Flash: Bay Guardian Wins $15.6 Million Verdict In Predatory Pricing Suit Against SF Weekly

By Tim Redmond Special to The Planet
Tuesday March 04, 2008

Posted Wed., March 5—A San Francisco jury this afternoon found the San Francisco Weekly and its corporate parent guilty of illegal predatory pricing and awarded us $6.39 million. 

Under state law, part of that verdict is subject to treble damages, bringing the total award to $15.6 million.  

The battle isn’t over; Rod Kerr, attorney for the Weekly, told me immediately afterward that the 16-paper chain intends to appeal.  

But the verdict sends a clear signal to small businesses, independent newspapers and the alternative press that a locally owned publication has the right to a level playing field and that a chain can’t intentionally cut prices and sell below cost to injure a smaller competitor.  

The trial had been underway for more than five weeks. The Guardian charged the Weekly with violating the state’s Unfair Practices Act, a Progressive-era law that bars a company from selling a product below cost for the purpose of destroying competition.  

Evidence produced in the trial showed clearly that the Weekly had been selling ads below cost. In fact, the paper had lost money every year since the New Times chain, now known as Village Voice Media, bought it in 1995.  

The Guardian produced extensive evidence that the Weekly and VVM were trying to injury the local competitor, including three witnesses who testified that they heard Mike Lacey, one of the two principals of New Times, vow to put the Guardian out of business.  

The evidence produced also showed numerous internal emails discussing the Weekly’s battle plans to take ads away from the Guardian.  

The Weekly’s lawyers ultimately admitted to below-cost sales, but said they had no intent to harm a competitor. However, members of the jury interviewed after the case believed otherwise. Kerstin Sjoquist, a local business owner and graduate student, said in an interview that “it felt overly predatory on the part of the Weekly” and that “the predatory intent trickled down from the top.”  

Juror Dan Babin said he found the testimony of the Guardian’s co-owners “very, very trustworthy. I found them very honest in their approach.”  

A juror who didn’t want to be named said there was little disagreement among the panel members over the question of intent.  

By all accounts, the jurors carefully weighed all the evidence in the case, deliberating for more than three days and going through what one juror described as “unraveling an onion.”  

In the end, there was unanimous agreement that the Weekly had sold below cost, and 11 or the 12 jurors agreed that the paper had intended to harm competition.  

The jury ruled that New Times/VVM and the East Bay Express, which until recently was owned by VVM, were equally culpable in aiding the predatory sales.  

The Express is now an independent paper, and VVM is liable for any damages assessed against that publication.  

The jury foreperson handed the verdict to the court bailiff at 12:30 pm, and the clerk read the results to a packed and silent courtoom. As the various parts of the verdict were read, and it became obvious that the Weekly and VVM were liable for significant damages, Lacey could be heard mumbling “shit” over and over again.  

Lacey would not comment outside the courtroom and didn’t return our phone calls. But Kerr, in a brief interview, said he was “disappointed” with the jury decision. “We don’t believe the evidence supported the verdict,” he said, and vowed to file an appeal.  

The Guardian will now ask Judge Marla Miller to issue an injunction barring the Weekly from continued below-cost sales.  

VVM posted a lengthy statement on the web almost immediately after the verdict was announced, arguing that the Unfair Practices Act is flawed. The chain promised to seek to challenge the validity of that law on appeal.  

The process of appealing a case such as this can take years. But in the meantime, a San Francisco jury has sent a powerful message: Local businesses and local independent media matter – and big chains that try to use their deep pockets to squeeze the locals can be held to account. 


Tim Redmond is the executive editor of the San Francisco Bay Guardian