Appellate Sanctions For Frivolous Appeal Denied For Lack of Separate Motion and More.
In Lahoti v. Vericheck, Inc., Case No. 10-35388 (9th Cir. Feb. 16, 2011) (for publication), the district court determined that a litigant had acted in bad faith so that $78,109.95 in attorney’s feees and costs should be assessed against him under the Lanham Act, 15 U.S.C. § 1117(a). No abuse of discretion in doing so, said the Ninth Circuit, because bad faith of one of the parties is one of those “exceptional circumstances” giving rise to fees under section 1117(a). (Stephen W. Boney v. Boney Servs., Inc., 127 F.3d 821, 827 (9th Cir. 1997).)
The winning party also asked for the Ninth Circuit to award reasonable attorney’s fees as a sanction against appellant for bringing a frivolous appeal. Besides finding that the appellate arguments were not wholly without merit, the federal appeals court noted that appellee procedurally failed to bring the sanctions request in a separate motion, which did not allow the opposing party sufficient notice to meet the challenge. (Fed. R. App. P. 38; Gabor v. Frazer, 78 F.3d 459, 459-460 (9th Cir. 1996).) Sanctions request denied.