ALIOTO LAW FIRM
Joseph M. Alioto
Angelina Alioto-Grace, Pro Hac Vice
One Embarcadero Center, 39th Floor
San Francisco, CA  94111-3607
Telephone:  415-434-8900
Facsimile:  415-434-9200

SHULMAN, WALCOTT & SHULMAN, P.A.
Daniel R. Shulman, Pro Hac Vice
Jim Hilbert, Pro Hac Vice
121 West Franklin Avenue
Minneapolis, MN  55404
Telephone:  612-871-2909
Facsimile:  612-871-2939

Attorneys for Plaintiff Clinton Reilly

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

CLINTON REILLY,

                                                 Plaintiff,

v.

THE HEARST CORPORATION and THE CHRONICLE PUBLISHING COMPANY,

                                                 Defendants,
and

EXIN, LLC,

                                                 Intervenor.	COURT FILE NO. C 00 0119 VRW

PLAINTIFF'S REQUESTED
FINDINGS OF FACT

Hearing Date:  Wednesday, May 31, 2000
Hearing Time:  9:30 a.m.
Honorable Vaughn R. Walker	

TABLE OF CONTENTS
Page
A.     THE PARTIES	1
B.     THE RELEVANT MARKET	1
C.     THE JOINT OPERATING AGREEMENT	4
D.     COMPETITION UNDER THE JOA	6
E.     CPC'S DECISION TO SELL	8
F.     HEARST'S MONOPOLY PROBLEM	9
G.     THE SALE TO THE FANGS	11
H.     THE FANG/HEARST SHAM	12
I.     WORSE THAN A SHAM	14
J.     COMPETITIVE EFFECTS	20

