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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Civil No. 11-01754(JLL)

- - - - - - - - - - - - - - - -X

:

KIMBERLEE WILLIAMS, et al., : TRANSCRIPT OF

: PROCEEDINGS

Plaintiffs, :

: September 5, 2017

-vs- :

:

BASF CATALYSTS, LLC, et al., :

:

Defendants. : Newark, New Jersey

:

- - - - - - - - - - - - - - - -X

B E F O R E:

CHIEF JUDGE JOSE L. LINARES,

UNITED STATES DISTRICT COURT JUDGE

-andMAGISTRATE JUDGE JOSEPH A. DICKSON,

UNITED STATES DISTRICT MAGISTRATE JUDGE

Pursuant to Section 753 Title 28 United States Code, the

following transcript is certified to be an accurate record

as taken stenographically in the above-entitled proceedings.

s/Phyllis T. Lewis, CCR, CRCR

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

PHYLLIS T. LEWIS, C.C.R., C.R.C.R.

Official Court Reporter - United States District Court

Newark, New Jersey 07101

(732) 735-4522

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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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A P P E A R A N C E S:

COHEN PLACITELLA ROTH, PC

127 Maple Avenue

Red Bank, New Jersey 07701

732-747-9004

BY: CHRISTOPHER M. PLACITELLA, ESQ.

MICHAEL COREN, ESQ.

-andFOX ROTHSCHILD, LLP

997 Lenox Drive

Lawrenceville, New Jersey 08648

609-348-4515

BY: JEFFREY M. POLLOCK, ESQ.

Attorneys for Plaintiffs.

ROBINSON MILLER, LLC

One Newark Center

Newark, New Jersey 07102

973-690-5400

BY: JUSTIN T. QUINN, ESQ.

-andKIRKLAND & ELLIS, LLP

601 Lexington Avenue

New York, New York 10022

212-446-4930

BY: EUGENE F. ASSAF, ESQ.

DANIEL A. BRESS, ESQ.

PETER A. FARRELL, ESQ.

Attorneys for Defendant,

BASF Catalysts, LLC.

CONNELL FOLEY, LLP

85 Livingston Avenue

Roseland, New Jersey 07068

973-535-0500

BY: ROBERT E. RYAN, ESQ.

-andWILLIAMS & CONNOLLY, LLP

725 12th Street NW

Washington, DC 20005

BY: DAVID BLATT, ESQ.

Attorneys for Defendant,

Cahill, Gordon & Reindel, LLP

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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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A P P E A R A N C E S (Continued):

HEROLD LAW

25 Independence Boulevard

Warren, New Jersey 07058

908-647-1022

BY: ERIC TUNIS, ESQ.

Attorneys for Defendant,

Thomas D. Halket.

MARINO, TORTORELLA & BOYLE, PC

437 Southern Boulevard

Chatham, New Jersey 07928

973-824-9300

BY: JOHN A. BOYLE, ESQ.

KEVIN H. MARINO, ESQ.

Attorneys for Defendant,

Arthur A. Dornbusch, II

ROBERT SOKOLOVE, ESQ.

Third-party Defendant,

Alan Rothenberg.

MC CARTER & ENGLISH, LLP

100 Mulberry Street

Newark, New Jesey 07102

973-622-4444

BY: DAVID R. KOTT, ESQ.

Attorneys for Third-Party Witness,

Johnson & Johnson.

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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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THE CLERK: All rise.

THE COURT: You may be seated.

All right. Counsel, this is in the matter of,

let's get the whole correct docket number, Docket No.

2:11-01754. Your appearances for the record, please.

MR. POLLOCK: Jeff Pollock, Fox Rothschild on

behalf of the plaintiffs.

THE COURT: Okay. I didn't say the name of the

case. Kimberlee Williams, et al., versus BASF Catalysts,

LLC, et al., and the docket number, as I indicated is,

11-cv-01754. Okay.

So who do you represent, the plaintiffs?

MR. POLLOCK: Jeff Pollock from Fox Rothschild on

behalf of plaintiffs with my co-counsel from Cohen,

Placitella & Roth.

MR. PLACITELLA: Good morning, your Honor.

THE COURT: Good morning.

MR. SOKOLOVE: Good morning, your Honor.

I'm Robert Sokolove. I represent the third-party

defendant, Alan Rothenberg.

THE COURT: All right.

MR. ASSAF: Good morning, your Honor.

John Assaf from Kirkland & Ellis for BASF.

THE COURT: Good morning.

MR. FARRELL: Good morning, your Honor.

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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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Peter Farrell of Kirkland & Ellis for BASF.

MR. BRESS: Good morning, your Honor.

Daniel Bress from Kirkland & Ellis for BASF.

MR. QUINN: Justin Quinn from Robinson Miller on

behalf of BASF.

Good afternoon.

MR. RYAN: Robert E. Ryan, Connell Foley, for the

Cahill defendants.

MR. BLATT: Good afternoon, your Honor.

David Blatt from Williams & Connolly for the Cahill

defendants.

MR. BOYLE: Good afternoon, your Honor.

John Boyle from Marino, Tortorella & Boyle on

behalf of defendant Arthur Dornbusch.

MR. TUNIS: Good afternoon, your Honor.

Eric Tunis on behalf of defendant Thomas Halket.

THE COURT: All right.

