This is the first anniversary of Article 10, and for a couple of days that was going to be the subject of the column. Fortunately, retailer Brian Hibbs has sued Marvel, which is infinitely more interesting, and spares you having to read "Twelve Wonderful Months of Me". Maybe next year.

Right now, we have another fascinating example of the amazing dramatic powers of litigation. I love litigation, which is why I do it for a living. Anything, no matter how boring, becomes miraculously interesting once it gets into court. Even Marvel's terms and conditions of sale to retailers, which until the last week or so were widely regarded as among the most tedious subjects on the face of the planet, are suddenly a hot topic.

All because somebody sued somebody. Brings a tear to the eye, it really does.

Newsarama has helpfully posted the whole complaint, which means I can get away with a basic summary here. Hibbs has raised a class action in New York on behalf of all direct market retailers. He says that since January 1998, Marvel has been in breach of its own terms and conditions of sale by refusing to accept returns of items which are meant to be returnable.

It looks like an open and shut case. Marvel's position doesn't look strong. Appropriately enough, the key provision is Clause X. It says that Marvel will designate items as returnable if they're more than a month late, or if they're significantly different from the solicitations. But in fact they don't designate anything, no matter how late it is - and as we all know, Marvel can be extraordinarily late when it wants to be. So the retailers get saddled with all the stock when Marvel ought to be taking returns.

Thus far, nobody, including Marvel, has contradicted any of this, which makes it look like a bit of an open and shut case. It's difficult at first glance to see any legal or ethical justification for refusing to accept returns of, say, ORIGIN #6, having promised to do so in your terms and conditions. Of course, I haven't seen the rest of the terms and conditions, and god alone knows what sort of handy get-out clauses might be lurking in there. But Marvel's position does not look very strong.

So far, so good. Feel free to make appropriate splutterings of outrage at the reprehensible behaviour of the corporate monolith. Once you've finished, we'll move on.

Hibbs wants damages on behalf of the retailers. This is where it gets interesting. He says that since January 1998, Marvel have shipped US$8 million worth of comics which should have been returnable. Not totally implausible, although doubtless there's plenty of scope for argument over what constitutes a significant difference from the solicitations. Anyhow, he'd like compensatory damages of $8 million and punitive damages of $10 million. Here we hit a glitch.

Of course, when drafting these things, the lawyers always go for the highest figure imaginable. It's not like the judge is going to give you more than you asked for, so why put in an honest estimate which might turn out to be on the low side? That would be silly. So these figures aren't to be taken literally.

The true scale of the claim is surely drastically lower than $8m. Nonetheless, there's a problem here. So Marvel ships $8 million worth of late comics. What losses do the retailers suffer as a result? According to the writ, $8 million, but I have trouble seeing how it gets even remotely close.

For one thing, the retailers presumably managed to sell a fair chunk of those late books, so they wouldn't have been returning those copies in the first place. It's the value of the unsold stock that counts. That knocks a fair amount off the $8 million figure to start with. For most of Marvel's ultra-late books, you would have thought that the eventual sell-through level would still be fairly high.

Take the popular ultra-late comic NEW X-MEN. If you accept the estimates from icv2.com as being in the right ballpark, that title has lost a little under a quarter of its sales over the last year (though, admittedly, that's in comparison with the high water mark of Grant Morrison's first issue). It's been shedding sales over the year, so presumably that means retailers aren't managing to sell through all the late copies. But then again, three quarters of the readers from the beginning of the year are still here now, in which case the retailers presumably managed to shift an awful lot of that late stock.

How much of that $8 million stock would the retailers have actually wanted to return? $3 million? $2 million? Less? It's still a lot of money, of course, and you can add some more on to the claim to reflect cashflow disruption and such forth. But the true scale of this claim is surely drastically lower than the amounts being talked about.

Besides which, all of this talk of damages is a bit hypothetical.

The real aim of litigation is usually lurking below the surface. It is hardly likely that Hibbs seriously wants Marvel to pay $18 million to comics retailers across North America. This is Marvel we're talking about. It's not like they've got $18 million in the petty cash. In the long run, it's hard to see how bankrupting Marvel (again) achieves anything for anyone - least of all the retailers. If Hibbs really does want the money, he could save himself a lot of time and effort by just shooting himself in the foot now. But I very much doubt that that's the real motive.

The strategy is presumably to show that retailers deserve more respect. So what is he trying to achieve? To force Marvel to adhere to its terms and conditions in future, perhaps. But that could backfire. Marvel might well respond by varying its terms and conditions to something even more draconian than existing practice. Then again, unless Marvel has some clever line of defence up its sleeves, it's going to be looking to settle this action - and aggravating the opposition is not the way to do that.

Hibbs has been an outspoken critic of Marvel in the past, and in part this action has to be seen as venting his often understandable frustration at Marvel's behaviour toward retailers. Anyone taking Bill Jemas' ludicrous rants at face value is missing the point completely, but in forcing through some of their recent policy changes - the removal of re-orders and so forth - Marvel has not always acted in a way likely to win retailers over to its side. That holds true whether you agree with Marvel about the actual policies or not. To an extent, Marvel's public attitude towards retailers gives a thinly veiled impression that it believes it can do what it wants because there's nothing the retailers can do about it.

If there's a clear underlying strategy to the action - as opposed to just biting back at Marvel for the sake of doing so - it's presumably to remind Marvel that the retailers can indeed cause serious problems for the publishing house, and need to be treated with a bit more respect. The action appears calculated to cause Marvel maximum embarrassment - not that there's anything wrong with that as a litigation strategy. Hibbs maintains that the launch of the action on the weekend of the SPIDER-MAN movie was pure coincidence. It would be fair to say that this would be a very unlikely coincidence indeed.

Given the total lack of suggestion from anyone (including Marvel itself) that Marvel actually has a defence to this action, it would not surprise me to see it settle with Hibbs, and quickly. Interesting questions will then arise as to who gets to keep the money (aside from Hibbs' lawyer). That one could run and run.

But long term, is this action going to achieve its apparent goal of getting Marvel to adopt a less aggressive stance toward retailers, or will it simply worsen matters? Like it or not, Marvel's underlying position is based on the perfectly valid point that it has much more economic power than the individual retailers. Hibbs may have identified a crack in Marvel's legal position - but once this case is settled, as I expect it will be, we're back at square one. Why should anything change?

Hibbs' David-and-Goliath litigation has succeeded in embarrassing Marvel. But then, maybe Marvel can afford to be embarrassed, settle the case, and carry on as normal. The long term solution for the retailers might lie in forming some kind of formally recognised industry body to engage in collective bargaining on their behalf - at which point, "Oh yeah? Well we won't order your comics, then", becomes a nasty threat rather than an impotent bleat.

If the retailers can achieve a united front. Which is a big, big if. And everyone knows it - Marvel most of all.

Paul O'Brien is the author of the weekly X-AXIS comics review.

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