	Clinton Reilly, plaintiff above-named, submits his requested findings of fact in connection with the trial of this case held on May 1 to May 15, 2000.
	A.	THE PARTIES
	1.	Plaintiff is an individual who is and has been a subscriber of The San Francisco Chronicle newspaper and a purchaser of The San Francisco Examiner newspaper.  (Trial Transcript ("Tr."), pp. 1370-71.)
	2.	Defendant The Hearst Corporation ("Hearst") is the owner and publisher of The Examiner.  Hearst is one of the nation's largest diversified communications companies.  Its major interests include, inter alia, magazine, newspaper, and business publishing, cable networks, and television and radio broadcasting.  The Hearst newspaper business began with The Examiner in 1887.  (Plaintiff Exhibit ("PX") 18.)
	3.	Defendant The Chronicle Publishing Company ("CPC") is the owner and publisher of The Chronicle.  CPC is a privately held, diversified media company, which has owned newspapers and television stations.  The deYoung family, which began CPC, first published The Chronicle in 1865.  (PX 73.)
	4.	Defendant-intervenor ExIn, LLC ("the Fangs") is an affiliate of a company owned by the Fang family, which publishes a thrice-weekly, free newspaper called The Independent in San Francisco and surrounding communities.  (Tr., pp. 2046-47, 2051-52, 2056-57.)  The Fangs have entered into an agreement with Hearst to acquire The Examiner, contingent on Hearst's acquiring The Chronicle.  (PX 35.)
	B.	THE RELEVANT MARKET
	5.	The relevant market for purposes of this action is the publication and sale of daily newspapers in the city and county of San Francisco.  (Tr., pp. 407-39, 562-68, and portions of record cited infra.)
	6.	Daily newspapers constitute a relevant product market because they perform functions for which there are no adequate substitutes.  For example, there are distinct classes of advertisers that cannot reach their target audiences except through daily newspapers.  Readers interested in timely and in-depth news coverage must rely on daily newspapers.  Timely and in-depth coverage of cultural events, sports, and the arts is likewise available primarily through daily newspapers.  Daily newspapers also provide features and commentary in an immediate and in-depth manner not readily available in other media. Finally, no other medium provides the combination of all of the foregoing attributes of a daily newspaper.  (Tr. pp. 410-14, 416-18, 562-68, 1680, 1683; Defendant Exhibit ("DX") C-357.)
	7.	The city and county of San Francisco constitutes the relevant geographic market because residents of San Francisco turn to the daily newspapers published in San Francisco, i.e., The Chronicle and The Examiner, when they purchase daily newspapers.  Although numerous newspapers are published throughout the Bay Area, within the city and county of San Francisco The Chronicle and The Examiner account for over 97 percent of paid daily newspaper circulation.  (PX 3, 143; Tr., pp. 420-22, 1684-85, 1706-08.)
	8.	Daily newspapers are a relevant product market because if The Chronicle and The Examiner in combination raised their subscription prices or advertising rates by 5 or 10 percent, they would not suffer an appreciable decline in either circulation or advertising revenue.  (Tr., pp. 435-36, 565-66, 2266-67.)
	9.	The City and County of San Francisco is a relevant geographic market because newspaper advertising rates for San Francisco are different from rates prevailing in other parts of the Greater Bay Area, such as Oakland, San Mateo, Contra Costa, or San Jose.  (PX 144, 145, 146; Tr., pp. 422-34.)  That advertising rates are not uniform and vary widely throughout the Greater Bay Area is indicative of the existence of separate geographic markets.  (Id.)
	10.	The newspaper business in the United States is a local business, in the sense of being location-specific.  (Tr., pp. 1683-85, 1706-08.)  The easiest form of competition to identify in the newspaper business is between daily newspapers in major American cities.  (Tr., p. 1669.)
	11.	Both The Chronicle and The Examiner recognize San Francisco as their "core market."  (DX H-982, p. 6; Tr., pp. 1524-27.)  Although both papers also compete for subscribers and advertisers in surrounding communities throughout the Bay Area, newspapers based in these surrounding communities maintain strong circulation in their core markets, i.e., the communities where they are published, and are unable to make inroads against The Chronicle and The Examiner in their core market of San Francisco.  (PX 3, 143; Tr., pp. 420-22, 1745-47.)
	12.	Even if the greater San Francisco metropolitan area is viewed as the relevant geographic market in this case by reason of the reach of The Chronicle and The Examiner circulation outside the city of San Francisco, the results of the Court's analysis of effects on competition from the transactions at issue would be unchanged.  In the five-county San Francisco metropolitan area, The Chronicle and The Examiner are the dominant firms, accounting for 36.7 percent and 10.5 percent of 1998 paid circulation, respectively.  In the 11-county area, the shares are 27 percent and 7 percent.  The next largest competitor, The San Jose Mercury News, has a market share of seven percent of paid circulation in the five-county area and 17 percent in the 11-county area, of which, however, 85 percent is in San Jose.  Likewise, The Marin Independent Journal has a market share of four percent in the five-county area and 2.6 percent in the 11-county area, of which almost 100 percent is in Marin; The Contra Costa Times has a share of 9.5 percent in the five-county area and 6.2 percent in the 11-county area, of which more than 90 percent is in Contra Costa; and The Oakland Tribune has a share of 6.6 percent in the five-county area and 4.2 percent in the 11-county area, of which 85 percent is in Alameda.  (PX 3; Tr., pp. 1745-47.)  Thus, no other paper is able to compete with The Chronicle or The Examiner on a metropolitan-wide basis.  All other competitors show strength only in their core local markets.  An advertiser wishing to reach a metropolitan-wide readership with a single buy must use either The Chronicle or The Examiner.
	13.	Barriers to entry are high for the relevant market, whether deemed to be San Francisco or the greater metropolitan area.  Entry is limited by "first copy" costs, which are disproportionately high for smaller newspapers; by substantial sunk costs involved in creating the plant and other infrastructure for a newspaper; and by the "chicken-and-egg" relationship of advertising and circulation, in that advertisers buy based on circulation, the development of which must first be funded by advertising revenues.  (PX 16, pp. 19-24; PX 94; DX H-954.)
