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When attorney Daniel Rapaport walked into a standing-room only Alameda County, Calif., courtroom a year ago, it was likely the first time he was hissed at in court. The Wendel, Rosen, Black & Dean partner was representing Pacifica Foundation in the first of three suits that claim that the foundation illegally changed its bylaws in order to allow it to shift KPFA’s focus from one of public service to commercial gain. Plaintiffs’ counsel Daniel Siegel of Siegel & Yee in Oakland admits the protestors packing the courtroom were riled, but noted, “It was well-behaved hissing.” Public emotion has been running high over KPFA since Pacifica fired several well-respected broadcasters at the radio station in the spring of 1999. KPFA is a Berkeley, Calif.-based radio station known for its progressive politics. Pacifica, which in January transferred its headquarters from Berkeley to Washington, D.C., describes itself as the nation’s first listener-sponsored, community-based radio network. It distributes news and public affairs programs with a left-wing slant. According to the plaintiffs, several broadcasters were yanked off the air after they discussed internal matters on the radio. A faction on the Pacifica board wanted to make the stations it oversees, including KPFA, more profitable, the complaints allege. The board allegedly then illegally revamped its bylaws to take away control of the board from listeners. Adelson v. Pacifica Foundation, 8144612D0, was the first of three cases local advisory board members, KPFA’s listener-sponsors — as well as two of Pacifica’s own board members — have filed against the foundation. Since the initial filing, counsel for both sides have stirred up a whirlwind of debate over the legal sticking points in each case. The plaintiffs’ attorneys in the three suits have lobbed allegations of conflict of interest at Epstein Becker & Green for representing Pacifica since an Epstein partner is a Pacifica board member and a defendant in at least two of the cases. Meanwhile, Rapaport and partner Daly Temchine of Epstein Becker, who has pro hac vice status on Adelson and expects to represent Pacifica in the other suits, contend the plaintiffs don’t have standing to bring suit in Adelson and at least one of the other suits because of their far-removed status as local advisory board members and listener-sponsors, or KPFA donors. Additionally, Temchine contends Novato, Calif., solo practitioner Daniel Bartley filed a substantially different complaint with the Alameda County Superior Court than the one originally authorized by the attorney general. Under California law, only the attorney general can allege that a charitable organization’s trust has been breached. But the AG can give private plaintiffs quo warranto status to bring such suits, Bartley said. The plaintiffs’ attorneys in the three suits met in the last week of September to coordinate their individual strategies and begin talks on possibly joining their suits into a combined effort against Pacifica. POTENTIAL CONFLICT While brought one after the other, by different attorneys representing separate individuals, the allegations and claims for relief in each suit largely remain the same. All the plaintiffs allege that Pacifica’s board has illegally subverted its own bylaws in order to allow it to shift the station’s focus from community service to a commercial format. The second suit, People v. Pacifica Foundation, 8312522D3, was filed Sept. 15, when California Attorney General Bill Lockyer gave a batch of listener-sponsors quo warranto status to sue Pacifica for breaching its status as a charitable trust, among other matters. Five days later, Kenneth Frucht, a solo practitioner in San Francisco, filed Robinson v. Pacifica Foundation, 831286-0, against KPFA on behalf of Robert Robinson and Rabbi Aaron Kriegel, who both sit on the Pacifica board. The suit names all board members as defendants except the two plaintiffs. While Adelson was filed in July 1999, the conflict of interest accusations didn’t crop up until about three months ago when Pacifica retained Epstein Becker & Green as its general counsel. Plaintiffs’ attorneys say the potential conflict of interest arose because Epstein Becker partner John Murdock is a defendant in two of the cases. “I think it’s a conflict because Murdock is also a defendant,” Frucht said. “[Murdock] will also be a witness, so I think that’s a conflict of interest, too.” Pacifica’s counsel begs to differ. “The fact is we’ve gotten an independent opinion from independent counsel,” said Temchine. “[Murdock] has been totally distanced from any economic interest with the filing.” Although Rapaport, who is also defending Pacifica, backs up Temchine’s argument that there isn’t any conflict, he said that even if there is, Pacifica’s case won’t suffer. “Let’s say [Frucht] is completely right, then they’ll just go out and hire another firm,” he said. “It won’t have any dispositive effect on the case.” And Temchine takes issue with People, which names Murdock as a defendant. Temchine asserts that the complaint Bartley filed and the one the attorney general signed off on are not one in the same. “If I were the attorney general and I gave someone standing and they submitted a different pleading, maybe I’m being egocentric, but I’d be miffed,” Temchine said. But Lockyer’s office doesn’t appear to be concerned about the revisions to the original complaint. “It appears they revised the questions of governance and so forth,” said special assistant attorney general Taylor Carey. But pointing to the letter that grants the plaintiffs’ quo warranto status, he added that the attorney general’s approval allows the plaintiffs to add “other causes of action and relief as Relators deem appropriate.” Adelson is currently in the midst of discovery. An Oct. 20 hearing is set in People and Robinson to determine if they qualify as complex litigation. Frucht said there is the possibility that Adelson may be added to the hearing. If the case qualifies as complex, one judge will be assigned to all aspects of it.

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