A federal judge has taken to task a Chicago law firm for attempting to intervene in an endangered junk fax class action lawsuit, saying a motion the lawyers filed amounted to little more than an attempt to play “gotcha” games with the defendants in the case and the law.

In an opinion published Oct. 18 in Chicago, U.S. Magistrate Judge Jeffrey Cole denied a motion filed by the law firm of Bock, Hatch, Lewis & Oppenheim in early August. That motion came more than two months after Cole denied class certification to plaintiff Physicians Healthsource Inc., in its lawsuit against Allscripts Health Solutions Inc., and Allscripts Healthcare LLC.

Physicians Healthsource and chiropractors John Ruch and Jeffrey Elwert had filed that lawsuit five years ago, accusing Allscripts of sending them three dozen junk fax ads, allegedly in violation of the federal Telephone Consumer Protection Act.  Should the lawsuit have been able to secure class certification, it could have potentially been worth hundreds of millions of dollars in damages against the defendants.

The plaintiffs had been represented in the action by attorneys with the firms of Bock, Hatch, Lewis & Oppenheim LLC, of Chicago; Anderson & Wanca, of Rolling Meadows; the Margulis Law Group, of Chesterfield, Mo.; and Montgomery Rennie & Jonson, of Cincinnati.

However, in June, Cole denied the request for class certification, saying a lack of honesty by the lead plaintiffs – who he characterized as “professional” litigants in such cases - and their lawyers disqualified them from serving as class representatives in this case.

However, in its August motion, styled as a “Motion to Clarify or Modify Order Denying Motion for Class Certification,” BHLO attempted to argue it should not be lumped in with the other lawyers involved in the case, as it wasn’t involved in the discovery proceedings that led to the certification denial.

Regardless of the motion’s title, Judge Cole said he would legally consider the filing a motion to reconsider. The judge took issue with BHLO’s filing, given it is not a party to the actual complaint it addresses, and Physicians Healthsource terminated the firm as counsel because of the motion to clarify.

“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,” Cole wrote. “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. …”

“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,” Cole wrote, adding he denied Allscripts’ attempt to strike BHLO’s motion, but gave leave to file a brief on opposition. In so doing, he also ordered BHLO 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.”

Cole said BHLO attempted to argue Physicians Healthsource’s withdrawal demand interfered with both the court’s jurisdiction and the judge’s order directing the firm to supplement its motion with evidence. Cole, however, was not persuaded.

He further cited Allscripts’ response, asserting BHLO’s “true goal” was to have the court label it adequate class counsel.

The judge noted BHLO also hurt its cause by routinely submitting documents that did not draw any distinctions between itself and the Anderson + Wanca firm in representing Physicians Healthsource, nullifying attempts to distance itself from the elements Cole criticized when denying the certification.

Further, Cole explained BHLO attorney David Oppenheim not only was with Anderson + Wanca  as recently as April 2016, but “was listed as lead counsel for the plaintiff in one of their other junk fax cases for two years,” making it difficult to accept “Bock’s sudden protestations” that BHLO was in the dark.

The association is problematic, Cole continued, because BHLO has been connected with Anderson + Wanca, while the latter firm’s conduct has been called into question or deemed “unseemly” or “unethical,” and many courts overlooked that reputation because BHLO was a co-counsel.

In this matter, BHLO never told the court or defendants it wasn’t “participating in critical aspects of the case,” nor did it ask its co-counsel firms to leave its name off filings and discovery requests and responses.

Cole said BHLO attempted a “heads I win, tails you lose” strategy by waiting for Allscripts’ objection to be rejected and only asserting its lack of involvement once the court accepted the objection, writing “the law frowns on playing ‘gotcha’ and relying on a claimed error — especially one that was easily avoidable – to gain an opportunistic advantage.”

Ultimately, Cole denied BHLO’s motion and said “a tactical error does not justify a do-over.”

Allscripts is represented in the action by attorneys with the firm of Sidley Austin LLP, of Chicago.

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Bock & Hatch LLC Sidley Austin LLP U.S. District Court for the Northern District of Illinois

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