XXV. August 5, 1993 through July 5, 1994: The post-settlement proceedings through the date of the ruling on the Coalition’s appeal (May 12, 1994) and the referral to the ARDC.

  1. Comment: The controversy over my status as a Grove Fresh attorney post-January 21, 1993.
  2. August 10, 1993:  The defendants’ amended brief in the Seventh Circuit.
  3. August 19, 1993:  My response to the amended brief.
  4. August 20-24, 1993: The defendants’ Rule 60(b) motion to void the settlement for alleged fraudulent inducement.
  5. August 20, 1993 through May 14, 1995: The lack of an official record of the post-settlement proceedings.
  6. September 1-October 5, 1993: The unsuccessful negotiations over a procedure for a response to the defamatory claims.
  7. October 18, 1993: Another call from the New York Times.
  8. October 12-21, 1993: Gamesmanship over the re-notice of the FRCP 60(b) motion.
  9. October 19, 1993: Moser’s false declaration under penalty of perjury.
  10. October 22, 1993: My motion for a hearing in the Seventh Circuit.
  11. October 25-27, 1993: The defendants’ motion to strike my Seventh Circuit papers, which contradicted allegations in their trial court papers that I had continued as a Grove Fresh attorney after January 21, 1993.
  12. October 28, 1993: Moser’s perjury problem and Labatt’s problem with false statements punishable under 18 U.S.C. §1001.
  13. October 31, 1993: The front-page report in the New York Times, and the subsequent grand jury subpoena that deterred Henriques from any further investigations.
  14. November 3, 1993: American Citrus and Lang’s FRCP 60(b) motion in the district court.
  15. November 9, 1993: The Seventh Circuit’s rule to show cause, and American Citrus’s and Lang’s contempt petition in the district court.
  16. November 15, 1993: American Citrus and Lang’s FRAP 46(c) motion in the Seventh Circuit.
  17. November 22, 1993: The sentencing hearing for Flavor Fresh, Marshall, Benton, and Kohlbach.
  18. November 22-30, 1993: My response to the Seventh Circuit’s rule to show cause.
  19. December 1, 1993: The defendants’ abandonment of the Consulting Agreement, and their repeated assertions that I continued as a Grove Fresh attorney after January 21, 1993.
  20. December 9, 1993: My response to the contempt petition, the FRCP 60(b) motion, and the rule to show cause .
  21. January 12, 1994: American Citrus’s Rule 11 motion.
  22. February-March 1994: The records from the sentencing hearing in the related criminal case—and the evidence that Labatt had suborned Moser’s perjury.
  23. April 8, 1994: The oral prior restraint on speech about orange juice and the Grove Fresh litigation.
  24. April 22, 1994: Professor Coquillette’s opinion that the Consulting Agreement was void and unenforceable because it violated Illinois public policy.
  25. May 12, 1994: The ruling in the Coalition’s appeal.
  26. July 5, 1994: The ARDC inquiry on referral from the Seventh Circuit.

A. Comment: The controversy over my status as a Grove Fresh attorney post-January 21, 1993. 

Federal courts do not have inherent jurisdiction to adjudicate disputes arising out of the settlement of federal civil suits.  Such disputes involve contract claims governed by state law unless some independent ground for federal jurisdiction exists.  Kokkonen v. Guardian Life Insurance Co., 511 U.S. 375 (1994); McCall-Bey v. Franzen, 777 F.2d 1178, 1186-88 (7th Cir. 1985).

Here, there was only one possible federal ground for bringing the dispute over the Consulting Agreement to Judge Zagel, instead of to state court: a claim for fraud under FRCP 60(b)(3), which provides as follows:

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:…. fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

To state the obvious, I was never a “party” to any of Grove Fresh’s lawsuits.  My only connection to the litigation was in my capacity as Grove Fresh’s lawyer. 

To state a claim under FRCP 60(b)(3) that would give Judge Zagel jurisdiction over me personally, the defendants would have to allege: (a) that I fraudulently induced the defendants to execute the settlement agreement by which the Grove Fresh cases were dismissed on April 29, 1993, and (b) that I was a Grove Fresh attorney as of that date, notwithstanding the letter dated January 21, 1993, whereby I was “relieved of all responsibility” for Grove Fresh’s lawsuits.

