Tale of the tape:
Case big news in San FranciscoBy Crystal Kua
They argued in federal court about closing
the Star-Bulletin. The state took the first round,
winning an injunction to stop the shutdown
planned by Gannett Pacific Corp., owner of
the Honolulu Advertiser, and Liberty
Newspapers Limited Partnership,
owner of the Star-Bulletin.
Now, Deputy Attorney General Rodney I. Kimura and
high-powered media attorneys Robert C. Bernius and
Alan L. Marx wait for the results of the second round,
an appeal to the 9th U.S. Circuit Court of Appeals.
These are the lawyers involved in an unprecedented
case, one that could break new legal ground.
Gannett Pacific Corp.
Partner in Washington, D.C., firm
specializes in First Amendment
Lawyers who know him say he wrote the book on media law -- more than one, in fact. But Robert C. Bernius is no mere academician and author. He is a courtroom attorney known for his cool and convincing style, and someone Gannett Co. has turned to when the legal stakes are high.
"He's highly competent and highly successful," said Delaware attorney Jim Green, who has faced him twice and gauged the depth of his knowledge. The First Amendment can be "a relatively esoteric area ... so if the lawyer who wrote the book shows up and says his opinion, (judges) are much more easily swayed by the expert."
Bernius works out of the Washington, D.C., offices of Nixon Peabody, in which he is a partner. The law firm lists 450 attorneys and is one of the nation's largest. It was formed this summer in a merger between a Boston firm and Nixon Hargrave Devans & Doyle of Rochester, N.Y.
No stranger to the legal big leagues, Bernius was a partner in Nixon Hargrave, a firm large enough to make the Top 120 national rankings itself, representing corporations like Kodak and Bausch & Lomb and showing gross revenues in 1998 of over $100 million, and profits per partner of $320,000, according to legal journals and publications.
ROBERT C. BERNIUS
Firm: Nixon Peabody LLP, Washington, D.C.
Born: 1946, Brooklyn, N.Y.
College: Brown University.
Law school: Yale University.
Admitted to bar: New York, 1973; District of Columbia; Maryland, 1987.
Practice areas: Media law, antitrust, white collar criminal defense, commercial.
Bernius' attorney-client relationship with Gannett goes back to the 1970s. In 1978, when he was 32, he argued unsuccessfully on the company's behalf over a New York judge's decision to close a pretrial hearing for two men arrested in connection with the death of a former police officer.
More recently he was involved in the infamous case in which Chiquita Brands International sued after the Gannett-owned Cincinnati Enquirer ran a series of investigative articles on it. The paper eventually retracted the stories, and Gannett agreed to a $10 million settlement after it was learned the reporter had tapped into Chiquita's voice-mail system.
Bernius, who has a low-key courtroom style, commands the respect of fellow attorneys.
"He's a real gentleman: respectful, civil and courteous," said Bruce Sanford, a long-time acquaintance and a nationally known media attorney whose clients include the Society of Professional Journalists. "If he says something, you can take it to the bank. He's not slippery."
Bernius' "attractive demeanor" includes an ability to remove emotion and melodrama from a case -- elements that can raise damage awards -- and show "what's rational, what's logical," said Sanford, who's involved in the Star-Bulletin case as one of the lawyers in a friend of the court brief filed with the 9th Circuit appeals court, siding with Liberty and Gannett.
Even opponents come away impressed. In one of the cases that found him seated across from Bernius, Green said he saw a $1 million verdict vanish on appeal, an arena in which Bernius is "very good, very thorough."
In the other case, Green came out ahead: A jury last year awarded $3 million to a physician who sued over a 1992 article in Gannett's Wilmington News Journal. But, Green allows, "I think in my situation I had the better case. It's not always the lawyer that makes the case." Final arguments are scheduled to be heard this month by the Delaware Supreme Court.
The Star-Bulletin closure case is not the first time Bernius is doing battle with the state.
In a case decided by the 9th Circuit appeals court in 1996, he was part of a successful fight against a Legislature-driven law that required financial disclosures by the Advertiser and Star-Bulletin. Now the Advertiser is calling on his talents again.
"He's very smooth, well-practiced in his courtroom delivery," said Sanford. "He builds credibility with the judge and credibility with the jury. He has a full complement of litigation skills at his command."
'Good public interest lawyer,'
colleagues take on legal giants
Deputy Attorney General Rodney I. Kimura has faced them before: the expert legal guns, the multibillion-dollar corporations. As the deputy assigned to the state consumer advocate in Public Utilities Commission hearings, he has argued on the people's behalf against some of the best and the biggest.
"It's always a David and Goliath battle," said former consumer advocate Chuck Totto, adding, "It takes a courageous lawyer to stand up to those odds and present a good and winning case."
Now Kimura, along with fellow deputies Deborah Day Emerson and Jack Rosenzweig, is in the crucible again, handling the state's case to stop the Star-Bulletin's closure -- the first time a state has filed such a suit -- and in the process taking on Gannett Co., the largest newspaper chain in the nation.
A St. Louis School graduate who joined the state attorney general's office in 1985, Kimura is described as a humble person, and he is quick to dispel any notion that he carries the burden in any of his cases by himself.
Position: Deputy attorney general for 14 years.
