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After about 13 days of trial, the case involving two of Philadelphia’s heavy hitters, a former university president and an attorney, quietly ended in a nonsuit Tuesday. At about 10:45 a.m., Judge Howland W. Abramson entered his courtroom in City Hall and told the parties that he was granting both motions for nonsuit from the defendants in Sudarkasa v. Glanton, letting both Reed Smith and attorney Richard H. Glanton breathe a sigh of relief. “We’re happy that it’s behind us,” said Robert A. Nicholas, managing partner of Reed Smith’s Philadelphia office. The ruling brought to a close the suit by Niara Sudarkasa, the former president of Pennsylvania’s Lincoln University, which alleged breach of attorney-client privilege against Glanton and Reed Smith, and alleged conspiracy, tortious interference with contractual relations and defamation against Glanton alone. She also claimed that Glanton, the former president of the Barnes Foundation and former counsel to Lincoln, contacted state Sen. Vincent Fumo, D-Philadelphia, and state Auditor General Robert Casey Jr. to tell them about alleged overspending and other incidents at Lincoln as a retaliatory measure after she told Glanton to step down from the Barnes Foundation. The ensuing investigation turned up problems that eventually led to Sudarkasa’s resignation from the university. According to trial testimony, Glanton had sent memos to Lincoln University’s Board of Trustees and to Fumo alleging that Sudarkasa had made more than $500,000 worth of renovations to the president’s house over a 10-year period. He also alleged that illegal dumping of hazardous waste took place at Lincoln. The auditor general subsequently issued a negative report of the university in 1998, and Fumo blocked $11 million in state money from going to the school. Sudarkasa then resigned her position as president; Glanton was ousted from the Barnes Foundation presidency. He also later resigned as Lincoln counsel and from Barnes’ board. MOTION FOR NONSUIT Reed Smith and Glanton jointly submitted a motion for nonsuit to Abramson as to Count III of the complaint, breach of attorney-client confidentiality, according to Reed Smith counsel Richard L. Bazelon of Bazelon Less & Feldman. Sudarkasa had accused both Glanton and Reed Smith of wrongfully releasing her confidential tax information. “Plaintiff cannot have it both ways,” the joint motion read. “Having asked Lincoln University to take responsibility for the tax audit appeal because the issues were the university’s, and having obtained the university’s commitment to pay for the services, and having utilized the services of the university’s general counsel in this context, she cannot claim that a duty of confidentiality entitled her to prevent Lincoln University from obtaining relevant information. “Since the only disclosure of alleged confidential information of which plaintiff complains is a single relevant matter allegedly disclosed by Glanton to the Lincoln University Business Affairs Committee, there is no basis for plaintiff’s claim for breach of duty of confidentiality.” Glanton also submitted a separate motion for nonsuit as to all other counts. His counsel, Robert J. Sugarman of Sugarman & Associates, said the case was “all about the law. Our oral argument was very substantive. First Amendment, Noerr-Pennington, privilege. [Our argument] was very significant in terms of getting these issues out on the table.” The court sat in recess from Wednesday to Friday of last week while Abramson was away at a judicial conference. But briefs and reply briefs were quickly moving between the parties, who followed an agreed-upon briefing schedule for the nonsuit motions from Friday through the weekend. A copy of the joint motion and Glanton’s brief went to Sudarkasa Friday, and she filed reply briefs on Sunday, Bazelon said. Reed Smith and Glanton wrote reply memoranda. Although briefs weren’t due to the court until 5 p.m. Monday, all of them were submitted that morning, at the close of Sudarkasa’s case in chief. The court then heard oral argument Monday afternoon — four hours’ worth. “I think that much time on oral arguments was unusual, but I think it was because of the issues involved,” said Bazelon. In his individual reply brief, Glanton said that Sudarkasa’s response to the motions for nonsuit cited three cases that actually supported Glanton’s position; Reed Smith, in its joint reply brief with Glanton, said that Sudarkasa’s opposition memorandum was “a virtual concession to grant of nonsuit” that contradicted Sudarkasa’s own testimony and ignored Pennsylvania law. Glanton did not return a call from The Legal Tuesday. On Tuesday morning, Abramson returned with the decision to grant both motions and read his decision to the parties. He did not issue a written opinion in the case. Bazelon said the First Amendment and an expanded antitrust doctrine were key to the judge’s decision. “He said it was a public dispute between two public figures,” said Bazelon. Glanton had argued in his motion brief that Sudarkasa was a “public figure and/or public official” and therefore had to prove that Glanton had acted with “actual malice.” She had failed to meet that burden, he said. The judge said that Sudarkasa’s charge of defamation and related counts were not legally actionable. Abramson also agreed that the Noerr-Pennington doctrine protected Glanton from being sued for contacting government agencies about suspected wrongdoing at Lincoln University. NOERR-PENNINGTON DOCTRINE The Noerr-Pennington doctrine comes from two U.S. Supreme Court cases, Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., a 1961 decision, and United Mine Workers of America v. Pennington, decided in 1965. The doctrine actually is an antitrust rule that immunizes companies from prosecution if companies jointly attempt to influence government power. Under Noerr-Pennington, even if companies communicate with the government to gain an unfair advantage, their communication is protected. Although the doctrine originally pertained to antitrust matters, it is grounded in the First Amendment theory of the right to petition government, Sugarman said. It has also been read broadly and expanded by the U.S. Supreme Court since the two landmark decisions in the early 1960s, particularly in 1991 with City of Columbia v. Omni Outdoor Advertising, Inc.. Over the years, the U.S. Supreme Court has applied Noerr-Pennington to courts and administrative agencies. “It’s gotten a lot of play within the last three to five years,” Sugarman said. Glanton’s brief noted that the 3rd Circuit “has expressly applied this doctrine to protect citizens from liability for exercising their rights to petition state and local government bodies.” “I had another case with a real estate developer that sued citizens who opposed its plans after they were turned down,” Sugarman said. “I represented the citizens who had spoken and written to government officials opposing the development. We won, under Noerr-Pennington.” Sugarman explained that under the doctrine, the motivation of the parties for attempting to influence the government is irrelevant, “as long as there is a reasonable basis” for the statements. “If the only purpose is harassment, Noerr-Pennington goes out the window,” he said. An audit of Lincoln University in 1998 confirmed many of Glanton’s accusations, providing that reasonable basis, he said. Communicating to the government solely to harass a party is referred to as the “sham exception” under Noerr-Pennington. The Glanton brief pointed to another case where the sham exception did not apply, 1996′s Barnes Foundation v. Township of Lower Merion, decided by the 3rd Circuit. The court held that the “sham” exception is not applicable where neighbors of a local art foundation petition local government officials in order to procure favorable government action regarding fire, police and zoning ordinances. “Plaintiff Sudarkasa has failed to offer any evidence to show that defendant Glanton’s petitioning of state officials was done without hope or desire for favorable government action regarding plaintiff Sudarkasa’s mismanagement of Lincoln University,” the brief read. NEW TRIAL? Sudarkasa’s recourse at this point would be to file a motion to strike the nonsuit, Bazelon said. That could possibly resurrect the case as to certain counts. “It’s not an all-or-nothing thing,” he explained. But he said he doesn’t think that will happen. “I’m not anticipating anything.” Sugarman said he had not heard anything from Sudarkasa either. Sudarkasa’s counsel, Carl E. Singley of Blank Rome Comisky & McCauley, did not return a call for comment Tuesday.

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