Exhibit C 

Case 2:18-cr-00422-DJH Document 192-3 Filed 06/13/18 Page 1 of 23
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

BACKPAGE.COM, LLC,

Plaintiff,

v.

THOMAS J. DART, Sheriff of Cook County, 

Illinois,

Defendant. 

Case No. 1: 15-cv-06340

Judge John J. Tharp, Jr. 

Magistrate Judge Young B. Kim

NON-PARTY DAVIS WRIGHT TREMAINE LLP’S 

OPPOSITION TO DEFENDANT’S MOTION FOR SANCTIONS

Non-party respondent, Davis Wright Tremaine LLP (“DWT”), by counsel, respectfully 

submits this response in opposition to the motion of defendant Thomas J. Dart, Sheriff of Cook 

County (“Sheriff Dart”), for sanctions against Backpage.com (“Backpage”) and its attorneys 

(“Motion”).1 DWT formerly represented Backpage in this action, but withdrew from that 

representation with the Court’s approval on April 26, 2018. (Dkt. No. 228.) Backpage and Carl 

Ferrer (its CEO and owner) have been notified of Sheriff Dart’s Motion, DWT’s withdrawal, and 

the Court’s May 17, 2018 deadline for responses, so that they may respond to the Motion as they 

choose through substitute counsel. 

INTRODUCTION

Sheriff Dart’s Motion is legally and factually baseless. From a legal perspective, the 

Motion flows from the same flawed premise Sheriff Dart has advanced in multiple forms at various 

 

1

Under Rule 1.6(b)(5) of the ABA Model Rules of Professional Conduct, an attorney may use 

privileged communications in defense of a claim challenging the attorney’s conduct. See N.D. Ill. L.R. 

83.50. However, DWT is not using privileged information in response to the Motion at this time; it is 

unnecessary because Sheriff Dart has established no basis for the Motion under the law or the facts. 

However, DWT respectfully reserves all rights, including rights under Rule 1.6(b)(5).

Case: 1:15-cv-06340 Document #: 238 Filed: 05/17/18 Page 1 of 22 PageID #:5307 Case 2:18-cr-00422-DJH Document 192-3 Filed 06/13/18 Page 2 of 23
2

stages of the litigation—that there could be no constitutional claim if he could show that 

advertisements posted on Backpage.com related to or resulted in illegal conduct. (Dkt. Nos. 126,

130, 143, 145, 157, 189.) Sheriff Dart now asks this Court to impose sanctions, under its inherent

authority and 28 U.S.C. § 1927, based on plea agreements entered April 5, 2018 by Carl Ferrer on 

behalf of himself and Backpage that, Sheriff Dart claims, show that this case was a “hoax” from 

the beginning. (Mot. at 1.) This argument is fundamentally wrong, and is no more than a 

reincarnation of the same “illegality” defense Sheriff Dart has attempted to advance and the Court 

has rejected repeatedly because it is based on a fatally flawed premise. (See Aug. 9, 2016 Tr., at 

7:19-7:21, 9:12-9:15, Dkt. No. 174; Dkt. No. 192.) Sheriff Dart wants to put Backpage (and its 

lawyers) on trial, but this case is about his improper and unconstitutional efforts to use pressure 

tactics to impose an informal prior restraint, an illegitimate exercise of governmental power that 

has been condemned under the First Amendment for over half a century. Bantam Books, Inc. v. 

Sullivan, 372 U.S. 58, 67 (1963); Backpage.com, LLC v. Dart, 807 F.3d 229, 230 (7th Cir. 2015).

Whatever else may be the legal significance of Mr. Ferrer’s plea agreement in 2018, it 

cannot retroactively cure the Sheriff’s illegal actions in 2015 or override the constitutional claims 

that formed the basis of this case. More to the point here, Sheriff Dart’s post hoc challenges cannot 

serve as a rationale for imposing sanctions on the lawyers who successfully advanced the 

constitutional claims. This Court should reject this argument once again, just as it did when it 

explained that “the sheriff’s theory completely ignores the law of prior restraint as the Seventh 

Circuit has interpreted it in this case specifically,” (Aug. 9, 2016 Tr., at 7:19-7:21, Dkt. No. 174), 

and concluded “in the context of [this] case where the claim is that the sheriff has imposed an 

informal prior restraint on speech, the illegality defense isn’t a viable defense.” (Id. at 9:12-9:15.)

Case: 1:15-cv-06340 Document #: 238 Filed: 05/17/18 Page 2 of 22 PageID #:5308 Case 2:18-cr-00422-DJH Document 192-3 Filed 06/13/18 Page 3 of 23
3

Sheriff Dart’s Motion is also factually baseless. The sole bases for Sheriff Dart’s argument 

are (1) to pit Mr. Ferrer’s statements in the recent plea agreements against his earlier sworn 

statements in declarations and deposition testimony in this case, and (2) to raise (really, raise again) 

certain alleged “red flags,” previously known to the Sheriff and the Court, which are nothing more 

than legally appropriate actions in this and other cases (like objecting to subpoenas, hiring counsel, 

and asserting one’s constitutional defenses). Whatever inducements may have led to Mr. Ferrer’s 

recent plea agreements, the fact that the April 5, 2018 plea agreements differ from Mr. Ferrer’s 

earlier statements cannot provide a basis for sanctions against DWT. Sheriff Dart offers no 

evidence—none at all—to support his request for sanctions. Sheriff Dart provides nothing but 

innuendo, intemperate invective, and speculation to assert that DWT “must have known” or

“should have known” that Mr. Ferrer would change and contradict averments he made not just in 

this case but in a half dozen others. 

The Sheriff’s Motion is unprecedented under the law and the standards in this Court and 

the Seventh Circuit to impose sanctions on counsel because Sheriff Dart does not come close to 

showing that legal counsel acted with the requisite bad faith or that legal counsel “acted in an 

objectively unreasonable manner by engaging in a serious and studied disregard for the orderly 

process of justice.” See Secure Leverage Group, Inc. v. Bodenstein, 558 B.R. 226, 249 (N.D. Ill. 

2016) (Tharp, J.); see also Grochocinski v. Mayer Brown Rowe & Maw, LLP, 719 F.3d 785, 799 

(7th Cir. 2013) (finding that courts use their inherent authority and section 1927 to sanction “badfaith conduct” or raising baseless claims “despite notice of the frivolous nature of these claims”).

