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By Matthew Russell Lee, Patreon
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SDNY COURTHOUSE, May 7 -- The medical device firm Lumenis has asked a Federal judge to sanction or silence a journalist for covering the sexual harassment case against the company and some of its executives.

   Self-described "Counsel to California Employers" Todd R. Wulffson moved to remove Michele Langham' #MeToo case from state to Federal court in New York, which he made a motion to be admitted pro hac vice to the U.S. District Court for the Southern District of New York.

    There, he filed first complaints to SDNY District Judge Alvin H. Hellerstein about Ms. Lanham daring to contact the former employees of defendants Steven Gerhart, Todd Rosa, Greg Mack and Trenton Williams - and now has filed a complaint to Judge Hellerstein about Inner City Press for its journalistic coverage of the case. They filed their complaint into the public docket on PACER, which is where Inner City Press was following and now will continue to follow the case. To be fair, first here is what Lumenis' lawyer claims:

"May 6, 2020
Re: Lanham v. Lumenis, Inc. et al. - Case No.: 19-cv-00024-AKH Dear Judge Hellerstein: Please accept this correspondence in accordance with Your Individual Rules, Rule 2(E) and Local Civil Rule 37.2. Counsel for the defendants in this action submit this letter to Your Honor’s attention – not with any discovery dispute – but to bring an issue of concern to your attention. We feel we have a professional obligation to do so.

We have recently become aware that an unannounced, outside blogger, Matthew Russell Lee, was on the telephonic conference line for the proceedings on April 24, 2020, at 10:40 a.m. (Doc. No. 97). He subsequently published an article describing the proceedings available online here [which] includes reference to confidential, settlement communications.

On Monday, May 4, 2020, at 2:00 p.m. EST, the Parties met and conferred regarding Mr. Lee’s conduct and article. While we certainly support a free press, our understanding of the April 24, 2020, telephonic conference was that at least some of it was meant to be confidential, and comments of counsel and Ms. Lanham would have been different had anyone been aware that Mr. Lee was listening in. During the conference call, Your Honor specifically asked us to call back in to discuss settlement issues. At that time, the Court did a roll call of who was on the call, and Mr. Lee did not identify himself.

FN1 In 2016, the United Nations revoked Mr. Lee’s resident correspondence status. NY Times, BuzzFeed.   

Following the May 4, 2020, phone call, we emailed Mr. Lee to bring up these specific issues and expressed concern over the potential prejudice to the Parties, the potential jury pool,and the overall operations of the Court during the COVID-19 pandemic. (A true and correct copyof that email is attached hereto as Exhibit A). Mr. Lee responded and then published yet another article mischaracterizing the previous email, and claiming that counsel for Lumenis was issuing threats to him. He also reiterated these statements on several podcasts. These articles border on defamation for their blatant misstatements, and hinder both the Parties and the Court’s ability to resolve this matter informally. Therefore, we seek the Court’s intervention at this time."

   Inner City Press has, hours after being made aware of the letter, responded to Judge Hellerstein, into the docket, No. 99:

"Re: Lanham v. Lumenis, 19-cv-24 (AKH) - (Press access to and coverage of SDNY Proceedings) Dear Judge Hellerstein:

 This responds to a letter filed in the docket in the above captioned case which amounts to an attack on, or, to be diplomatic, a fundamental misunderstanding of press access to Federal court proceedings.

I have covered this Court for Inner City Press since November 2018. As such as I have in your courtroom many times, for high profile sentencings like Norman Seabrook and the Ali Kourani case. 

During the current COVID-19 pandemic, I have been actively covering both criminal and civil proceedings including before Your Honor. On April 24, based on a public notice on PACER of a case management conference in the above-captioned sexual harassment case, I telephoned the number listed, and used the access code.

I did not hear all those attending the call being asked to identify themselves (if such a request was made).  When such requests are made, as for example yesterday in proceedings before the Honorable Judges Preska and Failla, I always identify that I am on the call, usually saying "Inner City Press, not a participant." There is a transcript to that effect in a recent proceeding before Judge Berman). 

While the attorneys contend this was, or became, a settlement conference, it was not identified as such on the PACER docket, a docket available without fee to any member of the public who chooses to register on PACER.  If it had been specifically identified as a settlement conference on the docket, I would not have attended. 

This is the PACER description [Docket No. 97]:

"ORDER REGULATING PROCEEDINGS.  The parties are hereby ordered to appear for a telephonic conference on Friday, April 24, 2020, at 10:40 a.m., which conference will be held via the following call-in number: Call-in number: 888-363-4749.  Access code: 7518680.  To ensure that the hearing proceeds smoothly and to avoid disruption, the Court directs all those calling in (other than counsel) to mute their telephones.  Finally, no later than Thursday, April 23, 2020, at 11:00 a.m., the parties shall jointly submit to the Court a list of all counsel expected to appear on the record at the telephonic argument.  So ordered."

The entry (i) identifies the call as a telephonic conference; (ii) publicly provides the call-in information in the entry; (iii) states no restriction on attendance, (iv) contemplates that persons other than party counsel may attend, so long as they mute their phones and do not disrupt; and (v) required only counsel who were expected to speak to be on a list to be submitted to the Court. 

