On the same day that the Seventh Circuit dismissed my interlocutory appeals, Judge Zagel ruled on the defendants’ post-settlement motions. His rulings came in a 60-page Memorandum Opinion and Order Containing Findings of Fact and Conclusions of Law, reported as Grove Fresh Distributors, Inc. v. John Labatt, Ltd., 888 F. Supp. 1427 (N.D. Ill. 1995) [“Contempt Order”].

A. A summary of the Contempt Order’s findings and flaws.

The clean hands maxim—“he who comes into equity must come with clean hands”—bars relief for anyone guilty of improper conduct in the matter at hand.  Here, the defendants had unclean hands that disqualified them from receiving any equitable relief:

  • For 30 or so years they 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 illegal ingredients included an unsafe additive.
  • Their lawyers had obtained amnesty for the deepest pocket among them by making false statements to the FDA and by withholding from the FDA information about the unsafe additive—a deception that had allowed the scheme to go undetected for two more years.
  • Their lawyers had also suppressed evidence they were obliged to produce, made false statements in briefs opposing the journalists’ claims for access, and demanded an unethical restriction on my right to practice law as a condition to settling with my ailing, 78-year-old client.

Despite this lengthy history of criminal and deceptive conduct, Judge Zagel, through the Contempt Order granted the defendants unprecedented equitable relief in the form of a five-year prior restraint on my speech, as follows:

  • He barred me from speaking about the Grove Fresh litigation in any respect without first getting his permission.
  • To get his permission, I had to tell him what I proposed to say and identify a public source for every element of my proposed speech. 888 F. Supp. at 1452.
  • He required me to post a $50,000 cash bond, which I would forfeit if I spoke about the litigation without his permission.

The predicates for the prior restraint were four contempt citations and a Rule 11 citation, for which he imposed fines totaling $5,000. He also ordered me to pay the defendants’ attorneys’ fees and costs, which he eventually set at $149,554.45.[1]

Judge Zagel justified the citations, 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 appending my name and alleged flaw to a litany of Shakespearean figures with 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.

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, for the history he presented omitted any reference to the bad acts that disqualified the defendants from receiving equitable relief. (§§B-1-7, below.) It also failed to disclose the key role he had played in securing the unethical restriction on my right to practice law as a condition of settlement—a role that disqualified him from presiding over the post-settlement proceedings. See Motion for Recusal.

These omissions belied Zagel’s claim that the Plot he constructed for the Contempt Order met Aristotle’s rubric for a tragedy. (§B-8, below). The Contempt Order is, instead, a textbook example of a result-oriented ruling. (§C, below).[2]

In the years following the Contempt Order, Judge Zagel administered the prior restraint in a way that revealed its true purpose and intent—it was nothing more than a stealth mechanism for enforcing the unethical restriction on my right to practice law that was a condition of settlement . (§D, below.)

B. The holes in the Contempt Order’s Plot, and the ad hominem declamations that were used to fill them.

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,” Judge Zagel included, of course, the five actions by me that brought on the contempt citations, the Rule 11 citation, and the financial penalties. Those actions were:

  1. My unwillingness to appear in court on 10/21/93 without my lawyer, who was on trial in another case and unavailable.
  2. My 10/22/93 motion for a hearing in the Seventh Circuit.
  3. The statement in my Seventh Circuit papers that I was “one of the attorneys of record for the plaintiff, Grove Fresh Distributors, Inc.”
  4. My off-the-record response, in October 1993, to a New York Times request for a comment on the defendants’ claim that I had falsely accused them
  5. My 9/20/94 letter to the Coalition’s attorney.

These actions were my response to the crisis that arose from a cluster of events that began on July 14, 1993, when the defendants made the defamatory claim that the 90c5009 complaint had falsely accused them in order to “extract” money from them. That defamatory claim, and the events it triggered, were, in Aristotle’s rubric, the antecedents for the actions that brought on my misfortunes. If Zagel wanted to write a Plot that satisfied Aristotle’s rubric, he had to include these antecedent events in it; he didn’t.

