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Hernandez v. IGE CaptionHernandez v. IGE defendant virtual property dealer IGE yesterday asked the court to withdraw (.pdf) its October 26 motion (.pdf) to stay or dismiss the suit in favor of arbitration or venue in California. IGE said that it now agrees to answer the complaint.

For the background of this suit, see Virtually Blind’s complete coverage of Hernadez v. IGE. Very briefly, the suit involves a potential class of users, led by Hernandez, suing a virtual property dealer for diminishing the World of Warcraft game experience through spam, gold farming, and other undesirable activity.

In this filing, IGE states that Plaintiff Hernandez originally based his claims on the EULA and Terms of Use that IGE’s agents had to agree to in order to use World of Warcraf, but that, “in Plaintiff’s Response in Opposition to the Motion to Stay/Dismiss (Dkt. 28), plaintiff has changed his position, and for the first time, now raises questions as to the existence of the very ToU or EULA agreements between IGE US and Blizzard upon which Plaintiff asserts his claims.” In fact, in the cited section, Plaintiff actually points out that IGE has taken that position and argues against it, but in any case, IGE is using this as a reason to withdraw its motion.

IGE says that due to this “change” in Plaintiff’s position, IGE now “believes that the question of whether Plaintiff’s claims are subject to arbitration presents factual issues about the existence, validity and applicability of the ToU and EULA which should be resolved in the context of an affirmative defense to Plaintiff’s claims.” As a result, IGE says it will file an answer so that those questions can be resolved.

This is at least a short term victory for Hernandez and the potential Plaintiff class. It takes a motion to stay or dismiss the action off the table and guarantees that the suit will, at least for now, go forward. Although there were undoubtedly other considerations in play as well, it appears that IGE may have seen some merit in Hernandez’ argument that IGE should not be able to ask the court to enforce provisions that appear in agreements (the World of Warcraft EULA and Terms of Use) that it elsewhere argues do not apply to it at all. IGE may have been concerned that the Court could read its request as an admission that the agreements do apply.

Absent a pattern, I would certainly not ascribe a base strategic motivation to the filing of this motion and its subsequent withdrawal, but it must be noted that the process — which included an unopposed 10 day extension for a reply brief due yesterday that Defendant ultimately did not file — delayed the filing of Defendant’s answer by nearly two months. It also forced Plaintiff, who is represented by a much smaller firm with far fewer resources than IGE’s attorneys, to file a lengthy, unnecessary response.

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