The US Court of Appeals for the First Circuit
"reluctantly" declined to impose sanctions in a
"very close case" against defense counsel in a six-year
litigation involving indemnification for patent infringement
claims. AngioDynamics, Inc. v. Biolitec AG, Case No.
17-1239 (1st Cir., Jan. 23, 2018) (per curiam).
AngioDynamics moved for sanctions against defendants and defense
counsel after the First Circuit disposed of the defendants'
fifth appeal in the ongoing litigation. Under Rule 38 of the
Federal Rules of Civil Procedure, after determination that an
appeal is frivolous, an appellee may be awarded "just damages
and single or double costs" upon motion from appellee. A
frivolous appeal is one "wholly without merit." In
addition, it is appropriate to sanction a lawyer personally for
excess costs where an appeal results in "vexatious
advocacy" needlessly multiplying the proceedings.
