Interplay has filed another set of documents in opposition to Bethesda's claims, and DAC has them! This set of documents is very heavy on the legal terminology and cites A LOT of court precedence to back up Interplay's claims. I've read through the document and transcribed some of the interesting sections. First off is Interplay's introduction in the document:
The Motion seeks the dismissal with prejudice of only three of the six counts alleged in the Counterclaim, those being the claims for: (a) Breach of the Implied Covenant of Good Faith and Fair Dealing (Count IV); Rescission (Count V); and, (c) Tortuous Interference with Prospective Economic Advantage (Count VI). Bethesda contends that these Counts fail to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).
The Counterclaim also includes claims for relief for: (a) Breach of Contract of the Asset Purchase Agreement dated April 4, 2007 (the "APA," Count I); (b) Breach of Contract of the Trademark License Agreement dated April 4, 2007 (the "TLA," Count II); and, (c) Declatory Relief of the parties rights under the APA and TLA (Count III). The Motion does not seek to dismiss these Counts.
Next up are the main points of Interplay's argument in this doc:
Interplay has properly pled facts to support its claim for breach of the implied covenant of good faith and fair dealing (count iv)
Interplay has properly pled facts to support its claim for tortious interference with prospective economic advantage (count vi)
Interplay has properly pled facts to support its claim for rescission (count v)
While those are the main ideas, Interplay also supplies a lot of background information and cites previous court cases to back up their claims. Suffice it to say that Interplay's argument is scarily logical and well thought out.
There is also an interesting part of the document where Interplay argues about the Glutton Creeper deal:
The APA contains a scedule of pre-existing outbound licenses of the Fallout intellectual property entered into by Interplay. Bethesda received and reviewed the schedule as part of its due diligence before executing the APA. The APA provides that if Bethesda did not approve of the outbound licenses associated with the Fallout intellectual property, Bethesda could refuse to execute the APA without consequence.
One of the outbound licenses was to Glutton Creeper Games for the creation of a Fallout pen-and-paper role playing game based on the Pre-Existing Fallout titles. Bethesda did not object to the Glutton Creeper Games license and proceeded to execute the APA even with actual knowledge of its existence. Thus, Bethesda accepted the Glutton Creeper Games license at the time it execute the APA. Whether the Glutton Creeper Games license may have inadvertently violated the previous Exclusive Licensing Agreement between Interplay and Bethesda is reelevant because the APA superceded and replaced the Exclusive Licensing Agreement in its entirety.
So there you have it. The court case should be coming up pretty soon, barring any more delays, so we'll keep you posted!