Sonics' closing arguments harp on city's "Poisoned Well" scheme

If Sonics owner Clay Bennett prevails in his battle to escape the KeyArena lease, his victory could hinge on what may have seemed an impossible feat before he entered a federal courtroom last week -- transforming the "man possessed" with moving the franchise to Oklahoma into the victim.

In closing arguments Thursday, Bennett's lead attorney, Brad Keller, focused heavily on efforts by Seattle civic leaders, including former U.S. Sen. Slade Gorton, to wield the city's lease lawsuit as part of a "Poisoned Well" scheme to pressure Bennett to sell the team.

Seattle's lead attorney, Paul Lawrence, disputed the relevance of that scheme in his own closing argument. He said the main issue in the trial was the city's right to enforce the clear requirement of the lease -- which Bennett agreed to when he bought the team -- that the Sonics must play all home games at KeyArena through September 2010.

U.S. District Judge Marsha Pechman said she will issue a written ruling in the case at 4 p.m. Wednesday.

Exactly how much the "Poisoned Well" plan will figure into her ruling is not clear. Keller acknowledged there is not much legal precedent for the Sonics' position that the city's "unclean hands" should trump its rights as a landlord.

Still, Pechman appeared skeptical of arguments by Seattle's attorneys that top city officials were unaware of the "Poisoned Well" plan, outlined in a document that emerged during the trial.

Lawrence was at a loss to explain one new piece of evidence that emerged Thursday: an e-mail in which Gorton discussed a secret Oct. 15 meeting with NBA officials despite signing a confidentiality agreement promising not to talk about it.

Gorton, who had been hired by the city as an attorney in the lease lawsuit, attended the meeting in New York City with Seattle Deputy Mayor Tim Ceis. They discussed a possible KeyArena renovation with NBA executive Joel Litvin and two lawyers for Bennett.

The next day, Gorton e-mailed a description of the meeting to Microsoft CEO Steve Ballmer, former Sonics president Wally Walker and former Safeco CEO Mike McGavick, who wanted Bennett to sell the Sonics back to local owners.

Pechman noted that Gorton was at the NBA meeting on behalf of the city.

"What is he doing turning around the next day and violating the city's promise?" she said.

Lawrence, who works with Gorton at the law firm K&L Gates, called the e-mail a "major misstep" and said he could not defend the action.

But he denied Gorton sent the e-mail on behalf of the city. Gorton could not be reached for comment Thursday.

Lawrence pointed to the contract between K&L Gates and the city, in which the firm disclosed that Gorton and K&L Gates partner Gerry Johnson had also been working on "other efforts" to keep the Sonics in Seattle, an apparent reference to the Ballmer group.

Such efforts were "outside the scope" of the firm's work for the city, the contract said.

Pechman rejected a city request Thursday to allow Ceis to testify that he was unaware of the "Poisoned Well" plan. However, Pechman acknowleged the trial record would include Ceis' April 28 deposition, in which he testified he had no knowledge of the plan.

Keller mocked the notion that K&L Gates attorneys didn't fully inform the city of the strategy. He displayed a diagram of the supposedly divided brain of K&L Gates.

"We're supposed to think that the right side of the brain isn't talking to the left side of the brain," Keller said.

Keller said he "took no delight" in exposing the machinations of Seattle civic leaders.

"This is my town, too," Keller said, his voice quavering. "But I felt shame for those among us who live in a world of power and privilege and who have not learned ... that the end does not and never will justify the means."

A landlord that has been plotting to "undermine its tenant," Keller said, did not deserve the "extraordinary remedy" that the city is seeking in its federal lawsuit: to force Bennett to keep the Sonics in a hostile, money-losing situation for two years.

Seattle is relying on a "specific performance" clause in the KeyArena lease. That two-sentence provision, the city's attorneys argued, means Seattle can insist that the team play out the remainder of the lease instead of accepting a cash buyout.

Lawrence said it would be impossible to adequately make up for the loss of the Sonics with a mere cash payment. The team is a unique tenant at KeyArena that cannot be replaced, he said, making this case unlike a standard landlord-tenant dispute between private businesses.

"The city is not a developer," Lawrence said. "KeyArena is not like a strip mall. ... The Sonics are not like a Wal-Mart."

Seattle officials entered into a lease not to earn a profit but to secure NBA basketball for the 15-year term of the lease, Lawrence said.

He pointed to the testimony at trial about the charity work performed by Sonics players as well as the pride felt by longtime fans.

Pechman questioned whether that was relevant, noting "fans aren't parties to the lease."

Lawrence responded that the city's elected officials were properly representing fans when they made the public policy decision to hold the team to the KeyArena lease.

He cited a 1996 Washington Supreme Court ruling that upheld taxpayer funding of Qwest Field as a "public purpose" because of the benefits to the community.

Lawrence argued it was unfair for Bennett to complain about the $60 million in losses he might face in two final seasons at KeyArena.

Those losses would be due in part to the "lame duck status" of the team -- which Bennett imposed on himself, Lawrence said.

"He signed on to a deal and then less than a year later he was telling everyone he was moving," Lawrence said.

Lawrence also disputed the Sonics' contention that the city and the team would constantly be returning to court over the final two years of the lease to resolve petty disputes, noting that Seattle Center officials had testified they got along fine with Sonics staff when it came to day-to-day operations at KeyArena.

Keller said the city had been aware of KeyArena's shortcomings for five years and pointed to the repeated failure of local politicians to approve an arena renovation or a new arena that would live up to current NBA standards. Any damage to the city from the Sonics' departure, he said, could be compensated for with a monetary settlement.

It would be improper, Keller said, for Pechman to chain the Sonics to KeyArena, given the team's financial losses and its toxic relationship with Seattle officials.

"What's at issue here? Not the glory days of the past. What's at issue here is two years of lame-duck status," Keller said.

Pechman asked whether she could remedy the relationship somewhat by ruling for the city but requiring that K&L Gates -- given the conduct of Gorton and others -- stop representing the city.

Lawrence said his firm would agree to do whatever was necessary if it kept the Sonics at KeyArena for the remainder of the lease.

But Keller said that wouldn't address the hostility between Seattle Mayor Greg Nickels and Bennett.

"You can get rid of the lawyers, but you can't get rid of the mayor," Keller said.

Jim Brunner: 206-515-5628 or jbrunner@seattletimes.com