VII. December 1, 1989-January 22, 1990: Chronology of 89c1113 and 89c1114 through the date Hines finally withdrew his appearances for Grove Fresh. 

Hines did not go quietly.  First, he tried to persuade Mr. Troy and me that he should stay on as counsel.  When that failed, he hired two different lawyers to negotiate a settlement that would pay him on a quantum meruit basis for his services through November 1989.[1] 

Grove Fresh refused to negotiate, contending that he had been discharged for cause and had no right to collect any fee.[2] 

As of January 3, 1990—nearly five weeks after Grove Fresh had fired him—Hines had still not withdrawn his appearances.  His recalcitrance gave the defense an excuse to stall:  They claimed that they didn’t know who was truly representing Grove Fresh. 

To move things along I drafted a motion to strike his appearances, supported by an affidavit from Mr. Troy affirming that Hines had not disclosed either the restrictive covenants affecting 89c1113 and 89c1114 or the unauthorized Rule 36 admission in 89c1117.  I served the motion on both Hines and McDermott Will & Emery, but I deferred filing it with the court. (A copy of this motion has been posted on the website at Grove Fresh's Motion to Strike Hines Appearance.)

After receiving these papers Hines finally agreed to withdraw his appearances unconditionally, but nearly three more weeks passed before, on January 22, 1990, he finally filed the withdrawal papers. 

This Section chronicle events through the date that Hines finally filed his withdrawal papers.

A. Attorney Stetler’s misrepresentations regarding Labatt’s intent, and his, to “put [his] cards on the table.”

David Stetler worked as a federal prosecutor for ten years[3] before he joined McDermott Will & Emery as an income partner in late 1988. 

My first meeting with Stetler in the Grove Fresh litigation occurred in or around early December 1989.  At that meeting Stetler extolled Labatt and Hugo Powell, Everfresh’s new president, for their ongoing cooperation with the FDA and their efforts to clean up Everfresh and the orange juice industry.  He recounted an anecdote or two to support his praise. 

Stetler also held himself out as being different from the typical, corporate defense lawyer. He emphasized his experience at the United States Attorney's Office where, he said, he was in the habit of "laying the cards on the table."

More than once over the next few months Stetler would repeat his intent to lay his cards on the table in the Grove Fresh litigation.  All the while, he and his partners were actively concealing the existence of the Canadian Everfresh Inc. in order to settle the litigation without ever disclosing any information about that entity.

B. The defense’s failures to respond to discovery.

The defendants’ responses to the new and amended discovery requests were due on December 28-31, 1989.  Those dates came and went without any response from anyone. 

C. Rivkin Radler & Kremer’s unwillingness to join the litigation without an infusion of cash to fund expenses.

In December 1989 I met with Warren Radler and Dorothy Zimbrakos, partners at Rivkin Radler & Kremer, to discuss whether their firm would join me in representing Grove Fresh.  I shared with them copies of the FDA memos that Agent Mundo had leaked to Mr. Troy.  I explained the Lanham Act remedy that would allow Grove Fresh to recover the defendants’ illegal profits in lieu of its proving actual damages.  I reported on the prospects for settling the 89c1114 case prior to the March 1990 trial date. 

Radler had some interest in joining the litigation, but only after 89c1114 was settled and then only if Grove Fresh would agree to dedicate the settlement proceeds to a fund that would pay for discovery costs, for Dr. Brause’s further services, and for an expert witness on damages. 

D. McDermott Will & Emery’s refusal to disclose sales data for Flavor Fresh’s cold-packed products.

The sales figures that McDermott Will & Emery gave us on October 31, when Hines was still lead counsel, were limited to hot-packed products made by Everfresh for itself and for Flavor Fresh; they did not include any of Everfresh’s or Flavor Fresh’s cold-packed products.[4] 

I was not willing to make a settlement demand in 89c1114 until I had sales information for all of Flavor Fresh’s orange juice products, not just those hot-packed by Everfresh.  On December 11, 1989, I asked Stetler for sales data regarding products co-packed by entities not affiliated with Labatt.[5]  He rejected my request.  If he had explained the rejection truthfully, he would have told me the following: 

There were two corporations named Everfresh Inc.   One of those corporations (the successor to Holiday Juice) supplied adulterated COJM to Peninsular Products and others who made Flavor Fresh’s cold-packed products.  The rules on conflicts of interest barred the law firm from defending Flavor Fresh against claims relating to cold-packed products made from adulterated COJM supplied by Holiday Juice. 

