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Years ago, sanctions were a rare occurrence and at most an appendage to the lawsuit. In fact, someone bringing such a motion risked scorn, as many considered it unprofessional to accuse a fellow lawyer of improper conduct except in the most egregious of circumstances. All that has changed. Sanctions are now commonplace. In fact, they can offer a lucrative return that may overshadow the core litigation. And, perhaps because of the high stakes, a distinct practice area seems to have evolved—“Sanctions Law.”

To get a sense of modern sanctions practice, take a look at some headlines from the Daily Report and affiliates in the last year or so: “Lawyers Appeal to U.S. Supreme Court to Reverse $2.7M Fee Sanction”; “Florida Firms Slammed with $9.2M Sanctions in Tobacco Litigation”; “Judge Sanctions Ford for Bad Faith in Roof Trial.”

In Goodyear v. Haeger, the trial court granted plaintiffs $2.7 million in attorney’s fees after finding that the defendant had withheld discoverable documents. The Ninth Circuit affirmed, but the Supreme Court granted certiorari and reversed because, unless criminal procedural protections are invoked, an attorney’s fee award must be compensatory. The penalty in Goodyear was improper because it was not tailored to the harm caused by the wrongdoing.

The four-judge panel overseeing the Florida tobacco litigation imposed sua sponte a $9.2 million penalty (later cut in half) against two firms that had filed claims the panel considered baseless. Because the underlying litigation already had settled, the money was to go into the court’s coffers. A motion for reconsideration argued inter alia that the sanctions were unconstitutional under Goodyear because the amount could not be rationally tied to any actual cost incurred by the court, as the claims were soon dismissed without court action.

The highly contentious Ford “roof trial” in Gwinnett County has resulted in one of the most extreme sanctions possible—the equivalent of a default judgment. In striking Ford’s defenses, the trial court expressed its belief that Ford had intentionally caused a mistrial by eliciting testimony barred by the court’s prior rulings. As a result, the next trial will be on the issue of damages only.

These three cases exemplify some issues that are paramount in sanctions litigation. Goodyear stressed the importance of due process in the punishment process. The tobacco litigation posed the due process question in the context of sua sponte sanctions, which raises additional concerns. It also highlights what is at stake—the pocketbooks of lawyers as well as their clients. And the Ford case has the twist of “death penalty sanctions” with no right of immediate appeal.

Sources for Guidance

Where do you look for guidance in pursuing or defending against sanctions? Start by examining the sources of authority for punishment. A court has inherent authority to control the proceedings before it. It can award attorney’s fees against an intransigent party, exclude evidence that was not timely disclosed, or dismiss a complaint due to spoliation. But inherent authority to punish is limited to bad faith conduct—though it is not always clear whether “bad faith” is an objective or subjective standard.

Procedural rules sometimes spell out sanctioning authority, like the pleading provisions of Rule 11 and the discovery provisions of Rules 26 and 37. These rules are quite specific with respect to scope and remedy. For example, Rule 11 explicitly addresses sua sponte sanctions and bars an award of attorney’s fees where no motion was filed.

Statutes also might come into play. Sanctions may be imposed under 28 U.S.C. § 1927 to punish a needless expansion of litigation. But that code section also has limitations. Only attorneys can be punished under § 1927, not their clients, and the only remedy is compensatory fees and costs. The Private Securities Litigation Reform Act requires a trial court, when rejecting a securities claim, to determine whether attorney’s fees should be awarded against the plaintiff’s counsel. Other substantive statutes may authorize or even compel punitive measures, such as treble damages under the antitrust laws, fee shifting under Civil Rights statutes, or the bad faith penalties found in insurance laws.

One take-away from the proliferation of sanctions litigation is the importance of analyzing the differences in scope and remedy of the various sources of sanctioning authority. A party seeking sanctions must think about which avenue provides the best relief. If on the other side, a party should look for defenses such as the “safe harbor” provisions of Rule 11. An overarching consideration for any punishment, however, is due process—both procedural and substantive. There must be proper notice and hearing regarding the challenged conduct and potential punishment. And the remedy must correspond to the bad behavior.

Laurie Webb Daniel, Holland & Knight, Atlanta.

Laurie Webb Daniel chairs Holland & Knight’s national appellate team and leads the firm’s Atlanta litigation practice group.