Monthly Archives: July 2017

In a six-year First Amendment battle, Courthouse News has filed its appellate brief defending Federal Judge James Oteros finding that the court clerk in Venturamust let the press see new civil actions before they are processed.

Californias Judicial Council has tried in a number of ways to roll back traditional press access where journalists would review the new cases before they were docketed. That term is now subsumed into the word processing, the set of procedures applied to get a new case into a court computer system.

The diehard resistance by the council and clerk Michael Planet to pre-processing access contrasts with the prompt and efficient resolution of the same issue in a number of other federal jurisdictions.

Planet undervalues the First Amendment, the medias role in democracy, and the importance of access to civil records, says the 90-page brief filed by CNS lawyers late Friday before the long Fourth of July weekend.

In the preceding 74-page brief, clerk and council argued, It has always been Ventura Superior Courts policy to provide reasonable access to all civil records.

On the cases third trip to the Ninth Circuit Court of Appeals, the clerk relied on an argument made intermittently in the six years of litigation, claiming that the First Amendment right of access does not attach to civil filings until a judge makes a ruling, an event that generally comes months if not years after a new case is filed.

The same underlying issue press access before processing was quickly resolved last year in the Southern District of New York. Ruling from the bench, Judge Edgardo Ramos enjoined the state court clerk in Manhattan from withholding access while he processed the new cases.

I find that injunctive relief would serve the public interest, said Ramos from the bench. There is, of course, an important First Amendment interest in timely access.

The injunction was granted in December, about one month after CNS filed the action, and by the end of January, the Manhattan clerk had set up an electronic in-box that allowed journalists to see the new cases the moment they are filed. E-filing is required in many New York courts, including Manhattan.

Since the ruling by Ramos, eight county courts in and around New York City have set up in-boxes for the press, providing access along the same lines as federal courts.

In an earlier Texas case on the same issue, U.S. District Court Judge Melinda Harmon enjoined the Houston clerk who was withholding access while he docketed, scanned and put paper-filed complaints online.

In both cases, the litigation cost less than on tenth of the millions of dollars spent to establish prompt access in one small court in California.

In the California case, Judge Otero in the Central District ruled last year that the First Amendment attaches to new civil actions upon their receipt by the Ventura clerk. In his judgment, he wrote that the press has the right to see the new cases before they are processed, whether they are paper-filed or e-filed.

The clerk and council then appealed his ruling to the Ninth Circuit, where judges Kim Wardlaw, Mary Murguia and N. Randy Smith will hear the case.

At the same time, Otero declined a request to publish his ruling which ran 30, single-spaced pages and, in response to CNSs request for attorney fees as the prevailing party, cut the lodestar amount by 63 percent. That cut, reducing a $5 million cost to a roughly $2 million reimbursement, is the subject of a cross-appeal by CNS and explains the length of the brief.

Since then, Oteros writ has not extended very far, even within the Central District.

A small set of clerks have stonewalled the ruling, including Orange County Clerk David Yamasaki who continues to withhold access to newly filed complaints until after processing. In an action filed by CNS against Yamasaki, seeking to enforce the guts of Oteros ruling, Otero declined to take the case as related.

It was assigned to Judge Andrew Guilford in Santa Ana who tentatively ruled that it is OK to withhold the new cases until they are reviewed for confidentiality, at which time they are also processed.

As a result of that tentative, which the judge has signaled he will confirm, a new case filed in Orange County at the same time as the CNS brief was filed, late on Friday, would be considered provided to the press in a timely fashion, even if it is made available on Wednesday morning, five days later. By way of contrast,the Ninth Circuit brief was available for review upon receipt, late Friday afternoon, before what many are taking as a long weekend.

In fact, most cases filed in Orange County on Friday were withheld and will not be seen for five days. Likewise, all new cases filed on Monday in Orange County were withheld.

A few other clerks, in Santa Barbara and San Jose, for example, are also stonewalling Oteros ruling, and withholding new cases from the press while the clerks process them into their case management systems. San Jose is a paper court while Santa Barbara has put in place e-filing software by Tyler Technologies.

In courts outside California, Tyler which makes the popular Odyssey case management system provides the press with an electronic in-box, in other words access before processing.

