The napkin at the heart of the Rogoff-Hopfinger dispute

UPDATE: This story was updated on July 29, 2017

Alaska Dispatch News owner Alice Rogoff, the wife of billionaire financier and now TV star David Rubenstein, appears headed to court to face a jury that will decide how much money she owes AlaskaDispatch.com co-founder Tony Hopfinger.

Anchorage Superior Court Judge Andrew Guidi today struck down a Rogoff motion to have the case dismissed.  Rogoff argued her $1-million-dollar napkin promise to pay Hopfinger wasn’t  a valid contract. The judge disagreed. 

An aggressive, internet news-startup, AlaskaDispatch.com helped put Rogoff in position to purchase the Anchorage Daily News from The McClatchy Company for $34 million in 2014. 

After the sale, the wealthy Nantucket Island woman who the New York Times described as a “business mogul” began negotiating a buy-out with a weary Hopfinger, who along with ex-wife Amanda Coyne had largely devoted six years of his life to the website.

Along the way, there was a lot of stress – Hopfinger served not only as the editor of Dispatch but also as the defacto business manager – and a difficult divorce after which Rogoff managed by buy out Coyne’s interest in Dispatch.com for a mere $5,000.

Hopfinger, who was intimately involved in helping Rogoff deal with McClatchy, thought he deserved a better settlement, and he want to scale back what had been a seven-day-per-week, 10- to 15-hour per day job. He’d met a new love interest, and they were talking about getting married and starting a family.

At a March meeting with Rogoff, Guidi wrote in his 21-page opinion, “Hopfinger alleges he made an oral offer to sell his shares of ADP (Alaska Dispatch Publishing) for $1.3 million to be paid over five years. According to Hopfinger, Rogoff immediately made an oral counter-offer of $1 million plus stock options, which he accepted. He then pressed Rogoff over the next several weeks to memorialize their agreement in writing.”

Rogoff was reluctant to do the deal then for fear the new debt might jeopardize a $13 million loan she was negotiating with Northrim Bank to help her buy the Daily News. But that concern was soon out of the way.

With a loan agreement complete, the purchase of the Daily News was announced on April 8. 

Enter the napkin

Over the weeks that followed, Hopfinger pestered Rogoff to get his deal done. Hopfinger contends Rogoff was reluctant to formalize the contract because of a covenant in the Northrim loan requiring she get bank approval for financial commitments over $50,000.

All of this, according to Guidi’s summary, “led to the second meeting on April 18, 2104. The April meeting culminated in Rogoff writing on a paper napkin, in the presence of her lawyer and Hopfinger, that she would pay Hopfinger $100,000 per year for ten years at the end of each calendar year, starting in 2014.”

In a land where many a deal has been sealed with no more than handshake or someone’s word, Rogoff went a couple of steps beyond.

“She then signed and dated the napkin, a copy of which is attached as an exhibit to the complaint,” Guidi wrote. “In accordance with what she promised, Rogoff made the first $100,000 payment at the end of 2014. But subsequent efforts made by the parties to draw up their agreement in a formal way failed, their relationship soured, and after Rogoff announced she would cease further payments, Hopfinger filed suit for damages” in June of this year. 

Thus came to an end a partnership that had begun with so much promise, but was by the end of 2014 already starting to show signs of strain. By then it was obvious  Rogoff’s plan to merge AlaskaDispatch.com with the Anchorage Daily News into a new entity – Alaska Dispatch News, still operating online as ADN.com – faced big problems.

For one thing, the newspaper was not the cash cow Rogoff expected it to be.

“You sold me a dead baby,” she complained to one former Daily News executive. But the problem was bigger than the newspaper.

Largely for public-relations reasons, Rogoff  refused to lay anyone off at the new operation even though the merger had significantly increased the size of the editorial and advertising staffs without adding much in the way of revenue.

Dispatch.com had been losing money prior to the merger. The Daily News’ revenue stream had been in a downward skid. And to make things worse, when McClatchy left Anchorage it took national advertising accounts and corporation-linked advertising operations like “Career Builder” and Cars.com with it.

The new ADN was forced to rebuild the job and automobile advertising operations and struggled to obtain national advertising. Rogoff eventually sued McClatchy for $780,000 over its actions, claiming the California-based company “failed to perform many of (its) obligations, which was a breach of the SPA (Stock Purchase Agreement) and a violation of the implied-in-law covenant of good faith and fair dealing, which is implied in all contracts.”

