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September 8, 2015

The Story Behind the Story

Filed under: Thoughts and Rants — Tom B @ 3:46 pm

A great deal has been written recently about Marty O’Donnell’s arbitration against his former studio, Bungie. As his personal attorney and friend, I wanted to speak out about the personal toll this ordeal put him through. References to the Revised Final Award (“RFA”), linked here, are designated with RFA, along with the numbered paragraph. Additional references to the introductory section of the RFA are made throughout and are not specifically tagged.

I hope this gives those who read it a little glimpse into the story behind the story. And how sometimes, you just have to fight the good fight.

MARTY AND ME

I first met Marty O’Donnell in the lobby bar of the Fairmont hotel back in the day. To be honest, at the time I had never played Halo and didn’t really have any idea of who he was. But a student from South Florida, where I lived at the time, was a fan. It was the student’s first trip to GDC and he was in awe of pretty much everything. He noticed Marty in the lobby bar and mentioned it to me. Marty was standing off to the side having a casual conversation with Mark Rein from Epic, who I already knew. I said, “Marty O’Donnell huh… well, would you like to meet him?” The kid said, “Boy, would I!” So, I marched us over there and introduced the kid, and myself in the process, to the “Famous” Marty O’Donnell.

As the years passed Marty and I developed a professional friendship, hanging out and various game industry conference and networking events. I asked him to serve on the Board of Trustees for the IGDA charitable Foundation that I co-founded, and he was happy to serve. I also asked him if he would do a presentation for the Seattle IGDA chapter and he was happy to oblige, even getting the OK from Bungie management to play a few pieces from the as yet unreleased “Music of the Spheres” and show a little bit of Destiny. But that’s how Marty is…all you have to do is ask.

TROUBLE IN PARADISE

Even though we both lived in the Seattle area, almost all of our contacts were at out of town conferences. That is, until late summer 2013 when Marty called and asked me to meet him for lunch in Bellevue on a legal matter. Marty had been instrumental at spinning Bungie out from Microsoft in 2007 and was one of the 7 founders of the independent studio that resulted from the exit. He had always honored the art of games and the value of the team over the product. He often refers to the team as the “Goose” and games as their “Golden Eggs.” I believe that in many ways, he was the heart of the new Bungie. We met and, for the price of an expensive lunch, I counseled him about issues he was having at work. RFA 7 & 8. After a short sabbatical to mull things over, Marty returned to work, immersing himself in the completion of Destiny. RFA 10.

INTO THE FIRE

In March 2014 Marty reached out to me again. Things had gone south at work and he had been presented with a “Transition and Separation Agreement.” He asked me to review it for him, which I did. After my initial review, I immediately decided that it would be in Marty’s best interest to get the opinion of a litigation attorney to explore all of his options. Although I had been a litigator for much of my earlier career, for the past 10 years or so my law practice had transitioned into transactional and legal counseling for game studios and my small firm was no longer set up to handle law suits.

As Marty’s “consigliere” I knew needed a “button man” for this mess. I vetted several local Seattle firms and narrowed it down to a few candidates. Marty and I then met with the finalists, settling on a mid-sized Seattle firm, McNaul Ebel, Nawrot & Helgren. Their analysis of the Bungie offer agreed with mine and Marty”s. Since the terms of the offer were non-negotiable, Marty rejected the proposal and continued to work. RFA 11. Marty was fired without cause a few days later, on April 11, 2014. RFA 12.

Marty was at a loss. He had been with Bungie since before it was acquired by Microsoft, 15 years earlier. It was a huge part of his identity and in many ways he felt lost and abandoned by the team that he had been instrumental in creating. Sure, he had disagreements with others in management, but he had always felt that he kept the best interests of Bungie above his own and done his best to make every game that Bungie made the best it could be. The Metacritic scores on the games he finish while at Bungie backed that up. But right now, he needed an action plan. Ligation is a difficult path that should never be embarked on lightly. But, Marty had little choice.

Bungie tried to strip Marty of his entire ownership in Bungie by unilaterally forfeiting all of his shares in the company. RFA 12. He had to file an arbitration against Bungie challenging their actions. The Demand for Arbitration was filed in late April. In addition, contrary to Washington law, Bungie was refusing to pay Marty his unpaid wages. A separate law suit was filed against Harold Ryan, as Bungie’s CEO, in State Court to recover those wages as well. That suit was quickly resolved in Marty’s favor as there as no viable defense for Bungie’s actions. But the Arbitration itself dragged on for well over a year.

BETRAYAL

The personal and financial toll this process took on Marty and his family was tremendous. Marty, one of the oldest employees at Bungie, is known as “Marty the Elder.” He and his wife, Marcie, were always the ones to be there for other members of the Bungie team in times of need. Providing emotional support and mentoring his team members. Now these same people were turning against him. Taking the Bungie “party line” against him.

In deposition after deposition Marty sat and watched as these people he thought of as among his closest friend, people he had stood by when they were going through rough spots, people he had personally hired and nurtured at Bungie, testified against him. To the man, almost nothing good was said about Marty personally or professionally, other than having to admit that he was a great composer, something that no one could deny. Each time Marty’s faith in his friends was crushed. Each time I cautioned him that people in law suits color their testimony. Each time he believed they would tell his story. Each time they failed him. The emotional toll on him was tremendous.

TRIAL BY FIRE

Bungie hired the mega-firm Wilson Sonsini Goodrich & Rosati to represent its interests, primarily with attorneys from its Austin Texas office. Masters at the art of delay and obfuscation, this firm used every trick in the book to burn resources and delay the proceedings. In the process, the financial toll on Marty was unbelievable. We had expected this case to settle rather quickly. But that never happened. Instead the case dragged on.

With about 100,000 documents produced by Bungie, many only after numerous requests from Marty’s lawyers, each document needed to be reviewed by counsel. There were numerous motions and hundreds of pages of correspondence between counsel, many involving the arbitrator. Then, just before the hearing date in March of this year, Bungie filed last minute counter claims, delaying the case even further. Marty’s legal fees were tremendous. I suspect Bungie’s were obscene. Fees easily exceeded any possible recovery by Marty or exposure to Bungie. There was no rhyme or reason. But that’s the way it went down.

THE FINAL AWARD

The formal hearing took five days and ended June 12th of this year. The Interim Final Award was entered on July 2nd and the Final Award was issued on August 25th. In response to the Final Award, Bungie’s attorneys filed no less than 22 requested changes and even asked the arbitrator to allow Activision to review the Final Award before it was released. The last request was denied and all but a few clerical corrections were made prior to the release of the RFA.

A JUST CONCLUSION

Marty was finally vindicated, but at what cost. He will never forget the way those he believed were his friends turned against him. The way that those he had mentored and supported throughout their careers had hung him out to dry. Nor would he ever recover all of the money or any of time spent on the case. But I don’t think that was really why he did this in the first place. Throughout the case Marty was primarily interested in justice; in being treated fairly; and, in being able to tell his story. And the Judge agreed with him by holding that Bungie breached its duty of “Good Faith and Fair Dealing” in the way it fired Marty. And now that finding has been made public. Too bad for everyone that the management of Bungie did not do right by him to begin with. It is certainly difficult to understand why. But I doubt that story will ever be told.

GL & HF!

Tom B


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