12:35pm PT by Eriq Gardner
Frank Darabont's Lawyer Calls Out AMC "Stunt" to Delay 'Walking Dead' Judgment
In the huge profits case over The Walking Dead, New York Supreme Court Judge Eileen Bransten must decide which act of legal gamesmanship to ignore.
The judge was all set to deliver a summary judgment ruling in the $280 million profits case brought by series co-creator Frank Darabont and Creative Artists Agency over the hit zombie drama. Then, the plaintiffs filed a second lawsuit against AMC.
On Tuesday, AMC's attorney Orin Snyder pointed to this "disturbing new development" and requested a pause to consider the ramifications. "This new case is Plaintiffs' transparent and unfair attempt to game the system and secure a second bite at the apple if they do not prevail in this case," wrote Snyder.
Today, Bransten hears the response.
"Defendants' new counsel has chosen to use his first appearance in this case to pull a stunt," writes attorney Jerry Bernstein, adding later in a letter to the judge that AMC's "motivations could not be more transparent: they have no defense but delay."
Darabont's first lawsuit against AMC is already four years old, and while it covers several different issues, the most important is a claim that Darabont has contractual protection preventing unfair self-dealing.
He argues that in accounting statements to profit participants, AMC must use a fair market license fee, one that would truly reflect arms' length transactions between AMC as studio and AMC as network. AMC's position is that it can impute a license fee as it wishes so long as certain conditions are met.
The second lawsuit came after an audit of AMC's accounting records — with an additional $10 million in claims plus some attention to how Walking Dead creator Robert Kirkman's contract would impact Darabont's "most favored nations" clause. Darabont's lawyers say they discovered the key provision in Kirkman's contract after the latter filed his own lawsuit last year, while Snyder suggests the other side had access to the information long ago.
The two cases are undoubtedly intertwined, but should that fact delay the impending summary judgment ruling on the original case?
The sides are taking different positions on this question, with AMC arguing it shouldn't have to litigate twice while Darabont and CAA argue that no new facts or legal issues have been presented that impact the judge's decision on the license fee issue — at least with respect to the affiliate clause in Darabont's contract.
The papers perhaps reflect some anxiety about a decision that is imminent. Left unspoken, though, is Bransten's retirement later this year. Timing is paramount.