Traditionally, reporters gathered at the end of the day in the clerks office to review the days new civil cases, a potent source of news, long before they were docketed. That was true in the Central District and the rest of the federal courts in California, as well as Los Angeles and Orange County superior courts, among many others in the state and across the nation.

That tradition has come under attack from within the Judicial Council and from its staff who wrote a definition into statewide e-filing rules that a clerk wishing to withhold access could use as justification. That rule was passed by the council over the objection of the L.A. Times and a good part of the rest of the press corps in California.

The most loyal defenders of the withholding practice have been in courts, including Orange County and Ventura, that were early adopters of the Court Case Management System, software pushed by the Judicial Council that was meant to usher in e-filing but wound up as a half-billion-dollar waste of public funds.

In their Ninth Circuit brief on behalf of the council and the clerk, Robert Naeve, Craig Stewart, Erica Reilley, Jaclyn Stahl with Jones Day, and Frederick Hayes with his own law offices, argued the First Amendment does not attach when a new civil case is filed.

Rather than impose upon state court clerks a constitutional stopwatch, which starts ticking the moment a complaint is received, this Court should hold that access to civil complaints should be considered timely so long as they are made available to the public at the time the parties see judicial resolution of the issues arising from the complaint e.g., a motion to dismiss, a summary judgment motion, or trial, they wrote.

In their Ninth Circuit brief on behalf of CNS, Roger Myers, Rachel Matteo-Boehm, Jonathan Fetterly and Leila Knox with Bryan Cave cited a long list of recent appellate opinions in support of Oteros finding that Complaints have historically been made available to the press and public soon after they are received by the court.

The clerk is also arguing on appeal that he does not know what timely access means, and so Oteros decision is too vague. But most weeks since the Oteros ruling, the clerk has provided access to every single new complaint on the day it was filed, suggesting he understands the import of the ruling and how to put it into effect.

The CNS brief also outlined a standard that provides some elasticity in the application of Oteros ruling: If complaints are not withheld pending processing and can be viewed during the hours they can be filed, the result is access soon after they are received by the court, which is timely. That will usually be the day of filing, but there may be instances where complaints are delayed without violating the injunction.

In their final paragraphs, the clerk and council argued, An ordinary person reading the injunction would not be able to determine what is meant by in a timely manner. Hence, the district courts injunction must be vacated for vagueness.

They concluded, The district courts order granting summary judgment in favor of CNS and entering a permanent injunction against Ventura Superior Court should be reversed.

In their contrary conclusion, the CNS lawyers wrote, As CNSs declarations demonstrate, there is a long history of courts making complaints and exhibits publicly available upon receipt.

But in California, a few clerks in courts that adopted the ill-fated Court Case Management System refuse to budge. Influential on and funded by the state Judicial Council, they seek to upturn history and logic by allowing clerks to treat complaints as private until after processing, judicial action, judgment, or forever if a case settles first.

Forced to spend a small fortune over six years and three appeals to right this public wrong at just one court, the brief wound up, CNS respectfully requests this Court affirm the merits order, so clerks cannot deny access until after processing.

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CNS Files Ninth Circuit Brief in Six-Year First Amendment Odyssey - Courthouse News Service

Theres a problem with attorney advertising in the prescription medical product space but its not the one you normally hear us defense-side litigators kvetching about. Quite apart from its litigation-generating effects, attorney advertising can have adverse public health consequences when all the anti-pharma hyperbole causes patients to cease taking targeted products in violation of their physicians orders. That problem is worse with some products than with others. Currently, plaintiff-side lawyers and their litigation funder enablers have decided to target virtually all modern anticoagulant drugs (e.g., Effient, Eliquis, Plavix, Pradaxa, Xarelto) because they can cause (surprise) severe bleeding. Thats a big problem because abruptly stopping those medications can very easily be fatal. Nor is it the only example. Halting, say, an anti-diabetes medication can lead to serious complications, although one would hope not in such a dramatic fashion as a stroke.

