Daily Court Transcripts

May 09, 2000

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                                                     VOLUME 6 

                                                     PAGES 1083 - 1260  

                               UNITED STATES DISTRICT COURT 

                              NORTHERN DISTRICT OF CALIFORNIA 

              BEFORE THE HONORABLE VAUGHN R. WALKER, JUDGE 

              CLINTON REILLY,             ) 
                                          ) 
                         PLAINTIFF,       ) 
                                          ) 
                VS.                       )         NO. C 00-0119 VRW 
                                          ) 
              THE HEARST CORPORATION,     ) 
              ET AL.,                     ) 
                                          )   
                         DEFENDANTS.      ) 
              ____________________________)                             
                                         SAN FRANCISCO, CALIFORNIA 
                                         TUESDAY, MAY 9, 2000 
               
                                 TRANSCRIPT OF PROCEEDINGS 
              APPEARANCES: 
              FOR PLAINTIFF:          JOSEPH M. ALIOTO LAW FIRM 
                                      ONE EMBARCADERO CENTER, SUITE 4000 
                                      SAN FRANCISCO, CALIFORNIA  94111 
                                 BY:  JOSEPH M. ALIOTO                          
                                      ANGELINA ALIOTO-GRACE 
                                      ATTORNEY AT LAW  
                 
                                      SHULMAN, WALCOTT & SHULMAN, P.A.                         
                                      121 WEST FRANKLIN AVENUE 
                                      MINNEAPOLIS, MINNESOTA  55404 
                                 BY:  DANIEL R. SHULMAN 
                                      JAMES HILBERT 
                                      ATTORNEYS AT LAW   

                        (APPEARANCES CONTINUED ON FOLLOWING PAGE)   

              REPORTED BY:            JO ANN BRYCE, CSR, RMR, CRR, FCRR 
                                      JUDITH N. THOMSEN, CSR, RMR, FCRR 
                                      OFFICIAL REPORTERS, USDC 

                           COMPUTERIZED TRANSCRIPTION BY ECLIPSE 
               
               
               



                                                                         1084



         1    APPEARANCES:  (CONTINUED) 

         2    FOR DEFENDANT           SHEPPARD, MULLIN, RICHTER & HAMPTON 
              HEARST CORPORATION:     FOUR EMBARCADERO CENTER, 17TH FLOOR 
         3                            SAN FRANCISCO, CALIFORNIA  94111 
                                 BY:  GARY L. HALLING 
         4                            THOMAS D. NEVINS 
                                      ATTORNEYS AT LAW 
         5     
                                      BAKER & HOSTETLER LLP                         
         6                            1050 CONNECTICUT AVE., N.W. 
                                         SUITE 1100 
         7                            WASHINGTON, D.C.  20036            
                                 BY:  GERALD A. CONNELL 
         8                            ATTORNEY AT LAW                         
                                       
         9    FOR DEFENDANT           LATHAM & WATKINS 
              CHRONICLE PUBLISHING    505 MONTGOMERY STREET 
        10    COMPANY:                  SUITE 1900 
                                      SAN FRANCISCO, CALIFORNIA  94111 
        11                       BY:  PETER K. HUSTON 
                                      J. THOMAS ROSCH 
        12                            GREGORY P. LINDSTROM 
                                      ATTORNEYS AT LAW 
        13     
              FOR INTERVENOR-         MC CUTCHEN, DOYLE, BROWN & ENERSEN                         
        14    DEFENDANT EXIN, LLC:    THREE EMBARCADERO CENTER, SUITE 1800 
                                      SAN FRANCISCO, CALIFORNIA  94111  
        15                       BY:  DAVID M. BALABANIAN 
                                      CHRISTOPHER B. HOCKETT      
        16                            THOMAS S. HIXSON 
                                      ATTORNEYS AT LAW  
        17    

        18    

        19    

        20    

        21    

        22    

        23    

        24    

        25    



                                                                         1085



         1                               I N D E X 

         2     
              PLAINTIFF'S WITNESSES                         PAGE     VOL. 
         3     
              INGRAM, LAWRENCE L. 
         4    DIRECT EXAMINATION BY MR. SHULMAN              1091      6
              CROSS-EXAMINATION BY MR. HOCKETT               1111      6
         5    CROSS-EXAMINATION BY MR. LINDSTROM             1121      6
              CROSS-EXAMINATION BY MR. HALLING               1151      6
         6       
              SCHMIDT, JOHN SCOTT 
         7    DIRECT EXAMINATION BY MR. SHULMAN              1160      6
              CROSS-EXAMINATION BY MR. HOCKETT               1177      6
         8    CROSS-EXAMINATION BY MR. LINDSTROM             1186      6
              CROSS-EXAMINATION BY MR. HALLING               1190      6
         9    REDIRECT EXAMINATION BY MR. SHULMAN            1192      6
              RECROSS-EXAMINATION BY MR. HOCKETT             1194      6
        10       
              FLOOD, FRANK 
        11    DIRECT EXAMINATION BY MR. SHULMAN              1198      6
              CROSS-EXAMINATION BY MR. HUSTON                1223      6
        12    CROSS-EXAMINATION BY MR. HOCKETT               1227      6
              REDIRECT EXAMINATION BY MR. SHULMAN            1235      6
        13       
              WEAVER, MICHAEL ROGER 
        14    DIRECT EXAMINATION BY MR. SHULMAN              1238      6
               
        15                                                                                                                                                                                                                                                                                       
                                      E X H I B I T S 
        16     
               
        17    PLAINTIFF'S EXHIBITS   W/DRAWN       IDEN      EVID    VOL.   
               
        18    60                                             1240      6
              349                                            1162      6
        19     
              DEFENDANTS' EXHIBITS   W/DRAWN       IDEN      EVID    VOL.     
        20     
              E-88                                           1153      6
        21     
               
        22       
               
        23     
               
        24    

        25    



                                                                         1086



         1    TUESDAY - MAY 9, 2000                           8:40 A.M. 
               
         2     

         3               THE CLERK:  CALLING CIVIL 2000-119, CLINTON REILLY 

         4    VERSUS HEARST CORPORATION, ET AL. 

         5               COUNSEL, PLEASE STATE YOUR APPEARANCES. 

         6               MR. HALLING:  GARY HALLING FOR THE HEARST 

         7    CORPORATION. 

         8               MR. LINDSTROM:  GREG LINDSTROM, YOUR HONOR, FOR 

         9    CHRONICLE PUBLISHING. 

        10               MR. HOCKETT:  CHRISTOPHER HOCKETT FOR INTERVENOR 

        11    EXIN LLC. 

        12               MR. SHULMAN:  DAN SHULMAN FOR THE PLAINTIFF. 

        13               THE COURT:  ALL RIGHT.  GOOD MORNING, COUNSEL.  

        14    WE'RE READY, I GATHER, FOR CONTINUED TESTIMONY OF MR. INGRAM. 

        15               MR. SHULMAN:  CORRECT, YOUR HONOR. 

        16               THE COURT:  AND HE'S HERE READY TO GO, I ASSUME. 

        17               MR. SHULMAN:  YES, HE IS. 

        18               THE COURT:  BEFORE HE COMES TO THE STAND, LET ME 

        19    TAKE UP A COUPLE MATTERS WITH COUNSEL. 

        20               IN REVIEWING THE LEGAL LANDSCAPE WE HAVE, OF COURSE, 

        21    THE DEPARTMENT OF JUSTICE PRESS RELEASES IN THE ST. LOUIS CASE, 

        22    IN THE FRANKLIN, PENNSYLVANIA, CASE IN 1985 AND, OF COURSE, WE 

        23    HAVE THE PRESS RELEASE IN THIS CASE. 

        24               ARE THERE ANY OTHER PRESS RELEASES OR EXPRESSIONS 

        25    FROM THE DEPARTMENT OF JUSTICE ON THIS SUBJECT? 



                                                                         1087



         1               NOW, IN SOME OF THE MATERIALS THAT HAVE BEEN 

         2    SUBMITTED, THERE WAS REFERENCE TO AN AMICUS BRIEF THAT THE 

         3    DEPARTMENT FILED IN THE HAWAII CASE.  MY UNDERSTANDING OF THE 

         4    STATUS OF THAT CASE IS THAT THE NINTH CIRCUIT UPHELD THE 

         5    PRELIMINARY INJUNCTION, AND THE MATTER THEREFORE RETURNED TO 

         6    THE TRIAL COURT FOR FINAL JUDGMENT -- 

         7               MR. ALIOTO:  FOR TRIAL. 

         8               THE COURT:  -- FOR TRIAL, AND THERE ARE NO FURTHER 

         9    PROCEEDINGS IN THE NINTH CIRCUIT AT THIS TIME.  IF THAT IS 

        10    INCORRECT, I HOPE SOMEONE WILL CORRECT ME, BUT I ASSUME THAT'S 

        11    THE CASE. 

        12               QUERY:  DID THE DEPARTMENT FILE AN AMICUS BRIEF IN 

        13    THE NINTH CIRCUIT OR IN THE DISTRICT COURT? 

        14               MR. SHULMAN:  NINTH CIRCUIT, I BELIEVE. 

        15               MR. ALIOTO:  NINTH CIRCUIT. 

        16               MR. SHULMAN:  WE CAN PROVIDE A COPY OF THAT TO YOUR 

        17    HONOR. 

        18               THE COURT:  VERY WELL.  I APPRECIATE IT.   

        19               IS THERE ANY OTHER GUIDANCE THAT THE DEPARTMENT HAS 

        20    AFFORDED OTHER THAN THE ITEMS THAT I'VE MENTIONED? 

        21               MR. CONNELL:  YOUR HONOR, I MAY BE THE PERSON BEST 

        22    SITUATED TO ANSWER THAT.  THERE ARE NO OTHER PUBLIC STATEMENTS 

        23    BY THE DEPARTMENT WITH RESPECT TO TERMINATION OF OTHER JOA'S.  

        24    THEY NEVER ISSUED ANY. 

        25               THE COURT:  ALL RIGHT.  SO WE HAVE ONLY THE ST. 



                                                                         1088



         1    LOUIS PRESS RELEASE -- 

         2               MR. CONNELL:  FRANKLIN. 

         3               THE COURT:  -- THE FRANKLIN, PENNSYLVANIA, PRESS 

         4    RELEASE, THIS PRESS RELEASE WITH ALL THE LIGHT IT CASTS, AND 

         5    WHAT THE DEPARTMENT HAS SUBMITTED IN ITS AMICUS BRIEF IN THE 

         6    HAWAII CASE; IS THAT CORRECT? 

         7               MR. CONNELL:  THAT'S CORRECT, YOUR HONOR, AS FAR AS 

         8    SPECIFIC JOA TERMINATIONS ARE CONCERNED.  I TAKE IT THAT'S THE 

         9    QUESTION. 

        10               THE COURT:  THAT IS THE QUESTION. 

        11               MR. CONNELL:  YOUR HONOR, MAY I SAY THAT WE CAN PUT 

        12    IN, THROUGH -- DURING THE TESTIMONY OF DR. ROSSE A COMPLETE 

        13    LIST OF THE JOA'S AND WHEN THEY ENDED AND SO FORTH, AND THAT 

        14    MAY BE HELPFUL TO THE COURT. 

        15               THE COURT:  ALL RIGHT.  THAT WILL BE FINE. 

        16               MR. HALLING:  YOUR HONOR, JUST ONE SMALL 

        17    CLARIFICATION.  WHEN THE HAWAII CASE WENT BACK TO THE DISTRICT 

        18    COURT, THE PROCEEDINGS THERE HAVE CURRENTLY BEEN SUSPENDED 

        19    BECAUSE OF A STIPULATION AND ORDER FROM THAT COURT THAT 

        20    PROVIDED FOR A SALES EFFORT CONCERNING THE JUNIOR PAPER, AND 

        21    THAT ORDER SAYS THE SALES EFFORT WILL BE OUTSIDE THE JOA AND 

        22    WITHOUT A SUBSIDY; AND THEN IT COMES BACK TO THE DISTRICT 

        23    COURT, ACCORDING TO THE ORDER, FOR REVIEW IF THERE IS A BUYER. 

        24               THE COURT:  WHAT'S THE TIME PERIOD ON THAT EFFORT? 

        25               MR. CONNELL:  I BELIEVE IT'S FOUR MONTHS. 



                                                                         1089



         1               THE COURT:  AND THAT FOUR-MONTH PERIOD BEGAN WHEN? 

         2               MR. HALLING:  WITHIN THE LAST COUPLE OF WEEKS. 

         3               THE COURT:  AH, SO IT'S BASICALLY JUST STARTED; 

         4    CORRECT? 

         5               MR. HALLING:  YES. 

         6               THE COURT:  ALL RIGHT.  NOW, I DON'T WANT AN ANSWER 

         7    TO THIS QUESTION AT THE MOMENT, AND THE REASON I'M ASKING IT IS 

         8    FOR YOU TO BEGIN THINKING ABOUT IT AND BEGIN THINKING WHEN YOU 

         9    MAY PROVIDE SOME GUIDANCE.  WE STILL HAVE A CASE TO TRY AND I 

        10    UNDERSTAND WHAT IT'S LIKE WHEN YOU'RE IN TRIAL.  YOU DON'T HAVE 

        11    A LOT OF TIME TO GO TO THE LIBRARY AND DO LEGAL RESEARCH WHEN 

        12    YOU'RE IN THE MIDST OF TRIAL, BUT I WOULD LIKE YOU TO BE 

        13    THINKING ABOUT THIS QUESTION AND TO GIVE ME SUCH GUIDANCE AS 

        14    YOU CAN AS TO WHEN YOU MAY BE IN A POSITION TO RESPOND. 

        15               THE PARTIES, THE DEFENDANT PARTIES, TWO OF THE 

        16    DEFENDANT PARTIES, HEARST AND THE CHRONICLE, HAVE BEEN 

        17    OPERATING FOR 35 YEARS UNDER AN EXEMPTION AFFORDED BY THE 

        18    NEWSPAPER PRESERVATION ACT OR THE GLOSS ON THE ANTITRUST 

        19    STATUTES. 

        20               IF THE CONDITIONS FOR THAT EXEMPTION NO LONGER 

        21    APPLY, WHAT IS THE REMEDY?  IS THIS -- AND THIS IS SIMPLY A 

        22    FURTHER INQUIRY ALONG THAT LINE, IS THE REMEDY THE REMEDY THAT 

        23    TYPICALLY OBTAINS IN A SITUATION IN WHICH THERE HAS BEEN A 

        24    MERGER WHICH IS SUBSEQUENTLY FOUND TO VIOLATE SECTION 7 AND THE 

        25    COURT TYPICALLY IN THAT CASE, I BELIEVE, YOU MAY VERY WELL 



                                                                         1090



         1    DISABUSE ME OF THIS IDEA IF IT IS INCORRECT, BUT THE COURT 

         2    TYPICALLY IN THAT SITUATION ORDERS AN ORDERLY BUT PROMPT 

         3    SEGREGATION OF THE MERGED ASSETS?  IS THAT THE REMEDY WHICH 

         4    SHOULD APPLY IN THIS SITUATION IF THE EXEMPTION DOES NOT APPLY 

         5    HERE? 

         6               ALL RIGHT.  AS I SAY, I DON'T WANT AN ANSWER AT THE 

         7    MOMENT.  I DON'T EVEN WANT YOU TO TELL ME AT THE MOMENT WHEN 

         8    YOU'RE GOING TO BE IN A POSITION TO PROVIDE THAT ANSWER, BUT BE 

         9    THINKING ABOUT IT.  THIS IS SOMETHING THAT WE'LL DISCUSS LATER. 

        10               ALL RIGHT.  READY WITH MR. INGRAM? 

        11               MR. SHULMAN:  YES, YOUR HONOR. 

        12                         LAWRENCE L. INGRAM,  

        13    CALLED AS A WITNESS FOR THE PLAINTIFF, HAVING BEEN PREVIOUSLY 

        14    DULY SWORN, TESTIFIED FURTHER AS FOLLOWS:   

        15               THE COURT:  MR. INGRAM, YOU UNDERSTAND THAT YOU'RE 

        16    STILL UNDER THE OATH THAT YOU TOOK WHEN YOU TESTIFIED HERE LAST 

        17    FRIDAY? 

        18               THE WITNESS:  YES, I DO. 

        19               THE COURT:  VERY WELL.  MR. SHULMAN, YOU MAY 

        20    PROCEED. 

        21               MR. SHULMAN:  THANK YOU.  MAY IT PLEASE THE COURT. 

        22               DO WE HAVE EXHIBIT 23 ON THE.... 

        23    

        24    

        25    



                                                                         1091
                                 INGRAM - DIRECT \ SHULMAN 


         1                            DIRECT EXAMINATION   (RESUMED) 

         2    BY MR. SHULMAN: 

         3    Q.   WHEN WE BROKE ON FRIDAY, I WAS ASKING YOU QUESTIONS ABOUT 

         4    WHAT YOU HAD DESCRIBED AS YOUR 22-MONTH PHASE-IN PLAN THAT YOU 

         5    HAD WORKED OUT FOR MR. REILLY.  DO YOU RECALL THAT? 

         6    A.   YES, I DO. 

         7    Q.   AND WE HAD GOT TO THE STAGE OF THAT WHERE YOU WERE TALKING 

         8    ABOUT THE PLAN TO ESTABLISH A NEW PRINTING FACILITY FOR 

         9    MR. REILLY.  DO YOU REMEMBER THAT? 

        10    A.   YES. 

        11    Q.   AND YOU HAD MENTIONED THAT PART OF THE PLAN WAS TO TRY TO 

        12    OBTAIN THE PRESENT EXAMINER BUILDING AND REINSTALL IN THAT 

        13    BUILDING A PRINTING PLANT THAT HAD PREVIOUSLY BEEN THERE.  DO 

        14    YOU REMEMBER THAT? 

        15    A.   THAT'S RIGHT. 

        16    Q.   OKAY.  DID YOU HAVE ANYTHING TO DO WITH THE CREATION OF 

        17    THAT PRINTING PLANT IN THE EXAMINER BUILDING ORIGINALLY? 

        18    A.   YES.  IN I THINK IT WAS ABOUT -- 

        19    Q.   AND WOULD YOU EXPLAIN WHAT YOUR ROLE WAS IN THE CREATION 

        20    OF THAT PRINTING PLANT ORIGINALLY? 

        21    A.   OUR COMPANY HAD THE ASSIGNMENT TO DESIGN AND BUILD THAT 

        22    PARTICULAR PLANT, THE EXTENSION OF THE PLANT WHICH WAS THE 

        23    EXAMINER SIDE. 

        24    Q.   OKAY.  AND WERE YOU PERSONALLY INVOLVED IN THAT? 

        25    A.   YES. 



                                                                         1092
                                 INGRAM - DIRECT \ SHULMAN 


         1    Q.   AND YOU MENTIONED THAT AT SOME POINT IN TIME THE PRINTING 

         2    PLANT HAD BEEN REMOVED FROM THE EXAMINER BUILDING.  DO YOU 

         3    RECALL THAT? 

         4    A.   YES. 

         5    Q.   DID YOU HAVE ANYTHING TO DO WITH THE REMOVAL OF THAT 

         6    PRINTING PLANT FROM THE EXAMINER BUILDING? 

         7    A.   YES. 

         8    Q.   AND WHAT DID YOU HAVE TO DO WITH THAT? 

         9    A.   THAT WAS AS AN EMPLOYEE OF THE AGENCY, I WAS RESPONSIBLE 

        10    FOR BUILDING THE TWO SATELLITE PLANTS AND UPGRADING THE UNION 

        11    CITY PLANT AND DECOMMISSIONING THE PRINTING PLANT THERE ON 

        12    FIFTH AND MISSION. 

        13    Q.   OKAY.  SO YOU WERE PERSONALLY INVOLVED IN THAT? 

        14    A.   YES. 

        15    Q.   NOW, THE NEWSPAPER AGENCY TODAY HAS THREE PLANTS; CORRECT? 

        16    A.   THAT'S RIGHT. 

        17    Q.   YOU'RE FAMILIAR WITH THOSE PLANTS? 

        18    A.   YES, I AM. 

        19    Q.   DID YOU HAVE ANYTHING TO DO WITH REGARD TO THE 

        20    CONSTRUCTION OF ANY OF THOSE PLANTS? 

        21    A.   YES.   

        22    Q.   WOULD YOU -- WELL, WHAT ARE THE THREE PLANTS? 

        23    A.   THE PLANT KNOWN AS THE ARMY STREET PLANT DOWN ON 280 AND 

        24    ARMY STREET, THE RICHMOND PLANT WHICH IS THE NORTH PLANT UP IN 

        25    RICHMOND, ARE THE TWO SATELLITES THAT I BUILT. 



                                                                         1093
                                 INGRAM - DIRECT \ SHULMAN 


         1    Q.   OKAY.  YOU BUILT EACH OF THOSE TWO PRINTING PLANTS, 

         2    RICHMOND AND ARMY STREET? 

         3    A.   YES.  THAT'S RIGHT. 

         4    Q.   OKAY.  AND WHAT IS THE THIRD PLANT? 

         5    A.   IT IS THE UNION CITY PLANT IN UNION CITY. 

         6    Q.   AND WHAT, IF ANYTHING, DID YOU HAVE TO DO WITH THE 

         7    CONSTRUCTION OF THAT PLANT? 

         8    A.   I DIDN'T HAVE ANYTHING TO DO WITH THE CONSTRUCTION.  I 

         9    REMOVED THE PRESS EQUIPMENT AND REINSTALLED REBUILT EQUIPMENT 

        10    AT THE SAME -- AT ABOUT THE SAME TIME THAT WE BUILT SATELLITES. 

        11    Q.   OKAY.  AND YOU ALSO MENTIONED THAT OVER THE YEARS YOU'VE 

        12    BUILT A NUMBER OF NEWSPAPER PRINTING PLANTS. 

        13    A.   OUR COMPANY WAS RESPONSIBLE FOR BUILDING A LOT OF 

        14    NEWSPAPER PLANTS AND MAJOR ADDITIONS ON NEWSPAPER PLANTS. 

        15    Q.   OKAY.  AND YOU PERSONALLY HAVE BEEN INVOLVED IN BUILDING 

        16    PLANTS; CORRECT? 

        17    A.   THAT'S RIGHT. 

        18    Q.   YOU MENTIONED THE PAPER IN DETROIT; RIGHT? 

        19    A.   DETROIT NEWS. 

        20    Q.   CAN YOU JUST GIVE US SOME EXAMPLES OF SOME OF THE OTHER 

        21    PLANTS YOU'VE BUILT?  JUST NAME THE NEWSPAPERS AND THEIR 

        22    CIRCULATION, PLEASE. 

        23    A.   I'LL GUESS ON THE CIRCULATIONS.  THE DALLAS MORNING NEWS, 

        24    WHICH AT THAT TIME I THINK WAS AROUND 400,000.  THE -- I CAN'T 

        25    THINK THE NAME OF IT, THE OTHER DALLAS PAPER WHICH HAD A 



                                                                         1094
                                 INGRAM - DIRECT \ SHULMAN 


         1    CIRCULATION OF ABOUT 250,000. 

         2               THE COURT:  THE TIMES HERALD? 

         3               THE WITNESS:  THE TIMES HERALD, THANK YOU. 

         4               SAN MATEO TIMES WHICH PROBABLY WAS AROUND 70,000 AT 

         5    THE TIME WE BUILT THAT PLANT.   

         6               IT'S BEEN A WHILE, BUT I DID THE ANCHORAGE TIMES.  I 

         7    DID THE VANCOUVER, WASHINGTON; CHEYENNE, WYOMING; AND ALL OF 

         8    THOSE PAPERS HAD CIRCULATIONS OF AROUND 50 TO 60,000.  THEY 

         9    WERE SMALL PAPERS. 

        10               THE HOUSTON POST, WHICH WAS PROBABLY 300,000 AT THAT 

        11    TIME.  THE VISALIA, CALIFORNIA, I REALLY DON'T KNOW WHAT THE 

        12    CIRCULATION WAS THEN; CHILLICOTHE, OHIO, IT'S AROUND 60,000; 

        13    POUGHKEEPSIE, NEW YORK, WHICH I THINK WAS AROUND 90,000.   

        14               THERE WERE A NUMBER OF OTHERS, BUT I'M NOT RECALLING 

        15    THEM. 

        16    BY MR. SHULMAN: 

        17    Q.   ALL RIGHT.  NOW, THE PAPER THAT YOU WERE CONSULTING WITH 

        18    MR. REILLY ABOUT IF HE WERE SUCCESSFUL IN OBTAINING THE 

        19    EXAMINER, CAN YOU DESCRIBE THE PHYSICAL CHARACTERISTICS OF THAT 

        20    PAPER IN TERMS OF PAGES, COLOR AND LIKE THAT? 

        21    A.   THE PAPER THAT WE ENVISIONED, IN ORDER TO NOT BE 

        22    DISADVANTAGED COMPETITIVELY WITH THE CHRONICLE PHYSICALLY, WE 

        23    FELT THAT YOU NEEDED A PAPER THAT COULD -- HAD TO CARRY UP TO 

        24    EIGHT SECTIONS IN ORDER TO EFFECTIVELY DIFFERENTIATE BETWEEN 

        25    THE NEWS, SPORTS, BUSINESS, ET CETERA.   



                                                                         1095
                                 INGRAM - DIRECT \ SHULMAN 


         1               IT SHOULD CARRY THE SAME AMOUNT OF COLOR THAT THE 

         2    CHRONICLE CAN PRODUCE RIGHT NOW, WHICH IS ESSENTIALLY FRONT AND 

         3    BACK COLOR ON TWO TO FOUR SECTIONS.   

         4               IT NEEDS A PAGE CAPACITY OF ANYWHERE FROM 64 TO 96 

         5    PAGES, AND WOULD HAVE TO BE PRODUCED IN A WINDOW THAT WOULD 

         6    ALLOW THE EDITORIAL TO CLOSE ABOUT MIDNIGHT AND BE OUT TO PRESS 

         7    BY ABOUT 4:00 O'CLOCK. 

         8    Q.   SO THAT'S EIGHT SECTIONS, FOUR COLORS, 64 TO 96 PAGES? 

         9    A.   THAT'S RIGHT. 

        10    Q.   NOW, I HAD ASKED YOU IF YOU HAD ANY FAMILIARITY WITH THE 

        11    PRINTING CAPACITY OR THE EQUIPMENT AT THE INDEPENDENT, THE 

        12    FANGS' NEWSPAPER.  DO YOU RECALL THAT? 

        13    A.   YES. 

        14    Q.   HAVE YOU READ THE DEPOSITION TESTIMONY OF MR. FANG 

        15    CONCERNING THE PRINTING CAPACITY THAT HE HAS? 

        16    A.   YES. 

        17    Q.   OKAY.  IN YOUR -- 

        18               MR. HOCKETT:  I OBJECT TO THIS LINE OF QUESTIONS IN 

        19    THAT THIS WITNESS TESTIFIED THAT HE HAD NOT REVIEWED ANY OF 

        20    THAT.  THIS IS A NEW BASIS FOR HIS OPINIONS, AND WE HAVE MADE A 

        21    MOTION, WHICH WAS -- WHICH THE COURT SAID IT WOULD FAVORABLY 

        22    ENTERTAIN WHEN THE SITUATION AROSE, THAT NO -- 

        23               THE COURT:  MR. HOCKETT, NO SPEAKING OBJECTIONS.  

        24    WHAT'S YOUR OBJECTION? 

        25               MR. HOCKETT:  MY OBJECTION IS, YOUR HONOR, THAT THIS 



                                                                         1096
                                 INGRAM - DIRECT \ SHULMAN 


         1    WITNESS HAS NOT DISCLOSED -- 

         2               THE COURT:  NO SPEAKING OBJECTIONS, MR. HOCKETT.  

         3    WHAT'S YOUR OBJECTION? 

         4               MR. HOCKETT:  I'M SORRY, YOUR HONOR.  I'M JUST 

         5    REFERRING TO THE MOTION THAT I MADE BEFORE, WHICH IS THAT THE 

         6    WITNESSES WOULD NOT TESTIFY TO MATTERS NOT DISCLOSED IN THEIR 

         7    DECLARATIONS OR DEPOSITIONS. 

         8               THE COURT:  OBJECTION OVERRULED.  WHEN YOU STATE A 

         9    PROPER OBJECTION, I'LL RULE ON IT. 

        10               PROCEED. 

        11               MR. SHULMAN:  OKAY. 

        12    Q.   YOU HAVE READ MR. FANG'S TESTIMONY ABOUT HIS EQUIPMENT? 

        13    A.   YES. 

        14    Q.   OKAY.  DO YOU HAVE AN OPINION ABOUT WHETHER, WITH THAT 

        15    EQUIPMENT, MR. FANG WOULD BE ABLE TO PRODUCE A NEWSPAPER OF THE 

        16    TYPE YOU'VE DESCRIBED? 

        17               MR. HOCKETT:  OBJECTION, YOUR HONOR. 

        18               MR. HALLING:  OBJECTION. 

        19               MR. HOCKETT:  IT'S BEYOND THE SCOPE. 

        20               MR. HALLING:  BEYOND THE SCOPE OF THE DESIGNATION. 

        21               THE COURT:  WAS THIS WITNESS DESIGNATED FOR THIS 

        22    TESTIMONY? 

        23               MR. SHULMAN:  HE HAS A DECLARATION, YOUR HONOR.  HE 

        24    HAS -- THERE ARE DOCUMENTS HE PROVIDED WHERE HE DESCRIBED 

        25    WHAT -- 



                                                                         1097
                                 INGRAM - DIRECT \ SHULMAN 


         1               THE COURT:  WHERE IS HIS WITNESS STATEMENT? 

         2               MR. SHULMAN:  AND HIS DEPOSITION WAS ALSO TAKEN AT 

         3    SOME LENGTH. 

         4               THE COURT:  ALL RIGHT. 

         5               MR. SHULMAN:  IT'S EXHIBIT 57.  WELL, HIS 

         6    DECLARATION IS EXHIBIT 57. 

         7                        (PAUSE IN PROCEEDINGS.) 

         8               THE COURT:  HIS DECLARATION IS 57. 

         9               MR. SHULMAN:  RIGHT. 

        10               THE COURT:  AND THIS IS IN LIEU OF HIS WITNESS 

        11    STATEMENT? 

        12               MR. SHULMAN:  RIGHT, PLUS HIS DEPOSITION, YOUR 

        13    HONOR.  HE WAS DEPOSED WAS IT TWO DAYS OR ONE? 

        14               MR. HILBERT:  ONE. 

        15               MR. SHULMAN:  ONE, ONE-DAY DEPOSITION. 

        16               THE COURT:  OBJECTION OVERRULED.  YOU MAY PROCEED. 

        17    BY MR. SHULMAN: 

        18    Q.   DO YOU HAVE AN OPINION ABOUT WHETHER MR. FANG CAN PRODUCE 

        19    A PAPER OF THE TYPE YOU DESCRIBE WITH THE EQUIPMENT THAT HE 

        20    HAS?  YOU CAN ANSWER THAT YES OR NO. 

        21    A.   YES, I HAVE AN OPINION. 

        22    Q.   AND WHAT IS YOUR OPINION? 

        23    A.   THAT HE CAN'T PRODUCE THAT PRODUCT ON THE PRESS EQUIPMENT 

        24    THAT HE HAS. 

        25    Q.   HE CANNOT? 



                                                                         1098
                                 INGRAM - DIRECT \ SHULMAN 


         1    A.   CANNOT. 

         2    Q.   AND WOULD YOU EXPLAIN THE BASIS FOR YOUR OPINION, PLEASE. 

         3    A.   THE PRESS EQUIPMENT THAT HE HAS IS COST COMMUNITY PRESS, 

         4    WHICH IS A SINGLE-WIDTH PRESS.  IF ONE PLAYED AROUND, THAT 

         5    PRESS CAN PRODUCE TWO SECTIONS MAXIMUM.  IT CAN RUN UP TO 40 

         6    PAGES, AND THAT'S IN HIS DEPOSITION, AND, AS I UNDERSTAND, IT 

         7    CAN PRINT -- IT HAS TWO WEBS OF COLOR, SO IT CAN PRINT FOUR 

         8    PAGES OF COLOR.  IT COULD NOT BEGIN TO PRINT ANY -- ANYTHING 

         9    BEYOND THE 40 PAGES. 

        10               AND THE TIME THAT IT WOULD REQUIRE TO PRINT THAT 

        11    WOULD WELL EXCEED THE WINDOW THAT WOULD BE -- THAT WOULD ALLOW 

        12    IT TO BE COMPETITIVE AND CARRY AS LATE OF NEWS AS THE CHRONICLE 

        13    WOULD HAVE. 

        14    Q.   NOW, HAVE I COVERED WITH YOU IN YOUR TRANSITION PLAN WHAT 

        15    WOULD BE THE -- WHAT WOULD BE NEEDED IN ORDER TO SET UP WHAT 

        16    YOU'VE DESCRIBED AS THE NECESSARY FACILITIES TO PRINT THE 

        17    EXAMINER? 

        18    A.   ARE YOU REFERRING TO OUR PLAN? 

        19    Q.   RIGHT, YOUR PLAN. 

        20    A.   I BELIEVE WE HAVE.  I CAN GO OVER IT ONCE MORE IF YOU'D 

        21    LIKE. 

        22    Q.   YOU DON'T NEED TO DO THAT. 

        23    A.   ALL RIGHT. 

        24    Q.   ALL RIGHT.  IN ADDITION TO -- NOW, WE'VE GONE OVER THE 

        25    RENEGOTIATING THE LABOR CONTRACTS, SELLING THE ADS AND THE 



                                                                         1099
                                 INGRAM - DIRECT \ SHULMAN 


         1    PRINTING.  WHAT OTHER ASPECTS, IF ANY, ARE THERE TO THE 

         2    TRANSITION PROGRAM, THE 22-MONTH PHASE-IN, THAT YOU PROPOSED 

         3    FOR MR. REILLY? 

         4    A.   FOLLOWING THE RENEGOTIATION OF THE CONTRACT, THEN WE HAD 

         5    ASSUMED THERE WOULD BE PROBABLY A MONTH OF TRANSFER OF 

         6    OWNERSHIP; AND AT THAT TIME, MR. REILLY WOULD BEGIN THE PROCESS 

         7    OF ASSEMBLING THE EDITORIAL STAFF, HUMAN RESOURCES, FINANCE, 

         8    ALL OF THE SUPPORT STAFFS FOR THE PAPER SO THAT HE COULD TAKE 

         9    OVER THAT FUNCTION. 

        10               WE FELT THAT WOULD TAKE ABOUT FOUR MONTHS TO DEVELOP 

        11    THAT; AND AT THAT POINT HE WOULD BE -- HE WOULD THEN TAKE OVER 

        12    THE BUSINESS FUNCTIONS, EDITORIAL FUNCTIONS, OF THE PAPER. 

        13    Q.   NOW, HOW LONG WOULD, IN YOUR VIEW, WOULD IT TAKE TO 

        14    ESTABLISH THE PRINTING PLANT THAT YOU BELIEVE WOULD BE 

        15    NECESSARY? 

        16    A.   ANYWHERE FROM 12 TO 18 MONTHS DEPENDING ON AVAILABILITY OF 

        17    PRESS EQUIPMENT. 

        18    Q.   OKAY.  ALL RIGHT.  WHAT ELSE IS THERE, THEN, BESIDES 

        19    THE -- WHAT ELSE IS THERE IN THE TRANSITION PACKAGE? 

        20    A.   BUILDING THE CIRCULATION, SALES AND DISTRIBUTION STAFF.  

        21    AND I'VE GOT TO BACK UP AND SAY WE FELT IT'S EXTREMELY 

        22    IMPORTANT TO HAVE THIS TRANSITION BE AS SEAMLESS AS POSSIBLE 

        23    BECAUSE THE CIRCULATION IS FRAGILE.  WE FELT HE NEEDED TO MAKE 

        24    THIS MOVE SMOOTHLY. 

        25               THE DEVELOPMENT OF THE CIRCULATION STAFF WE FELT 



                                                                         1100
                                 INGRAM - DIRECT \ SHULMAN 


         1    WOULD TAKE ABOUT FOUR MONTHS, FOLLOWED BY THEN ASSEMBLING THE 

         2    ADVERTISING STAFF AND WORKING WITH THE EXISTING ACCOUNTS SO 

         3    THAT THERE WAS A TRANSFER OF THAT BUSINESS INTO THE NEW 

         4    BUSINESS.  AND WE FELT THAT WOULD TAKE ABOUT SIX MONTHS. 

         5    Q.   OKAY.  AND SO ALL OF THAT TAKES US -- WOULD TAKE YOU OUT 

         6    TO 22 MONTHS? 

         7    A.   THAT'S RIGHT. 

         8    Q.   NOW, ARE YOU AWARE THAT THE AGREEMENT BETWEEN HEARST AND 

         9    THE FANGS PROVIDES FOR A FOUR-MONTH TRANSITIONAL PERIOD? 

        10    A.   YES. 

        11    Q.   IN YOUR -- DO YOU HAVE AN OPINION ABOUT WHETHER THAT IS A 

        12    SUFFICIENTLY LONG TRANSITION PERIOD IN ORDER TO PRODUCE A PAPER 

        13    THAT IS COMPETITIVE WITH THE CHRONICLE?  YES OR NO. 

        14    A.   NO. 

        15    Q.   YOU DON'T HAVE AN OPINION? 

        16    A.   OH, I HAVE AN OPINION.  YES, I HAVE AN OPINION. 

        17    Q.   OKAY.  AND WHAT IS YOUR OPINION? 

        18    A.   THAT IT'S NOT LONG ENOUGH. 

        19    Q.   OKAY.  AND WHAT IS THE BASIS FOR THAT OPINION? 

        20    A.   THE MAIN ONE IS THE INABILITY TO DEVELOP THE PRINTING 

        21    FACILITIES TO PRODUCE A PAPER THAT WOULD BE COMPETITIVE.  BUT 

        22    EVEN BEYOND THAT, THE BUSINESS TRANSITION NEEDS TO BE -- NEEDS 

        23    TO BE DONE IN A SLOWER AND SMOOTHER FASHION. 

        24    Q.   OKAY.  IF YOU LOOK AT THE LAST PAGE OF EXHIBIT 23, IT IS 

        25    ENTITLED "SAN FRANCISCO EXAMINER ESTIMATED EXPENSES."  ARE YOU 



                                                                         1101
                                 INGRAM - DIRECT \ SHULMAN 


         1    FAMILIAR WITH THIS? 

         2    A.   YES. 

         3    Q.   CAN YOU EXPLAIN WHAT THIS IS? 

         4    A.   THIS IS PART OF THE DOCUMENT THAT WE PREPARED AFTER OUR 

         5    FIRST MEETING IN ORANGE COUNTY, AND THIS -- THE DOCUMENT ON THE 

         6    EXPENSES WAS A DOCUMENT THAT WAS PREPARED BY MIKE WEAVER.  WE 

         7    ATTACHED THAT TO THIS TO GIVE CLINT SOME FEEL FOR WHAT THE 

         8    COSTS MIGHT BE TO OPERATE THIS. 

         9               THE BOTTOM PART OF IT IS A VERY QUICK ESTIMATE OF 

        10    THE CAPITAL COSTS THAT WOULD BE INVOLVED. 

        11    Q.   OKAY.  WE'LL ASK MR. WEAVER ABOUT THE FIRST PART.  HE 

        12    PREPARED THAT? 

        13    A.   YES. 

        14    Q.   OKAY.  THE BOTTOM OF THE PAGE IS "EQUIPMENT CAPITAL 

        15    COSTS."  WERE YOU INVOLVED IN THE PREPARATION OF THAT? 

        16    A.   YES. 

        17    Q.   AND WOULD YOU EXPLAIN WHAT THAT SHOWS? 

        18    A.   IT SHOWS THE LINE ITEMS OF THE BASIC EQUIPMENT THAT WOULD 

        19    BE REQUIRED TO DEVELOP THE PRINTING FACILITIES TO TAKE OVER 

        20    THIS WORK ASSUMING THAT WE WOULD BE LOCATED IN THE 110 FIFTH 

        21    STREET BUILDING; THE PRESS EQUIPMENT WE HAD ESTIMATED AT EIGHT 

        22    AND A HALF MILLION IF IT WERE USED EQUIPMENT; THE MAIL ROOM AND 

        23    DOCK EQUIPMENT AT 4.8 MILLION; AND MATERIAL HANDLING, SUCH AS 

        24    ROLL-HANDLING EQUIPMENT, OF ABOUT A MILLION; AND AN ESTIMATE OF 

        25    ABOUT 700,000 FOR ADDITIONAL PRINTING PRESS EQUIPMENT; AND A 



                                                                         1102
                                 INGRAM - DIRECT \ SHULMAN 


         1    MILLION AND A HALF JUST A CONTINGENCY FUND IN THERE. 

         2               THIS WAS NOT AN ESTIMATE THAT A LOT OF TIME WAS PUT 

         3    INTO.  WE LATER WENT BACK AND REVISITED THIS.  BUT THIS IS A -- 

         4    THIS WAS, AGAIN, TO GIVE MR. REILLY SOME IDEA OF WHAT HIS 

         5    EXPOSURE MIGHT BE. 

         6    Q.   LET ME ASK YOU TO TURN NEXT TO EXHIBIT 28 IN EVIDENCE.  DO 

         7    YOU HAVE THAT IN FRONT OF YOU? 

         8    A.   YES, I DO. 

         9    Q.   AND EXHIBIT 28 IS A FAX TRANSMISSION FROM YOU TO 

        10    MR. REILLY AND IT'S DATED -- WELL, IF WE LOOK AT THE -- WHERE 

        11    DID I GET THAT DATE?  OH, IT'S DATED FEBRUARY 29, 2000.  DID 

        12    YOU PREPARE THIS? 

        13    A.   YES. 

        14    Q.   AND DID YOU SEND IT TO MR. REILLY ON OR ABOUT THIS DATE? 

        15    A.   YES, I DID. 

        16    Q.   OKAY.  AND THIS IS ABOUT A MONTH BEFORE THE MARCH 25 

        17    MEETING IN MR. REILLY'S OFFICE; CORRECT? 

        18    A.   RIGHT. 

        19    Q.   WAS THIS DONE IN CONNECTION WITH YOUR CONSULTING WITH 

        20    MR. REILLY IF HE WERE TO MAKE AN OFFER FOR THE EXAMINER? 

        21    A.   THAT'S RIGHT. 

        22    Q.   OKAY.  CAN YOU EXPLAIN WHAT THIS IS? 

        23    A.   THIS WAS A DOCUMENT THAT I PREPARED TO TRY TO GO THROUGH 

        24    IN AS MUCH DETAIL AS I COULD THE ELEMENTS OF THE PROPOSED 

        25    BUSINESS AND PUT TOGETHER WHAT I FELT WOULD BE THE COST IF WE 



                                                                         1103
                                 INGRAM - DIRECT \ SHULMAN 


         1    WERE ABLE TO ACHIEVE A NUMBER OF THINGS.  NUMBER ONE WOULD BE 

         2    THE RENEGOTIATION OF THE CONTRACTS TO A LEVEL THAT WOULD BE 

         3    MORE APPROPRIATE FOR THIS SIZE OF A PAPER, RESTRUCTURING OF THE 

         4    EDITORIAL, ADVERTISING, CIRCULATION TO MAKE THEM MORE -- MORE 

         5    LIKE A PAPER THIS SIZE. 

         6               THIS I VIEWED, AND IN MY CONVERSATIONS WITH 

         7    MR. REILLY I CONVEYED THIS TO HIM, THAT THIS WOULD BE SIMILAR 

         8    TO A BUDGET THAT WE'D HAVE TO FOLLOW.  THESE WOULD BE THE COSTS 

         9    AT THE VERY MINIMUM THAT WE COULD PROBABLY ACHIEVE AND WE'D 

        10    HAVE TO BE PREPARED TO SPEND. 

        11    Q.   OKAY.  I WANT TO BACK UP FOR JUST A SECOND.  WHEN WE WERE 

        12    TALKING ABOUT THE PAPER THAT YOU ENVISIONED FOR MR. REILLY, 

        13    WHAT YOU CONSIDERED TO BE THE COMPETITIVE PAPER WITH THE 

        14    VARIOUS CHARACTERISTICS, PAGES, ET CETERA, WHAT WAS THE 

        15    CIRCULATION THAT YOU ASSUMED FOR THAT PAPER? 

        16    A.   85 TO 90,000. 

        17    Q.   OKAY.  AND SO WHEN YOU ANSWERED WITH REGARD TO THE ABILITY 

        18    OF THE FANGS TO PRINT A PAPER, WAS IT WITH REGARD TO A PAPER OF 

        19    THAT SIZE CIRCULATION? 

        20    A.   THAT'S RIGHT. 

        21    Q.   OKAY.  AND THE EXPENSES THAT YOU'RE TALKING ABOUT HERE, 

        22    AND I'M LOOKING AT THE SECOND PAGE, THE EXECUTIVE SUMMARY, WHAT 

        23    ARE THE -- IS THIS FOR A PAPER OF THAT TYPE OF THOSE 

        24    CHARACTERISTICS? 

        25    A.   YES, IT IS. 



                                                                         1104
                                 INGRAM - DIRECT \ SHULMAN 


         1    Q.   TELL US WHAT THIS SHOWS IN TERMS OF EXPENSES. 

         2    A.   THE ESTIMATE HERE IS JUST OVER $45 MILLION A YEAR TO 

         3    PRODUCE THE PAPER YOU DESCRIBED, FIVE DAYS A WEEK PLUS A 

         4    WEEKEND EDITION. 

         5    Q.   OKAY, $45,130,600? 

         6    A.   THAT'S RIGHT. 

         7    Q.   YOU ALSO MADE SOME ASSUMPTIONS ABOUT REVENUE; RIGHT? 

         8    A.   I DIDN'T MAKE THE ASSUMPTIONS ABOUT THE REVENUE.  THESE 

         9    ARE NUMBERS THAT I REQUESTED. 

        10    Q.   FROM? 

        11    A.   FROM DAVID BEIHOFF. 

        12    Q.   AND WHO'S MR. BEIHOFF? 

        13    A.   MR. BEIHOFF IS THE GENERAL MANAGER OF THE PITTSBURGH POST 

        14    GAZETTE, AND THE REASON I ASKED DAVE TO DO THIS IS HE HAD BEEN 

        15    THE VICE PRESIDENT OF ADVERTISING FOR THE SAN FRANCISCO 

        16    NEWSPAPER AGENCY UNTIL, OH, I THINK ABOUT 1994 AND HE HAD SOME 

        17    EXPERTISE IN THAT. 

        18    Q.   OKAY.  AND WHAT YOU SHOW HERE SHOWS THE PAPER MAKING A 

        19    PROFIT; RIGHT? 

        20    A.   YES. 

        21    Q.   ALL RIGHT.  IF YOU LOOK AT THE NEXT PAGE, IT SAYS, 

        22    "DESCRIPTION OF PRODUCT AFTER INITIAL PHASE-IN."  CAN YOU TELL 

        23    US WHAT THIS IS? 

        24    A.   THIS WAS AN ATTEMPT TO SHOW WHAT WE BELIEVE THE PAPER 

        25    NEEDED TO BE WHEN WE DID GET THROUGH THE PHASE-IN; IN OTHER 



                                                                         1105
                                 INGRAM - DIRECT \ SHULMAN 


         1    WORDS, WHEN MR. REILLY WOULD BE RESPONSIBLE FOR THOSE COSTS.   

         2               AND WE STARTED WITH THE CIRCULATION AND IN THE AREAS 

         3    THAT IT WOULD BE.  I SPENT A FAIR AMOUNT OF TIME TALKING TO 

         4    DAVE BEIHOFF, AND WE HAD AGREED THAT IT WAS IMPORTANT TO 

         5    MAINTAIN THE CIRCULATION IN WHAT WOULD BE THE METROPOLITAN AREA 

         6    OF SAN FRANCISCO, BUT WE COULD, WITHOUT ANY EFFECT TO THE 

         7    ADVERTISING REVENUES, SHED A PORTION OF THE CIRCULATION, ABOUT 

         8    17,000, THAT WERE IN OUTLYING AREAS AND DIDN'T SUPPORT THE 

         9    ADVERTISING RATES. 

        10               SO THE FIRST PART OF THIS BASICALLY IS JUST 

        11    REHASHING WHAT THE CIRCULATION FIGURES ARE RIGHT NOW IN THOSE 

        12    AREAS. 

        13    Q.   OKAY.  AND THEN THE REST OF THIS PROVIDES DETAIL ON YOUR 

        14    ESTIMATES OF THE COSTS, THE $45 MILLION THAT YOU BELIEVE IT 

        15    WOULD TAKE TO DO A PAPER OF THIS SIZE? 

        16    A.   YES. 

        17    Q.   ALL RIGHT.  LET ME -- I WANT TO GO BACK NOW TO YOUR 

        18    DECLARATION, EXHIBIT 57. 

        19    A.   (WITNESS EXAMINES DOCUMENT.)  

        20    Q.    AND I WANT TO DIRECT YOUR ATTENTION -- THIS IS THE 

        21    DECLARATION YOU DID IN CONJUNCTION WITH THE MEETING ON MARCH 

        22    25; CORRECT? 

