Things many be on fire in the war between the survivors and the Whisperers on The Walking Dead, but it got pretty hot Monday also in the ongoing multimillion-dollar profit participation trial pitting AMC against creator Robert Kirkman and other executive producers.
“Sometimes counsel has to be held accountable,” defense lawyer Orin Snyder jumped up to insist this morning in another melee with the plaintiff’s lead attorney Ronald Nessim as former Discovery COO and Fox TV Studios SVP Edward Sabin sat on the stand. “All I’m trying to establish is that he had multiple meetings with them to plan strategy,” the Bird Marella partner told Judge Daniel Buckley as the imposing Gibson Dunn & Crutcher lawyer stood at the defense table.
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“I hate to quote Ronald Reagan, but there he goes again,” Snyder rhetorically retorted of Nessim, using the famous line the eventual 40th POTUS used to kneecap 39th POTUS Jimmy Carter in the 1980 election. In what has become a significant part of the so-called mini-trial over Kirkman’s 2009 contact with AMC, this latest squabble saw the attorneys again hit the mat over what can and cannot be said in open court.
“All communication between counsel and experts are off limits,” Snyder’s partner Scott Edelman said to Buckley of an agreement between the parties ahead of the February 10 start of the bench trial.
Hitting the pause button on pulling in examples of other AMC shows like Breaking Bad and Mad Men being brought into the case via a chart plaintiffs wanted to present, Buckley settled the matter with a curt statement that “we are not going to show other people’s percentage or contacts.”
As an occasionally cough-filled courtroom of TWD EPs, their reps and AMC lawyers and associates looked on, that put paid to the skirmish among attorneys, for now.
In what looks to be the last days of this trial, the tense tone of Monday was made evident earlier when Snyder took a swipe at the plaintiffs in asserting that “the only people in the television industry who have come to testify for them have a direct financial interest in this case.”
For the record, super lawyer Ken Ziffren, TWD EPs Kirkman, David Alpert and Gale Anne Hurd have been among those taking the stand for the plaintiffs’ case over the past month – all of which saw the well-paid lawyers in a near constant state of objection and procedural friction, to put it politely.
Initially filed in August 2017 and an evolution of sorts of the ongoing $300 million action from ex-TWD showrunner Frank Darabont and CAA from late 2013, this lawsuit from Hurd, Kirkman, Alpert and other EPs claims that AMC brazenly used sleight-of-hand financial moves to deny them required payments through contested Modified Adjusted Gross Receipts calculations, self-dealing, fine-print definitions and more.
For its part, in this case and the complex Darabont matter, AMC says top talent like Darabont, Kirkman and Hurd had top lawyers working to get them the best deals, and if they didn’t like the outcome, they should talk to the people they hired. Additionally, in the subtext of the years of litigation over these suits, AMC note that there is a certain fluidity to such deals where a contact is often the start of a negotiation.
As AMC prepares to launch another TWD spinoff with Beyond Worlds next month and the now Norman Reedus-led mothership series back for the rest of its 10th season, matters have become further muddled as it has emerged again and again that the once blockbuster TWD is so incredulously in the red that no one has received any profit participation payments at all since November 2018.
Although Hurd was not in the downtown Los Angeles courtroom Monday as in previous hearings, Kirkman and Alpert were in attendance. As she has been for most of this case, the wife of TWD EP Charles Eglee, who is now showrunner of Starz’s American Gods, was also seated in the audience.
Back after a more than two-week break, the near-end of first phase of what could be a precedent-setting big-bucks case on how backend money is accounted for will wrap up this week. Whether there will be more days of testimony or closing arguments, in what has been a repeatedly shorthanded process for expediency sake, seems yet to be determined. When Judge Buckley will make his ruling is also not known, but it is expected to come before the June start of the Darabont-CAA case in New York City.
Having said that, for tea-leaf readers, there may have been a sign or two this morning of where things could be going. Early in today’s proceedings, Buckley postulated that what if the parties just agreed to what is in Kirkman’s contract, the dispute being the raison d’être of this phase of the trial.
Additionally, Buckley poignantly asked plaintiffs’ lawyers “how do I use that?” when presented with a summation of former AMC president Charlie Collier’s brief testimony on February 19. Kindly calling the now Fox Entertainment CEO a “salesperson in and out” in the best sense of the phrase, Buckley appeared weary of any notion of what was termed “post-contractual conduct” in this case, which could be detrimental to the EPs.
After some arguments over documents and schedule setting, Monday started with testimony from attorney James Janowitz, who represented AMC in some of its deals with Shawshank Redemption director Darabont, which obviously hasn’t gone smoothly with the latter’s own suit against the former home of Mad Men starting seven years ago.
Terse to the strongest degree as have several defense witnesses, Janowitz tussled repeatedly with Nessim over the minutiae of the long-contested Darabont deal during his time before the court, where clerks had disinfecting wipes on their desks in this increasingly COVID-19-obsessed America. “My offer was to negotiate more favorable terms if Mr. Getman was reasonable, he was not,” the Pryor Cashman partner bluntly stated, in reference to Darabont attorney Robert Getman and the now deeply debated resulting deal.
Set to continue after the lunch break, Sabin’s time so far in front of the court was primarily another deep dive into the intricacies of TV contracts that has unsurprisingly characterized this mini-trial.
“For shows that the Fox Studio owned the series, we would not use the imputed license fee,” ex-studio exec Sabin admitted, while noting that the studio did use imputed license fees when the network owned all rights to a project. “Not that I recall,” was what Sabin told lawyers in his previous deposition, which the witness injected today was a response to a different question than he was asked in court Monday.
The now Cypher Media founder is expected to testify for at least a couple more hours today. It is unknown if at least one other scheduled witness would be appearing in the Spring Street courtroom Monday.
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