This Court should deny the Motion. 

Case: 1:15-cv-06340 Document #: 238 Filed: 05/17/18 Page 3 of 22 PageID #:5309 Case 2:18-cr-00422-DJH Document 192-3 Filed 06/13/18 Page 4 of 23
4

BACKGROUND

Because the Court has presided over this litigation for nearly three years, the background 

for the Motion can be summarized briefly.

On June 29, 2015, Sheriff Dart sent letters to the CEOs of Visa and MasterCard making 

numerous threats and demanding that the companies “immediately cease and desist from allowing 

your credit cards to be used to place ads on . . . Backpage.com.” (Compl., Exs. B, C, Dkt. No. 2.) 

Within 48 hours, the card companies announced they would cease doing business with Backpage. 

(Ferrer Decl. ¶ 25, Dkt. No. 6; Zycherman Decl., Ex. G, Dkt. No. 7-1.) The Sheriff then issued a 

press release announcing that his demands to Visa and MasterCard had compelled them to 

“defund” and sever ties with Backpage. (Compl., Ex. A, Dkt. No. 2.)

Backpage filed suit on July 21, 2015, seeking injunctive and declaratory relief because the 

Sheriff’s actions constituted an unconstitutional prior restraint under Bantam Books. (Compl., 

Dkt. No. 1.) Backpage also sought a temporary restraining order. (Dkt. Nos. 4, 5.) Backpage’s 

complaint and TRO motion were supported by a twelve-page declaration from Mr. Ferrer that was 

supported with roughly 60 pages of exhibits. (See Ferrer Decl., Dkt. No. 6.) Mr. Ferrer’s 

declaration attested to facts concerning Backpage and its operations, averring that users provided 

all content for ads they posted on the website; Backpage had long imposed and enforced rules to 

prevent improper content or misuse of the site; Backpage employed more than 100 people in 

moderation efforts and blocked more than 1 million ads per month; Backpage had regularly 

worked with and supported law enforcement; Mr. Ferrer and others representing Backpage 

previously met and communicated with the Sheriff’s office to explain efforts to “prevent misuse 

of our website and to partner with law enforcement”; and, because of Sheriff Dart’s actions, 

Case: 1:15-cv-06340 Document #: 238 Filed: 05/17/18 Page 4 of 22 PageID #:5310 Case 2:18-cr-00422-DJH Document 192-3 Filed 06/13/18 Page 5 of 23
5

Backpage removed charges for ads on the website, cutting off essentially all of the website’s 

revenues. (Id. at ¶¶ 4, 7-11, 14-15, 16-17, 18-21, 27-28.)

Mr. Ferrer’s declaration was one of many he filed in several cases starting in 2012 (three 

years before he executed the declarations in this case), in which he similarly explained Backpage’s 

efforts to screen third-party content, to prevent misuse of the site, to cooperate with law 

enforcement, and to regularly report ads of concern to authorities.2

This Court granted a Temporary Restraining Order (Dkt. No. 33), but denied Backpage’s 

request for a preliminary injunction. (Dkt. Nos. 59, 63, 66.) The Seventh Circuit reversed and 

entered a preliminary injunction, concluding that ads on Backpage.com were constitutionally 

protected speech, rejecting the Sheriff’s arguments that all such ads were criminal, and holding 

that “a public official who tries to shut down an avenue of expression of ideas and opinions through 

actual or threatened imposition of government power or sanction is violating the First 

Amendment.” Dart, 807 F.3d at 230, 234, 239 (internal quotation marks omitted). 

After the case returned to this Court, six times Sheriff Dart filed motions and other 

pleadings attempting to advance his theory that all ads on the Backpage.com website were illegal 

and therefore his actions could be excused even if they did infringe First Amendment rights. (See 

Mot. Strike, at 3-6, Dkt. No. 126; Mot. Compel Disc., Dkt. No. 130; Bench Mem., at 1-11, Dkt. 

No. 143; Supp. Mem. Re Mot. Compel, at 5-11, Dkt. No. 145; Mot. Leave to Amend Affirm.

 

2

Several of these declarations (without exhibits) are attached as Exhibits 1-3, including Mr. Ferrer’s 

declarations from Backpage.com, LLC v. McKenna, No. 2:12-00954-RSM (W.D. Wash.) (declaration filed 

June 4, 2012) (Ex. 1); Backpage.com, LLC v. Cooper, No. 3:12-cv-00654 (M.D. Tenn.) (declaration filed 

June 27, 2012) (Ex. 2); and Backpage.com, LLC v. Hoffman, No. 2:13-cv-03952-DMC (D.N.J.) (declaration 

filed June 26, 2013) (Ex. 3). Mr. Ferrer filed similar declarations in two other actions, Backpage.com, LLC 

v. Healey, No. 16-CV-10236-ADB-SEALED (D. Mass.) (declaration filed Feb. 4, 2015); In re In re 

Subpoenas to Produce Documents to Grand Jury Nos. 15823 and 16093, No. GJ12-172 (W.D. Wash.) 

(declaration filed June 27, 2012).

Case: 1:15-cv-06340 Document #: 238 Filed: 05/17/18 Page 5 of 22 PageID #:5311 Case 2:18-cr-00422-DJH Document 192-3 Filed 06/13/18 Page 6 of 23
6

Defenses, Dkt. No. 155; Mot. Leave to File Sur-Resp., Dkt. No. 189.) The Court rejected the 

Sheriff’s arguments every time, correctly concluding that “the sheriff’s theory completely ignores 

the law of prior restraint as the Seventh Circuit interpreted it in this case specifically,” and “the 

illegality defense isn’t a viable defense” in this case. (Aug. 9, 2016 Tr., at 7:19-7:21, 9:12-9:15, 

Dkt. No. 174; Dkt. No. 192.)

On April 5, 2018, in the federal action in Arizona Mr. Ferrer entered a plea agreement to 

one count of conspiracy (18 U.S.C. § 371) and entered a plea agreement on behalf of Backpage

and other corporate entities controlled by Mr. Ferrer to one count of money laundering (18 U.S.C. 

§ 1956(h)). (See Plea Agreements, United States v. Ferrer, No. 18-464-PHX-DJH (D. Ariz.);

United States v. Backpage.com, LLC, No. 18-465-PHX-DJH (D. Ariz.), Mot., Exs. A, B.) DWT 

was not counsel to Mr. Ferrer or Backpage in connection with these plea agreements. 

