- The Grove Fresh litigation
- The historic model for this Virtual Courtroom
- The layout of this Virtual Courtroom
- Excerpt from my reply brief in the Seventh Circuit
Result-oriented is a popular term for critiquing federal judges. The term is sometimes used subjectively to describe judges who render decisions that run counter to one’s political beliefs. This Virtual Courtroom rests on this apolitical, process-oriented definition:
A result-oriented decision is one whereby the judge, in order to avoid the force of a statute, rule, or precedent, publishes an opinion that omits to disclose a justiciable claim because the claim, if it were disclosed and adjudicated in accordance with the evidence, would require a different outcome.
See generally Result-Oriented Judging: A Process-Oriented Definition.
This Virtual Courtroom spotlights an appeal that challenges, as result-oriented, a series of four adverse rulings by a district court judge in Chicago and by a three-judge panel from the Seventh Circuit Court of Appeals. The rulings labeled me as “an attorney who could not keep a confidence.” They also fined me $4,000; ordered me to pay my adversaries $149,554.45 in attorney’s fees; and enjoined me from speaking about the facts underlying these punishments without the district court’s prior approval, on pain of forfeiting a $50,000 cash bond.
The litigation that gave rise to these punishments were unfair competition lawsuits that my client (Grove Fresh Distributors, Inc.) began litigating in 1989. Four years later, Grove Fresh compromised and settled its claims for $2,000,000. The compromise came only after Grove Fresh’s claims had been thoroughly vetted—that is, after the parties had exchanged more than 100,000 pages of documents and deposed more than 50 witnesses in Illinois, Michigan, Maryland, Washington, D.C., and Toronto, Canada.
Surviving the settlement was an appeal by journalists from the Medill School of Journalism. They were seeking access to one of the settled cases, which the trial judge had sealed without a hearing or explanation. I was not a party to the appeal, but I became implicated in its outcome when the defendants justified the seal by charging me with criminal and unethical conduct. They argued that the seal should be left intact because the complaint, which I had drafted, signed, and filed, had falsely accused them in order to “extract” a multi-million dollar settlement.
My attempt to defend against these charges did not lead to an adjudication on the merits of the charges. If there had been one, the court would have described the the following evidence:
- For nearly thirty years the defendants had violated the food purity laws by making and selling adulterated orange juice falsely labeled as 100% pure. For at least ten of those years the adulterants included an unsafe additive that may have been a carcinogenic agent.
- The corporate defendant with the deepest pocket (John Labatt Ltd.) had gotten an amnesty from criminal charges by making false statements to the Food and Drug Administration and by concealing from that agency the facts regarding the unsafe additive.
- In a related criminal case, Labatt suborned perjury to create a false statute of limitations defense against criminal charges and against a pending consumer class action.
Describing this evidence would have compelled finding that the complaint was truthful, and that the defendants were incorrigible white collar criminals, not the innocent victims of a scheme for extortion-by-litigation. Such findings, in turn, would have required that the seal be removed, which the courts did not want to do. So, the courts sealed the evidence, sanctioned me, restrained my speech, and branded me with the professionally debilitating label of “an attorney who could not keep a confidence.”
These rulings so impaired my practice that in 1999, I filed for relief under chapter 11. The pending appeal is from that bankruptcy case. In re John P. Messina, d/b/a The Law Office of John P. Messina, No. 10-3240 (7th Cir.).
The purpose of this Virtual Courtroom
Publishing an opinion without disclosing or adjudicating a justiciable claim is an act of deceit. Like all deceits, it is less likely to succeed if the intended audience—the bench, the bar, and the academy—has easy access to the relevant facts. The purpose of this Virtual Courtroom is to provide easy access to the facts underlying the pending appeal.
This Home Page
The Grove Fresh litigation (§A) begins by introducing the dissemblers in the Grove Fresh litigation. Section A then presents an overview of the litigation, followed by a summary of the deceptions perpetrated by the deep-pocket defendant, and concludes with brief comments on the result-oriented rulings.
The historic model for this Virtual Courtroom (§B), describes an aspect of English legal history that may be unfamiliar to the American bar—the English lawyer’s accidental role as court reporter. This Virtual Courtroom follows that model.
Excerpt from my reply brief in the Seventh Circuit (§D) reprints arguments on the following issues:
- Whether federal judges have a duty to decide all claims, issues, or arguments that, if considered and resolved in a particular way, would have a material effect on the disposition of the case.
- Whether federal judges have a duty to explain their decisions with candor.
The legal system’s commitment to finding the truth is threatened by a “surge of concerted, deliberate lying,” according to James B. Stewart, a staff writer for The New Yorker, a columnist for the New York Times, and the Bloomberg professor of business journalism at Columbia University. The prevaricators are “sophisticated, educated, [and] affluent [persons] represented in many cases by the best lawyers.” They lie brazenly “[b]ecause they think they can get away with it.”
In the Grove Fresh litigation, the defendants included corporate executives who were sophisticated, educated, and affluent. They lied under oath and misled government investigators because they thought they could get away with it—and they did. Their lies were crucial to their avoiding civil and criminal liability for a consumer fraud that lasted nearly 30 years and reached into 26 states.
In Stewart’s experience, the criminal defense bar is partly responsible for the breakdown in truth-telling. They “are right there when their clients lie,” so they are in a position to prevent or correct the lying, but oftentimes, they just remain silent.
The lawyers for the liars in the Grove Fresh litigation were not merely the passive bystanders that Stewart has criticized. Rather, they actively promoted their clients’ lies, weaving them into narratives that they presented to great effect in several different venues—at the Food and Drug Administration in Washington, D.C., and in federal and state courts in Michigan and Illinois. See Synopsis.
The lawyers who created and presented these false narratives included Steven Kowal, now a partner at K&L Gates, and several lawyers from McDermott Will & Emery: Lazar Raynal, now chair of McDermott’s litigation department; Jeffrey Stone, co-chair of McDermott world-wide; and David Stetler, now a principal at Stetler, Duffy & Rotert.
