Affirming Firm Sanctions: The Authority to Sanction Law Firms Under 28 U.S.C. § 1927

Fordham Law Review, Aug 2018

A circuit split exists as to whether 28 U.S.C. § 1927 allows for an award of sanctions against nonattorneys or nonrepresentatives. Five federal courts of appeals—the Second, Third, Eighth, Eleventh, and the District of Columbia Circuits—hold that, to further the purpose of 28 U.S.C. § 1927, courts have the authority to sanction a law firm for the conduct of its attorneys, in addition to the authority to sanction individual officers of the court. The Sixth, Seventh, and Ninth Circuits disagree, concluding that the statute allows federal courts to sanction only individuals—“attorney[s] or other person[s] admitted to conduct cases in any court of the United States.” In In re MJS Las Croabas Properties, Inc., the U.S. Bankruptcy Appellate Panel of the First Circuit recently recognized this split of authority. The appellate panel discussed the text of § 1927 as well as policy considerations supporting its applicability to law firms. Although the panel noted that the statute does not expressly provide for vicarious liability, it nonetheless concluded that § 1927 implicitly allows for the imposition of sanctions against a law firm. This Note analyzes federal courts’ interpretations of § 1927 and argues that law firms ought to be within reach of the statute.

A PDF file should load here. If you do not see its contents the file may be temporarily unavailable at the journal website or you do not have a PDF plug-in installed and enabled in your browser.

Alternatively, you can download the file locally and open with any standalone PDF reader:

https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=5430&context=flr

Affirming Firm Sanctions: The Authority to Sanction Law Firms Under 28 U.S.C. § 1927

Afir ming Firm Sanctions: The Author ity to Sanction Law Firms Under 28 U.S.C. § 1927 Vincent J. Margiotta 0 1 0 Thi s Note is brought to you for free and open access by FLASH: The F ordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The F ordham Law Archive of Scholarship and History. For more information , please contact 1 Fordham University School of Law Recommended Citation Vincent J. Margiotta, Affirming Firm Sanctions: Th e Authority to Sanction Law Firms Under 28 U.S.C. § 1927, 86 Fordham L. Rev. 265 (2017). Available at: http://ir.lawnet.fordham.edu/flr/vol86/iss1/17 - Article 17 A circuit split exists as to whether 28 U.S.C. § 1927 allows for an award of sanctions against nonattorneys or nonrepresentatives. Five federal courts of appeals—the Second, Third, Eighth, Eleventh, and the District of Columbia Circuits—hold that, to further the purpose of 28 U.S.C. § 1927, courts have the authority to sanction a law firm for the conduct of its attorneys, in addition to the authority to sanction individual officers of the court. The Sixth, Seventh, and Ninth Circuits disagree, concluding that the statute allows federal courts to sanction only individuals—“attorney[s] or other person[s] admitted to conduct cases in any court of the United States.” In In re MJS Las Croabas Properties, Inc., the U.S. Bankruptcy Appellate Panel of the First Circuit recently recognized this split of authority. The appellate p anel discussed the text of § 1927 as well as policy considerations supporting its applicability to law firms. Although the panel noted that the statute does not expressly provide for vicarious liability, it nonetheless concluded th at § 1927 implicitly allows for the imposition of sanctions against a law firm. This Note analyzes federal courts’ interpretations of § 1927 and argues that law firms ought to be within reach of the statute. INTRODUCTION.......................................................................................... 266  I. A HISTORY AND OVERVIEW OF THE IMPOSITION OF SANCTIONS AGAINST THE LAW FIRM................................................................ 268  * J.D. Candidate, 2018, Fordham University School of Law; B.A., 2011, Fordham University College at Rose Hill. I would like to thank Professors Marc M. Arkin and Michael M. Martin for extending their experience and thoughtful guidance throughout this process. I would also like to thank my family and friends for their unwavering support and the editors and staff of the Fordham Law Review for their assistance. INTRODUCTION Imagine that a plaintiff brings an action against several defendants: an apartment complex and its manager, the general property manager of the complex, and the company that owns the building. The plaintiff alleges that she was harassed by the apartment manager and ultimately evicted when she rejected the apartment manager’s advances. In the complaint, the plaintiff’s attorney certifies that she conducted interviews with many former tenants who were victims of similar treatment by the defendants. The plaintiff’s attorney fails to answer the defendants’ interrogatories and document requests, fails to comply with deposition notices, and withholds disclosure of the names and addresses of witnesses the plaintiff expects to call at trial. The defendants then move for summary judgment, and the plaintiff’s attorney does not respond to the motion. 2017] More than twelve months pass and the plaintiff’s counsel finally commits to several of the defendants’ requested witness depositions. None of the witnesses deposed—all of whom were mentioned in the plaintiff’s complaint and whose accounts were certified by the plaintiff’s attorney—corroborate the plaintiff’s allegations. The plaintiff then voluntarily moves to dismiss the action. At this point, the defendants have accrued over $100,000 in attorneys’ fees and litigation costs due to the plaintiff’s counsel’s delay, unreasonable litigation conduct, and bad faith. The district court grants the motion and invites the defendants to move for sanctions. The defendants do so pursuant to 28 U.S.C. § 1927 ,1 which allows a court to award attorneys’ fees and costs for opposing counsel’s unreasonable and vexatious multiplication of proceedings. The plaintiff’s counsel opposes the motion and files its own, alleging new arguments and submitting new affidavits to support the plaintiff’s previously dismissed claims. This motion is opposed by the defendants and four months later the court denies the plaintiff’s motion. Soon after, the district court grants the defendants’ motion for attorneys’ fees and costs and imposes $107,845.77 in sanctions against the plaintiff’s attorney and her law firm, holding them jointly and severally liable for the award. The plaintiff’s attorney’s law firm appeals the decision of the district court. The circuit court upholds the sanctions imposed against the attorney but reverses the lower court’s imposition of sanctions against the law firm, notwithstanding the following findings: (1) there is a close connection between the plaintiff’s attorney’s actions and those of her firm, (2) every paper the plaintiff’s attorney filed also bears the name of her law firm, (3) the law firm was on notice that its attorney’s litigation conduct was questionable, and (4) the plaintiff’s attorney’s law firm had been previously directed in a separate action by another judge in the same district court to monitor the attorney’s litigation conduct because of her unreasonable behavior in cases unrelated to this suit. Now assume that the plaintiff’s attorney cannot individually pay the $107,845.77 sanctions award. The defendants cannot recoup the monies expended to defend against the plaintiff’s meritless claims and the plaintiff’s attorney’s bad faith litigation conduct. Even though the plaintiff’s attorney’s law firm might have endorsed—or even encouraged—its attorney’s litigation practices, the defendants cannot collect the award from the firm. These facts (other than the assumption of the judgment-proof counsel) and holdings are not fiction.2 Some circuit courts hold that sanctions pursuant to 28 U.S.C. § 1927 may be imposed against law firms.3 Other circuits do not allow such impositions.4 If the above case was tried in a jurisdiction that allows for the imposition of sanctions against law firms under § 1927 , then 1. 28 U.S.C. § 1927 (2012). 2. See Claiborne v. Wisdom, 414 F.3d 715, 718–21 (7th Cir. 2005). 3. See generally infra Part II.A. 4. See generally infra Part II.B. the defendants would be able to recover costs and fees incurred fighting the meritless and prolonged litigation. Thus, whether a party has adequate redress to collect costs and fees incurred as a result of unreasonable and vexatious litigation conduct turns solely on federal statutory interpretation within a given jurisdiction. This Note examines the federal circuit courts’ inconsistent interpret ations and applications of § 1927 regarding the authority to sanction law firms. Part I provides background information necessary to understand the circuit split at issue in this Note. In particular, Part I sets forth the historical imposition of sanctions on law firms under relevant legislative and judicial guidelines. Part II details how different circuits approach the question of § 1927 ’s applicability. Part III then analyzes each approach’s strengths and shortcomings. It proposes a novel solution that would reconcile the split of authority and command interpretive uniformity. This Note argues that § 1927 ’s authority reaches law firms and entities that employ individuals as attorneys.5 Furthermore, this Note urges Congress to intervene and remedy the federal courts’ differing interpret ations. Section 1927 should be amended to meet its initial purpose—deterring frivolous litigation conduct.6 This Note concludes with an appendix containing proposed amendments to § 1927 . As an alternative to statutory amendment, this Note invites the federal judiciary to utilize its inherent authority to sanction7 in order to impose sanctions on law firms for unreasonable and vexatious litigation conduct of any attorneys under their employ.8 Such implementation wo uld remedy the mischief § 1927 was meant to address since its inception.9 I. A HISTORY AND OVERVIEW OF THE IMPOSITION OF SANCTIONS AGAINST THE LAW FIRM The ability to impose sanctions on litigants and their representatives serves an important judicial function.10 This authority maintains the integrity of the judicial system, regulates the behavior of parties and their representatives, and encourages good faith litigation.11 This authority also helps courts police bad faith conduct and preserve an orderly system of justice.12 2017] Federal courts are granted power to impose sanctions pursuant to several authorities, including 28 U.S.C. § 1927 .13 This statute provides courts with authority to sanction “[a]ny attorney or other person admitted to conduct cases in any court”14 for certain behavior. The text and applicability of this statute have been construed and examined by multiple circuit courts to determine, among other things,15 whether the language of the statutory scheme allows for sanctions against law firms.16 The statute does not explicitly mention an authority to sanction firms, and courts have interpreted this issue in different ways.17 Some circuits have answered this inquiry in the affirmative,18 while others have disagreed, declining to impose sanctions against firms in light of § 1927 ’s text.19 Whether law firms—in addition to individual attorneys or representatives—m ay be sanctioned under § 1927 is a significant legal concern. The modern legal landscape is characterized by exponential law firm growth,20 diminished opportunities for attorney upward mobility,21 and heightened market and competition pressures.22 In fact, both the number of large law firms and the number of attorneys employed by such firms have grown exponentially since the mid-1980s.23 These