Let’s meet Joe Cotchett.
Cotchett, as lawyers are wont to do when filing high profile lawsuits, was full of bluster, using terms like “economic rape and pillage” and “moral outrage” in the first minute of his interview with NBC Bay Area‘s Raj Mathai. By the end of the interview, Cotchett dialed down his rhetoric a tad, admitting that the real goal of the lawsuit was to force a settlement, not a wholesale teardown of MLB’s antitrust exemption. Though if MLB remained recalcitrant, Cotchett would certainly relish the opportunity to tear down AE himself.
While making the media rounds earlier in the week, Cotchett was also on The Game with John Lund and Greg Papa. Apparently Papa wasn’t aware of Cotchett’s role as attorney for the NFL and the Rams when the then-Oakland Raiders forced a move to Los Angeles in 1981. Cotchett’s involvement in pro sports is quite long and varied, though most of it is with the NFL, not MLB.
- 1981-82 – Cotchett represents NFL & Rams in Al Davis and LA Memorial Coliseum’s antitrust lawsuit against the league. After a mistrial, Davis wins, paving the way for the move.
- 1994 – Billy Sullivan, who had recently sold the Patriots to Victor Kiam, sues the NFL for not approving a public offering deal that would’ve provided Sullivan with more operating cash. The lawsuit is settled for just over $11 million. Cotchett represented the NFL.
- 1995 – Cotchett attempts to put together a group to keep Rams in LA. Instead, team owner Georgia Frontiere takes $300 million deal to move Rams to St. Louis.
- 2004 – This time representing the Raiders, Cotchett successfully defends Davis against a lawsuit by Raiders minority partners attempting to remove Davis as managing partner. Cotchett and the Raiders win using argument that minority partners have no standing.
As you can see, Cotchett has plenty of experience on both sides of the franchise move and antitrust issues, winning and losing some while settling others. While antitrust is Cotchett’s game, he was also successful going up against Charles Keating in the Lincoln Savings & Loan scandal and Bernie Madoff. The State Bar of California named Cotchett their Antitrust Lawyer of the Year in 2011. He’s also made a habit of taking numerous cases on either a pro bono or contingency basis, with attorneys fees to be paid by the losing defendants (as has indicated for the San Jose-vs.-MLB case).
MLB is a different ball of wax, as shown by its still preserved antitrust exemption. Cotchett will argue that MLB is no different from the NFL or any other pro sports league and is subject to the same commerce laws and regulations as the others. Chances are that he won’t get to make that argument given what San Jose and baseball are looking for, but you never know what can happen if/when a trial starts. One thing that can be universally said about the new lawsuit: It’s anything but frivolous.
newballpark.org 
Its apparent that Mr. Cotchett knows what he is doing. Ive said it a thousand times since the lawsuit came out:
What lawyer in his right mind take’s a case pro-bono that he knows he is not going to win
Get ready San Jose, the A’s are a commin..
This must be the guy Sam Liccardo was referring to when he said there were lawyers chomping at the bit to file a lawsuit on San Jose’s behalf. Selig is going to do whatever he can to avoid facing Cotchett in a courtroom.
When Joe said that there are going to be some surprises brace yourself and believe what he said…
SJ brought in a big dog for it’s fight, lets see who MLB counters with.
The foundational steps and elements necessary for the filing of the suit and the concomitant motions to be successful have been well laid out and executed for the past several years.
The one slight difference here which I am not quite sure of includes public announcements of settlement before the case even gets going. The usual litigation tactics of Cochette Pitre is an unabated scorched earth approach to jury selection. The fact that he is publicly indicating that settlement is a goal is unusual, but obviously calculated as anything that firm says publicly has been approved previously by their litigation team.
if or when the a’s win this thing and are finally allowed to move to sj, this guy should be given a plaque somewhere in the newly build cisco field.
Having just read the complaint, the one thing that struck me is that he’s basically backed MLB into an interesting corner. In order to argue against standing, they have to weaken their overall defense in trial (and/or future stadium deals with cities) and in order to win at trial they have to essentially acknowledge that the city has standing (that MLB stadiums do result in positive net impacts on the city’s financials).
Oversimplifications aside, he definitely has a lot experience from the inside of the “cabal” and has a deep understanding of the cards MLB has to play. It’ll never happen, but I’d love to see MLB’s defense if this were to ever reach a jury and/or SCOTUS hearing. It would be an epic BS fest (and I’m not referring to Bud).