DWT and Schiff Hardin LLP moved to withdraw from representation of Backpage in this 

action on April 24, 2018. (Dkt. No. 220.)

3

 The Court conducted a hearing, including in camera 

proceedings with counsel for the two firms to address the withdrawal request, and thereafter 

granted the motion. (Dkt. No. 228.) 

ARGUMENT

I. Sheriff Dart’s Arguments Are Legally Irrelevant and Merely Attempt to 

Resurrect His Oft-Rejected “Illegality” Defense. 

Sheriff Dart asserts that this lawsuit constituted a fraud on the court, claiming that it was 

based on “untrue facts from the beginning, and thus a hoax.” (Mot. at 1.) Citing Mr. Ferrer’s plea 

agreement, Sheriff Dart argues (contrary to his own July 1, 2015 press release) that “the reason 

credit cards companies [sic] stopped doing business with Backpage was due to the illegal nature 

 

3

In addition to DWT, lawyers from Schiff Hardin LLP, Paul Hastings LLP and Henze Cook Murphy, 

PLLC filed appearances on behalf of Backpage in this matter. 

Case: 1:15-cv-06340 Document #: 238 Filed: 05/17/18 Page 6 of 22 PageID #:5312 Case 2:18-cr-00422-DJH Document 192-3 Filed 06/13/18 Page 7 of 23
7

of Backpage’s business, and not the Sheriff’s letters to the credit card companies.” (Id. at 2.) Based 

on this, Sheriff Dart concludes that “[f]rom day one, Backpage’s complaint against the Sheriff was 

a fraud, neither grounded in fact nor [sic] law.” (Id. at 3.) This hyperbolic claim fails to 

acknowledge the most elementary principles of First Amendment law (as well as the high standard 

for imposing sanctions), and it ignores the application of that precedent here. 

Any sanction pursuant to 28 U.S.C. § 1927 or the court’s inherent authority would require 

an explicit finding that Backpage’s counsel acted with “subjective bad faith” or that counsel’s 

conduct was extremely negligent, reckless, or indifferent. See Grochocinski, 719 F.3d 785 at 799; 

Mi-Jack Products v. Int'l Union of Operating Engineers, Local 150, No. 94 C 6676, 1996 WL 

149133, at *5 (N.D. Ill. Mar. 28, 1996). As this Court and the Seventh Circuit have acknowledged, 

sanctions are warranted “when an attorney has acted in an objectively unreasonable manner by 

engaging in a serious and studied disregard for the orderly process of justice.” Secure Leverage 

Group, Inc., 558 B.R. at 249 (Tharp, J.). The Seventh Circuit has recognized that the imposition 

of attorneys’ fees is appropriate only where the attorney intentionally acts without a plausible legal 

or factual basis. Knorr Brake Corp. v. Harbil, Inc., 738 F.2d 223, 227 (7th Cir. 1984). Here, 

Sheriff Dart cannot demonstrate that Backpage’s claim—supported by Supreme Court First 

Amendment precedent and the Seventh Circuit’s decision in this case—lacks “a colorable basis in 

the law” to support sanctions. 

The Seventh Circuit articulated the straightforward legal principle that controls this case: 

“[A] public official who tries to shut down an avenue of expression and ideas and opinions through 

‘actual or threatened imposition of government power or sanction’ is violating the First 

Amendment.” Dart, 807 F.3d at 230 (quoting Am. Family Ass’n, Inc. v. City and Cty. of San 

Francisco, 277 F.3d 1114, 1125 (9th Cir. 2002)). This has been the law for more than five decades. 

Case: 1:15-cv-06340 Document #: 238 Filed: 05/17/18 Page 7 of 22 PageID #:5313 Case 2:18-cr-00422-DJH Document 192-3 Filed 06/13/18 Page 8 of 23
8

See Bantam Books, 372 U.S. at 72. From its early First Amendment cases the Supreme Court has 

described prior restraints as “the essence of censorship,” Near v. Minnesota ex rel. Olson, 283 

U.S. 697, 713 (1931), and “the most serious and the least tolerable infringement on First 

Amendment rights,” Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). Accordingly, the 

Seventh Circuit applied those principles in this case and held that “[t]hreatening penalties for future 

speech goes by the name of ‘prior restraint,’ and a prior restraint is the quintessential firstamendment violation.” Dart, 807 F.3d at 235 (quoting Fairley v. Andrews, 578 F.3d 518, 525 (7th 

Cir. 2009)). Given this well-established legal doctrine, Sheriff Dart’s assertion that Plaintiff’s 

arguments were legally unsupported is frivolous.

It has never been disputed that Sheriff Dart assembled a team “to take down 

Backpage.com” “legally or otherwise,” and that they developed “an out-of-the-box idea” to use 

“the financial route” of pressuring Visa and MasterCard. (See Zycherman Decl., Ex. G, Dkt. No.

7; see also Aug. 20, 2015 Prelim. Inj. Hr’g Tr., at 51:13-22, 75:3-75:8, Dkt. No. 65.) This resulted 

in the June 29, 2015 letters to the CEOs of Visa and MasterCard demanding that they “immediately 

cease and desist from allowing your credit cards to be used to place ads on . . . Backpage.com.” 

(Compl., Exs. B, C, Dkt. 2.) The companies capitulated within 48 hours, and Sheriff Dart was 

quick to claim credit for this outcome, issuing a press release proclaiming that his demand 

compelled Visa and MasterCard to sever ties with Backpage. (Compl., Ex. A.) Given the law of 

prior restraint, Sheriff Dart’s argument that the constitutional claims lacked any basis in fact or 

law cannot be taken seriously. 

