Robert Kirkman and his fellow The Walking Dead executive producers may have been late to the game compared to Frank Darabont when it came to taking AMC to court over profits from the zombie apocalypse series, but it looks like the creator will be first to trial next year.
At least a mini-trial that could see the whole matter resolved.
Los Angeles Superior Court Judge Daniel Buckley ruled Wednesday that TWD creator Kirkman can have a mini-trial starting February 10 to resolve contract interpretations with the cabler. The so-called min-trial is expected to last 2-3 weeks.
That means the creator and executive producer will see at least part of the August 2017 case he filed with fellow EPs Gale Anne Hurd, David Alpert and Charles Eglee,
plus former showrunner Glenn Mazzara, in motion about four months before TWD’s first showrunner Darabont’s more that $300 million case has its scheduled trial start in May 2020.
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With fiery terms like licensing fees, “fair market value” and breach of implied covenant being bandied about, plus claims of self-dealing and backend points in the background, the lawyers for Kirkman and AMC had very different reactions to Buckley’s decision today.
“It would impose very serious hardships on us,” AMC’s lawyer Scott Edelman proclaimed of the early 2020 start date in what he called a “very significant case for the client.” Having been brought onboard several years ago in the Darabont case with his Gibson, Dunn & Crutcher LLP colleague Orin Snyder, Edelman is understandably straddling a lot of TWD, and we don’t mean the Season 10 opener of October 6.
“Between all the discovery that needs to be done, between New York and Los Angeles, it would be a Herculean feat, if we had nothing else,” Edelman told Buckley as AMC legal brass listened to the courtroom proceedings over the phone. “We have this other case in New York that is set to go to trial in May,” the lawyer noted, in what was the first of many references to the blockbuster Darabont case.
That didn’t cut a lot of cloth with Kirkman’s team.
“We disagree, this is a very limited trial of contract interpretation issues,” said Ron Nessim, a partner at Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow P.C. “We all have busy schedules,” Nessim added calling the other side “desperate” at one point. “It’s five months away, it can be done,” he said.
“We’re will to come back as soon as that case is over and have a mini-trial,” Edelman offered as a response.
Circling around Kirkman’s 2009 contract with AMC as the core of the mini-trial, Edelman at one point also offered a rather succinct description of disputed aftershow Talking Dead as a “promotional vehicle” for TWD and spinoff Fear the Walking Dead. Called a “new animal” and a “derivative program” by Nessim, the Chris Hardwick-hosted show remains a grey area in Kirkman’s case.
The parties are penciled in to meet in the morning September 6 to finalize deadlines for written notices and more of the process leading up to the mini-trial. Called “way outside the box” by Buckley, a closed and “dog and pony show” that could see damages discussed and experts examined was also floated by the LASC judge for the lawyers to take back to their respective clients — for during or after the mini-trial.
Depending on how the min-trial goes, and if a settlement is not reached, Phase 2 of the potential very big bucks case could then possibly go to trial in summer 2021.
Along with their transactional lawyers, Hurd and Alpert look likely to be deposed in the Kirkman mini-trial, it became apparent in today’s hearing. By the nature of their contracts and the way their profit-payouts terms work, Eglee and Mazzara, who took over from Darabont in Season 2 of TWD, will seemingly not be asked to participate in the mini-trial, at least at this juncture.
Of course, from many angles, Darabont looms over what was going down in DTLA on Wednesday afternoon.
Canned from TWD just before its second season debuted in October 2011, The Shawshank Redemption director took the then-Charlie Collier-run AMC to court in New York at the tale end of 2013. In what has become a sometimes ugly and certainly revelatory process since, Darabont’s case is now on its second New York Supreme Court judge and saw a second lawsuit added in early 2018, based on a reading of Kirkman’s contract – irony of ironies.
In fact, the deep discovery in the Darabont case and updated profit statements apparently revealed to Kirkman, Hurd, Alpert, Elgee and Mazzara that they too had been shortchanged in their compensation from the blockbuster. Their summer 2017 lawsuit basically resulted in the bulk of TWD creative team turning on AMC for ripping them off – even as the latter group continue to work with the cabler on more seasons of both TWD and FearTWD as well as more spinoffs and Rick Grimes feature films.
With a bi-coastal clock ticking, the increasingly besieged defendants had suggested that any Kirkman mini-trial should be pushed deep into 2020 – a move the plaintiff’s team saw as self-serving.
“AMC’s September 2020 proposal would mean that breach and damages discovery would not begin for another entire year,” stated the parties’ joint status conference report filed on August 23 (read it here).
“AMC knows this, and by proposing a year-long delay in the mini-trial, they essentially kill the idea for the mini-trial: to resolve key issues to create a climate for settlement or at least resolve key contractual interpretation issues so that this Court can rule on the damages’s discovery requests that the parties have been stymied on for months now,” the joint 15-page document detailed.
Team AMC sees it being more a matter of resources and air miles for the cash-rich cabler.
“Diverting the defense team’s efforts from trial preparation for the Darabont Actions in the critical months before the May 2020 trial to prepare for and conduct what could be a three-week trial in this Court will significantly strain resources, spread our defense team (some of whose key members are in New York) across the country, and deprive Defendants of a fair opportunity to vigorously defend themselves in a dispute that has been pending for nearly six years in New York state court, in which the plaintiffs seek hundreds of millions of dollars,” the Gibson, Dunn & Crutcher lawyers laid out in the status report.
With Buckley keeping to his February 2020 mini-trial start date at the end of the argumentative hearing, seems they will have a very busy Christmas now.
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