Rule 60(b)(3) “Misconduct” in the Second Circuit Requires More Than Negligent Discovery Errors

Introduction

In Adidas America, Inc. v. Thom Browne, Inc. (2d Cir. Apr. 29, 2026), adidas sought to reopen a final judgment after losing a trademark infringement/dilution/unfair-competition jury trial against luxury apparel brand Thom Browne. The motion hinged on several emails—produced only later in parallel U.K. litigation—that adidas argued would have altered the jury’s liability determinations and demonstrated discovery “misconduct.”

The core issues on appeal were whether the late-produced emails warranted relief under: (1) Federal Rule of Civil Procedure 60(b)(2) (newly discovered evidence), and (2) Federal Rule of Civil Procedure 60(b)(3) (fraud, misrepresentation, or misconduct).

Summary of the Opinion

The Second Circuit affirmed the denial of Rule 60(b) relief. It held:

  • Under Rule 60(b)(2), adidas failed to show the emails were so important that they probably would have changed the verdict.
  • Under Rule 60(b)(3), the Court announced a new circuit rule: “misconduct” does not include merely negligent discovery violations. Although the Court found Thom Browne’s counsel’s nonproduction was negligent, negligence alone cannot justify vacatur under Rule 60(b)(3).

Analysis

Precedents Cited

Standards of review and appellate posture

  • Ins. Co. of N. Am. v. Pub. Serv. Mut. Ins. Co.: Supplied the basic framework—Rule 60(b) rulings are reviewed for abuse of discretion, but legal errors are reviewed de novo. The panel used this to separate (i) discretionary application of Rule 60(b)(2) from (ii) the legal meaning of “misconduct” under Rule 60(b)(3).
  • Hayward v. IBI Armored Servs., Inc.: Reinforced that interpreting Rule 60(b)(3) is a question of law reviewed de novo.
  • In re M/V MSC Flaminia and In re Energetic Tank, Inc.: Framed how “negligence” determinations can be reviewed (de novo as legal conclusions in some contexts, but typically tied to factual findings reviewed for clear error). This mattered because the panel ultimately disagreed with the district court’s view of counsel’s care: it found negligence on this record, but not more than negligence.

Rule 60(b)(2): Newly discovered evidence must probably change the outcome

  • United States v. Int'l Bhd. of Teamsters: Provided the four-part test, especially the key requirement that new evidence must be “of such importance that it probably would have changed the outcome.” The panel treated this as the dispositive element.
  • Polaroid Corp. v. Polarad Elecs. Corp.: Anchored the “likelihood of confusion” analysis that governed adidas’s underlying infringement claims. The panel used Polaroid to explain why the newly produced emails—executives’ perceptions in other contexts—did not directly map onto the objective factors the jury applied.