        23    A.   CORRECT. 

        24    Q.   ALL RIGHT.  I WANT TO DIRECT YOUR ATTENTION TO PARAGRAPH 4 

        25    ON THE SECOND PAGE. 



                                                                         1106
                                 INGRAM - DIRECT \ SHULMAN 


         1    A.   YES. 

         2    Q.   YOU SAY, BEGINNING AT LINE 17: 

         3                   "BASED UPON THOSE FACTS AND MY EXPERIENCE IN 

         4               THE INDUSTRY, THE PRESENT SUBSIDY BY HEARST WILL 

         5               NOT UNDER ANY CIRCUMSTANCES BE ABLE TO SUPPORT 

         6               THE PROBABILITY OR EVEN THE POSSIBILITY OF A 

         7               VIABLE PAPER WHICH WOULD BE COMPETITIVE TO THE 

         8               CHRONICLE.  IN ORDER TO PRODUCE A VIABLE, 

         9               COMPETITIVE PAPER, A BUYER OF THE EXAMINER WOULD 

        10               NEED A SUBSIDY OF $50 MILLION FOR FIVE YEARS OR 

        11               A ONE-TIME PAYMENT OF $250 MILLION." 

        12               DO YOU SEE THAT? 

        13    A.   YES. 

        14    Q.   IS THAT YOUR OPINION? 

        15    A.   YES. 

        16    Q.   ON WHAT DO YOU BASE THAT OPINION? 

        17    A.   I BASE IT ON THE FACT THAT WE HAD GONE THROUGH THESE COST 

        18    ESTIMATES A NUMBER OF TIMES.  I HAD INDEPENDENTLY AND WE HAD AS 

        19    A GROUP, MR. FLAHERTY, MR. WEAVER AND MYSELF, AND WE'D ALL COME 

        20    UP WITH THE COSTS OF AROUND $50 MILLION A YEAR TO PRINT THIS 

        21    PAPER AT A MINIMUM. 

        22    Q.   OKAY.  NOW, IN THE STUDY THAT WE JUST LOOKED AT, YOU 

        23    SHOWED A -- YOU SHOWED THE PAPER WITH A COST OF $50 MILLION, 

        24    $45 MILLION, MAKING A PROFIT.  DO YOU RECALL THAT? 

        25    A.   YES. 



                                                                         1107
                                 INGRAM - DIRECT \ SHULMAN 


         1    Q.   OKAY.  HOW DO YOU RECONCILE THAT WITH YOUR OPINION THAT 

         2    THE HEARST SUBSIDY WOULD NOT UNDER ANY CIRCUMSTANCES BE ABLE TO 

         3    SUPPORT THE PROBABILITY OR EVEN THE POSSIBILITY OF A VIABLE 

         4    PAPER WHICH WOULD BE COMPETITIVE TO THE CHRONICLE? 

         5    A.   THIS PRO FORMA THAT WE HAD WAS BASED ON THE ADVERTISING 

         6    REVENUES THAT WERE DEVELOPED BY DAVE BEIHOFF, AND THEY WERE 

         7    THE -- THE UNDERLYING ASSUMPTION WAS THAT THIS WOULD BE AFTER 

         8    THIS PAPER HAD GONE THROUGH THE PHASE-IN PERIOD AND REACHED 

         9    EQUILIBRIUM.   

        10               THAT I THINK ALL OF US ASSUME THAT THERE'S GOING TO 

        11    BE A PERIOD IN THERE WHERE IN ORDER TO STABILIZE THE NEWSPAPER 

        12    YOU PROBABLY WOULD GIVE MOST THE ADVERTISING AWAY JUST AS 

        13    U.S.A. TODAY HAD TO DO WHEN THEY ESTABLISHED THEMSELVES.  

        14    THERE'S NOTHING TO INDICATE THAT YOU'RE GOING TO GET THAT 

        15    ADVERTISING.  THAT'S THE POTENTIAL THAT'S OUT THERE AND THE 

        16    POTENTIAL THAT'S THERE IN MR. BEIHOFF'S JUDGMENT IF YOU HAVE A 

        17    SUCCESSFUL PAPER THAT COMPETES WITH THE CHRONICLE AND IS ABLE 

        18    TO MAINTAIN THE SAME RELATIVE STRENGTH IN THE METROPOLITAN AREA 

        19    THAT IT PRESENTLY HAS AGAINST THE CHRONICLE. 

        20    Q.   OKAY.  AND THE PHASE-IN PERIOD YOU'RE TALKING ABOUT WAS 

        21    THE 22-MONTH PHASE-IN PERIOD? 

        22    A.   THAT'S THE PHASE-IN PERIOD BEFORE YOU WOULD BE RESPONSIBLE 

        23    FOR FULL PRODUCTION AND SALES YOURSELF.  NONE OF US KNEW FOR 

        24    SURE HOW LONG YOU'D HAVE TO GO BEFORE YOU COULD -- YOU COULD 

        25    FIND YOURSELF IN A POSITION COMPETITIVELY WHERE YOU COULD BEGIN 



                                                                         1108
                                 INGRAM - DIRECT \ SHULMAN 


         1    TO RAISE YOUR AD RATES WHERE THEY NEEDED TO BE, BUT THE NUMBER 

         2    ONE THING YOU HAD TO HAVE WAS YOU HAD TO CARRY A REPRESENTATIVE 

         3    AMOUNT OF ADVERTISING IN THE PAPER ALL THE TIME EVEN IF YOU HAD 

         4    TO DO IT AT VERY LITTLE REVENUE. 

         5    Q.   IN -- OKAY. 

         6               YOU SAY AFTER THE FOUR-MONTH -- BACK IN YOUR 

         7    DECLARATION YOU SAY: 

         8                   "AFTER THE FOUR-MONTH TRANSITION PERIOD, PAN 

         9               ASIA WILL NOT BE ABLE TO PRODUCE A VIABLE 

        10               COMPETITIVE DAILY NEWSPAPER," END OF QUOTE. 

        11               DO YOU SEE THAT? 

        12    A.   YES. 

        13    Q.   IS THAT YOUR OPINION? 

        14    A.   YES. 

        15    Q.   WHAT IS THAT BASED ON? 

        16    A.   THEY DON'T HAVE THE EQUIPMENT TO PRODUCE A PAPER THAT CAN 

        17    STAND ALONGSIDE THE CHRONICLE, AND FOUR MONTHS WON'T GIVE THEM 

        18    ENOUGH TIME TO DEVELOP THAT ABILITY. 

        19    Q.   OKAY.  YOU SAY, QUOTE: 

        20                   "THE PRODUCTION CAPACITY NECESSARY TO 

        21               PRODUCE A MORNING NEWSPAPER THAT CAN BE 

        22               COMPETITIVE WITH THE CHRONICLE IS SIGNIFICANT.  

        23               THE PRODUCTION" -- END OF QUOTE.   

        24               AND YOU'VE TOLD US ABOUT THAT; RIGHT? 

        25    A.   RIGHT. 



                                                                         1109
                                 INGRAM - DIRECT \ SHULMAN 


         1    Q.   OKAY.  YOU SAY, QUOTE: 

         2                   "THE PRODUCTION SYSTEM REQUIRED FOR THE 

         3               PUBLICATIONS, WHICH THE INDEPENDENT NOW 

         4               PRODUCES, CANNOT SATISFY THE REQUIREMENTS 

         5               ABOVE," END OF QUOTE. 

         6               YOU'VE TOLD US ABOUT THAT; RIGHT? 

         7    A.   RIGHT. 

         8    Q.   OKAY.  NOW, YOU SAY, QUOTE: 

         9                   "FURTHER, THERE IS NO CONTRACT PRINTING 

        10               AVAILABLE IN THE BAY AREA SUFFICIENT TO PRODUCE 

        11               A DAILY MORNING NEWSPAPER.  I PERSONALLY 

        12               INVESTIGATED THE AVAILABILITY OF SUCH CONTRACT 

        13               PRINTING WHEN I WAS WITH THE SFNA IN 1988," END 

        14               OF QUOTE.  I'M GOING TO STOP THERE. 

        15               DID YOU DO THAT IN 1988? 

        16    A.   YES. 

        17    Q.   CAN YOU EXPLAIN WHAT YOU DID? 

        18    A.   WE HAD CAPACITY PROBLEMS BEFORE WE BROUGHT THE NEW PLANTS 

        19    ON LINE, AND WE FELT IF WE COULD GET EVEN AS SMALL AS A 25,000 

        20    IN ADDITIONAL PAPERS PRINTED SOMEWHERE ELSE, THAT THAT COULD 

        21    TAKE US THROUGH THAT CRUNCH PERIOD, AND I WAS UNABLE TO FIND 

        22    ANYBODY THAT HAD PRESS CAPACITY THAT COULD DO THAT FOR US IN 

        23    THIS GENERAL AREA THAT WOULD ALLOW US TO PRINT IT TIMELY AND 

        24    GET IT OUT. 

        25    Q.   OKAY.  NOW, WHY -- YOUR DECLARATION SAYS:   



                                                                         1110
                                 INGRAM - DIRECT \ SHULMAN 


         1                   "THERE IS NO CONTRACT PRINTING AVAILABLE IN 

         2               THE BAY AREA SUFFICIENT TO PRODUCE A DAILY 

         3               MORNING NEWSPAPER."   

         4               WHY DO YOU BELIEVE THAT THERE IS NOT SUCH CONTRACT 

         5    PRINTING AVAILABLE TODAY TO PRODUCE THE PAPER? 

         6    A.   I'M NOT AWARE OF ANY PLANTS THAT HAVE BEEN BUILT OR ANY 

         7    PLANTS THAT HAVE BEEN ABANDONED AND THE EQUIPMENT IS STILL 

         8    THERE THAT'S DIFFERENT FROM 1988. 

         9    Q.   OKAY.  IT CONTINUES, QUOTE: 

        10                   "ALSO, IT WILL BE IMPOSSIBLE FOR PAN ASIA TO 

        11               BUILD THE REQUIRED PRINTING CAPACITY IN TIME TO 

        12               PRODUCE A VIABLE COMPETITIVE MORNING NEWSPAPER," 

        13               END OF QUOTE. 

        14               YOU'VE TOLD US ABOUT THAT? 

        15    A.   YES. 

        16    Q.   YOU SAY, QUOTE: 

        17                   "CONSTRUCTION OF THE NECESSARY FACILITIES 

        18               WOULD TAKE AT LEAST 18 TO 24 MONTHS TO COMPLETE.  

        19               IN ADDITION, THE COSTS FOR SUCH CAPACITY, WHICH 

        20               WOULD NEED TO BE PAID DURING THE CONSTRUCTION 

        21               PERIOD AND BEFORE ANY NEWSPAPERS ARE PRODUCED 

        22               AND SOLD, WOULD BE APPROXIMATELY 30 TO 

        23               $35 MILLION INCLUDING THE COSTS" -- "NOT 

        24               INCLUDING THE COST OF THE BUILDING," END OF 

        25               QUOTE. 



                                                                         1111
                                 INGRAM - CROSS / HOCKETT 


         1               DO YOU SEE THAT? 

         2    A.   YES. 

         3    Q.   NOW, THAT'S ABOUT DOUBLE WHAT YOU HAD BUDGETED FOR 

         4    MR. REILLY; RIGHT? 

         5    A.   THAT'S RIGHT. 

         6    Q.   OKAY.  WHY WOULD THE -- WHY DO YOU SAY THAT THE COST OF 

         7    THE PRINTING PLANT WOULD BE 30 TO $35 MILLION WHEN YOU HAD TOLD 

         8    MR. REILLY OR GIVEN HIM AN ESTIMATE OF $16 MILLION? 

         9    A.   THE ESTIMATE THAT I GAVE MR. REILLY, AND IT WAS NOTED ON 

        10    THERE, WAS FOR USED EQUIPMENT.  IT WASN'T NECESSARILY WHAT HE 

        11    WOULD ACCEPT, BUT THAT WOULD BE THE LOWEST PRICE WOULD BE TO 

        12    USE USED EQUIPMENT.  WHAT I HAVE IN THERE IS ASSUMING HE WOULD 

        13    BUY NEW EQUIPMENT. 

        14               MR. SHULMAN:  THANK YOU. 

        15               MAY I HAVE JUST A SECOND, YOUR HONOR? 

        16               THE COURT:  YES, YOU MAY. 

        17                        (PAUSE IN PROCEEDINGS.) 

        18               MR. SHULMAN:  THANK YOU, YOUR HONOR.  I HAVE NO 

        19    FURTHER QUESTIONS. 

        20               THE COURT:  VERY WELL.  MR. HOCKETT, YOU MAY 

        21    CROSS-EXAMINE. 

        22                           CROSS-EXAMINATION 

        23    BY MR. HOCKETT: 

        24    Q.   GOOD MORNING, MR. INGRAM. 

        25    A.   GOOD MORNING. 



                                                                         1112
                                 INGRAM - CROSS / HOCKETT 


         1    Q.   MY NAME IS CHRIS HOCKETT, AND I REPRESENT THE INTERVENOR 

         2    EXIN LLC.   

         3               I WANT TO SHOW YOU AGAIN YOUR DECLARATION, WHICH HAS 

         4    BEEN MARKED AS PLAINTIFF'S EXHIBIT 57 AND I BELIEVE IS ALREADY 

         5    IN EVIDENCE.   

         6               AND SPECIFICALLY THIS DECLARATION WAS DEVELOPED AND 

         7    EXECUTED BY YOU AT THE MEETING ON MARCH 25TH WITH THE OTHER 

         8    EXPERTS; CORRECT? 

         9    A.   THAT'S RIGHT. 

        10    Q.   AND THE FIRST TWO SENTENCES OF PARAGRAPH 4 REGARDING YOUR 

        11    CONCLUSIONS ABOUT THE ADEQUACY OF THE SUBSIDY AND THE MINIMUM 

        12    SUBSIDY NECESSARY OF 50 MILLION FOR FIVE YEARS OR A ONE-TIME 

        13    PAYMENT OF 250 MILLION, THOSE ARE THE SAME WORDS THAT EVERYBODY 

        14    ELSE USES ABOUT THOSE SUBJECTS IN THEIR DECLARATIONS; IS THAT 

        15    CORRECT? 

        16    A.   THAT'S RIGHT. 

        17    Q.   YOU GO ON TO SAY LATER IN THAT PARAGRAPH AND YOU WERE JUST 

        18    ADDRESSING UNDER QUESTIONING FROM MR. SHULMAN THAT THERE IS NO 

        19    CONTRACT PRINTING AVAILABLE IN THE BAY AREA SUFFICIENT TO 

        20    PRODUCE A DAILY MORNING NEWSPAPER; CORRECT? 

        21    A.   THAT'S RIGHT. 

        22    Q.   AND YOU SAID THAT THE BASIS FOR THAT WAS THAT YOU HAD 

        23    PERSONALLY INVESTIGATED THE AVAILABILITY OF SUCH CONTRACT 

        24    PRINTING WHEN YOU WERE WITH THE AGENCY IN 1988? 

        25    A.   RIGHT. 



                                                                         1113
                                 INGRAM - CROSS / HOCKETT 


         1    Q.   NOW, AT YOUR DEPOSITION YOU SAID THAT WAS THE LAST TIME 

         2    YOU CHECKED ON THE AVAILABILITY OF CONTRACT PRINTING IN THE BAY 

         3    AREA, 1988. 

         4    A.   THAT'S THE LAST TIME I INVESTIGATED IT. 

         5    Q.   IT'S POSSIBLE, ISN'T IT, THAT THE SITUATION MIGHT HAVE 

         6    CHANGED IN THE LAST 12 YEARS; ISN'T IT, SIR? 

         7    A.   I THINK IT'S POSSIBLE BUT IMPROBABLE. 

         8    Q.   IN ANY EVENT, YOU HAVEN'T BOTHERED TO CHECK; CORRECT? 

         9    A.   I HAVEN'T MADE AN INVESTIGATION.  I WOULD BE AWARE IF A 

        10    PLANT WAS BUILT BECAUSE I'M IN THE BUSINESS. 

        11    Q.   BUT YOU HAVEN'T CHECKED; HAVE YOU, SIR? 

        12    A.   NO, SIR. 

        13    Q.   NOW, YOU HAVE NO PERSONAL KNOWLEDGE OF THE TERMS OF THE 

        14    HEARST/FANG CONTRACT; DO YOU, SIR? 

        15    A.   NO, SIR, I DON'T. 

        16    Q.   AND YOU HAVE NO PERSONAL KNOWLEDGE REGARDING THE FANG 

        17    FAMILY'S INTENTIONS REGARDING THE OPERATION OF THE PAPER? 

        18    A.   NO. 

        19    Q.   YOU HAVE NO KNOWLEDGE OF THEIR PLANNED CIRCULATION OR THE 

        20    NUMBER OF EDITIONS, OR ANYTHING LIKE THAT; DO YOU, SIR? 

        21    A.   I HAVE NO IDEA WHAT THEIR PLANS ARE. 

        22    Q.   BUT YOU DO KNOW, DON'T YOU, SIR, THAT THE FANGS HAVE THEIR 

        23    OWN PRINTING FACILITIES; DO YOU NOT? 

        24    A.   YES, I DO. 

        25    Q.   I BELIEVE YOU TESTIFIED ABOUT THE INTELLIGENCE YOU HAD 



                                                                         1114
                                 INGRAM - CROSS / HOCKETT 


         1    GATHERED ON THAT.  DO YOU HAPPEN TO KNOW WHETHER THE FANGS' 

         2    PRESSES ARE FULLY PAGINATED? 

         3    A.   IF THEIR PRESSES? 

         4    Q.   I'M SORRY, IF THEIR OPERATION IS PAGINATED. 

         5    A.   I HAVE NO IDEA. 

         6    Q.   AND YOU TESTIFIED A MINUTE AGO THAT YOU HAD OFFERED, IN 

         7    YOUR EFFORTS TO AID MR. REILLY IN CONSIDERING A BID FOR THE 

         8    EXAMINER HIMSELF, THE POSSIBILITY THAT MR. REILLY COULD 

         9    PURCHASE USED PRODUCTION EQUIPMENT; IS THAT CORRECT? 

        10    A.   THAT'S RIGHT. 

        11    Q.   IS THERE ANY REASON WHY THE FANGS COULD NOT MAKE 

        12    THEMSELVES -- COULD NOT AVAIL THEMSELVES OF THAT OPPORTUNITY? 

        13    A.   THERE'S REASONS THAT REILLY MIGHT NOT WANT TO. 

        14    Q.   WELL, IF THE FANGS WISHED TO PURCHASE USED EQUIPMENT, THEY 

        15    COULD DO SO; COULD THEY NOT, SIR? 

        16    A.   YES. 

        17    Q.   NOW, MR. REILLY RETAINED YOU AT FIRST BECAUSE HE WAS 

        18    CONSIDERING AN OFFER TO BUY THE EXAMINER; IS THAT CORRECT? 

        19    A.   THAT'S RIGHT. 

        20    Q.   AND YOU ASSISTED HIM IN UNDERSTANDING SOME OF THE ISSUES 

        21    REGARDING BUYING AND OPERATING THE EXAMINER; CORRECT? 

        22    A.   CORRECT. 

        23    Q.   AND ONE OF THE ISSUES YOU IDENTIFIED WAS COLLECTIVE 

        24    BARGAINING AGREEMENTS; CORRECT? 

        25    A.   YES. 



                                                                         1115
                                 INGRAM - CROSS / HOCKETT 


         1    Q.   AND YOU TOLD MR. REILLY THAT IT WOULD BE DIFFICULT TO 

         2    SUCCEED WITH THE EXAMINER IF IT HAD TO OPERATE UNDER THE 

         3    COLLECTIVE BARGAINING AGREEMENTS THAT WERE IN PLACE WITH THE 

         4    AGENCY; CORRECT? 

         5    A.   CORRECT. 

         6    Q.   LET ME SHOW YOU WHAT HAS BEEN MARKED AND IS IN EVIDENCE AS 

         7    PLAINTIFF'S EXHIBIT 20 AND SPECIFICALLY PAGE 178.  AND I 

         8    BELIEVE YOU TESTIFIED THIS WAS PREPARED IN AID OF MR. REILLY'S 

         9    BID FOR THE EXAMINER.  AND IT SAYS RIGHT AT THE TOP THAT YOU 

        10    ASSUMED THAT RADICAL CHANGES IN THE COLLECTIVE BARGAINING 

        11    AGREEMENTS BE ACHIEVED BEFORE THE PURCHASE IS CONSUMMATED.  DO 

        12    YOU SEE THAT? 

        13    A.   YES. 

        14    Q.   SO TO CREATE YOUR COST MODEL FOR MR. REILLY, YOU ASSUMED 

        15    THAT THERE WOULD BE RADICAL CHANGES IN THE COLLECTIVE 

        16    BARGAINING AGREEMENTS; CORRECT? 

        17    A.   THAT'S RIGHT. 

        18    Q.   AND YOU BELIEVED THAT THAT WAS AN IMPORTANT ASPECT OF 

        19    MR. REILLY'S PLAN; CORRECT? 

        20    A.   I BELIEVE IT WAS PIVOTAL. 

        21    Q.   PIVOTAL YOU SAID? 

        22    A.   YES. 

        23    Q.   AND IN GENERAL, MORE BROADLY, YOU FELT THAT A LOT OF 

        24    CHANGES WOULD BE NECESSARY IF THE EXAMINER WAS GOING TO HAVE 

        25    THE OPPORTUNITY TO SUCCEED AS AN INDEPENDENT PAPER; CORRECT? 



                                                                         1116
                                 INGRAM - CROSS / HOCKETT 


         1    A.   CORRECT. 

         2    Q.   NOW, DID YOU CONFER WITH MR. REILLY AND THE OTHER 

         3    NEWSPAPER ADVISORS DURING THE TIME MR. REILLY WAS DISCUSSING 

         4    MAKING AN OFFER FOR THE EXAMINER? 

         5    A.   YES. 

         6    Q.   AND YOU HAD A CONVERSATION WITH HIM IN MID-FEBRUARY OF 

         7    THIS YEAR SHORTLY AFTER HE HAD HAD A NEGOTIATING SESSION WITH 

         8    HEARST; IS THAT CORRECT? 

         9    A.   I'M SURE IT IS. 

        10    Q.   AND IN YOUR UNDERSTANDING HEARST HAD INDICATED A 

        11    WILLINGNESS TO EXTEND A SUBSIDY OR A PERIOD OF JOINT OPERATIONS 

        12    TO A PROSPECTIVE BUYER.  DO YOU REMEMBER THAT? 

        13    A.   YES. 

        14    Q.   LET ME SHOW YOU WHAT HAS BEEN MARKED AND IS IN EVIDENCE AS 

        15    CHRONICLE EXHIBIT 305.  AND I WANT TO FOCUS YOUR ATTENTION ON 

        16    THE BOTTOM PART, WHICH APPEARS TO BE AN E-MAIL FROM LARRY 

        17    INGRAM TO ALAN FLAHERTY ENTITLED "CLINT REPORT."  DO YOU SEE 

        18    THAT? 

        19    A.   YES. 

        20    Q.   DO YOU RECOGNIZE THAT AS AN E-MAIL THAT YOU SENT ON OR 

        21    ABOUT THE DATE IT BEARS? 

        22    A.   YES, I DO.  YES. 

        23    Q.   THAT'S FEBRUARY 13TH, 2000? 

        24    A.   RIGHT. 

        25    Q.   AND WAS THIS AN E-MAIL THAT YOU SENT AFTER THE 



                                                                         1117
                                 INGRAM - CROSS / HOCKETT 


         1    CONVERSATION THAT WE'VE JUST REFERENCED? 

         2    A.   YES. 

         3    Q.   WHERE HEARST HAD INDICATED A WILLINGNESS TO SUBSIDIZE A 

         4    BUYER; CORRECT? 

         5    A.   RIGHT. 

         6    Q.   AND YOU SAY, AND I QUOTE:  

         7                    "I TALKED WITH CLINT LATE LAST NIGHT.  HE 

         8               WAS HAPPY AS THE FOX IN THE HEN HOUSE." 

         9               DID YOU WRITE THAT, SIR? 

        10    A.   YES. 

        11    Q.   AND DID YOU FEEL THAT MR. REILLY WAS HAPPY AS A FOX IN A 

        12    HEN HOUSE? 

        13    A.   HE WAS VERY HAPPY. 

        14    Q.   AND WHY ARE FOXES HAPPY WHEN THEY GET INSIDE HEN HOUSES, 

        15    SIR? 

        16    A.   I DON'T KNOW MUCH ABOUT FOXES. 

        17    Q.   IT'S NOT BECAUSE THEY'RE ABOUT TO DO SOMETHING GOOD FOR 

        18    THE PUBLIC; IS IT, SIR? 

        19               THE COURT:  THAT'S ARGUMENTATIVE, MR. HOCKETT. 

        20               MR. HOCKETT:  I'LL WITHDRAW IT. 

        21    Q.   NOW, MR. INGRAM, IN THE COURSE OF YOUR WORK FOR 

        22    MR. REILLY, YOU CALCULATED COST FIGURES FOR A STAND-ALONE 

        23    EXAMINER; CORRECT? 

        24    A.   THAT'S RIGHT. 

        25    Q.   AND IN DOING SO, YOU USED COST INFORMATION FROM THE TOLEDO 



                                                                         1118
                                 INGRAM - CROSS / HOCKETT 


         1    BLADE NEWSPAPER? 

         2    A.   NOT COST INFORMATION.  FTE INFORMATION. 

         3    Q.   FTE, PERSONNEL? 

         4    A.   RIGHT. 

         5    Q.   AND YOU CONSIDERED THE TOLEDO BLADE TO BE A RELEVANT 

         6    BENCHMARK FOR THAT INFORMATION; CORRECT? 

         7    A.   IT WAS A PAPER CLOSER TO THE CIRCULATION THAN IS THE 

         8    CHRONICLE. 

         9    Q.   AND YOU THOUGHT IT WAS APPROPRIATE TO USE IT AS A 

        10    BENCHMARK; CORRECT? 

        11    A.   YES.   

        12    Q.   NOW, YOU DIDN'T DO ANY REVENUE CALCULATIONS YOURSELF; IS 

        13    THAT CORRECT? 

        14    A.   NO, I DIDN'T. 

        15    Q.   AND THAT'S OUTSIDE YOUR AREA OF EXPERTISE; RIGHT? 

        16    A.   YES. 

        17    Q.   AND I BELIEVE YOU TESTIFIED THAT THE REVENUE NUMBERS YOU 

        18    GOT WERE FROM DAVE BEIHOFF; CORRECT? 

        19    A.   CORRECT. 

        20    Q.   HE'S ANOTHER PERSON WHO MR. REILLY RETAINED TO WORK ON THE 

        21    PROJECT OF BIDDING FOR THE EXAMINER? 

        22    A.   NO. 

        23    Q.   HE OFFERED SOME ADVICE IN CONNECTION WITH THAT PROJECT? 

        24    A.   I ASKED HIM FOR ADVICE, AND HE GAVE IT TO ME.  WE'RE 

        25    FRIENDS. 



                                                                         1119
                                 INGRAM - CROSS / HOCKETT 


         1    Q.   TO ASSIST YOU IN YOUR WORK ON THE PROJECT? 

         2    A.   THAT'S RIGHT. 

         3    Q.   NOW, MR. BEIHOFF IS AN AD EXECUTIVE WITH MANY YEARS OF 

         4    EXPERIENCE IN THE NEWSPAPER INDUSTRY? 

         5    A.   YES. 

         6    Q.   AND YOU WOULD AGREE THAT HE IS MORE ABLE TO PREDICT 

         7    REVENUES THAN YOU ARE; WOULD YOU NOT, SIR? 

         8    A.   I WOULD AGREE WITH THAT. 

         9    Q.   AND YOU TOOK HIS REVENUE PROJECTIONS AND YOU REDUCED THEM 

        10    BY 25 PERCENT; DID YOU NOT? 

        11    A.   YES. 

        12    Q.   AND YOU'VE SAID THAT THAT WAS A, QUOTE, "VERY ARBITRARY," 

        13    END QUOTE, REDUCTION ON YOUR PART; DID YOU NOT? 

        14    A.   YES. 

        15    Q.   AND YOU BELIEVE THAT MR. BEIHOFF KNOWS MORE ABOUT THAT 

        16    SUBJECT THAN YOU DO? 

        17    A.   HE KNOWS A LOT MORE ABOUT ADVERTISING REVENUE THAN I DO. 

        18    Q.   THE 50 MILLION-DOLLAR A YEAR SUBSIDY THAT YOU CALCULATED 

        19    WAS CALCULATED WITHOUT REGARD TO HOW REVENUES WOULD BE SHARED 

        20    WITH THE SELLER, IF AT ALL; CORRECT? 

        21    A.   I'D LIKE TO HEAR THAT AGAIN. 

        22    Q.   THE 50 MILLION-DOLLAR A YEAR SUBSIDY THAT YOU TESTIFIED 

        23    WOULD BE NECESSARY FOR AN INDEPENDENT EXAMINER TO SUCCEED WAS 

        24    CALCULATED WITHOUT REGARD TO REVENUES THAT A BUYER MIGHT BE 

        25    PERMITTED TO RETAIN; CORRECT? 



                                                                         1120
                                 INGRAM - CROSS / HOCKETT 


         1    A.   IT WAS CALCULATED ON THE BASIS OF THE COSTS TO PRODUCE THE 

         2    PAPER. 

         3    Q.   AND DID NOT TAKE INTO ACCOUNT REVENUES; CORRECT? 

         4    A.   NO. 

         5    Q.   SO IF THERE WERE REVENUES THAT A BUYER WAS PERMITTED TO 

         6    RETAIN, THAT WOULD HELP OFFSET THE COSTS THAT YOU CALCULATED; 

         7    CORRECT? 

         8    A.   THAT'S RIGHT. 

         9    Q.   AND I BELIEVE WE SAW, AND AGAIN THIS IS PLAINTIFF'S 

        10    EXHIBIT 20, THAT IN YOUR CALCULATIONS FOR MR. REILLY, EVEN 

        11    AFTER YOU HAD REDUCED THE BEIHOFF NUMBERS BY 25 PERCENT, YOU 

        12    SHOW AN OPERATING PROFIT AFTER YOUR PHASE-IN PERIOD; CORRECT? 

        13    A.   YES. 

        14    Q.   A PROFIT OF -- A MARGIN OF 16.7 PERCENT; CORRECT? 

        15    A.   THAT'S RIGHT. 

        16    Q.   THAT'S WHAT IT SAYS.   

        17               I'M SORRY, I DIDN'T GET YOUR ANSWER. 

        18    A.   I SAID THAT'S RIGHT. 

        19    Q.   NOW, TO JUSTIFY THE SUBSIDY THAT YOU STATED IN YOUR 

        20    DECLARATION, YOU WOULD HAVE TO ASSUME NO REVENUE AT ALL TO 

        21    OFFSET THE COSTS THAT YOU CALCULATED; CORRECT? 

        22    A.   THAT'S RIGHT. 

        23    Q.   AND I BELIEVE YOU TESTIFIED THAT YOUR DECLARATION REALLY 

        24    SHOULD HAVE SAID THAT THE FANGS WOULD NEED A SUBSIDY OF UP TO 

        25    $50 MILLION PER YEAR. 



                                                                         1121
                                INGRAM - CROSS / LINDSTROM 


         1    A.   IN MY DEPOSITION. 

         2    Q.   AND UP TO $50 MILLION IS A LOT DIFFERENT THAN $50 MILLION; 

         3    ISN'T IT, SIR? 

         4    A.   YES. 

         5               MR. HOCKETT:  I HAVE NO FURTHER QUESTIONS. 

         6               THE COURT:  VERY WELL.  ANY OTHER CROSS-EXAMINATION? 

         7               MR. LINDSTROM:  YES, YOUR HONOR. 

         8               THE COURT:  MR. LINDSTROM.   

         9                        (PAUSE IN PROCEEDINGS.) 

        10               THE COURT:  PROCEED. 

        11               MR. LINDSTROM:  THANK YOU, YOUR HONOR. 

        12                           CROSS-EXAMINATION 

        13    BY MR. LINDSTROM: 

        14    Q.   GOOD MORNING, MR. INGRAM. 

        15    A.   GOOD MORNING. 

        16    Q.   AS I THINK YOU KNOW, I REPRESENT CHRONICLE PUBLISHING. 

        17    A.   SURE. 

        18    Q.   I WANT TO TAKE YOU BACK TO YOUR TESTIMONY ON FRIDAY AND TO 

        19    YOUR INITIAL MEETING WITH MR. REILLY.  THAT MEETING OCCURRED ON 

        20    FEBRUARY 2ND IN THE AFTERNOON; ISN'T THAT CORRECT? 

        21    A.   I THINK IT WAS THE 3RD. 

        22    Q.   IN ANY EVENT, IT WAS EARLY FEBRUARY; ISN'T THAT RIGHT? 

        23    A.   RIGHT. 

        24    Q.   AND YOU DO HAVE A DISTINCT RECOLLECTION OF THE MEETING; DO 

        25    YOU NOT? 



                                                                         1122
                                INGRAM - CROSS / LINDSTROM 


         1    A.   I HAVE A RECOLLECTION OF THE MEETING. 

         2    Q.   YOU HAD BEEN INVITED TO THAT MEETING BY MR. BARLETTA; IS 

         3    THAT CORRECT? 

         4    A.   CORRECT. 

         5    Q.   HE WAS AN OLD FRIEND OF YOURS FROM THE NEWSPAPER INDUSTRY? 

         6    A.   RIGHT. 

         7    Q.   AND IT WAS YOUR UNDERSTANDING GOING INTO THAT MEETING THAT 

         8    BECAUSE MR. REILLY HAD NO NEWSPAPER EXPERIENCE, HE WAS 

         9    ASSEMBLING A TEAM OF EXPERTS TO HELP ADVISE HIM IN CONJUNCTION 

        10    WITH HIS POSSIBLE BID FOR THE EXAMINER; CORRECT? 

        11    A.   CORRECT. 

        12    Q.   AND ONE OF THE REASONS YOU WERE INVITED TO THAT MEETING 

        13    WAS BECAUSE YOU HAD RUN THE OPERATIONS OF THE SAN FRANCISCO 

        14    NEWS AGENCY FOR SOME EIGHT YEARS; ISN'T THAT RIGHT? 

        15    A.   YES. 

        16    Q.   AND YOU ARE, SIR, A PRODUCTION AND FACILITIES EXPERT; ARE 

        17    YOU NOT? 

        18    A.   YES. 

        19    Q.   AND MUCH OF THAT EXPERTISE DERIVES FROM THE TIME THAT YOU 

        20    RAN THE EXAMINER; ISN'T THAT RIGHT? 

        21    A.   SOME OF IT. 

        22    Q.   NOW, THE OTHER MEMBERS OF THE TEAM, MR. WEAVER WAS THE 

        23    NUMBERS GUY; RIGHT? 

        24    A.   RIGHT. 

        25    Q.   TELL US WHAT MR. FLAHERTY BROUGHT TO THE PARTY. 



                                                                         1123
                                INGRAM - CROSS / LINDSTROM 


         1    A.   FLAHERTY IS A CONSULTANT IN THE NEWSPAPER INDUSTRY.  HE 

         2    CAME OUT OF PRETTY MUCH THE SAME END THAT I DID, PRODUCTION.  

         3    HE WAS THE ASSISTANT OPERATIONS DIRECTOR IN NEW YORK AND 

         4    PROBABLY FOR THE LAST 15 OR 20 YEARS HE'S BEEN AN INDEPENDENT 

         5    CONSULTANT IN THE NEWSPAPER BUSINESS. 

         6    Q.   DID YOU REGARD MR. FLAHERTY AS AN EXPERT AS WELL? 

         7    A.   YES. 

         8    Q.   AND WHEN YOU MET WITH MR. REILLY ON THAT FIRST OCCASION, 

         9    YOU MET WITH MR. WEAVER AND MR. REILLY IN MR. REILLY'S OFFICES 

        10    HERE IN SAN FRANCISCO; ISN'T THAT RIGHT? 

        11    A.   RIGHT. 

        12    Q.   IT WAS YOUR UNDERSTANDING THAT THE DAY BEFORE A MEETING 

        13    HAD OCCURRED INVOLVING MR. FLAHERTY, MR. WEAVER AND MR. REILLY; 

        14    ISN'T THAT RIGHT? 

        15    A.   RIGHT. 

        16    Q.   AND AT THE CONCLUSION OF YOUR MEETING WITH MR. REILLY, HE 

        17    ASKED THE THREE OF YOU TO GET TOGETHER AS QUICKLY AS POSSIBLE; 

        18    ISN'T THAT RIGHT? 

        19    A.   THAT'S RIGHT. 

        20    Q.   AND THE REASON FOR THAT WAS HE WAS GETTING READY TO GO 

        21    INTO NEGOTIATIONS WITH THE HEARST CORPORATION; RIGHT? 

        22    A.   RIGHT. 

        23    Q.   AND HE WANTED SOME INFORMATION FROM HIS TEAM OF EXPERTS; 

        24    ISN'T THAT SO? 

        25    A.   RIGHT. 



                                                                         1124
                                INGRAM - CROSS / LINDSTROM 


         1    Q.   AND ONE OF THE THINGS HE SAID THAT HE WANTED TO KNOW FROM 

         2    YOU, ACCORDING TO YOUR DIRECT TESTIMONY, IS WHAT HE MIGHT BE 

         3    ABLE TO EXPECT, WHAT HE MIGHT BE FACED WITH.  DO YOU RECALL 

         4    GIVING THAT TESTIMONY? 

         5    A.   YES. 

         6               (CONTINUED ON NEXT PAGE - NOTHING OMITTED.) 

         7    

         8    

         9    

        10    

        11    

        12    

        13    

        14    

        15    

        16    

        17    

        18    

        19    

        20    

        21    

        22    

        23    

        24    

        25    



                                                                         1125
                                INGRAM - CROSS / LINDSTROM 


         1    BY MR. LINDSTROM: 

         2    Q.   AND ONE OF THE SPECIFIC THINGS THAT MR. REILLY ASKED YOU 

         3    FOR WAS AN ESTIMATE OF THE COST TO PUT OUT TODAY'S EXAMINER; 

         4    ISN'T THAT RIGHT? 

         5    A.   THAT WAS A REQUEST I MADE. 

         6    Q.   WELL, IT WAS A REQUEST OF MR. WEAVER IN YOUR PRESENCE? 

         7    A.   I THINK -- I THINK I TESTIFIED THAT IT WAS A REQUEST 

         8    THAT -- IT MAY HAVE BEEN REQUESTED IN THE TELEPHONE CALL, 

         9    THAT -- THAT ALAN HAD FROM HIS APARTMENT IN ORANGE COUNTY WHEN 

        10    WE WERE THERE. 

        11    Q.   WELL, IN ANY EVENT, IN THE VERY FIRST DOCUMENT THAT YOU 

        12    PROVIDED TO MR. REILLY IN THIS ENGAGEMENT, YOU INCLUDED AN 

        13    ESTIMATE OF THE COSTS OF PUTTING OUT TODAY'S EXAMINER; ISN'T 

        14    THAT RIGHT? 

        15    A.   THAT'S RIGHT. 

        16    Q.   NOW, YOU MENTIONED THE MEETING WITH MR. FLAHERTY.  THAT 

        17    OCCURRED AT HIS CONDOMINIUM? 

        18    A.   I THINK IT'S A CONDOMINIUM HE RENTED, YES. 

        19    Q.   AND THAT WAS ON THE 9TH OR 10TH OF FEBRUARY, RIGHT? 

        20    A.   THAT'S RIGHT. 

        21    Q.   FOLLOWING YOUR MEETING THE WEEK BEFORE WITH MR. REILLY, 

        22    RIGHT? 

        23    A.   CORRECT. 

        24    Q.   AND THE MEETING TOOK PRETTY MUCH THE WHOLE DAY; ISN'T THAT 

        25    RIGHT? 



                                                                         1126
                                INGRAM - CROSS / LINDSTROM 


         1    A.   MOST OF THE DAY. 

         2    Q.   AND AT THE END OF THE MEETING, THERE WAS A TELEPHONE 

         3    CONVERSATION BETWEEN MR. FLAHERTY AND MR. REILLY; ISN'T THAT 

         4    RIGHT? 

         5    A.   TOWARDS THE END OF THE DAY, MID-AFTERNOON, I WOULD SAY. 

         6    Q.   YOU HEARD MR. FLAHERTY'S SIDE OF THAT CONVERSATION; ISN'T 

         7    THAT TRUE? 

         8    A.   YES. 

         9    Q.   AND ONE OF THE THINGS MR. FLAHERTY PROMISED MR. REILLY WAS 

        10    A REPORT; ISN'T THAT RIGHT? 

        11    A.   YES. 

        12    Q.   AND, AS THINGS TURNED OUT, YOU WERE CHARGED WITH THE 

        13    RESPONSIBILITY FOR PREPARING THE REPORT; ISN'T THAT RIGHT? 

        14    A.   THAT'S RIGHT. 

        15    Q.   EXHIBIT PLAINTIFF'S 23 IN EVIDENCE, WHICH MR. SHULMAN 

        16    SHOWED YOU, IS THAT REPORT? 

        17    A.   CORRECT. 

        18                      (PAUSE IN THE PROCEEDINGS.) 

