Holy smokes! Where do I begin?
Late October, two major rulings came down in the ongoing Billy Mitchell versus Twin Galaxies lawsuit over his fraudulent Donkey Kong scores. The judge has allowed the lawsuit to proceed past the anti-SLAPP stage, citing a "prima facie" case from Mitchell. ("Prima facie" is legalese for "on the face of it". In other words, Billy met the minimum requirements for his case to proceed.) While Billy declared victory on social media, he conveniently left out the fact that the other major ruling of that week, on TG's "motion for undertaking", went entirely in TG's favor. In short, Billy will have to fork over a deposit north of $80,000 if he wants to continue. This bond would be held in the event TG ultimately prevails and is awarded legal fees, meaning Billy may or may not ever see it again. There's a fair bit of nuance to what exactly these rulings do and don't mean,
which I wrote about here.But that's old news now. As those of you who have followed my coverage of the Billy Mitchell case know, I'm more than happy to drop a few thousand words about any topic as juicy as today's. But this time, I'll be relying mostly on text from the legal filing itself. What we have today is news that will reverberate through the competitive gaming world literally forever. Much of what was just submitted to the court simply has to be seen to be believed.
Recently, there was speculation on what would be the next move for Twin Galaxies (and custodian Jace Hall). They're still likely to appeal the anti-SLAPP ruling, while Billy on the other end may either attempt to appeal the undertaking, or could even possibly save his money, drop the case, and try to declare a public relations victory. (Although he certainly would never want to appear as though he surrendered.)
But we now know the first move following these rulings, and this one is big.
On Wednesday, November 4th (first reported to the public late Thursday evening), Twin Galaxies filed a motion requesting the opportunity to file a "cross-complaint" arising from the same circumstances on which Billy Mitchell is attempting to sue them:
The filing starts out with legal justification for why this motion to add this counter-suit to the claim should be granted at this time. Within that language, the filing makes it clear that this move was effectively forced by Billy's successful bid to push the case past anti-SLAPP (which, as stated in the link above, was done by simply lying through his teeth and relying on rules that forced the court to consider his case in the best possible light). Here, in fact, TG specifies that they fully expected to prevail in anti-SLAPP and did not even intend to bring this counter-suit against Billy had the case been dismissed as it should have been:
In case there was any ambiguity, TG makes it clear: "Plaintiff has, in a sense, forced Defendant's hand to pursue these claims."
The legal justification continues, spelling out the circumstances from Billy's lawsuit which pertain to these counter-claims:
One more interesting legal note: The motion includes an admission that, perhaps this cross-complaint should have more properly been filed sooner, under ordinary circumstances. TG's lawyer, David Tashroudian, adds a declaration stating that many of the facts involved in this counter-suit came to light during their investigation in their defense against Billy's lawsuit:
I'm not a lawyer and would not attempt to speak of my own authority as to whether this delay in any way hampers or disqualifies this motion. In his declaration, Tashroudian does continue to make the case for why the circumstances should allow him to file these counter-claims at this time, while also noting that a failure to do so now could result in TG forfeiting the right to do so later down the line:
"Okay, okay! Get to the good stuff!!"
I'm tellin' you, if you think Twin Galaxies are playing soft with this counter-suit, think again!
Here are no fewer than seven claims being levied against Billy Mitchell, Walter Day, and up to 25 associates to be named later:
Right off the bat, the counter-suit defines current Twin Galaxies apart from what it refers to as "Old Twin Galaxies":
The cross-complaint clarifies that, while "Old Twin Galaxies" is named, that organization no longer exists in any meaningful way, and that there is no difference between Old TG and Billy and Walter:
What exactly does "unity of interest and ownership" mean? Here's where you, eager spectator, break out the popcorn and enjoy the show.
Twin Galaxies alleges that Billy and Walter used Old TG as their own personal piggy bank:
TG alleges that Billy and Walter paid personal debts using Old TG funds, and that Billy treated the scoreboard like his personal property (by, you know, forcing the inclusion of his fake scores):
Yes, this is 100% real. This is real thing that has actually been filed to the court. This is not a drill.