Here is the funny thing about MLB, they are in the best position they have been in Decades: Long-term TV Contracts (both National & Regional), and Labor Peace, the strongest anti-drug policy of the four Major Sports, even an increased interest in African-American kids playing the sport (7 and 6 guys Drafted in the First Round the past two years). That was a very popular charge against Baseball, how they “abandoned” such kids, and how they lost them forever to the NFL & NBA, finally much more stable Franchises then ever (cleaning up the Dodgers mess, and even the Mets situation looks better). Now the negative issues are striking the other sports: O’Bannon and conference realignment (College), Concussions (NFL), shifting Franchises (NFL, NBA & NHL), are just a few of them. If the A’s issue can be straightened out, it will leave just Florida as a problem child (Rays Stadium Lease & Marlins ownership). If this Lawsuit, helps move the A’s to San Jose, everyone involved wins (except the Giants and the City of Oakland (and I do not think the A’s are a priority for Quan)). Believe it or not, Selig, can then actually retire, and feel good about the job he did, and where MLB is and where it is going, as the torch gets passed to the next Commissioner.
Susan Illston, the SF federal judge who presided over the Barry Bonds trial, was a partner in Cotchett’s firm for a long time. Frank Damrell, who’s listed on the caption page of the San Jose lawsuit, was a federal judge in the Eastern Dist. (Sacramento) for a long time. The Cotchett firm has a long history of high-stakes and complex federal litigation, in A/T, securities fraud, etc.
But that doesn’t make this lawsuit any stronger. Page 29 of the complain is a fantasy. And, again, there’s a reason the state-law tort claims are at the top of the batting order in the complaint.
Publicity is the purpose of this lawsuit. May people would call such a case frivolous. Some wouldn’t.
Xoot, not sure what you’re calling a fantasy. It’s all fundamentally true. You can believe precedence overrides the claim, but back when they were given that precedence and even when it was confirmed (by a smaller majority each time) MLB’s entire business structure and rules have overwhelmingly changed.
Had trouble posting this final note on Cotchett. About a dozen years ago I found myself in L.A. talking to a federal judge there about trademark disputes in the wine industry. (She’s now on the appellate bench.) I told her about the fairly recent trial between Kendall-Jackson and Gallo over the use of a vine leaf image on wine labels. After discussing the merits of the case, I said: “The two trial lawyers were Fred Furth and Joe Cotchett.” She laughed, and said: “Well, there’s a courtroom full of hot air.”
@xoot–are there any attorneys that aren’t full of hot air? Question is whether there is an substance to what they are saying. While I am not an attorney I do like the fact that that Cotchett is very well regarded in this field, and has a group of impressive partners, some with direct experience in this area. Also like the fact that experts such as Roger Noll and Joe Alioto believe that the case has enough merit to move forward–which is what I really want is to watch MLB squirm during the discovery phase. If bs wanted to hide to avoid being served one can only imagine what he will try to do during discovery to avoid being deposed.
@ML (and others in SJ): honest question I’ve been thinking about: do you think SJ files this lawsuit if its on the hook for legal expenses (vs. getting Cotchett pro bono)? Obviously its really a no-lose situation right now, you (hopefully) push on MLB, and even if you don’t win the SJ taxpayers aren’t footing a (large) bill. I just wonder if this would happen if that wasn’t the case. Maybe one of the corporate allies would have stepped in?
Regardless of what one may think of the validity of this lawsuit, it has opened up a can of worms. The Giants are not happy that it has come to the spotlight, since it has exposed themselves to have conspired with the other members of the MLB Lodge to have maintained a competitive advantage over its other shared Bay Area partner(The A’s). Many other members of the MLB Lodge are not happy, since the lawsuit could ultimately threaten MLB’s longstanding sacred anti-trust exemption. For MLB owners to stick their necks out for the greedy Giants on an intra-market issue, for which the territorial rights argument should not have applied in the first place, is foolishly jeopardizing MLB’s longstanding ATE status. It’s going to be very interesting to see what transpires in the coming weeks and months ahead.
