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Probably not. It’s the threat that’s the point.” Sure enough, Shawn passed on the word that Hummer Winblad was willing to deal. Bertelsmann’s offer would be tabled for the moment, and disaster staved off.

But John Fanning decided he had all the cards he needed and that Hummer Winblad wasn’t going to turn generous unless forced. On March 25, as compromise proposals floated back and forth, Fanning filed a lawsuit in Delaware’s Chancery Court, which hears many corporate-securities cases. The suit claimed that all the shares had been converted, that a majority of the now-common shares had voted to oust the Hummer Winblad directors and install Amram and Kay, and that the Napster board had refused to recognize the conversion as legitimate or seat the new directors. The suit named Barry and John Hummer as defendants. The two gave no comment to the press, but they and other loyalists were incensed. The suit asked for expedited review, citing an unspecified “offer to purchase the company.” The Los Angeles Times promptly identified the offer as coming from Bertelsmann.

The suit did not go well for Fanning, especially after Amram withdrew his support. And Fanning didn’t impress the judge in the case with his unique performance in a pretrial deposition. Under questioning, Fanning said he didn’t recall anything of his talks with Amram about the plan to convert the Napster shares, let alone recall beseeching him to trigger the conversion. “Did you discuss with him what the effect of his conversion of his shares would be?” an attorney for the directors asked. “I don’t know,” Fanning replied. “You don’t remember?” “I don’t have a specific recollection of a discussion that I would characterize in that way,” Fanning said. “How would you characterize your discussions with Mr. Amram on the subject of converting his Series A preferred stock?” “I’m sorry, how would I characterize them?” Fanning asked. “Yes,” the lawyer said. “I wouldn’t characterize them.”

The memory lapse might have strained belief by itself, but Fanning didn’t help his cause when he refused to give such basic information as what he did for a living between his stint at Fidelity and the creation of Napster, or even how he was making money at the moment.

“Do you have any income?” one of the opposing lawyers asked.
“How do you define income?”
“Do you have any source of income from anything whatsoever?”

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