TG alleges that Billy and Walter conspired to issue fraudulent stock in Old TG to enrich themselves:
TG alleges that Billy and Walter incurred debts under Old TG's name without ever intending to repay those debts:
TG alleges that Billy and Walter used Old TG as a vehicle to fabricate high scores for Billy, generating fame and money for both of them:
And lastly in this list - and this is a big one - TG alleges that Billy and Walter sold the organization to multiple people under false pretenses (which we will get to in more detail below):
Oh, we are just getting started.
The filing continues with a description of Twin Galaxies' operations in the '80s, including maintaining a video gaming scoreboard that was published in magazines like Video Games, Joystik, Electronic Fun, and even Videogiochi magazine in Italy. This leads into an explanation of how Walter Day attempted to revive the organization in 1997:
Here's where the fireworks really begin. TG describes how Walter Day and Billy Mitchell conspired together to artificially promote Billy in an attempt to increase interest in the Twin Galaxies brand, and thus make it an appealing purchase to any prospective buyers:
TG (the current entity) notes how historical scores which superseded Billy's scores were notably purged upon this reorganization of Old TG, specifically noting higher scores on Donkey Kong Jr., Tim Sczerby's 2000 score on Donkey Kong, and claims of earlier perfect scores of Pac-Man, including that of Bill Bastable:
It is worth taking a moment to note that Sczerby's score was officially recognized by Old Twin Galaxies, at least for some time. Here was TG's announcement in 2000:
https://web.archive.org/web/20001022025833/http://www.twingalaxies.com/cgi-perl/news_donkeykong_recordsmashed.plTim's score is also listed on this 2005 capture of the Donkey Kong high score list:
https://web.archive.org/web/20050325090453/www.twingalaxies.com/index.aspx?c=22&pi=2&gi=3852&vi=22However, Tim's score was famously omitted from the 2007 documentary King of Kong. Seth Gordon and Ed Cunningham have always attributed this exclusion to "controversy" around this score and an inability to verify it. While that may have been simply an excuse for a decision to focus the movie on a more appealing movie protagonist like Steve Wiebe, it is not clear at this time if Old Twin Galaxies management assisted in the perception that Sczerby's score was somehow of less distinction than Billy's score from the '80s. While I make no attempt at this time to justify the inclusion of Sczerby's score on this filing's list, based on the aforementioned facts, it is interesting if perhaps there is more basis for this claim than we in the public know, and if perhaps more will be revealed as this counter-suit unfolds.
Okay, enough with the theorycrafting. Back to the popcorn. Get ready for this:
Basically, Billy and Walter suppressed the knowledge of earlier perfect Pac-Man scores, changed the rules in Billy's favor, created the "Player of the Century" award for Billy, falsely presented it as though Namco themselves had bestowed that title on Billy, and continued the lie into perpetuity. Again, this isn't some fringe conspiracy theorist dreaming stuff up. This is coming straight from Twin Galaxies themselves.
I want to be crystal clear at this time that each of these claims regarding the 1999 Pac-Man score and related circumstances are true and are supported with evidence (with the caveat that there is some historical wrangling over what exactly constitutes a by-definition "perfect" game of Pac-Man). However, this write-up is about the counter-suit, and so the details behind this particular fraud will have to wait for another day.
