Vexatious political litigation does not sit well with a judge. [ABA Journal, Krauss/PoL]
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Posts tagged as:
sanctions
John Steele at Legal Ethics Forum finds much to unpack in a lawyer’s statement defending his zealous advocacy in a California discovery dispute.
Courts will often bend over backward to accommodate litigants who file cases without attorney assistance, but in this case the judge lost patience with one who “embarked on a pro se campaign of litigation that has lasted nearly seven years [and] needlessly consumed a large amount of judicial resources”. [NJLJ]
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There’s an old legal joke that goes: “If you’re weak on the facts, pound the law. If you’re weak on the law, pound the facts. If you’re weak on both the facts and the law, pound the table.”
Except the entrepreneurial trial bar has found an intermediate step: instead of pounding the table, pound the discovery requests. Persuade a judge that a discovery snafu was really a deliberate attempt at a cover-up, and get sanctions that prohibit the other side from defending itself. Because plaintiffs rarely have discovery obligations that are more than an infinitesmal fraction of a defendant’s discovery obligations, this can be a profitable strategy.
The strategy is not new–I saw it myself first-hand in the 1990s defending GM, and wrote a piece about a trial where John Edwards successfully used a variant. But as discovery gets more and more complex due to emails, voicemails, and instant-messaging, it becomes easier for the discovery snafu to happen, and it becomes harder for judges to distinguish between good-faith mistakes and bad-faith withholding of documents. You may recall a famous example in Florida where Morgan Stanley was precluded from introducing evidence about a transaction involving Sunbeam before the appellate court threw out the entire case.
A recent example of this sort of gamesmanship is going on now in Florida where a group of lawyers representing Ecuadorian shrimp farmers came up with a brand new implausible theory of their case–now alleging that runoff from a formulation of a Benlate fungicide that stopped being used in 1991 is what caused their damages in the mid-to-late 1990s, all so they can claim to a judge that DuPont’s failure to produce documents about this marginally relevant formulation (which was effectively identical to the other formulations, except it included two inert ingredients) deserved sanctions. And sure enough, the court ordered a civil death penalty: all of DuPont’s defenses have been stricken, even though there is no scientific evidence that fungicide runoff caused the virus that killed many Ecuadorian shrimp. (Aquamar S.A. v. DuPont, Case No. 97-020375 (Broward County, Fla.))
A similar case involving Goodyear and a civil death penalty sanction that resulted in a $30 million verdict is pending in the Nevada Supreme Court.
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While our legal system is not much inclined to accord sanctions to the victims of meritless litigation, it does happen from time to time. [Vesselin Mitev, NYLJ; sanctions awarded against client John H. Libaire and Northport, L.I. attorney Mitchell A. Stein, who figured in 1990's "Lion Sleeps Tonight" case]
The New Jersey Supreme Court denies recourse to victims of meritless lawsuits.
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As the Blog of Legal Times and ABA Journal note, the D.C. Circuit has upheld an order that Washington, D.C. art dealer and attorney Robert Fastov pay more than $630,000 to compensate Christie’s, the auction house, for meritless litigation aimed at extracting a settlement on an untenable claim. In a summary judgment order last year, the trial judge cited Fastov’s “well-documented proclivity in this case to engage in obstructionist litigation tactics” and ordered him to pay fees: “a greedy individual, with the advantage of a legal education and a claimed litigation experience, has initiated and maintained this lawsuit, which anyone with a modicum of common sense would have realized was without merit.”
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The Recorder: “A federal judge turned down a request for more than $2 million in fees and sanctioned a San Francisco plaintiffs lawyer $25,000 for submitting false fee applications in civil rights litigation against FedEx.” Judge Susan Illston wrote that Waukeen McCoy’s “acts of misconduct with regard to the fee petitions are among the most egregious that this court has seen in almost 14 years on the bench.” More: California Civil Justice. Earlier: Nov. 14, 2007 (McCoy’s firm “billed [opponent] Federal Express for 23.5 hours of one of its attorneys’ time over a single day”), and, on the same lawyer, July 10, 2000.
