F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 24 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
SALT LAKE TRIBUNE PUBLISHING
COMPANY, LLC,
Plaintiff - Appellant,
and
JAMES E. SHELLEDY, as editor and
administrator of news gathering for The
Salt Lake Tribune; THE SALT LAKE
CITY WEEKLY; KUTV; KUTV
HOLDINGS; KTVX-TV; CLEAR
CHANNEL COMMUNICATIONS,
No. 02-4126 & 02-4165
Plaintiffs - Intervenors,
v.
AT&T CORPORATION; AT&T
BROADBAND & INTERNET
SERVICES, LLC; DESERET NEWS
PUBLISHING COMPANY;
MEDIANEWS GROUP, INC.; and
KEARNS-TRIBUNE, LLC,
Defendants - Appellees,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 2:00-CV-936-ST)
Seth P. Waxman, Wilmer, Cutler & Pickering, Washington, D.C., (A. Stephen
Hut, Jr., Patrick J. Carome, Jennifer M. O’Connor, Rachael A. Hill, Luke A.
Sobota, Wilmer, Culter & Pickering, Washington, D.C.; Gary F. Bendinger, Milo
Steven Marsden, Jeffrey S. Williams, Lisa R. Petersen, Bendinger, Crockett,
Peterson & Casey, Salt Lake City, Utah; Daniel M. Reilly, Barbara Z. Blumenthal,
Sean Connelly, Hoffman, Reilly, Pozner & Williamson LLP, Denver, Colorado,
with him on the briefs) for Plaintiff-Appellant.
Kevin T. Baine, Williams & Connolly LLP, Washington, D.C. and David J.
Jordan, Stoel Rives, Salt Lake City, Utah, (Victoria Radd Rollins, Paul B.
Gaffney, Jennifer G. Wicht, Katherine P. Chiarello, Williams & Connolly LLP,
Washington, D.C.; James S. Jardine, Allan T. Brinkerhoff, Ray, Quinney &
Nebeker, Salt Lake City, Utah; Jill M. Pohlman, Stoel Rives, Salt Lake City,
Utah; Alan L. Sullivan, Todd M. Shaughnessy, Snell & Wilmer LLP, Salt Lake
City, Utah, with them on the briefs) for Defendants-Appellees.
Before TACHA, Chief Judge, EBEL, and O’BRIEN, Circuit Judges.
EBEL, Circuit Judge.
The parties in this case are involved in a continuing fight over the
ownership and control of The Salt Lake Tribune, the largest newspaper in Utah.
The principal shareholders of the plaintiff, Salt Lake Tribune Publishing Co.
(“Tribune Publishing”), once owned The Tribune, and Tribune Publishing sued
the defendants seeking enforcement of a contract giving it an option to purchase
the assets of the newspaper. MediaNews Group (“MediaNews”), through its
wholly owned subsidiary Kearns-Tribune LLC (“KTLLC”), is the current owner
of the assets of The Tribune, and KTLLC and MediaNews have defended against
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the lawsuit by arguing that Tribune Publishing’s option contract to repurchase the
assets of The Tribune is unenforceable. Deseret News Publishing Co. (“Deseret
News”), which is owned by the Church of Jesus Christ of Latter-Day Saints and
publishes the newspaper that is The Tribune’s chief competitor in Salt Lake City,
has joined the action claiming that a separate contract between it and KTLLC—a
Joint Operating Agreement pursuant to which KTLLC and Deseret News share
certain newspaper business operations—forecloses Tribune Publishing’s ability to
enforce performance of its option contract against KTLLC.
This case has not yet reached trial. Before us is Tribune Publishing’s
appeal of the district court’s denial of its request for a preliminary injunction.
The injunction sought would have allowed Tribune Publishing to continue
managing The Tribune, which it had been doing since 1997 under a management
agreement with KTLLC that expired on July 31, 2002. Related to our review of
the denial of the preliminary injunction is the question certified for appeal by the
district court pursuant to 28 U.S.C. § 1292(b), and appealed by Tribune
Publishing, of whether a provision of the Joint Operating Agreement purporting to
prohibit the transfer of certain stock is void as against public policy. We have
jurisdiction pursuant to 28 U.S.C. §§ 1292(a)(1) and 1292(b).
In resolving these appeals, we make four principal rulings. First, we
conclude that the stock transfer restriction in the JOA is valid and enforceable
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under Utah law. Second, we conclude that the district court has subject matter
jurisdiction over the case. Third, we hold that the district court did not abuse its
discretion in denying Tribune Publishing’s motion for a preliminary injunction.
Fourth, despite these three rulings, we conclude that there is a substantial
likelihood that Tribune Publishing will prevail at trial on the merits of its claim of
the right to acquire the assets of The Tribune. We therefore reverse the district
court’s holding to the contrary, which was relied upon as an alternative ground
for denying the preliminary injunction motion.
Accordingly, we AFFIRM in part and REVERSE in part the district
court’s order denying the preliminary injunction.
BACKGROUND
In 1997, The Salt Lake Tribune was owned by the Kearns-Tribune
Corporation, the principal shareholders of which were members of the Kearns-
McCarthey family. Members of the family, descendants of Utah mining magnate
and U.S. Senator Thomas Kearns, had owned and published The Tribune for more
than a century. In April 1997, however, the shareholders of the Kearns-Tribune
Corporation decided to sell Kearns-Tribune Corporation to cable company Tele-
Communications, Inc. (“TCI”), while receiving an option to repurchase the assets
of The Tribune at a later date. The transaction was motivated by the
shareholders’ desire to realize the economic value of what had become Kearns-
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Tribune Corporation’s most valuable asset—approximately $400 million in TCI
stock—while preserving control over and ultimately reacquiring the assets of The
Tribune by the Kearns-McCarthey family.
To achieve these objectives, members of the Kearns-McCarthey family
formed the plaintiff company, Tribune Publishing. Contemporaneously with the
sale of Kearns-Tribune Corporation to TCI, Tribune Publishing negotiated two
contracts with Kearns-Tribune Corporation: a Management Agreement and an
Option Agreement. The Management Agreement appointed Tribune Publishing as
the exclusive agent of Kearns-Tribune Corporation to manage and operate The
Tribune for a period of five years ending on July 31, 2002. This Agreement
provided for automatic renewal unless it was terminated by one of the parties.
The Option Agreement gave Tribune Publishing the right “to purchase all, and not
less than all . . . of the assets used, held for use or usable in connection with the
operation and publication of The Salt Lake Tribune.” The first date upon which
the option could be exercised was August 1, 2002, five years after the date of the
execution of the Option Agreement.
Two aspects of the exercise date of the Option Agreement are important to
this case. First, the earliest date for exercise of the option (August 1, 2002) was
one day after the expiration of the Management Agreement (July 31, 2002),
should one of the parties to the Management Agreement terminate that agreement
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before it was automatically renewed. Second, upon exercise of the option by
Tribune Publishing, the Option Agreement provides for an interim period prior to
the closing of the option transaction of up to 120 days, during which the parties
may use a specified appraisal process to determine the exercise price of the
option. Because there is no necessary overlap between the termination date of the
Management Agreement and the closing date for the purchase of the Tribune
Assets under the Option Agreement, there was always the potential for Tribune
Publishing to be ousted as manager of The Tribune even as it was preparing to
buy the assets of the newspaper.
This possibility has now occurred. In January 2002, KTLLC notified
Tribune Publishing that it was terminating the Management Agreement. The
Management Agreement therefore expired on July 31, 2002, and KTLLC assumed
control of The Tribune. Then, on August 1, 2002, Tribune Publishing notified
KTLLC that it was exercising its option to purchase the Tribune Assets. Tribune
Publishing is thus no longer the manager of The Tribune even as it seeks to
enforce its option to buy the assets of The Tribune.
This state of affairs is due, at least in part, to transactions that occurred
after Kearns-Tribune Corporation was bought by TCI. In 1999, TCI merged with
AT&T Corporation, giving AT&T control over Kearns-Tribune Corporation. As
part of the TCI-AT&T merger, Kearns-Tribune Corporation became a limited
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liability company, Kearns-Tribune LLC (hereinbefore designated as KTLLC), and
assumed all of the rights and responsibilities of Kearns-Tribune Corporation.
AT&T thereafter sold KTLLC to MediaNews, its current owner, in 2001. It was
the prospect of the sale of KTLLC to MediaNews that prompted Tribune
Publishing to begin this litigation by filing a complaint against AT&T in the
United States District Court for the District of Utah in December 2000. The
complaint alleged that the sale of KTLLC to MediaNews would interfere with
Tribune Publishing’s rights under the Option Agreement and it sought injunctive
and declaratory relief and damages.
The district court did not stop AT&T’s sale of KTLLC to MediaNews, in
part because the sale documents recognized and preserved Tribune Publishing’s
rights under the Option and Management Agreements. MediaNews bought
KTLLC, which as noted above owned The Tribune, for $200 million in January
2001. Despite the sale of KTLLC, the litigation continued. Tribune Publishing
has amended its complaint several times since then, and it currently seeks
damages from and injunctive relief against MediaNews, KTLLC, and Deseret
News for, among other things, breach of contract, interference with prospective
economic relations, and breach of the duty of good faith and fair dealing. 1
1
On March 27, 2002, the district court granted AT&T’s Motion to Dismiss
or for Summary Judgment, thereby dismissing some of the claims against AT&T
(continued...)
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As the termination date of the Management Agreement approached (July
31, 2002), Tribune Publishing moved for a preliminary injunction that would
prevent MediaNews or KTLLC from ousting Tribune Publishing as manager of
The Tribune. The district court denied that motion on July 22, 2002, nine days
before the termination date. Tribune Publishing filed a notice of appeal on the
same day that its motion was denied, and then sought an injunction pending
appeal both from the district court and this court. Both of those requests were
denied, and we ordered that the case be briefed and argued on an expedited basis.
