The Message


At ANG, Marin's suit claims, the approach was much more dubious. "The allegation is that the best-of winners weren't necessarily the best-of ballot winners," Boggs allows. "Instead, from what we heard from interviews with past and current employees, the ballots may have reflected one thing, but it was common knowledge that whoever would pay money for the ad space would be named the best-of winner." He cites the owner of "a barbershop that was the best-of winner for a period of time, until he said, 'I don't want to put the ad in anymore.' And, lo and behold, the best-of barbershop changed that year. So they were pawning off advertising space as a legitimate contest."

Boggs says that by insisting upon "cleaning up" best-of, Marin became a marked man at ANG -- but his suit goes beyond the impact whistleblowing might have had on him alone. He's seeking monetary compensation for ANG's readership of over 200,000 individuals under California Business and Professions Code 17200, which gives individuals the right to sue entities as "private attorneys general" -- the unelected equivalent of a public official. Plaintiffs are only required to prove that a defendant has engaged in unlawful behavior, and needn't have been damaged personally to gain standing in court. In Boggs's view, "David could collect on behalf of every ANG reader -- all of the people who were cheated by being sent to what was supposedly the best restaurant, when it really wasn't."

Why didn't ANG newspapers report about Marin's suit? An account in the August 13 San Jose Mercury News quoted a source at the Oakland Tribune, the largest of the ANG papers, as saying editors there felt the subject was "inside baseball." An unidentified ANG reporter referenced in the same piece scoffed at the portion of the suit pertaining to the best-of push. "This guy files a class-action lawsuit demanding that anyone who's ever eaten at Everett & Jones gets to take his nickel out of the Tribune, just because it was voted best barbecue joint? We'll see how long that lasts before it gets thrown out of court," the journalist said.

David Marin and his three foster children.
Courtesy of David Marin
David Marin and his three foster children.

On the other hand, a settlement in another Code 17200 affair shows that such suits aren't necessarily doomed from the outset. Three years ago, Sony Pictures was caught using complimentary blurbs from a fictional film critic identified as "David Manning" to hype several of its flicks, among them The Animal, an aggressively humor-free concoction starring Saturday Night Live grad Rob Schneider. In June 2001, two Californians, Omar Rezec and Ann Belknap, sued on behalf of all those consumers who, in Boggs's words, "went to see movies after seeing ads in the newspapers, and found out they sucked." Earlier this month, Sony agreed to pour $1.5 million into a fund created for the plaintiffs and those who joined their quest. Reports suggest that aggrieved parties will likely come away with about $5 apiece -- a tangible symbol of Sony's shame, albeit not nearly enough to make up for suffering through The Animal.

Attorney Ian Fellerman, who represents ANG, doesn't weigh in on the odds that Marin will make his former employer pay in a similar way. "ANG Newspapers' policy is not to comment on pending litigation," he says, "but I can tell you that ANG intends to vigorously defend the lawsuit." Dean Singleton, who heads Media News Group, adds that "the records at the newspapers basically indicate that what's alleged in the suit couldn't possibly have happened. I'm told that when you compare those who advertised with those who were picked for best-ofs, they didn't match up in most cases. That would mean there's no validity to the suit."

Less effusive is Jim Nolan, spokesman for the Denver Newspaper Agency, who declines to speak about either Marin's suit or the filing made for Karen Stenvall by the EEOC. Likewise, Eldon Silverman, identified in the September 15 Post article as Stenvall's lawyer, did not return calls.

Resolution of these disputes will likely be a long time coming, as an employment lawsuit filed against Westword indicates. As reported in our September 26, 2002, issue, former staff writer Steve Jackson accused Westword of age discrimination following a layoff, but the suit is still awaiting a ruling on the paper's summary-judgment request.

No matter what happens with the Jackson case, expect to read about it in these pages. As for the Post, the paper scheduled a management retreat to discuss diversity over Yom Kippur, the holiest date on the Jewish calendar. That kind of decision makes lawyers perk up.

Suits, part two: A couple of student journalists have discovered that there can be career benefits for fighting the power.

In March, Megan Fromm, editor of the Mesa State College Criterion in Grand Junction, filed a suit against the MSC board of trustees, which refused to provide minutes from a closed-door meeting the previous November; the subject of the trustees' chat was Tim Foster, a political cohort of Governor Bill Owens who became the only finalist for the open position of college president. In July, a judge found that the board had entered executive session in violation of Colorado's open-meetings law, and the next month, the trustees chose not to take exception to this conclusion. The board signed a settlement agreement making tapes of the meeting publicly available, and paying just over $600 to cover Fromm's court costs. Her Denver attorney, Kenzo Kawanabe, represented her pro bono.

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