DAN SIEGEL, SBN 056400
SIEGEL & YEE
499 14th Street, Suite 220
Oakland, CA 94612
Telephone: (510) 839-1200
Telefax: (510) 444-6698
Attorneys for Plaintiffs
DAVID ADELSON, et al.
IN
THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF ALAMEDA
DAVID ADELSON, LAUREN AYERS, No. 814461-0
MARY BERG, JOANNE BOBB, LYDIA
BRAZON, CECELIA CARUSO, GAIL DIXON,
ANNE EMERMAN, SHERRY GENDELMAN,
TERRENCE GUY, JIM HORWITZ, KAHLIL
JACOBS-FANTAUZZI, DAWUD KHALIL-ULLAH,
PELE DE LAPPE, STEVE LUSTIG, ERROL
MAITLAND, MIGUEL MALDONADO, ANDREW
NORRIS, LEWIS O. SAWYER JR., MARIALICE
WILLIAMS, and FRIEDA ZAMES, individually,
and on behalf of all others similarly situated,
and on behalf of the Pacifica Foundation,
Plaintiffs, VERIFIED SECOND AMENDED
COMPLAINT FOR INJUNCTIVE AND
v. DECLARATORY RELIEF AND FOR
DAMAGES FOR VIOLATIONS OF
PACIFICA FOUNDATION, a California Nonprofit THE CORPORATIONS CODE AND
Corporation, MARY FRANCES BERRY, DAVID FOR UNFAIR BUSINESS PRACTICES.
ACOSTA, JUNE MAKELA, ANDREA CISCO,
FRANK MILLSPAUGH, KEN FORD,
MICHEAL PALMER, WILLIAM LUCY,
and DOES 1-25, inclusive,
Defendants.
___________________________________________/
1. Plaintiffs are members, contributors, and leaders of defendant PACIFICA FOUNDATION.
They bring this action (1) to restrain and enjoin the unlawful and undemocratic actions of a majority of
the Foundation’s Board of Directors and (2) to restrain and prevent the unlawful waste of the
Foundation’s assets for uses inconsistent with the purposes of the Foundation. The Board of
Directors, without proper notice and in excess of its lawful authority, has purported to amend the
Foundation’s bylaws to eliminate the membership’s role in the election of directors and to thereby
create a self-perpetuating Board without any accountability to the members and subscribers of the
Foundation. Unless restrained, the Board now threatens to utilize its newly created powers to abandon
the mission and historic role of the Pacifica radio network and threatens to sell one or more of the
Foundation’s five radio stations and/or station licenses.
2. Plaintiff DAVID ADELSON is a member of defendant PACIFICA FOUNDATION within the
meaning of Corporations Code §5056, a donor to the Foundation, and a member and acting chair of
the Local Advisory Board for Pacifica Radio Station KPFK in Los Angeles, California.
3. Plaintiff LAUREN AYERS is a member of defendant PACIFICA FOUNDATION within the
meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local
Advisory Board for Pacifica Radio Station KPFA in Berkeley, California.
4. Plaintiff MARY BERG is a member of defendant PACIFICA FOUNDATION within the
meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local
Advisory Board for Pacifica Radio Station KPFA in Berkeley, California..1
5. Plaintiff JOANNE BOBB is a member of defendant PACIFICA FOUNDATION within the
meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local
Advisory Board for Pacifica Radio Station WBAI in New York, New York.
6. Plaintiff LYDIA BRAZON is a member of defendant PACIFICA FOUNDATION within the
meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local
Advisory Board for Pacifica Radio Station KPFK in Los Angeles, California.
7. Plaintiff CECILIA CARUSO is a member of defendant PACIFICA FOUNDATION within
the meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local
Advisory Board for Pacifica Radio Station WBAI in New York, New York.
8. Plaintiff GAIL DIXON is a member of defendant PACIFICA FOUNDATION within the
meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local
Advisory Board for Pacifica Radio Station WPFW in Washington, D.C.
9. Plaintiff ANNE EMERMAN is a member of defendant PACIFICA FOUNDATION within the
meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local
Advisory Board for Pacifica Radio Station WBAI in New York, New York.
