# In re Engle Cases

> District Court, M.D. Florida · October 18, 2017 · 283 F. Supp. 3d 1174

URL: https://www.frixlaw.com/law-library/cases/7245785

## Case

- **Full name:** IN RE: ENGLE CASES
- **Court:** District Court, M.D. Florida
- **Decided:** October 18, 2017
- **Citations:** 283 F. Supp. 3d 1174
- **Precedential status:** Published
- **Opinion:** Opinion of the court
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7245785

## How later opinions describe it (automated extraction)

- finding counsel acted in bad faith where counsel had not contacted some plaintiffs in over a decade, where counsel affirmed to the Court that the plaintiffs were alive, and where 588 of the plaintiffs had died prior to filing the action.

## Opinion text

WILLIAM G. YOUNG, TIMOTHY J. CORRIGAN, MARCIA MORALES HOWARD, and ROY B. DALTON, JR., DISTRICT JUDGES 1 :
Table of Contents
Introduction ...---- *1182 Part I: Background and Facts ...----
Part I.A: The Engle Class Action-1994 to 2006...----
Part I.B: Potential Plaintiffs...----
Part I.C: Individual Suits Filed-2008...----
Part I.D: The Stay-2008 to 2010...----
Part I.E: Case Management Efforts...----
Part I.E.1: Responses to the December 2010 Order...----
Part I.E.2: The April 2011 Order...----
Part I.E.3: The June 2011 Hearing...----
Part I.E.4: The Court Questionnaires...----
Part I.F: Motions to Dismiss...----
Part I.F.1: The Wilner Declaration...----
Part I.F.2: The June 2012 Hearing...----
Part I.G: The Denton Juror...----
Part I.H: Case Dismissals in 2012 and 2013 and Appointment of Special Master...----
Part I.I: The 2016 Report and Recommendation...----
Part I.J: The December 2016 Hearing...----
Part II: Procedural Due Process ...----
Part II.A: Constitutional Requirements...----
Part II.B: Rule 11 Procedural Requirements...----
Part III: Rule 11 ...----
Part III.A: Rule 11 in General...----
Part III.B: An Objective Bad Faith Standard Applies to Court-Initiated Rule 11 Sanctions...----
Part III.C: Application of Rule 11 to Dead Plaintiffs' Personal Injury Actions...----
Part III.C.1: Facts
Part III.C.2: The 588 Actions Were Objectively Frivolous...----
Part III.C.3: Counsel "Later Advocated" the 588 Complaints In this Court...----
Part III.C.4: Counsel Advocated Personal Injury Claims in Objective Bad Faith...----
Part III.C.5: Counsel's Objections...----
Part III.D: Rule 11's Application to Other Cases...----
Part IV: 28 U.S.C. § 1927 ...----
Part IV.A.: § 1927...----
Part IV.B: Application...----
Part IV.B.1: The 588 Actions...----
Part IV.B.2: Previously Adjudicated Cases...----
Part IV.B.3: Cases Dually Filed in State and Federal Court...----
Part IV.B.4: The Larramore Case, 3:09-cv-13139...----
Part IV.B.5: The Olds Cases, Case Nos. 3:09-cv-12059 and 3:09-cv-12060...----
Part IV.B.6: The Eugene Johnson Case, 3:09-cv-12989...----
Part IV.B.7: Cases Where Plaintiffs Did Not Wish to Pursue a Claim...----
Part IV.B.8: Non-Smoker Plaintiffs...----
Part IV.B.9: Non-Florida Resident Plaintiffs...----
Part IV.B.10: Cases Where the Plaintiff Did Not Suffer From An Engle Disease...----
Part IV.B.11: Cases Barred by the Statute of Limitations...----
Part IV.B.12: Cases Involuntarily Dismissed for Lack of a Federal Engle Questionnaire...----
Part V: Inherent Authority ...---- *1183 Part V.A: The Court's Inherent Authority to Sanction...----
Part V.B: Applicability of Inherent Authority Sanctions to Cases Discussed in Parts III and IV...----
Part V.C: Material Misrepresentations...----
Part V.C.1: Misrepresentations During the June 6, 2011 Hearing...----
Part V.C.2: April 6, 2012 Declaration (Doc. 589-1)...----
Part VI: Sanctions ...----
Part VI.A: Monetary Sanctions...----
Part VI.B: Apportionment of Fault...----
Part VI.C: Non-Monetary Sanctions...----
Conclusion ...----
[A]ttorneys are the filter upon which courts rely to maintain the integrity of, and trust in, our judicial process.
Peer v. Lewis , 606 F.3d 1306 , 1316 (11th Cir. 2010). On the rare occasion when attorneys undermine that integrity and trust, there must be consequences. This is one of those rare occasions.
Of the thousands of " Engle -progeny" 2 product liability actions over which this Court has presided (" Federal Engle Actions "), the majority had to be resolved through a painstakingly piecemeal culling process. While the judicial books are closed for the litigants in the Federal Engle Actions, this matter cannot be concluded until The Wilner Firm, P.A. and Farah & Farah, P.A. (collectively, " Counsel ") and their principals, Norwood Wilner (" Wilner ") and Charlie Farah (" Farah "), 3 are held to account for the immense waste of judicial resources and contempt shown for the judicial process occasioned by maintaining over a thousand non-viable claims. Counsel evinced a conscious disregard of their professional obligation to properly investigate such claims, obtain authorizations to file from clients, and-most importantly-communicate honestly with this Court. With the litany of litigation abuses recited here, the Court could never, in good conscience, sanction another lawyer in the future for failing to investigate a single claim if Counsel's failure here to investigate hundreds of actions were to be passed over, thereby implying that Counsel's indifference toward their professional obligations was acceptable because there were "just too many" potential claimants to do the job properly. The Court will not shrink from the formidable and unpleasant task of scrutinizing these filings individually and invoking the full authority of the judiciary, so as to renew the clarion call to the Bar that professionalism matters.
In January 2008, Wilner and Farah filed approximately 3,700 Engle -progeny complaints in the Florida state and federal courts. The complaints alleged personal injury, wrongful death, and loss-of-consortium claims related to cigarette smoking. As it turns out, many of the plaintiffs never authorized Wilner and Farah to file a suit. Some had barely heard of them. Dozens did not meet the basic requirements for maintaining an Engle -progeny claim (some of the "personal injury" plaintiffs never even smoked, for example). Over 500 "personal injury" plaintiffs were *1184 actually people who had died well before Counsel filed the complaints. Indeed, one of the "personal injury plaintiffs" had died 29 years earlier.
The Court discovered these defects in 2012 only after it sent questionnaires directly to the named plaintiffs-over Counsel's objections. Before the questionnaire process, Wilner and Farah had insisted the Court need not inquire into the status of the plaintiffs; that a questionnaire process would not yield useful information; that there was no sizeable group of cases appropriate for dismissal; and that they could certify in accordance with Rule 11 of the Federal Rules of Civil Procedure that the complaints were viable. It was this obstructive, deceptive, and recalcitrant behavior that, in combination with the hundreds of frivolous complaints, compelled the Court to initiate sanctions proceedings.
As judges, we are properly cautioned against using 20/20 hindsight in evaluating the actions of lawyers in the context of unprofessional conduct. We are insulated from the hurly-burly of the practice of law, the press of client demands, the call of time sheets to log, and the occasional dictatorial demands of the Court. So it is, with that caution in mind, that a full explanation of the factors that motivate us to impose sanctions upon Wilner and Farah against the unique backdrop of these "tobacco cases" is warranted. The Court's findings here are drawn from a seven-month investigation by the Court's Special Master (the U.S. Attorney for the Middle District of Florida), careful consideration of the Special Master's Report and Recommendation (Doc. 2147 (" 2016 R & R ")), Counsel's objections to the 2016 R & R (Doc. 2165 (" Objections ")), and the Special Master's Response to the Objections (Doc. 2170 (" Response ")), comprising almost 600 pages of briefing and thousands of pages of exhibits. 4
The Court also has the benefit of a 2014 Eleventh Circuit opinion affirming the dismissal of over 500 Engle personal injury actions that Wilner and Farah had filed on behalf of dead people, which noted that:
[T]he root of the problem in all these [ Engle ] cases is simple. Back in 2008, when these cases were originally filed, the law firm that brought them [Wilner and Farah] didn't have the time or resources required to fully investigate all the complaints (the firm in question filed claims on behalf of over 4,000 individuals). As a result, problem after problem cropped up once the District Court started going through the inventory of cases: there were personal injury claims filed on behalf of deceased smokers, wrongful death claims filed by "survivors" of smokers who were still living, cases filed as a result of "clerical errors," multiple cases filed for the same person, cases filed for people the law firm had no contact with, claims that had already been adjudicated by another court, cases filed for people who didn't want to pursue a lawsuit, and claims filed long after the relevant limitations period had run. Over and over, plaintiffs' counsel explained that these problems were the result of the unique logistical difficulties involved in managing so many individual lawsuits. And over and over the District Court reminded counsel that a lawyer's responsibilities to the court are not diluted even by an ocean of claims.
*1185 In re Engle Cases , 767 F.3d 1082 , 1087 (11th Cir. 2014). The Eleventh Circuit also observed:
[T]he lawyers in these cases have established a pattern of acting on behalf of "clients" they have dubious authority to represent. As will become evident from the history of this mass action, plaintiffs' counsel have mostly managed their inventory of cases as they see fit, with scant contact with or input from the individuals they purport to represent.
Id. at 1088 n.4.
Given the importance of the matters at hand and the volume of pertinent materials, the Court has organized this unavoidably lengthy Order into six parts. Part I reviews in chronological order the factual and procedural background. Part II addresses Counsel's procedural due process concerns. Parts III, IV, and V discuss and apply the legal standards governing the imposition of sanctions under Rule 11, 28 U.S.C. § 1927 , and the Court's inherent authority, respectively. Finally, Part VI sets forth the type and amount of sanctions the Court will impose. 5
PART I
A. The Engle Class Action-1994 to 2006
From 1994 to 2006, a class action lawsuit between Florida cigarette smokers (or their survivors) and several major tobacco companies wound its way through the Florida state courts. The smokers alleged, among other things, that the tobacco companies negligently manufactured and marketed their cigarettes, that they had manufactured cigarettes that were defective and unreasonably dangerous, and that they had conspired to conceal the dangers of cigarettes. The " Engle class" consisted of "[a]ll Florida citizens and residents" "and their survivors, who have suffered, presently suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine." See R.J. Reynolds Tobacco Co. v. Engle ( Engle I ), 672 So.2d 39 , 40, 42 (Fla. 3d DCA 1996) (alteration and quotation marks omitted). The class was estimated to number 700,000 people.
In 1999, a jury in Dade County, Florida found generally that smoking causes certain diseases, such as lung cancer and coronary heart disease ; that cigarettes containing nicotine are addictive; that the defendant-tobacco companies negligently manufactured and marketed their cigarettes; and that the tobacco companies manufactured cigarettes that were defective. See Engle III , 945 So.2d at 1256-57 & n.4. Years later, in December 2006, because "individualized issues, such as legal causation, comparative fault, and damages predominate[d]," the Florida Supreme Court decertified the class, and required class members to file individual lawsuits. Id. at 1268. However, the Florida Supreme Court held that the original jury's findings should have preclusive effect in any action filed by an Engle class member, meaning each plaintiff would not have to re-establish that the defendants were negligent, that their cigarettes were defective, or that cigarettes cause certain diseases. See id. at 1269-70 ; Philip Morris USA, Inc. v. Douglas , 110 So.3d 419 , 424-25 (Fla. 2013). Instead, an individual plaintiff would have to prove only (1) that he is a member of the Engle class, and if so, (2) that his addiction to cigarettes caused his particular injuries, and (3) the amount of his damages. See Douglas , 110 So.3d at 430 . The Florida Supreme Court gave class members one year from the issuance of its mandate, or until January 11, 2008, to file individual complaints. See Engle III , 945 So.2d at 1277.
*1186 B. Potential Plaintiffs
While the Engle class action wended its way through the state courts, Wilner says around 6,000 people contacted him about suing cigarette manufacturers (" Potential Plaintiffs "). ( See 2016 R & R at 74-75). Assuming that the Potential Plaintiffs likely were members of the Engle class, Wilner advised them that (1) Wilner could not represent them in individual actions given the time and expense required; and (2) the Potential Plaintiffs' best chance for recovery was through the Engle class action. ( See 2016 R & R, Ex. 10 at 2-3). Thus, between 1995 and 2008, Wilner collected names, but he did not "make formal or special inquiry into the status" of the Potential Plaintiffs. 6 (2016 R & R at 75-76; Doc. 822 at 4-5).
After Engle III , Wilner scrambled to get in touch with the Potential Plaintiffs. Nonetheless, by the January 2008 deadline, Wilner had not been in contact with many of the Potential Plaintiffs in 10 to 14 years. (2016 R & R at 76). According to Wilner, in the year between Engle III and the January 2008 deadline:
[W]e went manually through the 7,000 [contacts] as best we could. We attempted to call people, but we were overwhelmed.
We do not have the-the ability to contact 7,000 people in a year. They don't sit by the phone. And so we said, the best thing we can do is...unless there's an indication that this is not a class member, preserve this case.
At that point, after preservation, Well, we can deal with-if they turn out not to be what we think they are, if there's some bad data, we will get to it. And we did get to it.
