“Don’t worry about it. It’s impossible for you guys to get fired,” Activision boss Bobby Kotick told Infinity Ward founders Jason West and Vince Zampella in 2008, according to a new cross-complaint filed today in a Los Angeles court.
Two years and one Call of Duty game later, the creators of the billion dollar war game franchise would find themselves out of a job, out of the studio they’d started.
A new legal filing submitted by West and Zampella’s legal team today in response to Activision’s previous complaint – which implicated rival publisher Electronic Arts in a $US400 million lawsuit – alleges that while West and Zampella were “still hard at work developing Modern Warfare 2, Activision began preparing to terminate them once the game was delivered”.
The filing also alleges that Activision “began secret development of Modern Warfare and Call of Duty games and related products” behind the backs of its creators, a violation of West and Zampella’s contract with the publisher dubbed the “Memorandum of Understanding”.
West and Zampella’s complaint says that Activision offered “unprecedented creative authority over the Modern Warfare and Call of Duty brands” in that contract. It “promised that no game associated with the Modern Warfare brand could be released without West and Zampella’s written consent,” according to the filing. The complaint argues the publisher extended that control to both to lock down a sequel to the original Modern Warfare and to make Activision “as attractive a merger partner as possible to Vivendi Games, with whom it was in the process of merging” to become Activision-Blizzard.
Now, West and Zampella say they were lied to and defrauded by Activision, that they were fraudulently induced into signing that contract.
Those new claims add a new layer of damages exposure, according to West and Zampella’s lawyer, Robert Schwartz, which could result in Activision paying compensatory damages (aka writing out a big cheque) or rescission of their contract – which could also mean that West and Zampella might find themselves co-owners of the Modern Warfare and Call of Duty brands with Activision.
Kotaku has contacted Activision seeking response to West and Zampella’s allegations. We’ll update when we hear back.
Here are some relevant selections from the newly filed cross-complaint.
Activision made promises to West and Zampella to induce them to stay at Activision, to spend time creating Modern Warfare 2, and to confer valuable intellectual property assets in connection with that game. In the MOU, Activision promised that it would grant West and Zampella creative authority over the development of any games to be published under the Modern Warfare brand and any Call of Duty title set in the post-Vietnam era, the near future, or the distant future. In the MOU, Activision promised to pay West, Zampella, and the Infinity Ward employees significant performance bonuses associated with Modern Warfare 2. The Chairman and Chief Executive Officer of Activision Inc., Bobby Kotick, said that their “continued employment” under the MOU would be subject to the same standards applicable to Kotick and Activision’s other senior executives.
When asked about this provision, Kotick said to West and Zampella during a meeting in or around March 2008, in words or effect, “Don’t worry about it. It’s impossible for you guys to get fired.” Kotick assured them with regard to the meaning of the contract by telling them, in words or effect, that “You’re in the big leagues now,” while gesturing to himself, from which, given the context in which Kotick said that, they understood him to be saying that their “continued employment” under the MOU would be subject to the same standards and protections applicable to Kotick and Activision’s other senior executives.
Activision strung West and Zampella along with superficial compliance only until they completed and delivered Modern Warfare 2. For example, when Activision employees did raise concerns that they should or needed to involve West or Zampella in decision-making, Activision’s management either disputed such claims or told its employees not to worry about them and/or not to act on them. 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. 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. While West and Zampella were still hard at work developing Modern Warfare 2, Activision began preparing to terminate them once the game was delivered.
For a recap of the latest events in the imbroglio involving Activision, Infinity Ward, West, Zampella and now EA, check out Kotaku’s ongoing Call of Duty Legal Warfare coverage.