10. Plaintiff SHERRY GENDELMAN is a member of defendant PACIFICA FOUNDATION
within the meaning of Corporations Code §5056, a donor to the Foundation, and a member and chair
of the Local Advisory Board for Pacifica Radio Station KPFA in Berkeley, California.
11. Plaintiff TERRENCE GUY is a member of defendant PACIFICA FOUNDATION within the
meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local
Advisory Board for Pacifica Radio Station KPFK in Los Angeles, California.
12. Plaintiff JIM HORWITZ is a member of defendant PACIFICA FOUNDATION within the
meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local
Advisory Board for Pacifica Radio Station KPFK in Los Angeles, California.
13. Plaintiff KAHLIL JACOBS-FANTAUZZI is a member of defendant PACIFICA
FOUNDATION within the meaning of Corporations Code §5056, a donor to the Foundation, and a
member of the Local Advisory Board for Pacifica Radio Station KPFA in Berkeley, California.
14. Plaintiff DAWUD KHALIL-ULLAH is a member of defendant PACIFICA FOUNDATION
within the meaning of Corporations Code §5056, a donor to the Foundation, and a member of the
Local Advisory Board for Pacifica Radio Station KPFK in Los Angeles, California.
15. Plaintiff PELE DE LAPPE is a member of defendant PACIFICA FOUNDATION within the
meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local
Advisory Board for Pacifica Radio Station KPFA in Berkeley, California.
16. Plaintiff STEVE LUSTIG is a member of defendant PACIFICA FOUNDATION within the
meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local
Advisory Board for Pacifica Radio Station KPFA in Berkeley, California.
17. Plaintiff ERROL MAITLAND is a member of defendant PACIFICA FOUNDATION within
the meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local
Advisory Board for Pacifica Radio Station WBAI in New York, New York.
18. Plaintiff MIGUEL MALDONADO is a member of defendant PACIFICA FOUNDATION
within the meaning of Corporations Code §5056, a donor to the Foundation, and a member of the
Local Advisory Board for Pacifica Radio Station WBAI in New York, New York..1
19. Plaintiff ANDREW NORRIS is a member of defendant PACIFICA FOUNDATION within
the meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local
Advisory Board for Pacifica Radio Station WBAI in New York, New York.
20. Plaintiff LEWIS O. SAWYER JR. is a member of defendant PACIFICA FOUNDATION
within the meaning of Corporations Code §5056, a donor to the Foundation, and a member of the
Local Advisory Board for Pacifica Radio Station KPFA in Berkeley, California.
21. Plaintiff MARIALICE WILLIAMS is a member of defendant PACIFICA FOUNDATION
within the meaning of Corporations Code §5056, a donor to the Foundation, and a member and chair
of the Local Advisory Board for Pacifica Radio Station WPFW in Washington, D.C.
22. Plaintiff FRIEDA ZAMES is a member of defendant PACIFICA FOUNDATION within the
meaning of Corporations Code §5056, a donor to the Foundation, and a member of the Local
Advisory Board for Pacifica Radio Station WBAI in New York, New York.
23. Each of the plaintiffs named above brings this action on his or her own behalf and as a
derivative action pursuant to Corporations Code §5710 on behalf of the Pacifica Foundation.
24. Plaintiffs bring their third claim for relief herein on behalf of themselves and all other persons
similarly situated. The class of persons that plaintiffs represent in connection with the third claim for
relief consists of those individuals, whether members of the PACIFICA FOUNDATION or not, who
within the three years preceding the filing of this lawsuit have made financial contributions to
defendant PACIFICA FOUNDATION based upon defendants’ representations (1) that such
contributions would be utilized to carry out the well publicized, long-standing and historic purposes of
the PACIFICA FOUNDATION as set forth in the Foundation’s Articles of Incorporation and Bylaws
and in ¶¶ 30 and 31, below; and (2) that such contributions would be utilized to develop and construct
a permanent national headquarters for the PACIFICA FOUNDATION in the City of Berkeley. The.1
class of persons whom plaintiffs seek to represent in this matter is ascertainable, but its members are
so numerous that it would be impractical to join them all in this action.