        19               MR. ALIOTO:  (INDICATING). 

        20               MR. LINDSTROM:  THANK YOU, MR. ALIOTO. 

        21    BY MR. LINDSTROM: 

        22    Q.   THIS IS THE DOCUMENT ENTITLED "EXAMINER PHASE IN PLAN TIME 

        23    LINE AND HEARST'S PHASE IN OBLIGATION," CORRECT? 

        24    A.   YES. 

        25    Q.   AND DOWN AT THE BOTTOM, AS MR. SHULMAN INDICATED, THERE IS 



                                                                         1127
                                INGRAM - CROSS / LINDSTROM 


         1    A FOOTER. 

         2               THIS DOCUMENT WAS PRODUCED ON YOUR COMPUTER; ISN'T 

         3    THAT RIGHT, SIR? 

         4    A.   THE DOCUMENT WAS PREPARED ON MY COMPUTER AND SENT TO ALAN 

         5    FLAHERTY, AND THAT DOCUMENT YOU ARE LOOKING AT WAS PRODUCED ON 

         6    HIS COMPUTER. 

         7    Q.   ALL RIGHT.  IN FACT, YOU PRODUCED THE REPORT AND TRIED TO 

         8    SEND TO IT MR. REILLY, BUT YOU WERE UNABLE TO GET IT 

         9    COMMUNICATED TO HIM; ISN'T THAT RIGHT? 

        10    A.   THAT'S RIGHT. 

        11    Q.   SO YOU SENT TO IT MR. FLAHERTY? 

        12    A.   WELL, THAT ISN'T EXACTLY THE WAY IT WENT.  I SENT IT TO 

        13    FLAHERTY, THEN TO WEAVER.  THEY REVIEWED IT AND WE ADDED ONE 

        14    PARAGRAPH TO THE TOP AND I -- AND I TRIED TO SEND IT AND 

        15    FLAHERTY WAS THE ONE THAT MANAGED TO GET IT THROUGH.  I DIDN'T 

        16    SEND IT BACK TO HIM TO SEND. 

        17    Q.   ALL RIGHT.  IN ANY EVENT, THE TEXT OF THE REPORT WAS 

        18    PREPARED BY YOU WORKING AT YOUR COMPUTER; ISN'T THAT RIGHT? 

        19    A.   RIGHT. 

        20    Q.   AND ONE OF THE THINGS YOU DID WAS PULL TOGETHER THE INPUT 

        21    THAT THE THREE EXPERTS EXCHANGED IN THE MEETING IN ORANGE 

        22    COUNTY; ISN'T THAT RIGHT? 

        23    A.   RIGHT. 

        24    Q.   NOW, IF WE TURN TO BATES STAMP PAGE R005, WE SEE HERE "SAN 

        25    FRANCISCO EXAMINER ESTIMATED EXPENSES." 



                                                                         1128
                                INGRAM - CROSS / LINDSTROM 


         1               IN THE RIGHT-HAND COLUMN THERE IS AN INDICATION OF 

         2    CURRENT EXPENSE; ISN'T THAT RIGHT? 

         3    A.   RIGHT. 

         4    Q.   AND THAT WAS INTENDED TO BE AN INDICATION OF THE EXPENSE 

         5    TODAY OF PUTTING OUT THE EXAMINER; ISN'T THAT RIGHT? 

         6    A.   I ASSUME SO.  THIS IS NOT MY DOCUMENT.  THIS IS MIKE 

         7    WEAVER'S DOCUMENT. 

         8    Q.   THAT WAS YOUR UNDERSTANDING, WAS IT NOT, SIR -- 

         9    A.   IT WAS. 

        10    Q.   -- IN PUTTING TOGETHER THIS REPORT FOR MR. REILLY? 

        11    A.   YES. 

        12    Q.   AND IT WAS FURTHER YOUR UNDERSTANDING THAT THE ESTIMATE 

        13    THAT THE THREE OF YOU WERE SUBMITTING WAS $80,800,000 AS THE 

        14    COST OF PRODUCING TODAY'S EXAMINER; ISN'T THAT RIGHT? 

        15    A.   YES. 

        16    Q.   NOW, YOU TOLD US DURING DIRECT EXAMINATION THAT THIS WAS A 

        17    NUMBER THAT WAS PRODUCED BY MR. WEAVER, RIGHT? 

        18    A.   RIGHT. 

        19    Q.   NOW, YOU UNDERSTOOD, DID YOU NOT, THAT ONE OF THE REASONS 

        20    MR. REILLY HIRED YOU IS SO THAT YOUR EXPERIENCE IN PRODUCING 

        21    THE EXAMINER FOR EIGHT YEARS WOULD BE BROUGHT TO BEAR ON THIS 

        22    ASSIGNMENT; ISN'T THAT RIGHT? 

        23    A.   SURE. 

        24    Q.   AND YOU INCLUDED THIS NUMBER OF $80,800,000 IN YOUR REPORT 

        25    TO MR. REILLY; ISN'T THAT TRUE? 



                                                                         1129
                                INGRAM - CROSS / LINDSTROM 


         1    A.   THAT'S RIGHT. 

         2    Q.   AND YOU DIDN'T INDICATE TO HIM IN ANY WAY, SHAPE OR FORM 

         3    THAT THIS NUMBER WAS IN ANY WAY UNRELIABLE, DID YOU? 

         4    A.   I DON'T KNOW THAT IT'S UNRELIABLE. 

         5    Q.   AND, IN FACT, YOU VIEW IT AS A REASONABLE ESTIMATE OF THE 

         6    COSTS OF PRODUCING TODAY'S EXAMINER; ISN'T THAT TRUE, SIR? 

         7    A.   I THINK SO. 

         8    Q.   NOW, IN YOUR JUDGMENT THE COST STRUCTURE OF THE EXISTING 

         9    EXAMINER, THIS $80 MILLION THAT WE HAVE SEEN, WAS OVERPRICED 

        10    RELATIVE TO THE REVENUE OF THE PAPER; ISN'T THAT RIGHT? 

        11    A.   I WOULD LIKE TO TRY THAT AGAIN? 

        12    Q.   ISN'T IT TRUE, SIR, THAT IN YOUR DEPOSITION YOU TOLD ME 

        13    THAT YOUR VIEW WAS THAT THIS COST STRUCTURE OF PUTTING OUT 

        14    TODAY'S EXAMINER, SOME $80 MILLION AS WE HAVE JUST SEEN, WAS 

        15    OVERPRICED RELATIVE TO THE REVENUE EARNED BY THAT PAPER? 

        16    A.   I AGREE WITH THAT. 

        17    Q.   AND, INDEED, YOU EXPRESSED THE VIEW THAT THE OPPORTUNITY 

        18    FOR THE CURRENT EXAMINER TO GENERATE SUFFICIENT REVENUE TO 

        19    COVER AN $80 MILLION COST STRUCTURE WAS IN YOUR WORDS 

        20    "NON-EXISTENT," ISN'T THAT RIGHT? 

        21    A.   THAT'S RIGHT. 

        22    Q.   NOW, IT WAS YOUR VIEW AND YOUR VIEW TODAY THAT IF ANALYZED 

        23    ON A STAND-ALONE BASIS, TODAY'S EXAMINER WAS LOSING MONEY; 

        24    ISN'T THAT CORRECT? 

        25    A.   I DON'T KNOW HOW YOU CAN ANALYZE ON A STAND-ALONE BASIS.  



                                                                         1130
                                INGRAM - CROSS / LINDSTROM 


         1    BUT IF THE CURRENT EXPENSES ARE TO BE TAKEN AS A STAND-ALONE 

         2    BASIS, I'D SAY YOU'RE RIGHT. 

         3    Q.   YOU WERE PRESENT AT THE MARCH 25TH MEETING OF THE REILLY 

         4    EXPERTS; ISN'T THAT RIGHT? 

         5    A.   YES. 

         6    Q.   AND DO YOU RECALL MR. CLANCY STATING HIS OPINION THAT ON A 

         7    STAND-ALONE BASIS TODAY'S EXAMINER WOULD BE LOSING AT LEAST 

         8    $20 MILLION? 

         9    A.   I THINK I RECALL THAT. 

        10    Q.   AND YOU DIDN'T DISAGREE WITH HIM, DID YOU, SIR? 

        11    A.   NO. 

        12    Q.   IN FACT, IT WAS YOUR OPINION THAT IT WAS PROBABLY AT LEAST 

        13    THAT MUCH; ISN'T THAT RIGHT? 

        14    A.   I THINK SO. 

        15    Q.   AND, IN FACT, IT IS YOUR OPINION THAT THE LOSSES SUSTAINED 

        16    TODAY BY THE EXAMINER, IF ANALYZED ON A STAND-ALONE BASIS, ARE 

        17    MORE ON THE ORDER OF 30 TO $50 MILLION; ISN'T THAT TRUE, SIR? 

        18    A.   I THINK THAT'S PROBABLY RIGHT. 

        19    Q.   AND THAT'S BASED, AMONG OTHER THINGS, ON YOUR EXPERIENCE 

        20    IN RUNNING THIS PAPER FOR EIGHT YEARS; ISN'T THAT RIGHT? 

        21    A.   RUNNING A PART OF THE PAPER. 

        22    Q.   WELL, WERE YOU NOT SENIOR VICE PRESIDENT IN CHARGE OF 

        23    OPERATIONS FOR THE SAN FRANCISCO NEWS AGENCY? 

        24    A.   THAT'S RIGHT. 

        25    Q.   AND DIDN'T YOUR RESPONSIBILITIES INCLUDE PUTTING OUT THIS 



                                                                         1131
                                INGRAM - CROSS / LINDSTROM 


         1    PAPER? 

         2    A.   PUTTING OUT THE PAPER, NOT THE REVENUE SIDE. 

         3    Q.   NOW, MR. FLAHERTY WASN'T AT THE MARCH 25TH MEETING, WAS 

         4    HE? 

         5    A.   NO. 

         6    Q.   HE HAD BEEN DROPPED FROM THE TEAM; ISN'T THAT TRUE? 

         7    A.   HE HAD TAKEN A VACATION IN THE MIDDLE OF IT AND THE -- BY 

         8    THE TIME HE GOT BACK IT HAD PRETTY MUCH WALKED AWAY FROM HIM. 

         9    Q.   IN FACT, MR. REILLY HAD WALKED AWAY FROM MR. FLAHERTY; 

        10    ISN'T THAT TRUE, SIR? 

        11    A.   I DON'T KNOW. 

        12    Q.   ISN'T IT TRUE THAT MR. REILLY TOLD YOU HE WASN'T HAPPY 

        13    WITH THE SERVICES OF MR. FLAHERTY? 

        14    A.   HE HAD MENTIONED THAT ONE TIME.  HE DIDN'T MENTION 

        15    ANYTHING ABOUT TAKING FLAHERTY OFF THE TEAM. 

        16    Q.   MR. FLAHERTY HAD EXPRESSED THE VIEW TO YOU THAT HE, TOO, 

        17    THOUGHT THE EXAMINER WAS LOSING MONEY; ISN'T THAT RIGHT? 

        18    A.   WELL, I AM SURE HE DID. 

        19    Q.   DO YOU RECALL HIM STATING "THIS DOG WOULD NEVER HUNT" OR 

        20    WORDS TO THAT EFFECT? 

        21    A.   I DON'T REMEMBER THAT. 

        22    Q.   DO YOU RECALL HIM STATING THAT HE DID NOT THINK THE 

        23    EXAMINER COULD BE MADE PROFITABLE UNDER ANY SCENARIO? 

        24    A.   I HAVEN'T HEARD HIM SAY THAT.  I HAVE HEARD OF HIM SAYING 

        25    THAT. 



                                                                         1132
                                INGRAM - CROSS / LINDSTROM 


         1    Q.   HE TOLD THAT TO MR. REILLY, DIDN'T HE? 

         2    A.   HE MAY HAVE. 

         3    Q.   WELL, MR. REILLY TOLD YOU THAT HE SAID THAT, DIDN'T HE? 

         4    A.   WHAT I WAS TOLD IS THAT HE WAS VERY PESSIMISTIC AND HE 

         5    WASN'T COMING AT IT FROM A CONSTRUCTIVE DIRECTION. 

         6    Q.   NOW, ISN'T IT TRUE, SIR, THAT MR. FLAHERTY EXPRESSED THE 

         7    VIEW TO YOU THAT THE EXAMINER COULD NOT BE MADE PROFITABLE 

         8    UNDER ANY SCENARIO? 

         9    A.   HE EXPRESSED THE VIEW LIKE THAT IN OUR MEETING IN -- IN 

        10    ORANGE COUNTY. 

        11    Q.   THAT WAS THE VERY FIRST MEETING OF THIS GROUP? 

        12    A.   RIGHT. 

        13    Q.   NOW, YOU ARE ALSO AWARE, ARE YOU NOT, THAT MR. FLAHERTY 

        14    PERFORMED AN INCREMENTAL ANALYSIS OF EXACTLY THE TYPE THAT THE 

        15    DEPARTMENT OF JUSTICE SAID SHOULD BE DONE IN THE HONOLULU CASE? 

        16    A.   AM I AWARE OF THAT?  NO, I AM NOT AWARE OF THAT. 

        17    Q.   WELL, LET ME SHOW YOU EXHIBIT 1044 IN EVIDENCE. 

        18               THIS IS A MEMORANDUM FROM MR. FLAHERTY -- LET'S ZOOM 

        19    IN ON THE ADDRESSEES. 

        20               MIKE WEAVER, HE IS HERE IN THE COURTROOM, RIGHT? 

        21    A.   YES. 

        22    Q.   AND MR. WEAVER WAS THE FINANCIAL MEMBER OF YOUR TEAM, 

        23    RIGHT? 

        24    A.   THAT'S RIGHT. 

        25    Q.   AND LARRY INGRAM, THAT'S YOU, IS IT, SIR? 



                                                                         1133
                                INGRAM - CROSS / LINDSTROM 


         1    A.   THAT'S RIGHT. 

         2    Q.   NOW, IT'S YOUR TESTIMONY THAT ALTHOUGH THIS MEMO WAS 

         3    ADDRESSED TO YOU, YOU NEVER SAW IT BEFORE YOUR DEPOSITION; 

         4    ISN'T THAT RIGHT? 

         5    A.   THAT'S RIGHT. 

         6    Q.   NOW, LET'S ZOOM IN ON THE SECOND FULL PARAGRAPH, LAST 

         7    SENTENCE. 

         8               WELL, LET'S START WITH THE SECOND SENTENCE OF THIS 

         9    PARAGRAPH.  MR. FLAHERTY INDICATES: 

        10                   "WHILE THE EXAMINER NAME IS FAMILIAR THE 

        11               COST STRUCTURE BEHIND THAT NAME IS SO OVERPRICED 

        12               RELATIVE TO ITS REVENUE" -- 

        13               YOU AGREE WITH THAT, RIGHT, SIR? 

        14    A.   YES. 

        15    Q.   AND THEN IN THE NEXT SENTENCE HE OFFERS THIS STATEMENT: 

        16                   "IF DAILY EXAMINER WERE DROPPED, AGENCY 

        17               REVENUES WOULD DECLINE BY ABOUT 32 MILLION AND 

        18               THE COMBINED EXPENSES OF HEARST, CHRONICLE AND 

        19               AGENCY WOULD DECLINE BY $72 MILLION." 

        20               DO YOU SEE THAT? 

        21    A.   I SEE IT. 

        22    Q.   NOW, IT'S YOUR INTERPRETATION, IS IT NOT, OF THIS SENTENCE 

        23    THAT THE AGENCY WOULD BE $40 MILLION BETTER OFF IF IT DROPPED 

        24    THE EXAMINER? 

        25    A.   THAT'S WHAT THAT SAYS. 



                                                                         1134
                                INGRAM - CROSS / LINDSTROM 


         1    Q.   AND, IN FACT, THAT'S WHAT MR. FLAHERTY TOLD YOU; ISN'T 

         2    THAT RIGHT? 

         3    A.   NO.  AND I -- IF YOU RECALL, I -- I PUT ON THE -- THE 

         4    PIECE OF PAPER THAT I -- I WAS ASKED TO FILL OUT TO GO THROUGH 

         5    THE -- THE DISCOVERY INFORMATION THAT I HAD NOT SEEN THIS MEMO, 

         6    EVEN THOUGH IT WAS ADDRESSED TO ME, AND THAT WAS BEFORE MY 

         7    DEPOSITION. 

         8    Q.   THIS MEMO IS A PROBLEM, ISN'T IT, SIR? 

         9    A.   I DON'T SEE IT AS A PROBLEM.  I DON'T KNOW IF YOU DO OR 

        10    NOT. 

        11    Q.   DO YOU DISAGREE BASED ON YOUR BACKGROUND, TRAINING AND 

        12    EXPERIENCE WITH THE ASSERTION BY MR. FLAHERTY IN THIS DOCUMENT 

        13    THAT IF THE EXAMINER WERE DROPPED, AGENCY REVENUES WOULD 

        14    DECLINE BY ABOUT 32 MILLION AND THE COMBINED EXPENSES OF 

        15    HEARST, CHRONICLE AND AGENCY WOULD DECLINE BY 72 MILLION? 

        16    A.   I THINK I AGREE WITH THAT. 

        17    Q.   IT'S PRETTY CLOSE TO YOUR OWN ESTIMATE, ISN'T IT, SIR? 

        18    A.   UH-HUH, THAT'S RIGHT. 

        19    Q.   AND THE DETAIL BEHIND THESE FIGURES THAT MR. FLAHERTY 

        20    DESCRIBED, IT'S NOWHERE TO BE FOUND, IS IT? 

        21    A.   I DON'T KNOW. 

        22    Q.   YOU'VE NEVER SEEN THE DETAIL, HAVE YOU? 

        23    A.   NO. 

        24    Q.   NOW, AT YOUR DEPOSITION YOU TOLD ME THAT MR. FLAHERTY 

        25    TRANSFERRED TO YOU A LARGE AMOUNT OF DATA IN CONNECTION WITH 



                                                                         1135
                                INGRAM - CROSS / LINDSTROM 


         1    HIS WORK; ISN'T THAT RIGHT? 

         2    A.   HE TRANSFERRED THE -- THE DATA THAT WE HAD PUT TOGETHER AT 

         3    THAT MEETING ONTO A DISK AND HE DOWNLOADED WHAT WAS ON HIS 

         4    DISK, AS WELL.  I COULDN'T OPEN IT BECAUSE I DON'T HAVE EXCEL.  

         5    I HAVE LOTUS. 

         6    Q.   NOW, YOU TOLD ME OF THE EXISTENCE OF THIS DOWNLOADED DATA 

         7    AT YOUR DEPOSITION, RIGHT? 

         8    A.   RIGHT. 

         9    Q.   AND THAT WAS SOME TWO WEEKS AGO, RIGHT? 

        10    A.   RIGHT. 

        11    Q.   NOW, HAVE YOU MADE ANY EFFORT TO SEARCH YOUR DATABASE TO 

        12    SEE WHETHER THIS DETAIL FROM MR. FLAHERTY IS IN FACT INCLUDED 

        13    IN THAT DOWNLOADED DATA? 

        14    A.   NO. 

        15    Q.   WHERE IS MR. FLAHERTY? 

        16    A.   HE LIVES IN CINCINATTI. 

        17    Q.   SOME 2,000 MILES AWAY? 

        18    A.   I THINK THAT'S ABOUT RIGHT. 

        19    Q.   NOW, MR. FLAHERTY WAS THE VERY FIRST EXPERT RETAINED BY 

        20    MR. REILLY; ISN'T THAT RIGHT? 

        21    A.   I DON'T KNOW.  I THOUGHT WE WERE ALL RETAINED AT THE SAME 

        22    TIME. 

        23    Q.   WELL, CERTAINLY YOU AND MR. WEAVER AND MR. FLAHERTY WERE 

        24    RETAINED ABOUT THE SAME TIME; ISN'T THAT RIGHT? 

        25    A.   RIGHT. 



                                                                         1136
                                INGRAM - CROSS / LINDSTROM 


         1    Q.   BUT SINCE THEN MR. REILLY HAS RETAINED MR. SCHMIDT, RIGHT? 

         2    A.   RIGHT. 

         3    Q.   MR. PAGE? 

         4    A.   RIGHT. 

         5    Q.   MR. OSBORN? 

         6    A.   THAT'S RIGHT. 

         7    Q.   MR. FLOOD? 

         8    A.   YES. 

         9    Q.   DO YOU KNOW WHY MR. FLAHERTY ISN'T HERE TO TESTIFY AMONG 

        10    THE REILLY EXPERTS? 

        11    A.   I ASSUME BECAUSE HE HASN'T BEEN INVOLVED IN IT SINCE THE 

        12    VERY FIRST. 

        13    Q.   IT WOULDN'T HAVE ANYTHING TO DO WITH THE JUSTICE 

        14    DEPARTMENT'S POSITION IN HONOLULU, WOULD IT? 

        15    A.   I DON'T THINK SO. 

        16    Q.   NOW, LET'S TALK ABOUT THE SUBSIDY THAT'S DESCRIBED IN YOUR 

        17    DECLARATION AT PARAGRAPH 4.  AT LINES 18 TO 19 YOU REFER TO "A 

        18    VIABLE PAPER WHICH WOULD BE COMPETITIVE TO THE CHRONICLE," 

        19    ISN'T THAT RIGHT? 

        20    A.   RIGHT. 

        21    Q.   AND THEN IN THE NEXT LINE YOU AGAIN REFER TO "A VIABLE 

        22    COMPETITIVE PAPER." DO YOU SEE THAT REFERENCE? 

        23    A.   YES. 

        24    Q.   WHAT DO YOU MEAN BY THE TERM "VIABLE COMPETITIVE PAPER," 

        25    AS USED IN YOUR DECLARATION? 



                                                                         1137
                                INGRAM - CROSS / LINDSTROM 


         1    A.   A PAPER THAT CAN STAND ALONGSIDE THE CHRONICLE FROM A 

         2    READERSHIP STANDPOINT AND ATTRACT READERS COMPETITIVELY; FROM 

         3    THE ADVERTISING STANDPOINT TO PROVIDE THE -- THE ENVIRONMENT 

         4    THAT CAN -- CAN SELL ADVERTISING AGAINST THE -- AGAINST THE 

         5    CHRONICLE. 

         6    Q.   AND YOU DESCRIBED THE CHARACTERISTICS OF SUCH A PAPER 

         7    DURING YOUR DIRECT EXAMINATION BY MR. SHULMAN, CORRECT? 

         8    A.   RIGHT. 

         9    Q.   AND, AMONG OTHER THINGS, IT WOULD NEED TO HAVE MINIMUM 85 

        10    TO 90,000 IN CIRCULATION, RIGHT? 

        11    A.   THAT'S RIGHT. 

        12    Q.   AND YOU DESCRIBED THE LENGTH OF THE PAPER AND THE CONTENT, 

        13    RIGHT? 

        14    A.   THAT'S RIGHT. 

        15    Q.   AND IT WAS YOUR BEST JUDGMENT THAT THAT VIABLE COMPETITIVE 

        16    PAPER, ONCE ESTABLISHED, WOULD COST ABOUT $50 MILLION A YEAR TO 

        17    PUT OUT; ISN'T THAT RIGHT? 

        18    A.   RIGHT. 

        19    Q.   NOW, WHAT MARKET WAS TO BE SERVED BY THIS VIABLE 

        20    COMPETITIVE PAPER THAT YOU ENVISION IN YOUR DECLARATION? 

        21    A.   THE MARKET WAS A SAN FRANCISCO MARKET, SAN FRANCISCO 

        22    COUNTY AND THE PORTIONS OF THE CONTIGUOUS COUNTIES THAT 

        23    BASICALLY MAKE UP THE SAN FRANCISCO MARKET. 

        24    Q.   ALL RIGHT.  AND THAT MARKET DOESN'T STOP AT THE BOUNDARIES 

        25    OF THE CITY AND COUNTY OF SAN FRANCISCO, IN YOUR JUDGMENT, DOES 



                                                                         1138
                                INGRAM - CROSS / LINDSTROM 


         1    IT? 

         2    A.   NO. 

         3    Q.   AND, IN FACT, IT INCLUDES NORTH SAN MATEO COUNTY; ISN'T 

         4    THAT RIGHT? 

         5    A.   YES. 

         6    Q.   AND MARIN COUNTY? 

         7    A.   A PORTION OF MARIN COUNTY. 

         8    Q.   WHAT PORTION? 

         9    A.   THE -- THE SOUTHERN PORTION OF MARIN COUNTY AND PROBABLY 

        10    JUST THE STREET SALE PORTION OF IT. 

        11    Q.   IT ALSO INCLUDES THE EAST BAY WEST OF THE BERKELEY HILLS 

        12    IN YOUR JUDGMENT; ISN'T THAT RIGHT? 

        13    A.   YES. 

        14    Q.   NOW, WHY WOULD THESE OUTLYING AREAS BE INCLUDED, IN YOUR 

        15    JUDGMENT, IN THE SAN FRANCISCO MARKET? 

        16    A.   BECAUSE THESE ARE -- THESE ARE AREAS WHERE THE PEOPLE WHO 

        17    LIVE THERE WORK AND SHOP IN SAN FRANCISCO AND CONSIDER 

        18    THEMSELVES PART OF SAN FRANCISCO AND ARE ATTRACTIVE TO THE -- 

        19    TO THE ADVERTISERS IN SAN FRANCISCO. 

        20    Q.   IN YOUR EXPERIENCE SAN FRANCISCO ADVERTISERS WANT TO REACH 

        21    THIS GROUP AS PART OF THEIR ADVERTISING EFFORT; ISN'T THAT 

        22    RIGHT? 

        23    A.   THAT'S -- THAT'S RIGHT. 

        24    Q.   SO THE ADVERTISERS ARE DEFINING THE MARKET FOR YOU; ISN'T 

        25    THAT TRUE? 



                                                                         1139
                                INGRAM - CROSS / LINDSTROM 


         1    A.   YES. 

         2    Q.   NOW, A COUPLE TIMES DURING YOUR DIRECT EXAMINATION YOU 

         3    REFERRED TO THE METROPOLITAN AREA OF SAN FRANCISCO. 

         4               DO YOU RECALL THAT TESTIMONY? 

         5    A.   YES. 

         6    Q.   IS THAT METROPOLITAN MARKET THAT YOU DESCRIBED THE SAME 

         7    ONE THAT YOU HAVE JUST NOW TOLD US ABOUT? 

         8    A.   I THINK SO. 

         9    Q.   IN OTHER WORDS, INCLUDING PARTS OF MARIN, SAN MATEO AND 

        10    THE EAST BAY, RIGHT? 

        11    A.   RIGHT. 

        12    Q.   NOW, MR. REILLY'S CONTEMPLATED EXAMINER WOULD HAVE 

        13    COMPETED IN ALL OF THESE AREAS THAT YOU HAVE JUST IDENTIFIED; 

        14    ISN'T THAT RIGHT? 

        15    A.   YES. 

        16    Q.   AND THE CHRONICLE COMPETES IN ALL OF THESE AREAS, AS WELL; 

        17    ISN'T THAT RIGHT? 

        18    A.   THAT'S RIGHT. 

        19    Q.   AND IN THOSE AREAS BOTH PAPERS HAVE TO COMPETE AGAINST 

        20    OTHERS; ISN'T THAT TRUE? 

        21    A.   IN SOME OF THOSE AREAS. 

        22    Q.   WELL, FOR EXAMPLE, IN MARIN BOTH PAPERS WOULD BE REQUIRED 

        23    TO COMPETE AGAINST THE MARIN INDEPENDENT JOURNAL; ISN'T THAT 

        24    RIGHT? 

        25    A.   THAT'S RIGHT. 



                                                                         1140
                                INGRAM - CROSS / LINDSTROM 


         1    Q.   AND IN THE EAST BAY YOU WOULD BE REQUIRED TO COMPETE 

         2    AGAINST THE OAKLAND TRIBUNE AND OTHER EAST BAY PAPERS; ISN'T 

         3    THAT RIGHT? 

         4    A.   TO SOME EXTENT. 

         5    Q.   AND IN SAN MATEO YOU WOULD BE REQUIRED TO COMPETE WITH THE 

         6    PENINSULA PAPERS, SUCH AS THE SAN JOSE MERCURY NEWS; ISN'T THAT 

         7    RIGHT? 

         8    A.   TO AN EXTENT. 

         9    Q.   AND YOU TOLD US TODAY ABOUT THE SAN MATEO TIMES.  THAT 

        10    WOULD BE A COMPETITOR, AS WELL; ISN'T THAT RIGHT? 

        11    A.   TO AN EXTENT. 

        12    Q.   BOTH FOR THE CHRONICLE AND THE REILLY CONTEMPLATED 

        13    EXAMINER; ISN'T THAT RIGHT? 

        14    A.   THAT'S RIGHT. 

        15    Q.   AND, IN FACT, IN YOUR DEPOSITION YOU TOLD ME THAT WHILE AT 

        16    THE AGENCY THE CHRONICLE AND THE SAN JOSE MERCURY HAD ATTEMPTED 

        17    TO BEAT ONE ANOTHER OVER THE HEADS ON MORE THAN ONE OCCASION; 

        18    IS THAT RIGHT? 

        19    A.   YES. 

        20    Q.   IN COMPETITION, RIGHT? 

        21    A.   IT WASN'T COMPETITION OF WORK.  THERE IS A LINE IN THERE 

        22    THAT NEITHER OF US SEEM TO BE ABLE TO GO INTO THE OTHER 

        23    PERSON'S TURF. 

        24    Q.   BUT BOTH SIDES WERE ATTEMPTING TO EXPAND THAT LINE; IS 

        25    THAT RIGHT? 



                                                                         1141
                                INGRAM - CROSS / LINDSTROM 


         1    A.   AT THE TIME I WAS THERE IT WAS SOMETHING WE DIDN'T TRY 

         2    VERY HARD TO DO BECAUSE IT DIDN'T WORK. 

         3    Q.   NOW, THE SUBSIDY THAT YOU'VE DESCRIBED OF $50 MILLION, 

         4    THAT ASSUMES LITTLE TO NO OFFSETTING REVENUE DURING THE SUBSIDY 

         5    PERIOD, CORRECT? 

         6    A.   YES. 

         7    Q.   AND THAT SUBSIDY, FOR THE RECORD, MEANS JUST TO GET TO 

         8    BREAK EVEN; ISN'T THAT RIGHT? 

         9    A.   THAT'S RIGHT. 

        10    Q.   IN OTHER WORDS, THE SUBSIDY THAT YOU'VE DESCRIBED IN YOUR 

        11    DECLARATION DOESN'T INCLUDE ANY OPERATING PROFIT; ISN'T THAT 

        12    RIGHT? 

        13    A.   THAT'S RIGHT. 

        14    Q.   AND THERE IS NOTHING THERE FOR A RETURN ON INVESTMENT, 

        15    CORRECT? 

        16    A.   IT'S -- IT'S A BREAK EVEN.  IT'S NOT -- IT'S NOT A PROFIT 

        17    ENTERPRISE DURING THE SUBSIDY PERIOD. 

        18    Q.   NOW, THE SUBSIDY THAT YOU'VE DESCRIBED IN YOUR JUDGMENT 

        19    WOULD BE REQUIRED NO MATTER WHO WAS TO OPERATE THIS NEW 

        20    EXAMINER; ISN'T THAT TRUE? 

        21    A.   YES. 

        22    Q.   IN OTHER WORDS, IT DOESN'T MATTER WHETHER IT'S THE FANGS 

        23    OR MR. REILLY.  IT'S STILL GOING TO COST $50 MILLION A YEAR IN 

        24    SUBSIDY FOR FIVE YEARS, RIGHT? 

        25    A.   THAT'S MY BELIEF. 



                                                                         1142
                                INGRAM - CROSS / LINDSTROM 


         1    Q.   IN YOUR JUDGMENT THE SAME WOULD BE TRUE IF GANNETT WERE TO 

         2    PURCHASE THE PAPER, RIGHT? 

         3    A.   THERE ARE SOME DIFFERENCES THERE.  IT'S GOING TO COST THAT 

         4    MUCH TO RUN IT.  GANNETT HAS -- HAS RESOURCES, PERSONNEL AND 

         5    THINGS OF THAT NATURE, THAT THEY CAN CALL AND IT MAY CHANGE THE 

         6    PICTURE SOMEWHAT BUT PROBABLY NOT A LOT. 

         7    Q.   ISN'T IT TRUE, SIR, THAT IN YOUR JUDGMENT IF HEARST ITSELF 

         8    WERE TO ATTEMPT TO OPERATE THIS PAPER FOLLOWING THE EXPIRATION 

         9    OF THE JOA, IT WOULD NEED RESOURCES OF $50 MILLION A YEAR TO 

        10    SUBSIDIZE THE LOSSES THAT WOULD BE OTHERWISE INCURRED? 

        11    A.   IT MAY VERY WELL NEED MORE IF HEARST RAN IT. 

        12    Q.   NOW, THE INITIAL GOAL OF MR. REILLY WAS TO ACQUIRE THE 

        13    EXAMINER FOR HIMSELF; ISN'T THAT RIGHT? 

        14    A.   YES. 

        15    Q.   AND FOLLOWING YOUR FIRST MEETING WITH MR. WEAVER AND 

        16    MR. REILLY, YOU HAD LUNCH THE NEXT DAY WITH MR. REILLY; ISN'T 

        17    THAT RIGHT? 

        18    A.   YES. 

        19    Q.   AND THAT WAS AFTER YOU HAD REVIEWED THIS ROOM FULL OF DUE 

        20    DILIGENCE MATERIALS THAT HEARST HAD MADE AVAILABLE TO HIM AS A 

        21    PROSPECTIVE BUYER AT THE LAW OFFICES OF HEARST'S COUNSEL; ISN'T 

        22    THAT RIGHT? 

        23    A.   YES. 

        24    Q.   AND, OF COURSE, YOU HAD SEEN THE VERONIS SUHLER REPORT, 

        25    RIGHT? 



                                                                         1143
                                INGRAM - CROSS / LINDSTROM 


         1    A.   I HADN'T STUDIED IT.  I HAD SEEN IT. 

         2    Q.   AS OF THAT POINT IN TIME YOU HADN'T STUDIED IT? 

         3    A.   RIGHT. 

         4    Q.   AND DURING YOUR LUNCH, YOU AND MR. REILLY TALKED ABOUT HIS 

         5    GOALS AND OBJECTIVES, DIDN'T YOU? 

         6    A.   YES. 

         7    Q.   AND THE NEXT MONDAY YOU CALLED MR. FLAHERTY; ISN'T THAT 

         8    RIGHT? 

         9    A.   MAY HAVE. 

        10    Q.   AND YOU GAVE HIM A REPORT ON YOUR CONVERSATION WITH 

        11    MR. REILLY; ISN'T THAT TRUE? 

        12    A.   I THINK SO. 

        13    Q.   AND YOU TOLD MR. FLAHERTY THAT MR. REILLY WAS LOOKING FOR 

        14    A FINANCIAL HOME RUN; ISN'T THAT RIGHT? 

        15    A.   YES. 

        16    Q.   AND THAT'S WHAT MR. REILLY HAD TOLD YOU; ISN'T THAT TRUE? 

        17    A.   MR. REILLY TOLD ME THAT HE WANTED TO PURCHASE THE PAPER.  

        18    HE FELT THAT -- THAT HE HAD INTEREST IN -- IN GETTING INTO THAT 

        19    BUSINESS AND THAT HE FELT THAT WOULD BE A HOME RUN.  HE WOULD 

        20    LIKE TO HAVE THAT PAPER.  HE WOULD LIKE TO MAKE IT WORK.  HE 

        21    FELT VERY STRONGLY ABOUT THE NEED FOR TWO PAPERS THERE AND HIS 

        22    BACKGROUND AS A POLITICAL CONSULTANT AND . . . 

        23    Q.   ISN'T IT TRUE, SIR, THAT YOU TOLD MR. FLAHERTY THAT CLINT 

        24    REILLY WAS LOOKING FOR A FINANCIAL HOME RUN? 

        25    A.   I THINK HE FIGURED THAT WOULD BE A FINANCIAL HOME RUN. 



                                                                         1144
                                INGRAM - CROSS / LINDSTROM 


         1    Q.   ISN'T IT TRUE, SIR, THAT YOU TOLD MR. FLAHERTY THAT 

         2    PLAINTIFF REILLY WAS LOOKING FOR A FINANCIAL HOME RUN? 

         3    A.   PROBABLY. 

         4    Q.   AND YOU ALSO TOLD MR. FLAHERTY IN THAT CONVERSATION THAT 

         5    CLINT WANTS TO GET EXAMINER AT LOW RISK.  ISN'T THAT RIGHT? 

         6    A.   SURE. 

         7    Q.   AND MR. REILLY HAD TOLD YOU HE DIDN'T WANT TO PUT ANY OF 

         8    HIS OWN MONEY INTO THIS PAPER, DIDN'T HE? 

         9    A.   NO, HE DID NOT TELL ME THAT. 

        10    Q.   ISN'T IT TRUE THAT CLINT SAID HE DOES NOT WANT TO INVEST 

        11    MUCH CAPITAL? 

        12    A.   CLINT WANTED TO KNOW WHAT HIS EXPOSURE WOULD BE AND TRIED 

        13    TO MINIMIZE IT.  HE ON MANY OCCASIONS HAD MENTIONED THE FACT 

        14    THAT AT SOME POINT HE MIGHT BRING A FAIR AMOUNT OF HIS CAPITAL 

        15    TO BEAR ON THE PROJECT. 

        16    Q.   DID YOU TELL MR. FLAHERTY IN YOUR CONVERSATION ON MONDAY, 

        17    THE 6TH OF FEBRUARY, CLINT DOES NOT WANT TO INVEST MUCH 

        18    CAPITAL, YES OR NO? 

        19    A.   I DON'T BELIEVE I DID. 

        20    Q.   NOW, YOU ALSO TOLD MR. FLAHERTY THAT MR. REILLY WANTED 

        21    ANOTHER ASSET FROM HEARST; IS THAT RIGHT? 

        22    A.   ONE OF HIS APPROACHES TO PUTTING THE DEAL TOGETHER WAS TO 

        23    PROTECT HIMSELF WITH -- WITH SOME REAL ESTATE ASSETS BECAUSE HE 

        24    UNDERSTOOD REAL ESTATE.  AND THERE WAS OTHER PROPERTIES OUT 

        25    THERE THAT WE TOLD HIM THAT HE NEEDED TO MAKE THE THING RUN -- 



                                                                         1145
                                INGRAM - CROSS / LINDSTROM 


         1    RUN PROPERLY LIKE THE BRANNAN STREET GARAGE AND THE PARKING.  

         2    AND -- AND MR. REILLY LOOKED AT THOSE AS PART -- AS A POTENTIAL 

         3    PART OF THE PACKAGE, THAT IF THINGS FAILED WOULD ALLOW HIM TO 

         4    COVER SOME OF HIS COSTS. 

         5    Q.   BECAUSE THAT REAL ESTATE HAD VALUES APART FROM THE 

         6    NEWSPAPER BUSINESS, CORRECT? 

         7    A.   YES. 

         8    Q.   ALL RIGHT.  AND HE WAS TRYING FOR THE MARKET STREET OFFICE 

         9    BUILDING AND GARAGE; ISN'T THAT RIGHT? 

        10    A.   THE MARKET STREET?  THE -- THERE IS NOT A GARAGE THERE.  

        11    ARE YOU TALKING ABOUT THE 1010 FIFTH? 

        12    Q.   I AM TALKING ABOUT WHAT YOU TOLD MR. FLAHERTY ON THE 6TH.  

        13    WHAT DID YOU TELL HIM THAT MR. REILLY WAS INTERESTED IN? 

        14    A.   IN THE -- THE 1010 BUILDING WAS IN THE -- IN THE 

        15    PROSPECTUS.  WE HAD ADVISED HIM AND I HAD ADVISED HIM THAT 

        16    THE -- THE BRANNAN STREET GARAGE SHOULD BE MADE PART OF IT AND 

        17    THAT THERE WAS PROPERTY BETWEEN MARKET AND, I GUESS, THAT'S 

        18    HOWARD STREET THAT WAS BEING USED FOR PARKING AND THEY 

        19    NEEDED -- THEY WOULD NEED THAT, AS WELL, FOR PARKING FOR 

        20    EMPLOYEES AND TRUCKS BECAUSE THEY WERE GOING TO LOSE THE REST 

        21    OF THE PARKING. 

        22    Q.   YOU SAID -- 

        23    A.   AND TO TRY TO MAKE IT PART OF THE DEAL. 

        24    Q.   YOU SUGGESTED HE MIGHT ALSO GET THE FIFTH AND BRANNAN 

        25    SITE, CORRECT? 



                                                                         1146
                                INGRAM - CROSS / LINDSTROM 


         1    A.   RIGHT. 

         2    Q.   ALL RIGHT.  NOW, BOTH OF THESE SITES ARE BELOW MARKET 

         3    STREET; ISN'T THAT RIGHT? 

         4    A.   YES. 

         5    Q.   AND THERE IS AN AWFUL LOT GOING DOWN THERE RIGHT NOW IN 

         6    THE WAY OF REAL ESTATE DEVELOPMENT; ISN'T THAT TRUE? 

         7    A.   I ASSUME THAT'S TRUE.  I DON'T LIVE IN THE AREA ANY 

         8    LONGER. 

         9    Q.   WELL, DO YOU HAVE ANY VIEW, AS YOU SIT HERE, WHETHER THOSE 

        10    REAL ESTATE PARCELS MIGHT BE MORE VALUABLE IF PUT TO ANOTHER 

        11    USE? 

        12    A.   I DON'T HAVE ANY OPINION ON THAT. 

        13    Q.   YOU REGARD MR. REILLY AS A PRETTY SAVVY REAL ESTATE 

        14    INVESTOR, DO YOU NOT? 

        15    A.   I ASSUME HE IS.  HE DIDN'T COME UP WITH THOSE NOTIONS.  

        16    THOSE ARE THE PIECES OF PROPERTY THAT I POINTED OUT TO HIM. 

        17    Q.   ISN'T IT TRUE THAT THE REASON MR. REILLY IS HAPPY AS A FOX 

        18    IN THE HEN HOUSE IS HE THOUGHT HE WAS GOING TO BE ABLE TO GET 

        19    THESE REAL ESTATE PARCELS AS PART OF THIS DEAL? 

        20    A.   NO.  AS I RECALL THE CONVERSATION I HAD WITH HIM, REAL 

        21    ESTATE WASN'T COMING TO PLAY IN THERE.  HE WAS -- HE DIDN'T 

        22    BELIEVE GOING IN THAT MEETING THAT -- THAT THE NEGOTIATIONS 

        23    MIGHT -- MIGHT BE HEADING IN THE RIGHT DIRECTION.  HE CAME OUT 

        24    OF THE MEETING BELIEVING THAT THE HEARST CORPORATION REALLY 

        25    WANTED TO MAKE A DEAL AND HE WAS GOING TO BE ABLE TO DO THE 



                                                                         1147
                                INGRAM - CROSS / LINDSTROM 


         1    DEAL. 

         2    Q.   NOW, EXHIBIT 305 IN EVIDENCE -- IT'S THE ONE MR. HOCKETT 

         3    SHOWED YOU.  THIS IS THE "FOX IN THE HEN HOUSE" MEMO, RIGHT? 

         4    A.   RIGHT. 

         5    Q.   NOW, THIS IS AN E-MAIL SENT BY YOU ON FEBRUARY 13TH, 

         6    RIGHT? 

         7    A.   YES. 

         8    Q.   AND AS OF THAT POINT IN TIME, MR. REILLY FELT VERY 

         9    POSITIVELY ABOUT HIS ABILITY TO MAKE A GOOD DEAL, RIGHT? 

        10    A.   TO MAKE A DEAL, THAT'S RIGHT. 

        11    Q.   THAT WAS THE FINANCIAL HOME RUN THAT WE TALKED ABOUT 

        12    EARLIER; IS THAT TRUE? 

        13    A.   NO. 

        14    Q.   JUST A GOOD DEAL? 

        15    A.   IT WAS -- HE -- HE -- HE FELT COMING OUT OF THAT MEETING 

        16    THAT THERE WAS GOING TO BE SERIOUS NEGOTIATIONS TO SELL THAT 

        17    PAPER AND STRUCTURED IN A WAY THAT -- THAT IT WOULD HAVE A 

        18    CHANCE TO BE SUCCESSFUL. 

        19    Q.   AND WHEN YOU TALKED WITH MR. REILLY LATER IN EARLY MARCH, 

        20    THE TIDE HAD TURNED; ISN'T THAT RIGHT? 

        21    A.   THEY HAD HAD A MEETING THAT HADN'T GONE WELL, BUT I AM NOT 

        22    SURE WHAT THE -- EXACTLY WHAT THE PROBLEM WAS.  BUT I KNOW IT 

        23    DIDN'T GO WELL. 

        24    Q.   WELL, LET ME TELL YOU -- LET ME ASK YOU TO LOOK HERE AT 

        25    EXHIBIT 321 IN EVIDENCE.  THIS IS ANOTHER E-MAIL WITH YOUR 



                                                                         1148
                                INGRAM - CROSS / LINDSTROM 


         1    HANDLE "BRASS MONKEY 2," RIGHT? 

         2    A.   RIGHT. 

         3    Q.   THAT'S YOUR E-MAIL ADDRESS? 

         4    A.   RIGHT. 

         5    Q.   AND YOU ARE RELAYING TO MR. WEAVER THE GIST OF THE 

         6    CONVERSATION YOU JUST HAD WITH MR. REILLY; ISN'T THAT RIGHT? 

         7    A.   RIGHT. 

         8    Q.   AND THIS IS A CONVERSATION THAT HAD OCCURRED ON THE 4TH OF 

         9    MARCH, RIGHT? 

        10    A.   YES. 

        11    Q.   AND THE CONTEXT HERE IS HE HAD BEEN IN NEW YORK MEETING 

        12    WITH HEARST REPRESENTATIVES, RIGHT? 

        13    A.   I DON'T THINK HE WAS IN NEW YORK.  I THINK -- I THINK HE 

        14    WAS HERE. 

        15    Q.   ALL RIGHT.  IN ANY EVENT, THE CONTEXT WAS HE HAD MET WITH 

        16    HEARST REPRESENTATIVES; ISN'T THAT TRUE? 

        17    A.   YES. 

        18    Q.   ALL RIGHT.  AND HE TOLD YOU THAT THINGS WENT BADLY; ISN'T 

        19    THAT RIGHT? 

        20    A.   THAT'S RIGHT. 

        21    Q.   AND ONE OF THE THINGS THAT WENT BADLY WAS THAT HIS SIDE, 

        22    AS HE TOLD YOU, WAS DISORGANIZED; ISN'T THAT RIGHT? 

        23    A.   THEY HADN'T HAD A CHANCE TO GET TOGETHER BEFORE THE 

        24    MEETING. 

        25    Q.   AND HE SUGGESTED, MR. REILLY SUGGESTED, THAT THE MEETING 



                                                                         1149
                                INGRAM - CROSS / LINDSTROM 


         1    HAD BEEN A WASTE OF TIME; ISN'T THAT RIGHT? 

         2    A.   I DON'T THINK HE SAID IT WAS A WASTE OF TIME.  HE FELT THE 

         3    MEETING HAD GONE VERY POORLY. 

         4    Q.   AND DID HE TELL YOU WHAT MR. ASHER'S REACTION WAS TO THE 

         5    MEETING? 

         6    A.   AS I RECALL -- I AM NOT SURE HE TOLD ME WHAT THE REACTION 

         7    WAS OTHER THAN THEY DIDN'T GET ANYWHERE AND MR. ASHER WAS GOING 

         8    TO, AS IT SAYS HERE, GET BACK TO HIM ON MONDAY. 

         9    Q.   OKAY.  DID MR. REILLY TELL YOU THAT THEY, REFERRING TO HIS 

        10    SIDE, WERE COMPLETELY UNCOORDINATED? 

        11    A.   HE SAID THEY HAD MISSED THE OPPORTUNITY TO GET TOGETHER 

        12    AND COORDINATE THEMSELVES BEFORE THE MEETING.  I DON'T REMEMBER 

        13    HIM SAYING THAT THEY WERE COMPLETELY UNCOORDINATED BUT HE MAY 

        14    HAVE. 

        15    Q.   AND THEN IN THE NEXT SENTENCE DID MR. REILLY TELL YOU THAT 

        16    HE HAD HAD A RESTLESS NIGHT THINKING OVER OUR CONCERNS? 

        17    A.   YES. 

        18    Q.   AND YOU HAD TOLD HIM, HAD YOU NOT, IN SUM OR SUBSTANCE 

        19    THAT THIS PAPER WASN'T GOING TO BE THE FINANCIAL HOME RUN HE 

        20    WAS HOPING FOR; ISN'T THAT RIGHT? 

        21    A.   NO. 

        22    Q.   ISN'T IT TRUE, SIR, THAT YOU TOLD MR. REILLY, YOU AND 

        23    MR. WEAVER, THAT THIS PAPER WAS NOT LIKELY EVER GOING TO BE 

        24    PROFITABLE UNDER THESE SCENARIOS? 

        25    A.   NO.  WHAT WE HAD TOLD HIM IS THAT THE -- THE WAY THE DEAL 



                                                                         1150
                                INGRAM - CROSS / LINDSTROM 


         1    WAS GETTING CONSTRUCTED FROM HEARST'S SIDE, IT WAS GOING TO 

         2    MAKE THE -- IT WOULD MAKE THE PAPER FAIL, NOT MAKE IT BE 

         3    UNPROFITABLE, THAT IT WOULD FAIL, THAT THE RESTRICTIONS THAT 

         4    THEY WERE PLACING ON HIM AS PART OF THIS DEAL, WHICH WAS 50,000 

         5    PRINT ORDER DAILY AND NO SUNDAY, DID NOT PROVIDE FOR A PAPER 

         6    THAT COULD SUCCEED IN SAN FRANCISCO, ATTRACT ADVERTISING AND/OR 

         7    READERS. 

         8    Q.   ISN'T IT YOUR TESTIMONY, SIR, HERE TODAY THAT THE 

         9    EXAMINER, NO MATTER WHO RUNS IT, IS GOING TO FAIL UNLESS IT'S 

        10    SUPPORTED BY A $50 MILLION SUBSIDY FOR FIVE YEARS? 

        11    A.   MY TESTIMONY IS THAT UNLESS IT'S SUPPORTED BY A SUBSIDY 

        12    AND ALLOWED TO PRINT A COMPETITIVE PAPER, IT'S GOING TO TAKE AT 

        13    LEAST FOUR TO SIX YEARS, SEVEN YEARS, MAYBE, BEFORE IT CAN 

        14    REACH A POINT THAT IT BEGINS TO MAKE MONEY. 

        15    Q.   AND DURING THAT PERIOD IT WILL LOSE APPROXIMATELY 

        16    $250 MILLION; ISN'T THAT RIGHT? 

