[KFCF Friends] PACIFICA SIGNS AGREEMENT!
subs-admin@kfcf.org
subs-admin@kfcf.org
Wed Dec 12 21:10:01 2001
This looks like good news. Note from KPFA followed by details!!!!
--Rych/KFCF
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News Flash!!! News Flash!!!
There is a SIGNED agreement between the Pacifica Foundation and the
litigants in the 4 lawsuits against Pacifica!!! The lawsuits have been
settled, and will not proceed to trial next month.
According to litigants Robbie Osman, Carol Spooner, Sherry Gendelman and
Barbara Lubin, who were at the KPFA studios to make the announcement, this
agreement is better than we could have gotten in court. The particulars
were announced at about 3:00 PM today on KPFA. They'll be posted around the
station and no doubt be discussed all over.
As KPFA remains in debt to the tune of over $100,000 we anticipate that the
current fundraiser, which is raising money at an unprecident rate, will
continue on into next week. A decision will be made tomorrow as to the
exact end date of the drive.
Congratulations to us all!!
Jim Bennett and Phil Osegueda
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SETTLEMENT AGREEMENT
This SETTLEMENT AGREEMENT ("Agreement") is entered into by and
between the Attorney-General of the State of California and
plaintiff/relator Carol Spooner ("Spooner"), plaintiffs in the People ex
rel. Spooner action; Rob Robinson ("Robinson") and Aaron Kriegel
("Kriegel"), plaintiffs in the Robinson action; cross-complainants Tomas
Moran ("Moran"), Pete Bramson ("Bramson") and Leslie Cagan ("Cagan"),
plaintiffs in the Moran action; and Dave Adelson ("Adelson"), Sherry
Gendleman ("Gendleman") and Miguel Maldonado ("Maldanado"), plaintiffs in
the Adelson action (the lawsuits are referred to collectively as the
"Actions," and the plaintiffs and cross-complainants are referred to
collectively as "Plaintiffs"); and Robert Farrell ("Farrell"), Wendell Johns
("Johns"), Bertram Lee ("Lee"), John Murdock ("Murdock"), Valrie Chambers
("Chambers"), Marion Barry ("Barry"), James Ferguson ("Ferguson"), George
Barnstone ("Barnstone"), Dick Gregory ("Gregory"), and Krishna Roy ("Roy"),
defendants or potential defendants in the Actions, and nominal defendant
Pacifica Foundation (collectively, "Defendants"), concerning the settlement
of all pending actions between the parties.
WHEREAS, Spooner is the lead plaintiff/relator in the lawsuit
entitled People of the State of California ex rel. Carol Spooner v. Pacifica
Foundation, Case No. 831252-3 (Alameda Co. Superior Ct.) (the "People ex
rel. Spooner Action);
WHEREAS, Robinson and Kriegel are plaintiffs in the lawsuit
entitled Robinson v. Pacifica Foundation, Case No. 831286-0 (Alameda Co.
Superior Ct.) (the "Robinson Action"), and Moran, Bramson and Cagan are
cross-complainants in a lawsuit entitled Moran v. Pacifica Foundation
(Alameda Co. Superior Ct.) (the "Moran Action"), and Robinson, Kriegel,
Moran, Bramson and Cagan are all members of the current board of directors
of Pacifica (collectively, the "Minority Members");
WHEREAS, Adelson, Gendleman and Maldonado are plaintiffs in the
lawsuit entitled Adelson v. Pacifica Foundation, Case No.: 814461-0 (Alameda
Co. Superior Ct.) (the "Adelson Action");
WHEREAS, Farrell, Johns, Lee, Murdock, and Chambers are named as
defendants in some or all of the Actions, and Barry, Ferguson, Barnstone,
Gregory and Roy are potential defendants in the Actions and are named as
defendants in the proposed Second Amended Complaint in the People ex rel.
