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September 01, 2013

ABA says sanctions bill could increase court costs and delays

The ABA opposes legislation approved Sept. 11 by the House Judiciary Committee that would amend Rule 11 of the Federal Rules of Civil Procedure to reinstate a mandatory sanctions provision.

H.R. 2655, which cleared the committee by a 17-10 vote, would change Rule 11 to require, rather than permit, the imposition of monetary sanctions against lawyers for filing non-meritorious claims. The bill, known as the Lawsuit Abuse Reduction Act, also would rescind a current provisions that allows parties and their attorneys to avoid Rule 11 sanctions by withdrawing frivolous claims within 21 days after a motion for sanctions is served.

The current system, which gives judges the option to sanction parties, replaced a mandatory sanctions provision that had been in place from 1983 to 1993.

“During the decade that the 1983 version of the rule requiring mandatory sanctions was in effect, an entire industry of litigation revolving around Rule 11 claims inundated the legal system and wasted valuable court resources and time,” ABA Governmental Affairs Director Thomas M. Susman explained in a July 24 letter to the committee. 

Susman said there is no evidence that the proposed changes to Rule 11 would deter the filing of non-meritorious lawsuits. “In fact, past experience strongly suggests that the proposed changes would encourage new litigation over sanctions motions and would thus increase, not reduce, court costs and delays,” he wrote.

It is important to point out, Susman said, that avoidance of Rule 11 sanctions does not preclude imposition of other sanctions, and he emphasized that Rule 11 is part of a “complex, coordinated and sometimes overlapping system” that governs court administration. “A judge may invoke other rules of procedure, statutes, or its own inherent authority to prevent frivolous or non-meritorious lawsuits from going forward and to impose sanctions when appropriate,” he explained.

Susman also emphasized that any changes in the Federal Rules of Civil Procedure should be considered through the Rules Enabling Act process established by Congress rather than the legislative process.

Under the Rule Enabling Act, the Judicial Conference of the United States drafts proposed rules and amendments, makes them available for public comment, and submits them to the U.S. Supreme Court after Judicial Conference approval. The Supreme Court transmits the proposals to Congress, which retains the final authority to reject, modify or defer any rule or amendment before it takes effect.

During the Sept. 11 committee markup of the bill, Rep. John Conyers Jr. (D-Mich.) cited the ABA’s letter opposing the legislation, saying that the bill would “create a cure far worse than the problem” it is intended to solve.

The committee rejected, by a 9-15 vote, an amendment offered by Conyers to exempt civil and constitutional rights cases from the legislation.

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