On The Case

Judge seals ex-clients’ fraud complaint against co-lead counsel in pelvic mesh case

The Houston plaintiffs firm Clark, Love & Hutson does not want you to read this 37-page class action complaint by four disgruntled clients who claim the firm botched their personal injury claims against pelvic mesh makers by failing to file suits before the statute of limitations ran out. All of the women received settlements, but they allege that if it were not for Clark Love’s mishandling of the claims and failure to admit its mistakes, they would have been in line for much bigger payouts. Their lawyers at the Beggs Landers Law Firm are demanding the return of the 40% contingency fees the women paid to Clark Love, as well as unspecified additional damages.

If you go to Pacer or Westlaw to download the complaint, you’ll find it unavailable. On Monday, U.S. District Judge Andrew Hanen of Houston granted Clark Love’s motion to seal the complaint. (I obtained the document before it was under seal.) You’ll notice that I did not include a link to the Clark Love sealing motion. That’s because the motion is itself sealed, as is Clark Love’s proposed order. From the case docket, all we know is that Judge Hanen held a phone conference Monday afternoon, heard from lawyers for Clark Love and for the women suing the firm and then ordered the complaint sealed. The lawyers who filed the class action complaint have until July 31 to move to unseal the document.

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It’s very unusual for judges to seal allegations against law firms, according to Kevin Rosen of Gibson, Dunn & Crutcher and Paul Koning of Koning Rubarts, who both frequently represent law firm defendants. It’s still more unusual, Koning said, for a law firm defendant’s sealing motion itself to be filed under seal. There’s an obvious public interest in allegations that law firms have breached their duty to clients, Koning said. At the very least, law firm defendants should be expected to explain publicly why claims against them should be confidential.

Clark Love, as I’ll explain in more detail below, denies all allegations that it mishandled its onetime clients’ cases. But I’m going to look first at the sealing issue.

Clark Love’s defense counsel, Dale Jefferson of Martin, Disiere, Jefferson & Wisdom, told me that the fraud complaint against the firm improperly revealed information about underlying settlements between Clark Love’s now-disgruntled clients and mesh defendants. The complaint discloses the specific amount that each of the four named plaintiffs received to resolve her mesh claims: Tina Alvarez allegedly settled with Bard for about $138,000, although she received about $48,500 after deductions for attorneys’ fees and medical liens; Clara Redmond allegedly settled with Ethicon for about $123,000, netting about $68,600; and Tammy Haga received about $55,500 of her $98,000 settlement with AMS. The complaint did not reveal the total amount of name plaintiff Amy Ruminski’s settlement with Boston Scientific but alleged that she recovered about $11,000.

All of those settlements, as the complaint itself notes, were confidential. Clark Love’s clients, according to the complaint, “were informed that they faced monetary and legal consequences should they breach the confidentiality of the settlement.”

Clark Love’s lawyer, Jefferson of Martin Disiere, said the law firm “was shocked” to see the details of its clients’ confidential settlements disclosed in a public filing. The women’s lawyers, he said, “deliberately engaged in shady behavior – they walked their clients into contempt for breaching the agreements (the women) signed.”

Jefferson said the lawyers who filed the fraud class action against Clark Love could have filed a complaint redacting confidential details or could have filed exhibits under seal, as plaintiffs often do in suits involving sensitive information. “There was absolutely no reason for these plaintiffs lawyers to do what they did,” he said.

The plaintiffs lawyers, James Beggs and Lynda Landers, did not respond to my initial email or to follow-up emails and phone calls requesting a response on Jefferson’s allegations that the lawyers improperly revealed confidential details of the women’s settlements with mesh defendants.

So why didn’t Clark Love lawyer Jefferson file a redacted motion to seal, since he argues that the lawyers who filed the fraud suit should have simply redacted confidential information? He said his side was pressed for time. After the complaint was originally filed, he said, the clerk’s office agreed informally to keep it private until Clark Love could ask plaintiffs lawyers whether they meant to file it under seal. When the complaint was made publicly available on the docket, Jefferson said, he and Clark Love had to act quickly to protect confidential information and didn’t have time to file a public version of their motion with redactions.

Jefferson also said that their goal was to tell as complete a story as possible to Judge Hanen, instead of providing him with a brief full of redactions. “Sunlight is the best disinfectant for a frivolous lawsuit, and we wanted the court to be able to look at everything,” he said.

I pointed out that the line about sunlight as a disinfectant usually refers to public disclosure – exactly what Clark Love wants to avoid. “We want this case tried in the real court, not the court of public opinion,” he replied. “We decided not to handicap the judge, the real decision-maker.”

The now-sealed complaint includes a lot of allegations about Clark Love’s handling of the firm’s vast docket of mesh cases. It accuses the firm of being so swamped with mesh clients that it failed to file timely complaints in the consolidated mesh litigation in federal court for hundreds or even thousands of women.

The complaint claims that Clark Love ultimately bundled the untimely cases into docketwide settlements with the mesh defendants, thereby hiding its alleged failure to adequately represent all of its clients. The suit asserts that Clark Love acted in its own interests rather than those of its clients. The firm, according to the complaint, has reaped attorneys’ fees of between $250 and $330 million from its own 15,000 or so mesh cases, in addition to tens of millions of dollars in common benefit fees from the MDL.

Clark Love defense counsel Jefferson said the complaint’s allegations are not true. “It’s clear that these lawyers have been fed bad information,” he said. “Conspicuously absent from their mischaracterization of events are important facts concerning what actually happened in the prosecution and resolution of these cases.” His client, he said, looks forward to proving the falsity of the allegations to a judge, rather than battling them publicly.

Law professor Elizabeth Burch of the University of Georgia – who, as I’ve previously reported, is studying female plaintiffs in mass tort litigation – believes Jefferson has things precisely backward. Court proceedings are presumptively public, and when one party claims confidentiality, courts are supposed to weigh its privacy interest against the public interest in disclosure.

The complaint against Clark Love, Burch said, doesn’t involve any of the usual reasons to seal, like grand jury information or sensitive personal information. Meanwhile, Burch said, there’s a strong public interest in “accusations about lawyers (who were in leadership positions no less) breaching their fiduciary duties to clients in one of the biggest proceedings in history.”

Burch said she hopes transparency eventually prevails. I do too. According to the complaint, Clark Love represented at least 15,000 women in the litigation over pelvic mesh. Now a class action in federal court alleges that hundreds or even thousands of them misplaced their trust in the firm.

If, as Clark Love’s lawyer, Jefferson, contends, the complaint’s allegations are false, those women deserve to hear the firm’s side of the story. In public. Where they can make up their own minds. Yes, as Jefferson said, the most important decision-maker is the court. But Clark Love’s clients matter, too.