We were as surprised as anyone else by the turn of events in our class action suit over allegedly defective televisions, says the big plaintiff’s firm. Sorry we drove into your window, no need for anything drastic like fee shifting under Rule 11, right? [NYLJ]
Posts tagged as:
sanctions
Must be the remains of two lawyers who crossed a Mississippi judge. Background: a casino owner’s resistance to discovery in a bus-crash suit [Freeland, court order]
Trial courts should do more to police “oppressive” discovery requests, according to one state’s high court. [Abnormal Use]
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- Plaintiff in case alleging defective clown shoes “does not want any additional publicity” [N.Y. Post via Lowering the Bar]
- Santa Fe’s anti-wireless activists [The New Mexican, earlier]
- Law vs. vaccines, cont’d: “Judge Declines to Upset $22.5 Million Jury Award in Polio Case” [NYLJ]
- Arizona high court launches probe of Maricopa County prosecutor Andrew Thomas [Coyote, earlier]
- “Innumerable histronics” but no conspiracy: litigation over 1996 Filegate scandal fizzles out [Althouse]
- More boosts in regulators’ budgets [Roger Clegg, NRO, OFCCP employment regulation at federal contractors; Koehler, FCPA Professor] Obama’s putting in regulatory hardliners at many agencies; a clue to his politics? [Bainbridge, Judis/TNR]
- If only they’d confine themselves to suing the actual bad actors in FACTA (credit-card-slip) and junk-fax litigation [Bart T. Murphy, Chicago Business Ledger; my '06 take]
- So may bullies ever fare: sanctions set against company that sued BoingBoing for libel ["MagicJack" case and more]
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- Man who shot dogs sues blogger whose critical account of episode allegedly put him in false light [Christopher Comins v. Matthew Frederick VanVoorhis, Florida, Citizen Media Law; Greenfield (free speech attorney Marc Randazza assisting VanVoorhis)]
- Appeals court revives Pennsylvania couple’s trespass suit against Google over Google Street View pics of their home and pool [Legal Intelligencer, ABA Journal]
- “Rich Guy Sues to Keep $380/Month Rent on Park Ave.” [Gothamist]
- “Think Davis-Bacon on steroids” — Obamaites mull SEIU-driven “High Road” policy to push federal contractors into union practices [Daily Caller, Michael Fox via PoL]
- Federal judge’s 49-page sanctions order blasts Adorno & Yoss, two lawyers and client over bad faith conduct of trade dress suit [Fulton County Daily Report]
- “Terrorist who killed US medic wants C$10 million from Canadian taxpayers” [CanWest/Canada.com via David Frum]
- “Massachusetts Woman Sues Real Estate Broker over Second-Hand Smoke in Condo” [Somin, Volokh; case settles]
- “Our litigation process encourages radical polarization” — part II of Q&A with author Philip Howard [WSJ Law Blog, link to part I]
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“U.S. District Judge Joseph Goodwin plans to punish lawyers who filed worthless claims against Mylan Pharmaceuticals and Actavis Totowa.” Defense lawyers spent more than $100,000 establishing that some plaintiffs who claimed injury from the heart medication had other causes of death listed on their death certificate, and at least one lawyer admitted that his client had never used the drug. [Korris, WV Record; cross-posted from Point of Law; typo now fixed]
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In case you didn’t know that. [Zach Lowe, AmLaw Daily]
“The novel legal claim was filed by Lucie J. Kim in a class action suit against the singer earlier this year that sought $4,000 in damages for each Asian and Pacific Islander living in Los Angeles County.” Kim complained that Cyrus was photographed with an Asian friend and other friends pulling back their eyelids; Cyrus apologized when the photo became public in February. Cyrus sought tens of thousands of dollars in attorneys’ fees for what she felt was a frivolous claim; the request was denied. “Henry M. Lee, Kim’s attorney, said his client is considering appealing the case.”
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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]
