Indeed, the only factor weighing against
such sanctions is the public policy favoring disposition of cases on
the merits. However, it is Defendant’s own willful behavior that has
obscured the facts and impeded Plaintiff’s efforts to proceed to the
merits. For these and the foregoing reasons, it is respectfully
recommended that Plaintiff’s motion for terminating sanctions be
In other words the judge seems to opine that tactics by Frontrunners interfered with discovery and prevented the case from being decided on its own merits, and is therefore recommending judgment for the plaintiff (ABIM).
As to the counterclaim against ABIM, although the Frontrunners web page states that “litigation is ongoing,” according to the email from ABIM there is no active claim pending against them right now.
Many thanks to ABIM for the update and I hope this clears up any confusion.