Good afternoon to all of you.

I had scheduled this hearing for the limited

purpose of deciding what, if anything, the Court is going to

do going forward with regard to my appointment of Past

Justice Rivera-Soto in connection with this matter as a

Special Master.

The Court has already decided that a special master

is necessary in this litigation. I am not revisiting the

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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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issue of whether a special master is necessary, so that ship

has sailed. I have done my analysis in the opinion that I

issued. There are a myriad of reasons for which a special

master is appropriate here, the complexity of the issues

involving the discovery and how that needs to be parceled

out in light of concerns regarding privilege, et cetera, on

the underlying litigations, the fact that the courts,

especially this Court, is down judges. We have vacancies.

We have a lot of cases that we are stretched out in trying

to do all of this work, and this is a complex case important

to everybody here, and the Court has already made the

determination that the special master is necessary, so that,

as I said, is not an issue for today.

I also received letters that were filed over the

weekend regarding discovery issues. I am not going to deal

with that today myself. I do have Magistrate Judge Dickson

here seated to my left, and he will approach that with you,

but those letters are testament to why a special master is

necessary in this case to deal with all of these issues, and

I need to move the ball forward here. We are not going to

continue to, you know, argue over special masters.

Now, I had asked Justice Rivera-Soto to be here.

He is here, right?

MR. RIVERA-SOTO: Yes.

THE COURT: He is here. I want you to come up,

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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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because I want you to address preliminarily some of the

issues before I hear from the parties on this matter.

MR. RIVERA-SOTO: Should I come to the podium, your

Honor?

THE COURT: Come up to the podium, please.

MR. RIVERA-SOTO: Good morning.

THE COURT: Good morning.

So we are here today, as you know, because you have

been privy to the letters that have been submitted to this

Court. After I appointed you in connection with this

matter, I received letters objecting to you continuing to be

the special master because of some alleged conflicts, one

dealing with the fact that you used to be at Fox Rothschild

several years ago, and another one dealing with the fact

that the Williams Connolly law firm was representing Ballard

Spahr in connection with what I am going to describe, and I

realize it was more than that, but a collection matter

involving some defendant, Symphony, something or other --

MR. RIVERA-SOTO: Symphony Health Solutions, a

prior --

THE COURT: -- Symphony Health Solutions.

MR. RIVERA-SOTO: -- client of Ballard Spahr.

THE COURT: Okay.

First, I want to get some input from you, so that

we have a clear record in the event that anybody wants to

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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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review this record in the future.

First of all, let's talk about the first objection,

which deals with your prior involvement with Fox Rothschild.

Can we talk about that a little bit, please?

MR. RIVERA-SOTO: Sure. Certainly, your Honor.

I actually was at Fox Rothschild twice. I was an

associate at Fox Rothschild from 1980 to 1983, and then 16

years later in 1999, I returned to Fox Rothschild as a

partner.

I was a partner at Fox Rothschild until August 31,

2004. The next day I was sworn in as a Justice of the

Supreme Court of New Jersey.

When I left the bench in 2011, at the end of my

term, I went to Ballard Spahr. I did not go back to Fox

Rothschild, so it has been literally 13 years and five days

since I was associated with Fox Rothschild.

When I left Fox Rothschild in 2004, I was paid out

my complete capital contributions in one shot.

THE COURT: That was my next question.

So is there any lingering or remaining economic

obligations from either side arising out of your partnership

there?

MR. RIVERA-SOTO: No, not at all. In fact, the

partnership agreement provides for a scheduled payout of

contributions. They actually repaid my full contribution in

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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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one lump sum because I was going on the bench, so that

relationship ended August 31, 2004.

THE COURT: At your present law firm, do you have

cases where you are adverse to your past law firm?

MR. RIVERA-SOTO: I have to assume we do, that we

have cases that we are representing opposite sides on, but I

don't know of any off the top of my head. They are a large

law firm, and we are a large law firm, so....

THE COURT: So any continuing obligation whatsoever

regarding Fox Rothschild?

MR. RIVERA-SOTO: No, and there hasn't been one for

over 13 years.

THE COURT: Any lingering feelings about bias for

or against Fox Rothschild in any way, shape or form?

MR. RIVERA-SOTO: No different than other of the

lawyers who I know throughout the state, some of whom I

like, some of whom I don't.

(Laughter)

THE COURT: Okay.

Anything else that you want to tell me about Fox

Rothschild?

MR. RIVERA-SOTO: No, your Honor.

I think that the notion that I would be somehow

prejudiced because Fox Rothschild appears representing a

party in this lawsuit is a bit absurd.

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THE COURT: Well, it does seem to have been a long

time ago, and if that was the test, there would be many

judges here who couldn't preside over a lot of cases because

we all came from law firms at some point, and at some point

that potential conflict or appearance of impropriety just

dwindles away and doesn't exist anymore.

Let's just continue here because I want to make a

fair and adequate decision for all of the parties here.

This is an important litigation. It is important for me

that I have a special master that's involved in the case

with all of the powers that I am giving that special master

to be able to move the ball forward here in a fair and

adequate manner, so that is why I am having this hearing

today, and then I'm going to make a call. So that is why I

asked you to come here. I wanted to hear from you. I

didn't want to just have letters.

