Stephen Pollak Eleventh Interview: May 7, 2010Catherine Nugent2022-04-19T15:50:43-04:00
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Oral History of STEPHEN J. POLLAK
Eleventh Interview-May 7, 2010
This interview is being conducted on behalf of the Oral History Project of the
Historical Society of the District of Columbia Circuit. The interviewee is Stephen J. Pollak, and
the interviewer is William Schultz. The interview took place at the Goodwin Procter law firm at
901 New York Avenue, N.W., in the District of Columbia on May 7, 2010. This is the eleventh
Mr. Schultz: We’re going to talk about a few other matters in your private practice, and the
first one I want to ask you about is being the Special Master in the Vitamins
Antitrust Litigation, Misc. No. 99-197; MDL 1285. Why don’t you just tell us
Mr. Pollak: That was a fascinating four-year effort, and I’m pulling off my bookcase a
compendium of opinions that I wrote.
Mr. Schultz: Which is about 8-10 inches thick.
Mr. Pollak: Yes, but I have three of them. First let me tell you how I got named. The
Vitamins Antitrust Litigation had been multi-districted for pre-trial discovery in
the District of Columbia. The claim was price fixing, boycott, by manufacturers,
exclusively foreign manufacturers of vitamin products primarily for addition to
food and animal feed. There had been criminal proceedings and guilty verdicts or
pleas, so these were follow-on treble damage civil litigations, class actions. It was
originally assigned to Paul Friedman. The judge foresaw that there was going to
be a great deal of active litigation, particularly over discovery, and asked the
parties to suggest a special master to handle discovery issues and other related
issues. Out of that came my appointment as special master.
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Mr. Schultz: Who were the lawyers who had a role in selecting you?
Mr. Pollak: The lawyers were a roster of the major firms of the nation who represented the
defendants, Mayer Brown; Bruce Montgomery of Arnold & Porter; Sherman &
Sterling; Sullivan & Cromwell. I’m not certain how my name got into the mix.
Mr. Schultz: The plaintiffs lawyers, was that Dickstein?
Mr. Pollak: The plaintiffs’ lawyers were Boies Schiller; Dickstein Shapiro, Ken Adams; a
Texas firm, and Joe Sellers’ firm.
Mr. Schultz: Cohen Milstein?
Mr. Pollak: Yes. Mike Hausfeld was a major player for the plaintiffs.
Mr. Schultz: What years was this?
Mr. Pollak: My initial appointment was 1999. I remained active in deciding issues up through
2003. It was a four-year assignment. I issued recommended decisions in perhaps
49 or 50 litigated matters, some of them extremely interesting issues. Of some
interest respecting the work of the United States District Court, Judge Friedman
had the cigarette multidistrict litigation, tobacco litigation. It was suggested either
by the Chief Judge of the United States District Court for the District of Columbia
or the Multi-District Panel that he shouldn’t be handling both cases – cigarettes
and vitamins – because it was too much, so after I had been named, the case
moved to Judge. Judge Kennedy is an outstanding tennis player, had played
tennis actively with Jonathan Schiller of Boies Schiller. Judge Kennedy, I
believe, recused himself because of that relationship. So the case moved to Chief
Judge Thomas Hogan, and stayed with Judge Hogan. I communicated with
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Judge Hogan, who I didn’t know, suggesting that he should feel free to select as
special master someone with whom he was acquainted. He communicated to me
that he wished me to stay with the assignment, so I served as Judge Hogan’s
special master throughout. It was one of the great opportunities and great
experiences of my professional life. I found Judge Hogan to be an outstanding
judge in handling this complex case and managing it. Indeed, there were
hundreds of motions, thousands of docketed items, as many as 5,000 items in the
docket. Judge Hogan managed to make it all look easy. I know that he spoke
once about it to an ABA gathering. The case offers a good opportunity, just like
the AT&T case of Judge Harold Greene, to observe a masterful judge handling a
complex multi-party case. It wasn’t one case; there were many different vitamin
products involved, and each presented its own litigation, so while the defendants
were often similar in each case, in some of the cases there were different
defendants. Most of the cases ultimately settled. My responsibility was to handle
all discovery disputes, and while I was a private practicing attorney, these
disputes would be briefed to me, and then I would go to one of the federal
courtrooms and the parties would argue them to me.
Mr. Schultz: In a federal courtroom?
