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VOLUME 1 PAGES 1 - 200 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE VAUGHN R. WALKER, JUDGE CLINTON REILLY, ) ) PLAINTIFF, ) ) VS. ) NO. C 00-0119 VRW ) THE HEARST CORPORATION, ) ET AL., ) ) DEFENDANTS. ) ____________________________) SAN FRANCISCO, CALIFORNIA MONDAY, MAY 1, 2000 TRANSCRIPT OF PROCEEDINGS APPEARANCES: FOR PLAINTIFF: JOSEPH M. ALIOTO LAW FIRM ONE EMBARCADERO CENTER, SUITE 4000 SAN FRANCISCO, CALIFORNIA 94111 BY: JOSEPH M. ALIOTO ANGELINA ALIOTO ATTORNEYS AT LAW SHULMAN, WALCOTT & SHULMAN, P.A. 121 WEST FRANKLIN AVENUE MINNEAPOLIS, MINNESOTA 55404 BY: DANIEL R. SHULMAN JAMES HILBERT ATTORNEYS AT LAW (APPEARANCES CONTINUED ON FOLLOWING PAGE) REPORTED BY: JO ANN BRYCE, CSR, RMR, CRR, FCRR JUDITH N. THOMSEN, CSR, RMR, FCRR OFFICIAL REPORTERS, USDC COMPUTERIZED TRANSCRIPTION BY ECLIPSE JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 2 1 APPEARANCES: (CONTINUED) 2 FOR DEFENDANT SHEPPARD, MULLIN, RICHTER & HAMPTON HEARST CORPORATION: FOUR EMBARCADERO CENTER, 17TH FLOOR 3 SAN FRANCISCO, CALIFORNIA 94111 BY: GARY L. HALLING 4 THOMAS D. NEVINS ATTORNEYS AT LAW 5 BAKER & HOSTETLER LLP 6 1050 CONNECTICUT AVE., N.W. SUITE 1100 7 WASHINGTON, D.C. 20036 BY: GERALD A. CONNELL 8 ATTORNEY AT LAW 9 FOR DEFENDANT LATHAM & WATKINS CHRONICLE PUBLISHING 505 MONTGOMERY STREET 10 COMPANY: SUITE 1900 SAN FRANCISCO, CALIFORNIA 94111 11 BY: PETER K. HUSTON J. THOMAS ROSCH 12 GREGORY P. LINDSTROM ATTORNEYS AT LAW 13 FOR INTERVENOR- MC CUTCHEN, DOYLE, BROWN & ENERSEN 14 DEFENDANT EXIN, LLC: THREE EMBARCADERO CENTER, SUITE 1800 SAN FRANCISCO, CALIFORNIA 94111 15 BY: DAVID M. BALABANIAN CHRISTOPHER B. HOCKETT 16 ATTORNEYS AT LAW 17 18 19 20 21 22 23 24 25 JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 3 1 I N D E X 2 PAGE VOL. 3 OPENING STATEMENT BY MR. ALIOTO 5 1 4 OPENING STATEMENT BY MR. HALLING 20 1 5 PLAINTIFF'S WITNESSES PAGE VOL. 6 7 WHITE, TIMOTHY O. DIRECT EXAMINATION BY MR. ALIOTO 55 1 8 9 E X H I B I T S 10 PLAINTIFF'S EXHIBITS W/DRAWN IDEN EVID VOL. 11 P-70 52 1 12 P-71 52 1 76 158 1 13 78 160 1 P-79 52 1 14 P-80 52 1 P-86 52 1 15 16 17 18 19 20 21 22 23 24 25 JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 4 1 MONDAY - MAY 1, 2000 11:05 A.M. 2 3 THE CLERK: CALLING CIVIL 2000-119, CLINTON REILLY 4 VERSUS THE HEARST CORPORATION, ET AL., FOR A COURT TRIAL. 5 COUNSEL, PLEASE STEP FORWARD AND STATE YOUR 6 APPEARANCES FOR THE RECORD. 7 MR. ALIOTO: MAY IT PLEASE, YOUR HONOR. JOSEPH M. 8 ALIOTO FOR THE PLAINTIFF. 9 MR. SHULMAN: DANIEL SHULMAN FOR THE PLAINTIFF. 10 MR. HILBERT: JAMES HILBERT FOR THE PLAINTIFF. 11 MS. ALIOTO-GRACE: ANGELINA ALIOTO-GRACE FOR THE 12 PLAINTIFF. 13 MR. HALLING: GARY HALLING FOR THE HEARST 14 CORPORATION. 15 MR. CONNELL: GERALD CONNELL FOR THE HEARST 16 CORPORATION. 17 MR. BALABANIAN: DAVID BALABANIAN FOR INTERVENOR 18 EXIN LLC. 19 MR. HOCKETT: CHRIS HOCKETT FOR INTERVENOR EXIN. 20 MR. ROSCH: MAY IT PLEASE THE COURT, TOM ROSCH, 21 GREGORY LINDSTROM AND PETER HUSTON FOR THE CHRONICLE PUBLISHING 22 COMPANY. AT THIS TIME I WOULD LIKE TO TELL THE COURT THAT OUR 23 CORPORATE REPRESENTATIVE WILL BE MR. JOHN SIAS WHO IS SITTING 24 IN THE BACK. 25 THE COURT: VERY WELL. GOOD MORNING, COUNSEL. JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 5 1 ALL: GOOD MORNING, YOUR HONOR. 2 THE COURT: THERE'S AN OLD ADAGE IN THIS BUSINESS 3 THAT A BAD DEALT SETTLEMENT IS BETTER THAN A GOOD TRIAL. WE'VE 4 HAD AN EFFORT THIS MORNING AT AN ATTEMPT TO SETTLE THIS CASE. 5 THAT HAS NOT SUCCEEDED. SO WITH THAT PREFACE, I'M LOOKING 6 FORWARD TO AN EXCEPTIONALLY GOOD TRIAL. 7 (LAUGHTER) 8 THE COURT: AND WITH THESE LAWYERS, I'M SURE WE'RE 9 GOING TO HAVE IT. 10 NOW, I'VE INDICATED THAT ALTHOUGH THIS IS A COURT 11 TRIAL AND CONSEQUENTLY OPENING STATEMENTS ARE NOT AS NECESSARY 12 AS THEY SOMETIMES ARE IN A JURY TRIAL, I WOULD ENTERTAIN SOME 13 OPENING STATEMENTS, BRIEF ONES, 15 MINUTES, AND THAT WILL 14 PROBABLY TAKE US RIGHT ABOUT TO THE NOON HOUR OR THEREABOUTS. 15 SO, MR. ALIOTO, WOULD YOU LIKE TO LEAD OFF FOR THE 16 PLAINTIFFS? 17 MR. ALIOTO: THANK YOU, YOUR HONOR. 18 OPENING STATEMENT 19 MR. ALIOTO: MAY IT PLEASE THE COURT, THIS IS AN 20 ACTION, AS THE COURT IS AWARE, BROUGHT UNDER SECTION 16 OF THE 21 CLAYTON ANTITRUST ACT CHARGING VIOLATIONS OF SECTION 7 OF THE 22 CLAYTON ANTITRUST ACT AND SECTIONS 1 AND 2 OF THE SHERMAN 23 ANTITRUST ACT. 24 IT IS THE POSITION OF THE PLAINTIFF IN THIS CASE 25 THAT SHOULD THE COURT GRANT A PERMANENT INJUNCTION PROHIBITING JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 6 OPENING STATEMENT \ ALIOTO 1 THE HEARST CORPORATION FROM ACQUIRING THE CHRONICLE, THAT THE 2 PURPOSES OF BOTH THE NEWSPAPER PRESERVATION ACT AND THE 3 ANTITRUST LAWS WILL BE PRESERVED; NAMELY, THAT IN THE NEWSPAPER 4 PRESERVATION ACT, THAT TWO VOICES, TWO COMPETING NEWSPAPERS, 5 WILL BE PRESERVED AND UNDER THE ANTITRUST LAWS, THE COMPETITION 6 ALSO WILL BE PRESERVED. 7 THE PARTIES, AS THE COURT IS AWARE, IS THE HEARST 8 CORPORATION, A MULTI-BILLION DOLLAR INTERNATIONAL CORPORATION, 9 OWNING APPROXIMATELY, IN THE NEWSPAPER AREA, APPROXIMATELY 13 10 NEWSPAPERS, ONE OF WHICH IS THE SAN FRANCISCO EXAMINER WHICH, 11 BY THE WAY, WAS THE VERY FIRST PAPER THAT LAUNCHED THE HEARST 12 CORPORATION WHEN IT WAS TAKEN OVER BY WILLIAM RANDOLPH HEARST 13 IN 1887. 14 THE OTHER DEFENDANT -- 15 THE COURT: WHY DOES MR. REILLY HAVE AN INTEREST IN 16 THIS COMPETITION? 17 MR. ALIOTO: HE IS A SUBSCRIBER AND A CONSUMER AND 18 THE ANTITRUST LAWS ARE DESIGNED TO AID AND HELP AND PROVIDE FOR 19 AND GUARANTEE TO CONSUMERS AND SUBSCRIBERS IN THIS CASE THE 20 BENEFITS OF COMPETITION AND IN CONJUNCTION WITH THE NEWSPAPER 21 PRESERVATION ACT THE COMPETITION OF IDEAS AS WELL. 22 THE COURT: ARE YOU TELLING ME THAT ANY SUBSCRIBER 23 TO THE EXAMINER OR TO THE CHRONICLE CAN BE BRINGING THIS 24 LAWSUIT? 25 MR. ALIOTO: YES, I AM, YOUR HONOR. AND AS THE JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 7 OPENING STATEMENT \ ALIOTO 1 JUSTICE DEPARTMENT ITSELF SAID, THAT, INCORRECTLY AS I THINK 2 THE EVIDENCE IS GOING TO SHOW, THAT THEY DROPPED OUT OF THE 3 ISSUE ON THE GROUND THAT THEY FELT THAT CONSUMERS, SUBSCRIBERS 4 AND ADVERTISERS WERE NOW GOING TO HAVE THE BENEFITS OF 5 COMPETITION FOR THE FIRST TIME IN 35 YEARS. 6 THE COURT: WHAT IS IT IN THE ANTITRUST LAWS THAT 7 AFFORDS TO A SUBSCRIBER OF A NEWSPAPER STANDING TO BRING AN 8 ACTION ATTACKING THE BUSINESS ARRANGEMENTS BY WHICH THAT 9 PUBLICATION IS PRODUCED? 10 MR. ALIOTO: IT IS SECTION 16 OF THE CLAYTON 11 ANTITRUST ACT, WHICH IS THE INJUNCTION STATUTE ALLOWING ANY 12 TIME THERE'S A THREATENED INJURY, HARM OR DAMAGE -- 13 THE COURT: HOW DOES THAT RELATE TO MR. REILLY'S 14 ALLEGED STANDING AS A SUBSCRIBER? 15 MR. ALIOTO: BECAUSE AS A SUBSCRIBER OF A NEWSPAPER, 16 HE WOULD BE A SUBSCRIBER TO BOTH NEWSPAPERS. AS THE COURT MAY 17 OR MAY NOT BE AWARE, UNDER THE JOA, IN THIS VERY CASE, UNDER 18 SECTION 3.15(G), THE PARTIES ARE GIVEN THE POWER AND THE 19 RESPONSIBILITY TO SET SUBSCRIBER RATES AND TO SET ADVERTISING 20 RATES. AND ANY SUBSCRIBER OR ADVERTISER HAS STANDING BY REASON 21 OF THAT COMPETITION; AND THAT THE PREVENTION OF COMPETITION, 22 ESPECIALLY COMPETITION NOT ONLY JUST NOW BUT IN THE FUTURE, 23 AFTER 2005, IS SOMETHING THAT A SUBSCRIBER OR ADVERTISER HAS AN 24 INTEREST IN. 25 FOR EXAMPLE, IN THE EXHIBIT OF MAY 4, 1999, JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 8 OPENING STATEMENT \ ALIOTO 1 COMMISSIONED BY THE CHRONICLE, THEY DID AN ANALYSIS IN WHICH IT 2 WAS FOUND THAT WHEN THE TWO PAPERS BEGAN TO COMPETE IN 2005, 3 THAT THE ADVERTISING AND SUBSCRIPTION RATES AND CIRCULATION 4 RATES WOULD BE GOING DOWN IN THE RANGE OF 15 TO 20 PERCENT. 5 HOWEVER, IF THEY WERE ABLE TO JUST HAVE ONE 6 SURVIVING NEWSPAPER, WHICH BOTH OF THEM PLOTTED TO DO, THE 7 ADVERTISING AND SUBSCRIPTION RATES WOULD INCREASE 20 PERCENT. 8 IN ADDITION TO THAT, IF THERE WERE COMPETITION, 9 ACCORDING TO THEIR OWN DOCUMENT, THEY WOULD HAVE TO PUT UP 10 $125 MILLION FOR NEW PRESS PLANTS, WHICH THEY THINK THAT THEY 11 WOULD HAVE TO DO TO INNOVATE IN ORDER TO BE COMPETITIVE TO 12 SERVE THE SUBSCRIBERS AND THE ADVERTISERS, AN AMOUNT WHICH THEY 13 WOULD NOT HAVE TO PUT UP IF THEY DID NOT DO THAT. 14 THE COURT: THIS DEALS WITH INJURY TO POTENTIAL 15 ADVERTISERS? 16 MR. ALIOTO: ALSO. SUBSCRIBERS ARE HURT -- ANY 17 PURCHASER IN A SITUATION LIKE THIS WHERE THERE'S A POTENTIAL 18 FOR EITHER PAYING HIGHER PRICES, AS THEY ADMIT WILL HAPPEN, OR 19 BEING DEPRIVED IN THE SENSE OF A NATIONAL NEWSPAPER IN THE 20 NEWSPAPER PRESERVATION ACT, THAT A PERSON WHO DOES THAT IS 21 INJURED, AND WE CITED THOSE CASES TO YOUR HONOR. THE FIRST 22 PURCHASER CASE I GUESS YOU WOULD SAY WHERE A PERSON, A VERY 23 SMALL PERSON, LIKE A SUBSCRIBER WAS INJURED WAS THE SONETONE 24 CASE, WHICH WE GAVE TO YOUR HONOR. 25 THE -- JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 9 OPENING STATEMENT \ ALIOTO 1 THE COURT: IS MR. REILLY AN ADVERTISER IN EITHER OF 2 THESE PAPERS? 3 MR. ALIOTO: HE IS A POTENTIAL ADVERTISER. HE DID 4 NOT PERSONALLY ADVERTISE. ACCORDING TO -- AS WE SAID IN THE 5 TRIAL BRIEFS, SOME OF HIS OTHER COMPANIES WERE MAJOR 6 ADVERTISERS, BUT HE HAS -- 7 THE COURT: THEY'RE NOT -- 8 MR. ALIOTO: NO, THEY'RE NOT. HE HAS A POTENTIAL -- 9 HE IS SUING AS A SUBSCRIBER AND POTENTIAL ADVERTISER. 10 THE COURT: HE RUNS A CONSULTING BUSINESS? 11 MR. ALIOTO: NO, HE DOES NOT, YOUR HONOR. HE IS A 12 REAL ESTATE INVESTOR. HE HASN'T BEEN A POLITICAL CONSULTANT 13 FOR MANY, MANY YEARS. I DON'T REMEMBER HOW MANY. HE HAS BEEN 14 A REAL ESTATE INVESTOR, YOUR HONOR, AND HE OWNS REAL ESTATE AND 15 MANAGES REAL ESTATE IN DOWNTOWN SAN FRANCISCO. 16 THE COURT: AND THAT MAKES HIM A POTENTIAL 17 ADVERTISER? 18 MR. ALIOTO: YES, IT DOES, YOUR HONOR. 19 THE COURT: WHAT'S THE EFFECT OF THE NEWSPAPER 20 PRESERVATION ACT PROVISIONS INSOFAR AS THEY RELATE TO REILLY'S 21 STANDING? 22 MR. ALIOTO: WELL, I THINK THAT ONE OF THE MAIN 23 REASONS IS THAT THE ONLY REASON THAT ANY NEWSPAPER WOULD HAVE 24 THE ABILITY TO GET INTO A JOINT OPERATING AGREEMENT WHERE, BY 25 THE WAY, THEY'RE SUPPOSED TO BE SETTING THEIR OWN PRICES JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 10 OPENING STATEMENT \ ALIOTO 1 INDIVIDUALLY, THE IDEA IS, IS THAT THEY WOULD CONTINUE FOR AT 2 LEAST THE LIFE OF THE JOA. THAT'S WHAT THEY WERE GIVEN. 3 IN THIS CASE THE JOA WAS ENTERED INTO IN OCTOBER OF 4 1964. THE EFFECTIVE DATE WAS JANUARY OF '65, STARTING IN 5 JANUARY. IT WAS SUPPOSED TO ORIGINALLY GO FOR 30 YEARS, WHICH 6 WAS UNTIL JANUARY OF 1995. 7 AT THAT CONCLUSION EITHER ONE OF THEM COULD EXTEND 8 IT ANOTHER 10 YEARS. HEARST ITSELF WAS THE ONE WHO EXTENDED IT 9 FROM '95 TO 2005. 10 THE COURT: BUT THAT MIGHT BE A COMMITMENT BETWEEN 11 THE JOINT OPERATORS AND THE DEPARTMENT OF JUSTICE, BUT HERE THE 12 DEPARTMENT OF JUSTICE HAS SIGNED OFF ON THE TRANSACTION THAT IS 13 BEFORE THE COURT. 14 MR. ALIOTO: WELL, THERE'S TWO THINGS ABOUT THAT. 15 IT'S -- 16 THE COURT: SO WHAT IS MR. REILLY'S STANDING TO 17 ATTACK WHAT MAY BE A COVENANT THAT EXISTS BETWEEN THE 18 DEPARTMENT OF JUSTICE AND THE JOINT OPERATORS? 