The losers of a union election sued the winners in federal district court in Chicago, but it wasn’t a very impressive lawsuit. One plaintiff claimed that the threat of being fired caused an asthma attack, but since she in fact got a raise, and she had been having asthma attacks for 25 years, and there wasn’t any threat, her claim of intentional infliction of emotional distress didn’t get very far. The district court issued $80,000 in sanctions under Rule 11, just a fraction of the $200,000 that the defendants claimed to have paid in legal expenses, but James Gordon Banks objected to even this amount on the grounds that he was poor (though this was in some doubt, because of the assets in his wife’s name) and because he was only recently out of law school. Unfortunately for him, he drew Judge Easterbrook on the appeal, and we know that the judge does not suffer fools lightly:
If Banks really is a bad lawyer (as he depicts himself), and is poor because people are not willing to pay much, or at all, for his services, then he should turn from the practice of law to some other endeavor where he will do less harm. No court would say, in a medical-malpractice action, that a doctor whose low standards and poor skills caused a severe injury should be excused because he does not have very many patients. No more is a bad lawyer excused because he has few clients.
The $80,000 sanction was affirmed, and many took note of the humorous opinion: ABA Journal; UK Times OnLine; Wisconsin Law Journal; Courthouse News.
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“Tracing the legal principles behind a New York statute on lawyer deceit to a law adopted by the English Parliament in 1275, the New York Court of Appeals has determined that an attorney can be subject to treble damages in New York for an unsuccessful attempt to deceive a court. Responding to certified questions from the 2nd Circuit, the Court of Appeals ruled that the ‘unique statute of ancient origin’ was not a codification of common law fraud, and applied to attempted deceptions as well as successful ones.” [Joel Stashenko, New York Law Journal]
The new king of the infomercial is Vince Offer, whose abrasive ads for, well, $20 rags and overpriced plastic kitchen gadgets have made him millions and won him an extensive YouTube following.
But Offer thinks he’s an actor/writer/director, though has demonstrated little talent for it; his Underground Comedy Movie, starring such lights as Joey Buttafuoco and Angelyne, got risible reviews.
Of note for this page is that he has had even less success as a litigant. In 1998, Offer brought suit against the Farrelly brothers, implausibly claiming that their hit There’s Something About Mary was plagiarized from his movie. (The Farrelly brothers weren’t impressed: “We’ve never heard of him, we’ve never heard of his movie, and it’s all a bunch of bologna.”) Unfortunately, by bringing the suit under federal copyright law, Offer exposed himself to one of the few two-way fee-shifting statutes out there, and a federal judge had little trouble (literally) rubber-stamping a motion for summary judgment and an order requiring Offer to pay over $66 thousand in attorneys’ fees. (Offer v. Farrelly, Case No. CV 98-7697 RAP(RCx) (C.D. Cal. Jan. 13, 2000); id. (Mar. 14, 2000)).
Offer’s also brought suit against Anna Nicole Smith, and issued a press release threatening to sue The Church of Scientology, but I’m not inclined to spend $4.75 to learn about those cases.
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A trend? Following up on yesterday’s post about the camera and Medtronic cases: “A three-judge panel of the U.S. Court of Appeals for the Federal Circuit on Monday upheld an attorney fee award of nearly $17 million because of baseless filings and bad faith patent litigation by two drug companies. A district court awarded the fees to Takeda Chemical Industries, which had sued two generic drug companies — Mylan Laboratories and Alphapharm Pty. Ltd. — for patent infringement. …The district court agreed with Takeda that both companies lacked a good faith basis for their certification filings and had engaged in litigation misconduct.” (Marcia Coyle, “Panel Upholds $17M Attorney Fee Award, Cites Bad-Faith Patent Litigation by Drug Companies”, National Law Journal, Dec. 9).
“Frequent patent defendants say they’re hit by frivolous lawsuits all the time. But it’s very rare for a judge to find a patent lawsuit to be frivolous enough to grant sanctions and attorney’s fees.” Last week, however, a judge in Peoria issued Rule 11 sanctions against a company called Triune Star which held a patent on a certain type of GPS-using camera. The patent examiner had taken care to limit the patent to infrared cameras to overcome an obviousness objection, but the plaintiff’s lawyers — Keith Rockey and Kathleen Lyons of Chicago-based Rockey, Depke & Lyons — then proceeded to sue three big companies that had sold conventional cameras. A judge awarded the defendants reasonable costs and attorney’s fees, something defense lawyer Brian Rupp says has happened only a few times in the last decade. (Joe Mullin, Prior Art, Dec. 4 via TechDirt; Techdirt, Feb. 26 (Medtronic)).
