Golden Eagle Distributing Corporation v. Burroughs Corporation, and Appeal of Kirkland & Ellis

This case is not ordinary in the attention with which it has been watched by the profession. Judge Sehwarzer has written a leading article on Rule 11, “Sanctions Under the New Federal Rule 11 — A Closer Look,” 104 F.R.D. 181 (1985). Beyond the normal respect to be accorded the actions of a district judge, acknowledgment is owed to a pioneer authority on the Rule. We should also take into account that dis trict courts, more than appellate courts, are plagued by misrepresentations. We face them on occasion, but common report has it that some trial lawyers are much less scrupulous with trial judges, who do not have the staff or time an appellate tribunal has to unmask misrepresentation. When an outstanding district judge has said, “Enough. I’ll deal with misrepresentation under Rule 11,” this court should at least have responded to what he has actually done.

Denial of rehearing en banc does not foreclose the opportunity to point out where the opinion distorts what the district court did, to underline certain difficulties the opinion creates, and finally to point out alternative avenues that the opinion does not cut off.

I. Distortions

First. The opinion imposes upon the analysis…