RODNEY I. KIMURA
Firm: State of Hawaii Department of Attorney General, Commerce and Economic Development Division, Honolulu.
Born: Nov. 9, 1954, Honolulu.
College: University of Hawaii, 1976.
Law school: William S. Richardson School of Law, University of Hawaii.
Admitted to bar: Hawaii, 1980.
Practice areas: Consumer advocacy, telecommunications, utility regulation, antitrust, computer-related issues and cyberspace law.
"It would be a misstatement to say it was me and me alone," he said. "We are a big office that has a depth of knowledge and experience."
But Totto, who worked closely with Kimura for 12 years as consumer advocate and a member of the state Consumer Protection Office, describes him as someone able to break through the sometimes arcane world of utility service and rate hikes, and who does much of his own research, able to learn and piece together "engineering, finance, economics, statistics, auditing."
Case in point: When the PUC looked into the 1991 islandwide power outage on Oahu, the consumer advocate's office was at a disadvantage -- it had no engineering staff to investigate. Kimura stepped into the breach to unravel what happened, Hawaii Electric Co.'s role, and what needed to be done.
Another example: When Hurricane Iniki damaged utility systems on Kauai in 1992, the consumer advocate's office thought utility shareholders should bear some of the costs, but there was no legal precedent. Kimura dug out similar case law in other industries. The PUC listened to both sides of the issue and came up with a solution.
Kimura's ability to fit pieces together sounds like he might have been an architect which, in fact, was his initial career choice. A love of ocean sports made him toy with the idea of oceanography, and he even thought of becoming a musician, able to play ukulele, guitar and piano, and at one time performing with "a group comprised of guys from high school and paddling club." Now he spends his free time with his family.
Totto believes Kimura's capacity to deal with "complex, technical policy issues" will translate well to the newspaper case. He recalled lunching with Kimura after the injunction was granted, and seeing him already focused on the next step, not basking in the glow of victory, characteristically respectful of the opposition.
"He not only knows the law, but he can also focus on the visceral issue of the case: What does this do to the community?" Totto said. "That's what makes Rodney a good lawyer, a good public interest lawyer. ... I think that's why Rodney works at the attorney general's office. It's public interest law."
Liberty's legal point man familiar
with both sides of issue
In 1983, Newhouse Publishing Co. decided it was time to close its financially problematic St. Louis Globe-Democrat. The morning paper was in a joint operating agreement with the afternoon Post-Dispatch, owned by Pulitzer Publishing Co. Part of the deal: Newhouse would continue to share in the Post-Dispatch's profits, even after the Globe closed.
Enter the Justice Department. The department was worried the closure would set a precedent that could encourage other papers in JOAs to abandon publishing purely for economic reasons, according to the New York Times. The department was ready to argue that the arrangement broke antitrust laws barring corporate deals that substantially lessen competition. It wanted to actively seek a buyer, and the owners did not object.
"We're not going to sit back and hope that somebody reads the press release," Alan L. Marx, chief of the litigation section of Justice's antitrust division from 1982 to 1985, told the Times. "We're going to try and find a buyer."
ALAN L. MARX
Firm: King & Ballow, Nashville, Tenn.
Born: Oct. 2, 1943, Memphis, Tenn.
College: Washington and Lee University (B.A.) and Columbia University (M.A).
Law school: Columbia University.
Admitted to bar: District of Columbia, 1969; Tennessee, 1986.
Practice areas: Antitrust, media, administrative, business, consumer protection.
Although efforts to save the Globe failed in the end -- a new owner was found but went bankrupt after two years -- Marx had the role of the government's point man for prospective buyers, according to news accounts.
Now he's on the other side of the issue, as the legal point man in Liberty Newspapers' efforts to close the Star-Bulletin without putting it up for sale and terminate the newspaper's joint operating agreement with the Honolulu Advertiser.
Marx, 56, who declined to be interviewed, is an attorney with the Nashville, Tenn., firm of King & Ballow. An expert on JOAs frequently quoted by reporters, he is one of six media-law attorneys listed by the firm, whose Web site touts clients like Opryland USA and the Oak Ridge Boys, and a host of news media companies. Among them: Capital Cities/ABC, Knight-Ridder Inc., the Tribune Co., the Chicago Tribune and the Denver Post.
The firm has represented management in well-publicized labor disputes such as the 1990-91 New York Daily News strike. Marx in 1995 handled antitrust issues for Consolidated Newspapers, allowing the Houston Chronicle to buy his client's Houston Post, which printed its last issue April 18.
In the Star-Bulletin closure case, Marx's government experience and intimate knowledge of both sides of the issue (the Newspaper Preservation Act "wasn't intended to be a free ride through the Sherman Act," he said in a 1986 Washington Post article) may come in handy.
The Justice Department is siding with the state, in a friend of the court brief filed with the 9th Circuit appeals court by Assistant Attorney General Joel Klein, the Microsoft-buster.
Marx for 12 years has taught antitrust law at the law school at Vanderbilt University, another of his firm's clients. Don Welch, the law school's associate dean, gave a glimpse into his character.
"As a faculty member, he does a really good job," Welch said.
"The students like that (he) requires a good bit of work. He expects students to come prepared for work."
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