[House Report 114-246]
[From the U.S. Government Publishing Office]
114th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 114-246
======================================================================
LAWSUIT ABUSE REDUCTION ACT OF 2015
_______
September 8, 2015.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Goodlatte, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 758]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 758) 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
without amendment and recommends that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 8
Committee Consideration.......................................... 9
Committee Votes.................................................. 9
Committee Oversight Findings..................................... 14
New Budget Authority and Tax Expenditures........................ 14
Congressional Budget Office Cost Estimate........................ 14
Duplication of Federal Programs.................................. 15
Disclosure of Directed Rule Makings.............................. 15
Performance Goals and Objectives................................. 15
Advisory on Earmarks............................................. 15
Section-by-Section Analysis...................................... 15
Dissenting Views................................................. 16
Purpose and Summary
The Lawsuit Abuse Reduction Act of 2015 (``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 February 5,
2015, would restore the teeth Rule 11 of the Federal Rules of
Civil Procedure 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,
and 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 339 (S.D.N.Y. 1985), the court sua
sponte imposed 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).
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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.'' Since
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 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\
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\2\See http://pubcit.typepad.com/clpblog/2011/02/javelin-marketing-
seeks-to-suppress-criticism-of-its-insurance-leads-sales.html.
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When Business Week wrote an extensive article on what the
most effective legal reforms would be, Business Week stated
that what is needed are ``Penalties That Sting.'' As Business
Week recommends, ``[g]ive 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.''\3\
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\3\Mike France, ``Special Report--Tort Reform: How to Fix the Tort
System,'' Business Week (March 14, 2005) at 76.
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THE 1993 AMENDMENTS TO RULE 11
Rule 11 of the Federal Rules of Civil Procedure, as
originally adopted and prior to the adoption of weakening
amendments in 1993, was widely popular among Federal judges and
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%).\4\
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\4\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 John Shapard et. al., Federal
Judicial Center, Report of a Survey Concerning Rule 11, Federal Rules
of Civil Procedure at 5.
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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 driven largely by the desire to avoid
``satellite litigation'' of Rule 11 issues that could burden
allegedly overworked judges.\5\ (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,\6\ the Supreme Court approved the proposed changes
without substantive comment in 1993.
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\5\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) (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. See http://
www.uscourts.gov/JudgesAndJudgeships/FederalJudgeships.aspx.
\6\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.R. Rep. No. 104-62, at 11, n.14 (1995).
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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.''\7\ 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.''\8\
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\7\146 F.R.D. 401, 507, 509-10 (1993).
\8\Id. at 507-08.
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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,\9\ 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.\10\ Congress needs to restore those
positive effects once again.
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\9\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).
\10\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).
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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.\11\
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\11\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.
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THE LAWSUIT ABUSE REDUCTION ACT (``LARA'')
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 of 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.\12\ LARA would do just that.
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\12\See John Shapard et. al., Federal Judicial Center, Report of a
Survey Concerning Rule 11, Federal Rules of Civil Procedure 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
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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.''\13\ LARA
would get rid of the ``free pass'' lawyers have to file
frivolous lawsuits under today's Rule 11.
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\13\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
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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 fail to meet the criteria outlined above
will be subject to Rule 11 sanctions under LARA. 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 allows 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 of the United States.''
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 Rule
11 of the Federal Rules of Civil Procedure 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%).\14\ Note that of the 751 judges surveyed in 1990, 583
responded, roughly twice as many as responded to the FJC's 2005
Survey.
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\14\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).
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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.''\15\ 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
FJC 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 substantial experience under the
stronger Rule 11. So the survey is fundamentally flawed in that
we have no reason to believe it included a meaningful number of
judges who had any significant experience under the stronger
Rule 11.
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\15\FJC 2005 Survey, at 2.
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Further, the FJC 2005 Survey found that even of the Federal
judges surveyed, 55% indicated that the purpose of Rule 11
should be both deterrence and compensation.\16\ 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.''
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\16\FJC 2005 Survey at 2.
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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, including
the small business community, overwhelmingly support LARA.
When sanctions for filing frivolous lawsuits are not
mandatory, which they are not 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 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 the victims of frivolous
lawsuits are routinely extorted to settle the case for certain
sums just below those that 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.
Just a couple weeks before the FJC 2005 Survey was
released, here is 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 23 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.\17\
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\17\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 or others who are harmed by
the litigation.
Finally, the Federal judiciary apparently has a flat policy
of opposing any legal reforms that it does not itself
propose.\18\ Under that policy, for example, the Federal
judiciary also opposed the Class Action Fairness Act,
legislation that overwhelmingly passed Congress and became law
10 years ago.\19\
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\18\See letter from Committee on Rules of Practice and Procedure of
the Judicial Conference of the United States to the Hon. John Conyers,
Jr. (July 23, 2013) at 1 (stating the Judicial Conference opposes
legislation that ``contravenes the longstanding Judicial Conference
policy
opposing direct amendment of the Federal rules by legislation''),
available at http://
democrats.judiciary.house.gov/sites/democrats.judiciary.house.gov/
files/documents/JudConf130723.pdf.