19 MR. ALIOTO: THERE'S NO COVENANT BETWEEN THE 20 DEPARTMENT OF JUSTICE AND THE JOINT OPERATORS. THIS IS A 21 COVENANT WITH THE -- 22 THE COURT: ISN'T THAT WHAT YOU'RE SAYING? ISN'T 23 WHAT YOU'RE SAYING IS -- 24 MR. ALIOTO: NO. 25 THE COURT: -- THAT THEY AGREED TO THIS JOINT JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 11 OPENING STATEMENT \ ALIOTO 1 OPERATING AGREEMENT WITH ITS VARIOUS TERMS AND PROVISIONS, 2 INCLUDING THE TERMINATION PROVISIONS, AND THEY'RE BOUND TO 3 STICK TO THAT JOINT OPERATING AGREEMENT UNTIL SUCH TIME AS THE 4 DEPARTMENT SAYS OTHERWISE? 5 MR. ALIOTO: THEY ARE -- THIS IS A COVENANT BETWEEN 6 THEM AND THE PEOPLE, YOUR HONOR, AND THE PEOPLE ARE 7 SUBSCRIBERS. AND THIS COVENANT IS A SPECIAL GRANT BY CONGRESS. 8 THERE'S NO SPECIAL GRANT TO THE DEPARTMENT. IT IS A SPECIAL 9 GRANT BY CONGRESS. 10 THE COURT: WELL, I SUSPECT THE DEPARTMENT WOULD 11 THINK THAT IT'S THE PEOPLE'S REPRESENTATIVE HERE. 12 MR. ALIOTO: IT MAY OR MAY NOT BE. IT'S OBVIOUSLY 13 NOT IN THIS CASE BECAUSE WHEN THEY DECIDED TO TAKE OFF, THEY 14 BELIEVED, YOUR HONOR, THAT THERE WERE GOING TO BE TWO COMPETING 15 NEWSPAPERS; AND I THINK THAT WHAT THE EVIDENCE IS GOING TO SHOW 16 IS THAT THAT'S NOT CORRECT. 17 WE DO WANT TO MAKE SURE, THOUGH, THAT THE COURT 18 UNDERSTANDS THAT IT IS HEARST ITSELF WHO DECIDED TO EXTEND THE 19 AGREEMENT. HAVING DONE THAT, TO GO TO 2005, THEY NOW WANT TO 20 NULLIFY THE AGREEMENT AT LEAST FIVE YEARS OR SO BEFORE THE 21 TIME. 22 THE COURT: BUT ISN'T THE HARMED PARTY THERE THE 23 CHRONICLE? 24 MR. ALIOTO: PARDON ME? 25 THE COURT: ISN'T THE PARTY THAT IS HARMED BY THAT, JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 12 OPENING STATEMENT \ ALIOTO 1 IF THERE'S SOMETHING WRONG WITH HEARST EXTENDING THE AGREEMENT, 2 ISN'T THE PARTY HARMED THE CHRONICLE? 3 MR. ALIOTO: THE HARM IS THE POTENTIAL THAT THE 4 NEWSPAPER PRESERVATION ACT AND THE ANTITRUST LAWS CAN AND WILL 5 BE VIOLATED UNLESS THE HEARST CORPORATION IS PREVENTED FROM 6 PURCHASING THE CHRONICLE. 7 THERE'S ONLY GOING TO BE ONE PAPER. THE NEWSPAPER 8 PRESERVATION ACT IS SPECIFICALLY DESIGNED FOR ANOTHER PURPOSE. 9 THE ANTITRUST LAWS ARE DESIGNED FOR ANOTHER PURPOSE. THEY WILL 10 DEFEAT BOTH STATUTES HERE. 11 CONTINUING, IF IT PLEASE YOUR HONOR, IS THAT 12 CONTINUALLY THEY ARE MAKING, AS A MATTER OF FACT, AND WHEN WE 13 PUT THE JOINT OPERATING AGREEMENT INTO EVIDENCE, WE WANT TO BE 14 SURE THAT WE UNDERSTAND SOMETHING, THAT THERE HAS BEEN A 15 POSITION THAT HAS BEEN CHANGING CONSTANTLY BY THE HEARST 16 CORPORATION, AND IT WON'T BE SUPPORTED BY THE EVIDENCE. 17 THE FIRST POSITION BY THE HEARST CORPORATION WAS 18 THAT BEFORE 1999, THAT THERE WAS A POSITION THAT THE EXAMINER 19 WILL REMAIN IN THE MARKET. ALL THE WAY UP TO THE CHAIRMAN OF 20 THE BOARD STATED TO THE CHRONICLE AGAIN AND AGAIN THAT, "AFTER 21 THIS JOA, WE'RE GOING TO BE IN THE MARKET AND WE'RE GOING TO BE 22 IN IT UNTIL THE END." 23 AS SOON AS THEY MADE THE AGREEMENT WITH THE 24 CHRONICLE TO BUY THE CHRONICLE, THEY CHANGED THEIR TUNE AND 25 THEY BEGIN TO SAY TO THE JUSTICE DEPARTMENT, AND THEY FILED JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 13 OPENING STATEMENT \ ALIOTO 1 THEIR PAPERS WITH THE JUSTICE DEPARTMENT, THAT THE EXAMINER WAS 2 GOING TO BE A FAILING COMPANY ANYWAY AND, THEREFORE, THEY 3 SHOULD BE ALLOWED TO BUY OR CREATE A MONOPOLY IN THIS MARKET. 4 THAT WASN'T WORKING, AND THEN OTHER PERSONS, 5 INCLUDING THIS CASE, REILLY, FILED A COMPLAINT, AND THE 6 DEPARTMENT -- AND HEARST CORPORATION CHANGED IT AGAIN, AND THEY 7 MADE AN ARRANGEMENT WITH THE PAN ASIAN GROUP, AND THEN THEY 8 MADE REPRESENTATIONS TO THE COURT, "WELL, NOW THE OTHER PAPER 9 WILL SUCCEED." AND THEY MADE THE REPRESENTATION TO THE DOJ AND 10 THE DOJ COMES TO THE COURT AND SAYS, "WELL, NOW FOR THE FIRST 11 TIME IN 35 YEARS THE CONSUMERS IN SAN FRANCISCO ARE GOING TO 12 HAVE TWO COMPETING NEWSPAPERS." 13 AND WHEN THAT DIDN'T WORK AND THE COURT ISSUED THE 14 INJUNCTION, THEY'VE NOW SWITCHED BACK AND SAID THAT THE 15 EXAMINER IS A FAILING COMPANY ANYWAY AND IT DOESN'T MAKE ANY 16 SENSE. 17 WE'RE GOING TO PUT INTO EVIDENCE, YOUR HONOR, THE 18 INCOME STATEMENTS OF THE SAN FRANCISCO EXAMINER SHOWING THAT 19 THEY HAVE MADE SUBSTANTIAL MONEY UNDER THE JOA, AND THAT THEY 20 ANTICIPATE, BEGINNING IN 2000 AND GOING THROUGH TO 2005, 21 ESCALATING FROM OVER $22 MILLION A YEAR NET PROFIT UP TO 25 AND 22 BEYOND. 23 SO THAT THERE'S NO QUESTION IN THIS RECORD AND NO 24 ONE HAS EVER MADE ANY SUGGESTION WHATSOEVER THAT THE EXAMINER 25 OR ONE OF THESE PAPERS IS A FAILING PAPER. JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 14 OPENING STATEMENT \ ALIOTO 1 IN ADDITION TO THAT, THE EXECUTIVES OF BOTH 2 COMPANIES HAVE TESTIFIED THAT IF YOU ATTEMPTED TO MAKE AN 3 ANALYSIS OF THE CONTRIBUTIONS OF THE EXAMINER AND THE CHRONICLE 4 IN AN EFFORT TO DETERMINE WHICH WAS CONTRIBUTING WHAT AMOUNT TO 5 PROFITS OR IF ONE WERE A LOSER AND ONE WERE NOT, BOTH WILL BE 6 TESTIFYING, YOUR HONOR, THAT THAT WOULD BE AN IMPOSSIBLE TASK. 7 IN ORDER TO ATTEMPT TO TRY AND RECTIFY THEIR 8 SITUATION OF GETTING INTO A -- TRYING TO BUY THEIR MAIN 9 COMPETITOR, THEY HAVE ATTEMPTED TO MAKE A SALE TO THE PAN ASIAN 10 GROUP. THE PAN ASIAN SALE IS NOT ONLY SIMPLY DOOMED TO 11 FAILURE, AS WE HAVE POINTED OUT, BUT ALSO THERE ARE INCENTIVES 12 IN IT THAT ARE DESIGNED BY THE HEARST CORPORATION FOR THE 13 PURPOSE OF ENSURING THAT IT WILL IN FACT BE A FAILURE. 14 THE SUBSIDY, BY WAY OF EXAMPLE UNDER THE AGREEMENT, 15 THE EVIDENCE WILL SHOW, WILL BE UP TO $25 MILLION OF 16 REIMBURSABLE EXPENSES. HOWEVER, IF THE PAN ASIAN GROUP ONLY 17 SPENDS $15 MILLION, WHICH IS NOT EVEN ENOUGH REALLY TO BUY 18 NEWSPRINT, THE PAPER THAT THE PAPER IS PRINTED ON, IF THEY ONLY 19 SPEND $15 MILLION, THEN THE REMAINING $10 MILLION THEY ARE 20 ENTITLED UNDER THEIR AGREEMENT WITH HEARST TO KEEP AND TO 21 POCKET HALF OF THAT, WHICH IS $5 MILLION. 22 THAT'S EACH YEAR. THAT MEANS THAT EACH YEAR THEIR 23 INCENTIVE IS TO NOT SPEND ON THE PAPER; AND IF THEY DON'T SPEND 24 ON THE PAPER, THEY'RE REWARDED WITH A 5-MILLION-DOLLAR GIFT 25 WHICH, BY THE WAY, THE EVIDENCE WILL SHOW IS MORE THAN THEIR JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 15 OPENING STATEMENT \ ALIOTO 1 INDIVIDUAL PAPER, THE INDEPENDENT, HAS MADE OVER, AT LEAST FROM 2 THE FIGURES THAT WE HAVE FROM TESTIMONY, IT'S AT LEAST FIVE 3 TIMES THE AMOUNT OF WHAT THAT PAPER WOULD MAKE IN A YEAR. 4 IN ADDITION, WHEN THEY EVEN WENT UP TO THE 5 $15 MILLION, THE DISINCENTIVE ALSO ALLOWED THAT THE PUBLISHER 6 OF THAT PAPER WOULD BE ABLE TO BE PAID $500,000 AND AN 7 ADDITIONAL $500,000. THAT'S INCLUDED IN THE 15. 8 SO IF THEY TAKE THAT DEAL, THEY CAN COME OUT WITH AT 9 LEAST $6 MILLION. THAT AMOUNT IS MORE THAN -- THE AMOUNT FOR 10 THAT SALARY IS MORE THAN WHAT THE EXAMINER -- WHAT HEARST PAYS 11 THEIR OWN PUBLISHER AND WHAT THE SAN FRANCISCO NEWSPAPER AGENCY 12 PAYS ITS PRESIDENT. 13 THAT MEANS, SIR, THAT UNDER THE EVIDENCE THAT WE 14 HAVE, THAT THAT CAN'T HAPPEN; THAT IT WON'T -- THERE WON'T BE 15 TWO COMPETING NEWSPAPERS. 16 WE WERE ABLE TO GET AN ESTIMATE AS TO WHAT THEIR 17 PARTICULAR BUDGETS ARE GOING TO BE; AND, REMARKABLY PERHAPS BUT 18 FACTUALLY, IS THAT THEIR BUDGETS WILL COME OUT TO $15 MILLION, 19 WHICH MEANS THAT IF THEY FOLLOW THEIR OWN BUDGET, THEY WILL NOT 20 ONLY BE ABLE TO PAY THE $500,000 SALARY, BUT THEY WILL ALSO BE 21 PAID $5 MILLION THAT THEY CAN DO WHATEVER THEY WANT WITH. 22 IN ADDITION, EVEN IF IT WERE $25 MILLION DEVOTED TO 23 ANOTHER NEWSPAPER, THE COURT -- THE EVIDENCE WILL BE, YOUR 24 HONOR, THAT WE WILL BRING IN EXPERT AFTER EXPERT, INCLUDING 25 THEIR OWN EXPERTS, WHO SAY THAT THERE IS NO WAY, NO CHANCE THAT JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 16 OPENING STATEMENT \ ALIOTO 1 THAT AMOUNT OF MONEY WOULD EVER BE ABLE TO SUPPORT A COMPETING 2 NEWSPAPER. IT SIMPLY WON'T HAPPEN. 3 IN ADDITION TO THAT, WE WOULD POINT OUT, YOUR HONOR, 4 THAT THE COMPETITION ITSELF, IN LOOKING DOWN FOR THE 5 COMPETITION, WE HAVE A NUMBER OF SITUATIONS THAT WE WILL BE 6 PRESENTING TO THE COURT IN WHICH NOT ONLY DO THEY SAY THAT IF 7 THEY ARE REQUIRED TO COMPETE, THAT THEY WILL COMPETE, BOTH OF 8 THEM TAKING THE POSITION THAT THEY WILL COMPETE, BUT THAT IF 9 THEY DO, THE RATES THEY CHARGE THE PEOPLE, FOR SUBSCRIBERS AND 10 FOR ADVERTISERS, WILL BE SIGNIFICANTLY LOWER, AND THAT THEY 11 WILL BE FORCED TO HIRE MORE AND MORE PERSONS AND REPORTERS. 12 THEY'RE GOING TO HAVE TO UPGRADE THEIR NEWSPAPERS AND THEY'RE 13 GOING TO HAVE TO INCREASE THEIR PRODUCTION. THEY THINK AND 14 THEY'RE ESTIMATING SPENDING AT LEAST 125 MILLION, MORE THAN 15 THAT, ON JUST THE PRESSES ALONE. 16 IN ADDITION TO THAT, WE WOULD POINT OUT TO THE COURT 17 THAT THE EVIDENCE IS GOING TO BE THAT THE TWO CHIEF EXECUTIVE 18 OFFICERS OF THESE NEWSPAPERS, THE SAN FRANCISCO CHRONICLE AND 19 THE SAN FRANCISCO EXAMINER, HAVE BEEN AND WERE CONTINUOUSLY 20 MEETING, ESPECIALLY NOT ONLY BEFORE 1999 BUT ESPECIALLY IN 21 1999. 22 THE STATED PURPOSE OF -- WHEN THE EXECUTIVE CAME TO 23 THE SAN FRANCISCO EXAMINER, HIS PURPOSE WAS TO GET THE PAPER 24 READY TO BE ABLE TO COMPETE IN 2005. BOTH PAPERS WERE 25 ATTEMPTING TO GET READY TO COMPETE WHEN THE JOA FINALLY WAS JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 17 OPENING STATEMENT \ ALIOTO 1 OVER. 2 THE COURT: THIS IS MR. SIAS YOU'RE REFERRING TO? 3 MR. ALIOTO: MR. SIAS AND -- BUT PRINCIPALLY MR. 4 WHITE AND THE CHAIRMAN OF THE BOARD, BY WAY OF EXAMPLE, YOUR 5 HONOR, THE CHAIRMAN OF THE BOARD OF THE WHOLE HEARST 6 CORPORATION, MR. BENNACK WHO WILL ALSO BE HERE, HE WILL BE 7 WRITING AN INTEROFFICE MEMORANDUM TO HIS OWN FOLKS AND HE IS 8 SAYING THAT HE TOLD HIM, IN REFERENCE TO THE CHRONICLE, THAT HE 9 TOLD MR. SIAS OF THE CHRONICLE THAT, "WE," MEANING THE HEARST 10 CORPORATION, "WERE CERTAINLY GOING TO TAKE THE STEPS WE BELIEVE 11 NECESSARY TO PREPARE OURSELVES FOR THE RESUMPTION OF A 12 FULLY-COMPETITIVE SITUATION POST-2005 PERIOD, THE TIME PERIOD." 13 THAT'S FROM THE HEAD. 14 NOW, WHAT HAD HAPPENED IS, IS THAT A CERTAIN 15 CIRCUMSTANCE OCCURRED IN 1999. THEY HAD A JOINT PROMOTION. 16 THERE WILL BE ABOUT FIVE MINUTES -- TWO MINUTES? 17 OKAY, TWO MINUTES. 18 IN THAT EFFORT, WHAT THE SAN FRANCISCO NEWSPAPER 19 AGENCY DID WAS THEY ALLOWED A SUBSCRIBER OF THE CHRONICLE TO 20 GET A COPY OF THE EXAMINER FOR FREE. THEY ALSO ALLOWED A 21 SUBSCRIBER OF THE EXAMINER TO GET A CHRONICLE FOR FREE. 22 IN THAT PROGRAM THE EXAMINER SPECIFICALLY OBJECTED 23 TO IT -- I MEAN, THE CHRONICLE SPECIFICALLY OBJECTED TO IT, AND 24 THEY OBJECTED TO IT. THE CHRONICLE SAYS, "YOU ARE USING MY 25 PAPER WHERE I HAVE A SUBSCRIBER AND YOU'RE GOING TO GIVE MY JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 18 OPENING STATEMENT \ ALIOTO 1 SUBSCRIBER A FREE EXAMINER." AND THEY SAID, "I HAVE THE 2 EXCLUSIVE RIGHT OVER THE PRICES ACCORDING TO THE JOA, SECTION 3 3.15(G) AND THAT I SET THE PRICES FOR THAT." 4 AND THE EXAMINER WROTE BACK, MR. WHITE WROTE BACK 5 AND SAID, "WHAT YOU ARE TRYING TO DO, BECAUSE THIS INCREASES 6 OUR CIRCULATION, WHAT YOU ARE TRYING TO DO IS INJURE US BEFORE 7 WE BEGIN TO COMPETE IN 2005." AND MR. WHITE CHARGES THE 8 CHRONICLE WITH VIOLATING NOT ONLY THE JOINT OPERATING AGREEMENT 9 BUT VIOLATING THE ANTITRUST LAWS AS WELL. 10 THE COURT: WELL, ARE YOU SUGGESTING THAT 11 NOTWITHSTANDING THE JOINT OPERATING AGREEMENT THERE IS 12 COMPETITION BETWEEN, ECONOMIC COMPETITION BETWEEN THE CHRONICLE 13 AND THE EXAMINER? 