The defendants did just that in the initial set of post-settlement papers they filed on August 20, characterizing me as “one of Grove Fresh’s attorneys” as of that date (see §D, below), even though they were seeking to enforce a contract that made me their attorney as of March 25, 1993 (see §XXIII-U, above.)  They repeated this allegation whenever they wanted to assert that Judge Zagel had jurisdiction over me under FRCP 60(b)(3). See §IX-F, below. 

On the other hand, characterizing me as a Grove Fresh attorney gave me a right to be heard in other forums, such as the Seventh Circuit.  When I sought to be heard there, they alleged that I had been discharged by Grove Fresh on January 21, 1993, and that I had no standing to be heard in the Seventh Circuit.  See §K, below. 

B. August 10, 1993:  The defendants’ amended brief in the Seventh Circuit. 

The defendants refused to accept my tender back of the $50,000. 

On August 10, 1993, they filed a motion in the Seventh Circuit for leave to file an amended brief, which was eventually granted.  The amended brief made minor changes that were unrelated to my concerns; it left intact the defamatory allegations that I had drafted a false complaint for the purpose of falsely accusing the defendants and extracting an unjust settlement.

C. August 19, 1993:  My response to the amended brief.

After receiving the amended brief I wrote to the defendants on August 19, 1993, as follows:

[T]he gist of the amended brief is the same as that of the original brief: I allegedly conducted the trial court proceedings in a manner that violated standards of professional conduct, and the seal was necessary to protect your clients from being harmed by my alleged misconduct.

If I am misconstruing your brief, and if you are prepared to file an unqualified declaration with the Seventh Circuit that would obviate the court's making the same misconstruction, then we might be able to resolve this controversy without any disclosures from me.

If you are not willing to take such a step, then I will have no choice but to seek leave to intervene in the Seventh Circuit so that I might defend against the false innuendoes and false accusations of wrongful conduct.

For all the reasons stated in my earlier letters, I have a privilege under Rule 1.6(c)(3) of the Rules of Professional Conduct to disclose confidences in order to defend against your accusations of wrongful conduct.  I understand that you have a different view, and that, as Mr. Stetler stated in his August 17th letter, you "will take whatever steps necessary to safeguard [your clients'] rights under both the Legal Representation and Consulting Agreement and the Settlement Agreement."

In order to afford you a reasonable opportunity to test your position before the disclosures are made, I will refrain from filing any papers with the Seventh Circuit until noon on Monday, August 23rd.

D. August 20-24, 1993: The defendants’ Rule 60(b) motion to void the settlement for alleged fraudulent inducement. 

The defendants did not reply to my August 19th letter.  Instead, on August 20, 1993, McDermott Will & Emery filed a motion in 90c5009 styled “Everfresh’s Motion to Enforce Settlement or Relief from Judgment.”  The motion purported to be brought under Rule 60(b) of the Federal Rules of Civil Procedure and asked for an order

either enforcing the Settlement Agreement and Consulting and Legal Representation Agreement or granting Everfresh, Inc. relief from the judgment of dismissal pursuant to settlement in this case, including the return of the settlement proceeds with interest. 

The defendants served the motion on Rivkin Radler & Kremer, but not on me.  I learned about the motion three days later, when Rivkin Radler & Kremer faxed me a copy. 

The motion was presented on August 24.  I retained Judd Miner (of Davis, Miner, Barnhill & Galland) to represent me, but he could not attend on short notice.  Judge Zagel entered and continued the motion to September 1, 1993, but, as it turned out, he was not able to go forward that day.  He never set a new date. 

E. August 20, 1993 through May 14, 1995: The lack of an official record of the post-settlement proceedings. 

For all but the final 26 days of the post-settlement proceedings—i.e., from August 23, 1993 through May 14, 1995—Judge Zagel continued his practice of precluding the clerk of court from creating an official record of 90c5009.  He continued to permit the defendants to file their papers in chambers, and he continued to withhold the defendants’ filings from the clerk of court. 

Grove Fresh and I continued to file our respective papers with the deputy clerks on the 20th floor, but all of our filings were routinely rerouted to Judge Zagel’s chambers without our consent and without being docketed.