25. Defendant PACIFICA FOUNDATION is a California Nonprofit Corporation which
maintained, as of the date this lawsuit was filed, its headquarters and principal place of business in the
City of Berkeley, County of Alameda.
26. Defendants MARY FRANCES BERRY, DAVID ACOSTA, JUNE MAKELA, ANDREA
CISCO, FRANK MILLSPAUGH, KEN FORD, MICHEAL PALMER, WILLIAM LUCY, and Doe 1
through Doe 10 are and were at all times relevant hereto directors of the defendant PACIFICA
FOUNDATION.
27. The true names and capacities of the defendants named herein as Doe 1 through Doe 25,
inclusive, whether individual, corporate, associate, or otherwise, are unknown to plaintiffs, who
therefore sue such defendants by fictitious names pursuant to Code of Civil Procedure section 474.
Plaintiff will amend this complaint to show their true names and capacities when they have been
determined.
28. Plaintiffs are informed and believe, and based on that information and belief allege, that at all
times mentioned in this complaint defendants were the agents and employees of their codefendants and
in doing the things alleged in this complaint were acting in the course and scope of such agency and
employment.
29. The Pacifica Foundation was incorporated on August 24, 1946, by Lewis Hill, H. Don
Kirschner, Homer Sisson, William Triest, and John Waldron.
30. The Articles of Incorporation of the Pacifica Foundation, as filed with the Secretary of State
of the State of California on August 20, 1948, and at all times since said date, have stated, and do now.1
state, that the purposes of the Pacifica Foundation are, inter alia: “to establish and operate for
educational purposes…one or more radio broadcasting stations;” “to encourage and provide outlets
for the creative skills and energies of the community;” “to…contribute to a lasting understanding
between nations and between the individuals of all nations, races, creeds, and colors; to gather and
disseminate information of the causes of conflict between any and all of such groups;… to promote the
study of political and economic problems and of the causes of religious, philosophical and racial
antagonisms;” “to promote the full distribution of public information; to obtain access to sources of
news not commonly brought together in the same medium; and to employ such varied sources in the
public presentation of accurate, objective, comprehensive news on all matters vitally affecting the
community.”
31. Consistent with the purposes set forth in Articles of Incorporation, the Pacifica Foundation
now owns and operates five listener supported and publicly supported radio broadcasting stations in
the cities of Berkeley, California; Los Angeles, California; New York, New York; Washington, D.C.;
and Houston, Texas. To carry out the purposes of the Articles of Incorporation, the Pacifica
Foundation has operated its radio stations in a manner consistent with the principles of freedom of
speech and as forums for the expression of free speech.
32. In order to carry out its purposes and mission as described above, the Pacifica Foundation has
solicited donations from plaintiffs, and the class they represent, for the purposes of acquiring and
operating its five radio broadcasting stations. In soliciting such contributions, and in continuing to do
so to the present day, the PACIFICA FOUNDATION has explicitly represented to plaintiffs and to the
class they represent, that all funds so contributed would be utilized to assist the Pacifica Foundation in
carrying out its purposes and mission as set forth above in ¶¶ 30 and 31, above, and in its Articles of.1
Incorporation, and/or would be specifically utilized to develop and construct a permanent national
headquarters for the PACIFICA FOUNDATION in the City of Berkeley.
33. Plaintiffs, and the class they represent, have contributed millions of dollars to the Pacifica
Foundation. In doing so, they have relied upon the explicit assurances of the Pacifica Foundation that
the funds they contributed would be utilized solely for the purposes of carrying out the mission and
purposes of the Pacifica Foundation as set forth above and in its Articles of Incorporation and/or
would be specifically utilized to develop and construct a permanent national headquarters for the
PACIFICA FOUNDATION in the City of Berkeley.
34. At all times since August 24, 1946, the Articles of Incorporation of the Pacifica Foundation
have provided that the Pacifica Foundation would be governed by its directors and that the number of
directors and their method of election would be as set forth in the Bylaws of the Pacifica Foundation.
35. As of and since September 30, 1961, the Bylaws of the Pacifica Foundation have provided
that: “There shall be such number of directors as the Board of Directors shall from time to time
decide.”