Let's go to the next step, which is this issue of

this representation. That does concern the Court. It does

seriously concern the Court if, in fact, there is an ongoing

representation by Williams & Connolly because even though I

am told -- by the way, did you participate in that

litigation at all, in the Symphony litigation?

MR. RIVERA-SOTO: Not at all.

THE COURT: Were you involved either as an attorney

or a witness, a co-counsel, anything at all in that

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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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litigation?

MR. RIVERA-SOTO: None whatsoever. The only thing

I knew about that litigation is what has appeared in the

popular press. I am like a member of the public in that

regard.

THE COURT: Okay.

Have you ever consulted with any of the people from

Williams & Connolly regarding that litigation?

MR. RIVERA-SOTO: No.

THE COURT: All right.

What is the status of that litigation now?

MR. RIVERA-SOTO: Your Honor, I was informed this

morning by the general counsel of Ballard Spahr that that

case has been settled, and that the engagement of Williams &

Connolly has been terminated.

THE COURT: So the case is over.

MR. RIVERA-SOTO: The case is over.

THE COURT: Okay. Well, that changes the analysis

a little bit.

So Williams & Connolly is not involved as an

attorney for your law firm?

MR. RIVERA-SOTO: As I was advised by our general

counsel, Williams & Connolly is no longer engaged

representing Ballard Spahr.

THE COURT: And the underlying litigation has been

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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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settled?

MR. RIVERA-SOTO: And the underlying litigation has

been settled.

THE COURT: Okay.

MR. RIVERA-SOTO: I should note, your Honor, that

during the pendency of that representation, Williams &

Connolly did appear adverse to Ballard Spahr, adverse

lawyers, in an action in the U.S. District Court in the

District of Columbia.

THE COURT: Did they raise the issue of the

conflict there?

MR. RIVERA-SOTO: No.

THE COURT: Were they representing your firm at

that time?

MR. RIVERA-SOTO: Yes.

THE COURT: In the Symphony case?

MR. RIVERA-SOTO: Yes.

THE COURT: How long did that litigation, the other

litigation go on?

MR. RIVERA-SOTO: It went on for a couple of years.

I can give you the docket number.

THE COURT: Please give me that docket number.

MR. RIVERA-SOTO: It will just take a moment.

MR. POLLOCK: Would you like it, Justice? I have

it here.

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MR. RIVERA-SOTO: I have it.

The case is Howard Town Center Developer, LLC

versus Howard University, and then there is a third-party

defendant, Castle Rock Partners, LLC. The docket number is

13-1075. It was before Chief Judge Beryl, B-e-r-y-l,

Howell, H-o-w-e-l-l. It was decided after trial by an order

and opinion dated --

THE COURT: This is while they were representing

you in the Symphony case?

MR. RIVERA-SOTO: Correct. This was --

THE COURT: And when was it decided?

MR. RIVERA-SOTO: August 14th.

THE COURT: What year?

MR. RIVERA-SOTO: This year.

THE COURT: Okay.

The last question, the same question I asked you

about Fox Rothschild: Do you have any bias for or against

the Williams & Connolly firm by virtue of the fact that they

had represented your firm in connection with this other

litigation?

MR. RIVERA-SOTO: None whatsoever. My only

knowledge of Williams & Connolly is what one acquires, or at

least in my case, over 40 years of practicing law, and I

would think that they are -- if they are up to their

reputation, that they are very fine lawyers, and it would be

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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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my pleasure to work with them.

THE COURT: Thank you very much.

Have a seat.

MR. RIVERA-SOTO: Thank you.

THE COURT: Counsel, who is going to speak?

Is it going to be you, Mr. Assaf?

MR. ASSAF: I think Mr. Ryan is going to say

something first, and then if you allow me, I would then

address the argument, your Honor.

THE COURT: Well, I am a little concerned about two

issues.

MR. ASSAF: Sure.

THE COURT: One, that this issue of conflict never

arose in connection with another case, which was an active

litigation for a long time. This is news to the Court, so I

would like to hear you on that.

Now, secondly, does the analysis change since you

are no longer representing them, or Williams & Connolly is

no longer representing them in connection with the Symphony

litigation, and doesn't that just change the analysis all

together on the objections that have been raised, because

what was raised to this Court was a question of a conflict

of interest, so whoever wants to address it, I am willing to

hear it now.

MR. RYAN: Thank you, your Honor.

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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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Your Honor --

THE COURT: Restate your name, please.

MR. RYAN: Robert E. Ryan, Connell Foley, for the

Cahill defendants.

Your Honor, I am here today representing the Cahill

defendants, not Ballard Spahr, not Wililiams & Connolly.

And Justice Rivera-Soto is ineligible to serve as

the special discovery master in the presence of the conflict

unless the conflict is disclosed, which it has been, and

properly by Williams & Connolly, and there was a unanimous

waiver --

THE COURT: That is not the case when no longer

representation exists.

MR. RYAN: This is the first time we have heard.

THE COURT: But the point is, if that is in fact

the case, that is not the analysis. The waiver is not

necessary. That ship sails.

The question then becomes: Under the circumstances

where an attorney has priorly represented a client, is there

a conflict now, if he is not representing the client in a

matter that is adverse to the client or substantially

involved the same matter. None of those things under, I

think it's 1.9, even applies here.