* * *
So, okay, I have a class member who's called me, many times come in-and ...I don't want to embellish this, but come in a bad circumstance, dragging their oxygen sometimes, wanted us to represent them, wanted us to right their wrongs.
And we said, Okay. We're going to watch this class. We'll do what we can. And then all of a sudden I've got 7,000 things that I can't do.
So, yes, the answer is, I am going to try and preserve that, and then we're going to find out if there's a problem with it, and we did with-there were 500-or-so that had previously died.
(Doc. 2174 at 98-100).
As the Eleventh Circuit put it:
As we now know, in the years it took Engle to wind its way through state court, Mr. Wilner lost contact with many of his clients. When the Florida Supreme Court decided Engle III in 2006, he attempted to track them down, but he had trouble locating all of them. As the one-year period came to a close, he was still unable to contact some (undisclosed) portion. Nevertheless, he decided to file suit on behalf of all his "clients,"
*1187 whether he was able to reestablish contact or not.
In re Engle Cases , 767 F.3d at 1089 .
C. Individual Suits Filed-2008
In January 2008, Counsel filed around 3,700 Engle -progeny complaints in state and federal courts located in Florida, including: (a) the Circuit Court for Duval County, Florida, where Counsel filed 17 multi-plaintiff complaints, which each named about 220 plaintiffs (" Duval Cases "); (b) this Court, where Counsel filed 27 multi-plaintiff complaints, which encompassed the claims of 660 people (" Initial Federal Complaints "); and (c) duplicate state-court actions for each of these 660 individuals named in the Initial Federal Complaints (" Duplicate State Actions "). 7 The complaints were signed by Wilner and Farah.
The Defendants removed the Duval Cases to this Court. In re Engle Cases , 767 F.3d at 1090 . Following removal, this Court had approximately 3,700 complaints before it that encompassed the claims of 4,432 plaintiffs-the Federal Engle Actions. 8 Id. In a case management proposal filed in this Court on March 21, 2008, Wilner represented that all of the 4,000-plus plaintiffs "come with[in] the Engle class definition specified by the Florida Supreme Court and thus share the Engle I verdict." ( See Nestor Amoros, et al. v. R.J. Reynolds Tobacco Co. , Case No. 3:07-cv-760-J-25HTS, Doc. 35-2 at 1, 17). As it turned out, Counsel never should have filed many of the Federal Engle Actions-which alleged personal injury, wrongful death, and loss-of-consortium claims related to cigarette smoking-because: (a) many of the plaintiffs never authorized Counsel to file a lawsuit; (b) certain plaintiffs plainly did not meet the basic requirements for maintaining an Engle -progeny claim because they never even smoked or lived in Florida; and (c) over 500 "personal injury" plaintiffs were actually people who had died well before Counsel filed the complaints (" Pre-Deceased Plaintiffs "). Indeed, when the Court pressed Wilner at the December 13, 2016 hearing about whether he had authorization to file the complaints, he repeatedly referred to agreements authorizing him to make a claim on the Engle Trust Fund , which is not an authorization to initiate litigation. ( See Doc. 2174 at 126-35). Ultimately, when asked whether he had signed authorizations to initiate a lawsuit for each of the plaintiffs, Wilner admitted: "Probably not." ( Id. at 135 ). 9
D. The Stay-2008 to 2010
The Federal Engle Actions became the basis of the federal Engle docket (" Engle Docket "). To aid the administration of these actions, the Court stayed further proceedings on October 29, 2008 (" Stay "). In re Engle Cases , 767 F.3d at 1090 . During *1188 the Stay, the Court created individual dockets for each of the 4,432 plaintiffs, with each action given a separate case number. Id. at 1091 . The Court also created the Master Docket to deal with case-management issues and other matters common to all of the Federal Engle Actions. Id. The three active district judges of the Jacksonville Division assumed joint management of these actions, later joined by the Honorable William G. Young of the U.S. District Court for the District of Massachusetts.
The Stay remained in effect from October 2008 to October 2010, while the parties appealed this Court's decision in Brown v. R.J. Reynolds Tobacco Co. , 576 F.Supp.2d 1328 (M.D. Fla. 2008), rev'd , 611 F.3d 1324 (11th Cir. 2010). During that time, Counsel undertook a belated investigation into the status of the plaintiffs and their respective claims. Beginning in July 2009 and continuing through 2010, Wilner mailed so-called " July 2009 Letters " to 2,756 plaintiffs (" Letter Recipients "). (2016 R & R at 179-80). The July 2009 Letters informed the Letter Recipients that, as a "client" of Counsel "since the early 1990's tobacco litigation," Wilner had filed a lawsuit on their behalf.
The July 2009 Letters also requested-a year and a half after Wilner filed the complaints-that the Letter Recipients return a questionnaire about the plaintiff's smoking history and medical diagnoses (" Counsel Questionnaire "), a "Tobacco Litigation Authority to Represent," and an authorization for the release of medical records. Such requests suggest that Wilner did not obtain any of these things before he filed the complaints. Even though Wilner had already filed suit on behalf of all 2,756 Letter Recipients, only 1,807 responded to Wilner. ( Id. at 180). Whatever information Wilner learned from those 1,807 responses, however, it did not prompt him to correct any complaints or dismiss any actions for lack of viability.
E. Case Management Efforts
In 2010, the Eleventh Circuit decided Brown , 611 F.3d 1324 , and activity resumed on the Federal Engle Docket. On October 20, 2010, Counsel notified the Court that they were voluntarily dismissing 499 cases where a Duplicate State Action was pending. (Doc. 11). The Court asked Wilner why he was dismissing only 499 of the 660 cases that were filed in both courts, and Wilner replied:
Some of them are not-are not viable. And some of them are-were previously litigated. And we-if we were to dismiss them out of this [C]ourt, we'd be subject to the-to the two dismissal rules. So we had to be aware of that. So that's the only reason.
But, yes, the-at the time we filed these in 2008, it was totally unclear. We knew that there was-this was a big block of litigation. And we're just trying to get a trial date. We're trying to move the case.
(Doc. 31 at 74). As to the remaining cases, Wilner filed a case management brief "on behalf of approximately 3800 claimants," in which he urged the Court to try groups of 100 to 500 cases at a time. (Doc. 25 at 1, 13). Wilner ridiculed the Defendants' proposal to process cases individually, and in doing so-ironically-accused the Defendants of "ignor[ing] the limited resources of the court system, and at worst consciously exploit[ing] them. " (Id. at 9) (emphasis added).
In an Order dated December 22, 2010 (" December 2010 Order "), the Court dismissed the 499 cases and the number of Federal Engle Actions dropped to approximately 3,800. (Doc. 42 at 4). Concerned about case management issues created by *1189 such a large number of actions, the Court ordered the parties to:
carefully and individually review each of the roughly 3800 remaining cases and to determine which of those cases is presently due to be dismissed (whether because a case has already been tried in state court, because a plaintiff has died leaving no heirs, or otherwise). No later than March 17, 2011, the parties shall each file a notice in the [M]aster [D]ocket which includes (1) a list of cases for which dismissal is sought, (2) a certification that the party has reviewed each individual case, and (3) a certification of compliance with Local Rule 3.01(g). By the same deadline, the parties shall file appropriate dismissal motions in the affected cases, specifically referencing whether the opposing side consents or objects.
( Id. at 7, ¶ 8). Importantly, the Court reminded the parties "of their continuing obligation throughout this litigation to inform each other and the Court when any of the remaining cases is due to be dismissed for any reason." ( Id. at 8).
In January 2011, the Defendants recommended that Counsel gather basic information by interviewing each plaintiff. (Docs. 48, 48-1). Wilner responded that any information gleaned from individual interviews "would not be worth much to anyone." (Doc. 61 at 3). Wilner:
balked at the suggestion that his law firm contact its clients to gather this information-citing the time and resources required and the likelihood that the information would quickly become outdated as more plaintiffs died over time. Thus, he stated the firm's intention to comply with the [C]ourt's [O]rder by just reviewing the information the firm already had in its files.
In re Engle Cases , 767 F.3d at 1092 (citing Doc. 61 at 3). Wilner also insisted that Counsel had:
individual files for each plaintiff we represent, and we will make a good faith effort to screen each case for information contained within the file that suggests the case is not a viable one for reasons such as those described in the Court's order. We have already started this process and at this time expect, on the basis of some initial runs, to identify something like ten percent of the filed cases as appropriate for dismissal.
(Doc. 61 at 3). Given the dearth of information obtained before filing the Federal Engle Actions ( see supra note 6), and the fact that more than 900 people failed or declined to reply to the July 2009 Letters, Wilner's claim that Counsel had "individual files for each plaintiff" was dubious. The Special Master's Report confirmed that Wilner's record-keeping was far less complete than he represented.
1. Responses to the December 2010 Order
In his March 17, 2011 response to the December 2010 Order (" Counsel's 2011 Response "), Wilner: (1) recommended dismissing another 136 Duplicate State Actions; (2) requested closure of 118 cases that resulted from a clerical error; (3) sought consolidation of 500 loss-of-consortium cases with their associated smokers' cases (" Consolidation Request "); and (4) moved for leave to withdraw from-but not to dismiss-332 cases (" Withdrawal Request ") because "these claims involve for the most part clients who have not been in contact with the undersigned or have claims that the undersigned cannot prosecute" (" Lost Plaintiffs "). (Doc. 114 at 2); (Docs. 114-1, 114-2, 114-3, 114-4). Wilner also certified by signature "that counsel has reviewed each individual case in counsel's files for those that can be dismissed for the reasons listed above. Plaintiffs' counsel will continue to work with and review the cases within its files *1190 and file additional notices of dismissal as appropriate." (Doc. 114 at 3). Counsel's 2011 Response inexplicably omitted mention of the myriad cases involving, for example, non-smoking plaintiffs, Pre-Deceased Plaintiffs asserting personal injury claims, and those whose claims were previously adjudicated (" Previously Adjudicated Cases ").
In their March 17, 2011 Response to the December 2010 Order (" Defendants' 2011 Response "), the Defendant tobacco companies provided a list of cases to dismiss, including: (a) 30 Previously Adjudicated Cases-including several cases Wilner himself had handled; (b) close to 250 cases that had Duplicate State Actions; (c) 125 actions that were duplicates of another federal court case; and (d) 25 actions where the plaintiff opted-out of the Engle Class Action. (Docs. 113, 113-1, 113-2). Notably, the Defendants advised that Wilner did not represent the plaintiffs in several of the Duplicate State Actions-including two set for trial. (Doc. 113 at 2). This troubling information indicated that the plaintiffs who were represented in state court by other attorneys likely did not authorize Wilner to represent them and were unaware that Wilner had filed Federal Engle Actions on their behalf.
On March 24, 2011, the Defendants filed a supplemental brief pointing out the differences between Defendants' 2011 Response and Counsel's 2011 Response (Doc. 128 at 11, 14), and noting that "the lists developed by Defendants contain some plaintiffs with cases that the Wilner Firm should certainly have known had been previously adjudicated" ( id. at 11). For example:
Ms. Joan Karbiwnyk, whose case has been filed in this Court under Docket No. 3:09-CV-13026-J-34HTS, is the same Joan Karbiwnyk whose claim was not only filed, but was in fact tried to a defense verdict-14 years ago by Mr. Wilner himself .
( Id. ) (emphasis added). Another troubling example was Case No. 3:09-cv-10564, which Wilner brought in this Court on behalf of Diane Nelson. On February 16, 2011, the Defendants notified Wilner that Ms. Nelson's personal representative-Linda Patton-was deposed the year before in a different lawsuit. During the deposition, Ms. Patton testified that as the personal representative of Ms. Nelson she had long ago decided to drop the case, and in fact thought it had already been dismissed:
Q. Is it your understanding that you've dismissed the one that you filed on behalf of your late sister?
A. Yes.
Q. Have you seen any documentation reflecting such a dismissal?
A. It was a long time ago. I don't remember.
Q. Okay. Is it your intention not to pursue any case on behalf of your late sister's estate?
A. Yes, that's correct.
( Id. at 14-15).
2. The April 2011 Order
In an Order dated April 15, 2011 (" April 2011 Order "), the Court: (a) determined that Counsel and Defendants apparently agreed to dismiss 118 clerical-error actions and 119 cases with Duplicate State Actions; (b) granted the Consolidation Request; and (c) reserved ruling on the Withdrawal Request pending a hearing. 10 ( See Doc. 145 at 2-4). After the April 2011 *1191 Order, roughly 2,900 Federal Engle Actions remained pending.
Having become concerned about Counsel's lack of case management, the Court appointed the late Michael J. Dewberry, Esq., as a Temporary Special Master to assist the Court in managing the cases. (Doc. 65). In a report dated April 22, 2011, the Temporary Special Master observed "that neither side has any real grasp of the composition of the universe of cases, regardless of the actual number....Counsel know next to nothing about more than 90% of this action-the cases that remain stayed ...." (Doc. 147 at 38). The Temporary Special Master wrote that "[t]he absence of basic information" created "uncertainty as to the viability of the [stayed] cases," and that "it is apparent that additional winnowing opportunities are both available and appropriate." ( Id. ). Thus, the Temporary Special Master recommended sending questionnaires to each plaintiff to gather essential information. (Doc. 146 at 22-28).
