Second Hyperion Entertainment Lawsuit
Overview of Second Lawsuit
The rights granted to Hyperion Entertainment under the 2009 settlement agreement [138] covered AmigaOS 4 and the Amiga trademarks "Solely for the purposes of marketing, distributing and making available AmigaOS 4 and any hardware required or desired to operate with AmigaOS 4". While originally embracing this wording also in its 2009 press release [296], less than ten years later Hyperion Entertainment would start to engage in a "rights creep", which escalated around 2016-2017.
Probably driven by the desolate state of its accounts [261], having lost control of AmigaOS 4's "ExecSG" core [316], and with free legal services to itself as its main resource, between December 2016 and May 2017 Hyperion Entertainment began registering trademarks such as "Amiga", "AmigaOS", "AmigaOne", "Kickstart", "Workbench", the "Boing Ball" logo, and "Amiga Forever", later listing them as valuable intangible assets in its accounts.
Not only were the Amiga-related trademark registrations defined as a "Hyperion Prohibited Action" in the 2009 Settlement Agreement [138], but Hyperion Entertainment's lawyer-owner Mr. Ben Hermans became personally involved, representing his law firm Monard Law, on behalf of his company Hyperion Entertainment CVBA, in filing to register its competitor Cloanto's "Amiga Forever" mark [274] as its own with the European Union Intellectual Property Office [258][259] and elsewhere. This move was seen by some in the Amiga community as overly aggressive [239], as it was increasingly meeting the definitions of conflict of interest and bad faith trademark filing, if not altogether legal abuse.
In order to hide from the government the fact that it was in breach of net capital requirements, Hyperion Entertainment CVBA chose not to (ever) file its yearly accounts. But this violation would not go undetected forever. On October 12, 2017, Hyperion Entertainment had its business license revoked [241] for failing to file accounts for three or more consecutive years (2009-2016), and was radiated [242][263][264] from the Belgian business registry.
While it is in this "radiated" status, it is a criminal offense for a Belgian company to engage in a trade business, and the entity is further not allowed to file any lawsuits [263].
When it already was in this status, Hyperion Entertainment met with Cloanto at the Amiga32 event in Neuss (Germany), and reportedly threatened various legal actions [266].
In spite of the non-aggression clauses of the 2009 Settlement Agreement [138], and in spite of not being duly registered in the Belgian Corporate Register [265][263] and thus not meeting the criteria to file a lawsuit, in March 2018 Hyperion Entertainment started a new series of lawsuits against the Amiga Parties (Amiga, Amino and ITEC, which had not been involved in any hostilities since the end of the first legal case) and Cloanto (which had filed a complaint in 2017). The apparent reason for this second attack against Amiga was the intent to trigger a "catch all" clause which would make Hyperion Entertainment the owner, rather than a mere licensee, of Amiga's operating system and trademark assets. As news commenter "Watcher" [386] noted, "This seems to be the only logical reason why Hyperion Entertainment CVBA sued all three Amiga parties (Amiga, Amino, ITEC) in March 2018. There was no logical explanation other than the fact that Hyperion wanted to cause a default of at least one of them and thereby trigger this clause."
On May 25, 2018, Cloanto filed a response [260] which includes an interesting analysis of several aspects of the 2009 Amiga-Hyperion Entertainment settlement agreement [138]. Additional responses were filed by Cloanto on July 23, 2018 [262][265] and August 21, 2018 [270], by Amiga Washington on August 21, 2018 [269], by Amiga Delaware on October 26, 2018 [274], by ITEC on November 7, 2018 [275] and again by all four Amiga parties on July 2, 2019 [287].
On June 12, 2019, the Amiga parties filed an expert report [283] by Paul C. Clements, the author of the definition of "software architecture" used in the 2009 Amiga-Hyperion Entertainment settlement agreement.
