West and Zampella vs Activision, Part 2

From Page 11 of the Activision counter-suit:

39. Knowing the wrongfulness of their actions, West and Zampella took steps to keep their actions hidden. West and Zampella sent and received the following messages in an apparent effort to covertly copy certain materials, reading in part: "Dunno how to scan secretly [sic]... [IW Employee's] computer down... [IW Employee] did it for me last time... Really. No paranoia about it being in [IW employee] user folder? Her comp down anyway now... She had a secret area it scanned into... Probably better to just photocopy and Fedex... Can scan or photo- your call... Boom boom pow. Away."

Looks like Activision has been reading emails and IM's. There are a lot of other allegations in there, some of them quite specific like the above, suggesting they have concrete evidence to support them.

The bulk of Activision's argument is focused on Jason and Vince's duty of loyalty and fiduciary duty to Activision shareholders. They have an employment agreement, they feel it's in breach. It's a pretty simple argument, not unlike the argument Jason and Vince are making that Activision is in breach of their MOU.

What's conspicuously missing is the explanation that Jason and Vince were warned that their behavior was unacceptable and that their jobs were in peril as a result. The reason that doesn't look good for Activision is that Activision is asking for reimbursement of everything Jason and Vince have been compensated since they first demonstrated the alleged disloyalty and insubordination.

If the insubordination was so dire and obvious, then they could have fired Jason and Vince long ago, or at least warned them. Instead, they kept them on, and Jason and Vince delivered the best-selling console game of all time. Woops. It appears they did the shareholders a solid, despite Activision's arguments in this counter-suit that Jason and Vince haven't acted in the best interests of the shareholders.

But Activision isn't alone in making shaky arguments. This was a part of the response from Robert Schwarz, the attourney representing Jason and Vince, in his statement to IGN:

"Activision's inaccurate and misguided allegations lose sight of the reality here: None of the false claims of insubordination or breach of duties had any negative affect on Activision -- none. Modern Warfare 2 has been the world's most successful video game," Schwartz added.

If the allegations are inaccurate and misguided, then you don't say that the things which didn't happen didn't have a negative effect. That's equivalent to saying they did happen, but they didn't have a negative effect.

I'm noticing the broken logic, the mis-used "affect" above, and the typo in this statement below, as well:

"The conversations with IW employees, talent agents, and others during these negotiations with Activision were conducted in disrespect of Activision but to see if Activision's proposal could work."

I think he meant "were conducted not in disrespect." Getting this wrong is bad enough, but getting it right yields another dangerous double negative. You lose either way with a statement like this.

I hope Mr. Schwarz was either having an off day or that IGN did an unflattering job of transcribing this from a phone interview, because it's inviting the scary. Activision wants to protect not only one of its most prized IP's but its ability to prevent employees from shopping themselves for better deals. There are billions at stake for Activision here, but as a percentage of their net worth, a lot more is at stake for Jason and Vince.

Were I Mr. Schwarz, I would not play the outraged denial routine quite so loudly. It's trite and not particularly convincing, which is undermining his otherwise valid points.