California lawsuit now alleges Activision-Blizzard HR literally ‘shredded’ evidence

    
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So who had “Activision-Blizzard gets caught shredding possible evidence in an ongoing lawsuit” on the ol’ Blizzard scandal bingo card?

Yes, we’re back to coverage of the ongoing disaster trainwreck over at Activision-Blizzard, the subject of a lawsuit filed in July by the California Department of Fair Employment & Housing alleging that the company has fostered a culture of sexual harassment and discrimination that led to, among other things, the death of a bullied employee. As we’ve been covering this summer, Activision-Blizzard’s public response to the lawsuit was almost as bad as the suit itself, as its deputies denied wrongdoing, insulted victims, axed middle managers, disparaged whistleblowers, and hired a union-busting firm on a pretense of reviewing its policies, all while refusing to acknowledge the full breadth of employee demands.

Apparently, the company’s private response to the lawsuit was just as bad, as Axios reports that California is amending its lawsuit to add additional workers and accuse the studio of impeding its investigation by interfering with witnesses and their testimony. And yes, remarkably, the state’s investigators directly accuse Blizzard of destroying evidence: “[D]ocuments related to investigations and complaints were shredded by human resource personnel.” Blizzard workers have responded with shock.

Activision-Blizzard issued a statement to Kotaku claiming that in fact it has “complied with every proper request” in regard to the lawsuit (and yes, the word “proper” is doing a lot of heavy lifting there). The company also listed out the “reforms” it says are underway, including “high-level personnel changes,” “revamped hiring and recruiting practices,” “greater transparency on pay equity,” and “restructured divisions to support greater accountability,” and if the company actually had done everything it claims in just a month, it should probably quit its day job making games and switch to consulting services for global corporations because that’d be a freakin’ miracle. Oh, the spokesperson also says they’ve “[e]xpanded and improved training and investigative capabilities for human resource and compliance staff” – hopefully that includes training on how to safely destroy alleged evidence because safety is very important.

“We have provided the DFEH with clear evidence that we do not have gender pay or promotion disparities,” Acti-Blizz insists, contrary to the allegations already presented in the original lawsuit. “Our senior leadership is increasingly diverse, with a growing number of women in key leadership roles across the company. We share DFEH’s goal of a safe, inclusive workplace that rewards employees equitably and are committed to setting an example that others can follow.”

Readers will recall that the California DFEH is the same state agency involved in a lawsuit against Riot Games for similar depravities and has multiple times accused Riot of illegally interfering with its investigation; earlier this month, it secured an order from a judge meant to protect workers from retaliation by Riot. In other words, yeah, we probably should have pre-emptively put all this on our bingo card.

Further reading:

Source: California DFEH, Axios, Kotaku. Cheers, Wilhelm.
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Ardra Diva

Well, it’s clearly time to raise the possible fine for destroying evidence, if this is simply a business decision, i.e., breaking the law.
btw, Happy Birthday Rob Halford. :)

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Bannex

Is it socially unacceptable if one wants the company to burn but WoW to survive under different development?

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Bruno Brito

It’s pretty acceptable.

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Dean Greenhoe

I hope it is not true, but if it is, this would not surprise me. Just watch the news and look at our examples. Seems everyone in power will lie, cheat and steel to maintain that power.

Morals in this world are in decline and seem to be a thing of the past.

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Malcolm Swoboda

There is absolutely nothing new about a large organization destroying evidence of wrongdoings.

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Bruno Brito

So, i just got back from a long talk to my brother, who is also a lawyer specialized in work law. I was pretty curious to see how the same situation is solved here in Brazil (evidence tampering/spoliation/destruction ). Anyone who wants to talk about this and make comparisons with US law, please do. This is fun.

So basically, what i got from him is that brazilian work law functions on identifying that the corporation/employer has the upper hand on all worker/employer relations. They have the capital, the means, they own the workforce. So, to balance that, the onus of evidence befall the corporation:

“The company holds the burden of evidence. If the company is accused and doesn’t hold the needed evidence/documentation to show that they didn’t mismanage the worker’s rights ( health documentation, work hours, forced overtime without pay, etc etc ), the company is fined. This in normal work cases.

