California case potentially dismissed?

Looks like their legal troubles are over http://gracelaw.com/XenForo.html

If vBulletin Solutions/Internet brands doesn't look like complete scum before, they sure do now.

They still have the UK legal action to take care of.

What UK legal action?

I thought IB also had a case against them in the UK.

I don't see how they can seeing as VBSI is a us based company. If they had a case xenforo would have been breaking US copyright laws so would have to be heard in the US?

Last I saw, Jelsoft was still in existance, and are the ones with the case in the UK.

I may be mistaken, though. I don't pay attention to this anymore.

That's what I was thinking.

From the looks of things, xenforo is in the clear?

I was wondering how things were going to turn out, and I am glad that a small startup can take on a big company like internet brands and win.

At worst, what would this action achieve, a ban on sales in the US?

If they do get an XenForo sales ban in the USA, that's not good news really, not when you think they'll be getting many more sales from US than UK based people.

Today's (or yesterday's, I guess; it is now 1:26am here in California) motion from Grace + Grace (XenForo's attorneys) is an interesting one. Pamela Deitchle (The XenLawyer as her account on xenforo.com proclaims) certainly put a lot into this motion to dismiss and it's going to be interesting to see what the court has to say on this... or if Internet Brands pops out yet another amended complaint before December 19th to try and continue to drag this out (the papers indicate on that November 7th, VBSI's attorney's sought a stip to do so; whether this is granted will be interesting, considering the possible amendments they could make).

Pretty much, I think we can expect one of a couple scenarios:

• The court accepts VBSI's stipulation for a third amended complaint and grants leave to file. This would be a continuance of VBSI's delay tactics that have become the standard since they pulled back from their attempt at an injunction. If VBSI is allowed to file a third amended complaint, this motion that was filed on XenForo's side will have to be withdrawn and yet another one written on its skeleton to further address whether spaghetti VBSI opts to throw at the wall in this case. If the court permits a third amended complaint, it's not necessarily the court being dense about it, but ensuring that the procedural avenue for appeal is closed with VBSI trying to use the basis that they were not permitted to present their full case. Of course, at some point the judge may opt to basically say "If you weren't ready to file this, you shouldn't have filed it, enough's enough, we're going ahead"; we'll see (in California state court, usually if you haven't gotten your causes of action straight by the third round, you're out; not quite sure on the federal level, though).
• The court does not accept VBSI's stipulation for a third amended complaint or VBSI does not file one prior to the judge handling this motion. If this happens (it'd be a pleasant surprise), then we branch off depending on how much the judge accepts of the motion to dismiss. If he accepts none of it, all of this goes to trial; if he accepts all of it, everything gets stricken except for the claim of copyright infringement (cause of action #1), which G+G can then file a motion for summary judgment on and, unless some miracle from heaven (or hell) occurs and VBSI can actually find a snippet of code in the XenForo base that matches anything proprietary of theirs, can be easily stomped out in my opinion. The dismissal of those causes of action would also clear the names added in the second amended complaint, as Claim #1 is only applicable to Kier, Mike, Ashley, and XenForo Ltd.

I have a feeling that, after seeing this motion, Pamela has maneuvered VBSI into a prickly position by rightfully pointing out that they mentioned Steve Machol and Freddie Bingham in their second amended complaint as complicit in the alleged conspiracy, but have not added them as defendants along with the others that they did add in the second amended complaint. Up front she's requesting that an evidentiary hearing be held to determine if they should be added. Additionally, she's using this basis to ask that the entirety of the second amended complaint get thrown out since it is incomplete because of those omissions. To preempt getting their own wrists slapped, if VBSI is filing a third amended complaint, I think we should expect to see those names added to it, which is not going to play well in the court of public opinion, at the very least. If they really rush to do so, they could blow their very last bit of the court's indulgence in filing just to add those parties... and not be permitted to add anything else. If they don't rush to do so, they risk a dismissal of a lot of the case and all opportunity to really drag this out will be lost as XenForo's attorneys move in to checkmate them on the copyright claim (provided that's all that sticks).

Either way, I think we are looking at the demise of the window of opportunity for VBSI to drag this out as long as they could hope for, unless the judge is extremely indulgent when it comes to amendments. This move is also forcing VBSI to burn additional bridges I'm sure they would've been happier not burning. Big kudos to the G+G team on this one; the double bind on this is nothing short of masterful in my opinion (I also enjoy reading motions that aren't crooked scans and that I can actually use search functions on =)).

It's not about getting a ban imposed imo. It's primarily a way for them to take advantage of the legal system in all it's flaws to bleed them dry which is down right disgusting. Xenforo will always have my support regarding this when honest, hardworking people are trying to make a honest living by doing what they know and love.

I'm not a lawyer, nor a wannabe lawyer but i'm not sure they could even ban sales in the US. I could however be wrong with that assumption.

At worst, if the court is completely and utterly incompetent? VBSI is actually asking for relief in the form of the XenForo intellectual property itself, based on their allegation that work began while Kier was still with Jelsoft and that under his contract with Jelsoft, all such related work is their property.

It's draconian and not likely to fly, but it's there. Pam has addressed how stupid asking for this form of relief is in the motion very specifically as well.

Honestly, the action has several purposes, all of which can tell you a lot about IB's corporate culture. We have the harassment nature of the suit, yes; they're trying to disrupt XenForo's operations long enough and deeply enough as to attempt to render them a non-entity. But it goes deeper and more depraved than that.

