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February 28, 2017

House Judiciary Committee approves Rule 11 legislation

The ABA reiterated its opposition this month to H.R. 720, a bill that would amend Rule 11 of the Federal Rules of Civil Procedure to require monetary sanctions against lawyers who file non-meritorious lawsuits.

Despite the ABA’s stand against the legislation and opposition from the Judicial Conference of the United States, the House Judiciary Committee approved the bill, known as the Lawsuit Abuse Reduction Act, by a 17-6 vote along party lines on Feb. 2.

In a Feb. 1 letter to the committee, ABA Governmental Affairs Director Thomas M. Susman explained that the legislation seeks to amend Rule 11 by “rolling back critical improvements” made to the rule in 1993 and reinstating a mandatory sanction provision that was adopted in 1983 but eliminated 10 years later after experience revealed its unintended, adverse consequences. The legislation also would eliminate the “safe harbor” provision added in 1993 that allows parties and their attorney to avoid Rule 11 sanctions by withdrawing frivolous claims within 21 days after a motion for sanctions is served.

Susman also pointed out that the legislation would require judges to impose monetary sanctions in an amount sufficient to reimburse the prevailing party for reasonable attorneys’ fees and litigation costs attributable to the frivolous claims rather than authorizing judges only to impose sanctions to deter future litigation.

He cited three main reasons the association opposes the legislation: it would circumvent Rules Enabling Act procedures that Congress has established for amending the Federal Rules of Civil Procedure; there is no demonstrated evidence that the existing Rule 11 is inadequate and needs to be amended; and there is substantial risk that the proposed changes would impede the administration of justice by encouraging additional litigation and increasing court costs and delays.

Under the Rules Enabling Act, the Judicial Conference 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 markup, committee Chairman Robert W. Goodlatte (R-Va.) maintained that “the lack of mandatory sanctions leads to the regular filing of lawsuits that are baseless.” On the other hand, Ranking Member John Conyers Jr. (D-Mich.), who opposed H.R. 720, said the bill would restore the “deeply flawed” version of the rule that was in effect before 1993 and eliminate judicial discretion on sanctions.

Respecting the deep concerns that some members of Congress have about frivolous lawsuits, Susman wrote that the ABA’s objective in opposing the enactment of H.R. 720 “is not to stifle discourse over the underlying issues.” He said that the best way to provide a full and robust examination of concerns and proposed solutions is to defer to the Rules Enabling Act. “This will assure a comprehensive and evidence-based development of any remedial proposal that involves amending the federal rules,” he concluded.


Back to the February 2017 Washington Letter