Robert M. Schwartz speaks to GameSpot about the upcoming trial between Activision and ex-Infinity Ward developers Jason West and Vince Zampella.
In March 2010, Activision fired ex-Infinity Ward heads Jason West and Vince Zampella for insubordination, claiming the pair were secretly planning to start their new studio with the help of Electronic Arts.
West and Zampella filed a lawsuit against Activision for this move, claiming the real reason they were fired was so Activision wouldn't have to pay them millions of dollars in royalties associated with the November 2009 title Modern Warfare 2.
Beyond the performance-based payout and any other court-awarded monetary damages, West and Zampella are seeking to gain co-ownership of the Modern Warfare brand. If successful in court, West and Zampella would have the right to create and release both old and new instalments in the Modern Warfare franchise.
Ahead of the trial on May 29, GameSpot spoke to the attorney representing West and Zampella, Robert M. Schwartz.
GameSpot: How are you and your clients feeling ahead of the trial on May 29?
Robert M. Schwartz: We are delighted that after almost two and a half years of waiting we are finally going to present a case to the jury. We're looking forward to the opportunity to tell the jury what happened.
GS: How do the recently unsealed documents in the trial, including the testimony of former Activision employee Thomas Fenady, help your case?
RS: When we first learned of it [Fenady's testimony], we were stunned that Activision would be so brazen and so vicious in trying to get rid of Jason and Vince and violate their contract.
GS: What propelled Activision to pay $42 million to the group of ex-Infinity Ward members, and how does this affect the upcoming trial?
RS: I think they realised that it looked really bad, that they cheated those people out of so much money and they didn't want the jury to hold it against them. I guess their view was to be better late than never. But this was only a partial payment--that's not all the money they are owed. So the group of 40 ex-Infinity Ward developers is still part of the trial, but I do not represent them.
GS: How has this whole ordeal affected your clients personally?
RS: The firing was devastating. These guys had been keeping Activision afloat. If you look at the financials, they were the biggest contributor to Activision's bottom line of anything they had. They thought they were doing a great job. They were stunned, they were shocked, and they were demoralised. They had to start all over from scratch. They had to leave all their technology behind, and they had nothing. It's been a very difficult process for them that they should have never had to go through.
GS: How do you put all the money your clients are asking for into perspective? It seems like a lot for two individuals to be asking for.
RS: It's pretty easy to put into perspective. It's an outrageous position for Activision to take. The bonuses Jason and Vince earned, unlike the fat-cat Activision bonuses that are for just showing up for your job every year, the bonuses these guys are entitled to are a share of the profit they made for Activision. They've always bet on their own success, and they were willing to take the risk that if their games didn't perform, they wouldn't get anything beyond their base salaries, which are fairly modest.
It's like promising $100 million on a movie contract but only paying $10 million because that's so much money compared to what anyone needs to live on, and that ought to be good enough. If you promised $100 million, you have to pay $100 million. It's outrageous for Activision to think that they're somehow excused from living up to their legal duties because of money they paid Jason and Vince on earlier games, no matter how much it was. And it was always a share of the profits that Jason and Vince generated for them. They have paid Jason and Vince zero for Modern Warfare 2, a game that has put a billion dollars in Activision's profits. That is an outrage.
GS: Can you give me an overview of what supporting evidence you're going into this trial with?
RS: We're very confident. We have numerous damning documents, smoking guns, and admissions from key Activision executives that show they seduced Jason and Vince into entering this contract in 2008 [the memorandum of understanding] with no intention of honoring it. They betrayed them, and they abandoned them. The documents we've seen from their files are appalling…from Bobby Kotick and Mike Griffith, their attitude towards Jason and Vince, their cavalier attitude about breaching their contract. We are eager to get this in front of the jury.
GS: How does the evidence you've seen portray Activision head Bobby Kotick and his role in all of this?
RS: He is the central guy. He made the decision to fire them more than a year before they were fired. He never intended to honor the contract.
