Respawn's West And Zampella Sound Off On Upcoming Activision Lawsuit
We recently had the opportunity to sit down with Respawn Entertainment's Jason West and Vince Zampella, the one-time heads of Infinity Ward and creators of Call of Duty. During our conversation we finally got to hear their version of the events surrounding their dismissal from Activision and the bitter legal battle that has carried on for two years.
This is the most personal account of the Infinity Ward story to date, and the insights of their lawyer Robert Schwartz gives us a more accurate and detailed picture of the conspiracy they allege Activision engaged in to bring about their firing. The civil case is currently pending.
Why don't we start with how this rift began? Could you sum it up in terms of why Activision is going after you in the suit? What does it entail?
Jason West: I've never really been clear on that one. I'm not sure what they're claiming. I know they are suing for a billion dollars and they haven't specified if they want it from EA or from me. [Editor's Note: Activision and EA settled this suit the following day, agreeing "to put this matter behind them."]
Vince Zampella: They say that Modern Warfare 3 would have been a much better game and would have made 700 million more dollars for them and they want us to pay that.
West: We deprived them of our services by being fired and therefore we owe them money.
Robert Schwartz: They have an expert. I don't know if this guy is going to ever see the inside of a courtroom, but he is going to testify that he did an analysis of all of their games and came to the conclusion that these guys and the 40 who left made better games for less money than anybody else at Activision. If they had not been fired, Modern Warfare 3 would have done somewhere between $2.8 and $3.3 billion in gross revenues. He vetted it through [Activision Blizzard COO] Tom Tippl and someone else in the chief financial office. He says, "Well, that's what the game would have done, here's what it did do. So here's all the profit that Activision lost because they didn't have those services." And - oh, by the way - Sledgehammer would have been available to do Fog of War and that would have made more profits, but they couldn't because they had to fill in for the Infinity Ward team.
That's the damage part of the case. The liability is the flip side of our case against them, where we say Jason and Vince were fired without cause. Activision's saying, "Oh no, absolutely there was cause. These guys were disloyal, breached their fiduciary duties to the company by talking to EA, they conspired with EA to raid Infinity Ward and set up a competing studio, and that's exactly what they did. As soon as it became clear to them that EA would give them a 'happy home,' they set about to misbehave so much that they engineered their own firing."
West: They said, "He orchestrated his own firing" - I will never forget that.
Zampella: We're geniuses, apparently.
West: I said, "Don't give me 100 million dollars - fire me! That would be awesome."
Schwartz: "Let me leave behind all the tech I've spent eight years working on, the 100 million dollars I've earned, the momentum in my career, my team, and let me start all over with a small team and development budget on a game I haven't even thought about that no one has seen or bought." Yeah, that's a good idea.
Basically Activision is saying that they are bad guys [who] needed to be fired, and Activision had a contract for their services and was deprived of the value of not getting better games.
West: It's especially crazy because they gave us the right to do a new IP. So there is nothing that we could have conceivably gained by not being [at Activision].
You had recently signed a new contract with Activision, right?
West: Yes, and that contract gave us the right to make whatever game we wanted after Modern Warfare 2. Apparently, they didn't want to live up to that.
They say that you were being pursued by EA. Anyone that makes successful games is always being pursued. That's status quo if you are a person with a proven track record of making games.
West: They are going to try to prove that's not true in court.
Zampella: You mean like Sledgehammer, who was pursued by Activision? [Editor's Note: Activision hired Dead Space developers Glen Schofield and Michael Condrey away from Electronic Arts in 2009.]
West: They're pretending video games are like banks or Wal-Mart.
Zampella: What is this? You mean people get recruited? It's weird!
West: They act like they have no concept of that and now we have to prove it.
So after Modern Warfare 2, you could make any game you wanted?
West: Well, they signed a contract that said that.
Schwartz: Not any game [Jason and Vince] wanted, but [they] could decide what it would be. [Activision] couldn't say, "It has to be a Modern Warfare game."
So what drives you to EA?
Schwartz: [Activision is claiming] a better deal, IP ownership, and higher bonus rates.
What leads up to your termination?