factors exemplify a market trend in which a growing number of small and midsized firms have realized that diverse geographic platforms, sufficient resources for investment, and adequate strength across various practice areas may be necessary to achieve objectives or merely to survive.24 In addition, such factors might have deleterious effects on the way attorneys “zealously” assert their clients’ positions.25 An attorney faced with the pressures discussed above26 might be tempted to pursue a frivolous claim or handle a client’s interests unprofessionally and unreasonably, thus delaying proceedings or multiplying them as a function of some dilatory litigation strategy.27 The following sections discuss the origins and development of the imposition of sanctions ag ainst law firms pursuant to § 1927 as well as two other well-known sanctioning authorities: Rule 11 of the Federal Rules of Civil Procedure and the federal courts’ inherent authority to sanction. A. 28 U.S.C. § 1927’s Legislative History, Scope, Nature, and Purpose In 1813, Congress enacted the predecessor st atute to § 1927 .28 The principal directive of the congressional committee responsible for the 2017] statute’s construction was “to inquire what [l]egislative provision is necessary to prevent multiplicity of suits or processes, where a single suit or process might suffice.”29 The result w as § 1927 in its earliest form.30 Section 1927’s predecessor statute was reenacted in 1853 when Congress introduced comprehensive guidelines for costs and litigation fees in federal actions.31 For the 127 years that followed, the statute’s substance remained unchanged.32 In 1980, § 1927 was amended as part of a congressional objective to reduce costs and expedite judicial processes involving antitrust litigation.33 The purpose of the amendment was to “broaden the range of increased expenses which an attorney . . . may be required by the judge to satisfy personally.”34 This congressional activity was a direct response to the U.S. Supreme Court’s decision in Roadway Express, Inc. v. Piper,35 in which the Court held th at § 1927 authorized only statutory “costs”36 and not awards of attorneys’ fees or expenses.37 Thus, Congress amended the statute to correct the Court’s holding in Roadway. S ince 1980 , § 1927 has read as follows: Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.38 The statute does not expressly state that law firms or other entities may be subject to sanctions for unreasonable or vexatious conduct.39 Five federal courts of appeals, including the Second Circuit, h ave upheld the imposition of § 1927 sanctions against law firms.40 Three circuits have declined to reach the same conclusion, holding that the statute’s construction and legislative intent bar courts from imposing sanctions on law firms.41 B. Rule 11 and Authority by Amendment to Sanction the Firm Rule 11 of the Federal Rules of Civil Procedure was first adopted in 193842 and has been touted as the “most prominent provision authorizing sanctions for litigation abuse.”43 The rule bestows an affirmative duty on lawyers for the duration of court proceedings, requiring them to make reasonable inquiries into the facts of their cases to ensure valid bases of their clients’ claims.44 Notwithstanding its renown, the scope of Rule 11 is, in fact, fairly limited.45 The only behavior that may be sanctioned under the Rule is an attorney or representative’s signing or “later advocating” a pleading, motion, or other paper that has no firm ground in fact and law.46 Thus, the rule’s focus is on document filings—“pleading[s], written motion[s], and other paper[s]”47—that are unreasonable, harassing, delaying, frivolous, fraudulent, and the like.48 Despite this limited scope, Rule 11 expressly permits imposition of sanctions against law firms.49 But this has not always been the case.50 In 1989, the Supreme Court granted certiorari in Pavelic & LeFlore v. Marvel Entertainment Group51 to address the applicability of Rule 11 sanctions against a law firm and, in addition, the vicarious liability of law firms when sanctions are imposed against a firm’s attorney.52 The Court noted that there was a split of authority among the circuit courts on these two issues.53 In an eight-to-one decision, the Court ultimately concluded that Rule 11 sanctions may not be imposed on law firms.54 The majority of the Court relied heavily 2017] on the plain meaning of “person who signed”55 within the context of Rule 11 to conclude that the Rule applies only to an individual attorney—not an entity or law firm—even where the signature on the document at issue is unambiguously made on behalf of a firm.56 In 1993, Congress approved amendments to Rule 11,57 effectively reversing the Court’s decision in Pavelic by providing federal courts the express authority to sanction law firms pursuant to Rule 11(c).58 The amendments to Rule 11 further provide that, absent any exceptional circumstances, “a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.”59 Thus, not only does the current form of Rule 11 allow for sanctions against a law firm, but it demands, absent exceptional circumstances, vicarious liability for law firms for sanctions imposed against their attorneys or other employees.60 C. The Common Law Standard: Inherent Authority to Sanction Rule 11, like § 1927 and other judicial sanction authorities, allows courts to impose sanctions for particular, limited conduct.61 But Rule 11 and other rules62 and statutes63 do not place limits on the authority of the federal judiciary to impose sanctions for conduct that is outside the scope of such rules or statutes.64 To this end, there is judicial and scholarly agreement that federal courts exhibit an inherent authority65 to exercise certain powers,66 including the authority to sanction “abusive litigation practices.”67 This authority reaches individual litigants, counsel, and law firms that abuse the judicial process through bad faith conduct.68 The leading Supreme Court decision recognizing the authority of federal courts to use their inherent authority to impose sanctions is Chambers v. NASCO, Inc.69 In Chambers, the plaintiff and defendant entered into a purchase agreement for the defendant’s facilities and television broadcast licenses.70 Under the purchase agreement, both parties had an obligation to file documents with the FCC by a certain date to obtain the agency’s approval of the deal.71 Before the filing deadline, the defendant changed its mind and attempted to talk the plaintiff out of the agreed-upon purchase, but the plaintiff refused.72 The defendant then told the plaintiff it would not comply with the necessary federal regulations.73 After this exchange, the plaintiff informed the defendant that it planned to commence an action for specific performance under the contract.74 In an attempt to place its property outside the reach of the federal courts, the defendant quickly deeded the property to a trust and subsequently alleged such transfer was a proper sale to a third party, which precluded the plaintiff’s suit.75 The Western District of Louisiana concluded that the defendant had frivolously filed documents, delayed proceedings, and initiated fraud upon the court.76 The court described the defendant’s conduct as having “emasculated and frustrated the purposes of [the Federal Rules of Civil Procedure] and the powers of [the District] Court by . . . prevent[ing the defendant’s] access to the remedy of specific performance.”77 After acknowledging that the scopes of both Rule 11 and § 1927 would not reach 2017] the defendant’s conduct,78 the court relied on powers inherent in its judicial authority to sanction the conduct at issue.79 Although the Court acknowledges such judicial power, the type of feeshifting that the inherent authority to sanction endorses is generally contrary to the “American Rule,”80 which has deep origins in judicial history and legislative policy.81 Indeed, federal courts’ inherent powers, including the authority to sanction, “must be exercised with restraint and discretion” because such authority has been established outside the bounds of democratic controls and is, in fact, shielded from them.82 The Chambers Court reasoned that exceptions to the general standard may arise, therefore bestowing on federal courts an inherent authority to assess sanctions for vexatious, wanton, oppressive, or other bad faith conduct.83 Thus, the scope of federal courts’ inherent power to sanction has been deemed limited.84 Bec ause the language of § 1927 seems to limit the scope of sanctions for unreasonable and vexatious behavior to individuals only, the inherent power is often expressly disregarded or overlooked altogether where sanctions against a firm might be warranted.85 D. The Importance of Uniform Analysis and Treatment of 28 U.S.C. § 1927 One major question regarding whether law firms are, or should be, s anctionable under § 1927 is whether the effect of a resolution of the issue is de minimis;86 that is, whether an authority to sanction l aw firms pursuant to § 1927 is even necessary. After all, federal courts have an inherent authority87 to sanction persons88 involved in litigation, regardless of whether that person is a litigant, attorney, or law firm.89 The Court has stated that the judiciary’s inherent powers must be utilized sparingly90 and only when bad faith conduct predicates the imposition of sanctions.91 Thus, the inherent authority to sanction particular conduct that is not subject to rule or statute is quite narrow.92 In Chambers, the Court further illustrated the reach of the inherent sanctions power when the behavior at issue is contemplated by rule or statute.93 Under such circumstances, courts ordinarily should rely on the rules or statutes rather than the inherent authority;94 when the legislature has spoken, judges should adhere to Congress’s approved standards.95 Where “neither the statute nor the Rules are up to the task, [a] court may safely rely on its inherent power.”96 The above ex ample illustrates why § 1927 is an important statutory tool and why uniform tre atment is warranted. Because § 1927 sanctions must be predicated on unreasonable or vexatious conduct,97 any bad faith conduct that would provoke the statute’s application would presumably also warrant the imposition of sanctions under the courts’ inherent authority.98 To date, however, no court in any of the circuits that refuse to uphold or impose sanctions against law firms under § 1927 has utilized the inherent authority to sanction firms that were wholly, or even partially, responsible for bad faith conduct.99 Thus, courts in these circuits are hesitant to invoke the inherent authority to sanction law firms in lieu of express statutory authority.100 2017] The application of federal statutes within the federal judicial system should promote convenience and uniformity.101 It is rarely efficient for federal courts to maintain differing views of federal legislation that may lead to diverse results.102 When contrary outcomes under federal law are principally due to jurisdictional boundaries and geographical locations, such inefficiency becomes even more evident.103 Section 1927 should be analyzed and applied consistently to promote the primary goal of uniformity within our federal judicial structure.104 This has not occurred under current judici al interpretations of § 1927 .105 As this Note demonstrates, a remedy must be implemented for these reasons. II. THE CIRCUIT SPLIT: AUTHORITY TO SANCTION LAW FIRMS PURSUANT TO § 1927 The federal circuit courts are split as to whether sanctions against l aw firms are permitted under § 1927 .106 Part II.A examines the policy justifications and cases that support sanctioning firms pursuant to this statutory scheme. Part II.B then analyzes the contradictory views. A. The Majority View: Law Firms Are Sanctionable Part II.A.1 discusses the majority courts’ reliance on the purposivist method of statutory interpret ation in its analysis of § 1927 . Then, Part II.A.2 sets forth the majority courts’ dependence on implicit authority under § 1927 to conclude that law firms may be sanctioned under the statutory scheme. Part II.A.3 introduces the policies that the majority has considered in authorizing and affirming sanctions under § 1927 against law firms. 