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4813-6496-9047.8

No. 17-1239

United States Court of Appeals for the First Circuit ______________________________________________________________________________

ANGIODYNAMICS, INC.,

Plaintiff-Appellee,

v.

BIOLITEC AG; WOLFGANG NEUBERGER; BIOMED TECHNOLOGY HOLDINGS, LTD.,

Defendants-Appellants.

BIOLITEC, INC.,

Defendant. __________________________________________________________

On Appeal from the United States District Court for the District of Massachusetts

MOTION BY APPELLEE ANGIODYNAMICS, INC. FOR SANCTIONS AGAINST APPELLANTS’ COUNSEL PURSUANT

TO APPELLATE RULE 38 AND FIRST CIRCUIT RULE 38.0

NIXON PEABODY LLP

William E. Reynolds First Circuit Bar No. 83366 677 Broadway, 10th Floor Albany, NY 12207 Telephone: (518) 427-2687 [email protected]

Counsel for Plaintiff-Appellee AngioDynamics, Inc.

Case: 17-1239 Document: 00117229923 Page: 1 Date Filed: 12/06/2017 Entry ID: 6136348

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TABLE OF CONTENTS

Page

INTRODUCTION ..................................................................................................... 1

BACKGROUND ....................................................................................................... 2

A. Defendants’ Improper Litigation Tactics Throughout this Case .......... 2 B. This Court’s Rejection of the “Expired Injunction” Argument in

Biolitec IV .............................................................................................. 4 C. The Rule 60 Motion Re-Litigating the Rejected “Expired

Injunction” Argument Yet Again .......................................................... 6

ARGUMENT ............................................................................................................. 7

I. DEFENSE COUNSEL ARE SUBJECT TO SANCTIONS FOR FILING THIS FRIVOLOUS APPEAL AND FRIVOLOUS BRIEFS ........... 7

II. AN APPEAL IS FRIVOLOUS WHERE, AS HERE, COUNSEL SHOULD HAVE KNOWN THERE WAS NO CHANCE OF SUCCESS ........................................................................................................ 8

III. THE ARGUMENTS IN DEFENDANTS’ BRIEFS ARE FRIVOLOUS ................................................................................................... 9

A. The Assertion that the Rule 60 Motion Raises Different Issues from Biolitec IV Is Frivolous ................................................................. 9

B. The Contention that Rule 60 Applies Here Is Frivolous .....................11

IV. MAJOR AGGRAVATING FACTORS ARE PRESENT HERE .................12

A. Repeated Meritless Appeals and Recycling of Prior Arguments Militate in Favor of Sanctions .............................................................12

B. Ignoring Prior Warnings Also Militates in Favor of Sanctions ..........14

V. COUNSEL ARE RESPONSIBLE FOR THE LITIGATION TACTICS THEY USE ..................................................................................15

A. Sanctions Against Counsel Are the Only Effective Means of Stopping the Abusive Litigation Tactics .............................................18

VI. THE COURT SHOULD AWARD MONETARY DAMAGES AS A SANCTION ...................................................................................................18

CONCLUSION ........................................................................................................20


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TABLE OF AUTHORITIES

Page(s)

Cases

AngioDynamics, Inc. v. Biolitec AG, 711 F.3d 248 (1st Cir. 2013) (Biolitec I) ................................................... 2, 15, 17

AngioDynamics, Inc. v. Biolitec AG, 780 F.3d 420 (1st Cir. 2015) (Biolitec II) ....................................2, 3, 4, 5, 7, 9, 15

AngioDynamics, Inc. v. Biolitec AG, 780 F.3d 429 (1st Cir. 2015) (Biolitec III) .............................................. 2, 3, 5, 15

AngioDynamics, Inc. v. Biolitec AG, 823 F.3d 1 (1st Cir. 2016) (Biolitec IV) ........................................................passim

AngioDynamics v. Biolitec AG, 974 F. Supp. 2d 1 (D. Mass. 2013) ................................................................. 3, 16

AngioDynamics v. Biolitec AG, 991 F. Supp. 2d 283 (D. Mass. 2014) ................................................................... 3

Biolitec AG v. AngioDynamics, Inc., 136 S.Ct. 535 (2015) ............................................................................................. 2

Biolitec AG v. AngioDynamics, Inc., 137 S.Ct. 631 (2017) ............................................................................................. 2

Bowen Inv., Inc. v. Carneiro Donuts, Inc., 490 F.3d 27 (1st Cir. 2007) .................................................................................. 11

Burlington N. R. Co. v. Woods, 480 U.S. 1 (1987) .................................................................................................. 8

Cronin v. Town of Amesbury, 81 F.3d 257 (1st Cir. 1996) .................................................................. 8, 15, 16, 19

Cruz v. Savage, 896 F.2d 626 (1st Cir. 1990) ............................................................................... 17


