This is the property of the Daily Journal Corporation and fully protected by copyright. It is made available only to Daily Journal subscribers for personal or collaborative purposes and may not be distributed, reproduced, modified, stored or transferred without written permission. Please click "Reprint" to order presentation-ready copies to distribute to clients or use in commercial marketing materials or for permission to post on a website. and copyright (showing year of publication) at the bottom.

Chasing the Money

By Kari Santos | Jul. 2, 2010

Law Office Management

Jul. 2, 2010

Chasing the Money

After a hotly contested jury trial, the San Francisco Bay Guardian won a $16 million predatory pricing judgment against its chief rival, the SF Weekly. But the Bay Guardian still had to collect, and therein lies a tale.

Bruce B. Brugmann, editor and publisher of the San Francisco Bay Guardian, was feeling pretty good in early 2008. After four years of litigation and 21 days of trial, a jury had found that the SF Weekly and its sister paper in Oakland - the Bay Guardian's chief rivals in the local newsweekly market - attempted to drive him out of business by selling their ads below cost. After Superior Court Judge Marla J. Miller applied treble damages to violations of California's Unfair Practices Act, Brugmann was holding a judgment of nearly $16 million (Bay Guardian Company, Inc. v. New Times Media, LLC, No. 04-435584 (S.F. Super. Ct. judgment entered May 19, 2008)). Now all he had to do was collect it.

Brugmann's attorneys explained that he'd have to wait while the SF Weekly's corporate parent, New Times Media, filed an expected appeal. But there was a consolation: The balance would earn interest at 10 percent a year in the meantime. New Times did appeal (see "Untying the Guardian Knot"), but because it refused to post an appeal bond to secure and suspend the judgment, the $16 million award was due and payable immediately.

"After we found out they hadn't put up a bond, we had some preliminary discussions about where we go from here," says Richard P. Hill, of counsel at San Francisco's Scherer Smith & Kenny and one of the Bay Guardian's trial lawyers. Hill's team quickly discovered that the answer was far from obvious. Although the New Times media conglomerate comprises 14 newsweeklies - including the granddaddy of alternative newspapers, the Village Voice in New York City - the named defendants said they didn't have enough assets to pay the judgment or even to secure a bond.

What's more, New Times's lawyers said that any assets the company had were already spoken for, in the form of $77 million owed to a syndicate of lenders represented by the Bank of Montreal.

"We realized that [enforcing judgments] was completely outside our expertise," Hill recalls. "So we decided to find an expert."

The search didn't go well initially. "The first two or three guys we talked to said they didn't see a way around the obstacles the other side set in the path to enforcement," says Ralph C. Alldredge, an antitrust lawyer also on the Bay Guardian's trial team. But then someone suggested Jay D. Adkisson, a lawyer with Riser Adkisson in Newport Beach who'd been interviewed for the Bay Guardian's own story about enforcing the SF Weekly judgment. With his partner Chris Riser, Adkisson had co-authored Asset Protection: Concepts and Strategies for Protecting Your Wealth (McGraw-Hill, 2004) and built a successful collections practice by representing both the fox and the hounds.

"It's hard to be good in this business unless you play both sides, so you can see how the other side thinks," Adkisson explains. "Of course, it's more fun to be on the creditor's side, because it's more of a hunt."

In the Bay Guardian case, however, the hunt would be more like a safari, and the legal team needed to find someone who was up to the task.

"Adkisson didn't say he could pull a rabbit out of a hat," Hill says of their initial meetings. "But he did not appear to be daunted by what we were facing, either." Alldredge agrees: "Now we had a guy who said, 'There's got to be an answer.' "

Adkisson welcomed the challenge. "None of these cases is run-of-the-mill; they're all about people and personalities," he says. He brings his own strong personality to the work. After he lost an eye to cancer, for instance, he went on to earn a pilot's license and launch a support group ( for survivors like himself.

