signed-up to later versions of the ToS that were substantially revised after the Bragg episode, once their original accounts had been suspended. Therefore, it might be argued that a) the changes made to the ToS invalidate the Plaintiff’s reliance on the Bragg holdings b) the Plaintiffs knew full well what they were signing-up to in setting up new accounts to access Second Life.

However, as Jason Archinaco, on behalf of the Plaintiffs responds, while the ToS has changed over the years since Bragg, much of the language which Robreno found unconscionable at the time, remains very much in evidence in the ToS. He further implies that the ToS remains a Contract of Adhesion because one simply has no choice by to agree to its unilateral nature in order to use Second Life.

Things get even more confusing to the lay eye as both sides also use the fact that Carl Evans (who is individually singled-out in the LL team’s Motion in what appears to be – as Archinaco points out – nothing less than an attempt to undermine his personal credibility), has, over time, created no fewer than 72 accounts for use in Second Life. LL use this as evidence that Evans (and the others) willingly accepted the ToS over an extended period of time; Archinaco arguing that by their own admission, Linden Lab were forcing the Plaintiffs to adhere to a ToS previously found to be unconscionable and void…

Beyond this, both sides also produce impressive evidence relating to Forum Selection Clauses in contracts (the clause that gives LL the “right” to declare that those entering into dispute with LL must travel to California) which muddy the water even further.

At the end of the day, the filing of a Motion to Dismiss and the counter-filing of papers in rebuttal is generally an accepted step in legal cases. As such, there is little in the overall proceedings per se that is unusual here. What is of interest, however, is that in turning the matter away from the issues of virtual land ownership and towards the question of jurisprudence, Linden Lab have trod the same path as they did in Bragg. The difference here is that this is possibly that they have done precisely what Archinaco had hoped they would.

In their own Motion, the Lab’s legal team has brought the entire subject of the fairness or otherwise of the ToS and matters relating to Forum Selection Criteria, arbitration, and the unilateral nature of both of the latter, very much into sharper focus; this alone may yet come back and bite them rather rudely down the road.  Assuming things aren’t yet settled elsewhere, in another echo of Bragg.