MANHATTAN (LN) — U.S. District Judge Denise Cote on Thursday ordered Keller Postman LLC and its co-founding partner Ashley Keller to pay Kenvue's reasonable attorney's fees arising from their willful violation of the acetaminophen autism-ADHD multidistrict litigation's protective and discovery coordination orders. Keller, who serves as plaintiffs' co-lead counsel, and his firm used confidential Kenvue documents in state court proceedings in Florida and Texas without authorization.
Kenvue Brands LLC — formerly Johnson & Johnson Consumer, Inc. — moved for sanctions in February after Keller Postman filed opposition papers in a Florida personal-jurisdiction dispute that described, quoted, and attached four confidential documents Kenvue had produced, then days later filed a redacted brief and a supporting Keller affidavit in a Texas action that relied on the same protected materials even after Kenvue had explicitly refused consent in writing.
The MDL's January 2023 protective order bars use of confidential information produced in the litigation in any other proceeding unless the same discovery has been independently produced in a related action that has formally adopted the coordination order. Neither the Florida nor the Texas action had done so.
Cote drew a sharp line between the two violations. The Florida filing, she held, was not willful: the Keller Postman attorney managing that case, Roseann Romano, anticipated Kenvue would agree as it had in prior California and Illinois matters, and the firm moved quickly to withdraw the papers once Kenvue objected on January 30. The Texas filing was a different matter entirely.
In stark contrast, Cote wrote, Keller and Keller Postman acted willfully in the Texas action in violation of the protective and coordination orders. Kenvue had confirmed in writing on February 2 that it did not consent to use of MDL discovery in Texas. Three days later, Keller Postman filed a redacted opposition brief, a Keller affidavit, and a motion asking the Texas court for leave to file unredacted copies "notwithstanding" the MDL orders.
Cote rejected Keller Postman's argument that filing documents in redacted form or under seal constituted compliance. The protective order, she noted, states that confidential information "shall not be used in any other proceeding or action" and contains no exception for sealed or redacted filings. Keller's own Texas motion, she wrote, "itself acknowledges that the filing of the protected documents under seal would still constitute a violation of the MDL Orders."
The court also rejected Keller's attempt to distance himself from the Texas filings by pointing to Keller Postman attorney John Masslon as the one who made the call to proceed. Keller admitted he reviewed his own affidavit before it was filed, and Cote held his explanation — that he checked only for accuracy, not confidentiality — insufficient. "Mr. Keller's February 17 affidavit fails to rebut the evidence that he willfully violated the Protective and Coordination Orders in connection with the Texas court filings," she wrote.
Cote granted the sanctions motion in part, ordering Keller Postman and Keller to pay Kenvue's reasonable attorney's fees caused by the Texas violations under Rule 37. She declined to reach Kenvue's alternative request for sanctions under the court's inherent authority. The court issued the opinion itself as the formal reprimand Kenvue sought, finding that sufficient to address that request.
In partial mitigation, Cote noted that Keller represented he has never previously been sanctioned, and that after January 30 he instructed Keller Postman attorneys on the importance of strictly following court orders and implemented a new firm policy requiring that all discovery agreements with opposing counsel "must be express, not implied."
The noncompliance in Texas, Cote observed, appeared ongoing as of the ruling: unlike the Florida filings, the Texas submissions had not been withdrawn.