39–006

109TH CONGRESS REPORT " HOUSE OF REPRESENTATIVES ! 1st Session 109–123

LAWSUIT ABUSE REDUCTION ACT OF 2005

JUNE 14, 2005.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. SENSENBRENNER, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

ADDITIONAL AND DISSENTING VIEWS 

[To accompany H.R. 420] 

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 420) to amend Rule 11 of the Federal Rules of Civil Procedure to improve attorney accountability, and for other purposes, 

having considered the same, reports favorably thereon with an 

amendment and recommends that the bill as amended do pass.

CONTENTS 

Page 

The Amendment ...................................................................................................... 2

Purpose and Summary ............................................................................................ 3

Background and Need for the Legislation ............................................................. 5

Hearings ................................................................................................................... 45

Committee Consideration ........................................................................................ 45

Vote of the Committee ............................................................................................. 45

Committee Oversight Findings ............................................................................... 47

New Budget Authority and Tax Expenditures ...................................................... 47

Congressional Budget Office Cost Estimate .......................................................... 47

Performance Goals and Objectives ......................................................................... 48

Constitutional Authority Statement ...................................................................... 49

Section-by-Section Analysis and Discussion .......................................................... 49

Changes in Existing Law Made by the Bill, as Reported ..................................... 50

Markup Transcript .................................................................................................. 51

Additional Views ...................................................................................................... 109

Dissenting Views ..................................................................................................... 111

2

THE AMENDMENT

The amendment is as follows: 

Strike all after the enacting clause and insert the following:

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Lawsuit Abuse Reduction Act of 2005’’. 

SEC. 2. ATTORNEY ACCOUNTABILITY. 

Rule 11(c) of the Federal Rules of Civil Procedure is amended—

(1) by amending the first sentence to read as follows: ‘‘If a pleading, motion, 

or other paper is signed in violation of this rule, the court, upon motion or upon 

its own initiative, shall impose upon the attorney, law firm, or parties that have 

violated this subdivision or are responsible for the violation, an appropriate 

sanction, which may include an order to pay the other party or parties for the 

reasonable expenses incurred as a direct result of the filing of the pleading, motion, or other paper, that is the subject of the violation, including a reasonable 

attorney’s fee.’’; 

(2) in paragraph (1)(A)—

(A) by striking ‘‘Rule 5’’ and all that follows through ‘‘corrected.’’ and 

inserting ‘‘Rule 5.’’; and 

(B) by striking ‘‘the court may award’’ and inserting ‘‘the court shall 

award’’; and 

(3) in paragraph (2), by striking ‘‘shall be limited to what is sufficient’’ and 

all that follows through the end of the paragraph (including subparagraphs (A) 

and (B)) and inserting ‘‘shall be sufficient to deter repetition of such conduct or 

comparable conduct by others similarly situated, and to compensate the parties 

that were injured by such conduct. The sanction may consist of an order to pay 

to the party or parties the amount of the reasonable expenses incurred as a direct result of the filing of the pleading, motion, or other paper that is the subject of the violation, including a reasonable attorney’s fee.’’. 

SEC. 3. APPLICABILITY OF RULE 11 TO STATE CASES AFFECTING INTERSTATE COMMERCE. 

In any civil action in State court, the court, upon motion, shall determine within 

30 days after the filing of such motion whether the action substantially affects interstate commerce. Such court shall make such determination based on an assessment 

of the costs to the interstate economy, including the loss of jobs, were the relief requested granted. If the court determines such action substantially affects interstate 

commerce, the provisions of Rule 11 of the Federal Rules of Civil Procedure shall 

apply to such action. 

SEC. 4. PREVENTION OF FORUM-SHOPPING. 

(a) IN GENERAL.—Subject to subsection (b), a personal injury claim filed in State 

or Federal court may be filed only in the State and, within that State, in the county 

(or Federal district) in which—

(1) the person bringing the claim, including an estate in the case of a decedent and a parent or guardian in the case of a minor or incompetent—

(A) resides at the time of filing; or 

(B) resided at the time of the alleged injury; 

(2) the alleged injury or circumstances giving rise to the personal injury 

claim allegedly occurred; 

(3) the defendant’s principal place of business is located, if the defendant 

is a corporation; or 

(4) the defendant resides, if the defendant is an individual. 

(b) DETERMINATION OF MOST APPROPRIATE FORUM.—If a person alleges that the 

injury or circumstances giving rise to the personal injury claim occurred in more 

than one county (or Federal district), the trial court shall determine which State 

and county (or Federal district) is the most appropriate forum for the claim. If the 

court determines that another forum would be the most appropriate forum for a 

claim, the court shall dismiss the claim. Any otherwise applicable statute of limitations shall be tolled beginning on the date the claim was filed and ending on the 

date the claim is dismissed under this subsection. 

(c) DEFINITIONS.—In this section: 

(1) The term ‘‘personal injury claim’’—

(A) means a civil action brought under State law by any person to recover for a person’s personal injury, illness, disease, death, mental or emotional injury, risk of disease, or other injury, or the costs of medical monitoring or surveillance (to the extent such claims are recognized under State 

law), including any derivative action brought on behalf of any person on 

whose injury or risk of injury the action is based by any representative 

3

party, including a spouse, parent, child, or other relative of such person, a 

guardian, or an estate; and 

(B) does not include a claim brought as a class action. 

(2) The term ‘‘person’’ means any individual, corporation, company, association, firm, partnership, society, joint stock company, or any other entity, but not 

any governmental entity. 

(3) The term ‘‘State’’ includes the District of Columbia, the Commonwealth 

of Puerto Rico, the United States Virgin Islands, Guam, and any other territory 

or possession of the United States. 

(d) APPLICABILITY.—This section applies to any personal injury claim filed in 

Federal or State court on or after the date of the enactment of this Act. 

SEC. 5. RULE OF CONSTRUCTION. 

Nothing in section 3 or in the amendments made by section 2 shall be construed 

to bar or impede the assertion or development of new claims or remedies under Federal, State, or local civil rights law. 

SEC. 6. THREE-STRIKES RULE FOR SUSPENDING ATTORNEYS WHO COMMIT MULTIPLE RULE 

11 VIOLATIONS. 

(a) MANDATORY SUSPENSION.—Whenever a Federal district court determines 

that an attorney has violated Rule 11 of the Federal Rules of Civil Procedure, the 

court shall determine the number of times that the attorney has violated that rule 

in that Federal district court during that attorney’s career. If the court determines 

that the number is 3 or more, the Federal district court—

(1) shall suspend that attorney from the practice of law in that Federal district court for 1 year; and 

(2) may suspend that attorney from the practice of law in that Federal district court for any additional period that the court considers appropriate. 

(b) APPEAL; STAY.—An attorney has the right to appeal a suspension under subsection (a). While such an appeal is pending, the suspension shall be stayed. 

(c) REINSTATEMENT.—To be reinstated to the practice of law in a Federal district 

court after completion of a suspension under subsection (a), the attorney must first 

petition the court for reinstatement under such procedures and conditions as the 

court may prescribe. 

SEC. 7. PRESUMPTION OF RULE 11 VIOLATION FOR REPEATEDLY RELITIGATING SAME ISSUE. 

Whenever a party attempts to litigate, in any forum, an issue that the party 

has already litigated and lost on the merits on 3 consecutive prior occasions, there 

shall be a rebuttable presumption that the attempt is in violation of Rule 11 of the 

Federal Rules of Civil Procedure. 

SEC. 8. ENHANCED SANCTIONS FOR DOCUMENT DESTRUCTION. 

(a) IN GENERAL.—Whoever influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, a pending court proceeding through the intentional destruction of documents sought in, and highly relevant to, that proceeding—

(1) shall be punished with mandatory civil sanctions of a degree commensurate with the civil sanctions available under Rule 11 of the Federal Rules of 

Civil Procedure, in addition to any other civil sanctions that otherwise apply; 

and 

(2) shall be held in contempt of court and, if an attorney, referred to one 

or more appropriate State bar associations for disciplinary proceedings. 

(b) APPLICABILITY.—This section applies to any court proceeding in any Federal 

or State court that substantially affects interstate commerce.

PURPOSE AND SUMMARY

The Lawsuit Abuse Reduction Act of 2005 (‘‘LARA’’), H.R. 420, 

was introduced by Rep. Lamar Smith. H.R. 420 will restore the 

teeth to Federal Rule of Civil Procedure 11 it once had to deter 

frivolous Federal lawsuits. It would also extend Rule 11’s protections to prevent frivolous lawsuits in state courts when state judges 

determine a case would have national economic consequences that 

affect interstate commerce. The bill would also prevent forum shopping, the nefarious practice by which personal injury attorneys 

bring lawsuits in courts that notoriously and consistently hand 

down astronomical awards even when the case has little or no connection to the court’s jurisdiction. H.R. 420 would prevent forum 

shopping by requiring that personal injury cases be brought only 

4

1 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) ¶ 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.’’ See also Smith v. United Transp. Union Local 81, 594 

F. Supp. 96, 101 (S.D. Cal. 1984) (Rule 11 sanctions imposed where defendants frivolously maintained suit by ignoring relevant law, relying on irrelevant law, and basing arguments on vacated 

cases). 

in the plaintiff’s place of residence, where the plaintiff was allegedly injured, where the defendant’s principal place of business is located, or where the defendant resides. 

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; (3) allow monetary sanctions, including attorneys’ fees and compensatory costs, 

against any party making a frivolous claim; (4) apply Rule 11’s provisions to state cases a state judge finds affect interstate commerce; 

(5) require that personal injury cases be brought only where the 

plaintiff resides, where the plaintiff was allegedly injured, where 

the defendant’s principal place of business is located, or where the 

defendant resides; (6) apply a ‘‘three strikes and you’re out’’ rule to 

attorneys who commit Rule 11 violations in Federal district court; 

(7) impose mandatory civil sanctions for document destruction intended to obstruct a pending court proceeding; and (8) provide that 

if a party attempts to relitigate a losing claim more than three consecutive times, there shall be a rebuttable presumption that Rule 

11 has been violated. 

H.R. 420 applies to cases brought by individuals as well as businesses (both big and small), including business claims filed to harass competitors and illicitly gain market share. The bill also applies to both plaintiffs and defendants.1

The bill also expressly provides, in Section 5, that ‘‘Nothing in’’ 

the changes made to Rule 11 ‘‘shall be construed to bar or impede 

the assertion or development of new claims or remedies under Federal, State, or local civil rights law.’’ The development of civil rights 

claims is thereby explicitly protected under the bill’s Rule 11 provisions. 

5

2Philip K. Howard, The Collapse of the Common Good: How America’s Lawsuit Culture Undermines Our Freedom (2001) at 11. 3 Id. at 32. 4Stuart Taylor, Jr. and Evan Thomas, ‘‘Civil Wars’’ Newsweek (December 15, 2003) at 43. 5Public Agenda, ‘‘Teaching Interrupted: Do Discipline Policies in Today’s Public Schools Foster the Common Good?’’ (May 2004) at 2–3. 6 419 U.S. 565 (1975) (holding imposition of suspensions without preliminary hearings violated 

students’ due process rights guaranteed by Fourteenth Amendment).

BACKGROUND AND NEED FOR THE LEGISLATION

H.R. 420 will prevent frivolous lawsuits and help dispel the legal 

culture of fear that has come to permeate American society. 

FRIVOLOUS LITIGATION HAS A CORROSIVE EFFECT ON AMERICAN

CULTURAL AND SOCIAL INSTITUTIONS

As Philip Howard has pointed out, due to an onslaught of frivolous lawsuits ‘‘[l]egal fear has become a defining feature of our culture.’’ 2 This values crisis caused by lawsuit abuse reaches all parts 

of American society: 

Churches 

In response to litigation against a church after a parishioner 

committed suicide, churches have begun implementing policies discouraging counseling by ministers. Instead, parishioners are being 

referred to secular psychologists and other therapists.3 According to 

a recent Newsweek cover story, ‘‘The Rev. Ron Singleton’s door is 

always open. That way, when the Methodist minister of a small 

congregation in Inman, S.C., is counseling a parishioner, his secretary across the hall is a witness in case Singleton is accused of 

inappropriate behavior. (When his secretary is not around, the reverend does his counseling at the local Burger King.) Singleton has 

a policy of no hugging from the front; just a chaste arm around the 

shoulders from the side. And he’s developed a lame little hand pat 

to console the lost and the grieving. The dearth of hugging is ‘really 

sad,’ he says, but what is he going to do? He could ill afford a lawsuit.’’ 4

Schools 

A recent poll found that ‘‘[n]early 8 in 10 teachers (78%) said students are quick to remind them that they have rights or that their 

parents can sue.’’ 5

The Supreme Court’s 1975 Goss v. Lopez 6 decision extended Federal due process rights to student discipline and literally made 

every school discipline decision a potential Federal case. According 

to Newsweek:

‘‘Legal fear’’ is just as intense in the educational system. Many 

Americans sense that schools have become chaotic and undisciplined over time and the quality of teachers has declined. 

Many teachers say that the joy has gone out of their jobs. 

What’s not generally known is the role of courts and Congress 

in creating these problems by depriving teachers and principals of the freedom to use their own common sense and best 

judgment. Thanks to judicial rulings and laws over the past 

four decades, parents can sue if their kids are suspended for 

6

7Stuart Taylor, Jr. and Evan Thomas, ‘‘Civil Wars’’ Newsweek (December 15, 2003) at 48. 8 Id. at 49. 9 John Curran, ‘‘Judge Rejects a Rights Suit Over School’s Lunch Seating,’’ The Philadelphia 

Inquirer (July 20, 2004) at B4. 10Melanie Ave, ‘‘Lawsuits Drain School Dollars’’ St. Petersburg Times (February 2, 2004) (emphasis added).

even a single day—for any reason—without adequate ‘‘due 

process.’’ 7

Unruly students sense the teachers’ fear and their own empowerment. ‘‘A kid will be acting out in class, and you touch 

his shoulder, and he’ll immediately come back with ‘Don’t 

touch me or I’ll sue,’ or, ‘You don’t have any witnesses,’ ’’ says 

Rob Wiel, who taught high-school math and coached football 

and baseball in the Denver suburbs for 20 years before retiring 

recently.8

In New Jersey, ‘‘A state judge . . . threw out a lawsuit filed by 

an Atlantic County man who said assigned seating in a school 

lunchroom violated his 12-year-old daughter’s right to free speech. 

Superior Court Judge Valerie Armstrong said Galloway Township 

school administrators had the right to impose the restriction to 

maintain order and safety in a cafeteria that serves 260 students 

in each of four 30-minute lunch periods.’’ 9

According to the St. Petersburg Times:

In Pinellas County [Florida], two Palm Harbor University High 

School baseball players sued the school district claiming they 

were wrongly booted from school because of a roughhousing incident that occurred on a team road trip. In Hillsborough 

County, Robinson High School senior Nicole ‘‘Nikki’’ Youngblood filed suit after her picture was left out of the school yearbook when she refused to wear a feminine drape instead of a 

shirt and tie as she wished. These two cases only scratch the 

surface of lawsuits filed against local public school districts on 

an almost daily basis. More and more, offenses that used to be 

settled inside the schoolhouse now end up at the courthouse. 

The result, educators say, is less money for learning. ‘‘We spend 

millions and millions on attorney fees every year that has nothing to do with the classroom,’’ said Wayne Blanton, executive 

director of the Florida School Boards Association. ‘‘Every lawsuit we have to defend is money that doesn’t get to the classroom.’’ . . . ‘‘Lots of people file suit,’’ said Crosby Few, 

Hillsborough School Board attorney. ‘‘A lot of them are frivolous.’’ . . . In the book, Judging School Discipline: The Crisis 

of Moral Authority, the authors argue that the hundreds of 

lawsuits challenging school disciplinary procedures have hurt 

the quality of public education. One of the authors, Richard 

Arum, an associate professor of sociology at New York University, said just the threat of lawsuits keeps teachers from taking 

charge of their classrooms.10

And as the Arizona Republic has reported:

Scottsdale School Board member Christine Schild has called 

the legal fees ‘‘outrageous.’’ . . . Legal bills for the 2003–04 

school year are estimated to be as high as $675,000. This is the 

highest amount in recent years, and possibly ever . . . Large 

school districts routinely spend thousands of dollars each year 

7

11 Anne Ryman, ‘‘Baracy to Pick In-house Attorney for School District,’’ The Arizona Republic

(July 8, 2004) at 1. 12Philip K. Howard, The Collapse of the Common Good: How America’s Lawsuit Culture Undermines Our Freedom (2001) at 5. 13 Id. at 5. 14 Id. at 5. 

on attorneys. The most common expenses are for student expulsion hearings and employee discipline . . . [D]ay-to-day 

legal expenses involving disputes with employees and student 

discipline are not covered by insurance and come out of the operating budget.11

Thanks to frivolous lawsuits, ‘‘in America, hugging or, indeed, 

even a pat on the back is now considered so dangerous that teachers can’t do it.’’ 12 According to Lynn Maher of the New Jersey 

chapter of the National Education Association (‘‘NEA’’), ‘‘Our policy 

is basically don’t hug children.’’ 13 The guidelines of the Pennsylvania chapter of the NEA urge teachers to do no more than ‘‘briefly 

touch’’ a child’s arm or shoulder.14

Salon.com has chronicled the threat frivolous lawsuits pose to a 

successful program designed to get children to exercise more by 

walking or bike riding to school. According to Salon.com:

[A] new program is rising to the top in the bike-walk hierarchy. It’s called Safe Routes to School, a rapidly expanding 4-

year-old effort that coordinates transportation, health and education agencies to get children walking and biking to school. 

Statewide Safe Routes programs are already underway in California, Washington and Wisconsin, and the pending reauthorization of the highway and transit bill, TEA-3, contains a $1 

billion appropriation for a Federal Safe Routes to School program.

‘‘It has the potential to become one of the best ways to improve 

conditions for walking and biking,’’ said Clark, describing the 

broad cross-section of Safe Routes supporters, including parents, including parents and teachers, health agencies and 

urban planners. ‘‘There’s an unassailable coalition.’’

Sharon Roerty, director of community programs at the National Center for Bicycling and Walking in Bethseda, Md., concurs. ‘‘Safe Routes to School means a better walking and biking 

environment for everyone,’’ she said. ‘‘We picked schools because that’s a motherhood and apple pie. But it could be a senior center; it could be a train station.’’

But if Safe Routes to School is a case study in successful grassroutes organizing, the story behind it also unfolds as a classic—and damning—parable of contemporary American 

culture .. . . Wendi Kallins, project manager for the Marin 

County SR2S program, which has become a national model for 

the burgeoning movement, says parents routinely cite safety as 

the main reason they prevent their kids from walking or biking 

to school. But more often than not, parents’ safety arguments 

are like falling down the rabbit hole; plunge deeper, and it gets 

curiouser and curiouser. Fifty percent of the children hit by 

cars near schools are hit by vehicles driven by parents of other 

students, according to the National Highway Traffic Safety Administration. Researchers for the Marin County program found 

8

15Linda Baker, ‘‘Walk to School, Yes, But Don’t Forget Your Lawyer,’’ Salon.com (October 13, 

2004). 16Stuart Taylor, Jr. and Evan Thomas, ‘‘Civil Wars’’ Newsweek (December 15, 2003) at 43–

44. 17 Id. at 51.

that up to 30 percent of morning traffic is caused by parents 

driving their children to school. (These figures have since been 

validated in other parts of the country.)...

Fast forward to the 21st century, where liability insurance for 

kids who walk or bike to school has become one of the major 

challenges facing SR2S advocates. In 2002, the Environmental 

Protection Agency funded a $96,000 Portland project to develop 

a Walking School Bus—in which groups of kids walk designated routes to school under adult supervision—at a local elementary school. Organizers spent months mapping safe 

routes, conducting outreach to parents, and running criminal 

background checks on senior citizens volunteers, only to have 

the project collapse in the absence of liability coverage for kids 

who might become injured or go missing. A senior-citizen-led 

walking school bus in Larkspur, Calif. Met with a similar fact, 

according to Kallins.

‘‘The fact that one would have to even consider kindly senior 

citizens being sued for walking kids to school says a lot about 

out culture,’’ she observed.15

Doctor’s Offices 

According to Newsweek:

Dr. Sandra R. Scott of Brooklyn, N.Y., has never been sued for 

malpractice, but that doesn’t keep her from worrying. As an 

emergency-room doctor, she often hears her patients threaten 

lawsuits—even while she’s treating them. ‘‘They’ll come in, 

having bumped their heads on the kitchen cabinet, and meanwhile I’ll be dealing with two car crashes,’’ she says. ‘‘And if 

they don’t have the test they think they should have in a timely fashion, they’ll get very angry. All of a sudden, it’s ‘You’re 

not treating me, this hospital is horrible, I’m going to sue 

you.’ ’’ 16 ‘‘I’m only a human being,’’ she says. ‘‘I’m an educated 

physician but the miracles are out of my hands.’’ 17

When Dr. Brian Bachelder moved back to Mt. Gilead, Ohio, to 

practice family medicine in 1984, he hoped to emulate the 

country doc who’d treated him as a kid . . . But in recent 

years, Bachelder, 49, has watched litigation reshape his practice. Last December, facing malpractice premiums that soared 

from $12,000 in 2000 to $57,000 in 2003, Bachelder decided to 

lower his bill by cutting out higher-risk procedures like 

vasectomies, setting broken bones and delivering babies—even 

though obstetrics was his favorite part of the practice . . . 

Today the threat of litigation hangs over nearly every move 

Bachelder makes, changing the very nature of his relationship 

with patients. He worries that the slightest mistake could provoke a lawsuit. ‘‘Anything less than perfection is malpractice,’’ 

he says. Even in confronting the most common ailments—

headaches or ear infections—Bachelder must consider the possibility of a rare and devastating disease. He often orders exVerDate jul 14 2003 20:49 Jun 14, 2005 Jkt 39006 PO 00000 Frm 000008 Fmt 06659 Sfmt 06601 E:\HR\OC\HR123.XXX HR123
9

18Debra Rosenberg, ‘‘Hard Pill to Swallow’’ Newsweek (December 15, 2003) at 46. 19Stuart Taylor, Jr. and Evan Thomas, ‘‘Civil Wars’’ Newsweek (December 15, 2003) at 48. 20Field Maloney, ‘‘Cannonball!’’ New Yorker, Talk of the Town (September 8, 2004). 21 Id. at 44. 22 Id. at 49.

pensive tests—not just to rule out the worst, but also to bolster 

his case before a potential jury . . . Bachelder’s fear of lawsuits isn’t just theoretical—he’s been sued a half-dozen times 

in his 20-year career. In one case, Bachelder referred a boy 

with a bladder problem to a urologist. The urologist operated, 

and the patient subsequently sued; Bachelder was also named 

in the complaint. He was eventually dropped from the case, but 

not before his liability insurance paid out $40,000 in legal 

fees.18

The most dangerously incompetent doctors often remain in place 

for many years, in part because employers fear wrongful-dismissal 

lawsuits by fired doctors even more than malpractice suits by their 

victims.19

Sports 

The New Yorker reports on how diving boards and U.S. Olympic 

diving medals have both become a thing of the past due to frivolous 

lawsuits: ‘‘After a golden age in the seventies . . . the American 

pool has suffered a gradual decline: thanks, for the most part, to 

concerns about safety and liability, diving boards have been removed and deep ends undeepened. . . . Such developments have 

consequences. . . . In the last two Olympics, medal counts for 

[once-dominant] American divers reached their lowest levels since 

the 1912 Games.’’ 20

According to Newsweek:

Ryan Warner is a volunteer who runs an annual softball tournament in Page, Ariz., that usually raises about $5,000 to support local school sports programs. But not this year. A man 

who broke his leg at a recent tournament sliding into third 

base filed a $100,000 lawsuit against the city, and Warner 

fears he may be named as a defendant. ‘‘It’s very upsetting 

when you’re doing something for the community, not making 

any money for yourself, to be sued over something over which 

you had no control,’’ he says. So Warner canceled the tournament.21

Parents, on behalf of their children, increasingly sue not only 

for physical injuries, but for ‘‘hurt feelings’’ when they don’t 

make a team, says John Sadler of Columbia, S.C., who insures 

amateur sports leagues .. If a ref steps into a fight, he can be 

sued if one of the players he is holding back takes a punch. If 

the ref doesn’t intervene, he can be sued for allowing the fight 

to go on.22

Even apparently innocent soccer moms are at risk. In Jupiter, 

Fla., one mother volunteered to pick up a pizza for the team. 

She drove over the foot of a child who, left unattended, had 

run into the road. The police did not even give the woman a 

ticket. But the parents of the child sued the mother and the 

10

23 Id. at 49. 24Fox News (May 31, 2001). 25 Ann DiMatteo, ‘‘Families Sue Over Unfair Twirl Tryouts,’’ The New Haven Register, May 

18, 2001. 26Kelly Melhart, ‘‘Court Dismisses Suit over Punishment,’’ Fort Worth-Star Telegram (April 

19, 2005). 27Dave Sommers, ‘‘Legal Pitch,’’ The Trentonian, May 1, 2001. 28 ABCNews.com Report, ‘‘Blame the Coach? Angry Parents Take School Coaches to Court’’ 

(August 7, 2003). 29Philip K. Howard, The Collapse of the Common Good: How America’s Lawsuit Culture Undermines Our Freedom (2001) at 46. 

soccer league and tried to sue the city, the refs and various 

sponsors.23

Other examples include the following. In Vestavia Hills, Alabama, the father of Laura Brooke Smith ‘‘sued [the] school district, 

saying his daughter’s rejection from the high school cheerleading 

squad despite professional coaching has caused her humiliation 

and mental anguish.’’ 24

In North Haven, Connecticut, the ‘‘families of two high school 

sophomores have filed a Federal lawsuit over the school’s decision 

to drop them from the drum majorette squad.’’ 25

A student was barred from participating in her high school’s 

cheerleading tryouts ‘‘as punishment for passing a profane note on 

a . . . school bus in 2003.’’ In response, her father hired a lawyer 

and filed a lawsuit ‘‘saying the punishment violated his daughter’s 

constitutional rights.’’ An appeals court dismissed the lawsuit, 

agreeing with school officials that students ‘‘do not have a constitutional right to participate in extra-curricular activities.’’ 26

And in Pennsylvania, ‘‘[a] teenager, who felt she was destined for 

greatness as a softball player, has filed a $700,000 lawsuit against 

her former coach, alleging his ‘incorrect’ teaching style ruined her 

chances for an athletic scholarship.’’ 27

ABC News reports that:

When his 16-year-old son didn’t get the most valuable player 

award, Michel Croteau didn’t get upset. He hired a lawyer and 

sued his son’s youth hockey league to the tune of more than 

$200,000 . . . The Croteaus are not alone. In the last year, 

parents have filed more than 200 non-injury-related sports 

lawsuits against coaches, leagues and school districts in the 

United States, according to Gil Fried, a University of New 

Haven professor who specializes in sports law . . . The Butzke 

family sued the Comsewogue, N.Y., school district because 

their eighth-grade daughter was taken off the varsity high 

school soccer team. The Branco family took legal action against 

the Washington Township, N.J., school district after their son, 

David, was cut from the junior varsity basketball team . . . 

The Rubin family sued California’s New Haven Unified School 

District for $1.5 million because their son got kicked off the 

varsity basketball team . . . The family felt James Logan High 

School Coach Blake Chong may have cost their son not just a 

scholarship, but an NBA career.’’ 28

In 1999, even major league baseball issued a directive to players 

that they should no longer throw foul balls to eager fans in the 

stands because there might be a lawsuit if someone got hurt trying 

to recover a souvenir.29 Yet another lawsuit was filed against 

11

30Zach Haberman, ‘‘Fan Blinded by Ball Sues Yanks for $5M,’’ The New York Post (April 11, 

2005). 31 Id. at 3. 32Stuart Taylor, Jr. and Evan Thomas, ‘‘Civil Wars’’ Newsweek (December 15, 2003) at 44. 33Philip K. Howard, The Collapse of the Common Good (New York: 2001) at 58. 34 U.S. Consumer Product Safety Commission, Handbook for Public Playground Safety, Pub. 

No. 325 at 23. 

Major League Baseball for injuries resulting from being hit by a 

practice ball before Game One of the 2000 World Series.30

Playgrounds 

The lawsuit culture is even changing the traditional American 

landscape: playgrounds are increasingly removing seesaws for fear 

of liability.31 According to Newsweek: 

Playgrounds all over the country have been stripped of monkey 

bars, jungle gyms, high slides and swings, seesaws and other 

old-fashioned equipment once popularized by President John F. 

Kennedy’s physical-fitness campaign. The reason: thousands of 

lawsuits by people who hurt themselves at playgrounds. But 

some experts say that new, supposedly safer equipment is actually more dangerous because risk-loving kids will test themselves by, for instance, climbing across the top of a swing set. 