Spooner Action, and all these ten individuals are current members of
Pacifica's board of directors (collectively, the "Majority Members"), and
Pacifica Foundation is a nominal defendant in all of the Actions;
WHEREAS, David Acosta ("Acosta"), Mary Frances Berry ("Berry"),
Ken Ford ("Ford"), June Makela ("Makela"), Frank Millspaugh ("Millspaugh"),
Michael Palmer ("Palmer") and Karolyn Van Putten ("Van Putten") are named as
defendants in some or all of the actions, and were former members of
Pacifica's board of directors (collectively, with the Majority Members, the
"Individual Director Defendants");
WHEREAS, all parties to this Agreement desire to settle and
finally resolve the Actions, and wish to enter into a settlement agreement
which provides for the dismissal of all of the Actions and the appointment
of an interim board of directors with a mandate to amend Pacifica's bylaws
providing for changes in the corporate governance of Pacifica Foundation;
NOW, THEREFORE, in consideration of the following covenants and
agreements, the Parties agree as follows:
1. Appointment of Interim Board of Directors.
a. An interim board of directors of Pacifica Foundation (the
"Interim Board") with a total of fifteen (15) directors shall be appointed
in the following manner:
i. The Majority Members of the current board
as a group shall select five (5) directors;
ii. The Minority Members of the current board
as a group shall select five (5) directors; and
iii. The Chair of each of the five LABs each
shall select one director, for a total of five (5) directors selected by the
LAB Chairs. Appointees cannot be the current LAB Chair as of September 30,
2001, and must be a member of the LAB as of September 30, 2001.
b. The group or person that selected any director has the right to
appoint a successor in the event of resignation, death or disability of the
director, and any such action by the selecting group or person shall be
effective immediately upon notice to the chair of the Interim Board. Any
such notice may be given by personal delivery, overnight courier or
facsimile.
c. All current members of Pacifica's board of directors who will not
be serving on the Interim Board will resign as directors, effective upon the
convening of the first meeting of the Interim Board. Within forty-eight
hours of the execution of this agreement, each appointing group or
individual shall give notice of the names of their appointees to the Interim
Board. The signatures to this Agreement of the current members of the board
who will not be serving on the Interim Board shall constitute their notice
of resignation.
2. Term of Interim Board. The Interim Board will serve for a term
of fifteen (15) months from the date of the first meeting of the Interim
Board, at the end of which time all directors will resign in favor of
directors to be elected pursuant to new bylaws, as described in Paragraphs
3(b), 3(c), 4. LAB elections pursuant to new bylaws will be held one year
from the date of the first meeting of the Interim Board, and within three
months after the LAB elections the election of a new national board will
take place. An application may be made to the Court to extend the term of
the Interim Board, by two-thirds of the Interim Board, a "balanced majority"
of the Interim Board (i.e, with at least one person from each of the three
groups that designated Interim Board members (Majority Members, Minority
Members and LAB Chairs)), or a majority of three (3) of the five (5) LABs,
on the ground that there is a reasonable probability that an extension is
necessary to complete the revision and adoption of bylaws and the holding of
elections.
3. Work of the Interim Board.
a. Oversee the ongoing operations of Pacifica Foundation.
b. Amendment of Bylaws. The Interim Board will fully review and
revise the Pacifica Foundation bylaws to conform with legal requirements.
This review will be done in consultation with the LABs and the listening
community in all five station areas. Any bylaws concerning the number or
manner of election of directors and/or LAB members must be approved by
majority vote of three (3) of the five (5) LABs. In the event that the
Interim Board and three (3) of the five (5) LABs cannot agree on the number
or manner of election of directors or LAB members within the 1-year time
limit, or any extensions of that limit, then the dismissals of the Adelson
and/or People ex rel. Spooner actions may be vacated against the Foundation
for the purposes of obtaining a judicial determination of the issues raised
in those actions concerning the membership of the Foundation and the
validity of the bylaws and Articles relating to the number and election of
directors and/or LAB members, as described in Paragraph 5.
c. Develop a comprehensive plan for, and oversee, elections of
members of the LABs, pursuant to new bylaws, which elections will be held at
the end of one year following the first meeting at which the Interim Board
is seated and conducts business. The KPFA model will be the starting point
for the new bylaws concerning election of LAB members, and will be modified
as needed. Guidelines will be issued to ensure access to air and to avoid
any abuses that would prevent fair elections.
d. Address what has been identified as Hot Issues:
(1) Democracy Now!