MR. RYAN: I think the analysis is that the

lawyers, as maybe the Court, has to confer with the client,

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PHYLLIS T. LEWIS, CCR, CRCR, OFFICIAL COURT REPORTER

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namely Cahill, as to what their feelings are as to whether

or not they now feel comfortable with this special discovery

master maintaining this position.

I don't think it is fair candidly, Judge, to say:

Oh, guess what, that case is now over and all of these

concerns and all of these --

THE COURT: Rule 1.9 of the Rules of Professional

Conduct, which is what is on point here and what the Court

is concerned about is: A lawyer who represented, past

tense, a client in a matter shall not thereafter represent

another client in the same or substantially related matter

in which that client's interests are materially adverse in

the interest of the former client unless the former client

gives consent.

None of those things are applicable here now.

MR. RYAN: I think what is applicable here now,

your Honor, respectfully is the statute, Rule 53 and the

formal opinions of the ABA on ethics with regard to retired

judges sitting as special discovery masters. The analysis

isn't the same analysis that you make for a lawyer

respectfully, Judge.

The law is clear. There must be full disclosure,

if a sitting judge is now going to participate in the case

when he is represented by one of the lawyers in the case,

who has had an attorney-client relationship, and there must

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be unanimous consent by all of the parties.

We are standing here today, your Honor, and two of

the three parties in this case, a case which we all know is

very complex and very contentious, two of the three parties

do not consent. Cahill does not consent. BASF does not

consent.

I respectfully suggest that while we can argue the

nuances of maybe what this new information may mean, it

doesn't change what is best for this case. This case needs

a special discovery master who has no conflicts, who has no

ties to any --

THE COURT: Where is the conflict here? Recite the

conflict for me.

MR. RYAN: He has an attorney-client relationship

with Williams & Connolly.

THE COURT: His firm --

MR. RYAN: Not just his firm --

THE COURT: -- had a prior --

MR. RYAN: -- him, Justice Rivera-Soto, standing

here today, has an attorney-client relationship with

Williams & Connolly.

THE COURT: He does not. Where is it?

MR. RYAN: He has told your Honor that the case has

been settled. I have no idea --

THE COURT: And that the employment of Williams --

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well, you are telling me to disbelieve that representation.

Is that what you are telling me?

MR. RYAN: No, I'm not.

THE COURT: So what are you telling me?

He is telling me the representation has been

terminated, and this conflict has never been raised before.

Isn't that a little strange to you?

MR. RYAN: What conflict?

THE COURT: Williams & Connolly represented, they

are involved in adverse litigation representing separate

clients --

MR. RYAN: Judge, that is a whole different issue.

The minute your Honor appointed Justice

Rivera-Soto, Williams & Connolly did what the RPC required

them to do. They notified everybody. They disclosed to

everybody that there was an attorney-client relationship

between Williams & Connolly --

THE COURT: Which they didn't do before the other

Chief Judge.

MR. RYAN: Judge, you don't know, respectfully, you

don't know if there had been waivers in that other case.

THE COURT: All right, Counsel. Finish your

argument respectfully.

MR. RYAN: Okay.

My point, Judge, is that as we stand here today,

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the Cahill defendants do not consent to Justice Rivera-Soto

serving as the special discovery master.

I do not believe that this information changes the

entire analysis, and I suggest, your Honor, that this case

would be better served with an independent objective special

discovery master, who has no ties to the parties, no ties to

the lawyers. This case is going to be difficult enough as

it is. I respectfully suggest that that would be the

appropriate procedure.

THE COURT: Thank you.

Is there anybody who wants to address the Court?

MR. ASSAF: May it please the Court, Gene Assaf

on behalf of BASF.

Thank you, your Honor, for devoting the time to

this.

As an initial matter, the disclosure that I guess

within the last few days, the Symphony case settled, and

Williams & Connolly's relationship was severed is, in fact,

new information that would have been at least disclosed in

the affidavit that is required under the code, under 455.

And, again, the affidavit has never has been submitted, so

we are actually -- this is the exact situation that the

affidavit and the code and the statute hopes to avoid, that

lawyers show up, and the special master discloses things

that have not been disclosed prior to this, and there is not

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a chance to confer with clients and assess them, and that is

also why the consent has to be done in writing, so that

there is not this rush to appoint on new information.

THE COURT: Let me ask you a question.

If, in fact, the employment of Williams & Connolly

has terminated, and that case no longer exists, and this

case has nothing to do with that case, it's not involving

the same matter, it's not adversely affecting the same

matter or the client, where is there a requirement legally

that you can point this Court to that you need the consent?

MR. ASSAF: Sure, your Honor.

Rule 53 of the Advisory Committee Conduct first

says the disqualification standards are strict, so we are

not talking about a liberal interpretation of conflicts and

fiduciary duty laws.

As the Court well knows, again, I am just hearing

about this. But even under well established ethical rules,

such as the Hot Potato, a lawyer still owes a fiduciary duty

to a client after that termination of the relationship.

So, again, assuming the relationship was terminated

this morning, Williams & Connolly still owes a fiduciary

relationship and a duty under both Pennsylvania and New

Jersey ethical rules.

THE COURT: Right, which the rule acknowledges and

says, because of that fiduciary - it doesn't say these

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words - but obviously because of the fiduciary duty, the

lawyer shall not thereafter represent another client in the

same or a substantially related matter in which that

client's interests are materially adverse to the interests

of the former client, unless the former client gives

consent.