Other kids sit at home and get fat—and their parents sue 

McDonald’s.32

As Philip Howard has written, ‘‘just letting a claim go to a jury 

. . . will affect whether seesaws stay in playgrounds all across 

America.’’ 33

Today, a brochure from the National Program for Playground 

Safety advises: ‘‘Seesaw use is quite complex because it requires 

two children to cooperate and combine their actions,’’ and now 

‘‘there is a trend to replace [them] with spring-centered seesaws.’’ 34

A culture of legal fear is actually reducing the opportunities of 

American children to burn calories in playgrounds. 

Good Deeds 

According to the Chicago Daily Herald:

By day, Dave Peterson works with diagnostic multiplexers and 

beam shakers to maintain the Fermi National Accelerator Laboratory’s antiproton source. But at dawn and dusk the Geneva 

resident drags a homemade snowplow behind his daughter’s 

Pacific Electra mountain bike, clearing a 16-inch wide section 

of the Fox River Trail as he rides to and from work in Batavia. 

Because he rides at a time when few are watching, he’s become 

something of a local legend the last two winters, a Bigfoot. ‘‘It’s 

one of those weird things that has touched a nerve with a lot 

of people,’’ Peterson said. A whole lot. In fact, many of the 

path’s regulars have come to expect it to be clear—and that 

has put Peterson’s plowing on hiatus. The county has asked 

him to stop because if there’s an expectation that the trail will 

be plowed, there’s a greater chance for litigation, said Kane 

County Forest Preserve District operations supervisor Pat 

McQuilkin. ‘‘If a person falls, you are more liable than if you 

had never plowed at all. Crazy world,’’ wrote AnnMarie 

Fauske, the district’s community affairs director, in response to 

a letter to Peterson. ‘‘Unfortunately, the times we are in allow 

12

35Garrett Ordower, ‘‘County Tells Bicyclist Thanks, But Stop Plowing Trail,’’ The Chicago 

Daily Herald (February 21, 2004). 36See ‘‘Fine Filers of Frivolous Lawsuits,’’ The Detroit News (February 24, 2004). 37 Julia Moskin, ‘‘Crave Thin Mints?’’ The New York Times (March 14, 2004). 38 J.R. Moehringer, ‘‘Ho! Ho! Is More Like Uh-Oh,’’ The Los Angeles Times (December 23, 

2004). 

for a much more litigious environment than common sense 

would dictate.’’ . . . ‘‘There is something I can do here,’’ Peterson said. ‘‘I can use my skills as an engineer to make life easier for the little old ladies who walk on the path.’’ But the forest 

preserve worries that if they take a wrong step and fall, those 

little old ladies might decide to sue.35

The Girl Scouts 

The Girl Scouts in Metro Detroit alone have to sell 36,000 boxes 

of cookies each year just to pay for liability insurance.36 According 

to former Girl Scout Laurie Super [of Downington, Pennsylvania], 

‘‘[i]t’s getting harder to sell [cookies] . . . Our local Wawa stores 

said they couldn’t let the girls set up their booth anymore, because 

of liability issues.’’ 37

Santa Clause 

Even Santa Claus lives under a constant threat of legal harassment. As the Los Angeles Times quoted one Santa Claus, ‘‘When I 

started doing this years ago, I never even thought about liability 

. . . But Santas have a pretty good chance of getting sued . . .’’ 38

Everyone 

The corrosive effects of lawsuit abuse were recently summarized 

by Newsweek:

Americans will sue each other at the slightest provocation. 

These are the sorts of stories that fill schoolteachers and doctors and Little League coaches with dread that the slightest 

mistake—or offense to an angry or addled parent or patient—

will drag them into litigation hell, months or years of mounting 

legal fees and acrimony and uncertainty, with the remote but 

scary risk of losing everything . . . Americans don’t just sue 

big corporations or bad people. They sue doctors over misfortunes that no doctor could prevent. They sue their school officials for disciplining their children for cheating. They sue their 

local governments when they slip and fall on the sidewalk, get 

hit by drunken drivers, get struck by lightning on city golf 

courses—and even when they get attacked by a goose in a park 

(that one brought the injured plaintiff $10,000). They sue their 

ministers for failing to prevent suicides. They sue their Little 

League coaches for not putting their children on the all-star 

team. They sue their wardens when they get hurt playing basketball in prison. They sue when their injuries are severe but 

self-inflicted, when their hurts are trivial and when they have 

not suffered at all. Many of these cases do not belong in court. 

But clients and lawyers sue anyway, because they hope they 

will get lucky and win a jackpot from a system that allows 

sympathetic juries to award plaintiffs not just real damages—

say, the cost of doctor’s fees or wages lost—but millions more 

for impossible-to-measure ‘‘pain and suffering’’ and highly arbiVerDate jul 14 2003 20:49 Jun 14, 2005 Jkt 39006 PO 00000 Frm 000012 Fmt 06659 Sfmt 06601 E:\HR\OC\HR123.XXX HR123
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39Stuart Taylor, Jr. and Evan Thomas, ‘‘Civil Wars’’ Newsweek (December 15, 2003) at 44–

45.40 Id. at 51. Although the American Trial Lawyers Association has vociferously attacked the 

Newsweek article, Newsweek stands solidly by its report, stating ‘‘NEWSWEEK received a large 

volume of mail from trial lawyers critical of our cover story. We stand by the story as both accurate and fair. The criticisms are for the most part easily refuted with material in the public 

record.’’ Newsweek, ‘‘Mail Call’’ (January 12, 2004). 41See American Tort Reform Association, ‘‘National Poll on Tort Reform’’ (February 27, 2003). 42See Insurance Research Council, ‘‘IRC Study Finds Strong Support for Wide Variety of Civil 

Justice Reform Measures’’ (April 5, 2004) at 4. 43 Bruce D. Phillips, ‘‘Small Business Problems and Priorities’’ (National Federation of Independent Business Research Foundation, June 2004). 

trary ‘‘punitive damages.’’ (Under standard ‘‘contingency fee’’ 

arrangements, plaintiffs’ lawyers get a third to a half of the 

take.) . . . Many Americans sue because they have come to believe that they have the ‘‘right’’ to impose the costs and burdens of defending a lawsuit on anyone who angers them, regardless of fault or blame. The cost to society cannot be measured just in money, though the bill is enormous, an estimated 

$200 billion a year, more than half of it for legal fees and costs 

that could be used to hire more police or firefighters or teachers.39

[T]he time may come when ordinary Americans recognize that 

for every sweepstakes winner in the legal lottery, there are 

millions of others who have to live with the consequences—

higher taxes and insurance rates, educational and medical systems seriously warped by lawsuits, fear and uncertainty about 

getting sued themselves.40

As Will Rogers once observed, Americans are ‘‘letting lawyers instead of their conscience be their guide.’’

POLLS SHOW AMERICANS OVERWHELMINGLY SUPPORT LEGISLATION

BARRING FRIVOLOUS LAWSUITS

We all pay for these frivolous lawsuits through higher prices as 

consumers and through higher taxes as taxpayers. 

A recent poll found that 83% of likely voters believe there are too 

many lawsuits in America, 76% believe lawsuit abuse results in increased prices for goods and services, and 65% said they would be 

more likely to vote for congressional candidates who supported 

curbs on lawsuit abuse.41 Another poll found that 73% of Americans support requiring sanctions against attorneys who file frivolous lawsuits.42

Small businesses rank the cost and availability of liability insurance as second only to the costs of health care as their top priority,43 and both problems are fueled by frivolous lawsuits. 

When Business Week wrote an extensive article on what the most 

effective legal reforms would be, Business Week stated that what’s 

needed is ‘‘Penalties That Sting.’’ As Business Week recommends, 

‘‘Give judges stronger tools to punish renegade lawyers. Before 

1993, it was mandatory for judges to impose sanctions such as public censures, fines, or orders to pay for the other side’s legal expenses on lawyers who filed frivolous lawsuits. Then the Civil 

Rules Advisory Committee (CRAC), an obscure branch of the 

14

44Mike France, ‘‘Special Report—Tort Reform: How to Fix the Tort System,’’ Business Week

(March 14, 2005) at 76. 45Public Law No. 109–2. 46 ‘‘Tort Reform Roadmap,’’ The Wall Street Journal (editorial) (January 27, 2005) at A12. 47Mortimer B. Zuckerman (Editorial) ‘‘Welcome to Sue City, U.S.A.’’ U.S. News & World Report (June 16, 2003) at 64. 48 Carrie Coolidge, ‘‘The Last Rung; The Tort System Takes Down a 149-year-old Ladder Manufacturer,’’ Forbes (January 12, 2004) at 52. 49 Judyth Pendell and Paul Hinton, ‘‘Liability Costs for Small Business’’ (U.S. Chamber Institute for Legal Reform, June, 2004) at 1 (‘‘small business’’ defined as ‘‘those with less than $10 

million in annual revenue and at least one employee in addition to the owner’’). 50 Id. 

courts, made penalties optional. This needs to be reversed . . . by 

Congress.’’ 44

The Class Action Fairness Act, which recently became law,45 prohibits forum shopping when the case is styled as a class action. The 

same policy should apply to individual lawsuits as well, and LARA 

would fill that gap in policy. As The Wall Street Journal said in a 

recent editorial, ‘‘One suggestion is blending class action reform 

with the Lawsuit Abuse Reduction Act (LARA), a related measure 

that also passed the House last year. LARA would also reduce 

forum shopping and frivolous personal injury claims and fine lawyers who bring them.’’ 46

FRIVOLOUS LAWSUITS AGAINST INNOCENT VICTIMS HAVE BECOME

COMMONPLACE, ESPECIALLY THREATENING SMALL BUSINESSES AND

HEALTH CARE

Because existing rules against frivolous lawsuits are ineffective, 

as one commentator has pointed out, ‘‘The right to sue has been exploited by lawyers. They can gamble on taking cases on a contingency basis because they need only win 1 in 10 to score the big 

judgment that will make up for the other losses.’’ 47

Small businesses and workers suffer. This year, the nation’s oldest ladder manufacturer, family-owned John S. Tilley Ladders Co. 

of Watervliet, New York, near Albany, filed for bankruptcy protection and sold off most of its assets due to litigation costs. Founded 

in 1855, the Tilley firm could not handle the cost of liability insurance, which had risen from 6% of sales a decade ago to 29%, even 

though the company never lost an actual court judgment. ‘‘We 

could see the handwriting on the wall and just want to end this 

whole thing,’’ said Robert Howland, a descendant of company 

founder John Tilley.48

A recent report by the AEI-Brookings Joint Center for Regulatory Studies has concluded that ‘‘The tort liability price tag for 

small businesses in America is $88 billion a year’’ and that ‘‘Small 

businesses bear 68 percent of business tort liability costs, but take 

in only 25% of business revenue.’’ 49 The small businesses studied 

in the report account for 98% of the total number of businesses 

with employees in the United States.50

As Bernie Marcus, co-founder and former chairman of The Home 

Depot, has described, ‘‘An unpredictable tort system casts a shadow 

over every plan and investment. It is devastating for start-ups. The 

cost of even one ill-timed abusive lawsuit can bankrupt a growing 

company and cost hundreds of thousands of jobs. CEOs and their 

boards are forced to lower their aspirations and hold back on innovations to manage defensively. This is holding our nation back 

from competing effectively in the global marketplace and offshore 

15

51Washington Legal Foundation, ‘‘Conversations With . . .’’ (Fall 2004). 52See ‘‘Opinion Survey of Medical Professional Liability,’’ JAMA 164:1583–1594 (1957). 53See R. Bovbjerg, ‘‘Medical Malpractice: Problems & Reforms,’’ The Urban Institute, Intergovernmental Health Policy Project (1995). 54See Harvard Medical Practice Study to the State of New York, Patients, Doctors, and Lawyers: Medical Injury, Malpractice Litigation, and Patient Compensation in New York at 11–5 

(1990) (‘‘[T]he tort system imposes the costs of defending claims on [health care] providers who 

may not even have been involved in an injury, let alone a negligent injury.’’). 55See id. at 7–1. 56See id. at 7–33. 57See id. at 7–33. 58See also Paul Weiler, et al., A Measure of Malpractice (1993) at 71 (‘‘[Of those 47,] 10 claims 

involved hospitalization that had produced injuries, though not due to provider negligence; and 

another three cases exhibited some evidence of medical causation, but not enough to pass our 

probability threshold. That left 26 malpractice claims, more than half the total of 47 in our sample, which provided no evidence of medical injury, let alone medical negligence.’’). 59 Recently, Britain’s most senior judges, the Appellate Committee of the House of Lords, 

branded Britain’s U.S.-style claims system an ‘‘evil’’ that interferes with civil liberties and freedom in a landmark ruling in a compensation case. In the case of Tomlinson v. Congleton Borough Council, [2003] U.K.H.L. 47 (2003), the Appellate Committee stated ‘‘The pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is certainly 

the interference with the liberty of the citizen. Of course there is some risk of accidents arising 

out of the joie de vivre of the young, but that is no reason for imposing a grey and dull safety 

regime on everyone.’’

competition is seriously cutting into market share for U.S. companies.’’ 51

Doctors and patients suffer. Before the 1960s, only one physician 

in seven had ever been sued in their entire lifetime,52 whereas today’s rate is about one in seven physicians sued per year.53

Further, the Harvard Medical Practice Study found that over 

half of the filed medical professional liability claims they studied 

were brought by plaintiffs who suffered either no injuries at all, or, 

if they did, such injuries were not caused by their health care providers, but rather by the underlying disease.54 The researchers 

found that, of the 47 medical malpractice claims they studied that 

resulted in litigation,55 ‘‘[i]n 14 cases, the physicians reviewed the 

record and found no adverse event. For most of these cases, the 

physicians examined the outcome and concluded that the cause was 

the underlying disease rather than medical treatment . . . In these 

14 cases, our physician reviewers took a stand opposite to that of 

the plaintiff-patient’s expert.’’ 56 Further, the reviewers found that 

in an additional 10 cases an adverse event occurred, but there was 

no negligence on the part of the health care provider.57 Of the 47 

claims filed that the researchers analyzed, less than half demonstrated any actual negligence, and many demonstrated no 

discernable injury.58

EXAMPLES OF FRIVOLOUS LAWSUITS

Here are just a few examples of the frivolous lawsuits that have 

tormented innocent Americans.59

• According to Reuters, ‘‘A lawsuit against . . . U.S. weather 

forecasters . . . over the South Asian tsunami disaster is 

fueling calls for greater curbs on what critics say are frivolous cases brought by lawyers out to make a quick buck. The 

suit, brought on behalf of a group of tsunami victims, ‘perfectly illustrates’ the need for U.S. laws to hold lawyers liable for the economic damages they inflict on those they sue, 

16

60Gail Appleson, ‘‘Tsunami Suit Shows Need to Curb Lawyers, Critics Say,’’ Reuters (March 

8, 2005). 61 Id. 62 ‘‘Viewer Sues NBC Over Rat-Eating Fear Factor,’’ Associated Press (January 6, 2005). 63 Kolari v. New York-Presbyterian Hospital, 2005 WL 710452 (S.D.N.Y.), at *1–*2, *14. 64See Jennifer Pittman, ‘‘The Blame Game’’ The Silicon Valley/San Jose Business Journal

(January 9, 2004); Kenneth R. Weiss, ‘‘Streisand Sues Over Photograph of Her Coast Home on 

Web Site,’’ The Los Angeles Times (May 30, 2003) at B1; Streisand v. Adelman, Case No. 

SC077257 (Sup. Ct. Los Angeles Cty.) (complaint filed May 30, 2003); Streisand v. Adelman,

Case No. SC077257 (Sup. Ct. Los Angeles Cty.) (ruling on submitted matters: Motion to Tax 

Costs and Motion for Attorneys; Fees).

said legal scholar Lester Brickman.’’ 60 The petition was filed 

in Federal court in Manhattan.61

• Austin Aitken filed a lawsuit against NBC’s ‘‘Fear Factor’’ 

television program. Austin Aitken told the Associated Press 

that he watches ‘‘Fear Factor’’ often and had no problem 

with past installments in which the reality show’s participants ate worms and insects in pursuit of a $50,000 prize—

but eating rats went ‘‘too far.’’ Aitken says he became ‘‘dizzy 

and lightheaded’’ and vomited after watching contestants eat 

rats. He also ran into a doorway because he was disoriented, 

‘‘causing suffering, injury and great pain.’’ Aitken’s lawsuit 

asks for $2.5 million as compensation. ‘‘I just put any figure,’’ 

he told the Associated Press.62

• U.S. District Judge Loretta Preska had to say about the current state of Federal litigation: ‘‘Plaintiffs here have lost 

their way; they need to consult a map or a compass or a Constitution because Plaintiffs have come to the judicial branch 

for relief that may only be granted by the legislative branch. 

This action is one of dozens of similar bootless actions filed 

in twenty-three district courts across the United States on 

behalf of uninsured and indigent patients, wherein Plaintiffs 

argue, without basis in law, that private non-profit hospitals 

are required to provide free or reduced-rate services to uninsured persons . . . This orchestrated assault on scores of 

nonprofit hospitals, necessitating the expenditure of those 

hospitals’ scares resources to beat back meritless legal 

claims, is undoubtedly part of the litigation explosion that 

has been so well-documented in the media . . . For the foregoing reasons, the Defendants’ motions to dismiss the abovecaptioned 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.’’ 63

• Barbara Streisand sued the California Coastal Records 

Project, which took thousands of pictures of the California 

coastline intended to protect the state’s shoreline. The photographs are made available free of charge to state and local 

governments, university researchers, conservation organizations, and others. Streisand sued because a picture of her 

Malibu estate (her mansion composed only 3% of one photo 

among thousands) was posted on the public interest organization’s Web site. She sued for $50 million (five separate 

claims for $10 million each), but on May 10, 2004, Streisand 

was ordered to pay the people she sued $154,000 in legal 

fees they accrued defending against her ridiculous lawsuit.64

17

65Kevin Corcoran, ‘‘Court: Don’t Blame Cell-Phone Maker for Crash,’’ The Indianapolis Star

(June 5, 2004). 66Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1042 (8th Cir. 2003) (citing Grady v. Frito-Lay, Inc.,

2000 WL 33436367, at *2) (Pa.Com.Pl. April 3, 2000)). 67 Id. at 1053 (Saylor, J., concurring). 68 In re: Aircraft Accident at Little Rock, Arkansas on June 1, 1999, 231 F.Supp. 852, 879 

(E.D.Ark. 2002). 

• According to the Indianapolis Star, ‘‘Indiana drivers who get 

into wrecks with someone who is talking on a cell phone can 

forget about suing the phone’s manufacturer. The Indiana 

Court of Appeals on Friday dismissed an Evansville lawsuit 

in which Terry L. Williams tried to do just that after a 

March 2002 traffic crash. Williams collided with Kellie 

Meagher, who was allegedly talking on a Cingular Wireless 

phone. In the lawsuit, Williams alleged Cingular knew—or 

should have known—that Meagher would use the phone 

while driving. Vanderburgh Superior Court Judge Mary 

Margaret Lloyd dismissed Cingular from the suit. After the 

dismissal, Williams asked the judge to reconsider, citing new 

evidence that included a ‘Blondie’ cartoon strip in which 

Blondie, while talking on a cell phone, caused an accident. 

But the Evansville judge was unmoved. Now an appellate 

court also agrees that Cingular was not liable.’’ 65

• In April, 1995, Carl and Diana Grady sued Frito Lay claiming that Dorito chips stuck in Charles Grady’s throat and 

tore his esophagus. The Gradys wanted to present the ‘‘expert’’ testimony of Dr. Charles Beroes to support their claim 

that Doritos are inherently dangerous and negligently designed. Beroes’ research included pressing Doritos onto a 

scale until the tip snapped off, and measuring the amount of 

time it took saliva to soften the Doritos. None of Beroes’ 

tests involved chewing. After eight years of costly litigation, 

the Pennsylvania Supreme Court threw out the case, noting 

that Dr. Beroes’ tests ‘‘smacked of a high school science fair 

project and did not bear any relationship to the reality of the 

. . . consumption of foodstuffs.’’ 66 Justice Saylor pointed out 

in his concurring opinion ‘‘the common sense notion that it 

is necessary to properly chew hard foodstuffs prior to swallowing.’’ 67

• After three years of litigation, an appeals court finally held 

that the survivor of a crash cannot sue an airline for punitive damages when the pilots did not intentionally crash the 

plane. At midnight on June 1, 1999, during a severe thunderstorm, a fully loaded American Airlines jet crashed while 

trying to land in Little Rock, Arkansas. Eleven people died, 

including the pilot. Two passengers sued seeking compensatory and punitive damages. A U.S. district court judge 

ruled that ‘‘uncontroverted evidence’’ showed the pilots had 

a good faith belief that the plane could be landed safely.68

Upholding the district court’s decision, Judge Morris Arnold 

held that no reasonable jury could find that the members of 

the flight crew crashed the plane on purpose. Judge Morris 

wrote, ‘‘[s]tated differently, we hold that no reasonable jury 

could find that the members of the flight crew knew, or 

ought to have known, in light of the surrounding cirVerDate jul 14 2003 20:49 Jun 14, 2005 Jkt 39006 PO 00000 Frm 000017 Fmt 06659 Sfmt 06601 E:\HR\OC\HR123.XXX HR123
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69 Id. at 878–79. 70 Holmes v. Turtle Stop, Inc., 62 P.3d 1165 (2000). 71 Cy Ryan, ‘‘Court Says Warning About Hot Coffee Unnecessary,’’ The Las Vegas Sun (July 

11, 2000). 72See Randy Kenner, ‘‘Lawsuit on Hot Pickle Draws Attention Around the Globe,’’ Knoxville 

News-Sentinel (October 10, 2000) at A1. 73See Pelman v. McDonald’s Corp., S.D.N.Y. 02 Civ. 7821 (RWS), at 34–35 (September 3, 

2003). 74Pelman v. McDonald’s Corp., 237 F.Supp.2d 512, 518 (S.D.N.Y. 2003). 75Overton v. Anheauser-Busch Co., 517 N.W.2d 308, 309 (Mich. App. 1994). 76Tim Barker, ‘‘Universal Fall Leads to Lawsuit,’’ Orlando Sentinel (January 5, 2000) at C1.

cumstances, that their conduct would naturally and probably 

result in injury.’’ 69

• After five years of litigation, the Nevada Supreme Court dismissed the appeal of Lane Holmes, who sued the Turtle Stop 

in Las Vegas, claiming a cup caused him to suffer leg burns 

from dripping hot coffee.70 The court upheld the decision of 

the trial court that ruled ‘‘[t]he danger is open and obvious.’’ 71

• A woman in Knoxville, Tennessee, sought $125,000 in damages against McDonald’s, claiming a hot pickle dropped from 

a hamburger, burning her chin and causing her mental injury. Her husband also sued for $15,000 for loss of consortium.72

• On September 3, 2003, a Federal district judge in New York 

threw out for a second time a lawsuit filed on behalf of obese 

children claiming McDonald’s Corporation was legally responsible for their over-consumption of food.73 The court earlier noted the national ramifications of the complaint and the 

requested damages, stating ‘‘McDonalds has also, rightfully, 

pointed out that this case, the first of its kind to progress far 

enough along to reach the stage of a dispositive motion, 

could spawn thousands of similar ‘McLawsuits’ against restaurants . . . The potential for lawsuits is even greater 

given the numbers of persons who eat food prepared at other 

restaurants in addition to those serving fast food.’’ 74

• The Michigan Court of Appeals threw out a case brought by 

Richard Overton, who ‘‘pointed to defendant’s television advertisements featuring Bud Light as the source of fantasies 

coming to life, fantasies involving tropical settings, and 

beautiful women and men engaged in unrestricted merriment. Plaintiff sought monetary damages in excess of 

$10,000, alleging that defendant’s misleading advertisements 

had caused him physical and mental injury, emotional distress, and financial loss.’’ 75

• In Florida, a woman sued Universal Studios for $15,000 for 

‘‘extreme fear, emotional distress and mental anguish’’ because the theme park’s annual haunted house was too 

scary.76

• After over three years of litigation, Georgia’s Court of Appeals held that the day trading firms where Mark Barton invested before embarking on a shooting rampage are not liable for the victims’ injuries and deaths. A unanimous panel 

on the court stated ‘‘We find this case is one in which the 

issue of proximate cause is so plain, palpable and indisputable as to demand summary judgment for the defendVerDate jul 14 2003 20:49 Jun 14, 2005 Jkt 39006 PO 00000 Frm 000018 Fmt 06659 Sfmt 06601 E:\HR\OC\HR123.XXX HR123
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77 Brown v. All-Tech Investment Group, 2003 WL 23315394 (Ga. App.) at *5. 78 Id. at *7, n.5. 79 Honda of America Manufacturing, Inc. v. Norman, 104 S.W.3d. 600 (2003) (Tex.App. 1st.). 80See ‘‘Storm Death Is Not Weatherman’s Fault,’’ New York Post (March 29, 1999) at 84. 81 Associated Press, ‘‘Man Drops Suit Filed Against Airline After He Drank Booze, Fell,’’ USA 

Today (April 4, 2004).

ants.’’ 77 The court noted that it was ‘‘troubled by the implication that the list of defendants potentially liable for any 

person’s violence, if sparked by economic misfortune, would 

be limited only by the number of stock brokers, investment 

advisers, lawyers, business partners, lottery ticket sellers, 

etc., whom the assailant blamed for his financial losses.’’ 78

• After a decade of litigation, Texas’ 1st Court of Appeals re- versed a $43 million judgment against a car manufacturer in 

a products liability suit that alleged a defective seat belt 

caused the 1992 drowning death of a woman with a bloodalcohol level of 0.17 who failed to escape from her Honda 

Civic when it became submerged under water.79

• The family of a man who died on a fishing trip sued the 

Weather Channel for $10 million, claiming that the man relied on the channel’s forecast for his safety. In dismissing the 

case, the Miami Federal court stated that if forecasters were 

held accountable, ‘‘the duty could extend to farmers who 

plant their crops based on a forecast of no rain, construction 

workers who pour concrete or lay foundation based on the 

forecast of dry weather, or families who got to the beach for 

the weekend.’’ 80

• A West Virginia man who fell down an escalator at an airport finally dropped a lawsuit filed against US Airways over 

the accident. According to the Associated Press, ‘‘The lawsuit 

in circuit court in Fort Myers alleged the airline didn’t warn 

Floyd Shuler, 61, about the adverse affects of drinking alcohol on a plane. Shuler said in a news release from Wheeling, 

W.Va., that he didn’t intend for the suit to be filed. ‘I learned 

about the filing of the lawsuit against US Airways . . . along 

with everyone else,’ Shuler said. ‘It was never my intent to 

take on the airline industry. I apologize for any inconvenience this has caused US Airways.’ Shuler’s attorney, Paul 

Kutcher, did not return a phone call from The Associated 

Press seeking comment. The suit . . . said US Airways was 

negligent by failing to warn Shuler that the effects of alcohol 

are greater at night on airline passengers. The suit also alleged that the company did not properly maintain the escalator at Southwest Florida International Airport when he fell 

down it on Aug. 28, 1999, and it sought damages in excess 

of $15,000.’’ 81

• Several months after the Escondido, California library’s resident cat attacked Richard Espinosa’s 50-pound Labrador-mix 

assistance dog, Espinosa filed a $1.5-million claim against 

the city, alleging that he was harmed due to the dog’s injuries. According to the legal papers filed, Espinosa claimed his 

Federal and state constitutional rights were violated and 

that ‘‘. . . the defendants actions and subsequent inactions 

caused Espinosa to suffer significant lasting, extreme and severe mental anguish and emotional distress including, but 

20

82 Chuck Shepherd, ‘‘News of the Weird,’’ The Orlando Weekly (August 30, 2001). 83Teri Figueroa, ‘‘Jury Rejects Claim by Man in Attack on Dog by Library Cat,’’ The North 

County Times (January 20, 2004). 84Terry Kinney (the Associated Press) ‘‘Commissioner Sues Bengals, NFL’’ (January 31, 2003). 85Kevin O’Hanlon, ‘‘Court: Faulty Tire Didn’t Cause Murder,’’ the Associated Press (August 

8, 2003). 86Steve Lohr, ‘‘Buying Easy, Paying Hard,’’ Times Union (December 5, 2004) at A1.

not limited to, terror, humiliation, shame, embarrassment, 

mortification, chagrin, depression, panic, anxiety, flashbacks, 

nightmares, loss of sleep . . .’’ 82 According to the North 

County Times, ‘‘It took a jury little more than 2 hours of deliberation Friday to reject a claim from a man that the city 

of Escondido violated his civil rights when a cat living in a 

city library attacked his assistance dog more than 3 years 

ago . . . Espinosa originally asked for $1.5 million in compensation and damages . . . During jury selection Wednesday, Judge Hofmann excused four potential jurors who said 

they felt the case was ‘frivolous’ and that they could not be 

impartial. Others also said the case was without merit, but 

said they could look beyond that feeling. ‘After that first 

juror said the word ‘‘frivolous,’’ and so did the next five, I 

thought the whole panel should have been thrown out,’ 

Espinosa said . . . The city offered twice to settle with 

Espinosa, including one offer of $1,000. Espinosa declined. 

