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Physicians Health, Inc. v. Allscripts Health Solutions, Inc.

United States District Court, N.D. Illinois, Eastern Division

October 18, 2017

PHYSICIANS HEALTHSOURCE, INC., an Ohio corporation, individually and as the representative of a class of similarly-situated persons, Plaintiff,


          Jeffrey Cole Magistrate Judge


         More than two months after the Opinion denying class certification was issued in Physicians Healthsource v. Allscripts, F.3d, 2017 WL 2406173 (N.D.Ill. 2017)[Dkt. #303], the law firm of Bock, Hatch, Lewis & Oppenheim (“BHLO” or “the Firm”) filed on its own behalf what it has captioned a “Motion to Clarify or Modify Order Denying Motion for Class Certification.” [Dkt. #307]. Titles, of course, are not controlling; substance is. Healthcare Industry Liability Insurance Program v. Momence Meadows Nursing Center, Inc., 566 F.3d 689 (7th Cir. 2009); Smith v. Potter, 513 F.3d 781, 783 (7th Cir. 2008). In effect, BHLO's Motion is a motion to reconsider, which are generally not favored and are judged under restrictive criteria. Caissa Nationale de Credit Agricole v. CBI Indus., Ins., 90 F.3d 1264, 1270 (7th Cir.1996); New York v. Parenteau, 382 Fed.Appx. 49, 50 (2d Cir. 2010). Even a party “may not seek a do-over by raising it for the first time on reconsideration.” Perfect 10, Inc. v. Giganews, Inc. 2015 WL 1746406, at *9 (C.D. Cal. 2015).[1]Since the motion is brought not by a party, but by its former lawyers, the prohibition applies with perhaps even greater force than in the usual case. It certainly does not apply with less. In any event, there is a good deal of merit to the Defendants' argument that “[a]t bottom, what BHLO is actually asking this Court to do is reconsider its inadequacy finding as to BHLO - in other words, BHLO seeks reversal of this Court's decision denying class certification as to itself.” [Dkt. #324 at 11].


         Regardless of the technical name ascribed to BHLO's Motion, BHLO contends that certain aspects of the Opinion regarding the Firm were mistaken and should be corrected to preserve the Firm's reputation. It is claimed that BHLO did not participate in the discovery misconduct discussed in the Defendants' earlier class action brief [see Dkt. #324 at 11; #215 at 10-11, 16] and in the Opinion, and that its conduct in prior cases has not been criticized by the Seventh Circuit, contrary to what was stated in footnote 18 of the Opinion. However, no reason is advanced why the Firm waited so long after the Opinion - to say nothing of the much earlier criticisms leveled against the Firm by the Defendants [see Dkt. #324, ¶¶10-11] - to bring its now claimed non-involvement to the court's or the Defendants' attention. Phrased differently, no reason is given by BHLO why it should be relieved of the consequences that it was responsible for creating and allowing to exist for so long.

         The Defendants moved to strike BHLO's motion. [Dkt. #317]. I denied that motion on the ground that motions to strike are generally (although not always) disfavored. [Dkt. #319]. However, I held that the relief sought by the Defendants in their motion might nonetheless be available should it be otherwise proper. [Dkt. #319]. The Defendants were given leave to file a substantive brief in opposition to BHLO's Motion, and BHLO was ordered to file a Declaration in support of the Motion's factually unsupported assertion that the Firm had no involvement in the discovery matters in this case. [Dkt. #319, 320 ¶9].

         The Defendants filed their Opposition to BHLO's Motion on August 30, 2017. [Dkt. #324]. It is, to say the least, quite vigorous and denunciatory. [Dkt. #324]. It takes the most serious issue with the sudden and previously unadvanced claim of non-involvement by BHLO and has characterized BHLO's “argument [a]s the very epitome of gamesmanship” - a “cynical attempt to undo this Court's class certification ruling under the guise of seeking correction of ‘mistakes' in the [Opinion]....” [Dkt. #324 at 1-2]. Indeed, the Defendants insist that “BHLO seeks reversal of this court's decision denying class certification as to itself” and that the “true goal” behind the Motion is for this court to find BHLO adequate class counsel (Dkt. #324 at 11)


         First things first. BHLO'S Motion violates Local Rule 5.6:

No pleading, motion [except for a motion to intervene], or other document shall be filed in any case by any person who is not a party thereto, unless approved by the court. Absent such an order, the clerk shall not accept any document tendered by a person who is not a party. Should any such document be accepted inadvertently or by mistake in the absence of such an order, it may be stricken by the court on its own motion and without notice.