An insider source described the situation as "From what we can see, one can only conclude [that Hyperion Entertainment is going] for no-less than total control of the Amiga-ecosystem. At all cost... Given their failure to deliver, that's the only option they have left to remain somewhat relevant, but I think, and I think we agree, they're basically destroying whatever is left, even if they win all these expensive litigations."
Online discussion threads [239] also mentioned a tale of forgeries, blackmail, secret contracts and large cash payments, also backed by audio recordings [268] which were later confirmed in an article in the Amiga Future publication [278] and by the revelation of a "secret" settlement agreement between Mr. Ben Hermans and Mr. Robert Trevor Dickinson [377].
Comments and details that emerged in the discussion threads [239][268][295], and which were later confirmed from other sources, include:
"Inventing an enemy to distract from internal problems is a timeless tactic used by hype-politicians everywhere! So Hype-rion and its owners are unable to repay their debt, and are positioning Cloanto as the new threat (Why? What changed?), as if Hype-rion wasn't its own worst enemy. For Hype-rion to register the 'Amiga Forever' trademark, only to annoy Cloanto who has been working on Amiga Forever since 1996, sets new standards for 'playing dirty' in the Amiga community. Shame on Hype-rion and/or it's lawyer-owner (formerly a director, still acting as one... maybe somebody should report him to the Brussels Bar for this violation, for the conflict of interest, and for his legal abuse tactics?)"
"Hyperion's attorney-owner Ben Hermans constructed an aggression that previously didn't exist and that nobody else wanted, but which can only be resolved by legal means. In doing so, he wants not only Amiga Inc. and Cloanto, but his own developer-'partners', to bleed through the nose. They may have ousted him as a director in December, yet now more than ever Hyperion is a company controlled by lawyers... I feel very sorry for them!"
"Ben Hermans appropriates funds intended for A-EON to purchase CPUs. Then he sends Trevor forged bank statements, showing that the money is still there. Then Trevor and Tony (his other partner) become suspicious and go to the bank, tell the director they are A-EON shareholders, and the director lets them read the computer screen showing all the transactions where Ben took the money out of the account (contrary to the forged statements). That is when they make Ben sign the document with the 'transfer to A-EON UK (without Ben)' and 'free everything' clauses (as admitted by Trevor in the interview to Generation Amiga [244]), threatening Ben's job as a lawyer. A variation of the story involves Ben driving Trevor to the bank, but intentionally getting lost in the woods in order to arrive after closing hours. Yet another one involves Ben drunk in a taxi, unable to get out."
"For years, lawyer-owned contract house Hyperion Entertainment tricked Amiga developers into signing promises [e.g.'NDAs'] that were all but customary, limiting their future options. It registered the trademarks of its competitors, and appears to be in breach of the settlement agreement with the Amiga companies. Trying to get away with it once again (like the previous time, when it had been paid for the OS4 work, did not deliver, and sued the Amiga companies while their owner was dying of cancer), Hyperion sued all its competitors, probably hoping for another convenient settlement. Once again, these Amiga abuses are being funded by Trevor Dickinson's oil money (for Hyperion would otherwise be untenable as a company), and we are turning a blind eye to this too, because we so badly want to believe that there might be some good parts in all of this."
"That's a true story. Simon Archer had just lent Ben Hermans 10,000 UK Pounds in cash. Hermans & partners (A-EON Belgium) then spent the evening celebrating with Champagne after signing the AmigaOne X1000 agreement. After they took a cab ride home, Hermans was so intoxicated that he fainted. He had to be dragged out by Dickinson and the others. Hermans even left the hard-earned cash in the cab. Lots of studies on alcohol and sociopaths. Fits quite a pattern. This is the person we are allowing to set friend against friend, leaving bitterness and debt as the only things that increase with the years."