Nelson was unable to estimate how much the city spent defending itself against Espinosa’s allegations, but he said it 

was a considerable sum. He also said the case could drag on 

for months or years if Espinosa does appeal.’’ 83

• In Ohio, Hamilton County Commissioner Todd Portune sued 

the Bengals and the National Football League claiming the 

team violated its stadium lease by failing to be competitive. 

The complaint, which also named the other 31 NFL franchises as defendants, alleges fraud, civil conspiracy, antitrust 

violations and breach of contract.84

• After three years of litigation, the Nebraska Supreme Court 

upheld a lower court ruling and found Ford Motor Co. and 

Bridgestone/Firestone Inc. not liable for the death of a 

woman killed by a man who gave her a lift after she got a 

flat tire. The woman’s parents claimed in the lawsuit that a 

Firestone Wilderness AT tire on their daughter’s Ford Explorer failed, setting off the chain of events that resulted in 

her death. The Nebraska court said the companies could not 

have foreseen the murderer’s criminal acts.85

• According to the Albany Times Union, ‘‘The spectacle of 

American spending always gets a little silly in the holiday 

season, but shoppers over the next few weeks will be hardpressed to match the performance last year of Antoinette 

Millard. She ran up bills of almost $1 million in New York 

luxury stores like Cartier and Barneys, and, according to 

court papers, Millard is now suing American Express for improperly soliciting her to sign up for a big-spender’s credit 

card, her purchasing weapon of choice.’’ 86

• The Court of Appeals of Indiana had this to say about a recent lawsuit brought by a man who sued his cell phone comVerDate jul 14 2003 20:49 Jun 14, 2005 Jkt 39006 PO 00000 Frm 000020 Fmt 06659 Sfmt 06601 E:\HR\OC\HR123.XXX HR123
21

87Williams v. Cingular Wireless, No. 82A01–0312–CV–476 (Ct. App. Ind. June 4, 2004), at 2, 

7–9. 88 As one commentator has remarked, ‘‘yet another popular sledding hill’’ closed in Methuen, 

Massachusetts because nobody wants to ‘‘assume the risk of paying damages for anyone who 

gets hurt. Of course, in a world with common sense, [we] wouldn’t have to worry about it.’’ Taylor Armerding, ‘‘Liability, Litigation Make Sled Tracks Disappear,’’ Gloucester Daily Times (December 28, 2004). 89David N. Goodman, ‘‘Toilet Brush Warning Wins Consumer Award,’’ The Associated Press 

(January 6, 2005). 

pany because he got in an accident while using it in his car. 

The court stated:

With respect to Cingular, the complaint alleged: ‘‘That 

at the time of this collision the defendant Meagher was 

utilizing a telephone furnished by Cingular Wireless. 

That Cingular Wireless was negligent in furnishing a 

cellular phone to Meagher when it knew, or should have 

known, that it would be used while the user operated a 

motor vehicle.’’ . . . A cellular phone does not cause a 

driver to wreck a car. Rather, it is the driver’s inattention while using the phone that may cause an accident 

. . . For example, many items may be used by a person 

while driving, thus making the person less attentive to 

driving. It is foreseeable to some extent that there will 

be drivers who eat, apply make up, or look at a map 

while driving and that some of those drivers will be involved in car accidents because of the resulting distraction. However, it would be unreasonable to find it sound 

public policy to impose a duty on the restaurant or cosmetic manufacturer or map designer to prevent such accidents. It is the driver’s responsibility to drive with due 

care. Similarly, Cingular cannot control what people do 

with the phones after they purchase them. To place a 

duty on Cingular to stop selling cellular phones because 

they might be involved in a car accident would be akin 

to making a car manufacturer stop selling otherwise 

safe cars because the car might be negligently used in 

such a way that it causes an accident . . . Ultimately, 

sound public policy dictates that the responsibility for 

negligent driving should fall on the driver. Legislation 

has already been drafted to address the issue of cellular 

phone use while driving and to place the responsibility 

on the driver to refrain from doing so. We are confident 

that the legislature is taking appropriate measures to 

protect public safety, and that is both its right and 

duty.’’ 87

TODAY’S PRODUCT WARNINGS ARE A SAD TESTAMENT TO THE LEGAL

CULTURE OF FEAR

Today, testaments to the age of frivolous lawsuits are written on 

all manner of product warnings that aim to prevent obvious misuse. A label on a snow sled says ‘‘Beware: sled may develop a high 

speed under certain snow conditions.’’ 88 One warning label on a 

toilet brush states ‘‘Do not use for personal hygiene.’’ 89 A 5-inch 

brass fishing lure with three hooks is labeled ‘‘Harmful if swallowed.’’ A warning on an electric router made for carpenters states 

‘‘This product not intended for use as a dental drill.’’ A warning 

22

90Sonny Garrett, ‘‘Warning: People Are as Dumb as You Think,’’ The Baxter Bulletin (April 

17, 2004) (compiling list from Michigan Lawsuit Abuse Watch in Annual Wacky Warning Label 

Contest). 91Larry D. Hatfield, ‘‘Dumbest Warning Labels Get their Due,’’ The San Francisco Chronicle

(January 24, 2002). 92Tillinghast-Towers Perrin, U.S. Tort Costs: 2003 Update: Trends and Findings on the Costs 

of the U.S. Tort System, at 1. Tillinghast’s reports on tort system costs are funded internally. 93 Id. at 1. 

label on a baby stroller cautions ‘‘Remove child before folding.’’ A 

sticker on a 13-inch wheel on a wheelbarrow warns ‘‘Not intended 

for highway use.’’ A dishwasher carries the warning ‘‘Do not allow 

children to play in the dishwasher.’’ A manufactured fireplace log 

states ‘‘Caution—Risk of Fire.’’ A household iron contains the warning ‘‘Never iron clothes while they are being worn.’’ 90 And a cardboard car sun shield that keeps sun off the dashboard warns ‘‘Do 

not drive with sun shield in place.’’ 91

THE COSTS OF FRIVOLOUS LITIGATION

It should be emphasized that statistics do not capture the very 

real experiences of victims of lawsuit abuse that constituents suffer, and this debate is not about aggregate statistics regarding the 

number of lawsuits filed. 

However, requiring sanctions when judges find lawsuits are frivolous will surely deter many frivolous cases from being brought. 

That will be a good thing, considering the cost of today’s tort system to Americans is staggering. After leveling off during the 1990’s, 

the system’s direct costs soared by a stunning 14.4% in 2001 and 

another 13.3% in 2002, to a 2002 total of $233 billion, the equivalent of a 5% tax on wages,92 according to a report released by 

Tillinghast-Towers Perrin, which publishes the most definitive 

trend statistics on tort system costs. Inflation-adjusted direct U.S. 

tort costs per person have shot from $89 in 1950 to $809 in 2002.93

The costs of America’s lawsuit culture are staggering. As chronicled by Sebastian Mallaby in The Washington Post:

The most complete study of the tort system’s cost comes from 

the consulting firm Tillinghast-Towers Perrin. Tillinghast’s clients are mainly insurers, which are at loggerheads with the 

trial bar, so you may mistrust its data. Nonetheless, 

Tillinghast has published seven updates to its original 1985 

study, refining its methodology along the way. Its numbers are 

the best available. And they are stunning . . . the really 

shocking thing is where the billions went. Injured plaintiffs—

the fabled little guys for whom the system is supposedly designed—got less than half the money. According to 

Tillinghast’s 2002 data, plaintiffs’ lawyers swallowed 19 percent of the $233 billion. Defense lawyers pocketed an additional 14 percent, and other administrative costs, mainly at insurance firms, accounted for a further 21 percent. The legal-administrative complex thus guzzled fully 54 percent of the 

money in the tort system, or $126 billion. That’s 43 times as 

much as the Federal Government has budgeted this year to 

combat the global AIDS pandemic. No other system for compensating misfortune has such outrageous administrative 

costs. To guard against the possibility of sickness, people buy 

medical insurance. The health insurance industry, justly regarded as a paper-clogged nightmare, has administrative costs 

23

94Sebastian Mallaby, ‘‘The Trouble with Torts,’’ The Washington Post (January 10, 2005) at 

A17. See also U.S. Tort Costs: 2004 Update: Trends and Findings on the Cost of the U.S. Tort 

System, Towers Perrin Tillinghast (2004) (‘‘Looking ahead, we anticipate growth in U.S. tort 

costs to range from 5% to 8% in 2005, with a midpoint of 6.5% We expect a similar increase 

in 2006.’’). 95Stuart Taylor, Jr., ‘‘ ‘False Alarm’ by Stephanie Mencimer [Washington Monthly, Oct. 

2004]—A Response by Stuart Taylor, Jr. [Newsweek, National Journal],’’ available at http://

www.overlawyered.com/pages/taylormencimerwashingtonmonthly.html. 96 Economic Report of the President (February 2004) at 203. 97 Council of Economic Advisers, ‘‘Who Pays for Tort Liability Claims? An Economic Analysis 

of the U.S. Tort Liability System’’ (April 2002) at 1. 98Tillinghast-Towers Perrin, U.S. Tort Costs: 2003 Update: Trends and Findings on the Costs 

of the U.S. Tort System, at 2. 99 Id. at 17. According to an analysis of a report by the National Center for State Courts by 

Newsweek’s Stuart Taylor, Jr., although tort filings declined by 9 percent from 1992 to 2001, 

almost all of that decline came in routine car-crash lawsuits. The report shows that medical 

Continued

of 14 percent. To guard against the danger of disability, we 

have the Social Security program. The overhead for the Social 

Security disability system is around 3 percent. If you want a 

really good number to set against the 54 percent overhead in 

the tort system, just take a look at Medicare. Its overhead is 

about 2 percent. So the tort system’s administrative costs are 

a scandal . . . Measured as a share of GDP, America’s tort system is more than twice as expensive as it was in 1960, twice 

as expensive as the current systems in France or Canada, and 

three times as expensive as the system in Britain. A reasonable goal for the American tort system is to halve it.94

As columnist Stuart Taylor, Jr., has observed:

The most recent NCSC [National Center for State Courts] report states that its (incomplete) data ‘‘indicate a 40 percent increase in tort filings’’ from 1975 to 2002. Census figures indicate that the population increase from 1975 to 2002 was about 

33 percent. So tort filings per capita have not declined by 8 

percent since 1975; they have increased somewhat . . . And although the tort system’s inflation-adjusted direct costs per capita did decline modestly during the 1990’s, they soared by a 

stunning 14.4 percent in 2001 and another 13.3 percent in 

2002, to an estimated 2002 total of $233 billion. The tort system consumes 2.2 percent of GDP in the U.S.—almost four 

times the percentage in 1950; more than triple the 0.6 percent 

in the United Kingdom; and more than double the 0.8 percent 

in Japan, France, and Canada.95

According to the Economic Report of the President, ‘‘The expansive tort system has a considerable impact on the U.S. economy. 

Tort liability leads to lower spending on research and development, 

higher health care costs, and job losses.’’ 96 And according to the 

Council of Economic Advisers, ‘‘the United States tort system is the 

most expensive in the world, more than double the average cost of 

other industrialized nations.’’ 97 The direct costs of medical malpractice claims jumped by an average of 11.9 percent a year from 

1975 to 2002.98

Of the $233 billion total, only 22 cents on the dollar went to compensate alleged victims’ economic losses; almost as much (19 cents) 

went to their lawyers; 24 cents went to payments for inherently 

unquantifiable noneconomic losses, mainly pain and suffering; 14 

cents went to defense costs; and 21 cents went to insurance overhead costs.99

24

malpractice claims increased by 24 percent from 1992–2001 and that total tort filings soared 

by 40 percent from 1975 to 2001, despite a dip during the 1990’s. See Stuart Taylor, Jr. Response to ATLA’s Claims, available at http://www.overlawyered.com/archives/000708.html. Chief 

Justice Rehnquist released new data on January 1, 2004, showing an 8 percent drop in civil 

filings in fiscal year 2003, ‘‘primarily as a result of decreases in personal injury/product liability 

cases involving asbestos (such filings had soared 98 percent the previous year).’’ William H. 

Rehnquist, 36 The Third Branch 1 (January 2004), 2003 Year-End Report on the Federal Judiciary, Chapter III, n.5. See also Economic Report of the President (February 2004), at 204–05 

(‘‘The number of injuries handles by the tort system has increased along with expenditures. The 

number of filings per capita started to rise in the early 1980’s and peaked in the mid-1980’s, 

at least in the 16 states for which data on lawsuit filings are available between 1975 and 2000. 

Much of the decline in filings since 1985 appears to have occurred in California, where medical 

liability reforms included a $250,000 limit for noneconomic damages that was found constitutional in 1985.’’). 100 Judyth Pendell and Paul Hinton, ‘‘Liability Costs for Small Business’’ (U.S. Chamber Insti- tute for Legal Reform, June, 2004) at 1 (‘‘small business’’ defined as ‘‘those with less than $10 

million in annual revenue and at least one employee in addition to the owner’’). 101 Id. 102Opponents of reform often claim that contingency fees—agreements by which personal injury attorneys are allowed a percentage cut from any monetary damages awarded to their client—provide a ‘‘screening mechanism’’ that weeds out frivolous cases. The argument used is 

that personal injury attorneys will not take frivolous cases because doing so would leave them 

with no monetary recovery. The perverse dynamic outlined above, and the fact that filing fees 

are usually no more than a hundred dollars and additional defendants can be named in the lawsuit at no extra charge, makes clear that contingency fee agreements provide no effective screening mechanism at all since personal injury attorneys can simply take advantage of the legal 

costs they impose on defendants simply in virtue of their filing a case to extort money from 

those they sue. 

A recent report by Judyth Pendell, Senior Fellow at the AEIBrookings Joint Center for Regulatory Studies, and Paul Hinton, 

Vice President of NERA Economic Consulting, has concluded that 

‘‘The tort liability price tag for small businesses in America is $88 

billion a year’’ and that ‘‘Small businesses bear 68 percent of business tort liability costs, but take in only 25% of business revenue.’’ 100 The small businesses studied in the report account for 

98% of the total number of businesses with employees in the 

United States.101

Without the serious threat of punishment for filing frivolous lawsuits, innocent individuals and companies will continue to face the 

harsh economic reality that simply paying off frivolous claimants 

through monetary settlements is often cheaper than litigating the 

case. If it costs $10,000 to defend yourself in court against frivolous 

charges, it makes financial sense to settle the case for $9,000, even 

if you weren’t at fault in any way. This perverse dynamic not only 

results in legalized extortion, but it leads to increases in the insurance premiums all individuals and businesses must pay.102

The incentives for personal injury lawyers to file meritless nuisance lawsuits for their settlement value are clear. As leading commentators from Harvard Law School have described the situation 

under current law:

[T]he plaintiff may choose to file a claim at some (presumably 

small) cost. If the defendant does not then settle with the 

plaintiff and does not, at a cost, defend himself, the plaintiff 

will prevail by default judgment . . . Given the model and the 

assumption that each party acts in his financial interest and 

realizes the other will do the same, it is easy to see how nuisance suits can arise. By filing a claim, any plaintiff, and thus 

the plaintiff with a weak case, places the defendant in a position where he will be held liable for the full judgment demanded unless he defends himself. Hence, the defendant 

should be willing to pay a positive amount in settlement to the 

plaintiff with a weak case—despite the defendant’s knowledge 

25

103D. Rosenberg and S. Shavell, ‘‘A Model in which Suits are Brought for their Nuisance 

Value,’’ 5 International Rev. of Law and Economics 3, 3 (June 1985). 104 Id. at 10. 105 Id. at 4. 106 CBS: Evening News (February 18, 2005). 

that were he to defend himself, such a plaintiff would withdraw.103

These commentators point out that defendants will always have 

to suffer extortion through nuisance lawsuits because ‘‘to defeat a 

claim, the defendant will have to engage in actions that are frequently more expensive than the plaintiff’s cost of making the 

claim, for the defendant will have to gather evidence supporting his 

contention that he was not legally responsible for harm done to the 

plaintiff or that no harm was actually done.’’ 104 The same commentators offer the following illustration: 

Suppose, for instance, that the plaintiff files a claim and demands $180 in settlement. The defendant will then reason as 

follows. If he settles, his costs will be $180. If he rejects the 

demand and does not defend himself, he will lose $1000 by default judgment. If he rejects the demand and defends himself, 

the plaintiff will withdraw, but he will have spent $200 to accomplish this. Hence, the defendant’s costs are minimized if he 

accepts the plaintiff’s demand for $180; and the same logic 

shows that he would have accepted any demand up to $200. It 

follows that the plaintiff will find it profitable to file his nuisance claim; indeed, this will be so whenever the cost of filing 

is less than the defendant’s cost of defense.105

Personal injury lawyers can always extort money from innocent 

victims by filing nuisance lawsuits for their settlement value. H.R. 

420 will prevent such extortion by giving victims an opportunity 

they do not have now to get financial compensation for the costs 

they are forced to bear by legal tormentors filing frivolous lawsuits. 

H.R. 420: THE LAWSUIT ABUSE REDUCTION ACT (‘‘LARA’’)

What follows is a discussion of the need for The Lawsuit Abuse 

Reduction Act (‘‘LARA’’), which was introduced by Congressman 

Lamar Smith on June 15, 2004. 

Section 2 of LARA: Attorney Accountability 

As President Bush has stated, ‘‘We have a responsibility to confront frivolous litigation head on.’’ 106 The Lawsuit Abuse Reduction 

Act of 2005 (‘‘LARA’’), H.R. 420, would do just that by providing for 

appropriate sanctions against frivolous lawsuits. 

Federal Rule of Civil Procedure 11 (‘‘Rule 11’’), as originally 

adopted and prior to the adoption of weakening amendments in 

1993, was widely popular among Federal judges, and it served to 

significantly limit lawsuit abuse. 

In 1990, the Judicial Conference’s Advisory Committee on Civil 

Rules undertook a review of Rule 11 and asked the Federal Judicial Center to conduct an empirical study of its operation and impact. The survey of 751 Federal judges found that an overwhelming 

majority of Federal judges believed that Rule 11 did not impede development of the law (95%); the benefits of the rule outweighed any 

additional requirement of judicial time (71.9%); the 1983 version of 

26

107Federal 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. 108While 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. 

§ 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). 109 Id. at 11. 110 146 F.R.D. 401, 507–08 (1993). 111Standing 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). 112 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). 

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%).107

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. 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,108 the Supreme Court approved the proposed 

changes in ministerial fashion and without substantive comment in 

April, 1993. 

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.’’ 109 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.’’ 110

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 11,111 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.112 We need to restore those positive effects once again. 

27

113 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. § 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. 114See John Shapard et. al., Federal Judicial Center, Report of a Survey Concerning Rule 11, 

Federal Rules of Civil Procedure at 5. 115 John Edwards, ‘‘Juries: ‘Democracy in Action,’ ’’ Newsweek (December 15, 2003) at 53. 116 NBC News, ‘‘Meet the Press’’ (May 5, 2002) (transcript). 

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 

11.113

Section 2 of LARA would restore teeth to Rule 11 once again. 

In particular, Section 2 of LARA would:

• Allow monetary sanctions against parties that file frivolous 

lawsuits. Shockingly, the 1993 amendments to Rule 11 prohibited any monetary sanctions against parties who filed 

frivolous lawsuits. Rule 11 currently states that ‘‘[m]onetary 

sanctions may not be awarded against a represented party 

for a violation of subdivision (b)(2),’’ and subdivision (b)(2) requires lawyers to certify that the case they’re bringing is 

‘‘warranted by existing law or by a nonfrivolous argument for 

the extension, modification, or reversal of existing law or the 

establishment of new law.’’ H.R. 420 would require monetary 

penalties against parties who file frivolous lawsuits that 

cause economic harm to the victims of frivolous lawsuits. Indeed, a survey conducted by the Federal Judicial Center in 

June, 1995, consisting of 148 Federal judges and over 1,000 

trial attorneys found that the 1993 amendments that prohibited monetary compensation for victims of frivolous lawsuits 

were a bad idea. In that survey, two-thirds of judges (66%), 

defense attorneys (63%), and other attorneys (66%), and even 

a substantial portion of plaintiff’s attorneys (43%), supported 

restoring Rule 11’s compensatory function once again.114

H.R. 420 would do just that. 

• Reverse the 1993 amendments to Rule 11 that made Rule 11 

sanctions discretionary rather than mandatory. Because 

today, under a weak Rule 11, sanctions in frivolous cases are 

not mandatory, there is little incentive for a victim of a frivolous lawsuit to spend time and money seeking Rule 11 sanctions. Deterrence cannot be achieved without certain punishment. While a court should have discretion to fashion an appropriate sanction based on the circumstances of the violation, litigants making frivolous claims should not be allowed 

the opportunity to escape sanctions entirely. Even Senator 

John Edwards has written in Newsweek that ‘‘[L]awyers who 

bring frivolous cases should face tough, mandatory sanctions.’’ 115 Senator Edwards also said on Meet the Press that 

‘‘I feel very strongly that we need real and enforceable penalties for frivolous lawsuits that may be filed in this country.’’ 116 And Senator Edwards’ campaign issued a statement 

28

117 John Stossel, ‘‘Lawyers and the Little Guy,’’ ABCNews.com (‘‘Give Me a Break’’ commentary on ABC News’ 20/20) (July 23, 2004). 118 H.R. Rep. No. 104–62, at 11–12 (1995).

saying Senator Edwards ‘‘believes that we need a national 

system in place that will weed out the meritless lawsuits 

without taking away patients’ rights.’’ 117 H.R. 420 would do 

exactly that. 

• Reverse 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.’’ 118 H.R. 420 would get rid of the free pass’ lawyers have to file frivolous lawsuits under today’s Rule 11. 

It is important to remember that nothing in H.R. 420, the Lawsuit Abuse Reduction Act, changes the current standard by which 

frivolous lawsuits are judged. That is, under H.R. 420, the standard a judge will use to determine whether a case is frivolous will 

remain as it has been, namely a determination that:

• the 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;

• the 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;

• the 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

• the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on 

a lack of information or belief.

Only cases that meet the criteria outlined above will be subject 

to Rule 11 sanctions under the Lawsuit Abuse Reduction Act. The 

baseless nature of arguments by reform opponents that Rule 11 

somehow stifles growth in the law is belied by the fact that Rule 

11 explicitly 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 or remedies under Federal, State, or 

local civil rights law.’’ The development of civil rights claims is 

thereby explicitly protected in the bill’s Rule 11 provisions. 

29

119See Arkansas Rule 11, Addition to Reporter’s Notes, 1997 Amendment (‘‘The rule has been 

amended by designating the former text as subdivision (a) and by adding new subdivision (b), 

which is based [on] Rule 11(c)(1) of the Federal Rules of Civil Procedure, as amended in 1993 

. . . New subdivision (b) provides that requests for sanctions must be made as a separate motion, rather than simply be included as an additional prayer for relief in another motion. The 

motion for sanctions is not to be filed until at least 21 days, or other such period as the court 

may set, after being served . . .); Minn. R. Civ. P. 11.04 (Minnesota), Advisory Committee Comments, 2000 Amendments (‘‘Rule 11 is amended to conform completely to the Federal rule . . . 

On balance, the Committee believes that the amendment to the Rule to conform to its Federal 

counterpart makes the most sense, given this Committee’s long-standing preference for minimizing the differences between state and Federal practice . . .’’); N.D. R. Civ. P. 1 (North Dakota), Explanatory Note (‘‘As will become readily apparent from a reading of the rules, they are 

the Federal Rules of Civil Procedure adapted, insofar as practicable, to state practice.’’), N.D. 

R. Civ. P. 11, Explanatory Note (‘‘Rule 11 was revised, effective March 1, 1996, in response to 

the 1993 revision of Rule 11.’’); Tenn. R. Civ. P. 11 (Tennessee), Advisory Commission Comment 

to 1995 Amendment (‘‘Amended Rule 11 tracks the current Federal version. Sanctions no longer 

are mandatory, and non-monetary sanctions are encouraged. The 21-day safe harbor provision 

allows otherwise sanctionable papers to be withdrawn, thereby escaping sanctions.’’); Utah R. 

Civ. P. 11 (Utah), Advisory Committee Note (‘‘The 1997 amendments conform state Rule 11 with 

Federal Rule 11.’’); Vt. R. Civ. P. 11 (Vermont), Reporter’s Notes to 1996 Amendment (‘‘Rule 11 

is amended to conform to the 1993 amendment of Federal Rule 11.’’); W. Va. R. Civ. P. 11 (West 

Virginia) (West Virginia’s Rule 11 as amended effective April 1, 1998, is identical to the current 

Federal Rule 11); Wyo. R. Civ. P. 11 (Wyoming) (Wyoming’s Rule 11 is identical to the current 

Federal Rule 11); Restatement (Third) of the Law Governing Lawyers § 170 reporter’s note to 

cmt. c (Tentative Draft No. 8, 1997). State courts also often rely on Federal court decisions when 

interpreting their rules. See, e.g., Gray v. Washington, 612 A.2d 839, 842 (D.C. 1992); Bryson 

v. Sullivan, 412 S.E.2d 327, 332 (1992); Bryant v. Joseph Tree, Inc., 829 P.2d 1099, 1104–05 

(Wash. 1992) (en banc). 120See Alabama Rule of Civil Procedure 11; Alaska Rule of Civil Procedure 11; Arkansas Rule 

of Civil Procedure 11; Cal.C.C.P. § 128.5 (California); C.R.C.P. Rule 11 (Colorado); C.G.S.A. § 52–

190a (Connecticut); De.R.S.Ct. Rule 33 (Delaware); D.C.R.R.C.P. Rule 11 (D.C.); Fl.St. R.C.P. 

Rule 1.150 (Florida); Hi.R.R.C.P. Rule 11 (Hawaii); Il.C.S.S.Ct. Rule 137 (Illinois); In.St. Trial 

P. Rule 11 (Indiana); L.S.A.-C.C.P. Art. 864 (Louisiana); Me.R.R.C.P. Rule 11 (Maine); Md.Rules, 

Rule 1–311 (Maryland); Massachusetts Rules of Civil Procedure (Mass.R.Civ.P.), Rule 11; Minnesota Rules of Civil Procedure, Rule 11.03; Ms.R.R.C.P. Rule 11; Miss. Code Ann. § 11–55–5 

(Mississippi); Missouri Supreme Court Rule 55.03; Ne.R.Civ.Pro.St. § 25–824 (Nebraska); 

N.H.R.Super.Ct. Rule 59 (New Hamphsire); N.J.S.A. 2A:15–59.1 (New Jersey); 

N.M.R.Dist.Ct.R.C.P. Rule 1–011 (New Mexico); N.D.R.R.C.P. Rule 11 (North Dakota); Ohio 

Civ.R. Rule 11; 12 Okl.St.Ann. § 2011 (Oklahoma); Or.R.R.C.P. O.R.C.P. 17 (Oregon); Pa.R.C.P. 

No. 1023.1; Pa.R.C.P. No. 1023.4 (Pennsylvania); R.I.R.R.C.P. Rule 11 (Rhode Island); Rule 11, 

S.C.R.C.P. (South Carolina); Tn.R.R.C.P. Rule 11.03 (Tennessee); Texas Civil Practice & Remedies Code § 10.004; Ut.R.R.C.P. Rule 11 (Utah); Vt.R.R.C.P. Rule 11 (Vermont); Va.R.S.S.Ct. 

Rule 1:4; Va.R.S.Ct. Rule 4:1 (Virginia); Wa.R.Super.Ct.Civ. Cr. 11 (Washington); W.V.R.R.C.P. 

Rule 11 (West Virginia); W.S.A. 802.05 (Wisconsin); Wy.R.R.C.P. Rule 11 (Wyoming). 

In the remaining states various exceptions to the sanctions rule allow frivolous filings to go 

unpunished and undeterred. See Arizona Rules of Civil Procedure, Rule 11(a) (only ‘‘appropriate’’ 

sanction required, not a sanction ‘‘sufficient to deter repetition of such conduct’’ as under Federal Rule 11); Ga.St. § 9–15–14 (Georgia) (standard is that frivolous pleading must include 

claims or defenses no court anywhere could be reasonably expected to accept); Id.R.R.C.P. Rule 

11 (Idaho) (only ‘‘appropriate’’ sanction required, not a sanction ‘‘sufficient to deter repetition 

of such conduct’’); I.C.A. Rule 1.413 (Iowa) (only ‘‘appropriate’’ sanction required, not a sanction 

‘‘sufficient to deter repetition of such conduct’’); Ks.R.R.C.P. Code 60–211 (Kansas) (does not 

apply to abusive discovery requests and only ‘‘appropriate’’ sanction required in other cases, not 

a sanction ‘‘sufficient to deter repetition of such conduct’’); Ky.St.R.C.P. Rule 11 (Kentucky) (only 

‘‘appropriate’’ sanction required, not a sanction ‘‘sufficient to deter repetition of such conduct,’’ 

and state rule postpones ruling on frivolous pleadings until after entry of final judgement); 

Mi.R.R.C.P.M.C.R. 2.114 (Michigan) (bars punitive damages for frivolous pleadings); Mt.R.R.C.P. 

