Pictured, left to right, are plaintiff’s attorney Karra Porter, Utah Newspaper Project board members Ted McDonough and Patty Henetz, attorney David Richards (University of Utah law school class of 1991) , and board member Joan O’Brien (University of Utah law school class of 2003). Not pictured are board members Harry Fuller and Janet Goldstein. PHOTO/ KRISTAN JACOBSEN PHOTOGRAPHY
Chances are if you studied at the S.J. Quinney College of Law, at one point in your student career you picked up a copy of Utah’s largest newspaper, The Salt Lake Tribune, to catch up on the daily news.
Like other newspapers across the country, The Tribune in recent years has suffered from a shrinking circulation, a rocky transition into adapting to a digital age with different competitors from decades ago and learning how to put out a daily newspaper with fewer resources and a smaller staff.
But nearly three years ago, The Tribune was dealt a particularly challenging hand: the newspaper’s New York-based hedge fund owners sold half of the paper’s future revenue to The Tribune’s competitor, The Deseret News, for a significant quick profit. The business arrangement forced The Tribune to further cut employees and even more resources —a pattern that seemed dangerously set to repeat itself if a new agreement wasn’t reached.
The scenario alarmed Joan O’Brien, a former Tribune reporter and editor, who left the news business after a successful journalism career to attend the S.J. Quinney College of Law, where she graduated in 2003. She and a group of Tribune supporters formed a nonprofit — Citizens for Two Voices — to fundraise and create a legal team to reverse the business decision that had left The Tribune in a perilous position. The group later filed a federal lawsuit to fight for the Tribune’s future. At the heart of the issue was the Newspaper Preservation Act, a federal law that provides an antitrust exemption to competing daily newspapers, so communities can essentially benefit from having a multitude of news voices reporting.
After a lengthy legal saga, The Tribune earlier this year was sold to Utah philanthropist and businessman Paul Huntsman, a move categorized by many as positive for The Tribune’s future. O’Brien and other supporters dropped their federal lawsuit and have been credited with playing a significant role in keeping the newspaper alive.
“Several years ago, I wrote a letter of recommendation for a Salt Lake Tribune staffer applying for admission to the University of Utah law school. One of my lines was: Journalism’s loss will be the law’s gain. That reporter was Joan O’Brien, and now, 16 years later, I must amend that sentiment,” former Tribune editor Terry Orme wrote in a June 2016 column praising O’Brien’s legal efforts on behalf of the newspaper.
“During the past three years, O’Brien has deployed her legal expertise in the service of journalism, more specifically in her selfless, tireless and sometimes thankless campaign to save The Salt Lake Tribune, and keep it as Utah’s informational watchdog and investigative beacon.”
O’Brien recently spoke to the S.J. Quinney College of Law about the experience of going to bat for The Tribune and how her legal training helped prepare her for a battle she never expected to fight, but ultimately won.
Q: How did you get involved in the campaign to save The Salt Lake Tribune? What made this cause important to you?
A: In October of 2013, three journalists were sent an anonymous tip warning of a new “Joint Operating Agreement” (JOA) between The Deseret News and the New York owner of The Salt Lake Tribune. One of those reporters is my husband, Tom Harvey. “Deal is Tribune interest for cash,” the note stated in elaborately disguised letters. “Tribune will be left with very little.” It was the first anyone at the paper had heard of drastic new JOA terms that cut Tribune revenues in half and all but eliminated its position in the joint business cofounded with the Deseret News 65 years ago. Tribune reporters obtained the JOA from the Justice Department within two weeks of its signing, and a few days after that our group began calling for an antitrust investigation. In our first letter to the Justice Department’s antitrust division we argued the JOA violated the spirit and the letter of the Newspaper Preservation Act with “the perverse effect of creating economic distress in a community’s profitable and respected newspaper. ”
We now know the Deseret News paid the Tribune’s then-owner nearly $25 million for new JOA terms and real property — money that went straight to New York. Had the deal been executed as planned, we have no doubt it would have silenced the independent voice of the Tribune.
Our nonprofit group, Utah Newspaper Project, includes many former Tribune journalists who understand the complex business relationship between Salt Lake’s dailies, and who recognize The Tribune’s essential role in our community. Like any news consumer, I value the paper’s watchdog journalism. But more than that, the newspaper has always been a family affair for me. My father was its publisher in the 1980s. He even signed the 1982 JOA with the Deseret News. I worked at The Tribune for 15 years before leaving to attend law school in 2000. I still count many journalists there as friends. That is true for others behind Utah Newspaper Project (Citizens for Two Voices and Save The Salt Lake Tribune).