	14.	Over the past 50 years, the newspaper industry has seen both an absence of new entry and a decline in the number of competitors and markets in which there is newspaper competition.  In 1940, there were close to 200 cities with at least two competing newspapers.  Today, only eight cities in the United States have two competing newspapers:  New York; Chicago; Boston; Denver; Washington, D.C.; Trenton, New Jersey; Wilkes-Barre, Pennsylvania; and Green Bay, Wisconsin.  (DX H-1155; DX H-1190, pp. 48-49, 90-91.)
	15.	In view of the foregoing, entry into the metropolitan daily newspaper business in direct competition with the combined San Francisco Chronicle and Examiner newspapers, or The Chronicle alone, is neither economically feasible nor rational business behavior.  (PX 16, p. 19; Tr., p. 1692.)
	16.	Any new entrant attempting to compete with The Chronicle on a metropolitan-wide basis would have little chance of success in the absence of an investment in the hundreds of millions of dollars; and even then survival would be questionable at best.  (PX 16, pp. 19-24; DX H-954; Tr., pp. 1709-10.)
	17.	Entry on a lesser scale, such as a newspaper with a circulation of 50,000 to 100,000 confined largely to San Francisco, would require an investment of $50 million per year over a five-year period to have any chance of viability; and even then survival appears difficult.  (PX 55-60, 62; Tr., pp. 600, 645-46, 1029-30, 1275-76, 1709-10.)  If a new entrant cannot maintain circulation of 50,000, it will almost certainly fail.  (PX 104; Tr. 2270.)
	C.	THE JOINT OPERATING AGREEMENT
	18.	On October 23, 1964, Hearst and CPC entered into a joint operating agreement (“JOA”), pursuant to which they merged all of the business, i.e., non-editorial, non-news, functions of their newspaper operations into a jointly-owned company known as the San Francisco Newspaper Agency (“the Agency”).  (PX 1.)  The stated basis for entering into the JOA was that Hearst was incurring deficits with respect to the publication, sale, and distribution of its San Francisco newspapers.  (Id., p. 1.)
	19.	At the time, CPC was publishing The Chronicle as a morning paper.  Hearst was publishing The Examiner as a competing morning newspaper, and Hearst was also publishing an afternoon newspaper, The News Call Bulletin.  Under the JOA, Hearst agreed to move The Examiner to the afternoon and combine it with The News Call Bulletin.  (Id., pp. 32-33.)
	20.	The Agency undertook to perform “the mechanical, circulation, advertising, accounting, and credits and collections functions” for the newspapers, who divided equally the excess of Agency revenues over expenses.  With their shares of the Agency profits, Hearst and CPC funded their news and editorial departments, which remained separate and independent, thus preserving two daily newspaper voices in San Francisco.  (Id., pp. 20-22, 32-33.)
	21.	The agreement provided that Hearst and CPC would separately set prices and advertising rates for their own newspapers, a practice they followed to some extent.  (PX 1, pp. 34-35; Tr., pp. 315-19, 323-26.)
	22.	In 1970, Congress passed The Newspaper Preservation Act, 15 U.S.C. § 1801, et seq., which accorded antitrust immunity to the JOA and comparable arrangements throughout the country.  (DX H-902.)
	23.	The term of the JOA was 30 years, with each party having a single option to extend the JOA for ten more years.  In the early 1990s, Hearst exercised its option to extend the JOA from 1995 to 2005, at which time it will expire unless CPC exercises its option to extend the JOA for another 10 years to 2015.  (PX 1, p. 47; Tr., pp. 1794, 1818-19.)  The JOA provides that upon its termination, Hearst and CPC shall cooperate in dissolving the JOA so as to enable each to publish a competing independent newspaper.  (PX 1, p. 47; PX 72.)
	24.	Since 1997, CPC has repeatedly advised Hearst that CPC will not extend the JOA.  (PX 67, 70, 71, 72, 85; Tr., pp. 1819, 1889‑90, 1937‑40.)
	25.	The JOA as structured contains a number of terms that have the effect of impeding Hearst or CPC from leaving the JOA or selling its newspaper, and deterring potential buyers of either newspaper.  First, Hearst and CPC each have a right of first refusal to match any offer from a prospective buyer.  Second, Hearst and CPC each have an undivided one-half interest in all assets of the Agency, which requires an equal division on termination of the JOA or sale of one of the newspapers.  Third, any buyer of one of the newspapers must assume that newspaper’s obligations under the JOA, which include paying half of the Agency net excess to the other partner.  Finally, neither Hearst nor CPC can sell its interest to any buyer operating a competing newspaper within 60 miles.  (PX 1; Tr., pp. 681, 705-07.)
	26.	These features have combined to prevent CPC from selling The Chronicle to anyone but Hearst, and have also depressed the selling price of The Chronicle during the term of the JOA.  (PX 50, 59; Tr., pp. 651-53.)
	D.	COMPETITION UNDER THE JOA
	27.	The existence of the JOA has not entirely eliminated competition between Hearst and CPC.  As the eventual termination of the JOA has come closer, both Hearst and CPC have faced the prospect of resuming direct competition against each other, a scenario described as "war."  (PX 4, 5.)  Each has tried to position itself advantageously for this upcoming battle, while at the same time exploring ways to avoid future competition.  (PX 64, 67, 68, 70, 71, 72, 83, 84, 85, 86, 110, 115, 116, 117, 120, 122, 125, 131, 132.)
	28.	Seeing the end of the JOA as inevitable and imminent, Hearst began planning in the late 1990s to move The Examiner to the morning to compete against The Chronicle at the end of the JOA, if not before.  (PX 64, 71, 72, 83, 84, 125, 132, 133.)
	29.	Hearst and CPC also exchanged various proposals for closing The Examiner and sharing profits from The Chronicle.  (PX 70, 85, 86, 115, 116, 117, 120, 122, 131.)
	30.	In both internal documents and communications with CPC, Hearst consistently expressed the intent to stay and compete in San Francisco after the JOA, at one point even accusing CPC of violating the antitrust laws by hamstringing The Examiner so that it would not be able to compete in the future.  (PX 71, 72, 83, 84, 125, 132, 133.)
	31.	On April 15, 1999, chagrined that CPC had directed the Agency to halt a joint subscription program, Timothy White, then publisher of The Examiner, wrote to CPC:

The over-arching intent and purpose of the Joint Operating Agreement is to “enable both Chronicle and Hearst to survive as publishers of independent newspapers,” and upon termination of the Agreement, in the absence of its renewal or extension, to “...enable each of said parties to engage independently of Printing Company in the newspaper publishing business.”

*	*	*

As indicated in prior letters, we believe this [CPC’s efforts to terminate the joint program] to be in violation of the anti-trust laws and the Agreement. . .

*	*	*

The stated intent and purpose of the Agreement is now clearly frustrated by requiring the Examiner to remain in the afternoon field.  Accordingly, we hereby formally request your concurrence in our moving the Examiner expeditiously to the A.M. cycle, alongside the Chronicle. [PX 72.]
	32.	Hearst's top management, however, intended, if at all possible, to avoid such direct competition by either buying The Chronicle, or closing The Examiner in exchange for a share of The Chronicle.  (Tr., pp. 1794-96, 1800-01, 1842-52.)  CPC's upper management had a similar dread and abhorrence of real competition, notwithstanding its public statements to the contrary.  (Tr., pp. 234-37, 243-45, 268-72.)  Thus, top management of neither company intended to avail itself of the JOA's provisions enabling both Hearst and CPC to publish competing newspapers after the JOA's expiration.
	33.	Under the JOA, The Examiner is and has not been a failing company.  It has been profitable, with current profits of approximately $25 million per year.  Such profits are projected to continue at that level through the end of the JOA in 2005.  (PX 91, 93; Tr., pp. 67-69, 440-44, 1454-56, 1669-70.)
	34.	The evidence as to whether The Examiner would be a failing newspaper outside the JOA is inconclusive.  Top executives of Hearst, CPC, and the Agency all testified that revenues and expenses cannot be accurately and exactly allocated between The Chronicle and The Examiner.  (Tr., pp. 64-65, 216-17, 219, 1470-75.)  The Agency sells 99 percent of advertising for the newspapers under a combination rate.  (Tr., pp. 1469, 1505.)  Thus, any allocation of revenues between the papers must be based on relative circulation, or some other arbitrary estimate.  Both plaintiff and defendants have presented estimates of how The Examiner might fare outside the JOA as an independent paper, or how the Agency's financial performance would look if it published only The Chronicle.  (DX H-983; PX 94; Tr., pp. 1294-96.)  Although these estimates show The Examiner losing money and the Agency performing better without The Examiner, they are nevertheless only estimates and do not reflect actual performance or actual losses of The Examiner, such that one could conclude that The Examiner is in fact a failing company, as that term is defined in applicable Supreme Court decisions.
	E.	CPC'S DECISION TO SELL
	35.	In February of 1999, CPC retained the investment banking firm of Donaldson, Lufkin & Jenrette ("DLJ") to advise the shareholders of CPC concerning their alternatives with regard to their investment in CPC.  (Tr., pp. 675-76.)  DLJ's analysis covered all of CPC's assets, including KRON television and CPC's newspaper properties, among them The Chronicle.  In late April and early May, DLJ produced two reports analyzing CPC's alternatives.  (PX 4, 5.)
	36.	DLJ's reports laid out a number of alternative scenarios for The Chronicle, including a "resolution" of the JOA by a sale of The Chronicle or some other arrangement with Hearst, and a competitive "war" with Hearst after the end of the JOA in 2005.  (PX 4, 5.)  The “war” scenario envisioned by DLJ included “substantial price cuts at Examiner with modest price cuts at Chronicle” and “significant ad price competition with 15% and 10% rate declines at Examiner and Chronicle, respectively.”  (PX 4.)  In the absence of “war,” DLJ predicted increasing prices and profits for The Chronicle.  (Id.)
	37.	In May of 1999, DLJ recommended to the shareholders of CPC that they sell the company, including The Chronicle.  CPC's shareholders accepted DLJ's recommendation and engaged DLJ to market CPC's assets, including The Chronicle.  (Tr., pp. 688-89.)
	38.	In carrying out its assignment, DLJ contacted prospective buyers for The Chronicle, including Hearst.  (Tr., pp. 698-99.)
	39.	A problem encountered by DLJ in attempting to sell The Chronicle was the right of first refusal afforded Hearst under the JOA, a potential deterrent to other buyers.  In an effort to avoid this problem, DLJ originally tried to sell all of CPC's newspapers as a package.  (Tr., pp. 691-92.)
	40.	Several buyers expressed interest to DLJ in purchasing The Chronicle for a price in the $400 million to $500 million range.  These interested purchasers included Gannett Newspapers, Knight-Ridder, and The Times Mirror Company.  (Tr., pp. 699-705.)
	41.	In June, 1999, Hearst retained its own investment banking firm, Wasserstein, Perella & Co. ("Wasserstein") to assist Hearst in negotiations with CPC.  On July 6, 1999, Hearst submitted a letter to CPC stating that Hearst was prepared to purchase The Chronicle for a minimum of $565 million.  (Tr., pp. 1810-12; DX H-967.)  Negotiations between DLJ and Wasserstein ultimately raised Hearst's offer to $660 million, well above any other offer.  (Tr., pp. 709-10, 712.)
	42.	On August 6, 1999, CPC entered into an agreement to sell The Chronicle to Hearst for $660 million.  (PX 10.)
	F.	HEARST'S MONOPOLY PROBLEM
	43.	Having agreed to buy The Chronicle, and intending to close The Examiner, Hearst faced the problem of obtaining Justice Department approval for a transaction that would leave Hearst owning the only daily newspaper in San Francisco.  Accordingly, Hearst offered The Examiner for sale, in order to secure Justice Department approval for The Chronicle purchase.  (PX 11; Tr., pp. 1826-27, 1891, 1964-65.)
	44.	Initially, The Examiner assets offered by Hearst included no hard assets from the Agency, but only The Examiner name and news and editorial assets.  Any buyer of The Examiner would therefore have had to arrange separately for printing and distribution of the paper, and all other business functions.  Hearst received no acceptable offer for this package.  Instead, Hearst received widespread criticism for offering a mere shell.  (PX 51; DX H-1192, pp. 17, 18, 30-32, 35-36; Tr., pp. 940-43.)
	45.	Hearst therefore changed the package of Examiner assets it was offering.  On January 25, 2000, Hearst announced that it was offering The Examiner as a “turnkey” package, with production and distribution assets and a period of transitional assistance for any new owner.  Hearst did not offer its interest in the JOA, however, including the right to receive half the Agency’s profits.  This deterred most eligible buyers, such as Knight Ridder, which was interested in The Examiner only if the JOA interest were available.  (PX 21, 24, 51, 92; DX H‑1192, pp. 42-43, 44, 46-49; Tr., pp. 944-46.)
	46.	Hearst received only three offers for The Examiner: from a New York concern not in the newspaper business; from the Fangs; and from plaintiff.  Each proposal required Hearst to pay a multimillion dollar, multiyear subsidy to the acquirer, in effect a negative purchase price.  Hearst did not pursue negotiations with the New York concern, but focused instead on plaintiff and the Fangs.  (Tr., pp. 950-58.)
	47.	Plaintiff’s discussions with Hearst occurred after plaintiff brought this lawsuit.  Plaintiff retained a number of prominent experts to assist him, including persons with extensive and varied experience in all aspects of the newspaper business, as well as hands-on experience working for the Agency.  Plaintiff’s experts provided in-depth analysis of what would be required to make The Examiner a viable competitor in the hands of a new owner.  On March 7, 2000, plaintiff made a proposal to Hearst to obtain The Examiner, based on the advice of his experts.  Plaintiff's offer included three years of operations under the JOA and additional assistance spread over a six-year period.  (PX 20, 22, 23, 28, 30, 31, 32, 46, 57, 60; Tr., pp. 1068-69, 1242-44.)