The dissembling trial court judge
That lawyers dissemble is hardly a fresh story. What makes the Grove Fresh litigation remarkable is the dissembling of the trial court judge, the Honorable James B. Zagel, though anyone familiar with his literary alter ego, Judge Paulie Devine, may not be so surprised.
Devine is the narrator in Money to Burn, a crime novel Zagel published in 2002. Like Zagel, Devine sits on the United States District Court for the Northern District of Illinois. According to his creator, Devine is an “honest and fair judge.” CNN.com Transcripts, When Politicians Go to Prison, p. 2 (aired July 31, 2002).
In the novel’s opening scene, Devine reveals a rule he has followed his whole life—not always telling “the whole truth.” So long as what he tells others is literally true, Devine declares, it matters not if he leaves out crucial details—“the rule is ‘speak nothing but the truth,’ not ‘tell the whole truth.’” (Money To Burn 4.)
This hair-splitting rule is difficult to square with ordinary notions of an “honest and fair judge.”
We see Devine apply this rule over and over again as he works his way through a docket of 29 civil and criminal cases. When he is presented with a case where, if he were to act as a detached magistrate, he would have to “perpetrate those errors that the law requires” (Money To Burn 184), he manipulates the proceedings to avoid the “wrong” result, even if he has to violate a norm or two to get the “right” result. In these cases, most everything he tells the litigants is literally true, but he never tells them “the whole truth” behind his rulings. See Money to Burn: A Literary Brief for Result-Oriented Judging, §III.
Devine has no qualms about violating judicial norms because he knows he has a “job for life:”
I have been given extraordinary power over the lives of human beings and, since I have a job for life, I can do the job exactly as I see fit because, short of conviction after trial before the United States Senate on charges of impeachment by the United States House of Representatives, no one can fire me.
(Money To Burn 181) [emphasis added].
The loyal appellate court judge
Several times Judge Devine seeks advice from his mentor, Seventh Circuit Judge Golden. In one of the more disturbing episodes, Devine and Golden collude to punish a lawyer, not by reporting him to the proper authorities, but through a secret scheme that drives the lawyer to quit the profession.
Zagel’s real life mentor is Seventh Circuit Judge William Bauer. They have known each other since at least the late 1960s, when Zagel was an assistant in the Office of the Illinois Attorney General and Bauer, a Du Page County judge. For the last 30 or so years they have collaborated as co-authors of a popular casebook on criminal procedure, now in its seventh edition.
Judge Bauer may or may not be the model for Judge Golden. In any event, he is the judge who chaired the panels that repeatedly condoned Judge Zagel’s conduct in the Grove Fresh litigation.
My adversaries on appeal are John Labatt Ltd. and American Citrus Products Corp. (collectively, “Labatt Judgment Creditors”), who jointly hold a judgment requiring me to pay them $149,554.45 in attorney’s fees. They were awarded the fees as compensation for their efforts in securing contempt citations and a five-year prior restraint on my speech.
My appeal is from a finding that the fee award cannot be discharged in bankruptcy. According to the bankruptcy court, the award represents compensation for a “willful and malicious” injury that I allegedly caused when, in an appeal to which I was not a party, I asked for a hearing. I asked for that hearing because the Labatt Judgment Creditors were defending the appeal with allegations that I had engaged in a scheme for extortion-by-litigation.
My request was denied. I was then cited for contempt of court for disclosing in my motion papers facts that rebutted the allegations against me. In the pending appeal from the bankruptcy court, the Labatt Judgment Creditors argue that rulings in the contempt proceedings operate as collateral estoppel to bar the relief I seek.
I argue that those prior rulings do not qualify for collateral estoppel treatment because they were result-oriented—they deliberately omitted to disclose or adjudicate the misconduct charges that had triggered the controversy.
Those misconduct charges concerned the 54-page complaint that I had drafted, signed and filed in Grove Fresh Distributors, Inc. v. John Labatt Ltd., et al., No. 90c5009 (“the 90c5009 case”), which Judge Zagel had sealed without a hearing or explanation. That complaint alleged that five orange juice firms, including American Citrus and two firms owned by Labatt, had engaged in a 15-year scheme to compete unfairly by making and selling adulterated orange juice falsely labeled as 100% pure. The complaint also alleged that Labatt had fraudulently induced the FDA to grant Labatt and its orange juice operations an amnesty from criminal charges. See complaint ¶¶9-15.
In the original proceedings before Judge Zagel, the Labatt Judgment Creditors claimed that when I drafted the 90c5009 complaint, I deliberately made false allegations that would “embarrass” and “harass” them in order to “extract” a multi-million dollar settlement from them. They made this claim in order to defeat the access claims of a coalition of local journalists led by Jack Doppelt of the Medill School of Journalism and represented by John Elson of Northwestern University Law School. Doppelt and his colleagues were seeking access to the complaint and the 200 or so other papers in 90c5009 that were subject to the sealing order.
If accepted as true, which it most certainly was not, the Labatt Judgment Creditors’ claim would bring the sealing order within Nixon v. Warner Communications, 435 U.S. 589, 598 (1978), which holds that trial courts can seal files that “have become a vehicle for improper purposes” such as to “promote public scandal” or “to serve as reservoirs of libelous statements for press consumption.”
The Labatt Judgment Creditors never presented any evidence to support their claim—they had none. Nevertheless, Judge Zagel left the seal intact and denied the journalists’ claims. He rested his decision on a hypothetical finding that “[t]he complaint in this case contains allegations which would, if not filed in court and if untrue, be libelous.”
The journalists appealed. Before briefing on the merits began, the Labatt Judgment Creditors paid Grove Fresh $2,000,000 to settle 90c5009 and three related cases. Then, with Judge Zagel’s assistance, they tampered with the record on appeal; as a result, only five of the 200 or so pleadings, motions, briefs, and orders in the 90c5009 file were included in the appellate record. The excluded records included all of the papers in which Grove Fresh had mapped out the evidence that corroborated the complaint. See Opening Brief, pp. 14-15, 19-24.
When the journalists challenged the record-tampering, Judge Zagel declared it justified because “[t]he defendant bought the case from the plaintiff....[T]here is no [longer any] case.”
