Month: November 2020

Major League Baseball Wins Sanctions Against Supplement Maker


In DNA Sports Performance Lab, Inc. v. Major League Baseball, No. C20-00546 (N.D. California October 27, 2020), the district court awarded Rule 11 sanctions against DNA Sports for filing what it described as a “baseless” complaint against Major League Baseball. DNA markets certain supplements which have been banned by Major League Baseball and its players’ union. The district court found that the complaint was baseless and awarded Rule 11 sanctions. This plaintiff in the case, in my opinion, has pursued this type of litigation against Major League Baseball and its union. long after it was clear that the litigation was without merit and without basis in fact.

This is the description of the prior history of lawsuit between DNA Sports and Major League Baseball

“As detailed in the league’s motion for sanctions, DNA Sports and its attorneys have pursued the league, well before the instant suit, for the past nine years (Dkt. No. 42 at 4-5). Our tale begins with an October 2012 shakedown letter. Following two league investigations into DNA Sports’ former business venture, DNA Sports sent the letter accusing the league of character defamation, alleged $30,000,000 in damages, and threatened to sue unless the league promptly paid $6,000,000. DNA Sports, though, conceded that its products contained a banned substance under the Joint Drug Prevention and Treatment Program (Dkt. 42-2, Exh. A at 3).

In 2013, the league launched another investigation into the illegal sale of performance-enhancing drugs to players. Investigators targeted “anti-aging” clinics in Florida, including DNA Sports (Dkt. No. 19 at 5; Compl. ¶¶ 19-20).

In February 2014, DNA Sports sued the league in Florida state court, challenging the league’s investigation as unfair and discriminatory. But plaintiff missed several case management conferences and failed to perfect service until October, resulting in a November 2014 dismissal for failure to prosecute. Nix and DNA Sports Performance Lab, Inc. v. Major League Baseball, etc., et al., No. 3D14-2967, 2015 WL 1930327 (Fla. 3d Dist. Ct. App. Apr. 27, 2015).

In July 2016, following the league’s rejection of another letter, this time demanding $40,000,000, DNA Sports sued the Office of the Commissioner of Baseball and several league employees in the Southern District of New York challenging the same league investigation, alleging tortious interference with prospective economic advantage (Dkt. 42-2, Exh. D). After a pre-motion conference to discuss the league’s intent to file motions for dismissal under Rule 12(b)(1) and for sanctions, DNA Sports voluntarily dismissed that action in November 2016. Nix and DNA Sports Performance Lab, Inc. v. Office of Comm’r of Baseball, No. 16-CV-5604 (S.D.N.Y. July 14, 2016).

In late November 2016, less than a month after the dismissal, DNA Sports sued the league, the commissioner, and several league employees in New York state court for hacking DNA Sports’ social media accounts, tortious interference with economic advantage, and defamation of Nix — all in the course of the league investigation. Defendants removed to federal district court based on the hacking claim. Rather than move to remand or amend its complaint to satisfy federal pleading standards, DNA Sports voluntarily dismissed its federal hacking claim and proceeded with the state suit. The New York state court then dismissed the complaint in June 2018 as res judicata under FRCP 41’s two-dismissal rule, barred by statute of limitations issues, and for failure to state a claim. In December 2018, the state court denied DNA Sports’ motion to reargue the dismissal as frivolous and imposed attorney’s fees against DNA Sports and its counsel — fees which remained outstanding as of briefing here. Nix and DNA Sports Performance Lab, Inc. v. Major League Baseball, et al., No. 159953/2016, 2018 WL 2739433 (N.Y. Sup. Ct. June 7, 2018).

In April 2018, while litigating the third action, Neiman Nix — acting pro se — sued Kobre & Kim LLP and three attorneys (the league’s counsel), several MLB coaches and general managers, and over a dozen MLB clubs in Florida state court, alleging RICO, trade secret, and computer abuse violations. In December 2018, Mr. Nix voluntarily dismissed claims against the majority of the baseball clubs as well as Kobre & Kim and its lawyers. The action currently remains pending, however, against two remaining clubs and league personnel. Nix v. Luhnow, et al., No. 2018CA003920 (15th Fla. Cir. Ct., Palm Beach Cnty.).

