The Shawnee Mission East class of '08 loves its gay homecoming king.
Women loved Zachary Coleman. And he loved their money.
Everybody thinks Jeff Swanson is somebody famous. And he does nothing to dissuade them of the notion.
The verdict came despite the fact that the Guardian produced no direct evidence of a predatory-pricing conspiracy aimed at harming the Guardian, and called not a single advertiser to the stand to testify on its behalf. The paper did, however, play heavily on the jury's emotions, portraying itself as the local victim of a national chain and describing Village Voice Media as a company with "unlimited resources" that could easily afford to prop up its longtime ideological rival with a cash infusion.
Prior to the trial, Superior Court Judge Richard A. Kramer had ruled that the Guardian would not be allowed to ply the jury with talk of Village Voice Media's larger size and deeper pockets. But in a highly unusual development, Kramer handed off the case to another judge on the eve of trial, despite having presided over the complex litigation for more than three years.
The new judge, Marla J. Miller, who openly admitted from the bench that getting up to speed on the case was proving a challenge, allowed the Guardian to make the "unlimited resources" argument; the newspaper took full advantage of the opportunity.
At one point, Guardian executive editor Tim Redmond even talked casually about Weekly editors being able to snap their fingers and have millions of dollars wired up from Phoenix, where New Times is based. The Guardian portrayed itself as helpless in the face of such superior resources and lightning-fast money transfers.
In fact, the last thing the jury heard was the Guardian's claim that if it didn't receive a huge cash payout from the Weekly, it would go out of business.
In his closing arguments, Guardian attorney Ralph C. Alldredge told the jury that, should the Guardian lose, its demise was "inevitable." That assertion was made despite the fact that the Guardian made a profit last year and continues to have a higher circulation than the Weekly. Indeed, despite its claim that New Times has been engaged in a predatory scheme since the day it purchased the Weekly in 1995, the Guardian has always been the larger, more profitable paper, and had a 29-year head start on New Times.
After forming in 1966, the Guardian didn't take long to choose suing competitors as its preferred business model. In the 1970s, Brugmann filed suit against San Francisco's daily newspapers as one of several parties that alleged the Chronicle and the Examiner were attempting to establish a monopoly. Brugmann took a $500,000 settlement before the case ultimately was decided in favor of the dailies.
As with its claim against the dailies, the Guardian insists it would have made more money if not for wrongful competition from the Weekly.
SF Weekly immediately announced it would appeal the verdict, and issued a statement noting that the Depression-era California predatory-pricing law under which the suit was filed makes a mockery of prevailing federal court standards.
Over the years, federal courts have increasingly viewed below-cost pricing claims dubiously because they can easily be twisted to protect not consumers' pocketbooks, but the right of an inefficient competitor to stay afloat.
Village Voice Media says that is precisely what happened here. "Instead of competing in the marketplace, Brugmann seeks shelter in court-sanctioned price fixing," company owners Michael Lacey and Jim Larkin said in a statement. "He wants mom-and-pop advertisers to pay higher rates."
In fact, the Guardian's Alldredge endorsed price fixing several times during the trial, repeatedly asking New Times witnesses why their papers (the company owned the Express from 2001 to 2007 and sold it at a loss) didn't just "raise their prices to the same level as the Guardian's and let the customer decide."
That query drew a quizzical response from New Times' vice president for financial operations, Jeff Mars, who, during his testimony, asked Alldredge, "Are you attempting to suggest that we should call the Guardian and get their rates before we set ours?"
Alldredge's questions certainly sometimes seemed strange. Indeed, it's hard to imagine a more bizarre notion than the suggestion that a newspaper could raise its advertising prices at will during the massive downturn in print media that caused the hometown San Francisco Chronicle to lose $330 million between 2000 and 2006.
But Wednesday's verdict suggests that Alldredge, a veteran attorney with the courtroom demeanor of a kindly if sometimes bumbling grandfather, knew what he was doing all along. In fact, even before the trial started, Alldredge publicly bragged that the extraordinarily low burden of proof called for under California's Unfair Practices Act would make his job simple.
And he kept it simple at trial, not bothering to call any advertisers to the stand and instead repeatedly hammering away at the fact that New Times had sold thousands of ads "below cost." Saying a company is selling below cost is just another way of saying it is losing money.
But in Alldredge's hands, New Times' willingness to invest millions of dollars in the Bay Area — most of which went to salaries and benefits for employees — began to sound like a conspiracy.
The Guardian has complained about the Weekly's high costs, and even asked Judge Miller to issue an injunction preventing the paper from selling below cost in the future. The Guardian has yet to say which journalists or salespersons the Weekly should lay off in an effort to "live within its means," a favorite Guardian catch phrase during the trial. The paper has had plenty to say, however, about New Times' alleged ill intentions, despite having produced no smoking-gun evidence of a plot.
The potential for loose talk about hypothetical conspiracies involving a competitor is one reason federal courts rarely let predatory-pricing claims go to trial. At the federal level, such claims must pass a common-sense smell test, and the plaintiff must demonstrate that the defendant has a reasonable chance of recouping the money it lost as part of the scheme.
But the Guardian's rhetoric at trial often veered dangerously far from rational thought. Its damages expert, Clifford Kupperberg, told the jury that the paper was entitled to a judgment that far exceeded all the profits it has earned in its entire existence, despite the fact that the Guardian has a long history of scratching out paltry returns, even during the boom period of the late 1990s.
But the Guardian's own record of collectivist inefficiency didn't prevent it from openly advocating that Soviet-style economic shackles should be placed on its competitor.
A common question asked of Weekly witnesses, for instance, was whether the New Times paper realized that if it sold ads cheaper than the Guardian, such activity might harm the Guardian — a query that seemed to turn the American free-market system on its head.
However, if the Guardian's rhetoric occasionally appeared to have been piped in from the Politburo, many of those arguments were actually within the letter of the California law. Alldredge made that clear before the trial even started, telling a reporter for the local Daily Journal that the Unfair Practices Act made predatory-pricing claims a cinch.
Among other things, that law — which was passed in the 1930s in an effort to prevent Safeway from driving out independent grocers by offering low food prices — allows plaintiffs to recover attorneys' fees if they win, but forces defendants to pay their own attorneys' fees regardless of the outcome.
It's the equivalent of an open invitation for plaintiffs to roll the dice, and the Weekly isn't the first Bay Area paper to be sued under the statute. In fact, in the 1990s, a local jury awarded the San Francisco Independent millions in a judgment against the San Francisco Newspaper Agency. That judgment was reversed by a San Francisco appeals court.
"All you do is take all of their costs and divide that by the number of inches of advertising space they sold," Alldredge told the Daily Journal in January, describing the convenience of the Unfair Practices Act. "That tells you how much the cost is per inch. Whenever they sell below that cost, under California law, they've committed a violation."