Carl Person, the attorney representing the Intimate Bookshop in its price discrimination lawsuit against Barnes & Noble and Borders Group, filed a notice of appeal last week after Judge William Pauley granted the two retailers' request for summary judgment.

Pauley approved the defendants' motion earlier this fall, several weeks after he had set November 10 as the date to start the trial. Person said he filed the appeal notice on behalf of Intimate owner Wallace Kuralt because "it's hard to take losing all that time and work" without getting the case to trial. Intimate first filed suit against the two chains in summer 1998 in the U.S. District Court for the Southern District of New York.

In dismissing the case, Pauley found that Intimate "cannot show that it is entitled to either monetary damages or injunctive relief." The judge ruled that Intimate's inability to show that all its losses were due to the allegedly unlawful conduct of B&N and Borders was "fatal to its claim." Intimate had charged that it was forced out of business because B&N and Borders forced publishers to give them illegal discounts. Pauley said Intimate's survey and damage models "unquestionably fail to show that the alleged discriminatory prices the defendants received caused Intimate actual injury." Furthermore, the judge observed that Kuralt acknowledged in his deposition that some of Intimate's losses may be attributable to other factors besides B&N's and Borderss' alleged actions, such as competition from mass merchants, specialty retailers and other independents as well as undercapitalization and a fire at its flagship store.

While Pauley's ruling is a significant victory for B&N and Borders, the judge did not rule out the possibility that some bookstore may be able to bring a successful suit against the chains. "While this court suspects that another plaintiff may be able to bring causally related evidence supporting a damage claim against the defendants, Intimate has not submitted sufficient evidence to create a question of fact," Pauley wrote.