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D’Angelo v. New Hampshire Supreme Court, 740 F.3d 802 (1st Cir. 2014) .................................................................................. 8

E.H. Ashley & Co., Inc. v. Wells Fargo Alarm Services, 907 F.2d 1274 (1st Cir. 1990) ................................................................................ 8

Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 543 F.2d 1106 (5th Cir. 1976) ............................................................................. 13

Good Hope Refineries, Inc. v. Brashear, 588 F.2d 846 (1st Cir. 1978) ................................................................................ 17

Huck ex rel. Sea Air Shuttle Corp. v. Dawson, 106 F.3d 45 (3d Cir. 1997) ................................................................................. 14

In re Continental Inv. Corp., 642 F.2d 1 (1st Cir. 1981) .................................................................................... 14

In re Efron, 746 F.3d 30 (1st Cir. 2014) .................................................................................... 9

In re Nelson, 994 F.2d 42 (1st Cir. 1993) .................................................................................. 19

In re Simply Media, Inc., 583 F.3d 55 (1st Cir. 2009) ............................................................................ 13-14

In re W. Tex. Marktg. Corp., 12 F.3d 497 (5th Cir. 1994) ................................................................................. 11

La Amiga del Pueblo, Inc. v. Robles, 937 F.2d 689 (1st Cir. 1991) ................................................................................ 19

Maxwell v. KPMG, LLP, 2008 WL 6140730 (7th Cir. 2008) ...................................................................... 19

Merit Ins. Co. v. Leatherby Ins. Co., 737 F.2d 580 (7th Cir. 1984) ............................................................................... 13

Natasha, Inc. v. Evita Marine Charters, Inc., 763 F.2d 468 (1st Cir. 1985) .......................................................................... 18-19


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N.E. Alpine Ski Shops, Inc. v. U.S. Divers Co., Inc., 898 F.2d 287 (1st Cir. 1990) ................................................................................ 17

Polansky v. CNA Ins. Co., 852 F.2d 626 (1st Cir. 1988) ................................................................................ 17

Roger Edwards, LLC v. Fiddes & Son, Ltd., 437 F.3d 140 (1st Cir. 2006) .......................................................................... 12, 19

Sarlund v. Anderson, 205 F.3d 973 (7th Cir. 2000) ............................................................................... 18

Simon & Flynn, Inc. v. Time Inc., 513 F.2d 832 (2d Cir. 1975) ............................................................................... 16

Solman Distributors, Inc. v. Brown-Forman Corp., 888 F.2d 170 (1st Cir. 1989) ................................................................................ 19

Steinle v. Warren, 765 F.2d 95 (7th Cir.1985) ................................................................................. 17

Taylor v. Sentry Life Ins. Co., 729 F.2d 652 (9th Cir. 1984) ............................................................................... 16

Tomczyk v. Blue Cross & Blue Shield United of Wisconsin, 951 F.2d 771 (7th Cir. 1991) ............................................................................... 14

Trecker v. Scag, 747 F.2d 1176 (7th Cir. 1984) ............................................................................... 9

Zerman v. Jacobs, 751 F.2d 82 (2d Cir. 1984) ................................................................................. 13

Rules

Fed. R. App. P. 38 ............................................................................2, 7, 8, 14, 19, 20

Fed. R. Civ. P. 60(a)................................................................................................. 11

Fed. R. Civ. P. 60(b) .......................................................................... 4, 11, 12, 13, 15

First Circuit Rule 38.0 ...................................................................................... 2, 7, 20


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Other Authorities

21-338 Moore’s Federal Practice - Civil (2017)............................................... 12, 19

Wright and Miller, 16AA Federal Practice and Procedure (4th ed. 2017) ..................................................................................... 12, 14, 16, 18


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INTRODUCTION

The present appeal re-hashes the “expired injunction” argument – that

because the district court’s preliminary injunction has allegedly “expired,” the civil

contempt sanctions against defendants1 should be vacated. In defendants’ previous

appeal,2 this Court found that they had already waived this argument over two and

a half years ago; the argument already “reek[ed] of an attempt at re-litigation”

then. A-128.3 There is no possible justification for defense counsel’s re-litigation

of this already waived and rejected argument yet again in the current appeal.

As the district court found, defendants’ position is “colossally specious.” A-

206. The district court specifically admonished defendants that “we just can’t keep

going on and on like this.” Id.

Despite defendants’ years of improper and abusive litigation tactics,

AngioDynamics has until now forborne seeking sanctions in this Court. It brings

the present motion reluctantly. But defendants have made absolutely clear that,

while they will prosecute appeal after appeal, they will never obey an adverse

decision of this Court. Defense counsel have enabled this abuse, culminating in

1 “Defendants” refers to defendants-appellants Biolitec AG (BAG), Biomed Technology Holdings, Ltd., and Wolfgang Neuberger. 2 AngioDynamics, Inc. v. Biolitec AG, 823 F.3d 1 (1st Cir. 2016) (Biolitec IV).3 A copy of defendants’ Appendix in the present appeal (“A- ”) is attached as Exhibit A to the accompanying Declaration of William E. Reynolds.