Contending that they had been in contact with all of their clients, Counsel objected to the questionnaire. (Doc. 158). Counsel asserted that their own "data" obviated the need to send questionnaires to the plaintiffs in the remaining 2,900 Federal Engle Actions:
This data is the product of ongoing and routine communications by telephone, mail, in person meetings, and electronic communications, between plaintiffs' counsel and the plaintiffs. This data, however, will not result in "a substantial reduction in the number of cases" as the [Temporary Special Master] suggested might occur ....Such winnowing has already occurred. On April 15, based upon the agreement of the parties, this Court dismissed 273 [ 11 ] cases. In another 332 cases, [P]laintiffs' counsel has asked to withdraw due to lack of contact. Additional cases have been dismissed for other reasons including because the plaintiffs opted out of the Engle litigation. These efforts have resulted in the reduction of the federal Engle progeny cases from 4432 cases to a current total of roughly 2900 cases, a reduction of 35 percent. There may be additional cases that become untriable as this litigation proceeds because circumstances can always change, but there is no longer any sizeable group of cases ripe for dismissal.
( Id. at 14-15) (emphasis added) (footnotes omitted). Counsel assured the Court that "[t]here is no need for the tremendous expense of energy and resources for a third party to poll the remaining plaintiffs because counsel already possess the vast majority of this data, and are working diligently to fill in all gaps." ( Id. at 15) (footnote omitted). Counsel reiterated that they "are engaged in a constant and ongoing process of updating information and will continue to take appropriate steps if additional clients become unable or unwilling to pursue their claims." ( Id. at 17). As the Court later learned, these assertions obscured the fact that hundreds of cases were fatally defective.
3. The June 2011 Hearing
The Court held a hearing on June 6, 2011 (" June 2011 Hearing ") to address discrepancies between Counsel's 2011 Response and Defendant's 2011 Response, the 332 Lost Plaintiffs' actions, the Withdrawal Request, and other concerns. (Doc. 171). Judge Corrigan directly asked Wilner about the Lost Plaintiffs' cases-"What was the basis upon which the claims were brought in the first place? Were you in contact with them at the time the suit *1192 was filed on their behalf?" ( Id. at 6). Wilner responded:
Many but not all. As we talked about earlier, we did have some claims that when the [ Engle filing deadline] approached, we had them-we were historically in contact with them, and we had to file their claim because it must be preserved.
Most of them we were in contact shortly after, but we lose contact because people die, and so we don't always have contact at any given time. We have contact with the greater, by far, number, but there are always some that either die or go to a nursing home or something and we lose touch.
( Id. at 7).
Judge Corrigan then asked Wilner how the Lost Plaintiffs' cases were "distinct" from the cases that had been dismissed, and he asked whether Wilner was telling the Court that he was "in direct contact with all of the remaining plaintiffs that [were] still pending in these cases?" ( Id. ). Wilner responded:
Yes, your Honor, within the possibilities of being able to express that because you can't talk to everybody at once. So, yes, your Honor, as far as within statistical possibility, we are in contact with the remainder, but that changes every day. If somebody doesn't answer long enough, then they are put on the warning list; and if they still don't answer, they may come up eventually that we have lost them.
( Id. at 7-8) (emphasis added). Judge Howard then asked what Wilner meant by "contact"-"When you say you're in contact with them, as of how recently have you actually had [contact?]...I'm saying, if you've heard from them three years ago, that doesn't really count to me." ( Id. at 8). Wilner agreed that three years would not count:
No, that doesn't. It's not nothing, but that's not what I mean in contact. I mean within the past group of months, depending on how wide of a net we are talking about and how quickly we can go through it. We can't contact everybody at once; but we are in touch with them in recent history, meaning X number of months; and they indicated to us, through writings or personal interviews or telephone calls, they were alive, present, willing, and all that.
( Id. ) (emphasis added). To clarify, Judge Howard asked whether "within the last six months, all but the 332 [Lost Plaintiffs]...have expressed that they are willing and able to proceed with these claims? Is that your representation to the Court?" ( Id. at 8-9). Wilner responded affirmatively-" Yes, absolutely . The defense has gotten the idea that they are not. I don't know, but we are in constant contact with them ...." ( Id. at 9) (emphasis added). Although the Court accepted such affirmations at the time, they later proved to be false. 12
During the June 2011 Hearing, Wilner again assured the Court that he had authority to file the complaints on behalf of the Lost Plaintiffs:
JUDGE HOWARD: Let me ask you this: You're suggesting you would be-you filed these lawsuits, and it's not at all clear to me whether these 332 [Lost Plaintiffs] were even consulted at the time the lawsuits were filed, but you filed them on their behalf.
*1193 MR. WILNER: Yes.
( Id. at 10). The Court, dubious, continued:
JUDGE CORRIGAN:...[U]ntil we ordered you to do it, you hadn't done the work that we have now done, and I would have thought you would have. I would have thought....I can even understand that as of January of '08 you had to meet a deadline and so you just met the deadline. I can understand that.
What I'm having trouble understanding that as it got into '09 and 2010, while things were on appeal, while we were in our processes-we had two or three hearings with multi-judge panel hearings-until we actually ordered you to actually look at all these and to do the work that we have now done, it didn't appear to us you were doing it yourself, and I would have thought that you would have.
MR. WILNER: Well, we were doing it along the line; but as I say, when more than a year has gone by with any one case, it's now a suspicion whether there is somebody still there. So these things do time out from time to time, and in another year there may be another 7 or 8 percent that have died, that are no longer with us.
So I admit that as years go by, there are people that are not here, but we keep-we have kept in contact with them, and in fact taken-
JUDGE DALTON: Mr. Wilner, can I interrupt you for a second? I apologize for the interruption, but this is the question I have, whether it's 6 or 60 or 600 or 6000, can you represent to the Court that you have authority to proceed on behalf of those individuals who are remaining in the plaintiff pool and that you are prepared to prosecute those claims, to diligently prosecute those claims toward resolution?
* * *
MR. WILNER: The answer is, are all 2800 ready and able? Well, as far as we know today, they are . I hasten to say-
( Id. at 16-18) (emphasis added). Wilner continued:
MR. WILNER: We already cut [the unviable claims] out. After those, all of them-and I say, all of them-are subject to-you are always going to find one mistake, but all of them we have been in touch with either by telephone or something within the past-and I say, eight, nine, that range.
I didn't run the specific field that says when we last talked to them, but in recent history; and the 300-and-so were the ones that we couldn't find, that we just kind of just did that, but I don't mind doing it again.
We did do that. We did go through and eliminate those that were not viable. So we-
...
JUDGE CORRIGAN: Let me ask it this way, and I don't care if Mr. Wilner answers it or you answer it.
If you had to sign a Rule 11 complaint today, under Rule 11, because we know we haven't really talked about Rule 11, but if you had to sign a Rule 11 complaint today on behalf of each one of these smokers who has a case that you can certify under Rule 11, how many people would that be?
MR. WILNER: Twenty-eight hundred and whatever the last two digits are. That's our data .
( Id. at 28-29) (emphasis added).
Finally, the Court addressed Counsel's opposition to sending out questionnaires given the urgent need for accurate information:
JUDGE DALTON: [W]e need to figure out what's the total constellation of lawsuits that we have? How can we divide *1194 them up in terms of do we have cases that have living people, we have death cases with survivors, we have death cases with no survivors? All of those, as you know, have-I mean, the elements of damage are going to be different with respect to each, and we are trying to figure out a way that we can triage these things and marshal them so that we can deal with them; and, frankly, we need some help, and we don't feel like we are getting it. That's the point.
( Id. at 17). Although Counsel told the Court that they were gathering information on their "clients," the Court essentially told Wilner, "though not in so many words, that it no longer trusted him." In re Engle Cases , 767 F.3d at 1095 . The Court asked Counsel how long they would need to distribute and collect questionnaires. Counsel responded that three months would be enough time "since they were in contact with all their clients and in the process of gathering the information sought by the [Temporary] Special Master." Id. The Court denied the Withdrawal Request and dismissed the 332 Lost Plaintiffs' actions. (Doc. 174). As such, approximately 2,600 Federal Engle Actions remained pending.
4. The Court Questionnaires
In August 2011, the Court ordered Wilner to send questionnaires to each of the remaining 2,600 plaintiffs (" Court Questionnaires "), 13 setting a November 2011 deadline for their return. Although Counsel mailed the Court Questionnaires "to 2,661 unique addresses," Counsel returned only 1,724 completed questionnaires to the Temporary Special Master by the deadline. In re Engle Cases , 767 F.3d at 1096 . In moving for an extension to submit outstanding questionnaires, Counsel represented that they had not received questionnaires from 753 plaintiffs, but that they had been in contact with approximately 500 of those plaintiffs in the previous year. (Doc. 359 at 3-4). Counsel thus virtually admitted that they had not been in contact with another 200-or-so plaintiffs during the previous year. Such representations were at odds with Wilner's assertions at the June 2011 Hearing that he had been in contact with 2,600 of the remaining plaintiffs within the previous six months.
In response to Counsel's motion for an extension, Defendants asserted that Wilner's filing of so many complaints in 2008 was problematic. As the result of "discovery produced in one of the state cases in Duval County," Defendants learned that
the Wilner Firm had, in fact, in many instances simply taken names from old files and listed them on those group complaints without determining whether the named individuals were legally authorized to pursue such a lawsuit or even wished to do so. As stated in the form letter to some of those people produced by the Wilner Firm, in 'the early 1990s'-15 or more years before the instant complaints were filed-the [Wilner] firm had collected the names of an unknown number of individuals apparently interested in the then-recently filed Engle Class Action. But obviously, the fact that an individual might have been interested in participating as a passive class member in a case that might potentially be resolved on a classwide basis did not mean that he or she was legally authorized or willing to file an individual contested lawsuit.
(Doc. 360 at 2; see also Doc. 465 at 3). The Court denied the motion for an extension, but it advised that-upon a showing of good cause-the Court might allow Counsel *1195 to submit additional Court Questionnaires. 14 (Doc. 379).
The Temporary Special Master detected problems almost as soon as he began analyzing the 1,724 Court Questionnaires. ( See Doc. 503). According to a report issued by the Temporary Special Master in January 2012 (" 2012 Temporary Special Master's Report "):
(1) 521 plaintiffs were already deceased (some for more than 20 years) when Counsel filed personal injury actions on their behalf;
(2) 66 plaintiffs were living when Counsel filed wrongful death actions on their behalf;
(3) 64 deceased plaintiffs had no survivors when Counsel filed wrongful death cases on their behalf; and
(4) Counsel filed 39 wrongful death cases that were barred by the statute of limitations [ (" SOL ") ]. 15
( Id. at 6-14). All of these defects led the Temporary Special Master to conclude that "the current universe of 1,700 cases [in which questionnaires were returned] is still inflated to an unknown extent" by non-viable claims and by plaintiffs who were unwilling or unable to proceed with the claims Counsel brought on their behalf. ( Id. at 4).
F. Motions to Dismiss
Without explanation, Counsel moved to voluntarily dismiss 189 cases in January 2012 (" Plaintiffs' 2012 MVD "). 16 (Doc. 452). Two months later, Defendants moved to dismiss 39 time-barred wrongful death actions and 521 personal injury actions that Counsel had filed on behalf of Pre-Deceased Plaintiffs (" Defendants' 2012 MTD "). (Docs. 581, 582). The Defendants noted that about 30% of the cases where a Court Questionnaire was returned -to say nothing of the hundreds of cases where no questionnaire was returned-"were filed as personal injury actions in the names of already deceased smokers." (Doc. 582 at 2). The Defendants emphasized that:
these defective complaints do not rest on some "contingent" or "alternative" pleading, as where a personal injury action is somehow pled along with a survival or wrongful death action. To the contrary, the complaints listing the 521 [Pre-Deceased Plaintiffs] assert nothing but a personal injury action-using the present tense in referring to the "Smoking Plaintiffs" and arguing that they "have and will suffer " as a result of their disease.... Nowhere do the complaints suggest that the smoker had died; and nowhere do they assert a wrongful death or survival action. To the contrary, the concluding allegation of each of the complaints states that each Smoking Plaintiff's injuries "are permanent and continuing and as such will be suffered into the future ."
( Id. at 3-4) (emphases in original) (citations omitted). The Defendants further noted that "since these cases were filed solely as personal injury actions, it is clear that in no case did anyone even purport to authorize their filing on behalf of the estate." ( Id. at 4). The Defendants added that Counsel had known about these defective complaints for at least six months, when they received the Court Questionnaires from the deceased plaintiffs' families. ( Id. at 12 n.4). Yet Counsel took no *1196 action until after the Temporary Special Master reported the results of the Court Questionnaires and the Defendants moved to dismiss the cases.
1. The Wilner Declaration
On April 6, 2012, Wilner filed a response to the Defendants' 2012 MTD (Doc. 589) along with the Declaration of Norwood Wilner ( "Wilner Declaration" ) (Doc. 589-1). Attempting to explain why he filed over 500 personal injury cases on behalf of dead plaintiffs, Wilner advised that by 1998, he "represented over 3,000 Florida smokers or their families. These clients were signed into contractual agreements giving the firm latitude as to the appropriate method to preserve and advance their claim against the cigarette companies." (Doc. 589-1, p.1 ¶ 4) (emphasis added). He claimed that when Engle III was decided:
my firm had successfully remained in contact with most but not all of these clients during the decade long period between their initial contact with the firm and [ Engle III ]. Unfortunately, some had been lost to follow up, usually because they had died and their heirs or family were unaware of their having requested representation for cigarette-related injuries. However, after consulting with a legal ethicist who had been the Ethics Director of the Florida Bar from 1989-1997, I came to view it as my professional duty to make protective filings on behalf of these clients whom we could not locate prior to the time their claims had to be filed in order to be preserved.
