The following is Stephen C. Yeazell's et al. coverage of the Rule 11 violation perpetrated by the Scientology organization's notorious Helena Kobrin. The relevant 4 pages (out of the overall publication of 493 pages -- some 0.811%) is quoted under Fair Use doctrine.

Finding a copy of the 1995 work was difficult. Almost all of the used book stores I contacted didn't have a copy however four of the Internet-online used book stores I talked with indicated that every copy of the 1995 book they had had in stock had been purchased in a single order within the last 30 days. The interest expressed in a.r.s about finding a copy seems to have caused RTC et al. to try to find every extant copy and then buy them up.

Penciled into this book is the note "Obvious Scientology collusion"

in the section which talks about how Scientology, Moxon et al. was able to narrowly escape equal sanctions doled out to Kobrin simply because they weren't signatory to this particular frivolous claim.

For widest possible dissemination -- Fredric L. Rice, March 28, 2001
1995 Federal Rules of Civil Procedure With Selected Statutes and Cases Stephen C. Yeazell Jonathan M. Landers James A. Martin Little, Brown and Company ISBN 0-316-96728-9
Page 401 PLEADING --- V C. Pleading Under the Federal Rules 2. Ethical Limitations and Disfavored Claims a. Ethical Principles as a Limitation Pages 399-405. Replace "Notes and Problems," with:

In 1993 Rule 11 was amended, so that the provisions construed by the Business Guides Court have changed in several ways, but many of the problems presented by the case's facts remain. Most fundamentally the substantive standards -- what constitutes improper behavior -- have remained constant. The changed, some quite important, will affect parties' incentive to invoke the Rule and the Likelihood that courts will enforce it if they do.

The next case illustrates a district court applying the new Rule.

Gerbode v. Religious Technology Center [aka Scientology et al. - flr] --- 1994 U.S. Dist. LEXIS 6432 (C.D. Cal. 1994) A. Wallace Tashima, Judge This case is the continuation of long-standing and acrimonious litigation between plaintiff Religious Technology Center (RTC) and defendants David Mayo, Julie Mayo, and the Church of the New Civilization. Plaintiffs allege that defendants violated the Racketeer Influenced And Corrupt Organization ACT (RICO,) 18 U.S.C.

[Section] 1961 et seq., by engaging in acts of mail fraud and wire fraud in connection with the formation and operating of purportedly non-profit corporations....

Defendants new seek attorneys' fees from plaintiffs and their attorneys Bowles & Moxon, and Cooley, Manion, Moore & Jones in the amount of $80,030 for having to defend against this action. The motion is based on F.R.Civ.P. 11, 28, U.S.C. [Section] 1927 and on the court's inherent powers. In this case, the court concludes that proceeding under either [Section] 1927 or its inherent powers adds nothing to Page 402 the outcome of the motion. Therefore, this motion shall be treated as a motion made under Rule 11. [2]...

[2] Moreover, the court finds that defendants have not established the "bad faith" component required for the imposition of sanctions under either [Section] 1927 or the court's inherent powers.

Plaintiffs first contend that the motion should not be considered because it was filed in violation of the "safe harbor"

provision of the amended rule. Rule 11(c)(1)(A) now provides that a motion for sanctions under the rule shall not be filed until 21 days after it is served on opposing counsel and the challenged paper "is not withdrawn or appropriately corrected."

It would not be "practicable" to require compliance with the "safe harbor" provision in this case. [6] Amended Rule 11 became effective on the same date that this action was dismissed. Thus, it would be futile to now require defendants to comply with the "safe harbor" provisions.

[6] It would appear to be problematical to comply with the "safe harbor" provision in any case involving a challenge to a complaint. Even if the frivolousness is immediately apparent on the face of the pleading at the time of service, does service of a mention for sanctions under Rule 11 toll the 2-day period to answer under Rule 12(a)(1)(A)? If not, what purpose does compliance with the "safe harbor" provision serve if the complaint must be responded to before the 21-day waiting period expires?

If the frivolousness is not immediately apparent and the Rule 11 motion is not made until after the complaint is dismissed, what useful purpose is served by compliance with the "safe harbor" provision at that point?

Certainly, by that juncture, it is too late for the complaint to be "withdrawn or appropriately corrected."

