From Book Riot:
As you may or may not know, the United States Department of Justice (DOJ) is suing to prevent Penguin Random House (PRH) from acquiring/merging with Simon & Schuster, on the grounds that it will lose authors money. Unlike many antitrust suits, it is not concerned with monopoly (not enough sellers) but monospony (not enough buyers). I explained in more detail when the trial was first announced.
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Right out the gate, while defining terms, PRH’s lawyer described “backlist” as meaning “Books that were published a very long time ago.” (Backlist is anything more than a year old by most definitions, but it can mean anything that isn’t brand new.)
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“My name is Stephen King. I’m a freelance writer.”
This is the tweet heard round the world, isn’t it? First a brief explanation: all witnesses are asked to identify themselves this way, by name and (relevant) occupation. So he didn’t do anything wrong here.
Now back to snark. Imagine being Stephen King and introducing yourself this way. Actually, imagine being Stephen King and introducing yourself the way “freelance writer” suggests. “My name is Stephen King. I can’t afford health insurance.” “My name is Stephen King and I work in coffee shops.” “My name is Stephen King. Will do novels for food.” “My name is Stephen King and last month I made negative 73 dollars.”
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Simon & Schuster CEO Jon Karp said quite a few outrageous things, most of which involve his testimony contradicting his earlier deposition. None of them are particularly quote-worthy without context (read the thread!) but I was delighted that the DOJ lawyer apparently hurt his feelings by saying, “I should have guessed you’d have a big vocabulary, as head of a publishing house.”
Karp also called self-publishing “more of a threat than I thought” in reference to Brandon Sanderson’s $50 million Kickstarter — something that literally no other self-published author is capable of achieving, yay — and, in defending the idea that publishers don’t guarantee a marketing budget, said, “It’s like taking credit for the weather. You can’t promise success to the author.”
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The quote heard round the world, part two: $100,000 is, according to Karp, a “fairly small advance.” Lilith Saintcrow breaks down why that is a lie — and the implications.
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Actual Jon Karp quote: “I’m not a game theorist, but….” Honestly, the man is hilarious. Asked if he has calculated Amazon’s market share: “I haven’t. I wish somebody would!” Govt isn’t taking the bait, but Karp is definitely pushing buttons.
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From PRH CEO Markus Dohle: “Everything is random in publishing. Success is random. Bestsellers are random. So that is why we are the Random House!”
Link to the rest at Book Riot
PG thinks the CEO’s didn’t listen to what their lawyers told them about their demeanor on the stand and how to answer a question. Judges tend to become upset at witnesses that can’t restrain themselves from being flippant in court. Among other things, the judge is constantly assessing whether these guys are telling the truth or not and whether their opinions are reliable.
PG reminds one and all that, although Karp and Dohle carry CEO titles, their companies are owned by very large business interests which strongly desire for this merger to be approved. If the big bosses decide their hired hands contributed to losing this antitrust case, Karp and Dohle will be out on the street tout de suite.
To add to PG’s comment, it’s especially important for corporate-actor witnesses to establish and maintain credibility and decorum on the stand in a case involving (a) causes of action based on antitrust, fraud, or violations of securities law when (b) the factfinder is the judge, not a jury.
That last is critical. Unlike a jury, the judge as factfinder is entitled — arguably is obligated — to look at the whole record of admissible evidence in the case, not just the live testimony and the documents formally admitted at trial. So unlike a layperson juror, the judge is going to refer back to depositions that were entered in support of a different motion (like a motion for summary judgment) regarding any inconsistencies that have been brought to her attention during the trial or in the post-trial motions. Just like Judge Cote did in US v. Apple, very much to Apple’s disadvantage (not to mention using that material as part of her credibility determinations regarding executives of both Apple and Macmillan, whom she proceeded to excoriate by name in the footnotes)!
Of course, part of the problem is that at least two of the executives who have testified are not from common-law systems, and so haven’t internalized the difference between what a jury can/does inquire into and what a judge-as-factfinder can/does inquire into. This is, ultimately, their lawyers’ fault, because the lawyers should have realized this was a potential issue — especially since “unfair competition”/antitrust in Germany as to GmbH entities (including Bertelsmann, a KgAA subtype) has vastly looser rules assigned to it than the US at least in theory does.