Not everyone would appreciate the fun in a collections practice. Untangling interlocking corporate entities, reviewing financial documents, and filing motions that invoke arcane statutes such as the Enforcement of Judgments Law (Cal. Code Civ. Proc. §§ 680.010724.060) might even seem like drudgery. But Adkisson takes to the task with enthusiasm. "It's very much a search for the end of the rainbow," he says of his campaign to claim some of New Times's pot of gold. "You hope when you get there, you'll find a leprechaun."

For Adkisson, the collections process is straightforward: "You put pressure on until they cave."

But as he mapped out his strategy for the Bay Guardian, the opposition did not sit still. The quest for assets is now being played out in at least three venues:

? the First District Court of Appeal, where New Times argues that the trial court misinterpreted and misapplied the state Unfair Practices Act (UPA);

? San Francisco Superior Court, where Adkisson sought a charging order entitling the Bay Guardian to a share of SF Weekly's ad revenue; and

? Delaware, where two related cases have bounced from the Chancery Court to federal district court as the Bank of Montreal, a senior lien holder in New Times, attempts to prohibit the Bay Guardian from collecting assets held in the company's various corporate entities.

"Everything is being decided everywhere at once," says Dennis Peter Maio, an appellate attorney at Reed Smith in San Francisco who represents New Times. However, he notes, "If the Court of Appeal rules in favor of New Times, all the collection efforts will end."

With the appeal pending, the chase for assets continues. "You can throw up barriers to defeat collection, and they did," Adkisson says. "But there are serious defects in those barriers, from an asset-protection basis." He won't elaborate.

But he does acknowledge that he's working for the Bay Guardian on contingency, which makes him highly motivated to succeed. He stands to win a share of the judgment, currently estimated at $22 million and compounding interest at $5,000 a day.

Adkisson's first breakthrough came in January, when a San Francisco superior court commissioner entered a charging order against the interests held by 17 of New Times's limited liability operating entities. New Times quickly filed a second appeal, claiming that California law does not provide for charging orders against interests in out-of-state entities (Bay Guardian Co. v. New Times Media, LLC, No. A127816 (Cal. Ct. App., 1st Dist., Div. 1 appeal filed Mar. 9, 2010).) That appeal is pending, too.

In February, Adkisson returned to Superior Court, filing a motion to add two other corporate entities - Village Voice Media (VVM) and Village Voice Media Holdings - to the list of judgment debtors. The two holding companies are at the top of the New Times financial hierarchy, where the money is. But the holding companies weren't created until 2005 - two years after the Bay Guardian sued New Times. Adkisson argued in pleadings that VVM is the "successor and alter ego" of New Times, and was created to sequester assets.

Superior Court Commissioner Everett A. Hewlett Jr., appointed to administer the charging order, in March directed SF Weekly to turn over a list of its advertisers and have them send one-half of ad revenues directly to Adkisson's office.

Adkisson promptly sent letters to the advertisers, telling them of the assignment order and providing his address. But three days later another barrier went up: The Bank of Montreal (BMO) cited Hewlett's order as grounds to declare New Times in default on its loans.

BMO also asserted lien priority under its lending documents and quickly sent its own letters to advertisers, telling them to ignore Commissioner Hewlett's order and send payments they owed SF Weekly to the bank instead.

Hoping to return everyone to their respective corners, Hewlett then directed that payments be deposited into a neutral bank account pending a further order. BMO went to its corner, all right - the Court of Chancery in Delaware, where New Times is incorporated. The bank filed an action against both SF Weekly and the Bay Guardian in an effort to block the distribution of ad revenue (Bank of Montreal v. SF Weekly, LP and Bay Guardian Co., No. 5352-VCP (Del. Ct. of Chancery filed Mar. 15, 2010)). BMO's complaint alleges that the SF Weekly breached its contract and seeks an injunction to prevent the paper from paying the Bay Guardian judgment. BMO also asks for declaratory relief against both publications and charges that the Bay Guardian interfered with the bank's contractual relations. At bottom, it is asking the Delaware courts to bar the Bay Guardian from enforcing the charging order under California law.

