Meanwhile, back on the farmville . . .

Let's turn back now to the Alan Patmore / Zynga / Kixeye story (first installment, keying on the Zynga Employee Inventions Assignment and Confidentiality Agreement, here).

Patmore has now filed an answer to Zynga's amended complaint. And it's chock full of . . . affirmative defenses.

EstoppelI'm not a litigator, so I checked with a former litigator (now a law prof) I know and trust and asked him: aren't "affirmative defenses" what you assert when you basically admit that the allegations being made against you are true, or could be, but that the facts asserted don't matter, because, even if true, some law or doctrine or superseding set of other facts protects you?

And aren't "affirmative defenses" not as good as other kinds of defenses, because the burden of proving the defense is on the part of the person being sued? (Generally speaking, the one doing the suing, the plaintiff - Zynga, in this case - has the burden of proving its allegations.)

Yes, he said, but: California state court practice is wierd; even elsewhere lawyers slip into the habit of labeling every defense thusly; and in any case mislabeling a defense as "affirmative" should not shift the burden to the defendant if it doesn't substantively belong with him.

Complicated stuff. But we need some basic reference point for the term, if not mastery of its uses, to appreciate the strategy of Patmore's answer.

Here, quoted verbatim, are eleven (11) of the twenty (20) affirmative defenses in the Patmore answer:

  • "Plaintiff released, relinquished, waved and/or abandoned any right to any of the claims upon which Plaintiff now seeks relief."
  • "Plaintiffs claims are barred in whole or in part by the applicable statutes of limitation."
  • "Any alleged conduct or omission by Defendant was not the cause in fact or proximate cause of any injury alleged by Plaintiff."
  • "Plaintiff failed, in whole or in part, and continues to fail, in whole or in part, to take reasonable steps to mitigate its damages."
  • "Plaintiff's claims are barred, in whole or in part, by the doctrine of unclean hands."
  • "Plaintiff's claims are barred, in whole or in part, by the doctrine of laches."
  • "Plaintiff's claims are barred, in whole or in part, because by virtue of its own conduct, Plaintiff is estopped from recovering from Defendant."
  • "Plaintiff is barred from any recovery, in whole or in part because any actions taken by Defendant, if any, with respect to Plaintiff, were based on an honest, reasonable, and good faith belief in the facts as known and understood at the time."
  • "At all relevant times, Plaintiff consented to and approved all the acts and omissions about which Plaintiff now complains."
  • "Plaintiff's claim is barred by the fact that it seeks to enforce a contract that is void against public policy."
  • "Plaintiff's claim is barred by the fact that Plaintiff failed to take reasonable efforts to protect its alleged trade secrets."

In fairness, I should also report that Patmore's answer contains a general denial of "each and every allegation" in Zynga's complaint.

For its part, Kixeye, Patmore's new employer, last month filed a cross-complaint against Zynga (translation: it sued Zynga back), and that filing of Kixeye is much more talkative than the Patmore answer. We may visit the various factual allegations later.

Photo from Kaplan University online civil litigation course (used under a Creative Commons license).


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