        17    A.   IT VERY WELL COULD. 

        18               MR. LINDSTROM:  THANK YOU, YOUR HONOR.  NO FURTHER 

        19    QUESTIONS. 

        20               THE COURT:  VERY WELL.  MR. HALLING? 

        21               HOW LONG IS YOUR EXAMINATION OF THIS WITNESS? 

        22               MR. HALLING:  SHORT. 

        23               THE COURT:  ALL RIGHT. 

        24    

        25    



                                                                         1151
                                 INGRAM - CROSS / HALLING 


         1                           CROSS-EXAMINATION 

         2    BY MR. HALLING: 

         3    Q.   NOW, MR. INGRAM, THERE WAS A HOUSECLEANING AT THE AGENCY 

         4    IN 1993, WAS THERE NOT? 

         5    A.   YOU CAN CALL IT THAT. 

         6    Q.   A NUMBER OF PEOPLE LEFT, INCLUDING YOURSELF? 

         7    A.   THAT'S RIGHT. 

         8    Q.   IN FACT, YOU WERE LET GO.  YOU WERE DISAPPOINTED IN THAT, 

         9    WEREN'T YOU? 

        10    A.   OF COURSE. 

        11    Q.   NOW, A LOT OF -- A NUMBER OF OTHER PEOPLE LEFT WHEN YOU 

        12    DID, DIDN'T THEY? 

        13    A.   FOUR OR FIVE. 

        14    Q.   THOSE JUST HAPPENED TO BE OTHER CONSULTANTS THAT 

        15    MR. REILLY HAS RETAINED FOR THIS CASE; ISN'T THAT RIGHT? 

        16    A.   YOU KNOW, I DON'T THINK SO.  OH, YEAH, ONE, TOM CLANCY. 

        17    Q.   HOW ABOUT MR. FLOOD? 

        18    A.   I AM NOT SURE WHEN FLOOD LEFT.  IT WAS -- I WAS ALREADY 

        19    OUT OF THE -- OF THE AREA BY THE TIME HE LEFT THERE. 

        20    Q.   NOW, THE REASON FOR THIS HOUSECLEANING WAS THE POOR 

        21    FINANCIAL RESULTS OF THE AGENCY; ISN'T THAT RIGHT? 

        22    A.   THE REASON FOR THE HOUSECLEANING WAS THE NEW MANAGEMENT 

        23    CAME INTO THE CHRONICLE AND THEY BROUGHT THEIR OWN MANAGEMENT 

        24    STAFF WITH THEM. 

        25    Q.   AND THE REASON FOR THE NEW MANAGEMENT WAS THE POOR 



                                                                         1152
                                 INGRAM - CROSS / HALLING 


         1    FINANCIAL RESULTS; ISN'T THAT CORRECT? 

         2    A.   YOU ARE ASKING ME TO MAKE A JUDGMENT THAT I DON'T HAVE 

         3    KNOWLEDGE OF. 

         4    Q.   SO YOU -- 

         5    A.   I DIDN'T REPLACE MYSELF. 

         6    Q.   SO YOUR TESTIMONY IS YOU DON'T KNOW? 

         7    A.   RIGHT. 

         8    Q.   NOW, MR. LINDSTROM ASKED YOU SOME QUESTIONS ABOUT SOME 

         9    DOCUMENTS PREPARED BY MR. FLAHERTY.  I WOULD LIKE TO DIRECT 

        10    YOUR ATTENTION TO EXIN EXHIBIT 88. 

        11               MAY I APPROACH THE WITNESS, YOUR HONOR? 

        12               THE COURT:  YES, YOU MAY. 

        13    BY MR. HALLING: 

        14    Q.   PLEASE TAKE A LOOK AT THAT DOCUMENT, MR. INGRAM. 

        15               WAS THAT A DOCUMENT THAT WAS PART OF YOUR 

        16    INFORMATION EXCHANGE WITH MR. FLAHERTY IN CONNECTION WITH YOUR 

        17    CONSULTATION ON MR. REILLY'S POTENTIAL PURCHASE OF THE 

        18    EXAMINER? 

        19    A.   I AM NOT FAMILIAR WITH THIS DOCUMENT. 

        20    Q.   YOU DID -- 

        21    A.   THIS ISN'T ONE OF THEM THAT WE WORKED ON AS A -- AS A 

        22    GROUP. 

        23    Q.   AT THE BOTTOM OF THE PAGE THERE IS A REFERENCE TO 

        24    "FLAHERTY DOCUMENTS."  DO YOU SEE THAT, IN THE FOOTER? 

        25    A.   OH, YEAH, RIGHT. 



                                                                         1153
                                 INGRAM - CROSS / HALLING 


         1    Q.   YOU DID EXCHANGE INFORMATION WITH MR. FLAHERTY AS PART OF 

         2    YOUR CONSULTATION, DID YOU NOT? 

         3    A.   WE WORKED TOGETHER CLOSELY FOR A WHILE. 

         4    Q.   YOU ALSO SPOKE WITH MR. REILLY AS PART OF THE 

         5    CONSULTATION, DID YOU NOT? 

         6    A.   YES. 

         7               MR. HALLING:  YOUR HONOR, THIS EXHIBIT, EXIN 88, HAS 

         8    PREVIOUSLY BEEN STIPULATED TO BUT NOT FORMALLY OFFERED, AND I 

         9    WOULD LIKE TO OFFER IT AT THIS TIME. 

        10               THE COURT:  ANY OBJECTION, MR. SHULMAN? 

        11               MR. SHULMAN:  NO, YOUR HONOR. 

        12               THE COURT:  EXIN 88 WILL BE ADMITTED. 

        13                             (DEFENDANT'S EXHIBIT E-88  

        14                              RECEIVED IN EVIDENCE) 

        15    BY MR. HALLING: 

        16    Q.   I WOULD LIKE TO DIRECT YOUR ATTENTION, MR. INGRAM, TO 

        17    THE -- THE DESCRIPTION UNDER THE PHRASE "SUM SFX."  

        18               DO YOU SEE THAT? 

        19    A.   ALL RIGHT. 

        20    Q.   SPECIFICALLY THE FIRST TWO PARAGRAPHS.  IT TALKS ABOUT A 

        21    PHONE CALL YOU HAD WITH MR. FLAHERTY AROUND THE 6TH OF 

        22    FEBRUARY. 

        23               YOU HAD A CALL WITH HIM ABOUT THEN, DIDN'T YOU? 

        24    A.   YES. 

        25    Q.   IT READS: 



                                                                         1154
                                 INGRAM - CROSS / HALLING 


         1                   "CLINT WANTS TO GET EXAMINER AT LOW RISK AND 

         2               ANOTHER ASSET FROM HEARST.  HE TALKED ABOUT 

         3               TRYING FOR MARKET STREET OFFICE BUILDING AND 

         4               GARAGE." 

         5               I ASSUME "HE" MEANS MR. REILLY, CORRECT? 

         6    A.   I DIDN'T WRITE THIS. 

         7    Q.   IT CONTINUES: 

         8                   "LARRY COUNTERED BY SUGGESTING FIFTH AND 

         9               BRANNAN SITE." 

        10               IT CONTINUES: 

        11                   "LARRY SAYS CLINT HAS MADE MONEY BY BEING A 

        12               CONTRARIAN AND THAT HE WOULD LIKE TO FOLLOW THAT 

        13               PATH IN THIS OPPORTUNITY.  HE'S LOOKING FOR A 

        14               FINANCIAL HOME RUN, EVEN IF THERE'S A LOW 

        15               PROBABILITY OF ACHIEVING IT." 

        16               NOW, IT'S TRUE, IS IT NOT, MR. INGRAM, THAT THIS WAS 

        17    ALL A REAL ESTATE PLOY BY MR. REILLY? 

        18    A.   NO. 

        19    Q.   ISN'T THAT RIGHT? 

        20    A.   NO, IT WASN'T. 

        21    Q.   THAT'S MR. REILLY'S PRINCIPAL BUSINESS, ISN'T IT, REAL 

        22    ESTATE? 

        23    A.   IT'S NOT THE ONLY BUSINESS HE HAS BEEN IN.  THAT'S HIS 

        24    PRINCIPAL BUSINESS. 

        25    Q.   HE HAS BEEN A POLITICAL CONSULTANT PREVIOUSLY? 



                                                                         1155
                                INGRAM - REDIRECT / SHULMAN 


         1               THE COURT:  DON'T INTERRUPT THE WITNESS. 

         2    BY MR. HALLING: 

         3    Q.   SO HE IS A POLITICAL CONSULTANT; NOW HE IS IN THE REAL 

         4    ESTATE BUSINESS, CORRECT? 

         5    A.   THAT'S RIGHT. 

         6    Q.   HE HAS NO EXPERIENCE IN THE NEWSPAPER BUSINESS? 

         7    A.   THAT'S RIGHT. 

         8               MR. HALLING:  I HAVE NOTHING FURTHER. 

         9               THE COURT:  ALL RIGHT.  MR. SHULMAN, ANY REDIRECT? 

        10               MR. SHULMAN:  YES, YOUR HONOR.  BRIEFLY. 

        11                         REDIRECT EXAMINATION 

        12    BY MR. SHULMAN: 

        13    Q.   JUST A FEW POINTS. 

        14               MR. INGRAM, I THINK YOU SAID THAT AFTER MR. REILLY 

        15    HAD ONE OF THESE MEETINGS WITH HEARST, YOU EXPRESSED THE 

        16    CONCERN THAT THE TERMS THAT HEARST WAS OFFERING, HEARST WAS 

        17    TRYING TO MAKE THE PAPER FAIL AFTER IT WAS SOLD? 

        18    A.   YES. 

        19    Q.   WHAT DID YOU MEAN BY THAT? 

        20    A.   THE -- THE CONDITIONS THAT THE PRINT ORDER BE 50,000 ON 

        21    THE DAILY AND THEY NOT HAVE A SUNDAY WOULDN'T ALLOW THE PAPER 

        22    TO PROSPER.  THERE IS -- TO SUMMARILY LOP OFF HALF OF THE -- OF 

        23    YOUR -- OF YOUR CUSTOMERS AND NOT PUT THEM IN THE PAPER AND 

        24    MAKE ONE AVAILABLE FOR SALE IS BAD ENOUGH, BUT TO HAVE ONE 

        25    SUNDAY PRODUCT WITH THE CHRONICLE OUT THERE WITH THE SUNDAY 



                                                                         1156
                                INGRAM - REDIRECT / SHULMAN 


         1    IS -- IS TANTAMOUNT TO ENDING THE PAPER VERY SWIFTLY. 

         2    Q.   AND THOSE WERE TERMS THAT HEARST HAD PROPOSED TO 

         3    MR. REILLY? 

         4    A.   YES.  THAT WAS MY UNDERSTANDING. 

         5    Q.   ALL RIGHT.  NOW, YOU WERE ASKED SOME QUESTIONS ABOUT 

         6    EXHIBIT -- EXHIBIT 1044.  AND THIS IS THE -- THE MEMO FOR 

         7    MR. INGRAM. 

         8               DO YOU REMEMBER THAT? 

         9               I'M SORRY, FROM MR. FLAHERTY TO YOU. 

        10    A.   THAT'S RIGHT. 

        11    Q.   THE ONE THAT YOU HADN'T SEEN BEFORE YOUR DEPOSITION. 

        12    A.   THAT'S RIGHT. 

        13    Q.   OKAY.  WHAT DOES THIS MEMO TELL YOU ABOUT WHETHER THE 

        14    FANGS HAVE A CHANCE WITH THE EXAMINER? 

        15    A.   THE -- WHAT I HAVE READ OF THIS MEMO -- AND I HAVEN'T READ 

        16    THE WHOLE MEMO.  BUT IT CERTAINLY DOESN'T SAY THAT THEY HAVE AN 

        17    OPPORTUNITY, EITHER. 

        18    Q.   NOW, LET ME ASK YOU FINALLY, YOU WERE ASKED BY COUNSEL IF 

        19    YOU KNEW WHAT THE FANGS' PLANS WERE FOR THE EXAMINER.  DO YOU 

        20    REMEMBER BEING ASKED THAT? 

        21    A.   YES. 

        22    Q.   OKAY.  I WANT TO READ TO YOU SOME TESTIMONY THAT MR. FANG 

        23    GAVE AT HIS DEPOSITION IN THIS CASE.  AND IT'S AT PAGE 27, LINE 

        24    12, TO LINE 18. 

        25               DO YOU WANT THAT, YOUR HONOR? 



                                                                         1157
                                INGRAM - REDIRECT / SHULMAN 


         1               THE COURT:  GO AHEAD AND READ IT. 

         2               MR. SHULMAN:  OKAY. 

         3               MR. HALLING:  27? 

         4               MR. SHULMAN:  YES, PAGE 27, LINE 12. 

         5                   "Q.  NO, I MEAN, HAVE YOU PREPARED A 

         6               BUSINESS PLAN, ANYTHING THAT YOU WOULD CALL A 

         7               BUSINESS PLAN, FOR THE EXAMINER? 

         8                   "A.  COULD YOU REPEAT THAT QUESTION AGAIN?   

         9                   "I SAY READ IT BACK, PLEASE. 

        10                   "THE WITNESS:  NO, SIR." 

        11    BY MR. SHULMAN: 

        12    Q.   NOW, WERE YOU AWARE THAT THE FANGS DON'T EVEN KNOW WHAT 

        13    THEIR PLANS ARE? 

        14    A.   I AM NOT AWARE OF IT. 

        15               MR. SHULMAN:  THANK YOU.  NO QUESTIONS. 

        16               THE COURT:  ALL RIGHT.  WHY DON'T WE TAKE A BREAK?  

        17    LET ME GIVE YOU A HEADS UP.  I HAVE A CONFERENCE CALL WHICH I 

        18    NEED TO TAKE AT 12:00 O'CLOCK NOON AND CAN LET YOU RECESS AT 

        19    THAT TIME.  I DON'T KNOW, UNFORTUNATELY, HOW LONG THAT IS GOING 

        20    TO TAKE.  I MAY HAVE AN INDICATION OF THAT AFTER I RETURN TO 

        21    THE BENCH FOLLOWING THIS BREAK.  AND, IF I DO HAVE AN IDEA OF 

        22    HOW LONG THAT WILL TAKE, I CAN GIVE YOU AN ESTIMATE OF HOW MUCH 

        23    TIME YOU WILL HAVE FREE.  BUT AT THE MOMENT I CANNOT GIVE YOU 

        24    THAT ESTIMATE.  BUT I WANT TO GIVE YOU A HEADS UP THAT WE ARE 

        25    GOING TO HAVE TO TAKE A BREAK AT 12:00 SO I CAN TAKE THAT CALL. 



                                                                         1158
                                INGRAM - REDIRECT / SHULMAN 


         1               SECONDLY, LET ME THROW INTO THE MIX OF QUESTIONS 

         2    THAT ARE ON MY MIND OF THE KIND THAT I STATED AT THE OUTSET.  

         3    AND, AGAIN, I AM NOT ASKING FOR YOUR ANSWER NOW.  I AM NOT EVEN 

         4    ASKING AT PRESENT FOR YOU TO TELL ME WHEN YOU ARE GOING TO BE 

         5    IN A POSITION TO ANSWER THESE QUESTIONS, BUT LET ME JUST THROW 

         6    THEM OUT FOR YOU TO BE MULLING OVER. 

         7               AND THAT IS, AS I WAS LOOKING FOR GUIDANCE WITH 

         8    REFERENCE TO THE DEPARTMENT'S INTERPRETATION OF THE NEWSPAPER 

         9    PRESERVATION ACT AND SECTION 7 AND SECTIONS 1 AND 2 OF THE 

        10    SHERMAN ACT IN CONNECTION WITH THIS BUSINESS, WHAT ANTITRUST 

        11    ANALYSIS HAS BEEN AFFORDED TO NEGATIVE PRICE CONTRACTS?  IS 

        12    THERE ANYTHING IN THE CASE LAW THAT DEALS WITH THE ALLOCATIVE 

        13    EFFECT OF A NEGATIVE PRICE CONTRACT?  ALL RIGHT? 

        14               SO PUT THAT IN THE HOPPER, AS WELL.  LET'S TAKE 15 

        15    MINUTES, UNTIL 10:30. 

        16               AND, MR. INGRAM, YOU MAY STEP DOWN AND YOU ARE 

        17    EXCUSED, SIR. 

        18               THE WITNESS:  THANK YOU. 

        19                     (RECESS TAKEN AT 10:20 A.M.) 

        20               (CONTINUED ON NEXT PAGE - NOTHING OMITTED.) 

        21    

        22    

        23    

        24    

        25    



                                                                         1159
                                INGRAM - REDIRECT / SHULMAN 


         1                  (PROCEEDINGS RESUMED AT 10:43 A.M.) 

         2               THE COURT:  VERY WELL.  THANK YOU FOR YOUR PATIENCE, 

         3    COUNSEL. 

         4               IN TERMS OF OUR SCHEDULE TODAY, WHAT WE CAN DO IS 

         5    BREAK AT 12:00 O'CLOCK SO I CAN TAKE THAT CONFERENCE CALL.  I 

         6    WILL COMMIT TO SPEND NO MORE THAN A HALF AN HOUR ON THAT 

         7    ENDEAVOR, BE BACK AND WE'LL RESUME AT THE CONCLUSION OF THAT 

         8    CALL AT 12:30 AND WE CAN GO UNTIL 2:00 O'CLOCK THIS AFTERNOON, 

         9    IF THAT'S ALL RIGHT WITH COUNSEL.  IS THAT ALL RIGHT WITH 

        10    PLAINTIFFS? 

        11               MR. SHULMAN:  YES, YOUR HONOR. 

        12               MR. HALLING:  THANK YOU, YOUR HONOR. 

        13               THE COURT:  ALL RIGHT, FINE. 

        14               YOUR NEXT WITNESS, MR. SHULMAN. 

        15               MR. SHULMAN:  MAY IT PLEASE THE COURT, THE PLAINTIFF 

        16    CALLS J. SCOTT SCHMIDT. 

        17               THE CLERK:  PLEASE RAISE YOUR RIGHT HAND TO BE 

        18    SWORN. 

        19                         JOHN SCOTT SCHMIDT,  

        20    CALLED AS A WITNESS FOR THE PLAINTIFF, HAVING BEEN DULY SWORN, 

        21    TESTIFIED AS FOLLOWS: 

        22               THE CLERK:  THANK YOU.  PLEASE BE SEATED.   

        23               PLEASE STATE YOUR FULL NAME AND SPELL YOUR LAST NAME 

        24    FOR THE RECORD. 

        25               THE WITNESS:  MY FULL NAME IS JOHN SCOTT SCHMIDT, 



                                                                         1160
                                SCHMIDT - DIRECT / SHULMAN 


         1    S-C-H-M-I-D-T. 

         2               THE COURT:  ARE YOU FROM CHICAGO? 

         3               THE WITNESS:  YES. 

         4               THE COURT:  GO AHEAD, MR. SHULMAN. 

         5               MR. SHULMAN:  MAY IT PLEASE THE COURT. 

         6                          DIRECT EXAMINATION 

         7    BY MR. SHULMAN: 

         8    Q.   MR. SCHMIDT, WOULD YOU STATE YOUR HOME ADDRESS, PLEASE. 

         9    A.   1242 BERKELEY STREET, SANTA MONICA, CALIFORNIA. 

        10    Q.   AND WHAT IS YOUR AGE, MR. SCHMIDT? 

        11    A.   63. 

        12    Q.   CAN YOU STATE, PLEASE, YOUR EDUCATIONAL BACKGROUND. 

        13    A.   I AM SIX HOURS SHORT OF A DEGREE. 

        14    Q.   OKAY.  AND WHERE AND IN WHAT? 

        15               THE COURT:  WHAT DEGREE? 

        16               THE WITNESS:  I STARTED MY EDUCATION AT BRADLEY 

        17    UNIVERSITY IN PEORIA, ILLINOIS, AND THEN CONTINUED MY EDUCATION 

        18    WITH -- AT NORTHWESTERN UNIVERSITY IN CHICAGO.  I MAJORED IN 

        19    POLITICAL SCIENCE AND JOURNALISM AT BOTH PLACES, AND PROBABLY 

        20    WOULD HAVE COMPLETED IF WE HAD NOT HAD CHILDREN AND I COULD 

        21    HAVE PASSED FRENCH. 

        22                              (LAUGHTER) 

        23    BY MR. SHULMAN: 

        24    Q.   ARE YOU EMPLOYED AT THIS TIME, MR. SCHMIDT? 

        25    A.   YES, I AM. 



                                                                         1161
                                SCHMIDT - DIRECT / SHULMAN 


         1    Q.   AND WHAT IS YOUR EMPLOYMENT? 

         2    A.   I AM GROUP PUBLISHER AT A COMPANY CALLED 101 

         3    COMMUNICATIONS IN CHATSWORTH, CALIFORNIA. 

         4    Q.   AND WHAT IS THE NATURE OF THE BUSINESS OF THAT COMPANY? 

         5    A.   THE COMPANY OWNS MAGAZINES, CONFERENCE COMPANIES AND 

         6    WEBSITES. 

         7    Q.   OKAY. 

         8               MR. SHULMAN:  MAY I APPROACH THE WITNESS, YOUR 

         9    HONOR? 

        10               THE COURT:  YES. 

        11    BY MR. SHULMAN: 

        12    Q.   MR. SCHMIDT, I AM GOING TO HAND YOU WHAT HAS BEEN MARKED 

        13    AS CHRONICLE EXHIBIT 349. 

        14               CHRONICLE EXHIBIT 349 IS ENTITLED "DECLARATION OF J. 

        15    SCOTT SCHMIDT," AND IT IS DATED APRIL 19, 2000.  THERE'S A 

        16    SIGNATURE ON THE LAST PAGE. 

        17               MR. SHULMAN:  DOES YOUR HONOR HAVE THIS? 

        18               THE COURT:  I'M SURE THAT I -- I HAVEN'T LOOKED, BUT 

        19    I'M SURE IT'S THERE.  IF IT'S NOT, I'LL INTERRUPT YOU. 

        20    BY MR. SHULMAN: 

        21    Q.   DO YOU RECOGNIZE THIS AS YOUR DECLARATION, SIR? 

        22    A.   YES, SIR. 

        23               MR. SHULMAN:  I DON'T BELIEVE THIS HAS BEEN RECEIVED 

        24    IN EVIDENCE YET, SO I WOULD OFFER EXHIBIT 349. 

        25               MR. LINDSTROM:  NO OBJECTION, YOUR HONOR. 



                                                                         1162
                                SCHMIDT - DIRECT / SHULMAN 


         1               THE COURT:  VERY WELL, 349 WILL BE ADMITTED. 

         2                             (PLAINTIFF'S EXHIBIT 349  

         3                              RECEIVED IN EVIDENCE) 

         4               MR. LINDSTROM:  DOES THE COURT HAVE A COPY? 

         5               THE COURT:  BY GOLLY, I DO NOT. 

         6               MR. LINDSTROM:  I HAVE AN EXTRA ONE. 

         7               THE COURT:  IT'S NOT IN THIS BINDER.  THANK YOU. 

         8    BY MR. SHULMAN: 

         9    Q.   OKAY.  THE DECLARATION READS IN PARAGRAPH 1: 

        10                   "I AM THE FORMER PRESIDENT AND CHIEF 

        11               EXECUTIVE OFFICER OF THE LOS ANGELES DAILY NEWS 

        12               AND TRIBUNE NEWSPAPERS WEST FROM 1975 TO 1983." 

        13               DO YOU SEE THAT? 

        14    A.   YES, SIR. 

        15    Q.   IS THAT CORRECT? 

        16    A.   YES, IT IS. 

        17    Q.   CAN YOU TELL US WHAT TRIBUNE NEWSPAPERS WEST IS? 

        18    A.   TRIBUNE NEWSPAPERS WEST CONSISTED OF THREE SEPARATE 

        19    NEWSPAPERS.  ONE WAS THE PALO ALTO TIMES TRIBUNE, THE LOS 

        20    ANGELES DAILY NEWS AND THE ESCONDIDO TIMES ADVOCATE. 

        21    Q.   AND AS PRESIDENT AND CHIEF EXECUTIVE OFFICER OF THE LOS 

        22    ANGELES DAILY NEWS AND TRIBUNE NEWSPAPERS WEST, WHAT WERE YOUR 

        23    DUTIES AND RESPONSIBILITIES? 

        24    A.   WELL, I WAS RESPONSIBLE FOR ALL THREE PROPERTIES.  THE 

        25    PALO ALTO NEWSPAPER AND THE ESCONDIDO NEWSPAPER HAD THEIR OWN 



                                                                         1163
                                SCHMIDT - DIRECT / SHULMAN 


         1    PUBLISHERS WHO REPORTED TO ME, AND I IN EFFECT WAS NOT ONLY 

         2    PRESIDENT OF THE TRIBUNE NEWSPAPERS WEST BUT I WAS ALSO 

         3    PRESIDENT AND PUBLISHER OF THE LOS ANGELES DAILY NEWS. 

         4    Q.   OKAY.  WHEN DID YOU FIRST GO INTO THE NEWSPAPER BUSINESS? 

         5    A.   WHEN I WAS ABOUT 15 YEARS OLD. 

         6    Q.   AND HAVE YOU BEEN IN THE NEWSPAPER BUSINESS SINCE THAT 

         7    TIME? 

         8    A.   YES, OR FORMS OF IT.  BUT I STARTED AS A SPORTS WRITER AND 

         9    ADVANCED THROUGH THE EDITORIAL DEPARTMENT OF THE NEWSPAPERS, 

        10    AND IN 1975 ACTUALLY BECAME A GENERAL EXECUTIVE OF A NEWSPAPER.   

        11    Q.   CAN YOU GIVE US A BRIEF OVERVIEW OF YOUR BACKGROUND IN 

        12    NEWSPAPERS BEFORE YOU BECAME PRESIDENT AND CEO OF THE LOS 

        13    ANGELES DAILY NEWS? 

        14    A.   I WORKED AT THE AFTERNOON NEWSPAPER IN CHICAGO.  AT THAT 

        15    TIME IT WAS OWNED BY THE CHICAGO TRIBUNE.  IT WAS CALLED 

        16    CHICAGO TODAY.  I HAVE BEEN A WRITER AND AN EDITOR THERE; AND 

        17    WHEN THE PAPER FOLDED, I WAS THE EDITOR OF THAT NEWSPAPER.  

        18    WHEN THE PAPER FOLDED IN SEPTEMBER, 1974, I MOVED OVER TO THE 

        19    CHICAGO TRIBUNE AS MANAGING EDITOR FOR FEATURES. 

        20               AFTER THAT, IN JULY OF 1975, I WAS ASKED TO MOVE TO 

        21    CALIFORNIA TO BE PRESIDENT OF WHAT WAS THEN KNOWN AS THE VALLEY 

        22    NEWS AND GREEN SHEET, WHICH WAS CONSIDERED THE WORLD'S LARGEST 

        23    SHOPPER.  IT WAS FOUR DAYS A WEEK.  WE USED TO HAVE A SAYING 

        24    THAT:  50,000 PEOPLE PAID A DOLLAR AND A HALF A MONTH FOR IT 

        25    AND 50,000 PEOPLE PAID A DOLLAR AND A HALF A MONTH TO THE 



                                                                         1164
                                SCHMIDT - DIRECT / SHULMAN 


         1    CARRIER TO NOT DELIVER IT. 

         2               BUT WE SUDDENLY -- YOU KNOW, IN THE NEXT EIGHT YEARS 

         3    WE CONVERTED IT FROM A SHOPPER INTO A SEVEN-DAY A WEEK DAILY 

         4    NEWSPAPER, WHICH IT IS TODAY. 

         5    Q.   PAID DAILY NEWSPAPER? 

         6    A.   PAID DAILY NEWSPAPER, YES. 

         7    Q.   AND YOU WERE IN CHARGE OF THAT EFFORT? 

         8    A.   YES. 

         9    Q.   OKAY.  AND WHAT WAS THE CIRCULATION OF THE PAPER AT THE 

        10    TIME YOU LEFT? 

        11    A.   ROUGHLY 145,000. 

        12    Q.   OKAY.  NOW, YOU SAY: 

        13                   "I ALSO SERVED AS PRESIDENT OF THOMSON 

        14               NEWSPAPERS WEST FROM 1992 TO 1995." 

        15               DO YOU SEE THAT? 

        16    A.   YES, SIR. 

        17    Q.   OKAY.  THERE'S A GAP FROM 1983 TO 1992 THAT IS NOT 

        18    ACCOUNTED FOR.  CAN YOU TELL US WHAT YOU WERE DOING IN THOSE 

        19    YEARS? 

        20    A.   I WAS TRANSFERRED BACK TO CHICAGO IN SEPTEMBER OF 1983 TO 

        21    BECOME VICE PRESIDENT OF NEWS AND INFORMATION FOR THE ENTIRE 

        22    TRIBUNE CORPORATION.  I STAYED THERE UNTIL AUGUST OF 1984.   

        23               MOVED BACK TO CALIFORNIA.  PURCHASED A PUBLICATION 

        24    CALLED CALIFORNIA FASHION PUBLICATIONS.  I OWNED THAT FOR ABOUT 

        25    TWO AND A HALF YEARS, SOLD IT.   



                                                                         1165
                                SCHMIDT - DIRECT / SHULMAN 


         1               DID SOME CONSULTING WORK, INCLUDING FOR VARIOUS 

         2    CLIENTS, INCLUDING THE ARCH DIOCESES OF LOS ANGELES, A COUPLE 

         3    OF MAGAZINES. 

         4               AND THEN I BOUGHT ANOTHER PUBLICATION CALLED 

         5    "YOUTH," A NATIONAL COLLEGE NEWSPAPER, AND RAN THAT FOR ANOTHER 

         6    FEW YEARS UNTIL A FRIEND OF MINE BECAME THE U.S. PRESIDENT OF 

         7    THOMSON NEWSPAPERS AND HE ASKED ME TO GO TO WORK FOR THOMSON, 

         8    WHICH I DID. 

         9    Q.   OKAY. 

        10               THE COURT:  NOW, THIS THOMSON IN YOUR DECLARATION IS 

        11    SPELLED T-H-O-M-P-S-O-N.  IS THIS THE THOMSON NEWSPAPERS FROM 

        12    CANADA? 

        13               THE WITNESS:  I'M SORRY, YOUR HONOR, IT'S 

        14    MISSPELLED.  IT SHOULD BE T-H-O-M-S-O-N. 

        15               THE COURT:  ALL RIGHT.  ANOTHER SCOTTISH SPELLING.  

        16    WE'VE HAD TWO OF THOSE IN THIS CASE. 

        17               MR. SHULMAN:  RIGHT. 

        18    Q.   TELL US WHAT THE -- DESCRIBE THE BUSINESS AND OPERATIONS 

        19    OF THOMSON NEWSPAPERS WEST, PLEASE. 

        20    A.   THOMSON NEWSPAPERS WEST OWNED THREE NEWSPAPERS IN THE SAN 

        21    GABRIEL VALLEY, EASTERN PART OF THE CITY OF LOS ANGELES.  ONE 

        22    WAS IN PASADENA.  ANOTHER WAS A PLACE CALLED WEST COVINA.  THE 

        23    THIRD ONE WAS IN WHITTIER.  WE OWNED, I BELIEVE, IF I REMEMBER 

        24    CORRECTLY, 12 WEEKLY NEWSPAPERS AS PART OF THIS UNIT. 

        25               IN ADDITION, THE COMPANY OWNED A NEWSPAPER IN 



                                                                         1166
                                SCHMIDT - DIRECT / SHULMAN 


         1    OXNARD, CALIFORNIA, ONE IN EUREKA, CALIFORNIA, AND ONE IN ST. 

         2    GEORGE, CALIFORNIA -- ST. GEORGE, UTAH, AND I WAS RESPONSIBLE 

         3    FOR ALL OF THOSE PUBLICATIONS. 

         4    Q.   NOW, YOU HAVE BEEN RETAINED BY MR. REILLY IN CONNECTION 

         5    WITH THIS LAWSUIT; IS THAT CORRECT? 

         6    A.   THAT'S CORRECT. 

         7    Q.   OKAY.  CAN YOU EXPLAIN THE CIRCUMSTANCES THAT LED TO YOUR 

         8    BEING RETAINED BY MR. REILLY? 

         9    A.   I RECEIVED A TELEPHONE CALL FROM AN OLD COLLEAGUE OF MINE 

        10    NAMED JOSEPH BARLETTA ASKING ME IF I WOULD BE INTERESTED IN 

        11    SERVING AS AN EXPERT WITNESS IN THIS CASE.  I INDICATED TO HIM 

        12    THAT MY TIME WAS LIMITED BECAUSE OF THE POSITION I'M IN, BUT 

        13    THAT I WOULD BE WILLING TO DO IT. 

        14    Q.   OKAY.  AND YOUR DECLARATION IS DATED APRIL 19, 2000.  

        15    APPROXIMATELY HOW LONG PRIOR TO THAT TIME WERE YOU RETAINED? 

        16    A.   I WAS -- I WAS RETAINED -- I WAS ASKED IF I WANTED TO 

        17    PARTICIPATE AT ABOUT THE SAME TIME AS MR. REILLY CALLED -- 

        18    BROUGHT A GROUP OF EXPERTS TOGETHER TO FORMULATE HIS PLANS TO 

        19    PURCHASE THE EXAMINER. 

        20               I WAS UNABLE TO DO THAT BECAUSE OF PROFESSIONAL 

        21    COMMITMENTS AT THAT TIME.  SO I KNEW ABOUT THAT, BUT I TOLD 

        22    MR. BARLETTA AT THAT TIME THAT WHEN THE TRIAL CAME, OR 

        23    WHENEVER, I WOULD BE WILLING TO -- I WOULD BE WILLING TO HELP. 

        24    Q.   OKAY.  WHAT HAVE YOU DONE SINCE YOU'VE BEEN RETAINED IN 

        25    YOUR EFFORTS TO ASSIST? 



                                                                         1167
                                SCHMIDT - DIRECT / SHULMAN 


         1    A.   I WAS CONTACTED THE WEEK PRIOR TO THE DATE OF MY 

         2    DECLARATION BY YOUR ASSOCIATE, MR. HILBERT, WHEN I WAS AT A 

         3    CONFERENCE IN CHICAGO AND INDICATED THAT HE WANTED ME TO COME 

         4    TO SAN FRANCISCO TO BE DEPOSED. 

         5               AT THAT TIME HE SENT ME A COUPLE OF DECLARATIONS 

         6    FROM OTHER PEOPLE WHO HAD BEEN DEPOSED ALREADY.  THE FOLLOWING 

         7    WEEK I CAME -- LET ME BACKTRACK A BIT. 

         8               I READ THOSE ON MY TRIP BACK FROM CHICAGO.  ON A 

         9    SUNDAY NIGHT AT HOME I SAT DOWN AND WROTE MY DECLARATION AND 

        10    FAXED IT UP TO HIM, AND LATER THAT WEEK CAME UP AND WAS 

        11    DEPOSED. 

        12    Q.   OKAY.  NOW, IN PARAGRAPHS -- I'LL SHOW YOU -- 2 AND 3 OF 

        13    YOUR DECLARATION ON THE SECOND PAGE YOU SET FORTH CERTAIN 

        14    INFORMATION THAT YOU SAY YOU WERE INFORMED OF OR YOU WERE AWARE 

        15    OF; CORRECT? 

        16    A.   CORRECT. 

        17    Q.   AND THAT'S INFORMATION THAT WAS GIVEN TO YOU AND THAT YOU 

        18    KNEW ABOUT? 

        19    A.   CORRECT. 

        20    Q.   OKAY.  I WANT TO -- BEFORE I ASK YOU ABOUT PARAGRAPH 4, I 

        21    WANT TO SKIP DOWN TO PARAGRAPH 5.  YOU SAY IN PARAGRAPH 5: 

        22                   "BASED ON MY EXPERIENCE, THE EXAMINER WILL 

        23               HAVE TO GROW BY 200,000 ADDITIONAL CIRCULATION 

        24               TO EXIST AS A COMPETITOR TO THE CHRONICLE AND 

        25               EARN ANY KIND OF ADVERTISING SUPPORT." 



                                                                         1168
                                SCHMIDT - DIRECT / SHULMAN 


         1               DO YOU SEE THAT? 

         2    A.   YES, SIR. 

         3    Q.   OKAY.  AND IS THAT YOUR OPINION? 

         4    A.   YES. 

         5    Q.   IT'S STILL YOUR OPINION? 

         6    A.   YES. 

         7    Q.   OKAY.  WHY DO YOU THINK THAT THE EXAMINER WILL HAVE TO 

         8    GROW BY 200,000 ADDITIONAL CIRCULATION TO EXIST AS A COMPETITOR 

         9    TO THE CHRONICLE AND EARN ANY KIND OF ADVERTISING SUPPORT? 

        10    A.   I BELIEVE THAT IT HAS TO GROW BY THAT NUMBER TO BE ABLE TO 

        11    GAIN ANY KIND OF NATIONAL LARGE RETAIL AND CLASSIFIED 

        12    ADVERTISING.  IT WILL PUT IT AT A CIRCULATION LEVEL WHERE IT IS 

        13    A WORTHY COMPETITOR, AS I'VE SAID IN THE DECLARATION.  I THINK 

        14    ANYTHING LESS THAN THAT THE ADVERTISING OPPORTUNITIES DIMINISH. 

        15    Q.   NOW, DOES THE LEVEL OF CIRCULATION THAT YOU BELIEVE WILL 

        16    BE REQUIRED, DOES THAT BEAR ANY RELATIONSHIP TO THE EDITORIAL 

        17    OR NEWS FUNCTIONS OF THE NEWSPAPER? 

        18    A.   WELL, THERE'S CERTAINLY A REQUIREMENT OF THE NEWSPAPER 

        19    WITH 300,000 CIRCULATION TO HAVE A NEWS STAFF OF A SIGNIFICANT 

        20    NUMBER TO BE ABLE TO DO ITS JOB PROPERLY. 

        21    Q.   ARE YOU FAMILIAR WITH THE STAFFING OF THE EXAMINER TODAY 

        22    GENERALLY, THE NEWS AND EDITORIAL STAFFING? 

        23    A.   GENERALLY. 

        24    Q.   OKAY.  AND IS IT YOUR UNDERSTANDING THAT THE EDITORIAL 

        25    SIDE OF THE PAPER EMPLOYS IN THE RANGE OF TWO TO 300 PEOPLE? 



                                                                         1169
                                SCHMIDT - DIRECT / SHULMAN 


         1    A.   IT'S MY UNDERSTANDING THAT IT'S POSSIBLY A LITTLE BIT MORE 

         2    THAN THAT. 

         3    Q.   OKAY. 

         4    A.   WE'RE TALKING ABOUT THE CHRONICLE? 

         5    Q.   NO, THE EXAMINER. 

         6    A.   OH, THE EXAMINER?  YES, SIR, THAT'S CORRECT, TWO TO 300 

         7    PEOPLE. 

         8    Q.   NOW, IS THAT -- IN YOUR EXPERIENCE, IS THAT TYPE OF 

         9    STAFFING COMMENSURATE WITH A PAPER THAT HAS A CIRCULATION OF A 

        10    HUNDRED THOUSAND? 

        11    A.   NO, SIR, IT IS NOT.  IT'S ONE MUCH LARGER THAN A PAPER 

        12    THAT WOULD HAVE A HUNDRED THOUSAND CIRCULATION. 

        13    Q.   WHAT IS THE BASIS FOR THAT OPINION? 

        14    A.   THE STANDARD RULE IN THE NEWSPAPER INDUSTRY, GIVE OR TAKE 

        15    A LITTLE BIT HERE, BUT IT'S ONE PER THOUSAND CIRCULATION.  MOST 

        16    NEWSPAPERS THAT I AM AWARE OF, IF THEY HAVE 700,000 

        17    CIRCULATION, THEY WILL HAVE IN THE VICINITY OF SIX TO 750 

        18    PEOPLE IN THE EDITORIAL DEPARTMENT.  SOME OF THIS HAS CHANGED 

        19    IN THE LAST FEW YEARS BECAUSE OF PAGINATION MOVING INTO 

        20    NEWSROOMS, ET CETERA, BUT IT IS STILL BASICALLY A HARD-AND-FAST 

        21    RULE. 

        22    Q.   SO WHAT IS YOUR UNDERSTANDING OF WHAT ACCOUNTS FOR THE 

        23    EXAMINER TODAY, WITH A CIRCULATION OF A HUNDRED THOUSAND, 

        24    EMPLOYING TWO TO 300 PEOPLE ON THE EDITORIAL SIDE? 

        25               MR. HALLING:  OBJECTION, LACK OF FOUNDATION. 



                                                                         1170
                                SCHMIDT - DIRECT / SHULMAN 


         1               THE COURT:  OVERRULED.  THE WITNESS IS TESTIFYING AS 

         2    AN OPINION WITNESS. 

         3               THE WITNESS:  WOULD YOU RESTATE THAT, PLEASE? 

         4    BY MR. SHULMAN: 

         5    Q.   YES.  IF THE RULE IN THE INDUSTRY IS ONE PERSON ON THE 

         6    EDITORIAL SIDE FOR EVERY THOUSAND OF CIRCULATION, WHAT IN YOUR 

         7    VIEW ACCOUNTS FOR THE ABILITY OF THE EXAMINER WITH A 

         8    CIRCULATION OF A HUNDRED THOUSAND TO EMPLOY TWO TO 300 PEOPLE? 

         9    A.   MY ONLY BELIEF WOULD BE THAT BECAUSE OF THE JOINT 

        10    OPERATING AGREEMENT, THEY HAVE THE FUNDS TO DO THIS TO PUT OUT 

        11    A COMPETITIVE NEWSPAPER. 

        12    Q.   WHAT DO YOU MEAN "A COMPETITIVE NEWSPAPER"? 

        13    A.   I BELIEVE IT'S A NEWSPAPER THAT COVERS ITS COMMUNITY, 

        14    COVERS -- COVERS THE ARTS, COVERS SPORTS, COVERS EVERYTHING 

        15    THAT IS NECESSARY. 

        16               YOU KNOW, ONE OF THE REASONS THAT THE EXAMINER MAY 

        17    HAVE THAT LARGE A STAFF IS, I BELIEVE, THEY PUT OUT THE SUNDAY 

        18    NEWSPAPER THEMSELVES.  SO THAT COULD BE ONE REASON FOR THE FACT 

        19    THAT THEY HAVE THAT, BUT IT IS A VERY LARGE STAFF FOR A 

        20    CIRCULATION OF 104,000. 

        21    Q.   OKAY.  WITHOUT THE JOA, DO YOU BELIEVE THAT A NEWSPAPER OF 

        22    A HUNDRED THOUSAND CAN SUSTAIN AN EDITORIAL STAFF LIKE THAT AND 

        23    PRODUCE A COMPARABLE NEWSPAPER? 

        24    A.   NO, SIR. 

        25    Q.   AND IS THAT ONE OF THE REASONS WHY YOU SAY THAT THE 



                                                                         1171
                                SCHMIDT - DIRECT / SHULMAN 


         1    EXAMINER WILL NEED TO GROW BY 200,000 ADDITIONAL CIRCULATION TO 

         2    EXIST AS A COMPETITOR TO THE CHRONICLE? 

         3               MR. HALLING:  OBJECTION, LEADING. 

         4               THE COURT:  WELL, IT WAS LEADING BUT I ASSUME 

         5    MR. SHULMAN IS USING THAT AS A PRELIMINARY.  I WON'T LET HIM 

         6    LEAD TOO MUCH. 

         7               THE WITNESS:  WOULD YOU RESTATE THE QUESTION? 

         8    BY MR. SHULMAN: 

         9    Q.   OKAY. 

        10               THE COURT:  THIS WILL GIVE YOU AN OPPORTUNITY TO -- 

        11               THE WITNESS:  MY ATTENTION SPAN IS A LITTLE SHORT 

        12    TODAY, I'M AFRAID. 

        13               THE COURT:  WELL, SO IT IS OF ALL OF US.   

        14               ALL RIGHT, GO AHEAD, MR. SHULMAN. 

        15               MR. SHULMAN:  OKAY. 

        16    Q.   DOES THE SIZE OF THE EDITORIAL STAFF HAVE ANYTHING TO DO 

        17    WITH YOUR BELIEF THAT THE EXAMINER WILL HAVE TO GROW BY 200,000 

        18    CIRCULATION TO EXIST AS A COMPETITOR TO THE CHRONICLE? 

        19    A.   MR. SHULMAN, I DON'T THINK I UNDERSTAND THE QUESTION. 

        20    Q.   OKAY.  LET ME -- 

        21               THE COURT:  THE QUESTION WASN'T LEADING ENOUGH 

        22    APPARENTLY. 

        23                              (LAUGHTER) 

        24               MR. SHULMAN:  RIGHT.  WELL, LET ME TRY TO FIND A 

        25    HAPPY MEDIUM. 



                                                                         1172
                                SCHMIDT - DIRECT / SHULMAN 


         1               MR. ALIOTO:  LET ME TRY, JUDGE. 

         2                              (LAUGHTER) 

