In Dewey v. Volkswagen, the parties negotiated and the district court approved a settlement that violates Supreme Court and Third Circuit precedent, which makes reversal likely. What’s a class counsel to do? Make up new precedent! After talking the clerk’s office into letting them include a sur-reply to the lead appeal’s reply brief in their cross-appeal’s reply brief, class counsel invented a quote in a recent Third Circuit en banc decision that, if accurate, would have all but dictated affirmance in this case.
We noticed the fictional quote, which required literary creativity rather than mere mistyping, and invited class counsel to do the honorable thing and withdraw the brief. Remarkably, they refused, so we have moved for sanctions, given class counsel’s previous misrepresentations in the case and the evidence of bad faith in this particular misquote. (I’d be curious to see what Matthew Butterick thinks of the typographical smoking gun, identified on page 5 of our brief.)