14 MR. ALIOTO: I AM STATING THAT THE RECORD IS THAT 15 THEY, IN FACT, DO COMPETE; AND, FOR EXAMPLE, ON STREET SALES 16 THERE ARE DIFFERENT PRICES FOR THE EXAMINER AND THE CHRONICLE. 17 THEY DON'T FIX THE PRICE. FOR ADVERTISING AND FOR CIRCULATION, 18 OTHER SUBSCRIPTIONS IT CHANGES. FOR EXAMPLE, THE CHRONICLE 19 WILL CHARGE 50 CENTS HERE IN SAN FRANCISCO. IF IT GOES OUT, IT 20 WILL CHARGE YOU EVEN LESS BECAUSE THERE'S MORE -- I GUESS MORE 21 COMPETITION THERE. 22 BUT THE EVIDENCE WILL BE THAT THEY TAKE THE POSITION 23 THAT THEY CAN INDEPENDENTLY SET THESE PRICES AND THAT THE JOA 24 SPECIFICALLY GRANTS THAT. BUT THERE'S GOING TO ALSO BE 25 EVIDENCE THAT THEY DO, IN FACT, TAKE THE ADVICE OF THE AGENCY, JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 19 OPENING STATEMENT \ ALIOTO 1 BUT -- 2 THE COURT: IS THIS REALLY ANYTHING DIFFERENT FROM 3 PRODUCT DIFFERENTIATION THAT EXISTS WHEN A COMPANY PRODUCES 4 MORE THAN ONE PRODUCT? FOR EXAMPLE, THE PRODUCT 5 DIFFERENTIATION BETWEEN A FORD CAR AND A MERCURY CAR PRODUCED 6 BY THE SAME COMPANY? THEY'RE PRICED DIFFERENTLY. THEY HAVE 7 SOMEWHAT DIFFERENT FEATURES, BUT BASICALLY IT'S SIMPLY PRODUCT 8 DIFFERENTIATION AS A WAY OF CAPTURING A DIFFERENT MARKET THAT 9 THE OTHER PRODUCT COULD NOT CAPTURE. ISN'T THAT WHAT'S GOING 10 ON HERE? 11 MR. ALIOTO: I WILL TELL YOU THIS: THAT TO THE 12 EXTENT THAT ANYONE IS GOING TO COMPETE LIKE THAT WILL BE GONE 13 IF THIS COURT ALLOWS HEARST TO DO THIS -- TO BUY THE CHRONICLE. 14 TO THE EXTENT THAT THERE'S ANY EFFORT TO ENTICE OTHER PEOPLE, 15 OTHER IDEAS AND BRING PEOPLE INTO A DIFFERENT PRODUCT, THAT 16 WILL BE GONE, YOUR HONOR. 17 THE COURT: ALL RIGHT. BUT HOW IS THAT 18 ANTICOMPETITIVE? WHAT YOU'RE SAYING IS THAT THE JOINT 19 OPERATING AGREEMENT IS A MORE EFFICIENT MONOPOLIST THAN THE 20 MONOPOLIST THAT WOULD RESULT IF THE JOINT OPERATING AGREEMENT 21 KILLS OFF ONE OF THE TWO PRODUCTS THAT IT SELLS? 22 MR. ALIOTO: NO, YOUR HONOR. THE JOINT OPERATING 23 AGREEMENT IS HIGHLY PROFITABLE FOR BOTH OF THESE FOLKS, AND 24 THEY'VE BEEN DOING NOTHING BUT MAKING MONEY; AND THEY'RE 25 INTENDING TO MAKE MUCH MORE MONEY THAN THEY'VE EVER MADE UP TO JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 20 OPENING STATEMENT \ ALIOTO 1 2005. NOTWITHSTANDING ANYTHING THEY'VE SAID TO THIS COURT OR 2 IN THE PAPERS OR ELSEWHERE, THE DOCUMENTS ARE GOING TO SHOW 3 THAT THEY'RE MAKING SUBSTANTIAL AMOUNTS OF MONEY. 4 WHAT THEY'RE WORRIED ABOUT WAS THAT IN 2005 THEY'D 5 HAVE TO COMPETE. THE JOINT OPERATING AGREEMENT IS OVER. AND 6 HEARST, MR. TIMOTHY WHITE, CHARGES THE CHRONICLE WITH VIOLATING 7 THE ANTITRUST LAWS BY ATTEMPTING TO HURT IT IN PREPARATION FOR 8 2005. BUT BOTH OF THEM DISCUSS WITH EACH OTHER WHAT IS GOING 9 TO HAPPEN IN 2005; NAMELY, THEY CALL IT, THEY DESCRIBE IT "THE 10 WAR" AND THEY MEAN -- AND BY THAT THEY MEAN THAT THEY EVEN SAY 11 THAT THEY'RE GOING TO HAVE TO LOWER THE PRICES AND START 12 COMPETING, AND THAT'S GOING TO HURT THEM. 13 SO THEY'VE GOT TO DO SOMETHING ELSE AND THE 14 SOMETHING ELSE IS ONE OF THEM HAS TO BUY THE OTHER. AND THAT'S 15 WHAT THEY'VE DECIDED TO DO. AND THEN TO TRY TO BREAK AWAY FROM 16 THAT AND TRY TO GLOSS IT, THEY'VE TRIED TO COME UP WITH THIS 17 SUBSEQUENT AGREEMENT WITH THE PAN ASIAN GROUP WHICH THE 18 EVIDENCE IS GOING TO BE ALMOST UNDISPUTED AS -- WELL, WE'VE 19 DESCRIBED IT AS A SHAM. IT IS CERTAINLY -- IT IS CERTAINLY 20 THAT. 21 THE COURT: VERY WELL. THANK YOU, MR. ALIOTO. 22 MR. ALIOTO: THANK YOU, YOUR HONOR. 23 THE COURT: MR. HALLING? 24 OPENING STATEMENT 25 MR. HALLING: IF IT PLEASE THE COURT, WE FILED A JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 21 OPENING STATEMENT \ HALLING 1 MEMORANDUM IN SUPPORT OF A MOTION TO DISMISS THIS CASE BASED ON 2 LACK OF STANDING. WE WILL TAKE THAT UP AT THE COURT'S 3 CONVENIENCE. I WOULD JUST NOTE THAT THERE ARE NO FACTS IN 4 DISPUTE HERE ON THAT MOTION, THAT YOU HEARD MR. ALIOTO SAY THAT 5 WE HAVE A POTENTIAL ADVERTISER HERE. THERE ARE MILLIONS OF 6 POTENTIAL ADVERTISERS. EVERYONE IS A POTENTIAL ADVERTISER. 7 SECOND, MR. REILLY IS A READER. THERE ARE 500,000 8 READERS, AND HE CAN'T ARTICULATE ANY ECONOMIC INJURY THAT HE'S 9 BEEN THREATENED WITH UNDER SECTION 16 OF THE CLAYTON ACT. 10 AND YOU ASKED -- 11 THE COURT: WELL -- GO AHEAD. 12 MR. HALLING: YOU ASKED MR. ALIOTO ABOUT THE 13 NEWSPAPER PRESERVATION ACT AND ITS RELATIONSHIP TO STANDING. 14 IT HAS NO RELATIONSHIP BECAUSE UNDER SECTION 16 OF THE CLAYTON 15 ACT, YOU CAN ONLY BRING A SUIT TO ENFORCE THE ANTITRUST LAWS. 16 THIS IS NOT AN ANTITRUST LAW AS DEFINED IN SECTION 1 OF THE 17 CLAYTON ACT. 18 THE COURT: BUT ISN'T THE NEWSPAPER PRESERVATION ACT 19 A GLOSS ON THE CLAYTON ACT? 20 MR. HALLING: NO, IT'S NOT. THE CLAYTON ACT IS VERY 21 CLEAR WHAT IS AN AMENDMENT AND WHAT'S AN ANTITRUST LAW, AND 22 THIS IS NOT AN ANTITRUST LAW. 23 WHAT THIS IS, IS AN EXEMPTION THAT'S A VOLUNTARY 24 EXEMPTION THAT PEOPLE CAN APPLY FOR. THEY DON'T HAVE TO. 25 THAT'S ALL IT IS. IT'S NO CAUSE OF ACTION THAT ACCRUES BECAUSE JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 22 OPENING STATEMENT \ HALLING 1 OF ITS EXISTENCE. IT'S SIMPLY AN EXEMPTION THE PARTIES CAN 2 SEEK IF THEY WISH. 3 THE COURT: BUT IS AN EXEMPTION WHICH EXPRESSES A 4 CONGRESSIONAL POLICY FAVOR A DEVICE THAT WOULD OTHERWISE BE 5 ILLEGAL THAT PERMITS THE EXISTENCE IN THE COMMUNITY OF MORE 6 THAN ONE EDITORIAL VOICE, AND ISN'T THAT SOMETHING WHICH 7 INFORMS THE COURT'S DECISION WHEN THE CLAYTON ACT APPLIES IN 8 THE NEWSPAPER BUSINESS? 9 MR. HALLING: NOT REALLY, YOUR HONOR. IF THIS WERE 10 A CASE -- 11 THE COURT: NOT REALLY, BUT DOESN'T IT? 12 MR. HALLING: NO, IT REALLY DOESN'T. 13 THE COURT: WHY NOT? 14 MR. HALLING: WHAT THE NEWSPAPER PRESERVATION ACT 15 IS, IS IT'S AN EXEMPTION FROM THE ANTITRUST LAWS; AND IF THIS 16 WERE AN APPLICATION TO APPROVE A JOINT OPERATING AGREEMENT OR 17 REVIEW OF THE ATTORNEY GENERAL'S APPROVAL OF SUCH AN 18 ARRANGEMENT, THEN THAT POLICY WOULD BE RELEVANT. 19 CONGRESS HAS EXPRESSED THE POLICY OF THIS COUNTRY, 20 AND AS HAS THE U.S. SUPREME COURT REPEATEDLY, COMPETITION, 21 ECONOMIC COMPETITION IS THE OVERWHELMING POLICY. IT'S BEEN 22 CALLED THE MAGNA CARTA OF OUR FREE ENTERPRISE SYSTEM. 23 THE COURT: BUT AS YOU POINT OUT, THE NEWSPAPER 24 PRESERVATION ACT CARVES OUT AN EXEMPTION FROM THAT MAGNA CARTA 25 OF ECONOMIC COMPETITION AND SAYS, "BUT, WAIT A MINUTE. WHEN IT JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 23 OPENING STATEMENT \ HALLING 1 COMES TO NEWSPAPERS, WE WANT A LITTLE LESS COMPETITION SO THAT 2 WE CAN MAINTAIN SOME EDITORIAL DIVERSITY." AND DOESN'T THAT 3 POLICY CLEARLY ARTICULATED IN THE NEWSPAPER PRESERVATION ACT 4 HAVE TO INFORM A COURT'S DECISION WHEN IT APPLIES THE CLAYTON 5 ACT TO NEWSPAPER PUBLISHERS? 6 MR. HALLING: WELL, YOUR HONOR, WE STARTED WITH THE 7 QUESTION OF STANDING, AND SECTION 16 OF THE CLAYTON ACT COULD 8 NOT BE CLEARER. YOU CAN ONLY USE THAT STATUTE IF YOU ARE 9 ENFORCING ONE OF THE ENUMERATED STATUTES. THIS IS NOT ONE OF 10 THEM, SO I DON'T THINK THAT ARGUMENT WOULD WORK. YOU CAN'T 11 TAKE THE NEWSPAPER PRESERVATION ACT AS AN EXEMPTION AND TURN IT 12 INTO AN ANTITRUST LAW. THERE'S NO BASIS FOR THAT. 13 NOW, IN LISTENING TO MR. ALIOTO, I AM STRUCK BY HOW 14 MUCH WE AGREE ON HERE. THERE ARE SOME THINGS, IMPORTANT 15 THINGS, WE DISAGREE ON; BUT IT SEEMS THAT EVERYONE IN THIS CASE 16 AGREES THAT THE EXAMINER IS A FAILING BUSINESS, THAT IT IS NOT 17 VIABLE AS IT'S CURRENTLY CONSTITUTED. 18 AND WHAT FOLLOWS FROM THAT? IF THAT'S THE CASE, 19 THEN A -- 20 THE COURT: THAT REALLY ISN'T YOUR POSITION; IS IT, 21 MR. HALLING? INDEED, YOU'VE HAD SEVERAL POSITIONS IN THIS 22 LITIGATION, OR YOUR CLIENT HAS. FIRST, YOU CONTEND THE 23 EXAMINER IS A FAILING NEWSPAPER, CANNOT BE RESUSCITATED, IT 24 MIGHT AS WELL BE BURIED AS A MATTER OF PUBLIC SANITATION. 25 THEN YOU CAME IN WAVING THE LETTER FROM THE JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 24 OPENING STATEMENT \ HALLING 1 ASSISTANT ATTORNEY GENERAL AND SAYING, "NOW WE STRUCK THIS DEAL 2 WITH THE FANG GROUP AND SUDDENLY THE EXAMINER CAN SURVIVE AND 3 CAN COMPETE AND WE CAN FOR THE FIRST TIME IN 35 YEARS RESTORE 4 ECONOMIC AND FULL EDITORIAL COMPETITION IN THIS MARKET." 5 AND NOW YOU'RE SAYING SOMETHING DIFFERENT. YOU'RE 6 SAYING, "WELL, THE EXAMINER CAN SURVIVE BUT NOT THE EXAMINER AS 7 WE KNOW AND LOVE IT. IT'S GOING TO BE SOMETHING DIFFERENT." 8 SO -- 9 MR. HALLING: IT'S CORRECT, YOUR HONOR, THAT THE 10 EXAMINER AS A METROPOLITAN DAILY NEWSPAPER CANNOT -- 11 THE COURT: I SUPPOSE THE VIRTUE IN THIS IS IF YOU 12 TAKE ENOUGH POSITIONS, ONE OF THEM IS BOUND TO BE RIGHT AT SOME 13 POINT. 14 (LAUGHTER) 15 MR. HALLING: WELL, YOUR HONOR, ACTUALLY OUR 16 POSITIONS ARE ENTIRELY CONSISTENT. BECAUSE THE EXAMINER AS A 17 METROPOLITAN DAILY NEWSPAPER, WHICH IS WHAT IT IS, IT'S WHAT 18 IT'S ALWAYS BEEN, IT WAS FAILING OR IN SERIOUS TROUBLE WHEN IT 19 ENTERED THE JOINT OPERATING AGREEMENT IN 1965, IT'S MUCH WORSE 20 OFF TODAY, IT'S NOT SURPRISING THAT IT CAN'T SURVIVE 21 INDEPENDENTLY. 22 HOWEVER, IF THAT'S THE CASE, THAT MEANS THAT THE 23 HEARST CORPORATION COULD PURCHASE THE CHRONICLE AND SIMPLY SHUT 24 IT DOWN, IT COULD IF THEY CHOSE GIVE IT AWAY; AND IN THIS 25 SITUATION, IF THEY CAN SHUT IT DOWN OR GIVE IT AWAY, THEY JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 25 OPENING STATEMENT \ HALLING 1 CERTAINLY CAN GIVE IT TO SOMEONE AND PROVIDE A SUBSIDY. 2 HAVING DONE THAT, THEY ARE INCREASING, TO SOME 3 EXTENT, COMPETITION. THEY ARE CERTAINLY PRESERVING AN 4 EDITORIAL VOICE IN SAN FRANCISCO. I DON'T THINK THERE'S ANY 5 QUESTION THAT MR. FANG'S EDITORIAL VOICE WILL BE HEARD LOUD AND 6 CLEAR. THAT IS SOMETHING THAT IS NOT NECESSARY UNDER THE 7 ANTITRUST LAWS BECAUSE THE ANALYSIS IS IF IT'S A FAILING 8 BUSINESS, IT CAN BE CLOSED; AND WE CAN'T BE CRITICIZED FOR 9 DOING SOMETHING THAT PRESERVES AN EDITORIAL VOICE AND AT LEAST 10 TO AN EXTENT INCREASES COMPETITION. 11 BUT THAT BRINGS US TO A KEY CONCEPT IN THIS CASE IN 12 KEEPING STRAIGHT THE EVIDENCE AND UNDERSTANDING IT, WHICH IS 13 THAT THE CHRONICLE AND THE EXAMINER ARE METROPOLITAN DAILY 14 NEWSPAPERS. THEY COMPETE OUTSIDE OF SAN FRANCISCO. IN FACT, 15 THE VAST MAJORITY OR A LARGE PORTION OF THE CHRONICLE'S 16 CIRCULATION IS OUTSIDE THE CITY. THE EXAMINER ALSO HAS A LARGE 17 PERCENTAGE OF CIRCULATION OUTSIDE THE CITY IN MARIN COUNTY AND 18 SO FORTH. 19 THEY APPEAL TO REGIONAL ADVERTISERS. FOR EXAMPLE, 20 NORDSTROM HAS A STORE IN MARIN. THEY HAVE A STORE IN WALNUT 21 CREEK, A STORE IN THE CITY. THEY'RE INTERESTED IN THE 22 METROPOLITAN PAPER. A METROPOLITAN PAPER HAS FULL COVERAGE OF 23 NATIONAL AFFAIRS, OF SPORTS, LOCAL AFFAIRS. THAT'S THE KIND OF 24 PRODUCT THE EXAMINER WAS IN 1965 AND THAT'S WHAT IT STILL IS 25 TODAY. JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 26 OPENING STATEMENT \ HALLING 1 THE PRODUCT THAT MR. FANG IS GOING TO PUBLISH IS NOT 2 A METROPOLITAN DAILY NEWSPAPER BECAUSE THAT WOULDN'T BE 3 POSSIBLE. EVERYONE AGREES ON THAT. 4 THE COURT: DOES THE PAPER ENVISIONED BY MR. FANG 5 COMPETE IN THE SAME MARKET WITH THE EXAMINER AND CHRONICLE? 