Wednesday, October 14, 2009

Ampersand vs. Roberts: Jerry Wins A Round

When last seen in the hallways of the Santa Barbara Superior Court, Wendy McCaw's attorneys had lost their bid to have the arbitrator in her case against former editor Jerry Roberts removed.

McCaw's wholly owned Ampersand Publications, the parent company of the Santa Barbara News-Press, failed to convince the arbitrator that Roberts had breached his contract with the company or had in any way done Wendy wrong. Having lost on the substance of their claims, they were pointing to procedural irregularities they claim occurred during the arbitration as a reason to have the whole thing dismissed and to start over from square one.

That was back in February of this year. Within a short-time they filed a notice that they were appealing Judge James Brown's adverse decision guaranteeing that yet another installment of McCaw's serial litigation with her former employees would be going on hiatus until the matter was decided by a court of higher authority.

Yesterday, news came that the appeal had been dismissed, clearing the way for the arbitrator to determine the only issue left in the case: How much Ampersand will owe Roberts for his attorney fees.

Herb Fox, Robert's attorney on the appeal, told me over the phone that they were "gratified" by the ruling and that Ampersand's appeal was, in part, "bogus from the get go."

Fox had moved on Robert's behalf to dismiss the appeal on the grounds that Judge Brown's order, which in effect compelled Ampersand to complete the arbitration they had started, was not an appealable order.

Ampersand had taken the position that since one of the effects of Brown's order to continue the arbitration would force them to pay the arbitrator's fees, it was an appealable order under the general rule that any order to pay money can be appealed.

However, Roberts made the question of Ampersand's refusal to pay the arbitrator moot when he advanced the fees so that the arbitrator would continue her work on the case.

With the arbitrator fee issue taken off the table, the appellate court agreed with Roberts and dismissed the appeal.

The dismissal clears the way for the arbitrator to issue a final award on or before the 28th of this month and determine how much Ampersand will have to pay of the $868,685.88 of attorney's fees that Roberts has incurred in the arbitration.

Roberts is also entitled to collect from Ampersand $12,000 in attorney's fees that he incurred in opposing the motion to remove the arbitrator as well as any attorney fees he expended in trying to get the appeal dismissed.

Ampersand has 10 days to petition the California Supreme Court to review whether yesterday's dismissal was proper. Even if Ampersand should choose to file such a petition, the Supreme Court would not be under any obligation to consider the merits of the matter and could choose to summarily deny the petition.

Still lost somewhere in judicial outer space is a decision on whether Wendy McCaw is required to reinstate eight of the paper's reporters that she had fired. A federal judge ruled that the NLRB was not entitled to an injunction that would return the reporters to work. The NLRB appealed that decision and the case was argued before a three-judge panel in March of this year.

Also, still awaiting a decision following the hearing this summer before an administrative law judge, is whether Ampersand violated certain provisions of the National Labor Relations Act.

And of course we're still awaiting a final decision on the hearing that was held two years ago where Judge William Kocol found that the News-Press, among other things, had illegally fired eight reporters (who we're still waiting to find out whether they should be reinstated). McCaw appealed that decision and the full National Labor Relations Board still has to rule on the appeal.

And finally, on October 26th of this year, there will be another hearing on whether Ampersand engaged in unfair labor practices in issuing improper subpoenas to witnesses.
© 2009 by Craig Smith and