[Congressional Record Volume 157, Number 59 (Wednesday, May 4, 2011)]
[Senate]
[Pages S2649-S2657]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
COURT VACANCIES
Mr. SCHUMER. Madam President, I rise to talk about a serious crisis
in the third branch of government; that is, the rate of vacancies in
the U.S. district courts.
There is a crisis that is unlike almost all the other issues we
grapple with on a daily basis. It has a very simple solution. My
colleagues and I deal with a lot of very difficult and very divisive
problems every day. Not many of them lend themselves to solutions that
are both politically and economically costless, but this one is easy:
confirm these judges.
Take the district court nominees who were passed out of committee
with bipartisan support, schedule votes on the floor, and confirm them.
It sounds easy. Apparently, it is not. It is not easy because my
colleagues on the other side of the aisle have slowed the confirmation
of district court judges to a trickle, even those nominees who were
passed out of the Judiciary Committee with no objection from
Republicans.
This Congress, I am grateful for the hard work of Chairman Leahy,
Ranking Member Grassley, Majority Leader Reid, and Minority Leader
McConnell in beginning to unclog the pipeline, but we still have a long
way to go. To go the rest of the distance, to restore the pace of
judicial confirmations before the Federal judiciary faces the worst
vacancy crisis in history, we need the consent of our Republican
colleagues.
Here are the facts: The targeting of district court nominees is
unprecedented. Five of the nineteen district court nominees who have
received split votes in the last 65 years have been President Obama's
nominees. We have only confirmed 61 of his district court nominees. By
this time in their Presidencies, we had confirmed 98 of President
Bush's and 114 of President Clinton's.
Judicial vacancies affect nearly 100 Federal courtrooms across the
Nation. One in nine seats on the Federal bench is vacant. So we should
approve these nominees.
As for the current nominee pending on the floor, he is somebody who
deserves nomination. When we ask about nominees, we are concerned the
standard used by my colleagues is, would I have nominated this person,
rather than is this person whom I might not have nominated in the
mainstream? Jack McConnell is clearly in the mainstream. He has more
than 25 years' experience as a lawyer in private practice. Leading
Republican figures in Rhode Island have endorsed him. But he has
garnered opposition not because of his qualifications but because of
his clients. That is not fair, that is not right, and that is not how
we do judicial nominees.
He has chosen his work as a private lawyer, and that has no bearing
on his judicial temperament, his interpretive philosophy or his legal
acumen. In the interest of my colleagues who require more time, I would
urge, at the very least, that people take the standard of the Senator
from Tennessee--don't block cloture on this nominee. If you think he is
not qualified, vote against him.
Jack McConnell deserves to be on the bench. I am glad Leader Reid has
called him, and Senators Reed and Whitehouse have taken the lead. I
urge, at least on cloture, that my colleagues let this nominee be voted
upon.
I yield the remainder of the time I have been allotted so others of
my colleagues might speak.
The ACTING PRESIDENT pro tempore. The Senator from Texas.
Mr. CORNYN. Madam President, I have been conferring with the Senator
from Rhode Island and other Senators who want to speak. Maybe if we
could try another attempt at a unanimous consent request that would
allow all of us a chance to speak.
Since I have the floor, I assume I can speak for up to 10 minutes
under the standing order. I am willing to yield some of that time so
everybody can have an opportunity.
Ms. LANDRIEU. Madam President, I object to any unanimous consent
request.
Mr. CORNYN. Madam President, I have the floor. The Senator is out of
order.
The ACTING PRESIDENT pro tempore. The Senator from Texas has the
floor.
Mr. CORNYN. I ask unanimous consent that the Senator from Rhode
Island, the Senator from----
The ACTING PRESIDENT pro tempore. Is there objection?
Ms. LANDRIEU. I object.
Mr. CORNYN. I will proceed, then, under the standing order which
gives me up to 10 minutes, as I understand.
The ACTING PRESIDENT pro tempore. The Senator is correct.
Mr. CORNYN. I regret that the Senator from Louisiana is unwilling to
cooperate and provide everybody a chance to be heard, but I will
proceed.
I wish to speak to the nomination of Jack McConnell to the Federal
district bench. I spoke on this nomination yesterday. I have authored
an op-ed piece in the Washington Times expressing my concern. I wish to
summarize my concerns for my colleagues' benefit and their
consideration.
I serve as a member of the Judiciary Committee, as does the Senator
from Iowa, Mr. Grassley. Before the Senate Judiciary Committee, this
nominee was asked about allegations of theft of corporate documents
arising out of some lead paint litigation that his law firm was
pursuing in the State of Rhode Island. That has been the subject of
some discussion.
I will ask unanimous consent to have several documents printed in the
Record at this time.
First, I ask unanimous consent that after my comments, the complaint
of the Sherwin Williams Company v. Motley Rice and others be printed in
the Record.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
(See exhibit 1.)
Mr. CORNYN. I ask one further unanimous consent, and that would be
that an article from Legal Newsline about a discovery dispute still
delaying the resolution of the theft case against Motley Rice be
printed in the Record.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
(See exhibit 2.)
Mr. CORNYN. What I think these documents demonstrate is that not only
did Mr. McConnell intentionally mislead the Senate Judiciary Committee
with regard to his possession of these stolen documents, but now there
has been for some years--even after the lead paint cases have been
essentially dismissed by the Rhode Island Supreme Court with the State
and Mr. McConnell and his law firm having lost--ongoing litigation by
one of the defendants in that case suing for tortious interference with
their property; also conversion--in other words, theft, as the
Presiding Officer knows--of their private, proprietary documents,
including their litigation strategy, including their trade secrets and
the like.
The article, dated April 21, 2011, that I have made part of the
record shows that dispute over the theft of these documents remains
unresolved. In other words, Mr. McConnell and his law firm's
participation in this ongoing dispute remains unresolved. I don't know
why the majority leader would choose to bring up a nomination of
somebody for a lifetime appointment to the Federal bench when serious
allegations about his law firm's participation and his personal
participation in the theft of corporate documents in pursuit of
litigation remains unresolved. I think it is a terrible mistake.
[[Page S2650]]
I know the Senator from New York suggests we ought to just go ahead
and vote on cloture because he knows then that because our Democratic
friends control 53 votes in the Senate, Mr. McConnell will be
confirmed. But I am concerned that because the ethical allegations made
against Mr. McConnell and his law firm remain unresolved, this is a
terrible time for us to be voting on a lifetime tenure. If he were to
be confirmed and we find out later on that the court actually finds he
did participate in this conspiracy to steal these corporate documents,
what would that say about the Senate and about this process, our
deliberative process? I think it would be a scandal. It would be a
scandal.
Finally, let me say I have expressed my concerns previously about the
scheme that a group of very smart trial lawyers have dreamed up to sue
legal industries for huge amounts of money by making alliances with
State attorneys general and then suing in the name of the State but
then in the end settling these cases for billions of dollars--in some
cases, hundreds of billions of dollars--and these lawyers reaping a
windfall of billions of dollars in attorney's fees. That is something
Stuart Taylor--I think one of the more level-headed commentators about
legal matters--has said, that this has indeed morphed the rule of law
into the rule of lawyers, and ultimately consumers will have to pay
more in terms of higher prices and the lawyers reap a windfall.
The very same lawyers who are hired through these no-bid, noncompete
contracts are indeed the political supporters of these very same
attorneys general, raising at least the appearance of impropriety and a
pay-to-play system of providing litigation opportunities to these
lawyers from which they reap billions of dollars and after which they
funnel campaign contributions back to the very same State officials who
have, in fact, authorized them to sue on behalf of the State. This is
unseemly, to say the very least about it.
Finally, I would say Mr. McConnell continues by his own admission to
be eligible to receive up to $3.1 million a year in one of these
shakedown-industry lawsuits where these trial lawyers have worked with
State attorneys general to sue on behalf of the State, not in cases
that were actually tried but were actually settled under an existential
threat to these businesses and these industries.
