WGA West & Scribe Sued For Fraud By Nu Image/Millennium Over ‘Expendables’ Credit

There might be one less name on the credits for The Expendables 3 if Millennium Films and Nu Image get their way. The producers have taken the Writers Guild of America West and scribe David Callaham to court this week for fraud, unjust enrichment and declaratory relief over the original Expendables. They claim a flawed and misinformed 2009 Guild arbitration gave the writer undeserved credit on the successful Sylvester Stallone-directed 2010 retro action pic as well as its sequels. To that end the plaintiffs want back the $102,250 that was paid to Callaham for as a “writing credit bonus” after the WGA arbitration went his way four years ago. In their demand for a jury trial and unspecified damages plus legal fees (read it here), they also want any sequel payments nixed and the court to rule that Callaham committed fraud by withholding vital correspondence from the WGA that revealed his true and much more limited role in The Expendables script. They also want the 2009 WGA ruling partially reversed and the Guild to “discipline” UTA-repped Callaham for not revealing emails in which he seemingly indicates his lesser involvement in the Expendables script.

“Plaintiffs are informed and believe that Callaham intentionally withheld these material emails, and concealed the limited extent of his contributions to The Expendables from the WGA screen writing credit arbitration panel in 2009 and instead continued to assert before the arbitral tribunal his patently false assertion that he was entitled to sole ‘Written By’ credit for The Expendables,” claims the 17-page complaint filed Monday in LA Superior Court.

According the filing, the alleged misrepresentation at the 2009 arbitration only recently came to light after Callaham made move earlier this year for sequel payments, which is why Nu Image and Millennium are pursuing this action now. That and the fact that with Expendables 3 set to be released on August 15, 2014 they don’t want to have to pay Callaham more than $230,000 in further payments. Callaham, who has a story credit on Warner Bros and Legendary’s upcoming Godzilla reboot, received $250,000 back in 2002 after Stallone “reviewed” his Barrow script while writing The Expendables. Being that the actor/director admittedly did base some of his mercenary characters on elements on Callaham’s work, the plan was also that the scribe would get a shared “Story By” credit but that long time WGA member Stallone would receive sole screenplay credit.

However, because Stallone was also the director of the pic and a production executive, an automatic arbitration to sort out screenplay credits kicked in under WGA rules. It was at that 2009 ruling that the plaintiffs say Callaham overstated his participation. “Plaintiffs allege that upon information and belief Callaham contended that he alone wrote the screenplay for The Expendables…these representations and Callaham’s position were patently false and confirmed by Callaham’s own written words and disclosures that came to light years thereafter,” says the complaint. On September 22 of 2009 the WGA revealed its determination that Callaham was to receive the lone “Story By” credit and the top spot in the shared “Screenplay By” credit with Stallone on the Lionsgate distributed pic.  In May of this year, Callaham and his Jittery Dog company instigated a new arbitration for a $175,000 sequel payment for 2012’s Expendables 2 even though he had nothing to do with the writing for that movie.

The plaintiffs in the complaint are Nu Image Inc, Millennium Films, Double Life Productions, Alta Vista Productions Inc., Alta Vista Financing and Alta Vista Productions, LLC. The defendants are David E. Callaham, his company Jittery Dog Productions and the Writers Guild of America West. Nu Image and Millennium and the other plaintiffs are represented by Charles Coate and Darius Anthony Vosylius of Santa Monica firm Costa, Abrams & Coate LLP.