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112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    112-174

======================================================================



 
                  LAWSUIT ABUSE REDUCTION ACT OF 2011

                                _______
                                

 July 21, 2011.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

       Mr. Smith of Texas, from the Committee on the Judiciary, 
                        submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 966]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 966) to amend Rule 11 of the Federal Rules of Civil 
Procedure to improve attorney accountability, and for other 
purposes, having considered the same, reports favorably thereon 
with an amendment and recommends that the bill as amended do 
pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     3
Hearings.........................................................    38
Committee Consideration..........................................    38
Committee Votes..................................................    39
Committee Oversight Findings.....................................    40
New Budget Authority and Tax Expenditures........................    40
Congressional Budget Office Cost Estimate........................    40
Performance Goals and Objectives.................................    41
Advisory on Earmarks.............................................    41
Section-by-Section Analysis......................................    41
Changes to the Federal Rules of Civil Procedure Made by the Bill, 
  as Reported....................................................    42
Dissenting Views.................................................    43

                             The Amendment

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Lawsuit Abuse Reduction Act of 2011''.

SEC. 2. ATTORNEY ACCOUNTABILITY.

  (a) Sanctions Under Rule 11.--Rule 11(c) of the Federal Rules of 
Civil Procedure is amended--
          (1) in paragraph (1), by striking ``may'' and inserting 
        ``shall'';
          (2) in paragraph (2), by striking ``Rule 5'' and all that 
        follows through ``motion.'' and inserting ``Rule 5.''; and
          (3) in paragraph (4), by striking ``situated'' and all that 
        follows through the end of the paragraph and inserting 
        ``situated, and to compensate the parties that were injured by 
        such conduct. Subject to the limitations in paragraph (5), the 
        sanction shall consist of an order to pay to the party or 
        parties the amount of the reasonable expenses incurred as a 
        direct result of the violation, including reasonable attorneys' 
        fees and costs. The court may also impose additional 
        appropriate sanctions, such as striking the pleadings, 
        dismissing the suit, or other directives of a nonmonetary 
        nature, or, if warranted for effective deterrence, an order 
        directing payment of a penalty into the court.''.
  (b) Rule of Construction.--Nothing in this Act shall be construed to 
bar or impede the assertion or development of new claims, defenses, or 
remedies under Federal, State, or local laws, including civil rights 
laws, or under the Constitution.

                          Purpose and Summary

    The Lawsuit Abuse Reduction Act of 2011 (``LARA'') would 
prevent frivolous lawsuits and help dispel the legal culture of 
fear that has come to permeate American society. The bill, 
which was introduced in the House by Congressman Lamar Smith 
and by Senator Chuck Grassley in the Senate on March 9, 2011, 
would restore the teeth Federal Rule of Civil Procedure 11 once 
had to deter frivolous Federal lawsuits.
    LARA would (1) restore mandatory sanctions for filing 
frivolous lawsuits in violation of Rule 11, (2) remove Rule 
11's ``safe harbor'' provision that currently allows parties 
and their attorneys to avoid sanctions for making frivolous 
claims by withdrawing frivolous claims after a motion for 
sanctions has been filed, and (3) require monetary sanctions, 
including attorneys' fees and compensatory costs, against any 
party making a frivolous claim.
    LARA applies to cases brought by individuals as well as 
businesses (both big and small), including business claims 
filed to harass competitors and illicitly gain market share. 
The bill also applies to both plaintiffs and defendants.\1\
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    \1\Indeed, under the pre-1993 Rule 11, sanctions were imposed on 
defendants for having raised frivolous defenses. In SEC v. Keating, 
1992 WL 207918, [1992 Transfer Binder] Fed.Sec.L.Rep. (CCH) para. 
96,906 (C.D.Cal.1992), the court imposed sanctions of the defendant 
Charles Keating because 12 of 14 ``shotgun'' defenses were ``patently 
frivolous.'' Sanctions were also imposed on defendants for filing 
inappropriate Rule 11 motions, see Berger v. Iron Workers, 843 F.2d 
1395 (D.C. Cir. 1988) (affirming in part per curiam 7 Fed. Rules Serv. 
3d 306 (D.D.C. 1986)), and also for filing frivolous or harassing 
counterclaims. See Aetna Insurance v. Meeker, 953 F.2d 1328 (11th Cir. 
1992) (affirming district court Rule 11 sanction of defendants for 
pursuing frivolous counterclaims of negligent salvage and conversion). 
In Swanson v. Sheppard, 445 N.W.2d 654 (N.D.1989), for example, the 
court imposed Rule 11 sanctions on the defendant because the defendant 
counterclaimed ``simply to discourage the plaintiff from continuing 
with his cause of action.'' Sanctions were imposed on defendants for 
failing to conduct a reasonable inquiry into the legal basis for their 
Rule 12(b)(6) motion to dismiss. In National Survival Game, Inc. v. 
Skirmish, U.S.A., Inc., 603 F Supp at 341-42 Rule 11 sanctions on 
defendants' counsel on the ground that counsel failed to conduct a 
reasonable inquiry into the legal basis for the Rule 12(b)(6) motion to 
dismiss, stating ``Defendants failed to cite a single case or authority 
in their two-page memorandum [in support of the motion]. Apparently, 
they completely ignored the firmly established precedents directly 
contradictory to their position. No doubt exists that [defendants'] 
counsel failed to conduct the `reasonable inquiry' that Rule 11 
requires to ensure that a motion `is warranted by existing law or a 
good faith argument for the extension, modification or reversal of 
existing law . . .''' Id. at 341-42. See also Steele v Morris, 608 F. 
Supp. 274 (S.D.W.Va. 1985) (court granted the plaintiff's motion for 
Rule 11 sanctions to be imposed upon the defendant, concluding that the 
defendant's counsel failed to make reasonable inquiry into both the 
facts and the law before filing a motion to dismiss in this case which 
alleged, among other things, that the plaintiff suffered emotional 
distress due to the defendant's willful, deliberate, and outrageous 
conduct). Sanctions were also imposed on defendants when they were 
found to have ignored firmly established precedent. In National 
Survival Game, Inc. v. Skirmish, U.S.A., Inc., 603 F. Supp. 339, 341-42 
(S.D.N.Y. 1985), Rule 11 sanctions were imposed because defendants 
``completely ignored the firmly established precedents directly 
contradictory to their position.'' And in Smith v. United Transp. Union 
Local 81, the court imposed Rule 11 sanctions where the defendants 
frivolously maintained a lawsuit by ignoring relevant law, relying on 
irrelevant law, and basing arguments on vacated cases. 594 F. Supp. 96, 
101 (S.D. Cal. 1984).
---------------------------------------------------------------------------
    Additionally, the bill expressly provides that ``Nothing 
in'' the changes made to Rule 11 ``shall be construed to bar or 
impede the assertion or development of new claims, defenses, or 
remedies under Federal, State, or local laws, including civil 
rights laws, or under the Constitution.''

                Background and Need for the Legislation

    In his 2011 State of the Union Address, President Obama 
said ``I'm willing to look at other ideas to bring down costs, 
including one that Republicans suggested last year: medical 
malpractice reform to rein in frivolous lawsuits.'' Given 
President Obama now claims to support reforms that limit 
frivolous lawsuits in the context of health care, there is no 
principled reason he should not also support limits on 
frivolous lawsuits in other contexts as well, including limits 
on frivolous lawsuits in Federal court.
    A letter written by someone filing a frivolous lawsuit, 
which recently became public, concisely illustrates how the 
current lack of mandatory sanctions for filing frivolous 
lawsuits leads to legal extortion. That letter to the victim of 
a frivolous lawsuit states ``I really don't care what the law 
allows you to do. It's a more practical issue. Do you want to 
send your attorney a check every month indefinitely as I 
continue to pursue this?''\2\
---------------------------------------------------------------------------
    \2\See http://pubcit.typepad.com/clpblog/2011/02/javelin-marketing-
seeks-to-suppress-criticism-of-its-insurance-leads-sales.html
---------------------------------------------------------------------------

              SECTION 2 OF THE LAWSUIT ABUSE REDUCTION ACT

    Federal Rule of Civil Procedure 11 (``Rule 11''), as 
originally adopted and prior to the adoption of weakening 
amendments in 1993, was widely popular among Federal judges, 
and it served to significantly limit lawsuit abuse.
    In 1990, the Judicial Conference's Advisory Committee on 
Civil Rules undertook a review of Rule 11 and asked the Federal 
Judicial Center to conduct an empirical study of its operation 
and impact. The survey of 751 Federal judges found that an 
overwhelming majority of Federal judges believed that Rule 11 
did not impede development of the law (95%); the benefits of 
the rule outweighed any additional requirement of judicial time 
(71.9%); the 1983 version of Rule 11 had a positive effect on 
litigation in the Federal courts (80.9%); and the rule should 
be retained in its then-current form (80.4%).\3\
---------------------------------------------------------------------------
    \3\Federal Judicial Center Final Report on Rule 11 to the Advisory 
Committee on Civil Rules of the Judicial Conference of the United 
States (May 1991). A subsequent survey conducted by the Federal 
Judicial Center in June 1995, consisting of 148 Federal judges and over 
1,000 trial attorneys found that the 1993 amendments that disallowed 
monetary compensation for victims of frivolous lawsuits were a bad 
idea. In that survey, two-thirds of judges (66%), defense attorneys 
(63%), and other attorneys (66%), and even a substantial portion of 
plaintiff's attorneys (43%), supported restoring Rule 11's compensatory 
function once again. See Shapard et. al., Report of a Survey Concerning 
Rule 11, Federal Rules of Civil Procedure at 5 (Federal Judicial Center 
1995).
---------------------------------------------------------------------------
    Despite this wide judicial support for a strong Rule 11, in 
1991 the Civil Rules Advisory Committee included provisions to 
weaken Rule 11 in a much broader package of proposed amendments 
to the Federal Rules. The change to Rule 11 was driven largely 
by the desire to avoid ``satellite litigation'' of Rule 11 
issues that could burden allegedly overworked judges.\4\ (But 
of course, any rule that punishes people for filing frivolous 
lawsuits must have procedures for determining whether or not 
the filing is frivolous. Otherwise, the rule would operate as a 
pure ``loser pays'' rule in which the losing side paid a 
penalty simply because they lost the case.) The proposed 
changes were then sent to the Supreme Court for approval or 
modification. Exercising what it viewed to be a very limited 
oversight role,\5\ the Supreme Court approved the proposed 
changes without substantive comment in April, 1993.
---------------------------------------------------------------------------
    \4\It is worth noting that 282,307 civil cases were filed in 
Federal district courts in the 1-year period ending March 31, 2010 (an 
increase of 9.2% over the 258,535 civil cases filed during that period 
the prior year). See Administrative Office of the United States Courts, 
Federal Judicial Caseload Statistics, March 31, 2010, available at 
http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/Statistics/
FederalJudicialCaseloadStatistics/2010/tables/C00Mar10.pdf (Table C, 
U.S. District Courts--Civil Cases Commenced, Terminated, and Pending 
During the 12-Month Periods Ending March 31, 2009 and 2010). Opponents 
caution that between 1983 and June 1993, when the prior version of Rule 
11 was in effect, approximately 7,000 judicial opinions referencing 
Rule 11 were reported--an average of 700 decisions per year. If LARA 
were to result in Rule 11 filings akin to those filed under the pre-
1993 rules, then only 1 in 400 Federal civil cases filed (0.25%) would 
be associated with a reported Rule 11 decision (700 out of 282,307 
civil cases filed). These cases, of course, would be disbursed among 94 
Federal judicial districts 
and 677 district court judges along with many senior judges. See http:/
/www.uscourts.gov/JudgesAndJudgeships/FederalJudgeships.aspx.
    \5\While the Supreme Court is authorized to ``prescribe'' the 
general rules of Federal court practice and procedure, see Judicial 
Improvements and Access to Justice Act, 28 U.S.C. Sec. 2072(a), in fact 
it has been the general practice of the Supreme Court to merely act as 
a conduit for the rule changes and rely on the Judicial Conference to 
make the decisions in this area. As pointed out in the House 
Judiciary's Committee Report on H.R. 988 in the 104th Congress, Justice 
White believed that, as a matter of practice, the role of the Supreme 
Court is to ``. . . transmit the Judicial Conference recommendations 
without change and without careful study as long as there is no 
suggestion that the committee system has not operated with integrity.'' 
Indeed Chief Justice Rehnquist's April 22, 1993 letter conveying the 
rules to the Speaker states: ``While the Court is satisfied that the 
required procedures have been observed, this transmittal does not 
necessarily indicate that the court itself would have proposed these 
amendments in the form submitted.'' H. Rep. No. 104-62, at 11, n.14 
(1995).
---------------------------------------------------------------------------
    In a strongly worded dissent on the Rule 11 changes, 
Justice Scalia correctly anticipated that the proposed revision 
would eliminate a ``significant and necessary deterrent'' to 
frivolous litigation, stating ``the overwhelming approval of 
the Rule by the Federal district judges who daily grapple with 
the problem of litigation is enough to persuade me that it 
should not be gutted.''\6\ Justices Scalia and Thomas properly 
dissented from the transmittal of the amendments to Rule 11 to 
Congress, arguing that ``[t]he proposed revision would render 
the Rule toothless, by allowing judges to dispense with 
sanction, by disfavoring compensation for litigation expenses, 
and by providing a 21-day `safe harbor' within which, if the 
party accused of a frivolous filing withdraws the filing, he is 
entitled to escape with no sanction at all.''\7\
---------------------------------------------------------------------------
    \6\Id. at 11.
    \7\146 F.R.D. 401, 507-08 (1993).
---------------------------------------------------------------------------
    Rule 11 as it existed prior to the 1993 amendments was very 
popular with Federal judges. The Federal Judicial Center 
(``FJC'') was commissioned to conduct empirical studies and 
surveys on the operation of the old Rule 11,\8\ and in a survey 
of all Federal trial judges, the FJC found that 80% were of the 
opinion that the old Rule 11 had had an overall positive effect 
and should not be changed.\9\ Congress needs to restore those 
positive effects once again.
---------------------------------------------------------------------------
    \8\Standing Committee on Rules of Practice and Procedure of the 
Judicial Conference of the United States, Call for Written Comments on 
Rule 11 of the Federal Rules of Civil Procedure and Related Rules as 
Amended in 1983 (August 1990), reprinted in 131 F.R.D. 335 (1990).
    \9\Interim Report on Rule 11, Advisory Committee on Civil Rules, 
reprinted in Georgene M. Vairo, Rule 11 Sanctions: Case Law 
Perspectives and Preventive Measures, App. at 1-8 to 1-10 (2d ed. 
1991).
---------------------------------------------------------------------------
    After the proposal to gut Rule 11 was forwarded to 
Congress, there was a 7-month period under the Rules Enabling 
Act in which the Congress had the authority to make changes, 
but time ran out before Congress could stop these damaging 
amendments to Rule 11.\10\
---------------------------------------------------------------------------
    \10\Under the Rules Enabling Act, Congress has 7 months to act on 
the proposed rules; if Congress does not act, the proposed rules become 
law. See 28 U.S.C. Sec. 2074(a). Despite the introduction of H.R. 2979 
in the 103rd Congress by Carlos J. Moorhead, which would have delayed 
the effective date of the proposed changes to Rule 11, and a companion 
bill in the Senate, no formal action was taken in the Democrat-
controlled House, and the revisions went into effect on December 1, 
1993. The House later passed H.R. 988 in the 104th Congress--which, 
among other things, would have restored Rule 11 to its original form--
by a vote of 232-193, but it was not taken up in the Senate.
---------------------------------------------------------------------------
    Section 2 of LARA would restore teeth to Rule 11 once 
again.
    In particular, Section 2 of LARA would:

         LRequire monetary sanctions against lawyers 
        who file frivolous lawsuits. Indeed, a survey conducted 
        by the Federal Judicial Center in June, 1995, 
        consisting of 148 Federal judges and over 1,000 trial 
        attorneys found that the 1993 amendments that 
        prohibited monetary compensation for victims of 
        frivolous lawsuits were a bad idea. In that survey, 
        two-thirds of judges (66%), defense attorneys (63%), 
        and other attorneys (66%), and even a substantial 
        portion of plaintiff's attorneys (43%), supported 
        restoring Rule 11's compensatory function once 
        again.\11\ LARA would do just that.
---------------------------------------------------------------------------
    \11\See Shapard et. al., Report of a Survey Concerning Rule 11, 
Federal Rules of Civil Procedure, supra note 3, at 5.

         LReverse the 1993 amendments to Rule 11 that 
        made Rule 11 sanctions discretionary rather than 
        mandatory. Because today, under a weak Rule 11, 
        sanctions in frivolous cases are not mandatory, there 
        is little incentive for a victim of a frivolous lawsuit 
        to spend time and money seeking Rule 11 sanctions. 
        Deterrence cannot be achieved without certain 
        punishment. While a court should have discretion to 
        fashion an appropriate sanction based on the 
        circumstances of the violation, litigants making 
        frivolous claims should not be allowed the opportunity 
---------------------------------------------------------------------------
        to escape sanctions entirely.

         LReverse the 1993 amendments to Rule 11 that 
        allow parties and their attorneys to avoid sanctions 
        for making frivolous claims and demands by withdrawing 
        them within 21 days after a motion for sanctions has 
        been filed. Justice Scalia correctly pointed out that 
        such amendments would in fact encourage frivolous 
        lawsuits: ``In my view, those who file frivolous suits 
        and pleadings should have no `safe harbor.' The Rules 
        should be solicitous of the abused (the courts and the 
        opposing party), and not of the abuser. Under the 
        revised Rule, parties will be able to file thoughtless, 
        reckless, and harassing pleadings, secure in the 
        knowledge that they have nothing to lose: If objection 
        is raised, they can retreat without penalty.''\12\ LARA 
        would get rid of the ``free pass'' lawyers have to file 
        frivolous lawsuits under today's Rule 11.
---------------------------------------------------------------------------
    \12\Id.