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the present frivolous appeal. The Court should therefore sanction defense counsel4

under Appellate Rule 38 and Local Rule 38.0.5

BACKGROUND

Defendants are appealing the denial of a Rule 60 motion to vacate civil

contempt sanctions they have utterly defied for over four and a half years.

This Court has issued four prior opinions in this litigation, all four of which

have emphatically rejected defendants’ arguments.6 The Supreme Court has also

denied defendants’ two petitions for certiorari.7

A. Defendants’ Improper Litigation Tactics Throughout this Case

As this Court described in Biolitec IV, defendants have made “a series of

attempts to evade payment to” AngioDynamics “and to elude the power of the

courts.” A-121. Most egregiously, they completed BAG’s enjoined merger with

4 “Defense counsel” refers to the Griffith Firm and Doherty Wallace Pillsbury & Murphy, P.C. The Griffith Firm has represented defendants in this case since August 2012 (see A-20 (District Court ECF# 124)), and the Doherty Wallace firm has represented defendants throughout the case. Both firms represented defendants in all four prior appeals in this Court. 5 AngioDynamics requests that the Court impose as sanctions either an appropriate amount selected by the Court, or the attorneys’ fees AngioDynamics expended in briefing this appeal. If the Court chooses to impose the attorneys’ fees expended, AngioDynamics will submit its billing records for the Court’s review. 6 Biolitec I (711 F.3d 248 (1st Cir. 2013) (per curiam)); Biolitec II (780 F.3d 420 (1st Cir. 2015) (A-98-113)); Biolitec III (780 F.3d 429 (1st Cir. 2015)); and Biolitec IV (823 F.3d 1 (1st Cir. 2016) (A-119-141)). 7 136 S.Ct. 535 (2015) and 137 S.Ct. 631 (2017).


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its Austrian subsidiary, which had the effect of “precluding” AngioDynamics

“from enforcing its judgment” against BAG. A-122.

Defendants completed the merger “despite repeated assurances” by their

counsel “that they would comply with the” court’s preliminary injunction. Id.

Afterward, defense counsel presented “an obviously specious argument” to justify

defendants’ contempt, an argument the district court found “breathtakingly silly”

and “patently deficient.”8 Defendants have “persisted in stonewalling” and have

“unequivocally state[d]” that they have “no intention of complying with the

contempt order” they are now appealing for a third time. A-123.

The district court entered default judgment of $74,920,422.57 after finding

that defendants’ “outrageous misconduct” had “thwarted” discovery “at virtually

every turn,” and that defendants had “consistently attempted to stall this litigation

through their dilatory tactics.”9 As “just one example” of “unprofessional

conduct,” the district court noted that “despite months of suggesting otherwise,”

defendants “refused to proceed” with key depositions “at the last minute.”10

8 AngioDynamics v. Biolitec AG, 974 F. Supp. 2d 1, 6 & n.3, 12 (D. Mass. 2013), affirmed in Biolitec II. 9 AngioDynamics v. Biolitec AG, 991 F. Supp. 2d 283, 288, 294 (D. Mass. 2014).10 Id. at 297.


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In Biolitec III, this Court affirmed the judgment, finding defendants’ conduct

“severe, repeated, and deliberate, with no legitimate or mitigating explanation.”

780 F.3d at 435. To date, defendants have continued to evade all efforts to satisfy

the judgment.

B. This Court’s Rejection of the “Expired Injunction” Argument in Biolitec IV

In Biolitec II, this Court affirmed the district court’s contempt order for the

first time. In Biolitec IV, defendants’ second appeal of the contempt sanctions,

they unveiled the “expired injunction” argument, contending that the preliminary

injunction had expired upon entry of the default judgment, and that “the district

court was without authority” to “coerce compliance with an ‘expired’ order.” A-

125-126. Defense counsel raised this argument for the first time on appeal in this

Court, without having presented it to the district court. Counsel later

acknowledged that they “could have raised the” expired injunction “issue in a Rule

60(b) motion [in] the district court”11 before bringing it here. They simply chose to

raise the issue in this Court first.

11 Defendants’ Biolitec IV Reply Brief (Reynolds Dec. Exhibit E) at 15. The briefs on the current appeal are also attached as exhibits to the Reynolds Declaration: Exhibit B (defendants’ August 3, 2017 opening brief) (cited as “Def. Br.”); Exhibit C (AngioDynamics’s October 26, 2017 brief); and Exhibit D (defendants’ November 29, 2017 reply brief) (cited as “Reply Br.”).