The cross-complaint continues describing the beginning of the Billy Mitchell / Steve Wiebe rivalry, citing the removal of Wiebe's earlier scores and a desire by Billy and Walter to use this rivalry to promote the Twin Galaxies brand, including via participation in an upcoming documentary:
The suit continues to describe the back-and-forth competition for the Donkey Kong record (spurred by Billy's fraudulent scores), and how it boosted the profile of Old Twin Galaxies, attracting the interest of many more filmmakers:
Here's where things get ugly. TG openly alleges that Billy and Walter sold Old TG to Pete Bouvier, then took control back from him by pressuring him at a time he was suffering from Alzheimer's. Then, Billy and Walter sold Old TG to Jourdan Adler, a sale which they also later forcibly rescinded, before ultimately selling it to Jace Hall:
TG then summarizes these events into one narrative, illustrating the extent of the fraud perpetrated personally by Billy Mitchell and Walter Day. While it is proven that Billy's DK scores are fraudulent, TG's filing claims that Walter Day, in fact, knew these scores were fraudulent, but chose to include them to boost TG's value in anticipation of an eventual sale:
The filing then goes on to list specifics relating to the seven causes of action above. First up, TG accuses Walter, Billy, and co-defendants of being in breach of contract due to the following:
TG also specifies that Walter and Billy's continued reliance on untrue statements prevented TG from discovering the nature of this fraud earlier:
The second cause of action is intentional misrepresentation, relating to the sale of TG to Jace Hall. Here TG describes the process, and Billy's role in it:
The filing continues to describe the assurances Jace Hall was given, and on which his decision to purchase TG relied:
TG spares no feelings in describing how "vile, base and contemptible" Billy's and Walter's conduct has been:
For the third cause for action - concealment - TG restates many of the same points, while emphasizing how this concealment of fraud harmed Twin Galaxies' brand, including in the perception of other gaming circles such as the speedrun community:
You thought these proceedings were ugly now? TG then points out (accurately) that Old TG had a rather unfortunate habit of associating with and promoting convicted felons and, yes, pedophiles:
While this may simply be a necessary legal argument, the filing does state that, had he known of these circumstances, Jace Hall would not have entered into the agreement to purchase Twin Galaxies:
The filing continues. The fourth cause of action - inducing breach of contract - is specific to Billy and Walter, and pertains to their deliberate efforts to sour the relationship between Twin Galaxies and Guinness World Records:
The fifth cause of action - intentional interference with prospective economic relationship - once again refers to efforts by Walter and Billy to undermine the relationship between TG and Guinness:
The sixth cause of action - unfair competition - deals with how Old TG's business practices relate to California law:
The filing ends strong, with the seventh cause of action being a civil "RICO" violation (named after the "Racketeer Influenced and Corrupt Organizations Act"):
TG continues listing the ways Old TG's value was artificially inflated, starting with a reiteration of the circumstances around the 1999 Pac-Man recognition, and the ways in which the fraudulent news was disseminated:
TG then describes the circumstances under which Billy's fake 1.047m Donkey Kong score was produced. Specifically, the filing names Billy's longtime friend and technician, Rob Childs, as a co-conspirator:
The filing describes Billy's next two fake DK scores in the same fashion, this time listing Todd Rogers and Kimberly "Morningdove" Mahoney as further co-conspirators. The bit about the 2010 score includes language about Rob Childs' promotional videos (which included the fake board swap):
TG then recounts the terms under which previous purchases of Twin Galaxies were rescinded, again highlighting that this process was committed across state lines:
The filing then illustrates how this pattern of racketeering harmed Jace and his business affairs. The filing also notes how Jace did not begin to discover the extent of this fraud until it had sufficiently determined that Billy's Donkey Kong scores were not authentically produced as advertised:
The filing concludes with a demand for a jury trial, as well as a listing of damages I'm sure you all will appreciate:
There is undeniably a bit of dramatic flair involved in this action. Billy has been using the forum of legal action to make outlandish and unfounded claims against Twin Galaxies, Jace Hall, Wes Copeland, Chris Gleed, David Race, or anyone else he has felt the need to disparage for the benefit of his own public relations (or perhaps simply for the benefit of his own ego). Billy has, in some sense, used the lawsuit to put on a show. At least in that regard, Twin Galaxies is firing back in kind. While Twin Galaxies has distinguished themselves from Billy in that they are not lying or making unfounded claims, they have certainly taken the gloves off. This filing includes a few subtle digs, including references to Billy "always [having] a plan", and "Billy Mitchell never surrenders". In the conclusion, the request for special damages totals $3,333,360 (equal to a currently-recognized perfect score on Pac-Man), and the request for special damages totals $3,160,200 (equal to the total of Billy's three fraudulent Donkey Kong submissions).
Setting theatrics aside, what do we make of all this?