( Id. , p.2 ¶ 7) (emphasis added). Admitting that he filed suit on behalf of over 500 plaintiffs without knowing their status, Wilner asserted that
[b]ecause the status of the original claimant was unknown at the obligatory deadline for filing damage claims, and because the Florida Supreme Court did not elaborate on what format was required for a "damage claim," I elected to list all claimants of unknown status under the name of the injured or deceased party, who had first contacted me or my firm. These claims were filed as a list in groups of 200, nominally under the name of the injured party.
( Id. , p.2 ¶ 8). Finally, Wilner asserted that "[i]n the time following the filing, efforts to locate survivors were successful in all but a few cases, and those survivors ratified the filings nunc pro tunc ." ( Id. p.2, ¶ 9) (emphasis added). Despite these alleged "nunc pro tunc" ratifications, Wilner never moved to amend any of the complaints, and he never let the Court or anyone else know that more than 500 personal injury complaints named a dead plaintiff.
Like this Court, the Eleventh Circuit was not satisfied by the Wilner Declaration:
That's it. We are not told what The Wilner Firm did to keep up with its clients during the decade or so that Engle was winding through state court, how many of those clients it lost touch with before Engle III came down in December 2006, what efforts it took following Engle III to reestablish contact, or how many of these missing clients it failed to contact before a lawsuit was filed on their behalf in January 2008. Nor are we told what information Mr. Wilner used to draft complaints for the missing clients, when those clients had last been in contact with the firm, or what efforts were taken to update client information and otherwise investigate the validity of their cases. And Mr. Wilner's declaration did not even mention, much less explain, how his firm came to file personal injury cases on behalf of smokers who died before the mid-'90s-who *1197 obviously did not contact his firm to request representation.
In re Engle Cases , 767 F.3d at 1110 -11 .
2. The June 2012 Hearing
To address the issues raised in the 2012 Temporary Special Master's Report and Defendants' 2012 motion to dismiss, the Court held another hearing on June 24, 2012 (" June 2012 Hearing "). (Doc. 677). Wilner did not attend the June 2012 Hearing, so the Court questioned Wilner's co-counsel-Elizabeth Cabraser of Lieff Cabraser-concerning the many suspect statements in the Wilner Declaration. As the Eleventh Circuit recounted:
In light of the fact that Mr. Wilner hadn't had any recent contact with these "clients" when he filed claims on their behalf in 2008, the court found it highly unlikely that he had any authorization to file suit or that he had investigated the validity of these claims. Moreover, the [C]ourt pointed out, a number of the [Pre-Deceased Plaintiffs] had died before Mr. Wilner even started collecting tobacco clients-a group that Mr. Wilner's declaration had not even mentioned. Ms. Cabraser didn't have any answers for the court; she explained that she hadn't been around back then and so she just stood on Mr. Wilner's (incomplete) declaration.
The [C]ourt also doubted that [Counsel] had really tracked down and received authorization " nunc pro tunc " from these [Pre-Deceased Plaintiffs'] survivors. In fact, the court asked Ms. Cabraser if the attorneys had only learned of all these [Pre-Deceased Plaintiffs] once they received responses to the [Court Questionnaires]; her reply: "I don't know." As for the suggestion that the [S]tay-which the [C]ourt left in place at the parties' request to help manage the mass of cases-absolved [C]ounsel of any obligation to fix their mistakes in a timely manner or otherwise inform the court that in 521 of the cases they had pled the wrong cause of action and named the wrong plaintiff, the court tersely responded, "Really?" And addressing [C]ounsel's request that they now be allowed to go back and fix all their mistakes, the [C]ourt had this to say:
These cases were filed, clearly, with no authorization from the client, with no compliance with Rule 11, with no good faith inquiry into whether or not there was a viable basis for a claim, and now the Court is being asked under the purview of Rule 15 to somehow allow you to amend and relate back to a pleading that was filed on behalf of someone that was long dead and never authorized the institution of the action somehow under the rubric of doing justice and putting the Court in the position of ["]how can you not allow these people to have a claim brought on their behalf[?"]
It's an untenable situation, [Ms. Cabraser], that you are asking the Court to occupy....
In re Engle Cases , 767 F.3d at 1101 -02 (quoting Doc. 677 at 59-60).
The Court explained to counsel that the volume of cases did not lessen their obligations reasonably to investigate the claims and remain up-to-date on the status of the plaintiffs.
JUDGE DALTON: [Ms.] Barnett, I don't mean for either you or [Ms. Cabraser] to be the whipping posts on this, but we have tried to make this point to Mr. Wilner and his firm from the outset that the volume of claims is a given. We understand that. We understand the practical difficulty of trying to manage that because we are experiencing it ourselves.
That said, as we have expressed to Mr. Wilner, the volume of claims does not render the fundamental precepts of lawyer-client *1198 responsibilities, vis-à-vis the client and vis-à-vis the Court as procedural niceties.
The rules with respect to filing papers, prosecuting claims on behalf of people that you don't truly represent, that's not something that the Court is inclined to overlook. And we have tried to make that point. We have tried to do it in a way that is as accommodating as we can be to the difficulties that [C]ounsel is obviously having in trying to manage this large group of people; but there comes a day-and that day is here-where the Court really is left with no option other than to say, is this a viable claim, do you really represent this person, does this person wish to pursue this claim. And if you continue to tell us that the answer to those questions is in the affirmative and it turns out that it's not true, there are going to be consequences. And I don't say that in a way to try to hold a sledge hammer over the plaintiffs' heads.
I'm simply trying to communicate to you all the fact that we have been struggling with this amongst ourselves trying to figure out how do we make sure that the people who have meritorious claims, that are not barred by operation of law, have full and open access to the judicial process to get those claims heard.
We have four federal judges sitting up here trying to work through some of this labyrinth of issues that are presented by these claims; but I need you all-and I think I speak on behalf of my colleagues-to hear this loud and clear. If there are filings from this point forward on behalf of people that you do not represent, who do not wish to have the claims brought, that there are going to be Rule 11 consequences for that.
(Doc. 677 at 40-41).
The Court questioned whether the 500-plus predeceased personal injury plaintiffs ever qualified as Wilner's "clients" to begin with:
JUDGE DALTON: [Ms. Cabraser], that's the problem. It couldn't have been your client. And I say "you" collectively. It couldn't have been your client, because if it were your client, you would have had an authority to represent them. You would have had a conversation with your client. You would have had your client's authorization to proceed. Your client would have authorized you to avail him or herself of the court system and authorized you to file a complaint on his or her behalf seeking redress for injury.
You couldn't possibly file on behalf of somebody who is dead. You couldn't make a personal injury claim on behalf of someone who is dead. That could never happen because you would not have been able to obtain their signature on an authority to represent. Therein lies the problem.
These are not procedural niceties. These issues do not go away because there is a large volume of cases to be managed.
( Id. at 59) (emphasis added).
Counsel argued that the Court ought to allow them to substitute parties and amend the personal injury complaints so as to allege wrongful death claims in the names of survivors, even though they sat on the cases for four years and had no authority to file the personal injury complaints in the first place. The Court disagreed:
JUDGE DALTON: ... These cases were filed when there is no possible way-because the people were dead, there is no possible way that these actions were authorized. Now the Court is being asked to go back and allow amendments to these complaints to allow survivors to make a claim on behalf of individuals long dead when these *1199 claims that were made-and at least if Mr. Grossi's assertion is correct, and I'm not accepting it one way or another-but if his assertion is correct, these people are not members of the Engle class.
Now the Court is being asked to do this winnowing process to go through and look at the bona fides of these cases to determine whether or not-that's why Rule 11 exists. That's why it's there.
It's not the Court's responsibility to engage in this winnowing process. The Court's responsibility is to take counsel to task when complaints are filed that are not authorized, for which there has been no affirmative act by the client to engage the lawyer to request that those services be expended on his or her behalf.
As I said, I appreciate your posture in the case, Miss [Cabraser], and your firm's posture in the case; but if Mr. Wilner was here, I would be asking Mr. Wilner this question, or the lawyer whose name appears on the complaint that was filed, really, what possible-what possible right did you have-what possible explanation could you give for representing to the Court that I have done a good faith investigation into the facts and circumstances surrounding this case and am prepared to certify to the Court that the claim is bona fide, it is viable, and that it is made in good faith?
I would submit to you that at least as far as these claims are concerned that certification to the extent that it was made is unsupportable.
( Id. at 63-64 ) (emphasis added).
The Court also took exception to the part of the Wilner Declaration (Doc. 589-1), where he stated that by 1998 he represented over 3,000 Florida smokers or their families:
JUDGE DALTON: Again, it may be unfair to put you in this position, [Ms. Cabraser], but I'm looking at this declaration that you've referred to, and Mr. Wilner has certified to the Court that by 1998 he represented over 3,000 Florida smokers or their families. I'm now quoting.
"These clients were signed into contractual agreements giving the firm latitude as to the appropriate method to preserve and advance their claim against the cigarette companies."
I guess my question is, how could I credit that statement in light of 550, plus or minus, cases that were filed on behalf of individuals who were represented to be alive who in fact were dead? How could I credit this statement in the certification?
* * *
JUDGE HOWARD: Part of the difficulty with that is that we are looking at this affidavit that says that by 1998 Mr. Wilner was representing 3,000 Florida smokers or their families and they signed contractual agreements; and I'm really pretty bad at math, but my rough math is that 175 of these people or so, 176, were dead before 1998. Some of them were dead for a really long time. Twenty years before 1998; but by 1997, all of these people were dead and lawsuits were filed on their behalf.
I don't see how-I guess I can't accept that somebody who had been dead that long that their status was unclear in 2007 and 2008 when these lawsuits were filed. That just doesn't pass any test. It's just too easy these days to find out if somebody is alive or dead.
( Id. at 65, 69-70 ). The Court made no rulings at the June 2012 Hearing, but took the matter under advisement.
G. The Denton Juror
As if to drive home the point that Wilner filed claims without authorization to do so, *1200 a month after the June 2012 hearing there was an incident in a federal Engle case being tried in this Court where a sitting juror discovered that, unbeknownst to her, she too was an Engle plaintiff in a suit filed by Wilner and Farah . During the trial in Denton v. R.J. Reynolds Tobacco Co., et al. , Case No. 3:09-cv-10036, the Defendants alerted the Court that one of the jurors, Shirley Larramore, had an Engle complaint pending in her name. (Case No. 3:09-cv-10036, Doc. 189 at 92-93; id. at Doc. 190 at 27-30; id. at Doc. 200 at 157-59). Although Ms. Larramore was the plaintiff named in Case No. 3:09-cv-13138, it was clear that she was unaware of the case:
THE COURT: Do you know, ma'am, whether you and [your husband] or either one of you were ever part of the Engle [C]lass or ever part of the lawsuit that was filed on behalf of tobacco smokers?
JUROR LARRAMORE: No. Now, some people, some lawyer from-I can't remember if it was California or Washington, called me, and I denied the right to be in that lawsuit.
THE COURT: Okay. Do you know if either you or your husband were ever represented by either Chuck [Charlie] Farah or the law firm of Farah and Farah?
JUROR LARRAMORE: No, neither one of us. We have not been involved in any lawsuits.
THE COURT: Okay. And do you know a Woody Wilner or a Norwood Wilner?
JUROR LARRAMORE: I've heard of them, yes.
THE COURT: Okay. Did you ever sign up to be represented by them?
JUROR LARRAMORE: At one time I thought about it, and my husband and I thought about it, and we said, "That's not us"; that we would not get involved in a lawsuit. And I never answered any of their letters or anything they sent. I acknowledged no phone calls from them because I have caller ID and I wouldn't even answer the phone.
(Case No. 3:09-cv-10036, Doc. 189 at 92-93) (emphasis added). Ms. Larramore was shocked to learn Wilner had filed a lawsuit on her behalf anyway, and was relieved to learn that it would be dismissed. ( Id. at Doc. 190 at 27-28). In the meantime, Wilner's actions disrupted the Denton trial, as the Court had to query Ms. Larramore before dismissing her from the jury.
The Larramore action was not the last case to be dismissed under circumstances indicating that sanctions against Counsel might be warranted. Accordingly, beginning on August 23, 2012 (Doc. 758), the Court began reserving Rule 11 jurisdiction each time it dismissed Federal Engle Actions. ( See , e.g. , Docs. 780, 835, 864, 909, 925, 929).