GS: How long do you see this trial lasting?
RS: Five to six weeks, maybe less.
GS: How will the trial work?
RS: We'll present our case [Vince and Zampella], and then the 40 co-plaintiffs will present their case. Activision will then respond, after which we'll get a rebuttal opportunity. Then it's up to the jury to decide the case.
GS: Thanks for your time, Robert.
As of press time, Activision representatives had not responded to GameSpot's requests for comment.
Read about the latest unsealed documents, including emails from Activision head Bobby Kotick, here.
I think West and Zampella should get ownership of the MW brand. I'm not a fan of the franchise and consider it a very dumbed-down FPS, but those guys CREATED it -not f___in' Activision.
As a creative person myself (I'm a writer), I'm often at odds with publishers and corporate big wigs. In gaming, in books, in music...people who have NOTHING to do with the creative process often dictate what hits the shelves and who gets paid for it. Oftentimes, they tell the creative people what they can and can't release and even lock away what isn't commercially released in a f___in' vault!
Without creative people, these big wigs would have nothing to sell and would be naked and starving. Without us, they are just con-men hoping and praying to make a buck. With us they are con-men hoping WE create something they can sell. But they're totally dependent on OUR talents -not theirs!
And if you're one of those big wigs, I hope I offended you by saying it.
@nate1222 were West and Zampella part of IW when they made the original CoD? Perhaps it's the entire CoD franchise name they should be laying claim to, not just the MW iterations.
WTF is wrong with publishers nowadays.
Activision - Bunch of greedy @sses who milk the crap outta some their games.
EA - What I said about Activision but they're sneaky with it.
Capcom - Went from a good publisher to a publisher that ruined most of its IPs and sells updated version of the same fighters at full retail price.
But the worst company I've seen so far is Ubisoft. I'd rather be scammed out of my money and play half-assed games that are just updates of the previous installment than being treated like a complete theif and completely insult the PC gamer. Don't even get me started on DRM.
This is why gaming should never be done through public corporations. The board is eventually replaced by corporates that don't know a thing about the gaming industry, and are focused solely on the business aspect, and of course the money. Yes it's not wrong to make money, but imo Activision/Blizzard have long been practicing bad business, especially recently. Unfortunately people who could care less about the gaming community just keep giving them money.
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Trying to say which of the two is worse is like trying to measure fecal matter in degrees: an excercise in intellectual futility.
@nate1222 No it isn't. The worst Activision does is produce popular rehashes of year old games (even then, CoD is really the only title where this happens). EA on the other hand, has left a bloody trail ruined games and studios that Activision couldn't hope to compare to.
For those guys to move from Activision to EA is like moving from New Jersey to North Korea; they both suck in ways, but one is definitely worse.
I disagree. Activision is worse than EA.
screw EA, activsion, all of them.My EA library is dwindling and Activsion games on my PC are practically non existent accept for COD4 and World at war. Screw the new Call Of Dutys,they are so Completely garbage. ARMA 2 FTW.
And people think EA is the worst? HA!
Activision not paying royalties to the two guys who made the biggest IP of the generation (the modern warfare brand) is just pathetic. I hope they get every dime they were owed and then some. Show some class, you big douche.
Activision will pay a huge settlement and will completely retain the modern warfare brand, that thing is their baby and they will do anything to keep it. Hail Capitalism!
since I knew about this, I have not bought any other COD or activision game.. I stayed only to modern warfare 2, then this happened..... it might not make a big difference, but it sure makes a diference to me
I'm actually curious to read Kotick's emails. I want to see if he's actually the bastard I think he is.
I wonder how different Activision would be without him. Seriously if this flares up enough, I wonder what the chances of it prompting the board to send him away in a golden parachute might be?
Somehow, I think they're still pretty low.
Bleh, those emails aren't really that damning against Kotick at all.