The witness evidence is the king of evidences in work law. If you have particularly strong witness evidence, it can even eliminate documental evidence from the corporation, because the since the worker is the weakest part of the relation between worker/employer ( except very specific cases ), having testimony that corroborates the working conditions breaking law is extremely strong and the judge will then compare the two.”

Basically what he means is that evidence destruction is bad for the company. The worker has a pretty strong position considering how testimonial evidence is held in high regard by work law and it basically protects the worker from tampering and spoliation.

This is kinda enlightening. Brazil has a severe issue with companies investing heavily in psychological terrorism to keep employees from demanding their rights. You would hear all the time with people who worked in call centers: “Ah, if i litigate/go after my rights, they’ll never hire me again.” And call centers were the champions of complaints in most consumer and worker protection agencies.

But when push came to shove, if our clients kept going, the company would give up litigation quickly because it would cost them more than just paying. And the person would find other jobs just fine, because these companies cannot push employees away, they need a constant stream of workers because of how they operate ( maximum profit, terrible support and management, burns people quickly ).

Quick disclaimer: My brother mentioned that harassment cases are WAY harder to prove, because of their nature of they-said, and he avoids taking them. Everything he mentioned was for normal cases of requiring payment for your rights and such. Just letting that clear.

In Blizzard’s case, there seems to be a shitton of testimonial evidence. I can’t speak for the US, but here, i would argue they would get beaten to death by thirsty lawyers.

( I kinda wanna see my father hurl profanities at them now, after a victory and then taking us all to dinner. Kinda a tradition nowadays. And no one can curse another shitty lawyer like dad. Man is absolutely godlike at making you feel like shit. )

PS: If Ashfyn or Aldristavan feel like giving me bullet points on the differences between US and Brazilian law, hit me please. I’m still waiting for my father to answer, since i want a more concrete case. Both my mother-in-law and my brother mentioned that it never happened to them. Dad’s been practicing for more than 30 years so he’s bound to have it happen to him.

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Ashfyn Ninegold

Wonderful post, Bruno. I think I’d like your father. I’ve no experience with employment litigation, so I’ve no idea what the standard of proof is for such matters.

I don’t know whether our Supreme Court’s ruling that corporations are people allows them the presumed innocent tag so that DFEH needs to prove the case rather than ActiBlizz has to disprove the case. I suspect the former.

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Bruno Brito

Yeah, my brother was quick to point out the differences between US law and Brazilian law. You guys have differentiations between states, we have federal regulation. You have a more interpretative view of jurisprudence. We have everything written down so there is little opening for interpretation. I have to ask him if unions here ( syndicates as we call them ) are government-enforced. We don’t do much of precedent, while the US is pretty precedent heavy ( or as Popehat puts it: “Bad cases makes for bad law” ).

My father is a unbelievably good lawyer. Can’t say i respect the man much but i do respect him professionally.

Brazil’s constitution ( and most of it’s subsequent laws ) are heavily based on european law, so we have a huge focus on social-democratic approaches, kinda leftist.

It’s funny if you think about it because conservativism and liberalism became synonim with Right and Left, and nothing could be further from the truth. Brazil is a conservative left-leaning country, population-wise, and liberalism and neoliberalism were never on the left spectrum, they’re as right-wing as it can be.

Aldristavan
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Aldristavan

Oof, I don’t have enough coffee to give you a bullet point list, Bruno.

But in the U.S., in a civil proceeding the burden is generally on the plaintiff to prove that the allegations in the complaint are true; even if proven, the defendant may be able to raise legal defenses that shield them from liability.

Sometimes, by law/statute/regulation, that burden shifts. For example, in a Title VII mixed-motive case, once a plaintiff proves that a protected characteristic (e.g. gender, race, religion) was a motivating factor underlying an adverse employment action, the defendant has the burden to prove it would have made the same decision regardless of the protected factor.