Schwartz: [West and Zampella] were negotiating [a new contract with Activision]. [Activision has] Harold Brown, a top-flight Hollywood entertainment lawyer. They were making progress. They're giving up their right to do their own game [of their choosing], they're going to do Modern Warfare 3. This is February 2010 - a month before they got fired. So, fine - the same bonus arrangement, same everything. Activision guarantees them a big chunk of bonuses if the game is delivered on time and gets a 90-plus Metacritic score - so it's not much of a guarantee. At the end of the game, Activision will let them go off on their own and be independent. By the way, their contracts would have been up anyway, so it's not giving them anything. The dispute they are trying to get around is that these guys are saying, "Look, when we set up a new company we'd like to hire up to 10 people from Infinity Ward."
These people should be free to go wherever they want. And, if they leave, all the stock options and whatever - they should vest and they should not be hurt if they are going with us to make games for [Activision]. It should be a non-event. Activision is saying, "No, no, no." And, by the way, Activision is saying you have to sign new employment agreements for these remaining two years.
This is the third day of meetings between Activision's lawyers and their lawyers. Their lawyers go over, and Activision comes out of their lawyers' office and they are talking and talking. Their lieutenant counsel says, "I just don't think we can come to an agreement on this. Give this to Jason and Vince." He shoves across the table a piece of paper.
What does the piece of paper say? "You are hereby being notified that you are being investigated for improper conduct and breach of fiduciary duty. You may not talk to anybody about this and must cooperate in full or that in itself will be potential grounds for termination. We haven't made any decision about what we're going to do in this investigation - whether there is any discipline to be had or termination - but you better take us very seriously. Thank you very much."
West: The thing that blows my mind is that they showed up to the meeting with that thing printed out in their briefcase already. It wasn't an email. It was hours of conversation, then reach in and pull out the paper. This was all very surprising, by the way. You're waiting for the call to be like, "Did they take the offer?" Well, actually, they gave me this piece of paper. That was a surprise. [Laughs]
Schwartz: In court they said this is a completely neutral investigation - "We just wanted to get the facts and see if these guys had done anything wrong because we were concerned they might have been talking to a competitor and we needed to know where we stood." Well, they started a secret investigation about a year earlier called Project Buzz and later was called Project Icebreaker. It was a secret task force. It was to look at what these guys were doing and see if they should fire them [and] if we fire them, who's going to take their place?
This is a task force that has paperwork?
Schwartz: Yes, Project Icebreaker. They have these PowerPoint slides in October and November that say, "Here's what we project the Modern Warfare 2 launch quarter bonuses to be for Infinity Ward studios. Here's Jason and Vince's share that we save if they are not there anymore. Here's what we need to do to retain the other guys that might leave if these guys aren't there anymore."
How is this even going to court?
Schwartz: Spin - lawyers will spin.
Vince: When they handed us that paper across the table, they already had a room booked the next day and they started showing up at the studio and pulling people out of the studio.
Schwartz: They'd already hired the law firm. The whole Icebreaker group that had been investigating them for months rounding up all the data, the documents, the emails, and whatever, and in a matter of days dumped it all on the law firms, including a 19-page, single-spaced [list of] questions to ask these guys - by topic - all ready to go. That's not very independent, or neutral.
They told the investigators who to talk to, when to talk to them, what to ask them, what issues to talk about.
What else can you tell us about Project Icebreaker?
Schwartz: You'll love this. Summer 2009 - May 2009. Before E3, the big [event] for Modern Warfare 2. Do you know who George Rose is? He was the head lawyer for [Activision].
So George Rose goes into the office of this guy named Thomas Fenady. He's some kind of IT whiz at Activision. He's sitting in his office and has no idea what is going to walk in his office. [Rose says], "Hey, this comes right from the top. I have a project for you from [Activision Blizzard CEO] Bobby Kotick. Jason and Vince - you know those guys? We're really sick of them. We want to get rid of them; we want to fire them. You need to break into their computers and dig up dirt to be used to justify firing them." [Fenady] testified to this.
So Fenady gets really nervous. He goes to his boss and his boss finds out about it and his boss says, "You should not get involved in something like this - this doesn't sound right." George Rose finds out about this, comes into his office, and goes, "Look, this comes from Bobby Kotick. If you do this, Bobby will protect you if anything happens. But remember, the number one priority is do not get caught."