At a time when we are talking, as Senator Portman did, about job
creation, the idea that we would be confirming a lawyer to a lifetime
appointment to the Federal bench where he could then serve as a venue,
given the venue shopping that frequently goes on in this type of
litigation, we can expect, if Mr. McConnell finds himself confirmed as
a Federal judge, that in the future litigants will find a warm
reception in his court to these ethically dubious schemes.
I think it is an extraordinary circumstance according to the
standards set by the so-called Gang of 14. It is not something we will
be doing often. But when an ethically flawed nominee such as this
nominee is proposed by the President of the United States on three
different occasions, and Senator Reid, the majority leader, as is his
right, tries to slip this stealth nominee through when people are
paying attention to other things, and we have not had adequate time to
debate and expose in the record so Senators can make a good judgment
about the facts and do their duty as individual Senators, I think it is
a terrible shame.
I intend to vote against cloture, and I hope my colleagues will so we
can have additional time to review this nominee's credentials and make
a good-faith assessment on behalf of all of our constituents.
Exhibit 1
IN THE COURT OF COMMON PLEAS CUYAHOGA COUNT, OHIO
THE SHERWIN WILLIAMS COMPANY,
101 Prospect Avenue, N.W., Cleveland, OH 44115 (Plaintiff),
v. MOTLEY RICE LLC, Motley Rice LLC, 28 Bridgeside Boulevard,
Mount Pleasant, SC 29464 And JOHN DOES, Defendants.
Complaint
JOHN P. O'DONNELL
CV 09 689237.
The Sherwin-Williams Company (``Sherwin-Williams''), for
its Complaint against Motley Rice LLC (``Motley Rice'') and
other unknown persons, alleges as follows:
Introduction and Nature of Claim
1. The law firm of Motley Rice has represented since 1999
the Rhode Island Attorney General, other government
officials, and private individuals in highly contentious
public nuisance and personal injury lawsuits filed against
Sherwin-Williams and other former manufacturers of lead paint
and pigments.
2. Without the knowledge or consent of Sherwin-Williams,
Motley Rice has somehow obtained stolen copies of PowerPoint
slides used by Sherwin-Williams' Associate General Counsel--
Litigation to advise the Company's Board of Directors on the
costs of defending the lead paint and pigment litigation,
among other information, and his analysis of potentially
available insurance coverage for that litigation--an issue
that Sherwin-Williams was actively litigating with its
insurers in a separate action. Those documents contain highly
confidential, proprietary business information and are also
protected by the attorney-client privilege and the attorney
work product doctrine.
3. It appears that Motley Rice, at the time it received
those slides, wrongfully obtained other Sherwin-Williams'
confidential, proprietary, and privileged documents from the
same person who is unknown to Sherwin-Williams. All of
Sherwin-Williams' confidential, proprietary, and privileged
documents taken without authorization will be referred to as
``Documents'' in this Complaint.
4. Despite repeated requests by Sherwin-Williams, and
despite Motley Rice's admission that it obtained Sherwin-
Williams' Documents through its own efforts, Motley Rice has
refused to reveal how it obtained Sherwin-Williams' stolen
Documents; to identify all Sherwin-Williams' Documents in its
possession; to provide them to a court for in camera review;
or to return Sherwin-Williams' Documents.
5. By this action, Sherwin-Williams seeks to uncover how
Motley Rice obtained the Documents, to protect and secure the
return of its stolen Documents from Motley Rice, to prevent
any use of those Documents or information contained in them,
and to be compensated for the harm caused to Sherwin-Williams
by Motley Rice's wrongful acquisition and use of those
Documents.
THE PARTIES
6. Sherwin-Williams is a corporation organized under the
laws of the State of Ohio, with its principal place of
business in Cleveland, Ohio.
7. Motley Rice LLC is a limited liability company
incorporated under the laws of South Carolina. It has its
principal place in Mt. Pleasant, South Carolina and has
another office in Providence, Rhode Island.
8. The John Does are persons presently unknown to Sherwin-
Williams who assisted, aided, and abetted Motley Rice in the
tortious acts alleged in this Complaint. The John Does are
believed to be residents of the State of Ohio.
JURISDICTION AND VENUE
9. Motley Rice has caused tortious injury in this State by
an act or omission in Ohio and by acts outside of Ohio
committed with the purpose of injuring Sherwin-Williams,
which resides in Ohio. Motley Rice also regularly conducted
business in Ohio during the time of the alleged tortious
acts. Thus, this Court has jurisdiction over Motley Rice
pursuant to Ohio Revised Code 2307.382(A)(3)-(4), (6), (7).
10. Venue is proper in Cuyahoga County because part of the
activity that gave rise to the claim for relief took place in
this County. Ohio R. Civ. Pro. 3(B)(3). Additionally, venue
is proper in Cuyahoga County because all or part of the claim
for relief arose in this County. Ohio R. Civ. Pro. 3(B)(6).
FACTS
11. In the course of conducting its business, Sherwin-
Williams creates and maintains confidential, proprietary, and
privileged information and documents. Included among those
documents are materials generated by Sherwin-Williams'
attorneys to provide advice to Sherwin-Williams' Board of
Directors concerning ongoing litigation strategy,
anticipation of litigation, developments and costs of defense
as well as potentially available insurance coverage for
litigation liabilities and defense costs.
12. Sherwin-Williams' attorneys have frequently met with
the Board of Directors to discuss the lead paint and pigment
litigation and the disputes and litigation with its insurers
to obtain reimbursement of defense costs and any potential
judgments in the lead paint and pigment litigation. The oral
and written presentations by Sherwin-Williams' attorneys to
the Company's Board of Directors are intended to be
confidential and protected by the attorney-client privilege
and attorney work product doctrine. Presentations to the
Board of Directors may also contain confidential and
proprietary business information, such as strategies for
other litigation, trade secrets for new products, acquisition
plans, employment policies, and other sensitive, competitive
information. For these reasons, all minutes of and
presentations at Sherwin-Williams' Board of Directors'
meetings are kept strictly confidential and are securely
maintained with restricted access at the company.
13. Since October 1999, the State of Rhode Island, through
its Attorney General, has retained Motley Rice to sue certain
former manufacturers of lead pigments used in architectural
paints decades ago, including Sherwin-Williams, for allegedly
creating a public nuisance (``Rhode Island Litigation'').
Under a contingency fee agreement with the Rhode Island
Attorney General, Motley Rice
[[Page S2651]]
and other counsel are responsible for all costs and expenses
of prosecuting the claims in the Rhode Island Litigation.
14. Since the commencement of the Rhode Island Litigation,
Motley Rice has been retained by local governments in
California, New Jersey, and Ohio to bring similar public
nuisance lawsuits against Sherwin-Williams and other former
lead pigment manufacturers. Motley Rice also tried
unsuccessfully to obtain representation of the cities of St.
Louis and Milwaukee as part of its continuing campaign to
launch public nuisance lawsuits against Sherwin-Williams and
other former lead pigment manufacturers all across the
country. The public nuisance lawsuits seek to require
several, out of many, former lead pigment manufacturers,
including Sherwin-Williams, to remediate all lead paint in
all buildings.
15. Also, since 1999, Motley Rice has represented dozens of
individual plaintiffs in Wisconsin who have sued Sherwin-
Williams and other former lead pigment manufacturers alleging
personal injuries from elevated blood lead levels.
16. Motley Rice attorneys frequently came into Ohio in 2006
to meet and communicate with mayors and members of the
executive and legislative branches of local governments in
order to persuade them to retain Motley Rice to bring public
nuisance lawsuits against Sherwin-Williams and other former
lead pigment manufacturers. Beginning in September 2006,
Motley Rice was retained to sue Sherwin-Williams and others
on behalf of the cities of Akron, Athens, Canton, Cincinnati,
Columbus, Dayton, East Cleveland, Massillon, Lancaster,
Toledo, and Youngstown and the Stark County Housing
Authority. It signed a contingency fee agreement for each
city. Motley Rice moved for, and was allowed, leave to appear
as counsel pro hac vice in state court for each Ohio
plaintiff. Motley Rice wrote, appeared as counsel, and
submitted complaints for each Ohio plaintiff. It wrote and
submitted briefs in every Ohio case in which defendants filed
a motion to dismiss or other pre-trial papers. Motley Rice
attorneys appeared in Ohio Common Pleas Courts located in
Canton, Cincinnati, Cleveland, and Toledo to argue motions,
and it responded to public records requests on behalf of
various cities.
