Rosie Trial: A Case That's Misbegotten

How strange is the Rosie O’Donnell trial with magazine publisher Gruner + Jahr? I’ll say this for it. Not since the folks at BMG Music, a subsidiary — like G+J — of Bertelsmann Inc. tried to force Clive Davis out of Arista Records have I seen anything like this. At Bertlesmann there must be some corporate credo that tells executives even if you take a bad stand on something, just keeping digging your grave.

At BMG Music, Michael Dornemann and Straus Zelnick did that. When the dust settled, Davis came out on top and the pair who attempted to wrest control of his company were out on their keesters. Dan Brewster would do well to think about that. What he’s attempted to do to O’Donnell is very similar in nature. From the looks of things this week in court, his own future could be similar to that of Dornemann and Zelnick.

In court on Friday, both Rosie and her brother Ed painted a highly unflattering picture of Brewster that seems bolstered and corroborated. It doesn’t help that the attorneys representing Gruner + Jahr did not do a convincing job of cross-examining the O’Donnells on the stand. In fact, Judge Ira Gammerman appears to be charmed by O’Donnell and exasperated with the magazine publisher.

Ed O’Donnell, for one, proved to be an excellent witness for his sister’s case. Articulate and intelligent, he is also a senior vice president of marketing for NBC with a 20-year background in advertising at Young and Rubicam. He knows his stuff and demonstrated that when he took the stand Friday afternoon. O’Donnell was brought in as an adviser to his sister more or less reluctantly. Brewster, et al. may felt Rosie was a foolish celebrity who didn’t understand business, but they underestimated her brother’s savvy.

Crucial to Ed O’Donnell’s testimony on Friday was a conversation he reported between himself and Cindy Spengler, the Gruner + Jahr marketing person. After a meeting of all parties in 2002, Spengler began sending Ed O’Donnell circulation reports for “Rosie” magazine. When he received the reports, O’Donnell said he told Spengler “things didn’t look so bad.”

Spengler, he recalled, responded: “Those aren’t the real numbers. Those are the numbers we gave the audit bureau.”

O’Donnell was shocked. He told her he’d never heard of that before. “She said, 'Oh, no, everyone does that all the time.'”

This conversation may prove to be the lynchpin of the whole case. Gruner + Jahr, it seems, turned in false and inflated Rosie’s circulation numbers through June 2002 in order to keep the talk show host bound to them. In Thursday’s testimony, a paper trail of internal memos and e-mails at G+J talked about “managing the financials” so the “milestone” in O’Donnell’s contract could be circumvented. Conveniently, as soon as the milestone passed, G+J began reporting accurate circulation numbers again.

Ed O’Donnell also described in his testimony on Friday an office consumed by paranoia at G+J, and one that seemed plunged into a conspiracy designed possibly by Brewster. Even though he’d met with Spengler and others at the company on behalf of his sister, it’s clear he did so reluctantly. Nevertheless, he said he was sent a letter from the company’s lawyer barring him from participating in magazine matters. On one occasion when he accompanied Rosie to the magazine’s offices, security guards prevented him from entering.

In the morning session on Friday, Rosie — as you’ll no doubt read in many places this weekend — described take over of her magazine by editor Susan Toepfer as a “coup d’etat.” Even if that’s a little melodramatic, it sure has that feeling. Brewster, for example, staged a meeting with new editor Toepfer and some of the Rosie staff in O’Donnell’s private office without her. When Rosie called him on it, she said Brewster responded: “I don’t have to answer to you. I don’t have to tell you anything. I’ve consulted my attorneys.”

Rosie, seeing that Brewster had taken over, told him their relationship was over, she said. G+J subsequently sent her three options: to let Rosie magazine continue with Toepfer as editor and Rosie as its titular head, to sell Rosie the magazine for $15 million, or continue the magazine without her participation.

O’Donnell labeled the second choice “extortion” and the third as “unacceptable.” She responded with her own three options: shutting down the magazine, having Brewster inform the staff she still had creative control, or having her attorney step in.

At one point, Rosie wiped away tears after recounting how the ongoing battles with G+J had put a strain on relationships in her own family. It was her brother in law, Dan Crimmins, also her business manager, who had convinced her to do the magazine project in the first place. When the situation with Brewster became difficult, Rosie said she’d had to remove him from that project. “Sometimes in a war, people are killed in friendly fire,” she said. Crimmins remains involved with the rest of O’Donnell’s projects.

During a mostly timid cross examination by Martin Hyman, G+J’s lawyer, Rosie did concede two points that may have nothing to do with the judge’s ultimate ruling. It turns out that she lied in her earlier deposition when she claimed not to have made her famous “bad people get cancer” remark to cancer survivor Spengler. She also was not clear with Toepfer about the reasons she wanted all five of the female stars of “The Sopranos” on the cover of Rosie. Apparently it was a deal she’d made with an HBO publicist to get the ladies photographed together. Neither was much of a revelation, as in the end this a contract case. Judge Gammerman seems fairly clear about this.

Hyman, and his partner, Jeffrey Golenbock, don’t seem to ‘get’ any of this, and they also clearly have no idea who Rosie O’Donnell is. Instead of trying to push her buttons and find Rosie’s infamous — but so far unseen — temper, they tried instead to accuse a celebrity known for her charity work of self-aggrandizement. Golenbock, during his cross examination of Rosie, actually declaimed to her in an accusatory tone: “You got into the magazine business for the money!”

The whole courtroom burst out in laughter.