Joe may have a reputation for being loud and arrogant, however, he is an incredibly smart and unbelievably successful litigator. He also authored a book on Federal Evidence which every Federal Court has in their chambers.
http://www.amazon.com/Federal-Courtroom-Evidence-Joseph-Cotchett/dp/0327162988
@xoot – Appreciate your analysis on p. 29 pleading hurdle, however, pleadings are to be construed liberally in the favor of the pleading party. The market participant hurdle that you speak of can be viewed from both sides of the pancake. There are a whole line of cases on all fours with SJ’s argument which CPM has already researched, briefed and will present in their oppo to any MLB motion. I won’t start listing them here, but as you know the federal court who will be hearing any motions merely needs to find one factual issue within each cause of action to allow that cause of action to proceed.
The federal court hearing this case will be key for SJ’s complaint. Hopefully he/she is an A’s fan. I personally know a Santa Clara County Sup Ct judge who I wouldn’t want these motions in front of because he is a Giants fan and hates the A’s – and he wears glasses and has curly grey and brown hair.
Sports Business Daily cites “can of worms” http://www.sportsbusinessdaily.com/Daily/Issues/2013/06/24/Leagues-and-Governing-Bodies/MLB-As.aspx
I am so scared now that the mighty xoot is spewing BS
@JH510 – I’m certain that San Jose would’ve left the issue alone if they had to pay. They’d have to approve at least the initial retainer through a Council vote. The work would’ve been extremely expensive. I’ve also known and have said here for some time that San Jose wouldn’t have to pay, so the silence from much of the Oakland-only crowd after Cotchett’s pro bono-contingency status was revealed was deafening. And the Council vote had no reservations or resistance at all.
Chuck Reed: “I’m not trying to steal a team, I’m trying to keep them in the Bay Area. They need a new place. They tried and tried and tried in Oakland, they tried in Fremont, it’s not going to happen. Oakland had a long, long time to try to put a deal together, and it didn’t happen.”
…of course, none of this will be bought by the Oakland-Only crowd. “Wolff lied, he never tried,” remains the battle cry.
@ML: thanks for your thoughts. Yeah I agree, seems like the logical move from the SJ front. Not many I’ve talked with in Oakland are surprised Reed and Council goes all in on this, like we’ve said they have nothing to lose, especially if their filing is to be believed and MLB had no intention of ever opening SJ for the A’s. Through this tactic, they’re heroes in SJ if it gets them the A’s, and if it crashes and burns they can say they tried and just move on without having to cut a check from taxpayers.
I think the case got assigned to Magistrate Judge Lloyd off the wheel. I expect one side or the other to decline that opportunity and to demand an Article III judge.
I think the most important question is whether the assigned judge is a baseball fan, following any team. Sotomayor, Breyer and Kagan could probably get along with Alito on a baseball case. Such passion might cut in favor of the special nature of baseball; or not.
To have reached this point after 4 years shows bs dwindling leadership of the lodge. In my opinion he definetely wants SJ but was unable to influence the gints and get the to the table with a reasonable buyout for TR. While he says that it is “complicated” the actual expectation is not–all two team markets share their territory. Because of his ineffective leadership all owners are now exposed should the case go forward. If I am an owner I don’t care if there is only a 10% chance of the lawsuit being successful–I’m not going to risk that to help the greedy gints.
@daniel — Did page 29 of the complaint contain words you found unfamiliar?
MarineLayer tweeted this article a little bit ago:
Cal stadium plan financially flawed
http://www.mercurynews.com/cal-bears/ci_23528258/cal-stadium-plan-financially-flawed
“The thinking was that after stadium was finished, once people could experience it, that there would be a big uptick in sales — and that hasn’t happened,” said John Wilton, Cal’s vice chancellor for finance. “It’s a challenge.”
re: Disappointing Cal stadium financing efforts
Yes, but we’re not supposed to worry about a similar failure to raise enough private funding for an Oakland ballpark. Just get the shovels in the ground now. After all, “John Fisher is rich” and can just divest himself of his own wealth to pay for the place, right?
Never fear, A’s fans. Someone from the Murky News has the solution: Public Ownership!
@doctorK – I debated Danny Willis about his concept yesterday.
Does public ownership provide a viable site in Oakland, something that has escaped MLB for years? Does the public have to underwrite the A’s operating losses or does revenue-sharing take care of this?
re: Of course, this is all wildly unfair to the Oakland fans who, despite past assertions, are some of the most raucous and passionate in all of sports
…I quote John McMullen, the late owner of the NJ Devils, who had a similar problem as the A’s: “I love our fans. We just don’t have enough of them.”
Cute. “Grants from the league.” The league would never approve that sale for one. And they’d never shell out money to a public entity to build a stadium. It’s nice to see an opinion piece bore out fantasy so genuinely devoid of a grasp on reality.
