Civil Procedure

‘Seasoned litigator’ fails to persuade 7th Circuit that sanction was demeaning and too harsh

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A federal appeals court has refused to disturb a sanction imposed against a Chicago lawyer for “repeatedly asserting baseless claims” to support personal jurisdiction and then dodging discovery on the issue through his client’s evasive answers.

The 7th U.S. Circuit Court of Appeals at Chicago ruled against lawyer Mark Barinholtz in an April 8 order.

The sanction required Barinholtz to pay about $17,000 to his opponents for time spent on motions to compel discovery and to obtain the sanction. It also required him to attend 40 hours of continuing legal education. Half of the courses had to cover personal jurisdiction and civil procedure. The other half had to be devoted to professional conduct.

The 7th Circuit said it could not consider Barinholtz’s bid to reverse the sanction because he filed the appeal too late. But it did review the trial judge’s refusal to reconsider the sanction because that appeal was filed on time.

The appeals court said the trial judge’s refusal to reconsider the sanction was sound.

“Here, the judge reasonably ruled that Barinholtz lacked a good reason for vacating the sanctions,” the appeals court said. “He did not cogently explain why his conduct was not sanctionable, he did not demonstrate any mistake of law or fact in the sanctions order, and he provided no excuse or explanation—or apology—for his actions.”

Barinholtz had sought a lesser or zero monetary sanction and fewer CLE hours. One of his arguments in the motion for reconsideration was “that requiring him, a seasoned litigator, to attend legal education courses is demeaning,” the appeals court said.

The 7th Circuit rejected the argument, saying the requirement “directly addresses the sanctionable conduct.”

Barinholtz was representing model and actor Ray Bovinett in the litigation against HomeAdvisor Inc., a predecessor company of Angi Homeservices Inc., and media company Hawthorne Direct. Bovinett’s lawsuit claimed that he had been told that his photo would be used only in print advertisements, yet it was also used in television commercials.

Bovinett’s talent agent had signed a released after his photo shoot in Chicago, however, that allowed the photos to be used in any media, including TV ads. After the shoot, HomeAdvisor partnered with Hawthorne Direct to feature Bovinett’s photos in the TV commercials.

The trial judge had dismissed the claim against Hawthorne Direct because it had no ties to Illinois, and the lawsuit didn’t explain how the company engaged in Illinois activity. Barinholtz responded with an amended complaint alleging that Hawthorne Direct “hatched a plot” with HomeAdvisor to use the photos in TV ads, traveled to Chicago to oversee the photo shoot, and told Bovinett “orally and in text messages” that the photo would not be used on television.

The judge then permitted limited discovery on personal jurisdiction. But Bovinett’s responses were “vague and evasive,” the appeals court said.

After Hawthorne filed a motion to compel discovery, Bovinett answered every request for admission by stating that he was “not in possession of sufficient knowledge or information to admit or deny.” Barinholtz supplemented the responses after a trial judge’s order, adding only that Bovinett lacked “direct, in-person knowledge” of the subjects.

The trial judge tossed all claims against Hawthorne Direct, finding that Hawthorne Direct didn’t plan or attend the Chicago photo shoot and didn’t start working with HomeAdvisor until months later. Bovinett and his talent agent also testified that no one from Hawthorne Direct ever spoke with them about the intended use of the photos.

After the defendants moved for sanctions, Barinholtz withdrew from the litigation, the parties settled the case, and the judge imposed the sanction.

Those facts supported the sanction, including the CLE requirement, the appeals court said.

“Barinholtz raised baseless allegations about Hawthorne’s involvement, pursued frivolous claims, and dodged valid discovery requests; it is reasonable that he be ordered to refresh his knowledge in civil procedure and professionalism despite his proficiency in certain areas,” the 7th Circuit said.

Barinholtz told the ABA Journal in an email that he is reviewing “the procedural and merits-based aspects of the ruling and its impact.” He will likely be seeking a rehearing in the 7th Circuit, he said.

“I obviously feel the disposition is unfair,” he wrote.

His opponent had initially requested $661,000 in fees, which was taken down to about $17,000 by the district court, he said. And he does think that the 40-hour CLE requirement is too harsh.

“In light of my many years of dedicated practice in the federal courts, 40 hours of vaguely characterized CLE not only appears to be unprecedented—but in any event, is far too harsh and unwarranted in these circumstances,” he said.

“Bottom line is the panel got it wrong,” he said.

Hat tip to Law360, which covered the order.

Updated April 14 at 10:28 a.m. to include comments by Barinholtz.

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