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- Pajamas TV interviews me on Obama cabinet prospects (RFK Jr., Caroline Kennedy, Schwarzenegger, Gorelick, etc.) (Nov. 13, subscription-only)
- Federal court in New Orleans hits attorney with five-year practice suspension after “intentionally contemptuous” filing and other misconduct [Times-Picayune, Ashton O'Dwyer]
- Lawyer sues his straying wife for giving him herpes, but her lawyer says a test proves she doesn’t have the malady in the first place [Above the Law]
- Doctors (e.g.) being put through hostile depositions are often tempted to talk back sharply to the lawyer. Bad move, says Ronald Miller [Maryland Injury]
- It’s a shame most of the press remains incurious about that episode a few days ago in which talk of compulsory national service appeared, then vanished from the Obama site [K. Ryan James]
- Batting cage pitching machine without prompting hits customer in most sensitive part of male anatomy, he collects $1.2 million [The Big Lead]
- ACLU will defend preacher sent to prison on parole violation charge after writing “God will smite this judge” newspaper article (having earlier been convicted of election misconduct)[AP/FoxNews, western Michigan]
- On appeal, Long Island attorney beats charges of coaching clients to fake injury and using “steerers” to gain business [NYLJ]
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- Chemerinsky, other critics should apologize to Second Circuit chief judge Dennis Jacobs over bogus “he doesn’t believe in pro bono!” outcry [Point of Law and update]
- New York high court skeptical of ultra-high contingency fee in Alice Lawrence v. Graubard Miller case [NYLJ; earlier here and here]
- Panel of legal journalists: press let itself be used in attack on Judge Kozinski [Above the Law]
- Unfree campaign speech, cont’d: South Dakota anti-abortion group sues to suppress opponents’ ads as “patently false and misleading” [Feral Child]
- Even if you’re tired of reading about Roy Pearson’s pants, you might still enjoy Carter Wood’s headlines on the case at ShopFloor ["Pandora's Zipper", "Suit Alors!"]
- Rare grant of fees in patent dispute, company had inflicted $2.5 million in cost on competitors and retailers by asserting rights over nursing mother garb [NJLJ]
- Time to be afraid? Sen. Bingaman (D-N.M.) keen on reintroducing talk-radio-squelching Fairness Doctrine [Radio Equalizer]
- “Yours, in litigious anticipation” — Frank McCourt as child in Angela’s Ashes drafted a nastygram with true literary flourish [Miriam Cherry, Concurring Opinions]
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- Bulgarians employ “decoy lawyers” to get around corruption in official bureaus [Cowen, MargRev]
- Forum-shopping vol. MMMCCXII: Taiwan company claims Apple broke California unfair-practices law so of course it sues in Texarkana [AppleInsider]
- “U.S. produces far too many lawyers for society to absorb” and one reason is that law schools want warm seats on chairs [Greenfield]
- Second Circuit: lawyers can’t buy their way out of sanctions for filing meritless lawsuit [Krauss, PoL]
- Some reasons furor over free speech in Canada is relevant this side of the border [Bernstein @ Volokh]
- We’re quoted on the subject of those websites that offer “point-and-click access to trial lawyers” [Business First of Columbus]
- Tight lid kept on study of disposable diapers’ environmental impact since findings were … inconvenient [Times Online (U.K.) via Stuttaford]
- Judge backs Kentucky’s bid to seize domains of online gambling sites, implications for everyone else [Balko, "Hit and Run"; earlier here and here]
“McDermott, Will & Emery and client Medtronic Inc. must pay $4.3 million in attorney fees as punishment for alleged ‘abuse of advocacy’ in a patent case, a Colorado federal judge ordered Tuesday.” As we noted in our coverage back in February, the judge found at that time that the McDermott lawyers “artfully avoided the limitations of the patent claims and created an illusion of infringement. They did so with full awareness that their case was without merit.” (Zusha Elinson, The Recorder, Oct. 2; WSJ law blog, Oct. 2).