The first thing to keep in mind is, again, none of this would be happening if Billy Mitchell hadn't taken this matter to court in his attempt to bully gaming adjudicators into accepting his fraudulent scores. Billy had every opportunity to present whatever evidence he wanted, but largely failed to do so until September 2019, when he submitted an underwhelming evidence packet full of "I promise I saw him do it" statements from his friends, which was only submitted alongside a threat of legal retaliation. While people may be sick of lawsuits, this matter is entirely, top to bottom, of Billy's doing. He has had until now the opportunity to simply walk away. With this cross-complaint, the choice is no longer his alone.
The counter-suit makes mention of a number of people who have had grievances with Billy over the years, including Cat DeSpira and Patrick Scott Patterson. While their individual credibility may at times be lacking, they have long been vocal critics of Billy Mitchell and Walter Day, and their grievances with Old Twin Galaxies are justified. Also included is Tim Sczerby, who has long felt cheated out of an opportunity to appear in a documentary film which went on to become an enduring cult classic. It's astonishing that his case could actually end up seeing the light of day in court. Truly, this counter-suit represents a day of reckoning for many people wronged by Walter Day's and Billy Mitchell's long, prolific trails of deceit and fraud. One notable exception here is Dwayne Richard. His research provided much of the early ground work for those calling Billy's claimed achievements into question. However, Dwayne's name appears nowhere in this filing. Two other names notably absent from the filing are Robert Mruczek and Roy Shildt.
To be clear, while Twin Galaxies is taking the position that they have only recently discovered the extent of the fraud (perhaps a requisite legal position for them to take), many of these things have been known, at least within certain segments of the gaming community for some time. It might also be that Jace and others had heard of these allegations as rumors without any substantiation, and thus had no reason to take them seriously until they were proven. That said, this filing also includes a number of shocking revelations, such as the declaration that, had Jace Hall known about this fraud, he never would have entered into a purchase agreement for Twin Galaxies in the first place. Again, perhaps this is simply a requisite declaration in order to proceed with the counter-suit, but it is a declaration nonetheless. Such a statement also puts the continued existence of TG's legacy (pre-TGSAP) scoreboard into question. Will this move force Twin Galaxies to discontinue recognition of old referee scores collected by the Old TG scorekeepers who Current TG are now accusing of fabrication, deceit, and collusion?
There's also an open question of what exactly Twin Galaxies still has in store. Jace Hall did not just purchase Twin Galaxies the brand, or the scoreboard, he purchased Twin Galaxies' assets as well. He has occasionally made reference to internal referee memos and documentation from yesteryear, such as in authenticating the tapes examined in Billy's score dispute. Jace is now in a position to use Old Twin Galaxies' own documentation against Walter Day, while Walter will be forced to subpoena anything he did not surreptitiously keep a backup of. While some items may seem like odd inclusions in this filing (such as the fact that Tim Sczerby was omitted from a film Twin Galaxies neither directed nor produced), it remains to be seen what exactly this internal documentation may yield to support Twin Galaxies' claims.
At any rate, if you're at a loss for words, you're not alone. I was astonished that I lived to see the day when Roy Shildt had better standing with Twin Galaxies than Billy Mitchell did. Now I have lived to see the day when Twin Galaxies filed a lawsuit against Walter Day himself. No doubt that this will get uglier, and that through this process yet more revelations and evidence will be brought to light. But as ugly as this process may be, it is simply helping shine a light on a system which was, in truth, ugly all along. Billy Mitchell really did lie and fabricate evidence to boost himself over others. He really did use his influence with the scorekeepers to force recognition for his illegitimate scores. And Walter Day really did participate in the fraud, and cheat others out of their money. This behavior simply cannot be tolerated. On that basis, Twin Galaxies and Jace Hall deserve our support for being willing to fight this fight, where so many others before had simply (perhaps understandably) caved in to the bullies. I, for one, hope justice prevails. At any rate, as difficult as this process may be to watch, this legal battle is shaping up to be a resounding victory for those of us, gaming enthusiasts and historians, who are done entertaining the self-serving stories of con-artists, and who simply want to know the truth.
EDIT: I'd typed special damages as $31m as opposed to the accurate $3.1m.
