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<blockquote data-quote="Snarf Zagyg" data-source="post: 8616959" data-attributes="member: 7023840"><p>Briefly (and I may do something longer on this later)-</p><p></p><p>The "Answer" doesn't really provide much; it's boilerplate.</p><p></p><p>The affirmative defenses are .... more interesting. I don't think that they are very good.</p><p></p><p>Viewing them in order-</p><p></p><p>1. Failure to state a claim. Okay, this is pled a LOT. But ... it's <u>not</u> an affirmative defense. Briefly, this has to do with "burdens." The Plaintiff has the burden to prove their case. Affirmative defenses, on the other hand, are the Defendant's burden. What they mean is that <em>even if Plaintiff proves its case, Defendant is not liable (or wholly liable) for reasons</em>. If the complaint fails to state a claim, you raise it in a motion to dismiss. Otherwise, it's always the Plaintiff's burden to state their claim.</p><p></p><p>2-5. Equitable defenses. General rule of thumb; if the first defenses you see pled are equitable defenses, it's usually a pretty weak defense. It's interesting that they just went ahead and pled them all (and also seem to have laches and waiver somewhat confused). I don't see anything in these defenses other than rote "throw something in the air and see if it sticks."</p><p></p><p>6. Lack of standing. This is a bit confusing- most people think of standing in the "federal" sense (whether a party has Article III standing). Here, the allegation seems to be that WoTC is not a proper party for the consumer laws; this may or may not be the case, but the majority rule for these laws is that companies my bring actions for deceptive and unfair competition.</p><p></p><p></p><p>What is most important, to me, is not what this responsive pleading does, but what they didn't do. From a litigation standpoint, you would normally want to get the individual with assets out of the litigation through any means possible immediately - at a minimum, at least try to file a motion to dismiss. That this was not done would normally indicate (IMO):</p><p></p><p>1. That they don't have much money to fight the litigation; or</p><p>2. That they are negotiating a settlement; or</p><p>3. That the attorneys don't know what they are doing; or</p><p>4. That the attorneys know what they are doing and realize that they can't extract him individually out of the litigation.</p><p></p><p></p><p></p><p>As always, this is only IMO.</p></blockquote><p></p>
[QUOTE="Snarf Zagyg, post: 8616959, member: 7023840"] Briefly (and I may do something longer on this later)- The "Answer" doesn't really provide much; it's boilerplate. The affirmative defenses are .... more interesting. I don't think that they are very good. Viewing them in order- 1. Failure to state a claim. Okay, this is pled a LOT. But ... it's [U]not[/U] an affirmative defense. Briefly, this has to do with "burdens." The Plaintiff has the burden to prove their case. Affirmative defenses, on the other hand, are the Defendant's burden. What they mean is that [I]even if Plaintiff proves its case, Defendant is not liable (or wholly liable) for reasons[/I]. If the complaint fails to state a claim, you raise it in a motion to dismiss. Otherwise, it's always the Plaintiff's burden to state their claim. 2-5. Equitable defenses. General rule of thumb; if the first defenses you see pled are equitable defenses, it's usually a pretty weak defense. It's interesting that they just went ahead and pled them all (and also seem to have laches and waiver somewhat confused). I don't see anything in these defenses other than rote "throw something in the air and see if it sticks." 6. Lack of standing. This is a bit confusing- most people think of standing in the "federal" sense (whether a party has Article III standing). Here, the allegation seems to be that WoTC is not a proper party for the consumer laws; this may or may not be the case, but the majority rule for these laws is that companies my bring actions for deceptive and unfair competition. What is most important, to me, is not what this responsive pleading does, but what they didn't do. From a litigation standpoint, you would normally want to get the individual with assets out of the litigation through any means possible immediately - at a minimum, at least try to file a motion to dismiss. That this was not done would normally indicate (IMO): 1. That they don't have much money to fight the litigation; or 2. That they are negotiating a settlement; or 3. That the attorneys don't know what they are doing; or 4. That the attorneys know what they are doing and realize that they can't extract him individually out of the litigation. As always, this is only IMO. [/QUOTE]
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