In January 2019, DNA Sports sued the Office of the Commissioner of Baseball, current and former MLB commissioners, and several MLB employees in Florida state court for unlawful hacking and computer abuse violations in the course of the 2013 MLB investigation. After DNA Sports amended its complaint in response to a motion to dismiss, the court dismissed the claims against the commissioners but allowed DNA Sports to proceed with the remaining claims. Though that case pertained to the leagues’ alleged hacking of DNA Sports’ social media accounts during the 2013 investigation, DNA Sports sought discovery on the league’s stance and communications regarding IGF-1. Neiman Nix and DNA Sports Performance Lab, Inc. v. Major League Baseball, et al., No. 2019CA002611 (11th Fla. Cir. Ct., Miami-Dade Cnty.).

In March 2018, DNA Sports also sued ESPN, the Associated Press, and USA Today in the Southern District of Florida in March 2018, alleging that each had defamed plaintiffs by publishing or republishing a statement from the league that DNA Sports’ July 2016 tortious interference lawsuit “admit[ed] Nix and his company used bioidentical insulin-like growth factor (IGF-1), which is derived from elk antlers and is on baseball’s list of banned substances.” Nix and DNA Sports Performance Lab, Inc. v. ESPN, Inc., et al., No. 1:18-CV-22208-UU, 2018 WL 8802885, at *1-2 (S.D. Fla. Aug. 30, 2018). Plaintiff called the statement defamatory because it did not differentiate between natural and synthetic IGF-1, giving readers the impression that DNA Sports had engaged in illegal or legal-but-banned drug sales. The Southern District of Florida, however, held that the statement at issue was substantially correct and the omission did not render the report untrue, thus it was not defamatory. The district court dismissed the complaint with prejudice in August 2018. The Eleventh Circuit affirmed, ruling that league regulations banned all forms of IGF-1 — whether synthetic or natural. Nix and DNA Sports Performance Lab, Inc. v. ESPN, Inc., et al., 772 Fed. Appx. 807, 814 (11th Cir. 2019).

The instant action descends from the March 2018 suit. After the Eleventh Circuit’s decision, DNA Sports began to investigate the presence of natural IGF-1 in animal-derived protein products. Specifically, DNA Sports “consulted with several experts” about whether whey-protein products endorsed by the league would contain natural IGF-1 (allegedly, they would) (Reich Decl., Dkt. No. 31-1 at ¶¶ 9-10). DNA Sports did not test these products for IGF-1 but instead relied on what it and its experts deemed “common sense” (id. at ¶ 11; Opp. Br., Dkt. No. 46 at ¶ 6).

In June 2019, DNA Sports’ current attorney, Lance Reich, contacted the league’s general counsel inquiring about “the unfair competition and conduct by [the league] in maligning [DNA Sports] in public for selling products containing natural IGF-1” while the league and the union endorsed and profited “from the sale of other nutritional products that contain[ed] natural IGF-1.” As DNA Sports admits, Reich demanded that the league “cease its sponsorship and partnerships with all companies and entities that sell natural protein products that contain natural IGF-1,” and “publicly announce that all nutritional supplement products that contain natural IGF-1 are banned performance-enhancing substances,” or face a new suit (Reich Decl., Dkt. 31-1 at ¶ 12 & Exh. A). The league refused.”

The reasoning:

“

This order finds DNA Sports’ complaint baseless. That, along with finding Reich failed to conduct an adequate investigation, supports Rule 11 sanctions. And, such baselessness in addition to bad faith supports inherent authority sanction of DNA Sports itself.