Mr. Pollak: Right. I would sit on the bench. I never wore a robe, and I never endeavored to
arrogate to myself any of the formal attributes of a judge, but the parties
obviously took seriously the briefing and arguments, and I rendered written
reports and recommendations which under the Federal Rules are subject to appeal
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to the United States District Judge. They very, very often would be appealed and
they would be very, very often be affirmed by Judge Hogan.
The first issue presented to me was a unique issue on which there had been
very little precedent: whether discovery by plaintiffs to establish personal
jurisdiction over the foreign defendants must proceed under the Hague
Convention on Taking Evidence Abroad or the Federal Rules. The Federal Rules
are much more conducive to obtaining discovery than is the Hague Convention.
This was presented to me as a discovery dispute, and the issue was fully briefed
and argued. I rendered a recommendation that in the circumstances the discovery
would be conducted pursuant to the Federal Rules. The issue went to
Judge Hogan, and he reached the same conclusion in a Memorandum Opinion
filed September 20, 2000. I thought the case would be, the ruling would be taken
to the Court of Appeals because there was so little law, but it stayed with Judge
There were many other quite challenging issues, very intellectually
stimulating. One of the issues was sufficiently complex that I issued a Report and
Recommendations that was a hundred and one pages long.
Mr. Schultz: Wow.
Mr. Pollak: It proves the wisdom of Judge Friedman’s anticipation that a special master was
needed. There was really no way that a sitting federal judge with multiple
assignments on his or her docket could give these discovery disputes the attention
which I could give as a special master.
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Mr. Schultz: How much of your time did it take over those four years?
Mr. Pollak: It took a lot of time. I did the work with the help of one associate at the firm.
Most of the time that was Tim Lynch, who had been editor-in-chief of the Law
Review at Georgetown and was at Shea & Gardner. Subsequently, Tim went to
be an Assistant United States Attorney. He performed in outstanding fashion.
There were months when I would spend more than 100 hours on the assignment.
Mr. Schultz: So well over half your time?
Mr. Pollak: Right. I charged for my services at a reasonable rate under the Court’s order
appointing me and the parties divided the charges 50/50.
Mr. Schultz: What was your relationship to Judge Hogan?
Mr. Pollak: My relationship with Judge Hogan was a formal one on all the issues that were
presented to me. I did not discuss them with Judge Hogan. They were presented
to me, I rendered a written ruling. The parties would or would not appeal that
ruling to Judge Hogan, and he would address the issue with my report and with
their briefing in front of him. He limited the briefs to ten pages, considering that
the matter had been fully handled in front of me and that he could give it
summary attention based upon more limited briefing. The record was always a
written one before Judge Hogan. I had a discussion with him early on in which I
said that I thought the appropriate approach would be for me not to discuss the
substance of these issues so the parties would have a full shot at the federal judge,
who after all had the responsibility.
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Mr. Schultz: So it was really like the relationship between a District Court and Court of
Mr. Pollak: That’s right. Now there was an occasion in which there was kind of a backup.
Judge Hogan set a date for conclusion of discovery and stuck to it hard but then it
had to be slipped once or twice. In an effort to wind up discovery, all the pending
motions were catalogued, and I held a hearing at which all of the motions and the
necessity of briefing them and having them decided by me was addressed so that
we could identify what the real line up before the court was and put to one side
those motions that probably never had to be addressed. The number may have
been over 200. In approaching that sort of scheduling responsibility, I recall
having discussions with Judge Hogan about how to approach it and manage it.
Otherwise, while I had pleasant, for me, relationships with Judge Hogan, they
Mr. Schultz: Did he try some of these cases ultimately?
Mr. Pollak: He did try – the major cases settled, and some cases – the amount of money
involved was tremendous. The criminal fines were the largest ever collected by
the Department of Justice. One was $1 billion, or maybe over a billion.
F. Hoffmann LaRoche, one of the defendants, had paid a big fine. But the cases
that went to trial involved significant money but were for a long time more
secondary cases. A few cases were tried. I haven’t been active in the matter for
five years. A few tag ends are still going on before Judge Hogan.
Mr. Schultz: Did he consult you or did you have any role in the trials?