    It is important to remember that nothing in LARA changes 
the current standard by which frivolous lawsuits are judged. 
That is, under LARA, the standard a judge will use to determine 
whether a case is frivolous will remain as it has been, namely 
---------------------------------------------------------------------------
a determination that:

         Lthe case is not being presented for any 
        improper purpose, such as to harass or to cause 
        unnecessary delay or needless increase in the cost of 
        litigation;

         Lthe claims, defenses, and other legal 
        contentions therein are warranted by existing law or by 
        a nonfrivolous argument for the extension, 
        modification, or reversal of existing law or the 
        establishment of new law;

         Lthe allegations and other factual contentions 
        have evidentiary support or, if specifically so 
        identified, are likely to have evidentiary support 
        after a reasonable opportunity for further 
        investigation or discovery; and

         Lthe denials of factual contentions are 
        warranted on the evidence or, if specifically so 
        identified, are reasonably based on a lack of 
        information or belief.

    Only cases that meet the criteria outlined above will be 
subject to Rule 11 sanctions under the Lawsuit Abuse Reduction 
Act. The baseless nature of arguments by reform opponents that 
Rule 11 somehow stifles growth in the law is belied by the fact 
that Rule 11 explicitly allow for growth in the law, but not 
for frivolous arguments for extensions of the law.
    Further, LARA expressly provides that ``Nothing in'' the 
changes made to Rule 11 ``shall be construed to bar or impede 
the assertion or development of new claims, defenses, or 
remedies under Federal, State, or local laws, including civil 
rights laws, or under the Constitution.''

  FRIVOLOUS LITIGATION HAS A CORROSIVE EFFECT ON AMERICAN CULTURE AND 
   VALUES, THREATENING AMERICA'S CHURCHES, SCHOOLS, DOCTORS, SPORTS, 
  PLAYGROUNDS, FRIENDLY RELATIONS, AND EVEN THE GIRL SCOUTS AND OTHER 
                          FAMILY INSTITUTIONS

    Frivolous litigation has a corrosive effect on American 
culture and values, threatening America's churches, schools, 
doctors, sports, playgrounds, friendly relations, even the Girl 
Scouts and other family institutions, and everyone else.
    As Philip Howard has pointed out, due to an onslaught of 
frivolous lawsuits ``[l]egal fear has become a defining feature 
of our culture.''\13\ The values crisis caused by lawsuit abuse 
reaches all parts of American society.
---------------------------------------------------------------------------
    \13\Philip K. Howard, The Collapse of the Common Good: How 
America's Lawsuit Culture Undermines Our Freedom (2001) at 11.
---------------------------------------------------------------------------
    Although LARA would only amend the Federal court rule on 
frivolous lawsuits, state rules are often amended to track the 
changes in the Federal rules because a system of generally 
uniform rules in both state and Federal courts makes filing the 
proper papers for lawyers less confusing.\14\ Consequently, the 
following list includes examples of frivolous lawsuits in both 
state and Federal court under the expectation that many states 
would amend their state rules on frivolous lawsuits to reflect 
the rules in LARA were LARA to become Federal law, just as 
states did just that when the Federal rules on frivolous 
lawsuits were last changed.\15\
---------------------------------------------------------------------------
    \14\The 1993 change to Rule 11 may show the likely impact of 
amending the rule through LARA on state rules of civil procedure. After 
amendment of Rule 11 in 1993, at least 13 states and the District of 
Columbia amended their rules to conform to the Federal rule. In some 
states, this change occurred within 1 or 2 years of the amendment of 
the Federal rule. In others, it took 7 or more years for the state to 
catch up through their rule-amendment process. These states include 
Delaware (1995), District of Columbia (1995), Hawaii (2000), Minnesota 
(2000), Missouri (1994), Nevada (2005), New Jersey (1994/96), North 
Dakota (1996), Tennessee (1995), Utah (1997), Vermont (1996), West 
Virginia (1998), Wisconsin (1998), and Wyoming (1994). Arkansas and 
Florida also partially modified their state equivalents to add the 
``safe harbor'' provided by the Federal rule in 1997 and 2002, 
respectively.
---------------------------------------------------------------------------
  States often make such changes because their policy is to maintain 
consistency with the Federal rules to avoid forum shopping and to 
benefit from the interpretation of the rules by Federal courts. For 
example, the notes to Rule 11 of the Nevada Rules of Civil Procedure 
with respect to its 2005 amendment state that ``[t]he rule is amended 
to conform to the Federal rule, as amended in 1993, in its entirety.'' 
Similarly, Tennessee's 2003 amendment of its Rule 11 notes that 
``Amended Rule 11 tracks the Federal version.'' The notes to 
Wisconsin's 1998 amendment of the state equivalent to Rule 11 provide 
that ``[j]udges and practitioners will now be able to look to 
applicable decisions of Federal courts since 1993 for guidance in the 
interpretation and application of the mandates of FRCP 11 in 
Wisconsin.''
  In fact, in adopting the 1993 version of Federal Rule 11, some states 
noted that they did not experience significant problems with the prior 
rule, but would nevertheless adopt the 1993 Federal amendments as a 
matter of their policy of maintaining consistency with the Federal 
rules. The Advisory Committee notes following Minnesota Rule of Civil 
Procedure 11.01 may best explain the policy: ``Rule 11 is amended to 
conform completely to the Federal rule. While Rule 11 has worked fairly 
well in its current form . . . , the Federal rules have been amended to 
create both procedural and substantive differences between state and 
Federal court practices . . . On balance, the Committee believes that 
the amendment of the Rule to conform to its Federal counterpart makes 
the most sense, given this Committee's long-standing preference for 
minimizing the differences between state and Federal practice unless 
compelling local interests or long-entrenched reliance on the state 
procedure makes changing a rule inappropriate.'' Vermont noted with its 
1996 amendment of Rule 11 that it ``experienced far less difficulty'' 
than the Federal courts in administering the pre-1993 version of Rule 
11, but it would conform to the Federal rule to ``substantially improve 
the practice.''
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    \15\Many states' rules of civil procedure are modeled after Federal 
Rule 11, and therefore also do not require sanctions for the filing of 
frivolous lawsuits. See Ark. R. Civ. P. 11 (Arkansas), Addition to 
Reporter's Notes, 1997 Amendment (``The rule has been amended by 
designating the former text as subdivision (a) and by adding new 
subdivision (b), which is based [on] Rule 11(c)(1) of the Federal Rules 
of Civil Procedure, as amended in 1993 . . . New subdivision (b) 
provides that requests for sanctions must be made as a separate motion, 
rather than simply be included as an additional prayer for relief in 
another motion. The motion for sanctions is not to be filed until at 
least 21 days, or other such period as the court may set, after being 
served. . . .''); Minn. R. Civ. P. 11.04 (Minnesota), Advisory 
Committee Comments, 2000 Amendments (``Rule 11 is amended to conform 
completely to the Federal rule. . . . On balance, the Committee 
believes that the amendment to the Rule to conform to its Federal 
counterpart makes the most sense, given this Committee's long-standing 
preference for minimizing the differences between state and Federal 
practice . . .''); N.D. R. Civ. P. 1 (North Dakota), Explanatory Note 
(``As will become readily apparent from a reading of the rules, they 
are the Federal Rules of Civil Procedure adapted, insofar as 
practicable, to state practice.''); N.D. R. Civ. P. 11 (North Dakota), 
Explanatory Note (``Rule 11 was revised, effective March 1, 1996, in 
response to the 1993 revision of Rule 11.''); Tenn. R. Civ. P. 11 
(Tennessee), Advisory Commission Comment to 1995 Amendment (``Amended 
Rule 11 tracks the current Federal version. Sanctions no longer are 
mandatory, and non-monetary sanctions are encouraged. The 21-day safe 
harbor provision allows otherwise sanctionable papers to be withdrawn, 
thereby escaping sanctions.''); Utah R. Civ. P. 11 (Utah), Advisory 
Committee Note (``The 1997 amendments conform state Rule 11 with 
Federal Rule 11.''); Vt. R. Civ. P. 11 (Vermont), Reporter's Notes to 
1996 Amendment (``Rule 11 is amended to conform to the 1993 amendment 
of Federal Rule 11.''). In addition, state courts also often rely on 
Federal court decisions when interpreting their rules. See e.g. Gray v. 
Washington, 612 A.2d 839, 842 (D.C. 1992); Bryson v. Sullivan, 412 
S.E.2d 327, 332 (N.C. 1992); Bryant v. Joseph Tree, Inc., 829 P.2d 
1099, 1104-05 (Wash. 1992) (en banc). Sanctions for frivolous filings 
are also not mandatory in 38 states and the District of Columbia. See 
Ala. R. Civ. P. 11 (Alabama); Alaska R. Civ. P. 11 (Alaska); Ark. R. 
Civ. P. 11 (Arkansas); Cal.C.C.P. Sec. 128.5 (California); C.R.C.P. 11 
(Colorado); C.G.S.A. Sec. 52-190a (Connecticut); Del. R. Sup. Ct. R. 33 
(Delaware); D.C. R. Civ. P. 11 (D.C.); Fla. R. Civ. P. 1.150 (Florida); 
Hi. R. Civ. P. 11 (Hawaii); Il. C. S. Sup. Ct. R. 137 (Illinois); In. 
St. Trial Rule 11 (Indiana); La. Civ. Code Ann. Art. 864 (Louisiana); 
Me. R. Civ. P. 11 (Maine); Md. Rule 1-311 (Maryland); Mass. R. Civ. P. 
11 (Massachusetts); Minn. R. Civ. P. 11.03 (Minnesota); Miss. R. Civ. 
P. 11 (Mississippi); Miss. Code Ann. Sec. 11-55-5 (Mississippi); Mo. S. 
Ct. R. 55.03 (Missouri); Neb. R. Civ. P. St. Sec. 25-824 (Nebraska); 
N.H. Sup. Ct. R. 59 (New Hampshire); N.J.S.A. Sec. 2A:15-59.1 (New 
Jersey); N.M.R. Dist. Ct. R. Civ. P. 1-011 (New Mexico); N.D. R. Civ. 
P. 11 (North Dakota); Ohio R. Civ. P. 11 (Ohio); 12 Okl. St. Ann. 
Sec. 2011 (Oklahoma); Or. R. Civ. P. 17 (Oregon); Pa. R. Civ. P. 1023.1 
(Pennsylvania); Pa. R. Civ. P. 1023.4 (Pennsylvania); R.I. R. Civ. P. 
11 (Rhode Island); S.C. R. Civ. P. 11 (South Carolina); Tenn. R. Civ. 
P. 11.03 (Tennessee); Tex. Civ. Prac. & Remedies Code Sec. 10.004 
(Texas); Utah R. Civ. P. 11 (Utah); Vt. R. Civ. P. 11 (Vermont); Va. 
Sup. Ct. R. 1:4 (Virginia); Va. Sup. Ct. R. 4:1 (Virginia); Wash. 
R.Civ. P. 11 (Washington); W.Va. R. Civ. P. 11 (West Virginia); W.S.A. 
Sec. 802.05 (Wisconsin); Wyo. R. Civ. P. 11 (Wyoming).
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  RECENT FRIVOLOUS FEDERAL LAWSUITS IN WHICH NO SANCTIONS WERE IMPOSED

    What follows is a list of recent frivolous Federal lawsuits 
in which no sanctions were imposed because Federal Rule 11 as 
it currently exists does not require sanctions for the filing 
of frivolous lawsuits. LARA would likely change the outcome in 
these cases and punish lawyers who file frivolous lawsuits.

         LKaren McBrien twice filed claims alleging 
        that Federal agencies have her under surveillance and 
        have conducted biomedical and genetic experiments on 
        her. In dismissing the lawsuits as frivolous, the court 
        found that ``[c]laims describing fantastic or 
        delusional scenarios fall into the category of cases 
        whose factual contentions are clearly baseless.'' 
        McBrien v. United States, No. 09-2432 (D.D.C. Feb. 26, 
        2010); McBrien v. FBI, No. 09-0197, 2009 WL 260043 
        (D.D.C. Feb. 3, 2009). Nevertheless, Ms. McBrien moved 
        for reconsideration, which the court denied, and 
        appealed her case to the D.C. Circuit. The court 
        allowed her to appeal in forma pauperis without paying 
        the ordinary filing fee. On November 24, 2010, the D.C. 
        Circuit finally dismissed the case for lack of 
        prosecution by the plaintiff. At no point did the trial 
        or appellate court impose any penalty on the plaintiff 
        for the frivolous litigation.

         LIn July 2009, three New Jersey residents, 
        backed by the vegan advocacy group Physicians Committee 
        for Responsible Medicine (PCRM) and its ``Cancer 
        Project,'' filed a class action lawsuit in Essex 
        County, New Jersey against several hot dog 
        manufacturers claiming they were exposed to carcinogens 
        by eating hot dogs. None of the plaintiffs had actually 
        developed cancer. The lawsuit was filed in coordination 
        with an anti-hot dog billboard and television 
        advertising campaign, which many criticized as alarmist 
        and unsupported by science. The lawsuit sought damages 
        in the amount of the total cost of their hot dog 
        purchases and a requirement that the companies place a 
        new label on packages and advertising reading: 
        ``WARNING: CONSUMING HOT DOGS AND OTHER PROCESSED MEATS 
        INCREASES THE RISK OF CANCER.'' Six months after the 
        case was moved to Federal court, U.S. District Court 
        Judge Jose Linares dismissed the case. O'Donnell v. 
        Kraft Foods Inc., No.2:09-cv-04448-JLL-CCC (D. N.J. 
        Mar. 18, 2010).

         LRhonda Nichols claimed a wild bird 
        ``attacked'' her while in a home improvement store's 
        outdoor garden center in Fairview Heights, Illinois, 
        causing head injuries. She never reported the 2005 
        incident to the Lowe's store, but sued for at least 
        $100,000 in damages claiming negligence and a violation 
        of the Illinois Animal Control Act. Due to Lowe's 
        stores' incorporation in North Carolina, the case was 
        removed to Federal court. Nichols claimed that the wild 
        birds created a dangerous condition on the property and 
        that Lowe's failed to exercise ordinary care to ensure 
        that the premises were reasonably safe and failed to 
        prevent the birds from entering the garden center. In 
        January 2006, U.S. District Judge William Stiehl ruled 
        that a ``reasonable plaintiff'' either would have 
        noticed the birds or understood that contact with them 
        was possible in any outdoor area with plants. The final 
        line of the ruling: ``Each party shall bear its own 
        costs.'' Nichols v. Lowe's Home Center, Inc., No. 05-
        CV-376-WDS (S.D. Ill. Jan. 3, 2006).

         LSherry Wall, the owner of 95-pound Doberman 
        Pinscher that constantly got loose and frightened her 
        neighbors, brought a lawsuit against a Milwaukee 
        suburb. She claimed the local government violated her 
        constitutional rights by telling the local humane 
        society to hold the roaming dog as a stray, after which 
        it held the dog for 60 days before returning it to the 
        owner. After the trial court dismissed the case, the 
        owner appealed. A panel of the U.S. Court of Appeals 
        for the Seventh Circuit found that a neighborhood 
        squabble over a dog is ``nuisance litigation'' that has 
        no place in Federal court and ordered the owner to show 
        ``why she should not be sanctioned for making a 
        frivolous argument in a meritless case.'' It does not 
        appear from the court docket that it ultimately entered 
        sanctions of any kind. Wall v. Brookfield, 406 F.3d 458 
        (7th Cir. 2005).

         LAfter watching an episode of the reality TV 
        show Fear Factor on NBC in December 2004, Austin 
        Aitken, a part-time paralegal from Cleveland, filed a 
        handwritten lawsuit suing the network for $2.5 million. 
        He said the sight of contestants eating blended rats 
        disgusted him so much that his health suffered. He 
        claimed the show raised his blood pressure, made him 
        dizzy, and caused him to vomit. He also became so 
        disoriented, he said he ran into a doorway ``causing 
        suffering, injury and great pain.'' He then followed up 
        by requesting that the court order NBC to ``cease and 
        desist'' from publicizing the absurd lawsuit. U.S. 
        District Judge Lesley Wells called the lawsuit 
        frivolous as it lacked even an arguable legal claim, 
        and warned Mr. Aitken against filing an appeal. The 
        court, however, did not award NBC its defense costs. In 
        fact, despite dismissing the lawsuit as frivolous, the 
        court granted Aitken's request for an exemption from 
        paying ordinary filing fees. Aitken v. NBC Television 
        Network, No. 1:04cv02574 (N.D. Ohio Feb. 25, 2005).

         LAfter her father obtained full custody over 
        her and her younger sisters in a divorce action, Sarah 
        Schottenstein sued her father and his employer for 
        violations of the Eighth Amendment prohibition on cruel 
        and unusual punishment and Fourteenth Amendment 
        deprivation of liberty without due process, and for 
        habeas corpus relief. One of her attorneys signed the 
        complaint without reading it, the other refused to 
        withdraw it and prolonged the litigation by filing an 
        amended complaint. The court found the lawsuit 
        frivolous, given that the lawsuit was against private 
        parties, not the state. Nevertheless, due to Rule 11's 
        discouragement of awarding sanctions as compensation 
        for unwarranted litigation expenses, the court only 
        sanctioned the attorneys $21,503.50 and $1,131.75, 
        respectively, of the defendant's nearly $75,000 in 
        costs. It did so despite finding that his defense costs 
        were not only reasonable, but ``lower than those 
        typically charged by attorneys at comparable law 
        firms'' in the area. Schottenstein v. Schottenstein, 
        230 F.R.D. 355 (S.D.N.Y. 2005).

         LWhen the government tried to foreclose on 
        their home, Donald and Gloria Beaner came up with a 
        creative approach. They sued the United States, 
        claiming that their mortgage was fraudulent because the 
        government never provided them with ``legal tender'' or 
        ``real money'' as defined by the U.S. Constitution. 
        Only silver or gold would do, they claimed. Although 
        the couple had engaged in a pattern of filing frivolous 
        lawsuits and the court had previously rejected their 
        claims and urged them to voluntarily dismiss their 
        complaint, they prolonged the litigation. Yet, despite 
        wasting the time of the judges and lawyers, the court 
        imposed only a sanction of $500 apiece. Beaner v. 
        United States, 361 F. Supp.2d 1063 (D. S.D. 2005).

  FEDERAL FRIVOLOUS LAWSUITS IN WHICH CURRENT RULE 11'S 21-DAY ``FREE 
         PASS FOR FRIVOLOUS LAWSUITS'' HARMED THOSE BEING SUED

    Rule 11's ``safe harbor'' requires a person who is hit with 
a frivolous claim to hire an attorney to draft a motion for 
sanctions, but provide a copy of the motion to the offender 21-
days before filing the request. During that time, the offender 
can withdraw the frivolous claim with no penalty whatsoever. 
Due to this safe harbor, many frivolous claims are never seen 
by courts. Failure to strictly comply with the technical 
requirements of the safe harbor provisions results in a denial 
of sanctions, as occurred in the following cases. LARA would 
prevent such injustices by getting rid of the 21-day safe 
harbor rule for frivolous lawsuits.

