The trial pitting the American Booksellers Association against the country's two largest bookstore chains began last week in federal district court in San Francisco, setting up a legal debate over independent stores' longtime claims that Borders and Barnes & Noble violate the Robinson-Patman Act by receiving pricing terms that independents do not.
If the ABA wins its case, presiding judge William Orrick could order injunctions against the chains preventing them from ordering books on specific terms. These include the amount of time in which stores must pay their bills to qualify for special discounts; the minimum number of copies they must order to receive discounts; the ability to automatically deduct missing or damaged books from their monthly bills; and additional discounts triggered by exceptional circumstances, like a visiting author. The judge could also order the defendants to pay the ABA's attorney fees. In the week before the trial, the judge disallowed monetary relief, but the ABA said it might appeal the decision.
The plaintiff—the ABA and 27 independent bookstores—will try to prove its case by calling expert witnesses who reviewed pricing documents from the chains and the ABA.
The ABA does not plan to put any publishers on the stand. Instead, the group will try to show that its members obligingly follow terms of published discounts while emphasizing that the chains consistently buy books under terms that deviate from these standards. The chains' defense is also two-pronged—attack independent booksellers for negotiating nonpublished terms while honing their own image as savvy but honest companies that are just looking to keep costs low. "No matter how big a parade of experts the plaintiffs present, they will not elevate the lack of substance to prove their case into something that it is not," argued Barnes & Noble lawyer Daniel Petrocelli in his opening statement.
Since much of the evidence the ABA has gathered focuses on Barnes & Noble, Borders lawyers have tried to put some distance between their client and B&N. Throughout the week, Borders lawyer Reginald Steer has emphasized that only a fraction of Borders and Waldenbook stores are implicated in the ABA's discovery documents.
The trial last week centered on former ABA president Gail See, who testified as an expert witness that many of the chain terms she reviewed were "highly unusual" by industry standards and differed significantly from the ABA's Red Book, which sets terms for buying books from wholesalers and publishers. See's credibility then came under blistering attack from B&N lawyers. "You've not worked for a large national chain, have you?" asked B&N lawyer Robert Welch. "And you don't know what the world looks like from the perspective of a [large] publisher, right?"
The ABA has said for many years that the chains unfairly pull their weight to extract special policies from publishers. The chains have countered by saying that their business differs fundamentally from the independents' and that it is unfair to compare the two. The chains also have said that independents underplay the degree to which independents negotiate their own terms on a case-by-case basis.
Even if this action results in a loss for the ABA, some said the trial's very existence will help it get what it wants. "We filed the lawsuit to rectify inequities," said ABA chairman Avin Domnitz. "But if this suit influences publishers to look more closely at their terms, that would be a good thing."