From Macleans.ca website in Canada:
They don't know Jack
Mark Steyn June 20, 2007 13:37:49
Gus Newman is doing a very good job demonstrating that, far from "inserting" himself into the non-compete agreement, CanWest actively sought a non-compete with Jack Boultbee. He's referenced a ton of testimony suggesting, reasonably enough, that Izzy Asper understood Boultbee was the accounting genius of Canadian newpapering and didn't want him turning up at The Globe And Mail or The Toronto Star.
The government's inclusion of any aspect of the CanWest deal falls, it's hard not to conclude, under the category of malicious prosecution. It was a multi-billion dollar deal, so any percentage would be big in cash terms. Boultbee and Atklinson's non-compete fees are in this indictment because they're seven-figure sums. All the other stuff is nickel-and-dime. But, just as Bora Bora and the apartment are there to enable the government to appeal to class envy, so the CanWest non-competes are there to make Boultbee and Atkinson look like big-time crooks. Otherwise, there's nothing.
But it's still wrong. CanWest was a clean deal. Its place in this case is just sneaky legerdemain.
Creative talent
Mark Steyn June 20, 2007 13:19:30
Counsellor Newman just posted a memo from David Radler to the guys who did the books for The Jerusalem Post. It's three lines that capture the Radler style. There are various proposals - "Make sure all severance pay is reversed" - and an instruction to ensure, before the financials are submitted, that the Post's profit comes in around $3 million.
Final line:
"In other words, be creative."
Same thing when he spoke to the government: time to be creative.
Another good point from Gus
Mark Steyn June 20, 2007 12:45:09
Just a month before this trial began the post-Black regime at Hollinger called Jack Boultbee as a witness in a case between them and CanWest re pensions liabilities that could have cost the rump Hollinger up to $50 million.
As Gus Newman marveled, what kind of "victim" of a "fraud" says let's get the fraudster back to defend our interests?
Not so ridiculous
Mark Steyn June 20, 2007 12:36:20
Another good point from peppery ol' Gus. On Monday, Julie Ruder mocked the non-competes the executives signed with APC, a Hollinger subsidiary whose flagship at that time was The Mammoth Times, a local newspaper for a California ski resort community. Ms Ruder waved a copy of The Mammoth Times and grew unusually animated. "These are snowboarders!" she said, pointing at the front people. "Come on, people!" she yelled at the jury, scoffing at the idea of six-figure pay-offs not to compete with a snowboard sheet. "It's ridikkilluss!"
But, as Mr Newman said, when you're snowboarding, you can't always tell where the snow's flying at you from. Today - June 2007 - if The Chicago Tribune were to offer Jack Boultbee a job, Jack would be unable to accept it - because he's still bound by that non-compete agreement he signed with APC.
The non-competes may be a scam to the government, but they're very real and very enforceable to Jack Boultbee.
Punching holes
Mark Steyn June 20, 2007 12:23:02
For a genial whiskery octogenarian Borscht Belt stand-up act, Gus Newman is full of indignation today. Jack Boultbee's counsel began the defence of his client by plastering great chunks of Julie Ruder's closing statement up on screen and pointing out their divergence from the evidence. The idea that Governor Thompson had no idea about the non-competes, for example: KPMG's auditor, Pat Ryan, was a government witness whom the government declined to call because his testimony was not, shall we say, helpful to their case. He declined to speak with the defence but they called him as a hostile witness and he testified that, at a meeting specifically designed to get confirmation of the Audit Committee's approval, he directed Thompson's attention to the relevant sub-paragraph and Thompson confirmed he'd approved it.
The Audit Committee didn't "miss it". It wasn't "sprung on them". They saw the non-competes and they waved them through because there was nothing unusual about them. Because there's nothing illegal about them.
There is no crime.
And, as one reader wrote, if there ain't no crime, you don't do the time.
The Black defence rests
Mark Steyn June 20, 2007 11:21:29
"He's a stubborn man but an innocent man," concluded Mr Genson, directing the jury to certain supposedly incriminating statements by his client. "There are references to the 16th century and the French Revolution. They don't mean a thing."
They shouldn't. Genson dictated a short list of numbered documents he recommended the jury consult: many of them scribbled down the numbers but some of them very conspicuously didn't.
It was an effective morning after last afternoon's "nervous breakdown" (as Genson described it). But did it come too late?
"Conrad Black is a good man. Conrad Black did a lot of good things for Hollinger," said his attorney, and then added rather touchingly: "He isn't American but he lived the Dream until this nightmare visited him... The government has over-reached. The government has manipulated the facts. Whatever you do, do him justice."
He put up a parking lot
Mark Steyn June 20, 2007 11:03:21
Mr Genson is scoring some big points on the obstruction of justice charge - ie, the security video of Conrad taking those boxes out of 10 Toronto Street. All too typically, the government in its opening statement played fast and loose with the facts, Swaggering Jeff Cramer telling the jury that Black showed up at the office "after hours... The building was dark. It was a three-day weekend."
Er, Black arrived at 3.41pm. That's not "after hours", even at US government offices. As for the building being "dark", Mr Genson put up the security shot of the Toronto St parking lot when Conrad pulled in: it was seven-eighths full.