	48.	The offer made by plaintiff was premised on a 22-month transition period, during which plaintiff intended to renegotiate labor contracts, transition The Examiner to the morning, create a weekend paper, and reinstall printing facilities in The Examiner building. (PX 23; Tr., pp. 1070-78, 1098-1100.)  Plaintiff's experts envisioned the estimated annual operating costs for the paper to be a minimum of $40 to $45 million.  (PX 20, 46.)
	49.	On March 16, 2000, less than 10 days after plaintiff's proposal, Hearst sold The Examiner to the Fangs for a negative price of $67 million.  (PX 35.)
	G.	THE SALE TO THE FANGS
	50.	From the time the Fangs learned of Hearst's agreement to purchase The Chronicle, they were interested in obtaining The Examiner, notwithstanding their public opposition to Hearst's buying The Chronicle.  (Tr., pp. 2020-21.)  During the fall of 1999, the Fangs engaged in discussions with Hearst.  (DX H-1192, pp. 30-32; Tr., pp. 2020-21.)  The first concrete proposal from the Fangs was made on December 2, 1999, and called for a subsidy of $210 million payable over six years.  (PX 100; Tr., pp. 2121-24.)  This occurred before the filing of this lawsuit and any negotiations between Hearst and plaintiff.
	51.	Once plaintiff began discussions with Hearst, the Fangs reduced their demands.  (PX 29.)  On March 10, 2000, three days after plaintiff’s March 7 proposal, the Fangs secured an agreement from Hearst to negotiate exclusively with them for a 15-day period.  (PX 34.)
	52.	On March 16, Hearst and the Fangs executed an agreement to transfer certain Examiner assets to the Fangs, including The Examiner name, computer hardware and software, various news service and features contracts, newsracks, and subscription lists.  For these assets, the Fangs paid $100.  In addition, Hearst agreed to provide to the Fangs (1) printing, distribution, advertising, and business services from the Agency for a four-month transition period; (2) for the next eight months reimbursement of actual expenses up to $16 and 2/3 million; and (3) for each of the next two years reimbursement of actual expenses up to $25 million.  (PX 35, pp. 1-6.)  The total subsidy agreed to by Hearst was $67 million over three years.  (Id.)
	53.	The agreement also included disincentives for the Fangs to make the expenditures necessary to operate the paper.  For example, during years two and three, if the expenses for which the Fangs seek reimbursement from Hearst are less than $25 million, Hearst will pay the Fangs one-half the difference up to a total of $5 million.  A similar prorated provision applies to the first year.  (Id.)  Similarly, the agreement purports to limit the salary Ted Fang may take as publisher of The Examiner to $500,000 per year, four times his current combined compensation from The Independent and Grant Printing and almost double the salary of The Examiner's publisher.  (Tr., pp. 2241-44.)  Finally, the Fangs have agreed to limit reimbursable capital expenditures to $3.3 million annually.  (PX 35, p. 6.)
	H.	THE FANG/HEARST SHAM
	54.	At the time the Fangs agreed to buy The Examiner, they did not intend to put out a metropolitan daily newspaper in direct competition with The Chronicle.  (Tr., p. 859.)  They so advised Hearst.  (Tr., p. 860.)  That is still their intent.  (Tr., pp. 2086-87.)
	55.	At the time Hearst agreed to sell The Examiner to the Fangs, Hearst never intended to create a metropolitan newspaper in direct competition with The Chronicle.  (Tr., p. 871.)
	56.	The $67 million subsidy provided to the Fangs is insufficient to permit the Fangs to publish a metropolitan daily newspaper in direct competition with The Chronicle.  (PX 55-60, 62; Tr., pp. 597-99, 644, 1029-30, 1106, 1175-77, 1274-75, 1709-10.)
	57.	To publish a metropolitan daily newspaper directly competitive with The Chronicle would require a subsidy of at least $250 million over five years; and even that amount might be insufficient.  (PX 55-60, 62; Tr., pp. 600, 645-47, 1029-30, 1106-07, 1709-10.)
	58.	The only possibility for the survival of The Examiner is in a format totally different from the current newspaper—a reduced circulation, reduced coverage, "niche" product limited to San Francisco, without the same number of pages, the same amount of news, the same depth of news, and the same news staff and resources as the present Examiner.  (Tr., pp. 1687-88.)  The Fangs simply will not have the resources to publish a newspaper that will resemble what is now published in The Examiner in terms of depth of reporting or depth of features.  (Tr., pp. 1690-91.)  The Examiner under the Fangs cannot survive by competing directly with The Chronicle.  (Tr., p. 1691.)
	59.	The paper envisioned by the Fangs will neither compete directly with The Chronicle nor be equivalent to The Examiner.  The Examiner has an editorial staff of over 200; the Fangs envision a staff of 30 to 40.  (Tr., pp. 1168-70, 2115.)  The Examiner's present circulation exceeds 100,000.  The Fangs envision a paper with an initial circulation of 45,000.  (PX 3; DX E-133.)  A paper competitive with The Examiner requires up to eight sections and 64 to 96 pages.  (Tr., pp. 1094-95.)  The Fangs plan a 40 to 48-page paper.  (Tr., p. 2075.)  The present Examiner budget for the editorial staff alone is $17 million.  (Tr., p. 66.)  The Fangs plan to spend only $15 million for their entire operation.  (PX 103, 104, 105.)
	60.	It will be difficult for The Examiner to survive in any form with circulation less than 50,000.  (Tr., p. 2270.)
	61.	To maintain circulation of 80,000 to 100,000 will require resources far beyond those contemplated by the Fangs.  The circulation department alone, which is usually 20 percent of a total newspaper budget, will require $14 million per year, resulting in a total budget of $70 million, three to five times what the Fangs plan to spend.  (Tr., pp. 1026-27, 1065; PX 1065.)  The advertising department will require a minimum staff of 98 people to support the circulation.  (Tr., pp. 1208-12.)  The Fang's present presses are insufficient to print such a paper.  (Tr., pp. 1095-98.)
	62.	The Hearst agreement with the Fangs provides for a four-month transition period.  This will not be sufficient to allow for the Fangs to establish a daily newspaper in competition with The Chronicle.  (Tr., pp. 1100, 1108, 2258-59, 2278-80.)
	63.	The Fangs will be unable to realize synergies with their existing operations at The Independent in taking over The Examiner.  They are receiving no advertising contracts from the Agency.  The advertisers using The Independent are almost entirely different from the advertisers that use daily newspapers.  (Tr., pp. 1235-37, 2067-68, 2220-25.)
	64.	The Fangs do not intend to invest any of their own money in The Examiner.  (Tr., pp. 2117, 2287.)  They do not even have a business plan for The Examiner.  (Tr., pp. 1156-57, 2093, 2280-81.)  Their incentives under their agreement with Hearst are to spend only $15 million on the paper, which is in fact their intended budget, take $500,000 as a publisher's salary for Ted Fang, and pocket the $5 million "no strings" annual bonus payment from Hearst.
	65.	All of the experts testifying for both sides at trial concur that Hearst's transaction with the Fangs will not result in the continuation of The Examiner, the creation of a recognizable substitute product, or the existence of a newspaper competitive with The Chronicle.  (Tr., pp. 597-98, 607, 644, 1029-30, 1106, 1175-77, 1222, 1274-75, 1709-16; DX H-1190, pp. 47-48; PX 55-60; DX C-349.)
	66.	The Court agrees.  Hearst's transfer of The Examiner to the Fangs will result in the elimination of newspaper competition, not its preservation.
	I.	WORSE THAN A SHAM
	67.	On July 28, 1999, the purchase of The Chronicle imminent, Examiner publisher Timothy White met with San Francisco Mayor Willie Brown to seek his support for the acquisition.  Mayor Brown advised Hearst that if it wished to avoid problems with the City over The Chronicle acquisition, Hearst ought to settle litigation then pending with the Fang family.

