It's not a good morning for Littler Mendelson. Rarely have I seen a day from the Ninth Circuit that made me so strongly wince.
Here's the first thing I read this morning. With a reminder that it's a published order, for everyone to see:
(1) [No. 13-71162] [From San Diego] "The court has considered the 'amici curiae' letters submitted in support of this petition for writ of mandamus. Petitioner has not demonstrated that this case warrants the intervention of this court by means of the extraordinary remedy of mandamus. [Cite]. Indeed, we find the petition to be frivolous and wholly without merit. Accordingly, the petition, including the request for an immediate stay of district court proceedings, is denied.
Within 21 days after the date of this order, counsel Julie A. Dunne, Lara K. Strauss, and Joshua D. Levine of Littler Mendelson P.C. shall show cause in writing why monetary sanctions should not be imposed against counsel individually for filing a frivolous petition for writ of mandamus. [Cites] Counsel’s failure to file a timely response to this order will result in the imposition of sanctions without further notice.
Counsel’s response to the order to show cause is referred to the Appellate Commissioner, who shall conduct whatever proceedings he deems appropriate and shall have authority to enter an order, including an order imposing monetary sanctions."
The pain is palpable. Just imagine getting called out like that. Not to mention the likely hit in your wallet. Add to all that the fact that the whole firm (and legal world) sees it, the firm has to mobilize to respond to the OSC(and so you have to repeat again and again what you've done and why), the fact that you're essentially compelled to grovel -- or at least should -- at this point, etc. etc. The pain. The huge, massive pain.
Then I read another opinion. Same morning:
(2) [No. 13-71160] [From San Francisco] "The court has considered the 'amicus curiae' letter submitted in support of this petition for writ of mandamus by Downtown LA Motors LP. The motion of American Trucking Associations, Inc. and California Trucking Association for leave to file a brief amici curiae is granted. The Clerk shall amend the docket to reflect this status and shall file the amicus brief submitted on April 9, 2013. Petitioner’s request for judicial notice is granted.
Petitioner has not demonstrated that this case warrants the intervention of this court by means of the extraordinary remedy of mandamus. [Cite] Indeed, we find the petition to be frivolous and wholly without merit. Accordingly, the petition is denied.
Within 21 days after the date of this order, counsel Barrett Green, Richard H. Rahm, and Angela J. Rafoth of Littler Mendelson P.C. shall show cause in writing why monetary sanctions should not be imposed against counsel individually for filing a frivolous petition for writ of mandamus. [Cites] Counsel’s failure to file a timely response will result in the imposition of sanctions without further notice.
Counsel’s response to the order to show cause is referred to the Appellate Commissioner, who shall conduct whatever proceedings he deems appropriate and shall have authority to enter an order, including an order imposing monetary sanctions."
OUCH! Two different cases. Two published opinions. Two sanction OSCs. Different lawyers, but same firm. Talk about hacking off the Ninth Circuit!
Then Littler hits the trifecta:
(3) [No. 13-71163] [From San Diego, again] "The court has considered the 'amici curiae' letters submitted in support of this petition for writ of mandamus. Petitioner has not demonstrated that this case warrants the intervention of this court by means of the extraordinary remedy of mandamus. [Cite] Indeed, we find the petition to be frivolous and wholly without merit. Accordingly, the petition, including the request for an immediate stay of district court proceedings, is denied.
Within 21 days after the date of this order, counsel Julie A. Dunne, Lara K. Strauss, and Joshua D. Levine of Littler Mendelson P.C. shall show cause in writing why monetary sanctions should not be imposed against counsel individually for filing a frivolous petition for writ of mandamus. [Cites] Counsel’s failure to file a timely response to this order will result in the imposition of sanctions without further notice.
Counsel’s response to the order to show cause is referred to the Appellate Commissioner, who shall conduct whatever proceedings he deems appropriate and shall have authority to enter an order, including an order imposing monetary sanctions."
Dude!! Exact same lawyers as the first one. Exact same language. Exact same order. But a different mandamus petition. Wow.
I don't recall seeing a single published sanction OSC arising out of a mandamus petition to the motions panel during the past decade. To see three on the same day -- issued against the same firm, no less -- is nothing short of shocking.
It makes me wonder what the petitions were about. Unfortunately, I can't find them online. I can only imagine, however, that the Ninth Circuit simply got fed up with repeated, meritless mandamus petitions filed by the same firm. Sufficiently fed up that it decided that enough was enough.
Which I can understand. Mandamus petitions are truly for extraordinary relief. My guess is that these were run-of-the-mill complaints styled as mandamus petitions by attorneys who were way too riled up and accordingly thought a mandamus petition was the way to go.
They've learned otherwise now. As should others.
Calm down. Take your lumps -- if necessary -- in the district court. Don't waste your time, as well as your client's money, on petitions that essentially serve to merely vent and waste judicial resources.
One other unsolicited piece of advice. When you're called out like this, fall on your sword. Don't try to justify what you've done. It so ain't gonna work. Just say that you got caught up by the perceived error and your zealous advocacy and accordingly made a mistake. Apologize. Sincerely. Offer to pay.
Anything else will just make things worse.
The trifecta today offers some lessons. Learn 'em. Take something away from Littler's pain. Without -- thankfully -- having to incur it yourself.
Ouch.
POSTSCRIPT - A reader helpfully e-mailed me a copy of one of the petitions for mandamus, which I read. It's exactly as -- albeit even longer than -- I expected. Defendant thinks it should have obtained summary judgment, which was denied. Doesn't want to go to trial (or fight class certification), so on that basis files a writ of mandamus. Does defendant have a somewhat tolerable story on the merits? Sure. They've got a claim. But notwithstanding that fact, the Ninth Circuit's right that it's clear that it's not an appropriate case for mandamus case. Indeed, were it otherwise, pretty much every class case with a reasonable dispute on the merits would be subject to mandamus. That's clearly not the law. So I agree that it's overboard to seek mandamus here.
At the same time, my initial impression was that Littler was filing a flood of mandamus petitions, and that the Ninth Circuit was -- entirely appropriately -- responding accordingly. At least from the one petitions, however, it may be that two (or three) of the petitions were "coordinated" in an attempt to get a single-(ish) issue before the Court of Appeals. If true, that's less sanction-worthy, in my mind, than reflexively filing writs whenever you lose below. It's still worthy of sanction if you file a clearly meritless petition a single time. But the number of times you do it is nonetheless relevant. And here, it's possible that I might treat these as a single "group" were I to think about the appropriate penalty.
My advice nonetheless remains the same. Indeed, may be even more relevant. Even if you're totally convinced you're right, stay away from mandamus petitions. Or at least get careful consideration by an uninterested outsider; one who's entirely separate from the emotions of the case (as well as willing to tell you the truth). Because otherwise you risk suffering the same fate as here.