DISCUSSION
I. THE CERTIFIED QUESTION
We address first the question certified for appeal by the district court
pursuant to 28 U.S.C. § 1292(b) because our answer affects the resolution of
other issues in the case. 2 The question certified for our review is whether a
certain provision of a contract between KTLLC and Deseret News is void as
against public policy.
1
(...continued)
and granting summary judgment in favor of it on the others.
2
In Part II we address subject matter jurisdiction. We place that discussion
after this analysis of the certified question only because certain of our conclusions
here are necessary predicates to our later conclusions on subject matter
jurisdiction.
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In 1952, Deseret News and the predecessor in interest of KTLLC entered
into the Joint Operating Agreement (“JOA”), the purpose of which was to share
overhead expenses related to the production of The Salt Lake Tribune and the
Deseret News. 3 The JOA created the Newspaper Agency Corporation (NAC) to
be the agent of KTLLC and Deseret News. The NAC is charged under the JOA
with conducting the printing, advertising, distribution, and billing activities of
both newspapers; the newsgathering and editorial functions of each paper were
kept strictly separate under the agreement. KTLLC and Deseret News each own
50% of the stock in the NAC, and an amended form of the agreement remains in
force today.
The JOA carefully delineates the scope of the NAC’s operations as the
agent of both Deseret News and KTLLC, and it specifies how the parties are to
nominate and elect their representatives to the management of the NAC. In
addition, and most relevant for present purposes, the JOA contains a provision
purporting to prohibit the transfer by KTLLC or Deseret News of their ownership
of the NAC stock to anyone else. This is the provision we must review and that
Tribune Publishing argues is void because it is contrary to the public policy of
3
In order to preserve multiple editorial voices in a given market and assist
financially distressed newspapers, Congress encouraged the formation of JOAs by
giving them a limited exception to the antitrust laws. See Newspaper
Preservation Act, 15 U.S.C. §§ 1801–1804.
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Utah. We hold that the stock transfer restriction is valid and enforceable and not
in violation of Utah public policy.
The restriction on the transfer of NAC stock is contained in Section 2 of
the JOA. It says:
STOCK RESTRICTIONS. The parties hereto [KTLLC & Deseret
News] shall continue the operations of the Agency Corporation
[NAC] and shall not assign, sell, transfer, mortgage, pledge or
otherwise dispose of their stock in the Agency Corporation nor
voluntarily permit alienation thereof by any means during the term of
this Agreement or any renewal thereof, and such stipulation shall
remain printed on the face of the stock certificates heretofore issued
to the parties hereto as aforesaid, or any stock certificate representing
shares of the Agency Corporation hereafter issued.
1982 JOA § 2, at 3 (emphasis added).
This restraint on the transfer of NAC stock is relevant to the instant case
because the defendants argue that it defeats Tribune Publishing’s claim for
specific performance of the Option Agreement. The defendants contend that the
district court cannot issue a decree ordering KTLLC to transfer the NAC stock to
Tribune Publishing because such an order would cause KTLLC to breach Section
2 of the JOA and, therefore, the order would be contrary to principles of equity.
In fact, the defendants go further, arguing that because the obligation not to
transfer the NAC shares existed before the Option Agreement, the Option
Agreement is void because it conflicts with KTLLC’s prior obligations under the
JOA.
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The district court considered the validity of the stock transfer restriction in
its Order on Motions for Summary Judgment. In that order, the district court
characterized the stock transfer restriction in the JOA as “an absolute prohibition
against the transfer of the stock by assignment, sale or otherwise.” Order on
Motions for Summary Judgment, May 31, 2002, at 5. The court ruled that the
stock transfer restriction is valid and enforceable under Utah law, but also
concluded that it does not affect the validity of the Option Agreement. The
district court therefore entered summary judgment in favor of Tribune Publishing
on the issue of the validity and enforceability of the Option Agreement.
However, although the district court concluded that the valid transfer restriction
in the JOA did not void the Option Agreement, it also ruled that the stock transfer
restriction is an obstacle to Tribune Publishing’s claim for specific performance
of the Option Agreement and denied Tribune Publishing summary judgment on
that issue.
The validity of the stock transfer restriction is “an issue of law that is
controlling in this case” because it affects the form of relief to which Tribune
Publishing may be entitled. Order Certifying Issue Pursuant to 28 U.S.C. §
1292(b), Aug. 21, 2002, at 3. Finding that the criteria governing the certification
of issues for interlocutory appeal under 28 U.S.C. § 1292(b) had been met, the
district court sua sponte certified for appeal the question whether the restraint on
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the alienation of NAC stock contained in Section 2 of the JOA is void as against
public policy. (Id. at 2–3.) Because this issue is a pure question of law, we
review it de novo. Dang v. UNUM Life Ins. Co. of Am., 175 F.3d 1186, 1189
(10th Cir. 1999).
A. Utah’s Public Policy
In analyzing arguments invoking public policy to interpret contracts under
Utah law, we are “mindful of Utah’s practice of interpreting public policy very
narrowly.” Am. Airlines v. Christensen, 967 F.2d 410, 414 (10th Cir. 1992).
Utah recognizes that “the theory of public policy embodies a doctrine of vague
and variable quality, and, unless deducible in the given circumstances from
constitutional or statutory provisions, should be accepted as the basis of a judicial
determination, if at all, only with the utmost circumspection.” Berube v. Fashion
Centre, Ltd., 771 P.2d 1033, 1043 (Utah 1989) (quoting Patton v. United States,
281 U.S. 276, 306 (1930)).
We find that Utah’s public policy with respect to stock transfer restrictions
has been expressed by Utah’s legislature in a statute. Section 16-10a-627 of the
Utah Code states:
Restrictions on transfer or registration of shares or other
securities.
(1) The articles of incorporation, the bylaws, an agreement
among shareholders, or an agreement between one or more
shareholders and the corporation may impose restrictions on the
transfer or registration of transfer of shares of the corporation. . . .
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....
(3) A restriction on the transfer . . . of shares is authorized:
(a) to maintain the corporation’s status when it is
dependent on the number or identity of its shareholders;
(b) to preserve entitlements, benefits, or exemptions
under federal, state, or local laws; and
(c) for any other reasonable purpose.
Utah Code Ann. § 16-10a-627 (2001) (emphasis added).
There are no reported cases interpreting the relevant provisions of § 16-
10a-627, but the assistance of such cases is not necessary where, as here, the
terms of the statute are clear. Through the statute, Utah plainly embraces the
validity of stock transfer restrictions. According to § 16-10a-627(3)(c), a stock
transfer restriction is authorized in Utah as long as the transfer restriction serves a
“reasonable purpose.” The only issue we must resolve as to the certified
question, therefore, is whether the stock transfer restriction contained in Section 2
of the JOA is designed to serve a reasonable purpose.
The obvious purpose of the stock transfer restriction in the JOA is to
prevent any other entities besides KTLLC and Deseret News from participating in
control of the NAC. Section 7 of the JOA says that the stock ownership in the
NAC “is solely for the purpose of dividing the control of the Agency Corporation
between [the parties].” 1982 JOA § 7, at 13. By limiting stock transfers,
therefore, the parties intended to restrict who can control the NAC.
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The desire to limit the participation of outsiders in a close corporation like
the NAC has long been recognized as a reasonable purpose for a share transfer
restriction. When Chief Justice Holmes was still a judge on the Supreme Judicial
Court of Massachusetts, he wrote:
Stock in a corporation is not merely property. It also creates a
personal relation analogous otherwise than technically to a
partnership. . . . [T]here seems to be no greater objection to retaining
the right of choosing one’s associates in a corporation than in a firm.
Barrett v. King, 63 N.E. 934, 935 (Mass. 1902); see also Castriota v. Castriota,
633 A.2d 1024, 1027 (N.J. Super. Ct. App. Div. 1993) (“[T]he courts have
recognized that stock in a small corporation is not merely property, that it also
creates a personal relation analogous to a partnership and that the owners have
reason to prevent unacceptable outsiders from acquiring an interest in the
entity.”). One commentator has summarized this point in a way particularly
applicable to the intimate relationship that exists between the shareholders of the
NAC:
The particular significance of the “close” character of a corporation .
. . lies very clearly in the fact that such a [share transfer] restriction
is inherently more “reasonable” when applied to the stock of a
corporation having only a few shareholders who are generally active
in the business . . . than when imposed upon the stock of a
corporation which has numerous shareholders who . . . do not
participate actively in the day-to-day management and conduct of the
corporation’s affairs.
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J.R. Kemper, Annotation, Validity of “Consent Restraint” on Transfer of Shares
of Close Corporation, 69 A.L.R.3d 1327 (1976).
The reasonableness of the purpose of the JOA’s stock transfer restriction is
more evident when considered in the special context of the NAC. As
shareholders in NAC, KTLLC and Deseret News did not, as shareholders
traditionally do, merely provide capital to fund an entity that would pursue its
own independent business existence. They created the NAC expressly for the
purpose of having it act as their agent. 1982 JOA § 7, at 13 (“The sole purpose
and function of the Agency Corporation shall be to act as agent of the parties
hereto in the printing, advertising, solicitation and distribution of their respective
papers . . . .”). It was designed to serve the operational business needs of the two
shareholders’ pre-existing businesses, The Salt Lake Tribune and the Deseret
News. Indeed, the NAC is authorized only to serve the needs of those two
specific newspapers. We agree with the district court’s observation that Section 2
of the JOA “reflects the unique position of the parties to the JOA, and the fact
that they jointly own assets and are interdependent upon each other for the
success in the publishing, advertising and distribution of their respective papers.”
Order on Motions for Summary Judgment, May 31, 2002, at 5.
