Treasure Hunters Sanctioned for Bad Faith Litigation
In a blistering decision issued Wednesday, a federal judge in Florida ordered a treasure hunting company to pay more than $1 million in attorney fees and sanctions for a “continuous, core campaign of bad faith, deception, and deflection.”
Represented by a team of lawyers from firms including Blank Rome and Beveridge & Diamond, the company, Odyssey Marine Exploration Inc., in 2007 recovered a vast sunken treasure–gold and silver worth more than $600 million—from a shipwreck near Portugal.
The government of Spain, represented by Covington & Burling and Bush Ross, successfully sued Odyssey in Tampa federal court, claiming that the treasure came from a Spanish naval vessel lost in combat in 1804 and rightfully belonged to Spain.
Now, in a 27-page order, U.S. District Judge Steven Merryday of the Middle District of Florida blasted Odyssey for what he termed a “demonstrably purposeful and bad faith litigation posture effected from the beginning of this action to deflect, delay, and if possible, defeat (or, at least, compromise) Spain’s rightful claim.”
Gregg Stemm, Odyssey's chief executive officer in a written statement said, "It's disappointing that the court was apparently swayed by statements presented by Spain's witnesses during the merits portion of the case that we believe could have been proven false during cross examination of those witnesses in a trial."
According to Merryday, Odyssey undertook unauthorized recovery of the treasure from the Nuestra Senora de las Mercedes, then “furtive removal” to Florida, where the company is based.
“Odyssey’s calculus of corporate risk emerges writ large from this history; in the event of a litigation win, an upside of $600 million; in the event of a litigation loss, a downside of legal fees and costs of less than 1/2 of 1% of the potential upside (in either event incurring the costs of recovery, removal, archiving, and storage),” he wrote.
He continued, “Odyssey found what it found because it knew full well what it was looking for; Odyssey withheld and deceived and deflected with respect to what it found because Odyssey knew full well why Spain was asking and knew full well the adverse consequence to Odyssey’s financial aspirations if Spain discovered the answer,” he wrote.
He seemed determined to send a message: Odyssey’s conduct “cannot stand unaddressed by sanctions.”
As for the amount, the magistrate judge in the case recommended Odyssey pay $158,102 in attorney fees. But Merryday rejected that as much too low. However, he also didn't award the full $3.3 million Spain requested.
“Any sanction must rise in proportion to the excesses of the case—must, in other words, ‘meet the case’—or otherwise the court’s undue timidity reduces the sanction to symbolism and impotence and encourages cynicism toward the ethics of litigation and toward the court.”
He also considered whether Odyssey could afford to pay $1 million. “Consulting Odyssey’s public filings with the Securities and Exchange Commission confirms Odyssey’s ability to pay. The assessment is noticeable and discomfiting to Odyssey but neither unmanageable nor unduly burdensome. Although certainly not willing, Odyssey is able to pay,” he found.
In a footnote, he went even further. “I wonder if the public, like Spain, is not, after all, entitled to an increment of compensation for the elongation of these proceedings owing to Odyssey’s ungoverned quest for so many pieces of silver.”
Stemm from Odyssey looked on the bright side. "The court's findings do provide guidance in establishing considerations for dealing with shipwrecks in international waters in the future," he said in the statement, adding that the case "was an aberration that will not have an adverse effect on the company's strategic plan going forward."
According to court papers, Odyssey was represented by lawyers including Blank Rome partner John Kimball and Beveridge & Diamond partner K. Russell LaMotte . Neither immediately returned calls seeking comment. Allen Von Spiegelfeld of Banker Lopez Gassler in Tampa declined comment. Melinda MacConnel is Odyssey’s general counsel. She also did not immediately return a call seeking comment.
Spain was represented by Covington & Burling partner James Goold, who was recently honored by King Juan Carlos I of Spain with the Commander’s Cross of the Order of Merit for “distinguished and excellent service.” Spain also turned to David Christopher Banker, Jeffrey Carter Andersen and Keith Dennis Skorewicz of Bush Ross in Tampa.