\19\The Class Action Fairness Act passed the Senate by a vote of
72-26, and the House by a vote of 279-149.
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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 and Civil
Justice held a hearing on H.R. 758 on March 13, 2015.
Committee Consideration
On April 15 and May 14, 2015, the Committee met in open
session and ordered the bill H.R. 758 favorably reported
without amendment, by a rollcall vote of 19 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. 758.
1. Amendment #1, offered by Mr. Conyers, to exempt cases
brought under the Constitution of the United States or any
civil rights laws from the bill's coverage. This amendment was
defeated by a rollcall vote of 10 to 18.
ROLLCALL NO. 1
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. Forbes (VA)................................ X
Mr. King (IA)..................................
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................ X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL)..............................
Ms. Walters (CA)............................... X
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX)............................. X
Mr. Trott (MI)................................. X
Mr. Bishop (MI)................................ X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI)............................. X
Mr. Peters (CA)................................ X
------------------------
Total...................................... 10 18
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2. Amendment #2, offered by Ms. Jackson Lee, to strike the
mandatory sanctions provision of the bill. This amendment was
defeated by a rollcall vote of 14 to 18.
ROLLCALL NO. 2
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. Forbes (VA)................................ X
Mr. King (IA)..................................
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................ X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL)..............................
Ms. Walters (CA)............................... X
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX)............................. X
Mr. Trott (MI)................................. X
Mr. Bishop (MI)................................ X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
Mr. Peters (CA)................................ X
------------------------
Total...................................... 14 18
------------------------------------------------------------------------
3. Amendment #3, offered by Mr. Johnson, to condition the
date on which the legislation would take effect on its approval
by the Judicial Conference of the United States. This amendment
was defeated by a rollcall vote of 12 to 18.
ROLLCALL NO. 3
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. Forbes (VA)................................ X
Mr. King (IA)..................................
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................ X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL)..............................
Ms. Walters (CA)............................... X
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX)............................. X
Mr. Trott (MI)................................. X
Mr. Bishop (MI)................................ X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
Mr. Peters (CA)................................ X
------------------------
Total...................................... 12 18
------------------------------------------------------------------------
4. Amendment 4, offered by Mr. Cicilline, to strike the
bill's elimination of the 21-day safe harbor provision in the
current Rule 11 of the Federal Rules of Civil Procedure. This
amendment was defeated by a rollcall vote of 12 to 18.
ROLLCALL NO. 4
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. Forbes (VA)................................ X
Mr. King (IA)..................................
Mr. Franks (AZ)................................
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID).............................. X
Mr. Farenthold (TX)............................ X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL)..............................
Ms. Walters (CA)............................... X
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX)............................. X
Mr. Trott (MI)................................. X
Mr. Bishop (MI)................................ X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
Mr. Peters (CA)................................ X
------------------------
Total...................................... 12 18
------------------------------------------------------------------------
5. Motion to report H.R. 758 favorably to the House. The
motion was agreed to by a rollcall vote of 19 to 13.
ROLLCALL NO. 5
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. Forbes (VA)................................ X
Mr. King (IA)..................................
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID).............................. X
Mr. Farenthold (TX)............................ X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL)..............................
Ms. Walters (CA)............................... X
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX)............................. X
Mr. Trott (MI)................................. X
Mr. Bishop (MI)................................ X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
Mr. Peters (CA)................................ X
------------------------
Total...................................... 19 13
------------------------------------------------------------------------
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. 758, 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, May 20, 2015.
Hon. Bob Goodlatte, 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. 758, the ``Lawsuit
Abuse Reduction Act of 2015.''
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Marin
Burnett, who can be reached at 226-2860.
Sincerely,
Keith Hall,
Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 758--Lawsuit Abuse Reduction Act of 2015.
As ordered reported by the House Committee on the Judiciary
on May 14, 2015.
H.R. 758 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 require them to compensate parties injured by such conduct.
Under current law, courts 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 implementing the bill would result in no
significant effect on the Federal budget. Enacting H.R. 758
would not affect direct spending or revenues; therefore, pay-
as-you-go procedures do not apply.
H.R. 758 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 Marin Burnett.
The estimate was approved by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
Duplication of Federal Programs
No provision of H.R. 758 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that H.R. 758 specifically directs
to be completed no specific rule makings within the meaning of
5 U.S.C. Sec. 551.
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.
758 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. 758 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 2015.''
Sec. 2. Attorney Accountability. Section 2 restores
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 or an amendment made by 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 of the United
States.''
Dissenting Views
INTRODUCTION
H.R. 758, the ``Lawsuit Abuse Reduction Act of 2015''
(LARA), would turn back the clock to a time when Rule 11 of the
Federal Rules of Civil Procedure discouraged civil rights
cases, restricted judicial discretion, and engendered vast
amounts of time-consuming and costly ``satellite'' litigation.