His concept is just divorced from reality. As long as Oakland continues to not put a publicly accessible price on any of their “plans” it allows for wild, idle speculation like this to be taken seriously by some folks. Hell, even when the price is confirmed as some ridiculous amount the Baseball Oakland following sycophants won’t acknowledge the reality.
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In 2002, the HOK study placed the cost of developing a 42k seat stadium at Howard Terminal at $517M. Adjust that to 2017 dollars (assuming Oakland could get a green light and move through the process in a timely enough fashion for that to be the relevant year) and it could be as much as $730M.
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It’s ridiculous to pretend this is an option, but all kinds of folks do. And I can’t even tell if that takes into account the asphalt cap below the terminal based on how high level the HOK report slides are.
xoot’s link posted in the other thread:
Breaking down the San Jose vs. MLB lawsuit
Don Knauss to be interviewed by Bucher & Towny on The Game at 3:30.
Hopefully, Knauss will have collected the $1 billion+ necessary to buy the team and build in Oakland. Since he wants the Howard Terminal site, he’ll probably need a lot more than $1 billion. Will we hear Knauss talking up firmed-up plans for Clorox Field at the Port of Oakland or will it be more of “I know some folks who’d like to buy the A’s – can’t tell you who they are, though. That’s a secret.”
If that’s the case, pjk, I hope they poke and prod him until he gives in.
I hope they poke and prod him until he giggles like the Pillsbury Doughboy.
I didn’t hear most of the show, but the host afterward questioned why no one has come forward, publicly, willing to buy the team. And he mentioned the $1 billion price tag to buy the team and build a stadium. When the Dodgers were having ownership problems, groups looking to buy the team popped up all over the place, the host noted. Not so with the A’s. Can someone fill us in on what Knauss said? All I heard was his lame defense of moving jobs out of Oakland and in to Pleasanton.
He said that HT wouldn’t actually need the cleanup people are suggesting. Also mentioned PSL’s again, etc.
PSLs. Sigh. Those went over so well the last time they were tried in Oakland, in 1995, right? In other words, he hasn’t done a thing since he surfaced last year, it sounds. Raised no money, inked no naming rights sponsor, even though his own company would seem an obvious candidate for that. But apparently Clorox is not interested in matching the Cisco deal. From what I recall, HT’s contamination restricts usage of the property to nonresidential sort of things, right? So they’re going to bring 30,000 people to the place 81 times a year?
HT is in a state of constant and PERMANENT review. I talked to the guy in charge of overseeing the site who said it’s somewhat similar to what contained contamination at the San Jose Arena. You can read the SJ documents here:
https://www.envirostor.dtsc.ca.gov/public/profile_report.asp?global_id=43730007
The HT project manager explained things a little further in an email to me when he said “While the Land Use Covenant restricts activities that would interfere with the cap from being conducted without DTSC approval, it is common in development plans to engineer acceptable solutions that modify cleanup remedies including caps under DTSC oversight.” If the footprint of the stadium extends outward to the point it’s over the capped area, and it’s my understanding it would, the stated scenario would take place.
From a technical standpoint, HT is definitely possible, and can be done. The problem is that this is not a 1 time fix. This is a permanent issue, and worst of all this is infrastructure work that the public will be on the hook for. There was cleanup work done in the area in 2004 making the ballpark possibility a little stronger. But the 200,000 cubic yards of capped material remains, as done the 2002 CA DTSC estimate of a $100 million cleanup should something go wrong. And again, that’s public money. Things might go smoothly….but over time, caps need maintenance, and putting a stadium over the underwater caps makes the situation remarkably unique.
Is a HT stadium possible? Sure. But only if you convince the public it’s worth the financial risk. I appreciate Don Knauss’ seemingly genuine interest in making positive things happen for Oakland. But it’s disingenuous to suggest all a HT stadium project would need is more receptive ownership. Asking the public to take responsibility for this type of infrastructure is mighty tall order. If you want this project to be treated as a legit possibility, downplaying its impact is not the right strategy to move it forward. Assuming Mr. Knauss is being genuine, and not just trying to take advantage of the situation.
@muppet- appreciate your insight- I would suggest that you write an editorial to the Oakland Tribune and close it by asking Knauss if he and the Oakland leaders are willing to place the public with this financial risk. I also believe you cited 200M in infrastructure improvements for this site without capping. Knauss and Oakland pols need to Ho on record that they fully understand the costs of HT and they are willing to take on that risk.