1. The Purposivist Nature of the Majority Approach The federal judiciary’s purposivist107 approach to statutory interpretation was first annunciated by the Court in Church of the Holy Trinity v. United States.108 This approach dictates that courts should construe statutory language to meet the purposes that Congress intended statutes to achieve.109 Under the purposivist doctrine, courts should give heightened attention to the overall purpose underlying a legal enactment where the “letter”—or text— might otherwise preclude further consideration.110 Some courts utilize the principles of the purposivist approach and embrace a view that sanctions under § 1927 may be assessed upon law firms, thus concluding that the legislative text reaches past the conduct of individual attorneys and representatives.111 In Malautea v. Suzuki Motor Co.,112 the Eleventh Circuit concluded that law firms m ay be sanctioned under § 1927 because “th[e] statute was designed to curb exactly the kinds of abuses that [the law firm, as counsel] committed in [the] case.”113 The court noted that the uncontested princip al purpose of § 1927 —“the deterrence of intentional and unnecessary delay in the proceedings”114—was met by its imposition of sanctions against a firm.115 In another case, the Southern District of New York concluded that the statute’s reference to an attorney “or other person admitted to conduct cases” highlights the legislature’s focus on regulating entities who “conduct cases.”116 The court concluded that both attorneys and law firms “naturally fall” into this class.117 In addition, the court found that “personally”118 satisfying excess costs, expenses, and attorneys’ fees is best construed as targeting attorney-like conduct, as opposed to actions of a client or party.119 Thus, the phr ase “personally,” as used in § 1927 , is appropriately understood not to preclude the imposition of sanctions on law firms but to preclude their imposition on clients and other represented parties.120 2. An Implicit Grant of Authority to Sanction Firms In addition to various courts’ analyses of congressional intent under the purposivist approach, some courts that have imposed sanctions against law firms under § 1927 have recognized an implicit grant of authority within the statute to impose such sanctions.121 Recently, the First Circuit’s Bankruptcy Appellate Panel stated that “courts implicitly have upheld the practice” of 2017] imposing s anctions on law firms under § 1927 “where appropriate.”122 In addition, a district court judge in the Southern District of New York concluded th at § 1927 does not “disfavor requiring a law firm . . . to ‘satisfy personally’” fees and costs, so long as the firm’s conduct meets the statutory behavioral requirements.123 Thus, the basis for this implicit authority is f airly straightforward: section 1927 affords the federal courts authority to sanction law firms because courts already have the authority to do so.124 Furthermore, because of this implicit authority, courts may utilize statutory requirements (in this c ase, the elements of § 1927 ) as a basis to sanction law firm conduct.125 For example, in Avirgan v. Hull,126 the plaintiffs’ attorney attached an affidavit to an amended complaint that included alleged testimony of seventy-nine unnamed individuals.127 The plaintiffs’ counsel withheld the alleged witnesses’ identities until the district court ordered disclosure and after all appeals of the order were exhausted.128 This practice, “the impetus for . . . two years of discovery,”129 yielded a finding that no alleged witnesses had any credible testimony, and, even more strikingly, that approximately twenty of the alleged witnesses’ identities and accounts of the controversy were fabricated by the attorney.130 The district court sanctioned both lead counsel and his law firm under § 1927 for their bad faith conduct, reminding the bar that “[a] court may assess attorney’s fees against litigants, counsel, and law firms who willfully abuse judicial process by conduct tantamount to bad faith.”131 Thus, some courts have constructed an implicit authority under § 1927 to sanction firms from the overlapping nature of legislative and judicial authorities.132 In Enmon v. Prospect Capital Corp.,133 the Second Circuit affirmed a lower court’s imposition of s anctions under § 1927 against a law firm for the vexatious multiplication of proceedings.134 The court concluded that law firms are, by implication, sanctionable under the statute.135 Yet, while describing the difference between the legislation and the courts’ inherent authority to sanction, the circuit panel proclaimed: the only meaningful difference between an award made under § 1927 and one made pursuant to the court’s inherent power is . . . th at awards under § 1927 are made only against attorneys or other persons authorized to practice before the courts while an award made under the court’s inherent power may be made against an attorney, a party, or both.136 This result is curious. The appellate p anel explicitly stated that § 1927 sanctions may be imposed “only against attorneys or other persons,” but nonetheless upheld sanctions against the defendant’s counsel’s l aw firm pursuant to § 1927 .137 Attempting to overcome this inconsistency, the Enmon court found “no serious dispute” as to whether the judiciary may impose sanctions on law firms under its inherent power, and that, for consistency’s sake, the same rule and logic should apply to its interpret ation of § 1927 .138 3. Public Policy Dictates Authority to Sanction the Firm It is well understood th at § 1927 exists to remedy a certain mischief.139 After all, the statute describes unreasonable and vexatious multiplication of proceedings as the basis for imposing sanctions.140 The majority courts141 have contended that, because Congress has decreed it provident to hold individual attorneys or representatives authorized to conduct cases in court liable for these negative behaviors, those victimized by such mischief must have the ability to obtain costs and fees associated for any defense against that misconduct.142 Victims are more likely to gain compensation when sanctions are imposed against a large law firm rather than an individual person. Additionally, the majority circuits have also relied on the past practices of district courts in their respective circuits in holding that, as a matter of policy, law firms should be subject to s anctions under § 1927 .143 The pinnacle of this argument is judicial acquiescence. Circuit courts would “upset a relatively long-standing practice among district courts [in their respective circuits] if [they] were to hold that law firms may not be sanctioned under [the statute] for the acts of certain attorneys.”144 135. See generally id. 136. Id. at 144 (alteration in original) (quoting Oliveri v. Thompson, 803 F.2d 1265, 1273 (2d Cir. 1986) ). 137. Id. 138. Id. at 147. 139. Before the legislative en actment of what would become § 1927 , the Senate formed a committee to “inquire what [l]egislative provision is necessary to prevent multiplicity of suits or processes, where a single suit or process might suffice.” 26 ANNALS OF CONG. 29 (1813). 140. 28 U.S.C. § 1927 (2012). 141. See supra note 40 and accompanying text. 142. See generally supra Part II.A. 143. See, e.g., Enmon, 675 F.3d at 147–48. 144. Id. at 147. 2017] Yet another policy justification that has effectuated the majority circuits’ determination on this issue is the approval of the practice by sister circuits.145 In Enmon, the Eleventh Circuit bolstered its decision to uphold sanctions on a law firm under the statute by referencing other circuits’ determinations on the same issue.146 In In re MJS Las Croabas Properties, Inc.,147 the First Circuit Bankruptcy Appellate Panel did just the same.148 The changing nature of the legal landscape also lends some policy support to the majority view.149 When § 1927 was enacted in its original form in 1813,150 lawyers predominantly were solo practitioners.151 By 1980—the last time the statute was amended—190,188 attorneys were affiliated with or employed by law firms152 and the total number of firms reached 38,482.153 By 2000, the national attorney population nearly doubled to 1.02 million.154 And, by 2005, law firms across the United States numbered 47,562155 while the total percentage of lawyers associated with law firms reached approximately 51 percent, an increase of 16 percent over twenty years.156 In addition and as stated above, large law firms have grown even larger s ince the mid-1980 s, in both size and number.157 But while the total number of firms and the percentage of practitioners associated with them have increased annually, the growth of the national lawyer population has flattened since 2000.158 Thus, today more lawyers are affiliating with firms while firms themselves are growing in size.159 These data portray a legal field in which a majority of attorneys practice under the umbrellas of firms, a phenomenon th at the drafters of § 1927 simply could not have envisioned nor accounted for when the statute was enacted.160 Thus, as the majority of circuits argue, the reach of § 1927 seemingly should not be interpreted to prevent its application to law firms because direct or vicarious liability of firms could not have been analyzed appropriately in the 19th century. This was not an issue that warranted attention in or before 1980.161 B. The Statutory Scheme Provides Authority to Sanction Only Attorneys and Representatives This section discusses the counteranalyses and arguments of the Sixth, Seventh, and Ninth Circuits. These minority circuits reject the imposition of sanctions against law firms based on § 1927 ’s text, legislative history, and Congress’s lack of subsequent legislative action. In addition, the minority circuits are unpersuaded by the majority circuits’ arguments. 