I'm still reading the pdf, but I think this answers my question about whether Hyperion was going on the offensive or not. It's logical that a strong offensive on their part would more likely press Amiga Inc to a bargain or who knows, maybe even submission. Back to reading....
Wow, that's actually quite a good case they've managed to put together. If I read it right, then they argue that if it is proven that Amiga Washington was insolvent and that all the rights conferred by the contract were transferred to Hyperion then Amiga Delaware has actually violated Hyperion's trademarks and rights by passing themselves off as the owners of OS4.
I think much now rests on exactly what documentation Amiga Inc are able to dig up to support their case. They seem to be somewhat disorganised in that area (some have suggested this is due to being locked out of their offices by their landlord when Amiga W fell apart) so if they can't definitively prove that the transactions which led to Amiga W becoming Amiga D were all fair and square then Hyperion must surely get at least some of what they are asking for.
It was also fun to see the vouchers (amongst other things) used to allege that Hyperion was actually a creditor of Amiga W. I didn't see that coming, but (if I understand everything correctly) it handily allows them to object to the means by which Amiga W transferred it's rights to Itec, etc, since they claim that this was a deliberate attempt to prevent creditors (including Hyperion) from getting what they were owed.
OTOH, if Amiga Inc can find the necessary documents they may be able to discredit much of Hyperion's arguments, and they will doubtless have a few tricks up their own sleeve still.
20. The transactions on which Amiga Delaware's lawsuit is based was beyond the express or implied powers of Amiga Washington because Amiga Washington was insolvent at the time it puportedly transferred, for inadequate consideration, its interest under the Agreement, its interests in its trademarks, and its interests in other assets. 21. Amiga Delaware's claims are barred by its unclean hands. 22. Amiga Delaware's claims are barred because it obtained the rights it now claims to own through a series of fraudulent conveyanves conducted with the assets of Amiga Washington and the aid of other entities that are not parties to this suit.
"for inadequate consideration" will be hard to dispute I believe since Amiga Washington did not pay judgements against it supposedly.
later section:
Quote:
23. By the explicit admissions of the Itec/KMOS Contract, the insiders of Itec were the insiders of KMOS. By necessary implication, then, the insiders of KMOS were and are the insiders of Amiga Washington, which prevents KMOS, now purportedly known as Amiga Delaware, from being a good faith purchaser of the assets of Amiga Washington under the terms of RCW 19.40.081. On information and belief, the Itec Contract, and the Itec/KMOS Contract were merely part of an elaborate scheme to hinder, delay or defraud the creditors of Amiga Washington.
later section: Quote:
42. As another example, Hyperion's rights under 2.01 of the Agreement included the right to retain all revenues from the distribution of OS 4.0. In 2001 and 2002 Amiga Washington breached Hyperion's rights by engaging in illicit discount voucher schemes aimed at future end-consumers of OS. 4.0. Specifically, Amiga Washington issued $100 "Amiga Party Pack" and $50 "I am Amiga" vouchers designed to induce consumers to pay Amiga Washington $100 or $50 in anticipation of the release of OS 4.0. Amiga Washington represented that in exchange for these vouchers it would either grant a discount or provide free copies of software, e.g. OS 4.0, that it did not own. By Amiga Washington's own admisions, it raised at least $90,000 from consumers in this manner. Hyperion never endorsed these schemes, was never paid any of the money, and has been damaged both in its reputation and monetarily as it was confronted with the demands from these consumers for benefits that Hyperion was not in a position to provide.
Seems like an impressive document IMHO.
As I said before, I think its a huge risk for Amiga Delaware to fight this any further. Unless they can show their transactions to be on the up and up, selling to themselves a couple of times over they seem screwed IMHO. And lets not forget Bolten's lawyer is probably watching what it going on closely. This could also open up an opportunity for those Amiga Washington left owing money to.