Keller Postman Sanctions Appeal: Kenvue Says Tylenol Lead Counsel Wants a New MDL Judge

Kenvue has asked the U.S. Court of Appeals for the Second Circuit to affirm the May 8, 2026 sanctions order against Ashley Keller and Keller Postman, arguing in a response brief reported on October 26 that the Keller Postman sanctions appeal is really an effort to get the Tylenol autism and ADHD MDL reassigned away from Senior U.S. District Judge Denise Cote. The money at issue is small, a $50,000 charitable donation in lieu of fees, but the appeal now doubles as a contest over who will preside over roughly 500 acetaminophen cases the Second Circuit revived in July.

That combination is unusual. Sanctions appeals by MDL lawyers are rare, appeals that ask for a new transferee judge are rarer, and this one lands at the moment the litigation is coming back to life. What follows sets out what Judge Cote found, what each side is telling the Second Circuit, the jurisdictional problem the appeal may face, and what the outcome means for plaintiffs' firms that use MDL discovery in parallel state cases.

What the Keller Postman sanctions appeal is about

The underlying case is In re: Acetaminophen – ASD-ADHD Products Liability Litigation, No. 1:22-md-03043, a Multidistrict Litigation (MDL) centralized before Judge Cote in the Southern District of New York. The plaintiffs allege that prenatal use of acetaminophen, sold as Tylenol by Kenvue and as store brands by retailers, causes autism spectrum disorder and attention-deficit/hyperactivity disorder. Keller, a co-founder of Chicago-based Keller Postman, has served as plaintiffs' co-lead counsel.

Like every large MDL, this one runs on a protective order. Defendants produce internal emails, regulatory files and marketing materials, and designate the sensitive ones Confidential or Highly Confidential. The order limits what the receiving lawyers may do with those documents, and in the standard form it confines their use to the MDL itself.

Kenvue's complaint was that Keller carried MDL documents into two state court cases. In a February 6, 2026 motion, Kenvue told Judge Cote that in a Florida action Keller had cited, quoted, described and ultimately attached to his client's pleading about a dozen documents designated Confidential and Highly Confidential in the MDL. The second case was in Texas, where Keller Postman is co-counsel to the Texas attorney general's office in the state's consumer protection suit against Johnson & Johnson and Kenvue. Texas Attorney General Ken Paxton filed that suit on October 28, 2025.

Keller's defense, in his own words as quoted by HarrisMartin, was that "Pointing to the existence of confidential documents is not using confidential information." The firm has also said publicly that no confidential information was disclosed to the public.

What did Judge Cote decide?

Judge Cote granted Kenvue's motion on Friday, May 8, 2026. She agreed with Kenvue that Keller's "laundry list of excuses fails to justify his repeated violations of this Court's Protective Order in two state court actions," language from Kenvue's briefing that the court accepted.

According to Reuters, the court found two distinct breaches:

• Florida. Keller Postman quoted from 11 pages of emails that had been designated confidential in the federal case. The firm had asked the Florida court to seal the material, but that court declined, so the quotations became public.
• Texas. Keller Postman argued that filing the materials under seal or in redacted form in the Texas case satisfied the federal order. Judge Cote rejected that argument. Sealing in another court does not cure use the protective order forbids in the first place.

The remedy was modest. The court ordered Keller and his firm to pay Kenvue's reasonable attorneys' fees incurred in bringing the sanctions motion. It did not remove Keller from leadership, did not impose a fine payable to the court, and did not bar the firm from the MDL.

How much were Keller and Keller Postman sanctioned?

In a June 1, 2026 letter, Keller Postman and Keller told the court they would donate $50,000 to the March of Dimes instead of paying Kenvue's fees. Kenvue had proposed the arrangement during a meet-and-confer, and the agreement was stated to be conditional. In practice, the economic sanction is $50,000 paid to a charity focused on maternal and infant health.

The dollar figure explains why the Keller Postman sanctions appeal is not mainly about money. A firm of Keller Postman's size does not need two rounds of Second Circuit briefing and a 17-firm amicus brief to avoid a $50,000 donation. What the firm is fighting is the finding itself: that co-lead counsel willfully breached a protective order, and the professional consequences of that finding for a lawyer who holds court-appointed leadership roles across the country.

