West, Zampella add fraud charges to Activision suit

The days continue to tick away until Activision's court date with former Infinity Ward heads Vince Zampella and Jason West, but much still remains in flux. Last month, Activision succeeded in adding West and Zampella's purported coconspirator Electronic Arts to its $400 million countersuit. Today, West and Zampella added two counts of fraud to their original complaint, which was initially filed shortly after the duo was fired in March 2010.

In the amended complaint (a copy of which was obtained by GameSpot), West and Zampella allege that in March 2008, Activision entered into a Memorandum of Understanding with the two then-Infinity Ward heads. According to the complaint, the MOU sought to secure their continued employment not only for their talent but also as an effort to close its impending merger with Vivendi.

The contract was designed to "address issues of significant concern to West and Zampella, particularly in the area of creative authority over the Modern Warfare games and the creation of a look, feel, and brand for the Modern Warfare games," the amended complaint reads. In addition to creative control, the MOU laid out a bonus plan that was tied to operating income generated by a set of eligible games, including Modern Warfare 2.

The complaint also emphasizes that Activision offered West and Zampella this deal because their continued employment was of vital importance to closing the Vivendi deal. "To protect its interest in consummating its merger with Vivendi Games, Activision needed to do everything it could to keep West and Zampella content with their responsibilities and compensation at Infinity Ward. This gave West and Zampella considerable bargaining power in their negotiations with Activision," the complaint states.

West and Zampella claim in their amended complaint that they remained skeptical of this contract, as Activision had been less than committed to promises of greater autonomy and independence in the past. Through negotiations, though, West and Zampella claim they secured a deal that would see them having final say over any Modern Warfare-branded game or licensing activity.

However, as part of the final contract, Activision included a stipulation that this creative control and financial incentives were subject to West and Zampella's continued employment. The two allege that they expressed skepticism over this section, questioning whether they would simply be fired to circumvent the clause. To this concern, Kotick allegedly said to the two: "Don't worry about it. It's impossible for you guys to get fired."

Because of these assurances, West and Zampella claim they did not push for a more strongly worded section or commitment from Activision. They subsequently signed the MOU, committing to three more years of employment at Activision under the assumption that they would operate as an independent studio in the vein of Blizzard Entertainment.

As to the new fraud charges, West and Zampella state that they now believe Activision never intended to honor their contract as it pertains to creative authority or the payment of bonuses.

"While paying lip-service to West's and Zampella's creative authority, in 2008 and thereafter, Activision began secret development of Modern Warfare and Call of Duty games and related products, and undertook other conduct in relation to these two videogame franchises that, under the MOU, required prior approval from West and Zampella," the amended complaint reads. "Activision did not inform West or Zampella of such plans or seek their input or approval for them. Indeed, while breaching the creative authority provisions of the MOU, Activision continued to pay lip-service to them, in an attempt to mask its secret development efforts."

Speaking to GameSpot, a lawyer representing West and Zampella indicated that in addition to actual and punitive damages, the two are seeking a rescission of the MOU. If granted, Activision would co-own the Modern Warfare brand with Vince and Zampella, which would give the two the right to release their own copies of the game. A voided contract would also give West and Zampella the right to create new games in the Modern Warfare franchise, he said.

Activision had not responded to a request for comment on the matter as of press time.