6 MR. HALLING: THE PAPER COMPETES TO AN EXTENT FOR 7 CERTAIN TYPES OF ADVERTISING, BUT I THINK IN A BROAD ANTITRUST 8 SENSE, IF THAT'S WHAT YOU MEAN, THE MARKET IS THE METROPOLITAN 9 DAILY NEWSPAPER BUSINESS WHICH IN AND OF ITSELF FACES 10 COMPETITION FROM OTHER MEDIA AS WELL; BUT THAT'S THE MARKET 11 THAT THE CHRONICLE IS IN, THE EXAMINER IS IN. IT'S WHAT THE 12 MERCURY NEWS IS IN. 13 THE EVIDENCE WILL SHOW -- 14 THE COURT: MY QUESTION IS WHETHER THE CONTEMPLATED 15 FANG PRODUCT COMPETES IN THE METROPOLITAN NEWSPAPER MARKET. 16 MR. HALLING: IT DOESN'T COMPETE IN THAT MARKET. IN 17 THAT MARKET. 18 THE COURT: THE ANSWER I GATHER IS NO? 19 MR. HALLING: NOT IN THAT MARKET, WHICH IS WHY THE 20 EXAMINER CAN BE CLOSED AS A FAILING METROPOLITAN DAILY 21 NEWSPAPER AND THE FACT THAT MR. FANG -- REMEMBER, MR. FANG IS 22 RECEIVING A 66-MILLION-DOLLAR SUBSIDY. AND I BELIEVE THE 23 EVIDENCE WILL SHOW HE WOULDN'T TAKE THIS PAPER WITHOUT THAT 24 SUBSIDY; AND, INDEED, IF THERE'S ANY QUESTION ON THIS, AND I 25 REALLY DON'T THINK THIS IS IN DISPUTE THAT THIS IS NOT A VIABLE JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 27 OPENING STATEMENT \ HALLING 1 BUSINESS, IF THERE'S ANY QUESTION ABOUT THAT, IT WAS LAID TO 2 REST BY OUR SALES EFFORT. 3 HEARST HIRED A NATIONAL MEDIA BROKER, CONTACTED 4 EVERY MAJOR NATIONAL NEWSPAPER CHAIN IN THE COUNTRY, BUYERS 5 SUCH AS PAUL ALLEN, ONE OF THE FOUNDERS OF MICROSOFT, PEOPLE 6 WHO HAVE LOTS OF MONEY. EVERYONE IN THE COUNTRY THEY COULD 7 CONTACT WAS ASKED TO BID ON THIS PAPER. NO ONE WANTED TO BUY 8 IT. NO ONE WOULD EVEN TAKE IT FOR FREE. 9 THE MARKETPLACE HAS SPOKEN. THIS IS NOT A VIABLE 10 BUSINESS. 11 NOW, MR. ALIOTO SPENT SOME TIME TRYING TO CONVINCE 12 THE COURT THAT THERE MIGHT BE SOME COMPETITION WITHIN THE JOA. 13 THAT'S NOT ACCURATE. THE PARTIES HAVE AN EXEMPTION TO FIX 14 PRICES AND SET RATES, AND THAT'S WHAT THEY'VE BEEN DOING. 15 THERE ARE -- THE AGENCY FORMULATES RATES. THEY 16 ARE -- FOR ADVERTISING RATES, ALMOST ALL RATES ARE JOINTLY -- 17 THEY'RE A COMBINATION RATE WHERE IF THE ADVERTISER WANTS THE 18 CHRONICLE, FOR VERY LITTLE EXTRA IT GETS THE EXAMINER. THOSE 19 RATES ARE PROPOSED. BOTH SIDES DO, UNDER THE LANGUAGE OF THE 20 CONTRACT, REVIEW AND THEN AGREE; BUT IN PRACTICE, THERE IS NO 21 COMPETITION. IT'S EXACTLY AS YOUR HONOR SAID. IT'S 22 DIFFERENTIATED PRODUCTS DECIDING HOW BEST TO PRESENT THEM TO 23 THE MARKETPLACE. 24 NOW, MR. ALIOTO SAID SOME THINGS ABOUT THE 25 NEGOTIATIONS BETWEEN THE PARTIES THAT I WOULD LIKE TO SET JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 28 OPENING STATEMENT \ HALLING 1 STRAIGHT. THE JOA IS A VERY INEFFICIENT ECONOMIC ENTERPRISE. 2 IT HAS A HIGH-COST STRUCTURE. IT HAS SPLIT MANAGEMENT IN TERMS 3 OF A 50-50 OWNERSHIP. IT HAS HISTORICALLY NOT DONE VERY WELL. 4 DURING THE PERIOD 1988 TO 1993, I BELIEVE THE 5 EVIDENCE WILL SHOW THAT BOTH PAPERS LOST MONEY, AND YOU HAVE TO 6 UNDERSTAND WHAT THAT MEANS IN THE CONTEXT OF THE JOA. 7 THE JOA INVOLVES AN ACCUMULATION OF REVENUES, 8 CIRCULATION AND ADVERTISING. THE AGENCY TAKES OFF ITS 9 EXPENSES, AND WHAT'S LEFT IS CALLED THE NET EXCESS. THAT'S NOT 10 A PROFIT. 11 OUT OF THAT NET EXCESS, WHICH IS SPLIT 50-50, EACH 12 NEWSPAPER HAS TO PAY ITS SHARE OF CAPITAL EXPENDITURES AND ALSO 13 ITS EDITORIAL COSTS. 14 THE COURT: AND THOSE CAPITAL EXPENDITURES ARE SET 15 BY THE NEWSPAPER AGENCY, I GATHER. 16 MR. HALLING: NO -- WELL, SUBSTANTIAL CAPITAL 17 EXPENDITURES ARE NOT SET THAT WAY. 18 THE COURT: I'M SORRY, I INTERRUPTED YOU AND I 19 DIDN'T HEAR YOUR ANSWER. 20 MR. HALLING: THEY ARE NOT SET THAT WAY. 21 THE COURT: ALL RIGHT. 22 MR. HALLING: MAJOR CAPITAL EXPENDITURES MUST BE 23 APPROVED BY THE PRINCIPALS AND THEY'RE ON THE PRINCIPALS' 24 BOOKS. SO WHEN YOU GET THE NET EXCESS, THAT'S NOT A PROFIT. 25 YOU STILL HAVE TO PAY YOUR ENTIRE EDITORIAL DEPARTMENT, CAPITAL JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 29 OPENING STATEMENT \ HALLING 1 EXPENDITURES, AND YOU HAVE TO PAY SOME ADMINISTRATIVE EXPENSES. 2 THE COURT: YOU SAID SHARE OF CAPITAL EXPENDITURES. 3 I ASSUME YOU MEANT CAPITAL EXPENDITURES BY THE NEWSPAPER AGENCY 4 THE TAB FOR WHICH WAS SPLIT BETWEEN THE TWO JOINT OPERATORS. 5 MR. HALLING: THAT'S CORRECT. AND THE ASSETS ARE ON 6 THE BOOKS OF THE PRINCIPALS NOT THE AGENCY. THE MAJOR ASSETS 7 SUCH AS THE PRINTING PRESSES, DEPRECIATION IS TAKEN BY THE 8 PRINCIPALS; AND SO THE NET EXCESS DOES NOT -- IT SIMPLY DOESN'T 9 INCLUDE THE MONEY THAT HAS TO BE SPENT ON CAPITAL EXPENDITURES 10 NOR EDITORIAL. 11 SO DURING THE PERIOD 1988 TO 1993 THE EVIDENCE WILL 12 SHOW BOTH NEWSPAPERS, EVEN WHEN THEY GOT THE NET EXCESS, IT 13 WASN'T ENOUGH. THE JOA WAS LOSING MONEY IN A REAL SENSE FOR 14 BOTH PAPERS. PLUS ON A CASH-FLOW BASIS, THEY WERE OVER A 15 HUNDRED MILLION DOLLARS NEGATIVE ON CASH FLOW FROM '88 TO '93. 16 THAT LED TO SOME CONSTERNATION, AS YOU CAN IMAGINE. 17 WE KNOW, AND THE EVIDENCE WILL SHOW, THAT ON AN INCREMENTAL 18 BASIS THE AGENCY WOULD BE -- THE JOA WOULD BE BETTER OFF SIMPLY 19 CLOSING THE EXAMINER BECAUSE THE REVENUES IT CONTRIBUTES ARE 20 SUBSTANTIALLY LESS THAN ITS COSTS. IT WOULD BE A SOLID 21 ECONOMIC DECISION TO CLOSE IT DOWN. 22 IN FACT, MR. REILLY'S EXPERT, MR. WEAVER, LOOKED AT 23 THE SAME QUESTION AND AGREED. HE SAID IT WOULD BE 30 TO 24 $50 MILLION. THE AGENCY OR THE JOA WOULD BE 30 TO $50 MILLION 25 BETTER OFF IF THEY SIMPLY CLOSED THE EXAMINER. JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 30 OPENING STATEMENT \ HALLING 1 THE COURT: COULD THE JOINT OPERATING AGREEMENT DO 2 THAT? 3 MR. HALLING: IT WOULD NEED TO BE AN AMENDMENT TO DO 4 THAT BECAUSE IT'S NOT PROVIDED FOR NOW. 5 THE COURT: AND WOULD THAT AMENDMENT HAVE TO GO 6 BEFORE THE ASSISTANT ATTORNEY GENERAL? SINCE THIS IS A 7 PREEXISTING JOINT OPERATING AGREEMENT, IT DOES NOT FALL UNDER 8 SECTION (B) OF 1803. 9 MR. HALLING: WELL -- 10 THE COURT: ONE PERSON TALKING AT A TIME. 11 IT WOULDN'T -- IT WOULD BE REVIEWED NOT UNDER 12 1803(B) OR IT WOULD BE REVIEWED UNDER 1803(B)? 13 MR. HALLING: IF I UNDERSTAND THE QUESTION, YOUR 14 HONOR, I DON'T BELIEVE IT WOULD BE REVIEWED UNDER EITHER. 15 (CONTINUED ON NEXT PAGE - NOTHING OMITTED.) 16 17 18 19 20 21 22 23 24 25 JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 31 OPENING STATEMENT \ HALLING 1 THE COURT: WOULD IT BE REVIEWED UNDER SECTION 7? 2 MR. HALLING: I BELIEVE SO. IN OTHER WORDS, IT 3 WOULDN'T BE THE LESSER OF THE TWO FAILING COMPANY STANDARDS 4 UNDER SECTION 1803. IT WOULD BE THE CITIZEN PUBLISHING 5 STANDARD. 6 THE COURT: OKAY. 7 MR. HALLING: WHICH, BY THE WAY, IS EXACTLY WHAT 8 PROFESSOR BAXTER SAID IN THE ST. LOUIS MATTER AND WHAT THE 9 DEPARTMENT OF JUSTICE SAID SUBSEQUENTLY IN THE FRANKLIN, 10 PENNSYLVANIA MATTER. YOU LOOK OUTSIDE -- WHEN YOU WANT TO DO A 11 MERGER LIKE WE ARE DOING HERE, YOU LOOK TO THE VIABILITY OF THE 12 JUNIOR PAPER OUTSIDE THE JOA AND, IF IT PASSES THE CITIZEN 13 PUBLISHING TEST FOR A FAILING ENTERPRISE, THEN THE ACQUISITION 14 IS ALL RIGHT. 15 THAT IS EXACTLY WHAT WE ARE DOING HERE, AND THERE IS 16 REALLY NOT A FACTUAL DISPUTE THAT THAT'S A FAILING ENTERPRISE 17 UNDER THAT STANDARD. 18 THE COURT: ALL RIGHT. 19 MR. HALLING: I HAVE JUST ONE OTHER -- 20 THE COURT: ONE MORE. 21 MR. HALLING: IF I COULD JUST FOLLOW UP. 22 THE -- BECAUSE OF THESE LOSSES THAT WERE BEING 23 INCURRED IN '88 TO '93, THE PROBLEM WITH THE EXAMINER AND ITS 24 LACK OF INCREMENTAL DISTRIBUTION, THE PARTIES BEGAN A SERIES OF 25 NEGOTIATIONS. AND THOSE NEGOTIATIONS INCLUDED A PROPOSAL TO JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 32 OPENING STATEMENT \ HALLING 1 SHUT DOWN THE EXAMINER, WHICH MADE PERFECT SENSE. THE MATTERS 2 WENT BACK AND FORTH UNTIL 1998, WHEN IN OCTOBER MR. SIAS WROTE 3 TO HEARST AND SAID, "THIS IS OVER. THESE NEGOTIATIONS ARE 4 OVER." 5 THE COURT: THIS IS WHEN, IN '88? 6 MR. HALLING: IN OCTOBER OF '98. THE NEGOTIATIONS 7 ARE AT AN END. WE CAN'T AGREE. 8 AND HEARST RESPONDED BY A STRATEGY OF TRYING TO GET 9 CHRONICLE BACK TO THE BARGAINING TABLE. YOU WILL HEAR EVIDENCE 10 ABOUT -- ABOUT THAT PROCESS. I BELIEVE, MR. ALIOTO REFERRED 11 YOU TO A LETTER THAT MR. WHITE SIGNED BUT WAS REALLY WRITTEN IN 12 NEW YORK, AS PART OF THIS STRATEGY. 13 AND THAT WAS -- THE CONTEXT OF IT WAS TO GET THE 14 CHRONICLE BACK TO THE BARGAINING TABLE. 15 AND IN THAT RESPECT YOU WILL HEAR FROM MR. BAXTER, 16 THE PRESIDENT OF THE HEARST CORPORATION, WHO IS THE ONE WHO CAN 17 EXPLAIN AND ARTICULATE BEST HEARST'S INTENTIONS. YOU HEARD 18 MR. ALIOTO SAY THERE WOULD BE COMPETITION IN 2005. THERE IS 19 NOT GOING TO BE ANY EVIDENCE THAT THERE IS ANY CREDIBLE PLAN OR 20 THOUGHT ON HEARST'S PART THAT THAT WOULD OCCUR. THEY WERE 21 SIMPLY TRYING TO NEGOTIATE -- 22 THE COURT: WELL, ARE YOU SAYING THAT IF HEARST IS 23 UNABLE TO CLOSE THIS DEAL, HEARST IS NOT GOING TO BE IN THE 24 MARKET AFTER 2005? 25 MR. HALLING: IT MAY BE IN THE MARKET IN ONE WAY OR JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 33 OPENING STATEMENT \ HALLING 1 ANOTHER. IT MAY BE IN THE MARKET ELECTRONICALLY. IT MAY BE IN 2 THE MARKET BY ACQUIRING THE CHRONICLE. 3 THE COURT: IT'S NOT GOING TO BE IN THE NEWSPAPER, I 4 TAKE IT. 5 MR. HALLING: I AM SAYING THE EVIDENCE WILL SHOW 6 THAT IT WOULD BE RUINOUS TO SPEND THE MONEY THAT IT WOULD TAKE 7 TO TAKE A JUNIOR NEWSPAPER WITH A FOUR-TO-ONE CIRCULATION 8 DISADVANTAGE, A METROPOLITAN DAILY, AND TURN THAT AROUND. THE 9 ECONOMICS OF THIS BUSINESS, WHICH YOU WILL HEAR FROM OUR 10 EXPERT, DR. ROSSE, WHO IS A STANFORD ECONOMICS PROFESSOR, ALSO 11 THE PRESIDENT OF THE FREEDOM NEWSPAPER CHAIN -- THAT KIND OF 12 COMPETITION WHEN IT'S THAT FAR OUT OF WACK WILL NOT OCCUR. 13 THE COURT: THEN WHY IS THERE THIS DIFFERENTIAL, IF 14 THAT'S WHAT THE EVIDENCE WILL BE, THAT MR. SIAS SPOKE OF IN HIS 15 DECLARATION BETWEEN WHAT THE CHRONICLE COULD COMMAND SOLD TO A 16 THIRD PARTY IN THE JOINT OPERATING AGREEMENT AND THE PRICE 17 WHICH HEARST IS WILLING TO PAY? 18 I BELIEVE MR. SIAS' TESTIMONY IN HIS DECLARATION WAS 19 THAT IN HIS VIEW THE CHRONICLE COULD COMMAND A PRICE OF 400 TO 20 $500 MILLION IF SOLD TO A THIRD PARTY WITH THE OBLIGATION TO 21 STAY IN THE JOINT OPERATING AGREEMENT UNTIL ITS TERMINATION IN 22 2005. WHEREAS, OF COURSE, THE CHRONICLE IS RECEIVING 23 $660 MILLION IN THIS DEAL WITH HEARST. 24 IF WHAT YOU ARE SAYING IS TRUE, WHY DOESN'T IT PAY A 25 THIRD PARTY TO COME IN AND BUY THE CHRONICLE WITHIN THE JOINT JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 34 OPENING STATEMENT \ HALLING 1 OPERATING AGREEMENT AND WAIT UNTIL 2005 AND THEN TAKE OVER AND 2 BE THE SOLE SURVIVING NEWSPAPER IN SAN FRANCISCO? 3 MR. HALLING: WELL, YOUR HONOR, THERE ARE SEVERAL 4 ASPECTS OF THAT. 5 FIRST OF ALL, HEARST HAS A RIGHT OF FIRST REFUSAL. 