With nothing in the appellate record to contradict them, and with Grove Fresh no longer in position to challenge their veracity, the Labatt Judgment Creditors reiterated the defamatory charges they had leveled in the district court. This time, they made their charges publicly, not under seal.
Alarmed by the exclusion of Grove Fresh’s papers from the appellate record, I filed a motion for a hearing and a supporting affidavit that summarized the evidence that corroborated the complaint. The motion invoked Fed. R. App. P. 45(c), which requires an appellate court to give “reasonable notice and an opportunity to show cause to the contrary” before it disciplines an attorney.
I argued that my reputation would be damaged if the Seventh Circuit accepted as true, and repeated in a published opinion, the Labatt Judgment Creditors’ defamatory statements about me. Publishing such charges would be a form of attorney discipline, I argued, and I had a right to a hearing before any such discipline was imposed.
This simple request for due process brought just the opposite. Instead of getting a hearing in the Seventh Circuit, I was directed to show cause to Judge Zagel why I should not be held in contempt. This rule to show cause treated the two-sentence sealing order as a gag order that I allegedly had violated by asking for an appellate hearing without first getting Judge Zagel’s permission.
The contempt proceedings were conducted in secret, without an official record.
In my defense I argued that: (a) I had a common law right to respond to the defamatory statements; (b) the Labatt Judgment Creditors had forfeited whatever benefits the seal order was intended to confer when they publicly, and falsely, accused me of having falsely accused them in order to “extract” money from them; and (c) the seal order was not a gag order because Judge Zagel had neither made the findings required by Chase v. Robson, 435 F.2d 1059 (7th Cir. 1970), nor issued an order explicitly gagging speech.
To show the truth of the 90c5009 complaint, and the false and defamatory nature of the charges the Labatt Judgment Creditors had presented to the Seventh Circuit, I submitted the following evidence to Judge Zagel:
- The five firms named as co-conspirators by the 90c5009 complaint made and sold adulterated products for nearly 30 years, not just the 15 years alleged in the complaint.
- All five firms used a common formula created by a food chemist at one of the firms, who then shared the formula with executives at the other four firms. Marshall §A, §H Their joint use of a common formula made each firm a co-conspirator with joint and several liability for all of the damages caused by the other four firms.
- For ten years, the adulterants used by the five firms included an unsafe additive that extended the shelf life of their adulterated products. The active ingredient in the additive was never determined to a certainty, but there was circumstantial evidence that it was diethylpyrocarbonate, a carcinogenic agent.
- Labatt had obtained amnesty from the FDA by (a) misrepresenting the date Labatt first learned about its subsidiaries’ illegal practices, and (b) concealing from the FDA the subsidiaries’ use of the unsafe additive.
- In a related criminal case, Labatt suborned perjury from a retired employee at one of the subsidiaries. The employee falsely testified that the subsidiary had stopped using the unsafe additive when Labatt bought the firm. In fact, the subsidiary continued using the additive for two more years.
The Labatt Judgment Creditors never refuted any of this evidence.
Judge Zagel ruled on the contempt petition on June 9, 1995. Grove Fresh Distributors, Inc. v. John Labatt Ltd., 888 F. Supp. 1427 (N.D. Ill. 1995) [“the Contempt Order”]. He cited four actions by me as violations of the seal, for which he held me in contempt, and a fifth action as a violation of Rule 11. He also granted the Labatt Judgment Creditors the following additional relief:
- He issued a five-year prior restraint barring me from speaking about the Grove Fresh litigation in any respect without first getting his permission.
- To get permission to speak, I had to tell him what I proposed to say and identify a public source for every element of my proposed speech.
- He required me to post a $50,000 cash bond, which I would forfeit if I spoke about the litigation without his permission.
- He ordered me to pay the Labatt Judgment Creditors’ fees, which he eventually set at $149,554.45.
Later, he enjoined me from representing consumers in state court, on the ground that I was not fit to serve as class counsel.
The “tragic flaw” critique
Judge Zagel justified the prior restraint and the financial penalties with an ad hominem critique of my character and fitness to practice law. He called me a “great tragic figure” because the misfortunes I suffered (i.e., the punishments he was imposing via the Contempt Order) were brought on by a flaw in my personality—I cannot not keep a confidence, he said. He dramatized this critique by including my name in a litany of Shakespearean figures and their tragic flaws:
Othello’s downfall was the result of his own jealousy, MacBeth fell victim to his blinding ambition, Lear’s insecurity prompted his misfortunes, and Hamlet’s tragedy was that of a man who could not make up his mind. John Messina fits the mold of the great tragic figure. His is the tragedy of an attorney who could not keep a confidence.
888 F. Supp at 1430 (emphasis added).
Citing Aristotle’s precept that the “first essential, the life and soul, so to speak, of Tragedy, is the plot,” Zagel then presented “some history” of the Grove Fresh litigation (888 F. Supp. at 1431). “Some” is the operative term—his history omitted important events.
Plot, according to Aristotle, is “the combination of the incidents, or the things done in the story.” Poetics, 1450a (Ingram Bywater trans.) Tragedy is a story where the outcome “arise[s] out of the structure of the Plot itself, so as to be the consequence, necessary or probable, of the antecedents.” Poetics, 1452a. A story where the outcome turns on the character and personality of the protagonist is, according to Aristotle, something less than a tragedy. Poetics, 1450a.
In his narration of “the things done” in the Grove Fresh litigation, Judge Zagel included, of course, the five actions by me that brought on the contempt citations, the Rule 11 citation, the financial penalties, and the prior restraint.
All five actions were in response to the crisis that began when the Labatt Judgment Creditors made the defamatory claim that I had falsely accused them in order to “extract” money from them. In Aristotle’s rubric for a tragedy, that claim was the antecedent for the actions that had brought on my misfortunes. If Zagel wanted to write a Plot that satisfied this rubric, he had to include that antecedent in his story; he didn’t.
The omission of that antecedent, and of other, relevant information, left gaping holes in Zagel’s Plot. For a particularized description of these omissions see Procedural History §§XXVII-B-1-3.