Rule 60(b)(3): Defining “misconduct” and protecting finality

  • Fleming v. N.Y. Univ.: Supplied the “clear and convincing evidence” burden for Rule 60(b)(3).
  • State St. Bank & Tr. Co. v. Inversiones Errazuriz Limitada: Supplied the additional requirement that misconduct must have interfered with the movant’s ability to present its case fully and fairly. (The panel did not need to resolve this prong once it concluded negligence is not “misconduct.”)
  • Dubin v. United States: Supported contextual interpretation: where a term is context-dependent, courts look to surrounding structure and scheme. The panel invoked this to justify reading “misconduct” alongside the Rules’ broader sanctions architecture.
  • Societe Internationale pour Participations Industrielles et Commerciales, S. A. v. Rogers and Fed R. Civ. P. 37(e)(2): These sources underscored that severe litigation consequences (dismissal/default/adverse inference) generally require willfulness/intent. The panel treated vacatur of a final judgment as similarly “severe,” supporting a culpability threshold above negligence.
  • Nemaizer v. Baker and Terra Firma Invs. (GP) 2 Ltd. v. Citigroup Inc.: Both reinforced the finality principle—final judgments should not be lightly reopened and jury verdicts should not be overturned absent fundamental error. These cases served as normative guardrails for narrowing Rule 60(b)(3).
  • Hungerford v. Sigerson: Provided historical support that equitable relief from judgments traditionally turned on fraud-like wrongdoing, not mere mistake.
  • Advisory Committee materials (May 1945 and March 1946 transcripts) and the 1946 note: Used as drafting-history evidence that Rule 60(b)(3) targeted “tricks” and “deceit,” aligning “misconduct” with intentional or at least more culpable conduct.
  • Homaidan v. Sallie Mae, Inc.: Supplied noscitur a sociis—an ambiguous term should be interpreted in line with its textual neighbors (“fraud” and “misrepresentation”). This canon supported limiting “misconduct” to fraud-adjacent seriousness.
  • Anderson v. Cryovac: Discussed and distinguished. The panel rejected Anderson’s surplusage-based approach, reasoning “misconduct” can cover intentional abuses that are not strictly “fraud” or “misrepresentation.”
  • Husky Int'l Elecs., Inc. v. Ritz and Universal Health Servs., Inc. v. United States: Used to clarify conceptual boundaries of “fraud” (deception/trickery) and “misrepresentation” (false/misleading statement), leaving room for a distinct category of serious “misconduct.”
  • Chambers v. NASCO, Inc.: Offered an example of sanctionable litigation abuse (meritless filings to delay and impose costs) that can be intentional “misconduct” without fitting neatly into fraud/misrepresentation.
  • District-court sanctions analogies: Health All. Network, Inc. v. Cont'l Cas. Co. and Mugavero v. Arms Acres, Inc.: Cited to show district courts treat “new trial” as a severe discovery sanction requiring willfulness/bad faith/serious prejudice—supporting the panel’s reluctance to grant vacatur for mere negligence.

Discovery negligence standards used to classify the violation

  • Pension Comm. of Univ. of Montr. Pension Plan v. Banc of Am. Secs. (abrogated on other grounds by Chin v. Port Auth. of N.Y. & N.J.): Provided working definitions of negligence and gross negligence in discovery. The panel used these concepts to locate Wolf Greenfield’s failure as negligent, not grossly negligent or intentional.
  • In re Sept. 11th Liab. Ins. Coverage Cases, Harkabi v. SanDisk Corp., Zubulake v. UBS Warbug LLC, and Kortright Cap. Partners LP v. Investcorp Inv. Advisers Ltd.: These cases provided concrete examples of negligent discovery failures and the baseline “low bar” for finding negligence in attorney-managed discovery. The panel relied on this line to conclude: missing obviously relevant, “needs further review”-tagged emails—without a credible explanation—fell below reasonable care.
  • In re NTL, Inc. Secs. Litig.: Helped distinguish gross negligence (e.g., failure to issue a written litigation hold, failure to timely inspect systems) from the lesser failure here.

Legal Reasoning

1) Rule 60(b)(2): why the emails likely would not have changed the verdict

The panel accepted that the emails were relevant, but treated “probable outcome change” as the controlling gatekeeper. It emphasized three related points:

  1. Objective versus subjective confusion. Likelihood of confusion is an objective inquiry; executives’ internal concerns that four bars might “look like Adidas” were opinions, not direct evidence on the Polaroid factors as applied to the accused activewear products.
  2. Mismatch between emails and the products tried to the jury. The emails concerned formalwear and accessories (including FC Barcelona-related designs), not the accused activewear line. That reduced their probative force as to the actual infringement case presented to the jury.
  3. The jury rejected stronger confusion evidence already. The jury had heard more direct evidence of confusion (including a consumer survey) and still found no liability. Against that trial record, the panel agreed the emails were unlikely to move the needle enough to “probably” change the result.