Here the relationship between the shareholders and the corporation is that
of principal and agent. See Mecham v. Consol. Oil & Transp., Inc., 53 P.3d 479,
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483 (Utah Ct. App. 2002) (“[A]gency is the fiduciary relation which results from
the manifestation of consent by one person to another that the other shall act on
his behalf and subject to his control, and consent by the other so to act.”) (internal
quotation marks and citation omitted). And principals are subject to liability for
the acts of their agents that are within the scope of the agent’s authority. See
Forsyth v. Pendleton, 617 P.2d 358, 360 (Utah 1980) (“[T]he general principle of
the law of agency is that principals are bound by the acts of their agents which are
within the apparent scope of the authority of the agent . . . .”). The arrangement
here is therefore starkly different from the one that shareholders enjoy in the
usual relationship between shareholders and a corporation where shareholders are
protected by limited liability. In this unusual circumstance, we do not hesitate to
conclude that the purpose of the share transfer restriction in the JOA is reasonable
and that its scope is appropriately tailored to achieve that purpose. It therefore is
authorized by § 16-10a-627 of the Utah Code and is not contrary to that state’s
public policy.
Although Tribune Publishing concedes that “reasonable restraints on
alienation are sustainable,” Tribune Publishing argues that the restraint at issue
here is an “absolute prohibition on alienation of stock” and that such restraints
can never be reasonable. In support of this contention, Tribune Publishing makes
several arguments. We find none of them convincing.
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First, Tribune Publishing points to a number of cases that, it says,
uniformly establish that absolute prohibitions on share transfers are against public
policy. See, e.g., Castriota v. Castriota, 633 A.2d 1024, 1028 (N.J. Super. Ct.
App. Div. 1993) (“[a] restraint against alienation [that] is total and absolute . . .
[is] void as against public policy”); Witte v. Beverly Lakes Inv. Co., 715 S.W.2d
286, 291 (Mo. Ct. App. 1986) (“absolute restriction on [stock] transfer is
unreasonable per se and void”); Quinn v. Stuart Lakes Club, Inc., 443 N.E.2d
945, 945 (N.Y. 1982) (“an absolute restraint on the power of alienation violat[es]
the public policy in this State”). Even if the holdings of these cases from other
jurisdictions at one time could have been imported into the common law as it
exists in Utah, they are no longer relevant. Section 16-10a-627 of the Utah Code
expressly authorizes share transfer restrictions that have a reasonable purpose,
and any more restrictive common law rule is overridden by this statute. 4 See, e.g.,
Utah v. Harvey Real Estate, 57 P.3d 1088, 1092 (Utah 2002) (holding that a
statute preempts common law principles to the extent they are inconsistent with
the statute); Gottling v. P.R. Inc., 61 P.3d 989, 991 (Utah 2002) (“We have long
held that where a conflict arises between the common law and a statute or
constitutional law, the common law must yield . . . because the common law
4
Section 16-10a-627 of the Utah Code was enacted in 1992. Act effective
July 1, 1992, ch. 277, § 53, 1993 Utah Laws.
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cannot be an authority in opposition to our positive enactments.”) (internal
quotation marks and citations omitted); Hansen v. Utah State Ret. Bd., 652 P.2d
1332, 1337–38 (Utah 1982) (same). The rule that Tribune Publishing urges upon
us—any “absolute prohibition” on share transfers is per se void—contradicts the
Utah statute by foreclosing those, perhaps rare, absolute restraints on share
transfers that are reasonable. The Utah statute permits restrictions with any
reasonable purpose, which require a reasonableness inquiry and not a per se rule
when evaluating a share restriction.
The one case that Tribune Publishing cites dealing with Utah law,
Shumaker v. Utex Exploration Co., 157 F. Supp. 68, 72 (D. Utah 1957), is
inapposite because it, too, is trumped by the later-enacted statute. See Farmers
Ins. Exch. v. Call, 712 P.2d 231, 235 (Utah 1985) (overruling precedent because a
later-enacted statute established the public policy that the precedent had rejected).
In Shumaker, the court considered the validity of a corporate bylaw giving the
corporation a right of first refusal to purchase shares being sold by stockholders.
The court upheld that share transfer restriction, relying on reasoning that is
consistent with the outcome we reach in this case under the Utah statute. The
court found that the restriction was reasonable in relation to the interests of the
corporation and “[r]easonable restrictions on the sale of corporate stock are now
generally approved.” Id. at 73.
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The portion of the Shumaker opinion relied upon by Tribune Publishing is
not persuasive authority. The language Tribune Publishing cites from Shumaker
to support its position—“a corporate bylaw which prohibits the alienation of the
stock of the corporation is void,” id. at 72—is a quote from an out-of-date A.L.R.
commentary and is dicta because it was not relied upon to resolve the case.
Second, we also are not convinced that the stock transfer restriction in the
JOA is the “absolute prohibition on alienation” that Tribune Publishing claims it
is. Tribune Publishing has itself apparently always understood the transfer
restriction as acting functionally as a consent requirement and not as an absolute
prohibition against alienation. For example, on at least one occasion the parties
expressly waived the requirements of Section 2 for stock transfers early in the
history of the JOA in order to provide, pursuant to then-prevailing law, qualifying
shares for individuals who served as directors, and Tribune Publishing’s general
counsel testified that the Tribune Publishing board of directors was aware that
Deseret News potentially had a right to refuse to consent to a transfer of
KTLLC’s NAC stock. Tribune Publishing’s outside transactional counsel also
observed that “[t]he joint operating agreement has a consent right in it. It’s
obvious on the face of the document.” 10B Appellant’s App. at AA2978.
Even without considering the past conduct and understanding of the parties,
the transfer restriction cannot be said to be absolute in any functional sense.
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Ultimate ownership of the NAC stock can always be transferred simply by
changing the ownership of the shareholding entity (KTLLC or Deseret News)
while leaving in the shareholding entity legal title to the NAC shares. In this case
alone, ownership of the NAC stock has been effectively transferred four times:
from Kearns-Tribune to TCI to AT&T to MediaNews. Thus, to transfer NAC
stock requires as a practical matter only the transfer of the ownership interests in
KTLLC or Deseret News. Even if KTLLC owned assets in addition to the NAC
stock that its owners did not want to transfer, it need only shift those assets out of
KTLLC into a separate entity and then transfer the ownership of KTLLC in order
effectively to transfer the NAC stock. 5 The point is that any willing seller and
willing buyer can effectuate a transaction that transfers ultimate control of NAC
stock regardless of the desire of Deseret News to enforce the transfer restriction. 6
Indeed, Tribune Publishing recognizes the ease with which such transfers can
occur as it relies on this fact in arguing that the transfer restrictions are no
5
We recognize that it would not be as simple to transfer the ownership
interest in KTLLC if it were a public corporation or had many shareholders. On
the facts of this case, however, where KTLLC has a single, private owner and
KTLLC has only one line of business, the JOA’s restrictions operate
differently—less restrictively—than they would if KTLLC had many shareholders
or were a large and diversified business.
If MediaNews so desired, it could transfer ownership of KTLLC to
6
Tribune Publishing, and with it all of the Tribune Assets, without implicating in
any way Deseret News’s right to enforce Section 2 of the transfer restriction in
the JOA.
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obstacle to an award of specific performance. The operation of Section 2 over
time and the parties’ own expressed understanding of it belies Tribune
Publishing’s assertion that it “forbids all transfers.”
Third, the public policy underlying the rule that Tribune Publishing
advocates is not offended by the JOA’s stock transfer restriction. One reason
courts have given for finding that absolute restraints on alienation are against
public policy is that such provisions constitute an unreasonable incursion on the
free flow of commerce. See, e.g., Witte, 715 S.W.2d at 290 (“[R]estraints on
alienation were, on principle, repugnant to a free economy.”). But the experience
in this case shows that the JOA’s stock transfer restriction is not at all an obstacle
to the free flow of commerce. Although legal title to the NAC shares has resided
with KTLLC or its predecessors in interest during the period relevant to this case,
KTLLC or its predecessor in interest effectively has been sold three times within
a four-year period: from Tribune Publishing to TCI (1997), from TCI to AT&T
(1999), and from AT&T to MediaNews (2001). One might argue that the
impediment to commerce created by the share transfer restriction in the JOA is to
the sale of The Salt Lake Tribune itself and not the sale of KTLLC. But under the
circumstances of this case, there is no difference between the two. KTLLC is
nothing more than a holding company for the Tribune assets. To own KTLLC is
to own the Tribune. It is blind adherence to an empty formalism to insist that the
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stock transfer restriction in the JOA obstructs commerce by preventing the sale of
the Tribune when the newspaper is controlled by whoever owns KTLLC and the
identity of that owner has changed repeatedly.
Finally, Tribune Publishing argues that even if we interpret the statute as
we do—that it permits all reasonable stock transfer restrictions—what is
“reasonable” under the statute is limited by the principle of ejusdem generis.
“[That] doctrine declares that in order to give meaning to [a] general term [in a
statute], the general term is understood as restricted to include things of the same
kind, class, character, or nature as those specifically enumerated, unless there is
something to show a contrary intent.” Utah v. A.T., 34 P.3d 228, 232 (Utah
2001). Tribune Publishing argues that if this principle is applied to the Utah
statute, the statute cannot be read to authorize the share transfer restriction in
Section 2 of the JOA.
The enumeration of specific terms that Tribune Publishing points to as the
basis for applying the principle of ejusdem generis appears in § 16-10a-627(4):
A restriction on the transfer or registration of transfer of shares may:
(a) obligate the shareholder first to offer to the corporation or
other persons, separately, consecutively, or simultaneously, an
opportunity to acquire the restricted shares;
(b) obligate the corporation or other persons, separately,
consecutively, or simultaneously, to acquire the restricted shares;
(c) require, as a condition to a transfer or registration, that any
one or more persons, including the corporation or any of its
shareholders, approve the transfer or registration, if the requirement
is not manifestly unreasonable; or
- 22 -
(d) prohibit the transfer or the registration of a transfer of the
restricted shares to designated persons or classes of persons, if the
prohibition is not manifestly unreasonable.