The omission of those antecedent events, and of other, relevant information, left gaping holes in Zagel’s Plot. See §§B-1-3, below. He sought to fill those holes with declamations about my character and personality (§8, below), but these, too, were flawed, for they rested on a series of half-truths—that is, with “statement[s] that mingle[d] truth and falsehood with deliberate intent to deceive.” See §§B-4-7, below.

1. The truncated procedural history.

The 90c5009 complaint was filed 18 months after Jeffrey Hines had filed the prior, related lawsuits against Everfresh, Flavor Fresh, and American Citrus. The Contempt Order gave short shrift to that 18-month period—it omitted any mention of Hines or of the cases against Flavor Fresh or American Citrus, and it condensed the history of the 89c1113 case into two short paragraphs:

Mr. Messina represented the plaintiff, Grove Fresh Distributors, Inc., in two separate but related suits filed against competing orange juice manufacturers for allegedly engaging in a conspiracy to unlawfully adulterate and misbrand orange juice in violation of various federal laws.

Grove Fresh filed the first suit against Everfresh Juice Company in 1989 [citation omitted]. The genesis of the second suit [citation omitted] began when Mr. Messina concluded that Grove Fresh had claims against John Labatt, Ltd.--the parent of Everfresh--similar to its claims against Everfresh. Mr. Messina sent Everfresh's counsel a demand letter seeking payment of claims on 23 August 1990. The letter gave notice that Mr. Messina would file a new complaint on behalf of Grove Fresh if Labatt did not settle.”  [footnote omitted]

888 F. Supp at 1431. The brevity of Zagel’s account falsely implied that nothing of any significance had occurred in 89c1113 prior to August 1990. To the contrary, see §§V-XI, above.

The two-paragraph history of 89c1113 was followed by three paragraphs on the 90c5009 seal; one paragraph on the stipulated order of confidentiality he entered in 90c5009; and three paragraphs on the Coalition’s challenge to the seal.

Judge Zagel said nothing at all about the litigation on the merits of 90c5009, even though that phase of the case had lasted 25 months. Again, his silence falsely implied that nothing significant had occurred during those 25 months. To the contrary, see §§XV-D through K; XIX-XX, above.

There were seven months of protracted and contentious settlement negotiations, but these, too, received short shrift—just two sentences, as follows:

On 21 January 1993, Grove Fresh discharged Mr. Messina as its attorney in the Grove Fresh litigation. On 29 April 1993, case No. 90 C 5009 was dismissed with prejudice pursuant to settlement.

888 F. Supp. at 1433. The brevity of this account falsely implied that nothing significant had occurred during the negotiations. To the contrary, see §§XXII-XXIII, above

As for the post-settlement disputes, Judge Zagel summarized those in two paragraphs that gave no hint of the complexity of those proceedings:

[O]n 1 June 1993 intervenors renewed their motion to vacate the seal. This was denied. Intervenors appealed parts of this denial, which included the issue of whether this court should have issued a decision on the record justifying the seal.

In remanding the case back to me, the Seventh Circuit reiterated that it had yet to find "reversal per se appropriate" where a court had not made a point of articulating its findings and reasoning for entering an order limiting access. Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893, 898 (7th Cir. 1994). The Court of Appeals asked "only that in reaching its decision in this matter on remand that the district court specify the basis for its conclusions." Id. at 899. This decision was issued on 12 May 1994.

888 F. Supp. at 1433.

2. The omissions from the procedural history, categorized.

In any civil or criminal case, a fair and balanced procedural history would identify all of the major parties and witnesses; summarize the material allegations of the complaint and the defenses thereto; describe major procedural events and rulings; comment on the quality and extent of the evidence, if any; and describe any alleged misconduct by lawyers or litigants or witnesses.

Judge Zagel did touch on all of these subjects in the Contempt Order, but he omitted so much relevant information from his presentation that the litigation he described bore no resemblance to the litigation that had actually occurred.