The result-oriented reason for the omissions
Omitting to disclose the defamatory claim was result-driven. If Judge Zagel had disclosed it, he would have had to adjudicate it in accordance with the evidence. Since the unrefuted evidence showed that the claim was false, he’d have to vacate the seal and open the files to the public, which he did not want to do.
Judge Zagel’s resort to ad hominem declamations to explain the outcome of his Plot.
Having stripped from his Plot the antecedent event that would explain why I took the actions that brought on my misfortunes, Judge Zagel had to resort to declamations about my alleged character and personality to explain those actions and justify the sanctions and prior restraint.
The Contempt Order is filled with such declamations, starting with the very first paragraph, where Zagel tags me with the epithet that I am an “attorney who could not keep a confidence.” 888 F. Supp. at 1430. For a sampling of his other declamations, see Procedural History §§XXVII-B-8.
All of Zagel’s declamations were flawed ; they rested on a series of half-truths—“statement[s] that mingle[d] truth and falsehood with deliberate intent to deceive.” For an analysis of these half-truths, see Procedural History §§XXVII-B -4-7.
The 90c5009 complaint alleged that five orange juice firms had conspired to make and sell adulterated orange juice using a common formula. Those five firms were:
- Home Juice Co., of Melrose Park, Illinois.
- Everfresh Juice Co., of Warren, Michigan.
- Holiday Juice Ltd., of Windsor, Ontario.
- Flavor Fresh Foods Corp., of Chicago, Illinois.
- American Citrus Products Corp., d/b/a Home Juice Co., also of Melrose Park, Illinois.
Also named as a defendant and co-conspirator was John Labatt, Ltd., a multinational firm that had acquired Holiday Juice in 1983 and Everfresh in 1986. After Labatt acquired these firms, it allowed them to continue their illegal practices. See complaint¶¶9-13; Procedural History §III, XI-P, XVI-D-2.
Labatt’s willful failure to correct its subsidiaries’ illegal practices had two consequences. First, the Labatt officers who had failed to act became subject to strict criminal liability under §303(a)(1) of the Food Drug and Cosmetic Act, 21 U.S.C. §333(a)(1). See United States v. Park, 421 U.S. 658, 672 (1975).
Second, under civil conspiracy laws, Labatt became a co-conspirator, with joint and several liability for all of the damages caused by all five of the co-conspirators throughout the 30-year life of the conspiracy.
As the only corporate defendant with assets sufficient to satisfy a joint and several judgment for all of the damages caused by the co-conspirators, Labatt had the biggest financial stake in the outcome of the Grove Fresh litigation.
The February 1989 audit
In January 1989 an ex-employee at one of the Labatt firms (Everfresh) filed a whistleblower suit; the suit had the potential to throw a spotlight on the unsafe additive. Other Litigation §E. Labatt hired McDermott Will & Emery to contain the damage. McDermott organized an internal audit of Labatt’s orange juice operations. The results were summarized in a written report from Labatt’s Director of Technical Services to McDermott dated February 22, 1989.
Attached to the report were business records of a November 1987 transaction whereby Everfresh paid $39,682.50 for ten jerry cans of the unsafe additive. The supplier was a European firm controlled by Friedrich Kohlbach, a German national. The invoice was addressed to Bruno Moser, a quality control manager who had worked at Everfresh for more than 30 years.
A follow up investigation, completed in March 1989, turned up five more transactions in 1987-88 whereby Everfresh purchased the unsafe additive from Kohlbach’s firm. The total price paid by Everfresh in all six transactions was $257,076.
Labatt’s amnesty, fraudulently induced
About six weeks after Labatt and the McDermott lawyers had this information in hand, they met with FDA officials in Washington, D.C. The purpose of the meeting was to secure the protection of FDA’s amnesty policy. Under that policy, the agency will refrain from prosecuting companies that self-report criminal violations of the Food, Drug and Cosmetic Act, 21 U.S.C. §301, et. seq., so long as the violations did not threaten public health or safety.
Following McDermott’s guidance, Labatt self-reported Everfresh’s use of illegal but harmless substitute ingredients; it did not report Everfresh’s use of the unsafe additive. See FDA Investigations §IV-A.
The related criminal case
In February 1991 two of Everfresh’s co-conspirators (Marshall and Flavor Fresh) became targets of a federal grand jury in Grand Rapids, Michigan. The grand jury was investigating their use of the unsafe additive. Eventually, the European supplier (Kohlbach) became a target as well.
In February 1993 the grand jury returned a 33-count indictment, charging two corporations (including Flavor Fresh) and nine individuals (including Marshall and Kohlbach) with scheming to violate the food purity laws. FDA Investigations §IV-H.
Everfresh and Labatt were spared from indictment because their lawyers had been “extremely helpful” during the Department of Justice’s investigation of the criminal charges against Kohlbach and others. FDA Investigations §IV-H-1.
Marshall and Kohlbach entered guilty pleas. On October 28, 1993, the Department of Justice filed three volumes of exhibits in support of its recommendations on sentencing. The exhibits included a two-page declaration under penalty of perjury by Bruno Moser. As mentioned earlier, Moser was an Everfresh manager. For years, he had supervised the firm’s purchase and use of the unsafe additive..
As discussed below, Moser’s declaration included one brazenly false sentence. His perjury did not affect anyone’s sentence. If accepted as true, however, the perjury would reap enormous benefits for Labatt in its defense of recently filed consumer class action claims—it would falsely exculpate Labatt from co-conspirator liability and it would established a fallacious statute of limitations defense for claims against Everfresh for joint and several liability.
Moser's false declaration under penalty of perjury
In October 1993 Labatt’s lawyers made Moser available to the Department of Justice to execute a declaration under penalty of perjury concerning Kohlbach.
In his declaration Moser admitted that Everfresh first purchased the unsafe additive from Kohlbach “[s]ometime in the late 1970s or very early 1980s.” But, Moser falsely declared, Everfresh stopped using the additive in “1986 when Labatt purchased Everfresh and we were directed to discontinue its use.”
