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Lumenis Removed MeToo Case To SDNY Now Issues Threat Against Press Reporting Of Case

By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - The Source

SDNY COURTHOUSE, May 4 -- The medical device firm Lumenis and some of its executives were sued for sexual harassment by Michele Langham in New York State Supreme Court in 2019. 

   Self-described "Counsel to California Employers" Todd R. Wulffson moved to remove the #MeToo case from state to Federal court in New York, which he made a motion to be admitted pro hac vice to the U.S. District Court for the Southern District of New York.

    There, he filed complaints to SDNY District Judge Alvin H. Hellerstein about Ms. Lanham daring to contact the former employees of defendants Steven Gerhart, Todd Rosa, Greg Mack and Trenton Williams, and sought sanctions against her. None were ever granted.  

  Instead, in a proceeding with date, time and telephone access number listed publicly in the Court's PACER data base, and not even called a Settlement Conference, Wolffson and others appeared before Judge Hellerstein on April 24.  

  Inner City Press, which has been covering cases criminal and civil at the SDNY daily since November 2018 and more actively than even during the COVID-19 pandemic crisis, covered the proceeding.

  It called in exactly as it does to every other telephone proceeding. Several times a day it says, "Inner City Press, Not a participant," when asked. If not asked, non participants are directed not to speak. 

   It reported on the proceeding, and from documents in the public PACER file, published its article the same day along with nine others, and thought no more about it - until a threatening email came through from Mr. Wolffson, cc-ed to other lawyers in the case none of whom have commented on it, threatening to "go to the judge" unless three questions were and now are answered the following day.

The questions were: "Before bringing this issue to the attention of the Judge, I wanted to give you an opportunity to respond.    How did you get the information to call into this court conference?" 

 ANSWER: It was listed in PACER, the Court's public database.

"Where did you get the information for the alleged facts and the names of the defendants in your article?"  

ANSWER: From the public PACER file, including the Complaint which you removed to the SDNY, and annexed as Exhibit B to your Notice of Removal.

"Why did you find any of this to be newsworthy (i.e. why was it even worth your time)?"

     Cases in the SDNY are newsworthy, as are #MeToo complaints such as this, removed to the SDNY.

   The letter concluded: "If I do not hear back from you by close of business tomorrow, California time, we will present the issue to the Court for whatever sanction the Judge believes to be appropriate." 

 Present to a Federal judge the "issue" of a journalist reporting on an open court proceeding, and quoting from publicly filed court documents? 

  It's unclear who the "we" includes, but here are lawyers whom he cc-ed: Carla Varriale-Barker representing Lumenis, and Alessandra Maria Messineo Long representing Trenton Williams.  

Here's more from the lawyers' letter: "I am a lawyer representing some of the parties in the lawsuit mentioned in your article below.  The other cc’s on this email represent the rest of the attorneys in this matter – all of whom were on the call with Judge Hellerstein on April 24, 2020.     We collectively wanted to reach out to you in the hopes of clarifying a few issues.  In your article, you claim this was 'a public telephone conference.'  That is not accurate.  First of all, none of the information about this call was open to the public.  The call-in number was listed on the Court’s Order, but one would have to have a Pacer account to log onto the site to see the call in number.  The Court’s Order required us to provide a list of those that would be on the call in advance.      The Judge wanted to discuss settlement-related issues, and when he heard there were other lawyers on the line waiting for their case to be called, the Judge asked us to call back 20 minutes later.  When we all called back, the clerk did a roll-call, and everyone was required to identify themselves on the line.  You did not disclose that you were on the line.  If this case management conference had happened in open court – the Judge would have seen you, and could have called us into chambers to have a confidential discussion if he so chose....

You have a quote of an allegation in your article, but do not state from where you obtained the quote.  It appears to be from a non-operative pleading.  You stated (and properly spelled) the names of the individual defendants, but you could only have collected those names from multiple documents in the Court’s file.  Pacer maintains a list of the date, time and username for downloading any document – so which documents you downloaded can be confirmed (as you will have a Pacer account that is different from all of ours and there is no activity on this court file other than from our law firms).

     Aside from misstating the Court’s records, you misstated the plaintiff’s relationship to Lumenis (i.e. that she “went to work at Lumenis, Inc. in 2011”), which is one the primary factual disputes in the case.  You also mischaracterized the Judge’s comments to Ms. Lanham (he did not apologize to her).  Most egregiously, you publicly disclosed the Judge’s comments (out of context) regarding a potential settlement value for the case.  This has the potential of prejudicing the parties, prejudicing the potential jury pool, and prejudicing the overall operations of the Court while it is trying to continue case activity during the pandemic."  

 The pandemic - the last refuge of a scoundrel, some say. We'll have more on this. 

Here was and is the beginning of the article:

SDNY COURTHOUSE, April 24 – Michele Lanham went to work at Lumenis, Inc. in 2011 and "discovered that Lumenis fosters a working environment wherein male employees and managers believe that it is appropriate to send pictures of their penis and make comments about their sexual desires to females in the workplace."

    She sued Lumenis and Steven Gerhart, Todd Rosa, Greg Mack and Trenton Williams in New York State court, but they removed it to Federal Court.

    On April 24 U.S. District Court for the Southern District of New York Judge Alvin K. Hellerstein in a public telephone conference covered by Inner City Press suggested that the case settle for $200,000.   

There was a "no!" protest over the phone line. Ms. Lanham was on the line.

 Judge Hellerstein apologized for how he had spoken, but said it was necessary. The docket reflects that he denied Lumenis' attempt to subpoena two of Lanham's previous employers, as "too remote in time, of marginal relevance and a digression to the speedy completion of pre-trial proceedings."


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