So, we hear that Erik Estavillo, the serial plaintiff against games companies, has dropped all of his lawsuits against companies including Microsoft, Sony and Activision-Blizzard. He became known late last year for these rather creative lawsuits, which involved some pretty odd actions like suing Blizzard for his character moving too slowly and his claims that he would subpoena celebrities including Bill Gates and Winona Ryder. Now it seems that his claims will never go before a judge.
Victory of course for the games companies, who we would guess have been able to ignore Estavillo entirely (standard practice with these kinds of lawsuits) to date anyway. Of course, it would have been perfectly possible for their lawyers to go straight off to court and seek to swat Estavillo’s lawsuits out of the sky with ‘strike out’ applications (i.e. to argue to the judge that Estavillo’s claims are completely hopeless and should not proceed any further), but that would (i) have cost money; and (ii) would have given Estavillo more publicity.
The difficulty for Estavillo now is this: if the companies which he sued HAVE incurred legal costs in defending his lawsuits, then in principle they would be entitled to sue him for payment of those costs. This is the ‘loser pays costs’ principle, a key aspect of litigation in England and most other common law jurisdictions. Its main objective is to deter claimants from bringing hopeless claims by making them face the risk of later having to pull the claim and pay both their and the other guy’s legal costs.
Of course, whether or not anyone actually goes after Estavillo for legal costs will depend on three things:
(i) Whether the civil procedure in the appropriate US state permits it (and it’s worth bearing in mind that generally the USA is less in favour of the ‘loser pays costs’ principle)
(ii) Whether Estavillo could pay up anyway
(iii) The publicity that going after Estavillo would generate.
On balance, we think it’s unlikely any of these companies would actually sue for their costs, but it is always possible. Anyway, the point of this post is that Mr Estavillo’s case is a great example of the golden rule in litigation: choose your legal battles carefully.
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