So he tries to break into the Infinity Ward server to read emails. He sees there is a firewall there, but he breaks through the firewall. He's now seeing their email server, but he can't make any sense out of it. So he calls Microsoft and says, "Hey we have this Microsoft Exchange server out at Infinity Ward. Can you help us figure out how to break the password and read the emails?"
Microsoft said, "Do you have a court order? This makes us feel very uncomfortable."
What happened at that point?
Schwartz: Then he goes to a vender that does penetration testing called InGuardians and they said, "Hmm, this sounds like some black bag operation, we'll help you but you have to give us an indemnity and a get out of jail free card against any criminal or civil liability." Then, they realized they can't do anything unless they have physical access to the premises.
They then go to the facilities guys and they say, "Look, we need to get into Jason and Vince's computers and the other computers at Infinity Ward. Can you stage a mock fire drill or something to get them out of the building so we can go in and grab the computer's image [Editor's Note: This refers to the process of cloning a computer's contents.] and get out before they know what's happened?"
They tried to keep that evidence out. Two weeks ago they had a motion in front of the judge and said, "This is a sideshow, this is bull----." We said, "No, this is the core of the case, your honor. This tells you that everything they've been telling you and want to tell the jury about why they fired them is complete bull----. It had nothing to do with EA. EA didn't even call these guys up until two months after that."
There's more stuff. In January 2009, now you're 14 months before they get fired. This is after World at War. It's from [Activision executive vice president of worldwide studios] Dave Stohl to [Activision president of publishing] Mike Griffith, and he's saying, "I heard from Bobby that [Activision Blizzard co-chairman] Brian Kelly told you that he's so over Jason and Vince. Is everybody ready for the big PR blowout if we kick them out? What are we going to do to finish the game? Maybe we should just wait." This is 14 months before they get fired.
Head to page two to hear what their odds are in court, and if they would have made Modern Warfare 3.
A meeting in the beginning of Respawn Entertainment
This is when they decide that Treyarch can handle it on their own?
Schwartz: I guess...and they are pissed off because these guys were unhappy with how they marketed World at War. They felt it was a violation of the contract - and it was. So there was this massive conspiracy going on at Activision.
West: They didn't want to live up to the rules they set up under the contract.
Schwartz: Here's what we think: If you go back to when they signed the contract, March 2008, it was a moment in time when these guys have leverage - for one of the few times in their relationship with Activision. What's their leverage? Their contract is up in less than seven months and Activision wants Modern Warfare 2. Modern Warfare just blew away their expectations and was a great game. They're in the middle of this merger with Vivendi. There's a provision in the merger agreement that says none of their executives or key employees have any plans to leave. That's a representation made by Activision to Vivendi. [Jason and Vince] are told that they have leverage - and they do, because they want this game and these guys can leave.
Our view is that there was no way they were not going to tie these guys in to get Modern Warfare 2. They were willing to promise them practically anything. What these guys wanted was two things: One, they wanted to control their destiny and be independent. They wanted control over the franchise that they'd been nurturing, and they wanted fair compensation. The real killer was the control.
There's this one sentence - that [Jason] fought for - that is the key to the whole contract. One sentence says, "Activision cannot commercially release a Modern Warfare game without their written authorization." Then it says, "In that regard, all exploitation or other licensing of the Modern Warfare brand and IP." Not only that, there's another sentence that says Activision cannot do a Call of Duty-branded game post-Vietnam without their permission. They can't do Vietnam, post-Vietnam, near-future, distant future without [Jason and Vince's] approval. What that means is, they finished Modern Warfare and Activision wants to use the multiplayer mode and perks and all this stuff and put it into Black Ops - they have to ask their permission. And, if Activision wants to do Call of Duty Asia as an MMO with Modern Warfare assets, they have got to get their permission.
That's what they bargained for, and I don't think Bobby ever intended to honor that until he had to honor it. They were in breach of it the day they signed the contract - they were deeply in breach of it already by giving the Modern Warfare 1 multiplayer assets and schedules. Their hands were already dirty.
West: I think they just wanted the game, and were like, "Tell these guys whatever you need to."
Did EA approach you?
Schwartz: They went up and had lunch with [EA CEO] John Riccitiello, EA actually chartered a private jet for them, and they went on it.
