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Federal Judge Rebukes Lawyer in FedEx Fee Fight
An 'extremely dismayed' Judge Susan Illston rejects an 'inflammatory' and 'frivolous' motion from attorney Waukeen McCoy
The Recorder
January 04, 2008
In a strongly worded order, San Francisco federal Judge Susan Illston blocked one lawyer's attempt to torpedo the special master overseeing a hotly contested fee fight.
Illston dismissed plaintiffs lawyer Waukeen McCoy's arguments that the special master, Edward Swanson, suffered from a conflict of interest and did not promptly disclose an ex parte conversation.
"The court notes with extreme dismay that plaintiffs chose to file such a patently frivolous motion, and in so doing, to impugn the character of the special master, who has always comported himself with the highest professionalism and ethical standards," Illston wrote in a Dec. 19 order.
McCoy filed a writ last week appealing Illston's order to the 9th U.S. Circuit Court of Appeals. "She doesn't want to boot him because she's the one who appointed him," McCoy said.
The plaintiffs lawyer won three discrimination verdicts against FedEx Corp., the last of which came in April. In the ensuing battle over legal fees, McCoy's previous co-counsel Kay McKenzie Parker argued she was entitled to a portion of the money. Parker was dropped from the case before trial, and McCoy disputes her fee claim.
In addition to Parker's requests, FedEx has filed a motion for sanctions before Swanson, claiming McCoy submitted fraudulent fee documentation. In an August hearing, Swanson closely probed McCoy's fee requests.
By October, McCoy had filed his motion to get rid of Swanson, a partner with Swanson McNamara & Haller. McCoy claimed Swanson did not properly disclose a relationship with Parker's attorney, Sanford Rosen of Rosen, Bien & Galvan. Rosen nominated Swanson to be a court-appointed expert in litigation against the state prisons before Judge Claudia Wilken.
McCoy claimed that appointment is a conflict because it involves fees for Swanson. And the special master reconsidered a ruling barring Parker's fee claim once she retained Rosen, McCoy noted.
But last month, Illston found no problem with Swanson's actions. It was Wilken who selected Swanson to be the expert, Illston ruled, and there was nothing improper in Swanson's failure to disclose it.
"The court notes that plaintiffs also assert that Mr. Swanson 'actively concealed' the fact that he was appointed as a neutral court expert," Illston wrote. "Plaintiffs would be well-advised to refrain from using such inflammatory language."
McCoy had also alleged that Swanson did not promptly disclose a phone call the special master received from a lawyer who used to work for McCoy. That lawyer, Aldon Bolanos, apparently told Swanson in a voice mail that he left McCoy's firm "pretty much specifically because of what's been going on and the things I've been asked to do," Illston wrote.
Swanson immediately informed the court of the message, Illston wrote. Swanson then told Bolanos that they could only speak with a court reporter present, and Bolanos declined.
Any delay between the voice mail and Swanson's notification of the parties was "attributable in large part to the special master's assiduous consultation with the court," Illston wrote.
The judge also granted FedEx's motion to depose Bolanos regarding the disputed fee applications.
McCoy said he is being unfairly targeted by FedEx because of his victories against the company.
"I won these cases fair and square," McCoy said. "I am entitled to attorneys fees."