1. The Minority Approach: It All Comes Down to the Text Arguments in favor of the minority coalition’s162 appro ach are based heavily on § 1927 ’s construction and presumed legislative intent. In Rentz v. Dynasty Apparel Industries, Inc.,163 the Sixth Circuit focused on the language of the statutory scheme to conclude that its text fails to authorize sanctions against a represented party164 or a law firm.165 In doing so, the court comp ared the text of § 1927 166 with that of Rule 11 as amended in 1993,167 which expressly allows for the imposition of sanctions on law firms.168 In BDT Products, Inc. v. Lexmark International, Inc.,169 the Sixth Circuit reasoned that, under its plain language, the statute precludes the imposition of sanctions against a law firm because a law firm cannot reasonably be considered a “person” nor can law firms be admitted to “conduct cases” in court.170 This interpretation conflicts with the Southern District of New York’s analysis of § 1927 in Brignoli v. Balch Hardy & Scheinman, Inc.,171 where the court concluded that law firms “naturally fall” into the subset of “person[s]” that the statute reaches.172 2017] The Seventh Circuit has taken a stance identical to that of the Sixth Circuit.173 As for “other person[s] admitted to conduct cases,” the Seventh Circuit has concluded that the statutory language covers only the conduct of nonattorneys admitted to practice for limited purposes, such as law students or those involved in patent litigation—not law firms as figurative persons.174 In Kaass Law v. Wells Fargo Bank, N.A.,175 the Ninth Circuit adopted this interpretation as well, citing BDT Products for its textual analysis outlined above.176 In the same opinion, the circuit court relied on expressio unius177 as further support to conclude that l aw firms are excluded from § 1927 ’s reach.178 Academics who have researched and written on federal sanctions law also favor this textual interpretation.179 For example, the American Bar Association has taken this position, stating that pursuant to the st atute’s construction, § 1927 cannot reach the conduct of law firms nor hold them vicariously liable for attorneys’ or other representatives’ conduct or behavior.180 2. Legislative Intent and Historical Limitations The legisl ative history of § 1927 also lends support to the minority circuits’ analyses and has been invoked to bolster their position.181 As discussed in Part I.A,182 the predecessor st atute to § 1927 was first enacted in 1813183 and allowed for the imposition of sanctions only against “any attorney, proctor, or other person admitted to manage and conduct [cases] in a court of the United States.”184 In 1853, when this st atute was reenacted as § 1927 of Title 28 of the U.S. Code,185 its language was not altered. When § 1927 was codified in the Revised Statutes of the United States, the language was changed minimally and law firms were not mentioned.186 The title of the provision, which was added as a marginal notation, reads: “Attorney liable for costs vexatiously increased by him.”187 Although it is well settled that the title of an act cannot “control plain words in the body of the statute,” it nonetheless may be considered to shed light on ambiguity therein.188 Here, even assuming that the text is ambiguous, the title suggests th at § 1927 applies only to individual attorneys.189 When § 1927 was amended in 1980,190 Congress altered its language by striking out the phrases “as to increase costs” and “such excess costs” and inserting “the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”191 The congressional record states that the principal reason for amending the statute was to preclude courts from narrowly construing its text to authorize sanctions “only in . . . egregious instances.”192 The amendment’s purpose, according to the drafters, was to expand costs that a court may impose to discourage counsel from employing litigation strategies that impede cases from nearing disposition.193 Moreover, the imposition of s anctions under § 1927 on anyone other than individual attorneys or representatives was never discussed during the 1979 congressional floor debates regarding the proposed amendments.194 In addition to the legislative history set forth above, at least one scholar has re asoned that the history of § 1927 is telling of its allegedly limited reach.195 Because law firms did not exist as common entities in 1813 when the origin al form of § 1927 was enacted,196 law firms were not included within the language of the statute.197 When the legislation was reenacted in 1853 ,198 the text of the statute was not changed to include law firms as sanctionable entities because law firms were still uncommon.199 However, 2017] when the statute was last amended in 1980,200 law firms were widespread,201 and Congress included nothing in the amendments to § 1927 to suggest a statutory grant of authority to impose sanctions on law firms.202 To bolster their analyses, the minority circuits also rely on the Supreme Court’s decision in Pavelic203 to vacate sanctions imposed on a law firm under the pre-1993 version of Rule 11.204 Part II.B.3 below compares Pavelic’s seemingly analogous facts and circumstances to those associated with § 1927 . This Part also discusses the congressional silence surrounding the application of § 1927 and its support of the minority view. 3. Continual Congressional Silence Another major premise supporting the minority circuits’ approach is lack of congressional involvement. In addition to the absence of foundational text that explicitly authorizes courts to impose sanctions on law firms under the statute,205 the minority courts have relied on Congress’s failure to intercede on the issue and amend the statute.206 In Rentz, the Sixth Circuit noted that law firms may be sanctioned under Rule 11207 only because that authority has been expressly provided for in the federal rule.208 In doing so, the court found sanctions permissible under Rule 11 b ut not under § 1927 , which the court concluded did not authorize sanctions against law firms.209 Thus, the court reasoned that only express legislative permission would give the court the power to s anction a firm under § 1927 .210 The Seventh Circuit has also relied on congressional silence to support its analysis of § 1927 ’s reach. In Claiborne v. Wisdom,211 the court reversed a lower court’s order holding a law firm jointly and severally liable for sanctions imposed on the plaintiff’s attorney.212 The court referenced the Supreme Court’s decision in Pavelic, reminding the bar that in Pavelic the Court concluded that “the person who signed,” as articulated in the prior version of Rule 11,213 “could only mean the individual signer, not his partnership, either in addition to him or in the alternative.”214 The court concluded that the facts and circumstances of Claiborne posed the same problem as Pavelic, and thus the court lacked statutory authority to s anction law firms under § 1927 .215 The Seventh Circuit thus concluded that its hands were tied because Congress had not amended the statute to expressly provide for such authority.216 Similarly, the Ninth Circuit held in Kaass Law that congressional silence precludes the applicability of § 1927 sanctions on law firms.217 In a case involving an allegedly erroneous credit report, the district court imposed sanctions for attorneys’ fees and costs against Kaass Law, the plaintiff’s counsel’s law firm.218 The district court noted that Kaass Law acted in bad faith by and through its attorney by failing to (1) properly plead under Rule 8,219 (2) oppose Wells Fargo’s motion to dismiss, and (3) meet or communicate with Wells Fargo’s counsel, which prolonged the litigation.220 Thus, because Kaass Law had knowledge of and failed to correct “glaring pleading and legal errors,”221 the law firm “recklessly and knowingly” multiplied the proceedings.222 The Ninth Circuit reversed the imposition of sanctions, holding that “[i]f Congress had intended to permit federal courts to impose sanctions against law firms, it would have included an express authorization to do so in the statute.”223 4. The Majority’s Allegedly Unpersuasive Arguments The minority circuits have also noted that the majority circuits’ analyses lack sufficient support to conclude th at § 1927 reaches law firms.224 In Claiborne, the Seventh Circuit posited that, although the Eleventh Circuit h as upheld § 1927 sanctions against a law firm,225 it offered no plausible reason for including law firms among persons or entities that may be sanctioned under the statutory scheme.226 Similarly, the Ninth Circuit has stated that “[t]he Eleventh Circuit seemingly conflated the sanctioning powers in 2017] [§ 1927 and Rule 11] when it upheld sanctions against lead counsel and his law firm.”227 The minority circuits have also criticized228 decisions of the District of Columbia229 and Third Circuits,230 both of which have implicitly231 affirmed sanctions against law firms without any discussion of the legal issue232 this Note contemplates. The Ninth Circuit has called into question the Second Circuit’s holding in Enmon233 by reasoning that the Second Circuit supported its decision to uphold sanctions against a law firm on the courts’ inherent power to sanction r ather than the text of § 1927 .234 The Ninth Circuit went on to state that the Second Circuit’s conclusion that the statutory language allows the imposition of sanctions on law firms235 lacks legal merit because the court overlooked citations to Pavelic and Claiborne in the appellant’s brief and failed to address those cases in its decision.236 Furthermore, the Seventh Circuit has noted237 that in Blue v. United States Department of the Army238 the Fourth Circuit expressed doubt as to whether law firms m ay be sanctioned under § 1927 ,239 even though the circuit court did not resolve the issue in that matter.240 III. RESOLVING THE CIRCUIT SPLIT The circuit courts’ inconsistent interpret ations of § 1927 and the authority to impose sanctions on law firms demonstrate the need for a clear resolution. Federal law should be administered consistently within the federal system,241 and courts should uniformly interpret the statute to provide predictability and consistency.242 Part III.A analyzes the specific problems plaguing both the majority and minority approaches of the circuit courts.243 Part III.B affords two solutions to these problems and describes the implications of each. A. Problems Underlying Each Approach Part III.A.1 argues that the majority circuits’ approach244 is questionable because it lacks express foundation and expands judicial boundaries. Although grounded in sound policy, this approach interprets § 1927 broadly due to the statute’s text and legislative history. Part III.A.2 argues that minority circuits’ analysis245 fails to recognize and meet the statute’s purpose. The text and history of § 1927 justify the minority’s conclusion, but that conclusion does not account for important and reasonable policy considerations. 1. Section 1927’s Authority to Sanction: Lack of Evidentiary and Textual Support Unambiguous language is the majority approach’s worst enemy.246 The statute clearly defines those who fall within the statute’s reach: “[a]ny attorney or other person admitted to conduct cases in any court of the United States.”247 Furthermore, when a statute’s ambiguity is not in question—that is, when the legislature has clearly spoken—courts should adhere to Congress’s approved standards.248 Congress’s lack of statutory amendment to date249 also calls into question the majority’s theoretical attempt at judicial activism.250 When the imposition of sanctions on a law firm under pre-1993 Rule 11 was challenged in Pavelic, the Supreme Court relied on the text of the federal rule to conclude a lack of judicial authority.251 The Court held that the plain language of Rule 11 did not permit the remedy imposed by the lower court and thus declined to uphold the sanctions.252 After Pavelic, Rule 11 was quickly amended to allow such authority.253 In addition, the majority’s attempts to rely on textual arguments to support the imposition of sanctions against law firms do not hold much water.254 In Brignoli, a district court’s conclusion that law firms may “naturally” be considered “other person[s] admitted to conduct cases” so as to fall within the statute’s reach255 seemingly signifies flawed logic. The text of the statute 2017] expressly allows for sanctions against “[a]ny attorney or other person admitted to conduct cases in any court.”256 Words preceded or surrounded by others in the same statutory phrase “are liable to be affected by other words with which they are associated.”257 This canon of statutory construction258 is widely accepted and supports consistency in meaning.259 The pl ain language of § 1927 implies an understanding that statutory sanctions may be imposed only against individuals,260 since the term “other person” seems to be modified by “[a]ny attorney,”261 which precedes it in the statutory scheme. It follows, therefore, that only individuals—not law firms—may be admitted to conduct cases, since only individual lawyers or other representatives may be admitted