Rule 11(b) of the Federal Rules of Civil Procedure reads:
By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,—
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
Although the complaint (PDF, 960k) was filed in New York state court, it was removed to Federal court, probably on federal question grounds. Unfortunately for Fox, and perhaps fortunately for the integrity of the profession, it ended up in front of Judge Denny Chin. As Judge Chin said at the hearing, "This case is wholly without merit both factually and legally." He thus denied Fox's motion for a preliminary injunction.
Rule 11 is not imposed often enough against large law firms with their "scorched earth" tactics. Were I in a position to do so, I would file a motion for sanctions against Hogan & Hartson collectively and Ms. Hanswirth, Tiska, and Bolger individually under Rule 11. The time do so so has not passed; Judge Chin made his comments in the context of a hearing on Fox's motion for a preliminary injunction without dismissing the complaint, practically inviting a filing. Thus, opposing counsel could still file a Rule 11 motion inside the 21-day "safe harbor" afforded by other parts of the rule, along with a motion to dismiss. There is no such "safe harbor," however, for violating 28 U.S.C. § 1927:
Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.
In my opinion, Fox itself should also be punished. This would require either a counterclaim or another lawsuit, as the rules do not provide for sanctioning a party that did not sign a pleading. More's the pity. It is possible that Judge Chin could choose to do so under his "inherent powers," but defending such a sanction might be more expensive than the sanction he could invoke. After all, the lawsuit backfired: Franken's book has gotten a lot more publicity than it otherwise would haveand Bill O'Reilly's reaction has implied that there may be some truth to a parody.
This is an excellent, if sad, example of why lawyers are held in such low esteem. In this instance, that disdain is more than justified.