Sheriff Dart points to Mr. Ferrer’s April 5, 2018 plea agreement to argue that “the speech 

at issue was never protected by the first amendment, and Backpage was a content provider and 

distributor of illegal, non-protected speech.” (Mot. at 4.) This is simply another pass at Sheriff 

Case: 1:15-cv-06340 Document #: 238 Filed: 05/17/18 Page 8 of 22 PageID #:5314 Case 2:18-cr-00422-DJH Document 192-3 Filed 06/13/18 Page 9 of 23
9

Dart’s “illegality defense,” which this Court has considered and rejected multiple times already.4 

Its premise is that Sheriff Dart cannot be held responsible for any unconstitutional behavior if, in 

the end, his beliefs about the illegality of the material are borne out (at least according to the 

statements of one party in a negotiated plea agreement). It is a philosophy that would bar 

constitutional claims against law enforcement officials who conduct illegal searches or beat 

confessions out of prisoners and then claim justification based on their results. But it is bedrock 

law that the government cannot retroactively justify unconstitutional acts in this way. See, e.g., 

Ft. Wayne Books, Inc. v. Indiana, 489 U.S. 46, 65-67 (1989) (prior restraint without advance 

adversary hearing cannot be justified by later findings); A Quantity of Books v. Kansas, 378 U.S. 

205, 211-12 (1964) (invalidity of illegal search cannot be purged by subsequent finding that books 

were obscene). 

Sheriff Dart’s citation to Mr. Ferrer’s plea agreement does not change this basic law or its 

application here. Not even Mr. Ferrer’s current statement that he believed “most” ads related to 

prostitution can cloak Sheriff Dart’s censorship campaign with a veneer of legality. As the Seventh 

Circuit explained:

Nor is Sheriff Dart on solid ground in suggesting that everything in the adult section 

of Backpage’s website is criminal, violent, or exploitive. Fetishism? Phone sex? 

Performances by striptease artists? (Vulgar is not violent.) . . . The district judge 

remarked that “the majority of the advertisements [in Backpage’s adult section] are 

for sex”—but a majority is not all, and not all advertisements for sex are 

advertisements for illegal sex.

Dart, 807 F.3d at 234. Mr. Ferrer’s plea agreement—and the Sheriff’s current argument—also 

does not take into account the millions of ads posted in non-adult categories. As a consequence, 

nothing in the plea agreement addresses the essence of the constitutional claim, that Sheriff Dart 

 

4

The last time Sheriff Dart repeated this argument the Court instructed the parties not to submit any 

further briefing unless the Court requested it. (Dkt. No. 192.) 

Case: 1:15-cv-06340 Document #: 238 Filed: 05/17/18 Page 9 of 22 PageID #:5315 Case 2:18-cr-00422-DJH Document 192-3 Filed 06/13/18 Page 10 of 23
10

was “using the power of his office to threaten legal sanctions against the credit-card companies for 

facilitating future speech, and by doing so he is violating the First Amendment unless there is no

constitutionally-protected speech in the ads on Backpage’s website—and no one is claiming that.” 

Id. at 231 (emphasis in original). 

Sheriff Dart also attempts to revive his “causality” argument, claiming there was no basis 

for the Plaintiff to argue that the credit card companies severed ties to Backpage in response to his 

letters and that they instead withdrew service because of the nature of the advertisements on the 

site. (Mot. at 17.) This generalization is incorrect, but more importantly, it misses the point. The 

constitutional violation occurred when Sheriff Dart issued the threat in the first place. The Seventh 

Circuit explained that “such a threat is actionable and thus can be enjoined even if it turns out to 

be empty—the victim ignores it, and the threatener folds his tent.” Dart, 807 F.3d at 231. 

None of the cases Sheriff Dart cites even remotely supports the imposition of sanctions in 

these circumstances because the sanctioned attorneys in those cases pursued legal theories they 

knew or should have known were meritless. In Reichmann v. Neumann, the district court awarded 

sanctions pursuant to its inherent authority because the plaintiff and his counsel pursued the case 

even though it was clear from the outset that plaintiff’s claim to recover a previously-settled debt 

was “utterly devoid of a legal of factual basis.” 553 F.Supp.2d 307, 320 (S.D.N.Y. 2008). In In 

re Narragansett Clothing Corp., the bankruptcy court awarded sanctions against a Chapter 11 

trustee’s attorney under Bankruptcy Rule 9011 because at no time during the matter, including at 

a hearing on the merits, was there a justifiable reason to litigate the claim. 143 B.R. 582, 584 n. 2 

(Bankr. D.R.I. 1992). 

In In re Evergreen Sec., Ltd., the bankruptcy court awarded sanctions pursuant to its 

inherent powers after finding that respondents had engaged in bad faith by filing a frivolous recusal 

Case: 1:15-cv-06340 Document #: 238 Filed: 05/17/18 Page 10 of 22 PageID #:5316 Case 2:18-cr-00422-DJH Document 192-3 Filed 06/13/18 Page 11 of 23
11

motion with false allegations. 384 B.R. 882, 933 (Bankr. M.D. Fla). In Kotsilieris v. Chalmers, 

the Seventh Circuit affirmed the district court’s finding that counsel acted in bad faith due to 

extreme negligence where counsel failed to protect its client’s right to a jury trial, but then 

proceeded with the case as if that right had been preserved and forced the other side to litigate the 

jury demand issue. 966 F.2d 1181, 1183 (7th Cir. 1992). Similarly, in Lightspeed Media Corp. v. 

Smith, the Seventh Circuit affirmed the district court’s award of sanctions under section 1927 

where counsel pursued claims that had no conceivable merit. 761 F.3d 699, 708-09 (7th Cir. 2014).

These cases bear no resemblance to this case.

5

Both the Supreme Court and the Seventh Circuit have cautioned that the exercise of 

inherent powers and sanctions under section 1927 should be strictly construed and used sparingly. 

See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991); Indianapolis Colts v. Mayor & City 

Council of Baltimore, 775 F.2d 177, 182 (7th Cir. 1985). Accordingly, courts should refrain from 

imposing sanctions when a legal theory is plausible or has been accepted by another judge. See 

Old Republic Ins. Co. v. Chuhak & Tecson, P.C., 84 F.3d 998, 1003-04 (7th Cir. 1996) (reversing 

award of sanctions and finding no bad faith where plaintiff’s counsel relied on an unreversed 

district judge’s decision); Tuf-Flex Glass v. N.L.R.B., 715 F.2d 291, 298 (7th Cir. 1983) (denying 

motion for sanctions under section 1927 where the challenged legal basis, although unsuccessful, 

 

5

Sheriff Dart also string cites several decisions from the Northern District of Illinois that do not support 

the application of sanctions pursuant to this Court’s inherent powers or Section 1927; indeed, the opinions 

cited by Sheriff Dart all involve sanctions under Rules 11 and 37. (Mot. at 11-12.) Rule 11 places a lower 

burden on movants requiring only a showing of objective unreasonableness on the part of the attorney 

signing the offending paper. Pacific Dunlop Holdings, Inc. v. Barosh, 22 F.3d 113, 118 (7th Cir. 1994). 