So it acknowledges that. There is some continuing

obligation, but the question is: Does it under the

circumstances of this case, if in fact -- listen, I do agree

with you that this coming to the Court at the last minute

does throw sort of a monkey wrench in the whole situation

because I didn't know until today. I was willing to

undertake a different analysis and hear arguments in a

different context, but if, in fact, there is no longer a

relationship between the Spahr firm and the Connolly firm as

attorney/clients, where is the conflict here in serving as a

special master in a case, where he is not mediating the

case, not trying to settle the case in any way. He is

trying to, you know, put -- this is a former representation

of not even the specific judge, of someone in the judge's

law firm or the judge's law firm on a collection matter. I

mean, it is a little different, isn't it?

MR. ASSAF: So, your Honor, I actually think it is

not, the more I have this discussion with you.

First of all, I would like to address the threshold

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issue of whether this is a representation of a judge. It

clearly is. Under New Jersey and Pennsylvania partnership

rules, Williams & Connolly's representation was of the

Ballard Spahr --

THE COURT: I agree with you there --

MR. ASSAF: -- okay, so he had --

THE COURT: -- I am acknowledging that.

MR. ASSAF: -- so he had an attorney-client

relationship, and then again, if you look --

THE COURT: All I am saying is in determining or

informing the Court of the extent of a conflict, of a

potential conflict, clearly there would be something that

the Court should look at if the partner at Williiams -- I

mean, if there was some kind of partnership issue, and he

himself was being represented, plus the firm, or something.

But anyway this is the firm --

MR. ASSAF: But, your Honor --

THE COURT: -- I think it is the same thing for the

purposes of the analysis, so I will give you that one.

MR. ASSAF: Okay.

So he had an attorney-client relationship until

this morning, okay?

He was appointed under the Court's order, okay? At

least the threshold appointment occurred two or three weeks

ago, okay, without an affidavit of conflicts and without an

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affidavit of disclosure, which is required under 28 USC 455

and Rule 53.

So even assuming that was disclosed then, under the

analogous Hot Potato rule, and under the commentary to both

the statute and Rule 53, they posit the situation where what

happens if he is already the special master, and two years

into the case a conflict develops, and --

THE COURT: That's happened in the past. It

happened in the Eastern District of Pennsylvania case --

MR. ASSAF: Correct.

THE COURT: -- and the special master by the way in

that case was allowed to stay.

MR. ASSAF: Correct. Because what the Court says,

even though there are requirements under the statute,

judicial cannons are stripped, there is a balancing test

after the special master has already put in time and effort,

and so that is why I say on this one, your Honor, it is not

actually a closed case. He has put in zero time on this

matter, and it is much closer to the line of the Hot Potato

rule, where he is saying now I am trying to address the

conflict and step back, but we don't have to address that

because he hasn't put in two years on the case, and the

balancing test is much different.

Here you have a situation, where up until this

morning, there was clearly, and everybody would agree, a

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conflict. I don't hear anybody arguing that up until this

morning, there wasn't a conflict.

So now three weeks after the appointment, they try

to undue the conflict, and what --

THE COURT: Wel, he hasn't started to do any work

at all --

MR. ASSAF: Pardon me?

THE COURT: -- this is not analogous to some other

situations where work has begun as a special master.

Nothing has been done.

MR. ASSAF: Correct.

THE COURT: And, by the way, there was also, and I

did ask, when we did the conflicts check or where we asked

Justice Rivera-Soto to do the conflicts check, one of the

issues that we have is this pro hac vice thing, right?

MR. ASSAF: Right.

THE COURT: Where the Williams & Connolly name did

not come up in the docket list.

MAGISTRATE JUDGE DICKSON: It's not shown on the

list.

THE COURT: It did not show on the list.

So the record should be clear about what happened

there, because in fairness to Rivera-Soto, the docket list

did not have the Connolly law firm in there until it was

brought up, and it was brought up right away, and we

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addressed it right away.

MR. ASSAF: Yeah. I want to be clear on the

record, your honor.

With respect to that issue, there could be no

complaint. That was not Justice Rivera-Soto's fault and

so --

THE COURT: I just wanted the record to show that,

because it is not like he was trying to hide it.

MR. ASSAF: Correct.

So we have a situation, where at least as of last

week, there was an attorney-client relationship with

Williams & Connolly and Rivera-Soto, and, your Honor --

Justice Rivera-Soto, I'm sorry.

And with all due respect, your Honor, I ask

yourself to put yourself in your situation. If Williams &

Connolly was representing you up until this morning, you

wouldn't come in today and say, now I could hear this case.

Under the strict rules, under Kensington by the

Third Circuit, where they say: Given all of the other

options available for judicial officers, let's err on the

side of somebody that doesn't create the appearance of some

impropriety or conflict.

And so if your Honor came in this morning and said,

Williams & Connolly no longer represents my family, I can

hear the case, I don't think you would do that.

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And he -- and Justice Rivera-Soto is governed by

the same cannons as you're governed by. I don't think you

would do it, your Honor, and I am asking that this judicial

officer not also be exempted from those rules.

I just can't imagine under the Third Circuit's

analysis in Kensington, where Judge Garth says, we agree

this is an eminent jurist, when he is talking about Judge

Wolin in trying to mediate the asbestos situation, but he

said: The events that have happened would give a reasonable

observer questions about how this process is going to work

going forward. And, remember, that is when Judge Wolin had

already put in years into the case.