The attorneys’ apparent contention that I should have known better than to attend the telephonic conference as a member of the public and the press, and that there was something inherently nefarious in my doing so, is baseless. I do not know what the attorneys meant when they asked the Court to “intervene.”

Certainly, any governmental action would be unwarranted, and contrary to principles of press and public access to the courts, to which the First Amendment applies (by contrast, noting this footnote, it does not to the United Nations, at least for now). We are relentless in our search for information, and so have run afoul of some in power. 

If the Court is considering any action that may affect Inner City Press, I respectfully ask for an opportunity to retain outside pro bono counsel and be heard on the matter before any such action is taken. Thank you for your attention, Matthew Russell Lee, Inner City Press."  Watch this site - and other platforms.

   On April 24 Inner City Press reported on the proceeding, and from documents in the public PACER file, published its article the same day along with nine others, and thought no more about it - until a threatening email came through from Mr. Wolffson, cc-ed to other lawyers in the case none of whom have commented on it, threatening to "go to the judge" unless three questions were and now are answered the following day.

The questions were: "Before bringing this issue to the attention of the Judge, I wanted to give you an opportunity to respond.    How did you get the information to call into this court conference?" 

 ANSWER: It was listed in PACER, the Court's public database.

"Where did you get the information for the alleged facts and the names of the defendants in your article?"  

ANSWER: From the public PACER file, including the Complaint which you removed to the SDNY, and annexed as Exhibit B to your Notice of Removal.

"Why did you find any of this to be newsworthy (i.e. why was it even worth your time)?"

     Cases in the SDNY are newsworthy, as are #MeToo complaints such as this, removed to the SDNY.

   The letter concluded: "If I do not hear back from you by close of business tomorrow, California time, we will present the issue to the Court for whatever sanction the Judge believes to be appropriate." 

 Present to a Federal judge the "issue" of a journalist reporting on an open court proceeding, and quoting from publicly filed court documents? 

  It's unclear who the "we" includes, but here are lawyers whom he cc-ed: Carla Varriale-Barker representing Lumenis, and Alessandra Maria Messineo Long representing Trenton Williams.  

Here's more from the lawyers' letter: "I am a lawyer representing some of the parties in the lawsuit mentioned in your article below.  The other cc’s on this email represent the rest of the attorneys in this matter – all of whom were on the call with Judge Hellerstein on April 24, 2020.     We collectively wanted to reach out to you in the hopes of clarifying a few issues.  In your article, you claim this was 'a public telephone conference.'  That is not accurate.  First of all, none of the information about this call was open to the public.  The call-in number was listed on the Court’s Order, but one would have to have a Pacer account to log onto the site to see the call in number.  The Court’s Order required us to provide a list of those that would be on the call in advance.      The Judge wanted to discuss settlement-related issues, and when he heard there were other lawyers on the line waiting for their case to be called, the Judge asked us to call back 20 minutes later.  When we all called back, the clerk did a roll-call, and everyone was required to identify themselves on the line.  You did not disclose that you were on the line.  If this case management conference had happened in open court – the Judge would have seen you, and could have called us into chambers to have a confidential discussion if he so chose....

You have a quote of an allegation in your article, but do not state from where you obtained the quote.  It appears to be from a non-operative pleading.  You stated (and properly spelled) the names of the individual defendants, but you could only have collected those names from multiple documents in the Court’s file.  Pacer maintains a list of the date, time and username for downloading any document – so which documents you downloaded can be confirmed (as you will have a Pacer account that is different from all of ours and there is no activity on this court file other than from our law firms).

     Aside from misstating the Court’s records, you misstated the plaintiff’s relationship to Lumenis (i.e. that she “went to work at Lumenis, Inc. in 2011”), which is one the primary factual disputes in the case.  You also mischaracterized the Judge’s comments to Ms. Lanham (he did not apologize to her).  Most egregiously, you publicly disclosed the Judge’s comments (out of context) regarding a potential settlement value for the case.  This has the potential of prejudicing the parties, prejudicing the potential jury pool, and prejudicing the overall operations of the Court while it is trying to continue case activity during the pandemic."  

 The pandemic - the last refuge of a scoundrel, some say. We'll have more on this. 

Here was and is the beginning of the article:

SDNY COURTHOUSE, April 24 – Michele Lanham went to work at Lumenis, Inc. in 2011 and "discovered that Lumenis fosters a working environment wherein male employees and managers believe that it is appropriate to send pictures of their penis and make comments about their sexual desires to females in the workplace."

    She sued Lumenis and Steven Gerhart, Todd Rosa, Greg Mack and Trenton Williams in New York State court, but they removed it to Federal Court.

    On April 24 U.S. District Court for the Southern District of New York Judge Alvin K. Hellerstein in a public telephone conference covered by Inner City Press suggested that the case settle for $200,000.   

There was a "no!" protest over the phone line. Ms. Lanham was on the line.

 Judge Hellerstein apologized for how he had spoken, but said it was necessary. The docket reflects that he denied Lumenis' attempt to subpoena two of Lanham's previous employers, as "too remote in time, of marginal relevance and a digression to the speedy completion of pre-trial proceedings."

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