H. Case Dismissals in 2012 and 2013 and Appointment of Special Master
On July 31, 2012, Counsel finally explained the reasons why they had moved in January 2012 to dismiss 189 cases. ( See Docs. 452, 718). Specifically, Counsel moved for the voluntary 17 dismissals because: (a) two plaintiffs were involved in Duplicate State Actions; (b) five plaintiffs had no Engle disease; (c) 58 plaintiffs did *1201 not satisfy Engle 's requirement of Florida residency; (d) 36 plaintiffs did not wish to pursue the litigation; (e) 53 actions were barred by the SOL; and (f) 35 actions were brought on behalf of Non-Smoker Plaintiffs. Alarmed by some of these reasons-particularly, the Non-Smoker Plaintiffs-the Court nonetheless: (a) granted the plaintiffs' motion to dismiss; (b) dismissed the cases; and (c) reserved jurisdiction over each of the 189 cases "for the limited purpose of making further inquiry and addressing the circumstances surrounding the filing of each of these cases, as well as any Rule 11 implications." (Doc. 780 at 2, 3). In September 2012, the Court also dismissed 644 cases because no Court Questionnaire had ever been returned, likewise reserving jurisdiction to make a Rule 11 inquiry. (Doc. 787). Thus, by the end of September 2012, 1,800 Federal Engle Actions remained pending.
The Court continued to dismiss cases that did not belong on the Engle Docket. In November 2012, the Court dismissed 37 cases that were barred by the SOL. (Docs. 835, 835-1). In January 2013, the Court dismissed the 521 personal injury cases filed on behalf of dead plaintiffs (" January 2013 Order "). (Doc. 925). Recalling Wilner's contention that he received filing authorization from the Pre-Deceased Plaintiffs' survivors "nunc pro tunc," the Court observed that:
It is not clear at this point...when Plaintiffs' counsel located the survivors and whether they did so as a result of the Court-ordered questionnaire process, as a result of [Counsel's] independent efforts, or both. What is clear, however, is that Plaintiffs' counsel made no effort to bring to the Court's attention, until required to do so by the [Court Questionnaire] process, that they had filed suits in the name of over 500 dead people.
( Id. at 4, n.3). Further,
Mr. Wilner acknowledges in his declaration that these cases were "protective filings" on behalf of clients who could not be located and whose status was unknown. (Doc. 589-1 at ¶ 7). However, whether counsel undertook any significant effort during that year to confirm the status of their clients remains unestablished in the record. The filing of personal injury claims on behalf of these 521 individuals who were already dead (some had been dead for many years) suggests counsel may not have.
( Id. at 10).
Finally, the Court rejected Wilner's argument that he thought the Stay absolved him of his duty to correct hundreds of defective complaints. ( Id. at 10-11). The Stay had not prevented counsel from filing protective motions to substitute personal representatives in other cases when a plaintiff died while the action was pending. ( Id. at 11). The Court added that the
circumstances of the filing of the 521 cases are now the subject of a Rule 11 motion filed by the Defendants (Doc. 813), which Plaintiffs oppose. (Doc. 822; Doc. 824). The Court declines to address this issue or the Rule 11 motion further in the context of this Order. However, the Court will reserve jurisdiction over these cases for the limited purpose of making further inquiry and addressing the circumstances of the filing of these cases, as well as any Rule 11 implications.
( Id. at 11, n.8). After the January 2013 Order, 1,200 Federal Engle Actions remained pending.
Between February 2013 and August 2013, the Court dismissed over 300 more cases. ( See Docs. 929, 951, 1101, 1102, 1130). Notable were the Court's Orders in *1202 June 2013, in which it dismissed on the Defendants' motions another 67 cases that involved Pre-Deceased Plaintiffs' personal injury claims (Doc. 1101), as well as another 151 cases where the plaintiff failed to return a questionnaire (Doc. 1102). By the end of August 2013, only 1,000 Federal Engle Actions remained pending.
Pause to reflect how much things changed between mid-2011, when the Engle Docket stood at 2,900 cases, and August 2013, by which time only about a third of that number remained. In May 2011, Counsel insisted there was no need to send questionnaires to the plaintiffs; that counsel had "ongoing and routine communications" with nearly all the plaintiffs; that any data gathered by questionnaires would "not result in a 'substantial reduction in the number of cases' "; that significant "winnowing ha[d] already occurred"; and that "there is no longer any sizeable group of cases ripe for dismissal." (Doc. 158 at 14-15). The next month, Wilner stood before the Court and represented that he was in contact with 2,600 plaintiffs, and that he could file Rule 11 certifications for each of the remaining 2,900 cases. But Counsel's representations could not have been more wrong. By August 2013, it had become clear that hundreds of cases were not viable, for "[a]s any lawyer worth his salt knows, a dead person cannot maintain a personal injury claim." In re Engle Cases , 767 F.3d at 1086 -87 . Many more cases were not viable for various other reasons, including some where plaintiffs never smoked or never authorized a lawsuit.
The winnowed Engle Docket progressively shrank, with the Court trying cases and others settling or being dismissed. In February 2015, the tobacco companies and the remaining plaintiffs announced that they had reached a tentative settlement valued at $100 million. ( See Doc. 1919). Each of the last 415 plaintiffs eventually ratified the settlement (" Settlement Agreement ") ( see Doc. 2092), and the Court approved the creation of the Federal Engle Settlement Fund to disburse the settlement proceeds and attorneys' fees (Doc. 2090). The Court made clear, however, that the settlement of the remaining cases would not end the Court's inquiry into whether Counsel violated Rule 11, 28 U.S.C. § 1927 , or the Local Rules. (Doc. 2094 at 2-3). Thus, the Court required that the amounts set aside in the settlement fund to pay attorneys' fees and costs be frozen until it could adjudicate the sanctions issue.
Because "the Court wishe[d] to maintain its role as [a] neutral adjudicator of these matters," it proposed "appointing the United States Attorney to investigate the issues and recommend to the Court how it ought to proceed under Rule 11, § 1927, the Local Rules, the Court's inherent authority, and its obligation to ensure the appropriateness of attorney's fees and costs under the Settlement Agreement." ( Id. at 4). The Court solicited the parties' feedback. ( Id. ).
The Defendants agreed to withdraw their Rule 11 motion as part of the Settlement Agreement; as such, they took no position on the sanctions issue. (Doc. 2098). Meanwhile, Counsel argued that such an investigation was unnecessary. (Docs. 2097, 2100, 2101, 2102). On December 22, 2015, the Court appointed the U.S. Attorney to serve as a Special Master (distinct from the Temporary Special Master) to investigate whether Counsel's conduct warranted sanctions under Rule 11, 28 U.S.C. § 1927 , or the Court's inherent authority (" Referral Order "). (Doc. 2108). The Referral Order delineated specific issues and incidents of concern ( id. at 3-6 ), directed the Special Master to investigate, and set a schedule for the submission of a *1203 Report and Recommendation, objections, and a response ( id. at 6-7 ).
I. The 2016 Report and Recommendation
Seven months later, the Special Master submitted the comprehensive 298-page 2016 R & R that is before the Court (Doc. 2147), along with several thousand pages of exhibits. While recommending no sanctions against the other firms representing plaintiffs, the Special Master found that Wilner and Farah had violated Rule 11, 28 U.S.C. § 1927 , the Court's Local Rules, and the Florida Rules of Professional Conduct. The Special Master recommended, among other things, that the Court order Counsel to disgorge all attorney's fees and costs recoverable in this Engle Litigation. 18 Counsel filed Objections totaling 242 pages (Doc. 2165), along with over 1,800 pages of exhibits. The Special Master filed a 48-page Response. (Doc. 2170).
J. The December 2016 Hearing
The matter came before the Court for a day-long hearing on December 13, 2016, during which the Court heard argument from both sides, as well as extensive remarks from Wilner and a more limited statement from Farah. ( See Doc. 2174 at 90-143). The analysis and conclusions that follow are informed by the Court's familiarity with the record, the comprehensive briefs and exhibits submitted by both sides, and the December 13, 2016 hearing.
PART II
Procedural Due Process
Before discussing whether Wilner's and Farah's conduct is sanctionable, the Court addresses an issue that they raised for the first time at the December 13, 2016 sanctions hearing. Although nowhere argued in their 242-page objections to the 2016 R & R-or at any other time in the months after the hearing was scheduled-Counsel protested on the morning of the hearing that the hearing would not afford them adequate procedural due process. Counsel argued that the Court must give them the same procedural due process that attends a criminal trial: the right to present witness testimony; the right to discovery; the right to a trial by jury; and the right to require that the Special Master prove violations of Rule 11, 28 U.S.C. § 1927 , and any other ethical duties beyond a reasonable doubt. The Court disagrees. Below, the Court explains why the procedures accorded Wilner and Farah satisfy the requirements of procedural due process, as well as the particular procedural requirements of Rule 11.
A. Constitutional Requirements
The Fifth Amendment guarantees that no person shall be deprived of life, liberty, or property without the due process of law. U.S. Const., amend. V. A court must comport with the mandates of due process when sanctioning lawyers for abusive litigation practices. Chambers v. NASCO , 501 U.S. 32 , 50, 111 S.Ct. 2123 , 115 L.Ed.2d 27 (1991) ; Roadway Exp., Inc. v. Piper , 447 U.S. 752 , 767, 100 S.Ct. 2455 , 65 L.Ed.2d 488 (1980). What process is due is a more difficult question however, as "[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation." Cafeteria & Restaurant Workers Union v. McElroy , 367 U.S. 886 , 895, 81 S.Ct. 1743 , 6 L.Ed.2d 1230 (1961). While courts have framed the due process protections in the sanctions context somewhat differently depending on the source of the *1204 court's sanctioning authority, the requirements are similar in substance. In general, regardless of whether the Court invokes Rule 11, 28 U.S.C. § 1927 , or its inherent authority, it must provide a lawyer (or a party) notice of the possibility of sanctions, the reasons why the court is contemplating sanctions, and an opportunity to respond. Amlong & Amlong, P.A. v. Denny's, Inc. , 500 F.3d 1230 , 1242 (11th Cir. 2007) ("Plainly, an attorney threatened with sanctions under § 1927 is entitled to a hearing.") (citing Reynolds v. Roberts , 207 F.3d 1288 , 1302 (11th Cir. 2000) ); Thomas v. Tenneco Packaging Co., Inc. , 293 F.3d 1306 , 1321 (11th Cir. 2002) (a lawyer facing sanctions pursuant to a court's inherent authority "must be provided with notice and 'an opportunity to respond, orally or in writing, to the invocation of such sanctions and to justify his actions.' ") (quoting In re Mroz , 65 F.3d 1567 , 1575-76 (11th Cir. 1995) ); Donaldson v. Clark , 819 F.2d 1551 , 1559-60 (11th Cir. 1987) (en banc) ("Due process requires that the attorney ... has fair notice of the possible imposition of Rule 11 sanctions and of the reasons for their imposition," as well as "an opportunity to respond, orally or in writing as may be appropriate....").
What due process does not require is that the Court give Counsel a full-blown criminal trial. The Eleventh Circuit has held that lawyers facing Rule 11 sanctions are not entitled to the panoply of procedures that a criminal proceeding entails. Donaldson , 819 F.2d at 1558 -61 . "Nothing in the text of Rule 11 or in the Advisory Committee Note indicates that due process requires a court to follow the procedures called for by Fed. R. Crim. P. 42(b) for criminal contempt proceedings before it can impose a monetary sanction pursuant to Rule 11." Id. at 1558 . Indeed, the Eleventh Circuit has
explicitly rejected the argument that the punitive character of a monetary sanction imposed in a judicial disciplinary proceeding fixes the proceeding as one of criminal contempt, requiring the right to jury trial and analogous criminal procedural rights. Kleiner , 751 F.2d at 1209-10. [ 19 ] A violation of Rule 11 is fundamentally different from an infraction of criminal contempt and therefore warrants different sanction proceedings.
The bar bears a special administrative responsibility in the judicial process independent from the public at large. We frequently refer to attorneys as officers of the court. A monetary sanction for failure to carry out this special responsibility as an attorney differs from the more severe infractions of criminal contempt for which attorneys and members of the general public can become liable. The former is an unjustified failure to carry out an administrative responsibility as an officer of the court; the latter is an affront to the authority of the judge.
Miranda v. Southern Pac. Transp. Co. , 710 F.2d 516 , 519 (9th Cir. 1983). "The court's power to impose appropriate sanctions on attorneys practicing before it 'springs from a different source than does the power to punish for criminal contempt.' " Kleiner , 751 F.2d at 1209 (citations omitted).
Donaldson , 819 F.2d at 1558 -59 . The Supreme Court has further said that judicial sanctions like those imposed under Rule 11, including the assessment of costs, "never have been considered criminal, and the imposition of civil, coercive fines to police the litigation process appears consistent with" its due process precedents. Int'l Union, United Mine Workers of Am. v. Bagwell , 512 U.S. 821 , 833, 114 S.Ct. 2552 , 129 L.Ed.2d 642 (1994). Counsel's insistence on *1205 the full protection of criminal due process also runs counter to one of the objectives of Rule 11, which is to curb, not spawn, collateral litigation. Donaldson , 819 F.2d at 1559 . Thus, to the extent the Court imposes sanctions under Rule 11, Counsel are not entitled to a criminal trial.
