It’s extraordinary how the SF Weekly can take a clear legal defeat and try to turn it into a victory.
Yesterday the judge in the Bay Guardian’s lawsuit against the SF Weekly and its parent corporation refused to bar the Guardian’s key expert witness from testifying. The ruling was a clear victory for the Guardian – the Weekly had tried desperately to keep accountant and economic expert Clifford Kupperberg from taking the stand to present evidence of how much the Weekly’s predatory pricing had damaged the Guardian.
And yet, the Weekly’s Snitch blog trumpets the ruling as “Bay Guardian shakedown hits a snag,” arguing that Kupperberg had somehow repudiated his own testimony.
The Guardian is suing the SF Weekly and Village Voice Media for predatory pricing in violation of California business law. The suit charges that the Weekly, with cash support from the 16-paper chain, sold ads below cost for many years in an effort to harm the locally owned competitor.
The trial got underway this week, with early motions on the evidence. Here’s what actually happened in Superior Court judge Marla Miller’s courtroom Jan. 16th and 17th:
Kupperberg, following well-established standards, had developed two scenarios to explain how much the Guardian had lost due to the Weekly’s practice of selling ads below cost. One of the scenarios used data from members of the Associate of Alternative Newsweeklies, information that the papers share with each other once a year to establish industry financial benchmarks.
The SF Weekly’s lawyers argued that part of the data – the material from AAN — wasn’t reliable, so Kupperberg agreed to use his other standards (including New Times own figures in 17 different markets) instead. He also added data from two other Bay Area alternative papers and from local retail sales statistics to buttress his conclusions. His data suggests damages of $5 million to $10 million.
And after the SF Weekly lawyers argued for hours that Kupperberg be disqualified, Judge Miller ruled clearly and unequivocally against them. Kupperberg will be able to testify, and his damages will be admissible.
That’s a big victory for the Guardian.
And while the Weekly lawyers demanded extra time and sought to delay once again a case that’s been in the works for more than three years, Miller moved forward and started the jury selection process Jan.17.
If this is how the SF Weekly and the VVM guys from Phoenix are going to cover the trial, we’re going to have to spend a lot of time correcting the record.
For more context and background on the case, and to see one of our key legal motions and read the story on the case from the Daily Journal click here.