It’s extraordinary how the SF Weekly can take a clear legal defeat and try to turn it into a victory.
On Jan. 17 the judge in the 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 has damaged the Guardian.
And yet the Weekly‘s Snitch blog trumpets the ruling as "The SF Bay Guardian‘s Shakedown Hits a Snag," arguing that Kupperberg had somehow repudiated his own testimony.
The Guardian is suing the SF Weekly and Village Voice Media, formerly known as New Times, 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 under way last week with early motions on the evidence. Here’s what actually happened in Superior Court Judge Marla Miller’s courtroom Jan. 16 and 17:
Kupperberg, following well-established standards, had developed two scenarios to explain how much the Guardian has lost due to the Weekly‘s practice of selling ads below cost. One of the scenarios uses data from members of the Association of Alternative Newsweeklies, information that the papers share with one another once a year to establish industry financial benchmarks.
The SF Weekly‘s lawyers argued that part of the data — the material from the AAN — wasn’t reliable, so Kupperberg agreed to use his other standard (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 suggest damages of $5 million to $10 million.
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 damage estimates 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 folks from Phoenix are going to cover the trial, we’re going to have to spend a lot of time correcting the record, although we’d prefer to simply let the case speak for itself.