Utah Code Ann. § 16-10a-627(4). The statute then states that “[t]he description
of the restrictions on the transfer or registration of transfer of shares in
Subsection (4) is not exhaustive.” Id. § 16-10a-627(5). According to Tribune
Publishing, “although this list is not exhaustive, an absolute prohibition would not
be among the class of unidentified, yet sustainable, stock restrictions.”
Tribune Publishing misapplies the principle of ejusdem generis to the Utah
statute. “The doctrine of ejusdem generis applies in instances where an
inexhaustive enumeration of particular or specific terms is followed by a general
term or terms that suggest a class.” A.T., 34 P.3d at 232; see also Culbertson v.
Bd. of County Comm’rs, 44 P.3d 642, 656 (Utah 2001) (stating that the principle
of ejusdem generis applies “where an enumeration of particular or specific terms
is followed by a general term”). The statute at issue here does not present such a
situation. Here, the general term whose meaning is contested—“any . . .
reasonable purpose”—is presented in Subsection (3), before the list of particular
examples and in a separate section of the statute. Utah Code Ann. § 16-10a-
627(3).
The relationship of the general term in Subsection (3) to the specific terms
in Subsection (4) does not suggest that the general term is limited by the specific
- 23 -
terms. Subsection (3) of the statute sets forth the general rule authorizing stock
transfer restrictions with one of three kinds of purposes, including “any
reasonable purpose.” See Utah Code Ann. § 16-10a-627(3) (listing three purposes
for which stock transfer restrictions are authorized). Subsection (4) speaks to a
different subject, namely the specific mechanism by which a stock restriction
operates to achieve the purposes of Subsection (3). See id. § 16-10a-627(4)
(listing four forms of stock transfer restriction that are permitted under the
statute). The forms of share transfer restriction listed in Subsection (4) do not
speak to the purposes for which a transfer restriction may be employed and,
therefore, cannot be read to limit the purposes authorized by Subsection (3). The
principle of ejusdem generis is not applicable in this situation.
Tribune Publishing claims that if an absolute restriction on alienation is
permitted, then “the carefully crafted list of permissible restrictions would be
rendered meaningless.” We disagree. By providing specific examples of common
types of share transfer restrictions that are certainly permissible, the statute saves
courts—and corporations and shareholders—the trouble of conducting the
reasonableness inquiry that would otherwise be necessary under § 16-10a-
627(3)(c) and that we applied above. In any event, as we noted previously, this
restriction in reality operates like the type of restriction that is expressly approved
in § 16-10a-627(4)(c), which validates restrictions requiring “that any one or
- 24 -
more persons, including the corporation or any of its shareholders, approve the
transfer . . ., if the requirement is not manifestly unreasonable.”
B. Other Arguments Against the Share Transfer Restriction
The district court certified only the question of whether the share transfer
restriction in Section 2 of the JOA is void as against public policy. Tribune
Publishing also raises two other arguments against the validity of the share
transfer restriction in its appeal of the denial of its motion for a preliminary
injunction. Both of these arguments are also without merit.
Tribune Publishing argues that the transfer restrictions are void as an
illegal restraint on trade. It alleges that the stock transfer restriction destroys the
antitrust immunity that the JOA receives from the Newspaper Preservation Act
(NPA), 15 U.S.C. §§ 1801–1804. The NPA grants this immunity for JOA’s
provided that the agreements maintain the independent editorial and reporting
functions of each party to the JOA. See 15 U.S.C. § 1802(2) (requiring that there
be “no merger, combination, or amalgamation of editorial or reportorial staffs,
and that editorial policies be independently determined” in order for a JOA to
qualify for the antitrust exemption). Tribune Publishing argues that Section 2 of
the JOA “subverts the ‘independent and competitive’ voice of The Tribune” such
that the JOA does not qualify for the exemption from the antitrust laws.
Assuming arguendo the merits of this legal theory, to prevail Tribune Publishing
- 25 -
must show that the transfer restriction prevents The Tribune’s editorial and
reporting independence. Tribune Publishing entirely fails to do this.
Tribune Publishing claims that Deseret News has wielded its right to
enforce the stock transfer restriction so as to prevent The Tribune from coming
into (or returning to) the hands of owners who will be critical of the owner of
Deseret News, the LDS Church. Specifically, Tribune Publishing alleges that
Deseret News “has exercised this anticompetitive power not only to prevent
[Tribune Publishing]’s reacquisition of The Tribune, but also to extract from
[MediaNews] a promise to avoid taking editorial positions unwelcome to the
owners of the Deseret News respecting the dominant institution in Utah—the LDS
Church.” Appellant’s B. (No. 02-4165) at 24–25.
The theory that Section 2 of the JOA has undermined the editorial and
reporting independence of The Tribune fails for at least two reasons. First, the
JOA expressly requires in other provisions of the contract that editorial and
reporting functions remain independent. Section 15 of the JOA states that “[e]ach
of the parties hereto shall retain unto itself complete and exclusive control of its
news and editorial departments and policies . . . .” 1982 JOA § 15, at 21. That
section also states that “there shall be no merger, combination or amalgamation of
editorial or reportorial staffs, and editorial policies shall be independently
- 26 -
determined.” Id. The same language also appears in the recitals and in Section 9
of the JOA as well.
As the defendants argue, Section 2 cannot therefore be construed to
authorize a violation of the editorial independence of the other party to the JOA.
We agree with the defendants’ argument that “[t]o the extent that [Tribune
Publishing] argues, as a matter of fact, that [Deseret News] has secured an
agreement by The Tribune’s owner to surrender its editorial independence, that is
not an argument that Section 2 of the JOA violates the NPA, but that specific
conduct violates the JOA itself . . . .” Appellees’ B. (No. 02-4165) at 53.
Second, the stock transfer restriction cannot in fact be wielded as the club
that Tribune Publishing imagines. If MediaNews wants to transfer ownership of
The Tribune to Tribune Publishing, it can do so, and Deseret News would have no
ability to stop the transfer. By restructuring a sale of the paper as a sale of
KTLLC and not as a sale of the assets of KTLLC, MediaNews could entirely
avoid Section 2 of the JOA. 7 Therefore, the stock transfer restriction cannot be
used, as Tribune Publishing claims, to keep The Tribune out of the hands of
7
Of course, we do not suggest that the court could restructure the deal as a
stock transaction, rather than as an asset transaction. That, it seems to us, would
be beyond the authority of the court. We mention this possibility only to show
that Desert News does not have unilateral power to prevent Tribune Publishing
from acquiring de facto control over KTLLC interest in the JOA if Media News
and Tribune Publishing decided to restructure the deal as a stock transaction.
- 27 -
owners perceived to be hostile to Deseret News’s interests. For these reasons, we
conclude that Tribune Publishing’s theory that Section 2 of the JOA gives Deseret
News the power to influence the editorial independence of The Tribune is without
merit.
Tribune Publishing next argues that Deseret News has waived its right to
enforce the transfer restriction, but this argument also is unpersuasive. It
correctly states that a party waives a right “by conduct inconsistent with an intent
to enforce that right” and “may not thereafter seek judicial enforcement.” Lone
Mt. Prod. Co. v. Natural Gas Pipeline Co., 710 F. Supp. 305, 311 (D. Utah 1989).
But Deseret News has taken no action that would suggest it lacks the intent to
enforce the transfer restriction to the extent possible. The operative transfer
restriction is Section 2 of the 1982 JOA, which updated the original 1952 JOA. It
appears undisputed that there has not been a single transfer of JOA stock since the
1982 JOA took effect. There were stock transfers in the past between the
shareholding companies and their directors, but this was because Utah law at the
time required a director of a corporation to own stock in it. Utah Code Ann. § 18-
2-20 (1943). Thus, the Tribune Publishing and Deseret News representatives to
the NAC board had to own at least one share of stock in NAC. The stock
transfers occurred when a director retired and his share was transferred to his
replacement. That the parties consented to share transfers under these
- 28 -
circumstances does not constitute waiver of the right to enforce the transfer
restriction at all. “To determine whether there was an intent to relinquish a right,
the court looks at the totality of the circumstances, and whether the circumstances
warrant an inference of relinquishment.” Pasker, Gould, Ames & Weaver, Inc. v.
Morse, 887 P.2d 872, 876 (Utah Ct. App. 1994). An inference of waiver is not
supported by the record in this case. And we reject Tribune Publishing’s
contention that there has been an attempt to “lull [Tribune Publishing] into a false
assurance that strict compliance with a contractual duty will not be required.”
Indeed, as discussed in Part I.A., supra, the record indicates that Tribune
Publishing considered the transfer restriction to be enforceable against it.
Finding unpersuasive Tribune Publishing’s arguments that Section 2 of the
JOA is invalid, we conclude that the stock transfer restriction is valid and
enforceable.
II. SUBJECT MATTER JURISDICTION
Tribune Publishing argues that the district court did not have subject matter
jurisdiction over this case. When the lawsuit was originally filed in December
2000, the only named defendants were AT&T Corporation and AT&T Internet &
Broadband Services, LLC. The original parties to the case were completely
diverse and the district court had subject matter jurisdiction over the case under
the diversity statute, 28 U.S.C. § 1332. Shortly after filing the original complaint,
- 29 -
Tribune Publishing amended that complaint to name MediaNews as a defendant.
This did not affect diversity jurisdiction because MediaNews is a Delaware
corporation headquartered in Colorado and Tribune Publishing is a Utah
corporation. Tribune Publishing contends, however, that the district court’s
jurisdiction over the case was destroyed later when Deseret News was joined to
the action as a defendant because, like Tribune Publishing, Deseret News is a
citizen of Utah. The determination of the district court’s subject matter
jurisdiction is a question of law that we review de novo, Hart v. Dep’t of Labor
ex rel. United States, 116 F.3d 1338, 1339 (10th Cir. 1997), and we conclude that
the joinder of Deseret News as a defendant in the case did not destroy the district
court’s diversity jurisdiction.