First, this order finds DNA Sports’ complaint baseless. A prior order found glaring holes in the allegations against the union (Dkt. No. 53). Exhausted of defamation and other tort claims, plaintiffs sought relief under inapplicable statutes. To allege Lanham Act violations, plaintiffs must show that defendants made a false statement of fact in a commercial advertisement about its own or another’s product, that the statement actually and materially deceived its audience, and that plaintiff has been or is likely to be injured as a result of the false statement in the form of diverted sales or loss of goodwill. Southland Sod Farms v. Stover Seed Co. Eyeglasses, 108 F.3d 1134, 1139 (9th Cir. 1997). False advertising claims brought under state law require showing that defendants participated in or had control over the untrue or misleading advertisements. In re First Alliance Mortg. Co., 471 F.3d 977, 995-96 (9th Cir. 2006). Yet, DNA Sports admit that their products contain naturally-occurring IGF-1. They concede that the league and the union have banned IGF-1 in its natural and synthetic forms under their Joint Drug Prevention and Treatment Program. And they acknowledge that NSF International, an independent product-testing organization, certifies products as “safe for sport” after testing for banned substances enumerated in the drug program (Compl. at ¶¶ 8, 18, 29). So, DNA Sports brought false advertising and unfair competition claims, contesting the “certified for sport” declaration on several products that allegedly contained IGF-1, without ensuring they sued the right defendants (i.e., that defendants made, caused, or induced the allegedly false statement), showing requisite harm (i.e., that plaintiffs suffered injuries like diverted sales or loss of goodwill), or requesting appropriate relief (i.e., courts cannot enjoin action that has already ceased on its own accord) (Dkt. No. 53). Such baselessness supports an inference of improper motive. See Townsend, 929 F.2d at 1365.

The league’s prior motion for sanctions would have been granted for similar reasons. The majority of DNA Sports’ complaint rehashed prior suits against the league and relied on conclusory statements to baselessly allege Lanham Act, false advertising, and unfair competition claims. The complaint recapitulated the misdeeds of the league’s investigations that inspired DNA Sports’ February 2015, July 2016, November 2016, and January 2019 suits which were all settled by prior rulings (Compl. at ¶¶ 15, 19-20). It then invoked the press release that was the subject of the March 2018 suit to maintain that though it is true DNA Sports’ supplements contain banned IGF-1, the league publicly maligned plaintiffs and “essentially bann[ed] [them] from ever working again in any” league-related capacity (Id. at ¶ 24). This after admitting that DNA Sports never sold its supplements to league players on account of a non-competition agreement (Id. at ¶ 18). Finally, DNA Sports alleges that league players and coaches consume products with IGF-1 and have never been disciplined and several league-endorsed products that compete with DNA Sports contain IGF-1. All this lending itself to false advertising and unfair competition.

Recall that these claims require, among others, both a false statement and harm, such as lost goodwill or diverted sales. See Southland, 108 F.3d at 1139; First Alliance, 471 F.3d at 995-96. Yet DNA Sports’ complaint failed to show how the targeted products (the league-licensed Gatorade “Recover” whey protein bars, Cytosport Muscle Milk protein shakes, and Eyepromise nutritional supplements) compete with DNA Sports’ own products, which cost hundreds of dollars more and contain a banned substance. Further, plaintiffs failed to show how the use of the logo or the press release — the alleged commercial speech here — diverted sales from DNA Sports to these specific products and how this speech was false. Without these elements, their allegations against the league are baseless.

Second, given the obvious pitfalls in DNA Sports’ complaint, this order finds Attorney Reich failed to reasonably investigate these claims. To assess whether an attorney has conducted an adequate pre-filing investigation, courts must consider factual questions regarding the nature of the inquiry and must determine whether the legal issues raised were warranted. Cooter & Gell, 496 U.S. at 399. DNA Sports and Attorney Reich alleged that they “consulted with several experts” about whether whey-protein products endorsed by the league would contain natural IGF-1 (allegedly, they would) (Reich Decl. at ¶¶ 9-10). DNA Sports did not test these products for IGF-1 but instead relied on what it and its experts deemed “common sense” to determine that all these certified for sport products contained IGF-1 (id.at ¶ 11; Opp. Br. at ¶ 6). Beyond this, a cursory investigation into Lanham Act, false advertising, and unfair competition claims would have revealed the commercial speaker, material-deception, and injury elements which could have saved DNA Sports’ complaint or at least, saved the league and the union the trouble of motion practice. Attorney Reich failed in this regard.