Rule 11 (Montana) (only ‘‘appropriate’’ sanction required, not a sanction ‘‘sufficient to deter repetition of such conduct’’); Nv.St.R.C.P. Rule 11 (Nevada) (only ‘‘appropriate’’ sanction required, 

not a sanction ‘‘sufficient to deter repetition of such conduct’’); N.Y.C.P.L.R. § 8303–a (New York) 

(sanctions limited to civil personal injury and property damage claims and subject to a $10,000 

Continued

Section 3 of LARA: Applying Rules Against Frivolous Lawsuits to 

State Cases Affecting Interstate Commerce 

Section 3 of LARA would extend Rule 11’s provisions preventing 

frivolous lawsuits to state cases in which the state court determines, based on an analysis of the relief requested, that the case 

would affect interstate commerce. (For the most part, states’ rules 

of civil procedure are modeled after Federal Rule 11,119 and sanctions for frivolous filings are not mandatory in 38 states and the 

District of Columbia, just as they are not mandatory under the 

Federal Rule 11.120) 

30

limit); N.C.St.R.C.P. § 1A–1, Rule 11 (North Carolina) (only ‘‘appropriate’’ sanction required, not 

a sanction ‘‘sufficient to deter repetition of such conduct’’); S.D.C.L. § 15–6–11(b) (South Dakota) 

(only ‘‘appropriate’’ sanction required, not a sanction ‘‘sufficient to deter repetition of such conduct’’). 121Kevin Stehr, ‘‘Spot the Litigation Trends,’’ Legal Times (October 7, 2004). 122The Federalist Papers, Federalist No. 22 (Madison) at 267–68 (Clinton Rossiter ed., 1961). 123 James Madison, according to his own notes of what he argued at the Constitutional Convention (he referred to himself in the third person), made clear that Congress must have the 

power to regulate commerce in this manner: ‘‘Whether the States are now restrained from laying 

tonnage duties depends on the extent of the power ‘to regulate commerce.’ . . . He was more 

& more convinced that the regulation of Commerce was in its nature indivisible and ought to 

be wholly under one authority.’’ Debates on the Adoption of the Federal Constitution in the Convention Held at Philadelphia in 1787 (Jonathan Elliot, ed. 1845) (as reported by James Madison, 

notes of May 31, 1787) at 548. 

Congress—under its constitutional authority in Article I, Section 

8 to regulate interstate commerce—has a responsibility to require 

state judges to conduct their own analysis, upon motion of parties, 

to determine whether, based on the relief requested (including potentially huge monetary damage requests) the case is such that it 

would affect interstate commerce by threatening to bankrupt a 

multi-state industry, by risking the loss of out-of-state jobs, or by 

otherwise incurring costs to the interstate economy. Where a case 

filed in state court substantially affects interstate commerce, as determined by a state judge, it is entirely appropriate that national 

attorney accountability rules should govern. Liability litigation, 

under existing rules, presents a serious threat to state autonomy. 

Manufacturers have no practical way of keeping their products out 

of certain states. Personal injury lawyers, on the other hand, get 

to choose their own forum and law. As a result, the jurisdictions 

most friendly to personal injury lawyers can unfairly impose the 

costs of their rules on the entire country and redistribute income 

from out-of-state parties to in-state parties. As one commentator 

has stated, ‘‘Products liability cases have surged since 2001 to an 

anticipated 25,700 cases in 2004 and now make up nearly 10 percent of all Federal civil filings. In particular, the estimated 24,100 

cases dealing with personal injuries continues to grow and now account for 94 percent of all products liability cases.’’ 121

H.R. 420’s application of Rule 11 to state cases that affect interstate commerce is entirely consistent with federalism principles. 

James Madison, in Federalist No. 42, described the purpose of the 

Commerce Clause as follows: ‘‘A very material object of this power 

was the relief of the States which import and export through other 

States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and 

State, it must be foreseen that ways would be found out to load the 

articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter 

and the consumers of the former.’’ 122 That is, Madison foresaw the 

problem in which products or services would be made to cost more 

to consumers in one state because other states those products and 

services passed through would levy duties on them. That is precisely the problem today: some states, by allowing frivolous lawsuits to be brought for unlimited damages in cases involving products or services that touch their jurisdictions are raising the costs 

of providing those products and services to out-of-state customers, 

resulting in higher prices and lost jobs across multiple states or nationwide. It is the duty of Congress to prevent such unfairness.123

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124See Kenneth Thomas, CRS Report for Congress, Federalism, State Sovereignty and the 

Constitution: Basis and Limits of Congressional Power (September 5, 2003) at 7 (stating that 

Congress can regulate ‘‘economic activities which ‘affect’ commerce’’). 125See Cass Sunstein and Reid Hastie, Punitve Damages: How Juries Decide (University of 

Chicago Press 2002) at 62. 126Philip K. Howard, The Collapse of the Common Good: How America’s Lawsuit Culture Undermines Our Freedom (2001) at 59. 127 Chad Halcom, ‘‘Woman Files $500,000 Lawsuit for ‘Ruined’ Fingernail,’’ The Macomb Daily

(February 5, 2003). 

ample James Madison used when describing the need for the Constitution’s Commerce Clause. 

Congress unquestionably has the authority to regulate economic 

activities that ‘‘affect’’ interstate commerce,124 and such a provision 

would have state judges themselves determine whether the case before them affected interstate commerce and national interests that 

would trigger a Federal rule against frivolous lawsuits. 

Further, requiring state courts to determine whether a case substantially affects interstate commerce based on an assessment of 

the costs to the interstate economy, including the loss of jobs, ‘‘were 

the relief requested granted’’ is likely to deter trial lawyers from 

grossly inflating the size of damages requested (which are designed 

to pressure unfair settlements) because doing so will increase the 

chances that their case will be found to affect interstate commerce, 

thus triggering the application of Federal Rule 11’s provisions preventing frivolous lawsuits. This provision takes personal injury attorneys requesting vast damages at their word regarding what 

damages might be appropriate, but then holds them to account for 

those requested damages by making them subject to an analysis of 

the interstate economic costs were such damages to be awarded. 

University of Chicago law professor Cass Sunstein, along with 

Nobel Prize winner Daniel Kahneman, have compiled research 

from studies involving more than 8,000 jury-eligible citizens in Illinois, Colorado, Texas, Arizona, and Nevada that shows that juries 

give higher awards when personal injury attorneys simply demand 

higher amounts.125 As Philip Howard has written, ‘‘A great thing 

about bringing lawsuits in modern America is that it’s so easy to 

threaten the adversary’s entire livelihood. One stroke of a finger on 

the lawyer’s word processor, and damages go from $100,000 to 

$1,000,000. Three more keystrokes, and we’re suing for a billion 

dollars. This is fun . . . Damages claimed today are completely arbitrary. Just stick your finger in the air and threaten someone with 

any number that comes to mind.’’ 126 Section 3 of LARA will deter 

personal injury lawyers from making ridiculous claims for astronomical damages. 

How ridiculous can damages claims get? In Michigan, a woman 

who had a $5 fingernail repair job done at a local salon filed a lawsuit for $500,000 or more in damages, claiming a beautician nicked 

her finger with cuticle scissors. The woman’s lawyer said ‘‘The 

$500,000 figure isn’t necessarily what we’ll get [in court]. It’s to put 

some attention to the case, and to how important we consider 

it.’’ 127

The following exchange between a 60 Minutes correspondent and 

Caesar Barber, who sued various restaurants for damages related 

to his overconsumption of their products, also illustrates the frivolous rationales behind gigantic damages claims:

32

128 ‘‘Food Fight,’’ CBS News ‘‘60 Minutes’’ (Australia) (September 15, 2002) (transcript). 129Such a provision will not result in state cases being removed to Federal court, as a Federal 

standard does not confer Federal question jurisdiction in the absence of Congressional creation 

of a Federal cause of action. Under Supreme Court precedent, Congress has given the lower 

courts jurisdiction to hear, originally or by removal from a state court, only those cases in which 

a well-pleaded complaint establishes either that Federal law creates the cause of action or that 

the plaintiff’s right to relief necessarily depends on resolution of a substantial question of Federal law. Federal question jurisdiction exists only if plaintiffs’ right to relief depends necessarily 

on a substantial question of Federal law. See Merrell Dow Pharmaceuticals Inc. v. Thompson,

478 U.S. 804, 807 n.2 (1986); 28 U.S.C. § 1331. 

CAESAR BARBER: I’m saying that McDonald’s affected my 

health. Yes, I am saying that.

RICHARD CARLETON (CBS News, 60 Minutes): So what do you 

want in return?

CAESAR BARBER: I want compensation for pain and suffering.

RICHARD CARLETON But how much money do you want?

CAESAR BARBER: I don’t know . . . maybe $1 million. That’s 

not a lot of money now.128

Section 3 of LARA is not likely to be abused for several reasons. 

Any party that fears it may run afoul of Rule 11 sanctions for filing 

frivolous pleadings will not move the court to determine if the case 

substantially affects interstate commerce. Further, any party that 

does not fear sanctions under Rule 11 will only request that a state 

court rule on whether the case substantially affects interstate commerce in rare circumstances. This is because, first, no one is required under LARA to make such a request to a state court if they 

do not want to, and second, because the burden will be on any 

party who decides to move for a determination that the case ‘‘substantially affects interstate commerce’’ to show just that, and that 

will not be an easy case to make, especially in smaller cases. The 

end result will be that motions will be made under Section 3 of 

LARA only in those cases in which large amounts of money are at 

stake with clear interstate effects and only by those parties who 

have very strong reasons to believe the court system is being 

abused by a party filing frivolous pleadings. In such cases, it is entirely appropriate that a Federal rule sanctioning lawsuit abuse be 

available. 

Section 3 of LARA would serve national economic interests by focusing attention on the jobs costs of frivolous litigation. The provision would provide that the interstate economy, including workers 

and jobs, when potentially negatively affected, should be protected 

by a rule prohibiting frivolous claims. The provision provides that 

if your lawsuit in state court asks for damages that will cost jobs 

in other states, and your lawsuit is determined to be frivolous, 

you’ll have to pay for the costs of that frivolous lawsuit.129

Further, LARA expressly provides that ‘‘Nothing in section 3 . . . 

shall be construed to bar or impede the assertion or development 

of new claims or remedies under Federal, State, or local civil rights 

law.’’ The development of civil rights claims is thereby explicitly 

protected in the bill’s provisions governing the application of Rule 

11 in cases with substantial interstate effects. 

Section 4 of LARA: Preventing Forum-Shopping for Favorablyminded Judges 

One of the nation’s wealthiest personal injury attorneys is Richard ‘‘Dickie’’ Scruggs, who sued asbestos companies in the 1980s 

33

130Tom Wilemon, ‘‘Social Ties Bind Political Elite,’’ The Biloxi Sun Herald (October 13, 2002) 

at 10. 131 Richard ‘‘Dickie’’ Scruggs, ‘‘Asbestos for Lunch Panel Discussion’’ at the Prudential Securities Financial Research and Regulatory Conference (May 9, 2002) (quoted in Industry Commentary (Prudential Securities, Inc., N.Y., New York) (June 11, 2002) at 5). 132See generally, American Tort Reform Association, ‘‘Bringing Justice to Judicial Hellholes’’ 

(2003). 133 Editorial, ‘‘Getting Politics Out of the Courts,’’ Business Week (September 27, 2004) at 140 

(‘‘In a poll of 894 elected judges conducted in 2001and 2002 by a nonpartisan watchdog group, 

46% said donations influenced their judicial decisions.’’). 134Letter from Stratton Taylor to ‘‘ATLA Colleague’’ (undated) (on file with the House Committee on the Judiciary). 

and has made about $844 million from lawsuits against tobacco 

companies.130 Here is what Scruggs said about what he calls 

‘‘magic jurisdictions:’’

‘‘What I call the ‘magic jurisdiction,’. . . [is] where the judiciary is elected with verdict money. The trial lawyers have established relationships with the judges that are elected; they’re 

State Court judges; they’re popul[ists]. They’ve got large populations of voters who are in on the deal, they’re getting their 

[piece] in many cases. And so, it’s a political force in their jurisdiction, and it’s almost impossible to get a fair trial if you’re 

a defendant in some of these places. The plaintiff lawyer walks 

in there and writes the number on the blackboard, and the 

first juror meets the last one coming out the door with that 

amount of money . . . Any lawyer fresh out of law school can 

walk in there and win the case, so it doesn’t matter what the 

evidence or law is.’’ 131

Personal injury lawyers often file cases in places that have no 

connection to the case. They file their cases where court procedures 

and the law are systematically applied in an unfair manner against 

defendants, including in jurisdictions with reputations for high 

damage awards and lower standards for the admissibility of expert 

testimony.132 A recent poll found that 46% of judges said donations 

influenced their judicial decisions.133

After Texas enacted legislation restricting forum shopping there, 

personal injury lawyers began eying its neighbor, Oklahoma, as the 

next best place to bring their lawsuits. The smoking gun on this 

issue is an undated ‘‘Dear ATLA Colleague’’ letter sent by Oklahoma attorney Stratton Taylor to the Association of Trial Lawyers 

of America. Mr. Taylor is also President Pro Tempore Emeritus of 

the Oklahoma State Senate, and a current member of the state legislature. In his letter, Senator Taylor leads, ‘‘With recent events 

that have occurred in Texas, you may be looking to file cases in 

Oklahoma.’’ 134 Only Congress can protect all Americans from unfair forum shopping no matter where it occurs. 

West Virginia State Supreme Court Justice Richard Neely candidly described one of the reasons behind this phenomenon in a 

book: ‘‘As long as I am allowed to redistribute wealth from out-ofstate companies to injured in-state plaintiffs, I shall continue to do 

so. Not only is my sleep enhanced when I give someone else’s 

money away, but so is my job security, because the in-state plaintiffs, their families, and their friends will reelect me . . . It should 

be obvious that the instate local plaintiff, his witnesses and his 

34

135 Richard Neely, The Product Liability Mess: How Business Can Be Rescued From The Politics of State Courts 4, 62 (1998). 136These anti-forum shopping provisions would not do anything to preclude lawsuits against 

foreign companies that are not already precluded by the Due Process Clause of the Constitution 

under current law. On October 8, 2004, Rep. Lamar Smith, in the Congressional Record, made 

the following statement dispelling false allegations to the contrary regarding a version of this 

legislation that passed the House during the 108th Congress in the form of H.R. 4571:

Mr. Speaker, September 14 2004, the House debated and passed H.R. 4571, the Lawsuit 

Abuse Reduction Act, a bill I authored to help prevent frivolous lawsuits and the notorious practice of forum shopping from ruining America’s small businesses. In the midst 

of floor debate on H.R. 4571, the Congressional Research Service issued a self-described 

‘‘rush memorandum’’ dated September 14, 2004, to the minority staff of the House Judiciary Committee, which stated ‘‘H.R. 4571 does provide an option for filing a lawsuit 

where a business has a principal place of business . . . However, if a defendant’s principal place of business was not in the United States, then this option could not be exercised in a United States court. Consequently, it would appear that in certain circumstances, a United States citizen or resident injured in this country would not have 

a judicial forum in the United States in which to seek relief.’’ This statement left the 

misleading impression that H.R. 4571, were it to become law, would somehow make it 

more difficult to bring some personal injury lawsuits in the United States. Not surprisingly, the misleading impression left by the CRS memorandum was exploited by those 

on the opposite side of the aisle in the midst of debate on H.R. 4571, and later by the 

press. For example, a report in CongressDaily/A.M. describing debate on H.R. 4571 stated ‘‘Many Democrats . . . cited a Congressional Research Service memorandum advising lawmakers that the bill could prevent U.S. citizens from having their cases heard 

in a U.S. court if the defendant’s main place of business is located in a foreign country. 

Rep. Jay Inslee, D-Wash., sarcastically called the legislation ‘the Foreign Corporation 

Protection Act.‘ ’’ Those statements are deeply misleading, and here’s why. In fact, nothing in H.R. 4571 would prevent cases from being brought against foreign defendants 

that are not already precluded under current law. I wrote to CRS requesting a clarification of current law, and I received the following response: ‘‘Under the Due Process 

Clause, a foreign corporation that had its principal place of business overseas, engaged 

in little or no economic activity in the United States, and did not otherwise subject itself 

to the jurisdiction of the United States, could not be subject to the jurisdiction of the 

various state courts. If such a corporation engaged in a tortious activity such as manufacturing a defective product, then a plaintiff would be unable to bring an action in a 

state court forum for such tortious activity, even if the product caused an injury in the 

United States. In such a case, an injured party would be required to seek compensation 

in the courts of another country.’’ This makes clear that while some Members on the 

other side of the aisle claimed that H.R. 4571, if enacted, would preclude certain lawsuits from being brought that could be brought under current law, the Due Process 

Clause of the Constitution has precluded under current law, and would continue to preclude under H.R. 4571, some plaintiffs from bringing an action in a state court forum 

against a foreign defendant for tortious activity in certain circumstances, even if the 

product caused an injury in the United States. The bottom line is that H.R. 4571 would 

do nothing to change current law in that regard. Indeed, no legislation could change 

current law in that regard since the constitutional requirements of the Due Process 

Clause cannot be changed by legislation. In fact, the venue statute of the gentleman 

from Washington Mr. Inslee’s own state provides that ‘‘An action . . . for the recovery 

of damages for injuries to the person or for injury to personal property may be brought, 

at the plaintiffs option, either in the district in which the cause of action, or some part 

thereof, arose, or in the district in which the defendant, or, if there be more than one 

defendant, where some one of the defendants, resides at the time the complaint is filed.’’ 

That venue standard is for all practical purposes the same as that provided in H.R. 

4571. H.R. 4571 provides that a personal injury lawsuit could be brought in any state 

where the person bringing the claim resides at the time of filing or resided at the time 

of the alleged injury, any state where the alleged injury or circumstances giving rise 

to the personal injury claim allegedly occurred, or where the defendant’s principal place 

of business is located. Insofar as opponents of H.R. 4571 have a complaint regarding 

the inability to bring certain lawsuits against foreign corporations in the United States, 

their complaint is with the Constitution’s Due Process Clause, and not with H.R. 4571, 

which simply reflects the same standard that prevails among the state’s venue laws, 

subject of course to the Due Process Clause of the Constitution. If a foreign corporation’s contacts with the United States are so minimal as to make it unconstitutional 

under the Constitution’s Due Process Clause to subject them to suit in the United 

States regardless of whether the venue criteria of H.R. 4571—or of any State venue 

friends, can all vote for the judge, while the out-of-state defendants 

can’t even be relied upon to send a campaign donation.’’ 135

While businesses are hauled into court all over the country, local 

personal injury lawyers work with the same judges day after day, 

contribute to their election campaigns, and routinely socialize with 

them. 

Section 4 of LARA will help ensure that lawsuits have a logical 

connection with the jurisdiction in which they are heard.136 Section 

35

statute—are met, there is nothing a legislature can do by statute to remedy that situation. To help set the record straight, I am submitting for the record both my letter to 

CRS requesting a clarification, and the CRS memorandum I received in response.

150 Cong. Rec. E1839–01 (October 6, 2004) (attaching September 16, 2004 letter from 

Rep. Lamar Smith to Kenneth R. Thomas, Legislative Attorney, American Law Division, Congressional Research Service, and Mr. Thomas’ letter in response of October 4, 

2004). 137See Kenneth Thomas, CRS Report for Congress, Federalism, State Sovereignty and the 

Constitution: Basis and Limits of Congressional Power (September 5, 2003) at 7 (stating that 

Congress can regulate ‘‘economic activities which ‘affect’ commerce’’). 138The Federalist Papers, Federalist No. 22 (Madison) at 267–68 (Clinton Rossiter ed., 1961). 

4, by requiring plaintiffs to bring their cases where they live or 

where they were injured, or where the defendant’s principal place 

of business is located, would help stop forum-shopping. It would 

also allow a court to refuse to hear a case if there is a more appropriate forum, including a different state, in which the case could 

and should be heard. By strengthening the rules governing venue 

and forum non conveniens, courts can help ensure that cases are 

heard in a court that has a logical connection to the claim, rather 

than a court that is expected to produce the highest award for the 

plaintiff.

Section 4 of LARA would also prevent situations in which floods 

of cases by non-residents interfere with in-state residents’ access to 

timely justice. 

Congress unquestionably has the authority to regulate economic 

activities that ‘‘affect’’ interstate commerce,137 and forum shopping 

clearly has a substantial affect on interstate commerce by allowing 

opportunities for personal injury lawyers to exploit lax venue and 

forum non conveniens rules to pick and choose those courts with 

a reputation for consistently awarding near-limitless awards. Section 4 of the Lawsuit Abuse Reduction Act clearly applies to economic activities, as the definition of ‘‘personal injury claim’’ is a 

claim ‘‘to recover’’ for a person’s personal injury. Such a provision 

is entirely consistent with federalism principles. James Madison, in 

Federalist No. 42, described the purpose of the Commerce Clause 

as follows: ‘‘A very material object of this power was the relief of 

the States which import and export through other States, from the 

improper contributions levied on them by the latter. Were these at 

liberty to regulate the trade between State and State, it must be 

foreseen that ways would be found out to load the articles of import 

and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former.’’ 138 That is, Madison foresaw the problem in 

which products or services would be made to cost more to consumers in one state because other states allowed the companies 

that manufactured those products or supplied those services to be 

sued in those other states even when the facts and circumstances 

of the lawsuit had no connection to those states. When personal injury attorneys are allowed to bring cases in certain states and 

county courts that have a reputation for being most favorable to 

granting the most lucrative awards, the costs imposed on companies by such awards must be passed on to consumers nationwide. 

That is precisely the problem today: some states, by allowing lawsuits to be brought in local jurisdictions even when the facts and 

circumstances of the case have no connection to such local jurisdictions, are raising the costs of providing products and services to 

out-of-state customers, resulting in higher prices and lost jobs to 

36

139 James Madison, according to his own notes of what he argued at the Constitutional Convention (he referred to himself in the third person), made clear that Congress must have the 

power to regulate commerce in this manner: ‘‘Whether the States are now restrained from laying 

tonnage duties depends on the extent of the power ‘to regulate commerce.’ . . . He was more 

& more convinced that the regulation of Commerce was in its nature indivisible and ought to 

be wholly under one authority.’’ Debates on the Adoption of the Federal Constitution in the Convention Held at Philadelphia in 1787 (Jonathan Elliot, ed. 1845) (as reported by James Madison, 

notes of May 31, 1787) at 548. 140 Editorial, ‘‘A Madison County Jackpot,’’ The Chicago Tribune (April 2, 2003), at 22; Editorial, ‘‘The Judges of Madison County,’’ The Chicago Tribune (September 6, 2002) at 22. 141 Editorial, ‘‘The Judges of Madison County,’’ The Chicago Tribune (September 6, 2002) at 

22. 142David Bailey (Reuters), ‘‘Illinois County Court a Corporate ‘Hellhole,’ ’’ (October 5, 2003). 143 Id. 144Marin Kasindorf, ‘‘Robin Hood is Alive in Court, Say Those Seeking Lawsuit Limit,’’ USA 

Today (March 8, 2004) at A1 (emphasis added). 145See First National Bank v. Guerine, 764 N.E.2d 54, 64–66 (Ill. 2002) (appendix).

people in multiple states. It is the duty of Congress to prevent such 

unfairness.139

Jurisdictions with ‘‘magic jurisdiction’’ reputations include the 

following:

• Madison County, Illinois. Twice, the Chicago Tribune

crowned Madison County a ‘‘jackpot jurisdiction.’’ 140 As the 

newspaper recognized, ‘‘[t]he number of suits has shot 

through the roof, and local newspapers sport advertisements 

looking for the local plaintiff who can provide a convenient 

excuse to file in Edwardsville . . . [T]he Madison County 

phenomenon also provides a dramatic illustration of the potential for poor public policy when things get carried 

away.’’ 141 A retired Madison County Judge has said ‘‘Eventually, because of the money created through the plaintiffs 

bar and the power that money brings, I believe there became 

an idea that the system was beholden to the plaintiffs 

bar.’’ 142 Retired Madison County judge John DeLaurenti has 

said that it took Madison County four decades to earn its 

reputation, ‘‘but now, it is so big with so much money and 

potential influence on people’s careers that is has become 

very difficult to limit it in any way.’’ 143 That same judge has 

also said ‘‘I don’t know if it’s a Judicial Hellhole, but just figure it out. When people come from hither and thither to file 

these cases, there’s gotta be an inducement, doesn’t there? 

They’re not coming to see beautiful Madison County.’’ 144

Madison County judges are infamous for their willingness to 

take cases from across the country, with little or no local 

connection, and hand down decisions that regulate entire industries nationwide. Madison County’s over-eagerness to 

hear cases from other parts of the state has even been criticized by the Supreme Court of Illinois. Both the Madison 

County Circuit Court and the Fifth District Court of Appeals 

have been reversed many times in cases in which they denied defendants’ motions to transfer venue. In January 2002, 

the Supreme Court of Illinois counted fourteen cases since 

1995 in which it ordered the Madison County Circuit Court 

to transfer venue. In another ten cases, the Supreme Court 

ordered the Fifth District to consider vacating its denial of 

a defendant’s forum non conveniens motion.145

Asbestos cases, in particular, find their way to Madison 

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146See ‘‘Asbestos Case Leads to $5.1 Million, Sanction,’’ National Law Journal (December 2, 

2002) at A4. 147See Griffin B. Bell, ‘‘Asbestos & the Sleeping Constitution,’’ 31 Pepp.L. Rev. 1, 8 (2003). 148 Editorial, ‘‘Lawsuit Heaven,’’ St. Louis Post-Dispatch (January 13, 2003) at B6. 149Greg Burns, ‘‘Lawyers Bring an International Class Action to Rural Madison County . . . 

