From Judge Lawrence VanDyke's dissent from denial of rehearing en banc in Lake v. Gates, joined by Judges Consuelo Callahan, Ryan Nelson, Daniel Collins, Kenneth Lee, and Patrick Bumatay:
The panel decision in this case upheld a sanctions order under Rule 11 of the Federal Rules of Civil Procedure and 28 U.S.C. § 1927 against attorneys Andrew Parker and Kurt Olsen. Parker and Olsen (collectively, "Lead Attorneys") represented plaintiffs Kari Lake and Mark Finchem in election-related litigation.
As the district court candidly acknowledged, the sanctions were intended to "send a message" to similar litigants in election-based lawsuits and to discourage litigation disfavored by the court. Zealous to safeguard the "public trust," the district court read plaintiffs' complaint out of context and in the light least favorable to plaintiffs; imposed a heightened requirement that Lead Attorneys conduct "significant" pre-filing inquiries on the basis of their clients and their cause; levied sanctions on the ground that plaintiffs made claims that, as even the district court itself recognized, the complaint never actually stated; and badly misapplied the governing legal standards.
This case involved legal claims that might charitably be characterized as aggressive. It was a Hail Mary legal theory, especially as to standing. But we encounter Hail Mary legal theories regularly in our court in a variety of contexts, and while they almost always lose, they don't get sanctioned just because they are longshots. Many cases are dismissed because the asserted injuries are too speculative to support Article III standing. A great many more are dismissed for failure to state a claim on which relief can be granted.
