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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

CLINTON REILLY,

Plaintiff,

v.

THE HEARST CORPORATION and THE CHRONICLE PUBLISHING COMPANY,

Defendants,

and

EXIN, LLC,

Intervenor.

COURT FILE NO. C 00 0119 VRW

 

PLAINTIFF'S REQUESTED

CONCLUSIONS OF LAW

 

Hearing Date: Wednesday, May 31, 2000

Hearing Time: 9:30 a.m.

Honorable Vaughn R. Walker

 

Plaintiff above-named hereby respectfully requests the Court to make the following Conclusions of Law in the above-captioned action:

1. This Court has subject matter jurisdiction of this action under 28 U.S.C.  1331 and 1337 and sections 4 and 16 of the Clayton Antitrust Act, 15 U.S.C.  15, 26.

2. As a consumer, i.e., a subscriber to The San Francisco Chronicle and a purchaser of The San Francisco Examiner, plaintiff has standing to obtain an injunction to prevent defendant The Hearst Corporation ("Hearst") from purchasing The Chronicle from defendant The Chronicle Publishing Company ("CPC"), and to prevent Hearst from transferring The Examiner to defendant-intervenor ExIn, LLC ("the Fangs").

3. The injury of which plaintiff complains from the transactions giving rise to this lawsuit constitutes antitrust injury, i.e., injury of the type the antitrust laws were designed to prevent arising from that which makes defendants' conduct unlawful.

4. Plaintiff is entitled to injunctive relief because he has demonstrated a significant threat of injury from an impending violation of the antitrust laws.

5. The relevant product market for purposes of this action is the publication and sale of paid circulation daily newspapers.

6. The relevant geographic market for purposes of this action is the city and county of San Francisco, or alternatively the greater San Francisco metropolitan area.

7. Hearst's acquisition of The Chronicle may substantially lessen competition or tend to create a monopoly in the relevant market, and thereby violates section 7 of the Clayton Antitrust Act, 15 U.S.C.  18.

8. Hearst's agreement with CPC to acquire The Chronicle is an agreement that unreasonably restrains trade in the relevant market in violation of section 1 of the Sherman Antitrust Act, 15 U.S.C.  1.

9. Hearst's agreement with CPC to acquire The Chronicle constitutes a conspiracy to monopolize the relevant market in violation of section 2 of the Sherman Antitrust Act, 15 U.S.C.  2.

10. Hearst, by contracting to acquire The Chronicle, has attempted to monopolize the relevant market in violation of section 2 of the Sherman Act.

11. The agreement between Hearst and the Fangs to transfer The Examiner to the Fangs constitutes a contract, combination, or conspiracy that unreasonably restrains trade in the relevant market in violation of section 1 of the Sherman Act.

12. The agreement between Hearst and the Fangs to transfer The Examiner to the Fangs constitutes a conspiracy to monopolize the relevant market in violation of section 2 of the Sherman Act.

13. The agreement between Hearst and the Fangs to transfer The Examiner to the Fangs constitutes an attempt by Hearst to monopolize the relevant market in violation of section 2 of the Sherman Act.

14. Hearst has failed to sustain its burden of proof in establishing a failing company defense to the antitrust violations with which it is charged and which it has been found to have committed.

15. Plaintiff is entitled to a permanent injunction prohibiting Hearst from purchasing The Chronicle.

16. Plaintiff is entitled to a permanent injunction prohibiting Hearst from transferring The Examiner to the Fangs, and prohibiting the Fangs from acquiring The Examiner from Hearst.

17. The right of first refusal and 60-mile clauses in the JOA constitute an unreasonable restraint of trade in the relevant market in violation of section 1 of the Sherman Act; and Hearst's enforcement of those clauses constitutes an unreasonable restraint of trade in the relevant market in violation of section 1 of the Sherman Act and an attempt to monopolize the relevant market in violation of section 2 of the Sherman Act.

18. Plaintiff is entitled to a permanent injunction prohibiting Hearst from enforcing its right of first refusal or the 60-mile clause under the JOA to prevent or impede CPC from selling The Chronicle.

19. Pursuant to sections 4 and 16 of the Clayton Antitrust Act, 15 U.S.C.  15, 26, plaintiff is entitled to recover from defendants, jointly and severally, his cost of suit, including a reasonable attorney's fee.

Respectfully submitted,

Dated: May 23, 2000. ALIOTO LAW FIRM

Joseph M. Alioto

Angelina Alioto-Grace, Pro Hac Vice

One Embarcadero Center, 39th Floor

San Francisco, CA 94111

Telephone: 415-434-8900

SHULMAN, WALCOTT & SHULMAN, P.A.

 

 

By:___________________________________

Daniel R. Shulman, Pro Hac Vice

Jim Hilbert, Pro Hac Vice

121 West Franklin Avenue

Minneapolis, MN 55404

Telephone: 612-871-2909

Attorneys for Plaintiff Clinton Reilly

PROOF OF SERVICE

I, the undersigned, declare that I am, and was at the time of service of the papers herein referred to, over the age of 18 years and not a party to the within action or proceeding. My business address is Shulman, Walcott & Shulman, P.A., 121 West Franklin Avenue, Minneapolis, Minnesota 55404. I am readily familiar with the practice at my place of business for collection and processing of correspondence.

On May 23, 2000, I served the following document(s):

PLAINTIFF'S REQUESTED CONCLUSIONS OF LAW

by Federal Express as follows:

Gary L. Halling, Esq.

Thomas D. Nevins, Esq.

SHEPPARD, MULLIN, RICHTER & HAMPTON LLP

Four Embarcadero Center, 17th Floor

San Francisco, CA 94111

Facsimile: 415-434-3947

J. Thomas Rosch, Esq.

Gregory P. Lindstrom, Esq.

Peter K. Huston, Esq.

LATHAM & WATKINS

505 Montgomery Street, Suite 1900

San Francisco, CA 94111-2562

Facsimile: 415-395-8095

David M. Balabanian, Esq.

MCCUTCHEN, DOYLE, BROWN & ENERSEN, LLP

Three Embarcadero Center

San Francisco, CA 94111

Facsimile: 415-393-2286

I declare that I am employed in the office of counsel permitted to practice before this Court pro hac vice, at whose direction the service was made and declare under penalty of perjury that the foregoing is true and correct.

Executed this 23rd day of May, 2000, at Minneapolis, Minnesota.

 

________________________________________

Gayle M. Schaub, Legal Assistant, RP