Willie then reflected that it was really not smart for us to have something like this predatory pricing case “hanging around” when we’re trying to get something big done like an acquisition or merger.  He observed that funny undesired consequences often ripple from something like this, even if one thing has nothing directly to do with the other.

*	*	*

Willie seems like a friend in all this, but I am forewarned and often reminded that he’s a lot closer to the Fangs than he is to us.  [PX 99.]

White concluded that the Mayor was trying to "horse trade" with regard to The Chronicle.  (Tr., pp. 154‑56.)
	68.	White's supposition was correct.  As far back as May of 1996, when the Mayor had seen a news report that Hearst was about to buy The Chronicle, he had written to United States Attorney General Janet Reno to protest that the acquisition might damage the interests of the Fangs.  The Mayor's 1996 letter specifically referred to the litigation he was now advising Hearst to settle if it wished to buy The Chronicle.  (PX 126.)
	69.	White communicated with his superior in New York, George Irish, vice-president of Hearst newspaper operations, concerning the July 28 meeting.  Irish's notes of his conversation with White reflect that White made the following comments to him about the meeting with the Mayor:

Amazing.  Having a love affair.  Cordial.  Want support if it [The Chronicle purchase] comes to pass . . .
Why haven't you guys tried to settle [the state court case against the Fangs] . . .
Florence Fang called him.  The kids don't make any decisions.  She's the brains.  She owns it all.  She wants to come and see him either about the case or merger of C + E [Chronicle and Examiner]
Pivotal observation.  You don't want this in the way.
(PX 137; Tr., pp. 2021-29.)
	70.	The following day, July 29, 1999, White advised Mayor Brown that Hearst would “be pleased to meet with Florence Fang any time and any place.”  (PX 76.)
	71.	On August 6, 1999, Hearst announced its agreement to buy The Chronicle, as well as its intention to divest The Examiner.  Notwithstanding avowed opposition to the acquisition in the pages of The Independent, the Fangs were intensely interested in acquiring The Examiner.  They contacted Hearst to conduct due diligence and open negotiations.  (DX E‑11 to 15, E‑18 to 21, E‑23, E‑25 to 30, E‑32 to 34.)  They also solicited the support of the Mayor and other public officials through a series of meetings and other approaches.  (Tr., pp. 2203-09, 2213-18.)
	72.	On August 20, 1999, Mayor Brown wrote to Attorney General Reno protesting Hearst's purchase of The Chronicle on the ground that "[e]arly termination of the Joint Operating Agreement would result not only in the immediate closing of the city's second daily newspaper, but also threaten the existence of the city's third major newspaper as well."  (DX E‑137.)  The "third major newspaper" was The Independent.  (Tr., p. 2218.)  The Mayor sent copies of his letter to United States Senators Dianne Feinstein and Barbara Boxer, Congresswoman Nancy Pelosi, members of the Board of Supervisors and the San Francisco City Attorney, District Attorney, and Sheriff, among others.  (DX E‑137.)
	73.	On August 30, 1999, following the Mayor's letter, White again met with Mayor Brown, this time with Examiner managing editor Phil Bronstein.  At this meeting, White engaged in his own "horse trading" with the Mayor.  In an e-mail to Irish memorializing the meeting, White reported:

I asked Willie how I was going to justify to my superiors in New York wanting to support him and cooperate with him when he was seeming to go out of his way to make our lives miserable.  [PX 78.]
	74.	White testified at trial:

Q.	Is it not correct that you were in fact intending to convey to Mayor Brown that his support for Hearst's proposed acquisition of The Chronicle would result in more favorable treatment for him in The Examiner?
A.	Yes.  [Tr., p. 161.]

*	*	*

Q.	Okay.  So that if he -- so that if he went along with the  acquisition, that then when you folks were writing about him about muni and other areas, the stadium and other things, you wouldn't be as harsh as you otherwise would be?

A.	No, that wouldn't affect the journalism side.  It would affect the editorial side.

Q.	Well, "editorial side" means what?  In the editorials? 

A.	In the editorials.

Q.	So in the editorials you would not be as harsh with him as  you otherwise would be if he supported you on the acquisition of The Chronicle; right?

A.	Potentially.

Q.	Potentially, no.  You said that to him, though; didn't you?

A.	I -- it was pretty oblique.

Q.	Okay.  Well, but you felt that it was clear to him; did you not?

A.	I think it was.  [Tr., p. 162.]

*	*	*

Q.	. . .  You were doing a little horse trading yourself; weren't you?

A.	I was.

Q.	Now, the horse trade there was that if he goes along with the acquisition and helps and supports, then well, then, maybe the editorials were not going to be as hard on him as they otherwise would be? 