F. September 1-October 5, 1993: The unsuccessful negotiations over a procedure for a response to the defamatory claims. 

During the first two weeks of September Miner attempted to negotiate a procedure for me to defend against the defamation in the Seventh Circuit.  McDermott Will & Emery would not agree to any procedure unless they were given the right to review my papers before they were filed with the Seventh Circuit. I would not accept that condition.

On September 17, 1993, after Rivkin Radler & Kremer told me that Grove Fresh had no intention of filing any written response to the FRCP 60(b) motion, I filed, under seal, a pro se response. This filing particularized the false statements and material omissions in the defendants' Seventh Circuit brief. 

Four days later, defense counsel told Miner that, because of my September 17th pro se filing, “all bets were off;” they would not negotiate any further over a procedure whereby I might defend myself in the Seventh Circuit.

Nevertheless, on October 1, 1993, I made one final effort.  Seeking to protect Grove Fresh, I asked for an acknowledgment that a reply to the defamation would not breach the Grove Fresh settlement agreement.  In exchange, I would:

  • Request a temporary seal of my reply for a period of 14 days for the limited purpose of enabling the defendants to present their arguments on the issue.
  • Refrain from serving the reply on the intervenor pending a ruling on whether the reply should be sealed.

Four days later, the defendants rejected this proposal.  They asserted that I had “no standing to file a pleading in the matter before the Seventh Circuit Court of Appeals. Not only [is Messina] not a party in the action, but [he does] not represent a party in that action.”

G. October 18, 1993: Another call from the New York Times.

Henriques, the New York Times reporter, called again in mid-October, as I was preparing the papers that I’d be filing on October 22.  She asked for a comment on defendants’ claim that I had falsely accused them.  Concerned that the New York Times would republish that defamatory accusation, I answered “off-the-record,” in exchange for her promise not to publish anything I told her. 

In my off-the-record comments I told her about the witnesses who had invoked the fifth amendment privilege, and I explained that in a civil case, claims of fifth amendment privilege are admissible in evidence to prove the truth of a plaintiff’s allegations.[1] 

After hearing me explain the evidence supporting the complaint, Henriques agreed not to republish the defendants’ defamatory claim.

I also told Henriques that I planned to file a motion for a hearing in the Seventh Circuit.  She asked me to send her a copy of whatever I might file.  I told her I would not.  She then traveled to Chicago, went to the courthouse, and got a copy of my papers from the clerk of court.

H. October 12-21, 1993: Gamesmanship over the re-notice of the FRCP 60(b) motion. 

In mid-September 1993 Judd Miner began a jury trial that would extend through the end of October.  He notified defense counsel that he would be unavailable to appear in court in any FRCP 60(b) proceedings until after the trial was concluded. 

Ignoring Miner, McDermott Will & Emery filed, on October 12, a re-notice of their FRCP 60(b) motion, for presentment on October 21.  They did not serve Miner with a copy of the motion.  When I learned about the motion, I let defense counsel know that I would not appear in court without my lawyer. 

On October 21, defense counsel met with Judge Zagel in his chambers, without a court reporter.  At the conclusion of the conference they returned to the courtroom, where Judge Zagel authorized defense counsel to draft a rule to show cause why I should not be held in contempt for not appearing in court that day. 

I. October 19, 1993: Moser’s false declaration under penalty of perjury.

On October 19, 1993—twelve days before the New York Times published its story—Bruno Moser signed a declaration under penalty of perjury in the related criminal case, pursuant to 28 U.S.C. §1748. 

Moser was an Ever Fresh employee from 1955 to 1992 or 1993.  He maintained Ever Fresh’s supply of Oleum 320/IDEA and supervised the blending of the solution into orange juice.  In his affidavit he acknowledged that Ever Fresh started using Oleum 320/IDEA in 1979, but he falsely testified, in ¶12, that the firm stopped using it in “1986 when Labatts [sic] purchased Everfresh and we were directed to discontinue its use.”

In fact, in 1987-88, Everfresh made at least six purchases of Oleum 320/IDEA for which it paid $257,155, and which it then added to products falsely labeled as “100% pure orange juice.” (R.449p.22,Ex.F.)[2] 

The Justice Department filed Moser’s declaration in the criminal case nine days later.  See §L, below.