In fact, as noted earlier, in 1987-88 Everfresh made at least six purchases of the unsafe additive for which it paid in excess of $250,000. Labatt and McDermott Will & Emery had reviewed the originals of these records in February-March 1989; copies were under seal in the Grove Fresh litigation.
Moser was represented in the criminal case by a lawyer hired and paid by Labatt. According to the Assistant United States Attorney who coordinated the preparation of Moser’s declaration, the sentence about Everfresh discontinuing its use of the unsafe additive in 1986 was not in the government’s original draft; it was inserted at the request of Moser’s lawyer. See Messina Declaration ¶¶3-4, attached to Motion to Dismiss Contempt Petitions.
To put it less delicately, a lawyer on Labatt’s payroll suborned perjury.
The benefits to Labatt if Moser’s perjury were accepted as true
If ¶12 of Moser’s declaration were true, which it wasn’t, it would allow Labatt and Everfresh to make the following contentions in the class action suit that consumers had filed in February 1993 in the Circuit Court of Cook County (Other Litigation §J):
- Labatt declined to join any conspiracy when it acquired Everfresh, so Labatt never had any co-conspirator liability.
- At Labatt’s insistence Everfresh withdrew from the conspiracy in December 1986, when Labatt acquired the company. This withdrawal started the statute of limitations running on Everfresh’s co-conspirator liabilities. See United States v. Gonzalez, 797 F.2d 915 (10th Cir. 1986).
- Illinois has a five-year statute of limitations for common law fraud claims. Since Everfresh withdrew from the conspiracy in December 1986, the statute of limitations for such claims expired in December 1991, 14 months before the consumers filed their class action suit.
- Likewise, the statutes of limitations for civil RICO claims (four years) and consumer fraud claims (three years) expired long before the consumers filed their class action.
The problems for Labatt, McDermott Will & Emery, and American Citrus if journalists were to expose Moser’s perjury
If journalists gained timely access to the sealed files, information in those files would enable them to expose both Moser’s perjury and the deceits that four years earlier, had duped the FDA into granting amnesty to Labatt and its orange juice subsidiaries.
If journalists were to publish such accounts, and if the FDA were then to revoke the amnesty it had granted to Labatt and its orange juice subsidiaries, Labatt, American Citrus, and McDermott Will & Emery would face a thicket of problems, including the following:
- The Labatt officials who had attended the amnesty meetings in 1989, and the McDermott Will & Emery lawyers who had assisted them, would be subject to investigation for obstruction of justice for their role in orchestrating the fraudulently induced amnesty. Those officials and lawyers, and others, would also be subject to investigation for any role they may have played in securing Moser’s false declaration under penalty of perjury.
- Everfresh would be subject to indictment on charges similar to those lodged against Flavor Fresh in the related criminal case. The evidence outlined in Marshall’s proffer and in declarations under penalty of perjury by Joseph Buechel and Moser, would be sufficient to convict.
- In accordance with federal sentencing guidelines, sentencing proceedings against Everfresh would include evidence of the damages suffered by consumers who purchased misbranded orange juice.
- Under Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979), a conviction in a criminal case would collaterally estop Everfresh from contesting liability in a consumer class action. Collateral estopel would also bar Everfresh from contesting any finding by the criminal court on damages suffered by consumers.
- Evidence in the related criminal case showed that Holiday Juice was a co-conspirator—it was the original source for the adulterated concentrate that Flavor Fresh and Peninsular Products used in their scheme. As a co-conspirator, Holiday Juice would be jointly and severally liable for the damages caused by that conspiracy which, according to the government’s evidence, ranged between $10.5 million and $45 million.
- American Citrus had escaped indictment due to a supposed bureaucratic dispute between the FDA and the federal prosecutor in Chicago. FDA Investigations §IV-E. Presumably, that dispute would dissolve in the wake of FDA’s independent grounds for investigating Labatt and McDermott Will & Emery for obstruction of justice. If American Citrus were indicted, the evidence outlined in Marshall’s proffer would be sufficient to convict.
- Under United States v. Park, the Labatt officers and directors who, in the fall of 1986, had received notice of Everfresh’s illegal practices, could be charged with strict criminal liability for having failed to correct those practices.
The truth or falsity of the Labatt Judgment Creditors’ defamatory charge was squarely presented to the Seventh Circuit in 1993-94, during the journalists’ appeal. Since there was no evidence in the record to support the claim, the rules of appellate procedure required the Seventh Circuit to reject it and to vacate the sealing order.
Seventh Circuit precedent also called for an order requiring the defense lawyers to show cause why they should not be disciplined for charging a fellow lawyer with misconduct without offering any evidence. In re Kelly, 808 F.2d 549, 552 (7th Cir. 1986) (“lawyers who make statements to courts…concerning the conduct of fellow lawyers…[must] be scrupulous regarding the accuracy of those statements.”)
The three-judge panel chaired by Judge Bauer omitted to disclose or adjudicate the defamatory charge or to issue a show-cause order in accordance with In re Kelly. See Grove Fresh Distributors, Inc. v. Everfresh, Inc., 24 F.3d 893 (7th Cir. 1994). Instead, the panel remanded the case to Judge Zagel for an explanation of the reasons why he had imposed the seal.
The remand was based on a faulty premise—that Judge Zagel had lawful authority to seal the case for reasons other than those litigated by the parties.
On remand, Judge Zagel issued the Contempt Order, which likewise omitted to disclose or adjudicate the defamatory charge.
Since then, the propriety of the Contempt Order has been considered four different times, as follows:
- On direct review in the Seventh Circuit, Grove Fresh Distributors, Inc. v. John Labatt Ltd.,134 F.3d 374 (7th Cir. 1998) [unpublished order; Bauer, J.)
- On review by the Seventh Circuit of a Fed. R. Civ. P. 60(b) claim: Grove Fresh Distributors, v. John Labatt Ltd., 299 F.3d 635 (7th Cir. 2002) (Bauer, J.)
- In an adversary action in bankruptcy court for a declaration that the fee award associated with the Contempt Order was non-dischargeable: In re John P. Messina, No. 99-A-01573 (March 27, 2000) (Squires, J.)