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In Biolitec IV, this Court rejected the argument, holding that defendants had

waived it by not raising it in Biolitec II or III.12 The Court noted defendants’

“unyielding contumacy” (A-124), and found that they had “repeatedly thumbed

their nose at the district court” (A-140). The argument “reek[ed] of an attempt at

re-litigation” (A-128):

It is unclear whether the Defendants’ failure to raise this argument in their prior appeals was the result of inadvertence or tactical reserve and procedural gamesmanship. . . . Perhaps, they opted to await our decisions and see how they fared, and when they realized that their original recipe had failed to impress, they used the very same ingredients to cook up a collateral challenge . . . .

A-127.

This Court called the “expired injunction” argument “a belated challenge

implicitly foreclosed by our prior decisions” – “a theory borne of” defendants’

“own defiance and delay.” A-139-140. Defendants sought, quite simply, to defy

the preliminary injunction “long enough” to “eviscerate” it. A-141 (citations and

internal quotation marks omitted).

12 See A-126 (defendants “fail[ed] to raise the argument in their prior appeals”; their “window of opportunity to make this argument” was in “Biolitec II and Biolitec III.”) Defense counsel repeatedly misrepresent this finding, falsely implying that the Court found they only had the opportunity in Biolitec II. See Def. Br. 3-4, 13-14, 18, 20-21, 27, and Reply Br. 2 n.2.


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C. The Rule 60 Motion Re-Litigating the Rejected “Expired Injunction” Argument Yet Again

Thirteen days after this Court denied rehearing and rehearing en banc in

Biolitec IV (A-147), defense counsel filed their Rule 60 motion to vacate the

contempt orders based on the exact same “expired injunction” argument this Court

had just rejected. A-74. In their motion papers, defense counsel simply copied

whole sections of their brief from Biolitec IV (see A-143-146) – which, in turn,

they copied once again into their opening brief on the current appeal. Compare

Def. Br. 3, 27-31 to A-157, 161-164. The Rule 60 motion openly advanced the

“expired injunction” argument, contending that the contempt sanctions

should be vacated because the order for which they were intended to coerce compliance – the September 13, 2012 preliminary injunction [ECF 141] – expired by its own terms . . . and is no longer in effect.

A-74.

The district court found the motion “colossally specious” (A-206):

The argument is incorrect on the merits. It’s been rejected by the First Circuit explicitly, and we just can’t keep going on and on like this.

You had an opportunity to raise this issue. You not only didn’t raise it . . . you went before the First Circuit seeking to vacate an order which you [now] say . . . was


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already expired.[13] You can’t do that just as a matter of simple fairness, and the prejudice to the plaintiffs here has been enormous. . . . There were years that you could have made this argument. It’s way too late.

A-206.

Defendants have waived this argument; it has been rejected by the First Circuit; it is contrary to the civil rules; and it lacks substantive merit.

A-72. “True to form, Defendants now appeal” (A-125) once again.

ARGUMENT

I. DEFENSE COUNSEL ARE SUBJECT TO SANCTIONS FOR FILING THIS FRIVOLOUS APPEAL AND FRIVOLOUS BRIEFS

Fed. R. App. P. 38 provides that if the Court “determines that an appeal is

frivolous, it may, after a separately filed motion . . . award just damages and single

or double costs to the appellee.”

Local Rule 38.0 further provides that when

any attorney practicing before the court files a . . . brief . . . that is frivolous or . . . unreasonably or vexatiously increases litigation costs, the court may . . . on motion . . . impose appropriate sanctions on the offending party, the attorney, or both. . . .

13 In Biolitec II, which was decided one year after the alleged expiration of the preliminary injunction, defendants contended that the injunction remained in effect and needed to be vacated. Defense counsel made this argument in both of their Biolitec II briefs, including the reply brief they filed two weeks after they now claim the injunction expired. See A-196-199 (arguing the injunction should be vacated on substantive grounds and making no suggestion that it had “expired”).


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The Supreme Court has said:

Rule 38 affords a court of appeals plenary discretion to assess “just damages” in order to penalize an appellant who takes a frivolous appeal and to compensate the injured appellee for the delay and added expense of defending the district court’s judgment.

Burlington N. R. Co. v. Woods, 480 U.S. 1, 7 (1987).

The purpose of such penalties is to discourage litigants from wasting the time and monetary resources of both their opponents and the nation’s judicial system with legal arguments that do not merit consideration.

E.H. Ashley & Co., Inc. v. Wells Fargo Alarm Services, 907 F.2d 1274, 1280 (1st

Cir. 1990) (sanctioning appellants and their counsel). Accord D’Angelo v. New

Hampshire Supreme Court, 740 F.3d 802, 808 (1st Cir. 2014) (Rule 38 sanctions

apply when litigants “needlessly consum[e] the time of the court and opposing

counsel”).