Listed below in §3 are 21 sets of facts that were relevant and material to the topics Zagel raised in the Contempt Order, but which he omitted to disclose. His omissions fall into six categories:

  1. The unique circumstances that led to my representing Grove Fresh; to my filing the 90c5009 complaint; and to Everfresh’s emergency motion to seal the 90c5009 complaint (Omission Nos. 1-2, 9-10);
  2.  The identities and backgrounds of major parties and witnesses (Omission Nos. 3, 5, 7, 21).
  3. The material allegations of the complaint and the alleged defenses thereto (Omission Nos. 3, 4, 8, 17).
  4. Major procedural events and rulings (Omission Nos. 9, 10, 11, 13, 14, 15, 18, 19, 20).
  5. The quality and extent of the evidence supporting Grove Fresh’s allegations (Omission Nos. 4, 5, 6, 7, 8, 15).
  6. Alleged misconduct by defense lawyers and their clients . (Omission Nos. 12, 16, 19).

3. The omissions from the procedural history, particularized.

  1. Omission No. 1. Judge Zagel didn’t mention Jeffrey Hines, or the undisclosed conflict of interest that limited the scope of the claims Hines alleged for Grove Fresh in February 1989. Nor did he mention the lawsuits Hines had filed for Grove Fresh against Flavor Fresh and American Citrus. See Jeffrey Hines §§A-C.
    1. Omission No. 2. He didn’t mention that I was hired as local counsel about five months after Hines had filed the February 1989 suits; or that Hines was fired for his conflicts of interest about four months after that; or that I spent the next nine months investigating the claims that Hines’s conflicts had precluded him from pursuing. See §§IV-A; V-XII, above.
  2. Omission No. 3. He didn’t mention Home Juice or the history of the Home Juice organization, or the formula for adulterated orange juice that Home Juice created in 1962 and shared with its affiliates and franchisees. See generally The Home Juice Organization; see also Marshall/Flavor Fresh, §A.
  3. Omission No. 4. He mentioned Henry Lang once and American Citrus a few times, but he didn’t say anything about Grove Fresh’s allegations against them, or about the evidence showing that American Citrus and its predecessor (Home Juice) made and sold adulterated orange juice for nearly 30 years. See generally The Home Juice Organization; see also 90c5009 Amended Complaint ¶¶5-7, 30-34, 76-107, 110(a), (e), (g), (j), 154-82, 220-38.
  4. Omission No. 5. He didn’t mention Flavor Fresh or James Marshall or James Benton, or the related criminal case against them, or the admissions that Marshall made in his December 1992 proffer and in his October 1993 affidavit. See generally Marshall/Flavor Fresh.
  5. Omission No. 6. He didn’t mention the unsafe additive used by Everfresh, Home Juice/American Citrus, Holiday Juice, Flavor Fresh, and Peninsular Products. Conspiracy Claims §E.
  6. Omission No. 7. He didn’t mention Bruno Moser or Friedrich Kohlbach or the key roles they played in the schemes relating to the unsafe additive. See Moser Affidavit; Conspiracy Claims §E-1.
  7. Omission No. 8. He didn’t mention the admissions Labatt made to the FDA in May and June 1989 to obtain amnesty for itself and its orange juice subsidiaries, nor did he mention Grove Fresh’s allegation that the amnesty was fraudulently obtained. See §III, above.
  8. Omission No. 9. Having excluded Flavor Fresh from the narrative, he didn’t mention that McDermott Will & Emery represented Flavor Fresh as well as Everfresh, or that McDermott Will & Emery proposed a March 1990 agreement whereby:
    • Flavor Fresh paid Grove Fresh $70,000 to settle 89c1114;
    • Everfresh and Flavor Fresh agreed to provide Grove Fresh with specified discovery in 89c1113; and
    • Grove Fresh agreed to make a settlement demand in 89c1113 at the conclusion of that specified discovery.

    See §IX, above.