II. Merits...

[B]y the time the amended complaint was filed, [,the leading case on the legal question presented,] was "established law" which reasonable inquiry (i.e., basic legal research) would have disclosed. This RICO complaint does not pass muster under Rule 11(b)(2) that the claims be "warranted by existing law." [8] Neither is any "non-frivolous argument" made "for the extension, modification, or reversal of existing law" in support of plaintiffs' RICO theory. No logical argument does or can support plaintiffs' contention that the creation of fraudulent tax-exempt organizations for the purpose of evading income taxes proximately caused plaintiffs' injury in having to defend the ... litigation.

The claims are frivolous. [9] Alleging the RICO claims in the amended complaint was objectively unreasonable under the circumstances.

[8] This substantive standard under Rule 11(b)(2) remains from the pre-amendment version in effect at the time the amended complaint was filed.

[9] Because the court finds the amended complaint to be sanctionable as frivolous, under Rule 11(b)(2), it does not need to explore the defendants' further contention that it was filed for an improper purpose in violation of Rule 11(b)(1).

III. Appropriate Sanctions A. Nature and Amount of Sanctions Both amended Rule 11(c)(2) and the Advisory Committee's Notes which accompany the December 1, 1993, amendment indicate that attorney's fees Page 403 should not automatically be imposed for a Rule 11 violation and that the court should explore the adequacy of non-monetary sanctions as an effective deterrent. However, the rule authorized the award of attorney's fees if "warranted for effective deterrence."

Here, because of the long and acrimonious history of repeated litigation between these parties, the court finds that a partial award of attorney's fees is necessary as a deterrent to the bringing of further frivolous actions. Further, because the case has been concluded by the dismissal of the amended complaint, other sanctions, which might be effective in the context of ongoing litigation, are unavailable. Because only partial fees are being awarded, as authorized by Rule 11(c)(2), the court also imposes a monetary penalty to be paid to the court as an additional deterrent equal to the portion of reasonable fees not awarded to defendants.

Defendants seek attorney's fees in the amount of $80,030. The hours on which this amount is based, however, include all hours expended in defending against this case in its entirety. Attorney Helena K. Kobrin, who signed the amended complaint, and her law form Bowles & Moxon, did not associate in as counsel of record until April 19, 1993, when this action was transferred to this district.... Attorney Kobrin and Bowels & Moxon cannot be held responsible for the costs of defending the action before they became attorneys of record for plaintiffs....

Rule 11(c)(1)(A) now makes it discretionary with the court as to whether or not to award attorney's fees to the prevailing party "incurred in presenting or opposing the motion." The rule does not require the presence of any exceptional circumstances for the award of such fees, but only that the award be "warranted." Again, because of the long-standing and acrimonious litigation between the parties, the court finds that the award of fees for the preparation of Rule 11 motion is warranted in this case.

In calculating the reasonable fees in this case, the court employs the lodestar method. Commencing with their first telephone conference on October 12, 1993, to discuss the amended complaint, defense counsel incurred, respectively, a total of 47.1 hours (for Mr. Fagelbaum) and 39.3 hours (for Mr. Bright,) plus an additional 49.2 hours of a law clerk's time, to the conclusion of the case, including work on the pending motion. The court finds these hours to be reasonable.

Defendants seek an award based on an hourly rate of $255 for the work of Jorold Fagelbaum. While the court agrees that this rate is well within the range of fees charged by competent attorneys in the community for similar work, for this case, the court finds that it is somewhat inflated. Mr. Fagelbaum has represented the same parties in the related litigation. He is very familiar with the context of this litigation. The work in this case and on this motion was not unusual or complex. The court finds that an hourly rate of $200 is a reasonable hourly rate for Mr. Fagelbaum's work, especially when compared to the rate awarded below for the work of Mr. Bright....

[The court went on to examine the hourly rates charged by another lawyer and a law clerk, and found that the defendant has reasonably expended $17,775.00 in legal fees.] Page 404 The court awards to the defendants as a sanction under Rule 11 and in partial reimbursement of the costs they incurred in defending against the frivolous amended complaint one-half of the lodestar amount, or $8,887.50. A like amount is assessed as a monetary penalty and shall be payable to the Clerk of the Court.

