Month: October 2018

Dismissal of a Counterclaim is an Appropriate Sanction for Flagrant Discovery Abuse

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Simons vs. Fox, No. 17-1012 (7th Cir., February 1, 2018)

This appeal addresses the propriety of sanctions against a litigant for discovery abuses. In a highly contested dispute between the ex-CEO of a trading firm and its founder, the founder and defendant, asks the appellate court to vacate the dismissal of his counterclaim as a sanction for his discovery abuse. Simons sued Fox for firing him for uncovering Fox’s alleged violations of corporate and securities laws. Fox then countersued Simons for defamation. Throughout the acrimonious litigation, Fox asserted that Simons lied in order to destroy Fox’s companies. Rather than prove that assertion with evidence, Fox obstructed Simons’s discovery. This led to sanctions and ultimately the dismissal of Fox’s counterclaim. Fox appeals the orders leading up to the dismissal.

Fox repeatedly refused Simons’s discovery requests, he refused to produce documents he possessed or controlled, and he was an uncooperative deponent. The district court judge directed the production of documents in at least three separate orders, yet Fox declined to produce discovery. The judge sanctioned Fox and he refused to pay the monetary sanction. Fox was then held in contempt of court and ordered to pay a fine for everyday he remained in contempt. Fox refused to pay the fine for contempt. After Fox asserted that he lacked funds to pay any fines, the judge entered an alternative sanction of dismissing his counterclaim as the sanction for Fox’s obstruction. The court found that when presented with the dismissal of claims as a sanction, “we weigh not only the straw that finally broke the camel’s back, but all the straws that the recalcitrant party piled on over the course of the lawsuit.” Domanus, 742 F.3d at 301 (quoting e360 Insight, Inc. v. Spamhaus Project, 658 F.3d 637, 643 (7th Cir. 2011)).

Similarly, the circuit court held that the trial court did not commit reversible error by allowing Simons to voluntarily dismiss the claims against Fox after Fox’s counterclaim was dismissed. Federal Rules of Civil Procedure 41(a)(2) allows a Plaintiff to dismiss claims voluntarily at any time “on terms the court considers proper.” The court reasoned that at the time of dismissal, Fox was in contempt of court, and he showed no prospect of respecting his long-ignored discovery obligations. Therefore, Fox cannot show prejudice from the judge allowing Simons to dismiss his claims voluntarily to end the case. Finally, Fox contended that the district judge was biased and should have disqualified himself. The court found that judicial rulings, even those that “are critical or disapproving of, or even hostile to” a party, do not constitute a valid basis for disqualification except in the “rarest circumstances” in which “deep-seated favoritism or antagonism” makes fair judgement impossible. Liteky v. United States, 510 U.S. 540, 555 (1994). The circuit court found that Fox presented no persuasive reason to disturb the district judge’s fair and patient approach to managing the case and affirmed the decision.

Second Circuit Rejects Manifest Disregard of Law as a Basis for Vacating Arbitration Award Against Wells Fargo Advisors

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Pfeffer v. Wells Fargo Advisors, LLC, et al., No. 17-1819-cv (2d. Cir. Feb. 15, 2018)

A FINRA arbitration panel dismissed Claimant Pfeffer’s state law claims arising from Wells Fargo Advisors failure to follower her late husband’s instructions to transfer all assets from a trust naming his children as beneficiaries to a trust naming her as the beneficiary. Pfeffer testified that her now deceased husband requested the transfer because the Pfeffers became concerned about the management of the accounts. The Wells Fargo broker testified that he did not transfer the assets because he was worried that Mr. Pfeffer was not competent and was being unduly influenced by Mrs. Pfeffer. After receiving two letters from physicians confirming that Mr. Pfeffer was not capable of making financial decisions, Wells Fargo froze both trust accounts. After a five-and-a-half-day hearing, during which both parties presented testimony and other evidence, the Panel denied Mrs. Pfeffer’s claim.

Mrs. Pfeffer filed a complaint challenging the arbitration award and Wells Fargo moved to dismiss the complaint and confirm the award. The district court confirmed the award and this appeal followed. On appeal, Mrs. Pfeffer argued that the award was procured by undue means, evident partiality, and misconduct because the Panel was intimidated by defense counsel and refused to consider relevant evidence. Pfeffer alleged that the Panel exhibited manifest disregard for the law and facts.

Under the Federal Arbitration Act, a district court may vacate an arbitration award if: (1) the award was procured by “corruption, fraud, or undue means”; (2) the arbitrators exhibited “evident partiality” or “corruption”; (3) the arbitrators were guilty of “misconduct” such as “refusing to hear evidence pertinent and material to the controversy” or “any other misbehavior” that prejudiced the rights of any party; or (4) the arbitrators “exceeded their powers.” 9 U.S.C. § 10(a); see also AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 350 (2011). The court reasoned that the second circuit does not recognize manifest disregard of the evidence as a proper grounds for vacating an arbitration panel’s award, and will only find a manifest disregard for the law where there is no colorable justification for a panel’s conclusion. Wallace v. Buttar, 378 F.3d 182, 193 (2d Cir. 2004).

The court held that Mrs. Pfeffer failed to meet her “very high” burden to demonstrate that vacatur was appropriate. Id. at 103. The court found that the transcript of the arbitration reveals no suggestion that the award was produced by undue means, evident partiality, or misconduct. Mrs. Pfeffer’s allegations that the Panel failed to abate defense counsel’s abrasive manner and that it was intimidated by him are belied by the record. The court found that contrary to Mrs. Pfeffer’s allegations, the transcript of the proceedings shows that the Panel considered her evidence, understood the issues underlying her claims, and afforded her latitude because she was pro se. Therefore, the court found no support for the conclusion that the panel had manifestly disregarded the law and affirmed the lower court’s decision confirming the award.