Reading Kier's declaration, the window into what happened at IB is pretty damning without him even making armchair analysis about it (I, however, am not being sued here and my armchair's pretty comfy and I've had a fair bit of experience on the subjects of things such as managing software product development and in getting a small but lucrative software company out for acquisitions, so I'll happily share).

The short, TL;DR analysis? IB sucked it up and failed at their due diligence when purchasing Jelsoft and they're flailing for scapegoats to give the shareholders.

The fact that nobody from IB so much as spoke with anybody except James Limm over at Jelsoft for any substantive conversations for about a year after the acquisition is damning. When you're doing the acquisition of a small software firm, you of course want to look and ensure financial solvency and the rest of it (and if they ascertained that without speaking with Ashley either -- I haven't read anything from him so I don't know -- then they doubly done screwed this up good), but it's also recognized that what you're buying is, more than the company, the intellectual property (the software) and the intellectual capital (the future employment of the developers). A question anybody will ask when acquiring such a company is "Who is vitally necessary to the continued operation of the business?" and if you're doing it right, you make sure to secure them in a binding contract for a period as part of the acquisition papers.

The fact that IB assumed substantive progress was made on vB4 already clues me in that James Limm wasn't very forthcoming or honest when the purchase was being made and had included smoke and mirrors in the presentation of the company. Just for the record, arrogant as corporate overseers are, I don't think that Bob Brisco's threat to outsource to the Chinese was a serious one. "Outsourcing" is a term us evil corporate overlords like to hold over developers to make them "stop being lazy and get back to work" (because we all know developers can output code in seconds and just don't want to and need incentive ); if you notice, they still haven't gotten to hiring those Chinese code monkeys (although from the coherence of the current product you might not know the difference). So the outsourcing threat really was just "incentive" to try and shake something loose that wasn't there (because work on vB4 really hadn't started yet). Obviously Brisco had some 'splainin' to do to the shareholders and wanted to avoid it by magically forcing vB4 out in their preferred timeframe; personally, if I'd been the one managing it, I would've made my excuses and tried to push for 15 months; Kier's assessment was two years, he chopped it down to 18 months as a rush job, I would've countered 12 months while aiming for at most 15. 6 months was just utterly asinine and either shows the guy's a total blowhard who doesn't understand programming, or he thought Kier was holding back and had a vB4 rewrite mostly waiting in the wings, likely based on information from Limm. It's telling to note that Limm tried to talk Kier down to 9 months before they were even off the plane, so I do think some promises were made there and somebody was hoping neither side would wise up and figure it out. As it turned out, it took 14 months to get the shoddy refactor they did get operating on the premise of the 6 month push, and we all know what a gem that refactor ended up being.

The fact that things went down this way tells me their acquisitions are either (a) lazy and wholly incompetent, (b) utterly beguiled by James Limm and thus still wholly incompetent, (c) rushing the acquisition and thus wholly incompetent, (d) wholly incompetent.

But that's not how it works in corporate culture. Somebody has to take the fall for this. And of course, to everybody involved, it can't possibly be their fault; it needs to be somebody else's. They purchased Jelsoft but failed to ensure what they were purchasing (they thought they were getting the rewritten vB4, a product that had been dreamed but not committed to code yet), failed to secure the actual intellectual capital with contracts (Mike, Kier, et al. leaving should've never happened if IB had done what any sane acquirer does and made a term contract with them as part of the acquisition), and just out and out failed. Money had been paid out to purchase Jelsoft in the hopes that they'd get a golden goose and they got a rooster instead, in their view.

This case is then one big giant excusefest for the edification of the shareholders. You can see it in the various claims. The assertion that XenForo couldn't have made this product in the timeframe they claim to have is simply a matter of Brisco wanting to instead turn it around and say "see, see, they were holding back on me!", as the timeframe for XenForo to go gold from scratch was 20 months and the official "do it right" estimate on a vB rewrite was 2 years (24 months). Obviously we all know that the comparison is apples and oranges here, but that doesn't matter to CEOs and shareholders; as Brisco himself said, only developers give a damn about what's in the engine block of software in these cases (customers do too, of course, but everybody knows that customers aren't real people, they're bags of money waiting to be looted). Their use of the terminology in referring to the XF code as a "refactor" of the vB code is telling too; corporate hacks like to attach themselves to buzzwords and "refactor" was the buzzword for vB4, and it's completely not the correct term to use here.

And there you have it. Of course IB is throwing spaghetti at the wall here and hoping against hope that something sticks and they can get anything from the XenForo IP itself (bloody not likely), an injunction on sales in the U.S. (slightly more likely but still not there), or even just a monetary judgment (not that IB wants the money, but it'd probably wreck XF to have to pay a judgment on top of IB's and their own attorney's fees, and it's a grisly trophy to show the shareholders). But this is of course also coupled with their hope for a chilling effect on XenForo's sales preventing even more folks from jumping ship (look at the number of threads on XF's forum discussing people waiting for the suit to finish before transitioning; it's not a small number, but many are beginning to just not care), and trying to sap XenForo of working capital (both time and money; time spent in legal strategy is time not spent coding/developing).

And ultimately, somebody at corporate is going to fall for this, based on how this pans out in court. After all, none of this would've been a problem if they'd done their due diligence properly. Depending on how this goes will determine the quantity and quality of heads rolling for that. =)

Thanks for taking the time out to post that. very much appreciated.