In the district court, on appeal from the bankruptcy court finding that the fee award was non-dischargeable: In re John P. Messina, No. 9-cv-1739 (August 25, 2010) (Gettleman, J.)
In none of these opinions did the court disclose the defamatory claim that had triggered the contempt proceedings, much less did any opinion describe the evidence showing the Labatt Judgment Creditors’ unclean hands. Doing so would have exposed the result-oriented nature of Judge Zagel’s rulings.
The model for this Virtual Courtroom comes from on an aspect of English legal history that may be unfamiliar to the American bar—the English lawyer’s accidental role as court reporter. That role evolved out of the way English lawyers and their apprentices educated themselves before the printing press was invented—they went to court as spectators and learned the law by watching it in action.
The relevant history is presented in an essay posted elsewhere on this website—Lawyer as Court Reporter in a Virtual Courtroom: Lessons from 600 Years of English Legal History. An abbreviated time-line of that history suggests that when English lawyers attended court as spectators, not advocates, they were unwittingly serving a watchdog function that, in contemporary American jurisprudence, is relegated to the press:
- When the common law emerged in 12th century England, the public’s right to attend court was an historical accident, not a conscious choice. Several centuries would pass before the English intuited the functional benefits associated with public scrutiny of legal proceedings.
- From the 12th century to the present, English trial practice has been an oral tradition—“speech-centered,” not “writing-centered.” See generally Suzanne Ehrenberg, Embracing the Writing-Centered Legal Process, 89 Iowa L. Rev. 1159 (2004).
- There has never been a place for written briefs in English trial courts, only oral arguments. In the 21st century as in the 13th, English trial judges spend most of their time in open court, conducting formal, adversary proceedings and announcing decisions orally. They do not issue written opinions; consequently, they spend very little time working alone in chambers.
- Starting in the 13th century—i.e., before the invention of the printing press—audiences in London courtrooms regularly included lawyers and their apprentices. With manuscripts on the law in scarce supply, watching proceedings in open court was the only way for apprentices to learn the law and for practitioners to update their knowledge. Even after printed books became available, attending court remained a crucial part of legal education.
- Apprentices and lawyers facilitated their learning by taking notes and by exchanging their notes with colleagues. These notes became sources for the Yearbooks (1292-1535) and the Named Reporters (1571-1800s), which were cornerstones of legal education and training.
- By the 17th century the English had intuited what social scientists would document in the 20th century—that people tend to behave better when they know they are being watched. See e.g., Erving Goffman, The Presentation of Self in Everyday Life (1959). Witnesses are more likely to tell the truth, the English discerned, and judges are more likely to act judiciously, when they know that the public is scrutinizing what they say and do.
- This intuition took hold by the 1670s. The press played no role in its formation, since the first daily newspaper (The Daily Courant of London) wasn’t published until 1702.
- During the centuries of experience that led to this intuition, note-taking lawyers and apprentices were a constant presence in London courtrooms.
- By the end of the 18th century the intuitive belief in the value of public scrutiny had become firmly rooted in the common law. In this country, the Framers embraced this intuition when they incorporated the right to a public trial into the Bill of Rights without any discussion or debate.
The consensus of social scientists is that information about reputation plays a crucial role in the enforcement of norms and the evolution of cooperation. This modern insight suggests that when English lawyers sat as spectators in London courtrooms, taking notes for their own benefit and then exchanging notes with colleagues, they were unwittingly operating a mechanism for disseminating information that built reputations for the judges and lawyers whose words and actions they reported. Trial lawyers and judges, aware that their courtroom performances were grist for the professional rumor mill, were thereby encouraged to conform their conduct to the profession’s highest norms.
In the United States today, where legal practice is writing-centered, there is no comparable norm-enforcement mechanism. Dispositive outcomes often rest on briefs written in the privacy of lawyers’ offices, with a ruling composed in the privacy of the judge’s chambers. There are no neutral spectators who can assess in real time whether any of the briefs employ deceit or other unfair tactics, or whether the judge’s account of the controversy is fair and accurate.
There is a path to effective norm-enforcement in a writing-centered-tradition. Lawyers can create virtual courtrooms where they post the raw materials of a case—the pleadings, briefs, transcripts, etc.—along with commentary that gives context to those materials. Value-added contextual material would make a Virtual Courtroom far more user-friendly than the raw filings available on PACER.
A host lawyer can use social networking tools to draw the attention of neutral spectators to any writing by an adversary or a judge that arguably deviates from the profession’s norms. Because the underlying raw materials would be available on-line, the spectators could judge for themselves whether the grievance is legitimate or not.
If lawyers and judges know that the public will have easy access to their writings, to the underlying raw materials, and to informed commentary, they will be encouraged to conform their briefs and opinions to the profession’s highest norms. Similarly, host lawyers concerned about their own reputations will refrain from posting grievances that could be exposed as illegitimate.
The factual backbone of this Virtual Courtroom is the Analytical and Procedural History of the Grove Fresh Litigation, a193-page chronological narrative covering the period from February 1989 through February 1998. The Synopsis is a 16-page summary of that narrative.
Background presents essays of widely varying length on the following topics:
- Economics: This essay describes, from an economic perspective, the five statutory options for enforcing the food purity laws and the evolution of a sixth option, the so-called voluntary recall program.
- Orange Juice Industry: This essay describes the organization of the orange juice industry. It also describes the processes for manufacturing and packaging the different forms of orange juice and comments on the economics of making and selling adulterated juice falsely labeled as 100% pure.
- The Home Juice Organization: This essay presents a brief account of Home Juice Co., a juice and beverage processor that started in a family garage in the 1940s; by the 1960s it had grown into a national and international organization. Home Juice offshoots that made and sold adulterated orange juice are identified here.
- Marshall/Flavor Fresh: James Marshall is a food chemist who worked at Home Juice from 1962-74. In 1962, created the formula for adulterated orange juice that was the core of the conspiracy described in Grove Fresh’s sealed complaint. This essay includes a summary of the criminal charges against Marshall and his firm, Flavor Fresh. It also outlines Marshall’s knowledge of evidence that, if he were called to testify, would incriminate other defendants in the Grove Fresh litigation.