Why? Because It’s the Lawsuit Capital,’’ The Chicago Tribune (March 8, 2004) at 1; Christi Parsons, ‘‘Downstate County is a ‘Plaintiff’s Paradise,’ ’’ The Chicago Tribune (June 17, 2002) at 1; 

Amity Shlaes, ‘‘Commentary, Big Judgments, Bigger Mistakes: Legal Windfalls in Madison 

County Demonstrate the Need to Limit Forum Shopping of Class Action Lawsuits,’’ The Chicago 

Tribune (June 29, 2004) at 15; Editorial, ‘‘A Madison County Jackpot,’’ The Chicago Tribune

(April 2, 2003) at 22. 150David Pasztor, ‘‘As Quinn Laid to Rest, Mourners Contemplate Irony of His Slaying,’’ The 

Austin American-Statesman (June 16, 2002) at A1. 151See Andrea Wright, ‘‘Beaumont, Texas, Area Loses Doctors to High Cost of Malpractice Insurance,’’ Knight-Ridder Tribune Business News (November 6, 2001). 152Transcript, ‘‘Jackpot Justice,’’ 60 Minutes (November 25, 2002). 153See Robert Pear, ‘‘Mississippi Gaining as Lawsuit Mecca,’’ The New York Times (August 

20, 2001) at A1 (‘‘Jefferson County, with 9,740 residents, is a small county, but litigation there 

is a big business. An affidavit . . . said that more than 21,000 people were plaintiffs in Jefferson 

County from 1995 to 2000.’’). 154See Ken Ellingwood, ‘‘Mississippi Curbs Big Jury Awards Caps on Liability Verdicts Are 

Seen as Pro-Business: Critics Say Companies Will be Less Accountable,’’ The Los Angeles Times

(December 4, 2002) at A1. 155See Robert Pear, ‘‘Mississippi Gaining as Lawsuit Mecca,’’ The New York Times (August 

20, 2001) at A1. 156See Tim Lemke, ‘‘Best Place to Sue?’’ The Washington Times (June 30, 2002) at A1. 

ty (population 259,000) now hosts more mesothelioma claims 

than New York City (population 8,000,000), and a nine 

member law firm with one office in Madison County claims 

to handle more mesothelioma cases than any firm in the 

country.146 This is because, according to former Carter Administration U.S. Attorney General Griffin Bell, its judges 

accept cases from throughout the state and place them on 

extraordinarily expedited schedules that do not provide defendants with adequate time to prepare for trial.147

Madison County’s newspapers have called Madison County 

‘‘lawyer heaven,’’ 148 a ‘‘jackpot jurisdiction,’’ a ‘‘hotbed of 

megabucks litigation,’’ a ‘‘local slot machine,’’ and ‘‘the most 

magic of all’’ magic jurisdictions.149

• Jefferson County (Beaumont), Texas. The Austin AmericanStatesman has recognized that ‘‘[o]ver the past few decades, 

personal injury lawyers have claimed this territory as their 

own, establishing Beaumont, Port Arthur, Orange, and nearby towns as an enclave where . . . juries often pass down 

sizable judgments.’’ 150 As a result, huge verdicts against 

doctors have caused medical professional liability insurance 

rates to soar, sending Jefferson County neurosurgeons, obstetricians, and other doctors fleeing the area.151

• 22nd Judicial Circuit (Copiah, Claiborne and Jefferson 

Counties), Mississippi. Fayette, the county seat of Jefferson 

County, Mississippi, was dubbed the ‘‘jackpot justice capital 

of America’’ by CBS’s 60 Minutes program.152 In this small, 

rural county, the number of plaintiffs far exceeds the number of residents.153 The national media, including the Los 

Angeles Times,154 The New York Times,155 and the Washington Times,156 have all recognized the Jefferson County 

phenomenon. In November 2002, the CBS News program, 

‘‘60 Minutes,’’ devoted a program to explaining why Mississippi’s 22nd Judicial Circuit, which includes Copiah, Claiborne, and Jefferson County is a favorite place for plaintiffs’ 

lawyers to flock from all over the Nation. After the airing of 

38

157See ‘‘Judge Dismisses Two Mississippi Defendants from ‘60 Minutes’ Defamation Lawsuit,’’ 

Mercury News (July 3, 2003). The lawsuit was filed by two former jurors who were offended by 

the program. See id. 158See Jerry Mitchell, ‘‘Jefferson County Ground Zero for Cases,’’ The Clarion-Ledger (June 

17, 2001) at A1. 159Tom Wilemon, ‘‘Judicial Probe Looking at Big Jury Awards,’’ Sun Herald (July 12, 2003). 160See Betty Liu, ‘‘The Poor Southern County That’s Big on Lawsuits,’’ Financial Times (August 20, 2001). 161See Tom Wilemon, ‘‘Judicial Probe Looking at Big Jury Awards,’’ Sun Herald (July 12, 

2003); Tom Wilemon and Beth Musgrave, ‘‘Indictments Cast Doubt on Trial Lawyers, Mississippi Justice System,’’ Sun Herald (July 26, 2003). 162See West Virginia Chamber of Commerce, Perryman Study, ‘‘Negative Impact On The Current Civil Justice System On Economic Activity In West Virginia’’ (February 2003). 163 Court Watch, West Virginia Chamber of Commerce (July 2003). 164 Josh Goldstein, ‘‘Malpractice Lawsuits Thrive in City; Still, Few are Filed, and Few are 

Decided by a Jury,’’ Philadelphia Inquirer (December 10, 2001) at A1. 

the 60 Minutes program, Media General Operations, which 

owns the local CBS-affiliate, the 60 Minutes producers, and 

several individuals who commented in the program, found 

themselves named as defendants in a $6.4 billion defamation 

lawsuit in Jefferson County.157

One small business, Bankston Drug Store, has been called 

‘‘ground zero’’ in the pharmaceutical litigation business because, as the only pharmacy in Jefferson County, it has been 

named in hundreds of lawsuits alleging the defective manufacture of consumer prescription drugs in order to bring a 

large, out-of-state pharmaceutical company into local 

court.158 The costs are real, and staggering. As Ms. 

Bankston explained, ‘‘I’ve searched record after record and 

made copy after copy for use against me . . . I’ve had to hire 

personnel to watch the store while I was dragged into court 

on numerous occasions to testify. I have endured the whispers and questions of my customers and neighbors wondering what we did to end up in court so often. And I have 

spent many sleepless nights wondering if my business would 

survive the tidal wave of lawsuits cresting over it.’’ 159

In recent years, the 22nd Judicial Circuit has handed out 

numerous awards of $100 million or more.160

And in June 2003, it was reported that the Federal Bureau 

of Investigation was probing possible judicial corruption in 

South Mississippi as well as the multimillion-dollar awards 

in Jefferson County.161

• West Virginia, particularly Kanawha County. Litigation activity has increased 53.6% more rapidly in West Virginia 

than in the nation as a whole over the last 10 years.162 Current West Virginia Chief Justice Larry Starcher has been 

quoted as saying, ‘‘I have a hard time not being lenient, as 

a jurist, on behalf of those people.’’ 163

• Philadelphia, Pennsylvania (Court of Common Pleas). The 

impact of extraordinary awards is most noticed in Pennsylvania in the healthcare industry, where, according to The 

Philadelphia Inquirer, ‘‘hitting the ‘malpractice lottery’ is a 

made-for-Philadelphia phrase.’’ 164 According to a 2003 study 

by the Pew Charitable Trusts, Pennsylvania is in one of the 

worst situations in the nation regarding the provision of affordable professional medical liability insurance for physiVerDate jul 14 2003 20:49 Jun 14, 2005 Jkt 39006 PO 00000 Frm 000038 Fmt 06659 Sfmt 06601 E:\HR\OC\HR123.XXX HR123
39

165See Randall R. Bovbjerg and Anna Bartow, ‘‘Understanding Pennsylvania’s Medical Malpractice Crisis: Facts About Liability Insurance, The Legal System, and Health Care in Pennsylvania’’ (Pew Charitable Trusts 2003). 166See id. at 32. 167See Roland Klose, ‘‘Venue’s on the Menu For Lawyers Trying to Take a Bite of Doe Run, 

St. Louis is the Place to Be,’’ Riverfront Times (April 10, 2002); Tim Bryant, ‘‘Question of Merging City, County Jury Pools is Revived; State Supreme Court Judge Suggested Move Last Year,’’ 

St. Louis Post-Dispatch (November 27, 2002) at B1 (discussing the suggestion by Missouri Supreme Court Judge Michael Wolff of joining the juror pools of St. Louis City and County because 

plaintiffs’ lawyers are known for trying to get their personal injury cases into St. Louis City 

Circuit Court for a more sympathetic jury, to make the issue of venue less important). 168 Id. 169See State ex rel. Linthicum, 57 S.W.3d 855, 859 (Mo. 2001) (Wolff, J., concurring in part, 

dissenting in part). 170Greg Jefferson, ‘‘Eagle Pass Remains Known as Plaintiff’s Attorney Paradise,’’ The San Antonio Express News (November 2, 2003). 171See Michael Freedman, ‘‘Home Court Advantage,’’ Forbes (June 10, 2002) at 74. 172See Editorial, ‘‘Wide-open Venue Law Undermines Confidence in Court,’’ The State (April 

10, 2003) at A16. 

cians and hospitals.165 The report shows that, in Philadelphia, plaintiffs are twice as likely to win jury trials as in the 

rest of the nation and a substantial percentage of cases result in verdicts greater than $1 million.166

• City of St. Louis, Missouri. St. Louis City Circuit Court is reportedly ‘‘the place to be’’ if you are a plaintiff.167 Plaintiffs 

move cases to St. Louis City because ‘‘St. Louis City is a better venue,’’ according to one St. Louis plaintiffs’ attorney.168

Even Missouri Supreme Court Judge Michael Wolff has recognized that ‘‘[t]he preponderance of anecdotal evidence is 

that jurors in the city of St. Louis are far more favorably disposed toward injured plaintiffs’ claims than are their counterparts in suburban St. Louis County or in most other counties in the state.’’ 169

• Eagle Pass, Texas. According to the San Antonio ExpressNews, ‘‘L. Wayne Scott, a professor at St. Mary’s University 

Law School . . . who has mediated civil cases in Eagle Pass, 

estimates defendants there are roughly 10 times more likely 

to lose than in conservative Dallas and two or three times 

more likely to fall than in San Antonio . . . Indeed, the prospect of facing a jury in Eagle Pass—where Mayor Joaquin L. 

Rodriguez also is one of the city’s top plaintiff’s attorneys—

frequently makes companies more willing to settle and in 

higher amounts than they would agree to in other venues.’’ 

Local plaintiff’s attorney Earl Herring says that a case worth 

$10,000 in Eagle Pass would be ‘‘worth $500 in Uvalde.’’ 170

• Hampton County, South Carolina. Examples of the forum 

shopping that is rampant in Hampton County include the 

following. Michigan-based General Motors and Ohio-based 

Cooper Tire faced a lawsuit in Hampton County simply because their products are sold in the county; the plaintiff lived 

90 miles away and the accident occurred 350 miles away in 

Tennessee.171 In another case, a Beaufort County resident 

sued Continental Airlines because she was injured during a 

rough landing on a flight between Savannah, Georgia, and 

New Jersey, claiming that the airline does business in 

Hampton County because it sells tickets over the Internet.172

40

173The term ‘‘sought in’’ as used in the amendment means sought pursuant to the rules of 

the relevant Federal or state court proceeding. 174Letter from Leonidas Ralph Mecham, Secretary, United States Judicial Conference, to 

Chairman F. James Sensenbrenner (July 9, 2004) (‘‘Judicial Conference Letter’’). 175 Judicial Conference Letter, at 1. 

Amendments Adopted at Committee 

Three amendments adding additional provisions to the H.R. 420 

were adopted at Committee. The first, offered by Mr. Keller, applies a ‘‘three strikes and you’re out’’ rule to attorneys who commit 

Rule 11 violations in Federal district court. The amendment provides that whenever a Federal district judge determines an attorney has violated Rule 11 of the Federal Rules of Civil Procedure 

three or more times within that Federal district court, the court 

shall suspend that attorney from practice of law in that Federal 

district court for 1 year, and may suspend that attorney from practice of law in that Federal district court for any additional period 

the court considers appropriate. Under such provision, an attorney 

has the right to appeal any such suspension, and such suspension 

shall not take place pending such appeal. Further, to be reinstated 

to the practice of law in a Federal district court after completion 

of such suspension, the attorney must first petition the court for reinstatement under such procedures and conditions as the court 

may prescribe. 

A second amendment, offered by Mr. Nadler, imposes mandatory 

civil sanctions that are commensurate with those available under 

Rule 11 of the Federal Rules of Civil Procedure, in addition to 

other civil sanctions otherwise applicable, for the intentional destruction of documents sought in 173 a pending civil court proceeding, and highly relevant to such proceeding, with the intent to 

obstruct such proceeding. The amendment applies its rule to proceedings in Federal court, and in state courts where the court proceeding substantially affects interstate commerce. 

A third amendment, offered by Mr. Scott, provides that whenever 

a party presents to a Federal court, or to a State court in a proceeding that substantially affects interstate commerce, a pleading, 

written motion, or other paper, that includes a claim, defense, or 

other legal contention that the party has already litigated and lost 

on the merits in any forum in final decisions not subject to appeal 

on 3 consecutive occasions, there shall be a rebuttable presumption 

that the presentation of such paper is in violation of Rule 11 of the 

Federal Rules of Civil Procedure. 

RESPONSE TO JUDICIAL CONFERENCE LETTER ON H.R. 4571, THE

LAWSUIT ABUSE REDUCTION ACT

On July 9, 2004, the Judicial Conference of the United States 

sent a letter to the Committee regarding H.R. 4571, the version of 

H.R. 420 the House of Representatives passed during the 108th 

Congress.174

The letter states that Section 2 of H.R. 4571 would reinstitute 

provisions to Rule 11 that were removed in 1993, and that such 

provisions were removed ‘‘because of the serious problems it engendered during a 10-year period of operation.’’ 175 This assertion is 

contradicted by the Judicial Conference’s Advisory Committee on 

Civil Rules’s own survey. That committee undertook a review of 

Rule 11, in its pre-1993 form, and asked the Federal Judicial CenVerDate jul 14 2003 20:49 Jun 14, 2005 Jkt 39006 PO 00000 Frm 000040 Fmt 06659 Sfmt 06601 E:\HR\OC\HR123.XXX HR123
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176Federal Judicial Center Final Report on Rule 11 to the Advisory Committee on Civil Rules 

of the Judicial Conference of the United States (May 1991). 177 Judicial Conference Letter, at 2. 178 Id. at 2. 179See 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)) (imposing sanctions for filing inappropriate Rule 11 

motions). 180See John Shapard et. al., Federal Judicial Center, Report of a Survey Concerning Rule 11, 

Federal Rules of Civil Procedure at 5. 181 Judicial Conference Letter, at 2. 182 Id. at 2. 

ter 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%).176 Indeed, the letter from the Judicial Conference admits 

as much with the cursory statement that ‘‘The 1991 Federal Judicial Center Survey noted that most Federal judges believed that 

the 1983 version of Rule 11 had positive effects.’’ 177

Despite this survey conducted at the behest of the Judicial Conference itself, the letter cites four ‘‘serious problems’’ caused by the 

1983 amendments to Rule 11. 

The first is that the 1983 amendments to Rule 11 resulted in 

‘‘creating a significant incentive to file unmeritorious Rule 11 motions by providing a possibility of monetary penalty.’’ 178 In response, first, any unmeritorious Rule 11 motion could itself result 

in sanctions (and thereby deterred) under Rule 11.179 Second, yet 

another survey conducted by the Federal Judicial Center contradicts the assertion that the option of monetary penalties under 

Rule 11 caused problems. A survey conducted by the Federal Judicial Center in June, 1995, consisting of 148 Federal judges and 

over 1,000 trial attorneys found that the 1993 amendments that 

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.180

The second problem the Judicial Conference letter cites is that 

the 1983 amendments to Rule 11 resulted in ‘‘engendering potential conflict of interest between clients and their lawyers, who advised withdrawal of particular claims despite the clients’ preference.’’ 181 In response, it is entirely appropriate that an attorney 

advise withdrawing claims a client wants to make when those 

claims are frivolous. 

The third problem the Judicial Conference letter cites is that the 

1983 amendments to Rule 11 resulted in ‘‘exacerbating tensions between lawyers.’’ 182 In response, whatever tensions the amendments may have caused lawyers, the threat of frivolous lawsuits 

today has created a legal culture of fear that has come to permeate 

all of American society, threatening common sense judgments everywhere, from churches, to playgrounds, to schools, to doctors’ offices, to small businesses nationwide, and everywhere in between. 

Surely if restoring teeth to Rule 11 results in some tension between 

lawyers, it is justified by helping to allow all Americans to live 

42

183 Id. at 2. 184 Id. at 3. 185 Id. at 1. 186See U.S. Const. Art. I, § 8, cl. 9; Art. III, § 1, cl. 1; Art. III, § 2, cl. 2. 

their lives free of the constant fear that their every innocent move 

could result in a devastating frivolous lawsuit. 

The fourth problem the Judicial Conference letter cites is that 

the 1983 amendments to Rule 11 resulted in ‘‘providing little incentive, and perhaps a distinct disincentive, to abandon or withdraw 

a pleading or claim—and thereby admit error—that lacked merit 

after determining that it no longer was supportable in law or 

fact.’’ 183 In response, the argument that mandatory sanctions deter 

offenders from retracting offending conduct is no more persuasive 

than the argument that stealing again and again should be allowed, provided each time the thief gets caught he or she returns 

the stolen goods; except in this case the argument is even weaker, 

since under the current Rule 11, the money victims of frivolous 

lawsuits are forced to spend to defend themselves, or to prepare to 

defend themselves, against frivolous claims is not even returned 

when an attorney is called to the carpet for filing a frivolous pleading: rather, such attorney need only withdraw the pleading and 

suffer no penalty whatsoever. 

The letter from the Judicial Conference also states that, if Section 3 of H.R. 4571 is enacted, it ‘‘could affect the cost and duration 

of a very large number of civil actions in state courts.’’ 184 In response, Section 3 of H.R. 4571 is not likely to be abused for several 

reasons. Any party that does not fear sanctions under Rule 11 will 

only request that a state court rule on whether the case substantially affects interstate commerce in rare circumstances. This is because, first, no one is required under H.R. 4571 to make such a request to a state court if they do not want to, and second, because 

the burden will be on any party who decides to move for a determination that the case ‘‘substantially affects interstate commerce’’ 

to show just that, and that will not be an easy case to make, especially in smaller cases. The end result will be that motions will be 

made under Section 3 of H.R. 4571 only in those cases in which 

large amounts of money are at stake with clear interstate effects 

and only by those parties who have very strong reasons to believe 

the court system is being abused by a party filing frivolous pleadings. In such cases, it is entirely appropriate that a Federal rule 

sanctioning lawsuit abuse be available. Section 3 of H.R. 4571 

would serve national economic interests by focusing attention on 

the employment costs of frivolous litigation. The provision would 

provide that the interstate economy, including workers and jobs, 

when potentially negatively affected, should be protected by a rule 

prohibiting frivolous claims. 

Finally, the Judicial Conference letter states that H.R. 4571 is 

‘‘inconsistent with the longstanding Judicial Conference policy opposing direct amendment of the Federal rules by legislation.’’ 185

However, Congress has never relinquished its constitutional authority to create and alter the rules of Federal court procedure,186

and it has a duty to do so to address pressing problems, in this 

case the threat of frivolous lawsuits that affect all aspects of American society. 

43

187David Rauma and 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) (hereinafter ‘‘FJC 2005 Survey’’). 188Federal Judicial Center Final Report on Rule 11 to the Advisory Committee on Civil Rules 

of the Judicial Conference of the United States (May 1991). 189FJC 2005 Survey, at 2. 190 Id. at 16 (Appendix A). 

RESPONSE TO THE FEDERAL JUDICIAL CENTER’S 2005 SURVEY

The Federal Judicial Center recently issued a survey of U.S. district court judges (‘‘FJC 2005 Survey’’) regarding Rule 11 and the 

problem of frivolous lawsuits.187

As explained above, the Lawsuit Abuse Reduction Act would 

largely restore Federal Rule of Civil Procedure 11 to what it was 

before it was made toothless in 1993. Rule 11, prior to the adoption 

of weakening amendments in 1993 which eliminated mandatory 

and serious sanctions against those who filed frivolous lawsuits, 

was widely popular among Federal judges, and it served to significantly limit lawsuit abuse. In 1990, the Judicial Conference’s Advisory Committee on Civil Rules (the same organization that requested the FJC 2005 Survey) undertook a review of Rule 11 at the 

time and asked the Federal Judicial Center to conduct an empirical 

study of its operation and impact. The survey of 751 Federal judges 

found that an overwhelming majority of Federal judges believed, 

based on their experience under both a weaker and stronger Rule 

11, that a stronger Rule 11 did not impede development of the law 

(95%); the benefits of the rule outweighed any additional requirement of judicial time (71.9%); the stronger version of Rule 11 had 

a positive effect on litigation in the Federal courts (80.9%); and the 

rule should be retained in its then-current form (80.4%).188 Of the 

751 judges surveyed in 1990, 583 responded, roughly twice times 

as many as responded to the FJC’s 2005 Survey. 

In the Federal Judicial Center’s latest survey, only 278 judges responded to, and half of the judges surveyed (and over half of the 

judges that responded to the survey) had no experience at all 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.’’ 189 The FJC report keeps secret the dates on which the respondent judges first came to serve on the bench, so we have no 

way of knowing whether any of those judges had any significant experience as judges under the stronger Rule 11 that was in effect 

the decade before 1993. Appendix A of the FJS 2005 Survey states 

that ‘‘all judges in the first group [of 200 out of 400 surveyed] 

would have had at least 1 year on the bench before the 1993 

amendments to Rule 11 went into effect.’’ 190 That provides little 

comfort that any significant number of the judges surveyed had 

any significant experience under the stronger Rule 11. So the survey is fundamentally flawed in that we have no reason to believe 

it included any significant number of judges who had any significant experience under the stronger Rule 11. 

Further, the FJC 2005 Survey found that even of the Federal 

judges surveyed, 55% indicated that the purpose of Rule 11 should 

44

191FJC 2005 Survey at 2. 

be both deterrence and compensation,191 and the Lawsuit Abuse 

Reduction Act would fulfill both purposes. 

Of course, Federal judges themselves do not suffer in any direct 

way the costs of frivolous, abusive lawsuits. Those who do suffer 

those costs, including the large financial costs of nuisance lawsuits 

filed for their settlement value—namely the small business community—overwhelmingly support the Lawsuit Abuse Reduction Act. 

The National Federation of Independent Business, for example, has 

made passing the Lawsuit Abuse Reduction Act their top legislative priority. The small business community rejects the notion 

today the amount of frivolous lawsuits filed are ‘‘just right.’’ In just 

a few months, a coalition of over 100 organizations, called the Lawsuit Abuse Reform Coalition (‘‘LARC’’), came together to support 

LARA’s common sense reforms. 

When sanctions for filing frivolous lawsuits are not mandatory, 

as they are not mandatory now, those who are the victims of frivolous lawsuits have no incentive to litigate the frivolous nature of 

the claims against them because there is currently no guarantee 

that even if the claims against them are found to be frivolous they 

will be compensated for the harm caused by those frivolous claims. 

What happens instead is that, today, the victims of frivolous lawsuits are routinely extorted to settle the case for certain sums just 

below those what would be necessary to litigate the case to judgment, at which point the case drops out of the dockets of the very 

judges who were surveyed by the FJC. 

Judges are unlikely to view frivolous litigation as a problem because such cases rarely reach the bench. An overwhelming number 

of cases settle before trial. When a frivolous claim is filed, one of 

two things occur under the current Rule 11: either the small business challenges the plaintiff and the plaintiff simply withdraws the 

claim and walks away (as they are allowed to do under the current 

Rule 11); or the small business settles rather than proceed with a 

motion for sanctions because it is unlikely that the court will fully 

reimburse it for the cost of defending against the frivolous claim, 

and the cost of defending against the claim is more than the expense of settlement. 

The current situation favors judges, not small businesses who are 

harmed by the litigation. Under the current Rule 11, judges are relieved of their obligation to consider whether or not a case is frivolous. They do not need to hold a hearing on whether the case is 

frivolous and impose sanctions because, as a matter of practice, 

Rule 11 requires frivolous lawsuits to be withdrawn (with no reimbursement to the victim of the suit) or settled (for just under the 

cost of defending against it). While this is convenient for judges, it 

is not fair to small businesses. 

Everyone who sits back for a moment and reflects will understand that a limitless variety of frivolous lawsuits clog our courts 

in ways they did not in decades gone be. Judges do not feel the 

painful costs of frivolous lawsuits, and as they have sat as judges 

over the last decade they have only seen the standards of how frivolous lawsuits should be treated erode over time, starting with the 

explicitly forgiving nature of the toothless Rule 11 that was enacted in 1993. It is time courts were made to take the harm caused 

45

192See Letter from Ralph Mecham, Secretary, Judicial Conference of the United States (Mar. 

26, 2003). 193The Class Action Fairness Act passed the Senate by a vote of 72 to 26, and the House 

by a vote of 279 to 149. It became Public Law No. 109–2. 

by frivolous lawsuits seriously again—by making sanctions for filing frivolous lawsuits mandatory, not discretionary, on the part of 

the judge—and to empower the victims of frivolous lawsuits with 

the certainty that they will be compensated for the frivolous lawsuits they suffer under. Only the Lawsuit Abuse Reduction Act can 

help free all Americans from the fear they feel today under the constant threat of frivolous lawsuits. 

Finally, the Federal judiciary has a history of opposing any legal 

reforms it does not itself propose. For example, the Federal Judicial 

Center has also opposed the Class Action Fairness Act,192 which 

overwhelmingly passed Congress and which became law earlier 

this year.193

HEARINGS

The Committee on the Judiciary held no hearings on H.R. 420 

during the 109th Congress. 

COMMITTEE CONSIDERATION

On May 25, 2005, the Committee met in open session and ordered favorably reported the bill H.R. 420 with an amendment by 

a recorded vote of 19 yeas to 11 nays, a quorum being present. 

VOTE OF THE COMMITTEE

In compliance with clause 3(b) of Rule XIII of the Rules of the 

House of Representatives, the Committee notes that the following 

rollcall votes occurred during the committee’’s consideration of H.R. 

420. 

1. Mr. Conyers offered an amendment that would have provided 

that the Act would not apply to manufacturers, sellers, or trade associations that, on or after the date of enactment of the Act, shifts 

or transfers employment positions or facilities to a location outside 

the United States. By a rollcall vote of 11 yeas to 17 nays, the 

amendment was defeated.

ROLLCALL NO. 1 

Ayes Nays Present 

Mr. Hyde ............................................................................................................

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte ....................................................................................................

Mr. Chabot ........................................................................................................

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green ..........................................................................................................

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ...........................................................................................................

46

ROLLCALL NO. 1—Continued

Ayes Nays Present 

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman ....................................................................................................... X

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren .......................................................................................................

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................ X

Mr. Meehan ....................................................................................................... X

Mr. Delahunt .....................................................................................................

Mr. Wexler .........................................................................................................

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Smith (Washington) ....................................................................................

Mr. Van Hollen .................................................................................................. X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 11 17

2. Motion to report H.R. 420 with an amendment in the nature 

of a substitute was agreed to by a rollcall vote of 19 yeas and 11 

nays.

ROLLCALL NO. 2 

Ayes Nays Present 

Mr. Hyde ............................................................................................................

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte ....................................................................................................

Mr. Chabot ........................................................................................................ X

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................ X

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green ..........................................................................................................

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ...........................................................................................................

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman ....................................................................................................... X

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren .......................................................................................................

47

ROLLCALL NO. 2—Continued

Ayes Nays Present 

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................ X

Mr. Meehan ....................................................................................................... X

Mr. Delahunt .....................................................................................................

Mr. Wexler .........................................................................................................

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Smith (Washington) ....................................................................................

Mr. Van Hollen .................................................................................................. X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 19 11

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of Rule XIII of the Rules of the 

House of Representatives, the Committee reports 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. 420, 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, June 3, 2005. 

Hon. F. JAMES SENSENBRENNER, Jr., 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. 420, the ‘‘Lawsuit Abuse 

Reduction Act of 2005.’’

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contacts are Gregory Waring (for 

Federal costs), who can be reached at 226–2860, and Melissa 

Merrell (for the State and local impact), who can be reached at 

225–3220. 

Sincerely, 

DOUGLAS HOLTZ-EAKIN.

Enclosure

cc:

48

Honorable John Conyers, Jr. 

Ranking Member 

H.R. 420—Lawsuit Abuse Reduction Act of 2005. 

H.R. 420 would amend Rule 11 of the Federal Rules of Civil Procedure to require courts to impose appropriate sanctions on attorneys, law firms, or parties who file frivolous lawsuits and to require them to compensate parties injured by such conduct. (Courts 

currently may, but are not required to, impose such sanctions.) In 

addition, the bill would require certain personal injury claims to be 

filed in a court where the person bringing the claim lives, where 

the alleged injury occurred, or where the defendant’s business is located. 

Under the legislation, any monetary sanction imposed under 

Rule 11 would be between the parties to the suit. Thus, CBO estimates that enacting the legislation would result in no cost or savings to the Federal Government. H.R. 420 would not affect direct 

spending or revenues. 

H.R. 420 contains an intergovernmental mandate as defined in 

the Unfunded Mandates Reform Act (UMRA) because it would preempt certain State laws governing court procedures. Specifically, it 

would require State judges to determine whether certain liability 

lawsuits affect interstate commerce and apply Federal civil procedures for frivolous lawsuits to those cases. CBO estimates that the 

cost of complying with that mandate would be minimal and well 

below the threshold established in that act ($62 million in 2005, 

adjusted annually for inflation). The bill contains no new privatesector mandates as defined in UMRA. 

The CBO staff contacts for this estimate are Gregory Waring (for 

Federal costs), who can be reached at 226–2860, and Melissa 

Merrell (for the State and local impact), who can be reached at 

225–3220. This estimate was approved by Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

PERFORMANCE GOALS AND OBJECTIVES

The Committee states that pursuant to clause 3(c)(4) of Rule XIII 

of the Rules of the House of Representatives, H.R. 420 would: (1) 

restore mandatory sanctions for filing frivolous lawsuits in violation of Rule 11 of the Federal Rules of Civil Procedure; (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; (3) allow monetary sanctions, including attorneys’ fees and 

compensatory costs, against any party making a frivolous claim; (4) 

apply Rule 11’s provisions to state cases a state judge finds substantially affects interstate commerce; (5) require that personal injury cases be brought only where the plaintiff resides, where the 

plaintiff was allegedly injured, where the defendant’s principal 

place of business is located, or where the defendant resides; (6) 

apply a ‘‘three strikes and you’re out’’ rule to attorneys who commit 

Rule 11 violations in Federal district court; (7) impose mandatory 

civil sanctions for document destruction intended to obstruct a 

pending court proceeding; and (8) provide that if a party attempts 

to relitigate a losing claim more than three consecutive times, there 

shall be a rebuttable presumption that Rule 11 has been violated. 

49

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the House 

of Representatives, the Committee finds the authority for this legislation in article I, section 8, clause 3 of the Constitution. 

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

The following discussion describes the bill as reported by the 

Committee. 

Sec. 1. Short title. This section provides that the Act may be cited 

as the ‘‘Lawsuit Abuse Reduction Act of 2004.’’

Sec. 2. Attorney Accountability. This section would restore mandatory sanctions for filing frivolous lawsuits in violation of Rule 11; 

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 require monetary sanctions, including attorneys’ fees and compensatory costs, against any party making a frivolous claim and causing economic harm to the victim of a frivolous 

lawsuit. 