There's been too much of that rigmarole in this case. The government should have been called on it a lot earlier. No wonder prosecutor Sussman thinks he can strong-arm the foreign press corps.
Fired up
Mark Steyn June 20, 2007 10:25:46
Counsellor Genson is certainly refreshed this morning and rattling off his argument at machine-gun pace. He's on fire and hammering the government on their sleight-of-hand on the perks. Bottom line: on all three charges - the Park Avenue apartment, Bora Bora, Barbara's birthday - Conrad paid money and on two of them Hollinger made money.
No crime. Just business.
Family matters
Mark Steyn June 20, 2007 10:23:50
Boy, these prosecutors are touchy guys. Julie Ruder's dad was in court for her big closing statement, and afterwards Theresa Tedesco and a couple of others went over for a word with him.
This morning, lead prosecutor Eric Sussman strode into court purple-faced and told one of our number to pass the word that if any of us spoke to members of prosecutors' families again nobody on the government team would utter a word to us ever again.
We all quaked in terror and then fell around laughing. Is that a federal offence? "Social interaction with family members of the US Attorney's office" - 15 years plus, if the family member's female, male fraud.
I wondered when the government would cry uncle. I just didn't expect it to be quite so literal.
I ought also to add that Mr Sussman's co-counsel, Ed Siskel, had his father in court for a couple of days and he's a very pleasant fellow and extremely well-read. I know this because he brought in a copy of my book for me to autograph for him, which I was honored to do. Presumably, under the Sussman regime, that's 30 years upgraded to racketeering.
Points of view
Mark Steyn June 20, 2007 10:12:14
This goofy case is mostly a matter of where you're coming from. For example, on the matter of non-compete fees going to Hollinger Inc as well as Hollinger International, any buyer who signed a contract without binding Inc would be guilty of failing to do the most elementary due diligence, and if it all blew up he'd be quickly booted out - as, indeed, the then CNHI CEO was, for paying way too much for Hollinger's papers.
(That's another point that's overlooked: from the US community papers to the CanWest sale, these were big boffo deals. The new regime at the rump Hollinger would sell their own grandmothers but can't find any buyers.)
That the non-competes are still in play is slightly mystifying, but this is the defence's last day to make an unambiguous case on the legitimacy of these agreements. The judge is running a tight ship, and has told Counsellor Genson he can only have an hour this morning. It better be a good one.
The first deal
Mark Steyn June 20, 2007 07:30:46
Something else that emerged (albeit barely) during yesterday's closing address was an alternative narrative to the government's.The very first non-competes to individuals at Hollinger were in the $3.5 billion CanWest deal. They were requested by the buyers. We know that. Izzy Asper wrote a letter to say so. His son David published a newspaper column confirming it. David's brother Leonard would have been happy to testify to it. That's why the payments to Black and Radler in the CanWest deal are not part of this indictment (though the government tries to sneak them in).What seems to have happened is that David Radler, having found out that individual non-competes are tax-free in Canada, then decided to extend them south of the border. Whether this offered any particular advantage to Conrad Black is unclear, as he was a resident of the United Kingdom at that time. However, Conrad, having personally negotiated the CanWest deal with Izzy, in which the requirement for individual non-competes was a major condition brought up in the earliest discussions, was not in on the negotiations for the subsequent US newspaper transactions. They were conducted by Radler, and it would be reasonable for Conrad to assume, on seeing only the signed contracts, that these non-competes were negotiated in the same manner, too. They appeared just as legitimate - and, in fact, as a point of law they are just as legitimate.If this had been made clearer yesterday afternoon, I think things would be looking a lot better.
Invisible Inc
Mark Steyn June 20, 2007 00:34:55
In fairness to Ed Genson, if you could follow what he was saying in late afternoon, he was having a spirited go at demolishing minor props of the government's case - for example, the US Attorney's assertion that it was in Black's interest to transfer money from Hollinger International to Hollinger Inc because he owned a bigger percentage of Inc than International. But, as Genson pointed out, Inc doesn't make any distributions to shareholders, so what difference does it make shifting $12 million from one company to the other? Zero per cent of $12 million is zero. And, if the contention of the government is that Black was diverting these funds because he had a cash-flow problem caused by Barbara's high-priced lifestyle, it makes even less sense to divert money to an entity that doesn't pay out. And, besides all that, the "template" dividing the non-competes between International and Inc 75/25 was sent out to prospective customers by Morgan Stanley, who aren't exactly a fly-by-night operation and saw nothing wrong with splitting the non-competes. Nor would any reasonable observer: Both International and Inc were holding companies run by the same handful of executives, and Inc had in fact owned most of the International titles only four or five years earlier. Had one of those US purchasers signed a non-compete with Hollinger International (chairman: C Black; president: D Radler) and then 18 months later found that Hollinger Inc (chairman: C Black; president: D Radler) had bought the freesheet "shopper" in the neighboring town, he'd have been the first to cry "Fraud!" and these lawyers and regulators would have been the first to back him up.Genson made some good points. I only hope the jury could follow them. Or, as one of my media colleagues put it to me at the second afternoon break, "What the f*** was that all about?"
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