6 SO SOMEONE COULD NOT JUST COME IN AND BUY THE CHRONICLE WITHOUT 7 HEARST BEING ABLE TO MATCH IT. 8 BUT YOU HAVE TO UNDERSTAND BOTH -- 9 THE COURT: BUT IF WHAT YOU ARE SAYING IS TRUE, 10 WOULDN'T IT PAY SOMEONE TO COME IN AND MATCH HEARST'S OFFER OR 11 PERHAPS BETTER? 12 MR. HALLING: WELL, YOU ALSO SAW A DECLARATION FROM 13 THE CHRONICLE ON THE PRELIMINARY INJUNCTION SAYING THAT THEY 14 ARE NOT MAKING ANY MONEY NOW. THEY ARE NOT MAKING MONEY IN 15 THIS JOA. SO WHOEVER TAKES ON THIS JOA TO TAKE THEIR POSITION 16 WOULD HAVE TO RUN THE CHRONICLE NEWSROOM, WHICH IS VERY LARGE 17 AND VERY SUBSTANTIAL. IT'S A HIGH-QUALITY, METROPOLITAN DAILY 18 OPERATION. THEY WOULD HAVE TO PAY FOR THAT. AT THE SAME TIME 19 WHEN THEY GET THE NET EXCESS TO SPLIT, THEY ONLY GET HALF OF 20 IT. 21 THE COURT: BUT WHAT I UNDERSTAND YOU TO BE SAYING 22 IS THAT, NONETHELESS, THERE IS A POT OF GOLD AT THE END OF THE 23 RAINBOW, OR AT LEAST AT THE END OF 2005. 24 MR. HALLING: I DIDN'T SAY THAT AT ALL. HEARST -- 25 THE QUESTION IS WHETHER -- JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 35 OPENING STATEMENT \ HALLING 1 THE COURT: BUT YOU SAID THAT THE EXAMINER COULD NOT 2 SURVIVE IN 2005 AS A VIABLE COMPETITOR. THEREFORE, THE 3 CHRONICLE IS GOING TO BE THE SOLE REMAINING METROPOLITAN 4 NEWSPAPER IN THIS MARKET. 5 MR. HALLING: UNLESS HEARST ENGAGES IN IRRATIONAL 6 COMPETITION AND IT SPENDS HUNDREDS OF MILLIONS OF DOLLARS. 7 LET ME READ YOU RIGHT ON THAT POINT WHAT MR. BENNACK 8 SAID IN HIS DEPOSITION WHEN ASKED ESSENTIALLY THAT QUESTION: 9 "Q. FROM MR. ALIOTO: THEN FINALLY DID YOU 10 EVER CONSIDER SPENDING THE 660 MILLION ON 11 REINVIGORATING THE EXAMINER? 12 "A. NO, BECAUSE I DIDN'T THINK IT WOULD BE 13 MONEY WELL SPENT. I THINK IT WOULD BE IN 14 VIOLATION OF MY FIDUCIARY OBLIGATIONS TO DO 15 THAT. 16 "Q. WHY? WHY DO YOU THINK IF YOU PUT 660 17 MILLION INTO IT IT WOULD BE LOST? 18 "A. YOU WOULD HAVE HAD HUGE LOSSES DURING 19 THAT PERIOD OF TIME AND WHETHER YOU WOULD EVER 20 BE ABLE TO RECOVER THAT KIND OF AN INVESTMENT 21 AFTER THAT SORT OF LONG AND DIFFICULT BATTLE, I 22 CAN'T PUT A NUMBER OR EVEN ANSWER THE QUESTION. 23 "Q. IS THERE A NUMBER THAT YOU WOULD -- IF 24 YOU SPENT IT YOU WOULD PREVAIL AGAINST THE 25 SENIOR NEWSPAPER? JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 36 OPENING STATEMENT \ HALLING 1 "A. ALL I CAN TELL YOU IS NO ONE HAS FOUND 2 THAT FORMULA YET. THE ECONOMICS OF NEWSPAPER 3 PUBLISHING IN AMERICA PRETTY MUCH SAY THERE MAY 4 NOT BE AN AMOUNT OF MONEY THAT YOU CAN SPEND TO 5 DO IT. I HAVE NO CONFIDENCE TODAY THAT WE COULD 6 SPEND ENOUGH MONEY TO ESTABLISH THE EXAMINER TO 7 PREVAIL OVER THE CHRONICLE AND COMPETE WITH 8 KNIGHT RIDDER AND SINGLETON AND THE 20 OTHER 9 NEWSPAPERS THAT ARE IN THE REGION. IT'S A BAD 10 BET AND I COULD NOT IN GOOD CONSCIENCE USE MY 11 SHAREHOLDERS' MONEY TO MAKE THAT BET." 12 SO WHEN HE SAYS THE EVIDENCE WILL SHOW THAT HEARST 13 WAS GOING TO ENGAGE IN COMPETITION IN 2005, HE IS TALKING ABOUT 14 A NEGOTIATING POSTURE. WE ARE TALKING ABOUT SENDING A MESSAGE 15 TO THE CHRONICLE THAT HEARST OWNS HALF THE ASSETS. WE ARE NOT 16 GOING AWAY. AND THAT LEADS TO THE NEGOTIATIONS WHICH 17 ULTIMATELY END IN THIS DEAL, WHICH IS THE ONLY RATIONAL 18 ECONOMIC WAY FOR THIS TO PROCEED. IT'S LIKE A BAD MARRIAGE. 19 IT'S TIME TO END IT. IT'S NOT ECONOMIC. IT'S NOT EFFICIENT. 20 THE COURT: THANK YOU, MR. HALLING. 21 MR. -- LET'S HEAR FROM MR. ROSCH FIRST. 22 MR. ROSCH: YOUR HONOR, I AM GOING TO RESERVE. 23 THE COURT: VERY WELL. 24 MR. BALABANIAN? 25 MR. BALABANIAN: MAY IT PLEASE THE COURT. LET ME JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 37 OPENING STATEMENT / BALABANIAN 1 RIGHT AT THE OUTSET ADDRESS TWO MISCONCEPTIONS WHICH I FEAR 2 MR. ALIOTO'S COMMENTS MAY HAVE ENGENDERED. 3 THE COURT: WE WILL SEE ABOUT THAT. 4 MR. BALABANIAN: WHETHER THEY ARE ENGENDERED OR 5 WHETHER I HAVE ADDRESSED IT. WE WILL SEE. 6 THE COURT: UNDOUBTEDLY BOTH. 7 MR. BALABANIAN: YOUR HONOR, THE AGREEMENT UNDER 8 WHICH MY CLIENT IS ACQUIRING THE EXAMINER PROVIDES NO PERVERSE 9 INCENTIVE TO MAKE IT FAIL. QUITE THE CONTRARY. THERE IS A 10 PROVISION THAT MR. ALIOTO DID NOT MENTION IN WHICH MY CLIENTS 11 WOULD KEEP 100 PERCENT OF ALL REVENUES OBTAINED FROM THE PAPER. 12 THIS GIVES A MAXIMUM INCENTIVE TO INCREASE CIRCULATION, TO 13 INCREASE ADVERTISING REVENUES AND TO MAKE A SUCCESS OF IT. 14 AND INDEED, OF COURSE, THERE IS ALSO THE OVERARCHING 15 INCENTIVE THEY HAVE OF EMERGING FROM THIS PROCESS WITH A 16 SUCCESSFUL NEWSPAPER AND NOT A FAILURE, WHICH MR. ALIOTO 17 PREDICTS. SO THE CHARACTERIZATION OF THE CONTRACT AS ONE THAT 18 OFFERS PERVERSE INCENTIVES OF FAILURE IS SIMPLY UPSIDE-DOWN. 19 SECOND, I WANT TO ADDRESS THIS MYTH OF THE MILLION 20 DOLLAR SALARY AND BONUS OF WHICH MR. ALIOTO HAS SUCH MERRIMENT 21 IN THE PRESS. 22 FIRST LET ME SAY THIS IS NOT ANY -- THERE IS NO FREE 23 MONEY HERE. ANY MONEY PAID IN SALARY TO MR. FANG OR ANYONE 24 ELSE COMES OUT OF MONEY THAT IS AVAILABLE TO THE FANGS TO 25 OPERATE THE PAPER. JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 38 OPENING STATEMENT / BALABANIAN 1 BUT, IN ANY EVENT, THIS MILLION DOLLAR FIGURE IS A 2 COMPLETE FICTION. 3 I THINK MR. ALIOTO IS CONFUSING A $500,000 CAP 4 IMPOSED BY HEARST IN THE AGREEMENT AND TOTAL COMPENSATION TO 5 THE FANG FAMILY FOR THE FIGURE THAT IS IN FACT GOING TO BE PAID 6 IN SALARY. NEITHER THE SALARY NOR ANY OTHER PAYMENT TO THE 7 FAMILY WILL APPROACH THAT CAP, AND IT IS, IN ANY EVENT, MONEY 8 THAT WOULD COME OUT OF THEIR OWN BUSINESS. I THINK THIS NOTION 9 IS JUST A DISTRACTION. 10 MR. ALIOTO SAYS THAT THE FANGS' ACQUISITION OF THE 11 EXAMINER WOULD BE A SHAM. HIS POINT SEEMS TO BE THAT DESPITE 12 THEIR GOOD INTENTIONS AND SINCERITY -- WHICH I DID NOT HEAR HIM 13 QUESTION -- INDEED, DESPITE THEIR EXTENSIVE EXPERIENCE IN 14 PUBLISHING, THE FANGS ARE SIMPLY MISTAKEN IN THINKING THAT THEY 15 CAN SUCCESSFULLY OPERATE THE EXAMINER. 16 YOUR HONOR, THERE ARE THREE REASONS WHY MR. -- WHY 17 MR. REILLY AND MR. ALIOTO AND NOT THE FANGS WERE MISTAKEN ABOUT 18 THE REALISM OF THEIR PLANS FOR THE EXAMINER. 19 FIRST IS THEIR TRACK RECORD, THE FANGS' TRACK 20 RECORD, IN REVISING DECLINING FAILED PUBLICATIONS. 21 SECOND IS THE HISTORY OF THE NEGOTIATIONS OF THE 22 PRESENT AGREEMENT, WHICH THE EVIDENCE WILL SHOW WERE VIGOROUSLY 23 AND ENTIRELY AT ARM'S LENGTH. 24 THIRD, YOUR HONOR, ARE THE DETAILED PLANS WHICH 25 MR. FANG AND HIS HIGHLY QUALIFIED ADVISERS HAVE MADE FOR THE JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 39 OPENING STATEMENT / BALABANIAN 1 NEW EXAMINER, PLANS WHICH LED THE DEPARTMENT OF JUSTICE AFTER 2 EXTENSIVE EXAMINATION, WHICH INCLUDED PHYSICAL INSPECTION OF 3 HIS FACILITIES AND INDEED A WHOLE DAY OF GRILLING IN WASHINGTON 4 BY A ROOM FULL OF LAWYERS, ATTORNEYS, ECONOMISTS, AT THE END OF 5 THAT THE DEPARTMENT OF JUSTICE CONCLUDED THAT MR. FANG'S 6 ACQUISITION OF THE EXAMINER WOULD NOT JUST MAINTAIN COMPETITION 7 BUT WOULD BRING OUR CITY COMPETITION IT HAS NOT SEEN IN 35 8 YEARS. 9 THE COURT: BUT ISN'T THAT DIFFERENT FROM WHAT 10 MR. HALLING HAS SAID? 11 MR. BALABANIAN: I DON'T BELIEVE IT IS, YOUR HONOR. 12 THE COURT: HE SAYS THE EXAMINER IN ITS PRESENT FORM 13 CANNOT POSSIBLY SURVIVE. AND WHAT MR. FANG CONTEMPLATES IS A 14 DIFFERENT KIND OF NEWSPAPER. 15 MR. BALABANIAN: I WILL BE ADDRESSING THAT. THERE 16 ARE PROFOUND DIFFERENCES. THERE ARE COST SAVINGS THAT WILL BE 17 ACHIEVED. 18 INTERESTINGLY, YOUR HONOR, MOST OF THE COST SAVINGS 19 WE PROJECT COME FROM TAKING MEASURES WHICH MR. REILLY'S OWN 20 EXPERTS HAVE COUNSELED. IN ADDITION -- AND THIS CANNOT BE 21 OVERLOOKED -- MR. FANG WILL BE RECEIVING A $66 MILLION SUBSIDY 22 IN ADDITION TO TRANSITIONAL SERVICES. 23 MAKE NO MISTAKE ABOUT IT, YOUR HONOR, THERE WOULD BE 24 NO TRANSACTION WITHOUT THAT SUBSIDY. I BELIEVE THAT THAT 25 RECONCILES THE POSITIONS. JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 40 OPENING STATEMENT / BALABANIAN 1 BUT, IN ANY EVENT, THAT IS NOT MY BURDEN HERE TODAY. 2 MY BURDEN IS TO DEMONSTRATE TO THE COURT -- 3 THE COURT: WELL, IF ALL IT TAKES IS TO SAVE THE 4 EXAMINER $66 MILLION, THEN CAN IT REALLY BE CONSIDERED A 5 FAILING NEWSPAPER? 6 MR. BALABANIAN: THAT'S NOT MY TOPIC TO ADDRESS, 7 YOUR HONOR. I AM HERE TO DEMONSTRATE, I HOPE TO THE COURT'S 8 SATISFACTION, THAT THE FANGS HAVE THE MEANS AND THE ABILITY TO 9 ACHIEVE JUST WHAT THE JUSTICE DEPARTMENT SAID THAT THEY COULD, 10 AND THAT'S REALLY ALL WE NEED TO SHOW. 11 IN FACT, YOUR HONOR, WITH RESPECT TO -- I DON'T 12 THINK IT'S INCUMBENT UPON US TO SHOW THAT THE ACQUISITION OF 13 THE EXAMINER BY THE FANGS WILL ENHANCE OR CREATE COMPETITION. 14 THE CHARTER OF THIS COURT UNDER THE APPLICABLE LAWS 15 IS TO PREVENT TRANSACTIONS WHICH THREATEN TO CREATE A MONOPOLY, 16 NOT TO MANDATE OR TRY TO FASHION TRANSACTIONS INTO -- 17 THE COURT: BUT ISN'T THE TROUBLE WITH YOUR POSITION 18 SIMPLY THIS? IF THE DIFFERENCE BETWEEN A FAILING NEWSPAPER AND 19 A NEWSPAPER THAT IS VIABLE IS $66 MILLION, THEN THE EXAMINER 20 CANNOT BE CONSIDERED A FAILING NEWSPAPER AND EITHER UNDER 21 PROFESSOR BAXTER'S ST. LOUIS TEST OR UNDER PROVISIONAL 22 SECTION 7 ANALYSIS THIS TRANSACTION WON'T PAST MUSTER. 23 MR. BALABANIAN: WELL, YOUR HONOR, I DON'T BELIEVE 24 THAT THE ONLY WAY WHICH IT CAN PASS MUSTER IS IF IT'S 25 DEMONSTRATED THAT THE NEWSPAPER IS A FAILING ONE. IF THE NET JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 41 OPENING STATEMENT / BALABANIAN 1 EFFECT OF THESE TRANSACTIONS IS TO ENHANCE -- 2 THE COURT: THAT IS DIFFERENT FROM MR. HALLING'S 3 POSITION. 4 MR. BALABANIAN: I AM TAKING NO POSITION ON THAT. 5 HE IS FAR MORE FAMILIAR WITH THE ECONOMICS AND THE PROSPECTS OF 6 THE EXAMINER -- 7 THE COURT: BUT HASN'T YOUR ENTRANCE OR THE ENTRANCE 8 OF YOUR CLIENTS INTO THIS TRANSACTION THROWN A MONKEY WRENCH, 9 AS IT WERE, INTO THE LEGAL POSITION THAT HEARST HAS TO 10 MAINTAIN? 11 MR. BALABANIAN: I THINK MR. HALLING HAS TO SPEAK 12 FOR THE HEARST LEGAL POSITION. 13 MY POSITION IS A VERY SIMPLE ONE: WE ARE DEAD 14 SERIOUS ABOUT MAKING THIS PAPER WORK. WE HAVE THE MEANS TO DO 15 SO. WE HAVE A PLAN, WHICH I WILL OUTLINE TO THE COURT, AND WE 16 KNOW THAT IT WILL WORK. 17 I THINK THAT IF THE NET EFFECT OF THESE TRANSACTIONS 18 IS TO ENHANCE COMPETITION OR EVEN TO MAINTAIN IT -- BECAUSE, AS 19 I SAY, I THINK OUR ONLY BURDEN IN THIS CASE IS TO DEMONSTRATE 20 TO THE COURT'S SATISFACTION THAT THERE WILL NOT -- THAT WHEN 21 ALL IS SAID AND DONE, A MONOPOLY WILL NOT HAVE BEEN CREATED IN 22 OUR CITY. 23 THE COURT: LET'S LOOK AT EDITORIAL COMPETITION. 24 THE PRODUCT WHICH THE FANGS INTEND TO PUT OUT IS NOT, ACCORDING 25 TO MR. HALLING AND, I GATHER, THE EVIDENCE WILL CONFIRM, A JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 42 OPENING STATEMENT / BALABANIAN 1 METROPOLITAN DAILY NEWSPAPER OF GENERAL CIRCULATION. IT'S 2 GOING TO BE A NICHE PRODUCT. 3 MR. BALABANIAN: WELL -- 4 THE COURT: NOW, DOES THAT ENHANCE EDITORIAL 5 COMPETITION OF THE KIND CONTEMPLATED BY THE NEWSPAPER 6 PRESERVATION ACT? WASN'T THE NOTION OF THE NEWSPAPER 7 PRESERVATION ACT AND, THEREFORE, THE APPROVAL OF THE JOINT 8 OPERATING AGREEMENT, THAT WHILE THE BUSINESS INTERESTS OF THESE 9 TWO DAILY METROPOLITAN PAPERS WOULD BE COMBINED, AT LEAST THERE 10 WOULD BE AN EDITORIAL VOICE THAT COMPETES IN THAT MARKET? 