  9. Omission No. 10. Having excluded the March 1990 settlement agreement from the narrative, he didn’t mention that my August 1990 settlement demand—the demand that precipitated the emergency motion for a seal—was sent to McDermott Will & Emery in accordance with that agreement. See §§IX-A-2, XII-A, C, above.
  10. Omission No. 11. With respect to the 89c1113 defendants’ emergency motion for a seal, he didn’t disclose that (a) I had stipulated to filing the complaint under seal in exchange for his promise to hold a post-filing hearing on whether a seal was warranted, but (b) he never held the promised hearing. Instead of disclosing this history, he falsely stated that he had adjudicated the motion on August 29, 1990. See discussion in Opening Brief, pp. 25-26.
  11. Omission No. 12. He didn’t mention that in the responses to discovery that were required by the March 1990 settlement agreement, the defense:
    • Suppressed all evidence relating to the unsafe additive.
    • Suppressed evidence bearing on Labatt’s knowledge of Everfresh’s illegal practices.
    • Suppressed the names of witnesses with knowledge of the defendants’ illegal practices.  

    See §§XI-N, Q; XIV-I, above.

  12. Omission No. 13. Having excluded any mention of the defense’s suppression of evidence, he didn’t disclose:
    • The Rule 60(b) motion Grove Fresh filed in April 1991, alleging that the 89c1114 settlement had been fraudulently induced.
    • The Rule 11 motion Grove Fresh filed in 89c1113 in April 1992, alleging that the 89c1113 defendants had fraudulently concealed evidence regarding Labatt’s knowledge and the unsafe additive.
    • Procedural events that underscored the gravity of Grove Fresh’s claims—(1) the order setting aside three days for an evidentiary hearing on these motions, and (2) the defendants’ request, made on the eve of the hearing, to suspend all litigation activity and, instead, to enter into settlement negotiations.
  13. See §§XVI-C; XIX-F; XX, above.

  14. Omission No. 14. He didn’t disclose his March 1991 ruling on the motions to dismiss the 90c5009 complaint, wherein he (a) rejected the rationale for the seal alleged in the emergency motion for a seal, and (b) made a finding that “the 90c5009 complaint was based on “information…obtained from public agencies without help from the defendants or a court order.” See §XV-G, above.
  15. Omission No. 15. He didn’t disclose Grove Fresh’s January 1992 motion to overrule objections to the time period for discovery, or the evidence that Grove Fresh marshaled in support of that motion, much less did he disclose that he later granted that motion and authorized Grove Fresh to conduct discovery back to 1975. See §§XIX-B, H, above.
  16. Omission No. 16. He didn’t mention the defendants’ demand for a restriction on my right to practice law as a condition of settlement, or my rejection of that demand as unethical, or the role he played in imposing the consulting agreement as a mechanism for restricting my practice. See §§XXII-A, D; XXIII-M, T, above.
  17. Omission No. 17. He didn’t mention the post-settlement arguments the defendants made in the Seventh Circuit in support of the seal, namely, that the 90c5009 complaint, which I had drafted, signed and filed, had falsely accused them in order to “extract” an unjust settlement. See §XXV-D, above.
  18. Omission No. 18.  He didn’t mention Moser’s false affidavit in the related criminal case, suborned by a defense lawyer and executed by Moser in October 1993. See §§XXVI-I, V, above.
  19. Omission No. 19. He mentioned the title of the Rule 60(b) claim that the defense filed in August 1993 (“Everfresh’s Motion to Enforce Settlement or Relief from Judgment”), but he didn’t disclose: (a) that the motion sought specific enforcement of the consulting agreement, or (b)( that the defense prosecuted the motion for two years on the premise that Grove Fresh and I had continued in an attorney-client relationship after January 21, 1993. See §§XXVI-A, D, above.
  20. Omission No. 20. He didn’t mention his December 1994 finding that Grove Fresh and I had continued in an attorney-client relationship after January 21, 1993. See §XXVII-I, above.
  21. Omission No. 21.He didn’t mention the losses Grove Fresh alleged it suffered as result of the defendants’ bad acts, nor did he identify Cecil Troy, Grove Fresh’s president and principal shareholder. Having excluded Mr. Troy from the narrative, he didn’t mention how Mr. Troy’s age (78) and declining health had affected my posture in the settlement negotiations (see §XXIII-M), nor did he disclose that Mr. Troy had died in March 1994.