In essence, H.R. 758 would reinstate the version of Rule 11 in
effect between 1983 and 1993. That decade of experience showed
what a disastrous impact the 1983 rule had on the
administration of justice, the result of which caused the
Federal judiciary to adopt the current Rule 11. Current Rule 11
sets forth standards pertaining to filings and other
submissions to Federal courts by attorneys and parties and
gives courts the discretion to impose sanctions should those
requirements be violated. By contrast, H.R. 758 reinstates the
1983 rule's mandatory imposition of sanctions for any violation
of Rule 11's provisions and removes the current safe-harbor
allowing the withdrawal of an allegedly offending submission.
Additionally, the bill would mandate the payment of attorneys'
fees and costs to the prevailing party on any Rule 11 sanction
motion for purposes of compensation rather than deterrence,
going well beyond the 1983 rule.
Our principal concerns with H.R. 758 are that: (1) there is
no demonstrated need for the bill; (2) the 1983 version of Rule
11, which the bill would reinstate, functioned as a font of
rancor between parties and exponentially increased the volume
and cost of civil litigation in Federal courts because
mandatory sanctions with no safe-harbor led to increased
litigation; (3) the bill would have a chilling impact on civil
rights cases, notwithstanding its rule of construction; and (4)
the bill would undermine the Judicial Conference's deliberative
processes for amending procedural rules under the Rules
Enabling Act.\1\ In sum, H.R. 758 would accomplish the opposite
of its stated purpose by greatly increasing the amount, cost,
and intensity of civil litigation, provide more grounds for
unnecessary delay and harassment in the courtroom, and, most
importantly, chill legitimate civil rights claims.
---------------------------------------------------------------------------
\1\28 U.S.C. Sec. Sec. 2071-77 (2015).
---------------------------------------------------------------------------
Not surprisingly, 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, opposes H.R. 758, noting that ``legislation
that would restore the 1983 version of Rule 11 would create a
cure worse than the problem it is meant to solve.''\2\ In
addition, the American Bar Association\3\ and numerous consumer
and environmental groups strongly oppose the measure, including
Public Citizen,\4\ the Alliance for Justice, the Center for
Justice and Democracy, Committee to Support the Antitrust Laws,
the Consumer Federation of America, Consumers Union, Defenders
of Wildlife, Earthjustice, People for the American Way, the
National Association of Consumer Advocates, the National
Consumer Law Center, the National Employment Lawyers
Association, the National Women's Health Network, the U.S.
Public Interest Research Group.\5\
---------------------------------------------------------------------------
\2\Letter from Hon. Jeffrey S. Sutton, United States Circuit Judge,
Sixth Circuit, Chair, Committee on Rules of Practice and Procedure, &
Hon. David G. Campbell, United States District Judge, District of
Arizona, Chair, Advisory Committee on Civil Rules to Chairman Bob
Goodlatte (R-VA), H. Comm. on the Judiciary (Apr. 23, 2015) (on file
with the H. Comm. on the Judiciary Democratic staff) [hereinafter
``Judicial Conference 2015 letter''].
\3\Letter from Thomas M. Susman, Director, Governmental Affairs
Office, American Bar Association, to Chairman Trent Franks (R-AZ) &
Ranking Member Steve Cohen (D-TN), Subcomm. on the Constitution and
Civil Justice of the H. Comm. on the Judiciary (Mar. 23, 2015) (on file
with the H. Comm. on the Judiciary Democratic staff) [hereinafter ``ABA
2015 letter''].
\4\Letter from Lisa Gilbert, Director, and Christine Hines,
Consumer and Civil Justice Counsel, Public Citizen Congress Watch
Division, to Chairman Trent Franks (R-AZ) & Ranking Member Steve Cohen
(D-TN), Subcomm. on the Constitution and Civil Justice of the H. Comm.
on the Judiciary (Mar. 16, 2015) (on file with the H. Comm. on the
Judiciary Democratic staff) [hereinafter ``Public Citizen letter''].
\5\Letter from Ralph Nader and 16 Consumer and Environmental Groups
to Chairman Bob Goodlatte (R-VA) & Ranking Member John Conyers, Jr. (D-
MI), H. Comm. on the Judiciary (Apr. 13, 2015) (on file with the H.
Comm. on the Judiciary Democratic staff) [hereinafter ``Groups 2015
letter.'']
---------------------------------------------------------------------------
For the reasons set forth herein, we respectfully dissent.
DESCRIPTION AND BACKGROUND
DESCRIPTION
Every pleading, written motion or other paper submitted to
a court must be signed by the attorney of record or by the
party, if unrepresented by counsel, pursuant to Rule 11(a) of
the Federal Rules of Civil Procedure.\6\ Rule 11(b) provides
that by presenting such signed document to the court, the
attorney or party is deemed to certify ``to the best of the
person's knowledge, information, and belief, formed after an
inquiry reasonable under the circumstances'' that:
---------------------------------------------------------------------------
\6\Fed. R. Civ. P. 11(a).
(1) it is not being presented for any improper purpose,
such as to harass, cause unnecessary delay, or
---------------------------------------------------------------------------
needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions
are warranted by existing law or by a nonfrivolous
argument for extending, modifying, or reversing
existing law or for establishing new law;
(3) the factual contentions have evidentiary support
or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for
further investigation or discovery; and
(4) the denials of factual contentions are warranted on
the evidence or, if specifically so identified, are
reasonably based on belief or a lack of information.\7\
---------------------------------------------------------------------------
\7\Fed. R. Civ. P. 11(b).
