Finally heading towards a jury trial in April 2021, CAA and ex-TWD showrunner Frank Darabont’s long-simmering profits participation lawsuit against AMC flared up again this week as both sides submitted a flurry of new filings to the New York Supreme Court. Once again, expletive-filled emails from the Shawshank Redemption director plus the ongoing war over agency packaging were in the spotlight as all parties jockeyed for what would and would not be allowed as evidence in the proceedings next year.
“Neither Darabont’s emails, nor the WGA’s wholly-unrelated lawsuit against talent agencies, nor Defendants’ fabricated and illogical theory that CAA put its interests ahead of Darabont’s, are remotely relevant here,” wrote Blank Rome LLP and Kinsella Weitzman Iser Kump & Aldisert LLP lawyers for the filmmaker and the uberagency in a motion (read it here) to shut down AMC’s efforts to have the emails and the sprawling guild dispute thrown into the already convoluted mix. “But it is beyond question this evidence would unduly prejudice Plaintiffs and distract the jurors from real issues.”
Now, as AMC made sure the world knew with a salacious document dump in 2017, the fact is that Darabont did let loose in the early early days of TWD with digital salvos telling people they “better wake the f*ck up and pay attention. Or I will start killing people and throwing bodies out the door.” Another fact is that CAA is actually part of this seven-year-old action in no small part because of the packaging deal it wove a decade ago around the creation of the series based on the comics of now CAA client Robert Kirkman. Actually, the agency, along with WME, continues to fight the guild even as the likes of UTA and ICM Partners have smoked the packaging peace pipe.
Another fact: While AMC wants the juicy Darabont stuff in the big-bucks case in one motion, in another, about internal company compensation documents, the Josh Sapan-run organization seeks to keep everything rather frank, pun intended
“The focus of this trial is narrow: Did Defendants pay Plaintiffs in accordance with the terms of the parties’ agreement or, as Plaintiffs allege, should the jury jettison the contract terms in favor of a fair market value approach based on alleged custom and practice in the entertainment industry,” say AMC’s Gibson, Dunn & Crutcher lawyers, led by NYC’s Orin Snyder and LA’s Scott Edelman in an omnibus motion (read it here).
“Admitting this evidence would also turn this trial about Defendants’ breach of contract into a series of irrelevant and time-consuming ‘mini-trials’ about, among other things, how well-liked Darabont was by the cast and crew – many of whom only agreed to work on the series because of Darabont – and about the practice of agency packaging,” CAA and Darabont’s high-powered legal team continue in their own 26-page filing about the admission of the emails and the WGA conflict. “Here, the ‘collateral’ matter Defendants want to use to distract the jury risks swallowing the actual matter in dispute, which already involves complex contracts and an industry the jurors are likely unfamiliar with,” they conclude.
Suddenly axed from TWD just before its successful second season debuted in October 2011, Darabont and CAA took the then-Charlie Collier-run AMC to court in New York at the tail end of 2013. In what has become a sometimes ugly and certainly revelatory process since, the case is now on its second New York Supreme Court judge and saw a second and now consolidated lawsuit added in early 2018, based on a reading of Kirkman’s contract.
Heading towards an October 9 hearing in the Big Apple before Justice Joel Cohen, these latest filings in the Darabont matter come after AMC scored a big West Coast win last month in its profit participation dust-up with Kirkman and other TWD EPs.
Conducted without a jury, the early 2020 bench mini-trial (see that term again?) was intended to resolve contract interpretations with AMC arising out of a potentially multimillion-dollar case filed in August 2017.
On July 22, LA Superior Court Judge Daniel Buckley essentially determined that if Kirkman didn’t like the “plain language” deal he signed and the resulting Modified Adjusted Gross Receipts and imputed license fees, that’s on him, not AMC.
AMC’s lawyer Snyder predicts that result is prophetic for the East Coast case.
“Plaintiffs’ case is heading to defeat,” Snyder told Deadline this morning as the various motions hit the NY Supreme Court docket. “They see the writing on the wall and are now trying to keep out damning evidence like Frank Darabont’s abusive emails and the conflict of interest at the heart of CAA’s packaging fees,” the eminently quotable attorney added.
“We look forward to prevailing at trial, just as we did in the recent Kirkman case in California,” Snyder says. AMC is also trying to get the summary judgement in the $10 million 2018 Darabont case reconsidered by Cohen in NYC.
But don’t pop the bubbly so fast, say CAA and Darabont’s team.
“AMC is attempting to distract the jury from AMC’s own wrongdoing by injecting completely irrelevant issues into the case,” Blank Rome’s Jerry Bernstein told Deadline today. “We are confident the court will agree that red herrings are not a defense to AMC’s improper self-dealing that exploits and undervalues artists,” the NYC-based lawyer noted.
Then Bernstein took out a shiv.
“AMC has done a desperate about-face on Robert Kirkman’s case in Los Angeles, now twisting themselves into a pretzel to claim the Kirkman case should control the Darabont case, after previously arguing that the two cases have nothing to do with one another,” he said. “Specifically, AMC told the Los Angeles judge, ‘The [Darabont] matter is wholly unrelated to the one pending before this court’.”
In another small form of irony, the October 9 hearing on all this, transactional definitions and more will take place just five days after the COVID-19-paused Season 10 finale of TWD and the premiere of new spinoff The Walking Dead: World Beyond hit the air.