A week after a New York judge rejected AMC’s efforts to have Frank Darabont and CAA’s claims to more profits from The Walking Dead dismissed, a newish brouhaha has flared up between both sides’ lawyers. In a sense, it’s not totally unexpected in a case that has seen even odder-than-usual accusations and occasions from both the fired and former TWD EP and his agency and the cabler in the more than two years the matter has been before the courts.
This latest venting started on Tuesday, when AMC’s attorney Aaron Marks wrote a letter to Judge Eileen Branston “pursuant to Your Honor’s request during oral argument last week.” Going back and forth with AMC lawyer John Berlinski at the February 9 hearing, the New York Supreme Court judge had said that she would take a “relook” based on “some additional issues” raised. After Marks’ letter was filed yesterday, Darabont and CAA lawyer Jerry Bernstein wasted no time or feelings in his reply of sorts today.
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“I am writing in response to Defendants’ clearly improper, and sanctionable, supplemental briefing filed yesterday,” the Blank Rome LLP man wrote in a letter dated February 17. “Defendants’ counsel has now filed what amounts to a third brief in support of their Motion to Dismiss, which was argued at length and then decided by the Court. Your Honor has already considered and rejected Defendants’ arguments, which add nothing new.
“Now, Defendants are trying to take still another bite at the apple by submitting what amounts to a post-argument brief without leave of the Court,” Bernstein added of the complaint amended in August that claimed much more money had been wrongfully and contractually denied ex-EP Darabont than was first believed when the initial suit was filed in December 2013. “Defendants’ improper additional briefing should be summarily rejected by the Court.” After having shepherded the series based on Robert Kirkman’s comics unto the small screen Darabont was pink-slipped by AMC in July 2011 after work on Season 2 already had started.
After AMC attorney Berlinski was chastised on February 9 by Branston for “being very, very manipulative in terms of language,” you’d think the defendants would have taken their amended complaint loss in this stage of the case. They could have appealed, as Branston suggested last week they do if they didn’t like her tentative ruling. Alternatively, they could have focused on the complex discovery process in motion or consideration of bringing in a private mediator, as Branston heavily suggested near the end of last week’s hearing. “For purposes of this motion, the Court was legally bound to accept Frank Darabont’s factual assertions as true, so the standard for dismissal at this stage was very high,” said AMC in a statement after last week’s hearing. “We look forward to revisiting these matters when the Court is permitted to review the complete record.”Less revisiting and more, as Bernstein points out, basically rearguing last week’s hearing and their POV that Darabont is not entitled to potential millions from the second season of the zombie-apocalypse blockbuster. “When read together, these provisions show that when AMC exercised its right to remove Mr. Darabont from the Series, he was entitled to only his ‘vested’ — past tense — contingent compensation, and because the final vesting event of the conclusion of Season 2 had not occurred as of that time,” wrote the attorney from Kasowitz Benson Torres & Friedman LLP. “We look forward to receiving your final ruling on Motion Sequence No. 11,” ends Marks.If Branston’s tone and tentative are any indication, they might not, actually.
So you know all the players: Marks, Berlinski, Marc Kasowit, and Mansi Shah of Kasowitz Benson’s NYC and LA offices are representing AMC; Bernstein and Nicholas Tambone of NYC firm Blank Rome LLP along with Dale Kinsella are handling things for Darabont and CAA, with his fellow attorneys Chad Fitzgerald, Aaron Liskin and Nicholas Soltman at Kinsella Weitzman Iser Kump & Aldisert LLP.
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