Congress held hearings on patient injuries caused by attorney advertising last month. Heres a link to the testimony of the witnesses. Two doctors testified about the impact of sensationalistic lawyer advertising on their patients, including patients who had died after being induced to stop taking their medicine by all the bombast. A law professor testified about a law review article that discussed the difficulties of bar associations regulating such advertising, when it is often carried out by non-lawyers whose physical locations (lawyers are regulated on a state-by-state basis) are unclear. A lawyer also testified, who raised First Amendment objections essentially to any regulation of attorney advertising even when limited to issues affecting the public health.

We want to address that last point.

To the attorney advertisers, we say welcome to the club. Our medical device and pharmaceutical clients, when they engage in advertising including direct-to-consumer advertising are engaged in the same type of speech as our adversaries, at least from a First Amendment perspective. Its all commercial speech. Weve written lots of blogposts on commercial speech, most being variations on the theme that the FDA cant ban truthful commercial speech. We readily extend the same consideration to our opponents. The government cant ban truthful attorney advertising either.

That said, the First Amendment isnt an obstacle to the kind of regulation that was considered at the recent hearing. Disclaimers? Those are childs play, constitutionally. Judicial opinions recommend them frequently, when they hold disclaimers to be an alternative to advertising bans of various types (not just involving drugs). E.g., ECM BioFilms, Inc. v. FTC, 851 F.3d 599, 617 (6th Cir. 2017) (the Commission was not required to adopt the least restrictive disclaimer); Pearson v. Shalala, 164 F.3d 650, 659 (D.C. Cir. 1999) (we suspect that a clarifying disclaimer could be added to the effect that The evidence in support of this claim is inconclusive.); American Home Products Corp. v. FTC, 695 F.2d 681, 696-702 (3d Cir. 1982) (agency may order advertiser making unsubstantiated scientific claim to include a disclaimer to that effect). Indeed, as to attorney advertising itself, the Supreme Court pointed out:

[Attorneys] constitutionally protected interest in not providing any particular factual information in his advertising is minimal. Thus, in virtually all our commercial speech decisions to date, we have emphasized that because disclosure requirements trench much more narrowly on an advertisers interests than do flat prohibitions on speech, warnings or disclaimers might be appropriately required in order to dissipate the possibility of consumer confusion or deception.

Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985) (citation and quotation marks omitted). The proposal during the hearings that attorney advertisements, at least those concerning certain products, be required to state, with equal emphasis, that under no circumstances should anyone stop their treatment without first consulting their doctor, is 100% constitutional.

Indeed, if anything, that proposal is constitutionally conservative. Attorney advertisers targeting prescription medical products are simply the flip side of prescription medical product manufacturers in this regard. Anything the FDA can require our clients to do, it could, constitutionally at least require attorney advertisers to do if it had the regulatory authority. Theoretically, Congress could confer on the FDA the power to regulate all advertising concerning FDA-regulated products, not just that originating with the entities that the FDA now regulates. We dont advocate doing this, because we think that the FDA has more important work to do than evaluate attorney advertising. Nor are we wild about giving an FDA imprimatur to whatever attorney advertisements that could survive the agencys standards. But from a constitutional perspective the FDA could undertake such regulation. Since commercial speech is commercial speech, the FDA (or some other regulatory body) could impose on lawyer advertising the same standards for balance and scientific support that our clients advertising, both DTC and otherwise, must already meet. Moreover, an agency could make the attorney advertisers pay for the review process, just as our clients do, through user fees.

The bottom line is this: Lawyer advertising holds no preferred position among types of commercial speech. Indeed, there are no types of commercial speech its all the same constitutionally. So when attorneys on the other side advocate bans on truthful manufacturer speech, because supposedly even truthful off-label information is a threat to the public health, they should remember that the same thing can be said about truthful attorney advertising.

Were quite willing to apply the same standards to both sides. Truthful commercial speech about prescription medical products (or anything else) cannot be banned, but that doesnt prohibit the FDA (or some other entity) from exercising the power at least to review it first. As far as disclaimers, look no further than 21 C.F.R. 101.93(c)(2). Every lawyer advertisement about FDA-regulated products could quite constitutionally be required to state, These statements have not been evaluated by the Food and Drug Administration.

Go here to read the rest:
Both Sides Equal Under the First Amendment - JD Supra (press release)