Likewise, the Court finds no authority for the notion that a lawyer facing sanctions under 28 U.S.C. § 1927 is entitled to a criminal trial. Rather, nearly every court to consider the question has held only that a lawyer is entitled to notice and an opportunity to respond-proceedings far short of a full-fledged criminal trial. See e.g. , Amlong , 500 F.3d at 1242 (a lawyer facing sanctions under § 1927 is entitled to a hearing); Resolution Trust Corp. v. Dabney , 73 F.3d 262 , 268 (10th Cir. 1995) (lawyer sanctioned under § 1927 and the court's inherent authority was entitled to notice and an opportunity to respond); Jones v. Pittsburgh Nat'l Corp. , 899 F.2d 1350 , 1357 (3d Cir. 1990) ("Prior to sanctioning an attorney [under 28 U.S.C. § 1927 ], a court must provide the party to be sanctioned with notice of and some opportunity to respond to the charges.") (citation omitted).
Nor are Counsel entitled to a criminal trial to the extent the Court imposes sanctions under its inherent authority. Relying on Bagwell , 512 U.S. 821 , 114 S.Ct. 2552 , Counsel argue that the Court is subjecting them to criminal contempt sanctions, and thus that they are entitled to criminal due process. But Bagwell does not support their position; Bagwell only concerned what process is required when a court imposes a punitive sanction for indirect contempt. See id. at 834 , 114 S.Ct. 2552 (noting that all sides agreed the case involved a non-compensatory sanction); id. at 827 n. 2, 114 S.Ct. 2552 ("We address only the procedures required for adjudication of indirect contempts, i.e., those occurring out of court."). As the Court will explain, the sanction here is neither punitive nor is it for indirect contempt. As such, civil procedures are appropriate.
In Bagwell , a state court fined a union $64 million for committing multiple violations of an injunction during the course of a strike. Id. at 823-24 , 114 S.Ct. 2552 . Of the $64 million fine, $52 million was payable to the Commonwealth of Virginia and the two counties impacted by the union's activities. All sides admitted, however, that the $52 million component of the sanction was punitive, as it was not calibrated to compensate the Commonwealth or the two counties for their harm. Id. at 834 , 114 S.Ct. 2552 . Nevertheless, the state court characterized the contempt proceedings as civil and refused to give the union a jury trial. Id. at 824 , 114 S.Ct. 2552 . The union argued that the sanctions were criminal in nature, and thus that they should have had the protections that a criminal trial entails.
The Supreme Court agreed with the union and reversed the sanctions. The Court identified the issue as "whether these fines, despite their noncompensatory character, are coercive civil or criminal sanctions." Id. at 834 , 114 S.Ct. 2552 . According to the Court, a contempt fine "is considered civil and remedial if it either 'coerce[s] the defendant into compliance with the court's order, [or]...compensate[s] the complainant for losses sustained." Id. at 829 , 114 S.Ct. 2552 (quoting United States v. Mine Workers , 330 U.S. 258 , 303-04, 67 S.Ct. 677 , 91 L.Ed. 884 (1947) ). Criminal sanctions, by comparison, are not designed to coerce obedience and do not offer the contemnor an opportunity to cure; they retrospectively impose punishment for completed acts of disobedience. Id. at 828-29, 114 S.Ct. 2552 (citing Gompers v. Bucks Stove & Range Co. , 221 U.S. 418 , 31 S.Ct. 492 , 55 L.Ed. 797 (1911) ). Because the fine was admittedly noncompensatory, whether it qualified as a civil sanction turned on whether it was meant to coerce the union into *1206 compliance with a court order. Ultimately, however, the Court declined to classify the sanction based on whether it was designed to coerce obedience (as with a coercive civil contempt fine) or to punish disobedience (as with a punitive criminal contempt fine), noting the difficulty in distinguishing between the two because they share similar features-punitive criminal sanctions, for example, also have a coercive component because they threaten to penalize non-compliance. See id. at 836-37, 114 S.Ct. 2552 . Instead, "[o]ther considerations convince[d] [the Court] that the fines challenged here are criminal." Id. at 837 , 114 S.Ct. 2552 . First, "[t]he union's sanctionable conduct did not occur in the court's presence or otherwise implicate the court's ability to maintain order and adjudicate the proceedings before it." Id. Second, the union's contumacy did not involve simple, affirmative misdeeds, but "widespread, ongoing, out-of-court violations of a complex injunction," such that the Virginia court "effectively policed [the union's] compliance with an entire code of conduct that the court itself had imposed." Id. Third, "[t]he fines assessed were serious, totaling over $52 million." Id. 20 Under those circumstances, the Court held that "disinterested factfinding and evenhanded adjudication were essential, and petitioners were entitled to a criminal jury trial." Id. at 838 , 114 S.Ct. 2552 .
This case is substantially distinguishable. First, the Court's sanction is compensatory, which places it outside the orbit of Bagwell . As discussed in greater detail in Part VI, infra , the sanction here is designed to compensate the Court for the waste of scarce judicial resources occasioned by Wilner's and Farah's misconduct. 21 No court has held that a compensatory fine tied directly to the damage inflicted upon the injured party, as it is here, is a punitive sanction that triggers criminal due process. 22 Indeed, Bagwell *1207 left "unaltered the longstanding authority of judges to adjudicate direct contempts summarily, and to enter broad compensatory awards for all contempts through civil proceedings." Id. at 838 , 114 S.Ct. 2552 (citing Sheet Metal Workers v. EEOC , 478 U.S. 421 , 106 S.Ct. 3019 , 92 L.Ed.2d 344 (1986) ). Because the sanctions imposed here are directly tied to the consumption of scarce public resources, the sanction is compensatory, which places it in the category of civil sanctions. Id. at 829, 114 S.Ct. 2552 (A contempt fine "is considered civil and remedial if it ... 'compensate[s] the complainant for losses sustained.' ") (quoting Mine Workers , 330 U.S. at 303 -04 , 67 S.Ct. 677 ).
Second, today's sanctions are not for out-of-court misconduct, i.e., indirect contempt. Instead, the sanction is for conduct that occurred in front of the Court-that is, for frivolous allegations and misleading statements by Counsel in court filings and in oral pronouncements directly before the undersigned judges. While "contempts committed beyond the Court's presence where the judge has no personal knowledge of the material facts are especially suited for trial by jury," Green v. United States , 356 U.S. 165 , 217 n.33, 78 S.Ct. 632 , 2 L.Ed.2d 672 (1958) (Black, J., dissenting), "the contempt's occurrence before the Court reduces the need for extensive factfinding and the likelihood of an erroneous deprivation." Bagwell , 512 U.S. at 832 , 114 S.Ct. 2552 . When, as here, "an attorney has failed to present necessary factual support for claims despite several opportunities to do so..., further hearing on the sanctions issue may well be not only unnecessary but also a waste of judicial resources." Donaldson , 819 F.2d at 1561 . Moreover, the Court's power to impose sanctions "is at its pinnacle...where contumacious conduct threatens a court's immediate ability to conduct its proceedings." Bagwell , 512 U.S. at 832 , 114 S.Ct. 2552 . Wilner's and Farah's contumacious behavior not only occurred directly in the Court's presence, but it disrupted the Court's ability to manage the federal Engle litigation.
Additionally, the Court is not imposing sanctions solely to police Counsel's "compliance with an entire code of conduct that the court itself had imposed." Id. at 837 , 114 S.Ct. 2552 . To the contrary, as Parts III, IV, and V make clear, the Court imposes sanctions based on Counsel's failure to comply with their obligations as officers of the court under Rule 11, 28 U.S.C. § 1927 , and the Florida Rules of Professional Conduct. One of the reservations the Supreme Court expressed with contempt sanctions in Bagwell was "the fusion of legislative, executive, and judicial powers" in the judge; that is, that "civil contempt proceedings leave the offended judge solely responsible for identifying, prosecuting, adjudicating, and sanctioning the contumacious conduct." Id. at 831 , 114 S.Ct. 2552 . According to the Supreme Court, this fusion of powers created a particularly compelling argument for the necessity of a jury trial " 'as a protection against the arbitrary exercise of official power.' " Id. at 831-32 , 114 S.Ct. 2552 (quoting Bloom v. Illinois , 391 U.S. 194 , 202, 88 S.Ct. 1477 , 20 L.Ed.2d 522 (1968) ). Here though, the Court does not sanction Counsel for wrongdoing defined only by the Court. Rather, the Court sanctions Counsel for wrongdoing that has been defined by other authorities-by the Federal Rules of Civil Procedure, by Congress, and by the Florida Bar. As such, any concern that the Court might arbitrarily define sanctionable conduct is misplaced.
What due process does require is that Counsel receive notice of the possibility of sanctions and an opportunity to respond. Donaldson , 819 F.2d at 1559-60 ; Amlong , 500 F.3d at 1242 ;
*1208 Thomas , 293 F.3d at 1321 . With respect to notice, Counsel received ample warning that sanctions may be imposed, the authorities under which sanctions might be imposed, and the reasons why. As early as the hearing on June 6, 2012, the Court warned Counsel that there may be " Rule 11 consequences" for the manner in which they conducted the federal Engle litigation. (Doc. 677 at 41). Beginning in August 2012, the Court began including a notation in each order dismissing cases that it was "reserv[ing] jurisdiction to make further inquiry and address the circumstances surrounding the filing of this case, and any Rule 11 implications." ( E.g. , Doc. 758 at 2). On October 26, 2012, the defendants filed their own "Motion for an Inquiry Under Rule 11 as to Cases Filed as Personal Injury Actions in the Names of Deceased 'Plaintiffs' " (Doc. 813), giving Counsel further notice of the specter of sanctions. In November 2015, as the Court ordered the disbursement of proceeds from the global settlement, the Court advised Counsel that sanctions proceedings were forthcoming, and invited Counsel to "make whatever arguments they wish or any suggestions as to how the Court ought to navigate this unusual situation." (Doc. 2094 at 2-4). Then on December 22, 2015, after hearing from the parties, the Court appointed the Special Master so that the Court could maintain its role as a neutral arbiter in the sanctions proceedings. (Doc. 2108). In so doing, the Court laid out the specific conduct that the Court thought warranted investigation, the authorities that might justify the imposition of sanctions (including Rule 11, 28 U.S.C. § 1927 , and the Court's inherent power), and the procedures that the Court intended to follow. ( Id. ). Finally, the Special Master's comprehensive 2016 R & R (Doc. 2147) laid out in painstaking detail the conduct that the Special Master believes warrants sanctions, the reasons why, and the applicable authorities. Thus, there can be no dispute that Counsel received ample notice.
Nor can there be any dispute that Counsel had an adequate opportunity to respond. At the Court's invitation, Counsel responded to the Court's proposal to appoint a Special Master. (Doc. 2102). This gave Counsel an initial opportunity to address the Court's concerns, as well as a chance to give input on the procedures for determining whether sanctionable conduct occurred. (Counsel did not at that time suggest that they were entitled to a criminal trial). During the Special Master's investigation itself, Counsel had several opportunities to justify their conduct to the Special Master, as reflected by several exchanges between the Special Master and the Wilner Firm. ( E.g. , Ex. 1, 6, and 10 to 2016 R & R). After the Special Master issued his 2016 R & R, Counsel had the opportunity to respond to the Special Master's findings, and they did so, filing an extensive 242-page objection, along with over 1,800 pages of exhibits. (Doc. 2165, Objections).
Case law suggests that the Court could have stopped there-that an opportunity to file a written response is enough. See Thomas , 293 F.3d at 1320-21 (a lawyer facing sanctions pursuant to a court's inherent power "must be provided with notice and 'an opportunity to respond, orally or in writing, to the invocation of such sanctions and to justify his actions.' ") (quoting In re Mroz , 65 F.3d at 1575-76 ); Baker v. Alderman , 158 F.3d 516 , 526 (11th Cir. 1998) (although it is "prudent for a district judge to hold a hearing before imposing sanctions," there is "no requirement [under Rule 11 ] that a hearing be conducted before sanctions are awarded."); G.J.B. & Assoc., Inc. v. Singleton , 913 F.2d 824 , 830 (10th Cir. 1990) (procedural due process requires that an attorney have notice and an opportunity to respond before *1209 a court imposes Rule 11 sanctions, but it does not require the court to hold a separate oral hearing) (citing Braley v. Campbell , 832 F.2d 1504 , 1514-15 (10th Cir. 1987) (en banc)). However, in view of the seriousness of the matter, the Court provided further procedural safeguards. The Court held a day-long hearing on December 13, 2016, during which the Court entertained argument from Holland and Knight, whom Wilner and Farah hired to represent them on the sanctions issue, and allowed Wilner and Farah to speak at length. ( See generally , Doc. 2174, Sanctions Hearing Transcript).
The Court is satisfied that Wilner and Farah have received more than adequate procedural due process. Because the Court intends to impose a civil compensatory sanction for misconduct that occurred before the Court, and which directly interfered with the administration of the federal Engle litigation, civil procedures are appropriate. The Court has given Wilner and Farah ample notice and opportunity to defend themselves, both in writing and in person.
B. Rule 11 Procedural Requirements
The Court must also be satisfied, to the extent it imposes sanctions under Rule 11, that Rule 11's own procedural requirements have been met. 23 Rule 11 provides that "[o]n its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b)." Fed. R. Civ. P. 11(c)(3). However, a court may not impose a monetary sanction "on its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned." Fed. R. Civ. P. 11(c)(5)(B).