A.	That was the implication, yes.

Q.	The implication by you that the mayor would infer?

A.	Yes.  [Tr., p. 164.]
	75.	After this exchange at the August 30 meeting, the Mayor reported on a conversation with Attorney General Reno following up on his letter about The Chronicle acquisition, and assured White that he and other city officials would not be a problem for Hearst.  White reported in an e-mail to Irish,

The Mayor then told me that locally the City Attorney's inquiry into the matter had been assigned to Mr. Dennis Aftergut who the Mayor and Phil [Bronstein] agreed was not someone likely to lead a charge on a major issue.  [PX 78.]
(Tr., pp. 164-67.)
	76.	White also reported orally on the meeting in a phone call to Irish, whose notes of the call state:

Pretty amazing
Couldn't have been better.
Thanked him for allowing me to horn in
Told pals in NY all going well we wanted
*	*	*
Not going to do more—only if City Atty believes more needed—assignment to Dennis ___?___
Friend of Phil—light weight –
Racial
*	*	*
FBI investigation getting closer scrutiny in Examiner N [newspaper]
(PX 141; Tr., pp. 2002-03.)
	77.	Prior to this August 30 meeting, the Fangs had initiated negotiations with Hearst to acquire The Examiner.  (DX E‑11 to 15.)  After the meeting, during September and October, these negotiations intensified.  (DX E‑18 to 21, E‑23 to 30, E‑32, E‑33.)  Ultimately, however, they were fruitless, deteriorating into an exchange of accusations.  (DX E‑32.)  On October 5, Hearst advised the Justice Department that the Fangs' inquiries to Hearst were not in good faith, but were merely efforts to delay The Chronicle acquisition.  (PX 80.)  On November 9, in testimony to the Justice Department, Ted Fang called Hearst's efforts to sell The Examiner "phony."  (Tr., p. 2267.)  At the same time, Hearst was vainly trying to convince the Justice Department that Hearst should be allowed to purchase The Chronicle because The Examiner was a failing company.  (PX 16, 79, 80, 94.)
	78.	To break the impasse, on December 2, 1999, the Fangs' attorney, David Balabanian, called Hearst vice president James Asher “to explore a ‘package’ resolution of a variety of matters including the pending litigation, the sale of The Examiner and future relationship.”  The “package” offered by the Fangs had four parts: (1) settlement of the pre-existing state court litigation; (2) “The Fangs would ‘take The Examiner off our hands’” by taking assets and an annual payment of $35 million for six years, until the JOA expired, a total of $210 million; (3) Hearst would agree not to compete with the Fangs in the free newspaper field; and

4.  Assuming we reached agreement on all matters, the Fangs would use their extensive political connections to assist us in completing our purchase of The Chronicle.  