         3    BY MR. SHULMAN: 

         4    Q.   IF THE EXAMINER IS TO CONTINUE TO PRODUCE AN EDITORIAL 

         5    PRODUCT SIMILAR TO WHAT IT'S PRODUCING NOW WITH AN EDITORIAL 

         6    STAFF SIMILAR TO WHAT IT HAS NOW, DO YOU BELIEVE THAT IT WILL 

         7    HAVE TO INCREASE ITS CIRCULATION BY 200,000? 

         8    A.   I BELIEVE THAT SIZE EDITORIAL STAFF IS ADEQUATE ENOUGH TO 

         9    GET IT STARTED TOWARDS INCREASING ITS CIRCULATION BY 200.  I 

        10    THINK IT WOULD PROBABLY REQUIRE MORE PEOPLE IF THEY DO IT -- 

        11    WERE INDEED ABLE TO INCREASE IT BY 200,000. 

        12    Q.   DO YOU BELIEVE THAT IF THE CHRONICLE -- IF THE EXAMINER 

        13    DOES NOT INCREASE BY 200,000, IT WILL BE ABLE TO MAINTAIN AN 

        14    EDITORIAL STAFF OF THAT SIZE? 

        15    A.   NO. 

        16               MR. HALLING:  OBJECTION, LEADING. 

        17               THE COURT:  OVERRULED. 

        18               THE WITNESS:  NO. 

        19    BY MR. SHULMAN: 

        20    Q.   NOW, YOU CONTINUE IN PARAGRAPH 5: 

        21                   "THAT LEVEL OF CIRCULATION WILL REQUIRE A 

        22               MINIMUM ANNUAL OPERATING BUDGET OF 125 TO 

        23               $150 MILLION AND A STAFF OF AT LEAST 700 TO 800 

        24               EMPLOYEES," END OF QUOTE. 

        25               DO YOU SEE THAT? 



                                                                         1173
                                SCHMIDT - DIRECT / SHULMAN 


         1    A.   YES, SIR. 

         2    Q.   AND THAT'S YOUR OPINION? 

         3    A.   YES. 

         4    Q.   OKAY.  NOW, THE STAFF OF AT LEAST 700 TO 800 EMPLOYEES, 

         5    DOES THAT INCLUDE ALL EMPLOYEES NOT JUST EDITORIAL? 

         6    A.   YES, IT DOES. 

         7    Q.   OKAY.  WHAT IS THE BASIS FOR YOUR OPINION THAT THE PAPER 

         8    WOULD -- THAT CIRCULATION WOULD HAVE A MINIMUM ANNUAL OPERATING 

         9    BUDGET OF 125 TO $150 MILLION? 

        10    A.   MY OPINION IS BASED ON THE OPERATING BUDGET OF THE LOS 

        11    ANGELES DAILY NEWS, WHICH I WAS ABLE TO REVIEW A COUPLE YEARS 

        12    AGO WHEN THE PAPER WAS SOLD.  IT HAD APPROXIMATELY 200,000 

        13    CIRCULATION AND HAD AN OPERATING BUDGET OF 100 -- I'M SORRY, IT 

        14    HAD AN OPERATING BUDGET OF 100 MILLION. 

        15    Q.   AND THEN YOU SAY, QUOTE: 

        16                   "I WOULD ESTIMATE THAT PRINTING AND 

        17               NEWSPRINT WILL CONSUME $45 MILLION ANNUALLY." 

        18               I'M GOING TO STOP THERE.  ON WHAT DO YOU BASE THAT? 

        19    A.   ON MY GENERAL EXPERIENCE AS TO WHAT PERCENTAGE IN AN 

        20    OVERALL OPERATING BUDGET GOES TO PRINTING AND NEWSPRINT, AND 

        21    THAT'S VERY FLEXIBLE BECAUSE OF THE CHANGES IN NEWSPRINT 

        22    PRICES. 

        23    Q.   THEN YOU SAY PAYROLL, $50 MILLION.  WHAT'S THE BASIS FOR 

        24    THAT? 

        25    A.   I JUST TOOK AN AVERAGE SALARY, WHAT I THOUGHT IT WAS IN 



                                                                         1174
                                SCHMIDT - DIRECT / SHULMAN 


         1    SAN FRANCISCO, AND MULTIPLIED IT BY THE SEVEN TO 800.  ROUND 

         2    FIGURING. 

         3    Q.   OKAY.  GENERAL AND ADMINISTRATIVE, $25 MILLION, WHAT IS 

         4    THE BASIS FOR THAT? 

         5    A.   SAME. 

         6    Q.   AND DELIVERY ANOTHER $20 MILLION. 

         7    A.   THAT'S CORRECT. 

         8    Q.   HOW DID YOU ARRIVE AT THAT? 

         9    A.   SAME.  SAME WAY. 

        10    Q.   OKAY.  NOW, YOU SAY:   

        11                   "THE EXAMINER TO BE VIABLE WILL HAVE TO 

        12               SPEND $20 MILLION ANNUALLY IN MARKETING, 

        13               PROMOTION AND CIRCULATION PROCUREMENT TO GROW 

        14               THE PRESENT CIRCULATION TO A POINT WHERE IT IS 

        15               COMPETITIVE," END OF QUOTE. 

        16               DO YOU SEE THAT? 

        17    A.   YES, SIR. 

        18    Q.   OKAY.  WHAT DO YOU MEAN BY "MARKETING, PROMOTION AND 

        19    CIRCULATION PROCUREMENT"? 

        20    A.   I MEAN TELEVISION, RADIO, BUS ADVERTISING OF THE NEW -- OF 

        21    THE NEW EXAMINER.  I MEAN WHATEVER PROMOTIONAL THINGS THEY 

        22    WOULD HAVE TO DO TO OBTAIN THE CIRCULATION AND THE PROCUREMENT 

        23    COSTS THAT GO INTO OBTAINING A HOME DELIVERY CIRCULATION, A 

        24    HOME DELIVERY COPY OR CUSTOMER. 

        25               AS YOU'LL PROBABLY NOTICE, IN MY DEPOSITION MY MATH 



                                                                         1175
                                SCHMIDT - DIRECT / SHULMAN 


         1    WAS OFF BY $10 MILLION AND I WANTED TO MAKE THE POINT AT THE 

         2    MOMENT.  AND WHEN I WAS ASKED WHERE I WOULD TAKE THE 

         3    $10 MILLION, I TOOK IT BACK AND DOWNGRADED THE AMOUNT OF MONEY 

         4    SPENT ON DELIVERY. 

         5               MY KNOWLEDGE OF THE SAN FRANCISCO MARKET IS NOT, I 

         6    GUESS, EXACT ENOUGH TO KNOW IF THE DRIVERS AND DELIVERY PEOPLE 

         7    IN CIRCULATION ARE STILL INDEPENDENT CONTRACTORS THE WAY THEY 

         8    USED TO BE OR IF THAT HAS BEEN CHANGED.   

         9               BUT I DO STAND BY THE 20-MILLION-DOLLAR MARKETING 

        10    FIGURE OR A PERIOD OF YEARS.  I THINK IT'S VERY HARD -- I THINK 

        11    IT'S VERY, VERY HARD TO CONVINCE PEOPLE IN MOST MAJOR MARKETS 

        12    IN THE COUNTRY -- ANYBODY THAT CAN READ, WILL GET SOLICITED 

        13    ONCE A YEAR OR MORE, ONCE A MONTH PROBABLY, BY A NEWSPAPER, AND 

        14    THEY WILL TAKE A NEWSPAPER ONCE FROM THESE PEOPLE. 

        15               EVERY MAJOR PAPER THAT I KNOW REPLACES 100 PERCENT 

        16    OF ITS HOME DELIVERY CIRCULATION EVERY YEAR.  SO THERE'S 

        17    ENORMOUS COSTS IN BEING ABLE TO MAINTAIN THE CIRCULATION, AND 

        18    EVEN GREATER COSTS IN GROWING IT. 

        19    Q.   OKAY.  LET ME -- I WANT TO GO BACK NOW TO PARAGRAPH 4.  

        20    PARAGRAPH 4, WHICH COMES AFTER YOU'VE RECITED THE INFORMATION 

        21    THAT YOU'RE AWARE OF ABOUT THE HEARST TRANSACTION WITH THE 

        22    FANGS SAYS, QUOTE: 

        23                   "BASED UPON THOSE FACTS AND MY EXPERIENCE IN 

        24               THE INDUSTRY, THE PRESENT SUBSIDY BY HEARST WILL 

        25               NOT UNDER ANY CIRCUMSTANCES BE ABLE TO SUPPORT 



                                                                         1176
                                SCHMIDT - DIRECT / SHULMAN 


         1               THE PROBABILITY OR EVEN THE POSSIBILITY OF A 

         2               VIABLE PAPER THAT WOULD BE A WORTHY COMPETITOR 

         3               TO THE CHRONICLE," END OF QUOTE. 

         4               WHAT DO YOU MEAN BY "A WORTHY COMPETITOR"? 

         5    A.   IF YOU'RE IN A COMPETITIVE MARKET, YOU HAVE TO GIVE PEOPLE 

         6    A CHOICE AS TO WHAT KIND OF COMPLETE METROPOLITAN NEWSPAPER YOU 

         7    WANT TO PURCHASE. 

         8               I BELIEVE A WORTHY COMPETITOR IS ONE THAT WHEN 

         9    SOMEONE WANTS TO MAKE A CHOICE AS TO THE NEWSPAPER THEY WANT, 

        10    THERE ARE SPECIFIC THINGS THEY'RE LOOKING FOR IN THEIR 

        11    NEWSPAPER.  THEY'RE LOOKING FOR COMPLETENESS.  THEY'RE LOOKING 

        12    FOR SPORTS COVERAGE.  THEY'RE LOOKING FOR BUSINESS COVERAGE.  

        13    THEY'RE LOOKING FOR ALL OF THE THINGS THAT DESIGNATE A 

        14    METROPOLITAN NEWSPAPER. 

        15    Q.   OKAY.  AND DO YOU BELIEVE THAT THAT CHOICE EXISTS TODAY IN 

        16    SAN FRANCISCO? 

        17    A.   YES, I DO BELIEVE IT EXISTS TODAY BECAUSE THE EXAMINER IS 

        18    A FINE EDITORIAL PRODUCT. 

        19    Q.   OKAY.  NOW, YOU SAY -- YOUR OPINION IS THAT THE PRESENT 

        20    SUBSIDY BY HEARST WILL NOT UNDER ANY CIRCUMSTANCES BE ABLE TO 

        21    SUPPORT THE PROBABILITY OR EVEN THE POSSIBILITY OF A VIABLE 

        22    PAPER THAT WOULD BE A WORTHY COMPETITOR TO THE CHRONICLE.  THEN 

        23    YOU CONTINUE:   

        24                   "I BELIEVE A SUBSIDY OF AT LEAST $50 MILLION 

        25               ANNUALLY FOR THREE TO FIVE YEARS WILL BE 



                                                                         1177
                                 SCHMIDT - CROSS / HOCKETT 


         1               NECESSARY TO OPERATE THE EXAMINER."   

         2               AND THEN, "IF IT IS" -- YOU'VE HANDWRITTEN IN AT THE 

         3    BOTTOM.  IS THAT YOUR HANDWRITING? 

         4    A.   YES, IT IS. 

         5    Q.   "IF IT IS TO BE A WORTHY COMPETITOR TO THE CHRONICLE."  

         6    THAT'S YOUR OPINION? 

         7    A.   YES. 

         8    Q.   AND WHAT IS THE BASIS FOR THAT? 

         9    A.   MY EXPERIENCE. 

        10    Q.   HAVE YOU TESTIFIED ABOUT THAT HERE? 

        11    A.   YES. 

        12               MR. SHULMAN:  THANK YOU.  I HAVE NO FURTHER 

        13    QUESTIONS. 

        14               THE COURT:  VERY WELL.  WHO IS TAKING THIS WITNESS 

        15    ON CROSS?  MR. HOCKETT, YOU MAY PROCEED. 

        16                           CROSS-EXAMINATION 

        17    BY MR. HOCKETT: 

        18    Q.   GOOD MORNING, MR. SCHMIDT. 

        19    A.   GOOD MORNING, SIR. 

        20    Q.   MY NAME IS CHRISTOPHER HOCKETT AND I REPRESENT EXIN LLC. 

        21               YOUR ESTIMATES THAT ARE IN YOUR DECLARATION THAT WE 

        22    JUST SAW, CHRONICLE EXHIBIT 349, ARE BASED ON AN ASSUMPTION 

        23    THAT YOU NEED TO TRIPLE THE CURRENT CIRCULATION OF THE EXAMINER 

        24    FROM A HUNDRED THOUSAND OR SO TO 300,000; CORRECT? 

        25    A.   YES, SIR. 



                                                                         1178
                                 SCHMIDT - CROSS / HOCKETT 


         1    Q.   AT A COST, I THINK YOU'VE TESTIFIED, OF 125 TO 

         2    $150 MILLION PER YEAR? 

         3    A.   YES, SIR. 

         4    Q.   NOW, YOU WERE RETAINED TO ASSIST MR. REILLY IN CONNECTION 

         5    WITH THIS LITIGATION; CORRECT? 

         6    A.   THAT'S CORRECT. 

         7    Q.   YOU DID NOT SERVE ON THE TEAM OF ADVISORS WHO WERE 

         8    ASSEMBLED TO CONSULT WITH MR. REILLY IN CONNECTION WITH HIS 

         9    POTENTIAL BID FOR THE EXAMINER; CORRECT? 

        10    A.   I WAS NOT ON THAT TEAM. 

        11    Q.   MR. WEAVER IS A COLLEAGUE OF YOURS AT 101 COMMUNICATIONS? 

        12    A.   YES. 

        13    Q.   AND MR. WEAVER WAS SUCH AN ADVISOR TO MR. REILLY IN 

        14    CONNECTION WITH HIS POTENTIAL PURCHASE OF THE EXAMINER? 

        15    A.   YES. 

        16    Q.   AND YOU SPOKE WITH HIM ABOUT YOUR PRESENT WORK FOR 

        17    MR. REILLY; HAVE YOU NOT? 

        18    A.   YES, I HAVE. 

        19    Q.   AND MR. WEAVER'S NUMBERS THAT HE DEVELOPED FOR MR. REILLY 

        20    IN CONNECTION WITH MR. REILLY'S POSSIBLE PURCHASE OF THE 

        21    EXAMINER AND HIS POSSIBLE OPERATION OF THE EXAMINER WERE BASED 

        22    ON A MUCH SMALLER CIRCULATION NEWSPAPER THAN WHAT YOU TALK 

        23    ABOUT IN YOUR DECLARATION; IS THAT CORRECT, SIR? 

        24    A.   THAT'S CORRECT. 

        25    Q.   AND MR. WEAVER TOLD YOU, DID HE NOT, THAT HIS AND 



                                                                         1179
                                 SCHMIDT - CROSS / HOCKETT 


         1    MR. OSBORN'S WORK WAS DONE IN CONNECTION WITH MR. REILLY'S 

         2    POTENTIAL PURCHASE AND DID NOT CONCERN WHAT YOU WERE HIRED TO 

         3    TALK ABOUT; CORRECT? 

         4    A.   THAT'S CORRECT.   

         5    Q.   NOW, YOU HAVE NO INFORMATION, OTHER THAN NEWS STORIES, 

         6    ABOUT WHAT THE FANG FAMILY'S PLANS ARE OR INTENTIONS ARE FOR 

         7    OPERATING THE EXAMINER; CORRECT? 

         8    A.   I HAVE NO INFORMATION. 

         9    Q.   AND YOU DON'T KNOW WHETHER, FOR EXAMPLE, EXIN INTENDS TO 

        10    SELL ADVERTISING AS A PACKAGE WITH THE SAN FRANCISCO 

        11    INDEPENDENT; DO YOU? 

        12    A.   I DO NOT KNOW THAT, SIR. 

        13    Q.   BUT YOU DO BELIEVE THAT THE SAN FRANCISCO INDEPENDENT, 

        14    AMONG OTHER NEWSPAPERS, CURRENTLY COMPETES WITH THE EXAMINER 

        15    FOR ADVERTISING; CORRECT? 

        16    A.   I DON'T KNOW THAT, SIR.  I HAVE NEVER SEEN THE SAN 

        17    FRANCISCO INDEPENDENT. 

        18    Q.   LET ME SHOW YOU YOUR DEPOSITION, SIR.  PLEASE TURN TO PAGE 

        19    101. 

        20               MR. LINDSTROM:  IF IT PLEASE THE COURT, I HAVE THE 

        21    ORIGINAL OF THE TRANSCRIPT. 

        22               MR. HOCKETT:  THANK YOU, YOUR HONOR.  WE'RE PASSING 

        23    UP THE ORIGINAL. 

        24               THE COURT:  PAGE 101? 

        25               MR. HOCKETT:  PAGE 101 AT THE VERY BOTTOM, LINE 25, 



                                                                         1180
                                 SCHMIDT - CROSS / HOCKETT 


         1    AND I PROPOSE TO READ THROUGH LINE 5 OF PAGE 102.  THE QUESTION 

         2    IS ASKED: 

         3                   "Q.  OKAY.  SO WHEN YOU SAID EARLIER THAT 

         4               SAN FRANCISCO IS A HIGHLY-COMPETITIVE MARKET 

         5               WITH RESPECT TO ADVERTISERS, CAN YOU IDENTIFY 

         6               WHO ARE THE EXAMINER'S COMPETITORS?   

         7                   "ANSWER" -- 

         8               THE COURT:  I DON'T THINK THIS IS IMPEACHING OF THE 

         9    WITNESS' TESTIMONY. 

        10    BY MR. HOCKETT: 

        11    Q.   LET ME ASK YOU THE QUESTION AGAIN.  DO YOU BELIEVE THAT 

        12    THE SAN FRANCISCO INDEPENDENT NEWSPAPER, AMONG OTHERS, COMPETES 

        13    WITH THE EXAMINER FOR ADVERTISERS? 

        14    A.   YES. 

        15    Q.   THANK YOU. 

        16               NOW, YOUR WORK ON THIS CASE, I WANT TO TALK ABOUT 

        17    THAT.  YOU EXECUTED THE DECLARATION ON THE 19TH OF APRIL, THE 

        18    DECLARATION THAT HAS BEEN MARKED AND RECEIVED INTO EVIDENCE AS 

        19    CHRONICLE 349. 

        20    A.   CORRECT. 

        21    Q.   AND TO PREPARE YOURSELF TO GIVE THE OPINIONS IN THAT 

        22    DECLARATION, YOU REVIEWED THE DECLARATIONS OF MR. OSBORN, 

        23    MR. FLOOD AND MR. WEAVER; CORRECT? 

        24    A.   CORRECT. 

        25    Q.   AND YOU SPENT 50 MINUTES OR SO DOING THAT; CORRECT? 



                                                                         1181
                                 SCHMIDT - CROSS / HOCKETT 


         1    A.   CORRECT. 

         2    Q.   AND YOU REVIEWED SOME HANDWRITTEN NOTES TAKEN BY 

         3    MR. OSBORN; CORRECT? 

         4    A.   CORRECT. 

         5    Q.   AND YOU SPENT NO MORE THAN 15 MINUTES DOING THAT; CORRECT? 

         6    A.   CORRECT. 

         7    Q.   AND THAT'S IT, RIGHT, BEFORE YOU BEGAN DRAFTING YOUR 

         8    DECLARATION? 

         9    A.   THAT'S CORRECT. 

        10    Q.   SO ALL TOLD YOU SPENT ABOUT A HALF HOUR ON THIS MATTER 

        11    BEFORE YOU STARTED TO WRITE YOUR DECLARATION? 

        12    A.   CORRECT. 

        13    Q.   NOW, YOU SAY, AND I'M TURNING TO PAGE 2, TO EXIST AS A 

        14    COMPETITOR TO CHRONICLE AND EARN ANY KIND OF ADVERTISING 

        15    SUPPORT THAT THE EXAMINER WOULD HAVE TO ADD 200,000 IN 

        16    CIRCULATION; CORRECT?   

        17    A.   CORRECT. 

        18    Q.   AND ARE YOU AWARE THAT THE EXAMINER'S DAILY CIRCULATION 

        19    HAS NOT BEEN AS HIGH AS 300,000 SINCE 1964? 

        20    A.   I'M AWARE THAT IT HAS NOT BEEN HIGH FOR MANY YEARS. 

        21    Q.   ALL OF YOUR EXPENSE NUMBERS ASSUME THAT TRIPLING THE 

        22    EXAMINER'S CURRENT CIRCULATION IS A PREREQUISITE FOR THE 

        23    EXAMINER TO COMPETE WITH THE CHRONICLE; CORRECT? 

        24    A.   MY EXPENSE NUMBERS ARE BASED ON THE EXAMINER COMPETING 

        25    WITH THE CHRONICLE I BELIEVE, AS I PUT IT, AS A WORTHY 



                                                                         1182
                                 SCHMIDT - CROSS / HOCKETT 


         1    COMPETITOR. 

         2    Q.   AND YOU LIST VARIOUS CATEGORIES OF EXPENSE IN YOUR 

         3    DECLARATION IN PARAGRAPH 5 AND YOU WENT OVER THOSE. 

         4    A.   YES. 

         5    Q.   45 MILLION OF PRINTING AND NEWSPRINT, 50 MILLION IN 

         6    PAYROLL, 25 MILLION IN GENERAL AND ADMINISTRATIVE, AND DELIVERY 

         7    ANOTHER 20, AND THEN ANOTHER 20 IN CIRCULATION PROCUREMENT; 

         8    CORRECT? 

         9    A.   CORRECT. 

        10    Q.   AND AT YOUR DEPOSITION YOU REALIZED YOU'D MADE A MATH 

        11    ERROR IN THAT THOSE NUMBERS ADD UP TO $160 MILLION, AND TO 

        12    ADDRESS THAT POINT YOU SIMPLY CUT THE DELIVERY BUDGET FROM 20 

        13    TO 10 MILLION; CORRECT? 

        14    A.   CORRECT. 

        15    Q.   NOW, I WANT TO FOCUS ON THE 20 MILLION-DOLLAR SUM THAT YOU 

        16    SAY IS NECESSARY FOR THE NEW EXAMINER TO SPEND ANNUALLY IN 

        17    MARKETING AND CIRCULATION PROCUREMENT. 

        18               MR. HOCKETT:  MAY I APPROACH THE EASEL, YOUR HONOR? 

        19               THE COURT:  YES, YOU MAY. 

        20                        (PAUSE IN PROCEEDINGS.) 

        21    BY MR. HOCKETT: 

        22    Q.   NOW, THIS 20 MILLION-DOLLAR NUMBER, THIS WAS SOMETHING 

        23    THAT YOU PARTICULARLY WANTED TO DISCUSS WITH MR. WEAVER, 

        24    CORRECT, BEFORE YOU EXECUTED YOUR DECLARATION? 

        25    A.   I WANTED TO DISCUSS ALL THE NUMBERS THAT I HAD PUT DOWN 



                                                                         1183
                                 SCHMIDT - CROSS / HOCKETT 


         1    WITH MR. WEAVER. 

         2    Q.   AND THIS IS ONE OF THE ONES THAT YOU WANTED TO DISCUSS 

         3    WITH HIM; CORRECT? 

         4    A.   CORRECT. 

         5    Q.   AND YOU DID DISCUSS IT WITH MR. WEAVER; CORRECT? 

         6    A.   YES, I DID. 

         7    Q.   AND HE TOLD YOU THAT THAT 20 MILLION-DOLLAR NUMBER THAT 

         8    YOU HAD COME UP WITH WAS, IN HIS JUDGMENT, A REASONABLE NUMBER; 

         9    CORRECT? 

        10    A.   HE SAID MY NUMBERS WERE REASONABLE. 

        11    Q.   AND THIS WAS AN EXPENSE ITEM THAT YOU THOUGHT WAS 

        12    PARTICULARLY IMPORTANT; DID YOU NOT? 

        13    A.   YES, I DID. 

        14    Q.   BECAUSE OF THE NEED THAT YOU SAW TO TRIPLE THE EXAMINER'S 

        15    CIRCULATION? 

        16    A.   YES, SIR. 

        17    Q.   AND YOU WANTED TO MAKE SURE YOU HAD GOTTEN YOUR ESTIMATE 

        18    RIGHT; CORRECT? 

        19    A.   YES. 

        20    Q.   YOU WANTED TO BE CAREFUL? 

        21    A.   YES. 

        22    Q.   AND YOU TESTIFIED HERE TODAY THAT YOU STAND BEHIND THIS 

        23    20 MILLION-DOLLAR NUMBER? 

        24    A.   YES. 

        25               MR. HOCKETT:  MAY I APPROACH THE EASEL, YOUR HONOR? 



                                                                         1184
                                 SCHMIDT - CROSS / HOCKETT 


         1               THE COURT:  YES.   

         2    BY MR. HOCKETT: 

         3    Q.   NOW I BELIEVE AT YOUR DEPOSITION YOU TESTIFIED THAT YOU 

         4    ARRIVED AT THIS NUMBER BY FIGURING THAT IT WOULD COST AN 

         5    AVERAGE OF $20 PER EACH NEW SUBSCRIPTION PROCURED FOR HOME 

         6    DELIVERY; CORRECT?  

         7    A.   THAT'S CORRECT. 

         8    Q.   LET'S PUT THAT -- THAT'S CALLED A START IN THE NEWSPAPER 

         9    BUSINESS? 

        10    A.   YOU GOT IT. 

        11    Q.   $20 PER START. 

        12               AND YOU SAID THAT YOU FIGURED YOU WOULD NEED A 

        13    HUNDRED THOUSAND NEW HOME DELIVERY SUBSCRIBERS PER YEAR; 

        14    CORRECT? 

        15    A.   TO STAY EVEN, YES. 

        16    Q.   TO STAY EVEN; CORRECT? 

        17    A.   YES. 

        18    Q.   WE'LL CALL THOSE A HUNDRED THOUSAND STARTS; CORRECT? 

        19    A.   CORRECT. 

        20    Q.   AND THEN YOU MULTIPLIED THOSE TWO NUMBERS TOGETHER AND 

        21    WHAT DID YOU GET? 

        22    A.   WHAT IS IT, $2 MILLION? 

        23    Q.   WHAT DID YOU GET? 

        24    A.   WHEN I MULTIPLIED THEM? 

        25    Q.   YES. 



                                                                         1185
                                 SCHMIDT - CROSS / HOCKETT 


         1    A.   SIR, I DON'T REMEMBER AT THE MOMENT. 

         2    Q.   THAT'S YOUR 20 MILLION-DOLLAR FIGURE; ISN'T IT? 

         3    A.   NO, NO, NO.  THAT IS NOT MY 20 MILLION-DOLLAR FIGURE 

         4    BECAUSE YOU'RE NOT INCLUDING MONEY YOU SPEND ON RADIO AND 

         5    TELEVISION AND ALL THE REST OF THE THINGS THAT GO INTO A 

         6    PROMOTION PROGRAM. 

         7    Q.   SIR, AT YOUR DEPOSITION DID YOU NOT TESTIFY THAT YOU 

         8    MULTIPLIED $20 PER START TIMES A HUNDRED THOUSAND STARTS TO 

         9    YIELD THE NUMBER $20 MILLION? 

        10    A.   NO, SIR. 

        11    Q.   WOULD YOU PLEASE TURN TO PAGE 52 AND 53 OF YOUR 

        12    DEPOSITION? 

        13    A.   (WITNESS EXAMINES DOCUMENT.) 

        14    Q.   AND I'M GOING TO READ FROM LINE 20 OF PAGE 52 TO LINE 4 OF 

        15    PAGE 53: 

        16                   "Q.  AND WOULD YOU WALK ME THROUGH THAT 

        17               CALCULATION? 

        18                   "A.  WELL, TO GET TO 200,000 I FIGURED 

        19               50 PERCENT OF IT WOULD BE SINGLE COPY AND 

        20               50 PERCENT OF IT WOULD BE HOME DELIVERY, AND I 

        21               USED THE $20 A START ONLY FOR THE HOME DELIVERY 

        22               ASPECT OF IT. 

        23                   "Q.  ALL RIGHT.  SO YOU WOULD MULTIPLY $20 

        24               PER START TIMES THE 100,000 NEW SUBSCRIBERS FOR 

        25               HOME DELIVERY TO YIELD $20 MILLION? 



                                                                         1186
                                SCHMIDT - CROSS / LINDSTROM 


         1                   "A.  THAT'S RIGHT." 

         2               WERE YOU ASKED THOSE QUESTIONS AND DID YOU GIVE 

         3    THOSE ANSWERS? 

         4    A.   YES, SIR. 

         5    Q.   AND $20 TIMES 100,000 DOES NOT EQUAL 20 MILLION; DOES IT, 

         6    SIR? 

         7    A.   CORRECT. 

         8    Q.   IT EQUALS 2 MILLION; DOESN'T IT? 

         9    A.   CORRECT. 

        10    Q.   SO WHAT WE HAVE IS ANOTHER MATH ERROR; ISN'T IT, SIR? 

        11    A.   CORRECT. 

        12               MR. HOCKETT:  I HAVE NO FURTHER QUESTIONS. 

        13               THE COURT:  VERY WELL.  ANY OTHER QUESTIONS OF THIS 

        14    WITNESS?  MR. LINDSTROM? 

        15               MR. LINDSTROM:  THANK YOU, YOUR HONOR. 

        16                           CROSS-EXAMINATION 

        17    BY MR. LINDSTROM: 

        18    Q.   GOOD MORNING, MR. SCHMIDT. 

        19    A.   GOOD MORNING. 

        20    Q.   NOW, WE'VE HEARD FROM A NUMBER OF NEWSPAPER INDUSTRY 

        21    CONSULTANTS DURING THE COURSE OF THIS TRIAL, AND SOME OF THOSE 

        22    INDIVIDUALS HAVE WORKED FOR YOU; HAVE THEY NOT? 

        23    A.   TWO OF THEM HAVE, YES. 

        24    Q.   WELL, FOR EXAMPLE, MR. WEAVER WORKED FOR YOU AS A CFO; 

        25    ISN'T THAT RIGHT? 



                                                                         1187
                                SCHMIDT - CROSS / LINDSTROM 


         1    A.   CORRECT. 

         2    Q.   AND WHO WAS THE OTHER? 

         3    A.   MR. OSBORN. 

         4    Q.   THE GREAT SCOT?  THE OTHER SCOTTISH -- 

         5               THE COURT:  THAT'S AN INSIDE JOKE. 

         6               THE WITNESS:  OKAY.  YES, MR. OSBORN DID WORK FOR 

         7    ME, YES. 

         8    BY MR. LINDSTROM: 

         9    Q.   YOU HAVE TO HAVE BEEN HERE FOR THE LONG HAUL. 

        10               AND MR. OSBORN, HIS EXPERTISE IS IN WHAT AREA? 

        11    A.   CIRCULATION. 

        12    Q.   AND WHAT YOU BRING TO THE MIX IS THE PERSPECTIVE THAT A 

        13    CEO OR A PUBLISHER HAS SITTING ON TOP OF ALL THESE DIFFERENT 

        14    DISCIPLINES; ISN'T THAT FAIR TO SAY? 

        15    A.   THAT'S FAIR, YES. 

        16    Q.   AND BASED ON YOUR BACKGROUND, TRAINING AND EXPERIENCE IN 

        17    THIS INDUSTRY SINCE YOU WERE 15 YEARS OLD, IT'S YOUR OPINION 

        18    THAT THE CURRENT EXAMINER WOULD LOSE MONEY IF OPERATED OUTSIDE 

        19    THE JOA; ISN'T THAT RIGHT? 

        20    A.   YES, SIR. 

        21    Q.   IN FACT, I THINK YOU TOLD ME IT WOULD LOSE LOTS OF MONEY; 

        22    ISN'T THAT RIGHT? 

        23    A.   YES, SIR. 

        24    Q.   AND IT'S YOUR BEST ESTIMATE THE AMOUNT OF MONEY TODAY'S 

        25    EXAMINER WOULD LOSE, IF OPERATED OUTSIDE THE JOA, IS 



                                                                         1188
                                SCHMIDT - CROSS / LINDSTROM 


         1    $75 MILLION; ISN'T THAT TRUE, SIR? 

         2    A.   THAT WAS AN ESTIMATE, MY ESTIMATE, YES. 

         3    Q.   NOW, IN YOUR MIND THE EXAMINER OPERATES IN A 

         4    HIGHLY-COMPETITIVE MARKETPLACE; IS THAT NOT RIGHT? 

         5    A.   YES, SIR. 

         6    Q.   WHAT IS THAT MARKET IN YOUR JUDGMENT? 

         7    A.   IT IS THE CITY AND COUNTY OF SAN FRANCISCO, THE 

         8    NORTHERN -- THE NORTHERN END OF SAN MATEO COUNTY, MARIN COUNTY 

         9    AND THE EAST BAY. 

        10    Q.   IN YOUR JUDGMENT, THE MARKET DOESN'T STOP WITH THE 

        11    BOUNDARIES OF THE CITY AND COUNTY OF SAN FRANCISCO; DOES IT? 

        12    A.   IT DOES NOT. 

        13    Q.   NOW, IN ORDER FOR THE EXAMINER TO BE A WORTHY COMPETITOR 

        14    OF THE CHRONICLE IN THIS HIGHLY-COMPETITIVE MARKET, IT'S YOUR 

        15    VIEW THAT IT'S GOING TO HAVE TO HAVE CIRCULATION OF 300,000 OR 

        16    GREATER; ISN'T THAT RIGHT? 

        17    A.   YES, SIR. 

        18    Q.   AND YOU'RE AWARE, AREN'T YOU, THAT AT PRESENT THE EXAMINER 

        19    ONLY HAS CIRCULATION OF AROUND 100,000? 

        20    A.   YES, SIR. 

        21    Q.   AND IT IS YOUR PROFESSIONAL JUDGMENT THAT FOLLOWING THE 

        22    EXPIRATION OF THE JOA, IF THE EXAMINER DID NOT INCREASE ITS 

        23    CIRCULATION BY NEARLY 200,000, IT WAS DOOMED TO FAILURE; ISN'T 

        24    THAT RIGHT? 

        25    A.   YES, SIR. 



                                                                         1189
                                SCHMIDT - CROSS / LINDSTROM 


         1    Q.   AND THAT WOULD BE TRUE NO MATTER WHO RAN THE EXAMINER; 

         2    ISN'T THAT RIGHT? 

         3    A.   YES, SIR. 

         4    Q.   WHETHER IT BE REILLY OR THE FANGS OR HEARST ITSELF; ISN'T 

         5    THAT TRUE? 

         6    A.   YES, SIR. 

         7    Q.   AND IN ORDER TO MAINTAIN THAT THRESHOLD LEVEL OF 300,000 

         8    CIRCULATION, IN YOUR JUDGMENT IT'S GOING TO REQUIRE A TOTAL 

         9    OPERATING BUDGET OF 125 TO 150 MILLION; ISN'T THAT RIGHT? 

        10    A.   YES, SIR. 

        11    Q.   AND I THINK YOU TOLD ME IN YOUR DEPOSITION THAT YOU THINK 

        12    IT WOULD PROBABLY BE AT THE HIGHER END OF THAT RANGE; ISN'T 

        13    THAT RIGHT? 

        14    A.   I DON'T REMEMBER SAYING THAT, BUT IF YOU RECALL IT.  I 

        15    DON'T REMEMBER. 

        16    Q.   WELL, AS YOU SIT HERE TODAY, YOU THINK $150 MILLION TO PUT 

        17    OUT A WORTHY COMPETITOR OF THE CHRONICLE IS ABOUT RIGHT? 

        18    A.   I THINK THAT'S A REASONABLE FIGURE. 

        19    Q.   AND WHAT YOU HAVE IN MIND AS A WORTHY COMPETITOR IS A 

        20    METROPOLITAN DAILY NEWSPAPER; RIGHT? 

        21    A.   YES, SIR. 

        22    Q.   WITH THE FEATURES THAT YOU DESCRIBED, THE COMPLETENESS, 

        23    THE SPORTS AND BUSINESS COVERAGE, AND THE LIKE; CORRECT? 

        24    A.   CORRECT. 

        25    Q.   NOW, I WAS A LITTLE BIT CONFUSED BY YOUR TESTIMONY 



                                                                         1190
                                 SCHMIDT - CROSS / HALLING 


         1    REGARDING THE SIZE OF THE CURRENT EXAMINER STAFF.  I BELIEVE 

         2    YOU TESTIFIED UNDER EXAMINATION BY MR. SHULMAN THAT THE CURRENT 

         3    SIZE OF THE STAFF IS LARGE FOR A PAPER WITH 100,000 

         4    CIRCULATION; IS THAT RIGHT? 

         5    A.   CORRECT. 

         6    Q.   IS IT NOT TRUE THAT IN ORDER TO BE A WORTHY COMPETITOR OF 

         7    THE CHRONICLE IN THE FUTURE, FOLLOWING THE EXPIRATION OF THE 

         8    JOA, THAT THE EXAMINER WOULD HAVE TO MAINTAIN THAT SIZE STAFF 

         9    OR LARGER? 

        10    A.   CORRECT. 

        11               MR. LINDSTROM:  THANK YOU, YOUR HONOR.  I HAVE NO 

        12    FURTHER QUESTIONS. 

        13               THE COURT:  VERY WELL.  THANK YOU, MR. LINDSTROM. 

        14               MR. HALLING? 

        15                           CROSS-EXAMINATION 

        16    BY MR. HALLING: 

        17    Q.   GOOD MORNING, MR. SCHMIDT. 

        18    A.   GOOD MORNING. 

        19    Q.   WHEN THE VALLEY GREEN SHEET WAS TRANSFORMED INTO THE DAILY 

        20    NEWS, YOU WERE THE CEO; IS THAT RIGHT? 

        21    A.   THAT'S CORRECT. 

        22    Q.   HOW MUCH MONEY WAS INVESTED BY TRIBUNE COMPANY TO MAKE 

        23    THAT TRANSITION? 

        24    A.   SIR, I DON'T RECALL.  THE PAPER WAS MARGINALLY PROFITABLE 

        25    WHEN WE STARTED THE PROJECT.  THEY OBVIOUSLY BROUGHT US THE 



                                                                         1191
                                 SCHMIDT - CROSS / HALLING 


         1    COMPUTERS AND WHATEVER CAPITAL WE NEEDED, BUT WE DID NOT HAVE 

         2    TO GO BACK TO THE CHICAGO BANK TO GET ADDITIONAL MONEY TO 

         3    OPERATE.  WE WERE ABLE TO OPERATE WITH WHAT WE BROUGHT IN IN 

         4    ADVERTISING REVENUE. 

         5    Q.   WHEN YOU SOLD THE DAILY NEWS, WHAT DID YOU GET FOR IT? 

         6    A.   I WAS GONE BY THEN; BUT IF I REMEMBER CORRECTLY, THE 

         7    FIGURE WAS $175 MILLION. 

         8    Q.   AND THE PURCHASER WAS SINGLETON? 

         9    A.   NO.  IT WAS JACK KENT COOK. 

        10    Q.   WAS THE PAPER SUBSEQUENTLY SOLD? 

        11    A.   YES, IT WAS SOLD.  AFTER MR. COOK DIED, IT WAS SOLD TO 

        12    WILLIAM D. SINGLETON. 

        13    Q.   AND HIS COMPANY IS MEDIA NEWS, IS THAT RIGHT? 

        14    A.   YES.   

        15    Q.   NOW, THE EXAMINER WHEN IT WAS PUT UP FOR SALE, MR. 

        16    SINGLETON LOOKED AT IT; DIDN'T HE? 

        17    A.   I HAVE NO IDEA. 

        18    Q.   MR. SINGLETON OPERATES PAPERS IN THE BAY AREA; DOES HE 

        19    NOT? 

        20    A.   YES, HE DOES. 

        21    Q.   NOW, IF A PUBLISHER WERE TO NOT ACCEPT THE EXAMINER FOR 

        22    FREE, I ASSUME YOU WOULD AGREE THAT THAT SUGGESTS IT'S NOT MUCH 

        23    OF A BUSINESS? 

        24    A.   SIR, WOULD YOU RESTATE THAT? 

        25    Q.   YOU UNDERSTAND THAT THE TRANSACTIONS THAT ARE AT ISSUE 



                                                                         1192
                               SCHMIDT - REDIRECT / SHULMAN 


         1    HERE INVOLVE HEARST PAYING A SUBSIDY TO THE PURCHASER OF THE 

         2    EXAMINER; IS THAT CORRECT? 

         3    A.   YES, I DO. 

         4    Q.   THAT'S WHAT MR. REILLY WANTED; CORRECT? 

         5    A.   I DON'T -- I DON'T KNOW THAT, BUT I DO UNDERSTAND THE 

         6    SUBSIDY INVOLVED IN THIS CASE. 

         7    Q.   A NEWSPAPER THAT CANNOT BE SOLD WITHOUT A SUBSIDY IS NOT 

         8    MUCH OF A BUSINESS; IS THAT RIGHT? 

         9    A.   I THINK THAT'S A FAIR STATEMENT, YES. 

        10    Q.   NOW, YOU USED THE TERM "METROPOLITAN DAILY NEWSPAPER."  

        11    THAT HAS A MEANING IN THE INDUSTRY; DOES IT NOT? 

        12    A.   YES, IT DOES. 

        13    Q.   ARE YOU FAMILIAR WITH A TREND TOWARDS A DECLINE IN 

        14    COMPETING METROPOLITAN DAILY NEWSPAPERS? 

        15    A.   YES, SIR. 

        16               MR. HALLING:  I HAVE NOTHING FURTHER, YOUR HONOR. 

        17               THE COURT:  VERY WELL.  MR. SHULMAN, REDIRECT. 

        18               MR. SHULMAN:  YES, YOUR HONOR. 

        19                         REDIRECT EXAMINATION 

        20    BY MR. SHULMAN: 

        21    Q.   YOU SAID "METROPOLITAN DAILY NEWSPAPER" HAS A MEANING IN 

        22    THE INDUSTRY? 

        23    A.   YES. 

        24    Q.   WHICH IS WHAT? 

        25    A.   IT'S A NEWSPAPER THAT HAS A CORE MARKET BUT SERVES -- IT 



                                                                         1193
                               SCHMIDT - REDIRECT / SHULMAN 


         1    SERVES A MUCH LARGER MARKET OUTSIDE OF ITS CORE MARKET. 

         2    Q.   OKAY.  WHAT DO YOU MEAN BY A "CORE MARKET"? 

         3    A.   GENERALLY NEWSPAPERS ARE DESIGNATED BY WHAT IS CALLED 

         4    THEIR CITY ZONE AND THEIR TOTAL ZONE I GUESS UNDER ABC 

         5    PARLANCE.  CORE MARKET IS IF THE PAPER HAS A NAME ON IT THAT 

         6    SAYS THE "SAN FRANCISCO EXAMINER," GENERALLY SAN FRANCISCO IS 

         7    THE CORE MARKET. 

         8    Q.   OKAY.  NOW, YOU'VE SAID THAT THE LOS ANGELES DAILY NEWS 

         9    WAS SOLD FOR $175 MILLION AT ONE POINT? 

        10    A.   CORRECT. 

        11    Q.   WHAT WAS THE CIRCULATION AT THAT TIME? 

        12    A.   200,000. 

        13    Q.   AND WAS IT SOLD LATER AGAIN? 

        14    A.   IT WAS SOLD AGAIN, YES. 

        15    Q.   DO YOU KNOW THE PRICE? 

        16    A.   I DO NOT. 

        17    Q.   OKAY.  I HAVE TO ASK YOU ABOUT THE $20 MILLION ON THE 

        18    MARKET.  YOU SAID THAT -- WELL, YOU SAID EARLIER YOU STAND BY 

        19    THE $20 MILLION AS A NUMBER THAT'S GOING TO BE NEEDED FOR 

        20    MARKETING TO INCREASE THE CIRCULATION.  DO YOU STILL STAND BY 

        21    IT? 

        22    A.   YES. 

        23    Q.   OKAY.  AND WOULD YOU EXPLAIN WHAT IS INVOLVED IN THAT 

        24    $20 MILLION? 

