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Cautionary Tales from the ‘Kraken’ Litigation Sanctions Ruling

Oct. 5, 2021, 8:01 AM

In August, U.S. District Court for the Eastern District of Michigan Judge Linda V. Parker granted motions to sanction nine lawyers appearing in one of the lawsuits filed by President Trump supporters seeking to decertify the results of the 2020 presidential election.

The court concluded that the lawyers’ conduct violated both 28 U.S.C. §1927 (“Counsel’s liability for excessive costs”) and Federal Rule of Civil Procedure 11 and imposed monetary sanctions on the lawyers in the form of reimbursement of the defendants’ counsel fees. The court also referred the lawyers to the disciplinary authorities in each lawyer’s respective jurisdiction.

It is nearly impossible to read the court’s decision without taking into account the overheated emotions swirling around the unprecedented efforts to undo the results of the 2020 presidential election.

After all, as Parker noted in her decision denying the “Kraken” team’s preliminary injunction request, the relief sought was “stunning in its scope and breathtaking in its reach” because, if granted, it would “disenfranchise the votes of more than 5.5 million Michigan citizens who…participate[d] in the 2020 General Election.”

But the decision provides all lawyers with some stark and useful reminders of the important limitations Rule 11 imposes on “zealous advocacy” even in settings other than a high profile controversy over the outcome of a national election.

The Three Prongs of Rule 11(b)

Subsection (b) of Rule 11, “Representations to the Court,” has three independent requirements with respect to court filings:

  • The filing has not been “presented for any improper purpose,” including but not limited to, an intention “… to harass, cause unnecessary delay, or needlessly increase the costs of litigation.” This is the so-called subjective element.
  • Any “legal contentions are warranted by existing law” or, if counsel is arguing to overturn precedent or establish new law, “by a nonfrivolous argument.” This prong of Rule 11(b) is to be applied on an objective basis; and
  • Any and all “factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after … further investigation or discovery.” This too is to be determined as an objective matter.

The “Kraken” lawyers achieved a dubious “trifecta:” the court concluded they’d run afoul of all three prongs of Rule 11(b).

However, it was the court’s analysis of the “evidentiary support” requirement of Rule 11(b)(3) that may provide the most significant caution to litigators of all stripes.

Speculation,'Conjectural Leaps’ Are Not ‘Evidentiary Support’

Parker focused principally on the witness affidavits counsel filed in support of their request for a preliminary injunction compelling Michigan’s election administrators “to transmit certified election results that state that… Donald Trump is the winner of the election....”

Here are some of the lessons practitioners can glean from the court’s analysis.

1. An advocate’s genuine belief in the truth or accuracy of a factual allegation does not establish that the allegation in question had “evidentiary support.” The court noted the authors of Rule 11 specifically made the test of whether factual allegations comply with the Rule an objective one. “[A]n ‘empty-head’ but ‘pure-heart’ does not justify lodging patently unsupported factual assertions.”

Although the good or bad faith conduct of counsel—a subjective standard—is pertinent to the improper purpose” prong in Rule 11(b)(1), it “… is not what determines whether sanctions are warranted under Rule 11(b)(3).” (The court did conclude that some of the same filings that were sanctionable for “lack of evidentiary support” also were sanctionable for having been filed for an “improper purpose.”)

2. By the same token, an “… affiant’s subjective belief that an event occurred does not constitute evidence that the event in fact occurred.” The duty to conduct a reasonable inquiry before filing a sworn witness statement requires counsel to test whether the witness’s factual assertions are based on more than speculation or “conjectural leaps.”

Counsel “may not bury their heads in the sand and thereafter make affirmative proclamations about what occurred above ground. In such cases, ignorance is not bliss—it is sanctionable.”

3. Counsel are obligated to make at least some inquiry to determine whether an affiant actually has personal knowledge of the factual assertions in the affidavit. The judge noted that Rule 11 “’requires litigants [and their counsel] to ‘stop-and-think’ before” relying on a witness affidavit.

The court chastised counsel for including in their filings the “musings” of a witness who, although truthfully “memorializ[ing] what he saw,” provided statements that had “no hope of passing as evidentiary support” for the claim they were intended to support the deliberate tampering with submitted ballots.

4. It is not a defense to a request for sanctions that any material inaccuracy in a witness affidavit filed by counsel can later be addressed through the discovery process. “[P]laintiffs are not entitled to rely on the discovery process to mine for evidence that never existed in the first instance.”

5. The fact that a filed affidavit is from a designated expert does not shield the submission from the requirement that it “have evidentiary support.” A filed expert affidavit that contains errors of glaring “unreliability” in data may, by itself, be sufficient to establish that the pre-filing inquiry by counsel was insufficient under Rule 11.

Taken as a whole, the court’s analysis presents a particular warning to plaintiffs’ counsel relying on witness affidavits: even if counsel honestly believes in the veracity of the witness, he or she better be prepared to explain how the offered statements, as an objective matter, are logically connected to the legal theories asserted.

It’s been reported that some of the same lawyers sanctioned in the Michigan election litigation also face sanctions for having filed similar unsuccessful election challenges in a federal court in Wisconsin. And two of the lawyers called out in the Michigan case have vowed to appeal once Judge Parker sets the dollar amount of the sanctions award. (On Sept. 8, the defendants in the Michigan litigation filed their fee applications as directed by the court; applications seeking reimbursement totaling $204,000.)

Thus, it’s likely we’ll see federal appeals courts weighing in on the “evidentiary support” standard of Rule 11(b)(3), including the scope of the “empty-head-pure-heart” defense.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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David P. Atkins and Marcy Tench Stovall are attorneys in the Professional Liability Practice Group of the Connecticut law firm of Pullman & Comley LLC.

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