11 BUT THAT'S NOT GOING TO BE THE SITUATION WITH THE 12 NEW EXAMINER OR THE FANG EXAMINER. 13 MR. BALABANIAN: IT DEFINITELY WILL, YOUR HONOR. 14 THE COURT: HOW? 15 MR. BALABANIAN: THE ECONOMIES THAT ARE 16 CONTEMPLATED -- AND I WANT TO REVIEW THEM WITH THE COURT AND 17 THE EVIDENCE WILL CONFIRM THEM -- RELATE TO DROPPING CERTAIN 18 CIRCULATION IN OUTLYING COMMUNITIES WHICH IS UNECONOMICAL AND 19 FOCUSING THE OPERATIONS ON SAN FRANCISCO, SAN MATEO COUNTY AND 20 POSSIBLY MARIN. 21 I WILL NOTE THAT THESE ARE PRECISELY THE MEASURES 22 WHICH PLAINTIFF'S EXPERTS HAVE ADVOCATED AS NECESSARY TO MAKE 23 THE PAPER -- 24 THE COURT: BUT IF YOU ARE KNOCKING OUT COMPETITION 25 IN SOME AREAS, YOU HAVE GOT TO ENHANCE COMPETITION IN OTHER JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 43 OPENING STATEMENT / BALABANIAN 1 AREAS TO OVERCOME WHAT YOU'RE LOSING. 2 MR. BALABANIAN: AND THAT'S EXACTLY WHAT WILL OCCUR. 3 MR. FANG CONTEMPLATES AND EXPECTS THAT THE EFFECT OF THE 4 IMPROVING COVERAGE IN SAN FRANCISCO AND MOVING THE PAPER TO THE 5 MORNING SLOT WILL INDEED RESULT IN NET INCREASE IN READERSHIP. 6 THE PAPER WILL BE A FULL COVERAGE PAPER WITH 7 NATIONAL/INTERNATIONAL NEWS. IT WILL FOCUS, HOWEVER, ON THE 8 BAY AREA. IT WILL BE -- WE WILL GIVE THE COURT EXAMPLES OF 9 SUCH PAPERS AS THEY EXIST IN OTHER CITIES. IT WILL BE A 10 GENUINE SECOND VOICE IN OUR CITY AND NOT ONLY PROVIDE ECONOMIC 11 COMPETITION, WHICH, AS THE JUSTICE DEPARTMENT STATED HAS NOT 12 EXISTED -- 13 THE COURT: WELL, IF ALL IT REQUIRES TO ACHIEVE 14 THAT, MR. BALABANIAN, IS $66 MILLION, IN THIS DAY AND AGE I 15 SHOULD THINK THERE WOULD BE LOTS OF PEOPLE COMING FORWARD WITH 16 THE MONEY IN ORDER TO DO THAT. 17 MR. BALABANIAN: I GATHER, YOUR HONOR, THERE WERE 18 NOT. I UNDERSTAND -- AND I WAS NOT PRIVY TO WHAT WAS GOING ON 19 ON THE OTHER SIDE OF THE SCREEN. BUT I UNDERSTAND AFTER 20 LENGTHY ATTEMPT TO FIND BUYERS, THERE WERE VERY, VERY FEW. 21 THESE TERMS WERE NEGOTIATED AT ARM'S LENGTH. THEY WOULD HAVE 22 OBVIOUSLY BEEN HAPPY TO HAVE MORE MONEY. THE AMOUNT THAT WAS 23 OBTAINED IS THE AMOUNT THAT MR. FANG BELIEVES THAT WILL ENABLE 24 HIM TO SUCCEED WITH A PRODUCT THAT COMPETES DIRECTLY IN SAN 25 FRANCISCO, A BETTER PAPER, A PAPER -- THE COURT ASKED JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 44 OPENING STATEMENT / BALABANIAN 1 MR. HALLING WHETHER THE NEW EXAMINER WILL COMPETE. THE ANSWER 2 TO THAT IS ABSOLUTELY. IT WILL COMPETE IN SAN FRANCISCO FOR 3 READERS. 4 THE COURT: BUT ISN'T IT A FACT THAT IT WILL NOT 5 COMPETE IN THE SAME MARKET THAT ITS COMPETITION IS NOT THE 6 CHRONICLE, IS NOT THE EXAMINER AS PRESENTLY CONSTITUTED, NOT 7 THE SAN JOSE MERCURY BUT ARE THESE ALTERNATIVE NEWSPAPERS? 8 MR. BALABANIAN: ABSOLUTELY NOT, YOUR HONOR. 9 THE COURT: THESE FREE DISTRIBUTION NEWSPAPERS, AND 10 THAT'S A DIFFERENT MARKET. 11 MR. BALABANIAN: IT WILL NOT BE A FREE DISTRIBUTION 12 NEWSPAPER. THE INDEPENDENTS WILL CONTINUE UNCHANGED IN THE 13 FREE DISTRIBUTION MARKET. THE EXAMINER IS A NEW PAPER. IT 14 WILL COMPETE HEAD TO HEAD WITH THE CHRONICLE. IT'S A PAID 15 SUBSCRIPTION NEWSPAPER, THE HOME DELIVERY. THERE WILL BE RACK 16 SALES. THEY WILL COMPETE FOR ADVERTISERS. THEY WILL COMPETE 17 FOR CUSTOMERS. 18 THE ONLY CHANGE IN COVERAGE, AS I SAY, IS A 19 GEOGRAPHIC ADJUSTMENT WHICH PLAINTIFF ITSELF ACKNOWLEDGES AND 20 INDEED ADVOCATES AS BEING DESIRABLE AS A WAY OF MAKING THE 21 PAPER MORE FOCUSED. 22 THE COURT: WELL, IF THAT'S ALL THERE IS TO IT, WHY 23 CAN'T HEARST DO THAT IN THE CURRENT OPERATION AND WHY WOULDN'T 24 HEARST HAVE IN FACT DONE IT SOME TIME AGO? 25 MR. BALABANIAN: I CAN'T SPEAK -- JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 45 OPENING STATEMENT / BALABANIAN 1 THE COURT: WHY WOULDN'T IT BE IN THE INTERESTS OF 2 BOTH HEARST AND THE CHRONICLE TO MAKE EXACTLY THOSE SAME 3 ADJUSTMENTS? 4 MR. BALABANIAN: YOUR HONOR, ALL I CAN TELL THE 5 COURT IS THAT MR. FANG CAN MAKE THESE THINGS HAPPEN. THERE ARE 6 REASONS WHY PERHAPS THEY CANNOT OCCUR AT HEARST. MR. FANG 7 OPERATES A VERY LEAN ORGANIZATION. HE HAS THE BENEFIT OF 8 EXISTING PUBLICATIONS, AND THERE ARE VERY SUBSTANTIAL SYNERGIES 9 AND ECONOMICS THAT WE WILL BE DESCRIBING TO THE COURT THAT HE 10 CAN ACHIEVE BY COMBINING PRODUCTION, CIRCULATION AND 11 DISTRIBUTION -- NOT EDITORIAL. I WANT TO EMPHASIZE, YOUR 12 HONOR, THAT THIS WILL BE AN ENTIRELY NEW PRODUCT. ANY NOTION 13 THAT THIS IS SIMPLY GOING TO BE A REINCARNATION OF AN 14 INDEPENDENT OR ANOTHER FREE NEWSPAPER IS COMPLETELY MISTAKEN. 15 INDEED, THE DREAM OF THE FANGS HAS LONG BEEN TO OWN 16 A DAILY NEWSPAPER SO THAT THEY CAN OFFER THE KIND OF 17 COVERAGE-BREAKING NEWS, THE KIND OF COVERAGE OF SPORTS, 18 CULTURAL EVENTS WHICH ONLY A DAILY NEWSPAPER CAN OFFER. IT'S 19 SIMPLY NOT POSSIBLE FOR A PAPER WHICH PUBLISHES ON THE CYCLE OF 20 THE FANGS' PAPER, THE CURRENT PAPER, TO COVER THOSE THINGS. WE 21 ARE TALKING ABOUT A COMPLETELY DIFFERENT NEWSPAPER. WE ARE 22 TALKING ABOUT A PAPER WHICH WE THINK CAN SUCCEED BY MOVING TO 23 THE MORNING SLOT, BY USING NEW TECHNOLOGY, BY ACHIEVING THE 24 SYNERGIES WITH THE FANGS' CURRENT PUBLICATIONS AND, MOST 25 IMPORTANTLY, OR AT LEAST AS IMPORTANTLY, BY TAKING ADVANTAGE OF JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 46 OPENING STATEMENT / BALABANIAN 1 THIS TRANSITIONAL COST REIMBURSEMENT. 2 I THINK, YOUR HONOR, THAT ALL WE NEED TO DEMONSTRATE 3 IS AT THE END OF THE DAY, WHEN THESE TRANSACTIONS HAVE TAKEN 4 PLACE, NOT ONLY WILL THERE -- THERE WILL BE NO DIMINUTION IN 5 COMPETITION. I DON'T THINK IT'S INCUMBENT UPON US TO SHOW WHAT 6 THE JUSTICE DEPARTMENT FOUND, THAT IN FACT THERE WILL BE AN 7 ENHANCEMENT OF COMPETITION. BUT INSTEAD THE JOA WITH ITS FIXED 8 PRICES AND SET RATES, WE WILL HAVE TRUE ECONOMIC COMPETITION IN 9 THE ADVERTISER MARKET. 10 I THINK ALSO I CAN SAY WITH SOME CONFIDENCE, YOUR 11 HONOR -- I SUSPECT THE COURT IS FAMILIAR WITH THE MUSCULAR 12 JOURNALISM AT WHICH THE FANGS HAVE PRACTICED IN THE PAST -- 13 THERE WILL BE NO DIMINUTION OF EDITORIAL COMPETITION IN THIS 14 CITY. 15 WHAT WE OFFER TO THE CITY IS THE BRIGHT PROSPECT OF 16 THE NEW, EXCITING, DAILY NEWSPAPER GOING HEAD TO HEAD WITH THE 17 CHRONICLE FOR ITS CUSTOMERS, FOR ADVERTISERS, GOING HEAD TO 18 HEAD WITH THE CHRONICLE IN IT COVERAGE OF LOCAL NEWS, SPORTS, 19 CULTURAL EVENTS -- THE FULL RANGE OF SUBJECTS THAT ARE OF 20 INTEREST TO THE PEOPLE OF SAN FRANCISCO WHILE NOT FOR GOING 21 NATIONAL AND INTERNATIONAL COVERAGE, WHICH, AS IS EXPECTED, 22 WILL BE HANDLED IN PART BY TAKING ADVANTAGE OF SOME OF THE NEW 23 TECHNOLOGIES WHICH ARE AVAILABLE. 24 I WANT TO DISPEL AS CLEARLY AS I CAN FROM THE 25 COURT'S MIND ANY NOTION THAT THIS IS A NICHE PRODUCT -- THAT JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 47 OPENING STATEMENT / BALABANIAN 1 THE FANGS SINCERELY INTEND -- AND I DID NOT HEAR THEIR 2 SINCERELY QUESTIONED IN MR. ALIOTO'S PRESENTATION, ONLY THEIR 3 JUDGMENT IN BELIEVING THAT IN FACT THEY CAN MAKE IT WORK. 4 YOUR HONOR, THE FANGS TOOK THE SAN FRANCISCO 5 INDEPENDENT, WHICH HAD A CIRCULATION OF 40,000 -- IT NOW HAS A 6 CIRCULATION TEN TIMES THAT. THEY TOOK A GROUP OF PENINSULA 7 PAPERS THAT HAD FAILED AND MADE THEM SUCCESSES. 8 THEY HAVE SUCCEEDED WHERE MANY HAVE FAILED. ALL 9 THEY ASK FROM THIS COURT IS AN OPPORTUNITY TO MAKE A SUCCESS OF 10 THE EXAMINER, TO BRING THEIR ENERGY, THEIR IMAGINATION, TO -- 11 TO FRUITION FOR WHICH THEY HAVE LONG DREAMED, OF OWNING A DAILY 12 NEWSPAPER WHICH CAN ACCOMPLISH THINGS THAT THEY CANNOT POSSIBLY 13 ACCOMPLISH IN THEIR EXISTING -- WITH THEIR EXISTING PAPER. 14 THAT PAPER WILL BE CONTINUED, AS I SAY. IT WILL NOT DISAPPEAR. 15 THEY HAVE BEEN -- THEIR PLANS HAVE BEEN EXTENSIVELY SCRUTINIZED 16 IN WAYS WHICH I SUSPECT EVEN THIS TRIAL WILL NOT PERMIT BY THE 17 DEPARTMENT OF JUSTICE, WHICH CONCLUDED, AS THE COURT IS WELL 18 AWARE, THAT THE COMBINATION OF THESE TRANSACTIONS IS NOT ONLY 19 NOT NON-COMPETITIVE, IT IS PRO-COMPETITIVE AND WILL BRING OUR 20 CITY COMPETITION IT HAS NOT YET ENJOYED. 21 YOUR HONOR, WITH ALL RESPECT WE SIMPLY ASK THE COURT 22 TO PRESERVE THE BRIGHT PROSPECT OF A NEW, FULLY COMPETITIVE, 23 DAILY NEWSPAPER IN SAN FRANCISCO WHICH DOES NOT NOW EXIST. AND 24 WE RESPECTFULLY ASK IT TO RESIST THE INVITATION TO ENLIST ITS 25 PROCESSES IN WHAT WE BELIEVE IS THE SHABBY CAUSE FOR WHICH THIS JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 48 OPENING STATEMENT / BALABANIAN 1 ACTION IS BEING BROUGHT. 2 THANK YOU, YOUR HONOR. 3 THE COURT: VERY WELL. THANK YOU, MR. BALABANIAN. 4 COUNSEL, WE ARE READY FOR THE FIRST WITNESS. 5 WE HAVE BEEN GOING, ALTHOUGH NOT IN COURT SESSION, 6 FOR QUITE SOME TIME WITH SETTLEMENT DISCUSSIONS BEFORE WE BEGAN 7 IN COURT. I WOULD BE INCLINED, MR. ALIOTO, TO TAKE OUR LUNCH 8 BREAK NOW TO GIVE YOU A CHANCE TO CATCH YOUR BREATH AND 9 ORGANIZE YOUR FIRST WITNESS AND THEN START YOUR FIRST WITNESS 10 AFTER LUNCH. BUT I WILL BE GUIDED BY YOUR AVAILABILITY AND 11 THAT -- THAT OF YOUR WITNESS. 12 MR. ALIOTO: THAT'S FINE, YOUR HONOR. 13 THE COURT: ALL RIGHT. 14 MR. BALABANIAN: YOUR HONOR, WE DO HAVE A FEW 15 MOTIONS THAT I BELIEVE ARE PENDING. I DON'T KNOW WHAT IS THE 16 COURT'S WISH AS TO WHEN TO HEAR THEM. 17 THE COURT: WELL, LET'S SEE, YOU HAVE, I THINK, TWO 18 MOTIONS IN LIMINE, IS IT? 19 MR. BALABANIAN: YES, YOUR HONOR. 20 MR. ROSCH: YES, YOUR HONOR. THIS IS TOM ROSCH. 21 AND I DID WANT TO LET THE COURT KNOW THAT THERE ARE GOING TO BE 22 SEVERAL OTHER OBJECTIONS TO EVIDENCE. ONE OF THEM WILL BE TO 23 DR. COMANOR'S TESTIMONY WITH RESPECT TO THE LAW. HE IS AN 24 ECONOMIST. 25 THE COURT: WHO IS THE FIRST WITNESS GOING TO BE? JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 49 1 MR. ALIOTO: MR. WHITE, YOUR HONOR. AND THEN AFTER 2 MR. WHITE, MR. SIAS. MR. -- PROFESSOR COMANOR WILL NOT BE ON 3 UNTIL WEDNESDAY. 4 THE COURT: WHY DON'T WE TAKE THIS UP AT THE END OF 5 THE DAY? WE HAVE MR. SIAS, MR. WHITE. 6 MR. ALIOTO: AND THEN MR. ASHER. 7 THE COURT: AND THEN MR. ASHER. AND THEN CAN WE NOT 8 TAKE THIS UP LATER? 9 MR. ROSCH: OF COURSE, YOUR HONOR. I JUST WANTED IN 10 ACCORDANCE WITH YOUR RULES TO LET YOU KNOW THAT WE ARE GOING TO 11 BE -- IN FACT, WE WILL BE LODGING AN IN LIMINE MOTION WITH 12 RESPECT TO THIS FIRST THING TOMORROW. AND WE WILL BE PROBABLY 13 FILING AT SOME POINT A MOTION TO STRIKE PARTS OF DR. COMANOR'S 14 TESTIMONY ON DAUBERT GROUNDS, AS WELL. 15 THE COURT: ALL RIGHT. 16 MR. ROSCH: BUT I JUST WANTED TO LET THE COURT KNOW 17 THAT THESE WERE COMING DOWN THE PIKE. 18 THE COURT: VERY WELL. 19 MR. ROSCH: THANK YOU. 20 THE COURT: I APPRECIATE THAT. 21 BUT WE HAVE THESE WITNESSES SUCH AS MR. ASHER AND 22 MR. SIAS AND -- 23 MR. ALIOTO: MR. WHITE. 24 THE COURT: MR. WHITE. 25 MR. ALIOTO: YES, SIR. JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 50 1 THE COURT: ALL OF WHOM HAVE MANY OTHER 2 RESPONSIBILITIES THAN SIMPLY SITTING IN THIS COURTROOM. AND SO 3 WE WANT TO FACILITATE THE PRESENTATION OF TESTIMONY BY THOSE 4 WITNESSES. 5 BUT IF IT IS MORE CONVENIENT TO TAKE OUR BREAK NOW 6 RATHER THAN AFTER THE FIRST WITNESS, THAT MIGHT BE THE MOST 7 EFFICIENT WAY TO PROCEED. 