Judge McBryde Sanctions Three Attorneys in Triple Tee

Posted on February 23, 2011 by Steven Callahan

Last month, Judge McBryde brought the hammer down in a 114-page opinion in a sanction proceeding against Triple Tee Golf, its principal, and three of its attorneys (opinion available here).  The result was not pretty:

  • Triple Tee’s principal was found to have violated Rule 11 by submitting a false declaration (accusing Judge McBryde of “exhibit[ing] personal and extra-judicial bias and prejudice against” the principal) in an attempt to prevent Judge McBryde from presiding over Triple Tee’s lawsuit against Nike.  Judge McBryde noted that, in addition to violating Rule 11, the principal “appears to have committed the criminal offense of perjury and subornation of perjury” and referred the matter to the United States Attorney for the Northern District of Texas to initiate any criminal action that might be appropriate.
  • Judge McBryde found that “Attorney A” (as the case is on appeal to the Fifth Circuit, we are not identifying the relevant individuals) also violated Rule 11 by submitting his own false declaration, and that the attorney appeared to have committed perjury.  Similarly, Judge McBryde requested that the United States Attorney for the Northern District of Texas give consideration to prosecuting the attorney for perjury.  The attorney was also prohibited from practicing in the Northern District of Texas for ten years, and ordered to attend 30 hours of a legal ethics course.  The appropriate state disciplinary authorities were also notified of Judge McBryde’s findings.
  • “Attorney B,” according to Judge McBryde, may have procured the principal or Attorney A to commit perjury.  Attorney B’s conduct was therefore referred to the United States Attorney for the Northern District of Texas.  Attorney B was prohibited permanently from seeking admission to the Northern District of Texas and ordered to attend 30 hours of a legal ethics course.  The relevant state disciplinary authorities would also be notified of Judge McBryde’s findings, and Attorney B was required to pay $8,000 to the clerk of court to reimburse the Court for one-half of the payment the Court made to Lyndell Kirkley for the time and expense Mr. Kirkley devoted and incurred in providing assistance to the Court in connection with the sanctions proceeding.
  • “Attorney C,” a well-known Northern District of Texas practitioner from Fort Worth, was found to have violated Rule 11 because he did not have a reasonable basis to believe that the false factual contentions contained in the principal’s declaration were true, or had evidentiary support, when Attorney C presented the declaration to the Court with the invitation to the Court to consider the false declaration.  Attorney C’s Northern District of Texas bar membership was suspended for two years (with the exception for his currently pending cases).  He was also required to attend 30 hours worth of a course in legal ethics, and to pay $8,000 to the clerk of court for the other half of Mr. Kirkley’s expenses.

The entire 114-page opinion is well worth a read.  For practicing attorneys, we believe the biggest lesson to be learned from the opinion is that, when things seem odd with the facts that your client has relayed to you (even if your client is willing to submit a declaration under penalty of perjury), it is best to conduct your own investigation into the facts or refuse to submit any pleading referencing or advocating your client’s version of the facts until they can be corroborated as much as possible.  This is especially so when your client wants you to call into question the integrity of a federal judge.  You may lose a client, but that is a lot better than finding yourself in a sanction proceeding and suspended from the practice of law before a particular court.

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Is the Plaintiff’s Choice of Venue a Factor in the Section 1404(a) Venue Analysis in the Northern District of Texas?

Posted on January 9, 2011 by Steven Callahan

We recently noticed the Court’s opinion in Wells Fargo Bank v. Bank of America (pdf copy of the decision here).  The opinion dealt with Bank of America’s motion to transfer venue pursuant to 28 U.S.C. § 1404(a).  Bank of America sought to transfer the case to the Southern District of New York, and the Court granted the motion.

In the process, the Court stated, “[a] ‘[p]laintiff’s choice of forum is clearly a factor to be considered but in and of itself is neither conclusive nor determinative.’”  The Court cited (and quoted) In re Horseshoe Entm’t, 337 F.3d 429 (5th Cir. 2003), for support.  And, in fact, the Fifth Circuit did state, in In re Horseshoe, “We believe that it is clear under Fifth Circuit precedent that the plaintiff’s choice of forum is clearly a factor to be considered but in and of itself it is neither conclusive nor determinative.” 337 F.3d 429, 434 (5th Cir. 2003) (emphasis added).