        25    A.   WELL, THE SO-CALLED STARTS THAT WE DISCUSSED, WHICH ARE 



                                                                         1194
                                SCHMIDT - RECROSS / HOCKETT 


         1    ILLUSTRATED ON THE EASEL, IS A PROCUREMENT COST TO OBTAIN HOME 

         2    DELIVERY CUSTOMERS.  WHEN I'M TALKING ABOUT $20 MILLION, I AM 

         3    TALKING ABOUT THE MEDIA CAMPAIGN, THE PROMOTION AND EVERYTHING 

         4    THAT MUST BE DONE TO INFORM THE PUBLIC THAT THE EXAMINER IS A 

         5    NEW NEWSPAPER, IT'S A DIFFERENT NEWSPAPER, AND YOU SHOULD TRY 

         6    IT AND YOU SHOULD MAYBE SUBSCRIBE TO IT. 

         7    Q.   OKAY.  NOW, YOU WERE ALSO ASKED IF YOU WERE AWARE OF THE 

         8    FANGS' PLANS FOR THE EXAMINER.  DO YOU REMEMBER THAT? 

         9    A.   YES. 

        10    Q.   OKAY.  WERE YOU IN COURT EARLIER WHEN I READ MR. FANG'S 

        11    DEPOSITION TESTIMONY THAT HE HAS NOT PREPARED ANYTHING THAT HE 

        12    WOULD CALL A BUSINESS PLAN FOR THE EXAMINER? 

        13    A.   YES, I WAS. 

        14               MR. SHULMAN:  OKAY.  THANK YOU.  I HAVE NO FURTHER 

        15    QUESTIONS. 

        16               MR. HOCKETT:  I JUST HAVE A COUPLE OF FOLLOWUPS, 

        17    YOUR HONOR. 

        18               THE COURT:  VERY WELL. 

        19                          RECROSS-EXAMINATION 

        20    BY MR. HOCKETT: 

        21    Q.   MR. SCHMIDT, YOU JUST SAID YOU STILL STAND BY THE COST 

        22    NUMBERS IN YOUR DECLARATION; CORRECT? 

        23    A.   YES. 

        24    Q.   AND BY MY CALCULATION THIS MORNING, WE HAVE IDENTIFIED 

        25    $38 MILLION (SIC) IN MATH ERRORS; IS THAT CORRECT?  10 MILLION 



                                                                         1195
                                SCHMIDT - RECROSS / HOCKETT 


         1    IN YOUR ADDITION OF THE VARIOUS AMOUNTS AND 18 MILLION IN THE 

         2    ERROR IN MULTIPLICATION REGARDING STARTS; IS THAT CORRECT? 

         3    A.   THAT'S CORRECT. 

         4               MR. HOCKETT:  I HAVE NOTHING FURTHER. 

         5               THE COURT:  MR. SCHMIDT, YOU SAID IN YOUR TESTIMONY 

         6    THAT YOU REGARDED THE EXAMINER AS A FINE EDITORIAL PRODUCT. 

         7               THE WITNESS:  THAT'S CORRECT. 

         8               THE COURT:  WHY, THEN, IN YOUR OPINION HAS THE 

         9    EXAMINER EXPERIENCED A STEADY DECLINE IN ITS CIRCULATION? 

        10               THE WITNESS:  FIRST OF ALL, IT IS AN AFTERNOON 

        11    NEWSPAPER AND IN MOST MAJOR CITIES TODAY -- IN FACT, I'M TRYING 

        12    TO THINK IF I CAN THINK OF ANY AFTERNOON NEWSPAPERS IN MAJOR 

        13    CITIES.  I DON'T BELIEVE THERE ARE ANY.  AND IT'S PART OF A 

        14    JOINT OPERATING AGREEMENT. 

        15               YOU KNOW, IN MY EXPERIENCE, YOUR HONOR, WHEN JOINT 

        16    OPERATING AGREEMENTS OCCUR AND ONE NEWSPAPER MUST GO IN THE 

        17    AFTERNOON, THEY ALWAYS ARE THE SMALLEST IN CIRCULATION. 

        18               THE COURT:  CAN YOU THINK OF JOINT OPERATING 

        19    AGREEMENTS IN WHICH THE EVENING PAPER BECAME THE DOMINANT 

        20    NEWSPAPER? 

        21               THE WITNESS:  NO, SIR. 

        22               THE COURT:  DOES SEATTLE COME TO MIND? 

        23               THE WITNESS:  SEATTLE WAS THE -- WAS THE DOMINANT 

        24    AFTERNOON -- IT WAS THE DOMINANT NEWSPAPER IN THE MARKETPLACE 

        25    PRIOR TO THE JOINT OPERATING AGREEMENT. 



                                                                         1196



         1               THE COURT:  THE SEATTLE TIMES WAS THE DOMINANT 

         2    PAPER? 

         3               THE WITNESS:  YES, IT WAS; BUT AS YOU MAY OR MAY NOT 

         4    KNOW, IT HAS JUST BECOME A MORNING NEWSPAPER AND THE 

         5    CIRCULATION BETWEEN THE TWO PAPERS IS PRETTY EQUAL NOW. 

         6               THE COURT:  WHAT ABOUT DETROIT?  WASN'T THE NEWS AN 

         7    EVENING PAPER AND THE DOMINANT NEWSPAPER? 

         8               THE WITNESS:  YES, IT WAS.  YOU'RE CORRECT. 

         9               THE COURT:  CAN YOU THINK OF ANY OTHER INSTANCE IN 

        10    WHICH NEWSPAPERS WENT INTO A JOINT OPERATING AGREEMENT AND THE 

        11    EVENING PAPER EITHER WAS OR BECAME OR MAINTAINED ITS STATUS AS 

        12    THE DOMINANT PAPER? 

        13               THE WITNESS:  IF MY MEMORY SERVES ME CORRECTLY, 

        14    THERE WAS A PERIOD OF TIME THAT THE NEWSPAPER IN HONOLULU WAS 

        15    THE DOMINANT NEWSPAPER AND IT WAS THE AFTERNOON NEWSPAPER, BUT 

        16    BY -- BUT I DON'T BELIEVE IT ANY LONGER IS. 

        17               THE COURT:  OKAY.  YOU SPOKE ABOUT METROPOLITAN 

        18    DAILY NEWSPAPER AS A TERM OF ART IN THE INDUSTRY AND THEN IN 

        19    YOUR FURTHER EXAMINATION YOU SPOKE OF A NEWSPAPER THAT HAD A 

        20    CORE MARKET AND FROM THAT CORE MARKET REACHED OUT TO SERVE A 

        21    LARGER METROPOLITAN MARKET. 

        22               WHAT ARE THE METROPOLITAN DAILY NEWSPAPERS IN SAN 

        23    FRANCISCO BAY AREA? 

        24               THE WITNESS:  IN MY JUDGMENT? 

        25               THE COURT:  YES. 



                                                                         1197



         1               THE WITNESS:  THE CHRONICLE, THE EXAMINER AND THE 

         2    MERCURY NEWS. 

         3               THE COURT:  HOW ABOUT THE INDEPENDENT JOURNAL IN 

         4    MARIN COUNTY? 

         5               THE WITNESS:  I WOULD NOT CONSIDER THAT A 

         6    METROPOLITAN NEWSPAPER. 

         7               THE COURT:  THE CONTRA COSTA TIMES? 

         8               THE WITNESS:  NO.  I CONSIDER THOSE SUBURBAN 

         9    NEWSPAPERS. 

        10               THE COURT:  HOW ABOUT ANY OF THE EAST BAY 

        11    NEWSPAPERS, THE OAKLAND TRIBUNE, THE HAYWARD DAILY REVIEW? 

        12               THE WITNESS:  THERE WAS A TIME THAT THE OAKLAND 

        13    TRIBUNE WAS, BUT IT NO LONGER IS, I DON'T BELIEVE, IN MY 

        14    JUDGMENT. 

        15               THE COURT:  IF YOU CONSIDER THE CHRONICLE AND THE 

        16    EXAMINER TOGETHER, THEN THERE ARE ONLY TWO METROPOLITAN 

        17    NEWSPAPERS IN THE SAN FRANCISCO BAY AREA; IS THAT CORRECT? 

        18               THE WITNESS:  I WOULD CONSIDER THE MERCURY NEWS. 

        19               THE COURT:  WELL, IF YOU CONSIDER THE EXAMINER AND 

        20    THE CHRONICLE AS ONE ENTITY -- 

        21               THE WITNESS:  YES, SIR.  YES. 

        22               THE COURT:  -- THEN -- 

        23               THE WITNESS:  YES, YOUR HONOR. 

        24               THE COURT:  -- THEN IT HAS ONLY ONE OTHER 

        25    METROPOLITAN NEWSPAPER THAT COMPETES IN THE BAY AREA? 



                                                                         1198
                                 FLOOD - DIRECT / SHULMAN 


         1               THE WITNESS:  THAT'S CORRECT. 

         2               THE COURT:  THANK YOU, MR. SCHMIDT, FOR YOUR 

         3    TESTIMONY, SIR.  YOU MAY STEP DOWN.  YOU'RE EXCUSED. 

         4               THE WITNESS:  THANK YOU, YOUR HONOR. 

         5                          (WITNESS EXCUSED.) 

         6               THE COURT:  MR. SHULMAN, YOUR NEXT WITNESS, PLEASE. 

         7               MR. SHULMAN:  MAY IT PLEASE THE COURT, THE PLAINTIFF 

         8    CALLS FRANK FLOOD. 

         9               THE COURT:  FRANK FLOOD? 

        10               MR. SHULMAN:  YES. 

        11                        (PAUSE IN PROCEEDINGS.) 

        12               THE CLERK:  PLEASE RAISE YOUR RIGHT HAND TO BE 

        13    SWORN. 

        14                             FRANK FLOOD,  

        15    CALLED AS A WITNESS FOR THE PLAINTIFF, HAVING BEEN DULY SWORN, 

        16    TESTIFIED AS FOLLOWS: 

        17               THE CLERK:  PLEASE STATE YOUR FULL NAME AND SPELL 

        18    YOUR LAST NAME FOR THE RECORD. 

        19               THE WITNESS:  FRANK FLOOD, F-L-O-O-D. 

        20               MR. SHULMAN:  MAY IT PLEASE THE COURT. 

        21                          DIRECT EXAMINATION 

        22    BY MR. SHULMAN: 

        23    Q.   WHAT IS YOUR ADDRESS?   

        24               POUR YOUR WATER FIRST, THEN I'LL ASK YOU. 

        25    A.   MY ADDRESS IS 108 BROOKLINE, ALL ONE WORD, 



                                                                         1199
                                 FLOOD - DIRECT / SHULMAN 


         1    B-R-O-O-K-L-I-N-E, MORAGA, CALIFORNIA. 

         2    Q.   AND WHAT IS YOUR -- GO AHEAD. 

         3    A.   THANK YOU. 

         4    Q.   WHAT IS YOUR AGE, MR. FLOOD? 

         5    A.   71 YEARS OLD. 

         6    Q.   AND CAN YOU STATE, PLEASE, YOUR EDUCATIONAL BACKGROUND? 

         7    A.   SOME UNIVERSITY, TWO YEARS, INCOMPLETE. 

         8    Q.   AND WHERE WAS THAT? 

         9    A.   THAT WAS IN DUBLIN, IRELAND. 

        10    Q.   OKAY.  IS THAT WHERE YOU'RE FROM? 

        11    A.   YES. 

        12    Q.   ARE YOU EMPLOYED AT THIS TIME? 

        13    A.   I AM AN INDEPENDENT CONSULTANT. 

        14    Q.   OKAY.  AND WHAT IS THE NATURE OF THE CONSULTING WORK THAT 

        15    YOU DO? 

        16    A.   MOSTLY MEDIA WORK IN VARIOUS MEDIUM. 

        17               MR. SHULMAN:  MAY I APPROACH THE WITNESS, YOUR 

        18    HONOR? 

        19               THE COURT:  YES, YOU MAY. 

        20    BY MR. SHULMAN: 

        21    Q.   MR. FLOOD, I HAVE PUT IN FRONT OF YOU PLAINTIFF EXHIBIT 56 

        22    IN EVIDENCE, WHICH IS THE DECLARATION OF FRANK FLOOD IN SUPPORT 

        23    OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION.  DO YOU 

        24    RECOGNIZE THIS AS THE DECLARATION THAT YOU SIGNED IN THIS CASE? 

        25    A.   YES, I DO. 



                                                                         1200
                                 FLOOD - DIRECT / SHULMAN 


         1    Q.   OKAY.  PARAGRAPH 1 STATES: 

         2                   "I AM THE FORMER ADVERTISING MANAGER OF THE 

         3               SAN FRANCISCO NEWSPAPER PRINTING CO., INC., DBA, 

         4               SAN FRANCISCO NEWSPAPER AGENCY (SFNA), WHICH 

         5               PERFORMS ALL COMMERCIAL OPERATIONS OF THE SAN 

         6               FRANCISCO EXAMINER AND THE SAN FRANCISCO 

         7               CHRONICLE.  I HELD THAT POSITION FOR THREE AND A 

         8               HALF YEARS, FROM 1991 TO 1994.  I WORKED FOR 

         9               SFNA FROM 1984 TO 1994 MANAGING VARIOUS ASPECTS 

        10               OF THE ADVERTISING OPERATIONS." 

        11               DO YOU SEE THAT? 

        12    A.   YES.   

        13    Q.   WHEN DID YOU FIRST GO INTO THE NEWSPAPER BUSINESS? 

        14    A.   1959. 

        15    Q.   OKAY.  NOW, YOUR DECLARATION PICKS UP WITH YOUR WORK ON 

        16    THE -- IN THE NEW YORK DAILY NEWS BEGINNING IN 1976.  I'M GOING 

        17    TO ASK YOU ABOUT THAT, BUT LET ME ASK YOU FIRST TO TELL US WHAT 

        18    YOU DID BRIEFLY FROM 1959 UNTIL YOU JOINED THE DAILY NEWS OR 

        19    UNTIL YOU BECAME DISPLAY ADVERTISING MANAGER OF THE NEW YORK 

        20    DAILY NEWS IN 1976. 

        21    A.   I WORKED FOR THE HOLLYWOOD CITIZEN NEWS IN HOLLYWOOD, 

        22    CALIFORNIA, WHERE I WAS A SALESPERSON SELLING RETAIL 

        23    ADVERTISING. 

        24               I WAS THEN HIRED BY THE LOS ANGELES TIMES WITH WHOM 

        25    I WORKED FOR ABOUT 14 YEARS, BUT INITIALLY I WORKED FOR THE 



                                                                         1201
                                 FLOOD - DIRECT / SHULMAN 


         1    TIMES AS A RETAIL SALESPERSON AND THEN AS A NATIONAL 

         2    SALESPERSON.  THAT WAS FOR FIVE YEARS, APPROXIMATELY FIVE 

         3    YEARS. 

         4               I WAS THEN TRANSFERRED BY THE NEW YORK TIMES -- 

         5    CORRECTION, LOS ANGELES TIMES TO THE NEW YORK OFFICE OF THE LOS 

         6    ANGELES TIMES WHERE I BECAME ADVERTISING MANAGER FOR THE SUNDAY 

         7    MAGAZINE. 

         8               AFTER ABOUT TWO YEARS IN THAT POSITION, MAYBE THREE, 

         9    I WAS PROMOTED TO THE EASTERN ADVERTISING MANAGER IN CHARGE OF 

        10    ALL THE ADVERTISING THAT CAME OUT OF THE EASTERN TERRITORIES. 

        11               IN 1971 I WAS MOVED BACK TO LOS ANGELES AND THE LOS 

        12    ANGELES TIMES, AND I BECAME NATIONAL ADVERTISING MANAGER FOR 

        13    THE L.A. TIMES. 

        14               IN 1976 I WAS HIRED BY THE CHICAGO -- CORRECTION, I 

        15    WAS HIRED BY THE NEW YORK DAILY NEWS, WHICH WAS OWNED BY THE 

        16    CHICAGO TRIBUNE.  I WENT BACK TO NEW YORK AND I BECAME GENERAL 

        17    ADVERTISING MANAGER FOR THE NEW YORK DAILY NEWS. 

        18    Q.   OKAY.  NOW, YOUR LAST POSITION WITH THE LOS ANGELES TIMES 

        19    WAS AS NATIONAL ADVERTISING MANAGER? 

        20    A.   YES. 

        21    Q.   WHAT DID YOU DO IN THAT POSITION? 

        22    A.   I WAS RESPONSIBLE FOR ALL OF THE NATIONAL ADVERTISING THAT 

        23    RAN IN THE NEWSPAPER AND IN THE MAGAZINES.  MY RESPONSIBILITIES 

        24    WERE A NATIONAL SALES STAFF IN LOS ANGELES OF ABOUT 20 PEOPLE 

        25    AND RESPONSIBILITY FOR THREE OUTSIDE SALES OFFICES:  CHICAGO, 



                                                                         1202
                                 FLOOD - DIRECT / SHULMAN 


         1    NEW YORK AND SAN FRANCISCO. 

         2               I WAS ALSO RESPONSIBLE FOR THE INDEPENDENT SALES 

         3    REPRESENTATIVES THAT WE HAD IN VARIOUS OTHER CITIES AS WELL AS 

         4    OVERSEAS. 

         5    Q.   OKAY.  NOW, YOU SAY AT LINE 26: 

         6                   "BETWEEN 1976 AND 1981 I WAS THE DISPLAY 

         7               ADVERTISING MANAGER OF THE NEW YORK DAILY NEWS, 

         8               THE LARGEST CIRCULATION NEWSPAPER IN THE UNITED 

         9               STATES," END OF QUOTE.   

        10               CAN YOU TELL US -- WELL, WHAT WAS THE CIRCULATION OF 

        11    THE DAILY NEWS WHEN YOU WERE THE DISPLAY ADVERTISING MANAGER? 

        12    A.   AS I RECALL, THE DAILY CIRCULATION WAS 2,400,000. 

        13    Q.   AND WHAT IS DISPLAY ADVERTISING? 

        14    A.   DISPLAY ADVERTISING IS ALL ADVERTISING THAT RUNS IN 

        15    NEWSPAPERS OTHER THAN THE CLASSIFIED LINER TYPE OF ADVERTISING. 

        16    Q.   SO WHAT WERE YOUR DUTIES AND RESPONSIBILITIES AS DISPLAY 

        17    ADVERTISING MANAGER OF THE NEW YORK DAILY NEWS? 

        18    A.   I WAS RESPONSIBLE FOR THE NATIONAL ADVERTISING THAT RAN IN 

        19    THE NEWSPAPERS AS WELL -- IN THE NEWSPAPER, AS WELL AS THE 

        20    RETAIL ADVERTISING THAT RAN IN THE NEWSPAPER. 

        21    Q.   THEN IT SAYS NEXT, IF WE GO BACK TO PAGE 1 AT LINE 24, IT 

        22    SAYS: 

        23                   "FROM 1981 TO 1984 I WAS THE VICE PRESIDENT 

        24               OF ADVERTISING OF THE DENVER POST WITH AN ANNUAL 

        25               ADVERTISING REVENUE OF APPROXIMATELY 



                                                                         1203
                                 FLOOD - DIRECT / SHULMAN 


         1               $100 MILLION A YEAR." 

         2               IS THAT CORRECT? 

         3    A.   THAT'S CORRECT. 

         4    Q.   AND WHAT WERE YOUR DUTIES AND RESPONSIBILITIES AS VICE 

         5    PRESIDENT OF ADVERTISING FOR THE DENVER POST? 

         6    A.   RESPONSIBILITIES FOR ALL ADVERTISING THAT RAN IN THE 

         7    NEWSPAPER. 

         8    Q.   WHICH INCLUDES WHAT, WHAT KINDS? 

         9    A.   WHICH INCLUDES NATIONAL, RETAIL AND CLASSIFIED. 

        10    Q.   NOW, WHEN YOU WERE IN NEW YORK, THE DAILY NEWS WAS IN 

        11    COMPETITION WITH OTHER NEWSPAPERS IN NEW YORK? 

        12    A.   YES. 

        13    Q.   WHICH ONES? 

        14    A.   PRINCIPALLY THE NEW YORK TIMES, THE NEW YORK -- THE NEWS 

        15    DAY ON LONG ISLAND, THE NEW YORK NEWS, STATEN ISLAND NEWSPAPER, 

        16    THE NEW YORK POST, AND SOME OTHER PAPERS THAT WERE IN THE OUTER 

        17    BOUNDARIES. 

        18    Q.   OKAY.  YOU SAY -- ALL RIGHT.   

        19               AND IN DENVER WAS THERE ANOTHER DAILY NEWSPAPER IN 

        20    COMPETITION WITH THE POST? 

        21    A.   YES. 

        22    Q.   AND THAT WAS? 

        23    A.   THAT WAS THE ROCKY MOUNTAIN NEWS. 

        24    Q.   OKAY.  NOW, IN LINE 22 YOU SAY: 

        25                   "I WORKED FOR SFNA FROM 1984 TO 1994 



                                                                         1204
                                 FLOOD - DIRECT / SHULMAN 


         1               MANAGING VARIOUS ASPECTS OF THE ADVERTISING 

         2               OPERATIONS.  AS ADVERTISING MANAGER, I WAS 

         3               RESPONSIBLE FOR ALL ADVERTISING FOR SFNA." 

         4               ALL RIGHT.  TELL US FROM '84 -- WHEN YOU JOINED THE 

         5    NEWSPAPER AGENCY HERE IN 1984, WHAT WAS YOUR POSITION? 

         6    A.   GENERAL ADVERTISING MANAGER WAS THE TITLE, AND THE 

         7    RESPONSIBILITY WAS NATIONAL ADVERTISING. 

         8    Q.   AND DID THAT CHANGE AT SOME POINT? 

         9    A.   YES, IT DID.  IT CHANGED -- 

        10    Q.   HOW DID THAT CHANGE? 

        11    A.   THAT CHANGED TO FIRST RETAIL ADVERTISING MANAGER AND THEN 

        12    DISPLAY ADVERTISING MANAGER AND THEN ADVERTISING MANAGER. 

        13    Q.   AND THAT WAS IN 1991 YOU BECAME THE ADVERTISING MANAGER 

        14    FOR THE ENTIRE AGENCY? 

        15    A.   YES. 

        16    Q.   AND YOU HELD THAT UNTIL 1994? 

        17    A.   YES. 

        18    Q.   AND WERE YOU RESPONSIBLE FOR THE SALES OF ADVERTISING FOR 

        19    BOTH THE EXAMINER AND THE CHRONICLE? 

        20    A.   YES. 

        21    Q.   CAN YOU -- WAS ANY OF THE ADVERTISING FOR THE CHRONICLE OR 

        22    THE EXAMINER SOLD SEPARATELY BY THE AGENCY? 

        23    A.   YES, IT COULD BE SOLD SEPARATELY. 

        24    Q.   WERE THERE -- WAS -- CAN YOU GIVE US THE BREAKDOWN IN 

        25    TERMS OF WHAT PERCENTAGE -- WELL, LET ME BACK UP A BIT. 



                                                                         1205
                                 FLOOD - DIRECT / SHULMAN 


         1               WHEN ADVERTISING WAS SOLD, WERE THE ADS FOR THE TWO 

         2    PAPERS SOLD IN COMBINATION AT ALL? 

         3    A.   YES. 

         4    Q.   CAN YOU EXPLAIN HOW THAT WORKED? 

         5    A.   THERE WAS ONE RATE THAT AN ADVERTISER WOULD PAY TO BE IN 

         6    BOTH NEWSPAPERS.  THAT WAS THE COMBINATION RATE. 

         7    Q.   OKAY.  AND IF THE ADVERTISER BOUGHT ADVERTISING UNDER THE 

         8    COMBINATION RATE, THEN WOULD THE ADVERTISEMENTS APPEAR IN BOTH 

         9    NEWSPAPERS? 

        10    A.   YES, THEY WOULD. 

        11    Q.   WHAT PERCENTAGE OF THE ADVERTISING SOLD BY THE AGENCY WAS 

        12    SOLD UNDER THE COMBINATION RATE AS OPPOSED TO SEPARATE SALE? 

        13    A.   ABOUT 98 PERCENT WAS SOLD IN COMBINATION. 

        14    Q.   WERE THERE EMPLOYEES OF THE AGENCY WHO HAD RESPONSIBILITY 

        15    FOR SELLING ONLY SEPARATELY?  FOR EXAMPLE, WAS THERE AN AD 

        16    SALESMAN JUST FOR EXAMINER ADS OR JUST FOR CHRONICLE ADS? 

        17    A.   NOBODY SPECIFICALLY APPOINTED TO DO THAT, BUT EACH MEMBER 

        18    OF THE SALES STAFF HAD THE AUTHORITY AND RESPONSIBILITY, IF THE 

        19    ADVERTISER WANTED TO DO SO, TO BUY EACH PAPER SEPARATELY. 

        20    Q.   SO WAS THERE A SEPARATE SALES STAFF CREATED FOR 

        21    ADVERTISING SALES FOR THE EXAMINER? 

        22    A.   ONLY IN THE CASE OF THE SUNDAY MAGAZINE. 

        23    Q.   EXPLAIN HOW THAT WORKED. 

        24    A.   SUNDAY MAGAZINE IS AN EXAMINER PRODUCT IN WHICH THE 

        25    CHRONICLE HAS NO PART OF THE EDITORIAL CONTENT.  AS A RESULT OF 



                                                                         1206
                                 FLOOD - DIRECT / SHULMAN 


         1    THAT BEING THE CASE, WE DID ESTABLISH A SMALL SALES FORCE WITH 

         2    A MANAGER TO SELL ADVERTISING SPECIFICALLY INTO THAT SUNDAY 

         3    MAGAZINE, AND THAT GROUP SOLD NOTHING ELSE. 

         4    Q.   OKAY.  SO APART FROM THE SUNDAY MAGAZINE, WAS THERE ANY 

         5    SALES FORCE THAT SOLD ONLY FOR THE EXAMINER? 

         6    A.   NO. 

         7               MR. SHULMAN:  YOUR HONOR, I AM KIND OF AT A BREAKING 

         8    POINT.  I KNOW YOU HAVE A CALL.  IS THIS -- 

         9               THE COURT:  ALL RIGHT.  THIS WOULD BE A GOOD TIME 

        10    FOR US TO TAKE THAT RECESS.  WE WILL DO THAT AND WHAT WE'LL DO, 

        11    THEN, IS RESUME WITH FURTHER TESTIMONY OF MR. FLOOD AT 

        12    12:30 AND WE'LL GO UNTIL ABOUT 2:00 O'CLOCK. 

        13               ALL RIGHT.  THANK YOU.   

        14               (LUNCHEON RECESS WAS TAKEN AT 11:50 A.M.) 

        15    AFTERNOON SESSION                                    12:45 P.M. 

        16               THE COURT:  VERY WELL, MR. FLOOD, IF YOU'D BE SO 

        17    GOOD AS TO RESUME THE STAND. 

        18               MR. HOCKETT:  YOUR HONOR, I JUST HAVE ONE SMALL 

        19    ADMINISTRATIVE MATTER.  A FEW DAYS AGO WE ATTEMPTED TO OFFER 

        20    INTO EVIDENCE BY STIPULATION A NUMBER OF THE EXIN PROPOSED 

        21    TRIAL EXHIBITS, AND NOW ALL PARTIES HAVE HAD A CHANCE TO REVIEW 

        22    THAT LIST AND HAVE STIPULATED TO THE ADMISSION OF THE EXHIBITS 

        23    AND I'D LIKE FOR THE RECORD TO IDENTIFY THEM. 

        24               THE COURT:  WHY DON'T WE DO THIS AT THE END TODAY. 

        25               MR. HOCKETT:  OKAY. 



                                                                         1207
                                 FLOOD - DIRECT / SHULMAN 


         1               THE COURT:  MR. SHULMAN. 

         2               MR. SHULMAN:  MAY IT PLEASE THE COURT. 

         3    Q.   MR. FLOOD, WHEN WE -- AT THE TIME WE BROKE, I WAS ASKING 

         4    YOU ABOUT EXHIBIT 56, YOUR DECLARATION, AND I WAS ASKING YOU 

         5    ABOUT THE WAY THAT ADVERTISING WAS SOLD WHEN YOU WERE AT THE 

         6    AGENCY.  AND I THINK YOU SAID THAT THERE WAS NO -- SUNDAYS 

         7    APART, THERE WAS NO SEPARATE SALES FORCE FOR SELLING 

         8    ADVERTISING FOR THE EXAMINER.  DO YOU REMEMBER THAT? 

         9    A.   YES. 

        10    Q.   AND THAT 98 PERCENT OF THE ADVERTISING WAS SOLD UNDER A 

        11    COMBINATION RATE. 

        12    A.   YES. 

        13    Q.   OKAY.  NOW, WERE THERE, FOR THE ADVERTISING THAT WAS NOT 

        14    SOLD UNDER A COMBINATION RATE, THAT LITTLE BIT THAT WAS SOLD 

        15    SEPARATELY FOR THE EXAMINER, WERE THERE ADVERTISING CONTRACTS 

        16    FOR THAT? 

        17    A.   YES. 

        18    Q.   AND SO APPROXIMATELY HOW MANY ADVERTISING CONTRACTS ARE WE 

        19    TALKING ABOUT? 

        20    A.   PROBABLY FOUR, SIX, SOMEWHERE IN THAT AREA. 

        21    Q.   OKAY.  THE REST OF THE ADVERTISING, THE CONTRACTS WITH THE 

        22    ADVERTISERS WOULD BE UNDER THE COMBINATION RATE; IS THAT RIGHT? 

        23    A.   CORRECT. 

        24    Q.   NOW, IF THE EXAMINER WERE TRANSFERRED TO THE FANGS, WHAT 

        25    PROBLEMS WOULD THE -- IF ANY, WOULD THE FANGS HAVE IN TERMS OF 



                                                                         1208
                                 FLOOD - DIRECT / SHULMAN 


         1    STARTING TO GENERATE ADVERTISING REVENUE FOR THE NEW EXAMINER? 

         2    A.   THE PROBLEMS REALLY WOULD BE THAT THEY WOULD START FROM 

         3    SCRATCH TO TRY AND CONVERT THE EXAMINER REVENUES THAT ARE PART 

         4    OF THE COMBINATION TO BECOME AVAILABLE FOR ADVERTISING 

         5    CAMPAIGNS THAT MIGHT RUN IN THE NEW EXAMINER. 

         6               THE PROBLEM REALLY WOULD BE THAT THERE ARE NO, WITH 

         7    THE EXCEPTION OF THE TWO OR THREE CONTRACTS, MAYBE FOUR, MAYBE 

         8    A HALF A DOZEN THAT I JUST MENTIONED, THERE ARE NO CONTRACTS 

         9    SEPARATELY FOR THE EXAMINER OVER AND ABOVE THAT, WHICH IN MY 

        10    OPINION IS A GREAT DETRIMENT TO THE SUCCESS OF THE START UP OF 

        11    THE NEWSPAPER IN THAT YOU DON'T INHERIT ANY CONTRACTS FROM THE 

        12    PREVIOUS OWNER OF THAT NEWSPAPER FOR ADVERTISING SALES.  

        13    CONTRACTS THAT SPECIFY REVENUE ARE LINEAGE TO BE RUN IN THIS 

        14    CASE THE EXAMINER.  SO THAT WOULD BE A BIG, BIG DIFFICULT 

        15    SITUATION. 

        16               IN MOST SITUATIONS WHERE A NEWSPAPER IS SOLD, THE 

        17    NEW BUYER, THE NEW OWNER DOES INHERIT THE EXISTING CONTRACTS 

        18    BECAUSE THEY ARE THE ASSETS, SOME OF THE ASSETS THAT A NEW 

        19    BUYER IS GOING TO GET FOR WHATEVER HE PAYS FOR THE NEWSPAPER.   

        20               SO IN MY OPINION IT'S GOING TO BE PRETTY DIFFICULT 

        21    TO STARTING AT A LOW LEVEL, ALMOST SCRATCH TO PUT TOGETHER A 

        22    VERY HIGH VOLUME OF ADVERTISING THAT'S GOING TO BE NEEDED TO 

        23    SUSTAIN THE EXAMINER IN ITS NEW FORMAT. 

        24    Q.   NOW, IF YOU LOOK AT PARAGRAPH 5 OF YOUR DECLARATION ON THE 

        25    SECOND PAGE, AND I'M GOING TO GET INTO THIS LITTLE IN A LITTLE 



                                                                         1209
                                 FLOOD - DIRECT / SHULMAN 


         1    MORE DETAIL, DID YOU MAKE SOME EFFORT TO DETERMINE WHAT IT 

         2    WOULD TAKE IN ORDER TO DEVELOP THE TYPE OF STAFF THAT WOULD BE 

         3    NEEDED IN ORDER TO HAVE AN ADVERTISING DEPARTMENT FOR A 

         4    START-UP EXAMINER? 

         5    A.   YES, I DID. 

         6    Q.   OKAY.  NOW, YOU SAY, BEGINNING IN PARAGRAPH 5: 

         7                   "BASED UPON MY EXPERIENCE, ADVERTISING IN 

         8               NEWSPAPERS IS SEPARATED INTO THREE CATEGORIES:  

         9               RETAIL, CLASSIFIED AND NATIONAL, EACH OF WHICH 

        10               REQUIRES SEPARATE STAFFING." 

        11               IS THAT CORRECT? 

        12    A.   CORRECT. 

        13    Q.   AND YOU'VE HAD EXPERIENCE WITH ALL THREE CATEGORIES? 

        14    A.   YES. 

        15    Q.   OKAY.  THEN YOU SAY: 

        16                   "FOR CLASSIFIED THE EXAMINER WOULD REQUIRE 

        17               AT LEAST 19 OUTSIDE SALESPEOPLE, 12 

        18               TELEMARKETERS AND THREE GENERAL STAFF MEMBERS IN 

        19               OBITUARIES," END OF QUOTE. 

        20               WHAT DOES ADVERTISING HAVE TO DO WITH OBITUARIES?  

        21    THAT'S THE FIRST QUESTION. 

        22    A.   THERE IS A PART OF THE NEWSPAPER THAT RUNS PAID OBITUARY 

        23    NOTICES, WHICH IS A LAST-MINUTE -- NO CONTRACTS ARE OUT ON 

        24    OBITUARIES.  YOU HAVE TO HAVE A STAFF AVAILABLE TO TAKE THE 

        25    INFORMATION FROM THE MORTICIAN IMMEDIATELY AND PUBLISH IT PRIOR 



                                                                         1210
                                 FLOOD - DIRECT / SHULMAN 


         1    TO THE FUNERAL.  SO YOU HAVE TO STAFF THAT SMALL DEPARTMENT ON 

         2    USUALLY A 24-HOUR BASIS. 

         3    Q.   OKAY.  NOW, HOW DID YOU ARRIVE AT THE OPINION THAT THE 

         4    EXAMINER WOULD REQUIRE AT LEAST 19 OUTSIDE SALESPEOPLE, 12 

         5    TELEMARKETERS AND THREE GENERAL STAFF MEMBERS IN OBITUARIES?   

         6    A.   IN SEEKING TO FIND A NEWSPAPER OR NEWSPAPERS THAT WOULD BE 

         7    VERY SIMILAR IN SIZE TO WHAT WE ENVISION OR I ENVISIONED THE 

         8    EXAMINER TO BE IN ITS NEW FORMAT, I FOCUSED ON TWO NEWSPAPERS 

         9    THAT HAD ABOUT A HUNDRED THOUSAND CIRCULATION EACH, AND I USED 

        10    ONE OF THOSE NEWSPAPERS AS THE BASIS FOR THESE NUMBERS THAT 

        11    YOU'VE JUST READ.  THAT IS WHAT IT TAKES THIS NEWSPAPER IN 

        12    CALIFORNIA TO DEVELOP THE SORT OF ADVERTISING THAT A HUNDRED 

        13    THOUSAND CIRCULATION SHOULD DEVELOP. 

        14    Q.   WHAT NEWSPAPER IS THAT? 

        15    A.   THAT IS THE VENTURA STAR. 

        16    Q.   ALL RIGHT.  THEN YOU SAY: 

        17                   "FOR NATIONAL ADVERTISING THE EXAMINER WILL 

        18               REQUIRE AT LEAST THREE OR FOUR GENERAL STAFF 

        19               MEMBERS AND ONE NATIONAL SALES MANAGER." 

        20               DO YOU SEE THAT? 

        21    A.   YES. 

        22    Q.   AND THE NATIONAL ADVERTISING IS WHAT? 

        23    A.   NATIONAL ADVERTISING IS ONE OF THE CATEGORIES OF 

        24    ADVERTISING.  WE TALKED ABOUT THREE CATEGORIES:  NATIONAL, 

        25    RETAIL AND CLASSIFIED.  NATIONAL IS THE BUSINESS THAT MOSTLY 



                                                                         1211
                                 FLOOD - DIRECT / SHULMAN 


         1    COMES THROUGH ADVERTISING AGENCIES AND IT IS MAJOR NATIONAL 

         2    CORPORATIONS USUALLY THAT PLACE THAT TYPE OF ADVERTISING. 

         3    Q.   IS THAT AN IMPORTANT SOURCE OF REVENUE? 

         4    A.   THAT IS VERY IMPORTANT. 

         5    Q.   OKAY.  AND HOW DID YOU -- WHAT LED YOU TO BELIEVE OR 

         6    CONCLUDE THAT THE EXAMINER WOULD REQUIRE AT LEAST THREE OR FOUR 

         7    GENERAL STAFF MEMBERS AND ONE NATIONAL SALES MANAGER FOR 

         8    NATIONAL ADVERTISING? 

         9    A.   THAT IS THE TEAM THAT IT TAKES IN THIS NEWSPAPER THAT I 

        10    EXAMINED, THIS HUNDRED THOUSAND NEWSPAPER, THE VENTURA STAR.  

        11    THAT IS HOW THEY ARE STAFFED AT THAT PAPER. 

        12    Q.   OKAY.  THEN YOU SAY: 

        13                   "FOR RETAIL THE EXAMINER WILL REQUIRE AT 

        14               LEAST 20 GENERAL STAFF MEMBERS." 

        15               OKAY.  AND RETAIL IS? 

        16    A.   RETAIL IS A LOCAL ADVERTISING FROM RETAIL STORES. 

        17    Q.   OKAY.  AND HOW DID YOU ARRIVE AT THE 20 GENERAL STAFF 

        18    MEMBERS? 

        19    A.   THAT ALSO CAME OUT OF THE MANNING INFORMATION THAT I 

        20    DEVELOPED FROM THE VENTURA NEWSPAPER. 

        21    Q.   WHY DO YOU THINK THAT'S AN APPROPRIATE COMPARABLE? 

        22    A.   I'M SORRY? 

        23    Q.   WHY DO YOU THINK THAT'S AN APPROPRIATE YARDSTICK OR 

        24    MEASURE TO USE? 

        25    A.   WHY DO I THINK THE PAPER IS? 



                                                                         1212
                                 FLOOD - DIRECT / SHULMAN 


         1    Q.   YES, THE VENTURA PAPER. 

         2    A.   WELL, CIRCULATION IS SIMILAR TO THE CIRCULATION THAT THE 

         3    EXAMINER POSSIBLY COULD HAVE IN THE FUTURE AND DOES HAVE NOW AS 

         4    PART OF THE COMBINATION.  IT IS ALSO A CALIFORNIA NEWSPAPER AND 

         5    IT ALSO HAS THE SAME -- BASICALLY THE SAME COST FACTORS FROM 

         6    THE POINT OF VIEW OF SALARIES AND BENEFITS AND EVERYTHING THAT 

         7    GOES INTO THE EXPENSE OF RUNNING AN ADVERTISING DEPARTMENT. 

         8    Q.   OKAY.  AND THEN YOU SAY: 

         9                   "IN ORDER TO PRODUCE A VIABLE COMPETITIVE 

        10               PAPER, THE EXAMINER WILL REQUIRE AT A MINIMUM 98 

        11               FULL-TIME STAFF IN ADVERTISING INCLUDING 

        12               ADMINISTRATION." 

        13               SO HOW DO YOU GET TO THAT NUMBER INCLUDING 

        14    ADMINISTRATION? 

        15    A.   THAT'S ALSO FROM THE SAME NEWSPAPER.  THEY HAVE A SEPARATE 

        16    ITEM THAT SAYS ADMINISTRATION. 

        17    Q.   OKAY.  WHAT IS ADMINISTRATION IN AN ADVERTISING 

        18    DEPARTMENT? 

        19    A.   ADMINISTRATION WOULD BE SCHEDULING, BILLING, RATE 

        20    STRUCTURE DEVELOPMENT, CONTROL OF EXPENSES IN THE AREA OF 

        21    PROMOTION.  IT WOULD ALSO INCLUDE SALARIES FOR THE PEOPLE WHO 

        22    ARE ADMINISTRATING THAT FUNCTION.   

        23    Q.   ALL RIGHT.  DO YOU HAVE IN -- YOU DID A SECOND DECLARATION 

        24    IN THIS CASE; CORRECT? 

        25    A.   YES. 



                                                                         1213
                                 FLOOD - DIRECT / SHULMAN 


         1    Q.   AND THAT'S EXHIBIT 62 IN EVIDENCE.  DO YOU HAVE THAT IN 

         2    FRONT OF YOU?  I THINK I GAVE THAT TO YOU. 

         3    A.   NO.  I JUST HAVE THE DECLARATION EXHIBIT 56. 

         4               MR. SHULMAN:  OKAY.  MAY I APPROACH THE WITNESS, 

         5    YOUR HONOR? 

         6               THE COURT:  YES, YOU MAY. 

         7    BY MR. SHULMAN: 

         8    Q.   OKAY.  MR. FLOOD, I PUT IN FRONT OF YOU WHAT IS MARKED AS 

         9    EXHIBIT 62.  AND DO YOU RECOGNIZE THIS AS A SECOND DECLARATION 

        10    THAT YOU DID IN CONNECTION WITH THIS CASE? 

        11    A.   YES. 

        12    Q.   OKAY.  WHAT LED TO YOUR DOING A SECOND DECLARATION AFTER 

        13    YOU HAD DONE YOUR FIRST? 

        14    A.   BETWEEN THE FIRST DECLARATION AND THIS SECOND GENERATION 

        15    DECLARATION, I WAS ABLE TO DEVELOP A LOT OF NEW INFORMATION ON 

        16    THE MARKET, NEW INFORMATION ON THE STATUS OF MAJOR ACCOUNTS 

        17    THAT ARE RUNNING IN THIS MARKET, AND OTHER INFORMATION THAT 

        18    BECAME IMPORTANT TO ME SO THAT I COULD PROJECT A GOOD PRO 

        19    FORMA. 

        20    Q.   OKAY.  IF YOU'LL LOOK AT PAGE 2 OF THE DECLARATION, IN THE 

        21    SECOND PARAGRAPH YOU SAY, QUOTE: 

        22                   "I HAVE REVIEWED THE YEAR-END STUDY OF 

        23               ADVERTISING AND LINEAGE FOR 1999 PUBLISHED BY 

        24               COMPETITIVE MEDIA REPORTING (CMR).  I RECEIVED 

        25               THE STUDY TUESDAY, MARCH 28, 2000.  THE YEAR-END 



                                                                         1214
                                 FLOOD - DIRECT / SHULMAN 


         1               ADVERTISING STUDIES PUBLISHED BY CMR ARE RELIED 

         2               UPON BY NUMEROUS MAJOR NEWSPAPERS FOR BUDGETING 

         3               AND ANALYZING THE ADVERTISING REVENUE OF 

         4               COMPETITOR NEWSPAPERS." 

         5               DO YOU SEE THAT? 

         6    A.   YES. 

         7    Q.   NOW, IS THAT THE ADDITIONAL INFORMATION YOU'RE REFERRING 

         8    TO OR WAS THERE MORE THAN THAT? 

         9    A.   PRINCIPALLY THAT SORT OF INFORMATION. 

        10    Q.   OKAY.  AND WHAT -- OKAY. 

        11               IN THE THIRD PARAGRAPH YOU SAY: 

        12                   "ACCORDING TO CMR'S STUDY FOR 1999, THE 

        13               REVENUE GENERATED FROM ADVERTISING IN THE 

        14               INDEPENDENT LAST YEAR WAS APPROXIMATELY 

        15               $6 MILLION.  BY CONTRAST, THE COMBINED 

        16               ADVERTISING REVENUE GENERATED BY THE EXAMINER 

        17               AND THE CHRONICLE UNDER THE JOINT OPERATING 

        18               AGREEMENT LAST YEAR WAS APPROXIMATELY 

        19               $307 MILLION." 

        20               DO YOU SEE THAT? 

        21    A.   YES. 

        22    Q.   OKAY.  WHAT WAS THE SIGNIFICANCE OF THAT TO YOU, THAT THE 

        23    INDEPENDENT'S REVENUE FOR 1999 FROM ADVERTISING WAS $6 MILLION, 

        24    WHEREAS THE REVENUE OF THE EXAMINER AND THE CHRONICLE WAS 

        25    307 MILLION? 



