Great-West’s Motion for Sanctions Granted in Section 36b Case

Wednesday, November 11, 2020

On August 7, 2020, the U.S. District Court docket for the District of Colorado issued a judgment in favor of Nice-West Capital Administration, LLC and Nice-West Life & Annuity Insurance coverage Co. (collectively, Nice-West) in a Part 36(b) extreme price case. Following that call, Nice-West filed a movement for sanctions towards the plaintiffs’ counsel below 28 U.S.C. § 1927.

On September 28, 2020, the District Court docket issued an order granting Nice-West’s movement for sanctions, holding the plaintiffs’ counsel personally responsible for as much as $1.5 million of Nice-West’s extra prices, bills and attorneys’ charges fairly incurred in reference to the Part 36(b) litigation.

The District Court docket famous the usual set forth below 28 U.S.C. § 1927 that “[a]ny legal professional . . . who so multiplies the proceedings in any case unreasonably and vexatiously could also be required by the court docket to fulfill personally the surplus prices, bills, and attorneys’ charges fairly incurred due to such conduct.” The court docket additionally famous that, from the outset of the case, each events have been conscious that no plaintiff to pursue a Part 36(b) declare has ever received all through the whole lot of the part’s existence.

In help of its place, the District Court docket cited the dearth of credibility displayed by the plaintiffs’ knowledgeable witness on which the majority of the plaintiffs’ case relied. The court docket recounted that Nice-West recognized flaws within the accuracy of the knowledgeable witness’s testimony throughout the abstract judgment stage, but plaintiffs’ counsel nonetheless pursued their claims and relied closely on the knowledgeable witness at trial. At trial, the knowledgeable witness was totally discredited and the court docket discovered his testimony to be non-credible.

Subsequent, the District Court docket famous that even when it ignored the inadequacy of the plaintiffs’ knowledgeable witness, Nice-West’s presentation of favorable proof would nonetheless warrant sanctions. For instance, Nice-West offered credible proof that their charges have been cheap and that they didn’t breach any fiduciary duties. As well as, a number of testifying plaintiffs expressed that they have been happy with the companies Nice-West carried out.

Lastly, the District Court docket agreed with Nice-West’s assertion that the prospect of economic acquire might have incentivized plaintiffs’ counsel to litigate. The court docket underscored the truth that every particular person plaintiff stood to realize a small quantity relative to the hundreds of thousands of {dollars} at stake for the plaintiffs’ counsel.

In conclusion, having discovered that “[p]laintiffs’ attorneys have been undeterred by the indicators that their case was fatally flawed; they recklessly proceeded to trial in violation of their obligation to objectively analyze their case,” the District Court docket granted Nice-West’s movement for sanctions.
The order was issued below the caption Obeslo v. Nice-West Capital Mgmt., LLC, No. 16-cv-00230-CMA-SKC.

Plaintiffs’ counsel filed a discover of enchantment of the movement for sanctions on October 28, 2020.