Generally speaking, objective proof / documentation is far more persuasive in the U.S. system than testimony alone. Witnesses and testimony is very important, of course, but a combination of the two (testimony plus corroborating and contemporaneous documentation) is best. In our system at least, judges and juries don’t want to determine the outcome of a case on the basis of testimony alone. Possible, yes, but highly unlikely.

And while generally people think that corporations “will just settle something to make it go away,” I think you’d be surprised by how much a corporation would pay to fight something. They really don’t want to set negative precedent.

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Bruno Brito

I see. Thanks for your time, Aldri. I feel like the US system is way more focused on documental evidence because of the strength that precedents have in more forward cases. In Brazil, we are way more based on what the law states without much opening for interpretation ( just so you know, the 5th article of the Brazilian’s constitution ( which is the article that talks about people and their individual liberties ) has 78 parts.

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Neowolf2

I am not a lawyer, but as I understand it, destruction (“spoilation”) of evidence is taken very seriously in US civil courts. A judge can order all the destroyed evidence to be construed in favor of the opposing party.

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Paragon Lost

Bingo! On a more serious note, WTF Blizzard. Seriously, you thought that was a good idea? Just decided in for a penny, in for a pound. Damn.

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Ashfyn Ninegold

You can skip this lengthy post. It’s just me, your resident HR professional, musing about what ActiBlizz might have thought, in their little pea-brains, they could get away with shredding. And no one would ever, ever know.

My personal scenario for this is that they utterly panicked because they knew. They knew. An extreme number of Tums were consumed behind closed doors in very heated meetings. Swords and shields were brandished. Hefty defensive spells were slotted on very hot bars. Okay, enough about my memories, on to my suppositions.

1. Payroll records. Good initial guess, but no. Huge corporations like Blizz do not do their payroll in house. It is done by other huge mega-corporations who specialize in payroll only. They would not destroy payroll records ever because the Feds would come down on them with the ban hammer. Payroll records push out W2s for feds and states. Unless those records could lawfully be disposed of under retention requirements (fed, state and local), this is the wrong rabbit hole.

2. Performance reviews. Another good guess, but again, no. California is one of the strictest states in the country for discrimination. One way to prove you have not discriminated against anyone is through annual performance reviews. See? We treated this person exactly as we did all the others. No discrimination! Not having an annual performance review in one’s personnel jacket is a giant red flag. So, nope, no targeted shredding of reviews. Big But. If they did do this, employees, by law, receive a copy, so DFEH would likely have that copy, so it would be even worse to not have it in their file. If they did this–really, really amateurs.

3. Correspondence. Aah, now we’re getting warm. Internal emails, specifically. ActiBlizz has to have rationalized (hopefully) that any correspondence to the employee would have been saved by the employee. While it is true that 99% of Americans never, ever look at their paystub (which is why we are so frequently ripped off by wage theft) and if they do, have no idea what all those little acronyms mean (another blind spot) and even if we did understand, we’re horrible at Maths, it is also true that we are a nation of grievance takers and there are an astonishing number of people who keep everything. Everything, including changes to the cafeteria menu. So blitzing correspondence sent directly to an employee would at best be a Leroy Jenkins decision. But internal emails? Search the email servers and delete everything pertaining to XYZ. Definitely doable. But answer me this, what human endeavor has ever been perfect, other than Bobby Hatfield’s rendition of Unchained Melody?

4. Compensation decisions. Red hot, now. Spreadsheets, internal notes and files. All right into the shredder.

5. Hiring and Firing decisions. On a roll now. Also very shreddable. Spreadsheets, notes, files held by HR personnel, more internal emails. From my personal storehouse: Whenever a questionable decision was reached, I always documented everything and put it in a paper file, so later, when the inevitable, why did this happen, Ash, came around, I could whip out my documentation. Again, people keep stuff.