17. Through the public nuisance and personal injury
litigation against Sherwin-Williams and others, Motley Rice
was and still is attempting to gain millions of dollars in
fees for itself.
18. Motley Rice's representation of cities in Ohio
continued until at least July 2008. Its representation was
ultimately unsuccessful, as every Ohio city's complaint was
either voluntarily dismissed or dismissed by court order.
19. In or about 2006, while Motley Rice was soliciting Ohio
cities to retain it, one or more attorneys from Motley Rice,
including Fidelma Fitzpatrick, met with a former Sherwin-
Williams employee at Cleveland Hopkins Airport. This former
employee had been responsible for preparing the PowerPoint
slides and other graphics used during presentations made to
Sherwin-Williams' Board of Directors in 2004, 2005, and
earlier years. Sherwin-Williams did not know of this secret
meeting.
20. At no time in meeting with the former Sherwin-Williams
employee did any Motley Rice attorney caution him not to
disclose or discuss any confidential, privileged, or
proprietary information or document belonging to Sherwin-
Williams.
21. During the meeting, the former Sherwin-Williams
employee provided Motley Rice with the names of other former
employees, several of whom may have had a role in preparing,
or would likely have had access to, Board presentation
materials.
22. On July 1, 2008, the Rhode Island Supreme Court
unanimously ruled in favor of Sherwin-Williams and other
defendants in the Rhode Island Litigation, reversing a jury
verdict in favor of the State and holding that the complaint
should have been dismissed at the outset.
23. After the Rhode Island Supreme Court's ruling, Sherwin-
Williams filed a motion in the trial court, called the
Superior Court, for entry of final judgment in its favor,
including an award of costs incurred in defending the
lawsuit. Although Sherwin-Williams has not yet submitted an
itemized bill of costs, Motley Rice submitted a bill of costs
for the State exceeding $1.9 million when it initially
prevailed in the trial court.
24. On September 24, 2008, Motley Rice, on behalf of the
State of Rhode Island, filed in the Superior Court a
Supplemental Memorandum in Opposition to Defendants' Motion
for Costs (``Supplemental Memorandum''). Because Motley Rice
is obligated under its contingency fee agreement with the
Rhode Island Attorney General to pay all costs of the Rhode
Island Litigation, it has a direct, personal financial self-
interest in whether the Rhode Island Superior Court awards
costs to Sherwin-Williams and, if so, the amount of costs.
25. The State's Supplemental Memorandum, which Motley Rice
prepared, signed, and filed, contained as an exhibit a copy
of the PowerPoint slides used by Sherwin-Williams' Associate
General Counsel--Litigation during his presentation to the
Board of Directors in October 2004. The first slide
identified the speaker as Sherwin-Williams' Associate General
Counsel--Litigation. The second slide showed the company's
cost to that date of defending the lead paint and pigment
litigation. The third slide presented the Associate General
Counsel's analysis and opinion regarding potentially
available insurance coverage for that litigation, a matter
then and still in dispute with its insurers. The presentation
contained confidential information, was prepared to provide
legal advice to the Board of Directors, and was intended to
be confidential and privileged. The Directors were not
allowed to keep copies of those slides (hereinafter ``October
2004 Confidential Board Slides''). Because Sherwin-Williams
considered the information in the October 2004 Confidential
Board Slides to be confidential, proprietary, and privileged,
it has not publicly disclosed that information.
26. Sherwin-Williams never produced in any lawsuit the
documents or information contained in the October 2004
Confidential Board Slides. Nor has Sherwin-Williams knowingly
produced the October 2004 Confidential Board Slides to any
person outside the company. On their face, the October 2004
Confidential Board Slides show that they contain confidential
and proprietary information and that they were created and
used for the purpose of providing legal advice and analysis.
27. The copy of the October 2004 Confidential Board Slides
that Motley Rice attached to its Supplemental Memorandum
bears a fax line at the top reflecting that it was one page
of a 34-page fax sent by an unidentified person from a
FedexKinko's in Akron, Ohio. The 34-page fax containing the
October 2004 Confidential Board Slides was sent on September
12, 2006 from the fax number (330) 668-1105; the receiving
number is not identified.
28. On information and belief, the other 33 pages of the
fax contain highly confidential and proprietary business
information, including information regarding strategies in
other litigation, proposed business strategies, plans for
geographic expansion and market growth, potential mergers or
acquisitions, retail partnerships, and sensitive information
regarding the company's finances.
29. On information and belief, the other 33 pages of this
fax are or were in the possession of Motley Rice.
30. To this date, despite Sherwin-Williams' request, Motley
Rice has refused to (a) explain how it came into possession
of the October 2004 Confidential Board Slides; (b) confirm if
it has the other 33 pages of the fax; and (c) identify and
return Sherwin-Williams' Documents.
31. Motley Rice deliberately obtained, kept, and used
copies of the October 2004 Confidential Board Slides and
other documents belonging to Sherwin-Williams while it knew
or should have known that those documents had been taken
without Sherwin-Williams' authorization and were
confidential, proprietary, and privileged. Motley Rice acted
for its own financial self-interest and gain and in conscious
disregard of Sherwin-Williams' legal rights and property
interests.
COUNT I
CONVERSION
32. Sherwin-Williams incorporates by reference its
allegations in Paragraph 1 through 31 of this Complaint.
33. Sometime before September 24, 2008, Motley Rice
intentionally and wrongfully obtained and kept without
Sherwin-Williams' knowledge or permission its Documents,
including the October 2004 Confidential Board Slides and, on
information and belief, the documents sent with the September
16, 2006 fax. Motley Rice may also have additional Sherwin-
Williams' Documents.
34. Motley Rice knew, or should have known, that the
October 2004 Confidential Board Slides and the Documents sent
with the September 12, 2006 fax are the property of Sherwin-
Williams.
35. Motley Rice knew, or should have known, that the
Documents were taken from Sherwin-Williams and provided to
Motley Rice without Sherwin-Williams' knowledge or
permission.
36. Motley Rice also knew, or should have known, that it
had no right to possess or use Sherwin-Williams' stolen
Documents. Nevertheless, in conscious disregard of Sherwin-
Williams' legal rights and property interests, Motley Rice
chose to obtain, keep and use those Documents for its own
financial benefit in the Rhode Island Litigation and to
attempt to cause substantial harm to Sherwin-Williams.
37. At all relevant times until present Motley Rice has
acted with malice and conscious disregard of Sherwin-
Williams' legal rights and property interests. By wrongfully
obtaining, retaining possession of, and using Sherwin-
Williams' stolen Documents for Motley Rice's own advantage
and self-interest with the intent to harm Sherwin-Williams,
Motley Rice has converted and continues to convert Sherwin-
Williams' property.
38. By refusing to return Sherwin-Williams' Documents
despite Sherwin-Williams' request to identify and return
those Documents, Motley Rice continues to the present day to
wrongfully convert Sherwin-Williams' property.
39. Wherefore, Sherwin-Williams requests compensatory
damages in an amount in excess of $25,000, punitive damages,
costs, and reasonable attorneys' fees.
COUNT II
REPLEVIN
40. Sherwin-Williams incorporates by reference the
allegations in Paragraphs 1 through 39 of this Complaint.
41. Sherwin-Williams created and is the sole rightful owner
of its Documents now wrongfully obtained, possessed, and used
by
[[Page S2652]]
Motley Rice without Sherwin-Williams' permission, including,
but not limited to, the October 2004 Confidential Board
Slides and, on information and belief, the documents sent
with the September 12, 2006 fax.