Because invoking the court’s inherent authority is a higher burden that requires a showing of subjective or 

objective bad faith, these cases are not relevant to the Court’s inquiry. Id. at 120. Similarly, the conduct 

in the Rule 37 cases has no bearing on this case because its addresses discovery orders and failing to timely 

supplement or correct a previous disclosure. Fed. R. Civ. P. 37(b), (c). In the first instance, Sheriff Dart 

cannot proceed under Rule 11 because he has not complied with the required safe harbor provision. More 

importantly, for the reasons discussed in this response, Sheriff Dart could not meet his burden under Rule 

11 or Rule 37. 

Case: 1:15-cv-06340 Document #: 238 Filed: 05/17/18 Page 11 of 22 PageID #:5317 Case 2:18-cr-00422-DJH Document 192-3 Filed 06/13/18 Page 12 of 23
12

was plausible). For example, in Harriston v. Chicago Tribune Co., Judge Norgle declined to 

impose sanctions under section 1927 when the court could not find that the filing of a motion to 

disqualify was “so lacking in legal or factual basis as to be implausible.” 136 F.R.D. 482, 485 

(N.D. Ill. 1991); see Sommerfield v. City of Chicago, No. 08 C 3025, 2012 WL 13069769, at *2 

(N.D. Ill. July 18, 2012) (Gottschall, J.) (declining to award sanctions under section 1927 against 

counsel who was “mistaken and somewhat negligent in interpreting the relevant case law” when 

filing a summary judgment motion); see also Specht v. Google, Inc., 805 F. Supp. 2d 551, 559-60

(N.D. Ill. 2011) (Leinenweber, J.) (denying motion for sanctions under section 1927 and the court’s 

inherent authority where counsel acted unreasonably but not vexatiously by pursuing injunctive 

relief that had a plausible legal basis). 

In this case, Backpage’s allegations—supported by decades of First Amendment 

precedent—were far more than plausible; they were strong and they were meritorious. As he has 

done throughout this litigation, Sheriff Dart fails to explain why Backpage’s First Amendment 

claims lack merit under applicable law, nor has Sheriff Dart provided any reason to disregard the 

Supreme Court’s prior restraint precedent or the Seventh Circuit’s decision.

II. Sheriff Dart’s Efforts to Impose Sanctions on DWT Are Factually Baseless.

Sheriff Dart’s Motion offers invective, innuendo, and gross speculation but no factual basis 

to impose sanctions on DWT.6 The Sheriff disregards the record evidence supporting the claims 

and arguments advanced about Backpage in this and other cases. Sheriff Dart instead argues that 

the Court should impose sanctions based on the recent plea agreements and alleged “red flags” 

 

6

(See, e.g., Mot. at 8 (“counsel must have known [Ferrer’s sworn statements] were lies when stated”); 

11 (“counsel may well have known all along about their client’s lies”); 14 (“Backpage’s attorneys ... had 

to know that Backpage was a part author in a great majority of the prostitution ads on the website”); 18 

(“Once Backpage’s attorneys learned that the factual basis for the entire amended complaint was false, ... 

they had a duty and obligation to inform the Court ...”) (emphasis added)).

Case: 1:15-cv-06340 Document #: 238 Filed: 05/17/18 Page 12 of 22 PageID #:5318 Case 2:18-cr-00422-DJH Document 192-3 Filed 06/13/18 Page 13 of 23
13

from this and other proceedings (which are nothing more than the same incorrect and rejected 

premises for Sheriff Dart’s prior “illegality” defense). 

Sheriff Dart’s Motion is largely founded on Mr. Ferrer’s statements in connection with his 

plea agreements. The Sheriff asserts that everything said in the plea agreements must be true and 

therefore everything Mr. Ferrer said in prior declarations, testimony and elsewhere (including in 

meetings with the Sheriff’s office) must have been false. (See Mot. at 2-7.) Mr. Ferrer’s statements 

in connection with his negotiated plea agreements are inconsistent with his prior sworn testimony 

in certain respects, and he will have to answer for the contradictions on his own.7 Regardless, Mr. 

Ferrer’s recent decision to plead as he has—and whatever may be his motivations for doing so—

cannot establish that it was inappropriate to rely on his six-plus years of prior sworn statements.

Sheriff Dart does not point to any record evidence, any extant statement of Mr. Ferrer, or 

anything else that is inconsistent with positions taken by Backpage in this case (and advanced by 

DWT) when they were asserted. Sheriff Dart cannot offer any such evidence, because there is 

none. 

Instead, Sheriff Dart contends there were “red flags,” from which counsel should have 

inferred that Mr. Ferrer was lying, and, apparently, that he would later contradict his averments. 

(See Mot. at 11-18.) Sheriff Dart’s attempts to cast aspersions based on his argued inferences, 

rather than actual evidence underscores why his Motion is improper. Additionally, the Sheriff’s 

“red flag” accusations are things he has asserted before in his failed attempts to pursue an 

“illegality” defense, and are inaccurate in any event. In brief:

 

7 Mr. Ferrer’s inconsistent statements undoubtedly will be subject to cross-examination in other 

proceedings. For present purposes, however, it is not necessary for DWT to use any privileged 

communications in defense of Sheriff Dart’s Motion, although it reserves its rights under Rule 1.6(b)(5) of 

the Model Rules of Professional Conduct. 