Timeline of the sanctions fight

Date	Event
Oct. 28, 2025	Texas attorney general sues Johnson & Johnson and Kenvue in state court; Keller Postman is co-counsel
Feb. 6, 2026	Kenvue moves for sanctions before Judge Cote over use of MDL documents in Florida
Feb. 2026	Kenvue's reply says Keller's excuses do not justify repeated violations in two state cases
May 8, 2026 (Fri.)	Judge Cote grants sanctions and awards Kenvue its fees on the motion
May 9, 2026 (Sat.)	Keller Postman and Keller notice an appeal to the Second Circuit
June 1, 2026	Firm and Keller agree to give $50,000 to the March of Dimes in lieu of fees
July 13, 2026	Second Circuit's merits panel revives the acetaminophen MDL in Rutledge v. Walgreen Co.
July 24, 2026	Keller's opening brief asks for reversal and, if reversed, reassignment of the MDL
July 31, 2026	Amicus brief filed for 17 plaintiffs' firms, many in MDL leadership
Oct. 16, 2026	Second Circuit denies Kenvue's petition for panel and en banc rehearing in Rutledge
Oct. 26, 2026	Law.com reports Kenvue's response brief opposing reversal and reassignment

What is Keller asking the Second Circuit to do?

Keller's opening brief, filed July 24, asks the court to reverse the May 8 order. According to Law.com's account of the briefing, it also argues that Judge Cote never held an evidentiary hearing even though she characterized the violations as willful, and that the record shows an appearance of partiality. On that basis it asks that, if the sanctions are reversed, the MDL be assigned to a different judge.

The hearing point is a familiar one in sanctions law. Courts imposing sanctions under their inherent power generally must find bad faith, and appellate courts look closely at whether the accused lawyer had notice and a meaningful opportunity to be heard before such a finding. Whether a paper record suffices depends on whether the material facts are disputed. Here, the basic facts (which documents were cited, and where) appear largely undisputed; the dispute is over whether pointing to or describing a document counts as "use." That framing helps Kenvue argue that no hearing was needed, and helps Keller argue that a willfulness finding on a legal disagreement went too far.

The reassignment request is the more aggressive part. The Second Circuit can reassign a case on remand under its supervisory power and 28 U.S.C. § 2106, but it does so sparingly. Under United States v. Robin, 553 F.2d 8 (2d Cir. 1977) (en banc), the court asks whether the original judge would reasonably be expected to have substantial difficulty setting aside previously expressed views, whether reassignment is advisable to preserve the appearance of justice, and whether reassignment would involve waste and duplication out of proportion to any gain. The last factor weighs heavily in a mature MDL: Judge Cote has managed MDL No. 3043 since 2022, presided over a lengthy Rule 702 process, and knows the record better than any replacement could.

There is also a structural wrinkle. Transferee judges in an MDL are selected by the Judicial Panel on Multidistrict Litigation (JPML) under 28 U.S.C. § 1407(b), not by the circuit. An order from the Second Circuit directing reassignment within the Southern District of New York would sit awkwardly beside that statutory scheme, and Kenvue can be expected to press the point.

Why does Kenvue say the appeal is about reassigning the MDL?

Kenvue's answer brief in the Keller Postman sanctions appeal, as reported on October 26, says Keller is trying to convert a sanctions order into a "strategic opportunity to reassign an MDL." The argument is about fit: a $50,000 fee-shifting order arising from two state court filings is a narrow ruling, and Kenvue contends it cannot carry a request to change judges for hundreds of unrelated personal injury cases.

Kenvue's framing gains force from timing. When Keller filed his opening brief on July 24, the Second Circuit had just reversed Judge Cote on the merits. The July 13 opinion in Rutledge v. Walgreen Co., Nos. 24-916 and 24-2594, written by Judge Guido Calabresi and joined by Judges Gerard Lynch and Eunice Lee, held that the district court exceeded its discretion in excluding three of the plaintiffs' five general causation experts, rejected Kenvue's preemption defense, and sent roughly 500 cases back for further proceedings. A plaintiffs' lawyer who has just won reinstatement of his experts has an obvious interest in having someone other than the judge who excluded them decide the next round of challenges, and Kenvue has said it will move to exclude the experts again.

