Satisfied that a veteran District attorney didn't make false representations in a legal fee dispute, a D.C. Superior Court judge today cleared the lawyer of any wrongdoing and declined to impose sanctions.
Judge Judith Bartnoff had ordered the attorney, Barry Coburn of Washington’s Coburn & Coffman, to appear in court today to explain statements and court filings that, over the summer, led the judge to seal information in the case, a fee dispute between Hogan Lovells and POM Wonderful.
Attorneys in the case announced today that the fee dispute is settled, but lawyers involved in the matter declined to comment on the terms of the deal.
Bartnoff said she issued the order to show cause earlier this month “with great reluctance.” In court today, the judge said did not find there was “any impropriety at all” by Coburn and another lawyer for POM, Covington & Burling partner John Graubert. Coburn, whose wife attended the hearing, thanked the court.
Graubert, represented today in court by Covington partners Robert Kelner and William Skinner, played a minor role in the legal fee dispute. He is participating in the Federal Trade Commission's ongoing administrative action against POM.
The information and statements at issue in the sanctions inquiry concern the FTC’s investigation of POM over allegedly deceptive claims about disease prevention and treatment.
Coburn and POM’s in-house lawyers, including Kristina Diaz, a former Winston & Strawn litigation partner in Los Angeles, fought to keep confidential the identity of the investigating agency and the nature of the probe.
Attorneys for POM successfully got a temporary restraining order against The National Law Journal to block the paper from publishing anything about the FTC probe. The order was later voided, at the request of POM.
But it turns out that earlier this year POM’s in-house lawyers disclosed the FTC probe in federal district court in California in a suit between POM and Coca-Cola. Coburn did not work on POM’s behalf in the suit in California.
Coburn, represented by Miller & Chevalier’s Mark Rochon in the sanctions matter, said in an affidavit that he was not aware that the FTC investigation of POM had been publicly disclosed before arguing at a hearing in July that parts of the record should be sealed.
POM’s in-house attorneys at Roll Law Group “expressly informed” him many times that the FTC inquiry was non-public and highly confidential, Coburn said.
In court today, Diaz apologized to Bartnoff and to Coburn. She said Roll is embarrassed about the California disclosure and its impact on the litigation here in Washington. “We want the trust of the courts when they are granting sealing orders,” Diaz said. “We want the trust of our local counsel.”
Diaz said Roll is looking into a system to better control the flow of information when it comes to sealing requests and orders in suits involving POM.
Randell Ogg, representing Hogan in the fee dispute, first alerted Coburn to the California disclosure in a letter Aug. 3, according to Coburn’s affidavit. Coburn then brought Ogg’s letter to the attention of the court, prompting Bartnoff to issue an order to show cause.
Coburn and Ogg declined to comment on the terms of the settlement in the underlying fee dispute between Hogan and POM. The opposing lawyers are expected to file a joint motion to dismiss the suit in the next few weeks.
Bartnoff said she will go over the docket in the attorney fee dispute to determine whether to unseal—or keep sealed—certain court papers.
Updated 11:58 a.m.