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Mr. Pollak: I had no role. When appeals were taken of my rulings, I generally went to the
argument before Judge Hogan. It was of course a matter of interest to me, but
also there were occasions when the outcome of the argument left something more
for me to do after a ruling by the judge. I attended some of one trial just for the
interest, seeing how it went. I had never wanted to be a judge and so this
experience of serving as a special master afforded me a good window on what it
would be like to be a judge. It was a challenging, decidedly interesting, and very
rewarding experience. I found the briefing interesting. Sometimes I was
intrigued by the briefing because there were often issues that went directly to the
meaning of the Federal Rules, and sometimes for one reason or another the parties
on both side of the issues seemed to avoid briefing what appeared to me to be the
central matter at issue. I never asked them about it. There were obviously great
resources put into the briefing, and often there had to be extensive affidavits about
foreign law and practice, so a great deal of learning was presented to me. I
learned a great deal from the case.
Mr. Schultz: Did your experience make you think you would have liked to be a judge or
confirm that you wouldn’t?
Mr. Pollak: I probably would have enjoyed being a judge. I wasn’t sorry that I had that view
that I had. I never sought to be a judge. Judge Hogan assigned some settlement
responsibilities to Magistrate Judge Kay and I occasionally talked to Magistrate
Judge Kay about what I was doing. He led me to believe that I was shouldering a
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lot of responsibilities that were valuably performed by me so as to relieve
Mr. Schultz: Yes, I’m sure.
Mr. Pollak: Magistrate Judge Alan Kay performed highly competent services in bringing the
parties to settle some of the cases. It was a good example of a federal judge using
the various tools that were available to him to deal with this immense litigation.
The case proceeded a lot of the time under the radar. There was no major
commentary, as there was about the AT&T case, that Judge Hogan was
performing his very unusual service as there was commentary about
Harold Greene. I think it was a comparable virtuoso performance.
Mr. Schultz: Did you have any other experience as a special master?
Mr. Pollak: I never did. I hoped to have another assignment, but I never did. I guess you get
just one of those, and mine was a big one.
Mr. Schultz: So the next project I want to ask you about is your experience as Assistant to
James McKay who was an Independent Counsel.
Mr. Pollak: Jim McKay was a partner at Covington & Burling with whom I had worked when
I was there. Jim McKay was an outstanding trial attorney. In and about 1960,
Jim and I together, possibly I was in the lead, sought from then-Chief Judge
Bazelon a pro bono case to work on, and Judge Bazelon turned to the Chief Judge
of the Fourth Circuit who had been Solicitor General, Simon Soboloff. The
Chief Judge gave us two habeas cases under 18 U.S.C. 2254, state habeas. Men
who were claiming that they had had constitutionally infirm trials and who had
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appealed their convictions without success. Number one was incarcerated in
Jessup, and the other was incarcerated in the jail in downtown Baltimore. Jim and
I handled those cases which presented issues respecting the availability of federal
habeas to these prisoners of the State of Maryland, issues that had not yet been
determined by the Supreme Court. Shortly thereafter the Supreme Court decided
a now-legendary case regularizing greater rights of the criminal defendants who
had been convicted to post-conviction review. But those issues were then more
I knew Jim in that capacity. When he was named by the Division of the
U.S. Court of Appeals for the D.C. Circuit for Appointment of Independent
Counsels, the chief judge of which was D.C. Circuit Senior Judge
George MacKinnon, a former Congressperson, my partner Wendy White and I
volunteered our assistance.
Jim McKay was appointed in February 1987 to investigate whether
Lyn Nofziger of the Reagan Administration had violated any criminal law.
Thereafter, Jim’s assignment was expanded to include related allegations possibly
implicating Attorney General Edwin Meese III when he was counselor to
Mr. Schultz: What were the allegations?
Mr. Pollak: The question to be investigated was whether Nofziger, acting as an agent of
Welbilt Electronic Die Corporation, violated federal conflict of interest laws, 18
U.S.C. § 207(c), by communicating with the President’s office within one year of
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being employed as Assistant to the President. McKay brought formal charges
against Nofziger. McKay and members of his staff, including now Circuit Judge
Merrick Garland, tried the case.
I remember that Jim had offices on 18th Street. Others working with him
in addition to Garland included Lovita Coleman and Thor Halvorson. Wendy and
I participated actively addressing legal issues that came up at the time the matters
were being presented before the grand jury. In my private practice, I had taken
many witnesses to the grand jury. I did that over the whole of my practice,
including in the Monica Lewinsky affair. With Jim McKay, this was the only
time that I ever had occasion to go into the grand jury for presentation of
evidence. That was extremely interesting to me. Looking back on the role of the
Independent Counsels and the comments and criticisms that have come on the
extended issues that Independent Counsel Kenneth Starr addressed, Jim McKay
was an experienced courtroom litigator and brought to his assignment some
discipline growing out of his experience that centered his investigation and
allowed him to move through it and complete it and make his report while
focused on what the central matters were.