@pjk – maybe you should listen to the archive before dismissing Knauss and questioning aspects that were discussed, on air.
http://media.957thegame.com/a/77056350/don-knauss-talks-about-trying-to-keep-the-a-s-in-oakland.htm?pageid=886593
This is why Wolff will not pursue Howard Terminal or any other site in Oakland or the East Bay.
He does not want to ask the public for money. He knows it is not possible in this day and age.
In San Jose, the site needs minimal work and it is in Downtown. Oakland cannot offer that.
Jeffrey said the best above, HT was $517M in 2002, Probably 700M today and the taxpayers would have to pick up 200M just for cleanup and infrastructure to support the thing…..Fat chance of that happening.
Wolff refuses to ask for a handout. He is a better person than most owners who want free ballparks. He is willing to pay for it privately but in San Jose because Oakland does not have a Downtown site that is feasible.
The BRC knows if there was public money available in Oakland or the East Bay they would have tried to broker a deal….The 4 years of silence tells you Wolff has exhausted all his options and the BRC knows it…So does Selig.
Even if the BRC knew there was a site that was feasible and it required Wolff to pay for most of it they would make him do it and were even floating the idea of loaning the A’s 150M for the ballpark (unprecedented in the lodge).
Cotchett knows this full well, he knows San Jose is the only way to keep the team in the Bay Area and will expose MLB’s blatantly delaying a BRC recommendation because that could be held in court against MLB.
The BRC will be put on the stand along with Selig to explain why things have taken so long, that is so bad for MLB there is no way this lawsuit can continue for long.
Guys- if HT is so viable why are Oakland leaders spending 3M on EIR for cc. But not anything for HT?
Knauss said they’re doing an EIR on HT right now. The CC EIR is preparing for 1, 2 or 3 teams… its called a ‘Plan B’. The best part of the interview is the numerous references to working directly with MLB. Knauss spoke of some pretty clear guidelines that would interest MLB.
I say call his bluff- get the site ready- invest the 200 M in infrastructure improvements and deliver 209M of public money and done deal- what’s taking so long?
Knauss, who’s Knauss? Does he own the team? Would Wolff sell to him? Until any of that, this is sort of like daydreaming how you’re gonna spend your lottery money before you’ve even purchased your ticket. As for Knauss, maybe if he buys the A’s he’ll move ’em to Pleasanton like he did Clorox. Unless he scrapes together enough $$$ that Wolff can’t refuse him or MLB decides to force Wolff to sell to Knauss he’s just some guy talking.
David, what HT EIR? That’s a public document but no hearings have been held or items put forward. Who’s working on this alleged document, the property owner?
@BNG – i’m just reporting what I heard in the interview.
Well any EIR would be going through the city and there’s no evidence of that from their website.
@BNG – I don’t think the city is paying for the work Knauss refers to. I’m not sure if private companies have to report EIR’s on their corporate websites.
@David: private companies don’t do EIR’s. under state law, there must be a lead agency and that would be the city. Now a private company could decide to do a project that would require an EIR but the city is charged with preparing it.
@BNG – thanks for the info. Knauss did say something about studying what it would take to prepare the sight. I’m not sure if he said “EIR”.
@David: ok, makes sense. Seems Knauss has a rather weak hand to play but it’ll be interesting to see how things go.
@BNG – i’m not sure how weak Knauss’ effort is. After hearing this morning that Wolff told Larry King he was disappointed that Selig hadn’t done more for his SJ effort. Then (my speculation) you gotta believe that Selig doesn’t like the SJ lawsuit and just might work with this Oakland idea. He seemed pretty upset when Reed tried to start the vote a couple of years ago and refused to meet with him recently. This should all be quite interesting in the coming months.
Also good to hear that a new 5 year lease will be worked out shortly.
Yeah but Knauss is irrelevant because he doesn’t own the team. He has no real say in the process. Unless MLB is willing to strip the A’s from Wolff and sell ’em to Knauss then even if SJ doesn’t work out, there’s nothing stopping Wolff from leaving for Portland or San Antonio. Heck, the only reason they’re still in Oakland is the territorial rights matter down in SJ and neither of those cities have such problems.
I doubt Selig is really too pissed about the lawsuit, lawsuits are often just another form of negotiating and they know it. If its not dismissed then both sides, SJ and MLB will probably be hunting for a settlement.