         LA couple who borrowed over $1 million, then 
        defaulted, brought a lawsuit against the lenders 
        asserting a civil rights claim as members of a 
        protected class of ``consumers looking to build their 
        dream home,'' conspiracy, and other claims. Although a 
        plaintiff was put on notice by two defendants of its 
        frivolous complaint, and refused to withdraw it, a 
        third defendant, that had not provided notice of an 
        intent to seek sanctions until several months later, 
        could not obtain any relief. Holgate v. Baldwin, 425 
        F.3d 671, 677 (9th Cir. 2005).

         LAn online diamond seller sued a rival for 
        infringement of a patent by ``listing, selling, 
        offering for sale, and facilitating the sale of 
        diamonds.'' The defendants sent the plaintiffs two 
        letters warning that they would seek attorneys' fees 
        and costs pursuant to Rule 11 if they did not 
        voluntarily dismiss their patent claim. The plaintiffs 
        did not do so. Two months later, after discovery, the 
        plaintiff dismissed its claim, and the court did so 
        with prejudice. The court held, however, that the 
        defendant could not obtain sanctions because only 
        serving a motion, not a letter, will fulfill the 21-day 
        notice requirement of Rule 11. Diamonds.net LLC v. Idex 
        Online, Ltd., 254 F.R.D. 475 (S.D.N.Y. 2008).

         RECENT FRIVOLOUS STATE LAWSUITS IN WHICH NO SANCTIONS 
                              WERE IMPOSED

    While LARA itself does not affect state law regarding 
frivolous litigation, as described above, many states 
voluntarily amend their own state rules on frivolous litigation 
to mirror the Federal rules. If states followed LARA, the 
following frivolous lawsuits filed in state court would likely 
be appropriately punished.

         LLindsay Lohan sought $100 million from E-
        Trade for use of the name ``Lindsay'' in reference to a 
        female baby in a commercial aired during the Super 
        Bowl. Lohan's name was never mentioned in the ad. Lohan 
        filed a lawsuit, however, in the Nassau County Supreme 
        Court in the New York, claiming that the public knows 
        her by the singular name, like Oprah or Madonna, and 
        that referring to the baby as a ``milk-aholic'' 
        directly references her life. Lohan claimed $50 million 
        in compensatory damages, as well as $50 million in 
        exemplary (punitive) damages. The case was not thrown 
        out of court as frivolous, but settled in September 
        2010 for an undisclosed sum. An E*Trade spokeswoman 
        said ``It was a simple business decision. We always 
        have to consider the cost and time involved in 
        litigation, and we are pleased to have the matter 
        behind us.''

         LIn October 2009, Yvette Gorzelany, Joanna 
        Obiedzinski, and Paulina Pakos sued in New Jersey 
        Superior Court in Bergen County over their appearance 
        in photographs included in the book ``Hot Chicks with 
        Douchebags.'' The plaintiffs were not identified in 
        photo captions, which were taken at a club, or 
        discussed anywhere in the entire book. They brought 
        claims for intentional and negligent infliction of 
        emotional distress, conspiracy to commit fraud, 
        invasion of privacy, unfair competition under a 
        nonexistent statute described as the Business and 
        Professional Code Section 17200 (a cut and paste error 
        from the frequently abused California law of that 
        name), defamation and ``humiliation'' (another 
        nonexistent claim). Four months later, a New Jersey 
        judge threw out the suit, finding that the book was 
        obviously an attempt at satire and that the plaintiffs 
        had no actionable claim.

         LIn 2005, Roy Pearson Jr, an administrative 
        law judge in Washington, D.C., sued a family-owned dry 
        cleaning shop for $67 million, later reduced to $54 
        million, for allegedly losing his pants. Pearson 
        claimed the Chung family failed to live up to 
        ``satisfaction guaranteed'' and ``next day service'' 
        signs displayed in the store. After more than 2 years 
        of litigation, Pearson's lawsuit was tried before a 
        D.C. Superior Court judge who ruled for the Chungs. 
        Judge Judith Bartnoff ordered Pearson to pay the 
        family's litigation costs and noted that she would 
        consider awarding attorneys' fees after still more 
        motions and hearings. Pearson, however, continued to 
        prolong the litigation through 2008 and into 2009 until 
        the District's highest court finally denied Pearson's 
        appeal and request for rehearing. Meanwhile, the South 
        Korean immigrants closed their store and decided 
        against pursuing reimbursement of $83,000 in defense 
        costs. Pearson was denied reappointment as an 
        Administrative Law Judge due to his lack of ``judicial 
        temperament.'' He then brought a Federal lawsuit 
        against the city for the loss of his job, which he 
        again lost, but continued until the D.C. Circuit denied 
        his appeal in May 2010.

         LWhile shopping at an open air mall in Skokie, 
        Illinois in 2004, Marcy Meckler had just left the 
        Tiffany & Co. jewelry store and was walking to 
        Nordstrom when she ``had a squirrel jump up and attach 
        itself to her leg,'' according to the lawsuit she filed 
        nearly 2 years later in Cook County Circuit Court. She 
        claimed that the mall was responsible for ``encouraging 
        the squirrel'' to be in its courtyard and for ``failing 
        to warn the plaintiff of the squirrel's presence.'' She 
        originally sued for common law negligence, but later 
        added a claim under the Illinois Animal Control Act, 
        which imposes strict liability on the ``owner'' of an 
        animal that attacks a person without provocation. The 
        lawsuit demanded in excess of $50,000 for the severe 
        injuries she experienced ``while frantically attempting 
        to escape from the squirrel and detach it from her 
        leg.'' Cook County Circuit Court Judge Kathy M. 
        Flanagan allowed Meckler to amend her complaint twice, 
        but dismissed the case with prejudice on the third 
        attempt in a July 2007 ruling.

              FRIVOLOUS LAWSUITS AFFECT EVERYONE: CHURCHES

    In response to litigation against a church after a 
parishioner committed suicide, churches have begun implementing 
policies discouraging counseling by ministers. Instead, 
parishioners are being referred to secular psychologists and 
other therapists.\16\ According to a recent Newsweek cover 
story, ``The Rev. Ron Singleton's door is always open. That 
way, when the Methodist minister of a small congregation in 
Inman, S.C., is counseling a parishioner, his secretary across 
the hall is a witness in case Singleton is accused of 
inappropriate behavior. (When his secretary is not around, the 
reverend does his counseling at the local Burger King.) 
Singleton has a policy of no hugging from the front; just a 
chaste arm around the shoulders from the side. And he's 
developed a lame little hand pat to console the lost and the 
grieving. The dearth of hugging is `really sad,' he says, but 
what is he going to do? He could ill afford a lawsuit.''\17\
---------------------------------------------------------------------------
    \16\Id. at 32.
    \17\Stuart Taylor, Jr. and Evan Thomas, ``Civil Wars,'' Newsweek 
(December 15, 2003) at 43.
---------------------------------------------------------------------------

              FRIVOLOUS LAWSUITS AFFECT EVERYONE: SCHOOLS

    A poll found that ``[n]early 8 in 10 teachers (78%) said 
students are quick to remind them that they have rights or that 
their parents can sue.''\18\
---------------------------------------------------------------------------
    \18\Public Agenda, ``Teaching Interrupted: Do Discipline Policies 
in Today's Public Schools Foster the Common Good?'' (May 2004) at 2-3.
---------------------------------------------------------------------------
    The Supreme Court's 1975 Goss v. Lopez\19\ decision 
extended Federal due process rights to student discipline and 
literally made every school discipline decision a potential 
Federal case. According to Newsweek:
---------------------------------------------------------------------------
    \19\419 U.S. 565 (1975) (holding imposition of suspensions without 
preliminary hearings violated students' due process rights guaranteed 
by Fourteenth Amendment).

        ``Legal fear'' is just as intense in the educational 
        system. Many Americans sense that schools have become 
        chaotic and undisciplined over time and the quality of 
        teachers has declined. Many teachers say that the joy 
        has gone out of their jobs. What's not generally known 
        is the role of courts and Congress in creating these 
        problems by depriving teachers and principals of the 
        freedom to use their own common sense and best 
        judgment. Thanks to judicial rulings and laws over the 
        past four decades, parents can sue if their kids are 
        suspended for even a single day--for any reason--
        without adequate ``due process.''\20\
---------------------------------------------------------------------------
    \20\Stuart Taylor, Jr. and Evan Thomas, ``Civil Wars,'' Newsweek 
(December 15, 2003) at 48.

        Unruly students sense the teachers' fear and their own 
        empowerment. ``A kid will be acting out in class, and 
        you touch his shoulder, and he'll immediately come back 
        with `Don't touch me or I'll sue,' or, `You don't have 
        any witnesses','' says Rob Wiel, who taught high-school 
        math and coached football and baseball in the Denver 
        suburbs for 20 years before retiring recently.\21\
---------------------------------------------------------------------------
    \21\Id. at 49.

    In New Jersey, ``[a] state judge . . . threw out a lawsuit 
filed by an Atlantic County man who said assigned seating in a 
school lunchroom violated his 12-year-old daughter's right to 
free speech. Superior Court Judge Valerie Armstrong said 
Galloway Township school administrators had the right to impose 
the restriction to maintain order and safety in a cafeteria 
that serves 260 students in each of four 30-minute lunch 
periods.''\22\
---------------------------------------------------------------------------
    \22\John Curran, ``Judge Rejects a Rights Suit Over School's Lunch 
Seating,'' The Philadelphia Inquirer (July 20, 2004) at B4.
---------------------------------------------------------------------------
    According to the St. Petersburg Times:

        In Pinellas County [Florida], two Palm Harbor 
        University High School baseball players sued the school 
        district claiming they were wrongly booted from school 
        because of a roughhousing incident that occurred on a 
        team road trip. In Hillsborough County, Robinson High 
        School senior Nicole ``Nikki'' Youngblood filed suit 
        after her picture was left out of the school yearbook 
        when she refused to wear a feminine drape instead of a 
        shirt and tie as she wished. These two cases only 
        scratch the surface of lawsuits filed against local 
        public school districts on an almost daily basis. More 
        and more, offenses that used to be settled inside the 
        schoolhouse now end up at the courthouse. The result, 
        educators say, is less money for learning. ``We spend 
        millions and millions on attorney fees every year that 
        has nothing to do with the classroom,'' said Wayne 
        Blanton, executive director of the Florida School 
        Boards Association. ``Every lawsuit we have to defend 
        is money that doesn't get to the classroom.'' . . . 
        ``Lots of people file suit,'' said Crosby Few, 
        Hillsborough School Board attorney. ``A lot of them are 
        frivolous.'' . . . In the book, Judging School 
        Discipline: The Crisis of Moral Authority, the authors 
        argue that the hundreds of lawsuits challenging school 
        disciplinary procedures have hurt the quality of public 
        education. One of the authors, Richard Arum, an 
        associate professor of sociology at New York 
        University, said just the threat of lawsuits keeps 
        teachers from taking charge of their classrooms.\23\
---------------------------------------------------------------------------
    \23\Melanie Ave, ``Lawsuits Drain School Dollars,'' St. Petersburg 
Times (February 2, 2004) (emphasis added).

---------------------------------------------------------------------------
    And as the Arizona Republic has reported:

        Scottsdale School Board member Christine Schild has 
        called the legal fees ``outrageous.'' . . . Legal bills 
        for the 2003-04 school year are estimated to be as high 
        as $675,000. This is the highest amount in recent 
        years, and possibly ever . . . Large school districts 
        routinely spend thousands of dollars each year on 
        attorneys. The most common expenses are for student 
        expulsion hearings and employee discipline . . . [D]ay-
        to-day legal expenses involving disputes with employees 
        and student discipline are not covered by insurance and 
        come out of the operating budget.\24\
---------------------------------------------------------------------------
    \24\Anne Ryman, ``Baracy to Pick In-house Attorney for School 
District,'' The Arizona Republic (July 8, 2004) at 1.

    Thanks to frivolous lawsuits, ``in America, hugging or, 
indeed, even a pat on the back is now considered so dangerous 
that teachers can't do it.''\25\ According to Lynn Maher of the 
New Jersey chapter of the National Education Association 
(``NEA''), ``Our policy is basically don't hug children.''\26\ 
The guidelines of the Pennsylvania chapter of the NEA urge 
teachers to do no more than ``briefly touch'' a child's arm or 
shoulder.\27\
---------------------------------------------------------------------------
    \25\Philip K. Howard, The Collapse of the Common Good: How 
America's Lawsuit Culture Undermines Our Freedom (2001) at 5.
    \26\Id. at 5.
    \27\Id. at 5.
---------------------------------------------------------------------------

              FRIVOLOUS LAWSUITS AFFECT EVERYONE: DOCTORS

    According to Newsweek:

        Dr. Sandra R. Scott of Brooklyn, N.Y., has never been 
        sued for malpractice, but that doesn't keep her from 
        worrying. As an emergency-room doctor, she often hears 
        her patients threaten lawsuits--even while she's 
        treating them. ``They'll come in, having bumped their 
        heads on the kitchen cabinet, and meanwhile I'll be 
        dealing with two-car crashes,'' she says. ``And if they 
        don't have the test they think they should have in a 
        timely fashion, they'll get very angry. All of a 
        sudden, it's `You're not treating me, this hospital is 
        horrible, I'm going to sue you'.''\28\ ``I'm only a 
        human being,'' she says. ``I'm an educated physician 
        but the miracles are out of my hands.''\29\
---------------------------------------------------------------------------
    \28\Stuart Taylor, Jr. and Evan Thomas, ``Civil Wars,'' Newsweek 
(December 15, 2003) at 43-44.
    \29\Id. at 51.

        When Dr. Brian Bachelder moved back to Mt. Gilead, 
        Ohio, to practice family medicine in 1984, he hoped to 
        emulate the country doc who'd treated him as a kid . . 
        . But in recent years, Bachelder, 49, has watched 
        litigation reshape his practice. Last December, facing 
        malpractice premiums that soared from $12,000 in 2000 
        to $57,000 in 2003, Bachelder decided to lower his bill 
        by cutting out higher-risk procedures like vasectomies, 
        setting broken bones and delivering babies--even though 
        obstetrics was his favorite part of the practice . . . 
        Today the threat of litigation hangs over nearly every 
        move Bachelder makes, changing the very nature of his 
        relationship with patients. He worries that the 
        slightest mistake could provoke a lawsuit. ``Anything 
        less than perfection is malpractice,'' he says. Even in 
        confronting the most common ailments--headaches or ear 
        infections--Bachelder must consider the possibility of 
        a rare and devastating disease. He often orders 
        expensive tests--not just to rule out the worst, but 
        also to bolster his case before a potential jury . . . 
        Bachelder's fear of lawsuits isn't just theoretical--
        he's been sued a half-dozen times in his 20-year 
        career. In one case, Bachelder referred a boy with a 
        bladder problem to a urologist. The urologist operated, 
        and the patient subsequently sued; Bachelder was also 
        named in the complaint. He was eventually dropped from 
        the case, but not before his liability insurance paid 
        out $40,000 in legal fees.\30\
---------------------------------------------------------------------------
    \30\Debra Rosenberg, ``Hard Pill to Swallow,'' Newsweek (December 
15, 2003) at 46.

        The most dangerously incompetent doctors often remain 
        in place for many years, in part because employers fear 
        wrongful-dismissal lawsuits by fired doctors even more 
        than malpractice suits by their victims.\31\
---------------------------------------------------------------------------
    \31\Stuart Taylor, Jr. and Evan Thomas, ``Civil Wars,'' Newsweek 
(December 15, 2003) at 48.
---------------------------------------------------------------------------

               FRIVOLOUS LAWSUITS AFFECT EVERYONE: SPORTS

    The New Yorker reports on how diving boards and U.S. 
Olympic diving medals have both become a thing of the past due 
to frivolous lawsuits: ``After a golden age in the seventies . 
. . the American pool has suffered a gradual decline: thanks, 
for the most part, to concerns about safety and liability, 
diving boards have been removed and deep ends undeepened. . . . 
Such developments have consequences. . . . In the last two 
Olympics, medal counts for [once-dominant] American divers 
reached their lowest levels since the 1912 Games.''\32\
---------------------------------------------------------------------------
    \32\Field Maloney, ``Cannonball!'' New Yorker, Talk of the Town 
(September 8, 2004).
---------------------------------------------------------------------------
    According to Newsweek:

        Ryan Warner is a volunteer who runs an annual softball 
        tournament in Page, Ariz., that usually raises about 
        $5,000 to support local school sports programs. But not 
        this year. A man who broke his leg at a recent 
        tournament sliding into third base filed a $100,000 
        lawsuit against the city, and Warner fears he may be 
        named as a defendant. ``It's very upsetting when you're 
        doing something for the community, not making any money 
        for yourself, to be sued over something over which you 
        had no control,'' he says. So Warner canceled the 
        tournament.\33\
---------------------------------------------------------------------------
    \33\Stuart Taylor, Jr. and Evan Thomas, ``Civil Wars,'' Newsweek 
(December 15, 2003) at 44.

        Parents, on behalf of their children, increasingly sue 
        not only for physical injuries, but for ``hurt 
        feelings'' when they don't make a team, says John 
        Sadler of Columbia, S.C., who insures amateur sports 
        leagues . . . If a ref steps into a fight, he can be 
        sued if one of the players he is holding back takes a 
        punch. If the ref doesn't intervene, he can be sued for 
        allowing the fight to go on.\34\
---------------------------------------------------------------------------
    \34\Id. at 49.

        Even apparently innocent soccer moms are at risk. In 
        Jupiter, Fla., one mother volunteered to pick up a 
        pizza for the team. She drove over the foot of a child 
        who, left unattended, had run into the road. The police 
        did not even give the woman a ticket. But the parents 
        of the child sued the mother and the soccer league and 
        tried to sue the city, the refs and various 
        sponsors.\35\
---------------------------------------------------------------------------
    \35\Id.

