All Work And No Play Makes Opposing Counsel Pay Legal Fees And Costs

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Pictured: What would have been a winning legal strategy.

Most lawyers separate their work life from the things they do for fun. Ask anybody, law and leisure, much like personal and client funds, are a thing you mix at your own ruin. But, as many a seasoned esquire has told a bright-eyed associate they’ve taken under their wing, the practice of law is full of counterfactuals. This time, zealous advocacy would have involved a little more button mashing than Bluebooking.

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In January 2022, Activision’s counsel wrote to Brooks Entertainment’s counsel that the complaint “contain[ed] serious factual misrepresentations and errors, and that the claims set forth therein are both factually and legally frivolous.” If the company didn’t withdraw the lawsuit, Activision would file Rule 11 sanctions, penalties requiring the plaintiff to pay a fine for submitting dubious or improper arguments without substantial—or, for that matter, accurate—evidentiary support. And that’s exactly what happened in March 2022, when Activision filed its motions for sanctions against Brooks Entertainment, saying the plaintiffs failed to play Infinite Warfare and provided inaccurate filings.

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Yes. Brooks Leroy Jenkins’d and their pockets are lighter as a direct result. Context for the uninitiated:

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Now, look. Before you think that this is ridiculous, just imagine if there was an IP lawyer saying Sir Mix-A-Lot’s “Baby Got Back” ripped off the allegro of Vivaldi’s “Four Seasons.” Or if Doc McStuffins’s legal team got sued for not giving their proper due to Edgar Allen Poe’s estate. Just like you’d expect prior opposing counsel to listen to the music or read the work, you’d expect these big names to delegate some amount of time to an underpaid paralegal to play the game or something. This whole suit could have been avoided if counsel just dedicated an hour of time to playing the game after being warned by Activision.

In November 2021, Brooks Entertainment alleged Activision ripped off intellectual property from both Save One Bank and Stock Picker, as well as the identity of its owner, in Infinite Warfare. To be more specific, the complaint asserted the “main character” for the 2016 first-person shooter, Sean Brooks, was based on the company’s CEO and that all three games had “scripted battle scenes that take place in a high fashion couture shopping center mall.” There were other similarities, too, but these claims were the crux of the complaint.

But if you’ve played just an hour or so of Infinite Warfare, you’d know this is all wrong. For one, the main character isn’t Corporal Sean Brooks at all but rather his squadmate Commander Nick Reyes, a space marine who becomes the captain of the game’s primary militia. Moreover, while there is a scripted battle scene in a shopping mall, it takes place in far future Geneva, one of many in-game locations, and Sean Brooks ain’t in it. You play as Reyes the entire time.

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When recruiting free Stafford Loan mone… I mean students, law schools often speak to the value that differing intellectual backgrounds provide to the classroom experience. While it is the norm that most law students come in with liberal arts degrees, philosophy, political science, basketweaving, etc., students with a background in the harder sciences like biology or engineering have a role to play in the classroom too. This particular Rule 11 sanction may encourage the recruitment of the one protected class that could have prevented this whole frivolous suit: gamers. In the meantime, Brooks will be paying respects with their pocket books.

Lawyer To Pay Activision For Not Playing Call Of Duty, Judge Decrees [Kotaku]

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Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.

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Activision, Courts, Gaming Law, Infinite Warfare, Rule 11, Sanctions