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The seal deal

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Published 8/2/2006

In 1988, the owner of Chicago-based Grove Fresh juice company read a trade publication story about a Baltimore attorney who had successfully sued one of Grove Fresh's competitors for allegedly adding sugar and other ingredients to supposedly 100 percent pure orange juice.

That suit was against Canada's Holiday Juice company, which was owned at the time by the brewer Labatt and run by American businessman Daniel Kotwicki II. It's a case that reveals the tactics corporations can use in an attempt to protect themselves and keep the public in the dark.

Grove Fresh founder Cecil Troy hired the Baltimore attorney to represent him in an action against competitors he suspected of cheating by adding sugar and preservatives to products labeled as pure juice. In 1989, Grove Fresh sued several companies, including Everfresh, in federal court in Chicago. Founded in Detroit in the 1950s, Everfresh — like Holiday Juice — was then owned by Canadian brewer Labatt. Kotwicki oversaw operation of Labatt's juice division.

After suing the companies, Troy learned that his original lawyer had struck a secret deal with Labatt when settling the Holiday Juice lawsuit, it's alleged in court documents. That agreement drastically limited the scope of what the attorney could do in any future cases against Labatt's juice operations, Grove Fresh claimed in court filings.

The original lawyer was dismissed soon afterward, according to court documents, and John Messina, a Chicago attorney who'd been brought on as Grove Fresh's local counsel, took the lead. In 1990, as Messina prepared to initiate a second suit, Labatt's lawyers convinced the judge that would hear it to seal that case before it was even filed.

Messina, who would not comment for this story, alleged in court documents that Labatt's original justification for seeking the seal was that the new suit was an unauthorized amendment to the original case. Although Judge James Zagel eventually disagreed with that argument, and allowed the second case to proceed, the seal order remained in effect.

The second case, which supplanted the first suit, settled in 1993 before going to trial. Labatt and the other companies involved paid Grove Fresh $2 million. As part of its settlement, Messina alleged, Labatt demanded that Messina sign a consulting agreement with the company. Doing so would prevent him from using the information gained in the Grove Fresh case in any new lawsuits others might want to bring against Labatt.

(The brewer had sold its juice division to a group of American investors in 1992, but could still be held liable for actions taken while still the owner. A class action suit was eventually filed against a host of Midwest juice makers, including companies that were owned by Labatt. That case was settled out of court, with consumers offered coupons over a three-year period to compensate them for the lower-quality products they'd purchased believing them to be pure juice.)

Messina — having alleged in court filings that the juice makers had used an illegal preservative that created a carcinogen when added to juice — had fought persistently to get information about the case into the public record. So he balked at signing a consulting agreement that would force him to keep quiet about the issue. To do otherwise would be a breach of ethics if Labatt was paying him — even if he wasn't actually doing any work for the company.

According to court documents filed by Messina, Troy, then 78 and in failing health, pleaded with the lawyer to allow the case to be settled before Troy, in his words, was "pushing up daisies." (Troy died a year later.)

In addition, Messina claimed, he was called into a private meeting with Judge Zagel and told that if he didn't enter into the consulting agreement, he would be subject to a legal malpractice suit that could put him on the hook for covering the entire $2 million settlement.

He acquiesced, but then afterward attempted to have the contract voided, saying he was coerced into taking it. Messina was found in contempt and ordered to pay the costs opposing lawyers rang up in their attempt to force him to abide by the contract. Messina had to pay out more than $150,000.

In 1993, John Elson, a Northwestern University law professor, filed a lawsuit on behalf of a group of journalists attempting to get the case unsealed.

"The district court's treatment of the '90 case file as if it were the parties' personal property, which they can dispose of simply by settling their lawsuit, represents an unprecedented departure from the role federal courts have heretofore ascribed to official court records," Elson contended in written arguments filed with the federal appeals court in Chicago after Zagel initially refused to unseal the case.

As a result of Elson's effort, parts of the case were put on the public record, but much of it remained under seal. By that point Labatt had been allowed to remove some documents from the record, according to court documents.

Finally, in 2001, through the continued efforts of Messina, who was unsuccessfully fighting his contempt charges, the appellate court — with Labatt lawyers still arguing against it — ordered that the entire case be unsealed.

A review of that file by Metro Times found one document noting that some records were inexplicably missing. In addition, based on our review of the file, it appears sealed documents that should have been made public have still not been placed in the public record.

Which means that the Midwest consumers who drank adulterated orange juice during the 1980s still don't have access to the complete story.

Send comments to cguyette@metrotimes.com.

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