C. PLAINTIFF’S ANSWERS TO THE COURT’S SIX QUESTIONS

At the status conference on April 13, this Court raised six questions for the parties’ consideration. After full reflection with the benefit of the hearing transcript, plaintiff provides the following answers:

1. "First, does the Newspaper Preservation Act apply at all to this transaction, or is it to be analyzed under traditional antitrust theories in the absence of the Newspaper Preservation Act?" (Transcript, pp. 8-9.) Answer: This is an action brought under section 16 of the Clayton Act, 15 U.S.C. § 26, to enforce section 7 of the Clayton Act and sections 1 and 2 of the Sherman Act, which must, however, be construed and reconciled with the Newspaper Preservation Act, as described above.

2. Is a termination agreement under the Newspaper Preservation Act an amendment of a JOA as set forth in the Act? (Transcript, pp. 9-10.) Answer: This question need not be resolved, because no consequences affecting this case flow from the answer. This JOA was entered into in 1964 before the Act’s passage in 1970, and amendments are not subject to review and approval by the Department of Justice. The only requirement is filing.

3. Are pre-1970 JOAs subject to less stringent "failing company" standards than post-1970 JOAs? (Transcript, pp. 9-10.) Answer: Yes. Pre-1970 JOAs were permissible for companies not "likely to remain or become a financially sound publication"; post-1970 JOAs were permissible for companies "in probable danger of financial failure." Both standards are of course far more lenient than the requirements for a failing company under Clayton section 7, Citizen Publishing Co. v. United States, 394 U.S. 131 (1969), requirements Hearst cannot satisfy in this case.

4. "If a termination agreement is, in fact, an amendment for purposes of the Newspaper Preservation Act, is not it to be analyzed pursuant to Subsection B of Section 1803? That is, subject to the more stringent, probable danger of failure standard." (Transcript, p. 10.) Answer: Because this JOA was entered into in 1964, before the Act, amendments are not subject to review by the Department of Justice under 15 U.S.C. § 1803(a) or (b).

5. "What’s the standard of review the Court should apply here?" (Id.) Answer: No standard of review applies. This is an original action under the antitrust laws, not a proceeding to review an agency decision by the Department of Justice.

6. "What is the effect of the Attorney General’s decision here at all?" Answer: None. United States v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940).