The high cost of a Wii U retail release

Original story, March 15, 2019: Despite being largely a dead console, the Wii U is seeing the physical release of a relatively well-known indie title in North America at the end of this month: Axiom Verge.

The game was originally released digitally on the platform in September of 2016, and its North American physical release was announced over two years ago. Since then, it's seen a Nintendo Switch digital and physical launch, but the Wii U physical edition seemed to vanish after its initial reveal, largely forgotten as the Wii U took a backseat to Nintendo's newer console.

But thanks to a long saga of delays, Lot Check troubles, ignored emails, bank mistakes, company closure, and court proceedings, Axiom Verge on the Wii U would remain unforgotten for the two companies originally responsible for making it happen: Limited Run Games, and BadLand Games.

Delay of game

BadLand Games approached Limited Run in March of 2017 with an offer: Limited Run would be the exclusive distributor of a physical, goody-packed edition of Axiom Verge on Wii U in North America. At the time, BadLand Games held publishing rights for the title, and had just announced that the game would be coming to PS4, Vita, and Wii U at retail through a partnership with developer Thomas Happ. The Wii U retail edition was to be a "Multiverse" edition of the game that would also include a booklet containing art and developer commentary, a poster, and a making-of documentary. The targeted release was Q2 of 2017.

Speaking to GamesIndustry.biz, Limited Run CEO Josh Fairhurst says the deal was a great opportunity to "'save' a physical release from never happening." The companies signed a contract in July of that year for 6,000 fully-assembled copies of Axiom Verge on the Wii U, with the intent of a fall 2017 release date. For their part, Limited Run paid BadLand Games $78,000 for the copies, to be delivered at least one week before the intended release date in November at the latest. But November passed with nothing delivered.

"We felt this was a nice opportunity for us to 'save' a physical release from never happening"

Josh Fairhurst

BadLand Games then readjusted the release date to January 2018. But in January there was another delay, this time from Nintendo. Per emails shared with GamesIndustry.biz from that time, the game was struggling to pass Nintendo of America's "Lot Check," or its verification that the game meets Nintendo's standards. The snag wasn't an impassable one - there was simply some confusion regarding whether the rating of the game should be E10+ or T, and by the end of January BadLand and developer Happ appeared ready to resolve it with a new build of the game.

But even with the Lot Check issue solved, the games never arrived. Fairhurst tells me that by March of 2018, BadLand had gone radio silent and Fairhurst's contact at the company was gone. In early April, he sent an email to BadLand Games CEO Luis Quintans, hoping to find a resolution.

In the email, Fairhurst offered two options: a direct refund of the $78,000 owed, or $78,000 worth of Axiom Verge on the Nintendo Switch, PS4, or PS Vita. The latter option would have given Limited Run a way to recoup their money by partnering with Thomas Happ and distributing the copies. The email concluded with the first note of warning from Fairhurst - he had cc'd his lawyer Brandon Huffman of Odin Law on the correspondence, and Huffman was reviewing prior communications between the companies, just in case.

Just over a week after the first email, Huffman reached out to Quintans with an ultimatum: if BadLand Games didn't repay the money by the end of the week, Limited Run would insist on full repayment of the $78,000. And if that was not accomplished by May 21, 2018, Huffman would begin collection efforts.

When the deadline arrived without answer, Huffman sent another warning email. Just over an hour later, Quintans replied with an apology, a preference for the second offered option ($78,000 worth of Axiom Verge on other platforms), and an offer for a phone conversation the following Monday. Fairhurst responded a few hours later, agreeing to the second option and offering a time for the call on Monday.

According to Fairhurst, that call never happened, and he didn't hear from Quintans again until October of 2018. But during that six-month period, Fairhurst wasn't idle. When it became clear BadLand Games had gone silent again, Fairhurst opted to pursue legal action. Huffman began sending requests for repayment in August. And in October, Limited Run filed suit in North Carolina's Wake County general district court, seeking repayment of the money plus interest and attorney's fees.

Two weeks after the suit was filed, Quintans finally responded. His reason for the silence and lack of repayment was a surprising one. According to an email from Quintans, BadLand Games was closed and the publishing rights to Axiom Verge had been transferred back to Thomas Happ. However, Quintans also said that activity would continue under a new company, BadLand Publishing.

BadLand 2: BadLand Returns

The exact details of what happened to BadLand are murky, but Quintans offered GamesIndustry.biz some level of insight as to the company's troubles. While negotiations were going on with Limited Run over Axiom Verge and delays persisted, BadLand was busy fielding an unrelated set of troubles. Quintans says that in September of 2017, the company encountered a problem with one of its lender banks that sent the company spiraling into deeper and deeper trouble.

According to Quintans, their bank gave a notice of non-payment to the Bank of Spain by mistake, stating that BadLand Games was behind on loan repayments. As a result, the Bank of Spain notified other banks of the situation, causing them to cancel credit lines issued to BadLand. Quintans says that as these notices are updated only once every two months, by the time the company's bank had corrected its error, BadLand had been locked out of necessary funding for two months and didn't have the cash to get through the holidays.

