Elemental: War of Magic was not a rousing success of a game. The 2010 strategy title was a buggy, muddled mess at launch that even publisher Stardock felt was a broken game, badly in need of mending.
This August, two years after Elemental's disastrous debut, Stardock filed a lawsuit against former employee Alexandra Miseta, claiming that actions she took immediately before her departure were a major contributing factor to Elemental's failure. However, Stardock vs Miseta is not the first time Miseta and Stardock CEO Brad Wardell have faced off in court — and the timing of the new lawsuit suggests it could have more to do with the other court case than it does with Elemental.
Miseta was the manager of marketing at Stardock when she left the company abruptly three weeks before Elemental shipped. Documents obtained by Kotaku show that when she left in August 2010, she was threatening a suit against Wardell for sexual harassment. That suit was filed in December 2010, seeking unspecified damages in excess of $US25,000. (According to Michigan law [PDF], an employee must first file a complaint with the Equal Employment Opportunity Commission before he or she can proceed with a lawsuit; the EEOC may then take up to 180 days to review the complaint.)
Court records from the lawsuit show several troubling messages from Wardell to Miseta, as well as allegations of problematic in-person behaviour. Email messages included in the records go back as far as March 2008, and include a link to a sexually explicit YouTube video, a comment that Miseta was chosen to go to a conference "not just because you're 'hot'" and a 100-question "purity test" that he asked her to take and then send him her score. The purity test includes questions like, "Have you engaged in group sex?", "Have you engaged in intercourse with an unconscious person, while conscious?" and "Have you had anal intercourse?"
Witness depositions included in the case documents refer to multiple comments from Wardell to female employees about their breast and bra sizes, and one incident where he asked Miseta to attend a media tour because "[her] nipples look better on TV". They also describe a time on a media tour when Wardell's visit to the hotel room Miseta and another female colleague were sharing made Miseta feel uncomfortable.
In May 2010, during a dinner on a media tour, Wardell touched Miseta's hair. It was evidently the last straw for Miseta, who, on June 6, after the media tour had ended, sent her boss an email asking him to change his behaviour:
- Please never touch my hair or any of my body parts; not even jokingly.
- Please do not talk about my private life or about my boyfriend/future husband in any terms especially negative terms.
- Please be careful with your "jokes" which are at many times inappropriate, sexist, vulgar and very embarrassing not only to me, but everyone present.
- Please keep your negative personal opinions of others (including family members and/or coworkers) not present at the time of your comments, to yourself. I feel, at times, it puts me in a very uncomfortable position.
With the above few behavioural changes, I'm hoping our previously friendly and professional relationship can be reestablished.
Wardell's reply began cordially, "Thank you for bringing these up to me as I certainly do not want you to feel uncomfortable at work." He promised to be more careful in the future regarding items one and two, but then continued:
#3, however is not acceptable to me. I am an inappropriate, sexist, vulgar and embarrassing person and I'm not inclined to change my behaviour. If this is a problem, you need to find another job.
#4, Again, I am not willing to adapt my behaviour to suit others. If you find my behaviour problematic, I recommend finding another job.
I'm not some manager or coworker of yours. I own the company. It, and your job there, exist to suit my purposes, not vice versa. The company is not an end unto itself, it is a means to an end which is to further the objectives of its shareholders (in this case, me).
Miseta took Wardell's advice: she looked for another job and left Stardock as soon as she had one. On August 3, 2010, she quit Stardock and began her new role elsewhere shortly after.
Miseta vs Wardell, meanwhile, has been making its slow process through the court system for the last year and a half. Discovery — the process in which depositions are taken, documents exchanged and so on — took approximately 16 months. After discovery, Wardell's attorneys filed a motion to dismiss the lawsuit. The motion for summary dismissal, just over 250 pages long, lays out Wardell's case that the allegations are untrue and that, even if they were, they do not constitute harassment under the law: "In his response, Mr Wardell also made some unadvisable statements, which undoubtedly is the raison d'être for the current litigation. While intemperate, and perhaps insensitive, these statements are neither sexual nor harassing. Mr Wardell certainly regrets making them as even Plaintiff would not have had the temerity to file this lawsuit otherwise."
Miseta's attorneys said that such motions are usually part of the process, and Miseta's lawyers then filed a response to the motion to dismiss.
It took until the middle of this year for the court to hear oral arguments about the motion to dismiss. On July 13 of this year, Judge Robert Ziolkowski heard the arguments and denied the motion to dismiss. Miseta vs. Wardell will go to trial, though a date has not yet been set.
Attorneys representing Stardock filed the complaint of Stardock vs Miseta on July 30, less than three weeks later.
This second suit seeks in excess of $US1 million in damages from Miseta, claiming that just before quitting, Miseta "deleted, destroyed, and/or stole" the Elemental marketing materials, analytics and trade show information. Without that information, the complaint argues, Stardock had to spend "vital time" leading up to Elemental's release "attempting to re-create" the marketing materials, "rather than programming, debugging, and otherwise readying Elemental for release."
Wardell did not reply to requests for comment from Kotaku to share his side of the story. If he does, we will update the story.
Miseta's attorney told Kotaku, "It is our opinion that Mr Wardell's lawsuit against Ms Miseta for allegedly deleting files, etc, is baseless and was brought solely in retaliation for her sexual harassment lawsuit. We firmly believe that Ms. Miseta's leaving Stardock had absolutely nothing to do with any failures pertaining to Stardock's release of Elemental. It is our further belief that Mr Wardell has publicly admitted that the failures of Elemental were due solely to his actions and/or inactions."
Many records from the first suit, Miseta vs. Wardell, cast doubt on Stardock's recent assertions. The defendant's motion for summary dismissal — the document filed by Wardell's attorneys to try and have the case dismissed — does make brief reference to deleted files, in the context of arguing that Miseta's claims against Wardell are spurious: "Stardock later learned that Plaintiff's last act while at Stardock was to delete her computer account, including all of the marketing materials and files that had been produced for Elemental. The deleted files also included emails from her Stardock account in order to eliminate evidence contrary to her claims of 'constant' harassment by Mr Wardell."
Witness statements found in the response from Miseta's attorneys, however, contradict the claim. One employee specifically testified in her deposition that Miseta gave her a week's advance notice that she would be leaving Stardock, so that she "knew where [Miseta's] files were" and had access to relevant Google docs. Others had no recollection of Wardell or HR manager Angela Marshall (Wardell's sister-in-law) ever mentioning missing documents causing trouble with Elemental.
A former Stardock employee, speaking with Kotaku on the condition of anonymity, confirmed that a mere two weeks before launch, Elemental had many technical issues that had nothing to do with its marketing. The employee also added that at the time, nobody mentioned any materials having gone missing or any sabotage having taken place and showed Kotaku communications from Wardell that indicated satisfaction with how Miseta's staff replacement was taking over the review kit and review guide process.
Both cases are still in active progress in the court system. Kotaku will be following any developments and keeping readers posted with any major updates.