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Book Sense 76
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ABA Litigation Update, Day 2 -- April 10, 2001

By Hut Landon

Well, it didn't take long for things to get nasty.

While the testimony of Andy Ross and Gail See today provided more clues to the way the industry works, defense lawyers took their gloves off and began throwing heavyweight punches, many of which landed.

The rocky day started off well enough, as Ross, owner of Cody's Books in Berkeley, California, testified that his business was adversely affected by the 1992 opening of a Barnes & Noble store within five blocks of his store and that he had never, to his knowledge, purchased books under terms not available to all booksellers. He also said, in answer to questions, that he had never:

  1. received cash discounts from either Penguin or Macmillan
  2. been paid by a vendor to ship books from one store to another
  3. received a shortage allowance based on estimates of shortages
  4. deducted returns off an invoice before actually returning the books
  5. had return penalties waived
  6. received co-op funds in excess of the cost of an advertisement
  7. heard of an Ingram Summary Billing Program

At the same time, defense attorneys Daniel Petrocelli and Reginald Steer aggressively questioned Ross in an attempt to portray him as a wheeler-dealer intent on negotiating his own deals for Cody's. When it suits their purposes, the chains argue that decreased sales are the result of booksellers' entrepreneurial ineptitude and inability to adapt to change. With Cody's, that's a harder case to make, so the defense team honed in on their alternative argument. The premise is that Cody's is out there in book land trying to negotiate the best terms possible, just like the chains do.

Former bookseller (The Bookcase, Wayzata, Minnesota) and current publisher (The Ruminator Press, St. Paul) Gail See followed Ross to the stand and was presented as an expert in the field who is capable of analyzing bookselling terms and discounts. While her testimony covered familiar ground for booksellers, it was critically important in establishing a record for the case.

See's role as an expert was challenged by defense attorney Robert Welch who spared no niceties in attempting to portray her as an out-of-touch former bookseller whom the industry has passed by. See did not lose her composure, but the attack was another reminder that this trial could well be tough on future witnesses.

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Topics: Fair Trade (B&N, Borders), ABA Flash, About ABA,



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