Will Morris III & Will Morris IV, whose Morris Publishing escaped hundreds of millions of dollars in debt in bankruptcy case
Nicholas Miller, Partner in Neal, Gerber & Eisenberg, Chicago bankruptcy lawyers for Morris Publishing, who threatened a SLAPP lawsuit against concerned St. Augustine Record readers (see E-mail below)
(E-mails exchanged with Nicholas Miller, Chicago bankruptcy lawyer for Morris Publishing, owner of the St. Augustine Record).
Dear Mr. Miller:
Thank you for your prompt response.
1. Morris refuses to promise to keep the Record open. This shows the reason for its anger at our intervention motion -- we are seeking to shed light on business practices that have not been addressed in the Bankruptcy Court, and which could leave our county for the first time without a local newspaper since circa 1777, when the first printing press arrived in St. Augustine during the British colonial period.
2. Your writing that there are “no present (sic) plans” to close the St. Augustine Record is unresponsive. I asked for a promise and a commitment. Your words ring hollow. Your words are not a promise.
3. Possible solution: if Morris Publishing is unwilling to invest in restoring the St. Augustine Record's news budget, would the Morris family be willing to sell the Record to a group of local residents committed to investigative reporting excellence? Perhaps a non-profit foundation could be started here in St. Augusitne for the purpose of buying the Record and running it as a real newspaper again. Otherwise, the paper faces ruin because subscribers and advertisers don't see enough actual news
4. Threatening concerned St. Augustine Record readers with a Strategic Lawsuit Against Public Participation (SLAPP) is unconscionable, unfriendly and unimaginative. It is also bad public relations. So is imagining that it would cost “tens of thousands of dollars to defend” against the intervention motion appeal. These threats and bullying represent the height of arrogance and hubris. In fact, it appears that your E-mail might be deemed to qualify as a "threatening letter" under 18 U.S.C.1505 and thus, may constitute an obstruction of justice. Has the Morris family read your E-mail?
5. If the owners of Morris Publishing want a place in the history of journalism as bullies, your threats will earn it for them. I cannot imagine any other American newspaper chain threatening its readers with a SLAPP suit in retaliation for their speaking their truth about declining newspaper quality. I can't imagine either Rupert Murdoch or the Sulzbergers empowering a company lawyer to threaten their customers. This is considered bad form. What ever happened to the corporate mantra, "the customer is always right?" What we are talking about here is not just a garden-variety bankruptcy case, but a newspaper chain's tragic longtime decline and fall. Morris newspapers are failing because of their s failure to protect the public interest and report on misfeasance, malfeasance, nonfeasance, waste, fraud, abuse, pollution, racism and bigotry. In 2006, the St. Augustine Record ran an editorial praising me for standing up to authoritarians and reporting governmental misconduct. Editorial, "Always Important to Stick by Your Guns," St. Augustine Record (November 19, 2006). In 2010, the Morris family has not even thanked us for raising our concerns about the decline of the Record. Instead, Morris now threatens us,"like a dockside bully." Robert Bolt, A Man For All Seasons. Like St. Thomas More (patron Saint of Catholic lawyers), I do not knuckle under to threats.
6. We are not impressed with Morris’ threats, or with your stray, reflexive citations to inapposite cases that have nothing to do with the matters at hand. We have a right to be heard in federal court.
7. Morris has waived any right to object to our proposed intervention when Morris filed no opposition before the bankruptcy court, either to the Motion to Intervene or the Motion fo Reconsider.
8. Silence gives consent.
9. In response to your calls last week, asking how this matter could be resolved, I asked you last week whether Morris owners would meet with us to discuss the future of the Record.
10. Your belatedly referring us to locals at the newspaper here in St. Augustine is unresponsive. If the purpose of your telephone calls last week were to work with us and to resolve our concerns, then threatening us is not the answer.
11. If you want to resolve this case, we must speak to Morris' owners and decisionmakers with the power to increase budgets and full-time equivalent employees (FTE) to cover the news, as Morris once covered the news, here in our Nation’s Oldest City.
12. Morris must use some of the money saved in bankruptcy to save the Record, starting with paying news workers a day's pay for a day's work.
13. Instead, it appears that Morris may be violating the Fair Labor Standards Act (FLSA) by abusing unpaid "interns" to report the news.
14. This violation of worker rights to be paid for working reminds me of the practice of some Florida agribusiness concerns, some of whom have been indicted for peonage.
15. At the very least, the Record's not paying some of its reporters could result in an action by the Labor Department to pay overtime at every single Morris newspaper that is not paying some of its news reporters. Steven Greenhouse, "The Unpaid Intern, Legal or Not," New York Times, April 2, 2010. Morris may owe substantial backpay to unpaid news gatherers, whom the U.S. Department of Labor is gearing up to assist with FLSA litigation.
16. May I please hear by Noon or April 12, 2010 whether: (a) Morris will pay the reporters in quo backpay and interest and (b) Morris will meet with local customers, subscribers, readers and advertisers to discuss the future of the Record, and when we can expect that the Record will start covering the news (instead of covering it up)?
Sincerely,
Ed
Ed Slavin
www.cleanupcityofstaugustine.blogspot.com
P.O. Box 3084
St. Augustine, Florida 32085
904-829-3877 (o)
215-554-1187 (cellular)
-----Original Message-----
From: Miller, Nicholas M.
To: easlavin@aol.com
Sent: Fri, Apr 9, 2010 6:05 pm
Subject: RE: Morris Publishing and the St. Augustine Record
Mr. Slavin:
Thank you for your note. Fortunately, I am in the office today and am able to respond to your request for an answer by the end of the day. You'll need to give more notice in the future.