Third, this order finds DNA Sports filed its complaint to harass the league and the union. DNA Sports’ history of litigation demonstrates both that this suit is brought in bad faith to vex and that dismissal alone will not dissuade DNA Sports from trying again. Though this is only the first suit against the union, it is the sixth suit arising out of the same original circumstances against the league. As detailed in the prior order, prior dismissals and sanctions have not tempered DNA Sports’ vendetta against the league. It has repeatedly dismissed its cases against the league and companies, either voluntarily or in response to court orders. Yet, true to its reliable pattern, after dismissal, DNA Sports has simply developed a different theory in a different court based on the same facts and continued its pursuit of the league. In 2018, after several these dismissals, a New York state court imposed monetary sanctions on DNA Sports and its previous counsel for frivolous and harassing conduct against the league. Nix and DNA Sports Performance Lab, Inc. v. Major League Baseball, et al., No. 159953/2016, 2018 WL 2739433 (N.Y. Sup. Ct. June 7, 2018). As DNA Sports’ litigation history demonstrates, however, these sanctions have not fazed DNA Sports. Rather, it has continued to sue the league, affiliated entities, and now the union, this despite outstanding monetary sanctions for troublesome lawyering. Considering this prior misconduct, dismissal alone will not deter DNA Sports from filing further baseless and harassing suits.

Indeed DNA Sports and Attorney Reich refuse to dismiss outstanding cases against the league, proving that DNA Sports does not intend to change its course of conduct. After the August 1 order, the league offered to withdraw its motion for sanctions “if Plaintiffs [would] dismiss with prejudice all outstanding litigation against the MLB defendants and agree to bring no further litigation against the MLB defendants” (Dkt. No. 60 at 14). Although plaintiffs dismissed the instant action with prejudice, DNA Sports still has outstanding litigation against some of the league’s clubs and commissioner. These remain intact despite the league’s offer to withdraw their sanctions motion entirely.

Given DNA Sports’ persistence, it may be that no amount of sanctions will deter it from continuing its crusade. The requested amount of fees, however, will at least compensate the union and the league for the harm done here. As this is the sixth case against the league (at least), a full award is appropriate. Though this is the first suit against the union, a full award is justified because it is part of an entrenched campaign of harassment.”

Comment: as a lawyer you have a duty to investigate allegations before you sign your name to a pleading. Please take the time to give every allegation a thorough review to determine if you have evidence to prove that it is true. If your first complaint alleging a novel theory flops, don’t keep refiling the litigation in other courts. That will only lead to discipline. If you are being pressured to make allegations you don’t believe are supported by solid evidence, walk away from the representation. You have a duty to the court system to make well-founded and factually based allegations.

Ed Clinton, Jr.

Dispute over $750 spawns Section 1927 Motion


Stelzer v. Endeavor Business Media, Inc., No. 18-cv-979 (W.D. Wisconsin 8/31/2020) was a copyright case filed for the wrongful use of a photograph. Stelzer, a professional photographer, took a picture and filed for copyright protection. Endeavor allegedly used that photograph without attribution and Stelzer sued. Endeavor offered to pay $750 and Stelzer accepted. Stelzer’s counsel then had a change of heart and tried to raise her demand and back out of the settlement. The district court enforced the settlement agreement and then denied to award section 1927 sanctions against plaintiff’s counsel. The explanation:

Endeavor asks the court to impose sanctions against Liebowitz under 28 U.S.C. § 1927. That section authorizes the court to sanction any attorney who unreasonably and vexatiously multiplies the proceedings in a case. Endeavor contends that Liebowitz’s attempt to back out of the settlement warrants a § 1927 sanction, and it asks the court to shift the cost of enforcing the settlement to Liebowitz.

Liebowitz is a notorious copyright litigator who has been sanctioned many times. The Southern District of Illinois recently sanctioned him for backing out of a settlement agreement, precisely the conduct at issue in this case. Ward v. Consequence Holdings, Inc., No. 3:18-CV-1734-NJR, 2020 WL 2219070 (S.D. Ill. May 7, 2020). Endeavor submitted the court’s opinion in that case as a purported notice of supplemental authority, Dkt. 21, which Liebowitz asks the court to strike, Dkt. 22. The court will deny the motion to strike; whether Liebowitz has been sanctioned for similar misconduct is a fair consideration. Liebowitz was also sanctioned by Southern District of New York, which required Liebowitz to provide notice of that sanction to every court in which he had a pending case. Dkt. 24. That court’s sanction order includes a list of 40 additional sanction orders against Liebowitz. And in this case, Magistrate Judge Crocker found that plaintiff—really Liebowitz—had not complied with plaintiff’s discovery obligations, so Judge Crocker shifted fees and warned against future non-compliance. Dkt. 11.

