| News Corp
Was Sued by Valassis Now Antitrust Trial
Is In Deliberation, Jury Questions on Law
By Matthew
Russell Lee, Patreon
BBC
- Guardian
UK - Honduras
- ESPN
SDNY COURTHOUSE,
July 12 – It was late on a
Friday night, on May 12, when
News Corporation sued CB
Neptune Holdings, LLC.
In the
docket of the U.S. District
Court for the Southern
District of New York, found by
Inner City Press, there is
was: a complaint filed by
Gibson Dunn, seeking a
declaratory judgment,
News
Corporation
sued CB
Neptune
Holdings, LLC,
et al.,
21-cv-4610.
Quick
research found in a News Corp
SEC filing: "Item
2.01
Completion of Acquisition or
Disposition of Assets. On May
5, 2020, News Corporation (the
“Company”) completed the
previously announced sale of
its News America Marketing
business (“NAM”) to CB Neptune
Holdings, LLC and CB Neptune
Canada Sub Inc., affiliates of
Charlesbank Capital Partners
(the “Transaction”). The
aggregate purchase price for
the Transaction consists of
(a) up to approximately $235
million, comprised of (i) $50
million in cash at closing,
subject to working capital and
other adjustments, less cash
reinvested to acquire a 5%
equity interest in the
business at closing, and (ii)
additional deferred cash
payments payable on or before
the fifth anniversary of
closing in an aggregate amount
of between $125 million and
approximately $185 million,
depending on the timing of
such payments, and (b) a
warrant to purchase up to an
additional 10% equity interest
in the business, which is
exercisable on or prior to the
seventh anniversary of
closing. In the Transaction,
the Company retained certain
liabilities relating to NAM,
including those arising from
its ongoing legal proceedings
with Valassis Communications,
Inc."
On June 9,
SDNY Judge P. Kevin Castel
held a final pre-trial
conference in the Valassis v.
News Corp proceeding, and
Inner City Press live tweeted
it, here:
In run-up to
antitrust jury trial in
Valassis versus News Corp for
allegedly locking it out of
the in-store promotion
advertisement market,
SDNY Judge Castel is holding a
pre-trial conference.
Judge Castel:
You'll notice that the cell
phone rules in the courthouse
have been suspended [ended?]
and you can discrete text. The
witness box will be sprayed
down between witnesses.
Judge
Castel: I don't expect there
to be major changes before,
say, mid July. So these will
be the rules. If you run out
of witnesses, that's
tantamount to resting. I'm
very jealous of the jurors'
time.
Judge
Castel: You asked about
bringing food in. You can send
someone out to buy it, or it
can be delivered below. That's
your business. The cafeteria
is open on the 8th floor of
the courthouse. Exhibits can
only be in electronic form.
On June
29, the trial was underway on
the 23rd floor of 500 Pearl
Street. Inner City Press went
up and covered it. Valassis'
witness described being nixed
by News Corp which reached out
to the highest levels of
K-Mart. Judge Castel repeated
told the witness to answer
only the question asked, and
kept it rolling to 5 pm, then
past after the jury left.
Afterward, near 7
pm, News Corp's counsel filed
a letter seeking to exclude
Valassis' testimony about
statements mae by CPGs
including Kimberly Clark,
General Mills, Kmart and Mars,
now offered for their truth.
News Corp says, "The testimony
should be stricken and related
documents should be excluded."
On
June 30, Valassis said as long
as it can show them to the
jury, it takes no position on
keeping Mars' documents under
seal in the docket - where
Judge Castel has admonished
the parties against referring
to any shareholder or
non-party affiliate of a party
in testimony or argument of
any kind in the presence of
the jury.
Meanwhile,
when smart phones all over the
courthouse went off in the
afternoon with a robo-warning
to reduce electrical use
during the heat wave, Judge
Castel paused the proceedings
and read it out loud. Letting
the jurors go at 5 pm on the
dot, he told them to keep
cool.
On July 1,
Valassis wrote to Judge Castel
arging for the admission of
deposition clips like Foster
Farm's Ms. Corsiglia-Keim
calling NAM a monopoly, and
testimony about gifts to Food
Lion.
On July 6,
Valassis called to the stand
Martin Garofalo of NAM. He
smirked and made analogies to
baseball. By late afternoon,
shown an early video of
himself speaking to laughter
about competition, he
explained to the jurors what
he meant.
On July 8, the
questioning went to 4:59 pm
and got testy, with an expert
witness taking umbrage at
being accused of lying. He
said it just a matter of two
metholodies, and that his is
the correct one.
On July 9, Judge
Castel again took things to 5
pm, with a cocky News Corp
witness in the box, then said
that while he usually
instructs jurors not to think
about their trial over the
weekend, he didn't think that
was a danger here.
On July 12, the
testimony again went all the
way to 5 pm, and even a few
minutes beyond, with
references to Safeway and
Goldman Sachs.
Judge Castel told
the jurors the defense has
only one more witness. Then
after they left, the defense
said they may rest at 3:30 pm.
Judge Castel said he would not
start summations then, but
rather use the last hour and a
half to start the jury charge.
And on July
13 that is how it went, though
the jury charge did not start
until 4:44 pm. After the jury
left, Judge Castel asked who
had written the letter he got
midday.
The author
was in the courtroom; the
letter was to reject an
interrogatory on finding a
separate market, so the jury's
verdict is less likely to be
vacated on appeal. Judge
Castel told the jurors, and
the parties, see you tomorrow
morning.
On July 15, the
jury continued deliberating
and sent out a note, asking if
an act could be
anti-competitive but legal,
and another question. Judge
Castel, who joked that he felt
like the proctor at a final
exam, drafted a response then
took comments on it. Inner
City Press coverage will
continue.
This case is
Valassis Communications,
Incorporated v. News
Corporation et al., 17-cv-7378
(Castel).
***
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