Recipient: U.S. House of Representatives
September 13, 2004
On behalf of the Leadership Conference on Civil Rights, the nation’s oldest, largest and most diverse civil and human rights coalition, and the NAACP Legal Defense and Educational Fund, Inc., the nation’s oldest civil rights legal organization, we write to urge you to vote against H.R. 4571, the Lawsuit Abuse Reduction Act of 2004. This legislation, while purporting to reduce frivolous and abusive lawsuits, would in fact make it easier for litigants to use the threat of Rule 11 sanctions as a tool of abuse, often directed at civil rights plaintiffs, in order to discourage the filing of these and other cases.
Rule 11 of the Federal Rules of Civil Procedure requires attorneys and pro se litigants to conduct a reasonable inquiry into the law and facts before signing pleadings, written motions, and other documents, and prescribes sanctions for violation of these obligations. In 1993, the Rule was amended to expand the responsibilities of litigants to the court, while providing greater constraints and flexibility in dealing with infractions of the rule. The general purpose of the rule is to require litigants to “stop-and-think” before initially making legal or factual contentions. It also, however, emphasizes the duty of candor by subjecting litigants to potential sanctions for insisting upon a position after it is no longer tenable and by generally providing protection against sanctions if they withdraw or correct contentions after a potential violation is called to their attention. We oppose the changes to Rule 11 contemplated by H.R. 4571 because they would return the rule to its pre-1993 state: less flexible, more punitive, and more litigious.
First, H.R. 4571 removes the language limiting the sanctions imposed to those “sufficient to deter repetition of such conduct or comparable conduct by others similarly situated.” Removal of this language would permit courts to impose sanctions to punish counsel for any reason or no reason at all, even though lesser action would suffice to achieve the goals of Rule 11 by discouraging the filing of frivolous claims or motions.
In addition, the new legislation would remove the “safe harbor” provision that allows a party to withdraw or amend a claim or defense that an opponent argues violates Rule 11. This change does not adequately allow for the flexibility necessary and often inherent in civil rights litigation, where the law is often evolving and plaintiffs have little opportunity to obtain evidence from putative defendants until after the initial court filings. A rule that does not allow for litigants to withdraw claims after concluding that they lack merit serves to deter the filing of potentially meritorious claims.
We are particularly concerned about these proposed changes because of their likely impact on civil rights plaintiffs. In 1993, Rule 11 was amended to address concerns that the rule was too easily used as a harassment tool to discourage the filing of civil rights and other legitimate claims. The amendments made to address these concerns are the ones that H.R. 4571 would now repeal. Nationwide surveys about the former rule found that motions for sanctions were most frequently sought and granted in civil rights cases. According to a study done in 1992, under the old rule, civil rights cases made up 11.4% of the cases filed in federal court, but 22.7% of those in which sanctions were imposed. By seeking to repeal the 1993 changes to Rule 11, H.R. 4571 could facilitate the rule being used to punish and deter legitimate claims of discrimination.
By removing the “safe harbor,” and making Rule 11 sanctions mandatory and more severe, H.R. 4571 would also likely result in more and more contentious litigation around the question of whether Rule 11 has been violated. This increase in litigation on an issue not related to the claims in the lawsuit is not good for plaintiffs or defendants, and certainly not for the system of justice. And, although Section 5 purports to create an exemption to benefit civil rights claims, this language is entirely novel, indeterminate, and capable of widely varying interpretation. Nothing in the language of this bill prevents the application of these new and severe rules in civil rights cases, so long as the court concludes that the sanction will not “impede” or “bar” development of “new claims or remedies” under civil rights laws that are not frivolous.
We are additionally troubled that H.R. 4571 purports to also change the rules in this area for state court cases. Under this legislation, if the court, upon a motion, determines that the state court action “affects interstate commerce,” Rule 11 of the Federal Rules of Civil Procedure “shall apply to such action.” This not only invites another round of ancillary litigation in each case on the question of whether the claim “affects interstate commerce,” but also is an affront to the concepts of federalism that have long been understood to permit state courts to determine state court procedures.
For the reasons stated above, we urge you to oppose H.R. 4571. If you have any questions, or need additional information, please call Julie Fernandes, LCCR Senior Policy Analyst, at 202/263-2856 or Leslie Proll, LDF Counsel, at 202/216-5562.
Leadership Conference on Civil Rights
Theodore M. Shaw
President and Director-Counsel
NAACP Legal Defense and Educational Fund, Inc.