2) Rule 60(b)(3): the Second Circuit’s new “more-than-negligence” threshold

The opinion’s doctrinal centerpiece is its interpretation of “misconduct” in Rule 60(b)(3). The panel’s analysis proceeds in three steps:

  1. Textual ambiguity acknowledged, resolved by context. Because “misconduct” can mean either intentional wrongdoing or broader improper behavior, the panel turned to the structure of the Federal Rules.
  2. Structural alignment with Rule 37 severity. Vacating a final judgment is a severe remedy, analogous (in gravity) to the harshest Rule 37 sanctions. Since Rule 37’s harshest sanctions generally require intent/willfulness (not mere mistake), Rule 60(b)(3) “misconduct” should too. The panel highlighted the risk of anomaly: if negligence sufficed, parties could obtain new trials for conduct that would usually merit only modest sanctions (e.g., cost-shifting).
  3. History and drafting purpose. Rule 60(b)(3) was framed to address “tricks” and “deceit practiced on a party,” supporting a fraud-adjacent reading. Using noscitur a sociis, the panel further harmonized “misconduct” with “fraud” and “misrepresentation.”

Having set the legal threshold, the panel then applied it to the record: it disagreed with the district court’s conclusion that counsel was not negligent—finding that the failure to review/produce clearly relevant “needs further review” emails was negligent. But it held that negligence, even if proven, is categorically insufficient to qualify as Rule 60(b)(3) “misconduct.”

Impact

  • New Second Circuit rule limiting Rule 60(b)(3). Parties seeking post-judgment relief for discovery failures must now show more than negligence (the opinion leaves open whether gross negligence suffices). This narrows Rule 60(b)(3) and prioritizes the finality of judgments.
  • Practical channeling effect toward Rule 37 and pre-judgment remedies. Litigants will have stronger incentives to pursue discovery enforcement, supplementation, and sanctions during the case (or promptly post-trial under Rule 59), rather than relying on later Rule 60(b)(3) vacatur.
  • E-discovery quality control and vendor workflows remain critical. The panel still found negligence on a record featuring coding fields (“needs further review”), a “saved search” that excluded coded documents, and an incomplete quality-control pass. Even if negligence is insufficient for Rule 60(b)(3), it can still drive sanctions, reputational consequences, malpractice exposure, and adverse inferences where intent is shown.
  • Trademark litigation consequence: internal emails are not outcome-determinative by default. Even pointed internal statements about “looking like adidas” may not satisfy the “probable change in verdict” standard where (i) the products differ from those at issue and (ii) the jury has already rejected more direct confusion evidence.

Complex Concepts Simplified

Rule 60(b)(2) (“newly discovered evidence”)
A narrow safety valve that can reopen a final judgment if new evidence is found that could not have been found earlier with reasonable diligence and is important enough that it probably would have changed the result.
Rule 60(b)(3) (“fraud…misrepresentation, or misconduct”)
Another narrow safety valve aimed at serious wrongful conduct by the opponent that undermines the integrity of the judgment. This case holds that, in the Second Circuit, ordinary careless discovery mistakes (negligence) are not “misconduct” for this purpose.
“Clear and convincing evidence”
A demanding proof standard—more than “more likely than not,” though less than “beyond a reasonable doubt.” It reflects that undoing a final judgment is extraordinary.
Polaroid factors / “likelihood of confusion”
The Second Circuit’s multi-factor test for trademark infringement. It asks how consumers are likely to perceive the marks in the marketplace—an objective inquiry— rather than what brand executives privately feared or predicted.
Noscitur a sociis
A rule of interpretation: a word’s meaning can be informed by the words around it. Here, “misconduct” is read in light of its neighbors “fraud” and “misrepresentation.”

Conclusion

Adidas America, Inc. v. Thom Browne, Inc. is principally a Rule 60(b) decision with significant procedural consequences. The Second Circuit reaffirmed the demanding nature of Rule 60(b)(2)’s “probable change” requirement and, most importantly, established that Rule 60(b)(3) “misconduct” in this Circuit does not include merely negligent discovery violations. The decision strengthens finality, narrows post-judgment reopening, and signals that the most drastic corrective—vacatur and retrial—will be reserved for discovery wrongdoing more culpable than carelessness.