N.D.Ill. Local Rule 5.6. (Emphasis supplied).[2]

         BHLO and its lawyers are not parties in this case. In fact, BHLO has been terminated as counsel for the plaintiff over the filing of its Motion To Clarify Or Modify. [Dkt. #307, at 2; Dkt. #317, at 1-2; Dkt. #320]. Nonetheless, BHLO has not withdrawn and has not sought judicial approval to allow the filing of the Motion. Nor has it sought leave to intervene as a non-party under Fed.R.Civ.P. 24. Usually, it is the client who complains of his lawyer's error and seeks often (without success) to avoid having the consequences of that error being visited upon him. Here, it is the lawyers who seek to avoid the consequences of their own behavior and to capitalize on that avoidance for their own highly personal benefit. What a strange and curious and unacceptable inversion. In another context, the Seventh Circuit has held that a lawyer's attempt to vindicate his injured feelings and claimed reputation does not accord standing to proceed as BHLO has attempted to do here. Seymour v. Hug, 45 F.2d 926, 929 (7th Cir. 2007).[3] Compare Johnson v. U.S. Office of Pers. Mgmt., 783 F.3d 655, 669 (7th Cir. 2015)(political figure's assertion, without more, that the receipt of a benefit will hurt his or her reputation or electoral prospects is insufficient to establish standing).

         BHLO characterizes its former client's demand that it withdraw from the case - (which is still pending) - as an attempt to interfere with the court's jurisdiction and with the court's Order that BHLO supplement its Motion with some evidence. [Dkt. #320, at ¶ 4]. This position is unpersuasive.[4]


         BHLO finds fault with the Opinion's “generic references” to the plaintiff's' lawyers and law firms, especially given that the Defendants charged and the Opinion held there was some discovery misconduct on the plaintiff's side in this case - misconduct with which BHLO now quite belatedly insists it had nothing to do. Indeed, the Firm, now for the first time, claims that no one from BHLO was involved in any discovery responses, and no one from the Firm ever even communicated with the plaintiff or its principals, Drs. Ruch and Elwert. [Dkt. #307, at 3]. (We put aside the question of what role then BHLO played in the case, given the obvious importance of discussions with the client and knowledge of the client's business - to say nothing of the critical role discovery plays not only in modern litigation, but especially in cases like this. Indeed, pre-trial proceedings have become more costly and important than trials themselves. A.H. Robins Co. v. Piccinin, 788 F.2d 994, 1013 (4th Cir. 1986); Bankdirect Capital Fin., LLC v. Capital Premium Fin., Inc., 2017 WL 4005918, at *1 (N.D. Ill. 2017).[5]

         Documents the Plaintiff filed in this case repeatedly lumped together BHLO and the Wanca firm, and thus any “lump[ing] ...together” of the law firms, [Dkt. # 307, at 2-3], was the result of the acts or omissions of BHLO, itself - the very point I made to BHLO on September 5, 2017.[6] For example, the Complaint bears Mr. Wanca's electronic signature and his Firm's name and phone number and address under that. Immediately below was the name of Phillip Bock and his Firm, Bock & Hatch LLC, and its address and phone number. [Dkt. #324 at 11]. Mr. Wanca's signature appears on the last page of the discovery responses cited in the Opinion. [Dkt. #214-7 at 6-7; Dkt. #214-8 at 9; Dkt. #324 at 11]. That Mr. Bock's signature did not also appear is not unusual; nor is its absence even discussed by the Motion or Mr. Bock's Declaration. Since Rule 11 only requires one signature on a document, the absence of Mr. Bock's signature would have signaled nothing to an informed reader. In any event, below Mr. Wanca's signature and to the left appears Mr. Wanca's typed name and that of his firm and its address and phone number. To the right of that is Mr. Bock's name and that of his firm and its address and phone number. No other lawyer for the Plaintiff is shown on the Responses.