Should a court determine that a party has violated these
requirements, Rule 11(c) authorizes the court to impose
sanctions.\8\ A motion for sanctions must specifically describe
the allegedly violative conduct and be served upon the
offending entity, but such motion may not be filed if the
challenged submission is withdrawn or corrected within 21 days
after service of such motion.\9\ This is the Rule's so-called
``safe harbor'' provision. Rule 11(c) gives the court
discretion to award reasonable attorneys' fees and expenses to
a prevailing party\10\ and specifies that a sanction must be
limited to what is sufficient to deter repetition of the
conduct at issue or comparable conduct by others and may
include nonmonetary directives, the payment of a penalty, or
the award of attorneys' fees and expenses to the moving party
directly resulting from the violation.\11\
---------------------------------------------------------------------------
\8\Fed. R. Civ. P. 11(c)(1).
\9\Fed. R. Civ. P. 11(c)(2).
\10\Fed. R. Civ. P. 11(c)(3).
\11\Fed. R. Civ. P. 11(c)(4).
---------------------------------------------------------------------------
H.R. 758 amends Rule 11(c) in several ways. First, it
removes a judge's discretionary authority to impose sanctions
for a Rule 11 violation by making sanctions mandatory. Second,
it eliminates Rule 11(c)(2)'s ``safe harbor'' provision, which
currently allows the target of a Rule 11 motion for sanctions
to withdraw or correct the paper, claim, defense, contention,
or denial that is the subject of the motion for sanctions
within 21 days after service. Third, it amends Rule 11(c)(4) to
require that a sanction not only deter repetition of the
conduct at issue, but also compensate parties injured by such
conduct. It further amends Rule 11(c)(4) to require a court to
include as part of any Rule 11 sanction the payment of the
moving party's reasonable attorneys' fees, costs, and other
expenses incurred as a direct result of the Rule 11 violation.
Currently, the award of such expenses as part of a Rule 11
sanction is discretionary. Finally, H.R. 758 includes a rule of
construction stating that nothing in the bill or any amendment
made by it can be construed to bar or impede the assertion or
development of new legal theories, including under civil rights
laws or the United States Constitution.
BACKGROUND
I. THE JUDICIAL CONFERENCE'S DELIBERATIVE PROCESSES UNDER
THE RULES ENABLING ACT
For most of the past century, Congress has trusted the
Federal judiciary to make its own procedural rules. In 1922,
Congress tasked the Judicial Conference of the United States to
serve as the principal policymaking body for the judicial
branch.\12\ 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.''\13\
---------------------------------------------------------------------------
\12\28 U.S.C. Sec. 331 (2015).
\13\Id.
---------------------------------------------------------------------------
In 1934, Congress passed the Rules Enabling Act, which
authorizes the Federal judiciary to prescribe its own rules of
practice, procedure, and evidence.\14\ In practice, the
judiciary takes on this responsibility through the Judicial
Conference of the United States. 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.''\15\ Each committee is composed of Federal judges,
practicing lawyers, law professors, state chief justices, and
representatives of the Department of Justice.\16\
---------------------------------------------------------------------------
\14\28 U.S.C. Sec. Sec. 2071 et seq. (2015).
\15\28 U.S.C. Sec. 2073(b) (2015).
\16\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 process for amending rules of procedure is very
deliberative and exhaustive:
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 2 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.\17\
---------------------------------------------------------------------------
\17\Id.
This careful process also gives Congress the opportunity to
reject, modify, or defer rules changes before they take
effect.\18\
---------------------------------------------------------------------------
\18\28 U.S.C. Sec. Sec. 2074, 2075 (2015).
---------------------------------------------------------------------------
II. FEDERAL RULE OF CIVIL PROCEDURE 11
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.\19\ The court had sole discretion over the imposition
of sanctions.\20\ During the 45 years that this version of the
rule was in effect, the Federal courts ruled on just 19 Rule 11
motions for sanctions, found a violation of the Rule only 11
times, and imposed sanctions in three cases.\21\ The 1938
version of Rule 11 was seldom used and largely ignored.\22\
---------------------------------------------------------------------------
\19\Fed. R. Civ. P. 11 (1938) (repealed 1983).
\20\Id.
\21\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).
\22\See Lonny Sheinkopf Hoffman, The Lawsuit Abuse Reduction Act:
The Legislative Bid to Regulate Lawyer Conduct, 25 Rev. Litig. 719, 722
(2006).
---------------------------------------------------------------------------
In 1983, the Advisory Committee on Civil Rules (Advisory
Committee) recognized that, ``in practice, Rule 11 has not been
effective in deterring abuses.''\23\ In an attempt to curb an
increase in the number and rising costs of civil suits, the
Advisory Committee substantially revised the Rule's 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.\24\
---------------------------------------------------------------------------
\23\Fed. R. Civ. P. 11 (1983) Advisory Committee's note to the 1983
amendment.
\24\Fed. R. Civ. P. (1983) (repealed 1993).