In July 2001, the parties filed motions relating to the joinder of Deseret
News. First, Deseret News itself moved to intervene in the action as of right
pursuant to Fed. R. Civ. P. 24(a). Deseret News brought its motion for the
narrow purpose of having the case dismissed for lack of subject matter
jurisdiction because Deseret News and Tribune Publishing are citizens of the
same state. Second, MediaNews adopted the arguments of Deseret News and
moved to dismiss the case because the case could not proceed justly without the
participation of Deseret News, and to join Deseret News would destroy the
district court’s diversity jurisdiction. Third, Tribune Publishing moved to join
- 30 -
Deseret News as a party under Fed. R. Civ. P. 25(c). Rule 25(c) provides that
when an interest is transferred from one who is a party to the litigation to one
who is not, the district court may, upon motion, direct “the person to whom the
interest is transferred to be substituted in the action or joined with the original
party.” Fed. R. Civ. P. 25(c). Tribune Publishing alleged that MediaNews
transferred an interest to Deseret News when, immediately after MediaNews
acquired KTLLC from AT&T in January 2001, MediaNews and Deseret News
negotiated and enacted amendments to the JOA which removed Tribune
Publishing from its role in managing the NAC and gave Deseret News the right to
appoint certain representatives to the NAC, a right previously held by Tribune
Publishing.
The district court denied Deseret News’s and MediaNews’s motions. It
concluded that Deseret News failed to meet one of the requirements of Fed. R.
Civ. P. 24(a) by not having made its motion in a timely fashion. It found that
MediaNews’s motion to dismiss should be denied because Deseret News was not
an indispensable party to the action. However, the district court granted Tribune
Publishing’s motion to join Deseret News pursuant to Rule 25(c). The court
concluded that a transfer of interest occurred when MediaNews group agreed to
give Deseret News rights under the JOA—rights properly considered to be assets
of The Tribune—that Deseret News did not have before the litigation began.
- 31 -
Although the district court initially joined Deseret News as a party only insofar as
it acquired interests under the renegotiated JOA, that limitation was later lifted
and Deseret News was permitted to participate fully in the case.
The issue before us, therefore, is whether the joinder of Deseret News
destroyed the district court’s subject matter jurisdiction over the case. It has long
been the rule that to satisfy the diversity of citizenship requirement of 28 U.S.C.
§1332(a)(1) the plaintiffs and defendants must be completely diverse: No
plaintiff can be a citizen of the same state as any defendant. Owen Equip. &
Erection Co. v. Kroger, 437 U.S. 365, 373–74 (1978). Moreover, “[d]iversity
jurisdiction, once established, is not defeated by the addition of a non-diverse
party to the action.” Freeport-McMoran, Inc. v. K N Energy, Inc., 498 U.S. 426,
428 (1991) (per curiam). However, diversity jurisdiction will be destroyed if it is
determined that the later-joined, non-diverse party was indispensable to the action
at the time it commenced. Harris v. Ill.-Cal. Express, Inc., 687 F.2d 1361, 1367
(10th Cir. 1982) (“Once jurisdiction is grounded in diversity, it is not lost by the
intervention . . . of a party whose presence in the action is not indispensable . . .
.”); Am. Nat’l Bank & Trust Co. v. Bailey, 750 F.2d 577, 582 (7th Cir. 1984)
(“[T]he rule that there must be complete diversity to sustain diversity jurisdiction
is not absolute. . . . [I]f the nondiverse party comes into the case by intervening in
it, his presence will not deprive the court of jurisdiction unless the intervenor was
- 32 -
an indispensable party when the complaint was filed.”); cf. Burka v. Aetna Life
Ins. Co., 87 F.3d 478, 482–83 (D.C. Cir. 1996) (“[A] Rule 25(c) addition of a
non-diverse party may destroy diversity jurisdiction . . . if the added party was
indispensable at the time the action began.”). There is no question that Deseret
News was a nondiverse party when it joined the case. Thus, the crux of this
jurisdictional issue is whether Deseret News was indispensable at the time the
original complaint was filed.
Tribune Publishing’s argument that Deseret News was a necessary and
indispensable party from the outset is based upon the existence of the stock
transfer restriction in the JOA. Tribune Publishing argues that from the beginning
the primary relief it has sought in this case is an order compelling KTLLC to
specifically perform under the Option Agreement. But, Tribune Publishing
argues, because the Option Agreement gives Tribune Publishing the right to
purchase from KTLLC “all, and not less than all” of the Tribune Assets, and
KTLLC’s stock in the NAC is one of the Tribune Assets, Deseret News’s right to
enforce the stock transfer restriction is implicated by the remedy Tribune
Publishing seeks. Indeed, the defendants have taken the position that the stock
transfer restriction not only prevents KTLLC from transferring the NAC stock to
Tribune Publishing without the consent of Deseret News, but also they argue that
the fact that the transfer restriction existed prior to the execution of the Option
- 33 -
Agreement means that the parties to the Option Agreement intended to require
Deseret News’s consent to KTLLC’s performance under the Option Agreement.
Whether a party is indispensable is determined by considering the factors
set forth in Fed. R. Civ. P. 19. See Angst v. Royal Maccabees Life Ins. Co., 77
F.3d 701, 704–05 (3d Cir. 1996); Nat’l Union Fire Ins. Co. v. Rite Aid, 210 F.3d
246, 249–50 (4th Cir. 2000). The analysis has two parts: “first, we must
determine whether a party is necessary under 19(a); second, we must determine
whether it is indispensable under 19(b).” 8 Angst, 77 F.3d at 705; Rite Aid, 210
F.3d at 249. In making these determinations, we evaluate “the facts as they
exist[ed] when the case [was] filed, and not by what happens later.” Bailey, 750
F.2d at 582; Freeport McMoRan, 498 U.S. at 428.
Under Rule 19(a), a party is necessary if:
(1) in the person’s absence complete relief cannot be accorded among
those already parties, or (2) the person claims an interest relating to
the subject of the action and is so situated that the disposition of the
action in the person’s absence may (i) as a practical matter impair or
impede the person’s ability to protect that interest or (ii) leave any of
the persons already parties subject to substantial risk of incurring
8
Rule 19 provides a mechanism for joining, where feasible, parties
necessary for the just adjudication of a dispute and, where it is not feasible to join
such parties, for dismissing the case. When applying Rule 19 itself and not, as
here, merely relying on the Rule 19 factors to make a jurisdictional determination,
there is a third factor to consider: whether joinder of a necessary party is
“feasible.” See Citizen Potawatomi Nation v. Norton, 248 F.3d 993, 997 (10th
Cir. 2001). The feasibility of joinder is not relevant here because the party in
question has already been joined pursuant to Rule 25(c).
- 34 -
double, multiple, or otherwise inconsistent obligations by reason of
the claimed interest.
Fed. R. Civ. P. 19(a). We conclude that Deseret News is not necessary under
either Rule 19(a)(1) or 19(a)(2).
Under Rule 19(a)(1), Deseret News’s absence from the case would not
prevent the district court from according complete relief among those already
parties to the case. Tribune Publishing mistakenly assumes that the only remedy
that will give it complete relief is an order compelling KTLLC to specifically
perform under the Option Agreement with respect to every Tribune Asset it owns.
An order of complete specific performance is one way in which Tribune
Publishing can receive complete relief, but it is not the only way.
Tribune Publishing can be awarded complete relief under the Option
Agreement through a variety of remedies short of an order requiring complete
specific performance by KTLLC. For example, the district court could enter a
decree of specific performance against KTLLC with respect to every Tribune
Asset it owns except for the NAC stock. The court then could award an
appropriate amount of damages to compensate Tribune Publishing for KTLLC’s
failure to transfer that last Tribune Asset. Or, the district court could avoid
equitable relief altogether and simply award damages to Tribune Publishing to
compensate it for KTLLC’s failure to perform under the contract. There may also
be other equitable restrictions that could be placed on KTLLC’s voting of its
- 35 -
NAC interests that could be part of a package of remedies to provide Tribune
Publishing with complete relief. (We consider these and other potential remedies
in greater detail in Part III, infra.) The district court thus can fashion complete
relief for Tribune Publishing in manner that leaves the ownership of the NAC
stock in KTLLC’s hands and therefore does not trigger Deseret News’s right to
enforce the stock transfer restriction in the JOA. Because complete relief can be
granted without having Deseret News as a party to the case, Deseret News is not
necessary within the terms of Rule 19(a)(1).
Under Rule 19(a)(2), it is true that Deseret News is a party “claim[ing] an
interest relating to the subject of the action” in that it seeks to enforce its right to
prevent the transfer of one of the Tribune Assets—the NAC stock—that is subject
to the Option Agreement. However, for some of the same reasons that the Rule
19(a)(1) factor is not present, Desert News is not “so situated that the disposition
of the action in [Deseret News’] absence” will cause either of the problems
identified by Rule 19(a)(2)(i) and (ii). Rule 19(a)(2)(i)’s concern that an absent
party’s ability to protect its interests would be impaired if the case proceeds
without the party is not implicated if the district court fashions remedies that do
not require KTLLC to relinquish title to the NAC stock. Such remedies also
avoid the risk, addressed by Rule 19(a)(2)(ii), of a party’s being burdened with
multiple, inconsistent obligations. Theoretically, KTLLC could be subject to
- 36 -
conflicting judgments if the district court ordered or refused to order KTLLC to
transfer the NAC stock to Tribune Publishing pursuant to the Option Agreement
and a state court entered an order in a case where Deseret News is a party
requiring the opposite action. But this possibility is also eliminated if the district
court fashions relief so as to avoid a transfer of the NAC stock.
Because we conclude that Deseret News is not a necessary party, it cannot
be an indispensable one and we therefore need not consider Rule 19(b).
