In a stunning reversal of fortune, a Tenth Circuit panel has overturned a $1.5 million sanction against Schlichter Bogard & Denton LLP and Schneider Wallace Cottrell Konecky LLP. The decision comes after a lower court's ruling that the law firms had recklessly pursued their client's claims, despite knowing their lack of merit.

The District Court's Alleged Missteps

The three-judge panel, in a published opinion, unequivocally stated that the trial court's findings were erroneous. They concluded that the district court erred by believing that the law firms continued to pursue their claims despite realizing they lacked merit. Moreover, the panel found fault with the district court for inaccurately representing the views of one of the expert witnesses and relying on nonbinding precedents to discredit the plaintiffs' damage theories.

"In sum, the district court abused its discretion by sanctioning Plaintiffs' counsel," the panel wrote. "The record does not support a finding that Plaintiffs' counsel advanced their damages theories in reckless indifference to the law … [t]o maintain sanctions under such circumstances would chill legitimate, meritorious advocacy for shareholders' rights."

This dramatic twist centers on a lawsuit against Great-West Capital Management, doing business as Empower Retirement, under the Investment Company Act. The law firms represented a group of retirement plan participants who alleged that Great-West had charged excessive advisory and administrative service fees dating back to 2016.

$1.5M Sanction Against Schlichter Bogard : Legal Odyssey

The legal odyssey began with parts of the litigation being dismissed before a September 2018 ruling that denied summary judgment for Great-West. The presiding judge relied on opinions offered by an expert named J. Chris Meyer. In an 11-day bench trial in January 2020, it was ruled that the fees in question were reasonable. Furthermore, Meyer had been "thoroughly discredited" during cross-examination.

In a surprising turn, Great-West sought sanctions against the plaintiffs' counsel for persisting in the case, despite its "fatal legal flaws," which defendants repeatedly pointed out. This case confirmed these flaws, they argued.

Three Critical Arguments

In their bid to overturn the sanctions, the two law firms made three crucial arguments. Firstly, they maintained it was reasonable for them to proceed with their claims as they had survived an earlier summary judgment motion. Secondly, they challenged the court's conclusions regarding their damage arguments conflicting with nonbinding case law. Lastly, they contended that allowing sanctions like these would deter future lawsuits from shareholders.

The appeals court unequivocally sided with the law firms on all three counts, declaring that the lower court had acted "arbitrarily and outside the bounds of permissible choice" by imposing the sanctions.

"The district court's assertion that Plaintiffs' counsel 'recklessly pursued their claims through trial despite the fact that they were lacking in merit,' 'wholly lacks support in the pretrial record,'" the panel wrote. "Rather the court affirmed the Plaintiffs had presented meritorious, triable issues …approved of Mr. Meyer's proffered testimony in denying Empower's summary judgment … and failed to provide any record support for its assertion that Plaintiffs inaccurately represented the limitations of Mr. Meyer's testimony."

$1.5M Sanction Against Schlichter Bogard : Silence on Both Sides

Remarkably, neither party was available for comment on Tuesday, leaving the legal world buzzing with anticipation about the repercussions of this remarkable decision.

The two law firms were skillfully represented by Mark Johnson and Todd Schneider of Schneider Wallace Cottrell Konecky LLP, along with Michael Wolf and Jerome Schlichter of Schlichter Bogard & Denton LLP.

On the opposing side, Great-West was represented by a formidable team, including Sean M. Murphy, Robert J. Liubicic, and James D. Whooley of Milbank LLP, as well as Edward C. Stewart of Wheeler Trigg O'Donnell LLP and in-house counsel Robert Michael Little.

In a legal saga filled with twists and turns, this unexpected turn of events serves as a compelling reminder of the complexity of the legal world and the need for a vigilant and just judiciary.