@ne_one

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Has Ben Hermans ever indicated why he continues to pursue litigation? I honestly can't imagine his motivation.

Because when you have nothing left to lose, you can only win?

Wherever you look in the last accounts published by Hyperion Entertainment CVBA and Ben Hermans BV you see six-digit holes that need to be filled.

If Hyperion lose the court case, are they going to pay lawyers, damages, etc., or are they simply going bankrupt?

If you were the 96% owner and lawyer well versed in the intricacies of US Intellectual Property litigation, would you not go on drafting your own motions for as long as possible?

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ne_one wrote: Has Ben Hermans ever indicated why he continues to pursue litigation?

What makes you think Ben wants to "pursue" litigation? I doubt anyone wants litigation to cease more than him and the Amiga status quo to be maintained. Hyperion is the defendant (although with counterclaim) and has requested all plaintiff claims be dismissed.

2021-03-18_hyperion-amiga-itec-cloanto-ca_filing-105_hyperion-motion-summary-judgment.pdf
https://docs.google.com/file/d/13-bsmVLq3gVtYggOf_Ej6rGhDhV4tx3l/edit

Hyperion likely wins unless Amiga Inc. can get a judgement that Hyperion "materially breached" the 2009 settlement.

2021-03-18_hyperion-amiga-itec-cloanto-ca_filing-100_amiga-motion-partial-summary-judgment.pdf
https://docs.google.com/file/d/18T3HZC4kSN1sa8pgmowSCJziHaxfykjS/edit

The 2001 contract was easier to terminate and Amiga Inc. claims it was terminated after a written 30 day notice (Hyperion would still be obligated to fulfill the terminated contract they materially breached). No litigation was required.

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6.02 Termination for Material Breach. Any party may, at its option, terminate this agreement in the event of a material breach by another party. Such termination may be effected only through a written notice to another party, specifically identifying the breach or breaches on which termination is based. Following receipt of such notice, the party in breach shall have thirty (30) days to cure such breach or breaches and this Agreement shall terminate in the event that such a cure is not made by the end of such period. The claim of material breach justifying termination shall be limited to the specific breached set forth in the above written notice as explained, supported and negated by evidence.

2001-11-03_amiga-hyperion_amiga-hyperion-eyetech-oem-license-and-software-development-agreement.pdf
https://docs.google.com/file/d/0BxlY9g_OfLqDYmMxMjY3YjAtYTMwOC00NjhiLWEzOGItOTJhZTRiYTFkNTUz/edit

The 2009 settlement contract was likely obtained with Amiga Inc. under financial duress and was very favorable for Hyperion. Termination is much more difficult.

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9. Termination. This Agreement and the rights and obligations contained therein, shall enter into force as of the Effective Date and remain in force until such time as a court of competent jurisdiction has issued a final and non-appealable ruling on the existence of a material breach justifying termination of this Agreement.

2009-12-11_amiga-hyperion_settlement-agreement.pdf
https://docs.google.com/file/d/0BxlY9g_OfLqDZTQyNGFkYzEtZDI5Zi00YzcxLThhODYtODcyZTg0M2I4MzQ1/edit

It looks like the plaintiffs are seeking to terminate the 2009 agreement for material breach of contract with a court "ruling" as specified by the contract (see above). The agreement does not allow the transfer of the agreement to another party.

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24. Assignment. This Agreement may not be assigned to any third party without the prior written consent of all Parties hereto. The consent given by one of the Amiga Parties shall be sufficient to satisfy the requirement of prior written consent.

Hyperion did not give written consent for the transfer of the agreement to Cloanto so it remains with Amiga Inc. while the 2009 contract is valid (likely along with some IP specified in the settlement). This is why Cloanto did not have standing to join the lawsuit. It appears Amiga Inc. is in good standing and can ask for a summary judgement against Hyperion for violation of the 2009 agreement.

2019-08-21_us-de-sos_amiga-inc-delaware_good-standing-certificate.pdf
https://docs.google.com/file/d/1dYOpU4E0JlKWEHUa-d4s6Usz3jCAwjoE/edit

It looks to me like the 2009 contract gives Hyperion unprecedented (and suspicious) use of Amiga party IP while the Amiga parties receives nothing of value in return. The Amiga parties owned the castle (practically everything) if the 2001 contract was successfully terminated yet the 2009 contract hands Hyperion the keys to the castle. I don't see where the Amiga Parties receive anything of value (consideration) in the 2009 contract. Perhaps the contract is invalid for lack of a quid pro quo contract?

https://en.wikipedia.org/wiki/Consideration

It appears Ben Hermans was a predator taking advantage of Bill McEwen and the financial situation of Amiga parties where Amiga parties helped save Hyperion from bankruptcy with cash payments when it was in financial trouble. The 2009 contract should never have been signed. Was Bill that incompetent or did he receive under the table payment from Hyperion? I hope the court can see Ben for the con man he is and do everything in their power to thwart him. This isn't the first time Ben has abused the law but rather it is his modus operandi. Hyperion is completely bereft of ethics from what I can see. This reflects the sole person in charge at Hyperion which is Ben Hermans.

Last edited by matthey on 23-Mar-2021 at 03:08 PM.
Last edited by matthey on 23-Mar-2021 at 11:20 AM.
Last edited by matthey on 23-Mar-2021 at 11:17 AM.