Q: For those who didn’t follow the case closely, what were the legal issues at stake?
A: The Deseret News and The Salt Lake Tribune are business competitors, yet they share advertising, production and distribution operations. Such a partnership would violate antitrust law, but Congress provided a limited immunity in 1970 when it passed the Newspaper Preservation Act.
We argued, in our appeals to the Justice Department and later in our own public-interest antitrust lawsuit, that the 2013 JOA was not entitled to immunity under the act because it denied The Tribune revenues necessary to finance its newsgathering. Those familiar with the Tribune’s books now openly acknowledge the deal would have sent the paper into a downward spiral. Further, we argued the JOA provision granting The Deseret News a unilateral “veto power” over Tribune ownership violated the Newspaper Preservation Act’s requirement that there be “no merger, combination, or amalgamation of editorial or reportorial staffs, and that editorial policies be independently determined.”
Although we were successful in persuading the Justice Department to investigate, we knew that any enforcement by regulators would come too late to prevent massive layoffs and permanent damage to The Tribune. That’s why in the spring of 2014 we took action ourselves with the help of Karra Porter and Dave Richards (a University of Utah law school graduate from the Class of 1991), suing The Deseret News and The Tribune’s New York owner to void the JOA. We had overcome the defendants’ joint motion to dismiss, joint motion for a protective order, various delay tactics, and were poised to resume discovery when Paul Huntsman reached a deal to buy the Tribune last spring.
Q: How did the case resolve itself? Were you happy with the result?
A: Utah Newspaper Project agreed to dismiss its lawsuit on May 31, upon closing of the sale of The Tribune to Mr. Huntsman, the son of Utah philanthropist Jon Huntsman, Sr. and head of Huntsman Family Investments. That same morning, the Justice Department dropped its investigation into the 2013 JOA. Those actions followed the signing of new contracts between owners of The Deseret News and The Tribune.
We are satisfied that new contract terms have resolved major issues raised in our antitrust litigation. The new business arrangement provides The Tribune a sustaining portion of revenue from the two newspapers’ partnership. And the new agreement changed contract language that had given The Deseret News unfettered say over ownership of the larger-circulation Tribune.
After the deals closed, a Tribune reporter tweeted “I think there’s a solid chance I’d be mowing lawns if it weren’t for @SaveSLTrib. Very grateful for their efforts.” That and other expressions of appreciation make me happy. The Tribune now has a local owner who professes a commitment to maintaining its independent voice. That makes me happy, too.
Q: As an alumna of the S.J. Quinney College of Law, how did the skills you gained in law school help you navigate The Tribune fight?
A: After graduating from law school in 2003, I spent five years teaching Mass Communication Law as an adjunct in the University of Utah’s Department of Communication. I have never practiced law, so I feared I was in well over my head when we took on this fight. The antitrust issues and facts in our case are incredibly complicated and difficult to communicate, so I tried to draw upon all that I learned about legal writing from Professor Bill Richards.
“Provide a roadmap,” I would tell myself. “Remember ARSAC.” (A mnemonic taught in legal writing to remember the principles of Assertion, Rule, Synthesis, Application, and Conclusion). Above all, “Be persuasive.”
With a second letter sent Feb. 28, 2014, we succeeded in persuading the Justice Department to investigate the 2013 JOA. That letter may also have helped us to persuade Karra Porter and Christensen & Jensen to represent us.
I’d like to mention another law-school influence. It’s actually a lament. My faculty advisor was Professor John Flynn, an expert in antitrust law who opposed the Newspaper Preservation Act. As special counsel to the U.S. Senate’s antitrust subcommittee, he testified many times before Congress against its passage. Knowing of my Tribune association, Professor Flynn liked to discuss Salt Lake City’s newspaper monopoly with me. Many a time during the 30 months we waged this antitrust fight did I wish I could seek the counsel of Professor Flynn, who died in 2010.
Q: What’s next for you now that The Tribune case appears to be resolved?
A:The advertising and production partnership between the Deseret News and the Tribune will continue. And so will Utah Newspaper Project. We appreciate the thousands of people who supported our litigation, and our group’s board feels a strong obligation to them. We promise to continue to monitor the newspaper joint newspaper operation to ensure the public interest is served in Utah’s unique marketplace of ideas.