McCaw Warpath Leads to Small Business

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. 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. 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.

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?