Barry Coburn, a name partner at Coburn & Coffman representing juice maker POM Wonderful in at least two cases, has been ordered to show cause as to why he shouldn't be sanctioned for allegedly making false representations to a D.C. Superior Court judge.
Judge Judith Bartnoff, who is presiding over a breach of contract suit filed against POM by Hogan Lovells, said in an order handed down on Oct. 6 that Coburn and POM misrepresented the confidential status of an ongoing Federal Trade Commission investigation into medical claims made by POM in advertising and marketing materials.
In the Hogan case, which stems from the firm’s claim that POM has failed to pay more than $666,000 in legal fees for the firm’s work on the FTC investigation, Coburn fought for months to keep any reference to the FTC investigation under seal.
According to court records, Coburn argued on behalf of POM that any reference to the FTC investigation was protected by attorney-client privileges. In a June 11 pleading in the Hogan case, Coburn calls the FTC investigation “highly confidential and privileged.”
In July, The National Law Journal obtained court records in the Hogan case that identified the name of the agency investigating POM but were later placed under seal. Coburn sought and obtained a temporary restraining order against the newspaper that barred it from disclosing the name of the agency. POM ultimately requested that the temporary restraining order be dropped after the NLJ — backed by an amicus brief joined by The Washington Post, The New York Times and other media outlets — had asked the D.C. Court of Appeals to overturn Bartnoff's ruling.
According to Bartnoff’s Oct. 6 order, POM itself disclosed the name of the agency in a separate suit the company filed in California. Bartnoff wrote, “It would appear that [POM Wonderful] itself knew or should have known of the content of the filings on the public record in its California lawsuit and that the representations made to this court that the existence of the FTC investigation had not been made public were not accurate.” The order does not name the specific lawsuit.
Bartnoff set a hearing for Oct. 22, at which time POM and Coburn will be required to show cause to why they shouldn’t be sanctioned for allegedly violating the federal rules regarding disclosures made to a judge. Bartnoff also ordered the parties in the case to be prepared to address whether the sealing order should be lifted.
In a statement, Coburn’s lawyer, Mark Rochon, a white collar defense partner at Miller & Chevalier, said, “Once this was brought to Barry's attention, he notified the Court and that is what prompted the hearing. I have known Barry for over 20 years and I am 100% sure that his representations to the Court were what he reasonably believed to be true."
Randell Ogg, a Washington-based solo practitioner representing Hogan in its suit against POM, declined to comment on Bartnoff’s order. Hogan’s general counsel George “Sandy” Mayo also declined to comment.
For POM, the sanctions hearing is the latest twist in a complex litigation history. The company is known for its tough litigation stance. In 2009 and 2010, the company filed at least seven lawsuits against such beverage giants as Welch Foods Inc., Tropicana Products Inc., Ocean Spray Cranberries Inc. and Coca-Cola Co., which distributes Minute Maid juices.
POM sued the FTC last month, in another case being handled by Coburn, alleging that the agency's rules on deceptive advertising violate the company’s free speech rights. But then two weeks later, the FTC fired back in an administrative complaint against POM, its parent company Roll International Corp., and Stewart Resnick, chairman of POM; Lynda Resnick, co-director of Roll; and Matthew Tupper, president and chief operating officer of POM. In the administrative complaint, the FTC alleges that the juice maker violated federal law by making deceptive disease prevention and treatment claims.