Our conclusion that Deseret News is not an indispensable party is bolstered,
but not determined, by the fact that no party in the case considered Deseret News
to be indispensable at the time the action commenced. Cf. Burka, 87 F.3d at 483
(supporting conclusion that party joined under Fed. R. Civ. P. 25(c) was not
indispensable by reference to “appellants’ failure to seek joinder [of the party] as
a defendant at an earlier stage of this case”). In ruling on the motions to join
Deseret News, the district court observed that “[n]one of the parties contend that
Deseret News Publishing was an indispensable party at the time the original
Complaint was filed.” Order of Aug. 29, 2001, at 18. Moreover, Tribune
Publishing argued below that Deseret News was not an indispensable party at the
time the lawsuit was filed, and the president of Deseret News itself filed an
- 37 -
affidavit with the court stating that Deseret News did not consider itself to be
indispensable to the case. 9
For the foregoing reasons, we hold that the district court does have subject
matter jurisdiction over this case.
III. DENIAL OF MOTION FOR PRELIMINARY INJUNCTION
With the July 31, 2002, termination date of the Management Agreement
looming, Tribune Publishing filed a motion for a preliminary injunction that
would allow it to continue to manage The Tribune until it assumed control over
the newspaper pursuant to the Option Agreement or its rights to the Tribune
9
Mr. Wall later filed another affidavit changing his position on the question
of Deseret News’ indispensability, but his claim was based upon the content of
the second amended complaint, which was filed several months after Mr. Wall’s
first affidavit. The district court described the second affidavit as follows:
The Second Wall Affidavit states there have been “a number of
developments that have convinced [him],” contrary to his previous
affidavit, that now Deseret News Publishing’s interest “would be
significantly impaired if this case were to proceed in [its] absence.”
Mr. Wall now says that when he made the previous Affidavit he
understood that if Deseret News Publishing were dropped from as a
party that “Plaintiff would drop its claim to adjudicate DNPC’s right
to consent or withhold consent to SLTP’s exercise of its option” but
that the latest complaint has not done so. He contends that [the
second amended complaint] “is a continuing attempt by SLTPC to
seek to adjudicate and prejudice DNPC’s rights under the Joint
Operating Agreement in DNPC’s absence. . . .” Second Wall
Affidavit at ¶ 3.
Order of Aug. 29, 2001, at 10–11. Mr. Wall’s reaction to the second amended
complaint is irrelevant to the question before us: whether Deseret News was
indispensable at the time the case was originally filed. See Freeport McMoRan,
498 U.S. at 428; Bailey, 750 F.2d at 582; cf. Burka, 87 F.3d at 482.
- 38 -
Assets were otherwise determined. The district court denied the motion,
concluding that Tribune Publishing did not make the required showings under the
four-part standard for granting preliminary injunctions, and Tribune Publishing
appeals that ruling. We review a district court’s denial of a preliminary
injunction for an abuse of discretion, Davis v. Mineta, 302 F.3d 1104, 1110-11
(10th Cir. 2002), and although we conclude that the district court made one error
in its analysis, that error is not sufficient to change our conclusion that the district
court was correct to deny Tribune Publishing’s motion for a preliminary
injunction.
To receive a preliminary injunction, the plaintiff must establish the
following four factors:
(1) a substantial likelihood of success on the merits of the case; (2)
irreparable injury to the movant if the preliminary injunction is
denied; (3) the threatened injury to the movant outweighs the injury
to the other party under the preliminary injunction; and (4) the
injunction is not adverse to the public interest.
Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). In addition, “the right
to relief must be clear and unequivocal” because “a preliminary injunction is an
extraordinary remedy.” Id. (internal quotation marks and citations omitted). This
standard, which is difficult to meet under ordinary circumstances, is heightened
when the requested preliminary injunction will change the status quo. In such
cases, the “movant has an ‘even heavier burden of showing that the four factors
- 39 -
listed above weigh heavily and compellingly in movant’s favor before such an
injunction can be issued.’” Id. (quoting SCFC ILC, Inc. v. Visa USA, Inc., 936
F.2d 1096, 1098–99 (10th Cir. 1991) (internal quotation marks omitted).
We agree with the district court that the heightened standard should apply
in this case because the preliminary injunction that Tribune Publishing sought
would have changed the status quo. At the time it sought the preliminary
injunction, Tribune Publishing’s rights and authority as manager of The Tribune
were contractual. It served as the KTLLC’s agent pursuant to the Management
Agreement. That contract was not renewed, and Tribune Publishing does not
challenge KTLLC’s notice of non-renewal dated January 30, 2002, nor that the
Management Agreement terminated, according to its express terms, on July 31,
2002. Therefore, what Tribune Publishing sought with a preliminary injunction
was the realization of its expectation that, on August 1, 2002, it would continue to
manage the newspaper. The reality, however, was that on August 1 the manager
of the newspaper was to be KTLLC. The status quo was that Tribune Publishing
had a contractual right to manage The Tribune until July 31, 2002, and after that
date KTLLC has the right to manage the newspaper. It would have altered the
status quo for the court, through a preliminary injunction, to require KTLLC to
forgo legal rights it had at the time the injunction would have taken effect.
- 40 -
A. Likelihood of Success on the Merits
The first showing Tribune Publishing had to make under the preliminary
injunction standard was that the evidence heavily and compelling showed that it
would prevail on the merits. This, in turn, required Tribune Publishing to
establish two separate propositions. Tribune Publishing had to show that it was
entitled to continue to manage The Tribune after the expiration of the
Management Agreement. Tribune Publishing also had to show as a threshold
issue that it was likely to prevail in its attempt to acquire ownership of the
Tribune Assets because its legal theories in support of its claim to continued
management depended upon the fact that it had a valid option to purchase the
newspaper assets. The failure to establish either of these propositions would have
been sufficient to deny Tribune Publishing’s motion, and the district court found
that neither proposition had merit. The district court made rulings on each of
these issues, and because either ruling could have been the basis for the district
court’s order, we review each of them.
We conclude that, contrary to the district court’s conclusion, Tribune
Publishing can make the required showing with respect to its claim of the right to
acquire the Tribune Assets. However, we agree with the district court that
Tribune Publishing cannot make the required showing with respect to its claim to
continued management of The Tribune in the interim after August 1, 2002. This
- 41 -
second conclusion is sufficient to hold that Tribune Publishing cannot establish
the success-on-the-merits factor of the preliminary injunction standard.
1. Claim of Right to Acquire the Tribune Assets
With regard to ownership of the Tribune Assets, we disagree with and
reverse the district court’s ruling that Tribune Publishing is not likely to succeed
in its attempt to acquire The Salt Lake Tribune and its assets. Even under the
heightened standard requiring a heavy and compelling showing, we conclude that
there is a substantial likelihood that after a trial Tribune Publishing will succeed
in establishing its claim of the right to acquire the assets of The Tribune.
The district court concluded on summary judgment and reiterated in its
ruling on the motion for preliminary injunction that the Option Agreement was
valid and enforceable. That conclusion on summary judgment is not before us on
appeal and, in any event, we agree with it. The Option Agreement gives Tribune
Publishing the right “to purchase all, and not less than all, of the . . . assets used,
held for use or usable in connection with the operation and publication of The
Salt Lake Tribune.” Option Agreement § 1. Despite the validity of this contract
right, the district court held that Tribune Publishing had not shown that it was
likely to prevail in its efforts to acquire the newspaper assets “because it has not
provided the court with a clear roadmap as to how [Tribune Publishing] intends to
overcome the current hurdles to ownership.” Order Denying Pl.’s Mot. for
- 42 -
Prelim. Inj., July 22, 2002, at 10. The “current hurdles to ownership” were
explained in the May 31, 2002, Order on Motions for Summary Judgment as being
the fact that the stock transfer restriction in Section 2 of the JOA was valid and
enforceable and that the transfer restriction was an obstacle to Tribune
Publishing’s obtaining a specific performance remedy for any violation of the
Option Agreement. Although we agree with the district court that the share
transfer restriction in the JOA is valid and enforceable, see Part I, supra, we
disagree with the conclusion that, as a result, Tribune Publishing will not be able
to show a substantial likelihood of success on the merits of its claim to eventual
ownership of all of the Tribune Assets.
To demonstrate a substantial likelihood of success on the merits of its claim
of the right to acquire the Tribune Assets, Tribune Publishing was required “to
present ‘a prima facie case showing a reasonable probability that [it] will
ultimately be entitled to the relief sought.’” Autoskill v. Nat’l Educ. Support
Sys., 994 F.2d 1476, 1487 (10th Cir. 1993) (quoting Cont’l Oil Co. v. Frontier
Ref. Co., 338 F.2d 780, 781 (10th Cir. 1964)). The district court concluded that
Tribune Publishing had a clear entitlement under the Option Agreement to receive
“all, and not less than all” of the Tribune Assets upon exercise of the option. It
felt, however, that it could not fashion the relief requested by Tribune Publishing:
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a decree of specific performance requiring the transfer of all of the Tribune
Assets.
We find that the district court read too narrowly the relief sought by
Tribune Publishing in its complaint. Tribune Publishing does indeed ask for a
decree of specific performance that would require KTLLC, upon satisfaction of
the terms of the Option Agreement, to transfer to Tribune Publishing all of the
Tribune Assets, including the NAC stock. Fourth Amended Compl. and Jury
Demand, ¶¶ 154, at 37. But Tribune Publishing also seeks in its complaint
“equitable relief, including, but not necessarily limited to, restitution, accounting,
resulting or constructive trust and disgorgement, to the extent [the other]
equitable remedies [sought by Tribune Publishing] do not fully provide [Tribune
Publishing] with the full benefit of its bargain,” id., ¶ 14, at 48, and “such other
relief as the Court deems just and proper,” id., ¶ 16, at 49. We read Tribune
Publishing’s complaint as seeking whatever combination of equitable and legal
relief the court may award to remedy a refusal by KTLLC to perform under the
Option Agreement, including a failure to transfer to Tribune Publishing the NAC
stock. It is a venerable principle of our law that for the violation of every right
there should be a remedy, and we should not lightly put down our obligation to
determine whether appropriate remedies exist. See, e.g., Comm’r of Patents v.