    Other examples include the following. In Vestavia Hills, 
Alabama, the father of Laura Brooke Smith ``sued [the] school 
district, saying his daughter's rejection from the high school 
cheerleading squad despite professional coaching has caused her 
humiliation and mental anguish.''\36\ A student was barred from 
participating in her high school's cheerleading tryouts ``as 
punishment for passing a profane note on a . . . school bus in 
2003.'' In response, her father hired a lawyer and filed a 
lawsuit ``saying the punishment violated his daughter's 
constitutional rights.'' An appeals court dismissed the 
lawsuit, agreeing with school officials that students ``do not 
have a constitutional right to participate in extra-curricular 
activities.''\37\
---------------------------------------------------------------------------
    \36\Fox News (May 31, 2001).
    \37\Kelly Melhart, ``Court Dismisses Suit over Punishment,'' Fort 
Worth-Star Telegram (April 19, 2005).
---------------------------------------------------------------------------
    In North Haven, Connecticut, the ``families of two high 
school sophomores have filed a Federal lawsuit over the 
school's decision to drop them from the drum majorette 
squad.''\38\
---------------------------------------------------------------------------
    \38\Ann DiMatteo, ``Families Sue Over Unfair Twirl Tryouts,'' The 
New Haven Register, May 18, 2001.
---------------------------------------------------------------------------
    And in Pennsylvania, ``[a] teenager, who felt she was 
destined for greatness as a softball player, has filed a 
$700,000 lawsuit against her former coach, alleging his 
`incorrect' teaching style ruined her chances for an athletic 
scholarship.''\39\
---------------------------------------------------------------------------
    \39\Dave Sommers, ``Legal Pitch,'' The Trentonian, May 1, 2001.
---------------------------------------------------------------------------
    ABC News reported that:

        When his 16-year-old son didn't get the most valuable 
        player award, Michel Croteau didn't get upset. He hired 
        a lawyer and sued his son's youth hockey league to the 
        tune of more than $200,000 . . . The Croteaus are not 
        alone. In the last year, parents have filed more than 
        200 non-injury-related sports lawsuits against coaches, 
        leagues and school districts in the United States, 
        according to Gil Fried, a University of New Haven 
        professor who specializes in sports law . . . The 
        Butzke family sued the Comsewogue, N.Y., school 
        district because their eighth-grade daughter was taken 
        off the varsity high school soccer team. The Branco 
        family took legal action against the Washington 
        Township, N.J., school district after their son, David, 
        was cut from the junior varsity basketball team . . . 
        The Rubin family sued California's New Haven Unified 
        School District for $1.5 million because their son got 
        kicked off the varsity basketball team . . . The family 
        felt James Logan High School Coach Blake Chong may have 
        cost their son not just a scholarship, but an NBA 
        career.\40\
---------------------------------------------------------------------------
    \40\ABCNews.com Report, ``Blame the Coach? Angry Parents Take 
School Coaches to Court'' (August 7, 2003).

    In 1999, even major league baseball issued a directive to 
players that they should no longer throw foul balls to eager 
fans in the stands because there might be a lawsuit if someone 
got hurt trying to recover a souvenir.\41\ Yet another lawsuit 
was filed against Major League Baseball for injuries resulting 
from being hit by a practice ball before Game One of the 2000 
World Series.\42\
---------------------------------------------------------------------------
    \41\Philip K. Howard, The Collapse of the Common Good: How 
America's Lawsuit Culture Undermines Our Freedom (2001) at 46.
    \42\Zach Haberman, ``Fan Blinded by Ball Sues Yanks for $5M,'' The 
New York Post (April 11, 2005).
---------------------------------------------------------------------------

            FRIVOLOUS LAWSUITS AFFECT EVERYONE: PLAYGROUNDS

    The lawsuit culture is even changing the traditional 
American landscape: playgrounds are increasingly removing 
seesaws for fear of liability.\43\ According to Newsweek:
---------------------------------------------------------------------------
    \43\Philip K. Howard, The Collapse of the Common Good: How 
America's Lawsuit Culture Undermines Our Freedom (2001) at 3.

        Playgrounds all over the country have been stripped of 
        monkey bars, jungle gyms, high slides and swings, 
        seesaws and other old-fashioned equipment once 
        popularized by President John F. Kennedy's physical-
        fitness campaign. The reason: thousands of lawsuits by 
        people who hurt themselves at playgrounds. But some 
        experts say that new, supposedly safer equipment is 
        actually more dangerous because risk-loving kids will 
        test themselves by, for instance, climbing across the 
        top of a swing set. Other kids sit at home and get 
        fat--and their parents sue McDonald's.\44\
---------------------------------------------------------------------------
    \44\Stuart Taylor, Jr. and Evan Thomas, ``Civil Wars,'' Newsweek 
(December 15, 2003) at 44.

    As Philip Howard has written, ``just letting a claim go to 
a jury . . . will affect whether seesaws stay in playgrounds 
all across America.''\45\
---------------------------------------------------------------------------
    \45\Philip K. Howard, The Collapse of the Common Good (New York: 
2001) at 58.
---------------------------------------------------------------------------
    Today, a brochure from the National Program for Playground 
Safety advises: ``Seesaw use is quite complex because it 
requires two children to cooperate and combine their actions,'' 
and now ``there is a trend to replace [them] with spring-
centered seesaws.''\46\ A culture of legal fear is actually 
reducing the opportunities of American children to burn 
calories in playgrounds.
---------------------------------------------------------------------------
    \46\U.S. Consumer Product Safety Commission, Handbook for Public 
Playground Safety, Pub. No. 325 at 23.
---------------------------------------------------------------------------
    And according to one recent article:

        Andrea Levin is grateful that Broward County schools 
        care about her daughter's safety. But this year when 
        they posted a sign that demanded ``no running'' on the 
        playground, it seemed like overkill. ``I realize we 
        want to keep kids from cracking their heads open,'' 
        said Levin, whose daughter is a Gator Run Elementary 
        fifth grader in Weston. ``But there has to be a place 
        where they can get out and run.'' Broward's ``Rules of 
        the Playground'' signs, bought from an equipment 
        catalogue and displayed at all 137 elementary schools 
        in the district, are just one of several steps taken to 
        cut down on injuries and the lawsuits they inspire. 
        ``It's too tight around the equipment to be running,'' 
        said Safety Director Jerry Graziose, the Broward County 
        official who ordered the signs. ``Our job was to try to 
        control it.'' How about swings or those hand-pulled 
        merry-go-rounds? ``Nope. They've got moving parts. 
        Moving parts on equipment is the number one cause of 
        injury on the playgrounds.'' Teeter-totters? ``Nope. 
        That's moving too.'' Sandboxes? ``Well, I have to be 
        careful about animals'' turning them into litter boxes. 
        Cement crawl tubes? ``Vagrants. The longer they are, 
        the higher possibility that a vagrant could stay in 
        them. We have shorter ones now that are made out of 
        plastic or fiberglass.'' Broward playgrounds aren't the 
        only ones to avoid equipment that most adults remember. 
        Swings, merry-go-rounds, teeter-totters and other old 
        standards are vanishing from schools and parks around 
        the country, according to the National Program for 
        Playground Safety . . . Since 1999, Broward County 
        schools paid out about $561,000 to settle 189 claims 
        for playground accidents, about 5 percent of the amount 
        the district spent on all injury claims in that time. 
        To keep those numbers low, Graziose said, he needs to 
        keep thinking of ways to make playgrounds safe . . . 
        ``To say `no running' on the playground seems crazy,'' 
        said [Broward County School Board Member Robin] 
        Bartleman, who agreed to be interviewed on a recent 
        outing at Everglades. ``But your feelings change when 
        you're in a closed-door meeting with lawyers.'' . . . 
        The girls tried out the horizontal ladder and balance 
        beam for a few minutes before settling on a game of 
        stacking plate-size dirt chunks into a neat pile . . . 
        Bartleman, the only board member with children in 
        elementary school, created a subcommittee this year to 
        suggest ways to redesign school playgrounds. Safety is 
        important, she said, but there's got to be a way to 
        make Broward's playgrounds more interesting than dirt. 
        ``I would have never thought about this until my 
        daughter came up to me 1 day and said `Momma, I hate 
        going to that playground,''' she said.\47\
---------------------------------------------------------------------------
    \47\Chris Kahn, ``In the Pusuit of Safety, Teeter-totters and 
Swings Are Disappearing from Playgrounds,'' The Sun-Sentinel (July 18, 
2005).
---------------------------------------------------------------------------

             FRIVOLOUS LAWSUITS AFFECT EVERYONE: GOOD DEEDS

    According to the Chicago Daily Herald:

        By day, Dave Peterson works with diagnostic 
        multiplexers and beam shakers to maintain the Fermi 
        National Accelerator Laboratory's antiproton source. 
        But at dawn and dusk the Geneva resident drags a 
        homemade snowplow behind his daughter's Pacific Electra 
        mountain bike, clearing a 16-inch wide section of the 
        Fox River Trail as he rides to and from work in 
        Batavia. Because he rides at a time when few are 
        watching, he's become something of a local legend the 
        last two winters, a Bigfoot. ``It's one of those weird 
        things that has touched a nerve with a lot of people,'' 
        Peterson said. A whole lot. In fact, many of the path's 
        regulars have come to expect it to be clear--and that 
        has put Peterson's plowing on hiatus. The county has 
        asked him to stop because if there's an expectation 
        that the trail will be plowed, there's a greater chance 
        for litigation, said Kane County Forest Preserve 
        District operations supervisor Pat McQuilkin. ``If a 
        person falls, you are more liable than if you had never 
        plowed at all. Crazy world,'' wrote AnnMarie Fauske, 
        the district's community affairs director, in response 
        to a letter to Peterson. ``Unfortunately, the times we 
        are in allow for a much more litigious environment than 
        common sense would dictate.'' . . . ``There is 
        something I can do here,'' Peterson said. ``I can use 
        my skills as an engineer to make life easier for the 
        little old ladies who walk on the path.'' But the 
        forest preserve worries that if they take a wrong step 
        and fall, those little old ladies might decide to 
        sue.\48\
---------------------------------------------------------------------------
    \48\Garrett Ordower, ``County Tells Bicyclist Thanks, But Stop 
Plowing Trail,'' The Chicago Daily Herald (February 21, 2004).
---------------------------------------------------------------------------

          FRIVOLOUS LAWSUITS AFFECT EVERYONE: THE GIRL SCOUTS

    The Girl Scouts in Metro Detroit alone have to sell 36,000 
boxes of cookies each year just to pay for liability 
insurance.\49\ According to former Girl Scout Laurie Super [of 
Downington, Pennsylvania], ``[i]t's getting harder to sell 
[cookies] . . . Our local Wawa stores said they couldn't let 
the girls set up their booth anymore, because of liability 
issues.''\50\
---------------------------------------------------------------------------
    \49\See ``Fine Filers of Frivolous Lawsuits,'' The Detroit News 
(February 24, 2004).
    \50\Julia Moskin, ``Crave Thin Mints?'' The New York Times (March 
14, 2004).
---------------------------------------------------------------------------

            FRIVOLOUS LAWSUITS AFFECT EVERYONE: SANTA CLAUS

    Even Santa Claus lives under a constant threat of legal 
harassment. As the Los Angeles Times quoted one Santa Claus, 
``When I started doing this years ago, I never even thought 
about liability . . . But Santas have a pretty good chance of 
getting sued . . .''\51\
---------------------------------------------------------------------------
    \51\J.R. Moehringer, ``Ho! Ho! Is More Like Uh-Oh,'' The Los 
Angeles Times (December 23, 2004).
---------------------------------------------------------------------------

                  FRIVOLOUS LAWSUITS AFFECT EVERYONE: 
              A LEGAL CULTURE OF FEAR STIFLES COMMON SENSE

    The corrosive effects of lawsuit abuse were recently 
summarized by Newsweek:

        Americans will sue each other at the slightest 
        provocation. These are the sorts of stories that fill 
        schoolteachers and doctors and Little League coaches 
        with dread that the slightest mistake--or offense to an 
        angry or addled parent or patient--will drag them into 
        litigation hell, months or years of mounting legal fees 
        and acrimony and uncertainty, with the remote but scary 
        risk of losing everything . . . Americans don't just 
        sue big corporations or bad people. They sue doctors 
        over misfortunes that no doctor could prevent. They sue 
        their school officials for disciplining their children 
        for cheating. They sue their local governments when 
        they slip and fall on the sidewalk, get hit by drunken 
        drivers, get struck by lightning on city golf courses--
        and even when they get attacked by a goose in a park 
        (that one brought the injured plaintiff $10,000). They 
        sue their ministers for failing to prevent suicides. 
        They sue their Little League coaches for not putting 
        their children on the all-star team. They sue their 
        wardens when they get hurt playing basketball in 
        prison. They sue when their injuries are severe but 
        self-inflicted, when their hurts are trivial and when 
        they have not suffered at all. Many of these cases do 
        not belong in court. But clients and lawyers sue 
        anyway, because they hope they will get lucky and win a 
        jackpot from a system that allows sympathetic juries to 
        award plaintiffs not just real damages--say, the cost 
        of doctor's fees or wages lost--but millions more for 
        impossible-to-measure ``pain and suffering'' and highly 
        arbitrary ``punitive damages.'' (Under standard 
        ``contingency fee'' arrangements, plaintiffs' lawyers 
        get a third to a half of the take.) . . . Many 
        Americans sue because they have come to believe that 
        they have the ``right'' to impose the costs and burdens 
        of defending a lawsuit on anyone who angers them, 
        regardless of fault or blame. The cost to society 
        cannot be measured just in money, though the bill is 
        enormous, an estimated $200 billion a year, more than 
        half of it for legal fees and costs that could be used 
        to hire more police or firefighters or teachers.\52\
---------------------------------------------------------------------------
    \52\Stuart Taylor, Jr. and Evan Thomas, ``Civil Wars'' Newsweek 
(December 15, 2003) at 44-45.

        [T]he time may come when ordinary Americans recognize 
        that for every sweepstakes winner in the legal lottery, 
        there are millions of others who have to live with the 
        consequences--higher taxes and insurance rates, 
        educational and medical systems seriously warped by 
        lawsuits, fear and uncertainty about getting sued 
        themselves.\53\
---------------------------------------------------------------------------
    \53\Id. at 51. Although the American Trial Lawyers Association has 
vociferously attacked the Newsweek article, Newsweek stands solidly by 
its report, stating ``NEWSWEEK received a large volume of mail from 
trial lawyers critical of our cover story. We stand by the story as 
both accurate and fair. The criticisms are for the most part easily 
refuted with material in the public record.'' Newsweek, ``Mail Call'' 
(January 12, 2004).
---------------------------------------------------------------------------

               ADDITIONAL EXAMPLES OF FRIVOLOUS LAWSUITS

    The following are more typical examples of the frivolous 
lawsuits that have tormented innocent Americans.\54\
---------------------------------------------------------------------------
    \54\Britain's most senior judges, the Appellate Committee of the 
House of Lords, has branded Britain's U.S.-style claims system an 
``evil'' that interferes with civil liberties and freedom in a landmark 
ruling in a compensation case. In the case of Tomlinson v. Congleton 
Borough Council, [2003] U.K.H.L. 47 (2003), the Appellate Committee 
stated ``The pursuit of an unrestrained culture of blame and 
compensation has many evil consequences and one is certainly the 
interference with the liberty of the citizen. Of course there is some 
risk of accidents arising out of the joie de vivre of the young, but 
that is no reason for imposing a grey and dull safety regime on 
everyone.''

         LAccording to Reuters, ``A lawsuit against . . 
        . U.S. weather forecasters . . . over the South Asian 
        tsunami disaster is fueling calls for greater curbs on 
        what critics say are frivolous cases brought by lawyers 
        out to make a quick buck. The suit, brought on behalf 
        of a group of tsunami victims, `perfectly illustrates' 
        the need for U.S. laws to hold lawyers liable for the 
        economic damages they inflict on those they sue, said 
        legal scholar Lester Brickman.''\55\ The petition was 
        filed in Federal court in Manhattan.\56\
---------------------------------------------------------------------------
    \55\Gail Appleson, ``Tsunami Suit Shows Need to Curb Lawyers, 
Critics Say,'' Reuters (March 8, 2005).
    \56\Id.

         LBarbara Streisand sued the California Coastal 
        Records Project, which took thousands of pictures of 
        the California coastline intended to protect the 
        state's shoreline. The photographs are made available 
        free of charge to state and local governments, 
        university researchers, conservation organizations, and 
        others. Streisand sued because a picture of her Malibu 
        estate (her mansion composed only 3% of one photo among 
        thousands) was posted on the public interest 
        organization's Web site. She sued for $50 million (five 
        separate claims for $10 million each), but on May 10, 
        2004, Streisand was ordered to pay the people she sued 
        $154,000 in legal fees they accrued defending against 
        her ridiculous lawsuit.\57\
---------------------------------------------------------------------------
    \57\See Jennifer Pittman, ``The Blame Game'' The Silicon Valley/San 
Jose Business Journal (January 9, 2004); Kenneth R. Weiss, ``Streisand 
Sues Over Photograph of Her Coast Home on Web Site,'' The Los Angeles 
Times (May 30, 2003) at B1; Streisand v. Adelman, Case No. SC077257 
(Sup. Ct. Los Angeles Cty.) (complaint filed May 30, 2003); Streisand 
v. Adelman, Case No. SC077257 (Sup. Ct. Los Angeles Cty.) (ruling on 
submitted matters: Motion to Tax Costs and Motion for Attorneys; Fees).

         LAccording to the Indianapolis Star, ``Indiana 
        drivers who get into wrecks with someone who is talking 
        on a cell phone can forget about suing the phone's 
        manufacturer. The Indiana Court of Appeals on Friday 
        dismissed an Evansville lawsuit in which Terry L. 
        Williams tried to do just that after a March 2002 
        traffic crash. Williams collided with Kellie Meagher, 
        who was allegedly talking on a Cingular Wireless phone. 
        In the lawsuit, Williams alleged Cingular knew--or 
        should have known--that Meagher would use the phone 
        while driving. Vanderburgh Superior Court Judge Mary 
        Margaret Lloyd dismissed Cingular from the suit. After 
        the dismissal, Williams asked the judge to reconsider, 
        citing new evidence that included a `Blondie' cartoon 
        strip in which Blondie, while talking on a cell phone, 
        caused an accident. But the Evansville judge was 
        unmoved. Now an appellate court also agrees that 
        Cingular was not liable.''\58\
---------------------------------------------------------------------------
    \58\Kevin Corcoran, ``Court: Don't Blame Cell-Phone Maker for 
Crash,'' The Indianapolis Star (June 5, 2004).