---------------------------------------------------------------------------
Nevertheless, the 1983 amendments, instead of deterring
unnecessary litigation, became a ``font of rancor'' between
parties in civil suits.\25\ As compared to the mere 19 Rule 11
filings between 1938 and 1983, nearly 7,000 motions for
sanctions were made during the decade that the 1983 rule was in
effect.\26\ A 1989 study showed that roughly one-third of all
Federal civil lawsuits involved Rule 11 ``satellite''
litigation\27\ and approximately one-fourth of all cases on the
docket involved Rule 11 actions that did not result in
sanctions.\28\ As a result, attorneys had a double duty: ``one
to try the case, and the other to try the opposing
counsel.''\29\ Commentators criticized the 1983 rule for
spawning a veritable ``cottage industry'' of Rule 11
litigation.\30\
---------------------------------------------------------------------------
\25\Don J. DeBenedictis, Rule 11 Snags Lawyers: Critics Charge
Ruling Will Discourage Civil Rights Cases, 77 A.B.A. J. 16 (1999).
\26\See Hoffman at 727.
\27\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 Law
School).
\28\Id.
\29\Id.
\30\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.''\31\ 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.''\32\ Other studies found that
sanctions were disproportionately imposed against plaintiffs in
civil rights and anti-discrimination cases.\33\
---------------------------------------------------------------------------
\31\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).
\32\Id.
\33\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).
---------------------------------------------------------------------------
In 1993, the Advisory Committee amended several key aspects
of Rule 11. It removed virtually all financial incentives 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 assessing
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.''\34\
---------------------------------------------------------------------------
\34\Fed. R. Civ. P. 11(b)(2).
---------------------------------------------------------------------------
Sanctions may 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.''\35\ Because Rule 11's purpose is ``to
deter rather than to compensate,'' monetary sanctions, if
imposed, ``should ordinarily be paid into the court as a
penalty.''\36\ 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.''\37\ A 21-day
``safe harbor'' provision allows a litigant to withdraw or
amend any offending document before the court continues with
Rule 11 proceedings.\38\
---------------------------------------------------------------------------
\35\Fed. R. Civ. P. 11(c)(4).
\36\Fed. R. Civ. P. 11, Advisory Committee's note to 1993
amendment.
\37\Id.
\38\Fed. R. Civ. P. 11(c)(1).
---------------------------------------------------------------------------
By all empirical accounts, the 1993 amendments have been
tremendously successful. For example, 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.''\39\ 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.''\40\
---------------------------------------------------------------------------
\39\Ridder v. City of Springfield, 109 F.3d 288, 294 (6th Cir.
1997).
\40\Photocircuits Corp. v. Marathon Agents, Inc., 162 F.R.D. 449,
452 (E.D.N.Y. 1995).
---------------------------------------------------------------------------
CONCERNS WITH H.R. 758
I. THERE IS NO DEMONSTRATED NEED FOR THIS LEGISLATION
H.R. 758's proponents seek to roll back significant
improvements to Rule 11 made by the 1993 amendments even though
there is no evidence that there are problems with the current
sanctions regime. Writing in opposition to H.R. 758, the
Judicial Conference warned that ``legislation that would
restore the 1983 version of Rule 11 would create a cure worse
than the problem it is meant to solve.''\41\ The Judicial
Conference further noted that ``current rules give judges tools
to deal with frivolous pleading, including the imposition of
sanctions where warranted'' and that the current Rule 11 ``has
produced a marked decline in Rule 11 satellite litigation
without any noticeable increase in frivolous filings.''\42\ In
its letter, the Conference observed that ``judges on the front
lines--those who must contend with frivolous litigation and
apply Rule 11--strongly believe that the current rule works
well.'' The Conference cited in support a 2005 survey of
Federal trial judges conducted by the Federal Judicial Center
which found that the judges overwhelmingly preferred the
current Rule 11 to the 1983 version and that they believed that
frivolous litigation had not increased since promulgation of
current Rule 11.\43\
---------------------------------------------------------------------------
\41\Judicial Conference 2015 letter.
\42\Id.
\43\Id.
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The American Bar Association (ABA) has similarly observed
that ``there is no demonstrated evidence that the existing Rule
11 is inadequate and needs to be amended.''\44\ The ABA warns
that ``by ignoring the lessons learned from ten years of
experience under the 1983 mandatory version of Rule 11,
Congress incurs the substantial risk that the proposed changes
would impede the administration of justice by encouraging
additional litigation and increasing court costs and
delays.''\45\
---------------------------------------------------------------------------
\44\ABA 2015 letter.
\45\Id.
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In the 2005 Federal Judicial Center survey that the
Judicial Conference cited in its letter, 85 percent of the
judges surveyed viewed ``groundless litigation'' as no more
than a small problem in their courtrooms and 91 percent opposed
the proposed requirement that sanctions be imposed for every
Rule 11 violation.\46\ In addition, 85 percent strongly or
moderately supported Rule 11's safe harbor provision; and 84
percent disagreed with the proposition that an award of
attorneys' fees should be mandatory for every Rule 11
violation.\47\ Most notably, 87 percent of the judges surveyed
wanted the current Rule 11 to remain in force, and only 4
percent expressed support for the amendments that H.R. 758 now
proposes to make.\48\
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\46\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).
