Time's Man of the Year for 1999, one of the Web's legendary entrepreneurs, behaving like a kid caught with his hand in the cookie jar?
Jeff Bezos, say it isn't so. Alas, it is, at least according to a New Jersey judge.
Earlier this month, Amazon ended up on the losing end of a lawsuit brought by Toys "R" Us, the big retailer. At issue was an August 2000 contract between the two that made them partners in selling toys online. The relationship started off strongly, but after a few years began to sour. Toys "R" Us believed the deal made it the exclusive toy seller at Amazon. The Web retailer, though, had other ideas, and slowly began offering toys from other sources.
Toys "R" Us sued. On March 2, New Jersey Superior Court Judge Margaret Mary McVeigh agreed with the toy company and ordered the contract torn up. In doing so, she described an Amazon as very different from the group of plucky Web pioneers it is usually made out to be. The judge portrayed the company as being secretly contemptuous of its business partners and slippery, bordering on mendacious, in dealing with the court.
Decisions like Judge McVeigh's are interesting not just for their gossip value about A-list companies and their CEOs. They are often one of the few windows we have into real corporate history. Corporate archivists these days are a dying breed, in part because companies are worried that some preserved memo might one day become the basis for a shareholder lawsuit.
Judge McVeigh said the two companies were probably mismatched from the start. Amazon wanted to be able to sell everything under the sun, while Toy "R" Us, ever mindful of inventory risks, was much more interested in a smaller number of hot-selling toys.
Toys "R" Us, she said, gave up a lot to work with Amazon -- including its own Web site -- and Amazon didn't keep its end of the deal.
Perhaps Judge McVeigh was sympathetic to the home team; Toys "R" Us has its headquarters in New Jersey. But she was strikingly unimpressed by Amazon's superstar status in the online world. The most startling example involves her biting descriptions of the testimony of Mr. Bezos, Amazon's legendary founder.
The core issue in the case was whether the contract made Toys "R" Us the exclusive toy seller on the Amazon site. Mr. Bezos testified, in effect, that it never occurred to him that the pact would be considered that way. When he was shown an Amazon email that went into exclusivity in detail, the judge wrote, "in a rather child like fashion, he tried to convince the court he was unaware there was a problem."
The judge also suggested that Mr. Bezos had a selective memory, and used different definitions of a word to suit his purposes. Not since the widely mocked testimony of Bill Gates during the Microsoft antitrust trial has a well-known executive not under indictment come across so poorly in a court case.
Asked about the decision's portrayal of Amazon and its executives, a spokeswoman said the company strongly disagreed with the judge's ruling, but beyond that, would not comment "on any specifics from her opinion."
In a perverse way, the 131-page decision can be read as a how-to guide for breaking an agreement. First, you need to be crafty enough to write a contract that can mean different things to different people. Then, you need to proceed very, very slowly.
That is, in effect, what Amazon did, the judge said. She noted, for instance, that Amazon was felicitous in its use of language, especially with tech-sounding buzz phrases. An example is what Amazon called "programmatic selling initiatives." These covered relations Amazon would have with sellers other than Toys "R" Us, and were allowed under the contract.
When talking to Toys "R" Us, Amazon left the impression that so-called PSIs would be minor parts of the site -- the equivalent of craft boutiques in the parking lot of a big shopping mall. But later, when toys from other companies started showing up in large numbers, Amazon explained that they were PSIs, and thus perfectly legal.
As for taking things slowly, Judge McVeigh chronicled how Amazon slowly shifted things on Toys "R" Us.
"The build-up was subtle," she wrote, with words like "boutique" and "Programming Selling Initiative" slowly changing their meaning. Amazon would fail to track data on sales properly; it would incrementally change its technology and alter the appearance of the site. Each step, "while arguably within the agreement, looked at together demonstrates a material shift in the ... partnership," she said.
The judge said that Toys "R" Us thought it would be the exclusive toy seller at Amazon, and that Amazon certainly wanted the company to believe as much. Yet she noted the contract never unambiguously made that point, and that while Amazon was getting lots of money from Toys "R" Us, the pact never affixed a specific dollar value for exclusivity.
The moral is, if you're in negotiations, and an important issue comes up, don't rely on the contract. Get it in writing.