The Court failed to note, however, that this portion of In re Horseshoe Entm’t was overruled by the Fifth Circuit, sitting en banc, in In re Volkswagen of Am., Inc., 545 F.3d 304, 327 (5th Cir. 2008).  In particular, the Fifth Circuit in In re Volkswagen stated:

We have noted that a plaintiff’s choice of venue is to be treated “as a burden of proof question.”  The [plaintiffs], however, argue that a plaintiff’s choice of venue should be considered as an independent factor within the venue transfer analysis . . . .  And, indeed, the district court considered the plaintiffs’ choice of venue as an independent factor within the venue transfer analysis.  A plaintiff’s choice of forum, however, is not an independent factor within the forum non conveniens or the § 1404(a) analysis. . . .  Although a plaintiff’s choice of venue is not a distinct factor in the venue transfer analysis, it is nonetheless taken into account as it places a significant burden on the movant to show good cause for the transfer.  Thus, our analysis directly manifests the importance that we must give to the plaintiff’s choice.

Id. at 315 n.10 (emphases added).

While the Fifth Circuit in In re Volkswagen faulted the district court for considering the plaintiffs’ choice of venue as a factor, the Fifth Circuit overlooked the fact that the district court was applying binding Fifth Circuit at the time of its decision (a la, at a minimum, In re Horseshoe).   And, for this reason, the Federal Circuit in In re TS Tech USA Corp., 551 F.3d 1315, 1322 (Fed. Cir. 2008), was wrong when it stated that “the Fifth Circuit’s recent en banc decision [in In re Volkswagen] did not change any aspect of the law regarding the trial court’s § 1404(a) analysis[.]”  (On a separate note, the sheer number of recent patent cases where the Federal Circuit has “mandamused” district courts in the Eastern District of Texas suggests that In re Volkswagen did, in fact, change the law regarding transfer (or the Federal Circuit, in applying In re Volkswagen, has done so).  Either way, as our friends in the Eastern District of Texas know, it’s a different ballgame post-In re Volkswagen.))

So, to answer our question, the plaintiff’s choice of venue is not a factor in the venue analysis in the Northern District of Texas (or in any district within the Fifth Circuit) under Section 1404(a) post-In re Volkswagen (although the plaintiff’s choice does require the defendant to show “good cause” for the transfer and, in that sense, the plaintiff’s choice of venue still plays an important role in the analysis).

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Match.com Sued Again in the Northern District of Texas

Posted on January 9, 2011 by Steven Callahan

We blogged last fall about Match.com getting certain claims dismissed in a lawsuit asserting RICO, fraud, and breach of contract claims.  Now, Match.com has been sued again in the Northern District of Texas (pdf copy of complaint located here).  The plaintiffs, who purport to represent a class, sued Match.com for breach of contract, breach of the implied covenant of good faith and fair dealing, and negligent misrepresentation, based on, among other things, Match.com allegedly engaging in “fraudulent or negligent misrepresentations about the number of active members” on its site.

Plaintiffs are represented by Roger Claxton, of Dallas, Texas; Jeffrey Norton and Randolph McLaughlin, both of Harwood Feffer LLP in New York, New York; and David Lever, Howard Stolzenberg, and Evan Spencer, all of Lever & Stolzenberg, LLP, of White Plains, New York.

The case is before Judge Lindsay.

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Amendments to the Federal Rules of Civil Procedure

Posted on December 4, 2010 by Steven Callahan

Effective December 1, 2010, Federal Rules of Civil Procedure 8, 26, and 56, and Illustrative Civil Form 52, were amended (pdf copy available here).  The most notable amendment, in our view, is the amendment to Rule 26, which, generally speaking, precludes discovery into an expert’s communications with counsel (with certain limited exceptions, such as compensation related information and assumptions the expert relied on) and protects an testifying expert’s draft reports from discovery.

