Ironically, the first thing Alaska Dispatch News publisher Alice Rogoff’s lawyers did this afternoon was to try to have reporters thrown out of the courtroom.
Rogoff’s lawyer, David Gross, said that some sensitive financial information about the owner of the Dispatch might come to light as he and the opposing side debated whether or not a napkin contract was, indeed, a contract. He asked that reporters be barred from the courtroom.
That didn’t work. Judge Andrew Guidi was having none of it and the small herd of media stayed, notepads in hand.
Reporters on station were Austin Baird from KTUU, Casey Grove from Alaska Public Media, Craig Medred from CraigMedred.news, and Must Read Alaska.
But the largest media organization in the state, the Alaska Dispatch News, was not represented by a reporter or photographer for the biggest legal beat news story of the month.
Instead, Rogoff’s vice president Margy Johnson was there, sitting straight, perfectly coiffed as always, in a black dress, white sweater, and large faux pearls around her neck. She was escorted by William Bittner, of Birch Horton Bittner and Cherot.
The ADN lawyers, David Gross and Mara E. Michaletz, of the BHBC law firm, were next trying to persuade Judge Guidi with another argument that seemed doomed to fail.
Lawyer Gross, having lost the attempt at suppressing press coverage, was saying that the bar napkin promissary note that Alice Rogoff signed on April 18, 2014 was unenforceable as a contract because her former business partner, Tony Hopfinger, had not also signed it. That was proof the two had not come to a meeting of the minds. The case, he said, should be tossed.
Hopfinger is suing Rogoff for something close to $1 million and some other damages for his share of the company. The napkin is his Exhibit A. Other than that, it’s “he said, she said” business divorce with layers of complexity and a trail of email communiques that provide plenty of fodder for lawyers.
WHAT’S NOT IN DISPUTE
Hopfinger and Amanda Coyne (his former spouse) had co-founded a news website called the Alaska Dispatch in 2008. Rogoff bought a majority ownership of 90 percent of Alaska Dispatch Publishing LLC in 2009. Rogoff later bought out Coyne’s 5 percent and that left Hopfinger with 5 percent. Hardly a strong position.
Hopfinger, the former president and editor of Alaska Dispatch News, cut a deal with Rogoff. Later, when talks broke down, he filed a lawsuit against Alaska Dispatch Publishing LLC and Rogoff, saying she owes him money she promised to him in her own handwriting on a bar napkin while the two were parting ways. She paid $100,000 of the $1 million that she wrote she’d pay him.
WHAT’S IN DISPUTE
A year ago lawyer David Gross said in a statement that the whole thing was “the unfortunate conclusion to a former business relationship in which Rogoff, through substantial financial assistance, supported and nurtured Hopfinger’s journalistic aspirations and catapulted him into control as editor at the Alaska Dispatch News, Alaska’s most widely read and recognized news source.”
Hopfinger didn’t “live up to his promises” of running the organization, Gross said in his statement.
Today in court, Gross said that Rogoff’s bar napkin scribbles were not a contract at all but were a sort of pledge to pay Hopfinger $100,000 a year plus 3 percent interest if he would stay on and pledge his loyalty to her for 10 years and work to build up the newspaper empire.
That’s not how Hopfinger recalls it. He said she was buying out his interest because he didn’t want to buy out the newspaper. His lawyer, Thomas Wang, told the court today that the napkin contract was part of a series of negotiations that were on the record and off the record, and that most items of the negotiated business divorce had already been settled.
Rogoff’s lawyer also said that Hopfinger was trying to sell something he didn’t own, because he valued his share as 10 percent of the company, when he clearly owned only 5 percent.
Rogoff’s lawyer today was asking that the case be essentially tossed by the judge. He was asking Guidi to rule that no reasonable person would see a bar napkin promise as an enforceable contract. In addition, Hopfinger had made a mistake, Gross argued, and that also invalidated the agreement.
Hopfinger’s lawyer countered, saying the matter deserves a full hearing with a jury because there are many complex matters, including the fact that Rogoff had already made the first payment of $100,000. Plus, there is that napkin.
Back when Rogoff scribbled her promise on the napkin, Hopfinger says she told him, “show this to the judge if I don’t ever pay you.”
The judge asked today if the napkin was available; Wang said indeed it is, but evidently it was not in his trial briefcase. Judge Guidi chuckled.
THE ALASKA DYSFUNCTION
The fissure between Rogoff and Hopfinger started around the time Rogoff announced she was buying the Anchorage Daily News and would merge operations with the Dispatch. Hopfinger didn’t want to be part of that purchase, had advised her against it, saying he didn’t think the revenue model was solid.
He also was concerned about Rogoff’s talk about bringing in new investors, such as Alaska real estate developer John Rubini, one of Alaska’s richest people. That rubbed Hopfinger the wrong way, introducing a new conflict of interest. Rogoff never did bring in other investors and remains the sole owner of the Dispatch empire today.
Today Guidi probed Gross about why he thought the contract was worthless, and Gross cited ancient case law that says a contract must represent a meeting of the minds.
In fact, Gross said on no less than eight different occasions today that there was no “meeting of the minds” between Rogoff and Hopfinger. It ended up being his one leg to stand the case on.
Neither Rogoff nor Hopfinger were in the courtoom during the oral arguments, although Hopfinger listened by telephone. Judge Guidi said he would decide whether to toss aspects of the case out via summary judgment (decide the case without allowing it to go to jury trial) within 10 days.
But that seems unlikely, given that he also set a court date for next March 5, for a trial expected to last eight days. Right during Iditarod week.
In the meantime, it’s all eyes on the judge.