Instead of giving me this truthful explanation, Stetler artfully claimed that the scope of his firm’s representation of the 89c1114 defendants was limited by the scope of an indemnity being provided to those defendants by Labatt, the firm’s primary client.  That indemnity, he said, only covered products made by “Everfresh;” it excluded products made by entities not affiliated with Labatt.  Thus, the indemnity did not cover the cold-packed products made by Peninsular Products, Golden Guernsey, or Bowman’s Dairy. 

E. January 12:  Additional sales data, but still no data regarding Flavor Fresh’s cold-packed products.

On January 12, 1990—more than ten weeks after Hines was removed from the litigation—I finally received sales data for the period prior to August 10, 1988, the starting date for damages dictated by the restriction on Hines’s right to practice law. 

The data came in a letter from attorney Stetler.  The letter presented annualized sales data for 1986, 1987, and 1988 in terms of “Total Sales,” expressed in dollars, and “Total Cases,” expressed quantitatively, not in dollar values.

According to Stetler, the data concerned orange juice “made at any of the Everfresh facilities and sold in Illinois.”  Stetler’s letter was misleading: He failed to disclose that “Everfresh facilities” referred to only two of the three plants that were part of the fictional Everfresh Juice Co.—the two owned by the Michigan Everfresh Inc.  Consequently, the data he presented did not include sales by the Holiday Juice plant in Windsor.

Stetler’s letter was also patently incomplete—it did not include any sales data for Flavor Fresh’s cold-packed products. 

F. January 17:  My meeting with the Florida Department of Citrus.

In mid-January 1990 I was in Florida on unrelated business, so I arranged meetings with Don Petrus, a research scientist at the Florida Department of Citrus (“FDOC”).  Petrus gave me a copy of a computer printout from Ever Fresh[6] dated May 1975. The document purported to be a formula of ingredients for orange juice.  The formula included a slew of ingredients that violated the standard of identity for 100% pure orange juice. (A copy of this printout has been posted on the website at Exhibit 6 to 90c5009 Complaint--Formula for Everfresh OJ May 1975 )

I also met with Kristin Chadwell, FDOC’s General Counsel.  Chadwell told me that from the late 1970s through the late 1980s, FDOC had investigated the “Lake Michigan Orange Groves,” the industry’s sardonic nickname for several Midwest juice processors who made and sold adulterated orange juice products. 

“Lake Michigan Orange Groves,” I would later learn, referred to Home Juice, Ever Fresh, Flavor Fresh, Boden Products, and Bodine’s. 

Ms. Chadwell kindly told me about a recent decision by the Florida Supreme Court that gave an expansive interpretation to that state’s public records laws.  Under that ruling, materials that a state agency could withhold from disclosure under the attorney work-product immunity became subject to disclosure once the underlying litigation was concluded.  She suggested that I make a request for the records of the FDOC’s recently concluded investigation of the “Lake Michigan Orange Groves.” 

I made the request and received several thousand pages of documents that proved to be a treasure trove of information.  The FDOC documents would become the backbone for the 90c5009 complaint that Grove Fresh filed later that year.

G. January 22:  Reiteration of McDermott Will & Emery’s conflict of interest.

During the week of January 22, 1990, Stetler told me that if I continued to press for information regarding co-packers outside the scope of Labatt’s indemnity arrangement with Flavor Fresh, McDermott Will & Emery would have a conflict of interest that would require the firm to withdraw from 89c1114 in favor of Kowal.

[1] Under Illinois common law a contingent fee attorney who is discharged without cause loses all rights to a contingent fee, but the attorney has a claim in quantum meruit for the value of the services rendered up to the date of discharge.  In re Estate of Callahan, 144 Ill. 2d 32, 578 N.E.2d 985 (1991); Anderson v. Anchor Organization, 274 Ill. App. 3d 1001, 654 N.E.2d 675, 681 (1st Dist. 1995). 

[2] In Illinois, contingent fee lawyers who are discharged for cause have no right to compensation.  See Rhoades v. Norfolk & Western Ry. Co., 78 Ill 2d 217, 227-28, 399 2d 969, 974 (1979) (“the rule in Illinois has been that the attorney is entitled to full contract fees if the dismissal was without cause.” (emphasis added). 

[3] From 1979 to 1988 Stetler served as an Assistant United States Attorney for the Northern District of Illinois.  He held supervisory positions in that office from 1983 to 1988. 

[4] See §V-E-1, above.

[5] I made the request in a letter to McDermott Will & Emery dated December 11, 1989.

[6] “Ever Fresh” was the form of the corporate name when the entity was owned and operated by the Allens.  Labatt changed the form of the name to “Everfresh” when it acquired the company in December 1986.