Mr. Schultz: Roughly how long did the investigation go on?
Mr. Pollak: Looking at his published report respecting Mr. Meese dated July 5, 1988, he
completed his investigation and the trial of Mr. Nofziger within 17 months of his
Mr. Schultz: What prompted you to volunteer?
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Mr. Pollak: I was interested in finding something interesting to do in the way of public
Mr. Schultz: And you had worked with him before?
Mr. Pollak: Sure. Jim always treated the contribution that Wendy and I made as important.
I’m not sure whether it was that significant. His report (page vi) says we served
as his “counselors, successfully defending my office from attacks on the
constitutionality of the independent counsel statute and attacks on my jurisdiction
Mr. Schultz: I’m sure he was delighted to get the help. You mentioned that you represented a
witness in connection with Monica Lewinsky. I can’t let that go by without
asking you about that.
Mr. Pollak: The wife of a Yale Law friend had been a volunteer in the Clinton White House,
and in that capacity had had some contact at work with another volunteer,
Kathleen Willey, who lived in Richmond, Virginia. Ms. Willey made allegations
respecting the President which were apparently explored before a grand jury. My
friend’s wife was called before the grand jury in the U.S. District Court for the
Eastern District of Virginia. I represented her in responding to that investigative
Mr. Schultz: Your role in that piece of history.
Mr. Pollak: Another of my occasional responsibilities touching on governmental
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Mr. Schultz: I think what we’ll do now is switch to your pro bono work and other kinds of
work during your years in private practice, which is extensive. I don’t think we’ll
cover it all. But there were I gather two Supreme Court cases that you argued on
a pro bono basis. Griffin v. Breckenridge and the University of Texas v.
Camenisch. So we’ll have a chance to talk about those. Let’s start with Griffin
versus Breckenridge, how this case came to you and what it was about.
Mr. Pollak: When I came out of the United States government, I was asked to succeed
John Nolan of Steptoe & Johnson who had been the first chair of the what was
then called the Washington Lawyers Committee for Civil Rights Under Law. I
readily accepted and was chair of the board of directors for two years, 1970 to
1972. One of the major accomplishments of that service was the hiring of
Roderick Boggs as the director of the organization. He remains the director
today, and he’s made a unique contribution to civil rights and the representation
of indigent people with civil rights and related issues in the District of Columbia
and in the nation. Rod came to me with a case that became Griffin v.
Breckenridge. It was a claim for damages stemming from an interference, alleged
to have been on account of race, with an individual using the public highway in
Tennessee. The claim was brought under 18 U.S.C. 1985. The question was
what that statute, enacted initially in 1866 as part of the Civil Rights Act of the
First Reconstruction, meant and what it required as a matter of intent on the
defendant’s part. We took it on and I did the case with Richard Sharp, an
associate at Shea & Gardner and a lawyer who had been in the Civil Rights
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Division, Gary Greenberg. We researched back in the proceedings of the United
States Congress in 1866 the meaning of the statute and brought all of that learning
to bear. The issue was a later presentation of a similar issue decided in the
famous Screws case which dealt with a criminal statute, now 18 U.S.C. 241 or
242, interference with civil rights.
Mr. Schultz: Who is Breckenridge?
Mr. Pollak: I have to refresh my recollection. Why don’t we position that for the next session.
Mr. Schultz: Was this a case against a private person?
Mr. Pollak: Yes it was.
Mr. Schultz: So that was the whole thing. It wasn’t a state action, it was how far you could go?
Mr. Pollak: Exactly. When someone was interfering with your civil rights.
Mr. Schultz: But it was a private party.
Mr. Pollak: Yes it was.
Mr. Schultz: This was a pretty famous case.
Mr. Pollak: Yes it was. We prevailed nine to nothing.
Mr. Schultz: Could Congress under the 14th Amendment pass a law that dealt with private
conduct as opposed to public.
Mr. Pollak: Exactly. It was a wonderful case for somebody coming out of the Civil Rights
Division to have an opportunity to do.
Mr. Schultz: Did you take it from the trial court all the way up?
Mr. Pollak: No. I got it in the Supreme Court. My recollection is that cert had been granted,
when I took the case. We filed briefs, and I argued the case.
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The other case was University of Texas v. Walter Camenisch. I have
spoken about it earlier in this history.