42. No one has the right to possess, retain, or use
Sherwin-Williams' Documents without the permission of its
Board or management.
43. Motley Rice has wrongfully obtained, kept, and used
Sherwin-Williams' Documents without Sherwin-Williams'
permission.
44. Motley Rice knew or should have known that those
Documents were taken from Sherwin-Williams without Sherwin-
Williams' knowledge or permission, and that it was wrongfully
obtaining, keeping, and using property belonging to Sherwin-
Williams.
45. Sherwin-Williams has requested Motley Rice to return
Sherwin-Williams' Documents.
46. Motley Rice has deliberately and wrongfully refused to
return Sherwin-Williams' property, and it has chosen to use
Sherwin-Williams' Documents for its own financial advantage
and to the substantial detriment of Sherwin-Williams.
47. Motley Rice continues to retain and refuses to identify
and return Sherwin-Williams' Documents without any right or
privilege to do so.
48. At all relevant times until present, Motley Rice has
acted with malice and conscious disregard of Sherwin-
Williams' legal rights and property interests. Motley Rice
wrongfully obtained, kept, and used Sherwin-Williams' stolen
Documents for the purpose of harming Sherwin-Williams and for
Motley Rice's own economic gain.
49. Wherefore, Sherwin-Williams is entitled to the
immediate identification and recovery of its Documents in the
possession, custody, and control of Motley Rice or its
attorneys, employees, and agents, damages in an amount
exceeding $25,000, punitive damages, costs, and reasonable
attorneys' fees.
COUNT III
AIDING AND ABETTING TORTIOUS CONDUCT
50. Sherwin-Williams incorporates by reference the
allegations of Paragraphs 1 through 49 of the Complaint.
51. Each John Doe owed to Sherwin-Williams the duty of
loyalty and good faith and the duty to maintain the
confidentiality of Sherwin-Williams' proprietary and
privileged documents.
52. Each John Doe breached these duties by wrongfully
converting Sherwin-Williams' Documents and providing them
without Sherwin-Williams' knowledge or permission to Motley
Rice, which had no privilege or right to obtain or possess
those Sherwin-Williams' Documents.
53. Motley Rice wrongfully obtained, kept, and used
Sherwin-Williams' Documents that Motley Rice knew, or should
have known, were taken or obtained without Sherwin-Williams'
knowledge or permission and in breach of each John Doe's
duties to Sherwin-Williams.
54. By using Sherwin-Williams' Documents in the Rhode
Island Litigation, Motley Rice assisted, aided, and abetted
each John Doe, and each John Doe assisted, aided, and abetted
Motley Rice, in tortious conduct harming Sherwin-Williams.
55. By wrongfully obtaining, keeping, and using Sherwin-
Williams' Documents that it knew, or should have known, were
stolen or wrongfully obtained by each John Doe without
Sherwin-Williams' knowledge or permission, Motley Rice
assisted, aided and abetted each John Doe's tortious conduct.
56. By wrongfully taking or obtaining Sherwin-Williams'
Documents and providing those Documents to Motley Rice
without Sherwin-Williams' knowledge or permission, each John
Doe assisted, aided, and abetted Motley Rice in its tortious
conduct.
57. By wrongfully retaining without permission and refusing
to identify and return Sherwin-Williams' Documents, each John
Doe has assisted, aided, and abetted Motley Rice's tortious
conduct.
58. Each John Doe and Motley Rice have acted at all
relevant times until present with conscious disregard for
Sherwin-Williams' legal rights and property interests and for
the purpose of causing substantial harm to Sherwin-Williams.
59. Wherefore, Sherwin-Williams requests compensatory
damages in an amount exceeding $25,000, punitive damages,
costs, and reasonable attorneys' fees.
COUNT IV
REQUEST FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION, AND
PERMANENT INJUNCTION
60. Sherwin-Williams incorporates by reference the
allegations of Paragraphs 1 through 59 of the Complaint.
61. Pursuant to Ohio Rule of Civil Procedure 65(A),
Sherwin-Williams requests the Court to issue a Temporary
Restraining Order prohibiting Motley Rice, any of its
attorneys, employees, or agents, and each John Doe from:
(a) Using or reproducing Sherwin-Williams' Documents;
(b) transferring, conveying, disclosing, or communicating
in any manner Sherwin-Williams' Documents or their contents
to any person;
(c) destroying any Sherwin-Williams' Documents or any
copies of any such Documents, including electronically stored
information;
(d) destroying or disposing of any Documents, including
electronically stored information, that constitute, show, or
discuss how Motley Rice obtained, received, disclosed, used,
or communicated Sherwin-Williams Documents.
In addition, Sherwin-Williams requests that a Temporary
Restraining Order require Motley Rice to:
(e) immediately file with the Clerk of Court under seal all
originals and copies of Sherwin-Williams' Documents in the
possession, custody, or control of Motley Rice or any of its
attorneys, employees, or agents; and (f) identify all persons
(i) who have possession, custody, or control of Sherwin-
Williams' Documents, or (ii) who provided or sent those
Documents directly or indirectly to Motley Rice or any of its
attorneys, employees, or agents.
62. A temporary restraining order is necessary to preserve
Sherwin-Williams' valuable property rights in its Documents
and confidential business information.
63. Sherwin-Williams will suffer irreparable harm if
Defendants are permitted to transfer, release, possess, use,
disclose, or communicate in any manner Sherwin-Williams'
Documents and confidential business information.
64. Sherwin-Williams further requests the Court, after
appropriate hearing, to enter a preliminary and permanent
injunction granting the same relief requested in paragraph 60
(a), (b), (e) and (1) and, in addition, requiring Motley Rice
to immediately return all originals and copies of Sherwin-
Williams' Documents, all documents discussing the contents of
those Documents, and all documents reporting or discussing
confidential, proprietary or privileged communications
between Sherwin-Williams' attorneys and its directors,
officers or employees, in the possession, custody, or control
of Motley Rice or any of its attorneys, employees, or agents.
65. Pursuant to Ohio Revised Code Sec. 2737.03, Sherwin-
Williams requests this Court to issue an order requiring
Motley Rice to return all of Sherwin-Williams' Documents, all
documents discussing the contents of those Documents, and all
documents reporting or discussing confidential, proprietary
or privileged communications between Sherwin-Williams'
attorneys and its directors, officers or employees, in the
possession, custody, or control of Motley Rice or any of its
attorneys, employees, or agents.
Dated: April 3, 2009
Respectfully Submitted,
James R. Wooley,
Attorney I.D. No. 0033850.
Stephen G. Sozio,
Attorney I.D. No. 0032405.
Jones Day,
Counsel for Plaintiff, The Sherwin-Williams Company.
____
Exhibit 2
[From Legal Newsline.com, Apr. 21, 2011]
Discovery Dispute Delaying Theft Case Against Motley Rice
(By John O'Brien)
CLEVELAND (Legal Newsline)--The court battle over the
alleged theft of confidential documents by plaintiffs firm
Motley Rice is stagnant as Sherwin-Williams attempts to make
the firm respond to its discovery requests.
According to the online docket for the Cuyahoga County
Court of Common Pleas, Sherwin-Williams has filed a motion to
compel the firm to respond to written discovery deposition
requests. Motley Rice, which filed lawsuits against Sherwin-
Williams and other paint companies over lead-based paint,
allegedly obtained privileged documents stolen by the company
from a former employee.
According to a Jan. 31 order, Sherwin-Williams is filing a
supplemental brief in support of its motion to compel Motley
Rice's answers. Some of the case, which could have an impact
on the pending nomination of Motley Rice attorney Jack
McConnell to a federal judgeship in Rhode Island, has been
filed under seal.
The Wall Street Journal mentioned the case in a recent
editorial. McConnell's nomination was recently approved by an
11-7 vote of the Senate Judiciary Committee, and the matter
will now go to the full Senate.
``In response to written questions from Arizona Senator Jon
Kyle in May 2010, Mr. McConnell told the committee he wasn't
very involved in the lead paint case, was not familiar with
the documents in question and had no reason to believe he'd
be one of the defendants in the Ohio lawsuit. In deposition
testimony in September 2010, however, his memory was suddenly
refreshed,'' the editorial says.
