EXCLUSIVE: Nearly a year and a half after the producer and the agency took their first legal swing at the cable channel over alleged unpaid fees, self-dealing, gross receipts and more from The Walking Dead, they’re back today to take a new blockbuster-sized bite with some missing teeth. In a proposed amended complaint filed Tuesday, Frank Darabont and CAA claim that AMC have played even faster and looser with big money due to the producer from the five seasons-and-counting zombie apocalypse hit series.
Surprisingly, the amended complaint has also altered the language of the wrong termination claim that had stood as a pillar of the original filing on December 17, 2013. Darabont exited TWD abruptly in July 2011 after the first season had aired and Season 2 was in production. Whereas the initial complaint said that “AMC wrongful termination of Darabont is further manifest from its failure to comply with its own Standards and Conditions contained in the Agreement” the language now reads that “AMC exercised its contractual ‘pay or play’ right to remove Darabont from the series.” With a “Nonetheless” changed to an “Instead” the amended complaint (read it here) still claims that “AMC summarily fired Darabont without cause, without notice, without explanation, and without any opportunity to cure.”
For the first time, the plaintiffs have called out the upcoming Fear The Walking Dead by name as “derivative productions” for which Darabont is due payment.“Plaintiffs are entitled to payments and/or contingent compensation under the terms of the Agreement for Talking Dead and any subsequent derivative productions, including the forthcoming scripted spinoff to The Walking Dead titled Fear The Walking Dead,” says the 30-page amended complaint put before the NY State courts Tuesday.
Today’s move comes as the two sides have bickered and fought over access to documents on both sides since Darabont first filed in late 2013. As that has been going on and the judge has had to step in to pull the two figuratively apart on a few occasions, the lawyers have also began moving forward on discovery. Midway through the process towards a trial, attorneys have been taking extensive depositions from the likes of CAA’s Bryan Lourd and other top dogs over there and the AMC brass too.
The new filing also seeks a declaration from the New York Supreme Court Justice Eileen Bransten on the new August 23-debuting FearTWD, which AMC has very specifically called a companion series. A designation that Darabont and CAA say is to deny the producer his cash. Additionally, the paperwork wants a declaration on the “artificially low” license fees AMC allegedly paid, as was in the original complaint, and that “Darabont’s shares of Developed By Profits and EP/Showrunner Profits” are now fully vested – a move that could add millions to the tens of millions that the producer said in his original December 17, 2013 filing that he was contractually owed.
“Several months after this litigation commenced, AMC Studios changed the way that it accounted to Darabont by issuing participation statements in a new multi-page format,” claims the amended complaint. “Based on this new format and deposition testimony in this litigation, it is now evident that AMC Studios has improperly reduced Darabont’s Developed By Profits from 10% to 7.5%, and improperly reduced Darabont’s EP/Showrunner Profits from 2.5% to 1.875%, in both instances treating Darabont’s Profit participation as only 75% vested. Defendants’ actions and position only became clear after AMC Studios changed the format of Darabont’s participation statements and following the recent testimony of an AMC executive, who confirmed that AMC was in fact treating Darabont’s share of Profits under Paragraph 13 as only 75% vested.”
Aiming for 100% vesting, the lawyers for the producer and CAA add with the kicker: “AMC never informed Darabont that his share of Profits was being reduced in this way.” With no objection to the filing of Monday’s amended complaint, though they “do not concede the truth of any of the allegations asserted” – the next move now is up to AMC.
Jerry Bernstein and Harris Cogan of NYC firm Blank Rome LLP along with Dale Kinsella represent Darabont and CAA plus Chad Fitzgerald and Aaron Liskin of Santa Monica heavyweights Kinsella Weitzman Iser Kump & Aldisert LLP. Marc Kasowitz, Aaron Marks, John Berlinski and Mansi Shah of Kasowitz Benson Torres & Friedman LLP’s NYC and LA offices are representing AMC.