For a trial probing potentially millions in profits denied Robert Kirkman and other executive producers of The Walking Dead, some real star power showed up Friday on this battlefield of the zombie apocalypse blockbuster series.
“The representation to me was we would be treated the same as if it was made by Lionsgate or Sony who made Mad Men and Breaking Bad,” TWD executive producer Gale Anne Hurd said on the stand today, with a caveat of “words to that effect” that then-AMC boss Charlie Collier told her in 2010 of expected profit-participation payouts for the outlet’s first in-house production.
Choosing her worlds carefully but with nothing but love this Valentine’s Day in a downtown Los Angeles courtroom, plaintiff Hurd parried with lead AMC lawyer Orin Snyder repeatedly over who exactly said what about money and when, with citations from her previously given deposition weaved in. That deposition did not mention the Collier representations, though the EP’s written declaration did.
What seemed to not be in question is that according to AMC the ever-expanding universe of TWD is supposed to be a money pit – at least the now 10-seasons-and-counting mothershow is. “By using an artificially low imputed license fee formula, the show is falling further and further into deficit with zero payments to participants at least the last two years,” one of the Bird Marella lawyers representing Kirkman, Hurd and fellow TWD EP David Alpert in their nearly three-year lawsuit told Judge Daniel Buckley’s court this morning of the AMC series.
Noting a conversation between Collier and Hurd that her profit participation would be just as good as if TWD was produced outside the company, lawyers for the plaintiffs said in court Friday that Collier’s statement was taken at face value by Hurd until she came to believe otherwise, and hence her part in the lawsuit, which was filed in August 2017. Now the CEO of Fox Entertainment, former AMC president Collier is set to take the stand himself next week as this phase of the case that centers on Kirkman’s contract continues.
An initially cheery Kirkman soon succeeded Hurd and Alpert on the stand to tell the court that “I believe it was a group decision” to file the suit, which claims AMC ripped the producers off to the tune of millions of dollars. Similar to an earlier East Coast $300 million case launched by ex-TWD showrunner Frank Darabont nearly seven years ago and headed to trial this June, the EPs are alleging that AMC used underhanded accounting moves, production expenses and contested Modified Adjusted Gross Receipts calculations to deny them the cash they say they are due.
Following a fairly brief exchanges of “yes” and “no” answers to questions from Snyder, Kirkman was off the stand in less than 20 minutes in the so-called mini-trial. Once Kirkman stepped down, Snyder dismissed the nearly three-year-old legal move by the EPs as “buyer’s remorse” after having already reaped millions of dollars off the success of TWD.
Starting off with a couple of “I don’t recall” and “I don’t have knowledge of every network it was pitched to,” Hurd spent the most time in the witness box Friday, almost as much as Kirkman and Alpert combined.
At first, having inked a 7.5% profit-participation agreement with AMC more than 10 years ago, industry vet Hurd was led by Snyder through a tutorial on how perilous the small screen business is at the beginning of her time on the stand. “The way companies like AMC make money is to have more hits than misses,” Gibson Dunn & Crutcher’s erudite Snyder told the well-informed court and Hurd.
“Yes, I was also surprised at the success of Terminator,” Hurd scathingly informed Snyder at one point when he asked if the EP was surprised by the huge success that TWD had following its premiere on Halloween 2010. However, Hurd wasn’t buying into Snyder’s overarching premise that AMC was really the only home and audience foothold a zombie TV series was able to find in that very different era of over a decade ago.
“Give that True Blood was a success on HBO, I’m not surprised that a horror series was a success, but I was surprised it was the success as it was,” the Valhalla Entertainment boss told Snyder.
Following Hurd’s time in front of the courtroom, her fellow TWD EP and plaintiff Alpert took the stand.
“I would reach out to AMC about many things, but reaching out on backend compensation is not something that would have been appropriate,” the Circle of Confusion manager and Kirkman’s business partner told AMC’s outside counsel Scott Edelman about why he left the contested matter of the imputed license fee and MAGR to his lawyers, who took a strategy of postponement. “They indicated that they would treat us fairly and when they didn’t, we resorted to litigation,” Alpert stated plainly of AMC’s tactics.
“We believe that they overplayed their hand — filing a lawsuit is not a way to negotiate in good faith … not an appropriate use of our judicial process,” Edelman told the court after Alpert concluded his testimony. “AMC asks only that this court enforce their contracts,” the Gibson Dunn & Crutcher lawyer added.