Here there has not been a single hour put into the

case. So I come back to: Can't we find a former federal --

a former judicial officer who has no connections to the

parties and is willing to undertake this.

And given where we are today in equipoise, why

would you hire somebody, who at least as of a couple hours

ago, was represented by Williams & Connolly?

Your Honor, I think that conflict to your first

question was real without disclosing joint defense

communications, there is a reason why Williams & Connolly

isn't arguing today. They are recused from this situation,

and so that should again tell you all you need to know on

the conflict issue, that one party's law firm has decided

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that they can't speak on behalf of another client because of

what was a fiduciary relationship.

And with all due respect, your Honor, I think that

should give the Court pause as to what the underpinnings are

of Rule 53 and the judicial cannons, and I don't think the

ABA opinion, if you looked at it and posed this question

under the ABA opinion, that they would say, well, as long as

the judge discloses the client relationship and terminates

it during the case or on day one of the case, it is fine.

I don't think they are the guideposts that have

been set up analytically by the Third Circuit or by the ABA

rules. The reason that the rules committee said strict

adherence to the rule is the governing principle is for this

very situation. It is not to try to say, well, it is close

enough.

With all of the judicial officers out there, let's

try to find one --

THE COURT: Well, I tried, and there have been

objections. There was an objection to Judge Brown on

grounds that were not raised to the same Judge Brown when he

was appointed before Judge Wolfson. None of those issues

about, you know, the Jams issue with the trust and none of

those issues came up, but there were objections to Judge

Brown. Judge Brown chose not to continue to be a master. I

did not take him out. I don't know why anybody had the

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misconception I took him out. He just, after all the

objections were raised, he said, you know what, if it is

going to be this contentious, I don't want to. And then

that was an issue.

I now appointed Justice Rivera-Soto. There appears

to be an issue. This one I thought had some validity to it.

I think the situation has not changed. I have to give that

some thought.

Anything else?

MR. ASSAF: Well, since we brought up Judge Brown,

I expect a minute on Judge Brown.

I understand that he took himself out, but knowing

the reputation of Judge Brown, if he knew there was a

situation where there was a need for him, he has no

connections to the parties, no attorney-client relationships

with the parties, and the Jams decision that was forwarded

to your Honor, with all due respect, that was a frivolous

objection. We now know that because of what was said to

Judge Wolfson, totally frivolous objection, because the

plaintiffs were proposing --

THE COURT: I am not going to reargue Judge Brown

now. I am not. He is no longer in the case, and I didn't

take him out.

MR. ASSAF: So then, your Honor, again, I know this

is under the rubric of Justice Rivera-Soto, but Judge

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Pisano, Judge Bassler, I could go on with some other judges

who --

THE COURT: I bet you right now, if I said Judge

Pisano, someone is going to object.

You are going to object, right?

MR. RYAN: I would have to confer with my client.

MR. ASSAF: But, your Honor --

THE COURT: Judge Pisano used to be in his law

firm --

MR. ASSAF: -- correct --

THE COURT: -- so I mean, it's --

MR. ASAF: -- but that is the distinction, though.

I think the courts have looked at the differences between

somebody who has a connection with a law firm, okay, in

which there are rules regarding payouts, et cetera, and

leaving that law firm versus the situation where there is an

attorney-client relationship, and the fiduciary relationship

continued even post termination, I think they are

analytically separate, and so that is why we are talking

about somebody whose son or daughter is at a law firm or is

a paralegal at a law firm, that is a different conflict, and

even the rules treat it differently, right?

You come out and you disclose this. It is on the

record, and people say no problem.

Under the judicial cannons, this type of disclosure

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has to be not only in writing in an affidavit, but then the

parties get a chance to go back and submit their objections

in writing, and I think, again, that goes to the rules

committee's decision about how they are going to handle

these situations.

So, your Honor, I would ask that if there is any

consideration of this going forward, that we get an

affidavit of disclosure from Justice Rivera-Soto. I hate

doing this, but I think we would have to submit an expert

affidavit under the ABA rules showing why this conflict, and

I would want to talk to the expert, since I just found out

this information, but I think the expert is going to say,

this conflict is still relevant because it is not a conflict

of lawyers like representing a party against Ballard Spahr,

it is a conflict of attorney/client issues, and I think that

we would like to be heard on that, your Honor, and that is

the whole purpose of the statute and Rule 53 requiring an

affidavit of disclosure.

I'm sorry I went on so long, your Honor. I am

happy to answer any questions, and I appreciate your time.

THE COURT: Anybody else want to address the Court?

MR. POLLOCK: Briefly, your Honor.

Jeff Pollock, Fox Rothschild, your Honor.

Our belief -- our position is that this is

completely within your discretion, that whatever decision

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you make or respect, we will abide by.

The rule that nobody mentioned to date is 3.17D,

which is the New Jersey judicial rule, non code judicial

conduct. And what it says as far as Fox Rothschild is

concerned is that -- and this was adopted last year, Stuart

Rabner, Chief Justice of New Jersey Supreme Court, signed

the order, that for seven years, the time period is, that a

court, a judge should recuse himself. Justice Rivera-Soto

has now passed that almost twice, so that will take care of

the Fox Rothschild one.