4. The half-truths in Judge Zagel’s explanation for why he had sealed 90c5009.

Zagel advanced his narrative with a series of half-truths that created a false portrait of me as an attorney with an “uncontrollable propensity to disclose protected materials.” 888 F. Supp. at 1447. The first half-truth—and the linchpin for the five-year prior restraint—was his explanation for why he had sealed 90c5009.  This is how he explained that decision   :

A key reason behind this decision [to seal 90c5009] was Mr. Messina himself. After presiding for the previous eighteen months over case No. 89 C 1113, I was familiar with certain tactics employed by Mr. Messina which I believed were questionable if not reprehensible. Specifically, I was wary of Mr. Messina's repeated attempts to beat the defendants into submission by disclosing materials previously designated as confidential to generate unfavorable publicity for them.

Footnote 2: Especially alarming was Messina's propensity to disregard court orders and include documents designated as confidential as attachments to his pleadings (which would then be put into the public record or forwarded to the press). An emergency motion seeking to restrain Messina from making prohibited disclosures would inevitably follow. See e.g., Minute Order of 10/3/90 Ordering Messina Not to Publish His 10/1/90 Letter to the Press and Ordering Him to Comply With the Court's Ruling; Minute Order of 7/18/90 Granting Motion to Enforce Protective Order in 89 C 1113

I had no reason to believe Mr. Messina would change his methods and every reason to suspect he would attempt to try his latest suit on the courthouse steps as well.

888 F. Supp. at 1431.

There are two kernels of truth in this explanation for the seal—that Judge Zagel had “presid[ed] for the previous eighteen months over case No. 89 C 1113,” and that he had issued a minute order in that case on July 18, 1990.

Everything else is false.

a. The 10/3/90 Minute Order.

Time-wise, and elsewise, the controversy underlying the 10/3/90 Minute Order could not possibly have influenced Judge Zagel’s state of mind on August 28, 1990, the date he issued the minute order sealing 90c5009.

Time-wise, the controversy was triggered by a letter I sent to McDermott Will & Emery on October 1—33 days after the 8/28/90 sealing order had issued. See §XV-C, above.

Elsewise, the order was issued, not by Judge Zagel—he was out of town—but by Judge Williams, sitting as the emergency judge; and it was issued in 90c5009, not in 89c1113.

The order didn’t deserve citation in any event because it was issued ex parte under deceitful circumstances. McDermott Will & Emery had slipped the motion under my office door after business hours. They presented it to Judge Williams the next morning as an alleged emergency, and gave me no courtesy notice by telephone or fax, as required by local practice. See §XV-C-3. By the time I learned about the motion, Judge Williams had already granted it.

Finally, the claim alleged in the ex parte motion did not rest on an affidavit or any other form of evidence. Rather, it rested on a fabricated allegation that I was threatening to publish allegedly confidential information.

b. The 7/18/90 Minute Order.

The facts of the controversy underlying the 7/18/90 Minute Order do not remotely resemble Zagel’s characterization of them in footnote 2 of the Contempt Order—there was no pleading filed with the clerk of court, much less was there a pleading with a confidential document attached. Nor was there any threat to forward any such pleading to the press.

Rather, the controversy concerned a private letter that I served on Everfresh’s lawyers; I did not file the letter with the clerk of court.

The letter challenged a claim of confidentiality for Batch Sheets recording the formulas Everfresh had used to make 3.2 million gallons of adulterated orange juice. The notice was sent in accordance with the procedures of the 89c1113 confidentiality order, with the declared intent, if the challenge were to succeed, of sending the Batch Sheets to the FDA in support of a petition for a criminal investigation and prosecution. See §XI-R, above.

The notice was a perfectly ordinary and legitimate act of advocacy. My openly declared intent to send the Batch Sheets to a government agency, should the challenge have prevailed, gave the action an extra layer of First Amendment protection.  See Eastern Railroad Presidents Conference v. Noerr Motor Freight Inc., 365 U.S. 127, 138-39 (1961) (corporation has First Amendment right to petition government agency to bring about an advantage to it and a disadvantage to its competitors).

