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  • Writer's pictureDavid Baker

The Walking Dead (lawsuit) Resurrected Once Again

Robert Kirkman’s The Walking Dead Lawsuit Rises from the Grave

After having been considered “as good as dead” just a year ago, The Walking Dead creator Robert Kirkman’s lawsuit against AMC Studios has been resurrected by a California state court ruling in favor of allowing the case to move forward to trial. Los Angeles County Superior Court Judge Daniel J. Buckley recently decided to allow the creator of the zombie franchise and several executive producers to pursue new legal theories and punitive damages. Against AMC, the company that produces and broadcasts the popular zombie apocalypse television series.

In the case of Robert Kirkman, et al. v. AMC Film Holdings, LLC, et al. [BC672124], Judge Buckley granted in part AMC’s motion to strike a limited portion of Kirkman et al.’s Third Amended Complaint and sustained a demurrer as to the second claim for breach of the implied covenant of good faith and fair dealing, but otherwise overruled AMC’s demurrer and motion to strike. The net effect was to allow Kirkman, Gale Anne Hurd, David Alpert, Charles Eglee and Glen Mazzara to proceed with their lawsuit essentially challenging the amount of revenue that AMC has reported having received from licensing the hit drama to its affiliate cable network.

The issue is important to Kirkman and the producers because it’s the basis for a sizable portion of their own pay from the series.

Last summer, AMC claimed a huge victory when Judge Buckley ruled that it was clear AMC “shall” have the authority to define how modified adjusted gross receipts (MAGR) are collected from the exhibition of The Walking Dead, and accordingly, the “plaintiffs’ fairness arguments are foreclosed by the express terms of the parties’ contracts.” However, this summer’s Buckley decision will allow them to pursue claims for breach of the implied covenant of good faith and fair dealing and for tortious interference with contract.

According to these theories, AMC knew it had a unilateral right to craft the MAGR term, waited until success of the series, and then specifically crafted defined profits to ensure plaintiffs would not recover under the circumstances. Also, AMC had knowledge of its sister company’s dealings and intentionally induced a breach for its own advantage even though it never had direct contractual relations with the show’s producers, a theory that may soon be imitated by others in the entertainment world.

Kirkman’s side will still need to prove the elements of their claims, and AMC will have more shots to defeat the suit. But importantly the judge also ruled that the amended complaint adequately pleads malice to support a claim for punitive damages.

AMC’s lead litigator, Orin Snyder, downplayed the development as “just an early ruling that a new claim can proceed to discovery. It is not a ruling on the merits of that claim, on which the Judge said Plaintiffs have ‘a steep uphill battle.’ This new claim is Plaintiffs’ latest effort to re-write the contracts they signed years ago. It is just as meritless as the 7 out of 7 claims we beat at trial last year, and we are confident we will defeat this new claim as well.”

Recently, AMC settled a similar case against AMC for allegedly shortchanging profit participants brought by former showrunner Frank Darabont and the Creative Artists Agency for the whopping sum of $200 million. Who knew zombies could be so valuable?

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