Whiteley, 71 U.S. (4 Wall.) 522, 526 (1866) (citing the principle “that there
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should be a remedy to enforce every right”); Satterlee v. Matthewson, 27 U.S. (2
Pet.) 380, 389 (1829) (“For every right it is a maxim that there is a legal remedy
for its violation.”); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803)
(citing the principle that “every right, when withheld, must have a remedy, and
every injury its proper redress”).
As we have noted before, Tribune Publishing asserted its right to pay the
option price and, in exchange, to acquire all of the Tribune Assets. Virtually
every asset of The Tribune necessary for producing the newspaper could be
transferred to Tribune Publishing without violating Section 2 of the JOA. Indeed,
even the legal title to the assets that are managed by the NAC, such as the
printing presses, could pass to Tribune Publishing without violating Section 2 of
the JOA. 10 The fact that the JOA would prevent a transfer of only the NAC stock
should not shield KTLLC from performing under the Option Agreement in every
other respect.
There are three kinds of remedies that might be available under the
circumstances of this case: (1) specific performance as to all the Tribune Assets
that can be transferred without triggering the share transfer restriction of the JOA;
(2) damages to compensate Tribune Publishing for the NAC stock that cannot be
The printing facilities managed for KTLLC and Deseret News by the NAC
10
are owned by KTLLC and Desert News as tenants in common. See 1982 JOA § 6,
at 12.
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transferred; and (3) equitable relief other than specific performance if a damages
award would be insufficient to remedy the failure or inability of KTLLC to
transfer the NAC stock. As we broadly construe the relief that Tribune
Publishing seeks, there are enough potential remedial options, or combinations of
options, so that Tribune Publishing can establish a substantial likelihood of
success on the merits. We mentioned earlier in Part II, supra, a number of
potential remedies are available that can give full relief to Tribune Publishing 11
without implicating Deseret News’s right to enforce the stock transfer restriction
in the JOA. We list here several of these possible remedies to illustrate the
flexibility the district court has in awarding relief without intending that this
listing be either dispositive or exhaustive. 12
First, the district court could award Tribune Publishing a decree of specific
performance ordering KTLLC to transfer all of the Tribune Assets except the
NAC stock. Tribune Publishing would then be entitled to damages to compensate
it for its damages resulting from the failure to transfer the NAC stock. See
11
If not the actual transfer of all the Tribune Assets, at least the functional
equivalent in the eyes of the law of a transfer of all the Tribune Assets.
12
At this point, none of these potential remedies has been tested in the
crucible of an adversarial hearing with evidence or full legal argument.
Accordingly, we do not endorse or pre-approve any of them. We list them here
only to show that at this preliminary stage of the proceeding, it is error to
conclude that Tribune Publishing has not shown a substantial likelihood of
success on the merits solely because of the perceived difficulty in fashioning
relief.
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3 E. Allan Farnsworth, Farnsworth on Contracts §12.5, at 169 (2d ed. 1998)
(“Along with any equitable relief by specific performance or injunction, a court
may also award damages and grant other relief.”); 3 Dan B. Dobbs, Law of
Remedies § 12.8(1), at 193 (2d ed. 1993) (“Specific performance may be
combined with damages in appropriate cases; the fact that specific performance is
or must be denied as to some part of the contract does not prevent specific
performance as to the remainder.”).
Second, if the injury Tribune Publishing would suffer as a result of the
failure or inability of KTLLC to transfer the NAC stock could not adequately be
remedied by damages, then the district court could consider equitable remedies
besides specific performance to address the NAC stock. See, e.g., Thurston v.
Box Elder County, 892 P.2d 1034, 1041 (Utah 1995) (“A trial court is accorded
considerable latitude and discretion in applying and formulating an equitable
remedy [in contract actions].”); 27A Am. Jur. 2d Equity § 64 (2002) (same). For
example, Tribune Publishing might be awarded a decree of specific performance
as to all of the assets except the NAC stock, and the decree might then require
KTLLC to manage its interests in the NAC in such a manner as not unreasonably
to injure Tribune Publishing in its operation of the Tribune Assets that are
transferred to it.
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Third, there is also the possibility that the district court might fashion a
remedy under the successors-and-assigns clause in the JOA. The clause indicates
that the parties contemplated that their rights and obligations under the JOA were
assignable. 1982 JOA § 22, at 31 (“This agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the parties
hereto.”). There is precedent for assignment of JOA rights in the past conduct of
the parties. Under the Management Agreement, KTLLC assigned to Tribune
Publishing “the authority to act on behalf of [KTLLC] with respect to all action
required or permitted to be taken by [KTLLC] under the Joint Operating
Agreement.” Management Agreement § 3.02(ii), at 3. For five years, Tribune
Publishing participated in running the NAC without owning legal title to the NAC
stock.
Fourth, the district court could consider ordering KTLLC to transfer all of
the Tribune Assets to Tribune Publishing except the NAC stock while providing
in some way for the possibility that Tribune Publishing could file a new lawsuit in
state court to clarify what, if any, rights it might have vis-a-vis the NAC or
KTLLC pursuant to the JOA once it acquired all of the Tribune Assets except for
the NAC stock. For example, if Tribune Publishing were to acquire all of the
Tribune Assets except the NAC stock, Tribune Publishing might argue in a state
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action where personal jurisdiction over defendants might not be an issue that the
NAC owes it a fiduciary duty under Utah law. 13
Each of these remedies discussed above have the potential of delivering
complete relief to Tribune Publishing in the eyes of the law and might be
sufficient to be the predicate for its claim of the right to manage The Tribune
during the interim. Again, we do not propose to determine here what the
appropriate remedy should be if it is determined after trial that KTLLC has
breached the Option Agreement. Our purpose is merely to illustrate the range of
potential options available to the district court to remedy fully a breach of that
contract.
In sum, we conclude that there is a substantial likelihood that Tribune
Publishing will prevail at trial on its claim to enforce its rights under the Option
Agreement and, in that event, that the district court can select from a variety of
13
In Part I, supra, we concluded that the purpose of the stock transfer
restriction in Section 2 of the JOA was to prevent anyone besides KTLLC or
Deseret News from participating in the management of the NAC. Yet the
potential remedies discussed immediately above each would have the effect of
giving Tribune Publishing some control over the NAC or the manner in which
KTLLC exercised its control over the NAC. These remedies might be available in
this case notwithstanding Section 2 of the JOA because, in the final analysis, the
share transfer restriction in Section 2 of the JOA is not completely effective in
excluding participation by others whom Deseret News does not approve. Thus,
that provision must be interpreted consistent with its inherent inability to prevent
a new entity from acquiring ownership of KTLLC and thereby control over one-
half of the NAC stock.
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legal and equitable remedies to shape relief that fully redresses Tribune
Publishing’s claim without infringing Deseret News’ rights under Section 2 of the
JOA.
2. Claim to Continued Management of The Tribune
The second proposition Tribune Publishing had to establish was that it was
entitled to continue to manage The Tribune after the termination of the
Management Agreement and before it acquired the Tribune Assets pursuant to the
Option Agreement. We agree with the district court that Tribune Publishing
failed to show that it has a right to continue to manage The Tribune during the
interim period. This conclusion is sufficient for us to hold that Tribune
Publishing has not established, for the purposes of its motion for a preliminary
injunction to allow it management rights during the interim, that it is likely to
succeed on the merits on that issue.
Tribune Publishing advanced two theories in support of its argument that it
has a right to continue to manage The Tribune: that as equitable owner of the
newspaper assets it had the right to manage them in advance of the closing of the
option transaction, and that the implied covenant of good faith and fair dealing in
the Option Agreement entitled Tribune Publishing to continue its management
role. Neither theory has merit as applied to the facts of this case.
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The Option Agreement is a contract under Delaware law, and the obligation
of good faith and fair dealing is part of all Delaware contracts. Chamison v.
Healthtrust, Inc., 735 A.2d 912, 920 (Del. Ch. 1999). But its application is
limited to circumstances that do not include the facts of this case. Tribune
Publishing bargained for the Management Agreement, and that Agreement
expressly states that it would last for a five-year period unless it were renewed,
and it was not renewed. Where the subject in dispute “is expressly covered by the
contract . . . the implied duty to perform in good faith does not come into play.”
Dave Greytak Enters. v. Mazda Motors of Am., 622 A.2d 14, 23 (Del. Ch. 1992).
The Management Agreement is clear that Tribune Publishing’s management term,
if terminated by KTLLC, would not extend beyond by the five-year period.
Article II, Section 2.01 of the Management Agreement states:
The term of this Agreement shall commence on the date hereof and
shall continue for an initial period of five (5) years thereafter unless
terminated sooner . . . . Thereafter, unless terminated sooner . . . this
Agreement shall be automatically renewed for successive one-year
periods unless either party provides the other with 180 days written
notice prior to the end of the initial period, or 120 days written notice
prior to the end of any such renewal period, that it will not renew this
Agreement.
Pursuant to the terms of this provision, in January 2002 KTLLC notified Tribune
Publishing that it would not renew the contract. Tribune Publishing cannot rely
upon the doctrine of good faith and fair dealing to acquire a right denied to it by
the express terms of a contract for which it freely bargained.
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The purpose of the implied covenant of good faith and fair dealing is to
ensure that a party is not deprived of the fruits of a contract by the arbitrary or
unreasonable actions of the other party. Wilgus v. Salt Pond Inv. Co., 498 A.2d
151, 159 (Del. Ch. 1985). The fruit of the Management Agreement was a five-
year management term. Tribune Publishing has received that benefit of the
contract. “The implied covenant [of good faith and fair dealing] cannot
contravene the parties’ express agreement and cannot be used to forge a new
agreement beyond the scope of the written contract.” Chamison, 735 A.2d at 921.