- Other Litigation: This essay describes related civil and criminal litigation in Maryland, Michigan and Illinois. It also describes a 1979-86 investigation by the Florida Department of Citrus.
- Labatt: During the 1980s John Labatt Ltd. acquired four orange juice firms, including two that were former Home Juice subsidiaries. This essay describes Labatt’s strategy for converting these firms into a single enterprise (Everfresh Juice Co.) that would compete throughout North America.
- Legal Theories: This essay describes the Lanham Act’s disgorgement remedy, which was Grove Fresh’s primary claim for relief; the continuous tort doctrine, which expanded the statute of limitations on Grove Fresh’s claims; and the law of civil conspiracy, which exposed Labatt to joint and several liability for all of the damages caused by its co-defendants. The essay also comments on evidentiary privileges relevant to the Grove Fresh litigation.
- Conspiracy Claims: This essay describes the core conspiracy alleged in Grove Fresh’s sealed complaint. It also describes three sub-conspiracies that came to light after the complaint was filed.
- Jeffrey Hines: Jeffrey Hines was Grove Fresh’s original lawyer. This essay describes his undisclosed conflicts of interest and explains how those conflicts adversely affected Grove Fresh.
- Conflicts of Interest: The defense lawyers in the Grove Fresh litigation represented multiple clients. This essay describes the conflicts of interest created by those multiple representations.
- FDA Investigations: Between 1979 and 1993 the FDA conducted a number of investigations into orange juice adulteration. This essay describes those investigations. It also describes the Department of Justice’s decisions to prosecute some cases, but not others.
- Procedural History: This 193-page document presents a detailed procedural and analytical history of the Grove Fresh litigation from February 1989 through February 1998.
The Record archives court filings, evidentiary materials and other documents from the Grove Fresh litigation and related proceedings. It has a drop-down menu with three tabs:
- The Original Litigation archives materials from three of Grove Fresh’s lawsuits and also from the related criminal case. It also archives (i) the government’s summaries of the amnesty meetings between Labatt and the FDA and (ii) correspondence regarding the FDA’s investigation of defendants in the Grove Fresh litigation.
- The Appeals archives the briefs and appendices in my appeals from the bankruptcy court’s final report.
- ARDC archives motions and briefs from the investigation of the Contempt Order by the Illinois Attorney Registration and Disciplinary Commission.
There are four Essays posted here:
Result-Oriented Judging: A Process-Oriented Definition proposes a politically neutral definition of that widely used pejorative. It also describes analytic tools for critiquing result-oriented behavior in trial court judges.
Judge Posner's Measure of a Fraudulent Litigation Narrative concerns Posner’s critique of The Crime of Sheila McGough (1999), Janet Malcolm’s account of a federal case in which a lawyer was convicted of crimes of dishonesty. Malcolm argues that McGough was innocent, and that her conviction “illustrates with special vividness…something all attorneys know, which is that truth is a nuisance in trial work.”
Posner argues that Malcolm constructed her critique of the legal system on a fraudulent account of McGough’s trial, one that omitted facts that didn’t support her thesis. My essay argues that the fraud standard Posner applied to Malcolm can and should be applied to judges who publish opinions that, for result-oriented reasons, omit key facts and issues from their narrative.
The third essay—Lawyer as Court Reporter in a Virtual Courtroom: Lessons from 600 Years of English Legal History—is a work-in-progress. The essay describes and comments on the English lawyer’s accidental role as court reporter.
Money to Burn: A literary brief for result-oriented judging, is a commentary on a crime novel that Judge Zagel published in 2002. The novel is about a fictional federal judge who has a lifelong rule about not always telling "the whole truth." Like Judge Zagel, this judge sits in the U.S. District Court for the Northern District of Illinois.
Here, with minor, non-substantive edits, is Section IV of my reply brief to the Seventh Circuit, filed on April 14, 2011.
IV. The prior courts breached their duties to adjudicate justiciable claims and to explain their decisions with candor.
Messina argued that the fairness of the prior litigation is called into doubt by the Contempt Order’s fraudulent narrative and this Court’s omission, on appeal from the Contempt Order, to adjudicate potentially outcome-determinative claims. (Brief 42-46.) The Labatt Judgment Creditors ridicule this argument for resting on a “new standard” derived from “magazine articles.” (C.B. 39.).
The Labatt Judgment Creditors omit to mention that the author of the “magazine articles” is Judge Richard Posner. (R.71,a.455-71; R.71,a.449-54.) The articles deserve this Court’s consideration—they are a sober and scholarly defense of the American legal system’s capability to figure out the truth of a dispute.
Implicit in Labatt Judgment Creditors’ dismissive treatment of Messina’s argument is a startling contention—that federal judges have unconstrained freedom to choose the claims they adjudicate and the events they describe in their opinions. This is not so. Federal judges have a duty to adjudicate all claims, issues, or arguments that are material to the disposition of a given case. They also have a duty to explain their decisions with candor.
The Contempt Order, and the other decisions that followed, breached these duties.
A. Federal courts have a duty to decide all claims, issues, or arguments that, if considered by the court and resolved in a particular way, would have a material effect on the disposition of the case.
One goal of the federal judicial system is the peaceful and fair resolution of disputes between particular parties. E.g., Ruggero J. Aldisert, Opinion Writing 131 (2d ed. 2009). Every litigant who properly invokes federal jurisdiction has the right to present proofs and reasoned arguments for a decision in his favor. See Lon Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353, 364 (1978) (“Fuller”).