8 MR. ALIOTO: THAT'S FINE, YOUR HONOR. 9 THE COURT: LET'S RESUME, THEN, COUNSEL, AT 1:15 OR 10 1:30? WHAT'S YOUR PLEASURE? 11 MR. ALIOTO: WHATEVER PLEASES YOUR HONOR. 12 THE COURT: WELL, ALL RIGHT. WHY DON'T WE -- WHY 13 DON'T WE RESUME AT 1:30 AND THEN YOU CAN HAVE MR. WHITE AS YOUR 14 FIRST WITNESS. 15 MR. ALIOTO: YES, SIR. 16 THE COURT: ALL RIGHT. 17 (LUNCH RECESS TAKEN AT 12:10 P.M.) 18 19 20 21 22 23 24 25 JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 51 1 AFTERNOON SESSION 1:35 P.M. 2 3 THE COURT: VERY WELL, MR. ALIOTO, CALL YOUR FIRST 4 WITNESS. 5 MR. ALIOTO: IF IT PLEASE THE COURT, BEFORE WE CALL 6 A WITNESS, WE WOULD REQUEST THAT WE PREPARED A DOCUMENT THAT 7 HAS A LIST OF THE DIFFERENT EXHIBITS THAT AT LEAST REILLY AND 8 THE CHRONICLE AND HEARST HAVE AGREED TO, AND THEN WE'LL SUBMIT 9 IT TO EXIN, AND THEN THEY CAN TAKE A LOOK AND SEE IF THERE'S 10 ANY PROBLEM WITH THESE EXHIBITS. AND WE WOULD AGREE THAT ALL 11 OF THESE EXHIBITS WOULD BE ADMISSIBLE INTO EVIDENCE. 12 THE COURT: ALL RIGHT. DO YOU HAVE SOMETHING FOR ME 13 OR IS THIS SOMETHING YOU NEED TO EXCHANGE WITH THE OTHER SIDE? 14 MR. ALIOTO: WE WANT TO FILE IT ACTUALLY. 15 MR. HALLING: YOUR HONOR, WHAT WE HAVE IS A COURT 16 EXHIBIT REFLECTING AGREEMENT BETWEEN THE PLAINTIFF AND HEARST 17 AND CHRONICLE AND LARGELY AGREEMENT FROM MR. BALABANIAN. IT'S 18 OVER A HUNDRED EXHIBITS THAT CAN BE RECEIVED IN EVIDENCE. 19 THERE ARE ONLY A FEW I BELIEVE THAT THERE'S ANY QUESTIONS 20 ABOUT. PLAINTIFF AND HEARST AND CHRONICLE AGREE THAT ALL OF 21 THESE CAN BE RECEIVED. 22 WE'D LIKE TO MAKE IT COURT'S EXHIBIT 1, OTHERWISE WE 23 HAVE TO READ A HUNDRED SOME EXHIBITS INTO THE RECORD. 24 THE COURT: MAY I SEE WHAT YOU'RE LOOKING AT? 25 MR. NEVINS: YOUR HONOR, THIS IS TOM NEVINS. JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 52 1 THERE'S ALSO A SECOND LETTER WHERE WE REACHED A FURTHER 2 AGREEMENT BETWEEN THE PLAINTIFF AND HEARST. 3 THE COURT: I SEE. YOU SIMPLY WANT THE RECORD TO 4 NOTE THAT THE EXHIBITS THAT ARE DENOTED IN ATTACHMENT A AND 5 MR. NEVIN'S APRIL 28TH LETTER TO MR. SHULMAN ARE ENTERED BY 6 STIPULATION; CORRECT? 7 MR. NEVINS: THAT'S CORRECT, YOUR HONOR. 8 THE COURT: AND, IN ADDITION, THE LETTER SAYS FIVE 9 EXHIBITS NOTED IN SHULMAN'S APRIL 30 LETTER TO NEVINS ARE ALSO 10 ADMITTED BY STIPULATION; CORRECT? 11 MR. NEVINS: THAT'S CORRECT, YOUR HONOR. 12 THE COURT: FIVE OR -- 13 MR. SHULMAN: THERE'S ONE YOU DIDN'T AGREE TO. 14 THE COURT: I BELIEVE THERE ARE FIVE; ARE THERE NOT? 15 MR. NEVINS: EXHIBIT P-32 IS NOT AGREED TO. THE 16 OTHER ONES LISTED ON THAT SECOND LETTER ARE STIPULATED TO, YOUR 17 HONOR. 18 THE COURT: ALL RIGHT. SO THAT WILL BE P-70, P-71 19 AND P-79, P-80 AND P-86 ARE ADMITTED BY STIPULATION; CORRECT? 20 MR. SHULMAN: YES, YOUR HONOR. 21 THE COURT: BUT NOT P-32. 22 MR. NEVINS: RIGHT. 23 (PLAINTIFF'S EXHIBITS 70, 71, 79, 80, 24 86 RECEIVED IN EVIDENCE) 25 /// JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 53 1 MR. HOCKETT: YOUR HONOR, CHRIS HOCKETT FOR 2 INTERVENOR AND DEFENDANT EXIN. 3 THAT'S TRUE AS BETWEEN THE HEARST AND PLAINTIFF. WE 4 HAVE HAD THE CHANCE TO REVIEW THE SAME LIST AND WE WILL 5 STIPULATE TO THE ADMISSIBILITY OF ALL THE PROPOSED EXHIBITS ON 6 THE LIST WITH THE EXCEPTION OF EXHIBITS 107 THROUGH 109, WHICH 7 PERTAIN TO A SAN MATEO COUNTY RENT DISPUTE THAT HAS NOTHING TO 8 DO WITH THIS ACTION, AND -- 9 THE COURT: THAT'S P-107? 10 MR. HOCKETT: P-107 THROUGH 109. 11 THE COURT: ALL RIGHT. 12 MR. HOCKETT: AND THEN P-101 THROUGH 105 WE WOULD 13 STIPULATE TO THE ADMISSIBILITY SUBJECT TO OUR MOTION IN LIMINE 14 WHICH GOES TO THE CONFIDENTIALITY OF SOME OF THE BUSINESS 15 INFORMATION CONTAINED IN THOSE DOCUMENTS. I DON'T BELIEVE THAT 16 ANY OF THOSE DOCUMENTS, THAT IS 101 TO 105, RELATE AT ALL TO 17 MR. WHITE'S TESTIMONY OR, FOR THAT MATTER, ANY OTHER WITNESS 18 SCHEDULED FOR TODAY. SO WE CAN RESERVE, AS THE COURT PROPOSED 19 THE ARGUMENT ON THE MOTION IN LIMINE, UNTIL LATER TODAY. 20 THE COURT: VERY WELL. THANK YOU, MR. HOCKETT. 21 MR. HUSTON: YOUR HONOR, PETER HUSTON ON BEHALF OF 22 THE CHRONICLE. 23 WE ARE ABLE TO STIPULATE TO A VAST NUMBER OF THE 24 EXHIBITS ON THIS LIST. THERE ARE A FEW WITH WHICH WE'RE GOING 25 TO RESERVE RELEVANCE OBJECTIONS TO THERE ARE ALONG THE LINES OF JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 54 1 WHAT MR. ROSCH BROUGHT UP BEFORE THE BREAK. 2 IT'S MY UNDERSTANDING THAT PLAINTIFF'S COUNSEL HAVE 3 STIPULATED TO THE ADMISSIBILITY OF ALL OF THE CHRONICLE'S 4 EXHIBITS. 5 MR. SHULMAN: CORRECT. 6 MR. HOCKETT: AND WHILE WE'RE AT IT, YOUR HONOR, THE 7 PLAINTIFF HAS STIPULATED TO ALL OF INTERVENOR'S EXHIBITS EXCEPT 8 THOSE NUMBERED 84, 111, 133, 134 AND 135. 9 MR. SHULMAN: THAT'S CORRECT. 10 (PAUSE IN PROCEEDINGS.) 11 THE COURT: VERY WELL. 12 MR. HOCKETT: THANK YOU, YOUR HONOR. 13 THE COURT: NOW, READY WITH THE FIRST WITNESS, 14 MR. ALIOTO? 15 MR. ALIOTO: I AM, YOUR HONOR. THANK YOU. 16 THE COURT: VERY WELL. PLEASE CALL YOUR FIRST 17 WITNESS. 18 MR. ALIOTO: MAY IT PLEASE THE COURT, THE PLAINTIFFS 19 WOULD CALL TO THE STAND MR. TIMOTHY WHITE. 20 THE CLERK: PLEASE RAISE YOUR RIGHT HAND TO BE 21 SWORN. 22 TIMOTHY O. WHITE, 23 CALLED AS A WITNESS FOR THE PLAINTIFF, HAVING BEEN DULY SWORN, 24 TESTIFIED AS FOLLOWS: 25 THE CLERK: THANK YOU. PLEASE BE SEATED. JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 55 WHITE - DIRECT / ALIOTO 1 PLEASE STATE YOUR FULL NAME AND SPELL YOUR LAST FOR 2 THE RECORD. 3 THE WITNESS: TIMOTHY, MIDDLE INITIAL O, LAST NAME 4 WHITE, W-H-I-T-E. 5 DIRECT EXAMINATION 6 BY MR. ALIOTO: 7 Q. YOU ARE THE EDITOR AND THE PUBLISHER OF THE SAN FRANCISCO 8 EXAMINER? 9 A. CORRECT. 10 Q. AND YOU HAVE BEEN SINCE JANUARY OF 1999? 11 A. CORRECT. 12 Q. PRIOR TO THAT TIME, YOU SERVED, AS I UNDERSTAND IT, AS 13 PUBLISHER OF THE HEARST PAPER IN ALBANY, NEW YORK? 14 A. THAT'S RIGHT. 15 Q. AND THAT WAS THE TIMES UNION? 16 A. YES. 17 Q. WHEN YOU CAME TO SAN FRANCISCO TO SERVE AS THE PUBLISHER 18 AND EDITOR OF THE SAN FRANCISCO EXAMINER, WHO WAS IT THAT 19 OFFERED YOU THAT JOB? 20 A. GEORGE IRISH. 21 Q. AT THE TIME THAT YOU CAME HERE, DID YOU FAMILIARIZE 22 YOURSELF WITH WHAT'S BEEN DESCRIBED AS THE JOINT OPERATING 23 AGREEMENT BETWEEN THE TWO NEWSPAPERS? 24 A. I READ THAT ONCE ON THE WAY OUT HERE, YES. 25 Q. WHEN YOU SAY "ON THE WAY OUT HERE," OUT FROM NEW YORK? JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 56 WHITE - DIRECT / ALIOTO 1 A. YES. 2 Q. THE PAPER THAT YOU WERE A PUBLISHER OF IN ALBANY, THAT WAS 3 NOT A JOINT OPERATING ARRANGEMENT OR AGREEMENT TYPE PAPER; IS 4 THAT RIGHT? 5 A. THAT'S ACCURATE. 6 Q. ALL RIGHT. LET ME HAND YOU WHAT IS NOW IN EVIDENCE BY 7 AGREEMENT AS EXHIBIT 1. EXHIBIT 1 IS THE JOINT OPERATING 8 AGREEMENT BETWEEN THE CHRONICLE PUBLISHING COMPANY AND THE THEN 9 NAMED HEARST PUBLISHING COMPANY. IT HAS A DATE OF OCTOBER 23, 10 1964, AND IT HAS ON PAGE 48 AN EFFECTIVE DATE OF JANUARY 4, 11 1965. 12 MR. ALIOTO: MAY I APPROACH THE WITNESS, YOUR HONOR? 13 THE COURT: YES, YOU MAY. 14 BY MR. ALIOTO: 15 Q. IS THAT A COPY OF THE JOINT OPERATING AGREEMENT THAT YOU 16 FAMILIARIZED YOURSELF WITH WHEN YOU WERE COMING OUT FROM NEW 17 YORK? 18 A. (WITNESS EXAMINES DOCUMENT.) THERE'S MORE HERE THAN WHAT 19 I FAMILIARIZED MYSELF WITH. 20 Q. WHAT PORTIONS DID YOU FAMILIARIZE YOURSELF WITH? UP TO 21 PAGE -- UP TO JUST THE FIRST PART? 22 A. YEAH, THE FIRST PART. 23 Q. UP TO PAGE 50? 24 A. THAT'S ACCURATE. WELL, LET'S SEE... YES, UP TO PAGE 50. 25 Q. ALL RIGHT. NOW, WAS IT YOUR UNDERSTANDING UNDER THIS JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 57 WHITE - DIRECT / ALIOTO 1 AGREEMENT -- WAS IT YOUR UNDERSTANDING UNDER THIS AGREEMENT 2 THAT BOTH THE CHRONICLE AND THE EXAMINER HAD THE POWER AND THE 3 RESPONSIBILITY TO SET THE RATES FOR ADVERTISING AND 4 CIRCULATION? 5 A. I KNOW THAT'S WHAT THE LANGUAGE SAID. I HAD BEEN TOLD 6 THAT IN PRACTICE THE AGENCY, SINCE THE OVERWHELMING -- 7 VIRTUALLY ALL OF THE ADVERTISING SALES WERE IN COMBO, IN 8 COMBINATION WITH THE TWO PAPERS, THAT BASICALLY THE AGENCY 9 PROPOSED RATES AND THE TWO PRINCIPALS APPROVED. 10 Q. WHO TOLD YOU THAT? 11 A. GEORGE IRISH. 12 Q. AND MR. IRISH IS IN CHARGE OF THE NEWSPAPER DIVISION OF 13 THE HEARST CORPORATION IN NEW YORK; IS THAT RIGHT? 14 A. THAT'S CORRECT. 15 Q. BY THE WAY, THERE ARE APPROXIMATELY 12 HEARST NEWSPAPERS 16 THROUGHOUT THE COUNTRY? 17 A. 12 IS THE CORRECT NUMBER, YES. 18 Q. AND IN ADDITION TO NEWSPAPERS, THE HEARST CORPORATION HAS 19 OTHER INTERESTS IN MAGAZINES AND OTHER MEDIA, CABLE, THINGS 20 LIKE THAT; IS THAT RIGHT? 21 A. YES. 22 Q. AND MR. IRISH IS IN CHARGE OF THAT SECTION WITH REGARD TO 23 NEWSPAPERS? 24 A. THAT'S CORRECT. 25 Q. AND -- JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 58 WHITE - DIRECT / ALIOTO 1 THE COURT: WAS THE PAPER IN ALBANY, NEW YORK, THAT 2 YOU WERE PUBLISHER OF A HEARST NEWSPAPER? 3 THE WITNESS: YES, IT WAS AND IS. 4 BY MR. ALIOTO: 5 Q. OKAY. NOW, I WANT TO DIRECT YOUR ATTENTION -- I WANT TO 6 DIRECT YOUR ATTENTION TO PAGE 1 OF THE AGREEMENT, AND THESE ARE 7 THE WITNESS PAGES. THEN IF YOU'LL GO TO PAGE 2 AND IF YOU'LL 8 TAKE A LOOK AT THE LAST WHEREAS. 9 A. (WITNESS EXAMINES DOCUMENT.) PAGE 2, THE LAST WHEREAS? 10 Q. YES. PAGE 2, YES. 11 A. YEAH. 12 Q. I DON'T KNOW HOW YOU GET CLOSER ON THIS, BUT IT'S PAGE 2. 13 AND IF YOU LOOK AT THE LAST WHEREAS, YOU CAN SEE IT STATES, 14 QUOTE: 15 "WHEREAS, CHRONICLE AND HEARST WILL HAVE 16 COMPLETE CONTROL OVER THE ADVERTISING RATES AND 17 CIRCULATION PRICES RELATING TO THE RESPECTIVE 18 DAILY MORNING AND AFTERNOON NEWSPAPERS OPERATED 19 BY THEM." 20 DO YOU SEE THAT? 21 A. YES. 22 Q. BUT IT'S YOUR TESTIMONY THAT YOU WERE ADVISED THAT THAT'S 23 NOT THE WAY IT ACTUALLY WOULD WORK; IS THAT RIGHT? 24 A. WELL, I ACTUALLY INTERPRETED THAT WHEREAS TO MEAN THAT THE 25 PRINCIPALS WOULD RETAIN CONTROL AND THAT THE AGENCY COULDN'T GO JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 59 WHITE - DIRECT / ALIOTO 1 OFF COMPLETELY ON ITS OWN WITHOUT THE APPROVAL OF THE 2 PRINCIPALS. 3 Q. WELL, IN ADDITION TO CONTROL, YOU UNDERSTOOD YOU HAD THE 4 RESPONSIBILITY; ISN'T THAT TRUE? 5 A. YES. 6 Q. OKAY. SO YOU UNDERSTOOD THAT THE NEWSPAPERS HAD NOT ONLY 7 THE AUTHORITY BUT THE RESPONSIBILITY TO SET THE RATES FOR 8 CIRCULATION AND FOR ADVERTISING FOR EACH OF THEIR RESPECTIVE 9 PAPERS? 10 A. WELL, IT WAS -- I THINK WHERE I PART COMPANY WITH THAT IS 11 FOR EACH OF THE RESPECTIVE PAPERS. FOR THE TWO PAPERS 12 COMBINED, YES. IT REQUIRED JOINT APPROVAL TO APPROVE THE 13 AGENCY'S RECOMMENDATION. 14 Q. WOULD YOU LOOK, PLEASE, AT PAGE 35 OF EXHIBIT 1 NOW IN 15 EVIDENCE, THE JOA AGREEMENT AND AT THE VERY TOP OF THE PAGE AT 16 PAGE 35? 17 A. (WITNESS EXAMINES DOCUMENT.) GOT IT. 18 Q. AND AT THE TOP OF THE PAGE OF 35 -- IT STARTS ON 34, ONE 19 SENTENCE, IT BEGINS AND GOES AS FOLLOWS, QUOTE: 20 " CHRONICLE AND HEARST WILL HAVE AUTHORITY 21 OVER AND RESPONSIBILITY FOR DETERMINING THE 22 ADVERTISING RATES AND CIRCULATION PRICES, 23 INCLUDING BUT NOT LIMITED TO TERMS AND 24 CONDITIONS RELATING TO SUCH RATES AND PRICES OF 25 THEIR RESPECTIVE DAILY NEWSPAPERS, AND SUCH JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 60 WHITE - DIRECT / ALIOTO 1 DETERMINATION SHALL NOT BE SUBJECT TO 2 ARBITRATION." 