36. Beginning on January 9, 1988, and perhaps earlier, the Bylaws of the Pacifica Foundation
provided that:
SECTION 2 ELECTION OF DIRECTORS: In order to be elected, a
member must
receive the nomination and vote of a majority of the station
board which s/he
represents, unless such member is classified as an “at large”
member, in which
event s/he must be elected by a 2/3 vote of the Board of Directors
of the Foundation,
voting by secret ballot, subject to approval of FCC council
or FCC.
37. Pursuant to the Bylaw provision set forth above and the procedures that the Pacifica
Foundation adopted pursuant thereto, each station board (also known as “Local Advisory Board”)
elected two members of the Board of Directors of the Pacifica Foundation. Each person so elected
assumed his or her seat on the Board of Directors. Likewise pursuant to such procedures, the number.1
of at large members of the Board of Directors was limited to a number not to exceed one-half of the
number of station representatives.
38. On or about September 28, 1997, and/or on or about February 28, 1999, the Board of
Directors of the Pacifica Foundation purported to amend the Foundation’s bylaws to provide as
follows: (1) to eliminate the role of the station boards in electing members of the Pacifica Board of
Directors; (2) to vest all authority for nominating members of the Board of Directors in the Board of
Directors’ “Board Development Committee;” and (3) to provide that all members of the Board of
Directors would be elected by majority vote of the Board of Directors.
39. Since on or about February 28, 1999, in reliance upon its actions as set forth in ¶38, above,
the Board of Directors of the PACIFICA FOUNDATION has refused to seat as members of the
Board of Directors persons duly elected as members of the Board of Directors by Pacifica’s station
boards, also known as local advisory boards, pursuant to the provisions set forth in ¶¶36-37, above.
40. Since February 28, 1999, the Board of Directors has abandoned and threatens to further
abandon the mission and purposes of the Pacifica Foundation as set forth in its Articles of
Incorporation and in ¶¶ 30-31, above, by (1) eliminating diverse and community oriented programming
from Pacifica’s radio stations; (2) censoring and attempting to censor the speech of its paid and
volunteer journalists; (3) firing or otherwise removing from their broadcast positions persons who
violated the limitations on free speech imposed by the Board of Directors; and (4) threatening to sell
one or more of Pacifica’s radio stations to commercial broadcasting companies in order to realize a
profit.
41. Since February 28, 1999, defendants have utilized the resources of the Pacifica Foundation for
improper purposes, including but not limited to (1) the hiring of armed guards to prevent staff and
volunteers from carrying out their work at Pacifica Station KPFA in Berkeley; (2) violating the free.1
speech rights of Pacifica paid and volunteer staff by firing them and/or by barring them from their
broadcasting duties through the use of threats, force, and arrests, and locking them out of the stations’
studios; (3) eliminating virtually all local community affairs and news programming at Pacifica Station
KPFT in Houston; (4) conducting citizens’ arrests of citizens involved in peaceful protests against
defendants’ actions; and (5) moving the Foundation’s headquarters from Berkeley to Washington,
D.C. Defendants have wasted the Foundations assets as set forth herein while at the same time
announcing that they lack the funds to pay the routine operating costs of the Foundation’s radio
stations, particularly the costs of operating radio station KPFA, the Foundation’s flagship station. On
information and belief, defendants have further utilized the resources of the Pacifica Foundation for the
purposes of marketing the Foundation’s radio broadcasting stations and/or station licenses.
DEMAND ON BOARD OF DIRECTORS
42. On June 14, 1999, plaintiffs, through counsel, informed the Board of Directors of the Pacifica
Foundation, in writing, of the ultimate facts and contentions set forth in this complaint, and requested
that the Board take action to remedy and rectify the concerns set forth herein.
43. On June 28, 1999, the Board of Directors of the Pacifica Foundation, through staff, advised
plaintiffs that it rejected their contentions and would take no action upon their requests.
FIRST CLAIM FOR RELIEF
(California Corporations Code)
44. Plaintiffs hereby incorporate as though fully set forth herein, the allegations set forth in
paragraphs 1-43 above, inclusive.