Sec. 3. Applicability of Rule 11 to State Cases Affecting Interstate 

Commerce. This section applies Rule 11’s provisions to state cases 

a state judge finds substantially affect interstate commerce, including by costing jobs in other states. 

Sec. 4. Prevention of Forum-Shopping. Subsection (a) of this section requires that personal injury cases be brought only where the 

plaintiff resides, where the plaintiff was allegedly injured (or where 

the circumstances giving rise to the injury allegedly occurred) or 

where the defendant’s principal place of business is located, or 

where the defendant resides. Subsection (b) of this section provides 

that if a person alleges that the injury or circumstances giving rise 

to the personal injury claim occurred in more than one county (or 

Federal district), the trial court shall determine which State and 

county (or Federal district) is the most appropriate forum for the 

claim. If the court determines that another forum would be the 

most appropriate forum for a claim, the court shall dismiss the 

claim. Any otherwise applicable statute of limitations shall be 

tolled beginning on the date the claim was filed and ending on the 

date the claim is dismissed under this subsection. Subsection (c) of 

this section provides the definition of terms used in section 4. 

Sec. 5. Rule of Construction. This section provides that nothing 

in section 3 or in the amendments made by section 2 shall be construed to bar or impede the assertion or development of new claims 

or remedies under Federal, State, or local civil rights law. 

Sec. 6. Three-Strikes Rule for Suspending Attorneys Who Commit 

Multiple Rule 11 Violations. This section provides that whenever a 

Federal district judge determines an attorney has violated Rule 11 

of the Federal Rules of Civil Procedure three or more times within 

that Federal district court, the court shall suspend that attorney 

from practice of law in that Federal district court for 1 year, and 

may suspend that attorney from practice of law in that Federal district court for any additional period the court considers appropriate. Under such provision, an attorney has the right to appeal 

any such suspension, and such suspension shall not take place 

pending such appeal. Further, to be reinstated to the practice of 

50

law in a Federal district court after completion of such suspension, 

the attorney must first petition the court for reinstatement under 

such procedures and conditions as the court may prescribe. 

Sec. 7. Presumption of Rule 11 Violation for Repeatedly Relitigating Same Issue. This section provides that whenever a party 

presents to a Federal court, or to a State court in a proceeding that 

substantially affects interstate commerce, a pleading, written motion, or other paper, that includes a claim, defense, or other legal 

contention that the party has already litigated and lost on the merits in any forum in final decisions not subject to appeal on 3 consecutive occasions, there shall be a rebuttable presumption that the 

presentation of such paper is in violation of Rule 11 of the Federal 

Rules of Civil Procedure. 

Sec. 8. Enhanced Sanctions for Document Destruction. This section provides that provides for mandatory civil sanctions that are 

commensurate with those available under Rule 11 of the Federal 

Rules of Civil Procedure, in addition to other civil sanctions otherwise applicable, for the intentional destruction of documents sought 

in a pending civil court proceeding, and highly relevant to such 

proceeding, with the intent to obstruct such proceeding. The 

amendment applies to proceedings in Federal court, and in state 

courts when the proceedings substantially affect interstate commerce. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of Rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italics, 

existing law in which no change is proposed is shown in roman):

RULE 11 OF THE FEDERAL RULES OF CIVIL 

PROCEDURE

Rule 11. Signing of Pleadings, Motions, and Other Papers; 

Representations to Court; Sanctions 

(a) * * *

* * * * * * *

(c) SANCTIONS.—øIf, after notice and a reasonable opportunity 

to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose 

an appropriate sanction upon the attorneys, law firms, or parties 

that have violated subdivision (b) or are responsible for the violation.¿ If a pleading, motion, or other paper is signed in violation 

of this rule, the court, upon motion or upon its own initiative, shall 

impose upon the attorney, law firm, or parties that have violated 

this subdivision or are responsible for the violation, an appropriate 

sanction, which may include an order to pay the other party or parties for the reasonable expenses incurred as a direct result of the filing of the pleading, motion, or other paper, that is the subject of the 

violation, including a reasonable attorney’s fee.

(1) HOW INITIATED.—

51

(A) BY MOTION.—A motion for sanctions under this 

rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to 

violate subdivision (b). It shall be served as provided in 

Rule 5ø, but shall not be filed with or presented to the 

court unless, within 21 days after service of the motion (or 

such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected¿. If warranted, the court ømay¿ shall award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. 

Absent exceptional circumstances, a law firm shall be held 

jointly responsible for violations committed by its partners, 

associates, and employees. 

* * * * * * *

(2) NATURE OF SANCTION; LIMITATIONS.—A sanction imposed for violation of this rule øshall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in 

subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a 

penalty into court, or, if imposed on motion and warranted for 

effective deterrence, an order directing payment to the movant 

of some or all of the reasonable attorneys’ fees and other expenses incurred as a direct result of the violation. 

ø(A) Monetary sanctions may not be awarded against 

a represented party for a violation of subdivision (b)(2). 

ø(B) Monetary sanctions may not be awarded on the 

court’s initiative unless the court issues its order to show 

cause before a voluntary dismissal or settlement of the 

claims made by or against the party which is, or whose attorneys are, to be sanctioned.¿ shall be sufficient to deter 

repetition of such conduct or comparable conduct by others 

similarly situated, and to compensate the parties that were 

injured by such conduct. The sanction may consist of an 

order to pay to the party or parties the amount of the reasonable expenses incurred as a direct result of the filing of 

the pleading, motion, or other paper that is the subject of 

the violation, including a reasonable attorney’s fee.

MARKUP TRANSCRIPT

BUSINESS MEETING 

WEDNESDAY, MAY 25, 2005

HOUSE OF REPRESENTATIVES, COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:02 a.m., in Room 

2138, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. [Chairman of the Committee] presiding. 

Chairman SENSENBRENNER. The Committee will come to order. A 

working quorum is present. 

[Intervening business.] 

52

Chairman SENSENBRENNER. Pursuant to notice, I now call up the 

bill H.R. 420, the ‘‘Lawsuit Abuse Reduction Act of 2005,’’ for purposes of markup and move its favorable recommendation to the 

House. Without objection, the bill will be considered as read and 

open for amendment at any point. 

[The bill, H.R. 420, follows:]

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Chairman SENSENBRENNER. The chair recognizes the gentleman 

from Texas, Mr. Smith, the sponsor of the legislation, to explain 

the bill. 

Mr. SMITH. Thank you, Mr. Chairman. 

Mr. Chairman, H.R. 420 will deter frivolous litigation. Our country’s values and its economy are under attack from unnecessary 

lawsuits. Americans sue over the slightest offense. Schoolteachers, 

doctors, Little League coaches, Girl Scout troop leaders often fear 

that the slightest offense to an angry parent or patient will result 

in years of litigation. In addition to intimidating members of our 

Nation’s communities, frivolous lawsuits harm our economy and 

threaten to bankrupt business owners as well. The alarming spread 

of frivolous lawsuits has made a mockery of our legal system. Frivolous suits are brought despite no evidence that shows negligence 

on the part of the defendant. These are nuisance lawsuits, but costly to the defendants. 

Many Americans have legitimate legal grievances and deserve 

their day in court. Justice should not be denied to those who deserve it. However, some lawyers game the system, which drives up 

the cost of doing business and drives down the integrity of the judicial system. 

For example, the CEO of San Antonio’s Methodist Children’s 

Hospital was sued after he stepped into a patient’s hospital room 

and asked how the patient was doing. A jury cleared him of any 

wrongdoing. 

In a New Jersey Little League game, a player lost sight of a 

flyball because of the sun. He was injured when the ball hit him 

in the eye. The coach was forced to hire a lawyer after the boy’s 

parents sued, and the coach was forced to settle the case for 

$25,000. 

A Pennsylvania man sued the Frito-Lay Company claiming that 

Doritos chips were inherently dangerous after one stuck in his 

throat. After 8 years of costly litigation, the Pennsylvania Supreme 

Court finally threw out the case, writing that there is ‘‘a commonsense notion that it is necessary to properly chew hard foodstuffs 

prior to swallowing.’’

Today almost any party can bring any suit in practically any jurisdiction because plaintiffs and their attorneys have nothing to 

lose. All they want is for the defendant to settle. This is legalized 

extortion. It is lawsuit lottery. 

Some Americans file lawsuits for reasons that can only be described as absurd. They sue a theme park because its haunted 

houses are too scary, they sue the weather channel for an inaccurate forecast, and they sue McDonald’s claiming a hot pickle 

dropped from a hamburger caused a burn and mental injury. Our 

national motto might as well be, When in doubt, file a lawsuit. 

While plaintiffs have nothing to lose and everything to gain by 

working the system this way, defendants, on the other hand, often 

stand to lose everything. They can unfairly lose their careers, their 

businesses, and their reputations. This is not justice. 

But the good news is that there is a remedy. Change Federal 

Rule of Civil Procedure 11. The Lawsuits Abuse Reduction Act does 

just that. It requires judges to sanction plaintiffs who file frivolous 

lawsuits merely to extort financial settlements, as well as defendants who unnecessarily prolong the process. Under H.R. 420, if eiVerDate jul 14 2003 20:49 Jun 14, 2005 Jkt 39006 PO 00000 Frm 000059 Fmt 06659 Sfmt 06601 E:\HR\OC\HR123.XXX HR123
60

ther party feels they have been subject to a frivolous claim or 

pleading, they can file a motion with the court for sanctions. If the 

judge determines that the claim was frivolous, then the sanctions 

imposed can include an order to pay the attorneys fees of the party 

who was the victim of the frivolous claim. 

Also, if a State judge determines that a frivolous lawsuit has a 

significant impact on interstate commerce, the judge could sanction 

the litigants by using rule 11. 

Finally, Mr. Chairman, this legislation prevents forum-shopping. 

It requires that personal injury claims only be filed in the State, 

county, or Federal district where the plaintiff resides, where the injury occurred, or in the State or county where the defendant’s principal place of business is located. This provision addresses the 

growing problem of attorneys who shop around the country for 

judges who routinely award plaintiffs excessive amounts. 

Mr. Chairman, the Lawsuit Abuse Reduction Act is sensible reform that will help restore confidence in our economy, our communities, and in our justice system as well. 

And Mr. Chairman, I will yield back the balance of my time. 

Chairman SENSENBRENNER. The gentleman from Michigan, Mr. 

Conyers. 

Mr. CONYERS. Thank you very much. 

The reason I ask what are the reasons that so many organizations oppose this bill, including the United States Judicial Conference, the National Association for the Advancement of Colored 

People, the Alliance for Justice, Public Citizen, People for the 

American Way, the American Association of People with Disabilities, the Lawyers Committee for Civil Rights in Law, the American 

Bar Association, the National Conference on State Legislatures, 

National Partnership for Women, the National Women’s Law Center, the Center for Justice and Democracy, Consumers Union, the 

National Association of Consumer Advocates, and the NAACP 

Legal Defense Fund—well, it’s because this legislation would have 

an adverse impact on the ability of civil rights plaintiffs to seek recourse in the courts. And by requiring a mandatory sanctions regime that would apply in these kinds of cases, H.R. 420 will chill 

many legitimate and important civil rights actions. 

This is due to the fact that much, if not most, of the impetus for 

the 1993 changes stem from abuses by defendants in civil rights 

cases, namely, civil rights defendants were choosing to harass civil 

rights plaintiffs by filing a series of rule 11 motions intended to 

slow down and impede cases that clearly had merit. 

Now, although the bill states that the proposed rule 11 changes 

shall not be construed to bar or impede the assertion or development of new claims or remedies under Federal, State, and local 

civil rights law, the language does not clearly and simply exempt 

civil rights and discrimination cases, as should be the case. Determining what a new claim or remedy is could be a daunting and 

complex issue for most of the courts and clearly does not cover all 

civil rights cases in any event. 

Section 4. The forum-shopping provision would operate to provide 

a litigation and financial windfall to foreign corporations at the expense of their domestic competitors. 

This is because instead of permitting claims to be filed wherever 

a corporation does business or has some contact, as most State 

61

long-arm statutes, so called, provide, the bill only permits the suit 

to be brought where the defendant’s principal business is located. 

In the case of a foreign corporation that obviously wouldn’t exist inside the United States. 

So if a United States citizen is harmed by a product produced or 

manufactured by a foreign competitor, under this measure proposed, the harmed citizen would likely have no recourse against a 

foreign corporation, whereas he or she would have recourse against 

a comparable United States company. 

This is unfair to both our citizens and to our corporations that 

are in competition, and so that’s why we have this long list—and 

I didn’t mention them all—or organizations who don’t have an ax 

to grind, who are not being partisan, who are trying to give us 

their point of view, and I’m happy to have had this chance to let 

you know how many people are hoping that the majority of us will 

turn back the Lawsuit Abuse Reduction Act of 2005. 

Thank you, Mr. Chairman. 

Chairman SENSENBRENNER. Without objection, all Members’ 

opening statements will appear in the record at this point. 

Are there amendments? Gentleman from Florida. 

Mr. KELLER. Mr. Chairman, I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to H.R. 420 offered by Mr. Keller of 

Florida. At the end of the bill add the following new section. 

Mr. KELLER. Mr. Chairman, I ask unanimous consent that the 

amendment be considered as read. 

Chairman SENSENBRENNER. Without objection, so ordered, and 

the gentleman from Florida is recognized for 5 minutes. 

[The amendment follows:]

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Mr. KELLER. Thank you, Mr. Chairman. This is a three-strikesand-you’re-out amendment. I’d like to explain it, give a brief history of it, and talk about why it’s needed. 

The three-strikes-and-you’re-out amendment, essentially says 

this. If a Federal judge determines that an attorney has violated 

rule 11 in that Federal District Court three times, the attorney 

shall be suspended from practicing law in that Federal District 

Court for 1 year. It is the identical language that was used in the 

last Congress. At Mr. Berman’s request during the last markup, we 

added language to this provision that says the attorney may appeal 

the suspension and that the suspension shall be stayed during the 

appeal. This is the identical language that I’m offering today, the 


420A2.eps
64

same language that passed this Committee by a 20 to 6 vote, and 

passed the House as part of the Lawsuit Abuse Reduction Act. 

Let me walk through just a brief history of the three-strikes-andyou’re-out concept, and I have a chart over to my right that some 

of you will be able to see, others on the TV. Let me tell you who 

supports it. First, George W. Bush. On February 9, 2000 he issued 

a campaign press release where he said, quote, ‘‘As President I will 

bring common sense to our courts and curb frivolous lawsuits. If a 

lawyer files three junk lawsuits he’ll lose the right to appear in 

Federal Court for 3 years, three strikes and you’re out.’’

The Austin American Statesman, the local newspaper, the next 

day on February 10, 2000 said, quote, ‘‘Bush’s plan includes stiffer 

penalties for lawsuits determined by judges to be frivolous, including a three strikes you’re out rule for lawyers who repeatedly file 

such claims.’’

This enjoys bipartisan support. Former Senator John Edwards, 

himself a personal injury attorney for many years before of course 

becoming a U.S. Senator and Democratic nominee for Vice President, said to Newsweek on December 15, 2003: Frivolous lawsuits 

waste good people’s time and hurt the real victims. Lawyers who 

bring frivolous cases should face tough mandatory sanctions with 

a three strikes penalty. 

Senator John Kerry, the Democrat nominee for President, told 

the Associated Press 1 month before the election on October 10, 

2004: Lawyers who file frivolous cases would face tough mandatory 

sanctions including a three-strikes-and-you’re-out provision that 

forbids lawyers who file three frivolous cases from bringing another 

suit for the next 10 years. 

Yesterday, Tuesday, May 24 at approximately 3:00 p.m., I personally met with the President of the United States in his residence at the White House. And I handed him this quote that you 

see on the chart, and asked him, ‘‘Mr. President, do you still stand 

by this and support three-strikes-and-you’re-out?’’ He told me, yes, 

he stands by the three-strikes-and-you’re-out concept, yes, he supports three-strikes-and-you’re-out, and yes, that language of threestrikes-and-you’re-out will not be vetoed. 

Action by Congress on this identical amendment was as follows 

last time. This Committee on September 8 approved it 20 to 6; 100 

percent of Republicans present voted for it, several Democrats 

voted for it including Mr. Berman, Ms. Lofgren and Mr. Schiff. It 

then comfortably passed the U.S. House of Representatives, a part 

of the underlying Lawsuit Abuse Reduction Act, with 16 Democrats 

voting for it. 

In a nutshell let me explain why it’s needed. Under existing rule 

11 law, if a court determines that there’s a rule 11 violation, the 

court may impose a sanction and may determine the type of sanction. Under Chairman Lamar Smith’s base bill, there is a good improvement. Under this bill the judge shall impose a sanction if 

there’s a violation, but he may determine what those sanctions are. 

He may award expenses which could be 50 cents sanction for postage and photocopying expenses. He may award attorneys’ fees 

which is substantially more, or he may determine that a verbal 

reprimand is sufficient to deter repetition of the bad conduct and 

no compensation is needed. 

65

The base bill needs additional teeth. 50 cents or a verbal reprimand won’t get some attorneys’ attention. A three-strikes-andyou’re-out penalty will. The goal of the three-strikes-and-you’re-out 

legislation is to prevent frivolous lawsuits from being filed in the 

first place. The three-strikes-and-you’re-out concept to crack down 

on frivolous lawsuits is a common sense bipartisan idea that deserves our support again today. It’s supported by President Bush, 

Senator Edwards, Senator Kerry, this Committee and the U.S. 

House, and I ask my colleagues once again to vote yes on the threestrikes-and-you’re-out amendment. 

Mr. Chairman, before yielding back I ask unanimous consent to 

include in the record the articles and press release I referenced 

earlier from President Bush, Senator John Edwards and Senator 

Kerry regarding three-strikes-and-you’re-out. 

Chairman SENSENBRENNER. Without objection. 

[The information follows:]

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Chairman SENSENBRENNER. The gentleman from Virginia, Mr. 

Scott. 

Mr. SCOTT. Thank you. Move to strike the last word, Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SCOTT. Mr. Chairman, this is one of the—this mandatory 

provision on line 11 is the troubling part. The change in present 

law is simply that if a 1-year suspension in practice is the appropriate sanction, the judge can issue whatever sanction he wants 

under a contempt of court citation. If a 1-year suspension doesn’t 

make any sense, then this mandatory minimum requires it. The 

judge has great latitude, Mr. Chairman, on what he can do to 

someone who is in contempt of court. He doesn’t need a mandatory 

suspension as part of that. 

I would hope that we would defeat this amendment, allow the 

judge to use common sense and not force the judge to impose sanctions when the sanctions in fact violate common sense. This 

amendment would force the judge to violate common sense if it’s 

an inappropriate punishment, and therefore it’s inappropriate and 

I yield back the balance of my time. 

Ms. JACKSON LEE. Mr. Chairman—would you yield? 

Mr. SCOTT. I yield to the gentlelady from Texas. 

Ms. JACKSON LEE. I thank the distinguished gentleman. 

Let me just say that I take issue. I’d like to read in full context 

the statements of Senator Kerry and Senator Edwards, but I think 

that—I’m not sure where the 6 votes came from, but I think that 

this is a slap in the face of justice, and I’d hope my colleagues 

would consider opposing this amendment. 

I agree with my colleague from Virginia that the judges already 

have the discretion, and frankly, that anyone who has practiced in 

Federal courts will now, that judges don’t tolerate frivolous cases 

and have their own ways of sanction. This added extra burden simply closes the door of the courthouse to people who are the least 

empowered. 

I would ask the gentleman rhetorically, and I’d be delighted—it’s 

not my time—is whether or not we have frivolous defenses. I frankly believe that we should have equal time. Frivolous plaintiffs and 

petitioners, frivolous defenses, and they occur on many occasion. 

So I’d ask my colleagues to consider the devastating aspect of 

this as it relates to an equal access to the courthouse and as well 

that this is redundant and repetitive because judges already have 

the authority. I yield back. 

Mr. SCOTT. Reclaiming my time, and I would like to take the opportunity, Mr. Chairman, to offer into the record a resolution from 

the Conference of Chief Justices and a letter from the Judicial Conference of the United States, which says—which refers to a report 

that they did that makes it clear that the vast majority of Federal 

judges believe that the proposed changes to rule 11 will not help 

deter litigation abuses but will increase satellite litigation costs 

and delays. They point out that the bill will amend rule 11 to restore the 1983 version of the rule 11 by removing a court’s discretion to impose sanctions on a frivolous filing, and by eliminating 

rule 11’s—the present rule’s safe harbor provisions. 

74

The Judicial Conference opposed the Lawsuit Abuse Reduction 

Act of 2004, the predecessor to H.R. 420. The Conference based its 

position on the problems caused by the 1983 version of rule 11, 

which H.R. 420 would restore. The Conference noted these problems: one, the problems were creating a significant incentive to file 

unmeritorious rule 11 motions by providing a possibility of monetary penalty, endangering potential—engendering potential conflict 

of interest between clients and their lawyers who advised withdrawal of particular claims, but despite the client’s preferences; exacerbation of tensions between lawyers; and providing little incentive and perhaps a distinct disincentive to abandon or withdrawal 

and thereby admit error on pleadings or a claim after determining 

that it was no longer supported by the facts. 

Finally, the judges’ experience of the 1993 version of the rule 11, 

which would point to marked decline in rule 11 satellite litigation 

without any noticeable increase in the number of frivolous filings, 

H.R. 420 would effectively reinstate the 1983 version of the rule 

proved so contentious and wasted so much time and energy of the 

bench and bar. 

I’d ask unanimous consent that these two letters, Mr. Chairman, 

be entered into the record. 

Chairman SENSENBRENNER. Without objection. 

[The information follows:]

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Mr. SCOTT. And I yield back the balance of my time. 

Mr. WEINER. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from New York, Mr. 

Weiner. 

Mr. WEINER. Mr. Chairman, I’d be inclined to support Mr. 

Keller’s thrust, except I’m concerned that—I’m not quite sure I understand why this isn’t going to lead to a whole spate of additional 

litigation around these rule 11 proceedings. If all of these things 

now have a mandatory penalty and the base bill takes away discretion from a judge, you are going to have—and this was described 

briefly by Mr. Scott—it seems to me that you’re going to have all 

kinds of litigation within litigation over rule 11 proceedings. 

Whereas now that a judge can essentially say what Ms. Jackson 


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Lee suggested, ‘‘This is baloney, I’m dismissing this claim because 

it’s frivolous. Let’s move on.’’ Or allow a safe harbor where a lawyer 

could withdraw a claim if they had second thoughts about it. 

It seems we are taking mandatory sanctions and then making 

them even more final with Mr. Keller’s proposed amendment, and 

I think it’s just going to lead people just to dig in and litigate to 

the Nth degree every one of these rule 11 proceedings. And I’m not 

sure that that’s going to do anything other than just clog up the 

courts with a whole different set of litigation. 

Now, if we didn’t have H.R. 420 in front of us and Mr. Keller 

said, ‘‘I want to follow the quotes that are on that board from some 

other famous people,’’ and say, ‘‘Listen, let’s have a three-strikesand-you’re-out,’’ I would be inclined to say, you know what? That’s 

not a bad idea. If you have discretion, and when people are showing that discretion, they continually rule that at a particular attorney is operating outside of rule 11, that seems like okay. But if you 

have a scenario like this, I think what’s going to wind up happening with the bill, even without Mr. Keller’s amendment, is you 

are going to have all kinds of litigation based on rule 11 proceedings. 

And you know what? We have a certain level of experience with 

this in the pre-1993 rules, where we kind of experimented with this 

ethos to see how it would work, and I think the country decided, 

you know what, this isn’t working so great; let’s go back to the idea 

of giving some discretion to judges. 

The irony is just too sweet for me. You know, here it is the Republicans in the Senate and the President of the United States are 

putting in all of these judges that suit their political ideology, and 

now they’re saying, we don’t trust them at all to make any of these 

decisions. We’re going to put in guys that we like. We’re going to 

say how great they are, their great jurisprudence they’ve demonstrated, what great temperament they have, and at every possibility we, with mandatory minimums or provisions like this that 

take away any discretion from a judge to run his or her courtroom, 

we seem to be saying we don’t trust them to do a very good job. 

Why don’t we create good judges? Why don’t we have good laws 

as best we can, and then let’s let these judges kind of figure out 

the way to deal with the sanctions within their courtroom, because 

they might know much better than we, and I tell you something, 

I think that the Keller amendment is going to reinforce what is a 

defect in this bill, which is that we take away discretion from the 

people that should have it, and we take away the right of someone 

sitting on the bench to have an expeditious proceeding, and that 

doesn’t even—we’re not even touching on the whole idea of like, 

you know, everything is novel to begin with, every new case creates 

a certain level of novelty to begin with. 

And if people were afraid to bring novel claims, then we 

wouldn’t—perhaps no one would have thought to sue for civil rights 

violations, no one would have thought to sue for the tobacco lobby 

or others that turned out to be ground-breaking proceedings that 

now everyone believes are not frivolous at all, but actually make 

some sense. 

So let’s give back the responsibility for the courts to the judges 

and——

Mr. CANNON. Would the gentleman yield? 

80

Mr. WEINER. Yeah. Let me just make one rhetorical flourish if 

you don’t mind. 

I also think that we should acknowledge as elected officials that 

a couple of hundred thousand people vote for us, that we think 

they’re smart enough to figure out. Why is it that we assume 

they’re too dumb to figure anything else out? Why is the only decision we think they’re right about is the one that put us in Congress, and we don’t trust the idea that you can have a jury that 

knows what they’re doing or a judge that knows what they’re 

doing? 

And I’ll be glad to yield to my friend from Utah. 

Mr. CANNON. I thank the gentleman. Three quick points. In the 

first place, in response to Ms. Jackson Lee’s question, as I understand this bill, it does deal with defenses, frivolous defenses as well 

as other things. 

Mr. Weiner, I’m deeply concerned about the same kinds of things 

you’re concerned about, and suspect that this will actually lead to 

a great deal of litigation, I think you said litigation to the Nth degree, and that is—that’s a possibility. The problem is that judges 

have had the discretion to do fines under rule 11 for a very long 

time, and almost none have happened. And so I’m concerned about 

getting to a point where we motivate them to be thinking about 

this and then rethink the rule at some time in the future. But 

there are many frivolous lawsuits that don’t have a response. 

And then finally, I would just point out to the gentleman that 

we’re actually not worried about the new judges that this Administration would appoint, but the judges that have been appointed in 

the past, some by both Administrations of both parties. Thank you. 

Mr. WEINER. If I can have unanimous consent of an additional 

minute just to respond? 

Chairman SENSENBRENNER. Without objection. 

Mr. WEINER. Let me just say it’s—I guess so then it was last 

year’s citizens that weren’t smart enough to figure out, but this 

year’s have finally sorted it out in electing all of us. 

But let me just say this. You know, there is a couple of ways that 

you can look at the idea that there aren’t a lot of sanctions under 

rule 11. Call me crazy. One of the ways might be that a judge in 

a courtroom decided, you know what, this wasn’t a frivolous case? 

You have different interpretations of the outcome. You have different interpretations of the evidence. But you do have judges that 

might say there aren’t that many frivolous cases. 

Now it could just be—call me crazy—that there aren’t as many 

frivolous lawsuits as you and the President and some would have 

us believe, and that’s further argument for why we don’t need this 

bill, and I’ll be glad to——

Chairman SENSENBRENNER. The time of the gentleman has once 

again expired. 

The gentleman from California, Mr. Berman. 

Mr. BERMAN. Thank you, Mr. Chairman. If I could try to put a 

different kind of garnish on this rhetorical flourish. 

I actually think strengthening rule 11 is the right way to go. The 

majority party wants to go every which way in the name of dealing 

with, quote, ‘‘frivolous lawsuit.’’ They want to remove State causes 

of action. They want to put arbitrary limits on damages. They want 

to preempt courts from jurisdiction. It seems to me the concept of 

81

rule 11 and strengthening it is the right way to deal with what I 

am sure are frivolous lawsuits, frivolous defenses, frivolous motions. The Keller amendment makes sense to me in the form that 

it’s written now because in the end of the day it may be a mandatory three strikes, but it is the judge who in his or her discretion 

will decide whether or not rule 11 has been violated, and consequences will only flow from those judicial findings. 

And by the way, for the people who file frivolous rule 11 motions, 

they are subject to a rule 11 motion. So there is a deterrent to frivolous rule 11 motions. 

What I disagree with and what I think the majority party and 

my friend the gentleman from Texas are doing here, is they are—

instead of focusing on strengthening rule 11 and creating a system 

of sanctions for violations of rule 11, all of a sudden they’re grabbing all kinds of other things. We should be regulating conduct in 

the Federal courts. To go into State cases that happen to affect 

interstate commerce, which is—and the only reason you have that 

limitation is because constitutionally the bill would be presumably 

flawed constitutionally if you didn’t put such a limit in. And to get 

into every single State legislature’s, State judicial council’s effort to 

regulate the filing of frivolous State actions and frivolous State motions makes no sense to me whatsoever. 