"It's finally time for Hyperion to self destruct. That would have happened a lot sooner, had Trevor Dickinsons not thrown so much of his 'PetroDollars' money at them to finance Ben Hermans' frivolous lawsuits against Amiga, while taking advantage of Pentti Kouri's death, which forced Amiga to settle. Dickinson and Hyperion fueled years of anger and hate in our community and destroyed the lives, livelihoods and families of Amiga shareholders like Bill McEwen and Vince Pfeifer (who fell ill in 2009 and ultimately died of this). By promising and never delivering low end PowerPC, Dickinson killed the hardware market. By taking OS4 first away from Amiga and then away from Hyperion, Dickinson killed the software market. Now he is writing a book about Amiga vampires? If only mirrors worked for vampires..."
"There are probably no fools anymore who want to be controlled by Ben, while he doing dirty games with everyone. Things will move faster and better forward only when Ben leaves us. At the moment and Timoty, and Costel, and Benny, all stop working and helping him. And while Ben doesn't want to sell Hyperion to someone else, he will try to find other fools/slaves who will do work for him for free, while he will sue and lie to everyone. I do not know when he will realize it is time to sold it out all. Probably he can sit on those copyrights forever for no reassons. Damn, how some of us love that amigaos4 crap, that we are even ok with persons without decent morale to control the things and helping such ppls for free."
On May 8, 2019, following the acquisition of the Amiga assets, C-A Acquisition Corp. (later renamed Amiga Corporation) joined the legal case [281]. In doing so, it renewed the stance of the Amiga parties: "Rather than accept the reasonable limitations imposed on it by the Settlement Agreement, and deeply in debt, Hyperion embarked on an unlawful and tortious course of action to claim for itself the right to do anything it wanted with Amiga, Inc.'s intellectual property... unlicensed use of AMIGA-related marks... and filing applications and obtaining registrations of Amiga, Inc.'s trademarks. In further acts of bad faith, Belgian lawyer Benjamin 'Ben' Hermans, the primary owner of Hyperion, used his law office, Monard Law, to obtain for his company fraudulent registrations for Cloanto's AMIGA FOREVER trademark. Hyperion has never used that mark." It was later claimed [284] that this contributed to Mr. Ben Hermans and Monard Law parting ways a few weeks later.
As part of the new proceedings, former Amiga, Inc. president Mr. Bill McEwen testified [282] about the intent of the parties who settled in 2009: "The genesis of the relationship between Hyperion's predecessor and Amiga, Inc. was for the sole purpose of developing the Amiga operating system for the Power PC platform, which was believed at the time to be the next generation of computers. Throughout the strained relationship between Hyperion's predecessor and Amiga, Inc., and Hyperion's consistent failure to deliver the operating system for which it was contracted to build (i.e., AmigaOS 4.0), and up to and including the 2009 Settlement Agreement, it was always understood by the parties that Hyperion's use of the Amiga copyrights and trademarks was limited to the Power PC platform."
Hyperion Entertainment's own 2009 press release defining the settlement in terms of OS4 was brought up [296] as further evidence of the original intent of the parties: "As part of the settlement agreement, the Amiga Parties acknowledge that Hyperion is the sole owner of AmigaOS 4 without prejudice to any third party rights. Within the framework of the settlement agreement Hyperion is granted an exclusive, perpetual, worldwide right to AmigaOS 3.1 in order to use, develop, modify, commercialize, distribute and market AmigaOS 4.x (and subsequent versions of AmigaOS including without limitation AmigaOS 5)..."
As a Hyperion Entertainment insider commented in a forum [288], "The core business of Hyperion today (their only business, judging by the financial books) is actually battling legal lawsuits against Amiga... Ben Hermans has ALWAYS been Hyperion regardless of all the legal smokescreens thrown up over the past few years... I called the bluff the last time [Ben Hermans] 'resigned' as a director (in practice he never stopped making director decisions, including initiating the legal conflict against Cloanto)."
Current Status
In April 2023, falsely claiming "complete success" in the legal case, and eager to quickly secure a ruling granting it attorney's fees, Hyperion Entertainment agreed with Cloanto and the Amiga Parties to give up - with prejudice - all of its counterclaims [378] in return for a faster decision.
