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Edward M. Spiro and Christopher B. Harwood

An order imposing sanctions catches the attention of litigants, sometimes even encouraging the parties to settle. When they do, the sanctioned party often will seek to have the sanctions award vacated as part of the settlement. Increasingly, judges are resistant to vacating sanctions orders. Southern District Judge Victor Marrero’s recent decision in Rogue Wave Software v. BTI Systems, 2018 WL 6920770 (S.D.N.Y. Dec. 14, 2018), is a case in point. There, the parties jointly requested, as part of their settlement of the case, to vacate two sanctions orders issued by Southern District Magistrate Judge Kevin N. Fox against defendants and their counsel for discovery-related misconduct. In upholding the sanctions orders, Judge Marrero discussed the trend away from courts vacating orders just because the parties’ settlement agreement provides for it, and emphasized the strong public interest in maintaining sanctions orders to “deter[] detrimental conduct such as that Defendants exhibited here.” Id. at *7.

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