Seeking a new trial, attorneys who were unsuccessful in a patent infringement case against Amazon claimed that the defendants “played on the stereotype of greedy Jewish executives of an Israeli company allegedly taking advantage of U.S. companies, to trigger religious biases and deepen the ‘us vs. them’ nationalistic divide in the minds of the jurors.” It was, they claim, unfairly prejudicial to refer to the plaintiff, Freshub, as an Israeli company, and to emphasize “irrelevant facts about Freshub’s lack of profitability (and doing so in terms of Israeli shekels).”
Not only did the District Court deny the Motion for New Trial, it also felt compelled to impose sanctions on all attorneys who signed the pleadings:
“Freshub asserts, at least implicitly, that the Court must grant a new trial to preserve its own integrity and public reputation. In making such an assertion, Freshub essentially accuses the Court of turning a blind eye to Defendants’ highly prejudicial ‘arguments along the national and religious lines’ ‘throughout the trial’ made ‘at every opportunity.’ The Court did not turn a blind eye to any racist or anti-Semitic conduct, because indeed there was none…. The Court finds that Freshub’s inflammatory allegations are nothing but baseless attacks on the integrity of this Court and the reputation of Defendants’ counsel. Freshub’s motion is apparently the result of its dissatisfaction with the verdict and counsel’s difficulty in making sense of the unfavorable outcome…. However, a bitter losing party’s difficulty in explaining its loss is never a proper basis for counsel to invoke baseless allegations of racism and anti-Semitism to request a new trial. Such vitriolic and unsubstantiated allegations are not only shocking, but also offensive to this Court. And accusing Defendants’ counsel of engaging in this conduct, without any evidentiary support, is similarly unacceptable. By making such baseless allegations, Freshub’s counsel has breached their duty to the Court. In fact, this is not the first time that Freshub’s national counsel improperly conducted themselves before a federal district court. See Finjan Inc. v. Juniper Networks, Inc., No.17-5659, Dkt. 669 at *7–8 (N.D. Cal. July 26, 2021) (‘In no way does this order vindicate attorneys James R. Hannah, Lisa Kobialka, and Paul J. Andre. Their conduct was improper and frustrated the fairness of the proceedings. Judges in the future should take this into account when dealing with them in future cases’).” Therefore, to preserve the integrity of the judicial process and to deter future improper conduct, the Court ordered every attorney who signed the motion for new trial (i.e. Paul J. Andre, Lisa Kobialka, and James Hannah of Kramer Levin Naftalis & Frankel, and John Palmer of Naman Howell Smith & Lee) to complete thirty hours of CLE on legal ethics.
Freshub v. Amazon.com, No.21-511, 2021 WL 5987106 (W.D.Tex. Dec. 17, 2021).
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