or allowed to practice before the courts.262 The text of § 1927 cuts against the grain of the majority’s view.263 a. Sacrificing Judicial Boundaries for Efficiency Another issue that belies the majority approach is its exp ansion of the scope of § 1927 .264 The majority circuits have relied on the statute as the basis on which to impose sanctions against law firms, presumably expanding the scope of the legislative text. Such a finding is ideal from an efficiency standpoint, since the federal judiciary has previously concluded that law firms should be sanctionable as entities in and of themselves for certain conduct.265 However, federal courts already have the authority to sanction law firms pursuant to the courts’ inherent authority to sanction under common law.266 This authority requires a finding of subjective b ad faith, but the text of § 1927 is silent on the matter.267 Thus, it might be argued that the majority has eliminated a finding of bad faith which would otherwise be required to sanction law firms using inherent authority.268 Such judicial undertakings have been criticized and presumably ought to be avoided as it is widely held that courts should not expand the scope of statutory text absent express authority to do so.269 Where Congress has spoken and statutory text warrants one conclusion, nonlegislative entities, including the judiciary, should construe the words of the statute in conformity with explicit congressional intent.270 Thus, although uniformity is heightened under the majority view,271 judicial and legislative boundaries are sacrificed for the sake of efficiency.272 b. Foundational Nonexistence The majority approach is plagued by the same issues that affected Rule 11.273 Rule 11 did not allow for sanctions to be imposed against law firms prior to its amendment in 1993 .274 When the Supreme Court analyzed the legality of sanctions imposed against a law firm in Pavelic, it relied on the express language of the rule to denounce such authority.275 The Court noted that the specific text of Rule 11 requires a court to “impose upon the person . . . an appropriate sanction” for certain litigation conduct.276 It construed “person” to mean an individual and only an individual.277 The Court’s decision in Pavelic prompted the Advisory Committee on the Federal Rules of Civil Procedure to amend Rule 11, and Congress acquiesced to its new construction and reach.278 2017] To date, the Supreme Court has not had an occasion to ev aluate the scope of § 1927 in this context. Although the issue surrounding Rule 11 in Pavelic did not pertain to the construction of a federal statute,279 it is illustrative of the statute’s scope. In Pavelic, the Court held eight-to-one that the express language of the rule barred courts from sanctioning anyone other than parties and individual representatives.280 In dissent, Justice Thurgood Marshall construed the meaning of “person” as a signal of the drafters’ intent to allow sanctions to be imposed on any “juridical person,” including law firms,281 but that argument and construction did not persuade a majority of the Court, let alone any other Justice. Additionally, the history of § 1927 ’s enactment, reenactment, and amendments demonstrates a lack of foundational support for the majority rule.282 This historical backdrop serves as support for the minority approach283 and the belief that law firms may be sanctioned under statutory schemes only when Congress expressly affirms such authority.284 2. Section 1927’s Limitations: Textually Certain, Yet Not Necessarily True Just as the majority block’s analysis has its failures, so too does the minority approach. The Sixth, Seventh, and Ninth Circuits’ foci in determining the application and scope of § 1927 is grounded in textual scrutiny.285 Their determination that the text of the statute disallows the imposition of sanctions against nonindividuals is bolstered by the doctrines of expressio unius,286 noscitur a sociis,287 and the plain meaning rule.288 Such inquiries and analyses, however, consistently fail to consider the policy behind § 1927 and the mischief the statute seeks to address.289 A narrow, textual focus presupposes alternative concerns and is far less pragmatic as a basis for interpretation.290 The minority view is seemingly blind to the purposivist approach of the majority circuits291 and consequently does not address the issue in full, thus missing the mark in addressing the dispute in its entirety. a. Legislative Focus: Intentionalism and the Mischief Rule The minority circuits’ reliance on text and syntax does not account for the canons of statutory interpretation at the judiciary’s disposal.292 Mere textual evaluations overlook one of the oldest293 and still-relevant tools of statutory interpretation: the mischief rule. This doctrine allows courts to identify the “mischief and defect” that an enactment was intended to remedy and utilize the enactment to meet the mischief identified.294 Implementation of the mischief rule in statutory analysis necessarily provokes an invitation to examine the intent of a given statutory scheme beyond its text.295 The majority circuits have effectively utilized this canon of construction by recognizing an authority under § 1927 to impose sanctions against law firms when they deem such sanctions appropriate.296 The minority block has conversely ignored such analysis. The mischief rule and the majority’s purposivist approach297 afford § 1927 meaning. The principal inquiry which formed the basis for the statute’s enactment was “to inquire what [l]egislative provision is necessary to prevent multiplicity of suits or processes, where a single suit or process might suffice.”298 The causes for such congressional inquiry were rising litigation costs, delays, and other abuses of the judicial process.299 Attorneys, of course, may be responsible for such conduct, and therefore may be sanctioned for conduct th at meets the mischief that § 1927 addresses. The minority coalition, however, consistently holds that represented parties and attorneys’ employers cannot be responsible for such conduct.300 It is pr actical to prohibit § 1927 sanctions against a nonattorney party for behavior that would multiply proceedings in the federal courts. For one, parties are normally unsophisticated in the law, and courts ordinarily afford 2017] relaxed requirements to pro se litigants.301 Where a party is represented by an attorney employed by a law firm, however, the attorney represents the client while also fulfilling her duties and obligations owed to her employer— the firm. Allowing courts to impose s anctions under § 1927 against both individual attorneys and law firms that employ them protects the integrity of the statute without restricting its reach.302 Such a determination wo uld meet the misconduct § 1927 was enacted to redress and account for the increased prevalence of the law firm.303 In addition, a major gap in the minority’s reliance on Pavelic is the aftermath of the Court’s decision to reverse sanctions against a law firm under the preamendment Rule 11.304 Congress did not veto the Advisory Committee’s decision to amend Rule 11 to provide courts the authority to sanction firms.305 Similarly, Congress did not contest amended Rule 11’s mandate of vicarious liability of law firms for any sanctions imposed against attorneys under their employ.306 Furthermore, the minority circuits ignore the Advisory Committee’s comments to the amended rule, which state it is appropriate for a law firm to be jointly responsible for its employees’ conduct under “established principles of agency.”307 In sum, the minority circuits do not account for these circumstantial factors and supporting policy justific ations in their analyses of § 1927 . b. Lack of Public Policy Support for the Minority View The minority circuits’ approach lacks public policy justifications.308 In Claiborne, the Seventh Circuit ordered the plaintiff’s attorney to pay the defendant’s attorneys’ fees and costs exceeding $100,000, but declined to affirm an award of sanctions against the plaintiff’s counsel’s law firm, even though the lower court determined that the firm acted in bad faith.309 Similarly, in Kaass Law, the Ninth Circuit concluded that a defendant had to pay its own legal fees in defense of meritless litigation with no basis in law or fact.310 Although the minority’s textual arguments adhere to one form of statutory interpretation,311 those arguments often do not lend themselves to equitable outcomes.312 Congress en acted what has become § 1927 more than 200 years ago.313 In the early 1800s, attorneys were predominantly solo practitioners, and law partnerships were uncommon.314 The earliest form of the statute called for the imposition of sanctions, where appropriate, upon attorneys, proctors, or others conducting cases before the federal courts.315 Since the earliest drafters could not foresee problems regarding vicarious or direct liability on attorneys’ employers, such liability was likely not needed at the time.316 Over time, however, the legal landscape has been transformed.317 The above explanation does not completely reconcile the inconsistency. The statute was last amended in 1980, and Congress did not change its language to include law firms.318 Although this notion supports the minority’s viewpoint, it still does not account for the exponential growth of the legal field and the rise of law firm practice s ince the mid-1980 s.3 19 After all, the 1980 amendments were part of an overall effort to expedite and reduce the costs associated with antitrust litigation.320 The focus, when the amendments were considered, was attorney dilatory practices.321 Congress called for a change to the statute to increase the costs that may be available to victims of litigation misconduct.322 At the time, Congress did not contemplate whether law firms should be held either directly or vicariously liable for such misconduct.323 Lack of express deliberation, however, does not connote express declination. As recently as the 1980s, law firms were not as abundant, large, or prevalent as they are today.324 When legislating in 1980, Congress likely did not comprehend this issue and the policy concerns it raises, the effects of which the majority approach takes into account.325 B. The Call for Consistency: Statutory and Judicial Fixes The ideal resolution of the split at issue in this Note is a congressional amendment. Part III.B.1 calls for a reconfiguration of § 1927 to expressly include law firms within its scope. If a statutory amendment is unfeasible, however, the federal judiciary may still effectuate redress through its inherent authority to sanction.326 Part 313. See supra note 28 and accompanying text. 314. See supra note 151 and accompanying text. 315. See supra notes 28, 186 and accompanying text. 316. See supra notes 142–61 and accompanying text. 317. See supra notes 154–60 and accompanying text. 318. See supra notes 33–34 and accompanying text. 319. See supra notes 23, 154–60 and accompanying text. 320. See supra notes 33–34 and accompanying text. 321. See supra notes 33–34 and accompanying text. 322. See supra notes 33–34 and accompanying text. 323. See supra notes 33–34 and accompanying text. 324. See supra notes 154–59 and accompanying text; see also BARBARA A. CURRAN ET AL., supra note 152 (indicating that e ven as recently as 1985 , “large” law firms were those that had fifty-one or more attorneys but constituted only 0.7 percent of the entire national firm population). 325. See supra Part II.A.3. 