Nevertheless, the court declines to impose sanctions. Both sides bear responsibility for the unprofessional conduct of this case. Endeavor failed to inform the court that plaintiff had actually provided discovery responses before the hearing on the motion to compel, resulting in the withdrawal of the order on that motion. Dkt. 13. And Liebowitz’s attempt to back out of the settlement agreement was prompted, in part, by Endeavor’s three-month lack of diligence in responding to Liebowitz’s revisions to the settlement agreement. Endeavor hectored Liebowitz about his one-month delay; Endeavor’s three-month delay in responding to a few modest changes is inexcusable. Judge Crocker put it aptly: “The most charitable interpretation of what’s going on in this lawsuit is that neither side is doing its job.” Dkt. 13. There is blame enough for both sides; it’s fair that they bear their own expenses.

One last word of warning to Liebowitz. Liebowitz is admitted to practice in this court, and he has other cases pending. This court’s Local Rule 1.E. provides for automatic reciprocal discipline:

E. Reciprocal Discipline

1. When another jurisdiction enters an order of discipline against an attorney admitted to practice in this court, the same discipline is automatically effective in this court without further action by the court.

2. The attorney may apply to the chief judge for modification or vacation of the discipline in this court.

The judge in the Southern District of New York has referred Liebowitz for potential discipline. Accordingly, the court will order Liebowitz to inform the court within 10 days if his practice privileges are restricted, suspended, or revoked by any other jurisdiction.

Comment: Once the case was settled, it was bad manners, but not a violation of Section 1927, to renege and seek more money.

Lawyer Narrowly Escapes Section 1927 Sanctions in Slip and Fall Case


Saenz v. Kohl’s Department Stores, Inc., No. 20-1517 (6th Cir. 11/2/2020) was a rather routine appeal from a grant of summary judgment. The plaintiff was injured when she slipped and fell on water on the floor of a Kohl’s store. The district court granted summary judgment because Kohl’s had no notice of the alleged hazard. The Sixth Circuit affirmed the grant of summary judgment and denied Kohl’s motion for Section 1927 sanctions. The court was “concerned” by the conduct of the lawyer for the plaintiff but did not impose sanctions. The issue raised in the sanctions motion was whether or not the lawyer had misrepresented the record on appeal. The Sixth Circuit concluded that he had done so, but the error was not sufficiently egregious to warrant sanctions. The court also noted that once the error was pointed out to the lawyer he had a duty to withdraw that argument from the appeal and did not do so.

The merits now behind us, we deny the motion by Kohl’s to strike Saenz’s brief as moot. See, e.g., Greenlee v. Sandy’s Towing & Recovery, Inc., No. 17-3080, 2018 WL 3655961, at *3 (6th Cir. Feb. 21, 2018). One matter, however, remains. Kohl’s has moved for sanctions, arguing that this appeal is frivolous because “Saenz’s entire appeal is premised on an interrogatory answer” that “is not part of the District Court’s record.”

As an initial matter, because Kohl’s “offers no evidence” that Saenz herself “harbored an improper motive” in bringing this appeal, “such as the intent to harass or cause delay,” we decline to impose sanctions against her under Federal Rule of Appellate Procedure 38 or 28 U.S.C. § 1912. Williams v. Shelby Cnty. Sch. Sys., 815 F. App’x 842, 845 (6th Cir. 2020).

As to her counsel, Brian Kutinsky, we find his conduct concerning. That said, we decline in the exercise of our discretion to impose sanctions against him personally. An attorney who “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.” 28 U.S.C. § 1927. Sanctions are appropriate under § 1927 “when an attorney has engaged in some sort of conduct that, from an objective standpoint, `falls short of the obligations owed by a member of the bar to the court and which, as a result, causes additional expense to the opposing party.'” Holmes v. City of Massillon, 78 F.3d 1041, 1049 (6th Cir. 1996) (quoting In re Ruben, 825 F.2d 977, 984 (6th Cir. 1987)); see also Mys v. Mich. Dep’t of State Police, 736 F. App’x 116, 117-18 (6th Cir. 2018).

Having represented Saenz from the filing of her complaint through this appeal, Kutinsky was (or should have been) “intimately familiar with the facts and procedural history” of this case. Mys, 736 F. App’x at 118. Indeed, during Beleski’s deposition, counsel for Kohl’s explicitly pointed out the discrepancy in the two versions of Interrogatory 9 and informed him that only the new version had been signed by a Kohl’s representative. Kutinsky then read that signed version— the one with no reference to “wet floor” signs—into the record. Yet despite this exchange, he quoted the unsigned, draft version in Saenz’s brief to the district court. He then perpetuated that error on appeal.