``He was the first lawyer in his office to review the
documents, signed a brief which incorporated portions of them
and even helped write an article about the information.''
Because of his ``changing story,'' the WSJ doesn't feel he
is worthy of a spot on the bench.
McConnell and Motley Rice's Rhode Island office represented
several states and municipalities in the lead paint
litigation, which alleged paint companies had created a
public nuisance by manufacturing lead paint before its
federal ban in 1978. Public nuisance claims have no statute
of limitations, like product liability claims do. The suits
were largely unsuccessful.
Along the way, Sherwin-Williams claims, Motley Rice
obtained a PowerPoint presentation given by the company's
attorney's to
[[Page S2653]]
its board of directors. The presentation outlined litigation
costs and possible coverage by its insurers.
The company said the presentation was protected by
attorney-client privilege, but Stephen Walker met with Motley
Rice at Cleveland Hopkins Airport in 2006 to hand over the
presentation. Walker had been laid off from his job in 2005
and had formerly assisted company officers, attorneys and
executives with technical and design aspects of PowerPoint
presentations.
Motley Rice did not notify Walker that it could not receive
documents protected by privilege, the company says.
A trial was scheduled for last year but it was postponed.
No new trail date has been set.
Sens. Sheldon Whitehouse and Jack Reed recommended
McConnell to fill a vacancy in U.S. District Court in Rhode
Island last year. Whitehouse is a member of the Judiciary
Committee.
``Jack McConnell is a brilliant legal mind and an
outstanding community leader. We believe he possesses the
experience, intellect, and temperament to be a judge on the
U.S. District Court for Rhode Island,'' a statement released
by the senators said.
Whitehouse, then the attorney general, hired McConnell and
his firm Motley Rice to file lawsuit against the former
makers of lead paint in 1999.
The state Supreme Court unanimously struck down a verdict
for the plaintiffs in 2008. Sherwin-Williams says Motley Rice
produced the part of the PowerPoint presentation concerning
litigation costs when the company argued the plaintiffs
should be liable for its attorney fees.
After Whitehouse left the Attorney General's Office,
McConnell and his wife pumped $12,600 into his campaign fund.
Whitehouse took office in 2007.
Since 2001, the McConnells have given Reed $13,200,
including $8,800 for his 2008 re-election campaign.
McConnell also represented some states in their lawsuits
against the tobacco industry. His work, and the work of other
private attorneys, led to the 1998 Tobacco Master Settlement
Agreement. It has an estimated worth of $246 billion over its
first 25 years and allows for annual payments made to the
attorneys who litigated the case.
A post by Judicial Watch says McConnell will receive
between $2.5 million and $3.1 million annually until 2024 as
a result of the settlement.
Through the years, he and his wife have given more than
$600,000 to the Democratic Party and its candidates,
including Obama. Obama nominated him in March 2010.
The Institute for Legal Reform, an affiliate of the U.S.
Chamber of Commerce, is one of the groups opposing
McConnell's nomination. The ILR owns Legal Newsline.
Mr. REED. Madam President, I propose a unanimous consent agreement
that would recognize myself for 5 minutes, Senator Grassley for 5
minutes, Senator Leahy for 5 minutes, and then Senator Snowe and
Senator Landrieu for 10 minutes each.
The ACTING PRESIDENT pro tempore. Is there objection? Without
objection, it is so ordered.
Mr. REED. Madam President, this is not a stealth nomination. Mr.
McConnell has been approved and voted by the committee three separate
times. This has already lasted years. There is nothing stealthy about
it. That is an exaggeration and completely inaccurate.
Let me suggest in response to all the ethical claims or allegations,
Mr. McConnell has never had an ethics complaint alleged or filed
against him. All of these issues of so-called stolen documents were
vetted and reviewed by a court in Rhode Island by Judge Silverstein.
Judge Silverstein found no merit to their claims and, in fact,
commended Mr. McConnell for his involvement and the involvement of his
opposing counsels in this case.
Let me also try to respond to the issue of the so-called shakedown
suits. One of the participants in those shakedown suits is a current
circuit court judge, whom my colleague voted for. He is on the Third
Circuit Court of Appeals in Pennsylvania. He was a Republican Attorney
General of Pennsylvania. He worked with Mr. McConnell in a path-
breaking suit to bring tobacco companies to justice and to provide
States billions of dollars to relieve the dangers and the harm caused
by tobacco. This judge, this Federal circuit judge, testifies to the
integrity and the character of Jack McConnell. I am indeed appalled
that his integrity would be questioned in such a way.
With respect to statements before the Senate Judiciary Committee,
they have been consistent. He has said, with respect to these
documents, these allegedly stolen documents, ``I saw the documents
prior to suit being filed in Ohio.'' Again, this second suit is really
retaliation by the companies in order to express their great anger at
being sued in Rhode Island. ``I saw the documents prior to suit being
filed in Ohio. I briefly saw them when they were first faxed to our law
firm and then again a few years later, I saw them when we submitted one
page of the documents to the court in Rhode Island. I would not say I
was familiar with the documents in any fashion.'' He makes no bones
about the fact that he saw those documents. Then the debate seems to
be, the quibble seems to be not about a clear misstatement but what--
``familiar'' means. I think he was being very careful. I think if a
lawyer says: I was familiar with the documents, it means they have read
them thoroughly, they read them carefully. He couldn't say that. This
came over his desk, was quickly out of his hands and quickly in the
hands of others.
Again, all these allegations of unscrupulous behavior, unethical
behavior have never been supported by any finding. There is a case in
Ohio. It is not directly against Jack McConnell. He is not a named
party. It is his law firm. He is one of many people in the law firm.
There are suits filed against organizations, I would suspect,
frequently. Is every member of the organization involved? I suspect
not.
Finally, let me just respond to this notion of, well, this is just an
elaborate arrangement between attorneys general and Jack McConnell.
Again, the process for this suit started with a Republican attorney
general. The succeeding attorney general was, indeed, our colleague
Sheldon Whitehouse. They scrupulously had a contract that was reviewed
by the court. In fact, the court had to approve any payments to
McConnell's firm. That is the judge's call, not the attorney general's
call.
Interestingly enough, in response to this whole suggestion that there
is this cozy deal going on here--Jack McConnell is such a principled
and active Democrat that when my colleague ran for Governor of Rhode
Island, Jack McConnell handled the successful campaign of his opponent,
a woman with whom he felt more aligned in terms of her philosophy, in
terms of her commitment to issues he cared about. Senator Whitehouse
lost that race--unfortunate for the State of Rhode Island, fortunate, I
think, for the U.S. Senate.
So this suggestion, this notion that this is all a cozy deal that has
been worked out is absolutely erroneous.
The overwhelming consensus of lawyers, clergy, everyone in Rhode
Island, business leaders, is this is one of the most honest and ethical
persons you would ever want to know. Frankly, that was the ultimate
issue that prompted me to recommend him to the President of the United
States. He is a decent man of character, and I think the assault on his
character is unprecedented, as well as this assault on allowing a
district court judge to have an up-or-down vote.
Mr. President, I ask unanimous consent to have printed in the Record
letters of support for Jack McConnell's nomination to the United States
District Court for the District of Rhode Island, as well as editorials
on the McConnell nomination from the Providence Journal.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Providence Journal, May 14, 2010]
Editorial: Confirm McConnell
Providence lawyer John J. McConnell Jr., whom President
Obama has nominated to serve on the U.S. District Court for
Rhode Island, is a very able attorney. He has also
demonstrated much civic commitment and leadership as a very
generous philanthropist and board member of various nonprofit
organizations in our area.
``Jack'' McConnell's nationally known abilities have gotten
him hired to press some very big lawsuits. As with most
plaintiffs' lawyers who have practiced at the highly
competitive national level for a long time, some of these
have been very controversial. The most notable example is the
case against lead-paint makers pursued at the behest of then-
Rhode Island Atty. Gen. (and now U.S. Sen.) Sheldon
Whitehouse.