As to the -- I -- I -- let me tell you where I

agree with my colleagues on the other side. I think the

standard is the appearance of impropriety, not an actual

conflict, because this is in essence an extension of your

office, your Honor.

That being said and done, the question is the one

you pointed to, which is 1.9D, is it basically the same or a

substantially related matter.

It is not.

I agree with Mr. Assaf's argument in part, that

this relates to the question of the appearance. How does it

look?

And, first of all, I don't know because I wasn't

quick enough to hear when, in fact, the deal went down with

regard to the termination of Williams & Connolly. I just

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don't know, and perhaps that will require some

investigation. But if the question as a matter of law, and

this is Third Circuit law, is the standard is: What will an

objective member of the public think, and is there an

appearance of impropriety.

And I think an objective member of the community

would say, well, clearly, as to the Fox Rothschild one,

there is a rule. It was just adopted last year. He has

passed the standard by twice, so that one is out of the way.

Now, we are down to the question of: Is there a

problem with him serving on any large law firm of over 500

lawyers on a case where he was not involved in. This is a

fee collection dispute, and it has been settled. It's done.

He had no involvement in it. He has no participation in it

and no knowledge of it, other than what the general counsel

told him and what's in the papers.

Does that really color his ability to honorably and

candidly rule for or against either side?

I think the answer is a reasonable person would say

no.

Every lawyer, you, yourself, your Honor, and every

lawyer has some connections to the political community to

their practice of law. That doesn't mean that we can't

stand -- we can't work as -- argue in front of you, appear

before you. You may like my arguments. You may dislike my

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arguments. But the fact is I will respect your decision,

and I think a member of the public would look at Justice

Rivera-Soto and say, this is a guy who has passed the first

rule. Let's get rid of the Fox Rothschild one.

Now, the question is: Is there any merit to the

question of this case, where he had no involvement, and the

case is settled and done.

I think the answer is the average person would say

no. If that is the case, then let's just look for somebody

who never really practiced law because that is the only

person who is ever going to satisfy this group.

So respectfully, your Honor, I think that this is

again within your discretion.

If you have any questions, I will be glad to answer

them, if I can.

Thank you, your Honor.

THE COURT: Thank you.

Can I talk to you a minute?

MR. ASSAF: Your Honor, may I just alert you to one

footnote I found in the ABA opinion --

THE COURT: Yes, you may in a second, please.

(Chief Judge confers with Magistrate Judge)

THE COURT: Let me ask you a question.

MR. POLLOCK: Yes, your Honor.

THE COURT: You had raised an objection regarding

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Judge Brown earlier in the proceedings just because he was

raised, real quick, have you stepped back from that

objection or not?

MR. POLLOCK: We raised it to -- we did not object

to Judge Garret Brown on the basis of skills, criteria,

qualifications, background, none of that stuff.

The Supreme Court Advisory Committee wrote two

opinions within two months. The second one was the one that

says Jams cannot perform legal services in New Jersey, and

the question that I did not address was what Mr. Assaf, and

you had a brief discussion, was well, then how can we

raise -- how can Mr. Placitella raise the issue of a Jams

mediator in New Jersey and the distinction is as follows.

In this case it is a class action. Therefore, it

assumes, and everybody has agreed, New Jersey law applies to

this case. That was the argument that the Third Circuit

asked us point blank. We agreed with New Jersey law. That

case is an MDL, a Multi-District Litigation, and in the MDL,

it assumes the law of each individual plaintiff. There are

no New Jersey plaintiffs in that case, so there is a

question under the two advisory opinions.

The first advisory opinion, which was issued -- I

forget the date, your Honor, but let's say it was a month

and a half before the one related to Jams. That one said

that the -- there's a -- we don't want Avo and some of these

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other legal advertising services in New Jersey, the reason

being is that you don't want to have non lawyers sharing

fees with lawyers under New Jersey ethics rules --

THE COURT: My only question was, you are still

holding to your original objection.

MR. POLLOCK: We're raising our initial concern

again. Nothing against the man individually --

THE COURT: That's all I wanted to know.

MR. POLLOCK: -- I just wanted you to understand,

your Honor, that the -- I know it is late, and I appreciate

it. I just didn't like the tone that Mr. Placitella was

talking out of both sides of his mouth.

The reason is an MDL is different than a class and

therefore, we maintain that distinction because there are no

New Jersey plaintiffs in the MDL, so he's not practicing --

those people would not. But also Chris to his credit said,

Judge, look, here is what I as liaison counsel have been

asked to give you. I am telling you there are these two

advisory committee opinions, and I think that that was

exactly the right thing to do.

Is it a difference that makes a difference between

a class and an MDL?

That is something for the judge to decide. He did

the right thing.

THE COURT: Thank you.

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You wanted to say something or supplement

something?

MR. ASSAF: Yes, your Honor.

You raised the question to me in our conversation

about what the timing is. Good question, right? Like how

long would it last, would he have to be -- how long does the

aftermath of the attorney-client relationship last.

And, again, I'm just hearing this, so I am reacting

on my feet, but I looked at the ABA opinion, Footnote 16,

and I think it addresses this issue. It says: New York

Advisory Committee on Judicial Ethics, Opinion 5-143, Super

Note 3 stated that a judge's recusal obligation expires two

years after the judge last consults the lawyer on the matter

giving rise to disqualification.

