Category: Inherent Authority of Court

Joel Brodsky Sanctioned By District Court


The case is Twyman v. S&M Auto Brokers, 16 C 4162. The case is a standard odometer rollback case. The district court sanctioned Joel Brodsky in the amount of $50,000 for his conduct in the case.

This is an odometer rollback case that landed in federal court due to a little known federal statute that federalized the crime of manipulating a car’s odometer in order to protect purchasers from potential shady practices committed by used car sellers. This small Federal Odometer Act case began in April of 2016 and burgeoned into an 18-month battle between defense counsel, Joel Brodsky, and Plaintiff’s counsel over the purchase of a $35,000 used SUV from S&M Auto Brokers (“S&M”). The Plaintiff, Donald Twyman alleged that S&M failed to inform him that the Infiniti SUV had been in a serious accident, had been rebuilt, and the odometer had been rolled back. After the car drove poorly, Twyman brought it to a local Infiniti dealer who reviewed the warranty claim history that showed a discrepancy in the odometer readings and that the car had been in an accident. Twyman filed suit alleging a violation of the FOA and that S&M committed fraud and violated the Illinois Consumer Fraud and Deceptive Business Practices Act when it failed to disclose that the SUV had been damaged in an accident.

Throughout the course of the litigation, the Court has observed first-hand Brodsky’s unprofessional, contemptuous, and antagonistic behavior directed at opposing counsel. These have included false accusations and inappropriate diatribes in pleadings, where he repeatedly accused opposing counsel of lying, extortion, attempting to create a false record, and repeatedly requested sanctions without any good-faith basis. (See, e.g., Dkt. Nos. 67, 106, 138, 151, 155.) Brodsky also sent numerous vitriolic emails to opposing counsel during the course of the litigation, including asking opposing counsel “How do you even call yourself a lawyer? You are an embarrassment to the profession,” and accusing him of being an extortionist and manufacturing the case. (See, e.g., Dkt. 166-1). This pattern of behavior continued at a deposition of one of Defendants’ experts. There, Brodsky was confrontational and antagonistic and made numerous speaking objections, improperly instructed the witness not to answer, in addition to cursing several times on the record (Dkt. 160 at 58:19, 73:21), making several inappropriate ad hominem attacks against opposing counsel, including calling him a liar (id. at 71:21-22), and accusing counsel of engaging in a criminal enterprise (id. at 122:6-19).

Ironically, in many of his diatribes, Brodsky has accused opposing counsel of over-litigating what he often referred to as a “small-claims” case, yet Brodsky filed a number of baseless or unnecessary motions himself prolonging the litigation and the costs of litigation. These include a motion opposing plaintiff’s ministerial motion to correct a typo in his expert’s report (Dkt. 62); a motion in limine seeking the Court initial review of whether Defendant’s expert reports were sufficient (Dkt. 96); a frivolous motion to strike Plaintiff’s Rule 56 statement; and a baseless motion to seal a recording of the deposition referenced above in order for it not to be accessed on the public record. (Dkt. 162).

Of special concern for the Court, however, are allegations Brodsky leveled at Donald Szczesniak, Plaintiff’s expert witness. In his reply in support of his motion in limine regarding expert witnesses (Dkt. 102), Brodsky leveled charges against Szczesniak for allegedly fabricating an expert report in an unrelated matter involving Diane Weinberger. Two and a half weeks later, Brodsky filed another motion regarding Szczesniak, this time asserting that Szczesniak had damaged Weinberger’s fence. (Dkt. 108.) That motion also raised a number of alleged unrelated civil judgments against Szczesniak, relating to his auto repair business. (Id. at 3.) The motion also accused Szczesniak of sending Brodsky an anonymous facsimile transmission of a newspaper article in an “attempt to intimidate the Defendants [sic] attorney from further searching into his background.” (Id.) This motion sought an order of “indirect criminal contempt” against Szczesniak and sought to have the Court make an immediate referral to the United States Attorney for a criminal investigation to be launched against Szczesniak. (Id. at 4.) The Court summarily rejected Brodsky’s motion and reminded him that there were proper ways to challenge an expert, none of which were followed, and that if he believed that criminal activity occurred, he himself could call the USA and make a complaint. (Dkt. 110.) Nonplussed by the Court’s refusal to act as his bully, Brodsky filed a motion seeking sanctions against Szczesniak and against Plaintiff for retaining him. (Dkt. 121.) Brodsky’s motion for sanctions again accused Szczesniak of attempting to intimidate Weinberger by threatening her and purportedly damaging her fence. Rather than file a motion seeking to bar the expert testimony pursuant to the Court’s gatekeeping function in Daubert, Brodsky instead simply sought an order barring Szczesniak from testifying due to his alleged improper and even illegal behavior. (Id. at 4.)

Plaintiff responded to Brodsky’s motion for sanctions, asserting that Brodsky’s accusations were false and attached affidavits from Szczesniak, his wife, and son Luke who all attested that Szczesniak was home sick at the alleged time Weinberger’s fence was damaged. Plaintiff’s response also pointed out inconsistencies in the story Weinberger told the police as compared to the affidavit she completed for Brodsky, including Szczesniak’s alleged location on the night of the incident and the timing of the incident. (Dkt. 137 at 3.) In fact, there is no evidence that Szczesniak was ever questioned by police in the matter, let alone arrested. Plaintiff also denied Brodsky’s allegation that Szczesniak anonymously faxed him an article, pointing out that Brodsky’s affidavit was not grounded in facts, and submitted sworn testimony that Szczesniak was taking his elderly mother to the doctor at the time the fax was sent. (Id. at 5.)

