• CoA #3 -- Conversion: Aaaand, because punitive damages are often barred in contract, clever lawyers will often try to cast a breach of contract claim in tort, because tort claims can yield the big dollars. And whaddya know? The IW guys are alleging that Activision tortuously converted their promised bonuses. So, what the heck is "conversion?" Well, you can think of conversion as the civil court version of larceny. If someone steals something from you, he can go to jail -- but if you want your stuff back (or recompense for it), you sue him for conversion. Now, conversion is an interesting tort, because it is among the class of torts known as "strict liability." Strict liability means that you don't need to have acted with any intention or even with negligence; if you take somebody's stuff (or damage or destroy it) improperly, he can sue you for conversion.
    • Water-holding Abilities: Dixie cup with a hole in it. The problem is that conversion is typically only suitable with respect to "chattels." A chattel, basically, is a piece of personal property: some lumber, the family china, your dog, etc. Non-physical money doesn't count, usually. Moreover, a successful cause of action for conversion requires both a clear ownership by the plaintiff of the property in question (the bonuses are determined by a disputed contract, hadn't been fully accounted for, and were in the physical possession of Activision), and some kind of "disposition" (usually physical movement) of the property in question. Now, you could make a case that Activision owed the money to the IW guys and therefore should have paid immediately, so holding it beyond the payment date constituted an improper disposition. You could make that case (although the complaint doesn't), but you'd be making a case for breach of fiduciary duty or breach of contract, not really conversion. My guess: The IW guys' attorneys included the conversion claim just to cover their asses and make sure they don't get sued for malpractice if the contract claims fail.

  • CoA #4 -- Violation of the California Labor Code: As is common with initial complaints, the IW guys' claim for statutory violation doesn't have much in the way of detail. It doesn't even mention what section of the labor code Activision is supposed to have breached. However, this can all be amended later, as they've included the material gist of the issue: Activision owes them bonuses which it failed to pay within 72 hours of their coming due. While I don't remember whether that rule actually exists in the labor code off the top of my head, I don't remember any of the labor code off the top of my head, so I'm willing to take their word for it.
    • Water-holding Abilities: Either a sieve or the Hoover Dam. Statutory claims are, by their very nature, always one thing or the other. Either Activision passed a bright-line test and violated a particular provision of the statute as written, or it didn't. Sure, previous case law can inform current courts on subtle issues involving statutory interpretation, but we're talking (at least as far as this complaint is concerned) about whether Activision paid these dudes within 72 hours. If they didn't (easily determined) and if they actually owed the money (not so easily determined), then they're guilty and this cause of action will carry through. If not, not. Word.
    Objection! He meant Word UP.

  • CoA #5 -- Unjust Enrichment: OK, in the interest of not getting too long-winded here, I'm going to avoid a big discussion of what unjust enrichment is, where it sits on the contract/torn/restitution regime spectrum, and what kinds of factors gave rise to its existence. If you want to know that stuff, leave me a comment, and I'll tell you everything you want to know (and a lot you don't). Instead, I'll just give you a quick, common sense breakdown of how UE normally works: If somebody got paid at someone else's expense, and did so in a way that would strike the average dude as morally wrong, you've got unjust enrichment. No contract or pre-existing relationship is necessary whatsoever. A good example: You go to a carnival and play the "knock down the milk bottles" game. You give the carney your money, he gives you some balls, but he doesn't tell you that the bottles are all nailed down. Maybe you didn't have a contract, maybe he didn't steal from you directly, but he got his money in a shady way -- that's unjust enrichment. Of course, that's just one (very oversimplified) example, but you get the idea.
    • Water-holding abilities: ShamWow. Depending on how the other causes of action lay out, and also on what facts are officially accepted, this is a pretty strong claim. While the UE claim can sometimes be a throwaway catch-all, I think it has merit in this case, especially if the breach of contract cause of action fails. It just feels wrong for Activision to be able to promise these guys a carrot at the end of a stick, and then simply take the carrot away once the guys have run the race. Then again, maybe Activision never promised them a damn thing.

    Conclusion

    From what I know about the videogame industry, bonus structures like the one the former IW guys are alleging was in place at Activision are very common. It strikes me as both odd and hard-to-believe that Activision would not have had a bonus structure (although the stock-option vesting portion might be a little strong). Whether or not Activision actually extended the bonus structure to employees that were let go, however, is a matter of contract. That said, I do believe that -- even if Activision claims it was within its rights to fire these guys and then abrogate their contractual responsibility to pay them the bonuses -- it would still owe them on an unjust enrichment regime. I just can't see how you can make a bunch of dudes slave away on a project with the promise of some future enrichment, and then snatch that away from them once the work is done. I'll never be accused of being a labor agitator, but in this case, I gotta say... I think the former IW guys have a valid bone to pick. Then again, Activision is represented by two much bigger and badder-ass law firms, so we'll see if a jury ends up agreeing with me.



    Years ago, Eric Neigher went into law school, and started writing about games on the side. These days, he splits his time between pwning noobs on the Internet and pwning noobs in the justice system. His column, Objection!, was the 2010 recipient of the Neigher award for his own works.