         LAccording to the Albany Times Union, ``The 
        spectacle of American spending always gets a little 
        silly in the holiday season, but shoppers over the next 
        few weeks will be hard-pressed to match the performance 
        last year of Antoinette Millard. She ran up bills of 
        almost $1 million in New York luxury stores like 
        Cartier and Barneys, and, according to court papers, 
        Millard is now suing American Express for improperly 
        soliciting her to sign up for a big-spender's credit 
        card, her purchasing weapon of choice.''\59\
---------------------------------------------------------------------------
    \59\Steve Lohr, ``Buying Easy, Paying Hard,'' Times Union (December 
5, 2004) at A1.

         LIn April, 1995, Carl and Diana Grady sued 
        Frito Lay claiming that Dorito chips stuck in Charles 
        Grady's throat and tore his esophagus. The Gradys 
        wanted to present the ``expert'' testimony of Dr. 
        Charles Beroes to support their claim that Doritos are 
        inherently dangerous and negligently designed. Beroes' 
        research included pressing Doritos onto a scale until 
        the tip snapped off, and measuring the amount of time 
        it took saliva to soften the Doritos. None of Beroes' 
        tests involved chewing. After 8 years of costly 
        litigation, the Pennsylvania Supreme Court threw out 
        the case, noting that Dr. Beroes' tests ``smacked of a 
        high school science fair project and did not bear any 
        relationship to the reality of the . . . consumption of 
        foodstuffs.''\60\ Justice Saylor pointed out in his 
        concurring opinion ``the common sense notion that it is 
        necessary to properly chew hard foodstuffs prior to 
        swallowing.''\61\
---------------------------------------------------------------------------
    \60\Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1042 (Pa. 2003) 
(citing Grady v. Frito-Lay, Inc., 2000 WL 33436367, at *2) (Pa.Com.Pl. 
April 3, 2000)).
    \61\Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1053 (Pa. 2003) 
(Saylor, J., concurring).

         LAfter 3 years of litigation, an appeals court 
        finally held that the survivor of a crash cannot sue an 
        airline for punitive damages when the pilots did not 
        intentionally crash the plane. At midnight on June 1, 
        1999, during a severe thunderstorm, a fully loaded 
        American Airlines jet crashed while trying to land in 
        Little Rock, Arkansas. Eleven people died, including 
        the pilot. Two passengers sued seeking compensatory and 
        punitive damages. A U.S. district court judge ruled 
        that ``uncontroverted evidence'' showed the pilots had 
        a good faith belief that the plane could be landed 
        safely.\62\ Upholding the district court's decision, 
        Judge Morris Arnold held that no reasonable jury could 
        find that the members of the flight crew crashed the 
        plane on purpose. Judge Morris wrote, ``[s]tated 
        differently, we hold that no reasonable jury could find 
        that the members of the flight crew knew, or ought to 
        have known, in light of the surrounding circumstances, 
        that their conduct would naturally and probably result 
        in injury.''\63\
---------------------------------------------------------------------------
    \62\In re: Aircraft Accident at Little Rock, Arkansas on June 1, 
1999, 231 F.Supp. 852, 879 (E.D.Ark. 2002).
    \63\In re: Aircraft Accident at Little Rock, Arkansas on June 1, 
1999, 351 F.3d 874, 878-79 (8th Cir. 2004).

         LAfter 5 years of litigation, the Nevada 
        Supreme Court dismissed the appeal of Lane Holmes, who 
        sued the Turtle Stop in Las Vegas, claiming a cup 
        caused him to suffer leg burns from dripping hot 
        coffee.\64\ The court upheld the decision of the trial 
        court that ruled ``[t]he danger is open and 
        obvious.''\65\
---------------------------------------------------------------------------
    \64\Holmes v. Turtle Stop, Inc., 62 P.3d 1165 (Nev. 2000).
    \65\Cy Ryan, ``Court Says Warning About Hot Coffee Unnecessary,'' 
The Las Vegas Sun (July 11, 2000).

         LA woman in Knoxville, Tennessee, sought 
        $125,000 in damages against McDonald's, claiming a hot 
        pickle dropped from a hamburger, burning her chin and 
        causing her mental injury. Her husband also sued for 
        $15,000 for loss of consortium.\66\
---------------------------------------------------------------------------
    \66\See Randy Kenner, ``Lawsuit on Hot Pickle Draws Attention 
Around the Globe,'' Knoxville News-Sentinel (October 10, 2000) at A1.

         LOn September 3, 2003, a Federal district 
        judge in New York threw out for a second time a lawsuit 
        filed on behalf of obese children claiming McDonald's 
        Corporation was legally responsible for their over-
        consumption of food.\67\ The court earlier noted the 
        national ramifications of the complaint and the 
        requested damages, stating ``McDonalds has also, 
        rightfully, pointed out that this case, the first of 
        its kind to progress far enough along to reach the 
        stage of a dispositive motion, could spawn thousands of 
        similar `McLawsuits' against restaurants . . . The 
        potential for lawsuits is even greater given the 
        numbers of persons who eat food prepared at other 
        restaurants in addition to those serving fast 
        food.''\68\
---------------------------------------------------------------------------
    \67\See Pelman v. McDonald's Corp., S.D.N.Y. 02 Civ. 7821 (RWS), at 
34-35 (September 3, 2003).
    \68\Pelman v. McDonald's Corp., 237 F.Supp.2d 512, 518 (S.D.N.Y. 
2003).

         LThe Michigan Court of Appeals threw out a 
        case brought by Richard Overton, who ``pointed to 
        defendant's television advertisements featuring Bud 
        Light as the source of fantasies coming to life, 
        fantasies involving tropical settings, and beautiful 
        women and men engaged in unrestricted merriment. 
        Plaintiff sought monetary damages in excess of $10,000, 
        alleging that defendant's misleading advertisements had 
        caused him physical and mental injury, emotional 
        distress, and financial loss.''\69\
---------------------------------------------------------------------------
    \69\Overton v. Anheauser-Busch Co., 517 N.W.2d 308, 309 (Mich. App. 
1994).

         LIn Florida, a woman sued Universal Studios 
        for $15,000 for ``extreme fear, emotional distress and 
        mental anguish'' because the theme park's annual 
        haunted house was too scary.\70\
---------------------------------------------------------------------------
    \70\Tim Barker, ``Universal Fall Leads to Lawsuit,'' Orlando 
Sentinel (January 5, 2000) at C1.

         LAfter over 3 years of litigation, Georgia's 
        Court of Appeals held that the day trading firms where 
        Mark Barton invested before embarking on a shooting 
        rampage are not liable for the victims' injuries and 
        deaths. A unanimous panel on the court stated ``We find 
        this case is one in which the issue of proximate cause 
        is so plain, palpable and indisputable as to demand 
        summary judgment for the defendants.''\71\ The court 
        noted that it was ``troubled by the implication that 
        the list of defendants potentially liable for any 
        person's violence, if sparked by economic misfortune, 
        would be limited only by the number of stock brokers, 
        investment advisers, lawyers, business partners, 
        lottery ticket sellers, etc., whom the assailant blamed 
        for his financial losses.''\72\
---------------------------------------------------------------------------
    \71\Brown v.All-Tech Investment Group, 2003 WL 23315394 (Ga. App.) 
at *5.
    \72\Id. at *7, n.5.

         LAfter a decade of litigation, Texas' 1st 
        Court of Appeals reversed a $43 million judgment 
        against a car manufacturer in a products liability suit 
        that alleged a defective seat belt caused the 1992 
        drowning death of a woman with a blood-alcohol level of 
        0.17 who failed to escape from her Honda Civic when it 
        became submerged under water.\73\
---------------------------------------------------------------------------
    \73\Honda of America Manufacturing, Inc. v. Norman, 104 S.W.3d. 600 
(Tex. App. 2003).

         LThe family of a man who died on a fishing 
        trip sued the Weather Channel for $10 million, claiming 
        that the man relied on the channel's forecast for his 
        safety. In dismissing the case, the Miami Federal court 
        stated that if forecasters were held accountable, ``the 
        duty could extend to farmers who plant their crops 
        based on a forecast of no rain, construction workers 
        who pour concrete or lay foundation based on the 
        forecast of dry weather, or families who go to the 
        beach for the weekend.''\74\
---------------------------------------------------------------------------
    \74\See ``Storm Death Is Not Weatherman's Fault,'' New York Post 
(March 29, 1999) at 84.

         LA West Virginia man who fell down an 
        escalator at an airport finally dropped a lawsuit filed 
        against US Airways over the accident. According to the 
        Associated Press, ``The lawsuit in circuit court in 
        Fort Myers alleged the airline didn't warn Floyd 
        Shuler, 61, about the adverse affects of drinking 
        alcohol on a plane. Shuler said in a news release from 
        Wheeling, W.Va., that he didn't intend for the suit to 
        be filed. `I learned about the filing of the lawsuit 
        against US Airways . . . along with everyone else,' 
        Shuler said. `It was never my intent to take on the 
        airline industry. I apologize for any inconvenience 
        this has caused US Airways.' Shuler's attorney, Paul 
        Kutcher, did not return a phone call from The 
        Associated Press seeking comment. The suit . . . said 
        US Airways was negligent by failing to warn Shuler that 
        the effects of alcohol are greater at night on airline 
        passengers. The suit also alleged that the company did 
        not properly maintain the escalator at Southwest 
        Florida International Airport when he fell down it on 
        Aug. 28, 1999, and it sought damages in excess of 
        $15,000.''\75\
---------------------------------------------------------------------------
    \75\Associated Press, ``Man Drops Suit Filed Against Airline After 
He Drank Booze, Fell,'' USA Today (April 4, 2004).

         LSeveral months after the Escondido, 
        California library's resident cat attacked Richard 
        Espinosa's 50-pound Labrador-mix assistance dog, 
        Espinosa filed a $1.5-million claim against the city, 
        alleging that he was harmed due to the dog's injuries. 
        According to the legal papers filed, Espinosa claimed 
        his Federal and state constitutional rights were 
        violated and that ``. . . the defendants actions and 
        subsequent inactions caused Espinosa to suffer 
        significant lasting, extreme and severe mental anguish 
        and emotional distress including, but not limited to, 
        terror, humiliation, shame, embarrassment, 
        mortification, chagrin, depression, panic, anxiety, 
        flashbacks, nightmares, loss of sleep . . .''\76\ 
        According to the North County Times, ``It took a jury 
        little more than 2 hours of deliberation Friday to 
        reject a claim from a man that the city of Escondido 
        violated his civil rights when a cat living in a city 
        library attacked his assistance dog more than 3 years 
        ago . . . Espinosa originally asked for $1.5 million in 
        compensation and damages . . . During jury selection 
        Wednesday, Judge Hofmann excused four potential jurors 
        who said they felt the case was `frivolous' and that 
        they could not be impartial. Others also said the case 
        was without merit, but said they could look beyond that 
        feeling. `After that first juror said the word 
        ``frivolous,'' and so did the next five, I thought the 
        whole panel should have been thrown out,' Espinosa said 
        . . . The city offered twice to settle with Espinosa, 
        including one offer of $1,000. Espinosa declined. 
        Nelson was unable to estimate how much the city spent 
        defending itself against Espinosa's allegations, but he 
        said it was a considerable sum. He also said the case 
        could drag on for months or years if Espinosa does 
        appeal.''\77\
---------------------------------------------------------------------------
    \76\Chuck Shepherd, ``News of the Weird,'' The Orlando Weekly 
(August 30, 2001).
    \77\Teri Figueroa, ``Jury Rejects Claim by Man in Attack on Dog by 
Library Cat,'' The North County Times (January 20, 2004).

         LIn Ohio, Hamilton County Commissioner Todd 
        Portune sued the Bengals and the National Football 
        League claiming the team violated its stadium lease by 
        failing to be competitive. The complaint, which also 
        named the other 31 NFL franchises as defendants, 
        alleges fraud, civil conspiracy, antitrust violations 
        and breach of contract.\78\
---------------------------------------------------------------------------
    \78\Terry Kinney, ``Commissioner Sues Bengals, NFL,'' (Associated 
Press January 31, 2003).

         LAfter 3 years of litigation, the Nebraska 
        Supreme Court upheld a lower court ruling and found 
        Ford Motor Co. and Bridgestone/Firestone Inc. not 
        liable for the death of a woman killed by a man who 
        gave her a lift after she got a flat tire. The woman's 
        parents claimed in the lawsuit that a Firestone 
        Wilderness AT tire on their daughter's Ford Explorer 
        failed, setting off the chain of events that resulted 
        in her death. The Nebraska court said the companies 
        could not have foreseen the murderer's criminal 
        acts.\79\
---------------------------------------------------------------------------
    \79\Kevin O'Hanlon, ``Court: Faulty Tire Didn't Cause Murder,'' the 
Associated Press (August 8, 2003).
---------------------------------------------------------------------------

          ABSURD WARNING LABELS REQUIRED BY FRIVOLOUS LAWSUITS

    Today, testaments to the age of frivolous lawsuits are 
written on all manner of product warnings that aim to prevent 
obvious misuse. One warning label on a toilet brush states ``Do 
not use for personal hygiene.''\80\ A label on a snow sled says 
``Beware: sled may develop a high speed under certain snow 
conditions.'' A 5-inch brass fishing lure with three hooks is 
labeled ``Harmful if swallowed.'' A warning on an electric 
router made for carpenters states ``This product not intended 
for use as a dental drill.'' A warning label on a baby stroller 
cautions ``Remove child before folding.'' A sticker on a 13-
inch wheel on a wheelbarrow warns ``Not intended for highway 
use.'' A dishwasher carries the warning ``Do not allow children 
to play in the dishwasher.'' A manufactured fireplace log 
states ``Caution--Risk of Fire.'' A household iron contains the 
warning ``Never iron clothes while they are being worn.''\81\ 
And a cardboard car sun shield that keeps sun off the dashboard 
warns ``Do not drive with sun shield in place.''\82\
---------------------------------------------------------------------------
    \80\David N. Goodman, ``Toilet Brush Warning Wins Consumer Award,'' 
The Associated Press (January 6, 2005).
    \81\Sonny Garrett, ``Warning: People Are as Dumb as You Think,'' 
The Baxter Bulletin (April 17, 2004) (compiling list from Michigan 
Lawsuit Abuse Watch in Annual Wacky Warning Label Contest).
    \82\Larry D. Hatfield, ``Dumbest Warning Labels Get their Due,'' 
The San Francisco Chronicle (January 24, 2002).
---------------------------------------------------------------------------
    What follows are some pictorial displays of wacky warning 
labels required by our frivolous lawsuit culture.

   PICTORIAL DISPLAYS OF ABSURD WARNING LABELS REQUIRED BY FRIVOLOUS 
                                LAWSUITS


                              ----------                              


                  THE COSTS LAWSUITS IMPOSE ON SOCIETY

    The annual direct cost of American tort litigation--
excluding much securities litigation, punitive damages, and the 
multibillion-dollar settlement reached between the tobacco 
companies and the states in 1998--exceeds $250 billion, almost 
2 percent of gross domestic product,\83\ as illustrated in the 
following charts:
---------------------------------------------------------------------------
    \83\See Towers Perrin, 2009 Update on U.S. Tort Cost Trends 5 
(2009), 
http://www.towersperrin.com/tp/getwebcachedoc?webc=USA/2009/200912/
2009_tort_trend_
report_12-8_09.pdf (costs as of 2008). As noted by Manhattan Institute 
fellow Walter Olson:

      [The Towers Perrin] studies are particularly useful in 
      assessing long-term trends in liability-cost burdens (since 
      long-term data will tend to transcend the vagaries of 
      passing hard/soft markets) and in international comparisons 
      (since well-defined liability insurance markets exist in 
      other advanced countries and can be subjected to comparable 
      metrics). Perhaps for those very reasons, and because the 
      figures are widely acknowledged within the industry as 
      having a high degree of accuracy in measuring what they set 
      out to measure, the [Towers Perrin] numbers have been 
      furiously attacked by organized trial lawyers and their 
---------------------------------------------------------------------------
      allies.

Walter K. Olson to PointofLaw.com, http://www.pointoflaw.com/archives/
2008/11/tilling
hasttowe.php (Nov. 21, 2008, 11:14 EST). For a response to these 
criticisms, see Posting of James R. Copland to PointofLaw.com, http://
www.pointoflaw.com/archives/000877.php (Jan. 19, 2005, 19:11 EST); see 
also Towers Perrin, Corrections and Clarifications (2005), http://
www.towersperrin.com/tillinghast/pdf/response_0517.pdf.S6601


    It should be emphasized that statistics do not capture the 
very real experiences of victims of lawsuit abuse, and this 
debate is not principally about aggregate statistics regarding 
the number of lawsuits filed. The costs of America's lawsuit 
culture are staggering. As chronicled by Sebastian Mallaby in 
the Washington Post:

        The most complete study of the tort system's cost comes 
        from the consulting firm Tillinghast-Towers Perrin. 
        Tillinghast's clients are mainly insurers, which are at 
        loggerheads with the trial bar, so you may mistrust its 
        data. Nonetheless, Tillinghast has published seven 
        updates to its original 1985 study, refining its 
        methodology along the way. Its numbers are the best 
        available. And they are stunning . . . the really 
        shocking thing is where the billions went. Injured 
        plaintiffs--the fabled little guys for whom the system 
        is supposedly designed--got less than half the money. 
        According to Tillinghast's 2002 data, plaintiffs' 
        lawyers swallowed 19 percent of the $233 billion. 
        Defense lawyers pocketed an additional 14 percent, and 
        other administrative costs, mainly at insurance firms, 
        accounted for a further 21 percent. The legal-
        administrative complex thus guzzled fully 54 percent of 
        the money in the tort system, or $126 billion. That's 
        43 times as much as the Federal Government has budgeted 
        this year to combat the global AIDS pandemic. No other 
        system for compensating misfortune has such outrageous 
        administrative costs. To guard against the possibility 
        of sickness, people buy medical insurance. The health 
        insurance industry, justly regarded as a paper-clogged 
        nightmare, has administrative costs of 14 percent. To 
        guard against the danger of disability, we have the 
        Social Security program. The overhead for the Social 
        Security disability system is around 3 percent. If you 
        want a really good number to set against the 54 percent 
        overhead in the tort system, just take a look at 
        Medicare. Its overhead is about 2 percent. So the tort 
        system's administrative costs are a scandal . . . 
        Measured as a share of GDP, America's tort system is 
        more than twice as expensive as it was in 1960, twice 
        as expensive as the current systems in France or 
        Canada, and three times as expensive as the system in 
        Britain. A reasonable goal for the American tort system 
        is to halve it.\84\
---------------------------------------------------------------------------
    \84\Sebastian Mallaby, ``The Trouble with Torts,'' The Washington 
Post (January 10, 2005) at A17. See also U.S. Tort Costs: 2004 Update: 
Trends and Findings on the Cost of the U.S. Tort System, Towers Perrin 
Tillinghast (2004) (``Looking ahead, we anticipate growth in U.S. tort 
costs to range from 5% to 8% in 2005, with a midpoint of 6.5% We expect 
a similar increase in 2006.'').

