Thatís all youíre dealing with and the lawyers representing these guys should know better. Spend some time looking at this site and it probably ranks just about where it should. It may well be penalized but thatís another matter. I donít mean to be critical of someoneís site, but these guys asked for it with this law suit.
Run a site command on this thing and itís a mess.
Right off the bat the home page is indexed in both http and https, resulting in the exact same page indexed twice. They have all kinds of directory pages indexed, that have gone supplemental, they have hundreds of dead 404 pages lying around just to name a few of the problems.
I have had sites dropped for reasons that were beyond me and been a bit upset but you cannot honestly think you can go before the man with this site and prove it should rank well.
Who knows, maybe someday someone could make some sort of case about penalties and ranking but its not going to be this one. And if someone were to bring a suit about penalized sites Yahoo would provide much more fertile ground on this issue than Google. In Yahoo you get the death penalty, at least in Google they rank for some terms.