We remain convinced that that action, which was (happily,
to us) terminated by the Rhode Island Supreme Court, was
unfortunate. But some other cases Mr. McConnell was involved
in, such as against tobacco companies, we agreed with. But
then, Mr. McConnell has been a hired hand doing as capably as
he could the job he has specialized in--pursuing product-
liability and other class-action cases. Mr. McConnell, a
graduate of Brown and Case Western Reserve University Law
School, has been retained in these high-profile lawsuits
because of the ability and strenuous work ethic he has shown
time and time again.
[[Page S2654]]
Jack McConnell has had very close ties with the Democratic
Party, to whose candidates he has given a lot of money. But
many federal judges have had close political links before
being named to the bench. The judgeship-nomination process
can rarely be separated from politics in varying degrees, as
even a cursory look at the backgrounds of state and federal
judges will demonstrate.
Many over the years had been elected officials and/or
highly partisan Democrats or Republicans but have displayed
great judicial judgment, disinterestedness and independence
when they achieved the protective tenure of the bench.
But in any case, Jack McConnell, in his legal work and
community leadership, has shown that he has the legal
intelligence, character, compassion and independence to be a
distinguished jurist. Indeed, given his understanding of the
``little guy,'' Mr. McConnell could serve as something of a
healthy offset to the corporate-lawyer backgrounds and
attitudes that so many judges have. And his deep knowledge of
environmental law could be of particular importance in coming
years as such issues come to the fore more often. We hope
that the Senate confirms him.
____
[From the Providence Journal, Nov. 23, 2010]
Editorial: Still Confirm McConnell
As we have said (``Confirm McConnell,'' editorial, May 14)
Providence lawyer John (``Jack'') McConnell is highly
qualified to be a U.S. District judge. He's one of America's
most able and successful litigators, and has been a very
energetic and generous leader in philanthropies and other
parts of community life.
But Republicans in the U.S. Senate seem determined to
derail his nomination, both because they dislike Mr.
McConnell's frequent past support of Democratic candidates
and, more generally, because they want to do anything they
can to defeat President Obama, who nominated him.
To say that the current mood of Congress is partisan is an
understatement.
Yes, like many judicial nominees, Mr. McConnell has taken
partisan stands in the past. But his character and deep love
of the law suggest strongly that he will function as a
disinterested judge--one able to look at the facts of each
case in the light of a close and rigorous reading of
statutory and constitutional law and precedent. Indeed, his
legal work and community leadership suggest that he would be
a distinguished jurist.
The Senate should face down a filibuster and approve his
nomination.
____
[From the Greater Providence Chamber of Commerce]
Statement of the Greater Providence Chamber of Commerce on the
Nomination of John McConnell to the U.S. District Court
On Tuesday May 11, the United States Chamber of Commerce
urged the members of the Senate Judiciary Committee to reject
the nomination of John J. `Jack' McConnell for a judgeship on
the U.S. District Court in Rhode Island.
The Greater Providence Chamber of Commerce was not
consulted at any point in the process by the United States
Chamber of Commerce or The Institute for Legal Reform as to
our views relative to the nomination of Mr. McConnell.
The Greater Providence Chamber of Commerce has never
endorsed nor opposed nominees vying for the federal or state
judiciary. In a similar vein, we have never endorsed nor
opposed candidates seeking elective office on the federal,
state or municipal levels.
The Greater Providence Chamber of Commerce has enjoyed a
very positive working relationship with Senator Reed and
Senator Whitehouse, and we respect their right and ability to
put forth qualified nominees to the United States District
Court.
We would point out that Mr. McConnell is a well respected
member of the local community, leading important civic,
charitable and economic development institutions including
Crossroads Rhode Island, the Providence Tourism Council and
Trinity Repertory Theatre.
____
U.S. Court of Appeals
for the Third Circuit,
Pittsburgh, PA, May 11, 2010.
Hon. Patrick Leahy,
Chairman, Senate Judiciary Committee,
Washington, DC.
Dear Chairman Leahy: I write at this time to most favorably
recommend John J. McConnell who has been nominated by the
President to the U.S. District Court for the District of
Rhode Island.
I met and worked with Mr. McConnell when I was the elected
Attorney General of Pennsylvania from 1996-2003. We worked
very closely together on the national tobacco litigation
which resulted in the $206 Billion 1998 Master Settlement
Agreement. I was designated by my Attorney General colleagues
to be part of the national negotiating team and worked
closely with Mr. McConnell who was part of that team along
with his partner from Ness Motley, Joe Rice. We spent
considerable time together in New York and at meetings
elsewhere and I had the unique opportunity to assess Mr.
McConnell's legal abilities and his character, which were
both outstanding. He was one of our key people in developing
strategy, drafting documents and evaluating various
provisions of this landmark settlement.
In addition to his work with the state Attorneys General in
that case, Mr. McConnell has been involved in major
litigation in the state and federal courts in Rhode Island
and elsewhere across the country. He has been honored for his
legal skill and acumen by many organizations and has made
major contributions to the cause of justice in his state and
elsewhere.
John J. McConnell, Jr. is an outstanding nominee to serve
on the U.S. District Court for the District of Rhode Island
and I enthusiastically support his nomination. If I can
provide any additional information, please feel free to
contact me.
Very truly yours,
D. Michael Fisher.
____
Law Offices of
Jeffrey B. Pine Esq.,
Providence, RI, May 7, 2010.
Hon. Patrick Leahy,
Chairman, Senate Judiciary Committee,
Washington, DC.
Dear Senator Leahy: I have the pleasure of writing on
behalf of John (Jack) McConnell Jr. for a position on the
Federal bench. I served as Rhode Island Attorney General from
1993-1999, as a Republican.
I have known Jack for more than fifteen years, both
professionally and personally, and feel very qualified to
comment on his credentials for such a prestigious position.
Throughout his career, Jack has demonstrated the kind of
legal ability, integrity, dedication to his client, and
Willingness to fight hard for the cause of justice that makes
him a truly outstanding candidate for the Federal Judiciary.
During my tenure as Attorney General I worked closely with
Jack during the multi-state tobacco litigation initiated on a
bipartisan basis by more than 40 Attorneys General in the
mid-1990's. As Attorney General, I was directly involved in
the prosecution of our lawsuit and in the settlement
negotiations between the Attorneys General and the tobacco
industry. In that capacity I had the ability to work with and
observe Jack over an extended period of time as he
represented many states' interests, including Rhode Island;
in short, what I observed was an attorney who was smart,
ethical, diligent and absolutely dedicated to the cause of
justice on behalf of his client.
Since our interaction in the public sector I have remained
very aware of Jack's talents and abilities as an attorney. I
closely followed the lead paint litigation in Rhode Island,
where Jack led the fight on behalf of the victims of this
public health problem.
He has always fought for those less fortunate who might
otherwise not have had a voice in the judicial system. Jack
has been that effective voice for many people for many years.
I also believe that as an experienced litigator Jack has an
outstanding ability to look at legal issues from all
perspectives, without bias or predisposition, and I have no
doubt that he would be fair to all litigants who appear
before him. In my opinion he would bring the kind of
experience to the federal bench that would make him an
outstanding judge presiding at trials, and a fair and
impartial arbiter for those who come before him.
I also have the pleasure of knowing Jack outside of legal
circles, and while I consider him a friend, my comments about
him as a person and family man are not influenced by our
friendship--they are objective assessments that are very easy
to make.
Jack and his wife Sara have three children who are very
close in age to each of my three children. For most of the
past fifteen years our children have attended the same
schools at the same time. Jack is a devoted and dedicated
father who understands the importance of being there for your
family even if the demands of a busy career are always
present. All three of their children have grown up with
strong values, a sense of giving back to society, and the
same kind of commitment to others that Jack and Sara have.
Jack understands the balance that needs to be struck between
career and family, and while he has achieved great success
professionally, he retains the strong values of his own
upbringing, which he in turn imparts to his children.