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Amendments to Northern District of Texas’ Local Rules

Posted on December 4, 2010 by Steven Callahan

Effective December 1, 2010, the Northern District of Texas amended Local Rules 56.3, 56.4, and 56.6, all of which deal with summary judgment.  The amendments apply to all proceedings in civil actions thereafter commenced and, insofar as just and practicable, all proceedings in civil actions then pending.  A redlined version of the amendments, showing the changes made to the prior rules, can be found here.  A copy of the Local Rules in their entirety, effective as of December 1, 2010, can be found here.

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Mandatory Notice to Clients

Posted on November 28, 2010 by Steven Callahan

As a follow-up to yesterday’s post on the Texas Lawyer’s Creed, we thought we’d also note that Texas’ Government Code, Ch. 81, Sec. 81.079 requires that attorneys practicing law in Texas:

[P]rovide notice to each of the attorney’s clients of the existence of a grievance process by: (1) making grievance brochures prepared by the state bar available at the attorney’s place of business; (2) posting a sign prominently displayed in the attorney’s place of business describing the process; (3) including the information on a written contract for services with the client; or (4) providing the information in a bill for services to the client.

The Texas State Bar has made notices available (in English and in Spanish) at the following link.

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The Texas Lawyer’s Creed

Posted on November 27, 2010 by Steven Callahan

Now is a good a time as any to brush up on The Texas Lawyer’s Creed — A Mandate for Professionalism, which was adopted by the Supreme Court of Texas and the Court of Criminal Appeals in 1989 and still remains in effect today.  Below we list eight of the mandates that seem to be often overlooked:

  • I will advise my client of the contents of this creed when undertaking representation.
  • I will advise my client that I reserve the right to determine whether to grant accommodations to opposing counsel in all matters that do not adversely affect my client’s lawful objectives.  A client has no right to instruct me to refuse reasonable requests made by other counsel.
  • I will be courteous, civil, and prompt in oral and written communications.
  • I will agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided legitimate objectives of my client will not be adversely affected.
  • I will not attempt to gain an unfair advantage by sending the Court or its staff correspondence or copies of correspondence.
  • I will not arbitrarily schedule a deposition, Court appearance, or hearing until a good faith effort has been made to schedule it by agreement.
  • I will readily stipulate to undisputed facts in order to avoid needless costs or inconvenience for any party.
  • I will comply with all reasonable discovery requests. I will not resist discovery requests which are not objectionable.  I will not make objections nor give instructions to a witness for the purpose of delaying or obstructing the discovery process.  I will encourage witnesses to respond to all deposition questions which are reasonably understandable.  I will neither encourage nor permit my witness to quibble about words where their meaning is reasonably clear.
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When is Local Counsel Required?

Posted on November 26, 2010 by Steven Callahan

“Unless exempted by LR 83.11 [which deals with attorneys appearing on behalf of the United States Justice Department or the Attorney General of the State of Texas], local counsel is required in all cases where an attorney appearing in a case does not reside or maintain the attorney’s principal office in this district. ‘Local counsel’ means a member of the bar of this court who resides or maintains the attorney’s principal office in this district and whose residence or principal office is located within 50 miles of the courthouse in the division in which the case is pending. Attorneys desiring to proceed without local counsel must obtain leave from the presiding judge. If the request for leave is denied, written designation of local counsel must be filed within 14 days of the denial.” See L.R. 83.10(a).

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How Must Attorneys Conduct Themselves at Trial or Hearings?

Posted on November 26, 2010 by Steven Callahan

“Unless the presiding judge otherwise directs, during a trial or hearing, attorneys must:  (a) stand when making objections or otherwise addressing the presiding judge; (b) use the lectern while examining or cross-examining witnesses; (c) when examining a witness, refrain from making statements, comments, or remarks before or after asking a question; (d) limit to one attorney for each party the examination or cross-examination of a witness; and (e) in making an objection, state plainly and briefly the grounds for objecting and not offer argument unless requested by the presiding judge.”  See L.R. 83.4.

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Can Jurors be Contacted?

Posted on November 26, 2010 by Steven Callahan

Not without the presiding judge’s permission:  “A party, attorney, or representative of a party or attorney, shall not, before or after trial, contact any juror, prospective juror, or the relatives, friends, or associates of a juror or prospective juror, unless explicitly permitted to do so by the presiding judge.”  See L.R. 47.1.

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