J. October 22, 1993: My motion for a hearing in the Seventh Circuit.

On October 22, 1993, I filed with the Seventh Circuit Motion Of John P. Messina For A Hearing Regarding Allegations Of Misconduct In Appellees' Brief Of July 14, 1993, And For Other Relief.[3] The motion’s third page identified me as one of the attorneys of record for Grove Fresh in the district court, but the first page identified me as a pro se petitioner seeking a hearing for myself only, pursuant to FRAP 46(c).

I also filed two appendices of exhibits.  Because Appendix II included papers from 90c5009, I filed a Motion for a temporary seal of appendix II in support of motion of John P. Messina for an evidentiary hearing.

K. October 25-27, 1993: The defendants’ motion to strike my Seventh Circuit papers, which contradicted allegations in their trial court papers that I had continued as a Grove Fresh attorney after January 21, 1993. 

On October 25 and 27, American Citrus and Everfresh, respectively, filed motions to strike the October 22 motions.  Both motions alleged that my motions were frivolous because I had no standing to file any papers in the Seventh Circuit, in that I was not a party to, nor did I represent any party in, the underlying litigation.  Both motions alleged that Grove Fresh had discharged me as its attorney on January 21, 1993. (R.520, ¶41.)  This allegation contradicted their FRCP 60(b) motion in the district court, which alleged that I was a Grove Fresh attorney as of August 5, 1993, the date I rescinded the Consulting Agreement.

Grove Fresh was still represented by Radler and Crider, who had negotiated the Consulting Agreement without my knowledge or consent.  They filed a statement with the court stating: “Mr. Messina was discharged as Grove Fresh’s attorney on January 21, 1993.” (R.366 Attachment ¶4.) 

A year later, these same lawyers would allege and prevail on an opposite claim—that their and Grove Fresh’s communications with me after January 21, 1993, were protected by the attorney-client privilege.  (R.435, Ex.D; A.42b.)

L. October 28, 1993:      Moser’s perjury problem and Labatt’s problem with false statements punishable under 18 U.S.C. §1001. 

On October 28, in the related criminal case pending in Grand Rapids, Michigan, the Justice Department filed sentencing memorandums and three volumes of supporting evidence.  The evidence included Moser’s false declaration under penalty of perjury, discussed above in §I. 

As of October 28, 1993, the sealed 90c5009 files included evidence (R.449Ex.F) showing the falsity of Moser’s declaration—the six purchases of Oleum 320/IDEA for which it paid $257,155 in 1987-88. Because those papers were under seal, they were not available to the New York Times.

Moser’s perjury went undetected until February 1994, when I went to Grand Rapids and reviewed the court file.  See §V, below.. 

M. October 31, 1993: The front-page report in the New York Times, and the subsequent grand jury subpoena that deterred Henriques from any further investigations. 

On Sunday, October 31, 1993, the New York Times carried a front-page story on orange juice adulteration.  The story concerned the related criminal case in Michigan, civil cases in California and Texas, and the Grove Fresh litigation. (R.361, Ex.F)  True to her word, Henriques did not publish any information I had discussed with her off-the-record.

Several days later Henriques called my attorney, and then me, to say that she had received a positive response to the story and wanted to do a follow-up.  She never called again, however.  The reason, she told me several years later, was that she had been subpoenaed by a grand jury investigating alleged leaks of grand jury materials. 

N. November 3, 1993: American Citrus and Lang’s FRCP 60(b) motion in the district court.

On November 3, American Citrus and Lang filed an FRCP 60(b) motion in which they asked for an order:

  • “finding that the settlement of the case had been procured through material misrepresentations by Mr. Messina.”
  • “requiring the return of all settlement proceeds to the defendants immediately.”

They alleged that “Mr. Messina was discharged as an attorney in the litigation [on January 21, 1993], but remained as an attorney for Grove Fresh generally. Accordingly, the subsequent acts of Mr. Messina were performed by an attorney for Grove Fresh and are binding upon Grove Fresh.” (R.361 ¶12.) [emphasis added] 

They asked the court to rescind the settlement and order a refund of the $2,000,000 in settlement proceeds. 

O. November 9, 1993: The Seventh Circuit’s rule to show cause, and American Citrus’s and Lang’s contempt petition in the district court.

I asked the Seventh Circuit for time to respond to the claims by the defendants and Rivkin Radler & Kremer regarding my status as a Grove Fresh attorney.  The Seventh Circuit denied that request on November 9, 1993.  That same day it denied my motion for a hearing and issued a rule to show cause why I should not be disciplined for filing allegedly frivolous motions. (R.522, Ex.B¶59.) 

