Some time ago, investors in Johnson & Johnson (J & J) stock filed a securities fraud class action against the New Jersey drug manufacturer. The Plaintiffs, a class of J & J investors, maintained that J & J withheld information from the investing public about its vulnerability to personal injury lawsuits growing out of talc exposures in baby powder. As a result, the investors alleged that J & J’s stock value was inflated at the time of purchase.
In an effort to defend itself, J & J subpoenaed communications between news organizations and several law firms who represented plaintiffs who had contracted diseases claimed to be associated with talc exposures. J & J sought all communications between the firms, and all of its members, with the press.
Fearing that their First Amendment rights were at issue, two of those firms and two individual attorneys retained Arnold Lakind to file a motion to quash the subpoenas. Arnold prepared a lengthy brief in which he argued that compulsory disclosure of communications with the press was a violation of the lawyers’ First Amendment rights, that compliance with the subpoenas would chill free speech, and that the subpoenas were unduly burdensome. J & J argued in response that if there were communications with the press about the dangers of talc exposures, then the information, which the class plaintiffs claimed to have been hidden, was in fact in the public domain. The attorneys’ First Amendment rights must therefore give way to J & J’s discovery needs.
In reply, Arnold argued that the attorneys’ selection of information given to the press was itself tantamount to speech and protected by the attorneys’ First Amendment rights and that those rights must be balanced against J & J’s purported need for the subpoenaed information. In a lengthy and well-reasoned decision, the United States District Court quashed all four subpoenas.
Arnold Lakind is a Founding Partner of Szaferman Lakind and is the head of the firms Litigation Department. To contact Arnold, please call (609) 275-0400 or email him directly at alakind@szaferman.com.
