Antitrust Law Daily Wrap Up, ANTITRUST—SDNY: Claims of Attorney Misconduct in Antitrust Action Rejected, (Nov 12, 2012)

By Jody Coultas, J.D.

An antitrust case brought by African-American concert promoters was not reopened by the federal district court in New York City more than seven years after judgment in favor of defending booking agencies and concert promoters based the lead plaintiff’s claim that his former attorneys and attorneys for the defendants engaged in misconduct or fraud (Rowe Entertainment v. William Morris Agency Inc., November 8, 2012, Patterson, R.). A request under Rule 60 of the Federal Rules of Civil Procedure for relief from a February 2005 judgment was denied.

In 1998, Leonard Rowe and other African-American concert promoters brought antitrust and discrimination claims against eight talent and booking agencies for systematically excluding black concert promoters from the promotion of concerts given by white performers and top-drawing black performers. After the defendants moved for summary judgment, Rowe’s attorney entered Exhibit 31, which allegedly listed racial slurs used by the defendants’ employees in emails. The court ruled the exhibit was irrelevant and judgment was entered against Rowe.

Seven years after judgment was entered against him, Rowe sought relief from judgment under the Federal Rules of Civil Procedure based on newly discovered evidence and that the attorneys perpetrated a fraud against the court.

Not only was the motion to reopen the case time barred, the court also held that Rowe failed to support the motion. Motions seeking to reopen a case based on newly discovered evidence must be raised within a year of the date of entry of the judgment. Furthermore, Rowe could not show that Exhibit 31, which was the basis of the motion, was newly discovered evidence. Rowe also failed to show that the attorneys involved with the case engaged in a conspiracy to conceal and destroy emails containing vital evidence or to destroy the case, according to the court.

The firm that originally represented Rowe and the promoters merged with another law firm. After another firm filed to appear pro hac vice to represent as co-counsel, the firm merged with yet another law firm, Sonnenschein Nath & Rosenthal (SNR) and withdrew from the litigation.

Rowe was unable to meet the high burden of showing by clear and convincing evidence that the SNR attorneys engaged in misconduct and fraud that deceived the court and influenced its summary judgment decision, according to the court. Rowe alleged that the SNR attorneys conspired with the defendant’s counsel to hide material evidence from the court, sabotage the case, and committed fraud on the court by concealing and destroying evidence. Exhibit 31 only demonstrated that electronic discovery was conducted and a printout was generated, not that the SNR attorneys possessed the underlying emails and concealed them. Rowe was never denied access to any evidence and could have asked his new attorneys to acquire copies of any emails produced during discovery.

The court required Rowe to show cause why sanctions should not be entered against him. Rowe’s former attorney requested the court sanction Rowe for filing unwarranted accusations against the attorneys, filing complaints with state bar authorities, and sending letters to SNR managers.

The case is No. 98 CV 8272 (RPP).

Allyson D. Wenig (Winston & Strawn) for QBQ Entertainment.

Leonard Rowe (pro se).

Cases: Antitrust NewYorkNews