Most of this trial is going to revolve around circumstantial evidence. I think Activision has plenty of resources and ammo to draw this out into a long, costly, appeal-laden process if needed. The difference is that they'll be able to afford it, and West/Zampella might not.
Activision isn't just going to give up the CoD franchise without putting everything they have behind it's defense. Literally, CoD is their lifeline at this point. Lose that and there's real trouble.
But it's not gonna happen.
Wow, this can't be good for Activision. They could potentially lose the Modern Warfare brand to West and Zampella.
Which, regardless of your bias (haters) is a big deal. Whine or not, it's arguably one of the five biggest brands in all of gaming.
There's a LOT at stake in this trial. It will be interesting to see how it plays out.
I find this absolutely atrocious because those two are pretty much the reason why Activision is profiting from their CoD games these days with Treyach and Not-Infinity Ward.
I hope Bobby Kotick pays for his greediness and attitude toward gaming industry and the bad trends he started in this business.
It's disgraceful for Activision to profit so much from the success of Infinity Wards creation and then screw them over.
This reminds me of a movie about a real story where a woman was given a crappy position after returning from maternity leave. They gave another woman her old position and treated her horribly. Obviously it's illegal, so she quit and sued them. After a very long time where they made her life a hell, she discovered recordings of her bosses saying that they are going to get rid of her for going on maternity leave. You can guess what happened next.
Oh how I would love to be on the jury for this trial. Anything to see Kotick sweating like a pig once he's been exposed.
Did IW really represent the biggest contributor to Activision's bottom line? Surely WoW brings in more gross profit than either of the Modern Warfare games, especially back when West and Zampella were fired.
It's really difficult to see which way this is going to turn, Activision seem far too confident given all the evidence which seems to be stacking up against them. There simply has to be something that we're not being told yet...
@andy_lyall As far as I am aware Blizzard and Activision only offically merged in mid 2008, after the release of Modern Warfare (Which sold around 13 million copies) and just over a year before Modern Warfare 2 came out so it doesn't seem an unreasonable claim that even by 2010 that the Modern Warfare franchise would have been at least a major if not the largest contributor to Activision.
Of course with out going through all of the released records of Activision that is simply speculation, but it wouldn't suprise me if there was a grain of truth in the claim.
@UndertheArchway You might be right but back when the merger happened WoW was up at 11.5 million subs. Even if you allow that everyone had the cheaper six month subs (which obviously wasn't the case but shows better maths) WoW brought in £88.5 million per month. 13 million sales of MW1 over it's entire life at £40 a unit (ish) is £520 million. So Wow could bring that in in a little under 6 months.
You're right, without seeing the actual numbers if could very easily be the case that IW were contributing more but I can't help but feel it's a bit of a bold claim.
Your sums certainly make a lot of sense.
I think the one thing to perhaps throw into the mix here is that Schwartz specifically talks about Activision as opposed to Activision Blizzard which could imply that the claim refers to the period prior to the merger which would make a lot more sense as I don't think he'd throw out hyperbolic claims in to the web prior to the trail.
Either way, nice to have a thoroughly civil conversation on the web!
@PlatinumPaladin Surely they realise that public opinion is significantly against them (Griffin even says so in one of the emails that was released), if they drag this though a court case they're only going to look worse... unless they expect to embarrass West and Zampella and win.
I can't help but feel that if they really thought they were going to loose they'd have tried harder to settle before hand.
@andy_lyall I'd have thought public opinion wasn't aware of what's going on. The opinion against them is that of gamers, and I doubt gamers will make up the jury. Activision coughing up that $40 million struck me as a desperate face-saving move. So long as they're playing by the rules I don't think they should be confident. Maybe they're just stubborn. Maybe they feel settling would set a precedent and would rather take their chances. I dunno. I wouldn't be surprised if there were a few bribes and blackmailing going on.
can you imagine how hard it must have been and still is for these two guys to start over and work on a new game. To just try to compartmentalize all that anger and rage. then go to work and try to concentrate on your new game.
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