This Court has not entered an order formally titled an "order to show cause." The Eleventh Circuit has held, however, that "[w]hile formal compliance with Rule 11(c)(1)(B) [ 24 ] is the ideal, we apply a flexible standard, so in many cases substantial compliance may suffice." Kaplan v. DaimlerChrysler, A.G. , 331 F.3d 1251 , 1256-57 (11th Cir. 2003) (citations omitted). The Court has substantially complied with Rule 11(c)(5)(B)'s requirement that it issue a show cause order before imposing sanctions sua sponte . As recounted in Part II.A above, the Court entered multiple orders notifying Counsel of the prospect of Rule 11 sanctions. 25 The Order appointing the Special Master (Doc. 2108), identified the conduct that the Court thought warranted investigation, and set a deadline for Counsel to respond to the 2016 R & R, effectively serving as an order for Counsel to show cause why they should not be sanctioned. Issuing a further show cause order at this point, after having received hundreds of pages of briefing on the issue of sanctions, thousands of pages of exhibits, and having held an oral hearing, would be superfluous. As such, the Court concludes that it has satisfied Rule 11's procedural requirements for the imposition of sanctions.
PART III
A. Rule 11 in General
Under Rule 11 of the Federal Rules of Civil Procedure :
*1210 [b]y presenting to the court a pleading, written motion, or other paper-whether by signing, filing, submitting, or later advocating it-an attorney or unrepresented party certifies 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, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely 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 belief or a lack of information.
Fed. R. Civ. P. 11(b).
"If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation." Fed. R. Civ. P. 11(c)(1). A court has authority on its own initiative to "order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b)." Fed. R. Civ. P. 11(c)(3).
The purpose of Rule 11 is to "reduce frivolous claims, defenses, or motions, and to deter costly meritless maneuvers." Massengale v. Ray , 267 F.3d 1298 , 1302 (11th Cir. 2001) (citing Donaldson , 819 F.2d at 1556 ). A district court may impose sanctions:
(1) when the party files a pleading that has no reasonable factual basis; (2) when the party files a pleading that is based on a legal theory that has no reasonable chance of success and that cannot be advanced as a reasonable argument to change existing law; or (3) when the party files a pleading in bad faith for an improper purpose.
Anderson v. Smithfield Foods, Inc. , 353 F.3d 912 , 915 (11th Cir. 2003) (internal quotations and citations omitted).
" Rule 11 applies to all papers filed in a suit." Turner v. Sungard Bus. Sys., Inc. , 91 F.3d 1418 , 1421 (11th Cir. 1996) (citing Thomas v. Capital Sec. Servs., Inc. , 836 F.2d 866 , 870, 873 (5th Cir. 1988) (en banc)). In 1993, the Rule was amended also to prohibit a lawyer from "later advocating" a frivolous pleading, motion, or other paper. Thus:
[A] litigant's obligations with respect to the contents of these papers are not measured solely as of the time they are filed with or submitted to the court, but include reaffirming to the court and advocating positions contained in those pleadings and motions after learning that they cease to have any merit. For example, an attorney who during a pretrial conference insists on a claim or defense should be viewed as "presenting to the court" that contention and would be subject to the obligations of subdivision (b) measured as of that time.
Id. at 1422 (quoting Fed. R. Civ. P. 11, Adv. Cmt. Note, 1993 amend.) (emphasis added). The Rule "emphasizes the duty of candor by subjecting litigants to potential sanctions for insisting upon a position after it is no longer tenable...." Fed. R. Civ. P. 11, Adv. Cmt. Note, 1993 amend. " Rule 11 requires [litigants] to make reasonable inquiries *1211 into the veracity of information filed before the court and to advise the court of any changes." Attwood v. Singletary , 105 F.3d 610 , 613 (11th Cir. 1997) (per curiam). "As officers of the court, [lawyers] [a]re duty bound to inform the court of the information in counsel's complaints that they kn[o]w to be false-even if the court ha[s]n't repeatedly asked them for that information." In re Engle Cases , 767 F.3d at 1117 (citations omitted).
The term "later advocate" suggests that a lawyer must engage in some sort of affirmative conduct to violate the continuing duty of candor. However, in Turner , the sanctioned attorney simply filed a notice of appearance to replace previous counsel, who had withdrawn upon discovering that the plaintiff's contentions were factually unsupported. 91 F.3d at 1420 , 1421 . The district court found that, from the moment the second lawyer appeared in the case, he knew "that there was no merit to the plaintiff's assertions, or, at the very least, he consciously decided not to inquire of the merits." Id. at 1421 . The Eleventh Circuit reasoned that "[b]y appearing in this case, [counsel] affirmed to the court that the case had arguable merit. In this sense, it was as if [counsel] had refiled the complaint. To use Rule 11's words, he was 'later advocating' that the 'factual contentions [in the complaint] have evidentiary support.' " Id. (quoting Fed. R. Civ. P. 11(b) ).
While Rule 11 does not apply to papers originally filed in state court, Tompkins v. Cyr , 202 F.3d 770 , 787 (5th Cir. 2000), the continuing duty of candor discussed above
has diminished the importance of this point...by making the certification reflected in the signature continuous, at least in the sense that the party cannot base her advocacy in the federal district court on a state-filed document that does not satisfy Rule 11. The signer has an obligation not to re-present a motion or pleading that violates Rule 11 and to refrain from advocating its objectionable content once the action is removed.
Wright & Miller, Fed. Prac. & Proc. Civ. § 1337.1 (3d ed.). As Rule 11's commentary states:
[I]f after a notice of removal is filed, a party urges in federal court the allegations of a pleading filed in state court (whether as claims, defenses, or in disputes regarding removal or remand), it would be viewed as "presenting"-and hence certifying to the district court under Rule 11-those allegations.
Fed. R. Civ. P. 11, Adv. Cmt. Note, 1993 amend., subdivisions (b) and (c).
B. An Objective Bad Faith Standard Applies to Court-Initiated Rule 11 Sanctions
The standard for evaluating conduct under Rule 11 is ordinarily "reasonableness under the circumstances" and "what was reasonable to believe at the time" the litigant made the allegedly frivolous contention. Baker , 158 F.3d at 524 (footnote omitted). 26 "Hence, courts determine whether a reasonable attorney in like circumstances could believe his actions were factually and legally justified." Kaplan , 331 F.3d at 1255 (citing Riccard v. Prudential Ins. Co. , 307 F.3d 1277 , 1294 (11th Cir. 2002) ). "[B]ad faith" is not necessarily required to violate Rule 11. Chambers , 501 U.S. at 47 & n.11, 111 S.Ct. 2123 (" Rule 11...imposes an objective standard of reasonable inquiry which does not mandate a finding of bad faith."); see Donaldson , 819 F.2d at 1556 .
*1212 Courts therefore follow a two-step inquiry in determining whether to impose Rule 11 sanctions, assessing (1) whether the claim is objectively frivolous, and if so, (2) whether the person who signed the pleading should have been aware that it was objectively frivolous. Baker , 158 F.3d at 524 . Put another way, a court first determines "whether the party's claims are objectively frivolous-in view of the facts or law-and then, if they are, whether the person who signed the pleadings should have been aware that they were frivolous; that is, whether he would have been aware had he made a reasonable inquiry." Worldwide Primates, Inc. v. McGreal ( Worldwide Primates II ), 87 F.3d 1252 , 1254 (11th Cir. 1996). 27
In Kaplan , the Eleventh Circuit held that a higher standard-"akin to contempt"-applies when a court imposes Rule 11 sanctions sua sponte . 331 F.3d at 1255 . As the Eleventh Circuit explained:
Court-initiated sanctions under Rule 11(c)(1)(B) do not involve the "safe harbor" provision contained in Rule 11(c)(1)(A). In re Pennie & Edmonds LLP , 323 F.3d 86 , 89 (2d Cir. 2003). That provision ordinarily gives a lawyer or litigant 21 days within which to correct or withdraw the challenged submission. Id. at 89 .
Because "no 'safe harbor' opportunity exists to withdraw or correct a submission challenged in a court-initiated proceeding," id. , Rule 11's drafters commented on Rule 11(c)(1)(B)'s compensating protections: The initiating court must employ (1) a "show-cause" order to provide notice and an opportunity to be heard; and (2) a higher standard ("akin to contempt") than in the case of party-initiated sanctions.
Other circuits apply the "akin to contempt" rationale to court-initiated, Rule 11 sanctions. Hunter v. Earthgrains Co. Bakery , 281 F.3d 144 , 151 (4th Cir. 2002) ; Barber v. Miller , 146 F.3d 707 , 711 (9th Cir. 1998). Sua sponte Rule 11 sanctions, then, must be reviewed with "particular stringency." Pennie , 323 F.3d at 90 ; MHC Inv. Co. v. Racom Corp. , 323 F.3d 620 , 623 (8th Cir. 2003) ; Hunter , 281 F.3d at 153 ; United Nat'l Ins. Co. v. R & D Latex Corp. , 242 F.3d 1102 , 1115 (9th Cir. 2001).
Kaplan , 331 F.3d at 1255 (emphasis in original) (footnote omitted). 28
The Eleventh Circuit did not articulate how the "akin to contempt" standard differs from the "reasonable under the circumstances" standard, except to say that "[ s ] ua sponte Rule 11 sanctions...must be reviewed with 'particular stringency.' " Id. (citations omitted). The Eleventh Circuit also declined to resolve whether the "akin to contempt" standard requires a showing of subjective bad faith, or something else. Id. at 1256 .
The Second Circuit has held that a court must apply the "akin to contempt" standard when imposing sua sponte Rule 11 sanctions, and further, that the "akin to contempt" standard requires proof of subjective bad faith. In re Pennie , 323 F.3d at 91 . That opinion, however, was accompanied *1213 by a formidable dissent, in which Judge Underhill contended that Rule 11 does not require a court to find subjective bad faith before imposing sanctions on its own. Id. at 93-102 (Underhill, J., dissenting). Judge Underhill wrote that the rules committee deliberately abandoned a subjective bad faith standard in favor of the "reasonable under the circumstances" standard with the 1983 amendments, and that nothing in Rule 11 requires a different standard to apply when a court proceeds sua sponte .
The First Circuit also disagreed with the Pennie majority, and held that the standard for imposing Rule 11 sanctions sua sponte is still reasonableness-under-the-circumstances. Young v. City of Providence ex rel. Napolitano , 404 F.3d 33 , 39-40 (1st Cir. 2005). The First Circuit acknowledged that "judges must be especially careful where they are both prosecutor and judge; but careful appellate review is the answer to this concern." Id. at 40 . 29 Likewise, the Fifth Circuit rejected the contention that a subjective bad faith standard applies where a court imposes Rule 11 sanctions on its own initiative. Jenkins v. Methodist Hosps. of Dallas, Inc. , 478 F.3d 255 , 264 (5th Cir. 2007).
After careful research, this Court is not aware of any other circuit court of appeals, beyond the Second Circuit, holding that sua sponte Rule 11 sanctions require a showing of subjective bad faith. 30 Those other courts of appeals that have held that sua sponte Rule 11 sanctions are "akin to contempt" have not adopted a subjective bad faith standard. See e.g. , Hunter , 281 F.3d at 151 (Fourth Circuit opinion observing that Rule 11's advisory notes contemplated that sua sponte sanctions would only be imposed in situations akin to a contempt of court, but not discussing a subjective bad faith standard); Barber , 146 F.3d at 711 (Ninth Circuit decision observing that Rule 11's advisory notes anticipated that a court would only impose sua sponte sanctions in situations akin to contempt, but not mentioning application of a subjective bad faith standard).
The Eleventh Circuit's requirement that sua sponte Rule 11 sanctions apply only in situations "akin to contempt" does not require proof of subjective bad faith in any event, because the Eleventh Circuit does not require proof of subjective bad faith in contempt proceedings. "[T]he focus of the court's inquiry in civil contempt proceedings is not on the subjective beliefs or intent of the alleged contemnors..., but whether in fact their conduct complied with the order at issue." Howard Johnson Co., Inc. v. Khimani , 892 F.2d 1512 , 1516 (11th Cir. 1990) (citing Jim Walter Res., Inc. v. Int'l Union, United Mine Workers of Am. , 609 F.2d 165 , 168 (5th Cir. 1980) ). "The absence of wilfulness does not relieve from civil contempt." McComb v. Jacksonville Paper Co. , 336 U.S. 187 , 191, 69 S.Ct. 497 , 93 L.Ed. 599 (1949). 31
*1214 Most significantly, a subjective standard finds no support in the language of Rule 11. Nothing in the text or commentary to the current version suggests that, even when a court acts on its own initiative, sanctions may be imposed only if a litigant filed a frivolous claim knowingly or purposefully. On the contrary, Rule 11 was amended in 1983 for the precise purpose of replacing a subjective standard with an objective one. Fed. R. Civ. P. 11, Adv. Cmt. Note, 1983 amend.; Hashemi v. Campaigner Pubs., Inc. , 784 F.2d 1581 , 1583 (11th Cir. 1986).
Accordingly, proof of subjective bad faith is not required to impose court-initiated sanctions under Rule 11. Rather, for sua sponte Rule 11 sanctions, the standard that should apply is the same one that applies under 28 U.S.C. § 1927 and the Court's inherent authority when a party makes a frivolous argument 32 -objective bad faith. Using objective bad faith as the threshold to support sua sponte Rule 11 sanctions ensures both that only egregious misconduct will be penalized while preserving Rule 11's incorporation of an objective reasonableness standard.