\47\Id.
\48\Id.
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Elizabeth Milito, on behalf of the National Federation of
Independent Businesses (NFIB), testified before the
Subcommittee on Constitution and Civil Justice at a hearing on
H.R. 758 held earlier this year that frivolous demand letters
and lawsuits impose disproportionately high costs on small
businesses.\49\ Yet, NFIB's own survey of 3,856 of its members,
conducted in 2012, shows that this is not a major concern. The
survey, which asked them to rank among 75 concerns the biggest
threats facing small business, ranked the concern, ``cost and
frequency of lawsuits/threatened suits,'' 71 out of 75
concerns, which was down six places from NFIB's previous survey
in 2008.\50\ In fact, almost 39 percent of respondents said
that the threat of lawsuits was ``not a problem'' at all.\51\
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\49\H.R. 758, the ``Lawsuit Abuse Reduction Act of 2015``: Hearing
Before the Subcomm. on the Constitution and Civil Justice of the H.
Comm. on the Judiciary, 114th Cong. 11-12 (2015) [hereinafter ``2015
Hearing''].
\50\Holly Wade, Small Business Problems & Priorities, National
Federation of Independent Business Research Foundation, at 14, 19 (Aug.
2012).
\51\Id. at 14.
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In the final analysis, the ``climate of fear''' for small
businesses is almost entirely anecdotal and, in some instances,
lacking any evidentiary basis. For example, the Majority--in
2004, 2005, 2011 and 2013--repeatedly blamed ``litigation
costs'' as causing the demise of a ladder manufacturing company
in upstate New York.\52\ In truth, the company was profitable
even though its insurance premiums had risen considerably. It
ultimately failed, however, because ``competition from bigger
companies using foreign labor . . . became unbearable.''\53\
Moreover, the company ``wasn't even sued all that much.''\54\
Rather than fearing frivolous lawsuits, a far greater and more
realistic concern that small businesses will face is how H.R.
758 would return Federal litigation to the costly and time-
consuming climate of hostility engendered by the 1983 rule.
---------------------------------------------------------------------------
\52\H.R. Rep. No. 113-255, at 33 (2013); H.R. Rep. No. 112-174, at
34-35 (2011); H.R. Rep. No. 109-123, at 14 (2005); H.R. Rep. No. 108-
682, at 12 (2004).
\53\Carrie Coolidge, The Last Rung, The Tort System Takes Down a
149-year-old Ladder Manufacturer, Forbes (Jan. 12, 2004), at 52.
\54\Id.
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II. MANDATORY SANCTIONS AND LACK OF A SAFE HARBOR PROVISION WOULD LEAD
TO INCREASED LITIGATION AND COSTS
While there is no empirical support to justify a change to
Rule 11, its history clearly illustrates why, after a decade of
real-world experience, the Judicial Conference rejected the
approach proposed in H.R. 758 and adopted the current version
of Rule 11. Although H.R. 758's supporters claim to want to
curb a perceived increase in frivolous litigation, the actual
effect of the legislation will be to increase litigation. Under
the bill, which imposes mandatory sanctions and offers no
opportunity to correct mistakes, the parties to a lawsuit will
have every incentive to file Rule 11 sanctions motions and seek
court costs and legal fees, which would be mandatory rather
than discretionary as is currently the case. Parties also would
have obvious incentives 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.
Based on its firsthand experience with the 1983 version of
Rule 11 and the many problems it engendered, the Federal courts
clearly recognize that H.R. 758 is a major step backwards. The
Judicial Conference amended the 1983 version of Rule 11 because
it ``generated wasteful satellite litigation that had little to
do with the merits of cases'' and because the mandatory
sanctions ``quickly became a tool of abuse.''\55\ Moreover,
``aggressive filings of Rule 11 sanctions motions required
expenditure of tremendous resources on Rule 11 battles having
nothing to do with the merits of the case and everything to do
with strategic gamesmanship,'' which, in turn ``triggered
counter-motions seeking Rule 11 sanctions as a penalty for
filing of the original Rule 11 motion.''\56\ Reinstituting
mandatory sanctions would create conflicts of interest between
lawyers and their clients and exacerbate tensions between
competing attorneys.\57\
---------------------------------------------------------------------------
\55\Judicial Conference 2015 letter.
\56\Id.
\57\Id.
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Similarly, the ABA noted in its letter to the Committee
opposing H.R. 758 that ``past evidence strongly suggests that
the proposed changes would encourage new litigation over
sanction motions, thereby increasing, not reducing, court costs
and delays. This is a costly and completely avoidable
outcome.''\58\ The ABA quoted a 2004 letter from the Judicial
Conference to the Committee which stated that mandatory
application of Rule 11 ```created a significant incentive to
file unmeritorious Rule 11 motions by providing a possibility
of monetary penalty; engender[ed] potential conflicts of
interest between clients and lawyers; and provid[ed] little
incentive . . . to abandon or withdraw a pleading or claim--and
thereby admit error--that lacked merit.'''\59\ The ABA further
noted that the ``1983 version of Rule 11 was premised on
anecdotal information rather than on comprehensive empirical
data analyzed through the prism of those most familiar with the
Federal courts. It was ill-conceived and its unintended
consequences have been well-documented.''\60\ H.R. 758 restores
a highly problematic rule, notwithstanding a decade of evidence
and prior experience with its flawed provisions.