II. AN APPEAL IS FRIVOLOUS WHERE, AS HERE, COUNSEL SHOULD HAVE KNOWN THERE WAS NO CHANCE OF SUCCESS

An appeal is frivolous if appellants’ “attorney should have been aware that

the appeal had no chance of success.” Cronin v. Town of Amesbury, 81 F.3d 257,

261 (1st Cir. 1996) (sanctioning appellants and their counsel) (quoting from E.H.

Ashley, supra, 907 F.2d at 1280).

An appeal is frivolous if the arguments in support of it are wholly insubstantial and the outcome is obvious from the start. . . . Put another way, an appeal is frivolous “when the appellant’s legal position is doomed to failure


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– and an objectively reasonable litigant should have realized as much from the outset.” Toscano v. Chandris, S.A., 934 F.2d 383, 387 (1st Cir. 1991).

In re Efron, 746 F.3d 30, 37 (1st Cir. 2014).

Here, the current appeal raises the exact same argument this Court has

already rejected as “an attempt at re-litigation.” A-128. In light of Biolitec IV,

which disposed of the very same issue, defense counsel simply “could not have

had any reasonable expectation of” prevailing in this appeal. Trecker v. Scag, 747

F.2d 1176, 1180 (7th Cir. 1984) (awarding double costs and attorneys’ fees against

appellant’s counsel). “We can think of no other reason for this appeal” aside from

“delay, harassment or ‘sheer obstinancy.’” Id. (citation omitted).

III. THE ARGUMENTS IN DEFENDANTS’ BRIEFS ARE FRIVOLOUS

This Court held in Biolitec II that defendants cannot use a Rule 60 “motion

to collaterally attack” a ruling that has already been “considered and affirmed” on

appeal. A-103. And defense counsel concede that they are not allowed to “re-

litigat[e]” “matters that were explicitly or implicitly decided by an earlier appellate

decision.” Def. Br. 20. Yet that is exactly what they are doing.

A. The Assertion that the Rule 60 Motion Raises Different Issues from Biolitec IV Is Frivolous

Defense counsel assert that “the Rule 60 motion raised separate and distinct

issues than the issue held to have been waived in” Biolitec IV. Def. Br. 17. Their

own words utterly bely this contention:


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Defendants’ Brief in Biolitec IV Defendants’ Rule 60 Motion “This appeal challenges the [contempt sanctions] on the ground that the Preliminary Injunction – the order that the sanctions are allegedly designed to coerce compliance with – is no longer in effect . . . . [It] expired by its own terms over one year ago . . .” A-158.

“[The contempt sanctions] should be vacated because the order for which they were intended to coerce compliance – the September 13, 2012 preliminary injunction [ECF 141] – expired by its own terms . . . and is no longer in effect.” A-74.

Indeed, defense counsel say the “Rule 60 motion raised two substantive

issues” (Def. Br. 20): (1) the district court “mistakenly assumed that the

Preliminary Injunction was still in effect when it issued the Remand Contempt

Order” (Def. Br. 21) (emphasis added); and (2) “expiration of the Preliminary

Injunction divested the contempt orders of their coercive purpose and thereby

made prospective application of the orders inequitable” (Def. Br. 21) (emphasis

added).

In other words, defendants argue that because the injunction “expired,” the

contempt sanctions can no longer continue. That contention is the entire basis of

this appeal, just as it was the entire basis of Biolitec IV.

“Expired,” “expiration,” “expire,” and “expires” appear 39 times in

defendants’ opening brief and 42 times in their reply brief. Section III of the

current reply brief – pages 10 through 16 – copies, essentially verbatim, Section I

of defendants’ Biolitec IV Reply (pages 4-10). Where defendants’ Biolitec IV

opening brief asserted that “Coercive Civil Sanctions . . . Must be Vacated When


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the Underlying Order Expires” (A-161), their current reply brief says the exact

same thing: “COERCIVE SANCTIONS MUST BE VACATED WHEN THE

UNDERLYING ORDER EXPIRES.” Reply Br. 16.

B. The Contention that Rule 60 Applies Here Is Frivolous

The Rule 60(a)/60(b)(5) argument is frivolous, as the district court found.

A-72 (“it is contrary to the civil rules”). Rule 60(a) is only available to correct a

clerical or “mathematical mistake”14 and cannot possibly apply here. Defendants

do not seek to correct the contempt sanctions; they seek to overturn them outright

via legal argument, which Rule 60(a) simply cannot do.

Under Rule 60(b)(5), defendants’ arguments are equally frivolous:

• Defendants have utterly defied the sanctions – the opposite of “satisf[ying],

releas[ing], or discharg[ing]” them (Rule 60(b)(5), clause 1).