3 DO YOU SEE THAT? 4 A. YES, I DO. 5 Q. DOES THAT NOW -- IN LOOKING AT THAT, YOU KNOW NOW THAT THE 6 JOA ACTUALLY REFERS TO "THEIR RESPECTIVE DAILY NEWSPAPERS"; 7 CORRECT? 8 A. IT WOULD CERTAINLY APPEAR TO SAY THAT. 9 Q. WELL, IT DOES SAY THAT; DOES IT NOT? 10 A. IT DOES SAY THAT. 11 Q. OKAY. SO THAT AT THAT TIME, THEN, AT THAT TIME, 12 NOTWITHSTANDING THAT LANGUAGE, IT WAS YOUR UNDERSTANDING THAT 13 IT WAS SOMETHING THAT WAS GOING TO BE SUGGESTED BY THE AGENCY, 14 PRICES AND RATES WOULD BE SUGGESTED BY THE AGENCY; IS THAT IT? 15 A. THAT IS. THAT IS MY UNDERSTANDING. 16 Q. AND HOW LONG -- AND WHAT IS YOUR UNDERSTANDING AS TO HOW 17 LONG THAT HAS HAPPENED? 18 A. WELL, ARRIVING IN JANUARY, '99, WHAT, ROUGHLY 34 YEARS 19 INTO THIS AGREEMENT, MY UNDERSTANDING WAS THAT THAT'S THE WAY 20 THINGS HAD BEEN DONE FOR A LONG TIME MOST OF THE 34 YEARS. 21 Q. NOW, YOU UNDERSTOOD ALSO, DID YOU NOT, THAT IF THE 22 CHRONICLE WANTED TO TELL YOU WHAT RATE YOU WERE GOING TO CHARGE 23 FOR YOUR ADVERTISING, YOU DIDN'T HAVE TO AGREE WITH THEM? 24 A. I DID UNDERSTAND THAT, YES. 25 Q. AND YOU ALSO UNDERSTOOD THAT IF YOU TOLD THE CHRONICLE JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 61 WHITE - DIRECT / ALIOTO 1 WHAT RATE YOU WERE GOING TO CHARGE FOR YOUR ADVERTISING -- I 2 MEAN, WHAT RATE THAT THEY WERE GOING TO CHARGE FOR THEIR 3 ADVERTISING, YOU COULDN'T DO ANYTHING ABOUT THAT EITHER? 4 A. I UNDERSTOOD THAT. 5 Q. AND YOU UNDERSTOOD THAT THAT HAPPENED -- THAT APPLIED NOT 6 ONLY TO RATES FOR ADVERTISING BUT ALSO FOR RATES FOR 7 CIRCULATION? 8 A. THAT'S CORRECT. 9 Q. AND THE CIRCULATION WOULD INCLUDE BOTH HOME DELIVERY 10 PRICES AND PRICES FOR THE NEWSPAPER ON THE STAND? 11 A. CORRECT. 12 Q. NOW, YOU CALL THE PAPERS ON THE STAND STREET SALES OR -- 13 A. NO. MORE BROADLY SINGLE COPY, ALL SINGLE COPY SALES. 14 Q. SINGLE COPY SALES. 15 A. YES. 16 Q. ALL RIGHT. NOW, DID YOU ALSO UNDERSTAND, UNDER THE JOINT 17 OPERATING AGREEMENT, THAT THE SAN FRANCISCO AGENCY WAS AN 18 OPERATION OR AGENCY, AN INDEPENDENT COMPANY OF THE CHRONICLE 19 AND THE EXAMINER? 20 A. JOINTLY OWNED BY THE BOTH OF THEM, RIGHT. 21 Q. IT'S INDEPENDENT BUT JOINTLY OWNED BY BOTH? 22 A. UH-HUH. 23 Q. OKAY. 24 MR. ALIOTO: MAY I USE THE EASEL, YOUR HONOR? 25 THE COURT: VERY WELL. JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 62 WHITE - DIRECT / ALIOTO 1 BY MR. ALIOTO: 2 Q. ALL RIGHT. LET'S DRAW THIS JUST FOR ONE MINUTE. I'M 3 GOING TO PUT UP HERE ON THE TOP LEFT "SAN FRANCISCO CHRON" AND 4 ON TOP RIGHT "SAN FRANCISCO EXAMINER." 5 AND SO IT WAS YOUR UNDERSTANDING THAT THEY JOINTLY 6 OWNED WHAT'S CALLED THE SAN FRANCISCO -- THE SAN FRANCISCO 7 NEWSPAPER AGENCY; IS THAT RIGHT? 8 A. CORRECT. 9 Q. NOW, THE FUNCTION OF THE SAN FRANCISCO NEWSPAPER AGENCY 10 WAS TO TAKE CARE OF CIRCULATION; IS THAT RIGHT? 11 A. THAT'S CORRECT. 12 Q. AND IT WAS ALSO SUPPOSED TO TAKE CARE OF DISTRIBUTION; IS 13 THAT RIGHT? 14 A. CORRECT. 15 Q. THEY RAN THE PRESSES? 16 A. CORRECT. 17 Q. OKAY. AFTER THEY -- ALL THE INCOME THAT WOULD COME INTO 18 ANY OF THE PAPERS WOULD HAVE TO COME JUST FROM TWO SOURCES; IS 19 THAT RIGHT? 20 A. I'M NOT SURE I UNDERSTAND THE QUESTION. 21 Q. INCOME INTO THE PAPERS WOULD COME, LET'S SAY 99 PERCENT, 22 FROM ADVERTISING OR FROM SUBSCRIBERS; IS THAT RIGHT? 23 A. CORRECT, OKAY. 24 Q. THOSE ARE THE TWO SOURCES OF INCOME? 25 A. RIGHT. JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 63 WHITE - DIRECT / ALIOTO 1 Q. AND THE SAN FRANCISCO NEWSPAPER AGENCY WOULD TAKE THAT 2 MONEY IN FOR BOTH PAPERS; IS THAT RIGHT? 3 A. THAT'S ACCURATE. 4 Q. AND THEN AFTER THEY TOOK THE MONEY IN FOR BOTH PAPERS, 5 THEN THEY WOULD TAKE CARE OF THE CIRCULATION, THE EXPENSES FOR 6 CIRCULATION, DISTRIBUTION, THINGS LIKE THAT; IS THAT RIGHT? 7 A. CORRECT. 8 Q. THEN AFTER THEY DEDUCTED THOSE COSTS FROM THAT INCOME THAT 9 THEY RECEIVED ON BEHALF OF BOTH THE PAPERS, WHAT DID THEY DO 10 WITH THE MONEY? 11 A. THE REMAINDER WAS REFERRED TO AS THE NET EXCESS. IT WOULD 12 BE SPLIT 50-50 ACCORDING TO THE 50 PERCENT OWNERSHIP SHARES OF 13 EACH PARTNER. 14 Q. OKAY. SO THAT THE END PRODUCT -- YOU CALL IT THE NET 15 WHAT? 16 A. EXCESS. 17 Q. AND BY THAT YOU MEAN THE REMAINING PORTION OF THE REVENUE 18 LESS THE EXPENSES OF RUNNING THE PRESSES, CIRCULATION, 19 DISTRIBUTION, EVERYTHING ELSE? 20 A. CORRECT. 21 Q. AND THEN THIS NET EXCESS, WHATEVER IT IS, WILL BE DIVIDED 22 50-50 TO THE EXAMINER -- 50 GOES TO THE EXAMINER AND 50 TO THE 23 CHRONICLE; CORRECT? 24 A. CORRECT. 25 Q. AND IS THAT SO REGARDLESS OF WHETHER OR NOT ONE OR THE JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 64 WHITE - DIRECT / ALIOTO 1 OTHER PAPER MAY BE MORE RESPONSIBLE FOR OR BRING IN MORE 2 REVENUE? 3 A. YES. 4 Q. SO IT MAY BE THAT THE CHRONICLE MIGHT BRING IN MORE 5 REVENUE THAN THE EXAMINER BUT NOTWITHSTANDING THAT, AT THE END 6 WHEN IT COMES TO THE NET EXCESS, IT'S A 50-50 DEAL; IS THAT 7 RIGHT? 8 A. THAT IS RIGHT. 9 Q. NOW, BY REASON OF THAT, CAN YOU DETERMINE WHETHER OR NOT 10 THE CHRONICLE MADE A PROFIT IN ANY PARTICULAR YEAR JUST ON ITS 11 OWN WITHOUT REGARD TO ANYTHING FROM THE EXAMINER? 12 MR. HALLING: OBJECTION, VAGUE AND AMBIGUOUS. 13 THE COURT: OVERRULED. 14 THE WITNESS: SO THE QUESTION -- I'M SORRY, WOULD 15 YOU REPEAT THE QUESTION? CAN I DETERMINE? 16 BY MR. ALIOTO: 17 Q. IS THERE ANY WAY TO DETERMINE THAT THE SAN FRANCISCO 18 CHRONICLE MADE MONEY ON ITS OWN, WITHOUT REGARD TO ANY REVENUES 19 FROM THE EXAMINER OR WITHOUT REGARD TO ANY EXPENSES WITH REGARD 20 TO THE EXAMINER, JUST THE CHRONICLE ALONE? 21 A. IS THERE ANY WAY I CAN DETERMINE THAT SITTING HERE? 22 Q. YES. YES. 23 A. NO. 24 Q. CAN YOU DETERMINE AS THE PUBLISHER OF THE EXAMINER, CAN 25 YOU DETERMINE WHETHER THE EXAMINER IS PROFITABLE OR NOT ON ITS JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 65 WHITE - DIRECT / ALIOTO 1 OWN? 2 A. ON ITS OWN SITTING HERE, NOT LIKELY. 3 Q. NOW, AFTER THE NET EXCESS IS SPLIT 50-50, THEN IS IT 4 CORRECT THAT THE CHRONICLE AND THE EXAMINER THEN HAVE THEIR OWN 5 SO-CALLED EDITORIAL COSTS? 6 A. THAT'S RIGHT. 7 Q. AND IF YOU WOULD STATE TO THE COURT WHAT AN EDITORIAL COST 8 IS. 9 A. WELL, IT'S THE COST OF NEWSROOM FULL OF REPORTERS, COPY 10 EDITORS, PHOTOGRAPHERS, AND AS WELL AS THE EDITORIAL DEPARTMENT 11 ITSELF, A LIBRARY AND IN THIS CASE A VERY SMALL ACCOUNTING 12 FUNCTION. 13 Q. OKAY. 14 A. IT COVERS ALL THAT. 15 Q. OKAY. SO THEN AFTER YOU DEDUCT THESE EDITORIAL COSTS, 16 BOTH SIDES, THEN WHATEVER IS LEFT OVER IS THE PROFIT; IS THAT 17 RIGHT? 18 A. YES, THAT'S RIGHT. 19 Q. OKAY. SO THAT THE SAN FRANCISCO NEWSPAPER AGENCY HAS 20 NOTHING TO DO WITH THE EDITORIAL COSTS; IS THAT RIGHT? 21 A. CORRECT. 22 Q. ALL RIGHT. AND YOU DON'T GET YOUR PROFIT ULTIMATELY UNTIL 23 AFTER YOU DEDUCT YOUR EDITORIAL COSTS FROM WHATEVER YOUR 50-50 24 SPLIT IS; IS THAT RIGHT? 25 A. CORRECT. JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 66 WHITE - DIRECT / ALIOTO 1 Q. NOW, IN 1999, THE LAST FULL YEAR, WHAT WAS THE NET EXCESS? 2 WHAT WAS YOUR 50 PERCENT OF THE NET EXCESS? 3 A. IN 1999, 50 PERCENT. 4 Q. YOUR FIRST FULL YEAR AS THE PUBLISHER OF THE EXAMINER. 5 A. RIGHT. IT WAS APPROXIMATELY 40 -- ABOUT 40 MILLION. 6 Q. ABOUT $40 MILLION. SO, IN OTHER WORDS, THE NET EXCESS 7 MUST HAVE BEEN $80 MILLION, YOU GOT 40 AND THE CHRONICLE GOT 8 40; IS THAT IT? 9 A. CORRECT. 10 Q. AND THEN FROM THAT 40 YOU WOULD DEDUCT YOUR EDITORIAL 11 COSTS. WHAT WERE YOUR EDITORIAL COSTS IN 1999? 12 A. ABOUT 17 MILLION, EDITORIAL -- ALL THOSE -- ALL THOSE 13 COSTS I DESCRIBED TAKEN TOGETHER. 14 Q. WAS HOW MUCH? 15 A. ABOUT 17. 16 Q. OKAY. SO THAT YOU HAD A PROFIT LAST YEAR OF APPROXIMATELY 17 $23 MILLION OR SO; IS THAT RIGHT? 18 A. WELL, WE HAD WHAT WE REFERRED TO INTERNALLY IN HEARST AS A 19 NET INCOME BEFORE A NUMBER OF CORPORATE CHARGES THAT WE DON'T 20 CARRY HERE. 21 Q. OKAY. SO, IN OTHER WORDS, BUT THE OPERATING -- LET'S CALL 22 IT THEN THE NET PROFIT, MORE LIKE AN OPERATING PROFIT, AND THEN 23 THERE'S OTHER CORPORATE DEDUCTIONS THAT THE COMPANY MAKES? 24 A. RIGHT, PRETAX. 25 Q. OKAY. BUT THOSE RELATED TO THE PAPER IS THAT YOU MADE JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 67 WHITE - DIRECT / ALIOTO 1 ABOUT $23 MILLION AND THEN YOU TAKE OFF THESE OTHER COSTS; IS 2 THAT IT? 3 A. CORRECT. 4 Q. AND SO WHAT DID YOU FINALLY END UP WITH? ABOUT 5 20 MILLION? 6 A. WELL, I DON'T SEE ANYTHING BEYOND THAT. 23 MILLION IS 7 WHERE MY RESPONSIBILITY STOPS. 8 Q. OKAY. NOW, IS IT YOUR UNDERSTANDING THAT THE PAPER, PRIOR 9 TO THE TIME THAT YOU BECAME THE PUBLISHER IN 1999, THAT THE 10 EXAMINER MADE A PROFIT? 11 A. AT LEAST FOR A FEW YEARS, YES. 12 Q. IT MADE A PROFIT OF OVER $20 MILLION. DOES THAT ACCORD 13 WITH YOUR UNDERSTANDING? 14 A. I BELIEVE THAT'S THE NUMBER FOR '98. PRIOR TO THAT, I 15 BELIEVE SOMETHING LOWER THAN THAT. I'M NOT SURE OF THE 16 NUMBERS. 17 Q. LET ME SHOW YOU A DOCUMENT WHICH IS MARKED AS NOW IN 18 EVIDENCE AS EXHIBIT 93. EXHIBIT 93 IS A DOCUMENT DATED 19 SEPTEMBER 23, 1999. IT PURPORTS TO BE A DOCUMENT THAT 20 SUMMARIZES THE FINANCIAL PROJECTIONS FOR THE SAN FRANCISCO 21 EXAMINER AND THE SAN FRANCISCO NEWS AGENCY FOR YEARS 2003. 22 MR. ALIOTO: MAY I APPROACH THE WITNESS, YOUR HONOR? 23 THE COURT: VERY WELL. 24 BY MR. ALIOTO: 25 Q. TAKING A LOOK AT WHAT IS NOW 93 IN EVIDENCE, THAT IS -- JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 68 WHITE - DIRECT / ALIOTO 1 YOU ARE FAMILIAR WITH THAT DOCUMENT; ARE YOU NOT? YOU'VE SEEN 2 IT BEFORE? 3 A. (WITNESS EXAMINES DOCUMENT.) YES, I'VE SEEN THIS. 4 Q. OKAY. NOW, THIS STATES -- THIS IS -- IF YOU'LL LOOK ON 5 THE FRONT PAGE, IT IS HEARST NEWSPAPERS. IT'S A MEMORANDUM 6 HEARST NEWSPAPERS, AND THEN YOU SEE THE SIGNATURE OF GEORGE 7 IRISH; DO YOU NOT? 8 A. YES. 9 Q. AND YOU DO RECOGNIZE THAT AS HIS SIGNATURE? 10 A. YES. 11 Q. ALL RIGHT. AND IF YOU WOULD TURN TO PAGE 3 OF THE 12 DOCUMENT, AND IN PARTICULAR THERE IS A COLUMN IN THE MIDDLE 13 ENTITLED -- PAGE 3, NOT 2. PAGE 3. 14 A. NO, I'VE GOT 3. 15 Q. OKAY, YOU GOT IT. 16 AND IN THE MIDDLE OF THE DOCUMENT IT SAYS "NET 17 PROFIT." DO YOU SEE THAT? 18 A. YES. 19 Q. AND IT HAS IT FOR '98 AND '99. DO YOU SEE THAT? 20 A. YES. 21 Q. OKAY. NOW, FOR '98 IT SHOWS A NET PROFIT OF $22 MILLION 22 AND IN '99 A PROFIT OF 20 AND A HALF MILLION DOLLARS. DO YOU 23 SEE THAT? 24 A. YES, I DO. 25 Q. NOW, THEN IT TENDS TO PROJECT WHAT THE ANTICIPATED PROFIT JO ANN BRYCE, CSR 3321 - USDC - (415)437-1301 69 WHITE - DIRECT / ALIOTO 1 OF THE EXAMINER IS GOING TO BE FOR 2000, 2001, 2002 AND 2003. 2 DO YOU SEE THAT? 3 A. YES. 4 Q. AND YOU SEE THAT IN 20 -- IN 2000 THE PROFIT IS 5 21 MILLION; IN 2001, THE PROFIT IS 22.8 MILLION; IN 2002 THE 6 PROFIT PROJECTED IS 22-POINT -- 23.3 MILLION; AND IN 2003 THE 7 PROFIT IS PROJECTED AT 25 MILLION? DO YOU SEE THAT? 8 A. I DO. 9 Q. DID ANYONE REPRESENT -- DID ANYONE, SINCE YOU'VE BEEN THE 10 PUBLISHER OF THE SAN FRANCISCO EXAMINER, EVER REPRESENT TO YOU 11 THAT THESE NUMBERS OR NUMBERS VERY SIMILAR, IN THIS RANGE, THE 12 20 TO 25 MILLION, WERE INACCURATE? 13 A. NO, THEY DID NOT. 14 Q. DID YOU MAKE $25 MILLION WHEN YOU WERE THE PUBLISHER