The rehearing denial on October 16 locked in that remand. Under Federal Rule of Appellate Procedure 41(b), the mandate was due seven days later, on October 23, unless stayed pending a petition for certiorari. Kenvue has said it will seek Supreme Court review of the merits decision. The cases are therefore heading back to Judge Cote at the same time the sanctions panel is being asked whether she should keep them.

Who filed amicus briefs in the Keller Postman sanctions appeal?

A July 31, 2026 amicus brief was filed on behalf of 17 plaintiffs' law firms, which Mealey's described as firms that routinely accept leadership responsibilities in multidistrict litigations, many of them in leadership in the acetaminophen cases. The brief urges reversal and argues that affirming the sanctions would have consequences well beyond the parties to the appeal.

The reasoning behind that argument is practical. Plaintiffs' firms in mass torts routinely litigate the same product in federal MDLs and in state court coordinated proceedings at once. Lawyers who have read the defendant's documents in the MDL cannot unlearn them when they draft a state court complaint or brief. If merely describing or pointing to the existence of a confidential document counts as prohibited use, leadership firms face sanctions exposure every time their state court work reflects knowledge gained in federal discovery. The amici's concern is that an expansive reading would make MDL leadership riskier for exactly the firms courts rely on to run these cases.

No defense-side amicus brief supporting Kenvue was identified in the reporting reviewed for this article.

Can a sanctions order against an MDL lawyer be appealed right away?

For the Keller Postman sanctions appeal, this is the question neither side's public statements have addressed, and it may decide the appeal before the merits. Sanctions orders against attorneys are ordinarily not final decisions under 28 U.S.C. § 1291. In Cunningham v. Hamilton County, 527 U.S. 198 (1999), the Supreme Court held that a Rule 37(a) sanctions order against an attorney is not immediately appealable under the collateral order doctrine, even when the attorney no longer represents a party in the case.

The Second Circuit applied that line of authority to an MDL lawyer less than 14 months ago. In In re: Terrorist Attacks on September 11, 2001, No. 23-1170 (2d Cir. Sept. 10, 2025), Kreindler & Kreindler had been sanctioned under Rule 37(b) for leaking a confidential deposition transcript in breach of protective orders, after a two-day evidentiary hearing before Magistrate Judge Sarah Netburn, and was removed from its leadership position and ordered to pay fees. The Second Circuit dismissed the firm's interlocutory appeal for lack of jurisdiction, reasoning that the order was effectively reviewable after final judgment and was not completely separate from the merits.

How that precedent applies here depends on facts not yet public: the legal basis Judge Cote invoked (Rule 37(b), inherent power, or the protective order's own enforcement terms), and whether any final judgment exists to which the sanctions order attaches. When the order issued in May, the MDL's summary judgment rulings were on appeal; the July 13 opinion vacated those judgments. Whether Kenvue has argued lack of appellate jurisdiction was not reported. If the panel finds the order unreviewable for now, both the sanctions question and the reassignment request would wait, and the cases would proceed before Judge Cote in the meantime.

The Uber MDL comparison

Keller is not the only MDL lawyer sanctioned this year for carrying protected documents into other litigation. In the Uber passenger sexual assault MDL, No. 3084, pending in the Northern District of California, Magistrate Judge Lisa Cisneros ordered plaintiffs' steering committee member Bret Stanley in February 2026 to pay Uber $30,000 for using MDL materials in an unrelated car accident case. Uber had sought $168,573; the court awarded less because Uber had not shown significant harm from the disclosure. The court separately ordered Stanley to pay Uber's fees on a second sanctions motion. The ABA Journal, citing Law.com, reported the combined sanction at $80,000 and reported that Stanley was removed from the plaintiffs' steering committee.

	Acetaminophen MDL No. 3043	Uber MDL No. 3084
Court	S.D.N.Y. (Judge Denise Cote)	N.D. Cal. (Magistrate Judge Lisa Cisneros)
Lawyer	Ashley C. Keller, co-lead counsel	Bret Stanley, steering committee member
Where documents went	Florida and Texas state court cases	Unrelated car accident case
Monetary sanction	Fees on motion, satisfied by $50,000 to March of Dimes	$30,000 plus fees on a second motion ($80,000 reported total)
Leadership consequence	None ordered	Removal from steering committee reported
Appeal	Pending in the Second Circuit	None reported

Read together, the two rulings show federal MDL judges treating protective orders as enforceable limits on parallel litigation, even where the receiving lawyer filed under seal or argued that no secret was actually revealed. They also show the range of remedies. Judge Cote's fee award, with Keller left in place as co-lead counsel, sits at the mild end.