Objective bad faith arises where an attorney " knowingly or recklessly pursue[s] a frivolous claim or needlessly obstruct[s] the litigation of a non-frivolous claim." Amlong , 500 F.3d at 1242 (first and third emphases in original; second emphasis added). A party could demonstrate bad faith, for example, "by delaying or disrupting the litigation or hampering enforcement of a court order." Barnes , 158 F.3d at 1214 . "If particularly egregious, the pursuit of a claim without reasonable inquiry into the underlying facts can be the basis for a finding of bad faith" as well. Id. Recklessness is enough to support a finding of objective bad faith, even if the attorney does not act knowingly and malevolently. See Amlong , 500 F.3d at 1239 -41 . "[R]eckless conduct simply means conduct that grossly deviates from reasonable conduct." Id. at 1240 (citing Schwartz v. Millon Air, Inc. , 341 F.3d 1220 , 1227 (11th Cir. 2003) ); W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 34 (5th ed. 1984); Black's Law Dictionary , 1298-99 (8th ed. 2004).
C. Application of Rule 11 to Dead Plaintiffs' Personal Injury Actions
1. Facts
Counsel concede that the facts concerning the filing, maintenance, and eventual dismissal of 588 actions involving Pre-Deceased Plaintiffs (" 588 Actions ") are not in dispute. (Objections at 76-77). As discussed more fully in Part I and In re Engle Cases , 33 the Court learned in 2012 and 2013 that Counsel had filed personal injury complaints in the 588 Actions on *1215 behalf of people who were already dead as of the filing date. In 554 of the 588 Actions, or about 95%, the plaintiff had been dead for a year or longer before Counsel filed the complaints. See In re Engle Cases , 767 F.3d at 1096 n.16 ; (Docs. 933-1, 937-1). The Court did not discover this astonishing fact until the actions had been pending for four years, and the Court ordered Wilner to mail the Court Questionnaires to over 2,600 plaintiffs. Not once during those four years did Counsel do anything to advise the Court or opposing counsel about the fatally defective complaints. To the contrary, Counsel repeatedly resisted proposals that someone inquire into the status of the plaintiffs, and insisted that they were in contact with their clients and that they would be willing to certify that the complaints satisfied Rule 11.
2. The 588 Actions Were Objectively Frivolous
The complaints filed in the 588 Actions were objectively frivolous. As the Eleventh Circuit observed, "any lawyer worth his salt knows [that] a dead person cannot maintain a personal injury claim." In re Engle Cases , 767 F.3d at 1086 -87 . The complaints listing the 588 Pre-Deceased Plaintiffs alleged only a personal injury action-using the present or future tense in referring to the "Smoking Plaintiffs," and asserting that they "have and will suffer" as a result of their disease. ( E.g. , Edwin Moody et al. v. R.J. Reynolds Tobacco Co. , Case No. 3:08-cv-155-J-32HTS, Doc. 2, Complaint at ¶ 1.10). Nowhere did the complaints suggest that the smoker had died, and nowhere did they assert an alternative wrongful death or survival action. To the contrary, the concluding allegation in each complaint stated that each plaintiff's injuries "are permanent and continuing and as such will be suffered into the future." ( E.g. , id. at ¶ 11.1). These allegations were demonstrably false.
The complaints in the 588 Actions were also frivolous because Counsel lacked authorization to file or maintain them. "Perhaps the most basic factual contentions implicit in a complaint are that the plaintiff consents to the filing of suit and prays for the relief requested." In re Deep Vein Thrombosis , No. MDL-04-1606 VRW, 2008 WL 2568269 , at *1 (N.D. Cal. Jun. 24, 2008). The dead plaintiffs obviously could not have authorized Counsel to bring lawsuits on their behalf. Nor did Counsel have authorization from the Pre-Deceased Plaintiffs' estates or their survivors because Counsel pled the complaints as personal injury actions on behalf of the Pre-Deceased Plaintiffs themselves. Therefore, "the most basic factual contention implicit" in the 588 personal injury complaints, i.e., that the plaintiff authorized and prayed for the relief requested, was untrue.
3. Counsel "Later Advocated" the 588 Complaints in this Court
Counsel originally filed the 588 Actions in state court (where Rule 11 does not apply) in January 2008, and the Defendants removed the cases to this Court a month later. The question is therefore whether Counsel "later advocated" the frivolous complaints once they were pending here.
Recall that in Turner , 91 F.3d at 1421 , the Eleventh Circuit equated filing a "notice of appearance" with "later advocating" a complaint. Here, Counsel's conduct in federal court easily amounted to "later advocating" the 588 personal injury complaints. On several occasions, Counsel reaffirmed to the Court, orally and in writing, implicitly and explicitly, that the pending complaints had factual merit.
It began shortly after the cases were removed to this Court when, in March 2008, Counsel filed a case management report "on behalf of approximately 4000 *1216 claimants," asserting that "[a]ll plaintiffs come with[in] the Engle class definition specified by the Florida Supreme Court and thus share the Engle I verdict." ( Nestor Amoros, et al. v. R.J. Reynolds Tobacco Co., et al. , Case No. 3:07-cv-760-J-25HTS, Doc. 35-2 at 1, 17). Counsel further represented that all of the cases were viable when he filed a case management brief "on behalf of approximately 3800 claimants" in November 2010, in which Wilner ridiculed the Defendants' proposal to process 3,800 cases individually as a "millennium plan," and recommended trying the cases in groups of 100 to 500. (Doc. 25 at 1, 10-13). Counsel's advocacy of the frivolous complaints then continued after the December 2010 Order, in which the Court directed Counsel to "carefully and individually review each of the roughly 3800 remaining cases and to determine which of those cases is presently due to be dismissed." (Doc. 42 at 7). The Court reminded Counsel that they had a "continuing obligation throughout this litigation to inform [opposing counsel] and the Court when any of the remaining cases is due to be dismissed for any reason." ( Id. at 8). The Defendants recommended that Counsel contact the plaintiffs to gather basic information about their status and their claims, with the goal of identifying meritless cases. (Doc. 48 at 1-4). Wilner balked at this suggestion, In re Engle Cases , 767 F.3d at 1092 (citing Doc. 61 at 3), and contended that any information obtained from individual interviews "would not be worth much to anyone" (Doc. 61 at 3). Counsel wrote that they had individual files for each Plaintiff, that they would "make a good faith effort" to screen out non-viable cases, and that they only expected "to identify something like ten percent of the filed cases as appropriate for dismissal." ( Id. ). When time came to respond to the Court's December 2010 Order, Counsel failed to identify any of the 588 Actions, thereby implying that the actions were still viable.
Counsel pushed back even more forcefully when the Temporary Special Master made his questionnaire recommendation. ( See Doc. 158 at 14-15). Counsel asserted that contacting the plaintiffs was unnecessary because they had "ongoing and routine communications" with them. Counsel insisted that interviewing the plaintiffs would "not result in 'a substantial reduction in the number of cases,' " because significant "winnowing ha[d] already occurred," and there was "no longer any sizeable group of cases ripe for dismissal." Counsel assured the Court that "[t]here is no need for the tremendous expense of energy and resources for a third party to poll the remaining plaintiffs because counsel already possess the vast majority of this data, and are working diligently to fill in all gaps." Further, Counsel represented that they were "engaged in a constant and ongoing process of updating information and will continue to take appropriate steps if additional clients become unable or unwilling to pursue their claims." ( Id. at 17). 34 The import of these assertions was that the remaining Engle -progeny cases-or at least the vast majority of them-had a living, willing plaintiff with a viable claim.
Wilner's advocacy for the 588 Actions did not end there. At the June 2011 Hearing, Wilner stood before the Court and represented that all the plaintiffs (less 332, whose cases were dismissed for different reasons) "were alive, present, willing, and all that," that all the remaining cases were "ready and able" to proceed, and that he would be willing to certify that all of the 2,900 remaining complaints complied with *1217 Rule 11. Under Rule 11, statements like these "during a pretrial conference insist[ing] on a claim or defense should be viewed as 'presenting to the court' that contention and would be subject to the obligations of subdivision (b) measured as of that time." Fed. R. Civ. P. 11, Adv. Cmt. Note, 1993 amend., subdivisions (b) and (c). Wilner's remarks were an affirmation that all of the remaining actions, including the 588 Actions, had legal and factual merit. As the Court found out following the mandatory Court Questionnaire process, Wilner's representations grossly overstated the number of viable complaints. 35
4. Counsel Advocated Personal Injury Claims in Objective Bad Faith
Thus the issue comes down to whether Counsel advocated the 588 Actions in objective bad faith. At the very least, Counsel were reckless in filing personal injury complaints without any recent contact with the plaintiffs or any investigation into whether the plaintiffs were even alive, and then in urging the Court that these cases had merit.
As noted in Part I, in the 1990's Wilner took down the names of numerous Potential Plaintiffs, but he lost contact with thousands of them in the decade that followed. After Engle III , Wilner tried to get in touch with roughly 6,000 Potential Plaintiffs, but as the Engle filing deadline approached, Wilner decided he would file complaints on behalf of those he could not reach. ( See Doc. 589-1 at 2). Never mind that Wilner's last contact with hundreds of the Potential Plaintiffs was a decade old. ( See Doc. 822-1 at 2-9). Never mind that the only thing some of these people did was contact Wilner's firm a decade earlier with a general interest in suing a tobacco company. And never mind that Wilner had no idea whether the Potential Plaintiffs were still interested in pursuing litigation or were even still alive.
In his " Verified Response " to the Defendants' now-withdrawn Rule 11 motion, Wilner wrote that he was "duty bound to presume [he] represented each client who made contact" with him many years earlier. (Doc. 822 at 18). This leads the Court to the same "inevitable conclusion" as the Eleventh Circuit: "that [Wilner] filed lawsuits in 2008 for many individuals whose last, and perhaps only, contact with his firm was nearly a decade earlier, who never authorized him to file suit, and who, in all likelihood, had no earthly idea that Wilner considered himself to be their lawyer." In re Engle Cases , 767 F.3d at 1112 .
*1218 The Special Master's investigation bears out the conclusion that Wilner filed the vast majority of the lawsuits without conducting any pre-suit investigation. Wilner's records from the 1995-2007 timeframe contain little indication that he communicated with his so-called "clients," investigated their claims, or obtained authorization to file lawsuits on their behalf. To the extent Wilner attempted any investigation, he generally did so well after he filed the complaints, as reflected by the July 2009 Letters he mailed to 2,756 Letter Recipients in 2009 and 2010. The July 2009 Letters announced that Wilner had filed a complaint in a plaintiff's name and asked the Letter Recipient to execute and return the Counsel Questionnaire, records release form, and authorization to represent-18 months after filing the complaints. The July 2009 Letter shows that in over 2,700 cases, Wilner did not obtain such basic information before filing the lawsuits, and once he did obtain such information (or found he could not do so), Wilner did not amend or withdraw any of the Federal Engle Complaints.
Wilner virtually admitted at the December 2016 Hearing that his approach to filing the complaints was to file-first-and-ask-questions-later by stating that his firm lacked "the ability to contact 7,000 people in a year," so instead they opted to file the complaints and then determine whether the cases were viable. (See Doc. 2174 at 98-100). Even this they failed to do, seeing how many frivolous cases survived for over four years.
Wilner made a conscious decision to file hundreds of complaints without knowing the current status of the plaintiff, without knowing whether the plaintiff wanted to pursue an individual lawsuit, and without knowing whether the plaintiff was even alive. 36 Then, despite knowing that the large volume of claims imposed significant strains on judicial resources, Wilner used the volume of claims (which he achieved through his own unethical behavior) as leverage to advocate his style of case management. ( See Doc. 25 at 10-13). Although Wilner actually might not have known that 588 of the personal injury plaintiffs were dead, he must have known that, without having had contact with them in years, he had no basis to file claims on their behalf. Despite this, Wilner resisted suggestions that there be an inquiry into the status of the plaintiffs. Instead, he wrongly insisted that such inquiries would be a waste of time because all the non-viable cases had been eliminated.
Wilner told the Court in June 2011 that the 588 Predeceased Plaintiffs were alive, willing, and able to proceed, even though he did not know whether that was true. And Wilner told the Court he would be willing to file Rule 11 certifications in all of the remaining 2,900 cases, despite knowing he had filed hundreds of personal injury actions without any idea whether the plaintiff was alive or dead, or even whether they wanted to pursue a claim. Such conduct is not merely negligent; it is an egregious display of deliberate indifference to the truth or falsity of his assertions: "[i]f particularly egregious, the pursuit of a claim without reasonable inquiry into the underlying facts can be the basis for a finding of bad faith." Barnes , 158 F.3d at 1214 . That is exactly what happened here.
Wilner has claimed that by June 2008, he had located survivors for nearly 400 of the 588 Actions, and that the survivors eventually ratified the complaints "nunc pro tunc" (though it is not clear whether *1219 the survivors "ratified" the complaints immediately, or whether they did so at some later point). (Objections at 77; Doc. 589-1 at 2; Doc. 822 at 8). Even if true, such ratifications hardly help Wilner. If anything, it shows that Wilner actually knew in June 2008 that hundreds of personal injury complaints named a dead plaintiff. Yet he never told anyone. Instead-three years later-Wilner told the Court the opposite when he insisted that the plaintiffs were "alive, willing, [and] pres

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7245785. Public record. Not legal advice.