                                                                         1215
                                 FLOOD - DIRECT / SHULMAN 


         1    A.   THE SIGNIFICANCE IS THAT THE INDEPENDENT PUBLISHING THREE 

         2    TIMES A WEEK, AS I UNDERSTAND IT, GENERATED $6 MILLION WORTH OF 

         3    ADVERTISING, WHICH IS A VERY LOW AMOUNT OF REVENUE GENERATED IN 

         4    THIS MARKET.  AND IT TOLD ME THAT THE EXPERTISE THAT'S GOING TO 

         5    BE NEEDED TO MAKE THE EXAMINER SUCCEED DOES NOT EXIST IN THE 

         6    PRESENT INDEPENDENT SET UP. 

         7               WE ALSO EXAMINED THE PENETRATION OF MAJOR 

         8    ADVERTISERS BY BOTH NEWSPAPERS AND FOUND THAT -- AND THIS IS 

         9    WHERE A LOCAL PAPER -- REALLY IT'S VERY IMPORTANT THAT THE 

        10    RETAIL ADVERTISING, THE LOCAL ADVERTISING IS A LARGE PART OF 

        11    THE PAPER'S BUSINESS AND YOU SHOULD BE ABLE TO GENERATE A LOT 

        12    OF THAT SORT OF BUSINESS. 

        13               SO WHAT THIS TOLD ME WAS THAT THE EXISTING 

        14    INDEPENDENT DOES NOT HAVE, IN MY OPINION, THE CONTACTS WITHIN 

        15    THESE MAJOR ADVERTISERS TO GET A GOOD, FAST START TO PUBLISHING 

        16    A NEW EXAMINER BY CONVERTING THESE ADVERTISERS TO THE NEW 

        17    EXAMINER. 

        18    Q.   OKAY.  YOU MENTIONED SOMETHING ABOUT A STUDY OF THE 

        19    PENETRATION WITH MAJOR ADVERTISERS. 

        20    A.   YES. 

        21    Q.   EXPLAIN WHAT YOU MEANT BY THAT. 

        22    A.   WHAT I MEANT BY THAT WAS AN ANALYSIS OF THE MAJOR 

        23    ADVERTISERS IN THIS MARKET THAT ARE CURRENTLY CARRIED BY THE 

        24    EXAMINER AND CHRONICLE COMBINATION AS COMPARED TO THOSE CARRIED 

        25    BY THE INDEPENDENT. 



                                                                         1216
                                 FLOOD - DIRECT / SHULMAN 


         1    Q.   DID YOU HAVE A LIST OF WHO THE MAJOR ADVERTISERS WERE FOR 

         2    THE CHRONICLE AND THE EXAMINER? 

         3    A.   YES. 

         4    Q.   AND DID YOU HAVE A LIST OF WHO THE ADVERTISERS WERE FOR 

         5    THE INDEPENDENT? 

         6    A.   YES. 

         7    Q.   AND DID YOU SEE WHAT NAMES APPEARED ON BOTH LISTS? 

         8    A.   YES. 

         9    Q.   OKAY.  AND WHAT DID YOU FIND? 

        10    A.   WE FOUND THAT SOME DID APPEAR.  AND NOW WE'RE TALKING 

        11    ABOUT SPECIFIC ACCOUNTS, NOT VOLUME OF ADVERTISING -- 

        12    Q.   RIGHT. 

        13    A.   -- FOR THESE MAJORS. 

        14               WE FOUND THAT -- I DON'T RECALL WITHOUT LOOKING AT 

        15    SOME NOTES THAT I HAD, EXACTLY WHAT THE BREAKDOWN WAS, BUT I DO 

        16    RECALL THAT THE ADVERTISERS THAT ARE GOING TO MAKE THE NEW 

        17    EXAMINER A SUCCESSFUL NEWSPAPER WERE NOT ON THE EXISTING LIST 

        18    OF THE INDEPENDENT.  IN OTHER WORDS, THERE WAS NO PENETRATION 

        19    OF THE ACCOUNTS LIKE BLOOMINGDALES, LIKE NORDSTROM, LIKE THE 

        20    TYPES OF UPSCALE ADVERTISING THAT A METROPOLITAN NEWSPAPER DOES 

        21    NEED TO BE ABLE TO PUBLISH IN THIS NEWSPAPER TO BE SUCCESSFUL. 

        22    Q.   OKAY.  NOW, PARAGRAPH 4 OF YOUR SECOND DECLARATION SAYS, 

        23    QUOTE: 

        24                   "BASED ON MY EXPERIENCE, IN ORDER TO PRODUCE 

        25               A VIABLE COMPETITIVE DAILY NEWSPAPER, THE 



                                                                         1217
                                 FLOOD - DIRECT / SHULMAN 


         1               EXAMINER WILL INCUR AT A MINIMUM APPROXIMATELY 

         2               $7.5 MILLION IN ANNUAL COSTS JUST TO COVER 

         3               EXPENSES FOR ITS ADVERTISING DEPARTMENT," END OF 

         4               QUOTE. 

         5               HOW DID YOU ARRIVE AT THE SEVEN AND A HALF MILLION 

         6    DOLLARS OF ANNUAL COSTS IN ORDER TO STAFF THE ADVERTISING 

         7    DEPARTMENT? 

         8    A.   USING THE 98 PEOPLE ON STAFF THAT WE IDENTIFIED PREVIOUSLY 

         9    IN THE HUNDRED THOUSAND CIRCULATION NEWSPAPER, AND USING A 

        10    NUMBER WHICH IS ACCEPTED IN THIS MARKET, THAT IT COSTS ABOUT 

        11    $65,000 PER EMPLOYEE, THAT INCLUDES SALARY, BENEFITS, 

        12    COMMISSIONS, VACATION, ALL THE OTHER ITEMS THAT GO INTO THE 

        13    COST OF AN EMPLOYEE, BY TAKING THE 98 EMPLOYEES AND TAKING THAT 

        14    65,000, WE CAME UP WITH A NUMBER TO WHICH WE ADD THE 

        15    PROMOTIONAL MONIES THAT WOULD HAVE TO BE SPENT IN ORDER TO 

        16    PROMOTE THE ADVERTISING TO THE ADVERTISING COMMUNITY IN THE 

        17    MARKET AND OTHER EXPENSES, SUCH AS TRAVEL EXPENSES TO OTHER 

        18    MARKETS TO SECURE NATIONAL ADVERTISING. 

        19    Q.   OKAY.  THEN YOU SAY: 

        20                   "BASED UPON MY," PARAGRAPH 5, "BASED UPON MY 

        21               EXPERIENCE IN THE INDUSTRY AND THE INFORMATION 

        22               CITED IN MY PREVIOUS DECLARATION REGARDING THE 

        23               REPORTED TRANSACTION BETWEEN THE HEARST 

        24               CORPORATION AND PAN ASIA AFTER THE FOUR-MONTH 

        25               TRANSITION PERIOD ENDS, PAN ASIA IS MOST LIKELY 



                                                                         1218
                                 FLOOD - DIRECT / SHULMAN 


         1               TO GENERATE ONLY APPROXIMATELY $6 MILLION FROM 

         2               ADVERTISING PLACED IN THE EXAMINER DURING THE 

         3               FIRST YEAR." 

         4               NOW, CAN YOU EXPLAIN WHERE THAT $6 MILLION COMES 

         5    FROM? 

         6    A.   YES.  THE 6 MILLION COMES FROM AN EXTRAPOLATION OF THE 

         7    REVENUE THAT THE EXAMINER CONTRIBUTES TO THE COMBINATION ON A 

         8    YEARLY BASIS, WHICH IS ABOUT 42, $43 MILLION. 

         9               AND THEN WE LOOKED AT THE POSSIBILITIES OF 

        10    DEVELOPING -- AND THIS IS BASED ON EXPERIENCE THAT I'VE HAD IN 

        11    THIS BUSINESS, IT IS NOT A FORMULA -- BUT I LOOKED AND I SAID 

        12    THAT IN PUTTING TOGETHER THIS SORT OF A NEW NEWSPAPER AND 

        13    GENERATING WHATEVER REVENUE YOU POSSIBLY CAN, THE 43 OR 

        14    $42 MILLION THAT WAS PART OF THE COMBINATION, THAT WOULD NOT 

        15    BECOME AVAILABLE. 

        16               SO WHAT I SAID WAS IF SOME OF IT BECAME AVAILABLE, 

        17    LET'S TAKE A LOOK AT 15 PERCENT OF THAT 40 SOME ODD MILLION 

        18    DOLLARS, AND THAT'S WHERE THE 6 MILLION COMES FROM. 

        19    Q.   OKAY.  WHY DID YOU CHOOSE 15 PERCENT? 

        20    A.   THE FACT THAT A NEW PUBLICATION WITHOUT ANY CONTRACTS IN 

        21    PLACE WHEN THEY START, EXCEPT THE FOUR TO SIX WE TALKED ABOUT, 

        22    THE SUPPORT FOR ADVERTISING STARTS VERY, VERY SLOWLY AND THIS 

        23    PREVAILS IN NEWSPAPERS AND MAGAZINES AND ANY OTHER MEDIA YOU 

        24    CAN THINK OF BECAUSE THE ADVERTISER WILL SIT BACK AND SAY, 

        25    "TELL ME WHAT'S GOING TO HAPPEN, WHAT'S YOUR CIRCULATION GOING 



                                                                         1219
                                 FLOOD - DIRECT / SHULMAN 


         1    TO BE, WHAT ARE YOUR DEMOGRAPHICS GOING TO BE, WHAT ARE ALL THE 

         2    PIECES OF INFORMATION THAT I NEED IN ORDER TO MAKE AN 

         3    INTELLIGENT ADVERTISING DECISION." 

         4               WELL, YOU DON'T HAVE THAT ON A NEW PUBLICATION FROM 

         5    THE WORD GO, AND THE ADVERTISER -- AND I'VE BEEN THERE BECAUSE 

         6    WE DID LAUNCH A NEW PRODUCT IN NEW YORK FOR THE L.A. TIMES, AND 

         7    WE FOUND THIS EXACTLY SAME SITUATION -- THEY SAY, "WE LOVE YOUR 

         8    PROTOTYPE.  WE LOVE WHAT YOU'RE SHOWING US, BUT COME BACK IN 

         9    SIX OR EIGHT OR TEN OR A YEAR AND GIVE US THE DETAILED 

        10    INFORMATION THAT WE NEED ON DEMOGRAPHICS AND ON CIRCULATION 

        11    THAT WE NEED IN ORDER TO MAKE A DECISION." 

        12               FOR THAT REASON I SAID 15 PERCENT OF THE PRESENT 

        13    BUSINESS THAT IS GOING INTO THE EXAMINER -- INTO THE 

        14    COMBINATION IS PROBABLY A REASONABLE NUMBER, AND THAT'S BASED 

        15    ON EXPERIENCE, IT'S BASED ON SOME OF THE BACKGROUND INFORMATION 

        16    THAT I KNOW ABOUT HOW ADVERTISERS BUY ADVERTISING. 

        17    Q.   WHAT WAS THIS PRODUCT THAT YOU TRIED TO DO IN NEW YORK FOR 

        18    THE DAILY NEWS? 

        19    A.   THIS WAS A PRODUCT FOR THE L.A. TIMES. 

        20    Q.   SORRY, FOR THE L.A. TIMES. 

        21    A.   YES. 

        22    Q.   WHAT WAS THAT PRODUCT? 

        23    A.   IT WAS CALLED WEST MAGAZINE. 

        24    Q.   AND WHAT WAS THE -- AND YOU MENTIONED THE EXPERIENCE YOU 

        25    HAD WITH ADVERTISERS WAS THAT THEY WANTED TO KNOW ABOUT THE 



                                                                         1220
                                 FLOOD - DIRECT / SHULMAN 


         1    CIRCULATION FIRST? 

         2    A.   WELL, THEY KNEW THE CIRCULATION BECAUSE IT WAS RUNNING IN 

         3    A SUNDAY PAPER AND THAT WAS DIFFERENT FROM WHAT WE'RE TALKING 

         4    ABOUT NOW. 

         5               BUT WHAT THEY REALLY WANTED TO KNOW WAS, WHAT WAS 

         6    THE EDITORIAL SENSE, THE EDITORIAL DIRECTION, THE TYPES OF 

         7    FEATURES THAT WOULD RUN IN THIS MAGAZINE; AND THEY ALSO WANTED 

         8    TO KNOW IF THE DEMOGRAPHICS FOR THIS MAGAZINE WILL BE DIFFERENT 

         9    FROM THE NEWSPAPER ITSELF.  SO THESE ARE SOME OF THE THINGS 

        10    THAT WERE REQUIRED IN ORDER TO GET THAT MAGAZINE GOING, WHICH 

        11    WE DID GET IT GOING EVENTUALLY. 

        12    Q.   NOW, I THINK YOU SAID THAT YOU TOOK A FIGURE OF 

        13    $42 MILLION AS WHAT YOU -- YOU DEEMED THAT TO BE THE 

        14    CONTRIBUTION OF THE EXAMINER TO THE ADVERTISING REVENUES OF THE 

        15    AGENCY. 

        16    A.   YES. 

        17    Q.   OKAY.  AND YOU HAD SAID BEFORE THAT 98 PERCENT OF THE 

        18    ADVERTISING WAS SOLD IN COMBINATION; RIGHT? 

        19    A.   RIGHT. 

        20    Q.   AND THE TOTAL WAS 307 MILLION OF REVENUE. 

        21    A.   RIGHT. 

        22    Q.   OKAY.  HOW DID YOU COME UP, THEN, WITH THE $42 MILLION AS 

        23    BEING WHAT YOU TOOK AS THE EXAMINER'S CONTRIBUTION TO THE 

        24    AGENCY?  BECAUSE THAT'S CERTAINLY MORE THAN 2 PERCENT; RIGHT? 

        25    A.   OH, YES, IT IS. 



                                                                         1221
                                 FLOOD - DIRECT / SHULMAN 


         1    Q.   OKAY.  OKAY.  EXPLAIN HOW YOU GOT THERE. 

         2    A.   THE RATE DIFFERENTIAL BETWEEN BUYING THE CHRONICLE ALONE 

         3    AND BUYING THE COMBINATION IS ABOUT 14 PERCENT.  IN OTHER 

         4    WORDS, THE ADVERTISER THAT IS CONTEMPLATING BUYING THE 

         5    CHRONICLE ONLY, AND THIS IS THE SALES STRATEGY THAT THE STAFF 

         6    AT THE AGENCY ALWAYS USED, IN WHICH THEY SAID THAT YOU CAN ADD 

         7    THE OTHER NEWSPAPER FOR ABOUT 14 PERCENT EXTRA REVENUE OVER AND 

         8    ABOVE WHAT YOU'RE GOING TO PAY TO GET INTO THE CHRONICLE, AND 

         9    THAT'S WHERE THAT 14 PERCENT CAME FROM. 

        10    Q.   SO THE SINGLE -- FOR AN ADVERTISER PAYING 14 PERCENT 

        11    MORE -- AN ADVERTISER WHO WANTED TO ADVERTISE IN THE CHRONICLE, 

        12    IF THE ADVERTISER PAID 14 PERCENT MORE, THE ADVERTISER COULD 

        13    HAVE BOTH PAPERS; IS THAT -- 

        14    A.   YES. 

        15    Q.   SO THAT'S WHY YOU TOOK -- THAT'S -- SO YOU TOOK THAT 

        16    14 PERCENT? 

        17    A.   RIGHT. 

        18    Q.   AND YOUR FURTHER CALCULATION WAS THAT IF THE FANGS GOT THE 

        19    EXAMINER AND STARTED NEW, THEY MIGHT BE ABLE TO KEEP 15 PERCENT 

        20    OF THAT? 

        21    A.   RIGHT. 

        22    Q.   OKAY.  NOW, IN YOUR -- 

        23               THE COURT:  15 PERCENT OF? 

        24               MR. SHULMAN:  THE 42. 

        25               THE COURT:  THE 42? 



                                                                         1222
                                 FLOOD - DIRECT / SHULMAN 


         1               MR. SHULMAN:  MILLION DOLLARS. 

         2               THE WITNESS:  THAT'S THE FIRST YEAR.  THE FIRST 

         3    YEAR. 

         4    BY MR. SHULMAN: 

         5    Q.   AND THAT WOULD GIVE THEM $6 MILLION? 

         6    A.   RIGHT. 

         7    Q.   ALL RIGHT.  IN YOUR FIRST DECLARATION, PARAGRAPH 4, THIS 

         8    IS EXHIBIT 56, SECOND PAGE, PARAGRAPH 4, YOU SAY: 

         9                   "BASED UPON THOSE FACTS, IN MY EXPERIENCE IN 

        10               THE INDUSTRY THE PRESENT SUBSIDY BY HEARST WILL 

        11               NOT UNDER ANY CIRCUMSTANCES BE ABLE TO SUPPORT 

        12               THE PROBABILITY OR EVEN THE POSSIBILITY OF A 

        13               VIABLE PAPER WHICH WOULD BE COMPETITIVE TO THE 

        14               CHRONICLE.  IN ORDER TO PRODUCE A VIABLE 

        15               COMPETITIVE PAPER, ANY BUYER OF THE EXAMINER 

        16               WOULD NEED A SUBSIDY OF $50 MILLION FOR FIVE 

        17               YEARS OR A ONE-TIME PAYMENT OF $250 MILLION." 

        18               DO YOU SEE THAT? 

        19    A.   YES. 

        20    Q.   OKAY.  AND THAT IS YOUR OPINION? 

        21    A.   YES. 

        22    Q.   AND HAVE YOU TOLD US ON THE WITNESS STAND HERE IN COURT 

        23    TODAY THE BASIS FOR THAT OPINION? 

        24    A.   SOME OF THE INFORMATION THAT WE'VE ALREADY DISCUSSED FED 

        25    INTO THIS DECISION. 



                                                                         1223
                                  FLOOD - CROSS / HUSTON 


         1    Q.   IS THERE ANYTHING ELSE? 

         2    A.   NOTHING ELSE, NO. 

         3               MR. SHULMAN:  THANK YOU.  I HAVE NO FURTHER 

         4    QUESTIONS, YOUR HONOR. 

         5               THE COURT:  THANK YOU, MR. SHULMAN. 

         6               MR. HUSTON:  MR. HUSTON, YOUR HONOR. 

         7               THE COURT:  YES, MR. HUSTON. 

         8               MR. HUSTON:  YOUR HONOR, MAY I APPROACH THE WITNESS? 

         9               THE COURT:  YES, YOU MAY.   

        10                           CROSS-EXAMINATION 

        11    BY MR. HUSTON: 

        12    Q.   GOOD AFTERNOON, MR. FLOOD. 

        13    A.   GOOD AFTERNOON. 

        14    Q.   YOU WERE AT THE MARCH 25TH MEETING, IT WAS AN ALL DAY 

        15    MEETING OF THE NEWSPAPER EXPERTS ASSEMBLED BY MR. REILLY; IS 

        16    THAT CORRECT? 

        17    A.   YES. 

        18    Q.   AND THE COURT HAS ALREADY HEARD FROM A NUMBER OF THOSE 

        19    PEOPLE, MR. CLANCY AND MR. PAGE, MR. OSBORN.  WERE YOU IN COURT 

        20    LAST WEEK FOR MR. OSBORN'S TESTIMONY? 

        21    A.   NO.  THIS IS MY FIRST TIME IN COURT. 

        22    Q.   WELCOME. 

        23               MR. OSBORN TESTIFIED THAT EVERYONE AT THAT MEETING 

        24    WAS EMPHATIC THAT THE EXAMINER WAS CURRENTLY OPERATING AT A 

        25    LOSS.  IS THAT YOUR RECOLLECTION AS WELL? 



                                                                         1224
                                  FLOOD - CROSS / HUSTON 


         1    A.   YES. 

         2    Q.   AND IT'S YOUR OPINION THAT THE EXAMINER WOULD NEED A 

         3    SUBSIDY OF 250 MILLION SPREAD OVER FIVE YEARS IN ORDER TO BE 

         4    ABLE TO SURVIVE; IS THAT CORRECT? 

         5    A.   CORRECT. 

         6    Q.   AND HEARST ITSELF WOULD NEED THAT SORT OF SUBSIDY IF IT 

         7    TRIED TO OPERATE THE EXAMINER WITHOUT THE JOINT OPERATING 

         8    AGREEMENT; IS THAT CORRECT?  ISN'T THAT WHAT YOU TOLD ME IN 

         9    YOUR DEPOSITION, MR. FLOOD? 

        10    A.   YES. 

        11    Q.   AND THAT'S WHAT YOU BELIEVE TODAY? 

        12    A.   YES. 

        13    Q.   AND AT LEAST PART OF THE REASON THAT THE EXAMINER COULD 

        14    NOT SURVIVE WITHOUT A HUGE SUBSIDY, AS YOU'VE DISCUSSED TODAY, 

        15    IS THE INABILITY IT WOULD HAVE IN ATTRACTING ADVERTISING 

        16    REVENUE; CORRECT? 

        17    A.   CORRECT. 

        18    Q.   AND YOU, AS YOU'VE JUST DISCUSSED, WENT THROUGH A 

        19    CALCULATION WHEREBY YOU ATTRIBUTED ADVERTISING REVENUE TO THE 

        20    EXAMINER AND TO THE CHRONICLE; CORRECT? 

        21    A.   YES. 

        22    Q.   AND YOU BELIEVE THAT THAT ANALYSIS IS RELIABLE; DO YOU 

        23    NOT? 

        24    A.   YES. 

        25    Q.   AND YOU CAME TO THE CONCLUSION THAT THE ADVERTISING 



                                                                         1225
                                  FLOOD - CROSS / HUSTON 


         1    REVENUE THAT IS CURRENTLY ATTRIBUTABLE TO THE EXAMINER IS 

         2    14 PERCENT? 

         3    A.   YES. 

         4    Q.   AND THE PRIMARY BUY, AS THAT TERM IS USED IN THE 

         5    ADVERTISING WORLD, IS THE CHRONICLE AND THE SECONDARY BUY IS 

         6    THE EXAMINER; IS THAT CORRECT? 

         7    A.   PARTIALLY CORRECT. 

         8    Q.   IF YOU BOUGHT THE CHRONICLE, THAT'S WHAT THE ADVERTISERS 

         9    ARE REALLY AFTER AND THEN THEY ADD ON THE EXAMINER FOR A 

        10    NOMINAL CHARGE; ISN'T THAT RIGHT? 

        11    A.   YES. 

        12    Q.   AND EVEN THOUGH THE EXAMINER WAS OFFERED AT A DISCOUNT TO 

        13    ADVERTISERS, WHILE YOU WORKED AT THE AGENCY, YOU HAD A 

        14    DIFFICULT TIME SELLING ADVERTISEMENTS IN THE EXAMINER; IS THAT 

        15    CORRECT? 

        16    A.   CORRECT. 

        17    Q.   YOU'VE STATED THAT WHEN YOU WERE SELLING ADVERTISING AT 

        18    THE SAN FRANCISCO NEWSPAPER AGENCY, FROM TIME TO TIME YOU HAD 

        19    TO GO OUT WITH A FIRE EXTINGUISHER TO PUT OUT THE FLARE-UPS 

        20    FROM ADVERTISERS WHO WANTED TO DROP THE EXAMINER; ISN'T THAT 

        21    RIGHT? 

        22    A.   YES. 

        23    Q.   AND IN YOUR OPINION A STAND-ALONE EXAMINER WOULD REQUIRE 

        24    $45 MILLION IN ADVERTISING REVENUE TO HAVE A CHANCE AT SUCCESS; 

        25    ISN'T THAT RIGHT? 



                                                                         1226
                                  FLOOD - CROSS / HUSTON 


         1    A.   RIGHT. 

         2    Q.   AND YOU BELIEVE THAT WOULD BE VERY, VERY DIFFICULT FOR THE 

         3    EXAMINER TO DO THAT ON A STAND-ALONE BASIS; CORRECT? 

         4    A.   YES, VERY DIFFICULT. 

         5    Q.   NOW, ADVERTISING REVENUE IS DRIVEN BY CIRCULATION; ISN'T 

         6    THAT RIGHT? 

         7    A.   TO A CERTAIN EXTENT. 

         8    Q.   AND ON THE CIRCULATION FRONT, THE EXAMINER FACES 

         9    COMPETITION FROM A NUMBER OF SOURCES; CORRECT? 

        10    A.   YES. 

        11    Q.   AND THOSE INCLUDE THE SUBURBAN DAILY NEWSPAPERS? 

        12    A.   YES. 

        13    Q.   AND THOSE WOULD INCLUDE NATIONAL PAPERS LIKE THE NEW YORK 

        14    TIMES? 

        15    A.   YES. 

        16    Q.   IT WOULD ALSO INCLUDE RADIO, LOCAL RADIO? 

        17    A.   YES. 

        18    Q.   AND CABLE TELEVISION? 

        19    A.   YES. 

        20    Q.   BROADCAST TELEVISION? 

        21    A.   SPOT TELEVISION AND BROADCAST, YES. 

        22               MR. HUSTON:  I HAVE NO FURTHER QUESTIONS, YOUR 

        23    HONOR. 

        24               THE COURT:  VERY WELL.  MR. HOCKETT. 

        25    



                                                                         1227
                                  FLOOD - CROSS / HOCKETT 


         1                           CROSS-EXAMINATION 

         2    BY MR. HOCKETT: 

         3    Q.   GOOD AFTERNOON, MR. FLOOD. 

         4    A.   GOOD AFTERNOON. 

         5    Q.   I'M CHRIS HOCKETT.  I REPRESENT EXIN LLC. 

         6               YOU HAVE GIVEN SWORN TESTIMONY IN TWO PREVIOUS 

         7    DISPUTES; HAVE YOU NOT? 

         8    A.   YES. 

         9    Q.   AND BOTH TIMES YOU TESTIFIED, THE FANG FAMILY WAS ON THE 

        10    OTHER SIDE; CORRECT? 

        11    A.   YES. 

        12    Q.   YOU WERE FIRST HIRED TO HELP MR. REILLY WITH HIS POTENTIAL 

        13    BID FOR THE EXAMINER; IS THAT CORRECT? 

        14    A.   YES. 

        15    Q.   AND THEN THAT ASSIGNMENT CHANGED INTO HELPING, AS YOU PUT 

        16    IT IN YOUR DEPOSITION, EXPOSE THE DEAL THAT THE FANG FAMILY 

        17    MADE WITH HEARST AS A SITUATION WHERE IT WOULD BE DIFFICULT FOR 

        18    THE EXAMINER TO SUCCEED; RIGHT? 

        19    A.   CORRECT. 

        20    Q.   SO YOU'RE HERE TO TRY TO EXPOSE THE DEAL? 

        21    A.   NOT EXPOSE THE DEAL.  EXPOSE THE FACT THAT THE DEAL IS NOT 

        22    WORKABLE. 

        23    Q.   LET'S LOOK AT PLAINTIFF'S EXHIBIT 56, YOUR DECLARATION.  

        24    THAT IS THE FIRST DECLARATION.   

        25               YOU EXECUTED THAT DECLARATION AT THE MEETING WE'VE 



                                                                         1228
                                  FLOOD - CROSS / HOCKETT 


         1    HEARD SO MUCH ABOUT ON MARCH 25TH AMONG MR. REILLY'S EXPERTS? 

         2    A.   YES. 

         3    Q.   AND THE NUMBERS IN THAT DECLARATION WITH REGARD TO THE 

         4    SUBSIDY, AND I DRAW YOUR ATTENTION TO PARAGRAPH 4, YOU DIDN'T 

         5    COME UP WITH THOSE NUMBERS YOURSELF; DID YOU, SIR? 

         6    A.   THE 50 MILLION? 

         7    Q.   YES. 

         8    A.   I DO AGREE WITH THAT 50 MILLION NUMBER. 

         9    Q.   YOU DIDN'T COME UP WITH THEM YOURSELF; DID YOU, SIR? 

        10    A.   NO. 

        11    Q.   AND YOU PERFORMED NO CALCULATIONS RELATING TO THOSE 

        12    NUMBERS; CORRECT? 

        13    A.   CORRECT. 

        14    Q.   YOU RELIED ON THE OTHERS INPUT FOR YOUR CONCLUSIONS; 

        15    CORRECT? 

        16    A.   ON THE $50 MILLION. 

        17    Q.   YES.  CORRECT? 

        18    A.   CORRECT. 

        19    Q.   AND THAT INPUT WAS, AS I GATHER, YOU WERE DISCUSSING THE 

        20    FINANCIAL SUPPORT THAT WAS TO BE MADE AVAILABLE FOR THE FANG 

        21    FAMILY INTERESTS BY HEARST AND SOMEONE SAID THAT IT WOULD HAVE 

        22    TO BE DOUBLED.  DO YOU RECALL THAT? 

        23    A.   WORDS TO THAT EFFECT, YES. 

        24    Q.   AND EVERYBODY PRESENT AGREED; CORRECT? 

        25    A.   YES. 



                                                                         1229
                                  FLOOD - CROSS / HOCKETT 


         1    Q.   AND THAT INCLUDED MR. PAGE, MR. OSBORN, MR. INGRAM, 

         2    MR. CLANCY, MR. WEAVER, MR. BARLETTA, MR. REILLY AND, OF 

         3    COURSE, HIS ATTORNEYS; CORRECT? 

         4    A.   YES. 

         5    Q.   NOW, YOU HAVE RELIED ON THE CMR REPORT AS A BASIS FOR YOUR 

         6    ASSESSMENT THAT PAN ASIA WOULD HAVE DIFFICULTY GENERATING 

         7    SUFFICIENT AD REVENUE IN ITS FIRST YEAR; CORRECT? 

         8    A.   CORRECT. 

         9    Q.   BUT YOU DON'T KNOW HOW CMR GETS ITS DATA; CORRECT? 

        10    A.   I DO NOT KNOW SPECIFICALLY, BUT IT IS ACCEPTED BY ALL THE 

        11    NEWSPAPER CHAINS AND NEWSPAPERS. 

        12    Q.   BUT YOU DON'T KNOW HOW IT'S GATHERED; CORRECT? 

        13    A.   I DON'T KNOW SPECIFICALLY WHAT THE FORMULA IS. 

        14    Q.   AND WOULD YOU AGREE WITH ME IF THE CMR DATA IS FOR SOME 

        15    REASON NOT ACCURATE, NEITHER WOULD BE ANY CONCLUSIONS THAT YOU 

        16    DREW THAT WERE BASED ON THAT DATA; CORRECT? 

        17    A.   MY CONCLUSIONS WERE ONLY PARTIALLY BASED ON THE CMR DATA.  

        18    IT WAS BASED ON OTHER THINGS ALSO. 

        19    Q.   SO TO THE EXTENT THAT YOUR CONCLUSIONS ARE BASED ON THE 

        20    CMR DATA, IF THE CMR DATA TURNED OUT TO BE WRONG, SO WOULD YOUR 

        21    CONCLUSIONS; CORRECT? 

        22    A.   AS FAR AS THAT PIECE OF THE PUZZLE IS CONCERNED. 

        23    Q.   NOW, MR. REILLY IS NOT IN THE NEWSPAPER BUSINESS; IS HE? 

        24    A.   NOT THAT I KNOW OF. 

        25    Q.   SO HIS NEWSPAPER ADVERTISING REVENUES IN 1999 WOULD BE 



                                                                         1230
                                  FLOOD - CROSS / HOCKETT 


         1    ZERO; WOULDN'T THEY? 

         2    A.   YES. 

         3    Q.   AND HE WOULD HAVE NO ADVERTISING RELATIONSHIPS WITH 

         4    NEWSPAPER ADVERTISERS, MAJOR OR MINOR; CORRECT? 

         5    A.   I DON'T KNOW THAT. 

         6    Q.   DO YOU KNOW OF ANY SUCH RELATIONSHIPS? 

         7    A.   I THINK I WOULD BE SPECULATING, BUT I WOULD IMAGINE THAT 

         8    IN HIS PREVIOUS PROFESSION AS A POLITICAL CONSULTANT HE WOULD 

         9    HAVE HAD A LOT OF INVOLVEMENT WITH NEWSPAPERS. 

        10    Q.   AND DO YOU BELIEVE -- DO YOU HAVE ANY REASON TO BELIEVE 

        11    THAT MR. REILLY HAS RELATIONSHIPS WITH ADVERTISING PEOPLE AT 

        12    MACY'S? 

        13    A.   I DON'T HAVE ANY REASON. 

        14    Q.   OR ANY OTHER ADVERTISERS, SIR? 

        15    A.   NO. 

        16    Q.   WITH REGARD TO PAN ASIA, YOU HAVE NO PERSONAL KNOWLEDGE OF 

        17    THE INDEPENDENT'S OPERATIONS, CORRECT, THE SAN FRANCISCO 

        18    INDEPENDENT? 

        19    A.   I'VE SEEN THE PRODUCT. 

        20    Q.   OTHER THAN THAT, YOU HAVE NO PERSONAL KNOWLEDGE OF HOW 

        21    IT'S OPERATED? 

        22    A.   NO. 

        23    Q.   AND YOU HAVE NO INFORMATION ABOUT THE FANG FAMILY'S 

        24    INTENTIONS FOR THE NEW EXAMINER; DO YOU? 

        25    A.   NO, I DON'T. 



                                                                         1231
                                  FLOOD - CROSS / HOCKETT 


         1    Q.   AND YOU HAVE NO INFORMATION ABOUT THE CURRENT COST 

         2    STRUCTURE OF THEIR OPERATIONS; CORRECT? 

         3    A.   CORRECT. 

         4    Q.   AND YOU HAVE NO IDEA WHAT SORT OF NEWSPAPER IT WOULD TAKE 

         5    TO BE COMPETITIVE WITH THE CHRONICLE; CORRECT? 

         6    A.   YES, I DO HAVE SOME IDEAS OF WHAT IT WOULD TAKE. 

         7    Q.   TAKE A LOOK AT PAGE 68 OF YOUR DEPOSITION, PLEASE.  I 

         8    WOULD LIKE TO READ LINES 20 THROUGH 22. 

         9               THE COURT:  PAGE REFERENCE AGAIN, COUNSEL? 

        10               MR. HOCKETT:  PAGE 68. 

        11               THE COURT:  THANK YOU. 

        12               MR. HOCKETT:  "Q.  DO YOU HAVE AN IDEA OF WHAT SORT  

        13               OF NEWSPAPER IT WOULD TAKE TO BE COMPETITIVE 

        14               WITH THE CHRONICLE? 

        15                   "A.  NO, I DON'T." 

        16    Q.   WERE YOU ASKED THAT QUESTION AND DID YOU GIVE THAT ANSWER? 

        17    A.   YES, I DID. 

        18    Q.   ONE THING YOU ARE SURE OF IS THAT IT WOULD TAKE A 

        19    50 MILLION-DOLLAR SUBSIDY FROM HEARST FOR WHATEVER THE 

        20    NEWSPAPER PRODUCT WOULD LOOK LIKE TO SUCCEED; IS THAT CORRECT? 

        21    A.   CORRECT. 

        22    Q.   NOW, YOU HAVE NEVER DONE A PROFIT AND LOSS STATEMENT FOR 

        23    THE CIRCULATION DEPARTMENT OF A NEWSPAPER; CORRECT? 

        24    A.   CORRECT. 

        25    Q.   AND YOU HAVE NEVER DONE A PROFIT AND LOSS STATEMENT FOR 



                                                                         1232
                                  FLOOD - CROSS / HOCKETT 


         1    THE DISTRIBUTION FUNCTION OF A NEWSPAPER; CORRECT? 

         2    A.   CORRECT. 

         3    Q.   AND THE SAME QUESTION FOR THE NEWSROOM FUNCTIONS OF THE 

         4    NEWSPAPER? 

         5    A.   CORRECT. 

         6    Q.   YOU HAVE ASSUMED IN YOUR CALCULATIONS AN AD DEPARTMENT 

         7    CONSISTING OF AT LEAST 98 PERSONS; IS THAT RIGHT? 

         8    A.   YES. 

         9    Q.   AND FROM THAT YOU DERIVE AN ANNUAL COST OF AROUND SEVEN 

        10    AND A HALF MILLION; CORRECT? 

        11    A.   YES. 

        12    Q.   IF THERE WERE FEWER PEOPLE, THE EXPENSES WOULD BE LOWER; 

        13    WOULDN'T THEY? 

        14    A.   THE EXPENSES WOULD BE LOWER, BUT THE RESULTS WOULD BE ALSO 

        15    LOWER. 

        16    Q.   THE EXPENSES WOULD BE LOWER; WOULDN'T THEY? 

        17    A.   YES. 

        18    Q.   AND YOUR CALCULATIONS DO NOT ALLOW FOR ANY SYNERGIES THAT 

        19    THE FANGS MIGHT BE ABLE TO ACHIEVE IN OPERATING THEIR EXISTING 

        20    NEWSPAPERS AND THE EXAMINER TOGETHER; DO THEY?  THAT'S A 

        21    YES-OR-NO QUESTION. 

        22    A.   I NEED SOME INFORMATION ON THE QUESTION.  ARE YOU 

        23    REFERRING TO THE ADVERTISING DEPARTMENT OR TO THE WHOLE 

        24    OPERATION?   

        25    Q.   ANY PART OF THE OPERATION. 



                                                                         1233
                                  FLOOD - CROSS / HOCKETT 


         1    A.   COULD YOU STATE THE QUESTION AGAIN, PLEASE? 

         2    Q.   YOUR CALCULATIONS DO NOT ALLOW FOR ANY SYNERGIES THAT THE 

         3    FANGS MIGHT BE ABLE TO ACHIEVE IN OPERATING THEIR EXISTING 

         4    PAPERS AND THE EXAMINER? 

         5    A.   THEY DO NOT. 

         6    Q.   NOW, MR. INGRAM PROPOSED AN ADVERTISING REVENUE OF 

         7    $47 MILLION, AND I'LL SHOW YOU THE PAGE FROM HIS REPORT, WHICH 

         8    IS PLAINTIFF'S 20 AT PAGE 177, R177. 

         9               EXHIBIT 20 AT PAGE R177 STATES THAT THE 

        10    ADVERTISING -- TOTAL ADVERTISING REVENUE WOULD BE 47 MILLION 

        11    AND CHANGE.  DO YOU SEE THAT? 

        12    A.   YES. 

        13    Q.   THESE WERE NUMBERS THAT MR. INGRAM TESTIFIED HE GOT FROM 

        14    MR. BEIHOFF. 

        15    A.   YES. 

        16    Q.   AND HE TESTIFIED THAT HE ARBITRARILY REDUCED THEM BY 

        17    25 PERCENT.  DO YOU RECALL THAT TESTIMONY? 

        18    A.   I DID NOT HEAR HIS TESTIMONY. 

        19    Q.   OKAY. 

        20               MR. HOCKETT:  MAY I APPROACH THE EASEL, YOUR HONOR? 

        21               THE COURT:  YES, YOU MAY. 

        22    BY MR. HOCKETT: 

        23    Q.   MR. INGRAM DID TESTIFY THAT HE REDUCED THE BEIHOFF NUMBERS 

        24    BY 25 PERCENT.  I'M JUST GOING TO PUT "AD REVENUE, BEIHOFF."   

        25               IF YOU BUILD THAT 25 PERCENT BACK IN TO THE 



                                                                         1234
                                  FLOOD - CROSS / HOCKETT 


         1    47 MILLION-DOLLAR NUMBER, YOU GET ABOUT $64 MILLION.  

         2    MR. INGRAM ARBITRARILY REDUCED THAT BY 25 PERCENT TO 

         3    $47 MILLION.   

         4               AND CAN YOU TELL ME WHAT YOUR ASSUMPTION IS FOR THE 

         5    ANNUAL AD REVENUES? 

         6    A.   FOR THE NEW EXAMINER? 

         7    Q.   YES. 

         8    A.   FIRST YEAR APPROXIMATELY $6 MILLION. 

         9    Q.   6 MILLION.  NOW, THIS (INDICATING) REPRESENTS A 25 PERCENT 

        10    REDUCTION FROM THE BEIHOFF NUMBERS.  DO YOU HAVE ANY IDEA WHAT 

        11    THAT (INDICATING) REPRESENTS TO GO FROM THE BEIHOFF NUMBER OF 

        12    64 MILLION TO 6 MILLION?  IT'S OVER 90 PERCENT; ISN'T IT? 

        13    A.   LOOKS THAT WAY, YEAH. 

        14    Q.   BUT IN SPITE OF ALL THOSE DIFFERENCES IN THE AD REVENUE 

        15    ASSUMPTIONS, MR. FLOOD, EVERYBODY AGREES, DON'T THEY, ALL THE 

        16    EXPERTS FOR MR. REILLY, THAT THE PROPER SUBSIDY IS $50 MILLION 

        17    A YEAR OR $250 MILLION UPFRONT PAYMENT? 

        18    A.   YES. 

        19               MR. HOCKETT:  I HAVE NOTHING FURTHER, YOUR HONOR. 

        20               THE COURT:  VERY WELL.  MR. HALLING, ANYTHING? 

        21               MR. HALLING:  NO QUESTIONS, YOUR HONOR. 

        22               THE COURT:  REDIRECT, MR. SHULMAN? 

        23               MR. SHULMAN:  YES, YOUR HONOR. 

        24    

        25    



                                                                         1235
                                FLOOD - REDIRECT / SHULMAN 


         1                         REDIRECT EXAMINATION 

         2    BY MR. SHULMAN: 

         3    Q.   AS LONG AS WE'VE GOT IT UP THERE, MR. FLOOD, DO YOU THINK 

         4    THERE'S ANY WAY IN THE WORLD THAT THE FANGS ARE GOING TO BE 

         5    ABLE TO GENERATE $64 MILLION IN AD REVENUE FOR THE EXAMINER? 

         6    A.   NO, I DON'T. 

         7    Q.   $47 MILLION? 

         8    A.   NO. 

         9    Q.   OKAY.  NOW, YOU WERE ASKED ABOUT WHAT YOU KNEW ABOUT THE 

        10    INTENTIONS OF THE FANGS OR PLANS OF THE FANGS WITH REGARD TO 

        11    THE EXAMINER.   

        12               WERE YOU IN COURT WHEN I READ THE TESTIMONY OF 

        13    MR. FANG IN HIS DEPOSITION AT PAGE 27 THAT HE HAS NOT PREPARED 

        14    ANYTHING THAT HE WOULD CALL A BUSINESS PLAN FOR THE EXAMINER? 

        15    A.   IF THAT WAS LATE THIS MORNING, I WAS HERE. 

        16    Q.   OKAY.  YOU WERE ALSO ASKED ABOUT SYNERGIES, WHETHER YOU 

        17    HAD CONSIDERED ANY SYNERGIES THAT THE INDEPENDENT MIGHT HAVE IF 

        18    IT -- WHEN IT TOOK OVER THE EXAMINER.  DO YOU REMEMBER BEING 

        19    ASKED THAT? 

        20    A.   YES, I DO. 

        21    Q.   OKAY.  I WANT TO READ YOU SOME TESTIMONY THAT MR. FANG 

        22    GAVE IN HIS DEPOSITION, THEN I'M GOING TO ASK YOU WHETHER THAT 

        23    LEADS YOU TO BELIEVE THERE ARE OR ARE NOT ANY SYNERGIES.  AND 

        24    IT'S AT PAGE 155, LINE 11, OF HIS DEPOSITION. 

        25               THE COURT:  GO AHEAD. 



                                                                         1236
                                FLOOD - REDIRECT / SHULMAN 


         1               MR. SHULMAN:  QUESTION -- WELL, LET'S START AT LINE 

         2    7 JUST FOR CONTEXT: 

         3                   "Q.  OKAY.  MR. FANG, I THINK YOU TESTIFIED 

         4               THIS MORNING THAT IT WAS YOUR DREAM TO OWN A 

         5               DAILY NEWSPAPER. 

         6                   "A.  YES, SIR. 

         7                   "Q.  OKAY.  WHY DIDN'T YOU JUST MAKE THE 

         8               INDEPENDENT A DAILY NEWSPAPER?" 

         9               AND THE ANSWER BEGINS ON LINE 17: 

        10                   "A.  YES, THE INDEPENDENT IS IN A DIFFERENT 

        11               MARKET THAN THE DAILY NEWSPAPER.  IT'S DELIVERED 

        12               TO EVERY HOME FREE OF CHARGE; AND AS I SAID 

        13               BEFORE, NEWSPAPERS ARE ADVERTISING DRIVEN.  THE 

        14               ADVERTISERS OF THE INDEPENDENT LOOK TO ADVERTISE 

        15               IN A NEWSPAPER THAT REACHES AS MANY HOMES AS 

        16               POSSIBLE.  THESE ADVERTISERS ARE ADVERTISERS 

        17               SUCH AS GROCERY STORES AND DRUGSTORES BECAUSE 

        18               EVERYBODY NEEDS TO BUY FOOD AND EVERYBODY NEEDS 

        19               TO BUY SHAMPOO OR ASPIRIN. 

        20                   "DAILY NEWSPAPERS DEPEND ON A DIFFERENT TYPE 

        21               OF ADVERTISER.  THOSE ADVERTISERS ARE LOOKING 

        22               FOR SUBSCRIBERS.  SO IF I TURNED THE INDEPENDENT 

        23               INTO A SUBSCRIPTION-ONLY VEHICLE, I WOULD LOSE 

        24               MY CURRENT ADVERTISING ACCOUNTS OR A LOT OF MY 

        25               CURRENT ADVERTISING ACCOUNTS THAT REACH -- THAT 



                                                                         1237
                                FLOOD - REDIRECT / SHULMAN 


         1               WISH TO REACH A MASS DISTRIBUTION.  SO THAT'S 

         2               WHY I DON'T WANT TO JEOPARDIZE MY OPERATIONS AT 

         3               THE INDEPENDENT AND I'M NOT GOING TO HAVE THAT 

         4               AS A DAILY NEWSPAPER." 

         5    Q.   NOW, WHAT DOES THAT TELL YOU ABOUT WHETHER THERE ARE OR 

         6    ARE NOT SYNERGIES? 

         7    A.   IT TELLS ME THERE ARE NONE. 

         8               MR. SHULMAN:  THANK YOU.  I HAVE NO FURTHER 

         9    QUESTIONS. 

        10               THE COURT:  VERY WELL.  THANK YOU, MR. FLOOD, SIR, 

        11    FOR YOUR TESTIMONY.  YOU MAY STEP DOWN AND ARE EXCUSED. 

        12                          (WITNESS EXCUSED.) 

        13               THE COURT:  PLEASE CALL YOUR NEXT WITNESS. 

        14               MR. SHULMAN:  MAY IT PLEASE THE COURT, PLAINTIFF 

        15    CALLS MICHAEL WEAVER. 

        16               THE CLERK:  PLEASE RAISE YOUR RIGHT HAND TO BE 

        17    SWORN. 

        18                        MICHAEL ROGER WEAVER,  

        19    CALLED AS A WITNESS FOR THE PLAINTIFF, HAVING BEEN DULY SWORN, 

        20    TESTIFIED AS FOLLOWS: 

        21               THE CLERK:  THANK YOU.  PLEASE BE SEATED. 

        22               PLEASE STATE YOUR FULL NAME FOR THE RECORD AND SPELL 

        23    YOUR LAST NAME. 

        24               THE WITNESS:  MICHAEL ROGER WEAVER, W-E-A-V-E-R. 

        25               MR. SHULMAN:  MAY IT PLEASE THE COURT. 



                                                                         1238
                                 WEAVER - DIRECT / SHULMAN 


         1                          DIRECT EXAMINATION 

         2    BY MR. SHULMAN: 

         3    Q.   MR. WEAVER, WOULD YOU PLEASE STATE YOUR HOME ADDRESS. 

         4    A.   28218 REY DE COPAS LANE, MALIBU, CALIFORNIA. 

         5    Q.   AND WHAT IS YOUR AGE, MR. WEAVER? 

         6    A.   54. 

         7    Q.   AND WOULD YOU STATE, PLEASE, YOUR EDUCATIONAL BACKGROUND. 

         8    A.   I HAVE A B.A. IN ECONOMICS FROM THE UNIVERSITY OF 

         9    CALIFORNIA BERKELEY AND AN M.B.A. FROM THE AMOS TUCK SCHOOL OF 

        10    BUSINESS ADMINISTRATION AT DARTMOUTH COLLEGE. 

        11    Q.   OKAY.  ARE YOU EMPLOYED AT THIS TIME? 

        12    A.   YES. 

        13    Q.   AND WHAT IS THE -- WHO IS YOUR EMPLOYER? 

        14    A.   101 COMMUNICATIONS LLC. 

        15    Q.   AND IS THAT THE SAME COMPANY THAT MR. SCHMIDT WORKS FOR? 

        16    A.   YES. 

        17    Q.   OKAY.  WHAT IS YOUR POSITION WITH 101? 

        18    A.   I'M A SENIOR ADVISOR. 

        19    Q.   OKAY.  WHAT DOES THAT MEAN?  WHAT DO YOU DO? 

        20    A.   MY CURRENT POSITION WITH 101 IS THAT I ADVISE THE CEO AND 

        21    THE COO ON POTENTIAL ACQUISITIONS AND ON THE PROGRESS OF THE 

        22    COMPANY. 

        23    Q.   HOW LONG HAVE YOU BEEN WITH 101? 

        24    A.   I WAS A FOUNDER OF 101.  WE BEGAN -- A GROUP OF THREE OF 

        25    US BEGAN PUTTING TOGETHER THE PLAN FOR 101 TWO YEARS AGO.  WE 



                                                                         1239
                                 WEAVER - DIRECT / SHULMAN 


         1    GOT FUNDING FOR 101 COMMUNICATIONS IN DECEMBER OF 1998.  AT 

         2    THAT TIME I WAS CHIEF FINANCIAL OFFICER OF 101 COMMUNICATIONS. 

         3    Q.   OKAY.  AND WAS MR. SCHMIDT ONE OF THE THREE? 

         4    A.   NO, HE WAS NOT. 

         5    Q.   OKAY.  WHO ARE THE OTHER TWO JUST FOR THE RECORD? 

         6    A.   BILL SLAPIN AND KURT HESSLER. 

         7    Q.   OKAY. 

         8               MR. SHULMAN:  MAY I APPROACH THE WITNESS, YOUR 

         9    HONOR? 

        10               THE COURT:  YES, YOU MAY. 

        11    BY MR. SHULMAN: 

        12    Q.   MR. WEAVER, I HAVE PUT IN FRONT OF YOU WHAT HAVE BEEN 

        13    MARKED -- WHAT ARE IN EVIDENCE AS ACTUALLY PLAINTIFF'S EXHIBIT 

        14    60, PLAINTIFF'S EXHIBIT 46 AND WHAT HAS BEEN MARKED AS 166.  I 

        15    DON'T KNOW WHETHER THAT'S IN EVIDENCE OR NOT. 

        16               ALL RIGHT.  LET'S TAKE EXHIBIT 60.  IF YOU WILL TURN 

        17    TO THAT, PLEASE. 

        18    A.   (WITNESS EXAMINES DOCUMENT.) 

        19    Q.   EXHIBIT 60 IS ENTITLED "DECLARATION OF MICHAEL R. WEAVER 

        20    IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION." 

        21               DO YOU RECOGNIZE THIS AS A DECLARATION THAT YOU 

        22    SIGNED IN THIS CASE? 

        23    A.   YES, I DO. 

        24    Q.   OKAY.  IT BEGINS IN PARAGRAPH 1: 

        25                   "I AM THE FORMER CHIEF FINANCIAL OFFICER OF 



                                                                         1240
                                 WEAVER - DIRECT / SHULMAN 


         1               THE ORANGE COUNTY REGISTER, WHICH HAS A DAILY 

         2               CIRCULATION OF MORE THAN 300,000 AND IS SECOND 

         3               IN CALIFORNIA IN TOTAL ADVERTISING LINEAGE.  I 

         4               HELD THAT POSITION FOR SIX YEARS FROM 1987 UNTIL 

         5               1983 (SIC)."  '93, SORRY. 