45. At all times relevant hereto, plaintiffs were and are members of the Pacifica Foundation within
the meaning of California Corporations Code §5056(a), by virtue of their right, pursuant to the
Foundation’s bylaws, to vote for the election of directors..1
46. Pursuant to the provisions of California Corporations Code §5150 and/or §5813, defendant
Pacifica Foundation was required to submit the proposed changes to the Bylaws of the Pacifica
Foundation that were considered on or about September 28, 1997, and/or February 28, 1999, as
described in ¶ 38, above, to the members of Pacifica’s local advisory boards, including plaintiffs, for
their consideration and vote.
47. Defendant Pacifica Foundation failed to submit the proposed bylaw changes to members of
Pacifica’s local advisory boards for their consideration and vote.
48. By virtue of the foregoing, defendant Pacifica Foundation violated its statutory obligation to
submit proposed changes in the Bylaws of the Pacifica Foundation to the members of the corporation,
including plaintiffs, for their consideration and vote.
49. In taking the actions described above, and in allowing the officers and employees of the
Pacifica Foundation to take such actions in their names, the individual defendants MARY FRANCES
BERRY, DAVID ACOSTA, JUNE MAKELA, ANDREA CISCO, FRANK MILLSPAUGH, KEN
FORD, MICHEAL PALMER, and WILLIAM LUCY, failed to act in good faith in the best interests
of the Pacifica Foundation and failed to act with the care, including reasonable inquiry, that ordinary
prudent persons in like positions would exercise under similar circumstances. Said individual
defendants, although placed on actual notice of the illegality of their actions, directed and/or failed to
restrain the officers and executive employees of PACIFICA FOUNDATION from taking the actions
described herein and thereby committed gross abuses of their authority and/or discretion.
SECOND CLAIM FOR RELIEF
(Breach of Articles of Incorporation and Bylaws)
50. Plaintiffs hereby incorporate as though fully set forth herein, the allegations set forth in
paragraphs 1-49 above, inclusive.
51. By taking the actions described in ¶¶ 38 and 39, above, defendants breached the Bylaws of the
Pacifica Foundation by failing and refusing to allow duly elected members of the Board of Directors to
take and hold office.
52. By taking the actions described in ¶¶ 40 and 41, above, defendants breached the Articles of
Incorporation of the Pacifica Foundation by allowing the resources of the Foundation to be utilized for
purposes contrary to those set forth in the Articles of Incorporation and in ¶¶ 30 and 31, above.
53. From June 15, 1997, to the present date, Article Nine of the Bylaws of the Pacifica
Foundation has read, in part, as follows:
These by-laws may be amended, altered or repealed in whole
or in part at
any meeting of the Governing Board, provided that the proposed
changes
have been submitted to each member of the Governing Board with
the notice
of the meeting and provided further that the right of waiver
of notice of meeting
shall not apply.
54. Pursuant to the Bylaws of the Pacifica Foundation, defendant Pacifica Foundation was
required to give notice of the exact text of the proposed bylaws changes to the members of the Board
of Directors along with the notices of the meetings for September 28, 1997, and/or February 28, 1999.
55. Defendant Pacifica Foundation breached the Bylaws of the Pacifica Foundation by failing to
give notice of the exact text of the proposed bylaws changes to the members of the Board of Directors
along with the notices of the meetings for September 28, 1997, and/or February 28, 1999.
56. From June 15, 1997, to the present date, Article Three of the Bylaws of the Pacifica
Foundation has read, in part, as follows:
SECTION 4 LIMITATION OF TERMS: Directors may serve for two
consecutive three year terms. Such persons shall not be eligible
for further
service until one year has elapsed after the termination of
the second
consecutive three year term, or unless elected to serve in a
different
capacity or category.
57. Within the three years preceding the filing of this action, defendant Pacifica Foundation
breached the Bylaws of the Pacifica Foundation by extending the terms of members of the Board of
Directors contrary to the requirements of the Bylaws. Specifically, defendant Pacifica Foundation
violated the bylaws by allowing persons, including but not limited to defendants David Acosta and
June Makela, whose terms on the Board of Directors had expired, to continue to serve on the Board
of Directors.