“We’re seeking to enforce the agreements, and AMC is seeking to re-write the agreements,” the plaintiffs’ chief lawyer Ron Nessim said, jumping in and seeking to sweep away what he said was a “false” narrative that AMC’s attorneys continue to bring up after each witness that the netwoks was the one sticking to the deal.
As she has been almost all week, Hurd was in the Spring Street courtroom before her testimony Friday. Before she took the stand around 10:35 AM PT, fellow frequent attendees Kirkman and Alpert sat side-by-side on a corresponding pew in a courtroom otherwise mainly filled with legions of lawyers and PR representatives for both sides. Unlike every day of this anticipated two-week mini-trial, the spouse of fellow plaintiff and current American Gods showrunner Charles Eglee was not in the courtroom today.
Hurd confirmed to the court that she met the TWD creator through Darabont and CAA in the early days of talks over a potential TV series. As also started in court today, it was the Terminator producer who suggested AMC as a possible home. As was noted later in the proceedings, HBO had an option on the show, but the EPs decided to go with AMC in the hopes of getting TWD on the air faster.
Also including former TWD showrunner Glenn Mazzara, the EPs’ suit against AMC, came out of the big-bucks profit-participation case that ex-TWD showrunner Darabont and CAA launched in late 2013. With everyone in the courtroom today aware of the potential importance of the Kirkman case to the ongoing Darabont affair, the Shawshank Redemption director and his superagency are set to see their own trial against AMC start in June in New York City.
Along with the much-mentioned Collier, the L.A.-set mini-trial’s witness list included Robert Getman, a former lawyer of Darabont’s, plus ex-AMC Business Affairs SVP and current Blumhouse TV exec Marci Wiseman.
Friday originally began with the further grilling of AMC outside counsel Marilou McKean that had begun in the last part of Thursday’s session, much of which revolved around whether aftershow Talking Dead was a derivative of TWD or a spinoff, specific terms that have very different meanings and payouts for Kirkman and others.
Taking Dead “was always meant to be a promotional device for the show…nothing more, nothing less,” McKean said of the aftershow and the cash compensation given to EPs as a courtesy of sorts. In a truly bizarre reveal in an overall case full of oddities, McKean has recently admitted she “forgot” to include an integration clause in Kirkman’s contract – an omission Kirkman’s lawyers jumped on on numerous occasions.
On Thursday, lacking the marquee name producers in the hot seat, the day started off with a continuation of the February 11 testimony from Kirkman’s lawyer Lee Rosenbaum. That was followed after lunch by fellow attorney Shep Rosenman, who directly handled much of the TWD creator’s actual key contracts with AMC in 2009. With a lot of time spent by the latter talking about Talking Dead too, both sessions saw objections galore from both sides. The Rosenbaum testimony also had the judge telling lawyers, “I hate to repeat, but you have to trust me, I know what’s in the declarations” as attorneys seemingly were spending valuable time going over matters already covered in submitted and still partially sealed paperwork.
Towards the end of Thursday morning, which had run much longer than anyone expected, Buckley had obviously run of patience with how long questioning of witnesses was taking and said he would start imposing time limits. “If you just want them to read the declarations, that’s fine,” the LASC judge said to Nessim, with a look over at AMC’s lawyers, too. At a later point, Buckley scolded defense lawyer Scott Edelman, saying “don’t tee up the issues” in his questioning of Rosenbaum.
Later on Thursday, Buckley laid down that lawyers would have approximately one hour to examine witnesses and 20 minutes for cross examination, with specific exceptions to be considered.
Right before lunch yesterday, the parties argued before the judge on whether Darabont attorney Getman could testify in the Kirkman case and what documents relevant to him and the Shawshank Redemption director could be admitted on this matter. After lunch, there was a rare moment of agreement between the lawyers that culminated with Edelman exclaiming “absolutely!” to a statement from the plaintiff’s side that some documents could merely be entered into the record.
“It’s always harder to pull mud off the wall once it has been thrown,” Edelman added.
The mini-trial is expected to go at least another week, though further days in March could also be on the calendar. AMC lawyer have indicated they hope to have the matter resolved by Wednesday, if they can keep up Friday’s brisk pace.
Regardless of how long this first stage takes, Buckley has not indicated when he will rule. The expectation is the ruling will certainly come in plenty of time before the Darabont begins this summer.