---------------------------------------------------------------------------
    As columnist Stuart Taylor, Jr., has observed:

        The most recent [National Center for State Courts] 
        report states that its (incomplete) data ``indicate a 
        40 percent increase in tort filings'' from 1975 to 
        2002. Census figures indicate that the population 
        increase from 1975 to 2002 was about 33 percent. So 
        tort filings per capita have not declined by 8 percent 
        since 1975; they have increased somewhat . . . And 
        although the tort system's inflation-adjusted direct 
        costs per capita did decline modestly during the 
        1990's, they soared by a stunning 14.4 percent in 2001 
        and another 13.3 percent in 2002, to an estimated 2002 
        total of $233 billion. The tort system consumes 2.2 
        percent of GDP in the U.S.--almost four times the 
        percentage in 1950; more than triple the 0.6 percent in 
        the United Kingdom; and more than double the 0.8 
        percent in Japan, France, and Canada.\85\
---------------------------------------------------------------------------
    \85\Stuart Taylor, Jr., ```False Alarm' by Stephanie Mencimer 
[Washington Monthly, Oct. 2004]--A Response by Stuart Taylor, Jr. 
[Newsweek, National Journal],'' available at http://
www.overlawyered.com/pages/taylormencimerwashingtonmonthly.html.

    According to the Economic Report of the President, ``The 
expansive tort system has a considerable impact on the U.S. 
economy. Tort liability leads to lower spending on research and 
development, higher health care costs, and job losses.''\86\ 
And according to the Council of Economic Advisers, ``the United 
States tort system is the most expensive in the world, more 
than double the average cost of other industrialized 
nations.''\87\ The direct costs of medical malpractice claims 
jumped by an average of 11.9 percent a year from 1975 to 
2002.\88\
---------------------------------------------------------------------------
    \86\Economic Report of the President (February 2004) at 203.
    \87\Council of Economic Advisers, ``Who Pays for Tort Liability 
Claims? An Economic Analysis of the U.S. Tort Liability System'' (April 
2002) at 1.
    \88\Tillinghast-Towers Perrin, U.S. Tort Costs: 2003 Update: Trends 
and Findings on the Costs of the U.S. Tort System, at 2.
---------------------------------------------------------------------------
    Of the costs of tort litigation, only 22 cents on the 
dollar went to compensate alleged victims' economic losses; 
almost as much (19 cents) went to their lawyers; 24 cents went 
to payments for inherently unquantifiable noneconomic losses, 
mainly pain and suffering; 14 cents went to defense costs; and 
21 cents went to insurance overhead costs.\89\
---------------------------------------------------------------------------
    \89\Id. at 17. According to an analysis of a report by the National 
Center for State Courts by Newsweek's Stuart Taylor, Jr., although tort 
filings declined by 9 percent from 1992 to 2001, almost all of that 
decline came in routine car-crash lawsuits. The report shows that 
medical malpractice claims increased by 24 percent from 1992-2001 and 
that total tort filings soared by 40 percent from 1975 to 2001, despite 
a dip during the 1990's. See Stuart Taylor, Jr. Response to ATLA's 
Claims, available at http://www.overlawyered.com/archives/000708.html. 
Chief Justice Rehnquist released new data on January 1, 2004, showing 
an 8 percent drop in civil filings in fiscal year 2003, ``primarily as 
a result of decreases in personal injury/product liability cases 
involving asbestos (such filings had soared 98 percent the previous 
year).'' William H. Rehnquist, 36 The Third Branch 1 (January 2004), 
2003 Year-End Report on the Federal Judiciary, Chapter III, n.5. See 
also Economic Report of the President (February 2004), at 204-05 (``The 
number of injuries handles by the tort system has increased along with 
expenditures. The number of filings per capita started to rise in the 
early 1980's and peaked in the mid-1980's, at least in the 16 states 
for which data on lawsuit filings are available between 1975 and 2000. 
Much of the decline in filings since 1985 appears to have occurred in 
California, where medical liability reforms included a $250,000 limit 
for noneconomic damages that was found constitutional in 1985.'').
---------------------------------------------------------------------------
    A report by Judyth Pendell, Senior Fellow at the AEI-
Brookings Joint Center for Regulatory Studies, and Paul Hinton, 
Vice President of NERA Economic Consulting, has concluded that 
``[t]he tort liability price tag for small businesses in 
America is $88 billion a year'' and that ``[s]mall businesses 
bear 68 percent of business tort liability costs, but take in 
only 25% of business revenue.''\90\ The small businesses 
studied in the report account for 98% of the total number of 
businesses with employees in the United States.\91\ A more 
recent study found the tort liability price tag for small 
businesses in 2008 was $105.4 billion dollars.\92\
---------------------------------------------------------------------------
    \90\Judyth Pendell and Paul Hinton, Liability Costs for Small 
Business U.S. Chamber Institute for Legal Reform, June, 2004 at 1 
(``small business'' defined as ``those with less than $10 million in 
annual revenue and at least one employee in addition to the owner'').
    \91\Id.
    \92\``Tort Liability Costs for Small Businesses,'' U.S. Chamber 
Institute for Legal Reform (2010) at 11, available at 
www.instituteforlegalreform.com/get_ilr_doc.php?docId=1044.
---------------------------------------------------------------------------
    Without the serious threat of punishment for filing 
frivolous lawsuits, innocent individuals and companies will 
continue to face the harsh economic reality that simply paying 
off frivolous claimants through monetary settlements is often 
cheaper than litigating the case. If it costs $10,000 to defend 
yourself in court against frivolous charges, it makes financial 
sense to settle the case for $9,000, even if you weren't at 
fault in any way. This perverse dynamic not only results in 
legalized extortion, but it leads to increases in the insurance 
premiums all individuals and businesses must pay.\93\
---------------------------------------------------------------------------
    \93\Opponents of reform often claim that contingency fees--
agreements by which personal injury attorneys are allowed a percentage 
cut from any monetary damages awarded to their client--provide a 
``screening mechanism'' that weeds out frivolous cases. The argument 
used is that personal injury attorneys will not take frivolous cases 
because doing so would leave them with no monetary recovery. The 
perverse dynamic outlined above, along with the fact that filing fees 
are usually no more than a hundred dollars and additional defendants 
can be named in the lawsuit at no extra charge, makes clear that 
contingency fee agreements provide no effective screening mechanism at 
all since personal injury attorneys can simply take advantage of the 
legal costs they impose on defendants simply in virtue of their filing 
a case to extort money from those they sue.
---------------------------------------------------------------------------
  polls and expert opinion overwhelmingly support legislation barring 
                           frivolous lawsuits
    We all pay for frivolous lawsuits through higher prices as 
consumers and through higher taxes as taxpayers.
    A poll found that 83% of likely voters believe there are 
too many lawsuits in America, 76% believe lawsuit abuse results 
in increased prices for goods and services, and 65% said they 
would be more likely to vote for congressional candidates who 
supported curbs on lawsuit abuse.\94\ Another poll found that 
73% of Americans support requiring sanctions against attorneys 
who file frivolous lawsuits.\95\
---------------------------------------------------------------------------
    \94\See American Tort Reform Association, ``National Poll on Tort 
Reform'' (February 27, 2003).
    \95\See Insurance Research Council, ``IRC Study Finds Strong 
Support for Wide Variety of Civil Justice Reform Measures'' (April 5, 
2004) at 4.
---------------------------------------------------------------------------
    Small businesses rank the cost and availability of 
liability insurance as second only to the costs of health care 
as their top priority,\96\ and both problems are fueled by 
frivolous lawsuits.
---------------------------------------------------------------------------
    \96\Bruce D. Phillips, ``Small Business Problems and Priorities'' 
(National Federation of Independent Business Research Foundation, June 
2004).
---------------------------------------------------------------------------
    When Business Week wrote an extensive article on what the 
most effective legal reforms would be, Business Week stated 
that what's needed is ``Penalties That Sting.'' As Business 
Week recommends, ``Give judges stronger tools to punish 
renegade lawyers. Before 1993, it was mandatory for judges to 
impose sanctions such as public censures, fines, or orders to 
pay for the other side's legal expenses on lawyers who filed 
frivolous lawsuits. Then the Civil Rules Advisory Committee 
(CRAC), an obscure branch of the courts, made penalties 
optional. This needs to be reversed . . . by Congress.''\97\
---------------------------------------------------------------------------
    \97\Mike France, ``Special Report--Tort Reform: How to Fix the Tort 
System,'' Business Week (March 14, 2005) at 76.
---------------------------------------------------------------------------
 frivolous lawsuits against innocent victims have become commonplace, 
        especially threatening small businesses and health care
    Because existing rules against frivolous lawsuits are 
ineffective, as one commentator has pointed out, ``The right to 
sue has been exploited by lawyers. They can gamble on taking 
cases on a contingency basis because they need only win 1 in 10 
to score the big judgment that will make up for the other 
losses.''\98\
---------------------------------------------------------------------------
    \98\Mortimer B. Zuckerman (Editorial) ``Welcome to Sue City, 
U.S.A.'' U.S. News & World Report (June 16, 2003) at 64.
---------------------------------------------------------------------------
    Small businesses and workers suffer. For instance, the 
nation's oldest ladder manufacturer, family-owned John S. 
Tilley Ladders Co. of Watervliet, New York, near Albany, filed 
for bankruptcy protection and sold off most of its assets due 
to litigation costs. Founded in 1855, the Tilley firm could not 
handle the cost of liability insurance, which had risen from 6% 
of sales a decade ago to 29%, even though the company never 
lost an actual court judgment. ``We could see the handwriting 
on the wall and just want to end this whole thing,'' said 
Robert Howland, a descendant of company founder John 
Tilley.\99\
---------------------------------------------------------------------------
    \99\Carrie Coolidge, ``The Last Rung; The Tort System Takes Down a 
149-year-old Ladder Manufacturer,'' Forbes (January 12, 2004) at 52.
---------------------------------------------------------------------------
    As Bernie Marcus, co-founder and former chairman of The 
Home Depot, has described, ``An unpredictable tort system casts 
a shadow over every plan and investment. It is devastating for 
start-ups. The cost of even one ill-timed abusive lawsuit can 
bankrupt a growing company and cost hundreds of thousands of 
jobs. CEOs and their boards are forced to lower their 
aspirations and hold back on innovations to manage defensively. 
This is holding our nation back from competing effectively in 
the global marketplace and offshore competition is seriously 
cutting into market share for U.S. companies.''\100\
---------------------------------------------------------------------------
    \100\Washington Legal Foundation, ``Conversations With . . .'' 
(Fall 2004).
---------------------------------------------------------------------------
    Doctors and patients suffer. Before the 1960's, only one 
physician in seven had ever been sued in their entire 
lifetime,\101\ whereas today's rate is about one in seven 
physicians sued per year.\102\
---------------------------------------------------------------------------
    \101\See ``Opinion Survey of Medical Professional Liability,'' JAMA 
164:1583-1594 (1957).
    \102\See R. Bovbjerg, ``Medical Malpractice: Problems & Reforms,'' 
The Urban Institute, Intergovernmental Health Policy Project (1995).
---------------------------------------------------------------------------
    Further, the Harvard Medical Practice Study found that over 
half of the filed medical professional liability claims they 
studied were brought by plaintiffs who suffered either no 
injuries at all, or, if they did, such injuries were not caused 
by their health care providers, but rather by the underlying 
disease.\103\ The researchers found that, of the 47 medical 
malpractice claims they studied that resulted in 
litigation,\104\ ``[i]n 14 cases, the physicians reviewed the 
record and found no adverse event. For most of these cases, the 
physicians examined the outcome and concluded that the cause 
was the underlying disease rather than medical treatment . . . 
In these 14 cases, our physician reviewers took a stand 
opposite to that of the plaintiff-patient's expert.''\105\ 
Further, the reviewers found that in an additional 10 cases an 
adverse event occurred, but there was no negligence on the part 
of the health care provider.\106\ Of the 47 claims filed that 
the researchers analyzed, less than half demonstrated any 
actual negligence, and many demonstrated no discernable 
injury.\107\
---------------------------------------------------------------------------
    \103\See Harvard Medical Practice Study to the State of New York, 
Patients, Doctors, and Lawyers: Medical Injury, Malpractice Litigation, 
and Patient Compensation in New York at 11-5 (1990) (``[T]he tort 
system imposes the costs of defending claims on [health care] providers 
who may not even have been involved in an injury, let alone a negligent 
injury.'').
    \104\See id. at 7-1.
    \105\See id. at 7-33.
    \106\See id. at 7-33.
    \107\See also Paul Weiler, et al., A Measure of Malpractice (1993) 
at 71 (``[Of those 47,] 10 claims involved hospitalization that had 
produced injuries, though not due to provider negligence; and another 
three cases exhibited some evidence of medical causation, but not 
enough to pass our probability threshold. That left 26 malpractice 
claims, more than half the total of 47 in our sample, which provided no 
evidence of medical injury, let alone medical negligence.'').
---------------------------------------------------------------------------
            response to federal judicial center 2005 survey
    The Federal Judicial Center's 2005 survey of U.S. district 
court judges (``FJC 2005 Survey'') will no doubt be misused by 
opponents of legal reform as evidence that frivolous lawsuits 
are ``not a problem.'' The survey of the Federal Judicial 
Center shows nothing of the sort.
    The Lawsuit Abuse Reduction Act would largely restore 
Federal Rule of Civil Procedure 11 to what it was before it was 
made toothless in 1993. Rule 11, prior to the adoption of 
weakening amendments in 1993, which eliminated mandatory and 
serious sanctions against those who filed frivolous lawsuits, 
was widely popular among Federal judges, and it served to 
significantly limit lawsuit abuse. In 1990, the Judicial 
Conference's Advisory Committee on Civil Rules (the same 
organization that requested the FJC 2005 Survey) undertook a 
review of Rule 11 at the time and asked the Federal Judicial 
Center to conduct an empirical study of its operation and 
impact. The survey of 751 Federal judges found that an 
overwhelming majority of Federal judges believed, based on 
their experience under both a weaker and stronger Rule 11, that 
a stronger Rule 11 did not impede development of the law (95%); 
the benefits of the rule outweighed any additional requirement 
of judicial time (71.9%); the stronger version of Rule 11 had a 
positive effect on litigation in the Federal courts (80.9%); 
and the rule should be retained in its then-current form 
(80.4%).\108\ Note that of the 751 judges surveyed in 1990, 583 
responded, roughly twice times as many as responded to the 
FJC's 2005 Survey.
---------------------------------------------------------------------------
    \108\Federal Judicial Center Final Report on Rule 11 to the 
Advisory Committee on Civil Rules of the Judicial Conference of the 
United States (May 1991).
---------------------------------------------------------------------------
    Enter the Federal Judicial Center's 2005 survey, which only 
278 judges responded to, and in which half of the judges 
surveyed (and over half of the judges that responded to the 
survey) had no experience with the stronger version of Rule 11. 
As the FJC 2005 Survey states, ``the Center E-mailed 
questionnaires to two random samples of 200 district judges 
each . . . One sample comprised solely judges appointed to the 
bench before January 1, 1992 . . . [t]he other sample comprised 
solely judges appointed to the bench after January 1, 
1992.''\109\ The FJC report keeps secret the dates on which the 
respondent judges first came to serve on the bench, so we have 
no way of knowing whether any of those judges had any 
significant experience as judges under the stronger Rule 11 
that was in effect the decade before 1993. Appendix A of the 
FJS 2005 Survey states that ``all judges in the first group [of 
200 out of 400 surveyed] would have had at least 1 year on the 
bench before the 1993 amendments to Rule 11 went into effect.'' 
That provides little comfort that any significant number of the 
judges surveyed had any significant experience under the 
stronger Rule 11. So the survey is fundamentally flawed in that 
we have no reason to believe it included any significant number 
of judges who had any significant experience under the stronger 
Rule 11.
---------------------------------------------------------------------------
    \109\FJC 2005 Survey, at 2.
---------------------------------------------------------------------------
    Further, the FJC Report found that even of the Federal 
judges surveyed, 55% indicated that the purpose of Rule 11 
should be both deterrence and compensation.\110\ The Lawsuit 
Abuse Reduction Act would fulfill both purposes. And a full 85% 
of the Federal judges surveyed in the FJC 2005 Survey reported 
that ``groundless litigation in Federal civil cases on [their 
individual] docket'' was a ``problem.''
---------------------------------------------------------------------------
    \110\FJC 2005 Survey at 2.
---------------------------------------------------------------------------
    Of course, legislators should take the opinions of this 
very small, and flawed, sample of judges for what it is, namely 
the views of a group of people who do not suffer in any direct 
way the costs of frivolous, abusive lawsuits. Those who do 
suffer those costs, including the large financial costs of 
nuisance lawsuits filed for their settlement value--namely the 
small business community--overwhelmingly support the Lawsuit 
Abuse Reduction Act. The National Federation of Independent 
Business, for example, has made passing the Lawsuit Abuse 
Reduction Act their top legislative priority. The small 
business community rejects the absurd notion today the amount 
of frivolous lawsuits filed are ``just right.''
    When sanctions for filing frivolous lawsuits are not 
mandatory, as they are not mandatory now, those who are the 
victims of frivolous lawsuits have no incentive to litigate the 
frivolous nature of the claims against them because there is 
currently no guarantee that even if the claims against them are 
found to be frivolous they will be compensated for the harm 
caused by those frivolous claims. What happens instead is that, 
today, the victims of frivolous lawsuits are routinely extorted 
to settle the case for certain sums just below those what would 
be necessary to litigate the case to judgment, at which point 
the case drops out of the dockets of the very judges who were 
surveyed by the FJC. (Note also that the very small number of 
judges surveyed by the FJC were not asked whether groundless 
litigation was generally a problem.)
    Just a couple weeks before for FJC 2005 Survey was 
released, here's what U.S. District Judge Loretta Preska had to 
say about the current state of Federal litigation:

        This action is one of dozens of similar bootless 
        actions filed in twenty-three district courts across 
        the United States on behalf of uninsured and indigent 
        patients, wherein Plaintiffs argue, without basis in 
        law, that private non-profit hospitals are required to 
        provide free or reduced-rate services to uninsured 
        persons . . . This orchestrated assault on scores of 
        nonprofit hospitals, necessitating the expenditure of 
        those hospitals' scares resources to beat back 
        meritless legal claims, is undoubtedly part of the 
        litigation explosion that has been so well-documented 
        in the media. E.g., Walter K. Olson, The Litigation 
        Explosion: What Happened When America Unleashed the 
        Lawsuit (1991); Philip K. Howard, The Collapse of the 
        Common Good: How America's Lawsuit Culture Undermines 
        Our Freedom (2001) . . . For the foregoing reasons, the 
        Defendants' motions to dismiss the above-captioned 
        actions are granted in their entirety with prejudice. 
        The Clerk of the Court shall mark these actions closed 
        and all pending motions denied as moot.\111\
---------------------------------------------------------------------------
    \111\Kolari v. New York-Presbyterian Hospital, 2005 WL 710452 
(S.D.N.Y.).

