By Andy Van De Voorde
Bay Guardian witness Jody Colley wasn’t sure about a lot of things when she took the stand again Thursday in her former employer’s predatory pricing lawsuit against the Weekly.
Colley, who was the Guardian’s sales boss until she left last year for the East Bay Express, told Weekly attorney Ivo Labar she “wasn’t sure” what percentage of the Guardian’s revenue came from Internet sales.
When asked whether the Guardian, which is accusing the Weekly of selling its ads too cheap, ever had marketing materials that claimed Weekly prices were too high for its circulation, she said she “didn’t remember.”
When asked if it was true that there are many niche Web sites that sell advertising in competition with weekly papers, she said, “I guess.”
When asked if it was true that the on-line classified site Craigslist represents special competition because it contains retail display advertising as well as classifieds, she responded, “That could be.”
When asked if during her time at the Guardian there were significant periods when the paper’s circulation wasn’t audited to ensure the accuracy of figures being provided to advertisers, she replied, “I don’t know.”
When asked whether in 2003 she had authorized Guardian salespeople to sell ads for rates below the Guardian's own costs--but only if the Weekly was competing for the same ads--she said, “I don’t remember.”
When asked if she had made efforts to stop other advertisers from doing business with the Weekly, Colley said, “I don’t remember that.”
When asked if it was true that, after the Weekly signed a large advertising deal with Bill Graham Presents (now known as Live Nation, a Clear Channel spinoff) that involved naming rights for the Warfield Theater, the Guardian responded by waging a public campaign against both the Weekly and the local concert firm, Colley said, “Define campaign.”
And when Labar asked her if she ever had any ideas about how to regain BGP’s business, Colley said she “didn’t remember.”
Labar was happy to refresh her memory on that last point, presenting to the jury an email Colley authored in June 2005 and sent to her boss, Guardian owner and publisher Bruce Brugmann, who has long sought to portray his paper as a well-meaning victim that has suffered unfair losses at the hands of the Weekly and its parent company, New Times (now Village Voice Media).
After providing Brugmann with several suggestions she believed would “chap SFW’s ass,” Colley offered an additional piece of advice relevant to her new plans to woo back BGP:
“However, we would have to call off the dogs on our ‘fuck SFW/New Times/Warfield/Clear Channel’ campaign, or rethink it at least.”
Labar also helped Colley recall that in 2003 she had committed to writing an instruction that Guardian salespeople could sell ads for as low as $1,000 per page if they were doing so to meet competition from the Weekly.
(The Guardian was interested in written testimonials at the time because it was already contemplating its lawsuit against the Weekly. Colley admitted Thursday that her employers asked staff to actively seek out witnesses who could testify that the Weekly had a plan to run them out of business. The Guardian filed its suit in October 2004, but will not call a single advertiser to testify on its behalf.)
Colley seemed more certain about an email she wrote in December 2005 in which she talked about concerns related to the Guardian’s redesign. The paper’s list of goals, Colley wrote, should include “making the SF Weekly look bad, because that’s always fun.” What’s more, she added, the Guardian should strive to make itself “sound strong (not like a paper with a circulation decrease, struggling and suing to stay in business).”
“That was a joke,” Colley told Labar when he asked her about the “suing to stay in business” comment.
And her plans to “make the Weekly look bad” as part of a marketing strategy?
“They were also a joke,” she said.
Colley appeared chagrined when Labar asked the next question.
“Did you joke often about the paper having a circulation decrease, struggling, and suing to stay in business?” he asked.
“No, I did not,” she answered as a serious expression came across her face. “It’s not really funny.”
Colley wasn’t the only Guardian witness who sought refuge in a claim of poorly executed humor on Thursday. A similar claim was made by Jennifer Lopez, a Guardian witness whose role in the case is no laughing matter.
Lopez is arguably the Guardian’s star witness: Her testimony is most critical to Brugmann’s claim that New Times meant to “injure” his paper by offering local customers low ad prices. (It is not illegal in California to sell a product below cost; it is only wrong if it is done in an attempt to injure a competitor or “destroy competition.”)
Lopez, a former saleswoman for the Weekly who later went to work for the Guardian, told Guardian attorney E. Craig Moody that at a 1995 meeting with Weekly staff, New Times executive editor Michael Lacey told the group he wanted the Weekly “to be the only game in town.”
The relevance of such a general comment allegedly uttered twelve years ago was unclear, particularly given that Lopez earlier told Moody that Lacey “can be considered very brash” and has a “colorful and animated way of speaking.”
The former Weekly employee also expressed the opinion that Lacey “likes profanity,” but added that she “wasn’t quite sure” whether, in a discussion of the Guardian’s journalistic quality, the mercurial editor had actually called it “a piece of shit.”