We also find no merit in Tribune Publishing’s argument that the doctrine of
equitable conversion entitles it to continue to manage the newspaper. Tribune
Publishing is correct to say that “[e]quitable conversion is an equitable remedy
used to effectuate the intentions of the parties and to prevent injustice.”
Appellant’s B. (No. 02-4126) at 40. The doctrine, which originated in the context
of sales of real property, imposes an obligation on the legal owner of an asset to
preserve it until the beneficial owner acquires legal title. Eddington v. Turner, 38
A.2d 738, 739–40 (Del. 1944); cf. 3 Dobbs, Law of Remedies, supra, § 12.8(1), at
196 (“[T]he landowner who contracts to sell Blackacre is owner of the legal title
until the deed is delivered, but in the eyes of equity he holds that title as trustee
for the buyer . . . .”) The doctrine does not, however, require the legal owner to
forfeit possession and control of the asset to the beneficial owner. The obligation
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is merely to preserve the asset. Cf. Annotation, 97 A.L.R. 3d 1220 (1980)
(stating the general rule that “a vendor has no right to commit what would
ordinarily constitute waste between the time of his having made a contract to sell
his land and the actual conveyance thereof”).
Tribune Publishing provides no case law or other authority for the
proposition that equitable conversion permits the beneficial owner of an asset to
acquire actual possession and control of it before acquiring legal title. Even if
KTLLC were taking actions that could be considered destructive to the Tribune
Assets, the remedy would not be for a court to order KTLLC to turn over control
of the asset to Tribune Publishing. The remedy would be an injunction preventing
the destructive acts or, perhaps, the appointment of a receiver to manage the
assets until the closing of the option transaction. In fact, the district court in this
case took the precaution of entering an order preventing MediaNews and KTLLC
from taking material acts that might be considered irrevocable after the expiration
of Tribune Publishing’s Management Agreement.
The doctrine of equitable conversion “is not a favored one and is used only
where actual necessity requires its application to effectuate the intentions of the
parties and, thus, prevent an injustice.” Cardinal Indus. v. Buckeye Fed. Sav.&
Loan, 105 B.R. 834, 852 (Bankr. S.D. Ohio 1989). Tribune Publishing has not
shown that injustice will result from MediaNews’s management of the newspaper
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from the end of Tribune Publishing’s Management Agreement to when Tribune
Publishing acquires legal title to the assets. There is no actual necessity requiring
Tribune Publishing to be re-installed as manager of The Tribune when it
negotiated and signed a contract that expressly includes a provision providing for
its management control to end at a certain date.
B. The Other Preliminary Injunction Factors
To be entitled to a preliminary injunction, Tribune Publishing also had to
show that it would suffer irreparable injury if the injunction is not issued, that the
threatened injury outweighs the harm the preliminary injunction would cause the
defendants, and that, if issued, the injunction would not adversely affect the
public interest.
1. Irreparable Harm
Tribune Publishing argues that it will suffer several irreparable harms if the
preliminary injunction is not granted and it is not allowed to continue to manage
The Tribune. Most importantly, it says, is the fact that the editorial voice of the
newspaper will change under MediaNews’s control. Tribune Publishing also says
that the newspaper will lose subscribers and advertisers as long as MediaNews
controls The Tribune, and that changes in personnel, the construction of an
expensive new press facility, a change to the newspaper’s newsprint supplier,
elimination of the on-porch delivery preferred by subscribers, and merger of the
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newspaper’s on-line services and accounts payable department with MediaNews’s
in Denver all constitute irreparable harm. We disagree.
Irreparable harm, as the name suggests, is harm that cannot be undone, such
as by an award of compensatory damages or otherwise. See Tri-State Generation
& Transmission Ass’n v. Shoshone River Power, Inc., 805 F.2d 351, 355 (10th
Cir.1986) (“Injury is generally not irreparable if compensatory relief would be
adequate.”) Several of the harms that Tribune Publishing alleges could be
compensated for and therefore are not irreparable. For example, actionable
business losses resulting from cancelled subscriptions or lower advertising
volume can be remedied by money damages. Similarly, we imagine that the
additional costs associated with a different newsprint supplier, or the cost of re-
establishing The Tribune’s online services and accounts payable department in
Utah, are not great and also could be remedied by money damages.
Other harms that Tribune Publishing alleges can be easily undone when
Tribune Publishing acquires the newspaper. Its editorial voice will be restored
the moment it again is writing the newspaper’s editorials, and on-porch delivery
can simply be re-instituted. Because these “harms” can be reversed so easily, we
find that they cannot be considered irreparable.
Tribune Publishing’s fears about the construction of an expensive new
printing facility are also unfounded. The district court entered an order
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specifically preventing MediaNews or KTLLC from “proceed[ing] with
irrevocable acts to acquire land and build a new press facility.” Order Denying
Pl.’s Motion for Prelim. Inj., July 22, 2002, at 16. Because the court has enjoined
MediaNews and KTLLC from constructing the facility, it cannot constitute a harm
to Tribune Publishing.
Finally, we note that these alleged harms stem from Tribune Publishing’s
loss of control over management of the newspaper. In particular, the removal of
Tribune Publishing personnel from positions of authority and control is to be
expected once Tribune Publishing is no longer in charge of The Tribune’s
operations. This change in control results from the express terms of a contract it
negotiated, and therefore the removal of Tribune Publishing’s managers is a harm
that Tribune Publishing inflicted upon itself. We will not consider a self-inflicted
harm to be irreparable, and we therefore reject Tribune Publishing’s contention
that personnel changes among the management staff constitute an irreparable
harm. See Caplan v. Fellheimer Eichen Braverman & Kaskey, 68 F.3d 828, 839
(3d Cir. 1995); Lee v. Christian Coalition of America, Inc., 160 F. Supp. 2d 14,
33 (D.D.C. 2001); 11A Charles Alan Wright et al., Federal Practice & Procedure
§2948.1, at 152–53 (2d ed. 1995).
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2. Balance of Harms
Because we have concluded that Tribune Publishing will not be irreparably
harmed by the denial of its motion for a preliminary injunction, we find that there
is no harm to balance against the potential harm to the defendants if the
injunction is granted. Cf. Davis v. Mineta, 302 F.3d at 1116 (balancing “the
irreparable harms we have identified against the harm to defendants if the
preliminary injunction is granted”). Even if we were convinced that the absence
of an injunction would create some kind of harm to Tribune Publishing, it would
be less than irreparable harm and it would not outweigh the harm to the
defendants of the issuance of an injunction.
The right of MediaNews and KTLLC to manage the newspaper they own
was restricted by the Management Agreement, which delegated management
authority to Tribune Publishing as their agent. Now that the Management
Agreement has expired, the right to manage the newspaper reverts back to
MediaNews and KTLLC. To take away this right would harm MediaNews and
KTLLC by reducing their legitimate control over a business that MediaNews
purchased for $200 million. Loss of control over the newspaper is a risk to
MediaNews’s investment, a risk that might be amplified if Tribune Publishing
would not be guided and limited in its management as it was under the
Management Agreement. Because the harms identified by Tribune Publishing can
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be remedied or are self-inflicted, we find that they are outweighed by the harm
the defendants would face if the injunction were granted.
3. The Public Interest
The final preliminary injunction factor is whether the injunction, if issued,
would adversely affect the public interest. That factor is not a consideration in
this case. We agree with the district court that the parties have not shown that the
public interest would be implicated either positively or negatively by an
injunction. Order Denying Pl.’s Mot. for Prelim. Inj., July 22, 2002, at 15.
****
In reviewing the four preliminary injunction factors, we have identified
only one error by the district court: its conclusion that Tribune Publishing is not
likely to prevail on the merits of its claim to ownership of the Tribune Assets.
However, because we agree with the district court that Tribune Publishing has not
established a likelihood of prevailing on the issue of its claim to manage the
Tribune Assets in the interim before it acquires those assets, and because we
agree with the district court’s conclusion that Tribune Publishing does not prevail
on the other preliminary injunction factors, we hold that the district court did not
abuse its discretion in denying the motion for a preliminary injunction.
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CONCLUSION
For the foregoing reasons we make the following rulings: First, with
respect to the certified question, we conclude that the stock transfer restriction in
Section 2 of the JOA is not contrary to Utah public policy and is, in fact,
authorized under Utah Code Ann § 16-10a-627. Second, we hold that the district
court has subject matter jurisdiction over this case; jurisdiction was not destroyed
when Deseret News was joined to the action because Deseret News was not a
necessary party. Third, we conclude that the district court did not abuse its
discretion in denying Tribune Publishing’s motion for a preliminary injunction to
manage the Tribune Assets prior to the resolution of its suit to enforce its rights
under the Option Agreement. Fourth, despite our agreement that the preliminary
injunction was properly denied, we hold that the district court erred when it
concluded that Tribune Publishing was not substantially likely to prevail at trial
on the merits of its claim to acquire the Tribune Assets under the Option
Agreement.
Accordingly, the district court’s order denying Tribune Publishing’s motion
for a preliminary injunction is AFFIRMED in part and REVERSED in part and
the matter REMANDED for further proceedings.
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02-4126 & 02-4165, Salt Lake Tribune Pub’g Co., LLC, et al., v. AT&T Corp.,
et al.
O’BRIEN, Circuit Judge, concurring in part.
I join in parts I, IIIA2 and IIIB of the opinion. I concur in the result
announced in Part II. In Part IIIB we conclude the district court did not abuse its
discretion in denying preliminary injunctive relief because irreparable injury was
not shown. It is therefore unnecessary to address, let alone reverse, the trial
court’s tentative conclusion that Salt Lake Tribune Publishing Company is
unlikely to prevail on the merits. Accordingly, I do not join in part IIIA1 of the
opinion or in the result announced.