58. From June 15, 1997, to the present date, Article Seven of the Bylaws of the Pacifica
Foundation has read, in part, as follows:
SECTION 1 ELECTION AND MEMBERSHIP:
The Executive Committee shall be comprised of the officers of
the
Governing Board and include such other members to ensure that
each
signal area has representation on the Executive Committee. Election
of
Executive Committee shall occur at the same meeting as the election
of
Officers of the Governing Board.
59. From June 15, 1997, to the present date, Article Five of the Bylaws of the Pacifica Foundation
has read, in part, as follows:
SECTION 2 ELECTION AND REMOVAL OF OFFICERS:
A. ELECTION AND TERM OF OFFICES: The officers of the
Foundation shall be elected every three years by the Governing
Board,
or until the election of their successors.
60. The historical practice and interpretation of the above bylaw provisions and their predecessor
provisions by the Pacifica Board of Directors has been that when a vacancy occurred on the Executive
Committee, the person selected to fill the vacancy served only the unexpired portion of the person
whose place he or she was elected to take.
61. Within the three years preceding the filing of this action, defendant Pacifica Foundation
breached the Bylaws of the Pacifica Foundation by allowing the President of the Board of Directors,.1
defendant Mary Frances Berry, to appoint persons, including but not limited to defendants Frank
Millspaugh and Ken Ford, to the Executive Committee for three-year terms when her authority was
limited to filling the unexpired portions of the terms of the persons who had resigned from or had
otherwise left the Executive Committee.
62. In taking the actions described above, and in allowing the officers and employees of the
Pacifica Foundation to take such actions in their names, the individual defendants MARY FRANCES
BERRY, DAVID ACOSTA, JUNE MAKELA, ANDREA CISCO, FRANK MILLSPAUGH, KEN
FORD, MICHEAL PALMER, and WILLIAM LUCY, failed to act in good faith in the best interests
of the Pacifica Foundation and failed to act with the care, including reasonable inquiry, that ordinary
prudent persons in like positions would exercise under similar circumstances. Said individual
defendants, although placed on actual notice of the illegality of their actions, directed and/or failed to
restrain the officers and executive employees of PACIFICA FOUNDATION from taking the actions
described herein and thereby committed gross abuses of their authority and/or discretion.
THIRD CLAIM FOR RELIEF
(Unfair Business Practices)
63. Plaintiffs hereby incorporate as though fully set forth herein, the allegations set forth in
paragraphs 1-62, above, inclusive.
64. Defendants solicited contributions from plaintiffs, and the class they represent, under false
pretenses, in that defendants represented that all contributions made to the Pacifica Foundation would
be utilized to carry out the purposes of the Pacifica Foundation set forth in its articles of incorporation.
In truth, defendants have utilized portions of the funds so solicited for radio programming activities
and other activities inconsistent with the purposes and principles upon which the Pacifica Foundation
was created. By virtue of such actions, defendants have engaged in false advertising and committed.1
unfair business practices and have wrongfully obtained money from plaintiffs and the class they
represent.
65. Specifically, defendants committed unfair business practices as follows:
a. In order to carry out its purposes and mission as described above, the Pacifica Foundation
has solicited donations from plaintiffs, and the class they represent, for the purposes of acquiring
and operating its five radio broadcasting stations. In soliciting such contributions, and in
continuing to do so to the present day, the PACIFICA FOUNDATION has explicitly represented
to plaintiffs and to the class they represent, that all funds so contributed would be utilized to assist
the Pacifica Foundation in carrying out its purposes and mission as set forth above in ¶ 30 and in
its Articles of Incorporation, and/or would be specifically utilized to develop and construct a
permanent national headquarters for the PACIFICA FOUNDATION in the City of Berkeley.
b. Plaintiffs, and the class they represent, have contributed millions of dollars to the Pacifica
Foundation. In doing so, they have relied upon the explicit assurances of the Pacifica Foundation
that the funds they contributed would be utilized solely for the purposes of carrying out the
mission and purposes of the Pacifica Foundation as set forth above and in its Articles of
Incorporation and/or would be specifically utilized to develop and construct a permanent national
headquarters for the PACIFICA FOUNDATION in the City of Berkeley.