“I remember something along those lines,” Lopez said.
The saleswoman, who told the court she now works for Entertainment Weekly and is married to a columnist for the Wall Street Journal, offered Lacey a friendly smile and wave after she took the stand. But she was far less cordial with Weekly attorney H. Sinclair Kerr Jr.
Kerr drew a frosty response from Lopez when he took issue with her earlier testimony that during the meeting with Weekly staff, Lacey had thrown a copy of the Guardian on the floor and “stomped on it.”
What appeared to especially invoke Lopez’s wrath was Kerr’s mention of the fact that in her deposition testimony, Lopez related the paper-stomping incident but then said she “may have dreamed” it.
“You may not know this about me, but I can be very sarcastic,” said Lopez.
It was not clear whether she was being sarcastic at the time.
Earlier, when the court reporter expressed frustration that she couldn’t get down everything Kerr and Lopez were saying, Lopez took a chiding tone with Kerr, telling him she assumed he was finished speaking when he paused, but would in the future “give him two seconds” to pause before she would begin her reply.
When the attorney asked her if many print publications have been hurt by the free on-line classifieds offered by Craigslist, she shot back, “You tell me.”
Lopez also took exception when Kerr asked her if she was “disgruntled” because under the New Times commission system she would have to work harder to make the same amount of income--a concern she had gone to her bosses to complain about. She told him “dissatisfied” was a fairer description.
Lopez was less combative when Kerr asked her whether she knew at the time of the 1995 meeting that Lacey ran the editorial department, not the business department, of New Times. She said she did.
Kerr also asked if Lacey’s comments at the meeting had anything to do with advertising. Lopez replied that she distinctly remembered the editor commenting on the two papers’ journalism. She said she had no recollection of any comments relating to advertising or ad rates.
Under questioning from Moody, Lopez claimed that a former Weekly sales manager told her it was okay to sell ads below the “rate card” price because New Times was a large company that could “remain in the San Francisco market and lose money for at least ten years” if it chose to.
But Lopez later acknowledged to Kerr there was bad blood between her and the sales manager because she believed the woman had “made statements about her that weren’t true” after she left the Weekly.
Kerr also got Lopez to acknowledge that under the New Times commission system, she had every incentive to sell ads for as much money as she could possibly get for them.
The subject of incentives was already familiar to the jury. It also came up during Colley’s testimony, when Labar asked her if the Guardian’s fervent efforts to gather evidence for a lawsuit--including its demand that they provide “written testimonials”--provided an incentive for salespeople to concentrate more on sniffing out smoking guns than on trying to sell ads.
“You wouldn’t agree that would be a good excuse for not selling advertising?” he asked.
“I don’t think so,” she replied.
Labar also grilled Colley about her earlier claim that the Guardian had lost many accounts to the Weekly during her tenure.
“But you only have firsthand knowledge of the accounts you actually worked on, right?” he asked.
Colley admitted that was true, but noted that she “relied on her sales staff to keep her informed.”
“You only identified a few specific customers [lost to the Weekly because of price], right?” he asked.
Colley replied in the affirmative, though she acknowledged that even in some of those instances, she didn’t actually handle the accounts herself.
Labar then displayed a series of excerpts from the Guardian’s internal ad database which seemed to suggest at least two of those customers had reasons for taking their business to the Weekly that had nothing to do with low rates.
For instance, according to notations from the Guardian’s own employees, the dating service known as Table For Six complained about the lack of response it was getting to ads it had placed in the Guardian. One comment indicated the customer “wasn’t happy with the ad at all.” Another noted that the customer was pulling its ads for three weeks “due to extreme cash-flow problems.”
Another customer cited by Colley was an auto repair shop known as Brake and Wheel. But under questioning from Labar, she admitted that Brake and Wheel is currently running ads in the Guardian, and has been for years.
Sadly for Colley, her own database offered equally uncomplimentary information about her staff’s handling of that customer.
“Jesus, we messed up again,” a Guardian employee wrote on September 19, 2005. “[The customer] wants a full page in next year’s [Best of the Bay] issue for all of our mess-ups.”
Colley appeared to recall having seen those notations when Labar presented them on the screen for the jury.
But she appears to already be having some trouble keeping track of events at her new employer, the Express.
For instance, yesterday Colley told the court that the Express is “actually adding a lot more editorial to our paper.”
But when Labar pointed out that one of the first actions taken by the new owners of the Express last year was to summarily lay off several writers and editors, Colley professed ignorance, saying the firings took place “just as I walked in the door.”
She couldn’t tell him if a copy editor at her paper had been laid off, she said.
And she wasn’t sure if her new paper had fired its music editor.
Noted Colley, “I wasn’t involved.”