The missed Christmas campaign was the catalyst for the ultimate dissolution of the original BadLand Games. Even with lines of credit restored, loss of expected major holiday funding continued to hurt the company into the following year. Throughout 2018, it was forced to liquidate first its warehouse stock, then the entire company. BadLand Games closed entirely in October of 2018.

Though that was the end of the company as it was named, that wasn't the end of its work or core management. Quintans says the company managed to move a portion of its staff from BadLand Games to BadLand Publishing, a label it had founded in June of 2017 on the advice of its administrator to keep distribution and publishing activities separate.

That six-month gap of silence where Quintans did not communicate with Fairhurst occurred, he claims, because the company was "trying to redirect the business, save the company and jobs." Once BadLand Publishing was consolidated, it began to contact those with whom BadLand Games had outstanding debts to negotiate repayment. Now, Quintans says the company has repaid 90% of its debt.

"We felt obtaining the judgment was the only way to assure they'd honor their commitments"

Josh Fairhurst

But by the time BadLand Publishing got back in touch with Fairhurst, it was too late. Fairhurst had already filed a lawsuit, and the email response from Quintans offering either another BadLand Publishing title for distribution or a "soft" repayment plan to settle the debt went unanswered.

"It was not until after the lawsuit was already filed and we'd already incurred legal costs that BadLand came back to the table," Fairhurst replied when asked why he didn't respond to Quintans' offer. "At that point, we'd been without the money for over a year, with no sign of delivery or refund from BadLand. It seemed highly unlikely at that point that they would actually honor any compromise that involved payment over time. We felt obtaining the judgment was the only way to assure they'd honor their commitments - which they still have not done."

BadLand's penchant for radio silence persisted into what ended up as a rather one-sided legal battle. The company never responded in any way to the North Carolina lawsuit, and Fairhurst says multiple attempts to inform the company of the proceedings went unanswered. On December 4 of last year, the district court rendered a judgment by default in light of the fact that the defendant never turned up for court, ordering BadLand Games and BadLand Publishing (both are listed on the judgment and suit) to repay Limited Run the full $78,000 plus $3,675.63 in accrued interest and attorney's fees.

The fate of Axiom Verge

From here, Fairhurst intends to continue pursuing the issue until Limited Run is repaid. He says he has begun working on enforcing the North Carolina judgment in Spain, where BadLand is based. He believes BadLand is capable of paying them back, despite Quintans' requests for a soft repayment plan.

"We'll be lucky to end up recouping more than a third of what we put into it"

Josh Fairhurst

"BadLand Publishing has released several physical retail products since we sent them our money, some within the last few months," Fairhurst says. "Through my knowledge of minimum order requirements with the major platforms and the associated costs, I know that BadLand has spent more than $100,000 (at least) on recent physical product releases. So, they've had more than enough money to pay us back, yet they've been content to keep our money. "

Quintans says BadLand still has every intention of paying back the money owed, but maintains that the fault is on Limited Run for not communicating with them. According to him, BadLand only received the initial legal complaint in October and the final trial judgment just last week, but no other communications in between.

"In short, this resolution says that we have to pay to Limited Run, which is what we are willing to do from the beginning," Quintans says. "But for that Limited Run has to want to talk to us and keep in mind that it is not possible to face all the payments at once."

As for Axiom Verge on Wii U, Limited Run is committed to releasing the title in North America. Shortly after BadLand went totally silent, Fairhurst connected with developers Thomas Happ and Daniel Adelman and began work on the physical version, but by necessity had to pay for the Wii U discs a second time. The game is now planned to release on Friday, March 29 and will be sold online at the company's website.

Fairhurst says Limited Run has now put over $120,000 into the project total. "We'll be lucky to end up recouping more than a third of what we put into it."

Update: Shortly after the publication of this piece, Axiom Verge producer Dan Adelman came forward with his own story about how BadLand Publishing owes himself and Thomas Happ $200,000 for the game's distribution in Europe as well as a promised healthcare fund for Happ's ill son. The two have filed a separate lawsuit.

Update, March 18, 2019: Quintans posted a statement on his Twitter account over the weekend in response to this story and a follow-up story about BadLand's dealings with Axiom Verge developer Tom Happ and producer Dan Adelman.

"I understand that, due to the extreme situation we were going through, our way of doing things has not been ideal, and I am sorry for the damages this has caused to the parties involved, but I want to reiterate that I am still willing to reach out and assume the payment of the debt, which I have never refused, to avoid further damage to companies and people involved in this situation," he said.

He added that, "due to the seriousness of some of the accusations that have been made in relation to this issue, I have been forced to put this matter in the hands of my lawyers, who reserve the right to take legal action against anyone who might make public inaccurate or false information harmful to the interest of the company in which I now work, BadLand Publishing, or my own."

Additional reporting by Brendan Sinclair