The suit was later quietly dropped. The terms of the settlement have never been disclosed.

Deep trouble

One of many troubled U.S. news operations, McClatchy was in 2015 and is now struggling just to survive. And by 2015, all of  those even slightly familiar with the finances of the Dispatch News knew it was in a similar situation.

It was revealed in court earlier this month that the company was $4 million into the red in its first year in operation. The losses have continued since.

The plight of the new business was a subject of much discussion at Hopfinger’s wedding in May in Santa Fe.

Rogoff, who’d developed a very close relationship with Hopfinger over the years at Dispatch.com, detoured out of her way from one of her many cross-country trips to attend that event. The wedding might have been one of the last happy moments the two shared.

By summer their relationship would be souring and by fall it would be on the rocks as Hopfinger continued to push for a formal, written contract to take the place of the napkin-deal.

“Negotiations continued off and on until November when Rogoff emailed Hopfinger, stating that the Northrim loan no longer barred the agreement,” Guidi wrote in his 21-page opinion. “As a result, the parties planned a face-to-face meeting on November 30 to finalize the deal, but Rogoff failed to attend the meeting.”

Skipped meetings had, by then, become something of a Rogoff trademark. If she thought there might be bad news coming or any kind of confrontation, she’d just not show. And Hopfinger had by then had grown tired of the behavior.

“A few days later,” Guidi wrote, “Hopfinger angrily confronted Rogoff about her avoidance of the issue. Although the parties dispute what was said during the conversation, Rogoff interpreted Hopfinger’s remarks as a tender of his resignation. She did not make the second payment to Hopfinger on January 1, 2016 and has not made any payments since. On June 15, 2016, Hopfinger initiated suit.”

Indentured servitude

Rogoff’s contention from the start of the litigation has been that she offered Hopfinger the $100,000 per year not as payment for his interest in Dispatch.com, but as a 10-year contract for professional services.

“Rogoff denies the parties entered into a buy-out agreement,” Guidi writes. “She insists that given ADP’s low value she never would have agreed to pay $1 million to buy out Hopfinger’s share of the company, or – at least – not merely for the that reason. She claims the alleged contract was primarily for incentive pay contingent on Hopfinger’s continuing commitment as an employee. Hopfinger characterizes this as a fable invented to justify Rogoff’s breach.

“He argues there is no admissible evidence to substantiate Rogoff’s alleged understanding of the agreement. Furthermore, he was already working for Rogoff under a 5-year employment contract, which created a pre-existing duty to give her 100 percent effort.”

Hopfinger saved emails between himself, Rogoff and attorney Bill Bittner to back up his side of the story. Rogoff contends that whatever went on was just talk. She says she stopped paying Hopfinger because he decided to move to Chicago with his new wife.

That was a move of which she was well aware at the wedding and for months before. It was to have involved his working online from Chicago with trips to Anchorage as necessary.

In April 2015, ADN.com published a story about the changes at the news organization. It quoted Rogoff saying, Hopfinger “will work remotely from Chicago, return to Anchorage as often as possible, and remain president of our company.”

Given the tangled nature of all this, Guidi ruled, a judge can’t toss the suit. Instead, the task of sorting out who is telling the truth and who isn’t will have to be put to a jury. The trial is tentatively set for March.

ADN worthless?

But in an early victory for Hopfinger, Guidi ruled that he’s not going to allow Rogoff to claim at trial that she wouldn’t have made a $1 million deal for Hopfinger’s 5-percent share of Dispatch.com share because the Alaska Dispatch News and thus Alaska Dispatch Publishing was worth little or nothing.

That might be the case now – and Rogoff contracted with an economist to make that claim – but Guidi ruled the post-deal assessment inadmissible.

To buttress the no-value argument, Guidi wrote, “Rogoff retained a forensic economist to analyze the value of Hopfinger’s interest in ADP. The expert, Stephen Colt, PhD, opines that the value of Hopfinger’s holdings was negligible, if it had any value at all. Rogoff wishes to introduce the expert’s opinion at trial so that the jury may infer that she never would have agreed top pay $1 million for Hopfinger’s share of ADP.”