Case: 1:15-cv-06340 Document #: 238 Filed: 05/17/18 Page 13 of 22 PageID #:5319 Case 2:18-cr-00422-DJH Document 192-3 Filed 06/13/18 Page 14 of 23
14

Sheriff Dart suggests “red flags” based on Backpage’s challenge to subpoenas issued by 

the U.S. Senate Permanent Subcommittee on Investigations (“PSI”) demanding information about 

Backpage’s editorial practices. (See Mot. at 12 (“Backpage sent the Subcommittee a letter stating 

it was refusing to answer its subpoena.”)) Yet, the Sheriff previously made the same argument 

that the Court should have regarded the PSI’s investigation and subpoena as proof that ads on the 

website were illegal.8 Sheriff Dart asserts that opposition to the subpoena was nothing more than 

“legal theatrics,” (Mot. at 16), which again reflects the Sheriff’s reliance on hyperbole rather than 

an understanding of free speech principles. DWT and two other law firms9raised significant First 

Amendment challenges to the PSI’s subpoenas and process seeking to compel discovery of an 

online publisher’s editorial practices and decisions.10 

Sheriff Dart goes on to hoist another spurious “red flag” by claiming that the PSI subpoenaed 

Mr. Ferrer but he “did not show up at the Subcommittee’s hearing as he had fled the country.” (Mot. 

at 13.) We will accord the Sheriff and his counsel the benefit of the doubt that perhaps they are not 

familiar with the actual record, as Backpage’s counsel (Akin Gump) informed the PSI before the 

hearing that Mr. Ferrer was already out of the country and could not attend, and offered to make him 

available on other dates. (Exs. 4, 5.)

 

8

(See Bench Mem., at 2-3, Dkt. 143; Supp. Mem. re Mot. to Compel, at 6-8, Dkt. 145; Mot. to Strike, 

Dkt. 126). 

9

Akin Gump Strauss Hauer & Feld LLP and Paul Hastings LLP, including two attorneys who formerly 

served as general counsel to the United States House of Representatives.

10 The First Amendment and other objections ultimately were never resolved, because the PSI issued 

its report and then declared its investigation at an end. See Ferrer v. Permanent Subcommittee on 

Investigations, 856 F.3d 1080, 1083, 1086-87 (D.C. Cir. 2017) (vacating district court decision and 

dismissing Backpage’s appeal as moot). 

Case: 1:15-cv-06340 Document #: 238 Filed: 05/17/18 Page 14 of 22 PageID #:5320 Case 2:18-cr-00422-DJH Document 192-3 Filed 06/13/18 Page 15 of 23
15

Sheriff Dart next argues that the various motions and other pleadings his office previously 

submitted to attempt to pursue the “illegality” defense were more red flags (Mot. at 14-15), despite 

the Court’s rulings (which the Sheriff’s Motion does not mention) that his theory was irrelevant 

under First Amendment prior restraint law.11 In this vein, the Sheriff returns to another rejected 

argument that Backpage allegedly revised the fake “Red Beauty” ad submitted by a member of his 

staff to hide that the “subject was a child.” But, the evidence actually showed that staff person tried 

to evade the website’s protections, Backpage actually flagged and reported the ad to the FBI, and 

the Sheriff’s office ultimately admitted the ad was “bogus.” (See Opp. Mot. Leave to Amend Affirm.

Defenses, at 4-6, Dkt. 160.) 

The Sheriff also contends that “Carl Ferrer was indicted” in California proceedings. (Mot.

at 16.) But, the Sheriff fails to state that two courts dismissed the criminal complaints filed by the 

California attorney general based on charges virtually the same as Sheriff’s Dart’s “illegality” 

theory (i.e., that publishing and accepting payments for ads amounted to pimping or promotion of 

prostitution). See People v. Ferrer, No. 16FE019224, 2016 WL 7237305 (Cal. Super. Ct. Dec. 9, 

2016); People v. Ferrer, No. 16FE024013 (Cal. Super. Ct. Aug. 23, 2017). 

Sheriff Dart goes on to claim that the December 2016 indictments in the California case 

“detailed efforts that Backpage had undertaken to set up sham companies to bypass detection by 

American Express” and conduct transactions in May 2015 of some $48,000. (Mot. at 16.) This is 

simply not accurate, as Sheriff Dart knows from the actions of his office and discovery in this case.

 

11 Aside from misstating facts and prior motions and rulings in this case, Sheriff Dart also attempts to 

ascribe motives to Backpage and its attorneys—contending they filed an amended complaint to drop 

damage claims because they “knew . . . the Court would allow discovery into Backpage’s . . . moderation 

practices for purposes of determining which ‘contracts’ were illegal.” (Mot. at 15.) As explained, however, 

Backpage sought to simplify the case (in contrast to Sheriff Dart’s tack in the litigation), as the legal and 

factual issues were undisputed, making summary judgment appropriate to bring the case to its end. (See 

Mot. Renew Req. for Summ. J., Dkt. 169.) 

Case: 1:15-cv-06340 Document #: 238 Filed: 05/17/18 Page 15 of 22 PageID #:5321 Case 2:18-cr-00422-DJH Document 192-3 Filed 06/13/18 Page 16 of 23
16

(See Dkt. No. 82, Exs. PX33, PX34; Ferrer Dep., at 100:8-19, 109:12-19; Aug. 20, 2015 Prelim. 

Inj. Hr’g Tr., at 118:10-119:11; Dkt. No. 65.) In fact, in or about April 2015, American Express 

asked Backpage to cease charges to its cards for adult ads on the website and Backpage complied 

with this request. (Ferrer Dep., at 100:8-19, 106:7-11, 109:12-19.) However, after Sheriff Dart’s 

July 1, 2015 letters to “defund” Backpage, his “Backpage team” determined that users could 

purchase general credits on the website using American Express cards. (See id. at 107:7-108:25.) 

The Sheriff then contacted American Express executives to demand that this too had to stop. (See 

Aug 20, 2015 Prelim. Inj. Hr’g Tr., at 118:10-119:11, Dkt. No. 65; see also Dkt. No. 82, Exs. 

PX33, PX34.) When American Express asked Backpage to bar use of its cards for general credits 

too (after the Sheriff’s pressure), Backpage complied. (Ferrer Dep., at 107:7-109:19.) 

More generally, Sheriff Dart contends Backpage and its counsel “lied to this Court” in 

asserting that Visa’s and MasterCard’s terminations in response to Sheriff Dart’s threat letters cut 

off virtually all revenues, because, the Sheriff alleges, “if Backpage was still running transactions 

though the credit card companies, albeit illegally, Backpage was never suffering the harm it alleged 

. . . .” (Mot. at 17 (emphasis added.)) The Sheriff’s argument is sophistry. It is undisputed that 

“the credit card companies broke with Backpage” “within days of receiving [Sheriff Dart’s] 

letter[s].” Dart, 807 F.3d at 233. It likewise is undisputed that Backpage stopped charging for ads 

on the website shortly after that and lost the vast majority of its revenues at the time. (Ferrer Decl. 

