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Beck v. Atlantic Coast PLC2/11/2005
004.
Relatedly, I have decided not to hold Beck's Delaware counsel, William Sullivan, responsible for paying the award. Although I believe that Sullivan's performance as local counsel was far less than optimal, I cannot conclude from the record that he knew that Beck had not actually purchased Window Power Tools software or that he was aware of Beck's Optimizer Page or that it had not been produced. I trust that Sullivan will be more scrupulous in reviewing with lead counsel the factual background of pleadings and discovery responses in the future to ensure that they are accurate and complete.
Fee shifting towards Atlantic Coast is not, however, a sufficient remedy. The final judgment shall also dismiss this case against Atlantic Coast with prejudice as to Beck. Furthermore, Scott, Roth, and the law firm of Lukins & Annis shall be enjoined from filing, on behalf of any client, litigation against Atlantic Coast related to the Window Power Tools product, DMI, or Zafar. In this regard, it is troubling to note that after the supplemental submissions in this case, Scott left the firm of Lukins & Annis. He did not so inform the court, which once again learned of something it should have heard from Scott or his Delaware colleague, Sullivan, from counsel for Atlantic Coast instead. Equally troubling is the fact that the firm of Lukins & Annis still had a reference to this case soliciting class members to come forward on its website as recently as January 18, 2005. Given the behavior of the lawyers at the Lukins & Annis firm, and my decision to err on the side of modest fee-shifting, it is reasonable that Atlantic Coast not have to suffer further suits brought at their instance. Individual plaintiffs are, of course, free to sue, just through other lawyers, of which there are many in this nation.
Finally, given the needless burden that the conduct of Beck, Scott, Roth, and the firm of Lukins & Annis have imposed on the court, it is appropriate that they should pay an award to the court of $2500. This award represents the cost of one day of the court's mediation services. In reality, the conduct here resulted in several days of judicial and staff time that could have been devoted to handling other matters before the court. Because this payment is not enough to protect the interests of justice, in the future, any application by Scott or Roth, or by any lawyer at the firm of Lukins & Annis, for admission pro hac vice shall be accompanied by a copy of this decision.
III. Conclusion
For the foregoing reasons, a final judgment shall be entered: 1) dismissing this action with prejudice as to plaintiff Beck; 2) enjoining Darrell W. Scott and Eric J. Roth, and the law firm of Lukins & Annis from participating as counsel or plaintiff in any suit against defendant Atlantic Coast relating to the Window Power Tools product, DMI, or Zafar; 3) requiring plaintiff Beck, Scott, Roth, and Lukins & Annis to be jointly and severally liable to pay Atlantic Coast and the Register In Chancery the sums of $25,000 and $2500 respectively; and 4) requiring Scott, Roth, and any attorney Lukins & Annis to submit a copy of this decision with any motion for pro hac vice filed by any of them. Counsel for Atlantic Coast shall prepare an implementing final judgment and submit it within ten days, upon notice as to form to Beck's counsel. Beck shall bear each side's costs.
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