      Case: 15-10723         Document: 00513488802     Page: 1    Date Filed: 05/02/2016




              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                      No. 15-10723                               FILED
                                                                              May 2, 2016

TIMOTHY WHITE                                                               Lyle W. Cayce
                                                                                 Clerk
                 Plaintiff
 v.

REGIONAL ADJUSTMENT BUREAU, INCORPORATED, doing business as
RAB, Inc.

                 Defendant – Appellee

 v.

MARSHALL MEYERS,

                 Respondent – Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 3:11-CV-1817


Before REAVLEY, ELROD, and HAYNES, Circuit Judges. *
PER CURIAM:**
         Our prior opinion is withdrawn, and the following is substituted in its
place.



         * Judge Elrod concurs in the judgment only.
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
         **

be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 15-10723    Document: 00513488802     Page: 2   Date Filed: 05/02/2016



                                 No. 15-10723
      The underlying dispute in this case concerned claims under consumer
protection statutes by Dr. Timothy White, represented by Noah Radbil of the
law firm Weisberg & Meyers, against Regional Adjustment Bureau, Inc.
(“RAB”). The merits of that case were not appealed, but the case did spawn
attorney sanctions that were appealed and ultimately split into two appellate
cases. We recently resolved the appeal concerning Radbil by modifying the
sanctions to a one-year suspension from practice in the Northern District of
Texas (the “Northern District”) and affirming liability for attorneys’ fees.
White v. Reg’l Adjustment Bureau, Inc. (Radbil), No. 15-10655, 2015 WL
7740524, at *1–2 (5th Cir. Dec. 1, 2015).
      This appeal addresses sanctions issued against the managing partner of
Radbil’s firm, Marshall Meyers. Following five hearings and full briefing, the
district court entered an eighty-three-page order that, in addition to
sanctioning Radbil by awarding reasonable and necessary attorneys’ fees for
time spent by RAB’s counsel addressing Radbil’s conduct and suspending
Radbil from practice before the Northern District for three years, also assessed
the same punishment against Meyers. Meyers did not personally appear at
the underlying trial that gave rise to Radbil, but did personally appear at the
sanctions hearings thereafter.     As to Meyers, we VACATE the term of
suspension, and MODIFY the award of attorneys’ fees.
      The lengthy briefing and oral argument, as well as the previous
discussion in Radbil, obviate the need for a protracted discussion here. We are
certainly hopeful that the kind of interchange we witnessed here will not be
repeated such that this opinion is written primarily for the parties. We adopt
the reasoning of Radbil with respect to the standard of review and the issue of
defense counsel’s involvement in advocating for sanctions beyond attorneys’
fees. We write only to summarize our disposition of Meyers’s other challenges
as follows:
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                                       No. 15-10723
       1. Meyers’s Role. At first blush, Meyers’s implicit argument that he is
           being punished for “guilt by association” seems appealing.                      But
           digging deeper, we conclude that Meyers’s role in the sanctions
           hearings was not that of the disinterested attorney hired only as an
           advocate for an unrelated client.            RAB sought sanctions against
           Meyers’s firm and Radbil. When Meyers appeared at the sanctions
           hearing, he stated that he was there “representing [Weisberg &
           Meyers], and to the extent the [c]ourt allows, Mr. Radbil as well.”
           Thus, any misrepresentations he made to the court cannot be excused
           as mere unwitting misstatements as part of advocacy for a client.
       2. Suspension. We previously modified the sanction against Radbil to
           one year (from three years).            Meyers contends that he was not
           adequately notified of the potential for disbarment-like sanctions in
           this case. We need not decide this issue because we conclude that the
           conduct Meyers committed, while improper, is not as egregious as
           that of Radbil such that the sanction of suspension cannot stand. We
           VACATE that sanction.
       3. Bad Faith Finding.           The district court determined that Meyers
           himself made and perpetuated some of the same misrepresentations
           put forth by Radbil. At least to the extent of the sanctions affirmed
           herein, we conclude that the finding of bad faith was adequately
           explained, supported by clear and convincing evidence, 1 and not
           clearly erroneous. See Crowe v. Smith, 261 F.3d 558, 563 (5th Cir.
           2001) (“A court [imposing inherent power sanctions] abuses its



       1 We need not decide whether the clear and convincing standard applies to sanctions
in the form only of attorneys’ fees, as we conclude that this sanction is supported by clear and
convincing evidence of bad faith. Cf. Crowe, 261 F.3d at 563 (“In attorney suspension and
disbarment cases, the finding of bad faith must be supported by clear and convincing proof.”).
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                                      No. 15-10723
           discretion when its finding of bad faith is based on an erroneous view
           of the law or a clearly erroneous assessment of the evidence.”).
       4. Attorneys’ Fees. We conclude that the evidence before the district
           court does not support that Meyers did anything to cause the original
           problems during the underlying trial that gave rise to the subsequent
           sanctions hearings.       However, the district court determined that
           Meyers’s conduct after the first sanctions hearing included
           misrepresentations to the court that fomented the dispute and
           prolonged the proceedings, and that determination was not clearly
           erroneous. Accordingly, we conclude that the district court erred in
           assessing joint liability for the trial attorneys’ fees but did not err in
           assessing joint liability for the attorneys’ fees from the second
           sanctions hearing to conclusion, to the extent that those fees were
           attributable to Meyers’s misconduct. The district court has not yet
           assessed an amount of those fees, and we leave to the district court in
           the first instance the question of how much of the fees related to the
           sanctions hearings, if any, should be properly assessed against
           Meyers. We note that “[t]he district court must demonstrate some
           connection between the amount of monetary sanctions it imposes and
           the sanctionable conduct by the violating party” and should not
           attribute to Meyers self-imposed costs unreasonably incurred by RAB
           in investigating and arguing extraneous matters.                   Topalian v.
           Ehrman, 3 F.3d 931, 937 (5th Cir. 1993). 2
       Suspension VACATED; liability for attorneys’ fees MODIFIED.




       2We note also that RAB has not sought an award of attorneys’ fees against Meyers on
statutory grounds; the sole basis for an award of fees against Meyers is the district court’s
inherent authority.
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