OpticsPlanet, Inc. v. Opticsale, Inc. et al

Filing 290

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 10/22/2012:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
OPTICSPLANET, INC.,

)
)
Plaintiff/
)
Counterdefendant, )
)
v.
)
)
OPTICSALE, INC., et al.,
)
)
Defendants/
)
Counterplaintiffs. )

No.

09 C 7934

MEMORANDUM ORDER
With regret for the considerable delay in issuance of this
memorandum order, this Court has now had the opportunity to rereview the hearing transcript and the post-hearing submissions by
the parties on the motion by OpticsPlanet, Inc. (“OpticsPlanet”)
for sanctions attributable to the most recent questionable
litigation conduct on the part of defense counsel and their
clients--this time AKYR Enterprises, Inc. (“AKYR”) and Ilya
Beyrak.

That in-depth reconsideration has confirmed that for the

reasons this Court has earlier articulated orally, the defense
effort to disqualify both Michael Gnesin (“Gnesin”) and
Enterprise Law Group, LLP (“Enterprise”) as OpticsPlanet’s
counsel calls for the shifting of attorneys’ fees as a sanction
pursuant to 28 U.S.C. §1927 (as to defense counsel) and Fed. R.
Civ. P. 11(b)(as to both defense counsel and their clients).1

1

That attempted disqualification was particularly
egregious. If successful, it would have leveraged the hiring of
Gnesin by Enterprise into the ouster of the entire law firm from

Because this Court has already announced its views on the
record, and because the excellent Memorandum in Support of
Plaintiff’s Motion for Sanctions filed by Enterprise has quoted
critical aspects of this Court’s statements during the
evidentiary hearing, in addition to spelling out persuasively the
reasons for granting the motion, there appears to be no need for
a rehearsal of the basis for imposing sanctions.

Instead this

brief memorandum order will be limited to identifying the scope
of the sanctions and the procedure for quantifying them.
First as to scope, OpticsPlanet has asked not only for an
award of fees and expenses attributable to this most recent
delinquency but also for the imposition of a fine.

There is a

good deal to be said for considering the latter in light of what
OpticsPlanet’s motion refers to as “misconduct and gamesmanship”
during the course of the litigation, categorized by its Motion at
2 in this way:
a.

Filing of Disqualification Motion;

b. Examining and seeking to impeach Michael
Gnesin on an issue known to be factually
incorrect;
c. Being found in contempt of court for failing
to post the required disclaimer on Akyr’s website;
d. Refusing to comply with court orders, such
as an order for payment of fees; and

the litigation, thus imposing a major hardship on OpticsPlanet in
having to retain new counsel who would have had to start over
again from scratch.
2

e. Filing a Petition for Writ of Mandamus after
failing to obey this Court’s order to post a
disclaimer that was specifically drafted by this
Court.
But this Court has opted to limit the sanctions to an amount
restorative to OpticsPlanet, eschewing what might be viewed as
punitive in the way of a fine.
As for procedure, this Court hopes that any increase in the
amount of sanctions attributable to “fees on fees” can be
minimized by the parties’ following of a practice less formal and
protracted than that outlined by this District Court’s LR 54.3.
Instead counsel are urged to confer promptly and informally, with
each side providing the other with information as to its own
attorneys’ time and charges (in addition to any out-of-pocket
expenses) relating to the disqualification effort.

To the extent

that process can result in minimizing the areas of dispute, so
much the better.

And whether or nor that turns out to be the

case, it should lessen the time required for submission of the
expected competing proposals as to the amount of sanctions to be
ordered.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

October 22, 2012

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