City Desk

Washington Post Settles Lawsuit From Circulation Contractor


The Washington Post last month settled a lawsuit filed by an independent contractor who claimed the Post welched on its promise to refund unsold copies of the paper he bought for distribution to retailers such as CVS.

In the suit, Clinton, Md., resident Ricardo Smith says that the Post also reneged on this assurance to approximately 60 other independent contractors just like him. A federal judge had given Smith the green light to pursue a class action lawsuit on their behalf. But the settlement pre-empts that claim.

Terms of the settlement, filed April 24 with United States District Court for the District of Columbia Circuit, are confidential. In a brief telephone conversation Smith confirmed there was a settlement but declined to elaborate. “I can’t talk about that, man.”

Lawyers for Smith and the Post did not respond to requests for comment.

But the lawsuit allegations and other publicly available documents provide an interesting window into the kind of Washington Post labor practices that the paper normally labels exploitative when done by anyone else.

The lawsuit also raises the question of whether the Post has been cooking its circulation figures by refusing returns and labeling those unsold papers as having been sold even though they were really not. The lawsuit claims that for years the Post failed to properly “record and account for Plaintiff’s returned Newspapers.”

Rachel Battista, a communications aide for the Alliance for Audited Media, formerly the Audit Bureau of Circulation, says the Post does not include returned papers in its total circulation numbers. Which leaves unanswered the question of how the Post defines papers as "returned."

Nobody at the Post would talk about the lawsuit or even explain how the paper currently handles returns. Spokeswoman Kris Coratti did not respond to repeated requests for comment. Executive Editor Marty Baron and Managing Editor Kevin Merida also ignored inquiries. Gregg Fernandes, the Post's vice president for circulation, didn't take a phone call and did not reply to an email. When Smith first became a contractor of the Post in 2002 it “promised Plaintiffs to refund the purchase price of Newspapers that were not sold by retailers that Plaintiffs returned ‘in any week,’” his complaint alleged. The contract required both sides to approve any changes.

But according to the suit, in 2008 the Post “repeatedly and unilaterally” imposed shorter deadlines for returns (legal papers don’t specify the new cut-off time). With the goal posts moved again and again for Smith and his colleagues, the Post failed to “appropriately credit or pay” them for papers they returned, his lawsuit said.

Smith contracted with the Post until 2011. Like other independent contractors who distribute the paper he did not receive health insurance or any other benefits.

According to the lawsuit, independent contractors also purchased from the Post distribution center copies of USA Today, the New York Times, the New York Daily News, the New York Post, and the Wall Street Journal.

Smith filed his lawsuit on Oct. 26, 2012. In its December 17, 2012 response, the Post denied that it had unilaterally altered the terms of its contract and moved to have the case dismissed or at least have the class action claim removed. A round of replies and counter-replies ensued.

Finally, on Aug. 28, 2013, federal judge Royce Lamberth rejected the motion by the Post to dismiss the lawsuit or “strike” the class action claim. Lamberth, a Ronald Reagan appointee, ruled that Smith could seek “class certification” for his fellow independent contractors. With depositions and discovery looming, lawyers for both the Post and Smith asked Lamberth on November 4, 2013 to issue an order keeping from public view any discovery material that "contained,  sensitive or otherwise confidential personal and financial information; and (b) trade secrets, customer information, or other confidential commercial information." Lamberth issued the order two days later.

Smith's lawsuit

The Washington Post's response

Judge Lambert's rejection of a motion to dismiss

The motion to seal documents

Photo by Darrow Montgomery

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