¶ 27-28, Dkt. 6.) Sheriff Dart instead mischaracterizes the statements in Mr. Ferrer’s plea 

agreement that after the credit card companies and certain banks declined to permit charges 

through Backpage, he made arrangements to process payments through other banks, processors 

and other alternate means. (See Mot., Ex. B, at ¶ 10.a.) 

Case: 1:15-cv-06340 Document #: 238 Filed: 05/17/18 Page 16 of 22 PageID #:5322 Case 2:18-cr-00422-DJH Document 192-3 Filed 06/13/18 Page 17 of 23
17

Sheriff Dart’s Motion is replete with accusations that DWT “lied to the Court,” “learned 

that the factual basis for the entire amended complaint was false,” and “knew or should have 

known that Backpage was engaged in a criminal conspiracy,” (Mot. at 17, 18, 20.) These are 

serious accusations that should be countenanced only if a party presents proof of 

misrepresentations, misconduct or bad faith. This Court has cautioned against making such 

accusations and using the type of loose and intemperate language that permeates Sheriff Dart’s 

Motion. Martin v. Living Essentials, LLC, 2017 WL 4572499 *5 (N.D. Ill. 2017). Your Honor 

has warned that “fraud on the Court is a serious accusation” that is particularly inappropriate where 

the allegations take issue with legal positions that “both this Court and the Seventh Circuit found 

to be meritorious.” Id. Moreover, “[m]oving for sanctions based on scurrilous, unsupported 

allegations of bad faith is itself bad faith conduct, rendering it sanctionable.” Id. 

Sheriff Dart does not even attempt to meet the high “bad faith” standard for sanctions. 

“[T]he underlying rationale of ‘fee shifting’ is, of course, punitive, and the essential element in 

triggering the award of fees is therefore the existence of ‘bad faith.’” Adams v. Carlson, 521 F.2d 

168, 170 (7th Cir. 1975). Bad faith is a high threshold and “[t]he standards for bad faith are 

necessarily stringent.” Id.; see Satoskar v. Indiana Real Estate Comm'n, 517 F.2d 696, 698 (7th 

Cir. 1975). 

Decisions from this district illustrate that the actions of DWT lawyers are not sanctionable 

under section 1927 or the Court’s inherent powers.12 In Goldberg v. 401 N. Wabash Venture LLC, 

 

12 While Sheriff Dart references sanctions (at 1) under Rule 26(g)(3), he fails to cite any authority 

supporting this position and fails to make any argument as to why sanctions pursuant to this rule are 

appropriate. Consequently, Sheriff Dart has waived this argument. Giffney Perret, Inc. v. Matthews, No. 

07C0869, 2009 WL 792484, at *16 (N.D. Ill. Mar. 24, 2009) (quoting Weinstein v. Schwartz, 422 F.3d 476, 

477 n. 1 (7th Cir. 2005) (finding that “perfunctory and undeveloped arguments, and arguments that are 

unsupported by pertinent authority, are waived”). To the extent Sheriff Dart is pursuing sanctions under 

Rule 26, the argument fails because Sheriff Dart must show that Backpage’s attorneys’ conduct was 

objectively unreasonable at the time the discovery submissions were filed. See Thompson v. Duke, 940 

Case: 1:15-cv-06340 Document #: 238 Filed: 05/17/18 Page 17 of 22 PageID #:5323 Case 2:18-cr-00422-DJH Document 192-3 Filed 06/13/18 Page 18 of 23
18

Judge St. Eve denied the defendants’ motion for sanctions under section 1927 and the court’s 

inherent powers predicated on the same type of allegations raised in this case. No. 09 C 6455, 

2013 WL 5376556, at *5 (N.D. Ill. Sept. 25, 2013). It was argued that Plaintiff’s counsel acted in 

bad faith because it submitted claims and sought damages based on information provided by its 

client that was later contradicted by its witnesses’ testimony. Id. The court found that counsel did 

not act in bad faith by pressing claims later contradicted by its witness’s testimony because the 

defendants failed to show that counsel knew the testimony would contradict his client’s statements. 

Id. Judge St. Eve also found that the claims needed to be wholly implausible or baseless to justify 

an award of fees. Id. at *6. See also Mi-Jack Products, 1996 WL 149133, at *10 (denying 

sanctions pursuant to section 1927 and the court’s inherent authority because counsel did not act 

with objective or subjective bad faith when there were inconsistencies between plaintiff’s affidavit 

and statements from plaintiff’s attorneys that were explainable).13

Sheriff Dart erroneously relies upon Kapco Mfg. Co., Inc. v. C & O Enterprises, Inc., 886 

F.2d 1485, 1490 (7th Cir. 1989), Intellect Wireless, Inc. v. Sharp Corp., 87 F.Supp.3d 817, 848-

49 (N.D. Ill. 2015), and Cleveland Hair Clinic, Inc. v. Puig, 200 F.3d 1063 (7th Cir. 2000), where 

the attorneys pursued claims that were known to be meritless. In Kapco, the court imposed 

sanctions under section 1927 against the plaintiff’s attorney because the claims were frivolous, 

 

F.2d 192, 195 (7th Cir. 1991); see also Fed. R. Civ. P. 26(g) advisory committee note (1983). Here, Sheriff 

Dart has made no attempt to make the required showing. 

13 Similarly, in Fifth Third Bank v. Hirsch, Judge Kendall denied sanctions under section 1927 and the 

court’s inherent power. No. 10 C 5484, 2011 WL 24 70643, at *4 (N.D. Ill. 2011). The movant alleged 

that third-party plaintiff’s counsel did not adequately investigate the factual basis for the claim because 

counsel merely adopted the allegations made by the plaintiff. Id. According to the movant, counsel’s 

inadequate prefilling investigation multiplied the proceedings in an “unreasonable and vexatious” way. Id. 

Judge Kendall held that sanctions were improper even though the third party complaint failed to state a 

claim due to counsel’s failure to investigate. Id. According to Judge Kendall, that is not the type of extreme 

conduct that warrants sanctions. Id.

