[Congressional Record (Bound Edition), Volume 157 (2011), Part 5]
[Senate]
[Pages 6562-6570]
[From the U.S. 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

[[Page 6563]]

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.
  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

[[Page 6564]]

     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 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

[[Page 6565]]

     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 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

[[Page 6566]]

     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 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,

[[Page 6567]]

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.
       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,

[[Page 6568]]

     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.
                                  ____

                                        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

[[Page 6569]]

     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 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:


[[Page 6570]]

       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 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.

                          ____________________