So going back to our earlier discussion, where we

agreed now that the representation of Williams & Connolly

was a representation of Justice Rivera-Soto, at least under

New York ethical cannons, the sunset on that would be two

years as opposed to a couple of hours, so that is why I

would suggest, your Honor, we are way -- we're far away from

having the discussion of whether we are at 18 months, and is

that is long enough.

THE COURT: Isn't that at the end of the day really

what counsel just said, that the analysis now is the

appearance of impropriety, and whether or not we need the

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guideline of that as set forth by the Third Circuit of

whether an average person looking at the facts and

circumstances would think that there is a potential bias

here?

MR. ASSAF: I want to think that through. I think

that is partially correct, but not fully complete. The

reason it's not complete is because those cases that he has

referred to about the appearance of impropriety don't

address the fiduciary aspect of this, and it goes to your

Honor's first set of questions here about Williams &

Connolly being on the other side of Ballard Spahr in other

cases representing clients. That is the difference I am

trying to get at here.

It's not clients -- Williams & Connolly here is

representing Justice Soto as opposed to representing just

one of Williams & Connolly's clients against Ballard Spahr,

and that is why the appearance issue doesn't get you all the

way there. It goes to this analysis of what the fiduciary

aspects are, and that is why I come back to the New York

opinion on a two-year presumptive rule.

Again, your Honor, I am happy to look at the ABA

opinions more closely, if we get the affidavit, but I think

that is going to be in line with other judicial cannons and

ethics.

On Justice Brown -- on Judge Brown --

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THE COURT: I don't need to hear about Judge Brown

any more.

MR. ASSAF: Okay. Fair enough.

Thank you, your Honor.

THE COURT: So I was, and in fact, I think I still

am potentially ready to rule in connection with this matter.

I have heard everybody tell me their thoughts. I don't know

that any additional briefing may be necessary, but I do

agree with counsel that in light of his revelation today, I

would rather not shoot from the hip, if you will, on this

new issue. I was ready to rule under the old circumstances.

I think regardless of what counsel has said, I think this

does change the analysis somewhat.

I think, Justice Rivera-Soto, you are going to be

required to submit a disclosure, so that I can look at that

in the right context. Give me all of the information and

the parties all of the information necessary pertaining to

this representation and your involvement or lack of

involvement therein, when it ceased, the circumstances when

it ceased, et cetera, so that I have all of the information

in front of me.

Upon receipt of that, I don't know that any

additional briefing is necessary.

What is there?

I will tell you what. I will allow each side to

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give me, no longer than three pages, one for each side, that

is it. It is not that complicated of an issue. It is very

narrow. I think there's an enormous amount of discretionary

power that the Court has in connection with this matter that

I want to look at.

I do think, look, there are no objections to

Justice Rivera-Soto's ability in connection with this

matter. There is no, I don't think, any issue of bias that

has been raised by one side or the other. I really don't

think that that is on the table either.

The only issue really is or originally was the

question of whether or not there was a conflict of interest.

Now that has changed a little bit, and then there is the

question of this appearance of impropriety under the

circumstances of the case, and rather than just put

something on the record today, I will get into the weeds of

that and I will make a decision.

If for some reason I decide, and don't assume from

what I am about to say that I have made a decision that I am

going to remove Rivera-Soto, because as of right now I have

not made that decision, and he is still appointed the

special master in this case as of today until this issue

gets resolved. He is not going to do any work until then

for obvious reasons.

Justice, how long would it take you to get this

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disclosure to me?

MR. RIVERA-SOTO: Today is Tuesday. I will have it

to you by Thursday.

THE COURT: Okay.

So by next Friday, I want whatever briefing you

guys are going to do, one set. I don't want back and forth,

so like the old Appendix N, one set of letters, so that I

can consider this.

In the event that the Court were to remove Justice

Rivera-Soto from this case, I am going to, and I will issue

an order in accordance with that, but I am going to give you

a very short amount of time for you all to confer and come

up with one.

If you don't, I will continue to appoint a special

master until we get this done. We need to move this

forward. I will give you a list. Like you said, there are

plenty out there. I think I found a very good one, and I

would like to keep him, if it is appropriate, so that is

where we are.

So I am going to give you a very finite time in the

event that I decide to remove Rivera-Soto. It may very well

be that I disagree respectfully with counsel for the defense

on this issue that has been raised today and I keep him in

the case. Then you are free to do whatever you want with

that decision. But at the end of the day, this case needs

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to be moved forward.

With regard to the issues of the discovery, I am

going to leave this matter to Judge Dickson to deal with,

but I think he is going to tell you that we need to decide

this issue on the special master first, but in any event --

MAGISTRATE JUDGE DICKSON: I am done.

(Laughter)

THE COURT: I guess that is what he was going to

say.

(Laughter)

-- which is going to be a week. I mean, I'm not

going to sit on this. Within the next two weeks, this issue

will be resolved one way or the other. It is either going

to be resolved by me allowing Rivera-Soto to continue, or

removing Rivera-Soto and giving you four or five days to

come up with a different one, or appointing another one,

which hopefully will not have any issues for anyone.

All right. Thank you.

MR. POLLOCK: Thank you, your Honor.

MR. ASSAF: Thank you, your Honor.

(The matter concluded)

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