c. Since February 28, 1999, the Board of Directors has abandoned and threatens to further
abandon the mission and purposes of the Pacifica Foundation as set forth in its Articles of
Incorporation and in ¶¶ 30-31, above, by (1) eliminating diverse and community oriented
programming from Pacifica’s radio stations; (2) censoring and attempting to censor the speech of
its paid and volunteer journalists; (3) firing or otherwise removing from their broadcast positions
persons who violated the limitations on free speech imposed by the Board of Directors; and (4).1
threatening to sell one or more of Pacifica’s radio stations to commercial broadcasting companies
in order to realize a profit.
d. Since February 28, 1999, defendants have utilized the resources of the Pacifica Foundation
for improper purposes, including but not limited to (1) the hiring of armed guards to prevent staff
and volunteers from carrying out their work at Pacifica Station KPFA in Berkeley; (2) violating the
free speech rights of Pacifica paid and volunteer staff by firing them and/or by barring them from
their broadcasting duties through the use of threats, force, and arrests, and locking them out of the
stations’ studios; (3) eliminating virtually all local community affairs and news programming at
Pacifica Station KPFT in Houston; (4) conducting citizens’ arrests of citizens involved in peaceful
protests against defendants’ actions; and (5) moving the Foundation’s headquarters from Berkeley
to Washington, D.C. Defendants have wasted the Foundation’s assets as set forth herein while at
the same time they have announced that they lack the funds to pay the routine operating costs of
the Foundation’s radio stations, particularly the costs of operating radio station KPFA, the
Foundation’s flagship station. On information and belief, defendants have further utilized the
resources of the Pacifica Foundation for the purposes of marketing the Foundation’s radio
broadcasting stations and/or station licenses.
e. Additionally, defendants have utilized funds solicited from plaintiffs, and the class they
represent, for improper and wasteful purposes, such as the hiring of security personnel, public
relations consultants, and attorneys, all to assist defendants in carrying out activities designed to
divert the Pacifica Foundation from its historic mission and purposes.
66. In taking the actions described above, and in allowing the officers and employees of the
Pacifica Foundation to take such actions in their names, the individual defendants MARY FRANCES
BERRY, DAVID ACOSTA, JUNE MAKELA, ANDREA CISCO, FRANK MILLSPAUGH, KEN
FORD, MICHEAL PALMER, and WILLIAM LUCY, failed to act in good faith in the best interests
of the Pacifica Foundation and failed to act with the care, including reasonable inquiry, that ordinary
prudent persons in like positions would exercise under similar circumstances. Said individual
defendants, although placed on actual notice of the illegality of their actions, directed and/or failed to
restrain the officers and executive employees of PACIFICA FOUNDATION from taking the actions
described herein and thereby committed gross abuses of their authority and/or discretion.
WHEREFORE, plaintiffs request that this Court order relief as follows:
(1) Order injunctive relief to invalidate the purported September 28, 1997, and/or February 28,
1999, changes to the Bylaws of the Pacifica Foundation;
(2) Order injunctive relief to invalidate actions taken by the Board of Directors of the Pacifica
Foundation since September 28, 1997, and/or February 28, 1999, to the extent to which
those actions were the result of the composition of the Board consistent with the purported
bylaws changes;
(3) Order injunctive relief to restrain and enjoin defendants from utilizing the resources of
Pacifica Foundation contrary the purposes and mission of the Pacifica Foundation as set
forth in its Articles of Incorporation;
(4) Order injunctive relied to restrain and enjoin defendants from selling or otherwise disposing
of the assets of Pacifica Foundation;
(5) Issue injunctive relief ordering the removal from office of certain individual directors of the
Pacifica Foundation found to have committed gross abuses of their authority and/or
discretion;
(6) On the Third Claim for Relief, award restitution of money wrongfully obtained to plaintiffs,
according to proof;
(7) Award plaintiffs their costs of suit, including their reasonable attorney’s fees; and
(8) Award such other relief as the Court deems just and proper.
Dated: February 7, 2000
SIEGEL & YEE
By___________________________
Dan Siegel
Attorneys for Plaintiffs
DAVID ADELSON, et al.