In the face of evidence contradicting his motion for sanctions, Brodsky again doubled-down. In his reply, he called Szczesniak a liar and accused Szczesniak of submitting a false declaration and committing perjury. (Dkt. 138 at 2.) To use his own words against him, “in what can only be described as strange and bizarre” Brodsky asserts that “an examination of the LexisNexis public records search that was done on Donald Szczesniak, states that while he does have a wife named Jennifer, a mother named Ruth Ann, and a son named Zachery, there is no son named Luke.” (Id.) Brodsky went on to insinuate Szczesniak had fabricated the affidavit filed by Luke and that he indeed had fabricated Luke. Brodsky then went on to accuse Plaintiff’s counsel of bringing the lawsuit “to extort money, based entirely on false evidence, and an expert who is [sic] tampers with witnesses and presents false declarations and/or engages in false lawsuit . . . is no small matter.” Meanwhile, Szczesniak, a proposed witness in the matter, sought representation based on the allegations against him that went to the heart of his work — testifying as an expert in odometer fixing cases. Szczesniak appeared in Court with his retained personal attorney and sought leave to file a response to the accusations against him. Rather than back down, Brodsky opposed his efforts to file a response and increased his level of accusations against the witness, this time alleging that the instant case was “not the first case in which Szczesniak has fabricated persons and events in affidavits filed with the Court, nor is it the first time he has been accused of witness intimidation. It appears to be a habit.” (Dkt. 142 at 1.) The Court permitted Szczesniak to file a response to defend his reputation and Brodsky filed another reply, again accusing Szczesniak of damaging Weinberger’s property and fabricating his expert report, along with other allegations of impropriety regarding unrelated cases. (Dkt. 150.)

Following this flurry of serious allegations, the Court held a status on April 6, 2017. At that status hearing, the Court again reminded the parties that it was considering sanctions based on the conduct of counsel and noted that the filings were the most acerbic and nasty accusatory filings the Court had ever seen. Despite these warnings, Brodsky continued to impugn Szczesniak and claim that the case was fabricated in open court. The Court ordered counsel to bring their clients to the next status, which was held six days later. At that status, the Court informed the parties of the need for a sanctions hearing regarding Brodsky’s accusations and asked the parties whether they were aware of the protracted proceedings and why they were taking so long to deal with such a minor dispute. Brodsky’s client informed the Court that he was unaware of the ethical issues and had never been conveyed an offer to settle the suit — something he was willing to do long ago. (Dkt. 165.) Following the April 12, hearing Plaintiff filed a motion for sanctions. After retaining counsel, Brodsky filed a motion to withdraw his filings involving accusations against Szczesniak. (Dkt. 172.) He also withdrew from representing S&M. Shortly before the hearing, Brodsky filed a short response and the sanctions hearing was held on July 7, 2017. In his response, he denied that any of the filings were submitted for an improper purpose and highlighted his efforts to “address issues raised by the Court.” (Dkt. 208.)

At the hearing, which lasted several hours, the Court heard testimony from Peter Lubin, lead counsel for Twyman, and also testimony from Szczesniak. Lubin testified regarding his good-faith basis for filing the lawsuit, discussed Szczesniak’s integrity and qualifications, denied being in a criminal enterprise (a rant that Brodsky repeated throughout his filings), and discussed the emotional distress he suffered from Brodsky’s poor treatment. Szczesniak testified about the importance of his reputation to his work as an expert witness, denied damaging Weinberger’s fence, denied sending Brodsky an anonymous fax, and confirmed that he has a son named Luke. Szczesniak also averred that Brodsky’s filings had damaged his employment and put undue stress on his family. Brodsky declined to testify but gave a statement where he said he let his frustrations get the better of him and that he “went too far in this case.” Brodsky also apologized to the Court “for anything that [he] did that caused this Court concern or stress” and apologized to Lubin for “going too far in this case” and also to Szczesniak. Brodsky did not submit any evidence contradicting Lubin’s or Szczesniak’s testimony nor did he provide any explanation for his behavior throughout the case, including the allegations against Lubin and Szczesniak. Although not reflected on the transcript, throughout the hearing, Brodsky was occupied with his cellular phone and made several audible exasperated sighs during the course of the hearing as the testimony was being presented.

Outside of the events leading up to the sanctions hearing, the Court warned Brodsky several times that his behavior could result in sanctions. (See, e.g., Dkt. 118; Dkt. 165 (informing the parties that the Court has reviewed the docket and the need for a sanctions hearing because “Mr. Brodsky has been overly aggressive in this case, that he’s not following the rules of professional conduct, and he is filing a lot of motions to exacerbate the discovery process. And so it’s going to be a [sanctions hearing] primarily to determine whether sanctions should be applied to him” and noting the seriousness of the accusations Brodsky made against Szczesniak but noting that the Court has “no problem levying the appropriate sanction against a lawyer who misrepresents or lies to the Court in such a manner as to hijack a litigation”); Dkt. 216 at 9-10 (warning the parties that settlement of the matter, including attorneys’ fees would not moot the Court’s desire to consider sanctioning counsel, because the “Court always has jurisdiction over protecting the integrity of the proceedings before her” and that the Court intended to “protect the integrity of this courtroom”).)

Due to the repeated violations of this Court’s orders to refrain from the aggressive, unprofessional and vitriolic behavior, the Court grants the motion for sanctions [194] and imposes the following sanctions: 1) Brodsky shall pay a fine of $50,000 to the Clerk of the Court; 2) Brodsky shall attend an ethics course approved by the Attorney Registration and Disciplinary Commission and provide the Court with verification of completion of the course; 3) Brodsky shall attend an anger management course and provide the court with verification of the successful completion of the course; and 4) the Court shall refer Brodsky to the Executive Committee for consideration of being barred or suspended from practicing in the Northern District of Illinois for his failure to abide by Court rules.