Nothing in the facts underlying the 7/18/90 Minute Order warranted a seal on the 90c5009 case.

5. The half-truth about the letter dated January 21, 1993.

Zagel used a half-truth to support his finding that that “[o]n 21 January 1993, Grove Fresh discharged Mr. Messina.” 888 F. Supp at 1433. Many pages later (id. at 1449), he buttressed this finding with selective quotes from two of the five sentences in the letter Mr. Troy had signed on January 21, 1992:[3]

On 21 January 1993, the president of Grove Fresh wrote a letter to Mr. Messina informing him that he was “hereby relieved of all responsibility in the handling of this matter [the Grove Fresh litigation]. [Two other attorneys] will act as our sole attorneys and trial lawyers.”

The quotes are accurate, so there are kernels of truth in the finding, but the omitted sentences contradict the finding. The omitted sentences include the reaffirmation that I was still “entitled to receive 20% of any amount received by way of settlement or verdict.”  As explained above in §XXIII-E, that reaffirmation established a continuing attorney-client relationship—exactly the opposite of Zagel’s finding that Grove Fresh was discharging me.

Judge Zagel also omitted to disclose that three months after Mr. Troy signed that letter, he paid me $400,000—the full amount of the contingent fee confirmed by the letter.  

6. The half-truth about the proposed press release.

Judge Zagel offered this half-truth about the proposed press release that I sent to defense counsel, but not the press, on January 24, 1995:

Two recent instances of Mr. Messina's behavior make me question whether Mr. Messina has the necessary self restraint to curb his seemingly uncontrollable propensity to disclose protected materials. The first concerns a “press release” which Mr. Messina drafted, sent to the defendants on 24 January 1995, and threatened to disseminate on 27 January 1995….

Whether Mr. Messina's methods are seen as tough negotiation or blackmail, his bad faith is evidenced by his threat to send his “press release” not only to the press, but to the Plaintiff's Bar as well. (Although he denied this particular audience was chosen to raise the specter of additional lawsuits against the defendants, he was unconvincing.) Mr. Messina evidently had no compunctions about coercing compliance with his demands by threatening the disclosure of protected information. And there is no question that he would have followed through with his threat: under cross-examination, Mr. Messina admitted that, absent compliance or a court order, “the press release would have been issued.

As disturbing as is Mr. Messina's willingness to hurt his perceived enemies, it pales beside his willingness to run roughshod over the best interests of his client.  This incident prompted the sad spectacle of Mr. Messina's former client, Grove Fresh, filing a motion to preclude him from filing his “press release.

888 F. Supp at 1437-38. (emphasis added)

There are two kernels of truth in this narrative: I did create the proposed press release, and I did send it to defense counsel on January 24, three full days before the target date for release.

Zagel, however, didn’t tell his audience about the strategic purpose behind the proposed release—to clarify whether the seal was a gag and if so, the scope of the gag.[4] Nor did he tell them that he denied Grove Fresh’s emergency motion for an injunction, and that I nevertheless refrained from distributing the press release. See §XXVII-L-1, above. Disclosing these facts would have undercut his demonizing purpose—to show that I have a “seemingly uncontrollable propensity to disclose protected materials.”

There are two falsehoods in this segment of the narrative. The first is the innuendo of the italicized sentences, which imply that Judge Zagel had enjoined me from distributing the press release. The truth is, as I just mentioned, that he had denied the emergency motion for an injunction, and I still refrained from distributing the proposed press release.

The other falsehood is the melodramatic reference to “the sad spectacle of Mr. Messina's former client, Grove Fresh, filing a motion to preclude him from filing his ‘press release.’” My flesh-and-blood client was Cecil Troy, Grove Fresh’s president and principal shareholder.  Shortly after the settlement Mr. Troy, then 78, closed his business and retired to Florida. He died in March 1994, long before the January 1995 motion to enjoin me from publishing the proposed press release.  

