Viner is charming in person, but his truculence in court has earned him a fearsome reputation that may well have dissuaded other potential litigants. "I didn't mind having the profile of someone who'd fight," he says. To a certain extent, that profile was based on what one lawyer who tangled with him calls his occasional "spooky success."
One such success was his malpractice lawsuit against Williams & Connolly, an enormously prominent Washington power-brokering law firm. The firm represented the Viners in their departure negotiations with a group that took over then-struggling Dove Entertainment in 1996. The Viners turned around and sued their own lawyers, winning a judgment of more than $13 million against the firm on the claim that it should have gotten them a better deal. A California appeals court upheld the verdict but cut the judgment to about $8 million. The Williams firm has appealed the matter to the California Supreme Court.
After leaving Dove, the Viners started New Millennium. Like the earlier company, New Millennium relies heavily on audio books, which accounted for about half the company's 2002 revenue of $7 million, Viner says. (Among the more prominent offerings in its latest catalog is the audio book of Robert Evans' Hollywood memoir "The Kid Stays in the Picture," narrated in a hypnotically listenable style by the author himself.)
Case Attracts Boies
In their new corporate guise, the Viners seem no longer to be in the forefront of what the Random House man once denigrated as "tabloid publishing." Viner describes his strategy now as one in which "we look for where holes are in the market" -- particularly West Coast- oriented material that might be overlooked by the East Coast publishers.
But he's still litigating. The case in which Boies' firm is involved centers on a project Viner undertook with a New York mystery book editor and bookseller named Otto Penzler. The idea was to publish a series of seven original anthologies, each comprising murder mysteries devoted to a single sport. The baseball and boxing volumes were published in 2001 and 2002, and the football book was up next.
Among the stories that Penzler lined up for "Murder in the End Zone" was one by David Baldacci, a hugely popular mystery writer with numerous bestselling novels to his name. After he delivered the manuscripts, he discovered that New Millennium was planning to bring out a book whose cover bore Baldacci's name in such huge print that buyers were likely to mistake it as the author's new novel. Baldacci sued New Millennium and won an injunction from a New York judge who concluded that the company was "attempting to deceive the public into buying a misrepresented book."
Viner eventually issued the volume, with Baldacci's name slightly more demure than before but still prominent. Then he sued Penzler.
Viner contended in his lawsuit in federal court in Los Angeles that Penzler all but wrecked the mystery series by delivering the football manuscript late and by reneging on the remaining volumes after the football book ended up in litigation. Penzler countersued for withheld royalties and other damages but evidently quailed at the cost of fighting Viner in court. At that point, some friends of his persuaded Boies to take the case as a favor.
"It was really a matter of my firm's belief that in this situation, Mr. Penzler was 100% in the right," says Nicholas A. Gravante Jr., the Boies partner who is handling the matter.
Last month, U.S. District Judge Dean D. Pregerson spent 36 closely reasoned pages unraveling all the intertwined claims, finding in Penzler's favor on eight claims and counterclaims and leaving a handful of others for trial, which is likely to commence within a month.
Meanwhile, New Millennium seems to be proceeding the way it always has. Among the gems in its latest catalog is yet another book edition of the same Cambridge lectures that Stephen Hawking thought he had shut down years ago. (Viner says he acquired legitimate publication rights from the bankruptcy estate of his old company.)
Hawking's Los Angeles lawyer, Robert Dudnik, says he asked the physicist if he wished to sue. Hawking rejected the option on grounds that, in effect, life is too short. Instead, he filed a complaint with the Federal Trade Commission, which said it wasn't a big enough issue to pursue.
"I just don't have the financial resources and energy to take on this guy in court," Dudnik recalls Hawking telling him. "I just know he'll drag it out and make it as difficult as he can."
Golden State appears every Monday and Thursday. Michael Hiltzik can be reached at golden .firstname.lastname@example.org.