    Judges are unlikely to view frivolous litigation as a 
problem because such cases rarely reach the bench. An 
overwhelming number of cases settle before trial. When a 
frivolous claim is filed, one of two things occur under the 
current Rule 11: either the small business challenges the 
plaintiff and the plaintiff simply withdraws the claim and 
walks away (as they are allowed to do under the current Rule 
11); or the small business settles rather than proceed with a 
motion for sanctions because it is unlikely that the court will 
fully reimburse it for the cost of defending against the 
frivolous claim, and the cost of defending against the claim is 
more than the expense of settlement.
    The current situation favors judges, not small businesses 
who are harmed by the litigation. Under the current Rule 11, 
judges are relieved of their obligation to consider whether or 
not a case is frivolous. They do not need to hold a hearing on 
whether the case is frivolous and impose sanctions because, as 
a matter of practice, the current Rule 11 allows frivolous 
lawsuits to be withdrawn (with no reimbursement to the victim 
of the suit) or settled (for just under the cost of defending 
against it). While this is convenient for judges, it is not 
fair to small businesses.
    Everyone who sits back for a moment and reflects will 
understand that a limitless variety of frivolous lawsuits clog 
our courts in ways they did not previously. Judges, like frogs 
in a pot of boiling water, are not those most likely to 
appreciate the costs of frivolous lawsuits. Judges don't feel 
the painful costs of frivolous lawsuits, and as they have sat 
as judges over the last decade they have only seen the 
standards of how frivolous lawsuits should be treated erode 
over time, starting with the explicitly forgiving nature of the 
toothless Rule 11 that was enacted in 1993. It's time courts 
were made to take the harm caused by frivolous lawsuits 
seriously again--by making sanctions for filing frivolous 
lawsuits mandatory, not discretionary, on the part of the 
judge--and to empower the victims of frivolous lawsuits with 
the certainty that they will be compensated for the frivolous 
lawsuits they suffer under. Only the Lawsuit Abuse Reduction 
Act can help free all Americans from the fear they feel today 
under the constant threat of frivolous lawsuits.
    Finally, the Federal judiciarytends to oppose any legal 
reforms it does not itself propose. For example, the Federal 
judiciary also opposed the Class Action Fairness Act, 
legislation that overwhelmingly passed Congress and became law 
several years ago.\112\
---------------------------------------------------------------------------
    \112\The Class Action Fairness Act passed the Senate by a vote of 
72--26, and the House by a vote of 279--149.
---------------------------------------------------------------------------
    In the end, it is the American people and their duly-
elected representatives, not unelected judges appointed for 
life, who should be determining the appropriate punishments for 
those who file frivolous lawsuits.

                                Hearings
    The Committee's Subcommittee on the Constitution held 1 day 
of hearings on the need for H.R. 966, on March 11, 2011. 
Testimony was received from Elizabeth A. Milito, NFIB Small 
Business Legal Center; Professor Lonny Hoffman, University of 
Houston Law Center; and Victor E. Schwartz, Shook, Hardy & 
Bacon, L.L.P., with additional material submitted by other 
individuals and organizations.

                        Committee Consideration
    On July 7, 2011, the Committee met in open session and 
ordered the bill H.R. 966 favorably reported with an amendment, 
by a rollcall vote of 20 to 13, a quorum being present.

                            Committee Votes
    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 966.
    1. An amendment offered by Mr. Johnson that would have 
added back to Rule 11 the 21-day safe harbor provision. 
Defeated 12 to 15.

                                                 ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................
Mr. Issa........................................................
Mr. Pence.......................................................
Mr. Forbes......................................................
Mr. King........................................................
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Jordan......................................................                              X
Mr. Poe.........................................................
Mr. Chaffetz....................................................
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................                              X
Mr. Conyers, Jr., Ranking Member................................
Mr. Berman......................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................              X
Ms. Sanchez.....................................................              X
                                                                 -----------------------------------------------
    Total.......................................................             12              15
----------------------------------------------------------------------------------------------------------------

    2. An amendment offered by Ms. Jackson Lee to give courts 
discretion to determine the appropriate sanction. Defeated 12 
to 19.

                                                 ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................                              X
Mr. Issa........................................................
Mr. Pence.......................................................                              X
Mr. Forbes......................................................
Mr. King........................................................
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Jordan......................................................                              X
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................                              X
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................
Ms. Sanchez.....................................................              X
                                                                 -----------------------------------------------
    Total.......................................................             12              19
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 966, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 18, 2011.
Hon. Lamar Smith, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 966, the ``Lawsuit 
Abuse Reduction Act of 2011.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Martin von 
Gnechten, who can be reached at 226-2860.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                  Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 966--Lawsuit Abuse Reduction Act of 2011.
    H.R. 966 would amend Rule 11 of the Federal Rules of Civil 
Procedure to require courts to impose appropriate sanctions on 
attorneys, law firms, or parties who file frivolous lawsuits 
and to require them to compensate parties injured by such 
conduct. (Courts currently may, but are not required to, impose 
such sanctions.)
    Under the legislation, any monetary sanction imposed under 
Rule 11 would be paid by the parties to the suit. Thus, CBO 
estimates that enacting the legislation would result in no 
significant cost to the Federal Government. H.R. 966 would not 
affect direct spending or revenues; therefore, pay-as-you-go 
procedures do not apply.
    H.R. 966 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of State, local, or tribal 
governments.
    The CBO staff contact for this estimate is Martin von 
Gnechten. The estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
966 will reduce frivolous litigation in Federal courts.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 966 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
    Sec. 1. Short title. Section 1 sets forth the short title 
of the bill as the ``Lawsuit Abuse Reduction Act of 2011.''
    Sec. 2. Attorney Accountability. Section 2 restore 
mandatory sanctions for filing frivolous lawsuits in violation 
of Rule 11, removes Rule 11's ``safe harbor'' provision that 
currently allows parties and their attorneys to avoid sanctions 
for making frivolous claims by withdrawing frivolous claims 
after a motion for sanctions has been filed, and requires 
monetary sanctions, including attorneys' fees and compensatory 
costs, against any party making a frivolous claim. It also 
contains a rule of construction that states ``Nothing in this 
Act shall be construed to bar or impede the assertion or 
development of new claims, defenses, or remedies under Federal, 
State, or local laws, including civil rights law, or under the 
Constitution.''

            Changes to the Federal Rules of Civil Procedure 
                     Made by the Bill, as Reported

  Changes to the Federal Rules of Civil Procedure made by the 
bill, as reported, are shown as follows (existing rule proposed 
to be omitted is enclosed in black brackets, new matter is 
printed in italics, existing rule in which no change is 
proposed is shown in roman):

                    RULE 11 OF THE FEDERAL RULES OF 
                            CIVIL PROCEDURE

Rule 11. Signing Pleadings, Motions, and other Papers; Representations 
                    to the Court; Sanctions

    (a) * * *

           *       *       *       *       *       *       *

    (c) Sanctions.--
            (1) In general.--If, after notice and a reasonable 
        opportunity to respond, the court determines that Rule 
        11(b) has been violated, the court [may] shall impose 
        an appropriate sanction on any attorney, law firm, or 
        party that violated the rule or is responsible for the 
        violation. Absent exceptional circumstances, a law firm 
        must be held jointly responsible for a violation 
        committed by its partner, associate, or employee.
            (2) Motion for sanctions.--A motion for sanctions 
        must be made separately from any other motion and must 
        describe the specific conduct that allegedly violates 
        Rule 11(b). The motion must be served under [Rule 5, 
        but it must not be filed or be presented to the court 
        if the challenged paper, claim, defense, contention, or 
        denial is withdrawn or appropriately corrected within 
        21 days after service or within another time the court 
        sets. If warranted, the court may award to the 
        prevailing party the reasonable expenses, including 
        attorney's fees, incurred for the motion.] Rule 5.

           *       *       *       *       *       *       *

            (4) Nature of a sanction.--A sanction imposed under 
        this rule must be limited to what suffices to deter 
        repetition of the conduct or comparable conduct by 
        others similarly [situated. The sanction may include 
        nonmonetary directives; an order to pay a penalty into 
        court; or, if imposed on motion and warranted for 
        effective deterrence, an order directing payment to the 
        movant of part or all of the reasonable attorney's fees 
        and other expenses directly resulting from the 
        violation.] situated, and to compensate the parties 
        that were injured by such conduct. Subject to the 
        limitations in paragraph (5), the sanction shall 
        consist of an order to pay to the party or parties the 
        amount of the reasonable expenses incurred as a direct 
        result of the violation, including reasonable 
        attorneys' fees and costs. The court may also impose 
        additional appropriate sanctions, such as striking the 
        pleadings, dismissing the suit, or other directives of 
        a nonmonetary nature, or, if warranted for effective 
        deterrence, an order directing payment of a penalty 
        into the court.

           *       *       *       *       *       *       *


                            Dissenting Views

                            I. INTRODUCTION

    H.R. 966, the ``Lawsuit Abuse Reduction Act'' (LARA), rolls 
back the 1993 amendments to Rule 11 of the Federal Rules of 
Civil Procedure--imposing mandatory sanctions and eliminating 
the 21-day safe harbor provision. Although LARA is flawed in 
many ways, most issues with this legislation boil down to two 
concerns. First, it will raise the amount, cost, and intensity 
of civil litigation and provide more grounds for unnecessary 
delay and harassment in the courtroom. Second, a return to the 
1983 regime will chill legitimate civil rights claims.
    Ordinarily, when the Majority proposes legislation to limit 
access to the civil justice system, reasonable minds can 
disagree as to the extent of the damage the bill will cause. 
This, however, is not the case with H.R. 966, the ``Lawsuit 
Abuse Reduction Act'' (LARA). This legislation will turn back 
the clock to a time when the Federal Rules of Civil Procedure 
limited judicial discretion, discouraged civil rights cases, 
and permitted ``satellite'' litigation to run wild. We oppose 
H.R. 966 because a decade of past practice proves that it will 
have a disastrous impact on the administration of justice.
    LARA is also opposed by the Alliance for Justice, the 
American Bar Association, the Center for Justice and Democracy, 
the Consumer Federation of America, the NAACP, the National 
Employment Lawyers Association, the National Women's Health 
Network, the National Consumer Voice for Quality Long-Term 
Care, Public Citizen, and the U.S. Public Interest Research 
Group. In addition, LARA is opposed by the Judicial Conference 
of the United States, the principal policymaking body for the 
judicial branch charged with proposing amendments to the 
Federal Rules of Civil Procedure under the careful, deliberate 
process outlined in the Rules Enabling Act.\1\
---------------------------------------------------------------------------
    \1\28 U.S.C. Sec. Sec. 2701-2077.
---------------------------------------------------------------------------
    For the reasons set forth herein, we respectfully dissent.

         II. SUMMARY OF THE BILL AND ITS PROBLEMATIC PROVISIONS

    The ``Lawsuit Abuse Reduction Act of 2011'' marks the third 
time that Chairman Smith has introduced a bill to roll back the 
1993 amendments to Rule 11.\2\ The bill changes Rule 11 in 
three ways:
---------------------------------------------------------------------------
    \2\See Lawsuit Abuse Reduction Act of 2004, H.R. 4571, 108th Cong. 
(2004); Lawsuit Abuse Reduction Act of 2005, H.R. 420, 109th Cong. 
(2005).

         LIt takes away the discretion of the court and 
        makes sanctions mandatory in cases of Rule 11 
---------------------------------------------------------------------------
        violations.

         LIt removes the 21-day safe harbor provision. 
        Parties will no longer have the ability to correct or 
        withdraw a filing before Rule 11 proceedings commence.

         LIt replaces the description of available 
        sanctions. Under the current rule, sanctions are 
        designed for deterrence; monetary sanctions are rare 
        and, if imposed, most likely to be paid to the court as 
        a penalty. After LARA, monetary sanctions are mandatory 
        and must include, at the very least, payment of court 
        costs and attorneys' fees to the other party.

This last proposal appears to reach significantly past the 1983 
rule, which stated that an ``appropriate sanction . . . may 
include an order to pay the other party or parties the amount 
of the reasonable expenses incurred . . . including a 
reasonable attorney's fee.''\3\ In contrast, LARA requires that 
sanctions include, at minimum, an order to pay court costs and 
attorneys' fees.
---------------------------------------------------------------------------
    \3\Fed. R. Civ. P. 11 (1983) (repealed 1993) (emphasis added).
---------------------------------------------------------------------------
    The rule of construction, as amended in markup, states that 
nothing in the bill may be ``construed to bar or impede the 
assertion or development of new claims, defenses, or remedies 
under Federal, State, or local laws, including civil rights 
laws, or under the Constitution.'' This provision is a reaction 
to evidence that the 1983 version of Rule 11 effectively barred 
plaintiffs from bringing civil rights and anti-discrimination 
claims. It is unclear, however, how this provision would 
prevent defendants from tying up civil rights cases in Rule 11 
satellite litigation to delay or drive up legal costs.
    The Judicial Conference has warned that ``legislation that 
would restore the 1983 version of Rule 11 by undoing the 1993 
amendments would create a `cure' far worse than the problem it 
is meant to solve.''\4\ Moreover, ``no serious problem has been 
brought to the Rules Committees' attention.  . . . There is no 
need to reinstate the 1983 version of Rule 11 that proved 
contentious and diverted so much time and energy of the bar and 
bench.''\5\ The American Bar Association also considers LARA 
``to be ill-advised and unnecessary.''\6\ Among other 
objections, the ABA believes that LARA's ``premise is not based 
on an empirical foundation, and the proposed amendments ignore 
lessons learned.''\7\
---------------------------------------------------------------------------
    \4\Letter from Lee H. Rosenthal, U.S. Dist. Judge, S.D. Tex., and 
Mark R. Kravitz, U.S. Dist. Judge, D. Conn., to Chairman Lamar Smith, 
H. Comm. on the Judiciary (Mar. 14, 2011).
    \5\Id.
    \6\Letter from Thomas M. Susman, Director, Governmental Affairs 
Office, American Bar Association, to Chairman Trent Franks, Subcomm. on 
the Constitution, H. Comm. on the Judiciary (Mar. 11, 2011).
    \7\Id.
---------------------------------------------------------------------------
    In 2005, as the House prepared to vote on an earlier 
version of LARA, the Federal Judicial Center conducted a survey 
of 278 Federal judges to discern their views on Rule 11. The 
results were overwhelmingly in favor of the rule as amended in 
1993:

         L85 percent of the judges surveyed viewed 
        ``groundless litigation'' as no more than a small 
        problem in their courtrooms;

         L91 percent opposed the proposed requirement 
        that sanctions be imposed for every Rule 11 violation;

         L85 percent strongly or moderately supported 
        Rule 11's safe harbor provision; and

         L84 percent disagreed with the proposition 
        that an award of attorney fees should be mandatory for 
        every Rule 11 violation.\8\
---------------------------------------------------------------------------
    \8\David Rauma & Thomas E. Willging, Report of a Survey of United 
States District Judges' Experiences and Views Concerning Rule 11, 
Federal Rules of Civil Procedure, Federal Judicial Center (2005).