What it means for plaintiffs' firms and MDL defendants

For MDL leadership firms. The safest reading of the May 8 order is that a standard protective order bars any use of designated material outside the MDL, including quoting, describing or attaching it, and that sealing the filing in another court does not cure the breach. Until the Second Circuit says otherwise, firms litigating the same product in state court need either a cross-use provision in the protective order, a sharing agreement with the defendant, or a court order allowing use in identified parallel cases. Asking for those terms at the outset costs little; litigating a sanctions motion later costs a great deal.

For state attorneys general and their outside counsel. The Texas episode shows the risk in contingency fee partnerships where the same private firm represents both MDL plaintiffs and a state. The state's own discovery rights do not carry over automatically to documents the firm holds under a federal protective order. States suing manufacturers alongside an MDL may need to obtain documents through their own discovery rather than through counsel's MDL files.

For defendants. Kenvue's success on the sanctions motion confirms that a protective order is a usable tool against document migration. The modest remedy, though, shows that judges may prefer fee-shifting to leadership changes, especially for a co-lead counsel deep in a complex record.

For the revived Tylenol cases. Whatever happens in the Keller Postman sanctions appeal, the most likely near-term outcome is continuity. Reassignment on remand is rare in the Second Circuit, the Robin waste factor cuts strongly against it in a four-year-old MDL, and the appellate jurisdiction question could end the appeal without any ruling on the merits. Plaintiffs and defendants should plan for renewed Daubert Challenge briefing, case-specific causation discovery and an eventual Bellwether Trial schedule before Judge Cote.

What happens next in the Keller Postman sanctions appeal

Keller is entitled to file a reply brief, after which the Second Circuit will schedule argument or decide on the papers. No argument date had been reported as of October 28, 2026. In the district court, the revived cases await a new case management order covering remaining discovery, renewed expert challenges and case-specific causation. Kenvue's merits petition for certiorari, due January 14, 2027 unless extended, runs on a separate track and would not by itself stop proceedings unless the mandate is stayed.

Separately, the Texas consumer protection case continues in state court, where the question of whether Kenvue and Johnson & Johnson are proper defendants was argued on appeal on June 25, 2026.

FAQ

Why was Ashley Keller sanctioned in the Tylenol MDL?

Judge Denise Cote found on May 8, 2026 that Keller and Keller Postman violated the MDL protective order by using documents Kenvue designated confidential in state court cases in Florida and Texas, including quoting 11 pages of confidential emails in a Florida filing that the state court declined to seal.

How much were Keller and Keller Postman sanctioned?

The court awarded Kenvue its reasonable attorneys' fees on the sanctions motion. On June 1, 2026, the firm and Keller agreed to satisfy that award by donating $50,000 to the March of Dimes.

Is Keller Postman asking for a new judge in the Tylenol autism MDL?

Yes. Keller's July 24, 2026 opening brief asks the Second Circuit to reverse the sanctions and, if it does, to reassign the MDL to a different judge; Kenvue's October 2026 response calls that an improper "strategic opportunity to reassign an MDL."

Will the Tylenol autism lawsuits be reassigned from Judge Cote?

Not yet, and probably not soon. Reassignment on remand is rare in the Second Circuit under United States v. Robin, transferee judges are chosen by the JPML, and the appeal may first face a jurisdictional challenge under the court's 2025 Kreindler decision.

Does the sanctions appeal affect the revived Tylenol autism cases?

Not directly. The roughly 500 cases revived by the July 13, 2026 Rutledge v. Walgreen decision return to Judge Cote while the sanctions appeal is pending, and only an order of reassignment from the Second Circuit would change who presides over them.

Can plaintiffs' lawyers use MDL discovery documents in state court cases?

Only if the protective order or a court order allows it. Under the May 8 ruling, citing, quoting or attaching designated documents in another case, even under seal, can violate a standard protective order.