January 30, 2019 / 8:53 PM / 6 months ago

Cleveland wants to bounce ex-prosecutor from defending Endo in opioids MDL

(Reuters) - Carole Rendon served in the U.S. Attorney’s office in Cleveland for eight years, as the first assistant prosecutor from 2009 to 2016 and as the U.S. attorney from July 2016 to March 2017. One of the highlights of her prosecutorial career was her leadership of an interdepartmental task force to confront the region’s heroin and opioid crisis. Rendon worked with city and county officials, including Cleveland’s police commander and medical examiner, on how to allocate resources and develop new protocols to save lives. Rendon gave speeches and wrote op-eds about opioids. In 2016, she testified about the impact of the opioid epidemic before the U.S. Senate’s Homeland Security Committee.

Rendon joined Baker Hostetler after she left the U.S. Attorney’s office. By June 2017, she was part of the team of lawyers, from her firm and Arnold & Porter, representing Endo Pharmaceuticals in litigation by cities and counties that have accused drug companies of sparking the opioid crisis by falsely marketing addictive products.

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In December 2017, U.S. District Judge Dan Polster of Cleveland appointed Rendon to serve as liaison counsel for all of the manufacturing defendants in the consolidated multidistrict case known as In re National Prescription Opiate Litigation.

The City of Cleveland believes Rendon and Baker Hostetler must be disqualified from the case as the litigation heads to a bellwether trial in March. In a brief unsealed this week, Cleveland’s lawyers at Baron & Budd contend that Rendon is violating two Ohio rules of professional conduct by defending Endo in a case connected to her work as a federal prosecutor, both as chair of the opioids task force and as lead counsel in a consent decree the Cleveland police department entered with the Justice Department. “This work undoubtedly gave Ms. Rendon direct knowledge about and insight into the impact of the opioid crisis on plaintiffs in this litigation, as well as their response to the crisis - all of which now puts her private clients at a significant advantage vis-à-vis Cleveland and the other plaintiffs,” the brief argued.

Endo’s response, unsealed last week, is scathing. The pharma company calls Cleveland’s arguments “absurd,” “dead wrong” and “an opportunistic ploy.” Judge Polster is holding a hearing next Wednesday to decide whether there’s any merit to Cleveland’s disqualification motion. He has ordered the city and Endo to produce their witnesses, including Rendon and city officials who claim to have divulged confidential information to her, to provide testimony.

The particulars of the Rendon disqualification fight are idiosyncratic, like those of every DQ dispute. But the broad issue of whether prosecutors can use the knowledge and expertise they acquired in government service on behalf of private clients should be of concern to all ex-prosecutors and the firms they work at. As Endo said in its brief, quoting precedent that supports Rendon and Baker Hostetler, “If advocating views, fostering a policy, or establishing a framework for competition were sufficient to disqualify counsel, every government attorney holding a position of authority in an executive department or an administrative agency would be disqualified from the practice of law in his field for a very long time … That is not, that cannot be, the law.”

Cleveland’s disqualification case is based on Ohio ethics rules that mirror the ABA model rules. One of them precludes former government lawyers from represents clients “in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee.” The other bars government attorneys from using “confidential government information” about a party when representing an adverse party. Baron & Budd contends that Rendon “personally received confidential government information relating to the City of Cleveland, the opioid crisis and the internal workings of the law enforcement community within the Northern District of Ohio” – which, according to Baron & Budd, is a matter connected with the opiate MDL. Cleveland contends that Rendon has used confidential government information in depositions of city and Cuyahoga County witnesses.

“This is an unusual, unique situation,” the disqualification brief said. “Rendon’s involvement with the individuals, issues and information at the heart of this case is more than just pro forma involvement by virtue of being the U.S. Attorney. Ms. Rendon was involved, at a personal and professional level, with the individuals, plaintiffs and issues that are at the very heart of this litigation.”

The brief cited a 1984 case from the District of Columbia U.S. Circuit Court of Appeals, Brown v. D.C. Board of Zoning Adjustment from the proposition that government lawyers must not engage in public service with a profit motive. “The public must be protected against the possibility that government attorneys in a variety of ways will conduct ‘their offices with an eye toward future private employment,’ whether by law firms or prospective clients,” the brief said, quoting Brown.

But according to Endo, that Brown citation is just one of the fatal flaws in Cleveland’s analysis. The ethics rule in the Brown case bars ex-prosecutors from working on matters “substantially related” to those they handled in government service. Ohio’s rule, by contrast, only restricts government lawyers from working on the same matters in private practice. “Here, plaintiffs do not and cannot identify ‘two cases,’ let alone two cases that present the same issues and involve the same parties, situation and conduct,” Endo’s brief said. “The only particularized ‘matter’ plaintiffs point to is the consent decree between the federal government and the city of Cleveland. But the consent decree had nothing to do with the opioid abuse crisis; it did not even have anything to do with police activities related to drugs.”

Endo offered two examples in which judges allowed ex-government lawyers to handle private cases that overlapped much more substantively with their work as prosecutors. In a 2006 ruling in In re Payment Card Interchange Fee Litigation, a federal magistrate in Brooklyn refused to disqualify a plaintiffs' lawyer who filed a class action against credit card companies based on his work investigating the same companies during a stint in the Justice Department’s antitrust division.

Similarly, in 1984’s Laker Airways v. Pan Am World Airways, a federal district judge in Washington, D.C., denied Pan Am’s motion to disqualify a former government antitrust lawyer who sued the airline after he had obtained privileged Pan Am information and trade secrets via a grand jury subpoena. (The judge in the Laker case was concerned that overly stringent disqualification rules would discourage lawyers from entering public service at all.)

“The question … is not, as defendants would have it throughout their briefs, whether there is some relationship or connection between this litigation and a subject under (the ex-prosecutor’s) jurisdiction while he was serving the government,” wrote the judge in the Laker case. “Rather, the pertinent questions are, first, whether (his) government activity was the same ‘matter’ as the alleged conspiracy to destroy Laker, and second, whether he participated ‘personally and substantially’ in that matter while serving as a public employee.”

Rendon’s work with the opioid task force and on the Cleveland police consent decree falls far short of the test the Laker judge laid out, according to Endo. And she wasn’t even privy to confidential government information like the lawyer in that case: None of the information Cleveland contends Rendon obtained qualifies as government information, which refers to information obtained via subpoena or search warrant, and most of it is publicly available. Cleveland argued that the ex-prosecutor had access to officials’ strategic insights as head of the task force. Endo said the contention was absurd.

“If such knowledge were disqualifying, no former government prosecutor could ever represent a private client in a suit against a public entity,” the company asserted.

By my read, Endo’s brief is more compelling than Cleveland’s, not least because of policy implications of disqualifying ex-prosecutors from cases without clear evidence of overlap. Of course, the only opinion that matters is Judge Polster’s.

Endo lawyer Matthew Maletta declined to comment. Cleveland counsel Mark Pifko of Baron & Budd didn’t respond to my email.

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