Utah video game developer ordered to pay back wages

Published: Thursday, Oct. 18 2012 6:29 p.m. MDT

SALT LAKE CITY — A Utah video game developer has been sentenced to one year in jail and ordered to pay restitution of at least $1.2 million.

David M. Rushton, 57, is the first person in the state prosecuted for failing to pay wages.

Rushton was convicted of pattern of unlawful activity, a second-degree felony; attempted unlawful dealing with property by fiduciary, a third-degree felony; and a payment of wages violation, a class A misdemeanor.

"It's a big deal, and not paying your employees, not only is it not cool, it's just bad," said Paul Murphy, spokesman for the Utah Attorney General's Office.

Rushton founded Sensory Sweep Studio, later renamed Fooptube LLC, in 2005. The company helped to develop games including "Tiger Woods PGA Tour 2005," "Street Fighter II: Hyper Fighting" and "Need for Speed: Most Wanted." Fooptube is now defunct.

Former Fooptube programmer Todd Smith said he first noticed trouble when his 401(k) contributions started showing up months late. Then, Smith said, he and other workers realized withholdings were being used to cover payroll. Not long after that, the paychecks stopped.

"If he really meant well, he wouldn't have been lying to us about the situation in the company," Smith said Thursday. "He would have told us what was really going on, and if we had the same goals, we would have stuck around."

Smith said the decision to leave was difficult because Rushton was a nice guy and had been well-liked.

"He lied to us about how things were really going and the outlook for the company in order to get us to stay without pay," Smith said. "He made sure that he kept paying the insurance because a lot of people stuck around without pay because they still had insurance and had medical problems."

While Ruston's case is unique, wage claim files happen all the time in Utah. According to the Utah Labor Commission, there were 1,500 cases in the past fiscal year. In 2009, when 95 workers — half of Fooptube's employees — started filing against Rushton, there were 2,700 claims filed. 

Brent Asay, manager of the state's Wage Claim Unit, said workers should file as soon as the paychecks stop.

"If they start seeing the employer miss a pay day or another one after that, that should send off red flags in their mind that, ‘Maybe I should look for another job,'" he said.

The Utah Attorney General's Office prosecuted Rushton for failing to pay taxes and he was sentenced in 2010 to 18 months in jail and ordered to pay $516,816 for tax fraud and pattern of unlawful activity for the non-payment of income and withholding taxes.

There is an incentive for him to pay back his employees. After he serves a year in jail, he'll be put out on probation.

"While he's on probation, he will have to make a serious effort to pay restitution," Murphy said. "If not, he could face going to prison."

"I'm not sure if we'll see anything," Smith said. "I'm not expecting it personally."

To file a claim, it has to be for $50 to $10,000 and it can't be from more than a year ago. More information is available at laborcommission.utah.gov. 

E-mail: aadams@ksl.com, acabrero@ksl.com Twitter: ksl_alexcabrero

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