UPDATED with more material from AMC filings, 7:01 AM: AMC has been fighting tooth and nail for more than three years with former The Walking Dead showrunner Frank Darabont and CAA over money the ex-EP and his agency claim they are owed from the zombie apocalypse blockbuster. However, as filings by both sides made late last night in the $280 million case reveal, the cabler has recently been handing out more of the backend at the same time – even unexpectedly to Darabont and CAA.
Put in context of the often perfidious case’s march towards a potential 2018 trial, the percentage of the Modified Adjusted Gross Receipts that TWD EP Greg Nicotero just received is small but not insignificant. In fact, according to the court papers filed tonight, Darabont and CAA were paid “more than $3 million, each, through March 31, 2017” as a side effect of sorts of the Nicotero agreement. This new license fee deal comes as both sides head towards a pivotal summary judgment hearing on August 24 in NYC.
“Just last month, AMC gave Nicotero 1% of MAGR on the Series in order to insert an improved imputed license fee formula into the MAGR definition and throw more money at the Series’ participants, attempting to substantiate its argument about the utility of the Most Favored Nations Provision ex post facto,” asserts a not exactly overjoyed memorandum of law that lawyers for The Shawshank Redemption director and the uberagency filed in New York state court late Wednesday in opposition to AMC’s motion for summary judgment.
Note that phrase “throw more money at the Series’ participants” and recall, if you’ve been following the acerbic case since Darabont and CAA first sued AMC in December 2013, that the man who developed TWD into a TV series and his agency are two of the top beneficiaries of profits compensation with nearly 20% of the MAGR put together – and claiming more.
That means that if EP and frequent season finale director Nicotero now gets a check, Darabont and CAA got their more than $3 million each and will see more than a few extra shekels going forward out of the series based on Robert Kirkman’s comics – but that might be the goodwill distraction AMC is hoping for. “Plaintiffs have not received a new MAGR definition incorporating the purported changes,” points out a statement of material facts filing of early Thursday. “Plaintiffs did receive new participation statements and checks,” it adds, though also seeking to slice any apples to oranges comparisons of the sort of deal Darabont, who currently gets around 10.5% and seeks 15%, has and what current showrunner Scott Gimple did or did not accept when he was rewarded with a 1% MAGR not too long ago.
There’s an additional noteworthiness to that insofar as after years of brawling with Darabont and CAA on their allegation of “self dealing” on AMC’s part by setting an unrealistically low license fee for TWD, the cabler has now suddenly adjusting that rate on the cusp of the series’ eighth season. An indication perhaps of the tactic they and their Marc Kasowitz-led praetorian guard of lawyers mean to employ if this case currently before Manhattan-based Judge Eileen Branston actually ends up going all the way to trial next year.
Having brought the quickly successful TWD to the small screen, Darabont was suddenly pink slipped in July 2011 midway through production on the show’s second season. More publicly stinging was that the firing happened just after Darabont had appeared at Comic-Con that year with Kirkman and fellow EP Gale Anne Hurd to promote the show. After surviving more than a couple attempts by AMC to get the case tossed since it was initially filed, Darabont and CAA last fall announced that they are seeking damages of over $280 million in the matter.
“We have always respected Frank Darabont and admired his work in film, which was part of the reason we hired him to adapt The Walking Dead for television,” said AMC in a statement early this morning as the various documents started appearing on the court docket. “We released him because it soon became clear that his film talents did not translate to running a television show – one of the most difficult jobs in entertainment – and because he was repeatedly abusive and threatening to those working around him and under his direction,” the cabler adds. “He made the set and writers’ room a threatening and toxic work environment.”
“Through the ensuing lawsuit, Mr. Darabont and his agents at CAA are trying to rewrite their contracts through the courts, to capitalize on the success of the series in the years after Mr. Darabont was removed,” the statement goes on to say in language similar to that AMC has used before in this matter. “Frank Darabont did not create The Walking Dead, Robert Kirkman did, and Mr. Darabont and CAA have already been fairly compensated for his work on the show and will continue to benefit from their ongoing financial participation. Contracts are not screenplays, they can’t be rewritten just because one side doesn’t like the way they turn out, which is what Mr. Darabont and CAA are attempting to accomplish through this lawsuit.”
