J.T. Colby & Company, Inc. et al v. Apple, Inc.

Filing 159

DECLARATION of Bonnie L. Jarrett in Support re: 104 MOTION for Summary Judgment.. Document filed by Apple Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3 (REDACTED), # 4 Exhibit 4 (REDACTED), # 5 Tab - Borden Dep, # 6 Tab - Colby 30(b)(6) Dep (REDACTED), # 7 Tab - Colby Dep, # 8 Tab - Freese Dep, # 9 Tab - Goldhor Dep, # 10 Tab - Gundersen Dep, # 11 Tab - Kvamme Dep)(Cendali, Dale)

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CONFIDENTIAL UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------x J.T. COLBY & COMPANY, INC. d/b/a BRICK TOWER PRESS, J. BOYLSTON & COMPANY, PUBLISHERS LLC and IPICTUREBOOKS LLC, Plaintiffs, vs. No. 11-cv-4060 APPLE, INC., Defendant. -----------------------------x CONFIDENTIAL VIDEOTAPED DEPOSITION OF JOHN T. COLBY, JR. New York, New York Friday, July 20, 2012 9:41 a.m. Reported by: Jennifer Ocampo-Guzman, CRR, CLR Ref: 7827 TransPerfect Legal Solutions 212-400-8845 - Depo@TransPerfect.com CONFIDENTIAL Page 115 1 Confidential-Colby 2 MR. CHATTORAJ: 3 4 5 A. Objection. I'm not sure what you mean by financial difficulties. Q. That its business was doing badly? 6 MR. CHATTORAJ: Objection. 7 A. And by business what do you mean? 8 Q. You're unable to answer that 9 10 11 12 question, Mr. Colby? A. Well, there are two sides to a business. Q. Mr. Colby, isn't it true that prior 13 to Byron Preiss' death ibooks, Inc., was 14 experiencing difficulties keeping the 15 business afloat? 16 17 18 19 MR. CHATTORAJ: A. Objection. It would seem to, it would seem to suggest that, yes. Q. And isn't it true that Mr. Preiss 20 died the day after Exhibit 102, talking about 21 the tax penalties, was written? 22 A. I believe that's true, yes. 23 Q. He died on July 9, 2005, isn't that 24 25 correct? A. I think that's true, yeah. TransPerfect Legal Solutions 212-400-8845 - Depo@TransPerfect.com CONFIDENTIAL Page 116 1 2 Confidential-Colby Q. But isn't it true that the 3 financial difficulties with the company had 4 occurred prior to his death? 5 6 MR. CHATTORAJ: A. Objection. Well, that's the period of time 7 we're talking about, yes, he left two kids by 8 the way. 9 Q. Let's look at Exhibit 106. 10 (Defendant's Exhibit 106, E-mail 11 dated 9/13/05, Bates No. 12 COLBYHD00547340, marked for 13 identification, this date.) 14 Q. Exhibit produced from the hard 15 drive, COLBY HARD DRIVE 54734, from Robin 16 Bader at BPVP.com to among others B.C. 17 Ashmall-Liversidge@ipicturebooks.com and 18 others. 19 says, Roger, do ibooks.net and BPVP.com still 20 exist? And at the bottom of the e-mail it 21 And Roger Cooper responds, "In 22 looking for them on the internet, (as you 23 probably have), it looks like the site have 24 vanished. 25 Who would know officially?" Do you see that? TransPerfect Legal Solutions 212-400-8845 - Depo@TransPerfect.com CONFIDENTIAL Page 301 1 Confidential-Colby 2 ipicturebooks folder or they could be under 3 that folder too, but nonetheless that's where 4 they are. 5 Q. How did you set the price of 6 $125,000 that you bid to purchase the assets 7 of Byron Preiss Visual Publications and 8 ibooks, Inc.? 9 A. That was my estimate of the fair 10 market value of the sales potential of the 11 existing inventory in the next two years out. 12 13 14 Q. How did you go about figuring that A. I created a spreadsheet by title, out? 15 may have described this on Wednesday, by 16 opening inventory, purchases, sales, returns, 17 pending inventory, doing that for units and 18 dollars and then once I figure out the 19 return, return curve, I can also figure out 20 the sales curve. 21 signed curves, I won't go into the math, but 22 they'll go out 60 cycles, which is in my 23 world five years, and I just forecasted it 24 out knowing what the existing inventory, how 25 long the existing inventory was going to last These are all basically TransPerfect Legal Solutions 212-400-8845 - Depo@TransPerfect.com CONFIDENTIAL Page 302 1 Confidential-Colby 2 and then would calculate the required 3 purchases to replenish that inventory. 4 When the inventory ran out -- I did 5 that by title -- and that spreadsheet gave me 6 the total number that, well, it's a forecast 7 and based on that information I thought that 8 125 was a fair price. 9 value situation. 10 Q. Like a net present Did you allocate any portion of the 11 purchase price to the value of the ibooks 12 mark itself? 13 A. It was important to know that we 14 had the rights in the mark and that 15 bankruptcy trustee represented to me also the 16 right to Byron Preiss Visual Publications the 17 name to that one too, and to Milk & Cookies 18 Press, that was very important to the marks, 19 that have been mentioned earlier. 20 bankruptcy trustee represented to me that 21 those are the marks. 22 that into the equation. 23 would have been difficult to value it without 24 those marks. 25 place. And the And so, okay, I built Otherwise, I, it I needed all those marks in TransPerfect Legal Solutions 212-400-8845 - Depo@TransPerfect.com

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