326. See supra notes 65–79 and accompanying text. 2017] III.B.2 argues this approach would establish uniform treatment of attorneys practicing in the federal system and curb differential interpretation across jurisdictions, since the conduct th at § 1927 seeks to remedy is actionable pursuant to the inherent authority.327 1. Congressional Involvement and Amendment Based on federal judicial analyses328 and the history and development of § 1927 ,329 it is evident that the legislation is textually unambiguous.330 Section 1927 allows for sanctions to be imposed only against “[a]ny attorney or other person admitted to conduct cases in any court of the United States.”331 Such a conclusion, however, would upset the purpose of the statute in today’s legal sphere. Attorneys must be protected from the heightened expectations of performance that the modern legal landscape demands,332 just as parties must be protected from dilatory and vexatious litigation conduct.333 Public policy as well as increasing law firm growth334 and mergers335 exemplify a need for change and accountability. Such recognition would allow the feder al judiciary to utilize § 1927 to meet original congressional intent and the statute’s purpose. Congress must amend § 1927 to account for this void and give the statute teeth.336 2. Judicial Uniformity with Limited Reach Unless and until Congress amends § 1927 , federal courts must be willing to uniformly adopt an interpretation of the statute that promotes its policy objectives. This can be done through use of the federal courts’ inherent authority to sanction. This approach is less desirable than congressional amendment because the inherent authority ought to be predicated on a finding of subjective bad faith.337 Section 1927 makes no mention of a bad faith requirement, and indeed some circuits do not require such a finding to impose sanctions under the statute.338 In discussing the scope of the federal judiciary’s inherent authority to impose sanctions, the Court concluded that “a court may assess [sanctions] when a party has ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons.’”339 Thus, it seems that the inherent authority to sanction may very well be invoked to meet the conduct th at § 1927 seeks to remedy— 327. See supra notes 101–04 and accompanying text. 328. See supra Parts II.A and II.B. 329. See supra Part I.A. 330. See supra note 39 and accompanying text. 331. 28 U.S.C. § 1927 (2012). 332. See supra notes 20–27 and accompanying text. 333. See generally supra Part I.A. 334. See supra notes 155–59 and accompanying text. 335. See supra note 20 and accompanying text. 336. See infra Appendix. 337. See generally supra Part I.C. 338. See supra note 15 and accompanying text. 339. See Chambers v. NASCO, Inc., 501 U.S. 32, 45–46 (1991); see also supra Part III.A.1.a. unreasonable and vexatious litigation behavior.340 If § 1927 sanctions are used to deter the misconduct acknowledged in the statute, then a finding of bad faith would normally necessitate their imposition.341 CONCLUSION Several circuits have analyzed, interpreted, and applied § 1927 to provide its intended remedy. Some, though, have failed to do so, thus impairing the effectiveness of the statute while perpetuating marked inconsistencies. This Note proposes an amendment to § 1927 that gives the statute unquestionable and proper application.342 Such an amendment would provide parties with ample redress and protection against unreasonable litigation conduct, the potential for which has greatly increased in the modern legal landscape. Through adoption of this proposal, the federal circuits may move one step closer to a more uniform and efficient administration of justice. 340. 28 U.S.C. § 1927 (2012). 341. See supra Part III.A.2. 342. See infra Appendix. APPENDIX PROPOSED 28 U.S.C. § 1927: LIABILITY FOR EXCESSIVE COSTS (a) Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct; If the court requires any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof as set forth in subsection (a) to satisfy personally any excess costs, expenses, and attorneys’ fees reasonably incurred, the court may also hold the employer or partnership of the attorney or other person jointly liable to satisfy the excess costs, expenses, and attorneys’ fees reasonably incurred; A court may require an employer or partnership of any attorney or other person as set forth in subsection (a) who so multiplies the proceedings in any case unreasonably and vexatiously to satisfy any excess costs, expenses, and attorneys’ fees reasonably incurred due to such conduct even if the court does not also require the individual attorney or person to satisfy the excess costs, expenses, and attorneys’ fees reasonably incurred. A. 28 U.S.C. § 1927's Legislative History , Scope, Nature, and Purpose ................................................................................... 270 B. Rule 11 and Authority by Amendment to Sanction the Firm .... 272 C. The Common Law Standard: Inherent Authority to Sanction . 273 D. The Importance of Uniform Analysis and Treatment of 28 U.S.C. § 1927 .......................................................................... 275 A. The Majority View: Law Firms Are Sanctionable ................... 277  1. The Purposivist Nature of the Majority Approach............. 277  2. An Implicit Grant of Authority to Sanction Firms............. 278  3 . Public Policy Dictates Authority to Sanction the Firm ...... 280 Attorneys and Representatives ................................................ 282 1.  The Minority Approach: It All Comes Down to the Text ......................................... 282  2 . Legislative Intent and Historical Limitations..................... 283  3 . Continual Congressional Silence ....................................... 285  4. The Majority's Allegedly Unpersuasive Arguments ......... 286 III. RESOLVING THE CIRCUIT SPLIT.......................................................... 287 A. Problems Underlying Each Approach...................................... 288  1 . Section 1927's Authority to Sanction: Lack of Evidentiary and Textual Support ...................................... 288 a. Sacrificing Judicial Boundaries for Efficiency ............ 289 b. Foundational Nonexistence.......................................... 290  2 . Section 1927's Limitations: Textually Certain, Yet Not Necessarily True.................................................. 291 Mischief Rule .............................................................. 292 b. Lack of Public Policy Support for the Minority View .. 293 B. The Call for Consistency: Statutory and Judicial Fixes .......... 294  1 . Congressional Involvement and Amendment .................... 295  2 . Judicial Uniformity with Limited Reach ........................... 295 CONCLUSION ............................................................................................. 296  5. Some scholarship has addressed § 1927's application to law firms, but general FEDERAL LAW OF LITIGATION ABUSE § 21(C)(2) (5th ed . 2013 ) ; see also 1 RONALD E . MALLEN, LEGAL MALPRACTICE § 11 : 59 (2017 ed. 2017 ) (stating that “[t]he language of [§] 1927 is (quoting 28 U .S.C. § 1927 )). 6 . See infra Part III.B.1. 7. See infra Part I.C. 8. See infra Part III.B.2. 9. See infra notes 28-29 and accompanying text. 10 . See Douglas R. Richmond , Sanctioning Clients for Lawyers' Misconduct-Problems of Agency and Equity , 2012 MICH. ST. L. REV . 835 , 835 - 36 . 11 . See generally JOSEPH , supra note 5 . 12. Id . 13 . The statute, titled “Counsel's liability for excessive costs,” reads as follows: conduct. 28 U.S.C. § 1927 ( 2012 ). 14 . Id . 15. A split of authority exists on whether § 1927 requires a showing of subjective bad faith. See generally James F. Holderman , Section 1927 Sanctions and the Split Among the Circuits , 32 LITIG. 44 ( 2005 ) (discussing varying degrees of conduct required by the circuits to find violation of § 1927 ). This Note does not contemplate this issue. For an interesting E. Pozen , Constitutional Bad Faith, 129 HARV. L. REV. 885 ( 2016 ). 16 . See generally infra Part II. 17. See generally infra Part II. As the Ninth Circuit aptly noted, whether law firms may Fargo Bank , N.A. , 799 F.3d 1290 , 1293 ( 9th Cir . 2015 ). 18 . See infra Part II.A. 19. See infra Part II .B. 20 . See Roy Strom, After Record, More Firm Mergers Expected, CHI . DAILY L. BULL. (Mar. 17 , 2016 , 2 :26 PM), http://www.chicagolawbulletin.com/Archives/2016/03/17/ mergers-03-17-16 .aspx [https://perma.cc/X4Z9-UKJK] (stating law firm growth is needed to More Law Firm Mergers , CRAIN'S CLEVELAND BUS . (Feb. 16 , 2016 ), http://www.crainscleveland.com/article/20160214/NEWS/160219904/appetite-for-growth- leading-to-more-law-firm-mergers [https://perma.cc/B58E-YDAY] . Large law firm mergers Kaye Scholer Confirm $1bn Merger Deal , LEGALWEEK (Nov. 10 , 2016 ), http://www.legalweek.com/sites/legalweek/2016/11/10/arnold-porter -and-kaye-scholer- confirm- 1bn - merger-deal/?slreturn=20170706185854 [https://perma.cc/L9ED-9268]; (Dec. 13 , 2016 ), http://www.newyorklawjournal.com/id=1202774564776/Merger-Madness- Hits-Crowell-amp-Moring-Herrick-Feinstein?mcode=1202615704879&slreturn =20161115192248 [https://perma.cc/K2G2-7LAW]; Debra Cassens Weiss, Norton Rose and Chadbourne Complete Merger , ABA J . (June 30, 2017 ), http://www.abajournal.com/news/ article/norton_rose_and_chadbourne_complete_merger [https://perma.cc/522K-8DGR]. 21. Neil J. Dilloff , The Changing Cultures and Economics of Large Law Firm Practice and Their Impact on Legal Education , 70 MD. L. REV. 341 , 347 - 48 ( 2011 ). 22 . See Jennifer Smith , Law Firms , Market Pressure and Change: How Soon Is Now?, WALL ST. J. (May 14, 2014 , 4 :54 PM), http://blogs.wsj.com/law/2014/05/14/law-firms- market-pressure-and-change-how- soon- is-now/ [https://perma.cc/NG98-RMLM]. 23. See infra notes 150-58 and accompanying text . The National Law Journal (NLJ) , an 500 attorneys when NLJ published in 1978 its inaugural list of the 200 largest law firms . See Introducing the NLJ 350 , NAT'L L.J. ( Apr. 16 , 2012 ), http://www.nationallaw journal.com/id=1202489565842.?id=1202489565842 [https://perma.cc/B4DF-NAUU]. Since 2015 , however, more than twenty firms employ more than 1,000 lawyers and at least eighty-five firms staff 500 or more attorneys . See Chart: The 2015 NLJ 350 , NAT'L L.J. (June 8, 2015 ), http://www.nationallawjournal.com/home/id=1202728576002 [https://perma.cc/ 7KLJ-7VWP]. 24 . See , e.g., Christine Simmons , For Midsize NYC Firms , 2016 Highlighted Need to Merge , N.Y. L.J. ( Dec. 20 , 2016 ), http://www.newyorklawjournal.com/id=1202775184586/ For-Midsize-NYC-Firms- 2016 -Highlighted- Need-to-Merge [https://perma.cc/7X5E-CRR9] landscape) . 25. MODEL RULES OF PROF'L CONDUCT pmbl. 2 (AM . BAR ASS'N 2016). 26. See supra notes 20-22 and accompanying text. 27 . Although association with a large firm is by no means an indication that an attorney law firms over the past thirty years . See Introducing the NLJ 350, supra note 23 and accompanying text. 28. Act Concerning Suits and Costs in Courts of the United States, ch. 14, sec. 2 , 3 Stat. 19 , 21 ( 1813 ) (codified at 28 U .S.C. § 829 ( 1940 ) and amended by 28 U .S.C. § 1927 ( 1980 )). have multiplied the proceedings in any cause before the court so as to increase costs 41. See generally Kaass Law v . Wells Fargo Bank, N.A. , 799 F.3d 1290 ( 9th Cir . 2015 ); FM Indus ., Inc. v. Citicorp Credit Servs., Inc., 614 F.3d 335 ( 7th Cir . 2010 ); Rentz v . Dynasty Apparel Indus ., Inc., 556 F.3d 389 ( 6th Cir . 2009 ). 42 . See Stephen B. Burbank , The Rules Enabling Act of 1934 , 130 U. PA. L. REV . 1015 , 1028 ( 1982 ). 43. JOSEPH, supra note 5, § 1 . 44 . Stephen R. Ripps & John N. Drowatzky , Federal Rule 11: Are the Federal District Courts Usurping the Disciplinary Function of the Bar? , 32 VAL. U. L. REV. 67 , 68 ( 1997 ). 45 . Id . 46. FED. R. CIV . P. 11 ; see also JOSEPH , supra note 5, § 1 . 47. FED. R. CIV . P. 11 ( a ). 48 . See FED. R. CIV . P. 11 (b). 