---------------------------------------------------------------------------
\58\ABA 2015 letter.
\59\Id. (quoting Letter from the Judicial Conference of the United
States to Chairman James Sensenbrenner, Jr., H. Comm. on the Judiciary
(2004)).
\60\Id.
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Representative Sheila Jackson Lee (D-TX) offered an
amendment that would have eliminated H.R. 758's provision
mandating the award of reasonable attorneys' fees and costs and
restoring judicial discretion to award such fees and costs in
an effort to reduce the risk of runaway satellite litigation.
The Committee rejected this amendment by a 14 to 18 vote.\61\
---------------------------------------------------------------------------
\61\Unofficial Tr. of Markup of H.R. 758, the Lawsuit Abuse
Reduction Act (LARA) of 2015, by the H. Comm. on the Judiciary, 114th
Cong. 47 (May 14, 2015) [hereinafter Markup Tr.].
---------------------------------------------------------------------------
As another way to mitigate the risk of satellite
litigation, Representative David Cicilline (D-RI) offered an
amendment that would have restored the current safe-harbor
provision in Rule 11 that allows a party to withdraw an
allegedly frivolous submission within 21 days after service of
a Rule 11 sanctions motion. The Committee rejected this
amendment by a 12 to 18 vote.\62\
---------------------------------------------------------------------------
\62\Id. at 84.
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To highlight the potential for a tremendous increase in
litigation costs that H.R. 758's amendments to Rule 11 would
spawn, Representative Steve Cohen (D-TN) offered an amendment
that would have delayed the bill's effective date until the
Administrative Office of the United States Courts and the
Attorney General of the United States submitted reports to the
House and Senate Judiciary Committees assessing the resources
burden on courts and the potential litigation costs on the
government and private parties imposed by H.R. 758. The
Committee rejected this amendment by voice vote.\63\
---------------------------------------------------------------------------
\63\Id. at 56.
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III. H.R. 758 WILL HAVE A CHILLING EFFECT ON CIVIL RIGHTS CASES
The avalanche of satellite litigation and the associated
increase in litigation costs and resource burdens that the 1983
rule fueled--and which H.R. 758 will fuel--undoubtedly will
have a chilling effect on all civil litigation in Federal
court, including employment, environmental, and consumer rights
cases.\64\ The 1983 rule, however, had a particularly adverse
impact on civil rights cases. In light of the fact that 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 the ``incidence of Rule 11 motions or sua
sponte orders is higher in civil rights cases than in some
other types of cases.''\65\ 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.''\66\ Under the 1983 rule, civil rights
cases were clearly disadvantaged.
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\64\Groups 2015 letter; Public Citizen 2015 letter.
\65\Elizabeth C. Wiggins, et al., Special Issue on Rule 11, Federal
Judicial Center Directions No. 2, at 10 (Nov. 1991).
\66\Lawrence C. Marshall, et al., The Use and Impact of Rule 11, 86
NW. U.L. Rev. 943, 971-75 (1992).
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H.R. 758 would restore this problematic regime and provide
no recourse for appeal when sanctions are imposed. The late
Robert L. Carter, United States District Judge for the Southern
District of New York and, before that, one of the lawyers
representing the plaintiffs in Brown v. Board of Education,
considered changes like these and remarked, ``I have no doubt
that the Supreme Court's opportunity to pronounce separate
schools inherently unequal [in Brown] 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.''\67\
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\67\Symposium, The 50th Anniversary of the Federal Rules of Civil
Procedure, 1938-1988, 137 U. Pa. L. Rev. 2179, 2193 (June 1989).
---------------------------------------------------------------------------
As Robert Peck, President of the Center for Constitutional
Litigation, testified earlier this year at the hearing on H.R.
758, the plaintiffs in both Brown v. Board of Education\68\ and
National Federation of Independent Business v. Sebelius\69\
(the constitutional challenge to the Affordable Care Act) would
likely have faced Rule 11 sanctions under the 1983 version of
Rule 11 had it been in effect at the time these actions were
filed, given the then-novel nature of their arguments.\70\ He
further observed that H.R. 758's rule of construction would not
protect civil rights claims because it does nothing to address
the primary problem for civil rights cases, i.e., the inability
to develop sufficient facts absent compulsory discovery.
Typically, such facts become available only after a case has
been filed, a filing that, in turn, may not happen given H.R.
758's potential chilling effect on civil rights cases.\71\ For
this reason, he described the rule of construction as
``ineffective window dressing that does not solve the problem
that its drafters apparently concede is real.''\72\
---------------------------------------------------------------------------
\68\347 U.S. 483 (1954).
\69\132 S.Ct. 2566 (2012).
\70\2015 Hearing at 23, 32 (statement of Robert S. Peck, President,
Center for Constitutional Litigation, P.C.).
\71\Id. at 40.
\72\Id.