• The sanctions have repeatedly been affirmed on appeal and no relevant

decision has been “reversed or vacated” (Rule 60(b)(5), clause 2).

14 Bowen Inv., Inc. v. Carneiro Donuts, Inc., 490 F.3d 27, 29 (1st Cir. 2007) (quoting from In re W. Tex. Marktg. Corp., 12 F.3d 497, 505 (5th Cir. 1994)).


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• The sole basis on which defendants argue that the sanctions are “no longer

equitable” (Rule 60(b)(5), clause 3) is the alleged expiration of the

injunction (Def. Br. 24, Reply Br. 19). 15

Implicitly acknowledging the frivolousness of their position, defense counsel

did not cite a single Rule 60 case in either of their briefs.

IV. MAJOR AGGRAVATING FACTORS ARE PRESENT HERE

A. Repeated Meritless Appeals and Recycling of Prior Arguments Militate in Favor of Sanctions

“[A]n appellant who has filed multiple meritless appeals is particularly at

risk for sanctions.” Wright and Miller, 16AA Federal Practice and Procedure §

3984.1 (4th ed. 2017). “Relitigating issues decided in a previous appeal” – as

defense counsel have done here – “is likely to be found frivolous.” 21-338

Moore’s Federal Practice - Civil § 338.20 (2017). An appellant’s

insistence on rehashing its meritless claims yet again represents just the sort of vexatious behavior that Rule 38 is meant to discourage.

Roger Edwards, LLC v. Fiddes & Son, Ltd., 437 F.3d 140, 145 (1st Cir. 2006) (case

where, as here, the Rule 60(b) motion being appealed was itself “a second bite at

the apple”). Where an appellant has made multiple trips to the appeals court and

15 Defendants falsely assert that the district court held they are “forever preclude[d]” “from seeking to vacate the [contempt] orders under Rule 60.” Def. Br. 1. The district court made no such holding; it only held that they had “waived this argument” (A-72 (emphasis added)) – the “expired injunction” argument.


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“continues to relitigate the same issue,” he “has cast his line one time too many.”

Zerman v. Jacobs, 751 F.2d 82, 85 (2d Cir. 1984).

In a case with compelling parallels to the present one, the Fifth Circuit

imposed sanctions where, as here, the court had issued a prior decision, denied

“rehearings by panel and en banc,” and the Supreme Court had “declin[ed]

certiorari,” but the appellant “nevertheless began yet another [proceeding] in the

district court which, upon” appeal from its denial, confronted the court of appeals

“with precisely the same issue” as before. Exhibitors Poster Exchange, Inc. v.

National Screen Service Corp., 543 F.2d 1106, 1107 (5th Cir. 1976). An appeal “is

frivolous” “[o]n its face” when “it seeks to bring up to us the identical issues that

were the subject of” a prior appeal. Merit Ins. Co. v. Leatherby Ins. Co., 737 F.2d

580, 581 (7th Cir. 1984). A “disturbing pattern of litigating claims that repeatedly

advance the same frivolous arguments” – like that here – warrants sanctions

against counsel. Tomczyk v. Blue Cross & Blue Shield United of Wisconsin, 951

F.2d 771, 777 (7th Cir. 1991).

Direct copying of prior unsuccessful briefing, as defense counsel have done

here, makes matters even worse:

The deficiencies in the appellants’ brief are unsurprising because much has been taken verbatim from [a] brief in the prior appeal. . . . [A]s we previously found the prior brief inadequate, borrowing merely perpetuates that inadequacy.


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In re Simply Media, Inc., 583 F.3d 55, 56-57 (1st Cir. 2009). On this appeal,

defense counsel have copied heavily from their unsuccessful briefing in Biolitec

IV. Compare Def. Br. 27-31 to A-161-164 and Reply Br. 10-16 to Biolitec IV

Reply 4-10.

B. Ignoring Prior Warnings Also Militates in Favor of Sanctions

Where, as here, the “appellant has previously been warned by” the courts

that “its arguments were meritless, the court of appeals may be more willing to

impose Rule 38 sanctions.” Wright and Miller, supra § 3984.1. See In re

Continental Inv. Corp., 642 F.2d 1, 5 (1st Cir. 1981) (imposing sanctions where

appellants had filed multiple prior appeals and this Court had “consistently noted

our doubts . . . as to the worth of appellants’ claims”). A strongly worded district

court decision, like the ruling defendants appeal here, should

have urged upon [appellant] and his counsel some extra caution, and given him pause to devote additional examination to the legal validity and factual merit of his contentions.

Huck ex rel. Sea Air Shuttle Corp. v. Dawson, 106 F.3d 45, 52 (3d Cir. 1997)

(noting that where “counsel has . . . merely reargued the already-litigated claims,”

“the predicate for an award under Rule 38 is met”).