Hopfinger’s lawyer challenged that, arguing that it really doesn’t matter what an economist thinks the Dispatch News was worth years after its purchase by Rogoff. What matters is what Rogoff thought it was worth at the time and what she thought she should pay Hopfinger.

At the time of the Daily News purchase, Rogoff was positively bubbly about Hopfinger having put her in position to make a bid for the newspaper she’d coveted since her first, semi-permanent move from Washington, D.C. to Alaska in 2006, the year she bought a home on Campbell Lake in Anchorage.

Over the years that followed, she became more entrenched in Alaska and visited her estranged husband on the East Coast less and less. Three years after buying the house, “a handshake and an agreement inked on a napkin (editor’s note: the same way in which the Hopfinger deal was later sealed) led to Rogoff’s purchase of 90 percent of the Dispatch,” Julia Duin, the former Snedden Chair of Journalism in Fairbanks, wrote for the Washington Post in a 2015 Rogoff profile.

She quoted a then thankful Hopfinger saying “she gave us this amazing opportunity to open offices and hire … a team of people willing to take a risk.”

Rogoff was largely a behind the scenes player at Dispatch.com, flitting in and out of the office on occasion and devoting most of her time in Alaska to another of her ventures – the Arctic Imperative. 

The daughter of the late Mortimer Rogoff, one of the developers of the foundation for the Global Positioning System (GPS) of navigation, Rogoff is fascinated by the Arctic. A child of privilege, she spent her teen years in Paris where her fathers was the Europen vice-president for ITT. In a Mortimer biography she helped write, she described herself as the son he never had.

Her interest in Alaska and the Arctic traces back to him. Navigational technology he pioneered helped the ice-breaking, oil-tanker SS Manhattan navigate the Northwest Passage between the Bering Strait and the Atlantic Ocean in 1969. It was the first and last oil tanker to do so.

Rogoff and her nine best friends who joined her to meet with President Obama

Power player

Primarily an advocate for Arctic issues and Native artists in her early years in Alaska, Rogoff became increasingly involved in politics across a wide spectrum off affairs just before and then after the purchase of the Daily News.

She was an early backer of Democrat gubernatorial candidate Byron Mallott in 2014, and helped broker a deal that linked Mallott as lieutenant governor with independent Bill Walker as governor on what Dispatch News reporter Rich Mauer labeled a “unity ticket.”

The pairing helped Walker eek out a 4,000 vote victory over incumbent Gov. Sean Parnell. Some Parnell supporters still blame the loss in large part on Dispatch News’ extensive coverage of a sexual-assault scandal involving the Alaska National Guard.

“Gov. Sean Parnell is still working overtime to hide the truth about what really happened,” Dispatch News columnist Shannyn Moore opined shortly before the election. “Not only did he shirk his responsibility for years, now he’s actively trying to hide and obfuscate his role in supporting and empowering the wrong-doers.”

The Natinal Guard story largely faded away after the election. In June 2015, a report ordered by Walker came from “the Alaska Department of Law and confirms many of the findings from an investigation by the National Guard Bureau’s Office of Complex Investigations, which then-Gov. Sean Parnell released to the public in September 2014,” KTVA.com reported.

By then Rogoff was an Alaska power player offering fiscal advice to Walker in Juneau and using her husband as a connection to help Walker hook up with an even bigger power player – President Barack Obama.

When Obama took off from the nation’s capital on the way to Alaska for his first-ever visit in August 2015, Walker was on Air Force One with the president. The president himself later had lunch with Rogoff and a select group of Alaskans at her Campbell Lake home.

“Rogoff, who has been acquainted with the president for several years, described it as a private dinner featuring an Alaska-grown menu,” the Dispatch News later reported. “She did not disclose who attended the dinner or how many guests were invited.

“‘It was a chance for the president to have a conversation with a diverse group of Alaskans,’ Rogoff said. Because it was a private dinner, no guest list will be distributed, she said. She described it as a ‘non-political event.'”

The newspaper never identified the guests, and there is no indication it ever made an attempt to identify the guests rubbing shoulders with the president.

How much of a roll Rogoff’s ownership of the state’s largest newspaper and its most powerful website played in helping her gain access to Walker, Obama and others is unknown, but it is a factor in determining how valuable the newspaper might have been to her at the time she was cutting a deal with Hopfinger.