In the misplaced certainty that it would win, Hyperion Entertainment, led by "Intellectual Property litigator with over 20 years of relevant experience" Mr. Ben Hermans [303] and relentlessly backed by its millionaire shareholder, money lender, customer, secret "free everything beneficiary" [268][377] and secret co-owner of assets Mr. Robert Trevor Dickinson, also personally charged Mr. Mike Battilana and Mr. Gordon Troy with claims worth up to half a million dollars (considering $356,629.00 in fees and the potential for damages and sanctions), if not more.
The court satisfied [379] Hyperion Entertainment's wish to give up its counterclaims, but denied [381] its request for attorney's fees and to hold Mr. Mike Battilana and attorney Mr. Gordon Troy personally liable and sanctionable. Disagreeing with Hyperion Entertainment, the judge concluded that Cloanto and Amiga brought the action in good faith, and that their position was not unreasonable.
Hyperion Entertainment's aggressive gamble also cost it claims that included perceived mishandlings of Amiga trademarks by the Amiga Parties, as well as interference with the 2009 Settlement Agreement. These claims, which were pillars of Hyperion Entertainment's expensive legal case against Cloanto and the Amiga Parties, were dismissed with prejudice, meaning that Hyperion Entertainment may never bring them up again.
As of May 2023, a "Mediation Questionnaire" [380] submitted by Cloanto and the Amiga Parties provides a good recap of the current status.
Spoliation of Evidence?
Between 2023 and 2024, a number of secret agreements entered into in 2010 [377] between Mr. Ben Hermans (also on behalf of Hyperion Entertainment) and Mr. Robert Trevor Dickinson, and in 2019 [316][317] between Hyperion Entertainment and Mr. Robert Trevor Dickinson, transpired.
Comparing these agreements against the documents filed by Hyperion Entertainment under its discovery obligations up to September 2019 (including the documents unsealed by the court in 2022 [359]), it became clear that Hyperion Entertainment withheld the same. Likewise, it appears that Mr. Robert Trevor Dickinson failed to sign Exhibit 3 of the 2009 Settlement Agreement [138], as he would have been required to do. The breach of both obligations suggests that all parties had strong reasons to keep those agreements "top secret".
In a US court case, if a party intentionally fails to submit important and relevant documents during discovery, the behavior is termed "spoliation of evidence." Spoliation refers to the intentional, reckless, or negligent withholding, hiding, altering, or destroying of evidence relevant to a legal proceeding.
The consequences of spoliation are serious and can include several legal penalties:
Sanctions: courts can impose sanctions on parties or attorneys who engage in spoliation. These sanctions can vary widely depending on the severity of the misconduct and its impact on the case. Common sanctions include fines and the payment of the opposing party's attorney fees.
Adverse Inference Instructions: one of the most significant sanctions for spoliation is an adverse inference instruction. This means the judge instructs the jury that they may, or must, infer that the destroyed or missing evidence would have been unfavorable to the party responsible for its spoliation.
Dismissal or Default Judgment: in extreme cases, a court may dismiss the claims of the offending party or enter a default judgment against a defendant. This is more likely when the spoliation severely affects the opposing party's ability to present their case or defend themselves.
Criminal penalties: while rare, there can be criminal consequences for spoliation, especially if it involves tampering with evidence in a way that obstructs justice.
The impact on the court case itself can be substantial. Spoliation can shift the outcome of litigation, often to the detriment of the party found to have engaged in such misconduct, as it undermines the integrity of the judicial process and can skew the fact-finding mission of the trial. Courts are generally very critical of spoliation and see it as an affront to the legal process. As such, judges use the sanctions not only to penalize the specific act but also to deter such conduct in the future by others.
It is not yet known whether the Court was made aware of the allegations described here. More information to be added.