Tuesday, October 29, 2019

The Retailers Strike Back with a Motion to Strike in the Allarco Litigation

On October 8, 2019 I reported on the very unusual lawsuit against four of Canada’s most prestigious electronics retailers, namely Best Buy, Canada Computers, London Drugs and Staples, by a plaintiff named Allarco Entertainment.

I said at that time:

The Statement of Claim alleges, inter alia,  that the stores “have offered for sale, sold, leased and continue to sell or lease Pirate Devices to John Doe Customers and advised, educated, counseled, encouraged, directed, induced, enabled and authorized John Doe Customers to achieve, download, install and operate services that result in the operation of the Pirate Devices and/or that enable and allow the John Doe Customers to access the Infringing Content”.

This is not the time or the place to comment in any detail on this Statement of Claim. Suffice it to say that it would hardly be surprising if it were to be tested vigorously pursuant to Federal Courts Rule 221 on such issues as lack particulars, lack of Federal Court jurisdiction, failing to state a cause of action, etc. Most challenges to pleadings at this stage result in leave to amend to some extent. However, this pleading is, as I said, very unusual indeed. If it is attacked, it will be interesting to see how much if any of it survives and whether leave to amend is granted and in what respect. 
 (highlight added)

Voilà– the retailer defendants have filed a very detailed and comprehensive motion to strike, etc., available here, in searchable format.

For reader’s convenience, the Statement of Claim is available on my earlier blog of October 8, 2019 or directly here – also in searchable format.

Heads up for copyright law and civil procedure professors – this is a teachable moment.

Since this case is under case management, it remains to be seen when this motion will proceed. The Defendants have suggested that it will take a day. I will, of course, update when I can.


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