Also on November 9, 1993, American Citrus and Lang filed a petition in the district court for a rule to show cause why I should not be held in contempt.  They alleged that my motion for a hearing in the Seventh Circuit had disclosed information allegedly protected by the seal. 

Even though American Citrus, Lang, and the rest of the defendants had published their defamatory statements in the Seventh Circuit’s public files, where they were found by the New York Times reporter, they argued that I had no right to publish my rebuttal in those same public files, nor did I have any right to defend myself to the New York Times reporter who read their charges and questioned me about them. 

P. November 15, 1993: American Citrus and Lang’s FRAP 46(c) motion in the Seventh Circuit.

On November 15, American Citrus and Lang filed a motion under FRAP 46(c) asking the Seventh Circuit to discipline me for allegedly misrepresenting my status as a Grove Fresh attorney.  The court denied that motion on December 14, stating that “[t]he relief requested is appropriately sought in the District Court.”  See §U, below.

Q. November 22, 1993: The sentencing hearing for Flavor Fresh, Marshall, Benton, and Kohlbach. 

On November 22, 1993, Judge Robert Holmes Bell sentenced Flavor Fresh and its two principals.  He imposed a fine of $320,000 on Flavor Fresh.  He sentenced James Marshall to 37 months in prison and imposed a fine of $125,000.  He sentenced James Benton to 30 months in prison and imposed a fine of $25,000. 

Kohlbach was also sentenced that day to two years’ probation, including eight months of home confinement. He was also fined $100,000.

R. November 22-30, 1993: My response to the Seventh Circuit’s rule to show cause. 

I answered the Seventh Circuit’s rule to show cause on November 22, 1993.

On November 30, 1993, in further support of my answer to the rule to show cause, I sought leave to file the affidavit of Arthur Berney, a professor of constitutional law at Boston College Law School.  In his affidavit Professor Berney offered his expert opinion that the October 22 motion was “warranted by existing law or a good faith argument for the extension, modification or reversal of existing law.” (A copy of Berney’s affidavit is included in Appendix X as Exhibit 2.)

S. December 1, 1993: The defendants’ abandonment of the Consulting Agreement, and their repeated assertions that I continued as a Grove Fresh attorney after January 21, 1993. 

The eight-month period for which I had been paid $50,000 to “consult” with the defendants ended on November 25, 1993. 

On December 1, 1993, the Everfresh defendants notified Judge Zagel that they were no longer seeking to enforce the settlement agreements, which in their terminology included the Consulting Agreement.  They also joined in American Citrus’s FRCP 60(b) motion, which alleged that the Grove Fresh settlement had been fraudulently induced by my signature on the Consulting Agreement. 

In March 1994 Judge Zagel ruled that the defendants could take my deposition and otherwise conduct discovery regarding their fraud claim.  Eleven months later, on February 9, 1995, the defendants filed a consolidated memorandum in further support of their Rule 60(b) claim.  The gist of their claim was that the Consulting Agreement was a condition of settlement, and that my rescission of the Consulting Agreement was tantamount to Grove Fresh rescinding that settlement.  See §IX-J, below. 

T. December 9, 1993: My response to the contempt petition, the FRCP 60(b) motion, and the rule to show cause. 

On December 9, 1993, my attorneys filed Response of John P. Messina to Defendants' Motions for Relief From Judgment and Rule to Show Cause.  (A copy of this combined response is attached as Appendix X.)   

The Response made four arguments against the FRCP(60)b) motion as it pertained to me (Rivkin Radler & Kremer filed a separate response on behalf of Grove Fresh):

  1. The consulting agreement, which was the basis of the FRCP claims against me, was illegal and unenforceable, citing R.P.C. 5.6(b) and O’Hara v. Ahlgren, Blumenfeld and Kempster, 121 Ill. 2d 333, 537 N.E.2d 730, 734 (1989) (holding that contracts that contravene the public policies expressed in the Rules of Professional Conduct are illegal and unenforceable). Despite the illegality of the consulting agreement, I abided by its terms until the defendants libeled me in their Seventh Circuit brief.
  2. The court lacked subject matter jurisdiction over the settlement agreement, citing McCall-Bey v. Franzen, 777 F.2d 1178, 1186-88 (7th Cir. 1985), discussed above in §XXVI-A.
  3. The defendants had made a conscious decision to exclude me as a signatory to the settlement agreement. Since I was not a party to that agreement, I was not bound by its confidentiality provision.
  4. Disclosing the amount of the settlement ($2,000,000) was a legitimate and proper response to the defendants’ libelous statements.
  5. The Response made five arguments against the petition alleging that my Seventh Circuit papers violated the seal order in 90c5009:

    • The defendants did not give adequate notice of the specific charges against me, since their motion did not specify the information in my Seventh Circuit papers that was allegedly subject to the seal.
    • The seal could not be construed as a gag order because the court had previously found that “the information used to [draft the complaint in 90c5009] was obtained from public agencies without help from the defendants or a court order.” The First Amendment and Seattle Times Co. v. Rhinehart, 467 U.S. 20, 37 (1984), I argued, bar any prior restraint of information gathered for purposes of litigation, but outside the discovery process.
    • The defendants forfeited whatever benefits the seal order was intended to confer when they falsely accused me of having falsely accused them in order to “extract” money from them.
    • The negotiations that led to the entry of the protective orders in 89c1113 and 90c5009 showed that the parties specifically agreed not to require the sealing of court filings merely because a filing referred to allegedly confidential discovery.
    • I had a common law right to respond to the defamation in the defendants’ Seventh Circuit brief, citing Rodriguez-Erdmann v. Ravenswood Hospital medical Center, 190 Ill. App. 3d 24, 545 N.E. 2d 979, 984 (1st Dist. 1989).

My attorneys filed a separate response to the rule to show cause why I should not be held in contempt for failing to appear in court on October 21. 

U. January 12, 1994: American Citrus’s Rule 11 motion.

On January 12, 1994, American Citrus filed a Rule 11 motion in the district court alleging that Grove Fresh had discharged me on January 21, 1993, and that I had deceived the Seventh Circuit in October 1993 when I described myself as one of the attorneys of record for Grove Fresh. (R.366.)  American Citrus alleged that discovery was needed “concerning Mr. Messina’s activities and status in this matter.” (Id., p. 3)

V. February-March 1994: The records from the sentencing hearing in the related criminal case—and the evidence that Labatt had suborned Moser’s perjury. 

In February 1994 I drove to Grand Rapids, Michigan, examined the court file in the related criminal case, and read Moser’s declaration under penalty of perjury for the first time.  (Moser’s declaration is discussed above in §§I, L.)

February 1994 is when I first learned that Moser had falsely exculpated Labatt by declaring, falsely, that Everfresh had stopped using Oleum 320/IDEA in “1986 when Labatts [sic] purchased Everfresh and we were directed to discontinue its use.”  

In March 1994 I spoke to Brian Delaney, an Assistant United States Attorney who had worked on the related criminal case in the Western District of Michigan. I asked him why the government had included in Moser’s declaration the statement regarding the date that Everfresh had purportedly stopped using the unsafe additive. He told me the following:

  • The statement was not in the original draft of the declaration prepared by the government.
  • The government submitted the draft to Moser’s attorney before Moser was asked to execute the declaration.
  • Moser’s attorney asked the government to insert the statement about Labatt instructing Everfresh to stop using the preservative.
  • The government inserted the statement.

In other words, Moser’s lawyer, who was hired and paid by Labatt, suborned perjury.

(My conversation with Delaney is memorialized in a declaration under penalty of perjury I submitted in support of Mr. Messina’s Memorandum in Opposition to American Citrus’s Motion to Supplement its Contempt Petition, filed on January 9, 1995. See §XXVII-J, below.)

W. April 8, 1994: The oral prior restraint on speech about orange juice and the Grove Fresh litigation. 

On April 8, 1994, my lawyers presented a motion to clarify the effect of the seal on my representation of orange juice consumers in a state court class action I intended to file.  The motion asked for a declaration that under Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), the seal order could not be construed as a prior restraint on the dissemination of information in 90c5009 papers that had come from the public domain.  (R.414¶11.) 