(2) The PNN stringers strike
(3) Audit and Accounting process
(4) New Executive Director
(5) National Program Director
(6) Hire a comptroller
(7) Issues related to the Outgoing Executive Director and other
outgoing staff
(8) Establish a committee to address the WBAI issues
(9) End the gag rule
(10) Help drop any non-assault charges against people in
NYC and Houston (related to protests during this struggle)
e. Address all governance issues, and review and revise policies of
the Foundation.
f. The Administrative Council (station managers, national program
director and executive director) will give input to the Interim Board. The
LABs through the Council of Chairs will give input to the Interim Board.
g. The Interim Board shall exercise its powers with the following
caveats:
(1) use restraint in terminating other employees
(2) use restraint on major contracts or other financial commitments
(3) there will be no executive committee, only a chair, a treasurer
and a secretary
(4) there can be no sale or lease of any of the five stations or
licenses.
h. The following suggestions are made for the Interim Board:
(1) broadcast Interim Board meetings
(2) members of the Interim Board will report back to listeners in
their areas
(3) there will be public comment at the meetings of the Interim Board
(including the possibility for call-ins)
(4) Interim Board meetings will be rotate amongst the five listening
areas
(5) the Interim Board will issue a public report at least every 2
months (on air, in print)
(6) use the web for communication and information sharing
(7) rebuild relationships with the affiliates
(8) affirm that station managers are responsible for the physical
space and the air at the five stations, subject to Board policy and FCC
requirements that Pacifica's board of directors has ultimate responsibility
for the air.
i. (1) Amendments to bylaws, to be adopted, must
receive the vote of two-thirds of all the members of the Interim Board
present and voting, subject to the provisions of Paragraph 3(b).
(2) Resolutions concerning election of officers must
receive the vote of a majority of all the members of the Interim Board
present and voting.
(3) Resolutions concerning all other issues may be adopted and made
immediately effective by the vote of a majority of all the members of the
Interim Board present and voting that includes the "aye" vote of at least
one person from each of the three groups that designated Interim Board
members (majority, minority and LAB appointees), or the vote of two-thirds
of all the members of the Interim Board present and voting. Any such
resolution that receives the vote of a majority of all the members of the
Interim Board present and voting, but without securing either the "aye" vote
of at least one person from each of the three groups that designated Interim
Board members or the vote of two-thirds of all the members of the Interim
Board present and voting shall automatically be referred to Judge Sabraw.
Within two (2) days of the vote on such resolution, letter briefs of no more
than three (3) pages on behalf of the majority who voted to pass the
resolution and of the group for which no members voted to pass the
resolution shall be filed with Judge Sabraw and exchanged among the parties.
Within two (2) days thereafter, or as soon thereafter as the matter may be
heard and decided, Judge Sabraw shall either affirm the resolution as
submitted, or reject the resolution and remand the issue to the Interim
Board. In support of their letter briefs, the parties may submit and
exchange documentary evidence, but no other evidence will be presented or
considered by the Judge. Oral argument will be heard if requested by either
side.
4. Dissolution of Interim Board. Subject to the provisions of
Paragraphs 2, 3(b) and 6, based on revisions in the bylaws and completion of
the LAB elections, as described in Paragraphs 2 and 3(b)-(c), a new board of
directors will be elected within fifteen months of the first meeting of the
Interim Board, and the Interim Board will be dissolved.
5. Settlement of Lawsuits and Judicial Supervision. Within five
days of the execution of this Agreement, the Plaintiffs and Defendants shall
take all necessary actions to resolve the pending lawsuits in the form of a
stipulated judgment, that dismisses all complaints and cross-complaints
against the Individual Director Defendants with prejudice, the causes of
action against Pacifica Foundation in the complaints that seek declaratory
relief or similar relief from the Foundation (such as the Seventh, Eighth
and Ninth Causes of Action in the Second Amended Complaint in People ex rel.
