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A federal judge, steamed at what he called “dubious lawyering” and “questionable actions” during class action litigation, is considering sanctions against some of Georgia’s best-known litigators. Under fire are three lawyers from Atlanta’s Bondurant, Mixson & Elmore. They include principal Emmet J. Bondurant II, recently named by The National Law Journal, an affiliate of the Daily Report and law.com, as one of the top 10 trial lawyers in the country, and partner John E. Floyd, known as a leading authority on the Racketeering Influenced and Corrupt Organization Act. U.S. District Senior Judge John F. Nangle also is considering sanctions against Bondurant Mixson associate Neeli Ben-David and Thomas C. James III of Macon, Ga.’s James, Bates, Pope & Spivey. Nangle, who sits in Savannah, Ga., after serving in the Eastern District of Missouri, ordered the four defense lawyers to show why he should not sanction them for their conduct during the representation of two so-called “payday” loan companies. Nangle has not issued a ruling on the sanctions. The lawyers represented three defendants, including Cashback Catalog Sales, a chain of alleged fast-cash loan businesses. The defendants were accused in a class action suit of violations of usury, racketeering and truth-in-lending laws. The parties recently agreed to a settlement of more than $3 million, including $2.3 to be paid to customers. Nangle wrote that the lawyers failed to cite authority in support of a key argument, misstated the nature of the plaintiff’s allegations, filed frivolous pleadings, made false accusations about the other side, and misled the court with their reliance on and representations about prior case law. Nangle’s show-cause order, issued in late August, described 12 errors that he described as “unjustified and egregious.” He wrote that he repeatedly had warned the defense lawyers, who “crossed the line frequently.” “Defense counsel have abused the resources of the Court, resulting in undue work by the Court, its staff and plaintiffs’ counsel. In twenty-nine years on the bench,” Nangle wrote, “this is the first time the Court finds it appropriate to consider issuing sanctions of this type.” Gibbens v. Cashback Catalog Sales, CV400-101 (S.D. Ga. order Aug. 27, 2001). Floyd, who said he was speaking on behalf of all four attorneys, says they cannot discuss the matter because of local federal rules barring attorneys from commenting on pending litigation. The four have withdrawn from the class action case, hired counsel and responded to the judge’s order. They are represented by Wallace E. Harrell of Brunswick’s Gilbert, Harrell, Gilbert, Sumerford, Martin & Gregg and C.B. Rogers and Richard H. Sinkfield of Atlanta’s Rogers & Hardin. In their response, the lawyers dispute the judge’s characterization of their lawyering and argue that what they did doesn’t merit sanctions. “Defense counsel did not mischaracterize either the legal or factual record in this case,” they say. “Rather, they zealously represented their clients in a difficult case. They should not be punished for doing so.” So far the four attorneys’ arguments defending their conduct have had mixed success with Nangle, who first told them in June that he was considering sanctions. That’s when he wrote a letter addressed to all defense lawyers involved in the case, listing 32 examples of conduct he found questionable and a likely breach of counsel’s duty to the court. Those examples included failing to cite to relevant cases, failing to alert the court of binding precedent, circuit splits or adverse authority, misciting and misquoting case law, accusing plaintiff’s counsel of improper conduct, filing frivolous pleadings and unnecessary exhibits, and quoting a Westlaw headnote rather than the actual opinion. Nangle offered particulars and commentary in his nine-page letter, noting in one instance that first-semester law students might have made such an error. One particular brief, the judge wrote, contained “a veritable plethora of misstatements of the law.” He was particularly peeved at the filing of a seven-inch stack of exhibits to a motion, calling it a waste of paper. And he branded “ridiculous as a matter of law” the defense’s argument against class certification on a theory of “unmanageability” and the use of a statistician to bolster that argument. “Making matters worse, however,” Nangle wrote, “was defense council’s [sic] decision to include as Exhibit E the computer program designed by the statistician. The Court concludes that defense counsel could not have, in good faith, realistically expected this Court to accept such inanity.” He gave all the defense lawyers until July 6 to respond. He got a flood of apologies from lawyers who had had little or no role in the conduct the judge found questionable. Paul W. Painter Jr., of Savannah’s Ellis, Painter, Ratterree & Bart, wrote Nangle to say he was “devastated and embarrassed to be suspected of having committed acts that you may have concluded were sloppy at best and unethical at worst. … Words cannot express, however, how sorry I am that the briefs have generated so much disfavor with the Court.” Painter added that he had read drafts of the pleadings at issue and signed the final versions, but had relied on the other lawyers’ expertise, particularly Floyd, who had taken the lead in the defense team. N. Harvey Weitz, a partner in Savannah’s Weiner, Shearouse, Weitz, Greenberg & Shawe and a member of the State Bar of Georgia’s executive committee, said he and partner Edwin R. Byck had, relying on the Bondurant Mixson team, adopted as their clients’ own one of the briefs the judge had criticized. Weitz told Nangle, “If Edwin or I have offended the Court or breached our duty to the Court, for that Edwin and I are each sorry and we both offer our genuine apologies.” But the Bondurant team, including James, took primary responsibility for the arguments in question and any errors the court had found. They did apologize — but only for three errors. They acknowledged including an incorrect date for a statute of limitations, leaving out the second page of a letter that was attached as an exhibit to a brief, and citing a case without noting that it had been vacated on other grounds. On the other hand, they continued, “we respectfully disagree” with the court’s remaining concerns, adding that they had at no time tried to mislead the court, or failed to comply with their duty to cite controlling authority. “With all due respect, we believe that most of the Court’s concerns are based on our strong difference of opinion as to the relative merits of our legal arguments,” they wrote. None of them, they added, had ever been sanctioned or had their lawyering or conduct criticized in such a manner. “[T]his is the sort of matter that can create a mark on a lawyer’s record that may never be expunged or fully overcome,” they wrote. As “tangible evidence” of the sincerity of their apology for the three errors, they attached a copy of a check for $1,000, made out to Georgia Legal Services, along with a letter to GLS from Floyd that said the donation was from four bar members, none of whom wanted any recognition. Those four, however, did tell Nangle about the contribution and added that it would not be reimbursed by their clients or firms. The letter and contribution only further incensed Nangle. The judge called the contribution a “homespun remedy,” and said it was an affront to the court. “Such contributions, while hopefully significant to the recipients, are a pittance to defense counsel and therefore meaningless to this Court,” he wrote. “Notifying the Court of these contributions did defense counsel no good whatsoever.” He rejected the lawyers’ “presumptuous contention” that his concerns arose only out of strong differences of opinion and ordered them to show why sanctions under Rule 11, which governs representations to federal courts, should not be issued. They withdrew as defense counsel in the case before Nangle, writing that the show-cause order had created a potential conflict between the interests of their clients and their own interests. Their response to Nangle’s order argues that a decision not to cite cases in support of an argument, absent binding authority on point, isn’t sanctionable. Nor is the advancing of novel arguments, the attorneys claim. Rule 11 sanctions, they add, aren’t intended to address minor, inconsequential errors. They deny filing frivolous pleadings and making false accusations against the other side. In fact, they add, of the five defense pleadings cited by the judge, two were granted in part, two others became moot, and only one was denied in its entirety. Lead plaintiffs’ counsel Dana F. Braun of Savannah’s Callaway, Braun, Riddle & Hughes, declines to discuss the sanctions issue. In a Sept. 21 response, however, he criticizes a defense motion to vacate the show-cause order, which was filed under seal in the case, as constituting a “personal attack on the Court” rather than addressing whether defense counsel’s conduct violated Rule 11.

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