The Supreme Court is the only federal court with discretion to chose the cases it will decide and the questions it will answer. Every other federal court has a duty to adjudicate all justiciable claims presented in the course of a case. See Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404 (1821) (“We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given…. Questions may occur which we would gladly avoid, but we cannot avoid them.”). See also Chad Oldfather, Defining Judicial Inactivism: Models of Adjudication and the Duty to Decide, Geo. L. J. 121, 127, 165-68, 172-75 (2006) [“Oldfather”]; Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 122 (2d ed. 1986) (“There is no judicial discretion to decline adjudication, no such attenuation of the duty.”); Henry M. Hart & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 646-47 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) (“If a claimant comes before a court [with a justiciable claim] and asks for a remedy of a type which the court is empowered to give, the dispute, it seems, must always be adjudicable.”); Christopher Peters, Adjudication as Representation, 97 Colum. L. Rev. 312, 347 (1997) (judicial decisions are not constructed by judges out of whole cloth, but instead proceed from the proofs and arguments provided by the parties).
Another goal of the federal judicial system is the evolution of norms to govern future conduct of parties beyond the immediate adjudication. E.g., Aldisert at 131.
The public’s respect for existing norms, and its willingness to accept new ones, requires confidence in the judiciary—confidence that when judges render decisions reaffirming a norm, or announcing a new one, they have reached their decisions in proper fashion. The public’s confidence will erode if they perceive that judges issue written opinions that do not candidly describe and adjudicate all claims, issues, or arguments that are material to the disposition of a given case.
1. In the United States, the written opinion is essential to judicial accountability.
The legal systems in the United States and England share a common tradition, but they differ markedly in the ways they seek to achieve accountability. Ehrenberg, Embracing the Writing-Centered Legal Process, 89 Iowa L. Rev. 1159, 1163-64 (2004) [“Ehrenberg”].
The English approach is “[i]nformed by the principle that justice must be seen in order to be done,” so that each step of the litigation process takes place in open court, where the public is able to observe. Ehrenberg at 1167. Trial and appellate judges alike usually issue their opinions orally, in open court, where all may see and evaluate “the judges’ deliberations and the announcement of their decision.” Id.; see also Daniel J. Meador, English Appellate Judges from an American Perspective, 66 Geo. L.J. 1349, 1370 (1978).
American judges, on the other hand, usually issue written opinions composed in the privacy of chambers. For the American public, “accountability depends, not upon being able to see a judge decide a case but upon being able to read a fully-reasoned judicial opinion explaining the basis of the judge's decision.” Ehrenberg at 1164.
The fully-reasoned judicial opinion shows litigants that their arguments have been considered, even if those arguments were ultimately rejected. Moreover, the written opinion is perhaps the most powerful method of holding the judiciary accountable because it shows the litigants the reasoning process employed by the judges deciding the case.
Id. at 1194-95. See also Fuller at 387-88 (the integrity of the adjudicative process is enhanced by the issuance of opinions setting forth the reasons for the decision).
2. Judicial decisions must be candid.
The model judicial decision is one that justifies its result with a “scrupulous handling of the facts, honest reasoning, and pertinent precedent.” John Simonett, The Use of the Term “Result-Oriented” to Characterize Appellate Decisions, 10 Wm. Mitchell L. Rev. 187, 195 (1984). See also Richard J. Posner, The Federal Courts: Challenge and Reform 351-52 (1996) (defining a principled judicial opinion as one that addresses all of the facts and issues in the underlying case that are adverse to the opinion’s ultimate conclusion).
Intentionally failing to disclose the true reasons for a judicial decision is the equivalent of lying. See Sissela Bok, Lying: Moral Choice in Public and Private Life 13 (1978) (deceit is any message intended to mislead others into believing what we ourselves do not believe.) See also Keenan Kmiec, The Origins and Current Meanings of “Judicial Activism,” 92 Cal. L. Rev. 1441, 1475-76 (2004) (arguing that result-oriented judging is a “species of judicial activism [that] differs in kind from [all others] because it has a scienter element.”)
Lying is “bad in the abstract and particularly troubling when engaged in by the arm of the government charged with pronouncing and applying the law impartially.” Oldfather at 156.
C. This Court’s May 1994 decision, and the decisions that followed in the district court, the bankruptcy court and this Court again, breached each court’s duty to adjudicate and duty to write candid opinions.
The charges that the Labatt Judgment Creditors leveled against Messina in July 1993 implicated our legal system’s truth-seeking function. If, as they alleged, Messina had falsely accused them in order to “extract” a multi-million dollar settlement, they were entitled to a permanent seal of the 90c5009 papers, and Messina should have been disciplined.
On the other hand, if the Labatt Judgment Creditors’ charges were false, they had no right to secrecy orders, and they and their lawyers were the ones deserving to be sanctioned and disciplined.
The particulars of the Labatt Judgment Creditors’ charges, and the evidence bearing on them—or, in the Labatt Judgment Creditors’ case, their lack of evidence—were material to the outcome of the Journalists’ appeal. Nevertheless, this Court’s May 1994 decision did not describe or adjudicate the particulars of the Labatt Judgment Creditors’ charges, much less did it report the state of the evidence bearing on them.
Since May 1994 there have been six written opinions concerning the dispute underlying this appeal—two by Judge Zagel, two by this Court, and one each by Judge Squires and Judge Gettleman. None of these opinions described or adjudicated the particulars of the Labatt Judgment Creditors’ charges, much less did any of them report the state of the evidence bearing on the charges.
The collective failure to describe and adjudicate the Labatt Judgment Creditors’ charges, and the collective failure to report the state of the evidence bearing on the charges, breached the duty to adjudicate and the duty to write candid opinions.
 The legal system’s truth-searching function is reflected in rules that penalize parties, lawyers, or witnesses who would obstruct that search. See FRCP 11, 37; 18 U.S.C. §§1621, 1623.
The truth-searching function is also reflected in the Rules of Professional Conduct, which require that a lawyer must be disciplined if he speaks untruthfully in the course of a legal proceeding, even if he happens to be President of the United States. Neal v. Clinton, 2001 WL 34355768 at *1 (Ark. Cir. 19 Jan. 2001) (suspending President Clinton’s law license for five years and imposing a $25,000 fine for giving untruthful testimony during pretrial discovery in Jones v. Clinton.) See also Jones v. Clinton, 36 F. Supp. 2d 1118 and 57 F. Supp. 2d 719 (E. D. Ark. 1999) (citing President Clinton for contempt of court for giving untruthful testimony).