6. Pension and Profit Sharing. Possible, I suppose, for unqualified plans (meaning not recognized by the IRS as tax deferred). It would be dangerous to shred documentation relating to a qualified plan (your typical 401(k) Plan) because the federal DHS takes a very dim view of this. But if they were screwing around with contributions, that would be bad on so many levels, shredding might be the better option. Outside trustees and auditors would have records, though, so not sure what this would do for them.

For unqualified plans (in-house reward plans), this might be another source of provable discrimination. Oops, we just don’t know where those records went. Fines for failure to maintain required documentation probably a lot less than court awarded damages.

People keep things. Some people keep lots of things. HR professionals are by and large women. Lots of women in HR are on board with the corporate myth. But also, lots of women in HR are not. One shoe does not fit all. Thumb drives are incredibly easy to lose in the bottom of one’s gym bag.

DFEH is not going to file with the court that ActiBlizz shredded documents unless they have proof; that is, copies of documents supplied by employees that were not produced by ActiBlizz or documents required by law to be retained.

Okay, thanks for coming to my TED talk.

Aldristavan
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Aldristavan

Given my experience in labor/employment litigation, I can confirm that this post is insanely accurate.

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Toy Clown

This reminds me of locker room culture going years back that was prevalent in high schools and universities. Before gaming, football and basketball were the same culture as we’re seeing here. These guys had poor grades, could cut classes, sexually harass girls, their parents could usually pay off people to remain quiet, all so that these guys could go on to become leading sports stars.

People have no idea how much this “male behavior” is ruining the lives of many, and has been for centuries, especially for those that could never stand up for themselves.

The one good thing about all of this surfacing is that women are finding their voices and standing strong. I hate seeing all of this, but this catalyst needed to happen for forward change.

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Dennis VonBeck

Whoa! Slow down there whoever you are. I have played football, hockey and baseball in both H.S. and some in college as have many men and a vast majority of men are not anything near what your making men out to be, especially what is happening at Blizzard.

It is utterly repugnant what is happening at Blizzard. But when you say “male behavior” as a male I take umbrage in that totally unacceptable broad stroke characterization of men. It certainly doesn’t help the narrative that needs to be addressed in order for this crap to stop continuing.

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Hamblepants

If you’re curious why these arguments don’t hold much water, google #NotAllMen

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Bruno Brito

I don’t even bother anymore.

Any reasonable person would simply not take offense and let the generalist argument eat itself. But everytime i see someone getting pissy about women being rightfully scared of all men, i just imagine these people yelling at victims while the perpetrator is right behind them.

It’s amazing. If you wanna be pissed at someone, be pissed at the fucking harasser that is making women scared of you.

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Bannex

Man what a slippery slope that is. I get what you’re saying and generally agree but justifying broad generalizations CAN lead to “justified” generalized hatred.

Are you saying good respectful men have no right to be uncomfortable being lumped in with predators?

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SmiteDoctor

Uncomfortable, it pisses me off, uncomfortable is an understatement, it would be like talking to some one doused with Acid in an Honor attack in SE Asia and asking if they were ‘uncomfortable’.

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Bruno Brito

Are you saying good respectful men have no right to be uncomfortable being lumped in with predators?

I’m saying that you should target your discomfort at the right target.

Which it doesn’t happen, and this is why there is no “good respectful men”. Everyone is a potential threat to women because they live this shit everyday.

Also, let’s put a small card on the table here: The generalized hatred of minorities rarely has hold. The generalized hatred of white males is what made this shitshow we’re seeing at Blizzard. The women you feel discomfort for their generalizations can only insult you. The men injuried them.

THAT’S the difference.

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SmiteDoctor

Why can’t you be both, for example I take great offense being lumped together with all these Meme Worthy White Male Scum Bucket Morons, so I’ve gotten to the point where I turned into a Libertarian, torn up my Liberal card, admire Liberals from a safe distance since I’m not Woke enough, Too White, and Not Self Flagellating enough, but I still vote Democrat because it’s better than voting for Ignorant Racist Conspiracy Theorists (I just can’t stand talking to any Liberal younger than maybe 35 these days).