[PX 100.]  Hearst responded that it “would give it some consideration.”  (Id.)
	79.	On January 21, 2000, Examiner publisher White had lunch with Florence Fang and Senator Dianne Feinstein.  The lunch was arranged by Senator Feinstein at Villa Taverna after White complained to her about the Fangs' continuing attacks on The Chronicle sale in The Independent.  At the meeting, Senator Feinstein assured Mrs. Fang that Hearst’s purchase of The Chronicle would be good for the Fangs, and White urged Mrs. Fang to acquire The Examiner.  (PX 128; Tr., pp. 181-83.)
	80.	Four days later, on January 25, 2000, Hearst reoffered The Examiner for sale, this time with additional "hard" assets and a negotiable transition package.  (DX H-916, Exhibit C.)  On March 10, 2000, Hearst signed an agreement to negotiate exclusively with the Fangs.  (DX E‑70.)  On March 16, 2000, Hearst and the Fangs signed their agreement to transfer The Examiner to the Fangs for a negative price of $66 million.  (PX 36.)
	81.	The Fangs' offer to use their political connections to help Hearst acquire The Chronicle was admittedly a consideration to Hearst in deciding to whom to sell The Examiner.  (Tr., pp. 874-75.)
	82.	The Fangs' political connections were more than a consideration for Hearst; they were the reason Hearst transferred The Examiner to the Fangs.  (Portions of record cited in findings 67‑81, supra.)
	83.	The transfer of The Examiner to the Fangs was the culmination of an arrangement, either tacit or express, under which (1) Hearst agreed to provide favorable press treatment for Mayor Brown; (2) the Mayor agreed to support Hearst's purchase of The Chronicle if Hearst transferred The Examiner to the Fangs; (3) the Fangs dropped their opposition to Hearst's purchase of The Chronicle upon being able to obtain The Examiner; and (4) the federal government abandoned its opposition to Hearst's buying The Chronicle contingent on the Fangs' obtaining The Examiner.  (Id.)
	84.	The Fang transaction was the result of political deal-making, influence-peddling, and horse trading on the power of the press.  It was not the result of an effort to find a credible buyer able to preserve either The San Francisco Examiner or daily newspaper competition in San Francisco. (Id.)
	85.	For all of the reasons stated above, the Fang transaction is an anticompetitive sham.  (Portions of record cited in findings 54‑81, supra.)
	J.	COMPETITIVE EFFECTS
	86.	If Hearst acquires The Chronicle, and if The Examiner is transferred to the Fangs, or ceases publication, The Chronicle will become the only metropolitan daily newspaper published in San Francisco.  (Portions of record cited in findings 1‑85, supra.)
	87.	As the only metropolitan daily newspaper published in San Francisco, The Chronicle will be able to raise both advertising rates and subscription and newsstand prices. (Id.)
	88.	Internal Agency studies of the financial effects of discontinuing The Examiner and publishing only The Chronicle show that advertising rates can be expected to rise 14 percent.  (Tr., pp. 1675-79; DX H-983.)
	89.	DLJ studies show that whereas competition with two daily newspapers can be expected to lower advertising rates and newspaper prices to the benefit of advertisers and subscribers, the opposite (i.e., price increases) will occur with only a single metropolitan daily newspaper.  (PX 4, 5.)
	90.	If Hearst obtains The Chronicle and transfers The Examiner to the Fangs, The Chronicle will have no effective competition either as a daily newspaper in San Francisco, or as a regional newspaper in the Greater Bay Area.  (Portions of record cited in findings 1‑85 and 88‑89, supra.)
	91.	The transactions that are the subject of this lawsuit will result in the likelihood of Hearst's obtaining a monopoly in the daily newspaper market in the City and County of San Francisco, and in the daily newspaper market in the Greater Bay Area.  (Id.)
	92.	The transactions that are the subject of this lawsuit will substantially restrain trade and commerce in the daily newspaper market in San Francisco and in the daily newspaper market in the Greater Bay Area.  (Id.)
	93.	If consummated, the transactions that are the subject of this lawsuit will confer on Hearst market power and monopoly power, and will enable Hearst to raise advertising rates and newspaper prices above the levels that would otherwise prevail in the absence of these transactions. (Id.)
	94.	In the absence of the transactions that are the subject of this lawsuit, Hearst can be expected to publish The Examiner through the end of the JOA in 2005, realizing profits therefrom and ensuring residents of San Francisco of two editorially and reportorially independent newspapers. (Id.)
	95.	Hearst and CPC can also be expected during the term of the JOA to engage in economic competition in that each will endeavor to improve its position relative to the other in circulation, editorial content, and relations with advertisers, so as to be more advantageously situated to compete at the end of the JOA, or to negotiate more favorable terms through amendment of the JOA during its term. (Id.)
	96.	At the end of the JOA in 2005, the Court cannot rule out renewed competition between The Chronicle and The Examiner, given that the JOA requires the parties to devise a plan of dissolution that enables each to engage independently in the newspaper business; given that Hearst has repeatedly and strenuously avowed its intent to remain in the newspaper business in San Francisco after the JOA; and given that the rapid, unpredictable, and accelerating pace of technological change may lower costs to the point where newspaper competition is not only tenable but vigorous.  In today's world, the five years that remain in the JOA are too long for anyone safely to predict the demise of newspaper competition in 2005. (Id.)
	97.	If the transactions that are the subject of this lawsuit are consummated, any possible competition during the remaining five years of the JOA and thereafter will be eliminated, and consumers in San Francisco, including the plaintiff, will pay more for their daily newspapers and will be deprived of the benefit of two reportorially and editorially independent newspapers. (Id.)
	98.	The proposed transaction between Hearst and the Fangs, involving a negative price for the transfer of The Examiner to the Fangs, will not contribute to allocative efficiency and is thereby anticompetitive.  The negative price agreed to by Hearst is reflective of a decision by Hearst that it cannot acquire The Chronicle without providing for at least the appearance that The Examiner will continue as a separate newspaper.  Hearst's decision is in turn reflective of the view of the United States Department of Justice that (1) The Examiner is not a failing company, and (2) United States antitrust laws, as interpreted in light of the Newspaper Preservation Act, require that two independent daily newspapers be maintained in San Francisco if Hearst is to purchase The Chronicle. (Id.)
	99.	Hearst's agreement with CPC constitutes a contract or combination in unreasonable restraint of trade in, and a conspiracy to monopolize, the daily newspaper market in San Francisco, and in the Greater Bay Area. (Id.)
	100.	Hearst's agreement with the Fangs constitutes a contract or combination in unreasonable restraint of trade in, and a conspiracy to monopolize, the daily newspaper market in San Francisco, and in the Greater Bay Area. (Id.)
	101.	The provisions of the JOA providing for a right of first refusal and precluding competitors within a 60-mile radius from acquiring The Chronicle or The Examiner are unreasonable restraints of trade in the daily newspaper market, and were employed by Hearst to exclude buyers for The Chronicle and thereby unreasonably restrain trade and attempt to monopolize the relevant market.  (Id.)
	102.	The negotiations by Hearst and CPC for an agreement under which Hearst would close The Examiner and continue to receive revenue from the JOA constitute an attempt and conspiracy by Hearst and CPC to monopolize the relevant market.  (Id.)
	103.	In entering into the transactions that are the subject of this lawsuit, the defendants have acted with the specific intent for Hearst to obtain a monopoly in the relevant market.  (Id.)
	104.	Hearst's purchase of The Chronicle and transfer of The Examiner to the Fangs create a significant threat of injury to the plaintiff from an impending violation of the antitrust laws, in that, if these transactions are consummated, plaintiff will be forced to pay more for daily newspapers, newspaper output will be reduced, consumer choice will be narrowed, and plaintiff will be denied the benefit and deprived of two independent daily newspapers, a benefit plaintiff now enjoys. (Id.)

Respectfully submitted,
Dated:  May ___, 2000.			ALIOTO LAW FIRM

	By:___________________________________
		Joseph M. Alioto
	Angelina Alioto-Grace, Pro Hac Vice
	One Embarcadero Center, 39th Floor
	San Francisco, CA  94111
	Telephone:  415-434-8900

	SHULMAN, WALCOTT & SHULMAN, P.A.
	Daniel R. Shulman, Pro Hac Vice
	Jim Hilbert, Pro Hac Vice
	121 West Franklin Avenue
	Minneapolis, MN  55404
	Telephone:  612-871-2909

	Attorneys for Plaintiff Clinton Reilly