As Guidi noted in his opinion, the economist “Colt’s report was created in the course of the litigation. Rogoff could not have had it in mind when she entered into the alleged agreement with Hopfinger. The report, generated in litigation, is not probative of what Rogoff believed the company was worth at the time of the alleged transaction.”

Rogoff might well have thought the money she was destined to lose on the Dispatch News at the time of the settlement was nothing compared to whatever political access that loss might help her obtain.

In the months following the purchase, Hopfinger and others repeatedly lobbied her to hire a publisher to run the newspaper to separate herself from any public perceptions that she was trying to use the newspaper to leverage influence, but she steadfastly refused to do so.

Bittner defended

Guidi in his ruling also came to the defense of long-time Anchorage attorney Bittner, who has been a Rogoff confidant since before her Dispatch days. Rogoff’s attorney in the Hopfinger case had tried to argue that Bittner was negotiating contract deals with Hopfinger without Rogoff’s knowledge.

Guidi simply wasn’t buying that.

“There is no genuine issue of fact that Rogoff retained Bitter to represent her in contract talks with Hopfinger, and this was made known to Hopfinger. Nor is there any dispute that the communications between Bittner and Hopfinger come within the scope of Bittner’s assignment,” the judge wrote.

“Furthermore, Rogoff does not assert that Bittner acted in a manner contrary to her interests or in violation of his fiduciary duty as her attorney. Under this circumstances, the question is whether Bittner’s knowledge of transactions with Hopfinger should be imputed to Rogoff.”

The ruling on this issue is pivotal because of Rogoff’s attempt to deny knowledge of buy-out discussions. Hopfinger’s attorneys had argued she was trying to build a wall of “plausible deniability” between herself and Bittner wherein she claims not to be responsible because she doesn’t know what is happening.

Hopfinger, Guidi’s opinion says, “cites deposition testimony in which Rogoff disavows knowledge of contract terms drafted by Bittner that would support the conclusion they were negotiating a buy-out.”

Guidi said he isn’t going to allow Rogoff to make that argument at trial.

“Again, here there is no question that Rogoff authorized Bittner to represent her in contract discussion with Hopfinger, that he was given the task of effectuating her contractual intent, and that his role included drafting proposed agreement and communicating contract terms, offers and responses.”

And thus Rogoff is going to have to accept Bittner’s actions as her own. Rogoff was not some patsy being played by Hopfinger, Guidi concluded.

“Of the two parties, Rogoff had far superior financial power (including millions in bank financing), legal power (an entire law firm at her disposal) and influence (she publishes the largest newspaper in the state),” the judge wrote. “So despite the alleged disparity in consideration, the circumstances of the transaction do not indicate anything ‘out of line’ with their deal.

“Rogoff does not allege she was the victim of duress, lack of capacity, fraud or that either party was unserious in their discussions. The mere fact that an expert (economist) with the benefit of 20-20 hindsight now opines that she overpaid does not support invalidation of the agreement.”

Rogoff in 2014 bought what she really, really wanted – the Anchorage Daily News. She might have paid way too much, but she clearly thought she owed Hopfinger for helping her attain the prize. She wrote down on a napkin what she thought his help was worth and signed her name to a pledge to pay the money. She made one installment on the $1-million dollar deal.

It will now be up to a jury to decide how much of the other $900,000 – or more – she has to pay.

(Editor’s note: The author of this story is a former reporter and editor for the Juneau Empire, a Morris publication. He worked at the Anchorage Daily News for more than 25 years. He joined AlaskaDispatch.com in its formative stage. He was once a close personal friend of Rogoff, Hopfinger and others involved in this story and had access to some of the inner workings of the Dispatch. He joined the Alaska Dispatch News after the Daily News sale, but did not last long. He ignored an order to stop investigating Roland Maw, a member of the state Board of Fisheries and a crony of Gov. Bill Walker, a friend of Rogoff’s. His investigation eventually led to the state of Alaska charging Maw, who was claiming to be a resident of both Montana and Alaska, with multiple felonies related to defrauding the Alaska Permanent Fund. Rogoff was unhappy with what she considered the “controversy” the Maw story generated. She and the author subsequently negotiated a quiet departure from the Dispatch intended to help protect the integrity of the news operation.)