49 . See FED. R. CIV . P. 11 (c); see also JOSEPH, supra note 5, § 5(E)(1). 50. JOSEPH, supra note 5, § 5(E)(1) (“Under the 1983 version [of] Rule 11, there was no vicarious liability. Liability was personal to the signer and the signer's client . ”) . 51 . 493 U.S. 120 ( 1989 ), aff'g Calloway v . Marvel Entm't Grp ., 854 F.2d 1452 ( 2d Cir . 1988 ). 52 . See generally Pavelic, 473 U.S. 120 . 53. Id. at 122- 23 . In Calloway, the Second Circuit affirmed a district court's imposition of sanctions on a law firm pursuant to Rule 11, in “square disagreement” with the Fifth Circuit, which held in Robinson v . National Cash Register Co., 808 F.2d 1119 , 1128 - 30 ( 5th Cir . 1987 ), that Rule 11 authorizes sanctions only against individual lawyers who sign court papers . Calloway , 854 F.2d at 1479 . 54. Pavelic , 493 U.S. at 127 . 55. See id. at 124 (quoting then-current Rule 11, which stated that “[i]f a [document] is represented party, or both, an appropriate sanction” (emphasis added)) . 56 . Id. at 127 . 57. It should be noted that Congress is not responsible for drafting additions or within a certain time frame . See 28 U.S.C. §§ 2072 , 2074 (a) ( 2012 ) ; cf . Sibbach v. Wilson & Co., 312 U.S. 1 , 14 - 15 ( 1941 ) (discussing how federal rules are submitted to Congress “so Federal Rules of Civil Procedure . See 28 U.S.C. § 2074 . 58. FED. R. CIV . P. 11 ( c ) (stating that a “court may impose an appropriate sanction on any added)) . 59 . Id . (emphasis added) . In comments accompanying the amendment, the 1993 Advisory employees' conduct under “established principles of agency .” See FED. R. CIV . P. 11 advisory committee's note to 1993 amendments. 60 . FED. R. CIV . P. 11(C). 61 . See , e.g., supra Parts I.A (discussing conduct that falls within the scope of § 1927 ) and I. B (identifying conduct that triggers sanctions under Rule 11 ). 62. See , e.g., FED. R. CIV . P. 37 . Rule 37 deals primarily with attorneys' failures to make requested disclosures or cooperate in discovery matters . Id . 63 . See , e.g., supra Part I.A (discussing the scope of § 1927 ). 64 . See JOSEPH , supra note 5, § 26(A) ( 1 ). 65. See Link v. Wabash R.R., 370 U.S. 626 , 630 - 31 ( 1962 ) (discussing courts' inherent see also JOSEPH , supra note 5, § 26(A) ( 1 ). 66. See United States v. Hudson , 11 U.S. 32 , 34 ( 1812 ) (holding that federal courts have, 447 U.S. 752 , 764 ( 1980 ) (stating that the most prominent inherent power of the federal courts is the authority to sanction). 67. JOSEPH, supra note 5, § 26(A)(1). One scholar has framed this authority as one that Conduct of Civil Litigation , 73 TEX. L. REV. 1805 , 1805 ( 1995 ). 68 . See Avirgan v. Hull , 932 F.2d 1572 , 1582 ( 11th Cir . 1991 ). 69 . 501 U.S. 32 ( 1991 ); see also Thomas E. Baker, The Inherent Power to Impose Sanctions: How a Federal Judge Is Like an 800-Pound Gorilla, 14 REV. LITIG . 195 , 196 - 97 ( 1994 ). 70 . Chambers , 501 U.S. at 35- 36 . 71 . Id. at 36. 72. Id. 73. Id. 74. Id. 75. Id. at 36-37 . 76 . See generally NASCO , Inc. v. Calcasieu Television & Radio, Inc., 623 F. Supp . 1372 (W.D. La . 1985 ), aff'd, 797 F.2d 975 ( 5th Cir . 1986 ). 77 . Id. at 1383 . 78. After specific performance was ordered by the district court and affirmed on appeal, Television & Radio, Inc., 124 F.R.D. 120 ( W.D. La . 1989 ), aff'd, 894 F.2d 696 ( 5th Cir . 1990 ), aff'd , 501 U.S. 32 ( 1991 ). The court opined that Rule 11 sanctions were not appropriate beginning of trial . Id. at 138-39 . Section 1927 sanctions were likewise inappropriate and by the sole shareholder of the defendant . Id. at 139; see also JOSEPH, supra note 5 , § 21(C) (1). 79 . NASCO, 124 F.R.D. at 139- 42 . 80 . For a detailed discussion of the American Rule on fee-shifting in litigation, see generally John F. Vargo 's article written for the 1993 Symposium on Civil Justice Reform . to Justice , 42 AM. U. L. REV. 1567 ( 1993 ). 81 . See Alyeska Pipeline Serv. Co. v. Wilderness Soc'y , 421 U.S. 240 , 247 ( 1975 ) (stating party) . 82 . See Chambers v . NASCO, Inc., 501 U.S. 32 , 44 ( 1991 ) ; see also Roadway Express, Inc. v. Piper, 447 U.S. 752 , 764 ( 1980 ). 83 . Chambers , 501 U.S. at 45- 46 . 84 . This limitation is congruent with the Court's holding in Roadway Express , 447 U.S. at 752. In Roadway, the Court reasoned that federal courts may access attorneys' fees and costs “in narrowly defined circumstances” constituting bad faith . Id. at 765 . 85. See , e.g., Claiborne v . Wisdom , 414 F.3d 715 , 724 ( 7th Cir . 2005 ) (disallowing sanctions against a law firm under both § 1927 and inherent powers due to the textual recognition by a party of such authority is not required ). 86 . Cf . Baker, supra note 69, at 200 ( “Presumably, any sanction contemplated under federal statutes and rules can be imposed incident to the inherent power as well . ”) . 87 . See supra Part I.C. 88 . “ Persons” in this context, being a term of art, includes litigants, counsel, and law firms . See Roadway , 447 U.S. at 752; see also Avirgan v. Hull , 932 F.2d 1572 , 1582 ( 11th Cir . 1991 ) bad faith”) . 89 . See , e.g., Chambers , 501 U.S. at 32 . 90. See Roadway, 447 U.S. at 764; see also Gompers v. Bucks Stove & Range Co., 221 U.S. 418 , 450 - 51 ( 1911 ) (stating that federal inherent authorities come with an implied warning that they may never be implemented where neither proper nor necessary ). 91 . Cf . Chambers, 501 U.S. at 46 ( stating that “whereas . . . other mechanisms reach[] abuses”). 92. Id. 93. Id. at 50 . 94. Id . 95 . See Leading Cases, Courts' Inherent Authority to Sanction in Diversity Cases: Chambers v . NASCO, Inc., 105 HARV. L. REV. 349 , 356 ( 1991 ). 96 . Chambers , 501 U.S. at 50 . 97. 28 U.S.C. § 1927 ( 2012 ). 98 . See generally supra Part I.C. 99 . See generally infra Part II .B. 100 . See Leading Cases, supra note 95, at 350; see also infra Part II .B. 101 . See Martha Dragich, Uniformity, Inferiority, and the Law of the Circuit Doctrine, 56 LOY. L. REV . 535 , 540 - 44 ( 2010 ). See generally Amanda Frost , Overvaluing Uniformity, 94 VA. L. REV . 1567 ( 2008 ). 102 . See Dragich, supra note 101, at 540-44. 103. See id. at 536 . 104. See , e.g., COMM'N ON REVISION OF THE FED . COURT APPELLATE SYS ., STRUCTURE AND INTERNAL PROCEDURES : RECOMMENDATIONS FOR CHANGE 3 ( 1975 ), reprinted in 67 F.R.D. 195 , 206 - 07 ( 1975 ). 105 . See infra Parts II.A-B . 106 . See generally supra Part I.A. 107. This Note focuses on the purposivist approach, as it has dominated the analyses of courts that construe § 1927 to provide for sanctions against law firms . This Note does not Approaches to Judicial Decision-Making, 25 PEPP. L. REV. 37 ( 1997 ). 108 . 143 U.S. 457 ( 1892 ). 109 . See John F. Manning , The New Purposivism, 2011 SUP. CT. REV . 113 , 113 . 110. Holy Trinity Church, 143 U.S. at 461 . 111. See , e.g., LaPrade v. Kidder Peabody & Co., 146 F.3d 899 , 906 -07 (D.C. Cir . 1998 ); Avirgan v . Hull , 932 F.2d 1572 , 1582 - 83 ( 11th Cir . 1991 ). 112 . 987 F.2d 1536 ( 11th Cir . 1993 ). 113 . Id. at 1544 . 114. Beatrice Foods Co. v. New Eng. Printing & Lithographing Co., 899 F.2d 1171 , 1177 (Fed. Cir . 1990 ). 115 . Malautea , 987 F.2d at 1544 , 1546 . 116. Brignoli v. Balch Hardy & Scheinman , Inc., 735 F. Supp . 100 , 102 (S.D.N .Y. 1990 ) (quoting 28 U .S.C. § 1927 ( 2012 )). 117 . Id . 118 . See 28 U.S.C. § 1927 . 119. Brignoli , 735 F. Supp . at 101 . 120. Id . 121 . See , e.g., Lee v . First Lenders Ins. Servs. Inc., 236 F.3d 443 , 445 - 46 ( 8th Cir . 2001 ); Apex Oil Co. v. Belcher Co . of N.Y., 855 F.2d 1009 , 1020 ( 2d Cir . 1988 ); Baker Indus ., Inc. v. Cerberus Ltd ., 764 F.2d 204 , 211 - 12 ( 3d Cir . 1985 ). 122 . Castellanos Grp. Law Firm , L.L.C. v. Fed. Deposit Ins. Corp. (In re MJS Las Croabas Props. , Inc.) , 545 B.R. 401 , 420 (B.A.P. 1st Cir . 2016 ). In Smith v. Grand Bank & Trust of Florida , 193 F. App 'x 833 (11th Cir . 2006 ), the Eleventh Circuit upheld an award of sanctions “implicitly determined that § 1927 applies to law firms,” id . at 838 . 123. Brignoli , 735 F. Supp . at 102 (quoting 28 U.S.C. § 1927 ( 2012 )). 124 . See id. 125 . Id . 126 . 932 F.2d 1572 ( 11th Cir . 1991 ). 127 . Id. at 1581 . 128. Id . 129 . Id. at 1582 . 130. Id . 131 . Id .; see also Malautea v. Suzuki Motor Co., 987 F.2d 1536 , 1544 ( 11th Cir . 1993 ). 132. Section 1927 , Rule 11, and the courts' inherent power often overlap in scope and Plaintiffs Beware : Rule 11 Vis-à- Vis 28 U.S.C. § 1927 and the Court's Inherent Power, 37 LOY. L.A. L. REV . 645 , 653 ( 2004 ). For example, Rule 11 , § 1927 , and the inherent power all fact and without merit . Id . 133 . 675 F.3d 138 ( 2d Cir . 2012 ). 134 . Id. at 147- 49 . 145 . See , e.g., id. at 148; see also Smith v. Grand Bank & Tr. of Fla ., 193 F. App 'x 833, 838 ( 11th Cir . 2006 ). 146 . See Enmon, 675 F. 3d at 148 (referencing decisions of the Third , Eleventh, and D.C. Circuits) . 147 . 545 B.R. 401 ( B.A.P. 1st Cir. 2016 ). 148. Id. at 419-21. 149. See infra notes 150-60 and accompanying text. 150. See supra Part I.A; see also supra note 28 and accompanying text. 151 . See JOSEPH , supra note 5, § 21(C) (2 ). 152. See BARBARA A. CURRAN ET AL., THE LAWYER STATISTICAL REPORT: A STATISTICAL PROFILE OF THE U.S. LEGAL PROFESSION IN THE 1980S 29 ( 1985 ). Data compiled by the American Bar Foundation indicate that there were 542,205 lawyers admitted to practice in the United States in 1980. Id. at 4 . That same year, roughly 35 percent of all practitioners were affiliated with a law firm . See id. at 29 . 153. See Lawyer Demographics, AM. BAR ASS'N ( 2013 ), http://www.americanbar.org/ content/dam/aba/migrated/marketresearch/PublicDocuments/lawyer_demographics_ 2013 .aut hcheckdam.pdf [https://perma.cc/AC8R-YX5G]. 154. See Wood R. Foster , Jr., Jobs in the Law: A Profession Hits “Pause,” BENCH & BAR OF MINN. (June 3 , 2016 ), http://www.mnbenchbar.com/ 2016 /06/jobs/ [https://perma.cc/ 6FVB-WYGX]. 155. See Lawyer Demographics, supra note 153. 156. Id. 157. See supra note 23 and accompanying text. 158. See Foster, supra note 154. From 2001 to 2015 , the number of attorneys in the United States grew from roughly 1.05 million to 1.3 million, an annual increase of about 1.4 percent. Id. 159. See supra notes 152-58 and accompanying text. 160 . See JOSEPH , supra note 5, § 21(C) (2); see also supra note 28 and accompanying text . 161. See supra notes 152-58 and accompanying text. 162. See supra note 41 and accompanying text (noting the Sixth , Seventh, and Ninth Circuits' resistance to concluding that § 1927 reaches beyond individuals ). 163 . 556 F.3d 389 ( 6th Cir . 2009 ). 164. See supra notes 117-20 and accompanying text. 165. Rentz, 556 F.3d at 403 . 166. See 28 U.S.C. § 1927 ( 2012 ) (defining the scope of the statute as “[a]ny attorney or other person admitted to conduct cases in any court of the United States” ). 167 . FED. R. CIV . P. 11 (c); see also supra Part I.B. 168. Rentz, 556 F.3d at 395-96; see also supra Part I.B . 169 . 602 F.3d 742 ( 6th Cir . 2009 ). 170 . Id. at 751 . 171. 735 F. Supp . 100 (S.D.N .Y. 1990 ). 172 . Id. at 101-02; see also supra notes 117-20 and accompanying text. Brignoli's 545 B.R. 401 , 419 - 21 ( B.A.P. 1st Cir. 2016 ). 173 . See Claiborne v. Wisdom , 414 F.3d 715 , 723 ( 7th Cir . 2005 ) (“No one argues that to practice before the courts . Id . 174 . Id .; see also BDT Prods., Inc. v. Lexmark Int'l, Inc., 602 F.3d at 742 , 751 (6th Cir. 2010 ). 175 . 799 F.3d 1290 ( 9th Cir . 2015 ). 176 . Id. at 1294; see also supra note 169 and accompanying text. 177. This canon of statutory construction, short for expressio unius est exclusio alterius, alternative. Expressio unius est exclusio alterius, BLACK'S LAW DICTIONARY (10th ed. 2014 ). 178 . Kaass Law, 799 F.3d at 1294. 