And to regulate what the sanction should be and how many sanctions there are at the State level makes no sense to me at all, that 

that’s an appropriate area for the States. Once again the party of 

State’s rights is federalizing everything they can think of for no 

reason. 

And then getting into what State venue rules for personal injury 

cases, why in heaven’s name are we doing that? What is the purpose. I came in late. Maybe in the original arguments there was 

a series of fact-based justifications for the Federal Congress intruding on State venue rules, but I don’t think so. 

I’ll vote for the Keller amendment because I think it makes 

sense, but I’m sure thinking this bill as a whole is a massive intrusion on historic State court prerogatives, and I also will predict 

that this bill in this form will never survive in the other body, and 

secondly, that you’ll have missed an opportunity to deal with 

strengthening rule 11 as the logical deterrent to frivolous action instead of all these efforts to wipe away jurisdiction and preempt—

provide Federal preemption, all the other overreaches that the majority party seems to make on these issue, and you’re going to lose 

the opportunity to deal with what to me makes the most sense, 

which is providing a meaningful rule 11 for Federal actions. 

I yield back. 

Chairman SENSENBRENNER. The question is on the amendment—

the gentleman from Florida, Mr. Wexler? 

Mr. WEXLER. Just seems to be a little bit of a discrepancy and 

I was wondering if I could ask Mr. Keller if he could clear it up. 

The gentleman from Utah indicated that it was his belief that the 

amendment does apply equally—I don’t want to paraphrase him, 

but I believe he said he believes the amendment does apply equally 

to three frivolous defenses as it would to three frivolous claims by 

plaintiffs. 

Mr. KELLER. Would the gentleman yield? 

Mr. WEXLER. Yes. 

82

Mr. KELLER. Yes. Rule 11, section (b)(2) is unchanged by my 

amendment, and yes, it applies to defenses as well, so a defense attorney who repeatedly files frivolous defenses would also be subject 

to the same suspension. 

Mr. WEXLER. Under the same set of rules? 

Mr. KELLER. Same set, identical. 

Mr. WEXLER. Okay. Thank you. 

Mr. GOHMERT. Mr. Chairman, if I could move to strike the last 

word very——

Chairman SENSENBRENNER. The gentleman from Texas recognized for 5 minutes. 

Mr. GOHMERT. This will be very brief. Rule 11 says if a pleading, 

motion or other paper is signed in violation of this rule, it applies 

to pleadings filed in the lawsuit, to motions. I appreciate the gentleman from New York’s repeated invitation to call him crazy, 

but—— [Laughter.] 

But if one looks at this, you realize it applies to defense motions. 

He had a concern that it would create more litigation when someone was sanctioned for filing a frivolous suit the third time or frivolous pleading the third time, and the fact is that anybody that files 

one of those in a case that’s clearly frivolous will subject themselves to further sanction. 

And I can tell you from State court discovery rules, where it took 

me three times of sanctioning people for discovery abuse to where 

people didn’t do it any more. And it cut out tremendous amount of 

frivolous motions, and they were from both plaintiff and defense 

side. This will help cut out unnecessary filings from both sides. 

And I support this amendment and original motion. 

Chairman SENSENBRENNER. The question is on the amendment 

offered by the gentleman from Florida, Mr. Keller. All those in 

favor will say aye. 

Opposed no? 

The ayes appear to have it. The ayes have it. The amendment 

is agreed to. 

For what purpose does the gentleman from Texas, Mr. Smith, 

seek recognition? 

Mr. SMITH OF TEXAS. Mr. Chairman, I have an amendment at 

the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to H.R. 420 offered by Mr. Smith of 

Texas. Page 2, strike line 2 and all that follows through line 12 on 

page 3, and insert the following. Section 2——

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read, and the gentleman from Texas is recognized for 

5 minutes. 

[The amendment follows:]

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Mr. SMITH OF TEXAS. Mr. Chairman, this amendment will improve the bill in several ways. First, it makes a technical fix in the 

wording of section 2 to clarify that appropriate sanctions against 

the filer of a frivolous lawsuit may include an order to pay the 

other party or parties for their reasonable expenses incurred as a 

direct result of the filing of their frivolous lawsuit. 

Second, the amendment excludes discovery requests and responses from being sanctioned under rule 11. Some sanctions for 

discovery abuse are already available under current law in Federal 

Rule 37. To include discovery abuse under rule 11 sanctions would 

be duplicative in many instances and cause unnecessary confusion. 

Third, it will amend section 3 of the bill so that mandatory sanctions will apply to frivolous lawsuits that a State judge determines, 


420G3.eps
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quote, ‘‘substantially affects,’’ end quote, interstate commerce. This 

change was made to track the language used in the most recent 

Supreme Court decisions regarding Congress’s interstate commerce 

powers. 

Last, section 4 is amended to clarify that if a defendant is an individual person rather than a corporation, that defendant may be 

sued where they reside among the other appropriate sites for a 

lawsuit as provided in the underlying bill. 

Mr. Chairman, I would also like to have unanimous consent to 

add the names of over 120 organizations that have endorsed this 

underlying bill, most recently the American Medical Association. 

[The information follows:]

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Chairman SENSENBRENNER. Without objection. 

Mr. SMITH OF TEXAS. Mr. Chairman, finally, just to alleviate the 

concerns of some of my colleagues and also to set the record 

straight, I’d like to just read a short finding of a 1990 poll that was 

taken by the Federal Judicial Center. This was a survey of 751 

Federal judges, and it found that an overwhelming majority of Federal judges believed, based on their experience under both a weaker and a stronger rule 11, that a stronger rule 11 did not impede 

development of the law, 95 percent; the benefits of the rule outweighed any additional requirement of judicial time, 72 percent; 

the stronger version of rule 11 had a positive effect on litigation in 

the Federal courts, 81 percent; and the rule should be retained in 

its then current form, 80 percent. Note that of the 751 judges surveyed in 1990, 583 responded in this very positive way. 

Mr. SCOTT. Would the gentleman yield? What year was that? 

Mr. SMITH OF TEXAS. That was 1990. And if I can anticipate 

maybe the next question that’s coming, Mr. Chairman, and as long 

as I have time remaining, let me say that the Federal Judicial Center’s recent 2005 survey of U.S. district court judges will be misused by opponents of legal reform as the evidence of frivolous lawsuits are not a problem. However, the survey of the Federal Judicial Center shows nothing of the sort, and let me give a little bit 

of historical background here. 

The Lawsuit Abuse Reduction Act would largely restore Federal 

Rule of Civil Procedure 11 to what it was before 1993. Prior to the 

adoption of weakening amendments in that year, which eliminated 

mandatory and serious sanctions against those who file frivolous 

lawsuits, rule 11 was widely popular among Federal judges, and it 

served to significantly limit lawsuit abuse. And in regard to the 

2005 survey, the most recent one, only 278 judges responded to 

that Federal Judicial Center’s latest survey. 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. They had nothing to compare it to. 

I would also say that that survey—and this skewed the results—

included specifically a sample of over 200 district judges who were 

appointed to the bench after January 1, 1992. So that skewed the 

results as well. 

Mr. Chairman, I will yield back——

Mr. BERMAN. Would the gentleman yield? 

Mr. SMITH OF TEXAS.—the balance of my time. 

Mr. BERMAN. Would the gentleman yield? 

Mr. SMITH OF TEXAS. Mr. Chairman, I will yield to the gentleman from California, Mr. Berman. 

Mr. BERMAN. Did either the 1990 survey or the 2005 survey indicate that the Federal judges believed that Federal Rule 11, which 

only applied to Federal cases, should be mandated on every State 

in the country and all State courts involving any lawsuit——

Mr. SMITH OF TEXAS. I’ll reclaim my time——

Mr. BERMAN.—affecting interstate commerce? 

Mr. SMITH OF TEXAS.—and say to the gentleman from California, 

the survey questions were pretty clear and the results of the 

judges’ feelings were pretty clear, too. There was no question that 

resulted in less than about an 80 percent positive reaction to rule 

11——

91

Mr. BERMAN. I’ll take that as an answer that they did not——

Mr. SMITH OF TEXAS. I don’t know whether they polled on that 

specific question or not. 

Mr. SCOTT. Will the gentleman yield? Will the gentleman yield? 

Mr. SMITH OF TEXAS. I’ll be happy to yield to the gentleman from 

Virginia, yes. 

Mr. SCOTT. Maybe I missed something. You said the 1990 survey—if it was taken in 1990, they wouldn’t have had an opportunity to compare the 1983 version to the 1993 version. The 2005 

survey presumably allows them to compare both the 1983 and ’93. 

The overwhelming preference was to leave——

Chairman SENSENBRENNER. The time of the gentleman has expired. Without objection, he will be given an additional minute. 

Mr. SCOTT. Thank you. The overwhelming preference is to leave 

things as they are, having been improved in 1993. Wouldn’t the 

1995 survey, with a lot of judges presumably having experience 

with both rules, be more valuable? 

Mr. SMITH OF TEXAS. Let me reclaim my time. That’s exactly the 

point I was making a while ago. In the 1995 survey, by specific direction, there were 200 judges that had no experience whatsoever 

with the former strong interpretation of rule 11, and that’s why 

that result was totally skewed, and that’s why the earlier survey 

was much more accurate. And I yield back the balance of my time. 

Chairman SENSENBRENNER. The question is on the amendment 

offered by the gentleman from Texas, Mr. Smith. Those in favor 

will say aye? Opposed, no? 

The ayes appear to have it. The ayes have it. The amendment 

is agreed to. 

Are there further amendments? The gentleman from New York, 

Mr. Nadler. 

Mr. NADLER. Thank you. Mr. Chairman, I have an amendment 

at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

Mr. NADLER. This is the one that says ‘‘ban on concealment.’’

The CLERK. Amendment to H.R. 420, offered by Mr. Nadler of 

New York. At the end of the bill, add the following new section: 

Section-Ban on Concealment of Unlawful Conduct. (1) In General.—In any case concerning rule 11——

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read, and the gentleman from New York will be recognized for 5 minutes. 

[The amendment follows:]

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Mr. NADLER. Thank you. Mr. Chairman, this is—this is similar 

to—it’s a modified version of the amendment I’ve offered the last 

few years, which the Chairman supported not last year but the 

year before last. Very often in civil litigation, the company may 

have an unsafe product or an unsafe procedure, and rather than 

go to trial, the company settles with the plaintiff. The company 

usually pays the plaintiff a certain amount of money because the 

plaintiff was injured by this unsafe product. Many times the condition of the settlement is that the records will be sealed and no one 

will ever talk about it. So both the plaintiff and the defendant go 

to the judge and say, Your Honor, we have a settlement to the 

case, and we both ask that you seal the record, and the judge will 

order the record sealed because both cases have asked—both sides 

have asked for it. 

Unfortunately, this often perpetuates a situation where the unsafe product is continued to be marketed and nothing changes because the company making the unsafe profit—product has, in effect, bought into a cover-up. This type of settlement in secrecy often 

keeps vital health and safety information out of the public’s reach. 

It leads to more needless injuries and deaths caused by defective 

products. 

Secrecy orders should not be enforced unless they meet stringent 

standards to protect the public interest. This amendment is tailored to address the problem. 

Now, it is different from last year’s amendment. Last year’s 

amendment required that a judge in the case concerning rule 11 

must make a finding of fact where a gag order is requested, and 

if he finds that the privacy interests outweigh—that the privacy interest outweighs the public interest, then the judge must allow the 

gag order and the secrecy. 

Here it says—in this amendment we’ve said that the court may 

not order that a court record be sealed or subjected to a protective 

order unless the court makes a finding of fact that identifies the 

interest that justifies the order and determines that that interest 

outweighs any interest in the public health and safety that the 

court determines would be served by not sealing or restricting the 

court record. 

So we’ve made the amendment somewhat more restrictive than 

last year’s amendment after some discussions with Mr. Smith. This 

does not prohibit the sealing of the record. This simply says that 

if you want the record sealed, the judge takes a look at the interest 


420H.eps
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why you say the record should be sealed, and at any public interest 

for public health and safety, limited to public health and safety, 

and he makes a determination which outweighs the other. And I 

think it’s in the public interest, and I would hope that the amendment could be supported. 

Mr. SMITH OF TEXAS. Would the gentleman yield? 

Mr. NADLER. I will. 

Mr. SMITH OF TEXAS. Mr. Chairman, I just want to say that I 

think the gentleman from New York makes a number of good 

points, or at least a sufficiently number of good points so that he 

and I can come to an agreement on an amendment that might be 

acceptable to the Chairman between now and the floor. And so I 

appreciate the gentleman withdrawing the amendment and look 

forward to working him—with him in good faith to a good resolution. 

Mr. NADLER. Well, thank you. Reclaiming my time, Mr. Smith 

makes the assumption that I will withdraw the amendment. It is 

indeed a good assumption. On that understanding that we’ll work 

on it between now and the floor, I will withdraw the amendment, 

and I thank the gentleman. 

Chairman SENSENBRENNER. And before the amendment is withdrawn, let the Chair state that he’s amenable to helping the two 

gentlemen work it out. 

Mr. NADLER. I appreciate that, sir. 

Chairman SENSENBRENNER. The amendment is withdrawn. 

Are there further amendments? The gentleman from Virginia, 

Mr. Scott. 

Mr. SCOTT. Mr. Chairman, I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to H.R. 420, offered by Mr. Scott of Virginia. At the end of the bill, add the following new section: Sectionpresumption of Rule 11 Violation for Repeatedly Relitigating Same 

Issue. Whenever a party attempts to——

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read, and the gentleman from Virginia is recognized 

for 5 minutes. 

[The amendment follows:]

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Mr. SCOTT. Mr. Chairman, a lot has been said about the increase 

in frivolous lawsuits. I offer this amendment to ensure that we 

truly rein in frivolous lawsuits without harming the ability of legitimate cases to be brought and to actually ascertain whether 

we’re serious about frivolous lawsuits. 

A few months ago, a national spotlight was focused on a case in 

which the defendant had successfully defended himself—his case 

19 separate times and survived multiple court reviews, all with 

judgments in his favor. However, the plaintiffs continued to retry 

the same case, forcing the defendant to repeatedly defend himself 

and expend huge amounts of time and money for his defense. 


420I.eps
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Mr. Chairman, that case is perhaps the best example of why this 

amendment should be adopted. When a case has been decided on 

the merits numerous times and each time the plaintiff receives an 

adverse decision, at some point the decision should be taken as conclusive. Bringing the case yet another time in another court is simply an abuse. It is a waste of the court’s time and resources, and 

it is unfair to the person who has repeatedly won the case, and yet 

is again required to defend it, expending even more time and 

money. 

Therefore, I propose that after three consecutive adverse decisions on the merits, a person attempting to file yet another claim 

on the same issue be saddled with a rebuttable presumption of a 

rule 11 violation. 

Now, it’s important to note that this presumption is rebuttable 

because we want to allow common sense in appropriate circumstances. But if we are going to prevent lawsuit abuse, we ought 

not allow an innocent victim to be subjected to unnecessary and repeat litigation time and time again. 

I urge my colleagues to support this amendment. 

Chairman SENSENBRENNER. Does the gentleman yield back? 

Mr. SCOTT. I yield back. 

Chairman SENSENBRENNER. The gentleman from Texas, Mr. 

Smith. 

Mr. SMITH OF TEXAS. Mr. Chairman, first of all, let me compliment the gentleman from Virginia for a particularly creative 

amendment. It is so creative, in fact, that it has caught the Chairman’s attention, and he recommends that we accept the amendment, and I will go along with his recommendation. 

Mr. Chairman, I yield back the balance of my time. 

Chairman SENSENBRENNER. The question is on the amendment 

offered by the gentleman from Virginia, Mr. Scott. Those in favor 

will say aye? Those opposed, no? 

The ayes appear to have it. The ayes have it, and the amendment is agreed to. 

Are there further amendments? If there are—the gentleman from 

New York, Mr. Nadler. 

Mr. NADLER. Yes, I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the other 

amendment at the desk. 

The CLERK. Amendment to H.R. 420, offered by Mr. Nadler. At 

the end of the bill, add the following new section: Section-Enhanced 

Sanctions for Document Destruction. (a) In General.—Whoever influences, obstructs, or impedes, or endeavors to influence, obstruct, 

or impede, a pending court proceeding through the intentional destruction of documents sought in, and high relevant to, that proceeding—(1) shall be punished with mandatory civil sanctions of a 

degree commensurate with the civil sanctions available under rule 

37 of the Federal Rules of Civil Procedure, in addition to any other 

civil sanctions that otherwise apply; and (2) shall be held in——

Mr. SMITH OF TEXAS. Mr. Chairman, I’ll reserve a point of order. 

Chairman SENSENBRENNER. Okay. A point of order is reserved. 

Without objection, the amendment is considered as read and subject to the reservation. 

[The amendment follows:]

96

Chairman SENSENBRENNER. The gentleman from New York is 

recognized for 5 minutes. 

Mr. NADLER. Thank you, Mr. Chairman. 

Mr. Chairman, in this bill that deals with lawsuit abuse, this is 

a type of abuse in lawsuits that can be very destructive. When corporations knowingly destroy documents and take actions to hide 

evidence of their wrongful conduct, they must be held accountable. 

Delays during litigation provide ample opportunities for wrongdoers to destroy documents that are essential to proving the claims 

against them. Because this conduct can result in the complete inability to hold these defendants accountable for their wrongful acts, 


420J.eps
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parties that engage in such flagrantly bad conduct, destroying relevant and incriminating documents, must be severely sanctioned. 

The document destruction amendment to H.R. 420 would provide 

mandatory sanctions to anyone who hinders a court proceeding by 

intentionally destroying documents relating to that proceeding. 

Consider some of the examples where, once a corporation became 

aware of the claims against it and the information sought by the 

claimant, they knowingly destroyed documents, for example, 

Enron. Enron allowed corporate executives to sell stock options at 

huge profit while prohibiting employees from diversifying their 

401(k) investments and conspired to hide financial information. 

This resulted in the $1.3 billion loss to thousands of employees. Despite engaging in this conduct, company executives shredded documents and destroyed evidence of their actions in an attempt to 

avoid culpability. 

Arthur Andersen. The accounting company Arthur Andersen was 

caught destroying documents in a class action case filed in Texas 

against Enron by retirees of Enron who were losing their pensions. 

Retirees had to endure a discovery delay of near one and a half 

years because of the special rules that apply to securities lawsuits. 

It was during this delay that Arthur Andersen deliberately destroyed key documents necessary for the employees to prove their 

case. 

WorldCom. In the case of WorldCom, the Securities and Exchange Commission learned from their experiences with the Enron 

case and hired a corporate monitor in order to reduce the chance 

that key documents would be destroyed. ‘‘‘On day one, we filed the 

lawsuit against WorldCom, and on day two, we forged an agreement for a corporate monitor,’ Mr. Breslin said. We wanted to react 

to some of our experiences at Enron. We wanted to make sure 

there was no document destruction in WorldCom and no excessive 

compensation paid to executives at the same time.’’ That’s a quote 

from the New York Law Journal of October 7 of last year. 

So in all these cases we see deliberate destruction of documents 

while the SEC’s spending a lot of money because they expect deliberate destruction of documents, and we ought to—obviously deliberate destruction of relevant documents in a lawsuit is subversive 

of justice, subversive of the rights of the other party, whether they 

be plaintiff or defendant. It can go either way. And so this amendment to increase the sanctions, to put real teeth into the sanctions 

against the destruction of relevant court documents would seem to 

be indicated and would seem to fit squarely within this bill on frivolous lawsuits. 

I therefore urge my colleagues to adopt the amendment. I yield 

back. 

Chairman SENSENBRENNER. Does the gentleman from Texas insist upon his point of order? 

Mr. SMITH OF TEXAS. Mr. Chairman, I do. 

Chairman SENSENBRENNER. The gentleman will state his point of 

order. 

Mr. SMITH OF TEXAS. Thank you, Mr. Chairman. 

Mr. Chairman, this amendment is too broad because it simply 

goes beyond rule 11. Therefore, it’s not germane, and I insist on my 

point of order despite the fact that the amendment is well intended. 

98

Chairman SENSENBRENNER. Will the gentleman repeat what he 

just said? 

Mr. SMITH OF TEXAS. The mike is on. Mr. Chairman, I want to 

make the point again that this amendment is non-germane because 

the substance of the amendment goes beyond rule 11. It deals with 

rule 37 and, therefore, it’s too broad, therefore, it’s not germane, 

and for that reason I insist on my point of order, as well intended 

as the amendment might be. 

Chairman SENSENBRENNER. The gentleman from New York. 

Mr. NADLER. I seem to recall that there are aspects of this bill 

that go beyond rule 11. 

Mr. BERMAN. Would the gentleman yield? 

Mr. NADLER. Certainly. 

Mr. BERMAN. How could any amendment to a bill that takes 

every State court action and subjects it to Federal rules about rule 

11 be—how could any amendment be too broad for that bill? 

Mr. SMITH OF TEXAS. If the gentleman will yield, once again, 

there is nothing in the underlying bill that deals with rule 37. But 

to answer the gentleman’s question, his own point was way too 

broad. It doesn’t deal with every State court. It only deals with 

State courts that had that substantial connection to interstate commerce. So just as the gentleman’s statement was too broad, so is 

the amendment too broad, and for that reason non-germane. 

Chairman SENSENBRENNER. The Chair is prepared to rule. In the 

opinion of the Chair, the amendment offered by the gentleman 

from New York is not germane for two reasons: 

First of all, the bill proposes to amend rule 11 of the Federal 

Rules of Civil Procedure. The amendment offered by the gentleman 

from New York makes no reference to rule 11 of the Federal Rules 

of Civil Procedure; rather, it makes reference to rule 37 of the Federal Rules of Civil Procedure. 

Secondly, the underlying bill is applicable to Federal court actions and State court actions that affect interstate commerce. The 

amendment offered by the gentleman from New York does not have 

the restriction on State court actions that apply to interstate commerce, but all State court actions. 

For the reasons the Chair has stated, the point of order is sustained. 

Are there further amendments? 

Mr. CONYERS. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Michigan. 

Mr. NADLER. Mr. Chairman? 

Mr. CONYERS. I yield. 

Mr. NADLER. Mr. Chairman, I ask for—I appeal the ruling of the 

Chair. 

Chairman SENSENBRENNER. The question is——

Mr. SMITH OF TEXAS. Mr. Chairman I’ll——

Chairman SENSENBRENNER. The gentleman from Texas. 

Mr. SMITH OF TEXAS. I’ll move to table the motion, Mr. Chairman. 

Chairman SENSENBRENNER. The question is on tabling the motion to appeal the decision of the Chair. Those in favor of tabling 

will say aye? Opposed, no? 

The ayes appear to have it. The ayes have it. The appeal is tabled. 

99

Mr. CONYERS. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Michigan. 

Mr. CONYERS. I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to H.R. 420, offered by Mr. Conyers. 

Page 6, after line 5, insert the following new section (and redesignate succeeding sections accordingly). Section 5. Limitation. The 

provisions of this act do not apply——

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read. 

[The amendment follows:]


420K.eps
100

Chairman SENSENBRENNER. The gentleman from Michigan will 

be recognized for 5 minutes. 

Mr. CONYERS. Thank you, Mr. Chairman. 

This amendment provides that the provisions of this act will not 

apply to an action against a manufacturer, seller, or trade association that, after this measure is passed, shifts or transfers employment positions or facilities to a location outside of the United 

States. It’s an anti-outsourcing amendment to the measure. I offer 

this to prevent companies that outsource American jobs overseas 

from benefiting from the liability protections in the legislation. And 

this provision would send a clear, unambiguous signal that if one 

is selling a product or service made in the U.S.A. and wanted to 

continue to receive the extralegal liability protections in this country, then the company cannot continue to outsource jobs. And I 

think we at least owe this much to American workers everywhere. 

This amendment allows ourselves to state that we can’t continue 

to reward those countries that outsource jobs abroad with tax benefits, with Government contracts, and with new legal benefits. Companies, for example, Travelocity, that close their United Statesbased facilities and outsource jobs abroad cause workers their jobs 

and their livelihood and contribute to the ever-rising unemployment rate. 

Furthermore, these actions perpetrate a fraud on our citizens. 

They think they’re buying products made in the United States, but 

the product is really frequently made overseas. 

Do we really want to reward those companies by increasing their 

liability protections? And so we, in order to get a grip on the subject of outsourcing, before our economy is permanently damaged, 

which it already has been—we’ve lost approximately $4 billion in 

American wages, and this is expected to increase to a staggering 

$136 billion over the next 15 years. 

And so I urge my colleagues to join me in protecting Americans 

and American jobs and not reward outsourcing companies with increased liability protections. Please accept this amendment, and I 

return my time. 

Chairman SENSENBRENNER. The question is on the amendment 

offered by the gentleman from Michigan, Mr. Conyers. Those in 

favor will say aye? Opposed, no? 

The noes appear to have it. The noes have it. The amendment 

is not agreed to. 

Are there——

Mr. CONYERS. Yes, a record vote. 

Chairman SENSENBRENNER. A record vote is requested. The question is on agreeing to the Conyers amendment. Those in favor will, 

as your names are called, answer aye, those opposed no, and the 

clerk will call the roll. 

The CLERK. Mr. Hyde? 

[No response.] 

The CLERK. Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. Mr. Smith? 

Mr. SMITH OF TEXAS. No. 

The CLERK. Mr. Smith, no. Mr. Gallegly? 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. Mr. Goodlatte? 

101

[No response.] 

The CLERK. Mr. Chabot? 

[No response.] 

The CLERK. Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. Mr. Cannon? 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. Mr. Bachus? 

[No response.] 

The CLERK. Mr. Inglis? 

[No response.] 

The CLERK. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. Mr. Green? 

[No response.] 

The CLERK. Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. Mr. Flake? 

[No response.] 

The CLERK. Mr. Pence? 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. Mr. Feeney? 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

Mr. BERMAN. Aye. 

The CLERK. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

[No response.] 

The CLERK. Ms. Lofgren? 

[No response.] 

The CLERK. Ms. Jackson Lee? 

[No response.] 

The CLERK. Ms. Waters? 

[No response.] 

The CLERK. Mr. Meehan? 

[No response.] 

102

The CLERK. Mr. Delahunt? 

[No response.] 

The CLERK. Mr. Wexler? 

[No response.] 

The CLERK. Mr. Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Smith? 

[No response.] 

The CLERK. Mr. Van Hollen? 

[No response.] 

The CLERK. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Members in the chamber who wish 

to cast or change their votes? The gentleman from South Carolina, 

Mr. Inglis. 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. 

Chairman SENSENBRENNER. Further Members who wish to 

cast—the gentleman from Massachusetts, Mr. Meehan? 

Mr. MEEHAN. Aye. 

The CLERK. Mr. Meehan, aye. 

Chairman SENSENBRENNER. Further Members who wish to cast 

or change their vote? If not, the clerk will report. The gentleman 

from North Carolina, Mr. Watt. 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. 

Chairman SENSENBRENNER. The gentlewoman from California, 

Ms. Waters? 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. 

Chairman SENSENBRENNER. The gentleman from Maryland, Mr. 

Van Hollen. 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. 

Chairman SENSENBRENNER. Further Members who wish to cast 

or change their vote? 

Mr. NADLER. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from New York, Mr. 

Nadler. 

Mr. NADLER. How am I recorded? 

The CLERK. Mr. Chairman, Mr. Nadler is an aye. 

Mr. NADLER. I’m recorded in the affirmative? 

The CLERK. Yes, sir. 

Mr. NADLER. Thank you. 

The CLERK. Mr. Chairman. 

Chairman SENSENBRENNER. The clerk will report. 

The CLERK. Mr. Chairman, there are 11 ayes and 17 noes. 

Chairman SENSENBRENNER. And the amendment is not agreed 

to. 

103

Are there further amendments? If there are no further amendments—the gentleman from New York. 

Mr. NADLER. I will have in about a minute, as soon as it comes 

back from the typist, an amendment. 

Well, I can—Mr. Chairman, I can move to strike the last word 

in the meantime. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. Maybe he can tell us about his amendment before——

Mr. NADLER. Yes, the amendment is identical to the amendment 

I introduced a few moments ago on draft—on prohibiting—on sanctioning destruction of relevant court documents, with two changes. 

One, in accordance with the ruling of the Chair, it limits its application to Federal courts and State courts that substantially affect 

interstate commerce, the exact language of Mr. Smith’s amendment, and, therefore, would not be out of order on that count. And, 

secondly, it talks about sanctions in rule 11 rather than rule 37. 

Rule 11 sanctions are not as broad as rule 37 sanctions, but they’re 

sufficient for the job, we think. So that would eliminate the other 

grounds for ruling the amendment out of order. 

Substantively, it’s the same amendment and we’ll now have to 

address the substance of the amendment. This amendment says 

that we will apply sanctions to a party in a lawsuit—and I see the 

amendment has just arrived. 