7. The half-truth about the 1995 appeals.

Zagel used half-truths to characterize my conduct of the appeals I attempted to perfect in the spring of 1995:

The second recent incident which makes me question Mr. Messina's ability to restrain himself from future violations concerns his recent spate of filings--nine documents filed between 9 March and 27 April 1995--with the Seventh Circuit. Seemingly impervious to the fact that among the questions currently before this court (indeed the subject of part of this opinion) are Mr. Messina's previous disclosures in an appellate brief of the confidential settlement amount, Mr. Messina, in his latest publicly-filed Seventh Circuit briefs, once again blithely discloses the confidential settlement amount. See, e.g., John Messina's Motion to Consolidate Appeals and Briefing Schedules at 3 (filed 24 April 1995). 

These latest happenings prompt more than a sense of déjà vu. Such a shamelessly willful subversion of this court's authority and business, performed with such reckless abandon, engenders the two feelings which Aristotle believed created the catharsis which accompanied great tragedy: fear and pity. See Poetics at 230. Fear that Mr. Messina will continue to disregard this court's express orders, and pity that in doing so he teeters so precariously on the abyss.

The kernel of truth is that on April 24, 1995, I filed a paper in the Seventh Circuit that disclosed the settlement amount. Conveniently omitted is this important fact: 40 days earlier, my lawyers had asked him to clarify whether my papers on appeal had to be filed under seal. He had denied the motion and, once again, he had refused to clarify the meaning and scope of the seal. See §XXVII-Q.

Omitting to disclose my rebuffed effort to get clarification allowed him to falsely characterize my April 24 filing as “a shamelessly willful subversion of [his] authority.”

8. Judge Zagel’s resort to an epithet and ad hominem declamations, in lieu of antecedent actions, to explain the outcome of his Plot.

Having stripped from his Plot the antecedent actions that would explain why I took the actions that brought on my misfortunes, Judge Zagel had to resort to an inferior literary device to explain my misfortunes—declamations about the protagonist’s character and personality.

Zagel used this literary device early and often, starting with the very first paragraph of the Contempt Order, where he tagged me with the epithet that I am an “attorney who could not keep a confidence.” 888 F. Supp. at 1430. Throughout the Contempt Order he substituted declamations about character and personality for antecedent actions to explain my behavior. Here are representative samples:

  • Messina “would go to any lengths to try his case on the courthouse steps rather than in the courtroom itself.” 888 F. Supp. at 1430.
  • Messina “fervently believed in the unremitting badness of the defendants in this case.” Id.
  • Messina’s “willingness to hurt [the defendants] by disseminating information for purposes of damaging them outside the walls of the courtroom” was “beyond doubt.” Id.
  • Messina “misuse[d]…the litigation to pursue his own agenda.” Id.
  • Messina made “repeated attempts to beat the defendants into submission by disclosing materials previously designated as confidential to generate unfavorable publicity for them” 888 F. Supp. at 1431.
  • Messina “was willing to use not the force of the law, but the force of public relations to beat the defendants into some sort of submission.” 888 F. Supp. at 1434.
  • Messina “was not likely to follow the well trod paths of custom [and] might in fact be reluctant to obey court orders.” 888 F. Supp. at 1435.
  • Messina intended “to beat one of the defendants in this case ‘over the head in public with what [he] believe[d] to be wrongdoing.’” 888 F. Supp. at 1438 (brackets in the original).
  • “Mr. Messina’s willingness to hurt his perceived enemies ... pales beside his willingness to run roughshod over the best interests of his client.” 888 F. Supp at 1447 .

C. The result-oriented character of the Contempt Order.

A result-oriented decision is any ruling wherein the judge, for the sake of promoting acceptance of the decision by its intended audience, intentionally omits to disclose material facts or disputed issues relevant to a neutral, objective, and non-partisan understanding of the underlying controversy. See R. Posner, The Federal Courts: Challenge and Reform 311-12 (Harvard Univ. Press1996). See generally Result-Oriented Judging: A Process-Oriented Definition; see also pp. 20-24 of the Reply Brief in the 2009 appeal.)

Here, the 21 omissions enumerated in §B-3, above, were relevant and material to a neutral, objective, and non-partisan understanding of the controversies underlying the Contempt Order. By omitting these facts from his narrative, Judge Zagel promoted acceptance of the Contempt Order in at least three ways.