In the plaintiffs’ response to AMC’s forthcoming filings that clearly seek to justify in part the firing Darabont by spotlighting examples of rough, rude and seemingly completely inappropriate language, the lawyers essentially blow it off and up. “AMC was obviously not bothered by the language at the time of the email,” they say with no small sarcasm in one instance as the admittedly often sharp Darabont was in the thick of Season 1 of TWD in 2010.
In another example where Darabont wrote an email that said “everybody, especially our directors, better wake the f*ck up and pay attention. Or I will start killing people and throwing bodies out the door,” the former EP’s attorneys don’t deny the vitriolic verbiage but attempt to try to soften the edges. “Darabont is referring to the same footage that Darabont’s replacement showrunner, Glen Mazzara, called the worst footage he had ever seen in his career,” Darabont’s lawyers plea.
Along with Darabont, CAA, and Nicotero, other MAGR participants on TWD include Hurd, Kirkman, Darabont’s first replacement as showrunner Glen Mazzara, current showrunner Gimple, and EPs Charles Eglee and David Alpert. Redacted participation statements from earlier this year for all are included in the bevy of documents filed early this morning by AMC.
The opposition document and material for Darabont and CAA’s own partial summary judgment, plus other AMC deals for Breaking Bad, its prequel Better Call Saul, Mad Men and the one season Rubicon, were filed electronically early Thursday morning on the East Coast to meet a deadline set by Judge Branston at a June 9 hearing. Eventually the droves of documents that Darabont and CAA’s attorneys and AMC are expected to file today come out of years of discovery and meticulous hearings held earlier this summer that saw the surgical redaction or unsealing of individual words and phrases argued in a Manhattan court room by both sides.
“AMC’s motion for summary judgment is a deliberate and shameful attempt to wipe out Plaintiffs’ bargained for rights to participate in the profits of The Walking Dead, the blockbuster television series developed by Frank Darabont that has catapulted AMC to financial success,” summarized the plaintiffs’ bi-coastal team of lawyers from Hollywood heavyweights Kinsella Weitzman Iser Kump & Aldisert LLP and NYC’s Blank Rome LLP.
Calling the alleged suppression of the license fee “egregious,” the motion for partial summary judgment filed today by the plaintiffs is much more focused on a “pure question of contract construction.” Specifically, the motion is looking at the Affiliate Transaction Provision of the contract that Darabont and CAA’s lawyers say is supposed to be the bulwark against the self-dealing they have long alleged AMC has employed.
Not that Darabont and CAA’s legal team didn’t also call out AMC for what they obviously deemed pulling a bit of a fast one. “AMC also flagrantly violated the Court’s so-ordered stipulation by altering and revising its motion papers eight months after they were first exchanged, to include additional evidence AMC could have included when the briefs were first exchanged, and to add wholly new evidence produced by AMC on June 23, 2017—five days before the parties exchanged the briefs for a second time following resolution of sealing issues,” the opposition document said in a footnote right on Page 1. “The Court should disregard AMC’s new evidence, although the new evidence does not help AMC’s motion, and rather serves as an admission supporting Plaintiffs’ motion.”
“This lawsuit is a transparent attempt by a greedy television producer and a Hollywood talent agency to obtain through post-agreement litigation what their lawyers could not achieve through pre-agreement negotiation,” say AMC in their opposition to Darabont and CAA’s partial summary judgement motion. “Indeed, try as they might to show that the standards of the ‘Affiliate Transaction Provision’ should apply to the so-called ‘imputed license fee,’ Plaintiffs’ transactional counsel—a sophisticated lawyer with decades of entertainment industry experience—asked for the same thing during contract negotiations, Defendants rejected this request in writing, and Plaintiffs signed the contract anyway,” the document from the cabler adds, as it has before in the case. “Completely ignoring these facts, Plaintiffs’ Motion pretends that Defendants consented to Plaintiffs’ lawyer’s request instead of rejecting it.”
Tonight’s various filings by Darabont and CAA and AMC come just over a week before Hurd, Kirkman, the cast and current creatives of The Walking Dead are set to make their annual appearance at San Diego Comic-Con in the cavernous Hall H. If past panels in the venue are any indication, the fans can expect to see a trailer for the fall debuting Season 8 of the Andrew Lincoln, Danai Gurira, Norman Reedus and Jeffrey Dean Morgan starring series plus an official premiere date.
AMC are represented by Kasowitz (who is also Donald Trump’s lead personal attorney), Aaron Marks, John Berlinski and Candice Frazier of Kasowitz Benson Torres LLP.