When the zombie apocalypse does come, downtown Los Angeles may or may not be an epicenter of societal breakdown. But it sure felt like it today as the first of several The Walking Dead profit-participation trials that kicked off in the City of Angels.
“If AMC Networks paid 100% of the production of The Walking Dead, you would agree that they made the show,” AMC’s lead attorney Orin Snyder asked opening witness Ken Ziffren on Monday in TWD creator Robert Kirkman’s so-called mini-trial to resolve contract interpretations with the cabler arising out of a potentially multimillion-dollar case filed in August 2017.
“No,” replied the notoriously circumspect Hollywood legal mandarin.
“They were inexperienced and they didn’t follow industry practice at the time,” Ziffren stated to the court regarding fair market value standards, transferred rights, and other fees and costs AMC, accused of self-dealing, embedded in the CAA-represented Kirkman’s deal more than a decade ago. “The AMC side of it botched it,” the Ziffren Brittenham LLP co-founder bluntly opined of the former home of Mad Men. “None of the plaintiffs were given any sort of guidance whatsoever of what the arrangement might be …until 18 months later,” he added.
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On an already shortened opening day that at one point saw a summary of Breaking Bad offered to the court, the first of two short breaks came as AMC and the Ron Nessim-led lawyers for TWD EPs Kirkman, Gale Anne Hurd and David Alpert were still battling over what will be sealed and what will be public over the next two weeks. Of course, the complex case that started Monday on the West Coast also has ex-TWD showrunner Frank Darabont and CAA’s long-running $300 million profit-participation case against AMC going to trial on the East Coast in June over the once blockbuster horror series, with the former case surely to inform the latter – maybe even kneecap it if AMC win in L.A.
With that on everyone’s mind, the Los Angeles courtroom Monday was filled with TWD EPs and plaintiffs Kirkman, Hurd and Alpert, as well as the spouse of fellow plaintiff and current American Gods showrunner Charles Eglee, in attendance. Along with that crew of creatives, there were AMC executives, PR representatives and a praetorian guard of lawyers on both sides from Bird Marella and Gibson, Dunn & Crutcher in what could be the opening round in a true industry table-turner over who really gets what out of Hollywood accounting.
In addition to Ziffren, Kirkman, Hurd and Alpert, ex-AMC Business Affairs SVP and current Blumhouse TV exec Marci Wiseman and former AMC president and current Fox Entertainment CEO Charlie Collier are all expected to testify during the non-jury trial over the next two weeks. Once the contract conflicts between AMC and Kirkman are resolved or at least defined, the EPs’ breach of contract case, which includes ex-TWD showrunner Glenn Mazzara, will progress into the money stage.
Defining the terms of that next stage is a big part of the mini-trial that began today and who is getting what, quite literally.
“Your firm earns 5% of all entertainment revenue that Ms. Hurd earns, correct?” Snyder probed Ziffren in an attempt to undermine his role on the stand today. “Your firm will receive 5% of any income Ms. Hurd recovers a judgment or settlement in this matter, right?” the Gibson, Dunn & Crutcher lawyer posed to Ziffren, as TWD EP and longtime Ziffren Brittenham client Hurd sat just a few feet away in the Los Angeles Superior Court courtroom. “We’ll have more than we had before,” was all that the man introduced by Kirkman lead lawyer Nessim as “widely recognized as the dean of the entertainment bar” would concede, as he later brushed off the downplaying of tax sleight of hands and Snyder-described “shuffling of rights” over TWD.
However, just as the pugilistic Snyder got underway this morning, the whole shebang was halted at 9:45 AM for a few minutes as Los Angeles Superior Court Judge Daniel Buckley left the court to deal with a deposition in another case.
Back in TWD-land, things did get fiery at several points as the sharp legal minds of Ziffren and Snyder faced off.
“I’m sorry you have mischaracterized my testimony,” Ziffren informed Snyder as the latter at one point quoted from the former’s deposition of last month. Snyder had claimed Ziffren could find no example of financial harm that Kirkman suffered out of the AMC deal, a statement the latter clearly disagreed with and stated as part of the “reason we are here.”
As parties bickered over vital definitions and language, today’s slow-burn start to a highly charged matter that has festered through the courts for almost three years comes as TWD returns for the remainder of its 10th season on February 23, a second spinoff is set to debut in April, and a Rick Grimes movie is coming.
But it was the grinding details that dominated the first part of today. Time and time again, the notoriously circumspect Ziffren drew Snyder into the weeds on the finer points of Kirkman’s contested 2009 contract with AMC, and equally as much the combative Gibson, Dunn & Crutcher lawyer sought to peel back the likes of Modified Adjusted Gross Receipts calculations in the EP’s agreement and the $500,000 he received in advance.
“You could argue about 1%, but fine,” said Ziffren mildly dismissively at one point as she pushed back when Snyder postulated that only about 1% of the world watched television online in 2009, which was four years before Netflix jet-fueled the streaming era with its own original programming. To further spotlight the nature of the bulk of today’s testimony, I will also point you Snyder’s meticulous close reading of the contract in contention: “I want to focus your attention sir, on the word shall, something that must be done as opposed to may, mandatory as opposed to permissive.”
“At one point, can we move on to a different point beyond New York law,” Judge Buckley asked the lawyers, before pausing again to handle another case for 10 minutes this morning.
Noting that he was “jumping through hoops” to meet the schedule of some of the witnesses, Buckley pulled the plug on today’s hearing at noon PT as Nessim had begun the first few minutes of his cross examination of Ziffren.
The trial will pick up tomorrow at 9 AM with “some time deadlines” on witnesses to move things along, to quote Buckley after a long morning.
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