In defendants’ prior appeals, this Court has repeatedly warned counsel that

their positions and tactics lack merit:


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• Biolitec I noted defendants’ “dissembling” and “misrepresent[ation]” of

“principles of European law” (711 F.3d at 250 n.1, 252 n.4).

• Biolitec II found defendants had improperly used a “Rule 60(b) motion to

collaterally attack” a prior ruling (A-103), re-hashing an argument that

“[t]his court ha[d] already rejected” (A-104). Defense counsel have recycled

these same improper tactics again here.

• Biolitec III found that defendants had “engage[d] in a deliberate pattern of

stonewalling” and were “an obstructionist adversary” (780 F.3d at 436)

(citations and internal quotation marks omitted).

• Biolitec IV noted defendants’ “persiste[nce] in stonewalling” and their

“attempt at re-litigation” (A-123, 128), and found that they had “repeatedly

thumbed their nose at the district court” (A-140).

In short, defense counsel had more than ample warnings, long before the

present appeal, that their tactics and arguments were inappropriate.

V. COUNSEL ARE RESPONSIBLE FOR THE LITIGATION TACTICS THEY USE

As this Court has said, an “attorney’s duty to represent a client zealously is

not a license to harass.” Cronin, supra, 81 F.3d at 262. A frivolous appeal

“crosse[s] the line from zealous advocacy to vexatious advocacy, needlessly

multiplying the proceedings.” Id. When this happens, “it is appropriate to


4813-6496-9047.8

16

sanction the attorney personally for the excess costs, expenses and attorneys’ fees

reasonably incurred.” Id.

“The mere fact that a client wished” it “does not justify a lawyer’s decision

to take a frivolous appeal.” Wright and Miller, supra § 3984.1. “Counsel must

realize that the decision to appeal should be a considered one” and “not a knee-

jerk-reaction to every unfavorable ruling.” Simon & Flynn, Inc. v. Time Inc., 513

F.2d 832, 835 (2d Cir. 1975).

Our society in general, and appellate courts in particular, labor under a heavy burden of litigation which is “needlessly aggravated when frivolous appeals are taken.” . . . [L]awyers have a duty to inform a client that his [position] is unjustified. . . . [I]f attorneys do not act judiciously, courts will respond judicially.

Taylor v. Sentry Life Ins. Co., 729 F.2d 652, 656 (9th Cir. 1984) (citation omitted).

In this case, after a history of advancing “breathtakingly silly” and “patently

deficient” arguments,16 defense counsel pursued the appeal in Biolitec IV, raising

the expired-injunction argument this Court found a transparent “attempt at re-

litigation.” A-128. Then, after this Court rejected that appeal, counsel frivolously

brought the Rule 60 motion in the district court raising precisely the same

16 AngioDynamics, supra, 974 F. Supp. 2d at 6, 12.


4813-6496-9047.8

17

argument.17 Even after the Supreme Court denied certiorari in Biolitec IV and the

district court warned them that the motion was “colossally specious” (A-206),

counsel persisted in their frivolous position on the current appeal.

“[T]here is a point beyond which zeal becomes vexation.” N.E. Alpine Ski

Shops, Inc. v. U.S. Divers Co., Inc., 898 F.2d 287, 291 n.1 (1st Cir. 1990) (quoting

from Cruz v. Savage, 896 F.2d 626, 634 (1st Cir. 1990)).

Too often a lawyer loses sight of his primary responsibility as an officer of the court. . . . [A]s [an] “officer of the court . . . [the lawyer’s] duty to the court is paramount, even to the interests of his client.”

Polansky v. CNA Ins. Co., 852 F.2d 626, 632 (1st Cir. 1988) (quoting from Steinle

v. Warren, 765 F.2d 95, 101 (7th Cir.1985)). “While attorneys have a professional

duty to represent clients zealously, they are not justified in spinning out essentially

frivolous appeals.” Good Hope Refineries, Inc. v. Brashear, 588 F.2d 846, 848 (1st

Cir. 1978) (sanctioning appellant’s counsel).

17 This was not the first time defense counsel asked the district court to reverse a decision of this Court. In February 2013, after this Court denied their motion to modify the preliminary injunction, defendants sought the same relief in the district court, copying large sections of the unsuccessful papers they had filed in this Court. See District Court ECF# 191 (Appendix showing copying).

Similarly, in June 2013, after this Court affirmed the injunction in Biolitec I, defendants filed a Rule 60 motion asking the district court to vacate it. A-101. Defense counsel submitted expert declarations containing “virtually the same opinion” that “the district court and this court ha[d] already rejected.” A-104.


4813-6496-9047.8

18

A. Sanctions Against Counsel Are the Only Effective Means of Stopping the Abusive Litigation Tactics

Over and over, including in all four previous appeals in this Court, defense

counsel have challenged orders that their clients were defying and plainly had no

intention of ever obeying. As the district court recently found, defendants will

never comply with an adverse ruling, even one issued unanimously by the U.S.