In addition to his professional accomplishments and
commitment to his family, Jack has always been very active in
the community, involved in a number of civic activities, and
he has been honored for his efforts on many occasions. He
enjoys an outstanding reputation in both the legal community
and the community at large, and many organizations have
recognized his commitment to his public service.
In conclusion, there is no question in my mind that Jack
would be an honest, principled, ethical and fair judge. He
would be a credit to our state and to our judiciary. He has
earned this prestigious position for his many years of hard
work, legal experience and success as an attorney, as well as
his position in the community as a respected civic leader and
family man.
I enthusiastically support his candidacy for a position on
the federal bench.
If I can answer any questions or be of further assistance
to you, please don't hesitate to contact me.
Sincerely,
Jeffrey B. Pine.
[[Page S2655]]
____
Paster & Harpootian, Ltd.,
Counsellors at Law,
Cranston, RI, May 7, 2010.
Hon. Patrick Leahy,
Chairman, Senate Judiciary Committee,
Washington, DC.
Dear Senator Leahy: Thank you for allowing me the time to
write to you in support of my friend and colleague, John J.
McConnell, Jr., for confirmation to the United States
District Court for the District of Rhode Island. The Senate
Judiciary Committee is scheduled to hold a confirmation
hearing on his appointment on May 13, 2010.
I have known Jack McConnell for many years as a
professional colleague, fellow dedicated board member of
Trinity Repertory Company here in Rhode Island and as a very
friendly political rival.
Time and again, Jack has proven that he is a man of great
principle and integrity. While being a vigilant advocate for
his clients and the causes that he has taken up during his
professional career, Jack has always conducted himself in the
most ethical and professional manner; a trait unfortunately
sometimes not found among lawyers today.
Jack and I also know each other from being on opposites
sides of the aisle politically, including some elections as
well. As you know, elections can turn bitter and the
participants can sometimes allow themselves to get caught up
in the bitterness to the extent of it becoming personal. One
of the greatest characteristics that I admire about Jack so
much is that, despite political differences of opinion, he
never allowed those differences to become personal, or to
cloud his judgment. As a result, we have always enjoyed
spirited conversation regarding political issues, but have
remained great friends.
These characteristics lead me to unqualifiedly support
Jack's confirmation to the United States District Court for
Rhode Island.
Please do not hesitate to contact me if you believe I have
information which may be helpful to you in this process.
Thank you very much for your kind consideration.
Very truly yours,
John M. Harpootian.
____
Executive Chamber,
City of Warwick, Rhode Island,
May 7, 2010.
Hon. Jeff Sessions,
Ranking Member, Senate Judiciary Committee,
Washington, DC.
Dear Senator Sessions: I am pleased to write this letter in
support of John J. ``Jack'' McConnell, Jr., who is seeking
appointment to the United States District Court for the
District of Rhode Island.
Jack had been an acquaintance of mine for many years, but
it was not until we began serving together for two non-profit
agencies--Crossroads Rhode Island's Board of Directors and
the Institute for the Study and Practice of Non-Violence that
I got to know him well. Jack is a man of integrity, a strong
sense of community and a very fair and forward-thinking
individual.
As the Republican Mayor of Rhode Island's second largest
community, I have always firmly believed that the ability to
reach consensus among people of differing points of view is
critical to the well-being of our residents and our state as
a whole. In the time I have come to know Jack, I have
realized that he shares this same philosophy.
The District Court appointment is a critical one to ensure
that our justice system continues to provide victims and
their accused with an opportunity to be heard fairly and
impartially. I believe that Jack would be a valuable asset to
the bench and a good representative of Rhode Island in the
federal court system.
I am proud to offer this recommendation and respectfully
urge you to give him your serious consideration. Thank you
for your attention.
Sincerely,
Scott Avedisian,
Mayor.
____
Arlene Violet, Esq.,
Barrington, RI, Dec. 10, 2010.
In Re Jack McConnell.
Dear Senator Sessions: As a former Republican Attorney
General I have followed your career from the day you became
the Attorney General for your state. You have acquitted
yourself very well and have served the people of Alabama with
diligence and competence.
I am writing to you in support of the nomination of Jack
McConnell. As an attorney for close to 36 years I have known
Jack for about 20 of them. I often appeared in court and on
occasion he'd be ahead of me on the docket and I'd be on
``standby'' for my case. I observed a carefully prepared
advocate who had done his homework. He is a highly respected
attorney here because his word was his bond. His
forthrightness as an attorney along with his competence and
honesty have convinced me that he will be a fair and balanced
judge on the federal bench.
He has also been on the Board of Trustees at Roger Williams
University where I am also a trustee. He has been the voice
of reason and analysis on the tough issues facing
universities today. His judgment is finely honed and I have
no doubt that he will apply his analytical skills in service
to the highest standards of jurisprudence. I respectfully ask
you to confirm his nomination to the bench.
With every best wish for you and your family, I remain,
Sincerely yours,
Arlene Violet.
____
Supreme Court of Rhode Island,
Frank Licht Judicial Complex,
Providence, RI, Feb. 9, 2009.
Re John J. McConnell, Jr.
Hon. Jack Reed,
U.S. Senate,
Cranston, RI.
Dear Senator Reed: I have recently learned that the subject
attorney has applied to your office as a candidate for
appointment to the United States District Court for the
District of Rhode Island. It may be of assistance in
evaluating his application if those who are familiar with his
professional background write concerning his outstanding
qualifications.
I have known Mr. McConnell since 1983 when he served as a
law clerk to Justice Donald F. Shea of the Rhode Island
Supreme Court. Prior to this service, he graduated from Brown
University and Case Western Reserve University School of Law.
His talent and personality were outstanding from the earliest
stages of his career.
Since he left our court, I have observed, with great
admiration, his meteoric rise as a trial lawyer. He has been
lead counsel in a number of extremely high profile cases in
both State and Federal Courts. His work in the negotiation of
the master settlement agreement with the tobacco industry on
behalf of forty-six states is legendary in the annals of
litigation. His achievements in asbestos litigation are
equally distinguished and involved some of the most complex
cases on record. He has been recognized by his peers with
numerous awards for service to the profession as well as
designation as one of the best lawyers in America. The Rhode
Island Bar Association has honored him for his service to the
poor and disadvantaged.
His compassion and charitable contributions have benefited
agencies in the field of health, education and service to the
poor and homeless. His service as a director of Crossroads
Rhode Island is only one example of his reaching out to the
needy and dispossessed.
He has been active in civic affairs in the City of
Providence, the State of Rhode Island as well as on the
national level. He is a splendid example of a model citizen
whose advice and counsel are sought after and freely given.
His great experience as a litigator has given him
exceptional knowledge of the intracies of the rules of
practice and procedure in the federal courts. He would be
superbly qualified to preside as a federal judge over the
most challenging and complex cases. He is a man of keen
intelligence and impeccable integrity. He would be a splendid
addition to the distinguished bench of the United States
District Court of Rhode Island.
Sincerely yours,
Joseph R. Weisberger,
Chief Justice (Ret.).
The ACTING PRESIDENT pro tempore. The Senator from Iowa.
Mr. GRASSLEY. Madam President, I rise to oppose the cloture motion on
Jack McConnell, who has been nominated to be U.S. district judge for
Rhode Island.
In the first few months that I have been ranking member of the
Judiciary Committee, I have worked in good faith to move forward with
consensus nominees. We have taken positive action on 68 percent of the
judicial nominees submitted in this Congress. Despite my efforts,
friends on the other side of the aisle and the President's top lawyer
continue to claim we are not moving fast enough. There are additional
consensus nominees the Senate could turn to. We could confirm
additional district judge vacancies, as we have been doing. But rather
than continuing to move forward with consensus nominees, the majority
leader chose to throw up a detour and proceed to one of the President's
most controversial nominees, Mr. McConnell. It seems no good deed goes
unpunished.
Before turning to Mr. McConnell's record, I want to say a few words
about the use of extended debate in considering judicial nominations.