Spooner action and similar causes of action in the other complaints) without
prejudice, and all other causes of action against Pacifica Foundation in the
complaints with prejudice, and that provides that the dismissals shall be
vacated upon motion by any party or director upon a showing that the Interim
Board and three (3) of the five (5) LABs cannot agree on the number or
manner of election of directors or LAB members within one year from the date
of the first meeting of the Interim Board, or any extensions of that limit,
with a request to the Court that any trial of those actions shall be
expedited. The stipulated judgment shall also provide that the Court
maintains jurisdiction to enforce the terms of this settlement agreement,
with any party or director having standing to apply to the Court for
enforcement. In the event that a motion is made to vacate the dismissal of
the People ex rel. Spooner Action, the current relators to that action will
retain relator status and do not need to reapply to the Attorney General for
such status, unless the Attorney General has withdrawn relator status in
writing.
6. Term of this Agreement. This Agreement shall expire upon the
election of a new board of directors after enactment of revised bylaws, as
described in Paragraph 4, or as ordered by the Court.
7. Operative Bylaws. During the term of this Agreement, its
provisions regarding the establishment of and voting by the Interim Board
shall prevail over all bylaws that address the number and manner of election
of directors and voting by the board, which bylaw provisions shall not be
operative, and to this extent this Agreement shall serve as the board's
Action by Unanimous Written Consent pursuant to Bylaw Section 4.6 and Corp.
Code § 5211(b).
8. Payment. The insurance company for the Individual Director
Defendants shall pay to Pacifica Foundation on behalf of the Individual
Director Defendants the sum of $400,000.
9. Mutual Releases.
a. The parties, for themselves and on behalf of their respective
heirs, successors and assigns, fully and forever release and discharge the
other and their respective successors, agents, employees, affiliates,
attorneys, accountants, insurers, partners and joint ventures, and each of
them, of and from any and all liability, claims, demands, damages, punitive
damages, choses in action, disputes, suits, actions, claims for relief and
causes of action, whether known or unknown, arising out of or relating to
facts and circumstances arising out of the issues alleged in the complaints
and cross-complaints in the Actions, whether based in tort, contract,
statute, equity, or other legal theory.
b. The parties hereto certify that they have read the provisions of
California Civil Code § 1542. The Parties hereto waive any and all rights
under California Civil Code § 1542, which states:
"A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with the
debtor."
10. Further Assurances. The parties agree to perform in good faith
such acts and to prepare and execute such documents and stipulations as are
reasonably required to perform the covenants and satisfy the provisions of
this Agreement.
11. No Admission of Liability. This Agreement constitutes a
settlement and compromise of various disputed claims and is made solely to
avoid expensive and time-consuming litigation. Neither the offer nor
acceptance of the terms and conditions of the Agreement represent an
admission of liability or fault on the part of any party, but instead
represents a resolution of the parties claims deemed by the parties to be
mutually favorable and made by mutual agreement.
12. Governing Law and Integration. This is a fully integrated
Agreement, made and entered into in the State of California and shall in all
respects be interpreted, enforced and governed under the laws of California,
except that parole evidence shall not be admissible to interpret, vary or
modify any of the terms of this Agreement. The language of all parts of
this Agreement shall in all cases be construed as a whole, according to its
fair meaning, and not strictly for or against any of the parties. This
Agreement sets forth the entire agreement between the parties with regard to
the subject matter hereof. All agreements, covenants, representations and
warranties, express or implied, oral or written, of the parties with regard
to the subject matter hereof are contained herein, and the documents
referred to herein or implementing the provisions hereof. No other
agreements, covenants, representations or warranties, express or implied,
oral or written, have been made by either party to the other with respect to
the subject matter of the Agreement. All prior and contemporaneous
conversations, negotiations, possible and alleged agreements and
representations, covenants, and warranties with respect to the subject
matter hereof are waived, merged herein and superseded hereby.
13. Severability. Should any covenant, condition or other provision
contained herein be held invalid, void or illegal by any court of competent
jurisdiction, it shall be deemed severable from the remainder of the
Agreement and shall in no way affect, impair or invalidate any other
covenant, condition or other provision herein contained. If such condition,
covenant or other provision shall be deemed invalid due to its scope or
breadth, it shall be deemed valid to the extent of the scope or breadth
permitted by law.