Supreme Court. District Court ECF# 599 at 43:16-25. Defense counsel’s

approach has long been “heads I win, tails I’ll just file another appeal.”

Ever since they contemptuously moved BAG out of reach of judgment

enforcement by completing the enjoined merger, defendants have been “beyond

judicial control,” enabling them to use the appellate “litigation process to harass”

AngioDynamics and the Court “with impunity.” Sarlund v. Anderson, 205 F.3d

973, 975 (7th Cir. 2000). At this point, the only practical way to restrain this abuse

is to sanction the counsel who carry it out.

VI. THE COURT SHOULD AWARD MONETARY DAMAGES AS A SANCTION

As Wright and Miller note, a court that imposes damages under Rule 38

may choose among a number of options. For example, it might choose to award a flat sum; or it might award the attorney fees actually expended by the appellee in defending the appeal . . . .

Wright and Miller, supra § 3984.2. The Court can “assess a particular amount as

damages” or “order payment of ‘reasonable counsel fees.’” Natasha, Inc. v. Evita


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19

Marine Charters, Inc., 763 F.2d 468, 472 (1st Cir. 1985). “This court can assess a

particular amount or ‘reasonable counsel fees’ as damages without additional

submissions by the parties.” Cronin, supra, 81 F.3d at 261.

The Court also may award an appropriate “lump-sum amount” that “the

court feels is warranted.” Moore’s Federal Practice, supra § 338.31. See also

Roger Edwards, supra, 437 F.3d at 145; Solman Distributors, Inc. v. Brown-

Forman Corp., 888 F.2d 170, 173 (1st Cir. 1989) (imposing attorneys’ fees and

adding an additional $5,000 against counsel personally “to remind defendant and

the bar that while we have to be patient, we do not have to be forgiving of such an

imposition”); In re Nelson, 994 F.2d 42, 45 (1st Cir. 1993) (awarding a flat sum “to

cover both appellate costs and appellate attorneys’ fees” jointly and severally

against appellants and counsel); La Amiga del Pueblo, Inc. v. Robles, 937 F.2d

689, 692 (1st Cir. 1991) (same). See also Maxwell v. KPMG, LLP, 2008 WL

6140730, at *4 (7th Cir. 2008) (awarding $234,228.99 in fees and costs against

counsel pursuant to Rule 38).

Here, the Court should impose as damages either a flat amount the Court

deems appropriate, or the attorneys’ fees AngioDynamics expended in briefing this

appeal. If the Court chooses to impose the attorneys’ fees expended,

AngioDynamics will submit its billing records for the Court’s review.


4813-6496-9047.8

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CONCLUSION

Pursuant to Appellate Rule 38 and Local Rule 38.0, this Court should

sanction defense counsel for filing a frivolous appeal and frivolous briefs.

Respectfully submitted,

Dated: December 6, 2017 /s/ William E. Reynolds William E. Reynolds First Circuit Bar No. 83366 Nixon Peabody LLP 677 Broadway, 10th Floor Albany, NY 12207 Telephone: (518) 427-2687 Facsimile: (855) 897-1993 [email protected]

Counsel for Appellee AngioDynamics, Inc.


4813-6496-9047.8

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT

1. This motion complies with the word limit of Fed. R. App. P.

27(d)(2)(A) because, excluding the parts of the motion exempted by Fed. R. App.

P. 32(f), this motion contains 4,435 words.

2. This motion complies with the typeface requirements of Fed. R. App.

P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

motion has been prepared in a proportionally spaced typeface using Microsoft

Word 2016 in 14 point Times New Roman style.

Dated: December 6, 2017 s/ William E. ReynoldsWilliam E. Reynolds First Circuit Bar No. 83366 Nixon Peabody LLP Counsel for AngioDynamics, Inc. 677 Broadway, 10th Floor Albany, NY 12207 Telephone: (518) 427-2687 Facsimile: (855) 897-1993 [email protected]


4813-6496-9047.8

CERTIFICATE OF SERVICE

I hereby certify that on December 6, 2017, I electronically filed the

foregoing document with the United States Court of Appeals for the First Circuit

by using the CM/ECF system. I certify that the following counsel of record for

Appellants are registered as ECF Filers and that they will be served by the

CM/ECF system:

Jesse Belcher-Timme Edward Griffith Doherty, Wallace, Pillsbury & Murphy, P.C. THE GRIFFITH FIRM One Monarch Place, 19th Floor 45 Broadway, Suite 2200 1414 Main Street New York, New York 10006 Springfield, MA 01144-1002 (212) 363-3784 (413) 733-3111 Email: [email protected]: [email protected]

/s/ William E. Reynolds William E. Reynolds


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