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SmiteDoctor

Just for the record I played sports, I was on the High School football team, you’re full of shit.

Hamblepants
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Hamblepants

If you’re curious why these arguments don’t hold much water, google #NotAllMen

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SmiteDoctor

I don’t give a damn, as far as I’m concerned the crap you’re peddling is scaring away the Moderates you need to win elections.

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Bruno Brito

I can’t speak for liberals and center-lefts, but i don’t know a single leftist who is really leftist and it’s happy with Biden. Most left-leaning thinkers that i follow are pretty quick to denounce the Democrats. Chomsky, Hedges, Wolffe.

You see, my friend: Corporate fascism with a rainbow still is corporate fascism.

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SmiteDoctor

I just want some one competent that won’t run the planet into the ground that supports tolerance, freedom to all people, and narrows the income gap so everyone has a decent quality of life.

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Bruno Brito

If God itself wasn’t able to embody all that, not a single human being will be able to.

It’s easy for us to talk about tolerance, i’m not a target of racism where i live. When my friend talks about her moments where she was mistreated because of racism, when she talks about the misoginy, and when she thinks about her legacy as a black woman, daughter of black women, and their role throughout history, she kinda loses the willpower and the reason to even want to consider white males, and i don’t blame her.

Why would she? Why would she want to be friends with people who don’t try to understand her fear, her rage? Which is all understandable.

We have absolutely no idea of what these people go through. We have no idea of what it is to be a woman, when you consider that in the US, for each 1000 sexual harassment happenings, only 5 get to courts. Why would women want to trust you? Why would they want to trust me? Why would black people want to trust white people when white people have no idea and make no effort to change a system where even though they’re 10% of the population, they make up 60% of the prison populace?

This is the price we pay for privilege. I’ve been lucky enough to have extremely open-minded friends and being open-minded enough myself to understand when they’re fighting for things and that maybe i, as part of a privileged group, should look at my behavior and those of my peers and call them on it if it’s damaging for others not in their position.

But i’ll have to accept that this privilege generates resentment. Because it’s not earned. Such is life.

My brother said a good sentence today: “There are two animals who shit on water: Fishes, and Humans. Fishes because they live there, and Humans because they can.

Humans are so fucking petty and pathetic that they shit even where they drink.”

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IronSalamander8 .

To the surprise of no one. This was already beyond my own cynical impressions of Blizzard that I’ve had for years, at least since WoW’s beta, but they keep digging deeper. There’s so much rot in this company, and people need to stop defending them.

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SmiteDoctor

To be honest I expect all companies and Mom and Pop businesses to shred documents that are incriminating; hiding the evidence is Human Nature lol.

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Bruno Brito

I’m highly sure it’s also a crime, so not every company is going to do that if they’re under scrutiny.

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SmiteDoctor

Practically every single job I’ve ever had has had practices that violated worker rights, or skirted some form of regulations, every single one (granted this is because management gets away with it because people are MOFOing SHEEPs, but even in my job where my company told New York state to go fuck it self over the conditions of a grant to build a new Hospital ditch diggers like my self can stand up to management since NO ONE wants the positions any way).

Man I started with a train of thought, and went sideways again I think; that’s the problem with Day Drinking when you work nights.

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SmiteDoctor

Yeah I’ve got two catch phrases at work that people know me for “You can only do what you can do” and “What are you going to do fire me, print up my pink slip”

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Bruno Brito

I’ve worked for a lawyer specialized in work law. I’m aware.

But thing is, Blizzard is under direct scrutiny now, because of the DFEH investigation, so any of the common practices will also be scrutinized.

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SmiteDoctor

Nothing surprises me any more, it’s a combination between hitting my 40s, being raised by a criminal, and working for a company that learns new unique ways to cut corners and stretch the legality of patient safety (hell they were given a grant of close to 100 million dollars to build a new hospital, one of the major sticking points was to keep Mental Health open, during Covid last winter they ‘temporarily’ shut the Mental Health floors down, the mayor of the city and the states Reps protest out side the building and pull them into subpoenaed meetings, nothing fucking changed LMAO).