My friends on the other side have made some comments on this issue that
are pretty difficult to understand given the record there.
First, with respect to district court nominees, and contrary to what
my colleagues have suggested, there have been in the past filibusters
of district court nominees. Most recently, the Democrats successfully
filibustered a district court nominee in 1999, Mr. Brian Stewart by a
vote of 55 to 44. Judge Stewart was ultimately confirmed.
But the fact of the matter is that district court nominees have been
filibustered, and it was Democrats who first took the step. On circuit
court nominees, the record is far worse. I would note that I do not
necessarily like to
[[Page S2656]]
vote against cloture on judicial nominees. I do not take these votes
lightly. But these are the rules that the other side instituted.
Under the precedent and threshold that the Democrats first
established, Members must decide whether they believe they should move
forward to a vote on confirmation of this nominee. By any fair measure,
Mr. McConnell qualifies as a very extraordinary circumstances. I have
reached this conclusion based on a number of factors. I want to discuss
a couple of these reasons now.
I am particularly troubled by the way Mr. McConnell handled himself
before the committee. I believe Mr. McConnell at best misled the
committee when he testified about his familiarity with a set of stolen
legal documents that his law firm obtained during the lead paint
litigation. When asked about these documents during his committee
hearing, he testified that he saw the documents ``briefly'' but that he
was not familiar with them ``in any fashion.''
But several months after his hearing, Mr. McConnell was deposed under
oath about those same documents. In his sworn deposition, Mr. McConnell
testified that he was the first lawyer to receive the documents. He
drafted a newspaper editorial citing information that came directly
from those documents. He testified that he reviewed and signed a legal
brief that incorporated the stolen documents. And even though he told
the committee that he was not familiar with the documents ``in any
fashion,'' during his deposition he testified that he did not see any
indication on the documents that they were confidential or secret.
How could he know the documents were not confidential or secret if,
as he testified before the committee, he was not familiar with them
``in any fashion?''
Given these facts, it is hard to square Mr. McConnell's testimony
before the committee with his sworn deposition testimony a couple of
months later.
The litigation over these documents remains ongoing. We do not know
how it will conclude. We do not know whether Mr. McConnell and his law
firm will be held liable for the theft of these documents. But what is
the Senate going to do if we confirm this individual but at some later
date he or his law firm are found liable for theft? At that point, it
will be too late. Members will not be able to reconsider their votes.
The Wall Street Journal recently opined that Mr. McConnell's
``changing story about his lead paint advocacy is enough by itself to
disqualify him from the bench.'' I could not agree more.
There are other aspects of Mr. McConnell's record that concern me a
great deal, which I will outline later. I will just conclude by saying
this. I have supported the overwhelming majority of President Obama's
judicial nominees. If it were up to me, I would not have nominated many
of those individuals. But I supported them nonetheless. Mr. McConnell
is in an entirely different category. I believe that he misled the
committee when he testified before us. For that reason alone, I do not
think he should be rewarded with a lifetime appointment to the Federal
bench. But even if I did not have that concern, I could not support
this nominee.
I yield back the time that was allotted to me.
The ACTING PRESIDENT pro tempore. The Senator from Vermont.
Mr. LEAHY. Madam President, I hope that all Senators have had a
chance to consider the remarks of the Senators from Rhode Island on
this nomination. I do not think anyone could listen to the remarks of
the distinguished senior Senator from Rhode Island yesterday and today
and come away doing anything other than voting for cloture. Likewise,
Senator Whitehouse, who spoke this morning and has shepherded this
nomination through the Senate Judiciary Committee, has done an
outstanding job in his statement not only this week but throughout the
course of this nomination, which now extends into a second year. They
have set forth not only the merits of this nominee, but also what is at
stake for the Senate and the country if Senate Republicans take the
virtually unprecedented action of filibustering a Federal district
court nominee.
Jack McConnell has bipartisan support from those in his home State.
Leading Republican figures in Rhode Island have endorsed his
nomination. They include First Circuit Court of Appeals Judge Bruce
Selya; Warwick Mayor Scott Avedisian; Rhode Island Chief Justice Joseph
Weisberger; former Rhode Island Attorneys General Jeffrey Pine and
Arlene Violet; former Director of the Rhode Island Department of
Business Barry Hittner; former Rhode Island Republican Party Vice-Chair
John M. Harpootian; and Third Circuit Court of Appeals Judge Michael
Fisher.
With more than 25 years of experience as an outstanding litigator in
private practice, Mr. McConnell has been endorsed by the Providence
Journal, which wrote:
In his legal work and community leadership [he] has shown
that he has the legal intelligence, character, compassion,
and independence to be a distinguished jurist.
That is what Senator Reed talked about, the nominee's qualifications,
experience, temperament, integrity, and character.
Just a few years ago, Republican Senators argued that filibusters of
judicial nominees were unconstitutional, and that every nominee was
entitled to an up-or-down vote. Of course, they said that with a
Republican President. Now suddenly things have changed. At that time, a
number of Republican Senators joined in a bipartisan memorandum of
understanding to head off the ``nuclear option'' and agreed that
nominees should only be filibustered under ``extraordinary
circumstances.'' No one could seriously argue that this Federal
district court nomination presents anything approaching ``extraordinary
circumstances'' that might justify a filibuster to prevent a vote on
the nomination.
It would be unfortunate if Senators were to knuckle under to the
demand for a filibuster by special interest business lobbies. Mr.
McConnell should not be filibustered for being a good lawyer, yet that
is at the root of any opposition. The corporate lobby opposes him
because he successfully represented plaintiffs, including the State of
Rhode Island itself, in lawsuits against lead paint manufacturers. Some
here in the Senate may support the lead paint industry. That is their
right. I support the right of this attorney to bring legal claims based
on the poisoning of children by the lead in paint and to hold those
responsible accountable. You can support the lead paint manufacturers
or you can support the children who were poisoned. I will stand with
the children. That is what Mr. McConnell did. That is why the business
lobbies oppose him. No Senator should oppose Mr. McConnell for doing
what lawyers do and vigorously representing his clients in lawsuits.
That is not a justification to filibuster this nomination. Mr.
McConnell has testified and demonstrated that he understands the
differences between the role of the judge and the role of an advocate
for one of the parties.
With judicial vacancies at crisis levels, affecting the ability of
courts to provide justice to Americans around the country, we should be
debating and voting on each of the 13 judicial nominations reported
favorably by the Judiciary Committee and pending on the Senate's
Executive Calendar. No one should be playing partisan games and
obstructing while vacancies remain above 90 in the Federal courts
around the country. With one out of every nine Federal judgeships still
vacant, and judicial vacancies around the country at 93, there is
serious work to be done.
I have made it a practice as the chairman of the Senate Judiciary
Committee to respect the views of home State Senators from both sides
of the aisle. I have encouraged President Obama to work with home State
Senators from both sides of the aisle. Republican Senators used to
defer to home State Senators on Federal district court nominations.
That was their justification for voting both for or against nominations
during the last several years. But if Senate Republicans abandon that
deference and engage in a filibuster of this Federal district court
nominee, and ignore the strongly held views of home State Senators,
then they will be undercutting all those understandings and practices.
When home State Senators as widely respected and as serious about the
rule of law as the Senators from Rhode Island endorse a Federal
district court
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nominee, that nominee should not be filibustered. They never have been.
I have been here 37 years. We used to treat each other, as well as such
nominees willing to serve on the bench, with respect. I hope that today
the Senate will return to that tradition. I trust that Senate
Republicans will not go down the dark path on which they are headed.
Senator Reed spoke yesterday of the precipice on which the Senate is
poised. Senator Whitehouse, Senator Feinstein, and Senator Schumer have
spoken eloquently on this issue as well. I urge all Senators, Senators
on both sides of the aisle, to do the right thing to honor our
constitutional role and traditions, and to vote in favor of ending this
filibuster so that the nomination of Jack McConnell can then be
considered on the merits and voted up or down.
I reserve the balance of my time and I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Maine.
____________________