B. Persons to Be Sanctioned Amended Rule 11(c)(2)(A) now prohibits the imposition of monetary sanctions on a represented party, such as the RTC, for a violation of Rule 11(b)(2). [13] Therefore, to the extent sanctions are sought against plaintiff RTC, the motion must be denied.

[13] This amendment restricts the scope of Business Guides, Inc. v. Chromatic Communications Enter, Inc., 498 U.S. 533 (1991.)

However, as amended Rule 11(c) now authorizes sanctions to be imposed on law firms, as well as the particular attorney who signs the offending pleading. [14] More specifically, Rule 11(c)(1)(A) goes on to provide that "Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees."

There are no such "exceptional circumstances" here....

The motion also seeks sanctions against the law firm Cooley, Manion, Moore & Jones, P. C. That law firm, as well as the law firm of Wilson, Ryan & Campilongo, along with Bowles & Moxon, appears as counsel of record for plaintiffs on the amended complaint. However, it was attorney Kobrin of Bowels & Moxon who signed the complaint.

Rule 11(c) provides that the court may "impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation." While this language, standing alone, does not clearly indicate that the rule is intended to catch within its sweep a co-counsel law firm which did not actually sign the offending pleading, the Advisory Committee's Notes do provide some clarification[:] The revision permits the court to consider whether other attorneys in the firm, co-counsel, other law firms, or the party itself should be held accountable for their part in causing a violation.

It, thus, appears that the court has the authority to sanction a co-counsel law firm, as well as the primary offending firm, even though co-counsel did not sign the offending pleading. In order to do so, however, the record must show that firm's culpability -- in the Committee's words, evidence of its "part in causing a violation." Here, the court finds that the record is insufficient to establish that any law firm besides Bowels & Moxon was responsible for the drafting and filing of the amended complaint. Therefore, the motion will be denied as against Cooley, Manion, Moore &

Jones....

--- Fred's comments: Note the two largest points of massive irony:

1) The Scientology organization is alleging tax evasion -- something that L. Ron Hubbard specifically adopted the trappings of religion for as evidenced in a letter to his wife and further covered in affidavits from parties who were partially responsible for implementing the tax fraud.

2) The Scientology organization wants RICO to be applied -- while being constantly under the Sword of Damocles themselves, only avoiding the review of Federal Grand Juries through their well-known racketeering activities which requires a Congressional Grant to wade through (Lt.

Ray Emmons covers the monetary and manpower requirements needed.)

Also, there have been at least 30 or 40 frivolous DMCA complaints served on a large number of Internet Service Providers which, if Human Rights activists and Freedom of Speech activists decided to defend, could net the signatories to these frivolous complaints such sanctions under Rule 11. I would have to think that after a large number of such frivolous complaints, a judge would eventually decide that the monetary sanctions applied as yet haven't been an "effective deterrent," eventually leading the judge to "explore the adequacy of non-monetary sanctions" -- prison time for the lawyers, perhaps, for these repeated abuses.

DMCA complaints are extra-legal however when opposed they can cost time and money to counter -- which is the Scientology organization's primary reason to issue such complaints. When Fair Use doctrine is applied, and where public court records are an issue, and where the Scientology organization has no property rights, DMCA complaints are likely frivolous, I have to think. Likewise when the Scientology organization makes a claim that the use of a Trademark is somehow in violation, being lawyers means that they must certainly be aware of U.S.C Title 15, Section 1125 ( http://www4.law.cornell.edu/uscode/15/1125.html ) which covers the allowed usage of Trademarks and that their many complaints are obviously frivolous.

Action item: Every complaint issued by the Scientology organization should be saved and forwarded to a central point for dissemination and for filings in future criminal and/or civil cases so that a pattern of frivolous complaints can be alleged, and to provide the needed evidence trail required to successfully apply Rule 11 to the offending lawyers. I think that the Lisa McPherson Trust would be the most logical clearing house for the collection and distribution of such a collection.

--- Send information concerning incidents of racketeering and terrorism by the Scientology cult to the Domestic Terrorism Task Force at norfolk@fbi.gov http://www.skeptictank.org/ For psychological assistance check: http://www.shrinktank.com/

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