West: The only time we've ever been on a private jet.
Schwartz: [EA] wanted to make a big impression. So they went to [Riccitiello's] house, they had lunch. [West and Zampella] told him "we're under contract, so you can't hire us," but [Riccitiello] knew that going in. In October or November their lawyer and their agent got a phone call from EA saying, "Hey, are they interested? Would they be interested? What's going on?" Activision was under serious negotiations with them, so they sent a phone call back saying, "Look, we're trying to work things out with Activision, so we're not going to be able to respond to that, thank you very much." And that was it.
So you were dismissed for insubordination. Do they have anything specific listed?
West: They gave me and Vince the exact same list, I think, even though we're different people with different jobs.
Are you 100 percent confident about the lawsuit? Are there any concerns?
Schwartz: No, you can never be 100 percent confident, you can probably be no more than 80 percent. There are just too many things, there are so many different variables, you can try as hard as you can. [Activision] brought a new lawyer in last week, Beth Wilkinson. She's one of the best lawyers they can find, and she's exceptionally good. [Editor's Note: Wilkinson is best known for successfully arguing for the execution of Oklahoma City bomber Timothy McVeigh.]
If Activision came to you with a settlement, would you take it? Does it depend on the dollars, or is it personal?
West: Well, a settlement could be more than money. I do have an issue, letting them get away with it and doing it to the next guy.
If you didn't have money from Modern Warfare 1, could you guys have sustained it through this gap?
West: Basically, their plan was to not go to trial, to [string it out] and run us out of money. That was why it seems like they've done crazy things that you would never do if you were going to go to trial. All the guys, everybody's had to cut to the bone to just try to get paid.
Zampella: That's what's really, really crappy.
West: And that's everyone all the way down.
The others that left Infinity Ward were never fired. Did they all just walk away?
Zampella: Well, they walked away because they were told they weren't going to get paid...
West: "You're not paying me so I have to quit, because you're not paying me, and I have a problem with that." And they have to spend their life savings to try to get paid.
Schwartz: Activision says, "No, that's not true. We offered them a better deal than what they had under their existing contract, and they didn't take it." And it's like, well, I don't call this fine print, but doesn't your deal say that essentially if they stay for two years, and if they agree to work on Modern Warfare 3, and Modern Warfare 3 makes its milestones, and if it comes out on November 15, 2011, and if it's a successful game, then by the time that game comes out you will have paid [the employees] all of their money that you already owe them for Modern Warfare 2, you just spread it out over a longer period of time, and you'll give them some additional cash for Modern Warfare 3? [So Activison says] "Yeah, but still, that's a better deal, because when [West and Zampella] were fired, the contract was now torn up, and any bonus was discretionary."
Zampella: They came in and said, "We owe you this money, but we're not going to give it to you unless you work two more years and make us another game."
[Editor's Note: On May 15 - the day before this interview - Activision paid out $42 million to the 38 ex-Infinity Ward developers. This, however, is not a settlement, as the plaintiffs are still seeking damages.]
How has this case affected Respawn? Do you guys think you can pull it all back together? No offense, but you guys look tired.
West: It's very distracting. I look forward to when this is all over and we can talk about Respawn stuff.
Zampella: The combination of all of it. Doing something so successful, not getting paid, getting screwed...
If all this didn't go down, you would have had the opportunity to do Modern Warfare 3. Would you have done it?
Zampella: It would have depended - we were looking at doing a new IP. I don't even know if we can say all that...It would have depended on what it was - maybe we would have done a new IP, maybe we would have done Modern Warfare 3, or maybe we would have done a new IP and then Modern Warfare 3. Resting a brand isn't a bad thing.
No, it's a great thing.
Zampella: We saw it as protecting it. And it's like, we're always working, it's not like we're going to sit around and do nothing for a while. So it's like let's do something else that will be good for Activision, and then go back to that.
This is an interview from the upcoming July issue of Game Informer.
Click here to download the public exhibit of the email exchange between Dave Stohl and Mike Griffith that took place on Jan 26, 2009, 14 months before Jason and Vince were removed from Infinity Ward.
Click here to download the 2008 MoU between Infinity Ward and Activision.
Click here to download the public exhibit regarding Project Icebreaker.