First, the bad acts summarized in Omission Nos. 3-8, 12-13, and 16-18,if disclosed, would have disqualified the defendants from receiving equitable relief under the law and in the eyes of the general public. By omitting this information, Judge Zagel allowed his audience to form the erroneous belief that the defendants were entitled to the relief he was awarding them.

Second, the March 1991 ruling (Omission No. 14), if disclosed, would have established that the 90c5009 complaint could not be the subject of a prior restraint because it was based entirely on information in the public domain. By omitting this ruling from his narrative, Judge Zagel misled his audience into believing that the 90c5009 complaint included confidential information, and that it qualified for the protection of the prior restraint he was imposing on my speech.

Third, the omissions allowed Zagel’s audience to accept as entirely true the half-truths that he used to create the false portrait of me as a lawyer with an “uncontrollable propensity to disclose protected materials.” See §§B-4 through 7, above.

As for the issue of Judge Zagel’s intent, litigants don’t have the right to depose the judges who rule against them, so Judge Zagel has never been cross-examined on whether the omissions enumerated in §B-3, above, were intentional or merely negligent. However, the half-truths documented in §§B-4 through 7, above, are compelling circumstantial evidence that when he composed the Contempt Order, he knowingly and intentionally abandoned his duty to be neutral, objective, and non-partisan.  

D. The real purpose of the prior restraint—implementing the defendants’ demand for a restriction on my right to practice law.  

In September 1995, April 1996, and August 1996 I presented motions for leave to file a consumer class action complaint in state court.  Judge Zagel’s resolution of those motions revealed the true purpose and intent behind the prior restraint—implementing the defendants’ demand for a restriction on my right to represent other clients with claims against them.

The first and second times I presented my motion, Judge Zagel added new procedural wrinkles to the previously-announced requirements for his approval.  On my third try he ruled that he was “satisfied that Mr. Messina in his proposed complaint does not reveal information which has been deemed confidential.”  This finding satisfied the only requirement in the prior restraint, so I should have been able to proceed with the complaint in state court.

But, Judge Zagel barred me from filing the complaint. The reason he cited concerned an issue over which he had no jurisdiction, and for which he afforded me no prior notice or opportunity for a hearing—my fitness to serve as class counsel in a state court action: 

But I am not satisfied, based on past experience, that Mr. Messina should serve as class counsel.  See, e.g., Grove Fresh Distributors, Inc. v. John Labatt Ltd., 888 F. Supp. 1427, 1447-48 (N.D. Ill. 1995) (“Mr. Messina’s willingness to hurt his perceived enemies ... pales beside his willingness to run roughshod over the best interests of his client ... Had he been class counsel, I would have afforded him no fees, because he was seemingly incapable of placing his client’s interests above his own.”)  Therefore, I deny Mr. Messina’s motion for leave to file the complaint. 

For further discussion of Judge Zagel’s meddling in the state court proceedings, see Other Litigation, §J.

[1] The hearing on the defendants’ fee petitions took place on January 21, 1997. Judge Zagel awarded the defendants 90% of the fees specified in their petitions, plus certain costs.  Final judgment on the fee petitions was entered on the docket on February 7, 1997. 

[2] Other problems with the Contempt Order are discussed at pp. 26-27 and 47-49 of the Opening Brief in the 2009 appeal; and at pp. 8-13, 14-18 of the Reply Brief in that appeal.

[3] In its entirety the letter stated as follows:

This confirms our meeting today at Rivkin, Radler & Kremer.  You are hereby relieved of all responsibility in the handling of this matter.  Warren S. Radler and Dale R. Crider will act as our sole attorneys and trial lawyers.

We very much appreciate all of your effort in getting this ready for trial and we are optimistic that the matter will be resolved favorably. 

This will also advise you that you will continue to be entitled to receive 20% of any amount received by way of settlement or verdict.  [emphasis added.]

[4] This clarification should have come four and one-half years earlier, when Judge Zagel issued the seal order. The lack of clarity had a chilling effect on speech about the litigation.