EXCLUSIVE: The Walking Dead isn’t back on the air until October 11 but AMC today tried to take a zombie apocalypse sized legal bite out of Frank Darabont and CAA’s multi-claim ongoing action against them. “All of Plaintiffs’ claims in this lawsuit ultimately will be proven meritless, but, …Darabont’s new breach of contract claims alleging entitlement to an additional 5% of contingent participation should be dismissed now,” said the cabler tonight in an almost down to the deadline wire response to the plaintiffs’ first amended complaint of August 4 in the nearly 2-year old multi-million dollar case.

Image (2) darabont__130107164558.jpg for post 397923“Contracts are not screenplays,” echoes the chomping memorandum of law from AMC’s lawyers in support of their dismissal aim (read it here) in language they’ve used before in this case. “They cannot be unilaterally rewritten simply because one party dislikes the ending. Yet, that is precisely what plaintiff Frank Darabont, a screenwriter, attempts to accomplish by amending his Complaint in this action to allege that he is entitled to an additional five percentage points of contingent compensation beyond the more than ten percentage points he already receives.”

amclogo4__140305172543-275x125__140516202144This is the latest blow in the bare knuckles suit that the ex-TWD EP and the heavyweight agency filed in late 2013 with claims that Darabont was screwed over with unpaid fees, gross receipts, intentionally low license fees, owed credits and more. After developing and launching the hit show based on the CAA_newlogoRobert Kirkman created comics series, Darabont was pink slipped in July 2011 after the first season had aired and Season 2 was in production. His successor Glen Mazzara was out the door on TWD in December 2012 after the end of the third season. Scott Gimple has served as showrunner on the series, which is going into its sixth season next month, since January 2013. Part of AMC’s argument today is that Darabont isn’t entitled to the additional participation dough because he wasn’t actually working on TWD until “after the conclusion of [the] second season of the Series.”

Darabont and CAA’s amended complaint filed this summer dropped the wrongful termination language in the initial filing but added that Darabont was now due 100% of his “Developed By Profits and EP/Showrunner Profits” vested shares. Also worrying for AMC was that Darabont Fear The Walking Deadand his agency set their sights on freshman Fear The Walking Dead, which debuted on August 23 to record breaking results. Labeling the series a  “derivative productions” for which they are due some serious cash under Darabont’s deal with AMC. AMC has always referred to FearTWD as a “companion” series – a parsing of language with legal implications. The issue of FearTWD did not come up in AMC’s pre-Emmy weekend response filings tonight.

“AMC’s relentless effort to deprive Frank Darabont of his vested rights to participate in the profits of TWD is yet another example of their callous attitude toward the creator of the show,” said CAA and Darabont’s lead lawyer Dale Kinsella in response to the response. “This frivolous motion will be vigorously opposed”

After long battles in discovery over who has a right to look at what from whom, sources tell me that depositions in the case continue with big names from both sides like AMC Networks CEO Josh Sapan and programming head Joel Stillerman as well as CAA president Richard Lovett recently facing questions from the lawyers. The late August litigious version of a knife fight with AMC livid over CAA Business Affairs exec Jon Ringquist being revealed not to be an attorney  has hit a roadblock. While the plaintiffs admit the agency higher-up is not a lawyer and it was an error that he was said to be one, the parties are not able to find a resolution to what AMC sees as repeated “false representations” by the other side. Rinquist was one of the few in the case given the right to look over the paperwork of the other side.

AMC said on a sanctions seeking filing on August 20 there is no way he should be looking at the much contested and confidential AMC agreements for the likes of Breaking Bad and Mad Men that have been dragged into the case. The highly contentious matter is now before the court appointed Discovery master at the order of Judge Ellen Bransten.

Marc Kasowitz, Aaron Marks, John Berlinski and Mansi Shah of Kasowitz Benson Torres & Friedman LLP’s NYC and LA offices represent AMC in this matter. Jerry Bernstein and Harris Cogan of NYC firm Blank Rome LLP along with Kinsella, Chad Fitzgerald and Aaron Liskin of Kinsella Weitzman Iser Kump & Aldisert LLP represent Darabont and CAA