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Bruno Brito

At least you can shove 10% of anger and shame by pretending that “it’s capitalism” is a reasoning for shit happening. Greed.

I can pretend that Bolsonaro keeping vaccines delayed for 10 months from pfizer just to cash in hyperpriced vaccines from shady companies is human greed and capitalism at works, and not just pure evil.

How do i justify Afrasiabi? How do i justify looking at someone you make afraid and scared of you because you sexually harass her, and you get off on it?

There isn’t a shred of greed here. You can’t even start to justify. None of this shit improves Blizzard as a company, at the expense of their workers.

It’s just evil. It’s just causing pain. These people don’t deserve just to pay fines and a lifetime of attonement, they deserve a massive beatdown.

Thank god Afrasiabi is silent, because if he says an single “hi” in social media, someone is going to break his jaw for sure.

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SmiteDoctor

It’s all just a pile of crap, I’m one of those guys that makes popcorn drinks 200ml of Vodka every 5 to 6 hours on days off, and scans the news hoping that a Dinosaur ending event is around the horizon, we’ve got this Meme worthy poster advertising our new Heart Surgery Dept that exclaims Heart Attacks Don’t Wait or some such BS and I walk into work disappointed thinking ‘you lying sons of bich’s I’m not dead yet!!!’

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Arktouros

Invest in a big comfy chair, kick your feet up, and relax.

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Bruno Brito

That’s some Carlin level shit.

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SmiteDoctor

I feel like a next generation Charles Bukowski

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Bruno Brito

Man, those books are unbelievably bad.

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SmiteDoctor

Come on man, his poetry was legit.

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SmiteDoctor

Like this poem for example

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SmiteDoctor

The older I get man the more his writing resonates, as a Night Shift worker you see your Co Workers more often than your family, hell you see frequent flyer patients making the same stupid mistakes more often than your family that lives outside your house, your friends are just constructs on social media that put their carefully crafted faces forward ahead of their train wreck lives (but at least they are smiling, and the filters make it look pristine).

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Bruno Brito

Nah. Most of what i saw from Bukowsky was mainly what i call the “white angst”. Literal empty dread from someone who has really weird purviews of life.

Sure, depression and sadness resonates, but your story is way more interesting than anything Bukowsky comes with. He sounds devoid of purpose and bland. At least, you sacrifice yourself to help people, most of his crap is highly selfish and self-indulgent. There is more to life than to contest everything and everyone.

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Sarah Cushaway

Scumbag company gonna scumbag. I’m not even that surprised at this point.

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SmiteDoctor

They’re all scumbag companies, granted some are Super Bowl Contenders like Blizzard but still.

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PewPewBattlemango

I wonder if Bobby had to fire someone to create a budget to buy additional shredders …

People should honestly stop buying and playing Activision games. No players + no money = fewer partnerships –> Only way you will force Activision to do better.

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Arktouros

They fired all those middle managers at Blizzard and replaced them with cheaper corpo Activision types. Lots of budget for shreddin now and more to come as they rennovate Blizzard into the Activision money factory that Activision has always wanted out of Blizzard.

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Bruno Brito

I’m still of the opinion that if Blizzard was actually directing WoW correctly, they would be the money factory.

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Arktouros

The people who knew how to direct WOW correctly were also the people that ran thing like a house of misery. Now you can certainly imagine a person who knows how to direct WOW correctly and not be horrible however actually finding said person is an entirely different matter.

Regardless Blizzard has never been a factory. It’s always been a “it’s done when it’s done” style company and in an age where most major or new games update on a bi weekly or monthly basis to try to stay relevant. There’s tons of opportunities to monetize their games they don’t take advantage of that I’m sure Activision howls about.

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Bruno Brito

It actually makes sense. I always said and believed that Blizzard had a lot of agency to operate given they brought quite the dough, but there are ways you can pressure a company without messing with them internally. I’m sure Activision kept prodding them with “how long until you put this and that monetization into WoW?”