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In a long-shot effort to avoid paying millions of dollars in damages for unfairly pricing its advertising below the market rate, a San Francisco newsweekly argued July 8 that a faulty jury instruction and an overall lack of proof entitle it to a new trial. At a hearing before San Francisco Superior Court Judge Marla Miller, lawyers for the SF Weekly said the San Francisco Bay Guardian gave imprecise and wildly varying estimates for how much it was damaged by the Weekly’s ad pricing. They also argued that strongly worded internal sales memos by Weekly staff don’t prove that the paper intended to “injure competitors or destroy competition,” as required by the state statute the Guardian used to sue in 2004. James Wagstaffe and H. Sinclair Kerr Jr., two-thirds of the Weekly’s defense team, acknowledged outside court that it’s highly unusual for a trial judge to overturn a jury’s verdict. Ralph Alldredge, the San Andreas-based lawyer for the Guardian, said he hasn’t seen it happen in his 40-year career. Alldredge told Miller that the Weekly’s claims were already dealt with before trial, when the Guardian’s suit survived summary judgment, and that he presented the sales memos at trial with no objection. He said state law doesn’t require the Guardian to give the kind of detailed accounting of its losses that lawyers for the Weekly want to see. “The law is flexible enough to permit a party to … prove their damages … simply by saying, ‘There was this wrongful conduct, [and] I would’ve earned more during this period [without it],” he said. A jury concluded in March that the Weekly, its former sister paper the East Bay Express, and its parent company New Times Media owe the Guardian $6.3 million in damages. Miller later nearly tripled that amount to $15.9 million, pursuant to California Business and Professions Code §17082. Kerr and Wagstaffe, of the eponymous San Francisco firm, were joined by New Times counsel Don Moon on Tuesday. They contended that Miller gave an improper instruction, leading jurors to think the burden of proof was on the Weekly to show that it hadn’t tried to force the Guardian out of business. That was a matter of law for Miller alone to decide, they argued. The SF Weekly attorneys are also seeking to sever from liability New Times Media and East Bay Express Publishing, the limited partnership New Times set up to run the East Bay paper. Wagstaffe said after the hearing that the Guardian improperly sued them specifically for acting as “agents” of SF Weekly, meaning that they acted on the Weekly’s behalf. “The Bay Guardian incorrectly conflates agency with conspiracy,” he said during the hearing. Moon, arguing that Miller should rule for the Weekly notwithstanding the jury’s verdict, said established federal case law and appellate decisions in other states have shown that aggressive language by competitors — such as Weekly sales staff urging a “frontal assault” to get advertisers out of the Guardian — amount to “unguarded commercial puffery,” and not evidence that proves “predatory intent.” “Anti-competitive conduct and pro-competitive conduct quite often look the same,” Moon said. “There hasn’t been a predatory pricing case come to a successful conclusion in federal court for a quarter-century.” In response, Miller replied that she wasn’t “sure where that leaves me … now that we’re beyond the verdict.” “This is a case that survived summary judgment on a lot of different issues,” she said. Miller is required by statute to rule by July 18.

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