179. See JOSEPH , supra note 5, § 21 ( c )(1) (stating that , unlike Rule 11 , § 1927 does not supra note 5 , § 11 : 59 (“ The language of [§] 1927 is explicit, applying exclusively to an 'attorney or other person admitted to conduct cases .'”). 180 . See DOUGLAS R. RICHMOND ET AL., PROFESSIONAL RESPONSIBILITY IN LITIGATION 45 (2d ed. 2016 ) (“[O]nly a lawyer can be sanctioned for violating [the statute], not a party, and , unlike the vicarious liability that attends Rule 11, not a law firm in which the lawyer practices.”). 181. See supra Part I.A. 182. See supra notes 28-30 and accompanying text. 183 . The statutory language was approved by the Thirteenth Congress on July 22 , 1813 . See Act Concerning Suits and Costs in Courts of the United States , ch. 14, sec. 2 , 3 Stat. 19, 21 ( 1813 ). 184 . Id . This statute and its approval were published in the Public Statutes at Large in 1846. Id. 185 . See Act to Regulate Fees and Costs to be Allowed Clerks, Marshals, and Attorneys of the Circuit and District Courts of the United States, ch . 80 , 10 Stat . 160 , 162 ( 1853 ) ; see also supra notes 31-32 and accompanying text. 186. See supra note 185. 187. See supra note 185 . 188. See United States v. Fisher , 2 Cranch 358, 386 ( 1805 ). 189. See supra note 185. 190. See supra notes 33-39 and accompanying text. 191. See Antitrust Procedural Improvements Act of 1980, sec. 3 , 94 Stat . 1154 , 1156 (codified as amended at 28 U .S.C. § 1927 ( 2012 )). 192 . See 96 CONG . REC. 1347 ( Feb . 8, 1979 ). 193 . See id. at 1344 . 194. See Hearings Before the Subcomm. on Antitrust and Monopoly of the S. Comm . on the Judiciary , 96th Cong. 390 ( 1979 ). 195 . See JOSEPH , supra note 5, § 21(C) (2 ). 196. See supra notes 28-29 and accompanying text. 197. See supra notes 28-29 and accompanying text; see also supra Part I.A. 198. See supra notes 31-32 and accompanying text. 199 . See JOSEPH , supra note 5, § 21(C) (2). 200. See supra Part I.A; see also supra note 39 and accompanying text . 201. See supra notes 152-53 and accompanying text (noting that the national law firm population exceeded 35 ,000 by 1980 ). 202 . See H.R. REP . NO. 96 - 1234 , at 9 ( 1980 ) (Conf. Rep.), as reprinted in 1980 U.S.C.C. A .N. 2781 , 2782 (stating that “the attorney should be required to satisfy personally [the] full range of excess costs attributable to” the conduct that § 1927 seeks to address (emphasis added)) . 203 . Pavelic & LeFlore v . Marvel Entm't Grp ., 489 U.S. 1009 ( 1989 ). 204. See supra notes 50-56 and accompanying text. 205. See supra Part II.B.1 . 206. Congressional silence may be used to support both the majority and minority as a minority argument . 207 . 556 F.3d 389 , 396 ( 6th Cir . 2009 ). 208 . See generally supra Part I.C; see also supra notes 49-59 and accompanying text. 209. Rentz, 556 F.3d at 395-96. 210. Id. at 395-403 . 211 . 414 F.3d 715 ( 2005 ). 212. Id. at 724. 213. See supra note 55 and accompanying text. 214. Claiborne , 414 F. 3d at 723 (citing Pavelic & LeFlore v . Marvel Entm't Grp ., 493 U.S. 120 , 121 ( 1989 )). 215 . See id. Rule 11 was not amended through legislation. Whether a sanctions authority the same result . See supra note 57 and accompanying text. 216. Claiborne, 414 F.3d at 723 . 217. Kaass Law v. Wells Fargo Bank, N.A. , 799 F.3d 1290 , 1295 ( 9th Cir . 2015 ). 218 . Id. at 1292 . 219. See FED. R. CIV. P. 8 (prescribing the general rules of pleading in federal court ). 220. Kaass Law, 799 F.3d at 1292. 221. Id. 222. Id. 223. Id . 224 . See , e.g., Claiborne v . Wisdom , 414 F.3d 715 , 722 - 23 ( 7th Cir . 2005 ); see also Kaass Law , 799 F.3d at 1294-95 . 225 . See Avirgan v. Hull , 932 F.2d 1572 , 1582 ( 11th Cir . 1991 ). 226 . Claiborne , 414 F.3d at 722 -23 (discussing the Eleventh Circuit's misapplication of liability under § 1927 but, rather, liability under the court's inherent power to sanction ). 227. Kaass Law, 799 F.3d at 1294 . 228. Id .; see also Claiborne, 414 F.3d at 722 . 229. See , e.g., LaPrade v. Kidder Peabody & Co., 146 F. 3d 899 (D.C. Cir . 1998 ). 230 . See , e.g., Baker Indus ., Inc. v. Cerberus Ltd., 764 F.2d 204 ( 3d Cir . 1985 ). 231. See supra Part II.A.2 . 232. See supra note 17 and accompanying text (identifying § 1927's application to law firm conduct as a matter of law ). 233 . Enmon v. Prospect Capital Corp., 675 F.3d 138 ( 2d Cir . 2012 ). 234 . Kaass Law v. Wells Fargo Bank, N.A. , 799 F.3d 1290 , 1294 - 95 ( 9th Cir . 2015 ). 235 . Enmon , 675 F.3d at 148. 236. Kaass Law , 799 F.3d at 1295; see also Brief for Appellant at 49, Enmon, 675 F. 3d 138 (No. 10-2811-cv) , 2010 WL 4715535. 237 . Claiborne v. Wisdom , 414 F.3d 715 , 723 ( 7th Cir . 2005 ). 238 . 914 F.2d 525 ( 4th Cir . 1990 ). 239 . Id. at 549 (“[W]e are doubtful that [§ 1927 and other sanctions authorities] support improperly.”). 240 . Id . It should be noted, however, that Blue was decided prior to the adoption of the 1993 amendments to Rule 11, which expressly authorized sanctions against law firms . See supra notes 49-60 and accompanying text. 241 . See COMM'N ON REVISION OF THE FED . COURT APPELLATE SYS ., supra note 104 , at 206- 07 . 242 . Id. at 207. 243. See supra Parts II.A-B. 244. See supra Part II.A. 245. See supra Part II.B. 246. See supra notes 184-202 and accompanying text. 247 . See 28 U.S.C. § 1927 ( 2012 ) ; see also supra note 17 and accompanying text . 248. See supra note 95 and accompanying text. 249. See supra notes 28-33 and accompanying text. 250. See supra Part II.B.3. 251. See supra notes 54-56 and accompanying text. 252. See supra notes 55-56 and accompanying text. 253. See supra notes 57-60 and accompanying text. 254. See generally supra notes 117-20 and accompanying text. 255 . See , e.g., Brignoli v . Balch Hardy & Scheinman , Inc., 735 F. Supp . 100 , 101 - 02 (S.D.N .Y. 1990 ) (stating that the phrase “those entities who 'conduct cases'” connotes “a Law Firm v. Fed. Deposit Ins . Corp. (In re MJS Las Croabas Props ., Inc.) , 545 B.R. 401 , 420 - 21 (B.A.P. 1st Cir . 2016 ). 256. See supra note 247 and accompanying text. 257 . RUPERT CROSS , STATUTORY INTERPRETATION 138-39 (John Bell & George Angle eds., 3d ed. 1995 ) (discussing noscitur a sociis as a popular canon of statutory construction). 258. See Noscitur a sociis, BLACK'S LAW DICTIONARY (10th ed. 2014 ) (“A canon of by the words immediately surrounding it ”). 259 . See , e.g., William N. Eskridge , Jr. & Philip P. Frickey , Statutory Interpretation as Practical Reasoning , 42 STAN. L. REV. 321 , 344 n. 91 ( 1990 ) (noting that the “maxim” of surrounding them”). 260. See supra notes 163-78 and accompanying text. 261 . See 28 U.S.C. § 1927 ( 2012 ) (identifying those who may be sanctioned as “[a]ny Territory thereof”) . 262 . See Claiborne v. Wisdom , 414 F.3d 715 , 723 ( 7th Cir . 2005 ) ; see also supra Part II .B. 1 . In Claiborne, 414 F. 3d at 723, the Seventh Circuit also acknowledged that certain vested only in individuals, not entities . 263. See generally supra Part II.A. 264. See generally supra Part II.A. 265. This is precisely the issue that brought about the 1993 amendments to Rule 11 . See generally supra Part I.B . 266 . See generally supra Part I.C. 267 . See 28 U.S.C. § 1927 ( 2012 ) ; see also supra Part I.A; supra notes 84, 91 and accompanying text. 268 . See , e.g., Avirgan v . Hull , 932 F.2d 1572 , 1582 ( 11th Cir . 1991 ) (stating that, pursuant faith has both an objective and subjective meaning under § 1927, and thus reckless and intentional conduct are equally actionable under the statutory scheme . See In re TCI, Ltd., 769 F. 2d 441 , 445 ( 7th Cir . 1985 ) ; see also Mach v . Will Cty. Sheriff , 580 F.3d 495 , 501 (7th Cir. 2009 ) (stating that, within the context of § 1927, bad faith “has both a subjective and objective behavior that constitutes bad faith. See Chambers v . NASCO, Inc., 501 U.S. 32 , 45 ( 1991 ). 269 . Cf . Sheehan v. United States , 896 F.2d 1168 , 1172 ( 9th Cir . 1990 ) (concluding that statute”); Grider v. Tex. Oil & Gas Corp., 868 F.2d 1147 , 1150 ( 10th Cir . 1989 ) (“[I]t is up to v. First Commodity Corp. of Bos., 793 F.2d 28 , 31 n. 2 ( 1st Cir . 1986 ) (holding that “it is up to Congress , and not the courts, to expand the scope of [a] statute”). 270. See generally FDA v . Brown & Williamson Tobacco Corp., 529 U.S. 120 ( 2000 ). 271. See supra notes 102-04 and accompanying text. 272. See supra notes 264-70 and accompanying text. 273. See supra notes 49-56 and accompanying text. 274. See supra notes 49-56 and accompanying text. 275 . See Pavelic & LeFlore v . Marvel Entm't Grp ., 493 U.S. 120 , 126 - 27 ( 1989 ) ; see also supra notes 54-56 and accompanying text. 276. Pavelic , 493 U.S. at 123 (emphasis added). 277. Id. at 123-25. 278. See supra note 57 and accompanying text. 279. See supra notes 49-60 and accompanying text. 280. Pavelic , 493 U.S. at 126- 27 . 281 . Id. at 128- 29 (Marshall, J., dissenting) . 282. See generally supra Part I.A; see also supra notes 184-87 and accompanying text. 283. See generally supra Part II.B. 284. See supra Part II.B.1. 285. See generally supra Part II.B.1. 286. See supra notes 177-78 and accompanying text. 287. See supra notes 258-59 and accompanying text. 288 . The plain meaning rule stems from the idea that “courts are subordinate policymakers, Legislative History Values , 66 CHI. -KENT L. REV . 365 , 404 ( 1990 ). Thus, the judiciary is L. Fuller , The Case of the Speluncean Explorers , 62 HARV. L. REV. 616 , 633 ( 1949 )). 289 . See supra Part II.A.3 . 290. See , e.g., WILLIAM N. ESKRIDGE, JR . ET AL., LEGISLATION AND STATUTORY INTERPRETATION 249 (2d ed. 2006 ). When a theory of statutory interpretation is based on a linear , and deductive. ” Id. 291. See supra Part II.A.3 . 292. Cf . Elliot Coal Mining Co. v. Dir., Office of Workers' Comp. Programs, 17 F.3d 616 , 631 ( 3d Cir . 1994 ) (stating that grammatical rules are not the only resources available to courts when interpreting legislative enactments) . 293 . The mischief rule was expounded in the sixteenth century by Lord Coke. Heydon's Case (1584) 76 Eng. Rep . 637 , 638; see also Elliot Coal, 17 F.3d at 631. 294. See Heydon's Case, 76 Eng. Rep. at 638; see also Elliot Coal , 17 F.3d at 631; supra notes 139-42 and accompanying text. 295. Cf. Heydon's Case, 76 Eng. Rep. at 638-39 . 296 . See , e.g., Enmon v . Prospect Capital Corp., 675 F.3d 138 , 147 - 48 ( 2d Cir . 2012 ) ; see Inc.), 545 B.R. 401 , 419 - 22 ( B.A.P. 1st Cir. 2016 ). 297. See generally supra Part II.A.1. 298. See 26 ANNALS OF CONG . 29 ( 1813 ) ; see also JOSEPH, supra note 5 , § 20 . 299. See Janet Eve Josselyn, Note, The Song of the Sirens-Sanctioning Lawyers Under 28 U.S .C. § 1927 , 31 B.C. L. REV . 477 , 477 - 78 ( 1990 ) ; see also supra notes 29-32 and accompanying text. 300. See supra notes 165-69 , 173 - 78 and accompanying text. 301. See 1 STEPHEN E. ARTHUR & ROBERT S. HUNTER , FEDERAL TRIAL HANDBOOK CIVIL § 10 : 20 ( 2012 ). 302. See supra note 142 and accompanying text. 303. See supra notes 20-24 , 149 - 161 and accompanying text. 304. Pavelic & LeFlore v . Marvel Entm't Grp ., 493 U.S. 120 , 127 ( 1989 ). 305. See supra notes 57-59 and accompanying text. 306. See supra notes 59-60 and accompanying text. 307. See supra note 59 and accompanying text. 308. See supra notes 289-91 and accompanying text. 309 . See Claiborne v. Wisdom , 414 F.3d 715 , 722 - 24 ( 7th Cir . 2005 ). 310 . See Kaass Law v. Wells Fargo Bank, N.A. , 799 F.3d 1290 , 1295 ( 9th Cir . 2015 ). 311 . See ESKRIDGE ET AL., supra note 290 , at 231-45 (describing the textualist theory of statutory interpretation) . 312 . See , e.g., Claiborne, 414 F.3d at 724.


This is a preview of a remote PDF: https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=5430&context=flr

Vincent J. Margiotta. Affirming Firm Sanctions: The Authority to Sanction Law Firms Under 28 U.S.C. § 1927, Fordham Law Review, 2017,