Regarding your first question, you don't quite have it right. What I said was that I am an attorney for the company, do not make management decisions and was simply not in a position at that time to comment one way or the other on the subject. That said, I can now confirm that the company has no current plans to close or sell the St. Augustine Record. Further, as you know, the court found Morris Publishing's plan to publish its newspapers as a reorganized company feasible because, among other things, the company eliminated more than $300 million from its balance sheet through the restructuring, which was accepted by every creditor class and approved by nearly 99% of the only impaired creditors who voted on the plan. So, the company is clearly in a much better position to operate on a long-term basis than it was before the restructuring. If you have further questions about the specific operations of the newspaper, I would suggest that you contact the appropriate personnel in St. Augustine as you would in the ordinary course, because they will be in a much better position to answer those types of questions than I am.
Regarding your efforts to be heard in federal court, we obviously disagree with those efforts and believe the court ruled correctly when it denied your motion to intervene. You have appealed that order, and we will be filing papers with the appellate court to show why that order should be upheld. Specifically, as I mentioned to you on the phone, our papers will cite long-settled case law that holds that standing in a bankruptcy case exists only when a party has a direct financial interest in the matter before the court, and not when a party has only a generalized interest in the outcome of the case. See, e.g.,Vick v. Vick (In re Vick), 233 Fed. Appx. 897, 899 (11th Cir. 2007). Our papers also will say that you lack a financial interest in the outcome of the case because you are unimpaired under the express and clear terms of the Plan (meaning, any claim you may have against the company is unaltered by the plan). See, e.g., Plan at Article III.B.7 (requiring the reorganized debtors to pay all allowed general unsecured claims in full in the ordinary course of business); see also Plan at Art. VII.B (expressly preserving your rights to pursue any disputed claims in the appropriate nonbankruptcy forum). Further, our papers will say, among other things, that, as a matter of federal bankruptcy law, you lack standing because you are unimpaired under the plan. Section 1126(g) of the bankruptcy code states: "A class that is not impaired under a plan, and each holder of a claim or interest of such class, are conclusively presumed to have accepted the plan, and solicitation of acceptances with respect to such class from the holders of claims or interests of such class is not required." 11 U.S.C. sec. 1126(g). So, with all that, as I mentioned on the phone, I honestly (sic) do not understand why you are pursuing this appeal -- which clearly will cost tens of thousands of dollars for the company to defend -- when all of your rights to pursue whatever claims you may have against the company in the appropriate non-bankruptcy forum have been expressly preserved by the confirmed Plan.
To the extent you have concerns about whether the company will have adequate funding and staffing, the court already addressed those issues when it confirmed the restructuring plan and made a specific finding regarding the feasibility of the company on a going-forward basis. Specifically, the court found that "the Plan is feasible and that there is a reasonable prospect of the Reorganized Debtors being able to meet their financial obligations under the Plan and their business in the ordinary course and that confirmation of the Plan is not likely to be followed by the liquidation or the need for further financial reorganization of the Reorganized Debtors," thereby satisfying that requirement of plan confirmation. Confirmation Order at p.16.
To the extent that you believe the newspaper is not fulfilling its first amendment watchdog function, you are free to believe that. We, of course, strenuously disagree. But, as the United States Supreme Court has held, "The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials – whether fair or unfair – constitute the exercise of editorial control and judgment." Miami Herald Publ’g Co., Div. of Knight Newspapers, Inc. v. Tornillo, 418 U.S. 241 (1974). Thus, as disappointed as you may be with the reporting and content of the newspaper, the company is operating the newspaper as it has determined -- in its sole discretion -- to be appropriate. You also have the freedom of choice to subscribe to other newspapers if you are unhappy with the St. Augustine paper.
My understanding is that you are a former attorney, are representing yourself herein and will understand these concepts and know how to respond to them. If you have retained counsel, please let me know who that is, and we will direct any further communications to that counsel. As I mentioned on the phone, I want to avoid any misunderstandings and let you know that the company reserves the right to pursue any and all rights and remedies it may have, including the right to pursue fees and costs incurred as a result of the appeal.
Regards,
Nick
Nicholas M. Miller
Attorney at Law
NEAL ▪ GERBER ▪ EISENBERG
Neal, Gerber & Eisenberg LLP
Two North LaSalle Street ▪ Suite 1700
Chicago IL ▪ 60602-3801
312.269.5654 phone ▪ 312.980.0789 fax ▪ 312.259.0473 mobile
nmiller@ngelaw.com ▪ V-card available at www.ngelaw.com
www.linkedin.com/in/nicholasmiller1
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From: easlavin@aol.com [mailto:easlavin@aol.com]
Sent: Friday, April 09, 2010 1:00 PM
To: Miller, Nicholas M.
Cc: EASlavin@aol.com
Subject: Morris Publishing and the St. Augustine Record
Dear Mr. Miller:
1. This E-mail will confirm your telephone calls to me last week, during which you stated to me that your client, Morris Publishing, declines my request for a simple promise not to close the St. Augustine Record.
2. Please let me know by close of business today if that information is still accurate. Has there been any change in Morris' position on: (a) the future of our local newspaper here in the Nation's Oldest City; and (b) my legal right to be heard in federal court on the bankruptcy reorganization and whether or not it adequately protects the public interest, e.g., in the extent to which the St. Augustine Record will have adequate funding and staffing to exercise the First Amendment "watchdog" function as intended by our Founding Fathers?
3. Thank you you in advance for your response today.
Sincerely yours,
Ed
Ed Slavin
www.cleanupcityofstaugustine.blogspot.com
P.O. Box 3084
St. Augustine, Florida 32085
904-829-3877 (o)
215-554-1187 (cellular)
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