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29.Jul.2021



Lawsuit: Hyperion's response to Evert Carton's testimony
On June 25, 2021 Hyperion's co-founder and sole managing director during the settlement negotiations with Amiga Inc. in 2009, Evert Carton, was deposed by both parties' lawyers in the lawsuit of the plaintiffs Cloanto and the so-called Amiga parties vs. Hyperion Entertainment as defendant. On July 14, 2021 plaintiffs submitted a motion for leave to file regarding this deposition (amiga-news.de reported).

On July 28, 2021, Hyperion Entertainment submitted their response to the court, requesting that plaintiffs’ motion should be denied (PDF file). Besides lack of diligence - because plaintiffs failed to depose Evert Carton before filing their motion for summary judgement - and increased harm for Hyperion with regard to their business relationships if the summary judgement would be delayed by admission of the deposition, the application is also substantiated by Evert Carton's minor relationship to the Amiga market.

Evert Carton's deposition confirmed the well-known fact within the Amiga community that there had been no relation of Evert Carton to the Amiga market prior to his involvement in Hyperion Entertainment and that this company was originally founded by Ben Hermans and himself as a vehicle for each of them to pursue their own goals (page 80 of the PDF file of the deposition). Lack of knowledge regarding AmigaOS 3.x due to this could be found in the testimony when Evert Carton was asked regarding specific products by Commodore underlying disputed trademarks such as "Workbench" (p. 54), while nevertheless he was aware of other details, for example the programming languages used in the source code of the original operating system which had to be adapted for creating AmigaOS 4 (p. 82).

Thus Hyperion's lawyer emphasizes that - as admitted by Evert Carton - Ben Hermans was the drving force during negotiations with Amiga Inc. in 2009 (p. 153, p. 25) and that Evert Carton could not force himself to become interested in Amiga, despite trying (p. 133). Furthermore it is pointed out that he lost faith in the new project regarding the AmigaOne X5000 (p. 91/92) and started a business of his own in November 2009, i.e. just one month after signing the settlement agreement, to avoid his revenue being continuously consumed by Hyperion's Amiga activities anymore (p. 262).

Regarding the fact that, due to Ben Hermans' main occupation, Evert Carton was the sole director and owner of 97 % of Hyperion's shares during the time frame of the negotiations with Amiga Inc. taking place, the lawyer is bringing forward the argument that by the time the settlement agreement had actually been executed, the distribution of shares would already have been changed during alteration of the legal form of the company - resulting in him owning "the minority as the only shareholder who lacked knowledge or understanding of Amiga" (49 % vs. 48 % by Ben Hermans and 3 % by Timothy de Groote), and that he would have just signed the settlement agreement in 2009 for Hyperion "because he lived within 50 meters of a notary" (p. 132). Back then Hyperion's company address was at Evert Carton's place of residence (p. 145).

Since thus Hyperion's intentions in negotiations with Amiga Inc. in 2009 would have been basically identic to Ben Hermans' intentions - which would be also visible in lacking memory on which party had added certain phrases (p. 100) or why the term "software" was defined differently compared to the original contract from 2001 (p. 112), or in the fact that Evert Carton didn't read all pages of the book "Amiga DOS Manual" (p. 118) - admission of his testimony is considered futile in a situation of his word against that one of his former managing partner, so that the application for admission should be denied, also due to lack of diligence. (snx)

[News message: 29. Jul. 2021, 10:54] [Comments: 0]
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