Case: 1:15-cv-06340 Document #: 238 Filed: 05/17/18 Page 18 of 22 PageID #:5324 Case 2:18-cr-00422-DJH Document 192-3 Filed 06/13/18 Page 19 of 23
19

baseless, and asserted for the purposes of harassment. Id. at 1493. In Intellect Wireless, the court 

awarded sanctions because the attorneys pursued litigation even though it was clear to the attorney 

that its client’s declarations were false and the claims were meritless before the complaint was 

filed. Intellect, 87 F.Supp.3d at 848-49. In Cleveland Hair Clinic, Inc., the Seventh Circuit 

affirmed sanctions against an attorney who failed to disclose a state court lawsuit (that he prepared 

and filed) at a hearing to determine whether counsel’s client in the undisclosed state court action

should have been added as a party in the federal case and whether to enjoin any state action. 200 

F.3d at 1067-68. Again, these cases bear no resemblance to the Backpage matter. 

Citing no evidence, Sheriff Dart fails to demonstrate that Backpage’s complaint was 

improperly filed, and (as outlined above) he cannot do so based on controlling Seventh Circuit 

law, including the decision in this case. 

III. Sheriff Dart’s Request for Discovery Lacks Any Legal Basis.

At the very end of his Motion, Sheriff Dart requests some unspecified “limited discovery 

to prove that Backpage’s counsel knew the pleadings, discovery requests, filings and statements 

in open Court were false when made.” (Mot. at 21-22.) In addition to the undefined request for

“limited discovery,” he requests “supplemental briefing on the appropriateness and amount of 

sanctions,” and “an evidentiary hearing on sanctions.” These requests for a new proceeding 

focused on sanctions is nothing more than a fishing expedition in which Sheriff Dart essentially 

admits that he has failed to make the requisite showing. The Seventh Circuit has recognized that 

courts should “limit the scope of sanctions proceedings to the record and allow discovery only in 

extraordinary circumstances.” Indianapolis Colts, 775 F.2d at 183 (citing Fed. R. Civ. P. 11 

advisory committee note (1983)) (denying defendants request for remand to the district court for 

discovery related to its Rule 11 and section 1927 claims); In re Central Ice Cream Co., No. 85 C 

Case: 1:15-cv-06340 Document #: 238 Filed: 05/17/18 Page 19 of 22 PageID #:5325 Case 2:18-cr-00422-DJH Document 192-3 Filed 06/13/18 Page 20 of 23
20

10073, 1986 WL 13635, at *6 (N.D. Ill. Nov. 21, 1986) (recognizing that the court must limit the 

scope of sanctions proceedings under section 1927, Rule 11, and the court’s inherent authority to 

the record and only grant leave for additional discovery in extraordinary circumstances). 

Sheriff Dart fails to make any showing that could warrant discovery in this case, much less 

any showing of extraordinary circumstances.14 Just as before, Sheriff Dart’s discovery request is 

a continuation of his rejected “illegality defense.” Sheriff Dart’s request would result in prolonged 

“satellite litigation” in the vain hope of turning up something that he things might support his 

Motion, which again is based on his fallacious illegality theory. See Retired Chicago Police Ass'n 

v. City of Chicago, No. 90 C 407, 1997 WL 51673, at *5 (N.D. Ill. Feb. 5, 1997), aff'd sub 

nom. Retired Chicago Police Ass'n v. Firemen's Annuity & Benefit Fund of Chicago, 145 F.3d 929 

(7th Cir. 1998) (denying Rule 11 sanctions and section 1927 motion that required determining the 

merits of claims that were unrelated to the sanctions motion).15 Sheriff Dart has attempted to lead 

the Court down this path before, and it quite properly denied discovery requests it found would be 

“a goose chase or a fishing expedition or a snipe hunt.” (See Aug. 9, 2016 Tr., at 11:17-19, 7:21-

8:3, 9:12-15, 12:9-11, 12:19-13:1, Dkt. 174.) The Court should do the same here. 

 

14 Sheriff Dart’s failure to articulate the scope and nature of the “limited discovery” he would seek, from 

whom and in what format, deprives DWT the ability to adequately respond to the request, and is alone 

reason to deny it. See United States v. Auston, 35 Fed. App’x 251, 255 (7th Cir. 2002) (finding discovery 

request was vague and overbroad and failed to explain with any specificity why the materials were needed); 

Vardon Golf Co., Inc. v. BBMG Golf Ltd., 156 F.R.D. 641, 648 (N.D. Ill. 1994) (denying discovery requests 

that were too vague to support any motion for production or motion to compel). 

15 Sheriff Dart offers no explanation for how discovery could be limited. If the Court were to permit 

discovery based on allegations made in the Motion, as a matter of fundamental fairness it would become 

necessary to allow discovery into all communications between Mr. Ferrer and the government related to 

his plea agreement and to provide an opportunity to depose and cross-examine Mr. Ferrer. The prospect of 

such expanded litigation is one reason courts avoid engaging in collateral litigation to explore speculative 

allegations. 

Case: 1:15-cv-06340 Document #: 238 Filed: 05/17/18 Page 20 of 22 PageID #:5326 Case 2:18-cr-00422-DJH Document 192-3 Filed 06/13/18 Page 21 of 23
21

CONCLUSION

For the foregoing reasons, this Court should deny Sheriff Dart’s Motion for Sanctions 

without any further proceedings. 

Respectfully submitted,

By: s/John R. Storino________

Jeffrey D. Colman

John R. Storino

Jenner & Block LLP

353 N. Clark Street

Chicago, IL 60654-3456

Telephone: +1 312 222 9350

Facsimile: +1 312 527 0484

Case: 1:15-cv-06340 Document #: 238 Filed: 05/17/18 Page 21 of 22 PageID #:5327 Case 2:18-cr-00422-DJH Document 192-3 Filed 06/13/18 Page 22 of 23
22

CERTIFICATE OF SERVICE

I certify that on May 17, 2018 I caused to be served a copy of DWT’s Response in 

Opposition to Sheriff Dart’s Motion for Sanctions via the Court’s ECF system on all counsel of 

record registered through that system to receive electronic filings in this case. 

By:s/John R. Storino_________

Jeffrey D. Colman

John R. Storino

Jenner & Block LLP

353 N. Clark Street

Chicago, IL 60654-3456

Telephone: +1 312 222 9350

Facsimile: +1 312 527 0484

Case: 1:15-cv-06340 Document #: 238 Filed: 05/17/18 Page 22 of 22 PageID #:5328 Case 2:18-cr-00422-DJH Document 192-3 Filed 06/13/18 Page 23 of 23