         6               IS THAT CORRECT? 

         7    A.   YES, IT IS. 

         8    Q.   OKAY. 

         9               MR. SHULMAN:  OH, THIS IS NOT IN.  I'M REMINDED THIS 

        10    IS NOT IN EVIDENCE.  I WOULD OFFER EXHIBIT 60. 

        11               MR. LINDSTROM:  NO OBJECTION, YOUR HONOR. 

        12               MR. HOCKETT:  WE HAVE NO OBJECTION. 

        13               THE COURT:  VERY WELL.  EXHIBIT 60 WILL BE ADMITTED. 

        14                             (PLAINTIFF'S EXHIBIT 60  

        15                              RECEIVED IN EVIDENCE) 

        16    BY MR. SHULMAN: 

        17    Q.   WHO'S -- 

        18               THE COURT:  JUST OUT OF CURIOSITY, WHO'S FIRST? 

        19               MR. SHULMAN:  I WAS JUST GOING TO ASK. 

        20    Q.   WHO'S FIRST? 

        21    A.   PARDON? 

        22    Q.   WHO'S FIRST?  YOU SAY THE ORANGE COUNTY REGISTER IS SECOND 

        23    IN CALIFORNIA IN TOTAL ADVERTISING LINEAGE. 

        24    A.   THE LOS ANGELES TIMES. 

        25    Q.   AS THE CHIEF FINANCIAL OFFICER OF THE ORANGE COUNTY 



                                                                         1241
                                 WEAVER - DIRECT / SHULMAN 


         1    REGISTER, WHAT WERE YOUR DUTIES AND RESPONSIBILITIES? 

         2    A.   MY DUTIES AND RESPONSIBILITIES AS CHIEF FINANCIAL OFFICER 

         3    WERE TO MANAGE THE ACCOUNTING DEPARTMENT, PREPARE BUDGETS, 

         4    PREPARE FINANCIAL REPORTS FOR THE MANAGEMENT AND TO MAKE SURE 

         5    THAT THE MONEY THAT WAS SPENT WAS SPENT PROPERLY. 

         6    Q.   OKAY.  YOU SAY: 

         7                   "FROM 1981 TO 1987, I WAS THE CHIEF 

         8               FINANCIAL OFFICER OF THE LOS ANGELES DAILY NEWS, 

         9               WHICH HAS A DAILY CIRCULATION OF APPROXIMATELY 

        10               150,000." 

        11               WHAT WERE YOUR DUTIES AND RESPONSIBILITIES IN THAT 

        12    POSITION? 

        13    A.   THE DUTIES AND RESPONSIBILITIES WERE VERY SIMILAR.  THE 

        14    ONLY DIFFERENCE I CAN REMEMBER IS THAT DURING THAT TIME I WAS 

        15    WORKING FOR THE TRIBUNE COMPANY AND THEY REQUIRED MONTHLY 

        16    REPORTS, WHICH I AUTHORED. 

        17    Q.   OKAY.  THEN YOU SAY: 

        18                   "FROM 1978 TO 1981 I WAS THE CHIEF FINANCIAL 

        19               OFFICER OF THE PALO ALTO TIMES." 

        20               WHAT DID YOU DO IN THAT POSITION? 

        21    A.   SAME THING AS I DID WITH THE LOS ANGELES DAILY NEWS. 

        22    Q.   WHEN DID YOU FIRST GO INTO THE NEWSPAPER BUSINESS? 

        23    A.   I JOINED TRIBUNE COMPANY, CALLED THE CHICAGO TRIBUNE IN 

        24    THIS TRIAL, IN 1973 AS A BUDGET DIRECTOR IN ORLANDO, FLORIDA, 

        25    WITH THE ORLANDO SENTINEL STAR. 



                                                                         1242
                                 WEAVER - DIRECT / SHULMAN 


         1    Q.   OKAY.  NOW, FROM -- AND WERE YOU THERE FROM '73 TO '78? 

         2    A.   NO.  I WAS IN ORLANDO FROM '73 TO '75.  I WAS IN CHICAGO 

         3    ON THE CORPORATE STAFF FROM '75 UNTIL '78, THEN PALO ALTO, THEN 

         4    LOS ANGELES. 

         5    Q.   OKAY.  NOW, YOU SAY: 

         6                   "IN ADDITION, FROM 1995 TO 1997, I WAS THE 

         7               CHIEF FINANCIAL OFFICER OF TV GUIDE, WHICH HAS 

         8               THE LARGEST WEEKLY CIRCULATION FOR A MAGAZINE IN 

         9               THE COUNTRY." 

        10               DO YOU SEE THAT? 

        11    A.   YES. 

        12    Q.   WHAT DID YOU DO AS THE CHIEF FINANCIAL OFFICER OF TV 

        13    GUIDE? 

        14    A.   AS CHIEF FINANCIAL OFFICER OF TV GUIDE, I OVERSAW THE 

        15    ACCOUNTING AND FINANCE DEPARTMENT AND PREPARED BUDGETS AND 

        16    REPORTED ON THOSE BUDGETS. 

        17    Q.   AND WHERE WERE YOU LOCATED? 

        18    A.   RADNOR, PENNSYLVANIA. 

        19    Q.   OKAY.  NOW, AT SOME POINT DID YOU COME TO BE RETAINED BY 

        20    MR. REILLY IN CONNECTION WITH THIS CASE? 

        21    A.   YES. 

        22    Q.   AND WOULD YOU DESCRIBE FIRST WHEN THAT OCCURRED? 

        23    A.   EARLY FEBRUARY.   

        24    Q.   AND CAN YOU RELATE, PLEASE, THE CIRCUMSTANCES SURROUNDING 

        25    YOUR BEING RETAINED TO ASSIST MR. REILLY? 



                                                                         1243
                                 WEAVER - DIRECT / SHULMAN 


         1    A.   I WAS CONTACTED BY JOE BARLETTA AND ASKED IF I WOULD BE 

         2    INTERESTED IN WORKING WITH MR. REILLY TO HELP HIM PREPARE A BID 

         3    TO POSSIBLY PURCHASE THE EXAMINER. 

         4    Q.   AND WHAT WAS YOUR RESPONSE? 

         5    A.   I TOOK ON THAT CHALLENGE. 

         6    Q.   OKAY.  AND WHAT DID YOU DO AFTER YOU AGREED TO ASSIST? 

         7    A.   THE FIRST THING THAT I DID WAS I MET WITH MR. REILLY AND 

         8    MR. FLAHERTY IN SAN FRANCISCO AT MR. REILLY'S OFFICE, AND WE 

         9    DISCUSSED THE NEWSPAPER BUSINESS AND THE SAN FRANCISCO EXAMINER 

        10    IN PARTICULAR. 

        11    Q.   OKAY.  AS A RESULT OF THAT MEETING, WAS THERE SOME -- 

        12    WELL, CAN YOU IDENTIFY MR. FLAHERTY FOR US? 

        13    A.   ALAN FLAHERTY IS A CONSULTANT IN THE NEWSPAPER INDUSTRY. 

        14    Q.   OKAY.  AS A RESULT OF THAT MEETING, WAS THERE SOME 

        15    ASSIGNMENT YOU WERE GIVEN OR TASK THAT YOU UNDERTOOK? 

        16    A.   AS A RESULT OF THAT MEETING, AND A MEETING THE FOLLOWING 

        17    DAY WITH LARRY INGRAM AND MR. REILLY, MR. REILLY ASKED US TO 

        18    PREPARE FOR HIM AN ANALYSIS OF WHAT IT WOULD TAKE FOR HIM TO 

        19    BUY THE EXAMINER, THOSE THINGS THAT WE FELT WERE IMPORTANT IN A 

        20    POTENTIAL PURCHASE OF THE EXAMINER. 

        21    Q.   AND SO WHAT DID YOU DO? 

        22    A.   MR. INGRAM, MR. FLAHERTY AND I MET THE FOLLOWING WEEK IN 

        23    ORANGE COUNTY, CALIFORNIA, AND WE SPENT THE DAY PUTTING 

        24    TOGETHER AN OUTLINE, IF YOU WILL, OF A POTENTIAL APPROACH TO 

        25    HEARST THAT MR. REILLY MIGHT TAKE. 



                                                                         1244
                                 WEAVER - DIRECT / SHULMAN 


         1    Q.   WERE THERE ANY MATERIALS THAT YOU USED THAT WERE PROVIDED 

         2    TO YOU IN CONNECTION WITH THE WORK YOU DID? 

         3    A.   YES.  I HAD A COPY OF THE VERONIS AND SUHLER REPORT. 

         4    Q.   YOU MEAN THE OFFERING MEMORANDUM? 

         5    A.   I'M SORRY, THE OFFERING MEMORANDUM. 

         6    Q.   OKAY. 

         7    A.   AND -- 

         8    Q.   ANYTHING ELSE? 

         9    A.   YES.  I BELIEVE THAT WHILE I WAS IN SAN FRANCISCO ON THAT 

        10    VISIT, THAT I WENT TO THE LAWYER'S OFFICE AND REVIEWED THE 

        11    INFORMATION THAT WAS AVAILABLE TO THE POTENTIAL PURCHASERS OF 

        12    THE EXAMINER AND TOOK DOWN INFORMATION REGARDING PROFIT AND 

        13    LOSS STATEMENT FOR THE SAN FRANCISCO NEWSPAPER AGENCY AND MAJOR 

        14    ADVERTISERS AT THE SAN FRANCISCO NEWSPAPER AGENCY. 

        15    Q.   WHEN YOU REFER TO THE LAWYER'S OFFICE, YOU'RE REFERRING TO 

        16    COUNSEL FOR HEARST? 

        17    A.   YES. 

        18    Q.   OKAY.  IF YOU COULD TURN TO EXHIBIT 46 BEFORE YOU.  I 

        19    BELIEVE -- IS THAT IN EVIDENCE?  YES, OKAY, 46 IN EVIDENCE. 

        20               THE FIRST PAGE -- IT'S A MULTIPAGE DOCUMENT 

        21    CONSISTING OF A NUMBER OF SCHEDULES AND THE FIRST PAGE IS 

        22    ENTITLED "SUNDAY EDITION COSTS."  THE LAST PAGE HAS A DATE OF 

        23    FEBRUARY 10.  WE'LL GET TO THAT AS WE GO THROUGH IT. 

        24               BUT CAN YOU IDENTIFY WHAT THIS IS? 

        25    A.   YES. 



                                                                         1245
                                 WEAVER - DIRECT / SHULMAN 


         1    Q.   GO AHEAD. 

         2    A.   THE FIRST PAGE ENTITLED "SUNDAY EDITION COSTS" WAS 

         3    PREPARED BY LARRY INGRAM.  IT WAS E-MAILED TO ME, AND I BELIEVE 

         4    THIS PARTICULAR ITERATION COMES OFF OF MY COMPUTER SYSTEM WHERE 

         5    I BASICALLY PUT SOME OF THE COLUMNS TOGETHER.  AND I BELIEVE I 

         6    PUT THE BOLD AROUND THE "TOTAL BEFORE TV BOOK" AND "TOTAL WITH 

         7    TV BOOK."  BUT THIS INFORMATION WAS BASICALLY PREPARED BY LARRY 

         8    INGRAM.   

         9               THE NEXT PAGE -- 

        10    Q.   AND THIS PURPORTS TO SHOW THE COSTS OF DOING A SUNDAY 

        11    EDITION OF THE EXAMINER? 

        12    A.   THAT'S CORRECT. 

        13    Q.   WITH A CIRCULATION OF A HUNDRED THOUSAND? 

        14    A.   AS A PRINT ORDER OF A HUNDRED THOUSAND, 80 PAGES, 40 PAGES 

        15    IN THE MAIN SECTION, 40 PAGES ADVANCE SECTION.  IT ASSUMES 

        16    PAYROLL, FTE'S AND EDITORIALS, CIRCULATION COSTS, DELIVERY 

        17    COSTS, PRODUCTION COSTS, PAPER, PLATES AND INK COSTS, AND THE 

        18    COST OF SUPPLEMENTS. 

        19    Q.   AND THIS IS FOR ONE YEAR? 

        20    A.   YES, THIS IS ONE YEAR.   

        21               THE COURT:  WHEN YOU SPEAK OF AN ADVANCE, A PAGE 

        22    ADVANCE AND PAGE MAIN, YOU MEAN 40 PAGES OF THE 80 PAGES WOULD 

        23    BE PUBLISHED IN ADVANCE OF THE NORMAL PUBLICATION DATE OR IN 

        24    ADVANCE OF THE PUBLICATION DATE FROM THE MAIN PART OF THE 

        25    PAPER?  IS THAT WHAT IT REFERS TO? 



                                                                         1246
                                 WEAVER - DIRECT / SHULMAN 


         1               THE WITNESS:  THAT'S WHAT IT REFERS TO.  THE 

         2    DATEBOOK SECTION OR THE PINK SECTION WOULD BE PRODUCED THREE OR 

         3    FOUR DAYS EARLY IN SAN FRANCISCO. 

         4               THE COURT:  OKAY. 

         5    BY MR. SHULMAN: 

         6    Q.   YOU ALSO -- THERE'S A TERM A HUNDRED THOUSAND PRINT ORDER.  

         7    IS PRINT ORDER DIFFERENT FROM CIRCULATION? 

         8    A.   YES.  PRINT ORDER IS THE NUMBER OF PAPERS THAT ARE 

         9    ACTUALLY PRINTED AND PROBABLY 99 PERCENT OF THOSE ARE 

        10    DISTRIBUTED.  HOWEVER, THOSE THAT ARE DISTRIBUTED TO SINGLE 

        11    COPY OUTLETS, THERE ARE RETURNS; IN OTHER WORDS, UNSOLD PAPERS.  

        12    SO 20, 25 PERCENT OF THE DISTRIBUTION OF SINGLE COPY PAPERS 

        13    COME BACK AS RETURNS, AND THAT WOULD REDUCE THE TOTAL 

        14    CIRCULATION. 

        15    Q.   SO THE PRINT ORDER IS SOMETHING MORE THAN THE CIRCULATION? 

        16    A.   THAT'S CORRECT. 

        17    Q.   ALL RIGHT.  NOW, IF YOU TURN TO THE SECOND PAGE -- WELL, 

        18    ACTUALLY LET'S GO TO THE LAST PAGE BECAUSE THAT'S THE EARLIEST 

        19    IN TIME, I THINK.  THAT IS A -- IT SAYS "SAN FRANCISCO EXAMINER 

        20    PROJECTED P & L THREE YEARS AFTER PURCHASE" AND IT'S DATED IT 

        21    LOOKS LIKE FEBRUARY 10.  WILL YOU TELL US WHAT THAT IS, PLEASE? 

        22    A.   YES.  THAT WAS A PROJECTED PROFIT AND LOSS STATEMENT FOR 

        23    THE SAN FRANCISCO EXAMINER THAT I PRINTED ON FEBRUARY 10TH 

        24    FOLLOWING THE MEETING THAT MR. FLAHERTY, MR. INGRAM AND I HAD 

        25    IN ORANGE COUNTY. 



                                                                         1247
                                 WEAVER - DIRECT / SHULMAN 


         1    Q.   WHO PUT -- WERE YOU THE ONE WHO PUT THIS TOGETHER? 

         2    A.   YES. 

         3    Q.   WHAT DATA DID YOU USE TO PUT IT TOGETHER? 

         4    A.   WELL, THE INFORMATION IN THE RIGHT-HAND COLUMN SAYS 

         5    "CURRENT EXPENSE STREAM."  AND THAT DATA COMES FROM IN THE 

         6    OFFERING MEMORANDUM THAT WAS PREPARED BY HEARST OR PRESENTED BY 

         7    HEARST, AND THERE ARE TWO OR THREE BACK-UP PAGES TO THIS 

         8    SIMILAR TO THOSE YOU'LL SEE ALSO IN THIS REPORT. 

         9               SO THAT'S THE INFORMATION THAT, TO THE BEST OF OUR 

        10    UNDERSTANDING, WAS WHAT IS CURRENTLY SPENT BY THE SAN FRANCISCO 

        11    NEWSPAPER AGENCY TO PRODUCE THE SAN FRANCISCO EXAMINER AND IT 

        12    ALSO INCLUDES UNDER "EDITORIAL" THE COST OF EDITORIAL AND G & A 

        13    EXPENSES SHOWN IN THE OFFERING MEMORANDUM. 

        14    Q.   OKAY.  AND YOU TOOK THIS FROM THE HEARST INFORMATION 

        15    PROVIDED BY VERONIS SUHLER? 

        16    A.   THAT'S CORRECT. 

        17    Q.   AND THAT SHOWS A CURRENT COST FOR THE EXAMINER OF 

        18    $81 MILLION? 

        19    A.   IF YOU ADD IN THE NINETEEN MILLION NINE THAT IS SPECIFIC 

        20    EXAMINER COSTS, YES. 

        21    Q.   YOU MEAN THE EDITORIAL, WHERE IT SAYS EDITORIAL, PAYROLL, 

        22    OTHER, TOTAL? 

        23    A.   YES.  THE AGENCY DOES NOT INCUR THOSE COSTS.  

        24    Q.   OKAY.  WHERE DID YOU FIND THAT INFORMATION? 

        25    A.   THAT INFORMATION IS ALSO IN THE OFFERING MEMORANDUM. 



                                                                         1248
                                 WEAVER - DIRECT / SHULMAN 


         1    Q.   OKAY.  NOW, TELL ME WHAT THE NEXT TWO COLUMNS ARE.  ONE 

         2    SAYS "OPTIMISTIC YEAR THREE" AND THE OTHER "REALISTIC YEAR 

         3    THREE."  TELL ME WHAT YOU WERE TRYING TO SHOW THERE. 

         4    A.   WE WERE LOOKING AT TRYING TO PUT TOGETHER TWO THINGS.  

         5    ONE -- WE MIGHT AS WELL START WITH THE REVENUE THAT'S ON TOP.  

         6    THE REVENUE NUMBERS ARE NOT SO MUCH PROJECTIONS BUT AN EXAMPLE 

         7    OF WHAT THE REVENUE WOULD BE IN ADVERTISING GIVEN AN ASSUMPTION 

         8    ABOUT THE NUMBER OF PAGES THAT WERE PRINTED EVERY DAY, AN 

         9    AVERAGE RATE THAT YOU CHARGE FOR ADVERTISING AND THE AMOUNT OF 

        10    ADVERTISING YOU WOULD HAVE IN THE PAPER. 

        11    Q.   OKAY.  LET ME STOP YOU THERE. 

        12               YOU MADE AN ASSUMPTION ABOUT THE NUMBER OF PAGES IN 

        13    THE NEWSPAPER.  IN THE -- IS THIS AFTER THREE YEARS OR IN THE 

        14    THIRD YEAR? 

        15    A.   IT SAYS YEAR THREE, SO I WOULD SAY THAT WE WERE THINKING 

        16    IN THE THIRD YEAR. 

        17    Q.   OKAY.  YOU MADE AN ASSUMPTION ABOUT THE NUMBER OF PAGES? 

        18    A.   YES.  THE MODEL WAS BUILT SUCH THAT YOU COULD CHANGE THE 

        19    ASSUMPTION -- YOU COULD CHANGE THE NUMBER OF CHANGES AND THE 

        20    PERCENTAGE OF ADVERTISING AND THE AVERAGE REVENUE PER INCH OF 

        21    ADVERTISING AND PUSH THOSE THROUGH AND DO AN ANALYSIS TO SAY, 

        22    "WHAT WOULD IT TAKE TO BRING IN $30 MILLION WORTH OF REVENUE OR 

        23    HOW MUCH -- HOW BIG WOULD THE PAPER HAVE TO BE, WHAT RATE WOULD 

        24    WE HAVE TO HAVE AND WHAT PERCENTAGE OF ADVERTISING WOULD WE 

        25    HAVE TO HAVE TO BRING IN $50 MILLION IN REVENUE?"  IT WAS A WAY 



                                                                         1249
                                 WEAVER - DIRECT / SHULMAN 


         1    TO DO WHAT IFS.  IT'S A MODEL. 

         2    Q.   AND THEN YOU MADE AN ASSUMPTION -- AFTER YOU MADE AN 

         3    ASSUMPTION ABOUT THE NUMBER OF PAGES, YOU MADE AN ASSUMPTION 

         4    ABOUT THE PERCENTAGE OF THOSE PAGES THAT WOULD BE FILLED WITH 

         5    ADVERTISING? 

         6    A.   THAT'S CORRECT. 

         7    Q.   AND THEN DID YOU MAKE AN ASSUMPTION ABOUT THE RATE YOU 

         8    WOULD BE ABLE TO CHARGE FOR THE ADVERTISING? 

         9    A.   THAT'S CORRECT. 

        10    Q.   OKAY.  NOW, IN DOING THIS, DID YOU MAKE ANY -- DID YOU 

        11    COME TO ANY OPINIONS OR CONCLUSIONS THAT YOU WOULD, IN FACT, BE 

        12    ABLE TO GET THIS REVENUE? 

        13    A.   NO.  WE DID NOT ATTEMPT TO DO THIS.  WE THOUGHT IT WAS 

        14    REALISTIC TO GET $30 MILLION IN REVENUE. 

        15    Q.   OKAY.  YOU LOOKED AT IT TO SEE WHAT YOU WOULD NEED TO DO 

        16    IN ORDER TO GET THAT REVENUE? 

        17    A.   THAT'S CORRECT. 

        18    Q.   ALL RIGHT.  THEN CONTINUE WITH YOUR EXPLANATION OF WHAT IS 

        19    SHOWN ON THIS AFTER THE REVENUE. 

        20    A.   OKAY.  NEWSPRINT AND INK AND SUPPLEMENTS DEPEND ON THE 

        21    NUMBER OF PAGES IN THE TOTAL PRINT ORDER.  THE MORE YOU PRINT, 

        22    THE MORE NEWSPRINT AND INK YOU USE.  AND THE MORE -- AND THE 

        23    LARGER THE CIRCULATION OR THE DISTRIBUTION, THE MORE YOU HAVE 

        24    TO PAY FOR SUNDAY OR WEEKEND SUPPLEMENTS. 

        25               WE THEN MADE ASSUMPTIONS ABOUT STAFFING AND IN MOST 



                                                                         1250
                                 WEAVER - DIRECT / SHULMAN 


         1    AREAS CERTAINLY A RELATIONSHIP BETWEEN TOTAL PAYROLL COSTS AND 

         2    ALL OTHER COSTS IN THAT DEPARTMENT.   

         3               IN CIRCULATION WE ATTEMPTED TO LOOK AT SOME OF THE 

         4    COSTS ASSOCIATED WITH MAINTAINING YOUR CIRCULATION.  THEREFORE, 

         5    YOUR OTHER COSTS ARE HIGHER. 

         6               ADVERTISING WAS A PERCENTAGE OF PAYROLL.   

         7               EDITORIAL, WE DID HAVE INFORMATION.  I BELIEVE MOST 

         8    OF THAT IS I BELIEVE G & A COSTS.   

         9               AND I WOULD HAVE TO LOOK BACK TO SEE HOW I PULLED 

        10    THE OTHER TOGETHER. 

        11    Q.   OKAY.  BUT YOU -- AND YOU CAME UP WITH WHAT YOU ESTIMATED 

        12    TO BE TOTAL EXPENSES FOR DOING THE PAPER IN THE THIRD YEAR? 

        13    A.   YES. 

        14    Q.   AND THOSE ARE SHOWN ON THE TOTAL EXPENSES LINE? 

        15    A.   YES, UNDER REALISTIC YEAR THREE, THAT'S 57,000,963. 

        16    Q.   OKAY.  NOW, WHAT DOES IT MEAN -- AND THEN AT THE BOTTOM 

        17    YOU HAVE AN OPERATING PROFIT AND LOSS; RIGHT? 

        18    A.   YES. 

        19    Q.   OKAY.  WHAT'S THE DIFFERENCE BETWEEN THE OPTIMISTIC -- 

        20    TELL ME WHAT YOU MEANT BY OPTIMISTIC, TELL ME WHAT YOU MEANT BY 

        21    REALISTIC. 

        22    A.   REALISTIC BASICALLY LOOKED AT THE EXPENSES THAT PROBABLY 

        23    80 PERCENT MY NUMBERS WOULD BE INCURRED TO OPERATE A 

        24    COMPETITIVE NEWSPAPER IN SAN FRANCISCO.  AND I BELIEVE WE JUST 

        25    BACKED INTO THE ADVERTISING REVENUE NUMBERS BASED UPON WHAT 



                                                                         1251
                                 WEAVER - DIRECT / SHULMAN 


         1    SIZE AND HOW MANY PAGES WE FELT IT WOULD BE NECESSARY TO HAVE 

         2    TO BE COMPETITIVE. 

         3               THE OPTIMISTIC WAS REALLY LOOKING AT THE SORT OF 

         4    NUMBERS IT WOULD TAKE TO BREAK EVEN.  IT DOES INCREASE THE 

         5    CIRCULATION NUMBER SIGNIFICANTLY; AND I BELIEVE THAT IF WE HAD 

         6    THE BACK-UP PAGES, YOU WOULD SEE THAT THE RATE PER INCH OF 

         7    ADVERTISING WOULD GO UP ACCORDINGLY. 

         8               BUT IT WAS A LOOK AT WHAT WOULD BE A BREAK-EVEN 

         9    SCENARIO, AN OPTIMISTIC SCENARIO. 

        10    Q.   AND WAS THIS INFORMATION PROVIDED TO MR. REILLY? 

        11    A.   YES. 

        12    Q.   ALL RIGHT.  NOW, IF YOU TURN TO THE PAGE IN FRONT OF THAT, 

        13    IT'S ENTITLED "SAN FRANCISCO NEWSPAPER NEWSPAPER AGENCY," 

        14    YOU'VE GOT TWO "NEWSPAPERS" THERE, "PROFIT AND LOSS ANALYSIS IN 

        15    MILLIONS" -- "IN THOUSANDS," SORRY, "3/23/00."  WOULD YOU 

        16    IDENTIFY THIS?  TELL US WHAT THIS IS. 

        17    A.   THIS IS THE INFORMATION THAT I GATHERED WHEN I WENT TO 

        18    HEARST'S LAWYER'S OFFICE ABOUT THE REVENUE AND EXPENSES OF THE 

        19    SAN FRANCISCO NEWSPAPER AGENCY IN 1996, 1997, 1998. 

        20    Q.   OKAY.  THEN THE PAGE -- AND GROSS EXCESS -- THERE'S A LINE 

        21    THAT SAYS "GROSS EXCESS."  CAN YOU EXPLAIN WHAT THAT IS? 

        22    A.   THAT'S A NEWSPAPER AGENCY -- SAN FRANCISCO NEWSPAPER 

        23    AGENCY TERM THAT SUGGESTS WHAT THE DIFFERENCE IS BETWEEN THE 

        24    REVENUE THAT THEY TOOK IN AND THE EXPENSES THEY INCURRED.  THEY 

        25    CALL IT GROSS EXCESS. 



                                                                         1252
                                 WEAVER - DIRECT / SHULMAN 


         1    Q.   ALL RIGHT.  IF YOU LOOK AT THE PAGE IN FRONT OF THAT -- 

         2    WAIT A MINUTE.  I'M A LITTLE BIT LOST HERE. 

         3                        (PAUSE IN PROCEEDINGS.) 

         4    BY MR. SHULMAN: 

         5    Q.   -- THAT IS -- AGAIN, IT'S ENTITLED "SAN FRANCISCO 

         6    NEWSPAPER NEWSPAPER AGENCY PROFIT AND LOSS 1998 TO 1996."  WHAT 

         7    IS THAT AND HOW IS IT DIFFERENT FROM THE PRIOR PAGE? 

         8    A.   THIS HAS THE SAME REVENUE AND EXPENSE NUMBERS.  ON THIS 

         9    PAGE I'VE TAKEN THE 1996, 1997, 1998 NUMBERS AND CALCULATED THE 

        10    PERCENTAGE OF REVENUE OF EACH ONE OF THOSE LINES.  SO THAT 

        11    ADVERTISING IS 76.9 PERCENT OF 1998 REVENUE.  NEWSPRINT AND INK 

        12    WAS 15.1 PERCENT OF REVENUE. 

        13               ON THE PRIOR PAGE I BASICALLY LOOKED AT THE CHANGE 

        14    IN EXPENSES OR THE CHANGE IN REVENUE, THE INCREASE OR DECREASE 

        15    IN EXPENSES AND REVENUE YEAR AFTER YEAR. 

        16    Q.   AND THEN YOU ALSO TOOK THE PERCENTAGE FOR THE EXPENSES; 

        17    RIGHT? 

        18    A.   THAT IS CORRECT. 

        19    Q.   WHY DID YOU DO THAT? 

        20    A.   IT GAVE ME A VERY QUICK LOOK AT HOW MUCH REVENUE WAS DUE 

        21    FROM ADVERTISING, FROM CIRCULATION AND WHAT THE EXPENSES WERE 

        22    IN THE VARIOUS CATEGORIES. 

        23    Q.   ALL RIGHT.  NOW, IF YOU LOOK AT THE PAGE -- NOW I WANT TO 

        24    GO -- SKIP TO THE THIRD PAGE OF THE EXHIBIT, WHICH IS ENTITLED 

        25    "SAN FRANCISCO EXAMINER EMPLOYEE ANALYSIS, 23 MARCH 00."  CAN 



                                                                         1253
                                 WEAVER - DIRECT / SHULMAN 


         1    YOU EXPLAIN WHAT THIS IS? 

         2    A.   THIS IS ONE OF THE BACK-UP PAGES THAT WOULD HAVE BEEN 

         3    BEHIND THAT VERY FIRST ONE WE LOOKED AT AS WELL AS THE OTHERS.  

         4    IT'S PART OF THE MODEL. 

         5               IF YOU START IN THE CENTER, I GUESS, UNDER 

         6    "STAFFING" IT HAS "NOW," WHICH IS THE CURRENT LEVEL OF STAFFING 

         7    AS I PUT IT TOGETHER OUT OF THE VERONIS SUHLER REPORT, A BEST 

         8    CASE STAFFING, WHICH WOULD BE A LOW NUMBER, IF YOU WILL, AND 

         9    THEN A TYPICAL NEWSPAPER STAFFING LEVEL. 

        10               THE AVERAGE EARNINGS IN THIS CASE ARE ROUNDED TO 

        11    THOUSANDS.  THEY'RE REPRESENTATIVE OF WHAT'S CURRENTLY BEING 

        12    INCURRED IN SAN FRANCISCO AT THE NEWSPAPER AGENCY. 

        13               TOTAL PAYROLL COST IS SIMPLY MULTIPLYING THOSE, THE 

        14    STAFFING AGAINST THE AVERAGE EARNINGS. 

        15               THE COURT:  LET ME SEE IF I UNDERSTAND, IF I CAN 

        16    INTERRUPT. 

        17               MR. SHULMAN:  SURE. 

        18               THE COURT:  WHAT IS IN THE "NOW" COLUMN IS? 

        19               THE WITNESS:  THAT'S INFORMATION THAT WAS -- 

        20               THE COURT:  THAT RELATES TO WHAT EXISTS NOW WITH 

        21    REFERENCE TO THE NEWSPAPER AGENCY? 

        22               THE WITNESS:  THAT'S CORRECT. 

        23               THE COURT:  BUT YOU'VE NOT ATTEMPTED TO DESEGREGATE 

        24    THOSE NUMBERS BETWEEN THE CHRONICLE AND THE EXAMINER? 

        25               THE WITNESS:  I'M SORRY, THESE ARE THE NUMBERS THAT 



                                                                         1254



         1    HAVE BEEN PRESENTED AS THE STAFF DEDICATED TO THE EXAMINER IN 

         2    THE VERONIS SUHLER REPORT. 

         3               THE COURT:  THE STAFF OF THE NEWSPAPER AGENCY 

         4    DEDICATED TO THE EXAMINER? 

         5               THE WITNESS:  THAT'S CORRECT. 

         6               THE COURT:  SO ARE YOU SAYING THAT IF THE EXAMINER 

         7    WERE SHUT DOWN, THAT 681 EMPLOYEE POSITIONS WOULD BE ELIMINATED 

         8    FROM THE NEWSPAPER AGENCY? 

         9               THE WITNESS:  THE INFORMATION THAT WAS GIVEN OUT IN 

        10    THE VERONIS AND SUHLER REPORT WOULD SUGGEST THAT 681 LESS THE 

        11    EDITORIAL STAFF, WHICH IS 208, WOULD BE -- ARE DEDICATED TO OR 

        12    ALLOCATED I SHOULD SAY, SOME OF THESE ARE ALLOCATED, TO THE SAN 

        13    FRANCISCO EXAMINER. 

        14               THE COURT:  EACH IS ALLOCATED FULL TIME TO THE 

        15    EXAMINER; CORRECT? 

        16               THE WITNESS:  NOT QUITE.  THE REASON I HESITATE IS 

        17    THAT I BELIEVE IN SOMETHING LIKE INFORMATION SERVICES, TAKE 

        18    THAT LINE ITEM WHERE IT SHOWS 39 PEOPLE -- 

        19               THE COURT:  WHERE IS THAT, SIR? 

        20               THE WITNESS:  THAT'S UNDER "OTHER DEPARTMENTS." 

        21               THE COURT:  OH, YES. 

        22               THE WITNESS:  THERE'S A NUMBER OF 39.  IT'S MY 

        23    RECOLLECTION THAT IS AN ALLOCATION OF THE PEOPLE IN INFORMATION 

        24    SERVICES.  NOT EACH ONE OF THOSE IS -- WORKS ONLY ON THE 

        25    EXAMINER, BUT WOULD BE AN ALLOCATION OF THE INFORMATION 



                                                                         1255



         1    SERVICES DEPARTMENT. 

         2               THE COURT:  I SEE. 

         3               THE WITNESS:  WHEREAS, CIRCULATION -- 

         4               THE COURT:  SO YOU'RE SAYING THERE MAY BE A HUNDRED 

         5    PEOPLE IN INFORMATION SERVICES, BUT -- AND THEY WORK ON BOTH 

         6    PAPERS, BUT SPEND 39 PERCENT OF THEIR TIME ON THE EXAMINER AND, 

         7    THEREFORE, YOU ALLOCATE 39 POSITIONS? 

         8               THE WITNESS:  I DIDN'T DO THE ALLOCATIONS, BUT THAT 

         9    WOULD BE WHAT'S IMPLIED TO ME. 

        10               THE COURT:  OKAY. 

        11               THE WITNESS:  WHEREAS, UNDER PRODUCTION AND UNDER 

        12    CIRCULATION IT'S MUCH CLEARER WHO WORKS ON WHAT PAPER, WHO 

        13    ACTUALLY RUNS THE PRESSES, IT'S PRETTY CLEAR WHO THAT IS. 

        14               THE COURT:  ALL RIGHT.  I THINK I UNDERSTAND AND I'M 

        15    SORRY FOR THE INTERRUPTION. 

        16               MR. SHULMAN:  DOES YOUR -- 

        17               THE COURT:  ANY TIME THAT WOULD BE CONVENIENT. 

        18               MR. SHULMAN:  THIS IS CONVENIENT, YOUR HONOR. 

        19               THE COURT:  WE DO HAVE A CRIMINAL CALENDAR THAT I 

        20    NEED TO ATTEND TO THIS AFTERNOON, SO I'M AFRAID, MR. WEAVER, 

        21    WE'RE GOING TO HAVE TO INTERRUPT THE TESTIMONY, AND WE WILL 

        22    RESUME WITH FURTHER TESTIMONY OF THIS WITNESS AT 8:30 TOMORROW 

        23    MORNING. 

        24               BEFORE -- I KNOW MR. HOCKETT HAS SOME MATTERS HE 

        25    WISHES TO RAISE.  WHAT IS THAT, MR. HOCKETT? 



                                                                         1256



         1               MR. HOCKETT:  JUST THE ONE I REFERENCED EARLIER.  I 

         2    JUST WANTED TO READ, NOT INDIVIDUALLY I MIGHT ADD, THE EXHIBIT 

         3    NUMBERS THAT HAVE NOW BEEN STIPULATED INTO EVIDENCE. 

         4               THE COURT:  IF IT'S STIPULATED TO, WHY DON'T YOU 

         5    SUBMIT THAT TO THE REPORTER AND MAKE IT PART OF THE RECORD. 

         6               MR. HOCKETT:  WE'LL DO SO, YOUR HONOR. 

         7               THE COURT:  ALL RIGHT.  DOES ANYONE ELSE HAVE 

         8    ANYTHING BEFORE WE ADJOURN FOR THE DAY? 

         9                             (NO RESPONSE) 

        10               THE COURT:  MR. CONNELL -- 

        11               MR. CONNELL:  YES, SIR. 

        12               THE COURT:  -- JUST TO CONTINUE THAT LITTLE DIALOGUE 

        13    THAT YOU AND I HAD EARLIER IN THE DAY. 

        14               MR. CONNELL:  YES, SIR. 

        15               THE COURT:  THE REGULATIONS IMPLEMENTING THE 

        16    NEWSPAPER PRESERVATION ACT IN TITLE 28 C.F.R. -- 

        17               MR. CONNELL:  I HAVE A COPY OF THAT. 

        18               THE COURT:  ALL RIGHT. 

        19               MR. CONNELL:  YES, SIR. 

        20               THE COURT:  SECTION 48.14(A), WHAT I'M CURIOUS ABOUT 

        21    IS THE SECOND SENTENCE.  THE FIRST SENTENCE STATES THAT:   

        22                   "THE ATTORNEY GENERAL SHALL DECIDE ON THE 

        23               BASIS OF THE RECORD AS CONSTITUTED IN ACCORDANCE 

        24               WITH THE PRECEDING SECTION."   

        25               AND THEN GOES ON TO PROVIDE:   



                                                                         1257



         1                   "IN RENDERING HIS DECISION, THE ATTORNEY 

         2               GENERAL SHALL FILE THEREWITH A STATEMENT OF HIS 

         3               FINDINGS AND CONCLUSIONS AND THE REASONS 

         4               THEREFOR, OR WHERE A HEARING HAS BEEN HELD HE 

         5               MAY ADOPT THE FINDINGS AND CONCLUSIONS OF THE 

         6               ADMINISTRATIVE LAW JUDGE." 

         7               NOW, IN THIS CASE WAS THIS SECTION COMPLIED WITH? 

         8               MR. CONNELL:  NO, SIR, IT WAS NOT APPLICABLE. 

         9               THE COURT:  WHY NOT? 

        10               MR. CONNELL:  BECAUSE THESE -- THIS SECTION AND MOST 

        11    OF THE REGULATIONS APPLY TO AN APPLICATION FOR APPROVAL OF THE 

        12    START, THE IMPLEMENTATION OF A JOINT NEWSPAPER OPERATING 

        13    ARRANGEMENT FOLLOWING THE PASSAGE OF THE NEWSPAPER PRESERVATION 

        14    ACT.   

        15               THE REGULATIONS, NEITHER THE STATUTE NOR THE 

        16    REGULATIONS, SAY ANYTHING ABOUT THE ATTORNEY GENERAL HAVING TO 

        17    APPROVE THE TERMINATION OF A JOINT NEWSPAPER OPERATING 

        18    ARRANGEMENT, EITHER ONE BEFORE '70, A GRANDFATHERED ONE PRIOR 

        19    TO '70 OR ONE THAT WAS IMPLEMENTED AFTER THE ACT WAS PASSED. 

        20               THE COURT:  BUT I GATHER THIS SECTION WAS COMPLIED 

        21    WITH, OR AT LEAST COMPLIED WITH IN SPIRIT, BY ATTORNEY GENERAL 

        22    BAXTER IN 1983 IN THE ST. LOUIS CASE AND BY ATTORNEY GENERAL 

        23    RUEHL (PHONETIC) IN 1985 IN THE PENNSYLVANIA CASE. 

        24               MR. CONNELL:  NO, SIR, I WOULDN'T AGREE WITH THAT. 

        25               THE COURT:  ALL RIGHT.  HOW IS THAT INCORRECT? 



                                                                         1258



         1               MR. CONNELL:  BECAUSE THOSE CONCLUSIONS ON THE ONE 

         2    HAND BY ATTORNEY GENERAL BAXTER AND ATTORNEY GENERAL -- 

         3    ATTORNEY GENERAL BAXTER AND ON THE OTHER HAND BY ASSISTANT 

         4    ATTORNEY GENERAL RUEHL WERE NOT FOLLOWING -- DID NOT FOLLOW 

         5    HEARINGS HELD UNDER THE ACT AND DID NOT FOLLOW AN APPLICATION 

         6    FILED UNDER THE ACT.  IN NEITHER -- 

         7               THE COURT:  WELL, THE SENTENCE WE'RE JUST TALKING 

         8    ABOUT IS ONE THAT DOES NOT CONTEMPLATE A HEARING. 

         9               MR. CONNELL:  I'M SORRY, YOUR HONOR? 

        10               THE COURT:  THE FIRST PART OF THAT SECOND 

        11    SENTENCE -- 

        12               MR. CONNELL:  CORRECT. 

        13               THE COURT:  -- OF 48.14(A) CONTEMPLATES A SITUATION 

        14    IN WHICH THE ATTORNEY GENERAL ACTS WITHOUT A HEARING. 

        15               MR. CONNELL:  OH, SURE.  SURE. 

        16               THE COURT:  ALL RIGHT. 

        17               MR. CONNELL:  BUT IT ALSO CONTEMPLATES ACTING IN THE 

        18    CASE OF AN APPLICATION FILED IN ACCORDANCE WITH THESE 

        19    REGULATIONS FOR APPROVAL, AND NO APPLICATION FOR SUCH APPROVAL 

        20    WAS FILED IN ST. LOUIS, IN FRANKLIN/OIL CITY AND, IF YOU WANT, 

        21    IN TULSA, NASHVILLE, EL PASO, CHATTANOOGA, THE OTHER CITIES 

        22    WHERE EARLY TERMINATIONS HAVE OCCURRED AFTER FRANKLIN/OIL CITY.  

        23    IT JUST -- YOUR HONOR, THIS SET OF REGULATIONS, WITH WHICH I AM 

        24    QUITE FAMILIAR, DO NOT DEAL WITH THE TERMINATION. 

        25               THE COURT:  THIS IS PROBABLY A RHETORICAL QUESTION.  



                                                                         1259



         1    WHY DID BAXTER AND RUEHL ISSUE THOSE PRESS RELEASES IN THE ST. 

         2    LOUIS AND FRANKLIN, PENNSYLVANIA, CASES? 

         3               MR. CONNELL:  YES, SIR.  IN THE CASE OF ST. LOUIS, 

         4    IT WAS BECAUSE WILLIAM BAXTER DECIDED, I GUESS, THAT IT WOULD 

         5    BE USEFUL TO PUT OUT THE WORD AS TO WHAT HIS -- WHAT THE VIEWS 

         6    OF THE DIVISION WERE AS TO WHAT HAD TO BE DONE IF YOU DIDN'T 

         7    WANT TO GET SUED BY THE ANTITRUST DIVISION WHEN YOU SHUT DOWN A 

         8    JOA.  THAT'S, I THINK, A FAIR READING OF WHAT WAS DONE. 

         9               ASSISTANT ATTORNEY GENERAL RUEHL WAS RESPONDING IN 

        10    FACT TO AN APPLICATION FOR A BUSINESS REVIEW LETTER, A 

        11    DIFFERENT ANIMAL THAN -- THERE'S A SEPARATE PROCEDURE, SEPARATE 

        12    REGULATIONS FOR BUSINESS REVIEW LETTERS AND THE JUSTICE 

        13    DEPARTMENT ROUTINELY ISSUES A PRESS RELEASE WHEN IT -- MAYBE 

        14    NOT INVARIABLY BUT FREQUENTLY ISSUES A PRESS RELEASE WHEN IT 

        15    ISSUES A BUSINESS REVIEW LETTER.  SO THAT WOULD EXPLAIN THAT 

        16    ONE. 

        17               AND, AS I SAY, YOUR HONOR, THERE WERE SUBSEQUENT 

        18    EARLY TERMINATIONS CERTAINLY KNOWN TO THE JUSTICE DEPARTMENT 

        19    WHERE THERE'S NO PRESS RELEASE, THERE'S NOTHING. 

        20               THE COURT:  DID ANY OF THOSE SITUATIONS INVOLVE AN 

        21    APPLICATION FOR A BUSINESS REVIEW LETTER? 

        22               MR. CONNELL:  NO, SIR, THEY DID NOT.  THEY DID NOT. 

        23               THE COURT:  SO IN THOSE SITUATIONS WHAT OCCURRED WAS 

        24    THE PARTICIPANTS SIMPLY INFORMED THE DEPARTMENT OF WHAT THEY 

        25    WERE DOING AND HEARD NOTHING? 



                                                                         1260



         1               MR. CONNELL:  PRECISELY.  THIS IS -- I MEAN, IF 

         2    YOU'RE AN ANTITRUST LAWYER LIKE I AM, YOUR HONOR, HAVING A FAIR 

         3    AMOUNT OF PRACTICE BEFORE THAT AGENCY, THAT'S WHAT YOU DO.  YOU 

         4    DON'T EXPECT ANYTHING.  THEY DON'T LIKE TO -- THEY DON'T LIKE 

         5    TO ISSUE STUFF USUALLY.  THEY JUST RATHER DO WHAT THEY DO AND 

         6    GO AWAY.  SO THAT'S NOT UNUSUAL. 

         7               THE COURT:  ALL RIGHT.  IT DOESN'T GIVE US MUCH 

         8    GUIDANCE; DOES IT? 

         9               MR. CONNELL:  WELL, I THINK IT DOES, YOUR HONOR, 

        10    BECAUSE THEY NEVER TOOK ANY ACTION TO STOP THOSE OTHER 

        11    TERMINATIONS. 

        12               THE COURT:  INACTION SPEAKS LOUDER THAN WORDS? 

        13                              (LAUGHTER) 

        14               MR. CONNELL:  PRECISELY. 

        15               THE COURT:  ALL RIGHT.  THANK YOU, SIR. 

        16               MR. CONNELL:  YES, SIR. 

        17               THE COURT:  I'M SURE WE'LL HAVE AN OPPORTUNITY TO 

        18    DISCUSS THIS A LITTLE FURTHER. 

        19               MR. CONNELL:  YES, SIR. 

        20               THE COURT:  THANK YOU.  SEE YOU TOMORROW MORNING.   

        21               (WHEREUPON PROCEEDINGS ADJOURNED AT 2:08 P.M.)   

        22    

        23    

        24    

        25    




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