By way of explanation as to why there’s an extra Ambidextrous this week, Brian Hibbs contacted me this morning, concerned that he was unfairly characterized in the above diatribe, so allow me to clarify some things. The preceding explanation in no way alleges that Brian Hibbs declined to answer my “stronger” questions, only that he was concerned regarding the path the interview seemed to be taking.

After speaking with him about the issue, I relayed to him my intent to review the questions he had answered (for some reason the attached file was unreadable on my end), and make a decision about the viability of the piece. I also commented that with only six responses it wasn’t going to result in a very complete article, and with his interest declining in the wake of an approach he felt clouded the true issue at hand the thing would probably just end up scrapped.

I checked for the lost attachment and requested that Hibbs relay a second copy. For whatever reason, this attempt was unsuccessful as well. Having already decided to squash the whole thing, I stopped bothering Brian about sending an attachment that was no longer going to become a component of the piece I’d decided to slot in.

In the interest of proving that Hibbs never refused to answer any of my questions, and that no conspiracy to discredit his position or viewpoint exists, below are the answers (apparently third time is the charm) that were offered, complete and un-cut.

Thomas: Why go this alone? You’ve commented that you’re in contact with several other retailers that share your opinion. Was there no other retailer willing to stand with you at this stage?

Hibbs: There were several other retailers who were willing. Ultimately, it was decided that going with a sole lead plaintiff through the Certification process was the most prudent course.

The stage we’re at right now is the (as I understand it – I’m not a lawyer!) Pre-Certification of the Class. Basically, what this means is establishing if comic book retailers are a “Class”, and if a Class Action suit is the best way to go forward to resolve this. There are several “tests” involved in Class Action Certification, and in this stage the judge will go through the various tests and confirm that this suit conforms to them.

Assuming the judge agrees (and as far as I understand the laws, we meet or exceed each test), then the case will be “Certified” and every retailer in the US will be given an opportunity to “opt out” of the Class as it proceeds to trial.

In other words, as I understand things (and I stress I’m a layman, and I may have some of the technical details a little wrong), once the Class is Certified, then all retailers are assumed to be in the class unless they choose to remove themselves.

More than that I can’t really address, Brandon – I’m not a lawyer.

Thomas: Do you think your position would be strengthened if you were allied with one of the top retailers in the country?

Hibbs: From what point of view?

If you’re asking about the legal POV, I try to leave the law and how it works to the lawyers. That’s what they’re there for.

If you’re asking about the “how the fans perceive this” POV, then sure, maybe it would have been “better” to have more co-plaintiffs in the early stages. Thing is, I’m not really all that worried about how the fans perceive this. First off, this doesn’t directly concern them all that much – this is about a publisher meeting their contract with retailers. Let me put it this way: unless they read about it here or on Newsarama or something, my own customers don’t even know about the suit. I’m not advertising it to them. Why would I? This is a dispute between retailers and a supplier, not between the fans and the supplier.

Second, I’m not really sure if it matters if a fan in New Jersey or Birmingham or Bora Bora thinks I’m a “bad man” or what ever. I’m in San Francisco, I own one single store, and we don’t even really do mail order or anything like that – 99% or more of the people reading this will never step foot in Comix Experience in the first place, right?

Finally, what is a “top retailer” anyway? As far as I can tell, both visually, and based on information given to me by Diamond, I’m the largest comics-only account in one of the largest metropolitan markets for comics in the US. Doesn’t that make me a “top retailer”? Does that even matter?

The facts of the case are all I think really matters: Marvel’s TOS says they will ship on time or take the appropriate remedies. They did not ship a significant portion of material on time (or otherwise not conforming to the TOS); and they did not make the stated remedies. Whether I were the single largest account in America, or the single smallest, the fact remains that they broke their contract.

Every retailer agrees that mis-solicited comics cost sales. Here’s a quote from Chuck Rozanski, owner of Mile High Comics (said to be the single largest comics account in the US) from the Colorado Springs Gazette (June 7, 2002): “Late comics are a huge problem. Comic fans enjoy the regularity of ongoing continuity. Any time that prima donna creators force a book to break its normal publishing cycle, then sales on that book drop. The better the book, the less the drop, but drops occur nonetheless in all late books.”

Thomas: How much of your business is from Marvel Comics?

Hibbs: I don’t track gross sales by publisher. Don’t really see a point. Comics should be bought based upon the characters, the stories, the creative talent – not on publisher. I mean, it’s not like you say, “Today I want to listen to a Virgin record, watch a Paramount movie, and read a Random House novel,” right?

Thomas: The Ultimates #7 is late. When Marvel finally ships it, estimate a percentage of sales that you’ll likely lose.

Hibbs: Can’t. There are too many other factors rolling around and through the question to make any real determination at this moment. Further, the question isn’t really even relevant, as long as a publisher lives up to their TOS.

Late books happen; that’s not in question. Whether it’s from a completely “valid” reason (like a creator being ill, or a death in the family, or a tornado ripping through town, whatever) or more akin to Rozanski’s “prima donna” (which I suspect is very rare) statement, late books will and do occur. The only important thing is then “what happens next?”

As long as Marvel acts responsibly in terms of Ultimates #7 (that is, resolicits it [which they’ve done at least once now… although it’s still going to be late from that revised date], makes it order-adjustable, or makes it returnable), then retailers will be “satisfied”. We won’t be happy that sales potential has slipped away (losing a reader today on a title, also means that you’ve lost that reader for every issue that would ship until the series is finished!), but in terms of covering us from any loss, we’d be taken care of.

Thomas: In the case of late-shipping product, how often is Marvel forcing you to steer customers in search of books like Amazing Spider-Man and the Ultimates to other books on the shelf?

Hibbs: I don’t understand the question. Marvel’s admitted to 110 items they’ve shipped out of terms, I believe there are more.

Thomas: When all falls away, is your store bringing in more revenue from Marvel than you were three years ago?

Hibbs: More… but that’s relevant how, exactly? Just because Marvel is doing better doesn’t absolve them of the responsibility of living up to their contracts, does it? I think you’re veering dangerously close to “blaming the victim”, Brandon. If I have (for purposes of illustration, only, not a literal accounting) $1000 in losses from Marvel not living up to their contract, it really doesn’t matter if I have $5000 in Marvel sales or $5,000,000 – I still have a $1000 loss. A loss I should not have had in the first place.

Are they not responsible for making good on that loss, per their contract?

Once again, thanks to Brian Hibbs for participating, and you can find the regularly scheduled Ambidextrous from the links on the left.

 

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