After nearly 30 years, the law firm of Morgan, Lewis & Bockius is untethered from the Turkish gun maker it represented in the 1980s.
The firm hasn’t heard from its client since 1989, according to an opinion from U.S. District Judge Mitchell Goldberg of the Eastern District of Pennsylvania, and Makina ve Kimya Endustrisi Kurumu hasn’t paid any of the now-multimillion-dollar judgment that was entered against it after one of its handguns malfunctioned and shot a man’s hand.
“We do not condone the contemptuous conduct of MKEK,” Goldberg said in Ohntrup v. Makina ve Kimya Endustrisi Kurumu. “However, denying Morgan’s motion to withdraw would punish Morgan and not MKEK. While we are sympathetic to plaintiff’s plight, the fact is they have not been able to collect their judgment over the past 27 years. Morgan has not received any communication from MKEK since 1989 and it is unclear how Morgan can help plaintiffs execute on their judgments,” he said.
The plaintiffs in the case have filed an appeal of Goldberg’s decision.
Morgan Lewis had first moved for leave to withdraw as counsel in 1985, after the U.S. Court of Appeals for the Third Circuit affirmed a judgment of nearly $900,000 and MKEK notified the firm, by telex, that it was dropped. The late U.S. District Judge Louis Pollak, who presided over the trial, dismissed the motion, a decision that the Third Circuit upheld on appeal since, at the time, the plaintiffs had just begun seeking to recover the judgment and Morgan Lewis could conceivably provide a route of communication with the Turkish company and be able to handle the post-judgment litigation.
“Presently, over 25 years after Judge Pollak’s ruling, MKEK’s continued and long-standing practice of refusing to communicate with Morgan represents a significant change of circumstances,” Goldberg said.
Over that 25-year period, the judgment against MKEK has increased significantly, to over $6 million including interest and delay damages, as well as a $16 million contempt judgment, Goldberg said in a footnote.
In weighing the three factors laid out in the Third Circuit’s 2007 decision in Buschmeier v. G&GInvestments to determine if Morgan Lewis still serves a “meaningful purpose” in the case, Goldberg found that it does not, qualifying the firm to withdraw.
First, the burden on the firm to review and forward documents to Turkey is too heavy and the plaintiffs’ argument that it is a burden that a “large law firm” can carry is unavailing, Goldberg said.
Also, the advanced stage of the litigation weighs in favor of allowing Morgan Lewis to bow out, Goldberg said, contrasting it to the point at which the firm made its first motion to withdraw.
“Because Morgan cannot communicate with MKEK, its appearance at this stage of the litigation lacks meaningful purpose,” Goldberg said.
Finally, Goldberg was unpersuaded by the plaintiffs’ argument that Morgan Lewis’ withdrawal would be prejudicial since it would “impose on them the burden of complying with the complex and costly procedures set forth in the Hague Convention, and make their chances of collecting on their judgments even more difficult.”
Addressing the second of the plaintiffs’ arguments against Morgan Lewis’ withdrawal, that the law of the case doctrine would bar the firm’s withdrawal since the court has already decided on the same issue in the case, Goldberg said the doctrine doesn’t keep the court from revisiting an earlier decision when there is new evidence or new law.
“While the procedural posture of the case has not changed in that plaintiffs are still attempting to execute on their judgment, the passing of nearly three decades cannot be ignored,” Goldberg said.
The theme in Goldberg’s opinion that MKEK’s continued lack of communication constitutes enough of a change in circumstance to warrant Morgan Lewis’ withdrawal runs counter to the Third Circuit’s opinion issued in 1985, agreeing that the firm couldn’t leave the case, said Casey Green, of Sidkoff, Pincus & Green. That firm is representing the plaintiffs in the case.
The Third Circuit ruled that Morgan Lewis wouldn’t be permitted to withdraw from the case because MKEK was an intractable litigant and there was a significant communication gap — both of those things are still true, Green said.
Brady Green of Morgan Lewis couldn’t be reached for comment.
(Copies of the nine-page opinion in Ohntrup v. Makina ve Kimya Endustrisi Kurumu, PICS No. 12-2325, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •