On April 23, 2013, NELA filed an amicus brief with the U.S. Court of Appeals for the Sixth Circuit in Howe v. City of Akron, in which Akron firefighters alleged race and age discrimination claims involving promotions. In 2008, a jury found for the firefighters and awarded them $1,891,000 in damages. After lengthy post-trial motion practice, the trial court granted the City of Akron a new trial on the damages award in late 2010. Shortly before the new trial in July 2011, the judge declared the damages issue would be decided in a bench trial rather than before a jury because plaintiffs had waived their right to a jury trial on that issue. He also ordered the City to promote the 19 of the 23 plaintiffs still employed by the City (cutting off their front pay claims), and reduced the back pay period by approximately two years to the date the promotions list at issue had expired. Pursuant to the judge’s orders, plaintiffs’ counsel recomputed the firefighters’ damages, and filed a proposed exhibit with the new calculations, which used a different method to compute the damages than during the original trial. On the last day of the bench trial, the judge struck the calculations exhibit, and sanctioned plaintiffs’ counsel for engaging in a “bait and switch” on their theory of damages. The judge ordered plaintiffs’ counsel to show cause why they should not be sanctioned and defense counsel to submit billing records for in camera review. Plaintiffs’ counsel requested review of the billing records and an evidentiary hearing. Without granting counsel’s requests, the judge sanctioned plaintiffs’ counsel $97,056 pursuant to 28 U.S.C. §1927. Plaintiffs and their counsel appealed the sanction, and they continue to wait for the trial court’s redetermination of the damages award.
NELA’s amicus brief supports the plaintiffs and their counsel in urging the Sixth Circuit to adopt the majority view that court-initiated sanctions under section1927 requires a finding of bad faith by the trial court. No such finding was made in this case. While different panels of the Sixth Circuit have applied varying standards concerning section1927 sanctions, using the lowest standard applied in the Sixth Circuit (which requires “something more than negligence or incompetence”), plaintiffs’ counsel’s conduct did not warrant sanctions. We contend counsel took acceptable and proper steps to comply with the judge’s orders. Moreover, NELA asserts that the sanction imposed against plaintiffs’ counsel has an undue chilling effect on civil rights advocacy, and violates due process. We also raise concern about the unusually high incidence of controversial sanctions imposed by the judge in the case.
NELA member Richard R. Renner served as lead author of NELA’s amicus brief with significant contributions by Bennet D. Zurofsky, NELA Ethics & Sanctions Committee liaison to NELA’s Amicus Advisory Council. (Richard and Bennet also are members of NELA’s Ethics & Sanctions Committee.) NELA Program Director Rebecca Hamburg Cappy participated in drafting the brief as well. We thank all of them for their hard work on this important case. You may read NELA’s amicus brief in Howe on The NELA Exchange.