14. Notices. All notices, requests, demands and other communications
under the Agreement shall be in writing and by personal delivery or
overnight courier, and shall be deemed having been duly given on the date of
receipt (receipt shall also include communications that are delivered to the
designated address and left at the premises if no one is at the premises).
Notices shall be addressed as follows, or as the parties may subsequently
designate by written notice:
To plaintiffs in the People ex rel. Spooner action:
Carol Spooner
1136 Wild Rose Drive
Santa Rosa, California 95401
With a copy to:
Bill Lockyer, State Attorney General
Taylor S. Carey, Special Assistant
Attorney General
P.O. Box 944255
1300 I Street, 11th Floor
Sacramento, California 94244-2550
Terry Gross, Esq.
Gross & Belsky LLP
One Maritime Plaza, Suite 1040
San Francisco, California 94111
To the cross-complainants in the Moran action:
Leslie Cagan
550 Fort Washington Avenue #3E
New York, New York 10033
With a copy to:
James Wagstaffe
Timothy Fox
KERR & WAGSTAFFE, LLP
100 Spear Street, Suite 1800
San Francisco, CA 94105
Eugene Majeski
C. Alexander Teu
ROPERS, MAJESKI, KOHN & BENTLEY, P.C.
1001 Marshall Street
Redwood City, CA 94603
To the plaintiffs in the Adelson action:
Sherry Gendelman
338 Vallejo Street
San Francisco, California 94133
With a copy to:
Dan Siegel
Hunter Pyle
SIEGEL & YEE
499 14th Street, Suite 220
Oakland, CA 94612
To the plaintiffs in the Robinson action:
Rob Robinson
522 14th Street, S.E.
Washington, D.C. 20003
With a copy to:
Kenneth Frucht
Law Offices of Kenneth Frucht
660 Market Street, Suite 300
San Francisco, CA 94104
To defendants:
Robert E. Darby
Gregory B. Craig
Fulbright & Jaworski LLP
Williams & Connolly LLP
865 South Figueroa Street, 29th Floor
725 Twelfth Street, NW
Los Angeles, California 90017-2576
Washington, DC 20005-5901
15. Miscellaneous.
a. This Agreement cannot be amended, altered, modified, waived or
superseded, in the whole or in part, except by a written agreement so
stating which is signed by all parties to this Agreement. No delay or
omissions on the part of any party to this Agreement shall operate as a
waiver of any such right or any other right. Waiver of any one breach of
any provision hereof shall not be deemed to be a waiver of any other breach
of the same or any other provision hereof.
b. This Agreement shall inure to the benefit of and be binding on
each party, as well as its or her respective successors or assigns.
c. Each of the parties to this Agreement warrants that it or she has
not assigned or transferred any cause of action, claim for relief, or other
matter released under the Agreement.
d. Section headings are for convenience only and are not part of the
Agreement.
e. The parties hereby agree that faxed signatures of the parties to
this Agreement shall be as binding and enforceable as original signatures;
and that this Agreement may be executed in multiple counterparts with the
counterparts together being deemed to constitute the complete agreement of
the parties.
f. Each person who executes this Agreement on behalf of any party
to the Agreement represents and warrants that he or she has been duly
authorized by such party to execute the Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement in
counterparts, to be effective on the last date executed below.
Dated: December 12, 2001
PLAINTIFFS:
_____________________________
CAROL SPOONER AARON
KRIEGEL
_____________________________
ROB ROBINSON LESLIE
CAGAN
_____________________________
TOMAS MORAN PETE BRAMSON
_____________________________
DAVE ADELSON SHERRY
GENDLEMAN
_____________________________
MIGUEL MALDONADO
ATTORNEY-GENERAL OF THE STATE OF CALIFORNIA
By:____________________________________________
Taylor Carey, Special Assistant Attorney General
DEFENDANTS:
____________________________
ROBERT FARRELL BERTRAM LEE
____________________________
JOHN MURDOCK VALRIE
CHAMBERS
____________________________
WENDELL JOHNS JAMES
FERGUSON
____________________________
GEORGE BARNSTONE DICK GREGORY
____________________________ ______________________________
KRISHNA ROY MARION
BARRY
PACIFICA FOUNDATION
By:_____________________
_______________