Chairman SENSENBRENNER. Does the gentleman yield back? 

Mr. NADLER. Yes, I will. 

Chairman SENSENBRENNER. Are there further amendments? The 

gentleman from New York. 

Mr. NADLER. Thank you. This amendment——

Chairman SENSENBRENNER. Does the gentleman from New York 

have an amendment at the desk? 

Mr. NADLER. I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to H.R. 420, offered by Mr. Nadler. At 

the end of the bill, add the following new section: Section-Enhanced 

Sanctions for Document Destruction. (a) In General——

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read. 

[The amendment follows:]

104

Chairman SENSENBRENNER. The gentleman from New York will 

be recognized for 5 minutes. 

Mr. NADLER. Thank you, Mr. Chairman. As you can see, it makes 

two changes in the previous amendment, rule 11 sanctions instead 

of rule 37 sanctions, and limits it to State courts that substantially 

affect interstate commerce. 

So we should now debate the substance of the bill, since the two 

grounds ruling it—of the amendment, the two grounds ruling it out 

of order are no longer applicable. 

The substance is very simple. Someone who is sued or for that 

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420L.eps
105

ingly destroy relevant documents that the other party will have a 

right to see in order to frustrate proof. 

This was done, as I said, in the Enron situation, in WorldCom, 

Arthur Anderson, and we’ve all read of situations. This is a fraud 

on the court. It’s a fraud on the other side. It’s against justice. I 

can’t imagine why anyone would support deliberate destruction of 

relevant court documents by people who knowingly destroy them 

because they know that they are relevant. And this simply says 

that they should be sanctioned under rule 11 and in addition to 

whatever obviously not quite effective enough sanctions we have 

under current law. 

Chairman SENSENBRENNER. Does the gentleman yield back? 

Mr. NADLER. I yield back. 

Chairman SENSENBRENNER. The gentleman from Texas. 

Mr. SMITH OF TEXAS. Mr. Chairman, on your recommendation, 

which is to accept the amendment, I will do so as well, but I 

wouldn’t want to encourage individuals from the other side to think 

this is going to be a habit any time soon. 

Chairman SENSENBRENNER. Will the gentleman yield? 

Mr. SMITH OF TEXAS. Yes. I’ll be happy to yield. 

Chairman SENSENBRENNER. Well, if the gentleman will yield, I 

will concur that this is not a habit-forming amendment. 

Mr. NADLER. We appreciate that, sir. 

Chairman SENSENBRENNER. Does the gentleman yield back? 

Mr. SMITH OF TEXAS. Yes, I yield back. 

Chairman SENSENBRENNER. The question is on agreeing to the 

amendment offered by the gentleman from New York, Mr. Nadler. 

Those in favor will say aye. 

Opposed no. 

The ayes appear to have it. The ayes have it. The amendment 

is agreed to. 

Are there further amendments? If there are no further amendments, a reporting quorum is present. 

The question occurs on the motion to report the bill H.R. 420 favorably as amended. All in favor will say aye. 

Opposed no. 

The ayes appear to have it. The ayes have it, and the motion to 

report favorably is agreed to. Without objection, the bill will be reported favorably to the House in the form of a single amendment 

in the nature of a substitute——

Mr. CONYERS. Record vote, sir. 

Chairman SENSENBRENNER. Oh. Okay. Those in favor of reporting the bill favorably as amended will as your names are called answer aye. Those opposed no, and the Clerk will call the roll. 

The CLERK. Mr. Hyde? 

[No response.] 

The CLERK. Mr. Coble? 

Mr. COBLE. Aye. 

The CLERK. Mr. Coble, aye. Mr. Smith? 

Mr. SMITH OF TEXAS. Aye. 

The CLERK. Mr. Smith, aye. Mr. Gallegly? 

Mr. GALLEGLY. Aye. 

The CLERK. Mr. Gallegly, aye. Mr. Goodlatte? 

[No response.] 

The CLERK. Mr. Chabot? 

106

Mr. CHABOT. Aye. 

The CLERK. Mr. Chabot, aye. Mr. Lungren? 

Mr. LUNGREN. Aye. 

The CLERK. Mr. Lungren, aye. Mr. Jenkins? 

Mr. JENKINS. Aye. 

The CLERK. Mr. Jenkins, aye. Mr. Cannon? 

Mr. CANNON. Aye. 

The CLERK. Mr. Cannon, aye. Mr. Bachus? 

[No response.] 

The CLERK. Mr. Inglis? 

Mr. INGLIS. Aye. 

The CLERK. Mr. Inglis, aye. Mr. Hostettler? 

Mr. HOSTETTLER. Aye. 

The CLERK. Mr. Hostettler, aye. Mr. Green? 

[No response.] 

The CLERK. Mr. Keller? 

Mr. KELLER. Aye. 

The CLERK. Mr. Keller, aye. Mr. Issa? 

Mr. ISSA. Aye. 

The CLERK. Mr. Issa, aye. Mr. Flake? 

[No response.] 

The CLERK. Mr. Pence? 

Mr. PENCE. Aye. 

The CLERK. Mr. Pence, aye. Mr. Forbes? 

Mr. FORBES. Aye. 

The CLERK. Mr. Forbes, aye. Mr. King? 

Mr. KING. Aye. 

The CLERK. Mr. King, aye. Mr. Feeney? 

[No response.] 

The CLERK. Mr. Franks? 

Mr. FRANKS. Aye. 

The CLERK. Mr. Franks, aye. Mr. Gohmert? 

Mr. GOHMERT. Aye. 

The CLERK. Mr. Gohmert, aye. Mr. Conyers? 

Mr. CONYERS. No. 

The CLERK. Mr. Conyers, no. Mr. Berman? 

Mr. BERMAN. No. 

The CLERK. Mr. Berman, no. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. No. 

The CLERK. Mr. Nadler, no. Mr. Scott? 

Mr. SCOTT. No. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

Mr. WATT. No. 

The CLERK. Mr. Watt, no. Ms. Lofgren? 

[No response.] 

The CLERK. Ms. Jackson Lee? 

[No response.] 

The CLERK. Ms. Waters? 

Ms. WATERS. No. 

The CLERK. Ms. Waters, no. Mr. Meehan? 

Mr. MEEHAN. No. 

The CLERK. Mr. Meehan, no. Mr. Delahunt? 

[No response.] 

107

The CLERK. Mr. Wexler? 

[No response.] 

The CLERK. Mr. Weiner? 

[No response.] 

The CLERK. Mr. Schiff? 

Mr. SCHIFF. No. 

The CLERK. Mr. Schiff, no. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. No. 

The CLERK. Ms. Sa ́nchez, no. Mr. Smith? 

[No response.] 

The CLERK. Mr. Van Hollen? 

Mr. VAN HOLLEN. No. 

The CLERK. Mr. Van Hollen, no. 

The CLERK. Mr. Chairman? 

Chairman SENSENBRENNER. Aye. 

The CLERK. Mr. Chairman, aye. 

Chairman SENSENBRENNER. Members in the chamber who wish 

to cast or change their vote. The gentleman from Florida, Mr. 

Feeney? 

Mr. FEENEY. Aye. 

The CLERK. Mr. Feeney, aye. 

Chairman SENSENBRENNER. Further Members who wish to cast 

or—the gentleman from Alabama, Mr. Bachus. 

Mr. BACHUS. Aye. 

The CLERK. Mr. Bachus, aye. 

Chairman SENSENBRENNER. Further Members who wish to cast 

or change their vote. If not the Clerk will report. 

The CLERK. Mr. Chairman, there are 19 ayes and 10 noes. 

Chairman SENSENBRENNER. And the motion to—the gentleman 

from New York, Mr. Weiner. 

Mr. WEINER. How am I recorded? 

The CLERK. Mr. Chairman, Mr. Weiner is not recorded. 

Mr. WEINER. No, Mr. Chairman. 

The CLERK. Mr. Weiner, no. 

Chairman SENSENBRENNER. The Clerk will report again. 

The CLERK. Mr. Chairman, there are 19 ayes and 11 noes. 

Chairman SENSENBRENNER. And the motion to report favorably 

as amended is agreed to. Without objection, the bill will be reported 

favorably to the House in the form of a single amendment in the 

nature of a substitute incorporating the amendments adopted here 

today. Without objection, the staff is directed to make any technical 

and conforming changes and all Members will be given 2 days as 

provided by the House rules in which to submit additional dissenting supplemental or minority views. 

[Intervening business.] 

Chairman SENSENBRENNER. The Chair would like to thank the 

Members and staff for their patience. We have completed a very 

ambitious agenda today. There will be no markup tomorrow because the agenda has been completed, and the Committee stands 

adjourned. 

[Whereupon, at 3:43 p.m., the Committee was adjourned.] 

(109)

ADDITIONAL VIEWS

Mr. Chairman, I would like to submit for the record the votes I 

would have made had I not been unavoidably absent from the 

markup proceeding on H.R. 420, May 25, 2005. 

On rollcall #10, the Conyers Amendment #010 to H.R. 420 I 

would have voted no. 

On rollcall #11 the Motion to Report H.R. 420 I would have voted 

aye.

MARK GREEN. 

(111)

1Since these changes amend the Federal Rules of Civil Procedure, they are all subject to 

modification or revision by the Federal judiciary pursuant to the Rules Enabling Act. See 28 

U.S.C. §§ 2071–2077 (2004). 2 Currently, no withdrawal right exists for court-initiated sanctions. 

3Such violations are already subject to mandatory sanctions under Rule 26 (g) of the Federal 

Rules. 

DISSENTING VIEWS

We oppose H.R. 420 because it will not reduce frivolous lawsuits 

but will increase the costs of litigation at the state and Federal 

level, significantly increase the complexity of all cases, set back the 

cause of civil rights, and confuse entirely Federal and state law 

concerning personal jurisdiction and venue. This sweeping overhaul 

of our civil justice system predicated on the thinnest conceivable 

record, with no hearing and on the basis of a few anecdotes and 

hypothetical concerns. 

The legislation is opposed by numerous civil rights, consumer 

and judicial groups, including the United States Judicial Conference, the NAACP, Public Citizen, the Alliance for Justice, People 

for the American Way, the American Association of People with 

Disabilities, the Lawyers’ Committee for Civil Rights Under Law, 

the Conference of Chief Justices, the American Bar Association, the 

National Conference on State Legislatures, National Partnership 

for Women, National Women’s Law Center, the Center for Justice 

& Democracy, Consumers Union, National Association of Consumer 

Advocates, USAction, U.S. PIRG, and the Legal Defense Fund. The 

legislation is also opposed by several law professors who specialize 

in civil procedure, including Thomas Rowe of Duke Law School, 

Christopher Fairman at Ohio State University, Moritz College of 

Law, and Jonathan Siegel at George Washington University Law 

School. 

For the reasons set forth herein, we respectfully dissent. 

DESCRIPTION OF LEGISLATION

Section 2 of the bill makes a number of changes to Rule 11 of 

the Federal Rules of Civil Procedure concerning attorney sanctions 

for improper pleadings and motions.1 First, it would revert to the 

pre-1993 rules by removing a court’s discretion to impose sanctions 

on improper and frivolous pleadings (e.g., it makes the sanctions 

mandatory, rather than discretionary). Second, it would eliminate 

the current ‘‘safe harbor’’ provision permitting attorneys to withdraw improper or frivolous motions 21 days after they are challenged by opposing counsel.2 Third, it would eliminate the provision providing that the sanction rules do not apply to discovery violations.3

Section 3 of the bill applies this new Federal Rule 11 to state 

cases that affect interstate commerce and requires the judges to 

112

4 John Shepard et al., Fed. Jud. Ctr., Report of a Survey Concerning Rule 11, Federal Rules 

of Civil Procedure 11 (1995). The Federal Judicial Center is the educational and research arm 

of the Federal judiciary. See 28. U.S.C. § 620 (2004). 5Lawrence C. Marshall et al., The Use and Impact of Rule 11, 86 Nw. U. L. Rev. 943 (1992). 6 Ending Illegitimate Advocacy: Reinvigorating Rule 11 Through Enhancement of the Ethical 

Duty to Report, 62 OHSLJ 1555, 1568 (2001). 

make this determination within 30 days after the filing of the motion for sanctions. 

Section 4 of the bill alters both Federal and state jurisdiction and 

venue rules. It provides that suits may ‘‘only’’ be filed in the state 

and county (or Federal district) where the plaintiff resides, where 

the injury took place, or where the defendant’s principal place of 

business is located. As such, it eliminates the possibility of a 

harmed victim pursing a corporate defendant where it is incorporated and in many states where it is found to be doing business. 

It also contains a ‘‘most appropriate forum’’ provision, which mandates dismissal of the lawsuit (rather than transfer) if the court determines another forum ‘‘would be the most appropriate forum.’’

Section 5 of the bill is a rule of construction, stating that the proposed Rule 11 modifications are not to be construed to bar or impede the assertion or development of ‘‘new claims or remedies 

under the civil rights laws.’’

I. MANDATORY SANCTIONS WILL HARM CIVIL RIGHTS ACTIONS: 

By requiring a mandatory sanctions regime that would apply to 

civil rights cases, H.R. 420 will chill many legitimate and important civil rights actions. This is due to the fact that much, if not 

most, of the impetus for the 1993 changes stemmed from abuses by 

defendants in civil rights cases—namely that civil rights defendants were choosing to harass civil rights plaintiffs by filing a series 

of rule 11 motions intended to slow down and impede meritorious 

cases. 

For example, a 1991 Federal Judicial Study: The Federal Judicial Center’s Study of Rule 11 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.’’ 4 Another study showed that ‘‘civil 

rights case made up 11.4% of Federal cases filed, [and] that 22.7% 

of the cases in which sanctions had been imposed were civil rights 

cases.’’ 5

Another recent study found that ‘‘revisions to Rule 11 (the 1993 

amendments) alleviate what was perceived as the rule’s disproportionate impact on civil rights plaintiffs. Under the 1983 version, 

both the fact that sanctions were mandatory and that there was a 

significant risk that a large attorney fee award would be the sanction of choice were believed to have had a stifling effect on the filing of legitimate civil rights claims. . . . Furthermore, there is 

ample evidence to suggest that plaintiffs and civil rights plaintiffs 

in particular, were far more likely than defendants to be the targets of Rule 11 motions and the recipients of sanctions.’’ 6

As Professor Theodore Eisenberg, Professor Law, Cornell University testified before the House Judiciary Committee during the 

hearing on H.R. 4571 in the 108th Congress, ‘‘A Congress considering reinstating the fee-shifting aspect of Rule 11 in the name of 

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7 Uncertain and Certain Litigation Abuses, 2004: Hearings on Safeguarding Americans from 

a Legal Culture of Fear: Approaches to Limiting Lawsuit Abuse, Before the House Comm. on the 

Judiciary, 108th Cong. (2004) (statement of Theodore Eisenberg, Professor, Cornell University). 8Symposium, The 50th Anniversary of the Federal Rules of Civil Procedure, 1938–1988, The 

Federal Rules of Civil Procedure as a Vindicator of Civil Rights, 137 U. Pa. L. Rev. 2179, 2193 

(June 1989). 9Letter from Leonidas Ralph Mecham, Secretary, U.S. Judicial Conference, to Honorable F. 

James Sensenbrenner, Jr., Chairman, House Committee on the Judiciary, May 17, 2005. 

couraging the 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.’’ 7

A good example of the effect of this rule on civil rights cases was 

cited by the Honorable Robert L. Carter, United States District 

Court Judge for the Southern District of New York, when he stated: ‘‘I have no doubt that the Supreme Court’s opportunity to pronounce separate schools inherently unequal [in Brown v. Board of 

Education] would have been delayed for a decade had my colleagues and I been required, upon pain of potential sanctions, to 

plead our legal theory explicitly from the start.’’ 8

The language in the bill that purports to mitigate the damage to 

civil rights cases is not sufficient to alleviate our concerns. Section 

5 of the bill states that the proposed Rule 11 changes shall not be 

construed to ‘‘bar or impede the assertion or development of new 

claims or remedies under Federal, State, or local civil rights law.’’ 

The problem is the language does not clearly and simply exempt 

civil rights and discrimination cases, as should be the case. Determining what a ‘‘new claim or remedy’’ is will be a daunting and 

complex issue for most courts and clearly does not cover all civil 

rights cases in any event. 

Finally, H.R. 420 does not provide an attorney with the ability 

to appeal a Rule 11 sanction. History has demonstrated that civil 

rights lawsuits are extremely unpopular, particularly in certain 

parts of the country where some judges almost automatically consider civil rights cases frivolous. In such courts, plaintiffs’ attorneys 

would unreasonably be subject to sanctions, and even suspension, 

without appeal contrary to the purpose of Rule 11. 

II. FEDERAL JUDGES OPPOSE THESE CHANGES TO RULE 11: 

The Federal judiciary—the individuals most affected by these 

changes to Rule 11—oppose changes to Rule 11 that would make 

sanctions mandatory rather than discretionary. On May 17, 2005, 

the Judicial Conference of the United States wrote a letter to 

Chairman Sensenbrenner stating, in no uncertain terms, that ‘‘the 

proposed changes to Rule 11 will not help deter litigation abuses, 

but will increase satellite litigation, costs, and delays.’’ 9 The letter 

includes a report by the Federal Judicial Center: ‘‘Report of a Survey of United States District Judges’ Experiences and Views Concerning Rule 11, Federal Rules of Civil Procedure.’’ The report, prepared at the request of the Judicial Conference’s Advisory Committee on Civil Rules, surveyed trial judges who apply the rules. 

The survey included judges who have had experience under both 

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10 Id. at 2. 11 Id. (emphasis added). 12 Id. at 3. 13 Id. 14 As a threshold, it is quite problematic even determining how the forum shopping provision 

would apply. Depending upon the meaning of the term ‘‘only’’ in the phrase ‘‘may be filed only 

in the state... ,’’ the provision could be read as (1) creating a new grant of jurisdiction and 

venue, or (2) merely limiting the current rules to the specified new rules. If it is a new grant 

of jurisdiction and venue, the section would serve to authorize suits wherever plaintiffs reside 

or were injured, even if there are no minimum contacts with the defendant. This would lead 

to an explosion in cases, and would decimate years of Supreme Court decisions holding that defendants may only be sued where jurisdiction lies (Pennoyer v. Neff, 20 A.L.R. 3d (1201)) or 

where the defendant has minimum contacts (International Shoe Co. v Washington, 326 U.S. 310 

(1945)). If the provision operates as a limit on the current rules, it would represent a significant 

Federal usurpation of state court rules, possibly in violation of the Commerce Clause and the 

rience under the 1993 version only.10 As the letter states, the report ‘‘shows a remarkable consensus among Federal district judges 

supporting existing Rule 11 and opposing its amendment.’’ 11

Specifically, ‘‘the survey’s findings include the following highlights:

• More than 80 percent of the 278 district judges surveyed indicate that ‘‘Rule 11 is needed and it is just right as it now 

stands’’;

• 87 percent prefer the existing Rule 11 to the 1983 version or 

the version proposed by legislation (e.g., H.R. 4571 or H.R. 

420);

• 85 percent strongly or moderately support Rule 11’s safe harbor provisions;

• 91 percent oppose the proposed requirement that sanctions 

be imposed for every Rule 11 violation;

• 84 percent disagree with the proposition that an award of attorney fees should be mandatory for every Rule 11 violation;

• 85 percent believe that the amount of groundless civil litigation has not grown since the promulgation of the 1993 rule, 

with 12 percent noting that such litigation has not been a 

problem, 19 percent noting that such litigation decreased 

during their tenure on the Federal bench, and 54 percent 

noting that such litigation has remained relatively constant; 

and

• 72 percent believe that addressing sanctions for discovery 

abuse in rule 26(g) and 37 is better than in Rule 11.’’ 12

As the Federal Judicial Center’s study shows, ‘‘federal district 

judges [are] united [in] opposition to amending Rule 11.’’ 13

III. THE FORUM SHOPPING PROVISION WILL UNFAIRLY BENEFIT FOREIGN CORPORATIONS TO THE DISADVANTAGE OF THEIR U.S. COMPETITORS: 

Section 4 of the bill would recast state and Federal court jurisdiction and venue in personal injury cases. The provision would operate to provide a litigation and financial windfall to foreign corporations at the expense of their domestic competitors. This is because, 

instead of permitting claims to be filed wherever a corporation does 

business or has minimum contacts, as most state long-arm statutes 

provide, Section 4 only permits the suit to be brought where the 

defendant’s principal place of business is located.14 This means 

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Tenth Amendment. See, e.g., United States v. Morrison, 529 U.S. 598 (2000) and United States 

v. Lopez, 514 U.S. 549 (1995), striking down the Violence Against Women Act and the Gun Free 

School Zone Act as unconstitutional, holding that Congress lacked the authority to pass laws 

that have only an attenuated affect on interstate commerce. This point is highlighted in a letter 

analyzing the bill from Professor Christopher Fairman of the Ohio State University, Moritz College of Law. In his letter, Professor Fairman states that ‘‘the venue provision of section 4 has 

absolutely no constitutional anchor. Quite simply, Congress does not have the authority under 

the Constitution to impose a venue statute on personal injury litigants who file their claims in 

state court.’’

that it will be far more difficult to pursue a personal injury or product liability action against a foreign corporation in the United 

States. 

Consider the case of a U.S. citizen that is harmed by a product 

produced or manufactured by a foreign competitor. If that foreign 

company transacts business or has minimum contacts in a state 

other than the state of the plaintiff’s residence or where the injury 

occurred, as is often the case, any suit against the foreign company 

would be banned by H.R. 420. In other words, the harmed U.S. citizen would have no recourse against a foreign corporation, whereas 

he or she would have recourse against a comparable U.S. corporation. This is unfair to both the U.S. citizen and all U.S. companies 

that compete against the foreign firm. It is hard for us to understand why the Congress would want to pass a law that grants foreign companies such a financial windfall at the expense of U.S. 

firms. 

IV. SECTION 4 WILL PLACE VICTIMS AT A SIGNIFICANT LITIGATION

DISADVANTAGE COMPARED WITH CORPORATE DEFENDANTS: 

It is difficult to consider H.R. 420 as even-handed litigation reform, when it is drafted to so obviously benefit corporate defendants. Consider the operation of subsection (b), requiring a court to 

dismiss properly filed legal claims if it determines another forum 

would be ‘‘the most appropriate.’’ There is no legal precedent for a 

court having such open-ended authority to dismiss lawful actions. 

The problems and unfairness with this provision are many. First, 

of course, is the ambiguous, open-ended wording. The legislation 

gives absolutely no guidance as to what a court is to take into account in determining which court is ‘‘most appropriate.’’ Is it nexus 

to the injury, the plaintiff, the defendant or the bulk of other 

claims? Until this issue is worked out, significant hardships will no 

doubt result. While defendants do not mind waiting, the confusion 

would work a significant disadvantage to harmed victims in immediate need of compensation. Moreover, beyond this ambiguity, mandating dismissal would seem to be an extreme and costly remedy 

as compared to simply transferring the case to another court. 

Section 4 suffers from an overall ambiguity in drafting. First, it 

is unclear whether the finding of the first court that a second court 

is most appropriate binds the second court under general rules of 

preclusion. If it is binding, the first court might make an egregious 

error that would inappropriately transfer a case to a second court 

a case, leaving that the parties no recourse. However, if the decision is not binding, then plaintiffs’ lawsuits could get bounced 

around by a string of courts, all asserting that another court is 

most appropriate. Further adding to confusion, it is also unclear 

whether a dismissal is appealable, which could cause huge delays. 

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15 America’s Litigious Businesses, September 2004, study on file with Judiciary Committee. 16 It is worth noting that Public Citizen’s survey of the 100 most recent decisions by Federal 

judges finding Rule 11 violations found that businesses were almost twice as likely as personal 

injury plaintiffs to be sanctioned for engaging in frivolous litigation. 17Frank Lutz, Language of the Twenty-First Century (1997) 

Even more problematic, the provision is unclear as to whether the 

statute of limitations would be tolled during such appeal (the statute is tolled until the claim is dismissed under the bill, but what 

about afterwards until a new claim is filed?). The provision will 

also cause delay because it requires the state court to make another time consuming and costly determination before accepting or 

dismissing the case. Again, while these delays may not burden a 

defendant, plaintiffs, who may be in drastic need of medical attention and expenses, are deprived of timely adjudication of their 

claims. 

Moreover, it seems fundamentally unfair for Section 4 to apply 

only to personal injury lawsuits when studies show that business 

lawsuits are far more prevalent and costly. In fact, a study by Public Citizen shows that businesses file four times as many lawsuits 

as do individuals represented by trial lawyers.15 Another paper, reported by the National Law Journal in November 2003, showed 

that of the top ten jury verdicts rendered thus far that year, 8 of 

the 10 involved businesses suing other businesses—accounting for 

$3.12 billion of the total $3.54 billion awarded by the ten juries. 

Only two of the ten cases were brought by individuals for personal 

injuries.16 If the Majority believes so strongly in the efficacy of this 

forum shopping provision, they should be willing to apply it across 

the board. 

CONCLUSION

Says one briefing book for House Republicans: ‘‘attacking trial 

lawyers is admittedly a cheap applause line, but it works. It’s almost impossible to go too far when it comes to demonizing lawyers.’’ 17 H.R. 420, The ‘‘Lawsuit Abuse Reduction Act of 2005,’’ is 

single-mindedly obsessed with a litigation crisis that simply does 

not exist. All empirical evidence suggests that the number of lawsuits are declining, that jury awards are shrinking, and that the 

costs of litigation to small businesses and to the overall American 

economy are slight if at all significant. H.R. 420 would confuse Federal jurisdiction jurisprudence, have a chilling effect on civil rights 

litigation, and enact sweeping changes to the Federal judiciary 

with little discussion or deliberation. For these reasons, we respectfully dissent. 

DESCRIPTION OF AMENDMENTS OFFERED AT MARKUP

During the markup four amendments were offered by Democratic 

Members: 

1. Nadler Amendment 

Description of Amendment: The amendment would prohibit a 

court from ordering a court record sealed or subjected to a protective order, or otherwise to restrict access to taht record, unless the 

court makes a finding of fact that identifies the interest that justifies the order and determines that the interest outweighs any inVerDate jul 14 2003 20:49 Jun 14, 2005 Jkt 39006 PO 00000 Frm 000116 Fmt 06601 Sfmt 06601 E:\HR\OC\HR123.XXX HR123
117

terest in the public health and safety that the court determines 

would be served by not sealing or restricting the court record. 

Vote on Amendment: The amendment was withdrawn after Representative Nadler and Representative Smith agreed to work on 

the language before the bill comes up before the full House. 

2. Scott Amendment 

Description of Amendment: The amendment would rein in frivolous lawsuits without harming the ability of legitimate cases to be 

brought. The amendment proposed that after three consecutive adverse decisions on the merits, a person attempting to file yet another claim on the same issue be saddled with a rebuttable presumption of a Rule 11 violation. The amendment would have applied to the Terri Schiavo case, in which multiple courts ruled 

against the plaintiffs. 

Vote on Amendment: The amendment was agreed to by voice 

vote. 

3. Nadler Amendment 

Description of Amendment: The amendment provides that whoever influences, obstructs or impedes, or endeavors to influence, obstruct or impede, a pending court proceeding through the intentional destruction of documents sought in and highly relevant to 

that proceeding shall (1) be punished with mandatory civil sanctions and (2) be held in contempt of court and, if an attorney, referred to one or more appropriate State bar associations for disciplinary proceedings. The amendment applies to any court proceeding in Federal or State court. 

Vote on Amendment: The amendment was agreed to by voice 

vote. 

4. Conyers Amendment 

Description of Amendment: The amendment would exempt from 

the provisions of the Act actions against a manufacturer, seller, or 

trade association that, on or after the date of enactment, shifts or 

transfers employment positions of facilities to a location outside the 

United States. The amendment was designed to ensure that companies that relocate offshore do not receive the benefit of the liability 

limitations in the Act. 

Vote on Amendment: The amendment was defeated by a partyline vote of 17–11. Ayes: Representatives Conyers, Berman, Nadler, 

Scott, Watt, Waters, Meehan, Weiner, Schiff, Sa ́nchez, Van Hollen. 

Nays: Representatives Sensenbrenner, Coble, Smith, Gallegly, Lungren, Jenkins, Cannon, Inglis, Hostettler, Keller, Issa, Pence, 

Forbes, King, Feeney, Franks, Gohmert.

JOHN CONYERS, JR. 

HOWARD L. BERMAN. 

JERROLD NADLER. 

ROBERT C. SCOTT. 

MELVIN L. WATT. 

SHEILA JACKSON LEE. 

MAXINE WATERS. 

MARTIN T. MEEHAN. 

WILLIAM D. DELAHUNT. 

118

ROBERT WEXLER. ANTHONY D. WEINER. LINDA T. SA ́ NCHEZ. CHRIS VAN HOLLEN.

Æ