Selling Out?

 Posted on July 31, 2011 in Uncategorized

Wolk settled the underlying case, Taylor v. Teledyne, No. CIV.A.1:00-CV-1741-J (N.D. Ga.), on the condition that the order criticizing him be vacated.

This accusation is damning. It also may be untrue.

In his nutty and angry 100 page pro se defamation complaint against Overlawyered and others, Arthur Wolk writes:

Wolk did not even personally handle the discovery in the Taylor case, and thus the order critical of Wolk's conduct during discovery in the Taylor case was issued in error, but more importantly Wolk ensured that his clients were protected by staying out of the settlement negotiations, which were mediated by others.Moreover, the Taylor case was settled with no involvement from Wolk, and the plaintiffs in the Taylor case had additional counsel other than Wolk, who independently reviewed all aspects of the settlement making sure the plaintiffs in Taylor were well served, received full value in the settlement and were completely satisfied with the result. Indeed, the plaintiffs in Taylor received a settlement that far exceeded the value previously placed on the case by an independent mediator.Most importantly, the Taylor case was settled before Wolk even requested the Court vacate the mistaken discovery order, which the Court in Taylor eventually did.

So Wolk isn't saying that there wasn't an order critical of him, and he's not saying that the settlement wasn't contingent on the vacation of the order. He saying that he didn't make the settlement contingent on the vacation of the order.

"Wolk made the settlement contingent on the vacation of the order criticizing him" is a very different statement than "other lawyers made the settlement contingent on the vacation of the order that criticized Wolk." In the former, Wolk is selling his clients out; in the latter, someone else is. There's still impropriety, but it's not Wolk's impropriety. If Wolk was not involved in the settlement negotiations on the Taylor case, I wouldn't hesitate to call Overlawyered's statement defamatory.

(Wolk quotes other lawyers involved with the settlement as saying that the settlement was not contingent on the vacation of the order. But that seems at odds with the published opinion in the case: "on April 16, 2003, Wolk's co-counsel, Richard Genter, sent a letter to the Court's clerk indicating that all counsel believed that settlement might be possible, but 'an impediment to settlement [was] the Court's Order of September 30, 2002....'")

If the published opinion (which makes Wolk seem even nuttier than his complaint does*) said that Wolk had settled the case on condition that the order criticizing him be vacated, Overlawyered would be in the clear.

And it does:

[The insurer's representative] also knew that [Wolk] would not settle the case as long as the Omnibus Discovery Order remained and she knew that the existence of that Order was an impediment to her gaining a settlement for the dollar figure to which Respondent would apparently otherwise agree.

The testimony of Richard Genter, Wolk's former colleague, is largely consistent with [the insurer's representative's] testimony. Genter would have told Holahan that Wolk would not settle the case as long as the Omnibus Discovery Order was in place.

Wolk says in his complaint that he provided Overlawyered and the other defendants with documentation that the allegation that he sold his clients out was untrue. Wolk provided Popehat, which had written about the same story, the same documentation, and Popehat took the extraordinary step of taking the story down.

Did Wolk compromise his clients' interests? We don't know, but the Northern District of Georgia's opinion makes it appear that he did.

Overlawyered has a judgment saying that limitations barred Wolk's suit; they crowed about it. Now Wolk is arguing that they "had republished the article with enhanced tags, links and SEOs well within the one year Pennsylvania statute of limitations" on his first suit, and within the limitations period for his second suit.

Which raises what I suspect is an interesting internet-defamation question: is changing the tags on a blog post "republication" of the blog post, so that the statute of limitations starts to run afresh?***

[Note: in the original of this post, I cast aspersions on Overlawyered without reading the court's order closely enough. I apologize.]

* Successful longtime litigators are not infrequently nutjobs. Just because you're paranoid doesn't mean the aviation-defense bar isn't out to get you.

** Wolk thinks the Overlawyered post was a deliberate right-wing corporate-sponsored hatchet job.

*** If Wolk were represented by counsel, we might eventually get an answer to that question.