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Old 05-18-2012, 04:10 AM   #25
darryl
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I am not a US lawyer. However, the basic concept of a Motion to Dismiss is one familiar to so-called "common law" jurisdictions. Of course, jurisdictions each have their specific rules and applicable case law. Basically, it focuses on the Plaintiff's claim and not on any defences. To quote selectively from the relevant parts of the Judgement:

A trial court considering a Rule 12(b)(6) motion must
“accept as true all factual statements alleged in the complaint
and draw all reasonable inferences in favor of the non-moving
party.”


A court considering a Rule 12(b)(6) motion applies a
“flexible plausibility standard, which obliges a pleader to
amplify a claim with some factual allegations in those contexts
where such amplification is needed to render the claim
plausible.”

“To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level.”

Dismissal is appropriate “where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct.”

Basically the process involves a scrutiny of the Plaintiff's "pleadings", in this case what is referred to as the CAC, and decide whether on the facts alleged the claim is more than speculative. It will come as no surprise that cases are rarely dismissed, particularly at this level with competent lawyers on both sides and governments and large corporations as parties. Some very weak cases still survive these motions. Also, at least in some jurisdictions, defendants take the view that bringing Motions to Dismiss and the like represents a "free kick" with their clients' having everything to gain and nothing to lose. Arguments supporting such motions in these circumstances can be quite creative on occasions.

It is not safe to draw any significant conclusions from this judgment. The Judgment to my eyes shows no evidence of bias towards either side, and is clearly correct. A trial will be a different matter, where the Plaintiffs' must prove their case. I will, however, go so far as to say that based on my admittedly limited knowledge of the matter, I would much prefer to be arguing the Plaintiffs' side of the matter against both Apple and the Publishers.

Last edited by darryl; 05-18-2012 at 04:12 AM.
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