Given that the unsigned draft was nowhere else to be found in the record, appellate counsel for Kohl’s (who did not represent Kohl’s in the trial court) initially charged Saenz with fabricating evidence. Her attorney, for his part, now says that he “mistakenly believed that he was quoting from the signed answers to interrogatories.” And having learned of the events that transpired outside the record, Kohl’s has withdrawn its charge of falsification. Still, Kohl’s stresses that even after it brought this mistake to counsel’s attention a second time on appeal, he doubled down, insisting that we should now expand the record and reverse based on an unsigned interrogatory that the district court had no authority to consider. See Baugham, 211 F. App’x at 441 n.5; Fed. R. Civ. P. 33(b)(5).

We have previously sanctioned attorneys “for misrepresentations that were not accompanied by any `overt signs of bad faith’ but nonetheless amounted to a `misleadingly selective[] reading of the record.'” Mys, 736 F. App’x at 118 (alteration in original) (quoting Kempter v. Mich. Bell Tel. Co., 534 F. App’x 487, 493 (6th Cir. 2013)). What Saenz’s attorney has done here is arguably worse. His argument is based almost entirely on “evidence” that was not part of the record at all.

It is likewise inexcusable that Kutinsky now blames Kohl’s for failing to correct his error in the district court. It was his duty to exercise reasonable diligence before making a representation of fact. See Model Rules of Pro. Conduct r. 1.3 (Am. Bar Ass’n 2019). And it was his duty not to press his argument on appeal any further “unless there [was] a basis in . . . fact for doing so.” Model Rules of Pro. Conduct r. 3.1. But when this mistake was brought to his attention again on appeal, he nevertheless asked us to ignore the invalidity of the unsigned interrogatory, while trying to blame Kohl’s for being too slow to point out his own blunder. Understandably, neither Kohl’s nor the district court addressed this mistake below. It was mentioned once in passing in the facts section of Saenz’s brief, and the argument section never referenced the supposed floor signs. Kohl’s had no reason then to say anything. The floor signs became Saenz’s central argument only on appeal.

Nonetheless, although these actions might have been “unprofessional and serious enough to meet the standard for imposing sanctions,” we choose to “exercise our discretion not to sanction” counsel. Williams, 815 F. App’x at 846. No doubt, it was careless to quote the unsigned Interrogatory 9 and then appeal based on that error. But we appreciate that these are trying times; a Michigan stay-at-home order due to COVID-19 was in effect at the time Saenz filed this appeal, which may have limited her attorney’s access to the record. In these circumstances, we choose to give him the benefit of the doubt.

Even so, once the error was pointed out on appeal, Kutinsky “should have diligently withdrawn” his argument, rather than doubling down. Ridder v. City of Springfield, 109 F.3d 288, 299 (6th Cir. 1997). Such obstinance makes the case for sanctions close. But in his motion to expand, counsel did advance a legal argument that we could consider the unsigned interrogatory, insisting that because he quoted it within his brief to the district court, it became part of the “record on appeal.” See Fed. R. App. P. 10(a). This is of course incorrect: for even accepting counsel’s premise, his argument conflates the “record on appeal” with evidence in that record which may be considered for summary judgment purposes. See Byrne v. CSX Transp., Inc., 541 F. App’x 672, 675-76 (6th Cir. 2013). Yet absent bad faith, we decline to impose sanctions against this trial attorney whose legal argument on appellate procedure—though flawed—might conceivably be characterized as that of a reasonably zealous advocate. Cf. Mys, 736 F. App’x at 117-18 (“Section 1927’s purpose is to `deter dilatory litigation practices and to punish aggressive tactics that far exceed zealous advocacy.'”) (quoting Red Carpet Studios Div. of Source Advantage, Ltd. v. Sater, 465 F.3d 642, 646 (6th Cir. 2006)). In our view, sanctions should generally be reserved only for “truly egregious cases of misconduct.” Williams, 815 F. App’x at 846 (quoting Ridder, 109 F.3d at 299).