         Finally, the Defendants assert, without any denial from Mr. Bock or anyone at his Firm, that they produced to BHLO written discovery and documents containing confidential information that BHLO now wishes to exploit. [Dkt. #324 at 4-5, 11].

         At no time did the Plaintiff, Mr. Wanca, or BHLO attempt to differentiate among the firms on the Complaint or on the discovery responses as to which was responsible for or participated in a given filing. And no one from the Firm instructed Mr. Wanca not to use the BHLO name or that of Mr. Bock on filings and responses and requests that Mr. Bock now asserts the Firm had no involvement in or knowledge of. Thus, BHLO continued throughout this litigation to allow the lumping together of its name with that of the Wanca Firm, thus, in essence, claiming responsibility for each of the filings. Indeed, in the Plaintiff's 30-page motion to certify a class, a scant five sentences were dedicated to adequacy of counsel, and, significantly, no distinction was made between BHLO and Mr. Wanca and his colleagues. [Dkt. #204-1]. In light of what occurred and Mr. Bock's admission that BHLO had an invovlement in the review of the class action certification and summary judgment briefing on behalf of the Plaintiff, [Dkt. #324 at 11], BHLO cannot realistically contend that it did not know or think its name would not be on discovery requests and responses and that the recipients - and the court (if there were a problem) - would not reasonably conclude that they were the work products of the lawyers whose names appeared or that they were not participants in what was actively going on.[7]

         Certainly BHLO could not reasonably conclude that its opponents would not think that it was not actively in the case as Mr. Bock now tersely claims in his abbreviated Declaration. If BHLO was as removed from the case as they now claim, they should not (and would not) have allowed the Firm's name to be linked with that of the Wanca Firm and to appear with regularity on discovery and other materials. At a minimum, if the Firm did not want to be associated with those requests, it should and would have taken effective steps to ensure that it was not. It didn't.

         When the record is considered in its entirety, the sudden claim that BHLO had no knowledge of or involvement in either the discovery in this case or knowledge of the plaintiff's business is implausible, and implausibility is a factor to be considered in making credibility determinations. See, Tijani v. Holder, 628 F.3d 1071, 1089 (9th Cir.2010); Capo v. Ashcroft, 119 Fed.Appx. 823, 826 (7thCir.2005); Day v. Ravellette, 10 Fed.Appx.374, 377 (7thCir.2001); Emerson v. Colvin, 2014 WL 4960779, 10 (E.D.Cal.2014); Pinpoint, Inc. v. Amazon.Com, Inc., 347 F.Supp.2d 579, 583 (N.D.Ill.2004)(Posner, J.)(sitting by designation); Tellabs Operations, Inc. v. Fujitsu Ltd., 882 F.Supp.2d 1053, 1062 n. 12 (N.D.Ill.2012). So is prolonged silence. Cf. United States v. Curescu, 674 F.3d 735, 740 (7th Cir. 2012)(“Silence like obliquity can be eloquent”); Muhammad v. Oliver, 547 F.3d 874, 877 (7th Cir. 2008)(“[I]f there is an executed standstill agreement, one would expect an allegation to that effect. There is none. The complaint's silence is deafening.”).

         When evaluating whether the failure to make a statement (of some sort) may be probative of a material fact, the underlying test is: would it have been natural for the person to make the assertion in question? Jenkins v. Anderson, 447 U.S. 231, 248-249 (1980); United States v. Hale, 422 U.S. 171, 176 (1975).[8] Once the Defendants had accused BHLO of participation in wrongdoing as they did, [see the discussion at Dkt. #324 at 11], [9] BHLO would have - or certainly should have - reacted to the accusation by at least pointing out that it had no involvement in the claimed wrongdoing. It would not have or should not have waited for the later Opinion. And certainly BHLO was not shy. But still it did nothing.

         We are now told that BHLO played no “material role” - whatever that may mean - in the “preparation, or in the many last-minute A filings [whatever that may mean] criticized in the Order.” [Dkt. #307 at 4-5](Emphasis supplied). And, it is conceded by BHLO that A shared the Plaintiff's “submissions” on “class certification and summary judgment” “with BHLO before filing....” [Dkt. #307 at 4]. Yet, BHLO was perfectly content to have the Defendants' responses filed as they were and to continue to create and allow to be created the appearances under which the court and the Defendants were operating. Even if the current ...

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