Ethics

Lawyer’s ‘colorful insults’ offer no help to arguments in antitrust suit, 6th Circuit says

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The 6th U.S. Circuit Court of Appeals at Cincinnati chastised a Tennessee lawyer for making disparaging statements against his opponents in its ruling in an antitrust lawsuit Thursday.

In the panel’s opinion, Judge Amul Thapar wrote that there are good reasons for lawyers to avoid insulting opposing counsels, and in this case, Francis Santore Jr.’s “colorful insults” did nothing to prove that his clients had standing to sue Ballad Health, the Medical Education Assistance Corp. and other individuals for violating the Clayton Antitrust Act.

The National Law Journal has coverage.

Santore had amended the original complaint in response to the defendants’ motion to dismiss for lack of standing, and the appellate panel cited several of his allegations in its opinion:

    • “MEAC ‘surrendered to [Ballad] much in the manner Marshal Petain surrendered France to Adolph Hitler.’”

    • “The Ballad merger was an ‘Octopus which was birthed by [two individuals] on one of the local golf courses while [they] were walking down the ‘green fairways of indifference,’ to the health, safety and welfare of millions of people.’”

    • “Ballad and MEAC are ‘intertwined in an incestuous relationship, the likes of which have not been seen since the days of Sodom and Gomorrah.’”

    • “The Tennessee Department of Health’s failure to supervise the defendants ‘is akin to the Tennessee Bureau of Investigation allowing criminals to rape, murder, pillage, loot and plunder on its watch, while its agents stand by.’”

    • “‘A virus has been effectively introduced into the Ballad board which has sickened all 11 directors and which requires their permanent quarantine.’”

Thapar pointed out that Santore also described the merged entity in the earlier brief as “the Ballad Octopus … created from the petri dish of a few so-called economic and business ‘leaders’ in its market area.” When defendants criticized the language as disrespectful, the judge added, plaintiffs “doubled down and explained why they thought these comparisons were appropriate.”

Judge Curtis Collier of the Eastern District of Tennessee also noted Santore’s language, saying “the court does not approve of plaintiffs’ counsel casting aspersions on individual defendants.”

The appellate panel affirmed the district court’s dismissal of the lawsuit, and in closing, Thapar wrote “like the district court, we take a moment to remind plaintiffs’ counsel that, as an officer of the court, he is expected to treat other parties in the case (as well as their counsel) with courtesy and professionalism.”

“That is of course not to say that legal documents must be written in dry legalese,” he continued. “Nor is it to criticize passionate and forceful advocacy in aid of a client’s cause—a lawyerly virtue that counsel has displayed at points in this litigation. But just as one cannot ‘equate contempt with courage or insults with independence,’ we cannot dismiss the disparaging statements in this case as mere stylistic flourishes or vigorous advocacy.”

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