Judge Zagel orally clarified the scope of the seal order, but he also issued a warning that was tantamount to a prior restraint.  He “advise[d] Mr. Messina not to speak about the case and what might possibly transgress the seal with anybody” unless Messina obtained Judge Zagel’s prior approval of “exactly what he wants to say” by showing that it is “exactly what is in the public record.”[4] 

Judge Zagel did not incorporate this prior restraint into a written order; without a written order entered on the docket, the prior restraint was not appealable. 

X. April 22, 1994: Professor Coquillette’s opinion that the Consulting Agreement was void and unenforceable because it violated Illinois public policy. 

On April 22, 1994, Professor Daniel Coquillette gave me his expert opinion on the propriety and enforceability of the Consulting Agreement. 

Professor Coquillette is an expert on professional ethics and on the law of contracts.  From 1990 to 1993 he was a member of the American Bar Association’s Standing Committee on Ethics and Professional Responsibility.  Since 1986 he has been an Advisor to the American Law Institute on the Restatement of the Law Governing Lawyers.  He has also been an advisor on the Restatement of Contracts, Second. 

Professor Coquillette reviewed the relevant facts leading up to and following the execution of the Consulting Agreement and reached the following conclusions:

The “Consulting” Agreement was conceived as an inherent part of the Grove Fresh Distributors, Inc. (“Grove Fresh”) settlement.  You were coerced into acceding to this Agreement to achieve a settlement, thus creating a direct conflict between your professional obligations to your client, an aged man in failing health and your obligation to the public to provide access to legal services.  This potential conflict was one of the fundamental reasons for the existence of Rule 5.6(b).  In addition, from the date of the “Consulting” Agreement to the present, from March, 1992 to April, 1994, “the Hiring Parties [i.e., Labatt and American Citrus] have not asked [you] to render any legal services, nor have they declared any confidences to [you].”  This is not a bona fide agreement for legal services, but a thinly disguised restrictive agreement entered into as part of a settlement between private parties. [citations omitted]

Professor Coquillette also reviewed Illinois contract law and concluded that the Consulting Agreement was void and unenforceable by the Hiring Parties because it violated the public policy of Illinois. (Id., pp. 5-8.)

Y. May 12, 1994: The ruling in the Coalition’s appeal. 

In its appeal to the Seventh Circuit the Coalition had sought a vacatur of the 90c5009 seal order on the ground that Judge Zagel had failed to articulate his reasons for the seal. 

On May 12, 1994, the Seventh Circuit remanded the appeal.[5]  In an opinion by Judge Bauer, the court declined to establish a rule requiring the automatic vacatur of unexplained closure orders, but it mandated that on remand, the district court should “articulate on the record” its reasons for the seal order.[6]  The court also mandated that “once found to be appropriate, access should be immediate and contemporaneous [because the] newsworthiness of a particular story is often fleeting.  To delay or postpone disclosure undermines the benefit of public scrutiny and may have the same result as complete suppression.[7] 

Z. July 5, 1994: The ARDC inquiry on referral from the Seventh Circuit.

As discussed above in §O, on November 9, 1993, the Seventh Circuit issued a rule to show cause why I should not be disciplined for having filed allegedly frivolous motions in that court.   In June 1994, the Seventh Circuit referred that rule to show cause to the ARDC. 

On July 5, 1994, the ARDC opened an inquiry into the defendants’ allegation that the 90c5009 complaint “contain[ed] false statements and information derived from confidential discovery material subject to a protective order and was filed to embarrass, harass and falsely accuse the defendants.”   The ARDC asked me to provide the Commission with “any and all information related to this matter including evidence upon which you based the allegations contained in the complaint you filed in the Grove Fresh litigation.”

I responded on August 16, 1994.  My response, a copy of which is posted on the website at ARDC August 1994, described the events leading to the filing of the 90c5009 complaint.  It also described the evidence supporting the 90c5009 complaint. 

The ARDC was satisfied with my response.  In September 1994, the ARDC closed its inquiry. 

[1] 2/3/95 Tr. of Proceedings, pp. 113-16, 199-201.

[2] “R.__” refers to the 90c5009 record.  Moser’s perjury is also discussed in Memorandum No. 3-A, §IX-G-2.

[3]  A copy of this motion is attached as Appendix W.

[4] 4/8/94 Tr. of Proceedings, pp. 5-7.

[5] Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893 (7th Cir. 1994).

[6] Id. at 897. 

[7] Id. (citations omitted) [emphasis added].