In the end, 87 percent of the judges surveyed wanted Rule 11 to 
stay as amended in 1993. Only 4 percent expressed support for 
the amendments proposed by Judiciary Republicans.\9\
---------------------------------------------------------------------------
    \9\Id.
---------------------------------------------------------------------------

        III. H.R. 966 UNDOES SIGNIFICANT IMPROVEMENTS TO RULE 11

    Rule 11 of the Federal Rules of Civil Procedure requires 
``[e]very pleading, written motion, and other paper'' to be 
``signed by at least one attorney of record.''\10\ By signing, 
the attorney certifies: (1) the paper is not ``presented for 
any improper purpose, such as to harass, cause unnecessary 
delay, or needlessly increase the cost of litigation;'' (2) any 
claims ``are warranted by existing law or by a nonfrivolous 
argument for extending, modifying, or reversing existing law or 
for establishing new law;'' (3) all factual contentions have 
``evidentiary support'' or ``will likely have evidentiary 
support after a reasonable opportunity for further 
investigation or discovery;'' and (4) any denials of factual 
contentions are ``warranted on the evidence'' or ``reasonably 
based on belief or a lack of information.''\11\ If a court 
determines that Rule 11 has been violated, a wide range of 
sanctions is available.\12\
---------------------------------------------------------------------------
    \10\Fed. R. Civ. P. 11(a).
    \11\Fed. R. Civ. P. 11(b).
    \12\Fed. R. Civ. P. 11(c).
---------------------------------------------------------------------------
    Since it first took effect in 1938, Rule 11 has been 
amended only twice. H.R. 966 attempts to sidestep the Judicial 
Conference and amend the rule for a third time.
A. The 1938 Rule
    In its original form, Rule 11 required attorneys to sign 
pleadings and to certify that, to the best of their 
``knowledge, information, and belief,'' each pleading was well-
grounded.\13\ The court held sole discretion over the 
imposition of sanctions.\14\ During the 45 years this version 
of the rule was in effect, the courts ruled on only 19 Rule 11 
motions, found a violation of the rule only 11 times, and 
imposed sanctions in only 3 cases.\15\ This version of Rule 11 
was seldom used and largely ignored.\16\
---------------------------------------------------------------------------
    \13\Fed. R. Civ. P. 11 (1938) (repealed 1983).
    \14\Id.
    \15\Peter A. Joy, The Relationship Between Civil Rule 11 & Lawyer 
Discipline: An Empirical Analysis Suggesting Institutional Choices in 
the Regulation of Lawyers, 37 Loy. L. A. L. Rev. 765, 765-66 (2004).
    \16\See Lonny Sheinkopf Hoffman, The Lawsuit Abuse Reduction Act: 
The Legislative Bid to Regulate Lawyer Conduct, 25 Rev. Litig. 719, 722 
(2006).
---------------------------------------------------------------------------
            1. The 1983 Amendment
    The 1983 Advisory Committee on Civil Rules recognized that, 
``in practice, Rule 11 has not been effective in deterring 
abuses.''\17\ In an attempt to curb an increase in the number 
and rising costs of civil suits, the Advisory Committee added 
significant teeth to the sanction provisions. The amended rule 
required attorneys to conduct a ``reasonable inquiry'' into the 
factual and legal merits of every document submitted in court, 
and mandated sanctions if courts found attorneys in violation 
of this responsibility.\18\
---------------------------------------------------------------------------
    \17\Fed. R. Civ. P. 11 (1983) Advisory Committee's note to the 1983 
amendment.
    \18\Fed. R. Civ. P. (1983) (repealed 1993).
---------------------------------------------------------------------------
    Instead of deterring unnecessary litigation, the 1983 
amendment became a ``font of rancor'' between parties in civil 
suits.\19\ The nineteen Rule 11 filings between 1938 and 1983 
gave way to almost 7,000 reported cases during the decade the 
1983 rule was in effect.\20\ A 1989 study showed that roughly 
one-third of all Federal civil lawsuits involved Rule 11 
``satellite'' litigation.\21\ Roughly one-fourth of all cases 
on the docket were burdened by Rule 11 actions that did not 
result in sanctions.\22\ Attorneys now had a double duty: ``one 
to try the case, and the other to try the opposing 
counsel.''\23\ Commentators criticized the 1983 rule for 
spawning a veritable ``cottage industry'' of Rule 11 
litigation.\24\
---------------------------------------------------------------------------
    \19\Don J. DeBenedictis, Rule 11 Snags Lawyers: Critics Charge 
Ruling Will Discourage Civil Rights Cases, 77 A.B.A. J. 16 (1999).
    \20\Hoffman, supra note 16, at 727.
    \21\Uncertain and Certain Litigation Abuses, 2004: Hearing on 
``Safeguarding Americans from a Legal Culture of Fear: Approaches to 
Limiting Lawsuit Abuse'' before the H. Comm. on the Judiciary, 108th 
Cong. (2004) (statement of Theodore Eisenberg, Professor, Cornell 
University).
    \22\Id.
    \23\Id.
    \24\Carl Tobias, The 1993 Revision to Federal Rule 11, 70 IND. L.J. 
171, 173-74 (1994) (noting statistics on growth in Rule 11 practice).
---------------------------------------------------------------------------
    In 1992, the Advisory Committee held two public hearings on 
proposed amendments to Rule 11. The Committee noted that 
``widespread criticisms of the 1983 version of the rule, though 
frequently exaggerated or premised on faulty assumptions, were 
not without some merit.''\25\ It found that the rule ``tended 
to impact plaintiffs more frequently and severely than 
defendants,'' occasionally ``created problems for a party which 
seeks to assert novel legal contentions,'' and provided 
``little incentive, and perhaps a disincentive, for a party to 
abandon positions after determining they are no longer 
supportable in fact or law.''\26\ Other studies found that 
sanctions were disproportionately imposed against plaintiffs in 
civil rights and anti-discrimination cases.\27\
---------------------------------------------------------------------------
    \25\Letter from the Honorable Sam C. Pointer, Jr., Chairman, 
Advisory Committee on Civil Rules, to the Honorable Robert E. Keeton, 
Chairman, Standing Committee on Rules of Practice and Procedure (May 1, 
1992), reprinted in 146 F.R.D. 519 (1993) (transmitting proposed 
amendments to the Federal Rules of Civil Procedure and the Federal 
Rules of Evidence, and accompanying Committee Notes).
    \26\Id.
    \27\See Carl Tobias, Rule 11 and Civil Rights Litigation, 37 Buff. 
L. Rev. 485 (1989); Margaret L. Sanner & Carl Tobias, Rule 11 & Rule 
Revision, 37 Loy. L.A. L. Rev. 573 (2004); Danielle Kie Hart, And the 
Chill Goes On--Federal Civil Rights Plaintiffs Beware: Rule 11 Vis-a-
vis 28 U.S.C. Sec. 1927 and the Court's Inherent Power, 37 Loy. L.A. L. 
Rev. 645 (2004).
---------------------------------------------------------------------------
            2. The 1993 Amendment
    In 1993, the Advisory Committee amended several key aspects 
of Rule 11. It removed virtually all financial incentive for a 
party to pursue nuisance Rule 11 sanctions, or to defend 
against them to the bitter end. Still in effect today, this 
version of Rule 11 sets a more objective standard for attorney 
behavior--i.e., courtroom activity must be ``warranted by 
existing law or by a nonfrivolous argument for the extension, 
modification, or reversal of existing law or the establishment 
of a new law.''\28\ Sanctions are to be imposed only at the 
discretion of the court, and must be limited to ``what is 
sufficient to deter repetition of such conduct or comparable 
conduct by others similarly situated.''\29\ Because the purpose 
of Rule 11 is ``to deter rather than to compensate,'' monetary 
sanctions, if imposed, ``should ordinarily be paid into the 
court as a penalty.''\30\ Only in exceptional cases should 
payment be made to those injured by the violation and, even 
then, ``any such award . . . should not exceed the expenses and 
attorneys' fees for the services directly and unavoidably 
caused by the violation of the certification requirement.''\31\ 
A 21-day ``safe harbor'' provision allows a litigant to 
withdraw or amend any offending document before the court 
continues with Rule 11 proceedings.\32\
---------------------------------------------------------------------------
    \28\Fed R. Civ. P. 11(b)(2).
    \29\Id. at 11(c)(4).
    \30\Fed R. Civ. P. 11 Advisory Committee's note to 1993 amendment.
    \31\Id.
    \32\Fed R. Civ. P. 11(c)(1).
---------------------------------------------------------------------------
    By all empirical accounts, the 1993 amendments have been 
tremendously successful. The Sixth Circuit observed that the 
Advisory Committee ``anticipated that civility among attorneys 
and between bench and bar would be furthered by having 
attorneys communicate with each other and with an eye toward 
potentially resolving their difference prior to court 
involvement.''\33\ In the lower courts, the safe harbor 
provision has had ``the salutary effect of providing the 
appropriate due process considerations to sanction litigation, 
reducing Rule 11 volume and eliminating abuses proscribed by 
this rule.''\34\
---------------------------------------------------------------------------
    \33\Ridder v. City of Springfield, 109 F.3d 288, 294 (6th Cir. 
1997).
    \34\Photocircuits Corp. v. Marathon Agents, Inc., 162 F.R.D. 449, 
452 (E.D.N.Y. 1995).
---------------------------------------------------------------------------

    IV. H.R. 966 UNDERMINES THE JUDICIAL CONFERENCE'S DELIBERATIVE 
          PROCESSES AS REQUIRED UNDER THE RULES ENABLING ACT.

    For most of the past century, Congress has trusted the 
Federal judiciary to make its own procedural rules. H.R. 966 
abrogates that trust.
    In 1922, Congress tasked the Judicial Conference of the 
United States to serve as the principal policymaking body for 
the judicial branch.\35\ Federal statute requires the 
Conference to conduct ``a continuous study of the operation and 
effect'' of the rules of procedure, and propose changes to the 
rules ``to promote simplicity in procedure, fairness in 
administration, the just determination of litigation, and the 
elimination of unjustifiable defense and delay.''\36\
---------------------------------------------------------------------------
    \35\Id. Sec. 331.
    \36\Id.
---------------------------------------------------------------------------
    In 1934, Congress passed the Rules Enabling Act, which 
authorizes the Federal judiciary to prescribe its own rules of 
practice, procedure, and evidence.\37\ The Judicial Conference 
has taken on this responsibility as well. Specifically, the 
Conference assigns these matters to its Committee on Rules of 
Practice and Procedure and its advisory committees, which 
recommend proposed changes to the rules ``as may be necessary 
to maintain consistency and otherwise promote the interest of 
justice.''\38\ Each committee is composed of Federal judges, 
practicing lawyers, law professors, state chief justices, and 
representatives of the Department of Justice.\39\ The process 
for amending rules of procedure is deliberate and exhaustive:
---------------------------------------------------------------------------
    \37\28 U.S.C. Sec. Sec. 2071 et seq.
    \38\28 U.S.C. Sec. 2073(b).
    \39\``A Summary for the Bench and Bar: The Federal Rules of 
Practice and Procedure,'' Admin. Office of the U.S. Courts, Oct. 2010, 
available at http://www.uscourts.gov/RulesAndPolicies/
FederalRulemaking/RulemakingProcess/SummaryBenchBar.aspx.

        The pervasive and substantial impact of the rules on 
        the practice of law in the Federal courts demands 
        exacting and meticulous care in drafting rule changes. 
        The rulemaking process is time consuming and involves a 
        minimum of seven stages of formal comment and review. 
        From beginning to end, it usually takes two to 3 years 
---------------------------------------------------------------------------
        for a suggestion to be enacted as a rule. . . .

        [C]omments received from this extensive and thorough 
        public examination are studied very carefully by the 
        committees and generally improve the amendments. The 
        committees actively encourage the submission of 
        comments, both positive and negative, to ensure that 
        proposed amendments have been considered by a broad 
        segment of the bench and bar.\40\
---------------------------------------------------------------------------
    \40\Id.

This careful process gives Congress the opportunity to reject, 
modify, or defer changes before they take effect.\41\ In stark 
contrast, H.R. 966 is a reckless attempt to amend the rules 
directly, over the objections of the Judicial Conference and 
without input from experts or practitioners.
---------------------------------------------------------------------------
    \41\28 U.S.C. Sec. Sec. 2074, 2075.
---------------------------------------------------------------------------

          V. MANDATORY SANCTIONS LEAD TO INCREASED LITIGATION.

    Supporters of H.R. 966 want to curb a perceived increase in 
frivolous litigation. The actual effect of the legislation, 
however, will be to increase litigation. Under the LARA regime, 
with mandatory sanctions and no opportunity to correct 
mistakes, the parties to a lawsuit have every incentive to file 
Rule 11 complaints and seek out court costs and legal fees and 
obvious motives to defend against such actions to the bitter 
end. This dynamic is more than theoretical. Under the 1983 
version of the rule, ``satellite'' litigation aimed at Rule 11 
sanctions flourished.
    The Judicial Conference also recognizes that LARA is a step 
backwards. The 1983 version of Rule 11 was amended because it 
``spawned thousands of court decisions unrelated to the merits 
of the cases, sowed discord in the bar, and generated 
widespread criticism.''\42\ Reinstituting mandatory sanctions 
would create conflicts of interest between lawyers and their 
clients and exacerbate tensions between competing 
attorneys.\43\ Moreover, the changes would create 
``disincentive to abandon or withdraw a pleading or claim that 
lacked merit--and thereby admit error--after determining that 
it no longer was supportable in law or fact''\44\ Since the 
adoption of the 1993 amendments, the Conference had observed 
``a marked decline in Rule 11 satellite litigation without any 
noticeable increase in the number of frivolous filings.''\45\
---------------------------------------------------------------------------
    \42\Letter from Rosenthal & Kravitz, supra note 4.
    \43\Id.
    \44\Id.
    \45\Id.
---------------------------------------------------------------------------
    Elizabeth A. Milito, a representative of the National 
Federation of Independent Business, testified before the 
Subcommittee on Constitution that frivolous lawsuits create a 
``climate of fear'' for small businesses. However, the NFIB 
surveyed 3,530 of its members in 2008 on the biggest threats 
facing small business.\46\ Out of 75 possible concerns 
surveyed, ``cost and frequency of lawsuits/threatened suits'' 
ranked 65th.\47\ More than a third of respondents found that 
the threat of lawsuits were ``not a problem'' at all.\48\
---------------------------------------------------------------------------
    \46\Bruce D. Phillips & Holly Wade, ``Small Business Problems & 
Priorities,'' National Federation of Independent Business Research 
Foundation (June 2008).
    \47\Id. at 18.
    \48\Id. at 14.
---------------------------------------------------------------------------
    In the final analysis, the ``climate of fear'' for small 
businesses is based almost entirely on anecdotal evidence--and 
even this is thin. In 2004, 2005, and again 2011, the Majority 
cited to the single example of a ladder company in upstate New 
York ``that was forced to sell of most of its assets because of 
litigation costs.''\49\ That characterization does not square 
with the facts of the bankruptcy as it was originally reported: 
although insurance premiums had risen considerably, the ladder 
company was profitable until ``competition from bigger 
companies using foreign labor . . . became unbearable.''\50\ 
Moreover, the company ``wasn't even sued all that much.''\51\ 
The ``climate of fear'' is unsubstantiated, and small 
businesses should be far more concerned with a return to the 
climate of hostility engendered by the 1983 rule.
---------------------------------------------------------------------------
    \49\ Markup of H.R. 966, The Lawsuit Abuse Reduction Act of 2011, 
before the H. Comm. on the Judiciary, 112th Cong. (July 7, 2010) 
(statement of Rep. Smith, Chairman, H. Comm. on the Judiciary). See 
also H. R. Rep. No. 108-682, at 12 (2004); H. R. Rep. No. 109-123, at 
14 (2005).
    \50\Carrie Coolidge, ``The Last Rung, The Tort System Takes Down a 
149-year-old Ladder Manufacturer,'' Forbes (Jan. 12, 2004), at 52.
    \51\Id.
---------------------------------------------------------------------------

     VI. H.R. 966 WILL HAVE A CHILLING IMPACT ON CIVIL RIGHTS CASES

    Because civil rights cases often involve an ``argument for 
the extension, modification, or reversal of existing law or the 
establishment of a new law,'' they were particularly 
susceptible to Rule 11 before the 1993 amendments. A 1991 
Federal Judicial Center study found that ``[t]he incidence of 
Rule 11 motions or sua sponte orders is higher in civil rights 
cases than in some other types of cases.''\52\ Another study 
showed that ``civil rights cases made up 11.4% of Federal cases 
filed'' but that ``22.7% of the cases in which sanctions had 
been imposed were civil rights cases.''\53\ Under the 1983 
rule, civil rights cases were clearly disadvantaged.
---------------------------------------------------------------------------
    \52\Elizabeth C. Wiggins, et al., Special Issue on Rule 11, FJC 
Directions No. 2, at 10 (Nov. 1991).
    \53\Lawrence C. Marshall, et al., The Use and Impact of Rule 11, 86 
Nw. U.L. Rev. 943, 971-75 (1992).
---------------------------------------------------------------------------
    H.R. 966 would restore this regime and provide no recourse 
for appeal when sanctions are imposed. The Honorable Robert L. 
Carter, United States District Court Judge for the Southern 
District of New York, considered changes like these and 
remarked:

        I have no doubt that the Supreme Court's opportunity to 
        pronounce separate schools inherently unequal [in Brown 
        v. Board of Education] would have been delayed for a 
        decade had my colleagues and I been required, upon pain 
        of potential sanctions, to plead our legal theory 
        explicitly from the start.\54\
---------------------------------------------------------------------------
    \54\Symposium, The 50th Anniversary of the Federal Rules of Civil 
Procedure, 1938-1988, 137 U. Pa. L. Rev. 2179, 2193 (June 1989).

And, as one witness testified before the Judiciary Committee in 
2004, ``A Congress considering reinstating the fee-shifting 
aspect of Rule 11 in the name of tort reform should understand 
what it will be doing. It will be discouraging civil rights 
cases disproportionately affected by old Rule 11 in the name of 
addressing purported abuse in an area of law, personal injury 
tort, found to have less abuse than other areas.''\55\
---------------------------------------------------------------------------
    \55\Uncertain and Certain Litigation Abuses, 2004: Hearing on 
``Safeguarding Americans from a Legal Culture of Fear: Approaches to 
Limiting Lawsuit Abuse'' before the H. Comm. on the Judiciary, 108th 
Cong. (2004) (statement of Theodore Eisenberg, Professor, Cornell 
University).
---------------------------------------------------------------------------
    The bill's rule of construction, as amended in Committee by 
Mr. Scott, states: ``Nothing in this Act shall be construed to 
bar or impede the assertion or development of new claims, 
defenses, or remedies under Federal, State, or local laws, 
including civil rights laws, or under the Constitution.''\56\ 
This provision is new to this version of LARA, and is intended 
to address the undisputed effect of the 1983 rule on civil 
rights litigation. This intent is to be applauded.
---------------------------------------------------------------------------
    \56\Lawsuit Abuse Reduction Act of 2011, H.R. 966, 112th Cong. 
Sec. 2(b) (2011).
---------------------------------------------------------------------------
    We note, however, that the 1983 rule was also facially 
neutral with respect to the development of novel legal claims. 
The rule of construction does nothing to prevent defendants 
from wielding Rule 11 as a weapon against legitimate 
plaintiffs, tying up civil rights cases in long and costly 
satellite litigation. Past practice shows that abuse of Rule 11 
need not be overt.
    For all these reasons, we respectfully dissent.

                                   John Conyers, Jr.
                                   Jerrold Nadler.
                                   Robert C. ``Bobby'' Scott.
                                   Melvin L. Watt.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   Steve Cohen.
                                   Henry C. ``Hank'' Johnson, Jr.
                                   Pedro R. Pierluisi.
                                   Mike Quigley.
                                   Ted Deutch.