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These major problems with the approach taken in H.R. 758
have long been recognized. Similar concerns were voiced by
Professor Theodore Eisenberg of Cornell Law School at a hearing
held before the 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.\73\
---------------------------------------------------------------------------
\73\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 Law
School).
Representative Jerrold Nadler (D-NY) highlighted another
potential way that H.R. 758 could have a disproportionate
impact on civil rights claims. During the Subcommittee hearing
on the bill, he observed that the Committee report in support
of LARA from a prior Congress cited as an example of
``frivolous'' litigation a lawsuit filed by a high school
student after her picture was left out of her school yearbook
when she refused to wear feminine clothing.\74\ He then asked
Mr. Peck whether, in light of the fact that 14 states have laws
that prohibit discrimination based on gender identity, the
student's claims may be worthy of judicial consideration even
if they are novel or untested, but could nonetheless be
sanctionable under the bill. Mr. Peck answered that it was
entirely possible that such a claim could be sanctionable.\75\
In short, whether a claim is ``frivolous'' or not, particularly
in the civil rights context, is very much open to argument.
---------------------------------------------------------------------------
\74\2015 Hearing at 62.
\75\Id. at 63.
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The sponsors of H.R. 758 argue that the bill's rule of
construction responds to these concerns. We disagree. This rule
of construction, which provides that nothing in the bill
``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 of the United States,''\76\ fails to prevent
defendants from wielding Rule 11 (as amended by H.R. 758) as a
weapon against legitimate plaintiffs and tying up civil rights
cases in long and costly satellite litigation. While the intent
of this provision is to address the undisputed effect of the
1983 Rule on civil rights litigation--an intent that is to be
applauded--the 1983 Rule was also facially neutral with respect
to the development of novel legal claims, and yet it
nonetheless had a disproportionate impact on civil rights
claims.
---------------------------------------------------------------------------
\76\Lawsuit Abuse Reduction Act of 2015, H.R. 758, 114th Cong.
Sec. 2(b) (2015).
---------------------------------------------------------------------------
For these reasons, Ranking Member John Conyers, Jr. (D-MI)
offered an amendment that simply would have exempted
constitutional and civil rights cases from H.R. 758. The
Committee, however, rejected this amendment by a 10 to 18
vote.\77\
---------------------------------------------------------------------------
\77\Markup Tr. at 27.
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IV. H.R. 758 UNDERMINES THE RULES ENABLING ACT PROCESS
H.R. 758 departs from the well-established and successful
approach that Congress itself authorized in empowering the
Federal judiciary to make its own procedural rules based on the
judiciary's day-to-day, real-world experience with the
application of those rules. Clearly, Congress retains the power
to review those rules and to accept, modify, or reject any
proposed changes pursuant to the extensive Rules Enabling Act
process. Yet, this is a power that Congress rarely uses.
Indeed, it was telling that when Subcommittee Ranking Member
Cohen asked witnesses during the legislative hearing on this
bill for an example of when Congress directly amended a court
procedural rule, none of the witnesses could cite a single
example.\78\ Nevertheless, H.R. 758 recklessly attempts to
amend a Federal civil procedure rule directly, over the
objections of the Judicial Conference, in complete disregard of
the Conference's firsthand experience with the 1983 rule.
---------------------------------------------------------------------------
\78\2015 Hearing at 60.
---------------------------------------------------------------------------
To highlight the importance of the Rules Enabling Act
process and the inappropriateness of H.R. 758's attempt to
circumvent that prudential process, Representative Hank Johnson
(D-GA) offered an amendment that conditioned the bill's
effective date on the Judicial Conference having the
opportunity to review the changes to Rule 11 proposed by H.R.
758 using the Rules Enabling Act process, to approve such
amendments, and to submit the results of its review to the
House and Senate Judiciary Committees. The Committee rejected
this amendment by a 12 to 18 vote.\79\
---------------------------------------------------------------------------
\79\Markup Tr. at 73.
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CONCLUSION
H.R. 758 seeks to reinstate a version of Rule 11 that was
widely recognized to have been an utter failure during the
decade it was in place. The Judicial Conference, after years of
careful consideration, research, experience, and public
comment, adopted the current Rule 11, which, by most accounts,
has been a success. The individuals and businesses served by
our legal system do not need to incur the substantially
increased expense and delay associated with a regime imposed by
H.R. 758 that will foster satellite litigation aimed at seeking
and opposing Rule 11 sanctions. Parties entitled to vindicate
their civil rights deserve to have their claims heard without
the threat of Rule 11 motions intended to harass and
intimidate. Nonetheless, proponents of H.R. 758 disregard these
significant concerns and now seek to repeat history with a
flawed mandatory sanctions regime.
For these reasons, and those discussed above, we
respectfully dissent and urge our colleagues to reject this
flawed legislation.
Mr. Conyers, Jr.
Mr. Nadler.
Ms. Jackson Lee.
Mr. Cohen.
Mr. Johnson, Jr.
Ms. Chu.
Mr. Deutch.
Mr. Gutierrez.
Ms. Bass.
Mr. Richmond.
Mr. Jeffries.
Mr. Cicilline.
[all]