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Thursday, January 24, 2008

Jury Selection Under Way in Weekly Trial

Posted By on Thu, Jan 24, 2008 at 5:26 PM

By Andy Van De Voorde

The voir dire jury selection process got under way Thursday at Superior Court in the "predatory pricing" lawsuit filed against the Weekly by the Bay Guardian. In a courtroom overflowing with prospective jurors, Judge Marla J. Miller and attorneys for both sides interviewed approximately twenty possible panelists, but none were chosen before the end of the day.

Members of the jury pool called to testify included a man who said he had been kidnapped twice as a child in India, where his father worked as a journalist. Also called into the box were a longtime sculpture professor, a public-transit operator, an architect who specializes in building stadiums and arenas, an accountant for Chevron, and a woman who told Miller she makes and sells her own meditation CDs while studying for a master's degree.

When informed of the rough factual outline of the case -- one newspaper accusing another of selling its ads too cheaply -- one man, who owns his own business laying foundations, loudly told Miller, "If one man wants to sell his paper for less money, I believe he should be allowed to do so." (Read more after the jump)

Several of the prospective jurors told the court they were concerned about consolidation in the media, but most said they could be fair in assessing evidence presented at trial. "There is an issue of a smaller newspaper versus a larger newspaper," said one woman, a fundraiser for a nonprofit, who went on to acknowledge that she had a bias against "big companies taking over small companies."

The Guardian has sued not just the Weekly but also its former parent company, New Times Media. The New Times company is now part of Village Voice Media, which owns sixteen weekly papers around the country.

Other prospective jurors reacted dubiously when told about the underlying claim in the case. In response to a jury questionaire that asked if they had any concerns about "a case like this being brought to trial," two men, both officers with startup software companies, said they did, noting that it's common in today's business climate for companies to sell for less -- or even give products away -- as part of long-term marketing plans. "To say it's wrong to sell below cost is essentially an indictment of everything we've devoted our lives to," one of them told the judge.

As Miller told the jury pool earlier in the day, it is not illegal in California simply to sell a product below cost. It is only a violation of state statute if it can be proven that the below-cost sale was made with the intent to injure a competitor or destroy competition. As reported here previously, after nearly three years of discovery, the Guardian is heading into its trial against the Weekly without a single San Francisco advertiser to testify on its behalf. (By contrast, it became clear during Thursday's proceedings, when the judge read the names of possible witnesses to the jury pool, that several local business owners who have purchased advertising in both papers are on the Weekly's witness list.)

Rather than relying on local businesspeople to make its case, the Guardian instead has introduced into evidence reams of raw data relating to advertising sales -- much of it turned over to the Weekly on the eve of the trial -- and plans to have its own employees and paid expert witnesses attempt to divine patterns of alleged misconduct from within the documents.

That continuing reliance on what the Guardian apparently hopes to present as circumstantial evidence was underscored in yesterday's court proceedings, which took place before the jury pool was called. At a motions hearing on Wednesday, Guardian attorney Ralph C. Alldredge told Miller that the Weekly lost nearly $2 million in 2007. "So no doubt they were selling below cost," he added portentously.

Not surprisingly, that financial information was quickly reported on the Guardian's Web site by its executive editor, Tim Redmond.

However, what neither Alldredge nor Redmond noted was that deposition testimony taken in the case suggests that a significant portion of the Weekly's 2007 losses were the result of legal expenses specifically associated with fighting the Guardian's lawsuit.

The jury selection process starts up again Friday morning at 8:30 at the courthouse on McAllister.

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