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McCaw Warpath Leads to Small Business

Highlights Hair Salon Threatened with Letter from Wendy McCaw's Attorney Barry Cappello


Monday, December 18, 2006
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It appears that News-Press employees, City Hall, The Indy, Vanity Fair, the American Journalism Review, the Teamsters, public access laws, and former boyfriends are no longer the only ones being targeted by Wendy McCaw on her legal brief-lined warpath. WendyMcCaw.jpg Now Santa Barbara's small business owners are under attack: McCaw's hired bulldog/superstar lawyer Barry Cappello is now sending intimidating letters to stores who post anti-Wendy signs in their windows.

In Cappello's December 13 letter addressed to "Highlight Hair Salon" (come on Barry, it's Highlights, with an "s"!), the store's owner is told to remove the "McCaw, Obey the Law" poster from the window. highlights.gif The legal logic is that the sign implies McCaw is violating the law, which she believes is not true, and that makes it defamatory. Writes Cappello, "California law prohibits any false and unprivileged publication that exposes a person to hatred, contempt, ridicule, and obloquy and injures them in respect to their business and occupation."

It seems that charges of hatred, contempt, and ridicule might better describe his client than the poor little hair salon getting bullied around by high-priced lawyers. And why a small shop on West Alamar was targeted first and not the dozens of other stores also displaying signs closer to the News-Press headquarters remains a mystery.

Congrats to Matt Cota on KSBY, who first reported this story over the weekend. Since then, rumors are trickling in that other stores have been sent similar letters.

mmcaw%20obey%20law%20sign.jpg

In response, Teamsters attorney Ira Gottlieb sent out letters to the Lawyers Alliance for Free Speech, the group of S.B. attorneys supporting the N-P newsroom in their fight to return fair reporting, ethical journalism, and professional standards to the newspaper. That letter is reproduced in its entirety below:

Dear Colleagues,

I am a partner in the union-side labor firm of Geffner & Bush, in Burbank, and first, want to thank all of you for joining in the Lawyers Alliance to help those people who are aggrieved by the overreaching and oppressive approach to journalism and labor relations taken by the Santa Barbara News-Press. You may have seen my name, or even my picture, in the local media, in my continuing efforts to represent the Teamsters Union that represents the newsroom employees at the SBNP, notwithstanding frivolous election objections that the NLRB will consider in a hearing beginning January 9 in Santa Barbara.

If for any reason you are interested in more information about me or my firm, please consult our website at geffner-bush.com, or I would be happy to accept a call from any of you. I am also happy to share any of our public NLRB filings if anyone is interested.

As you are aware, the News-Press saga exploded on July 6 with the resignations of several editors from the paper, followed by massive resignations and firings because of the questionable ethical and professional standards extant at the paper these days. That led to the Union's overwhelming electoral victory (33-6) in a secret ballot election conducted by the NLRB on September 27, but has also led to retaliatory firings (e.g., senior writer and prominent organizer Melinda Burns), a fusillade of threatening letters issuing from Mrs. McCaw's phalanx of lawyers, including David Millstein, Wallace Doolittle and A. Barry Cappello, and retraction demands and lawsuits filed against those who dare to publish critical statements about the News-Press.

To date, the paper has sued the Santa Barbara Independent in federal district court in Los Angeles, and just this past week, filed suit against Sue Paterno, the author of "Santa Barbara Smackdown", the American Journalism Review's deconstruction of the situation at the paper, in Orange County Superior Court. The paper also issued a retraction demand to Vanity Fair in response to its recent article, but to my knowledge, has not filed suit.

Continuing on the theme of suppression, the News-Press has astonishingly threatened the union for its sponsorship of its "gripe website" savethenewspress.com, and just yesterday, Associate Editor Scott Steepleton attempted to inhibit the newsroom staff's sharing of a McCaw "be loyal or else" memo with the employees' representatives and the media, though such disclosure is protected lawful activity.

Of course, the Alliance itself has received at least two letters from News-Press attorneys apparently characterizing Alliance members as unable to reach a fair judgment, which of course only means the judgment reached is to some degree not in accord with that of the paper's management.

I write today to ask your help on a related matter. No doubt many of you have seen the "McCaw, Obey the Law" signs carried and buttons worn by News-Press employees and their supporters. The signs have been appearing in the windows of business owners in town. The exhortation signifies at least the facts that the NLRB has found reason to prosecute the News-Press for certain unfair labor practices (e.g., the cancellation of Starshine Roshell's column, and the threat of disciplinary suspension against employees who engaged in a lawful attempt to deliver a demand letter to McCaw on August 24), that there is good reason to believe the News-Press has violated the law in other respects still under investigation by the NLRB, and that the News-Press is untenably resisting its collective bargaining obligation through its pursuit of frivolous election objections.

It is unfathomable that a court of law would find the posting of this slogan in shop windows (or in people's vehicles, or anywhere else) to be the basis for a valid libel suit. Nevertheless, as the attached threatening letter from McCaw attorney A. Barry Cappello to at least one local business owner shows, the News-Press is obviously not above bullying tactics which may achieve the desired end of forcing the shop owner to remove the sign from his window (see http://www.ksby.com/home/headlines/4933286.html ) but which in my view, is questionable both legally and ethically.

Rule 3-200 of the California State Bar Association's Rules of Professional Conduct provides: 'A member shall not seek, accept, or continue employment if the member knows or should know that the objective of such employment is: [¶] (A) To bring an action, conduct a defense, assert a position in litigation, or take an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person; or [¶] (B) To present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of such existing law.'"

Also attached is a California case in which a union adversary * a hotel * brought a libel lawsuit against a union representative who made a statement about legal proceedings against that hotel (i.e., tha the NLRB had found it guilty of an unfair labor practice, when there had only been a decision to prosecute, not an adjudication), only to have that suit rejected through an anti-SLAPP motion.

It appears to this experienced labor lawyer that Mr. Cappello is on much shakier legal ground than was the hotel in the attached case, but he is probably banking on the fact that most shop owners would prefer to give in to the bully than take the risk of hiring a lawyer who may be able to prevail on such an anti-SLAPP motion and thus have the News-Press and not the shop owner, pay the owner's litigation costs (assuming Cappello would actually bring such a meritless action). Thus, the News-Press silences people who are its adversaries not on the merits of its position, but on the sheer perceived amount of legal resources that the newspaper brings to bear.

What I am asking the Alliance to do, to level the playing field a bit, is respond to Mr. Cappello in writing, to perhaps deter him from further interference with small business owners' freedom of speech, and to show folks like Hair Salon owner Eric Zahm that they have backup in the event the likes of Barry Cappello issue further unsupportable threats, or actually file suit. It would be helpful for the Alliance as a body to respond with a strong letter telling Mr. Cappello he's 'way off base, perhaps using some of the law discussed above for support.

I would be happy to speak to any representatives of the Alliance to pursue this course further. This issue is of course important to my client, the Teamsters, and the newsroom employees the union represents.

But as the very establishment of the Alliance demonstrates, the issues raised in this overall journalistic struggle with the News-Press and this latest threat from Mr. Cappello, implicate broader concerns for the community. I look forward to speaking with you, and for arranging for a suitable response to Mr. Cappello's threatening letter.

Thank you for taking the time to read and consider this.

Very truly yours,

Ira L. Gottlieb Geffner & Bush

So what will happen next? Will the Lawyers Alliance come to the aid of Santa Barbara's small businesses? Who's next to be sued by Wendy McCaw? And how much of this does the town have to endure before the anti-SLAPP suit can be used?

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