Adkisson claims that the most recent financials produced by New Times indicate assets of approximately $191 million in 2007 - more than enough to satisfy both the bank's and the Bay Guardian's claims. He charges that BMO selectively targeted the assets of SF Weekly, which is just one entity in the newspaper chain - but "the one company that we're immediately collecting against."

Adkisson also says he suspects that some of the debt New Times has incurred through BMO came from a revolving line of credit established after the 2008 court judgment - meaning that BMO might actually fall behind the Bay Guardian in line for payment. But he says he has not been able to establish how much money has been loaned.

So Adkisson went back to court yet again, seeking a civil contempt order on the grounds that BMO interfered with Hewlett's order and ignored repeated demands that it "marshal the assets" of the judgment debtors. Under California Civil Code sections 2899 and 3433, a senior creditor with a security interest in a debtor's assets generally may not squeeze out a junior lien holder that has an interest in only a single property; instead, the senior creditor must first satisfy its claim through the debtor's other assets (see Shedoudy v. Beverly Surgical Supply Co., 100 Cal. App. 3d 730 (1980)). A hearing on the contempt motion is pending.

But that's California law; in Delaware it is very difficult to marshal assets. Wary that BMO was attempting to secure hometown justice in the Delaware Chancery Court, Adkisson promptly removed the bank's action to federal district court. He also asked the district court to realign the parties, arguing that BMO and SF Weekly had common interests against the Bay Guardian (Bank of Montreal v. SF Weekly LP & Bay Guardian Co., No. 10-226 (D. Del. removal filed Mar. 19, 2010).

At the same time, Adkisson requested that the court in California appoint a receiver to determine the financial condition of New Times and the lien position of its creditors. BMO attorney Charles Kelley, a partner at Mayer Brown, responded to that idea: "All of the acts of the receiver will have a consequence of driving SF Weekly out of business," he said in a Delaware court hearing. "We are absolutely opposed to a receiver."

In April, Hill and Alldredge - the attorneys who represented the Bay Guardian at trial - argued the motion to add the two New Times subsidiaries to the list of judgment debtors.

SF Weekly responded that the judgment could not be changed after appellate briefs had been filed. Judge Miller agreed and denied the plaintiffs' motion to amend the judgment, citing lack of jurisdiction. But the Bay Guardian appealed, and in late May the Court of Appeal issued an alternative writ of mandate commanding Miller to schedule a prompt hearing on the merits of the motion.

To date, the Bay Guardian has collected no significant money from the judgment.

As the path of the litigation takes more twists and turns, Adkisson remains undaunted. "We've got our hook into them, and they are one big fish," he says. "The closer we bring them to the boat, the more they wiggle."

Legal action has now shifted back to Delaware, where the magistrate judge recommended that the district court remand BMO's action to the Court of Chancery. The Bay Guardian's Brugmann - invoking the jury finding in 2008 that SF Weekly had acted "to injure a competitor or destroy competition" - says New Times has employed similar tactics ever since the judgment was awarded. "Stall and bleed," he says. "That's their strategy since the beginning."

In late May Commissioner Hewlett appointed a receiver to investigate the assets of New Times and SF Weekly, and to formulate a plan for how the judgment could be paid.

"The receiver is a very positive development," says Adkisson, who professes to be having a great time on the case, though it's earned him nothing so far. "I love this work. It's all about the chase, the strategy, and the psychology, and everybody trying to get in the other side's head."

By now, it's clear the contest will likely have only one winner. But with more than $20 million on the line, neither side is blinking.

Clyde Leland is a Berkeley-based training consultant, teaching legal writing and presentation skills.


Kari Santos

Daily Journal Staff Writer

For reprint rights or to order a copy of your photo:

Email for prices.
Direct dial: 949-702-5390

Send a letter to the editor: