29–006 

108TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 108–682 

LAWSUIT ABUSE REDUCTION ACT OF 2004 

SEPTEMBER 13, 2004.—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 

DISSENTING VIEWS 

[To accompany H.R. 4571] 

[Including cost estimate of the Congressional Budget Office] 

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

(H.R. 4571) to amend Rule 11 of the Federal Rules of Civil Procedure to improve attorney accountability, and for other purposes, 

having considered the same, report favorably thereon with an 

amendment and recommend that the bill as amended do pass. 

CONTENTS 

Page 

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

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

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

Hearings ................................................................................................................... 36 

Committee Consideration ........................................................................................ 37 

Vote of the Committee ............................................................................................. 37 

Committee Oversight Findings ............................................................................... 39 

New Budget Authority and Tax Expenditures ...................................................... 39 

Congressional Budget Office Cost Estimate .......................................................... 39 

Performance Goals and Objectives ......................................................................... 40 

Constitutional Authority Statement ...................................................................... 40 

Section-by-Section Analysis and Discussion .......................................................... 40 

Changes in Existing Law Made by the Bill, as Reported ..................................... 41 

Agency Views ........................................................................................................... 44 

Markup Transcript .................................................................................................. 48 

Dissenting Views ..................................................................................................... 95 

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 2004’’. 

SEC. 2. ATTORNEY ACCOUNTABILITY. 

Rule 11 of the Federal Rules of Civil Procedure is amended— 

(1) in subdivision (c)— 

(A) 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 the other 

party or parties to pay 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.’’; 

(B) in paragraph (1)(A)— 

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

inserting ‘‘Rule 5.’’; and 

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

shall award’’; and 

(C) 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.’’; and 

(2) by striking subdivision (d). 

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 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 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; or 

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

claim allegedly occurred; or 

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

(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. ENHANCED SANCTIONS FOR DOCUMENT DESTRUCTION. 

(a) IN GENERAL.—Whoever willfully and intentionally influences, obstructs, or 

impedes, or attempts to influence, obstruct, or impede, a pending court proceeding 

through the willful and intentional destruction of documents sought in, and highly 

relevant to, that proceeding 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. 

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

or State court. 

PURPOSE AND SUMMARY

The Lawsuit Abuse Reduction Act of 2004 (‘‘LARA’’), H.R. 4571, 

was introduced by Rep. Lamar Smith. H.R. 4571 will restore the 

teeth that Federal Rule of Civil Procedure 11 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 that a case would have national economic consequences 

that affect interstate commerce. The bill would also prevent forum 

shopping, the harmful 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. 4571 would prevent forum 

shopping by requiring that personal injury cases be brought only 

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

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 

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 on 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). 

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) allow sanctions for 

abuses of the discovery process (the process by which lawyers on 

each side request information from the other side prior to trial), (5) 

apply Rule 11’s provisions to state cases that a state judge finds 

affect interstate commerce, (6) require that personal injury cases be 

brought only where the plaintiff resides, where the plaintiff was allegedly injured, or where the defendant’s principal place of business is located; (7) apply a ‘‘three strikes and you’re out’’ rule to 

attorneys who commit Rule 11 violations in Federal district court; 

and (8) impose mandatory civil sanctions for willful and intentional 

document destruction intended to obstruct a pending court proceeding. 

H.R. 4571 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 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.’’ Civil rights claims are thereby exempted 

from the bill’s Rule 11 provisions. 

BACKGROUND AND NEED FOR THE LEGISLATION

H.R. 4571 will prevent frivolous lawsuits and help dispel the 

legal culture of fear that has come to permeate American society. 

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). 7Stuart Taylor, Jr. and Evan Thomas, ‘‘Civil Wars’’ Newsweek (December 15, 2003) at 48. 

FRIVOLOUS LITIGATION HAS A CORROSIVE EFFECT ON AMERICAN CULTURE AND VALUES, THREATENING AMERICA’S CHURCHES, SCHOOLS, 

DOCTORS, SPORTS, PLAYGROUNDS, FRIENDLY RELATIONS, AND EVEN

THE GIRLS SCOUTS AND OTHER FAMILY 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 

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

process.’’7

6 

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). 

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 

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 

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

44. 16 Id. at 51. 

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

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

physician but the miracles are out of my hands.’’ 16

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 expensive 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 

8 

17Debra Rosenberg, ‘‘Hard Pill to Swallow’’ Newsweek (December 15, 2003) at 46. 18Stuart Taylor, Jr. and Evan Thomas, ‘‘Civil Wars’’ Newsweek (December 15, 2003) at 48. 19Field Maloney, ‘‘Cannonball!’’ New Yorker, Talk of the Town (September 8, 2004). 20Stuart Taylor, Jr. and Evan Thomas, ‘‘Civil Wars’’ Newsweek (December 15, 2003) at 44. 21 Id. at 49. 22 Id. at 49. 23Fox News (May 31, 2001). 

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

fees.17

The most dangerously incompetent doctors often remain in 

place for many years, in part because employers fear wrongfuldismissal lawsuits by fired doctors even more than malpractice 

suits by their victims.18

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.’’ 19

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.20

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.21

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 

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

sponsors.22

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.’’ 23

9 

24 Ann DiMatteo, ‘‘Families Sue Over Unfair Twirl Tryouts,’’ The New Haven Register, May 

18, 2001. 25Dave Sommers, ‘‘Legal Pitch,’’ The Trentonian, May 1, 2001. 26 ABCNews.com Report, ‘‘Blame the Coach? Angry Parents Take School Coaches to Court’’ 

(August 7, 2003). 27Philip K. Howard, The Collapse of the Common Good: How America’s Lawsuit Culture Undermines Our Freedom (2001) at 46. 28 Id. at 3. 29Stuart Taylor, Jr. and Evan Thomas, ‘‘Civil Wars’’ Newsweek (December 15, 2003) at 44. 

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.’’ 24

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.’’ 25

ABC News reported 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.26

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.27

Playgrounds 

The lawsuit culture is even changing the traditional American 

landscape: playgrounds are increasingly removing seesaws for fear 

of liability.28 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.29

10 

30Philip K. Howard, The Collapse of the Common Good (New York: 2001) at 58. 31 U.S. Consumer Product Safety Commission, Handbook for Public Playground Safety, Pub. 

No. 325 at 23. 32Garrett Ordower, ‘‘County Tells Bicyclist Thanks, But Stop Plowing Trail,’’ The Chicago 

Daily Herald (February 21, 2004). 33See ‘‘Fine Filers of Frivolous Lawsuits,’’ The Detroit News (February 24, 2004). 34 Julia Moskin, ‘‘Crave Thin Mints?’’ The New York Times (March 14, 2004). 

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

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

America.’’ 30

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.’’ 31

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 

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.32

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.33 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.’’ 34

Everyone 

The corrosive effects of lawsuit abuse were recently summarized 

by Newsweek: 

11 

35Stuart Taylor, Jr. and Evan Thomas, ‘‘Civil Wars’’ Newsweek (December 15, 2003) at 44– 

45. 36 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). 

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 arbitrary ‘‘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.35

[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.36

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. 

12 

37See American Tort Reform Association, ‘‘National Poll on Tort Reform’’ (February 27, 2003). 38See Insurance Research Council, ‘‘IRC Study Finds Strong Support for Wide Variety of Civil 

Justice Reform Measures’’ (April 5, 2004) at 4. 39 Bruce D. Phillips, ‘‘Small Business Problems and Priorities’’ (National Federation of Independent Business Research Foundation, June 2004). 40Mortimer B. Zuckerman (Editorial) ‘‘Welcome to Sue City, U.S.A.’’ U.S. News & World Report (June 16, 2003) at 64. 41 Carrie Coolidge, ‘‘The Last Rung; The Tort System Takes Down a 149-year-old Ladder Manufacturer,’’ Forbes (January 12, 2004) at 52. 42 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’’). 43 Id. 44See ‘‘Opinion Survey of Medical Professional Liability,’’ JAMA 164:1583–1594 (1957). 45See R. Bovbjerg, ‘‘Medical Malpractice: Problems & Reforms,’’ The Urban Institute, Intergovernmental Health Policy Project (1995). 

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.37 Another poll found that 73% of Americans support requiring sanctions against attorneys who file frivolous lawsuits.38

Small businesses rank the cost and availability of liability insurance as second only to the costs of health care as their top priority,39 and both problems are fueled by frivolous lawsuits. 

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.’’ 40

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.41

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.’’ 42 The small businesses studied 

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

with employees in the United States.43

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

in seven had ever been sued in their entire lifetime,44 whereas today’s rate is about one in seven physicians sued per year.45

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 proVerDate Aug 04 2004 06:15 Sep 14, 2004 Jkt 029006 PO 00000 Frm 00012 Fmt 6659 Sfmt 6601 E:\HR\OC\HR682.XXX HR682
13 

46See 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.’’). 47See id. at 7–1. 48See id. at 7–33. 49See id. at 7–33. 50See 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.’’). 51 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.’’ 52See 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). 

viders, but rather by the underlying disease.46 The researchers 

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

resulted in litigation,47 ‘‘[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.’’ 48 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.49 Of the 47 

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

discernable injury.50

EXAMPLES OF FRIVOLOUS LAWSUITS

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

tormented innocent Americans.51

• 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.52

• 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 

14 

53Kevin Corcoran, ‘‘Court: Don’t Blame Cell-Phone Maker for Crash,’’ The Indianapolis Star 

(June 5, 2004). 54Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1042 (8th Cir. 2003) (citing Grady v. Frito-Law, 

Inc., 2000 WL 33436367, at *2) (Pa.Com.Pl. April 3, 2000)). 55 Id. at 1053 (Saylor, J., concurring). 56 In re: Aircraft Accident at Little Rock, Arkansas on June 1, 1999, 231 F.Supp. 852, 879 

(E.D.Ark. 2002). 57 Id. at 878–79. 

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.’’ 53

• 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.’’ 54 Justice Saylor pointed out 

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

is necessary to properly chew hard foodstuffs prior to swallowing.’’ 55

• 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.56

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 circumstances, that their conduct would naturally and probably 

result in injury.’’ 57

• 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 

15 

58 Holmes v. Turtle Stop, Inc., 62 P.3d 1165 (2000). 59 Cy Ryan, ‘‘Court Says Warning About Hot Coffee Unnecessary,’’ The Las Vegas Sun (July 

11, 2000). 60See Randy Kenner, ‘‘Lawsuit on Hot Pickle Draws Attention Around the Globe,’’ Knoxville 

News-Sentinel (October 10, 2000) at A1. 61See Pelman v. McDonald’s Corp., S.D.N.Y. 02 Civ. 7821 (RWS), at 34–35 (September 3, 

2003). 62Pelman v. McDonald’s Corp., 237 F.Supp.2d 512, 518 (S.D.N.Y. 2003). 63Overton v. Anheauser-Busch Co., 517 N.W.2d 308, 309 (Mich. App. 1994). 64Tim Barker, ‘‘Universal Fall Leads to Lawsuit,’’ Orlando Sentinel (January 5, 2000) at C1. 65 Brown v.All-Tech Investment Group, 2003 WL 23315394 (Ga. App.) at *5. 

from dripping hot coffee.58 The court upheld the decision of 

the trial court that ruled ‘‘[t]he danger is open and obvious.’’ 59

• 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.60

• 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.61 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.’’ 62

• 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.’’ 63

• 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.64

• 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 defendants.’’ 65 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 

16 

66 Id. at *7, n.5. 67 Honda of America Manufacturing, Inc. v. Norman, 104 S.W.3d. 600 (2003) (Tex.App. 1st.). 68See ‘‘Storm Death Is Not Weatherman’s Fault,’’ New York Post (March 29, 1999) at 84. 69 Associated Press, ‘‘Man Drops Suit Filed Against Airline After He Drank Booze, Fell,’’ USA 

Today (April 4, 2004). 70 Chuck Shepherd, ‘‘News of the Weird,’’ The Orlando Weekly (August 30, 2001). 

advisers, lawyers, business partners, lottery ticket sellers, 

etc., whom the assailant blamed for his financial losses.’’ 66

• After a decade of litigation, Texas’s 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.67

• 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.’’ 68

• 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.’’ 69

• 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 

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

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

nightmares, loss of sleep . . .’’ 70 According to the North 

County Times, ‘‘It took a jury little more than 2 hours of deVerDate Aug 04 2004 06:15 Sep 14, 2004 Jkt 029006 PO 00000 Frm 00016 Fmt 6659 Sfmt 6601 E:\HR\OC\HR682.XXX HR682
17 

71Teri Figueroa, ‘‘Jury Rejects Claim by Man in Attack on Dog by Library Cat,’’ The North 

County Times (January 20, 2004). 72Terry Kinney (the Associated Press) ‘‘Commissioner Sues Bengals, NFL’’ (January 31, 2003). 73Kevin O’Hanlon, ‘‘Court: Faulty Tire Didn’t Cause Murder,’’ the Associated Press (August 

8, 2003). 

liberation 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.’’ 71

• 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.72

• 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.73

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.’’ 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 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 

18 

74Sonny 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). 75Larry D. Hatfield, ‘‘Dumbest Warning Labels Get their Due,’’ The San Francisco Chronicle 

(January 24, 2002). 76Tillinghast-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. 77 Id. at 1. 78 Economic Report of the President (February 2004) at 203. 79 Council of Economic Advisers, ‘‘Who Pays for Tort Liability Claims? An Economic Analysis 

of the U.S. Tort Liability System’’ (April 2002) at 1. 80Tillinghast-Towers Perrin, U.S. Tort Costs: 2003 Update: Trends and Findings on the Costs 

of the U.S. Tort System, at 2. 81 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 

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 

clothes while they are being worn.’’ 74 And a cardboard car sun 

shield that keeps sun off the dashboard warns ‘‘Do not drive with 

sun shield in place.’’ 75

THE COSTS OF FRIVOLOUS LITIGATION

It should be emphasized that statistics do not capture the very 

real experiences of victims of lawsuit abuse that people 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 1990s, 

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,76 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 2002.77

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.’’ 78 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.’’ 79 The direct costs of medical malpractice claims jumped by an average of 11.9 percent a year from 

1975 to 2002.80

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.81

19 

liability reforms included a $250,000 limit for noneconomic damages that was found constitutional in 1985.’’). 82 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’’). 83 Id. 84Opponents 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. 85D. 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). 

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.’’ 82 The small businesses studied in the report account for 

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

United States.83

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.84

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 

that were he to defend himself, such a plaintiff would withdraw.85

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 

20 

86 Id. at 10. 87 Id. at 4. 88Federal 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. 

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

plaintiff or that no harm was actually done.’’ 86 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.87

Personal injury lawyers can always extort money from innocent 

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

4571 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. 4571: 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. 

Section 2 of LARA: Attorney Accountability 

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 

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%).88

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 litigaVerDate Aug 04 2004 06:15 Sep 14, 2004 Jkt 029006 PO 00000 Frm 00020 Fmt 6659 Sfmt 6601 E:\HR\OC\HR682.XXX HR682
21 

89While 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). 90 Id. at 11. 91 146 F.R.D. 401, 507–08 (1993). 92Standing 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). 93 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). 94 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. 

tion’’ 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,89 the Supreme Court approved the proposed 

changes 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.’’ 90 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.’’ 91

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 11,92 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.93 We need to restore those positive effects once again. 

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 

11.94

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 proVerDate Aug 04 2004 06:15 Sep 14, 2004 Jkt 029006 PO 00000 Frm 00021 Fmt 6659 Sfmt 6601 E:\HR\OC\HR682.XXX HR682
22 

95See John Shapard et al., Federal Judicial Center, Report of a Survey Concerning Rule 11, 

Federal Rules of Civil Procedure at 5. 96 John Edwards, ‘‘Juries: ‘Democracy in Action,’ ’’ Newsweek (December 15, 2003) at 53. 97 NBC News, ‘‘Meet the Press’’ (May 5, 2002) (transcript). 98 John Stossel, ‘‘Lawyers and the Little Guy,’’ ABCNews.com (‘‘Give Me a Break’’ commentary 

on ABC News’ 20/20) (July 23, 2004). 

hibited 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. 4571 would allow monetary 

penalties against parties who file 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.95 H.R. 

4571 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.’’ 96 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.’’ 97 And Senator Edwards’s campaign issued a statement 

saying Senator Edwards ‘‘believes that we need a national 

system in place that will weed out the meritless lawsuits 

without taking away patients’ rights.’’ 98 H.R. 4571 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 

23 

99 H.R. Rep. No. 104–62, at 11–12 (1995). 100See Marshall, Kritzer, and Zeamans, ‘‘The Use and Impact of Rule 11,’’ 86 N.W.U.L.Rev. 

943, 951–55 (discovery abuse was cited as the reason for 19.2% of formal Rule 11 activity not 

leading to sanctions and 14.9% of activity resulting in sanctions). 

nothing to lose: If objection is raised, they can retreat without penalty.’’ 99 H.R. 4571 would get rid of the ‘‘free pass’’ 

lawyers have to file frivolous lawsuits under today’s Rule 11. 

• Reverse the 1993 amendments to Rule 11 that prohibit sanctions for discovery abuses. Monetary sanctions for frivolous 

and harassing conduct during the course of discovery should 

be allowed if circumstances warrant. (‘‘Discovery’’ is the term 

used to describe the process by which parties are made to exchange information each side requests from the other prior 

to trial.) A study conducted by the American Judicature Society found that discovery was at issue in over 19% of the motions that were filed under the original Rule 11, prior to the 

1993 amendments, when discovery abuses were 

sanctionable.100

It is important to remember that nothing in H.R. 4571, the Lawsuit Abuse Reduction Act, changes the current standard by which 

frivolous lawsuits are judged. That is, under H.R. 4571, 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 allow 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.’’ Civil rights claims are thereby exempted 

from the bill’s Rule 11 provisions. 

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 deterVerDate Aug 04 2004 06:15 Sep 14, 2004 Jkt 029006 PO 00000 Frm 00023 Fmt 6659 Sfmt 6601 E:\HR\OC\HR682.XXX HR682
24 

101See 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). 102See 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 

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’’). 

mines, 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 11,101 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.) 102

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, 

25 

103The Federalist Papers, Federalist No. 22 (Madison) at 267–68 (Clinton Rossiter ed., 1961). 104 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. 105See 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’’). 

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 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-ofstate parties to in-state parties. 

H.R. 4571’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.’’ 103 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.104

H.R. 4571 addresses a problem directly analogous to the prime example 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,105 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 affects interstate commerce based on an assessment of the costs to 

the interstate economy, including the loss of jobs, ‘‘were the relief 

26 

106See Cass Sunstein and Reid Hastie, Punitve Damages: How Juries Decide (University of 

Chicago Press 2002) at 62. 107Philip K. Howard, The Collapse of the Common Good: How America’s Lawsuit Culture Undermines Our Freedom (2001) at 59. 108 Chad Halcom, ‘‘Woman Files $500,000 Lawsuit for ‘Ruined’ Fingernail,’’ The Macomb Daily 

(February 5, 2003). 109 ‘‘Food Fight,’’ CBS News ‘‘60 Minutes’’ (Australia) (September 15, 2002) (transcript). 

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.106 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.’’ 107 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.’’ 108

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: 

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. 109

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 

27 

110Such 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. 111Tom Wilemon, ‘‘Social Ties Bind Political Elite,’’ The Biloxi Sun Herald (October 13, 2002) 

at 10. 

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 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 ‘‘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.110

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.’’ Civil rights claims are thereby exempted from the bill’s provisions governing the application of Rule 11 in cases with 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 

and has made about $844 million from lawsuits against tobacco 

companies. 111 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 

28 

112 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). 113See generally, American Tort Reform Association, ‘‘Bringing Justice to Judicial Hellholes’’ 

(2003). 114 Richard Neely, The Product Liability Mess: How Business Can Be Rescued From The Politics of State Courts 4, 62 (1998). 115See 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’’). 

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.’’ 112

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.113

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 

friends, can all vote for the judge, while the out-of-state defendants 

can’t even be relied upon to send a campaign donation.’’ 114

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. Section 

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,115 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 

29 

116The Federalist Papers, Federalist No. 22 (Madison) at 267–68 (Clinton Rossiter ed., 1961). 117 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. 118 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. 119 Editorial, ‘‘The Judges of Madison County,’’ The Chicago Tribune (September 6, 2002) at 

22. 120David Bailey (Reuters), ‘‘Illinois County Court a Corporate ‘Hellhole,’ ’’ (October 5, 2003). 

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.’’ 116 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 

people in multiple states. It is the duty of Congress to prevent such 

unfairness.117

Jurisdictions with ‘‘magic jurisdiction’’ reputations include the 

following: 

• Madison County, Illinois. Twice, the Chicago Tribune 

crowned Madison County a ‘‘jackpot jurisdiction.’’ 118 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.’’ 119 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.’’ 120 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 

30 

121 Id. 122Marin Kasindorf, ‘‘Robin Hood is Alive in Court, Say Those Seeking Lawsuit Limit,’’ USA 

Today (March 8, 2004) at A1 (emphasis added). 123See First National Bank v. Guerine, 764 N.E.2d 54, 64–66 (Ill. 2002) (appendix). 124See ‘‘Asbestos Case Leads to $5.1 Million, Sanction,’’ National Law Journal (December 2, 

2002) at A4. 125See Griffin B. Bell, ‘‘Asbestos & the Sleeping Constitution,’’ 31 Pepp.L. Rev. 1, 8 (2003). 126David Pasztor, ‘‘As Quinn Laid to Rest, Mourners Contemplate Irony of His Slaying,’’ The 

Austin American-Statesman (June 16, 2002) at A1. 127See Andrea Wright, ‘‘Beaumont, Texas, Area Loses Doctors to High Cost of Malpractice Insurance,’’ Knight-Ridder Tribune Business News (November 6, 2001). 128Transcript, ‘‘Jackpot Justice,’’ 60 Minutes (November 25, 2002). 

potential influence on people’s careers that is has become 

very difficult to limit it in any way.’’ 121 That same judge has 

also said ‘‘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.’’ 122

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.123

Asbestos cases, in particular, find their way to Madison 

County Circuit Court at an astonishing rate. Madison County (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.124 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.125

• 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.’’ 126 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.127

• 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.128 In this small, 

rural county, the number of plaintiffs far exceeds the numVerDate Aug 04 2004 06:15 Sep 14, 2004 Jkt 029006 PO 00000 Frm 00030 Fmt 6659 Sfmt 6601 E:\HR\OC\HR682.XXX HR682
31 

129See 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.’’). 130See 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. 131See Robert Pear, ‘‘Mississippi Gaining as Lawsuit Mecca,’’ The New York Times (August 

20, 2001) at A1. 132See Tim Lemke, ‘‘Best Place to Sue?’’ The Washington Times (June 30, 2002) at A1. 133See ‘‘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. 134See Jerry Mitchell, ‘‘Jefferson County Ground Zero for Cases,’’ The Clarion-Ledger (June 

17, 2001) at A1. 135Tom Wilemon, ‘‘Judicial Probe Looking at Big Jury Awards,’’ Sun Herald (July 12, 2003). 136See Betty Liu, ‘‘The Poor Southern County That’s Big on Lawsuits,’’ Financial Times (August 20, 2001). 137See 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). 

ber of residents.129 The national media, including the Los 

Angeles Times,130 The New York Times,131 and the Washington Times,132 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 

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.133

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.134 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.’’ 135

In recent years, the 22nd Judicial Circuit has handed out 

numerous awards of $100 million or more.136

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.137

• West Virginia, particularly Kanawha County. Litigation activity has increased 53.6% more rapidly in West Virginia 

32 

138See West Virginia Chamber of Commerce, Perryman Study, ‘‘Negative Impact On The Current Civil Justice System On Economic Activity In West Virginia’’ (February 2003). 139 Court Watch, West Virginia Chamber of Commerce (July 2003). 140 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. 141See 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). 142See id. at 32. 143See 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). 144 Id. 145See State ex rel. Linthicum, 57 S.W.3d 855, 859 (Mo. 2001) (Wolff, J., concurring in part, 

dissenting in part). 146Greg Jefferson, ‘‘Eagle Pass Remains Known as Plaintiff’s Attorney Paradise,’’ The San Antonio Express News (November 2, 2003). 

than in the nation as a whole over the last 10 years.138 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.’’ 139

• 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.’’ 140 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 physicians and hospitals.141 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.142

• City of St. Louis, Missouri. St. Louis City Circuit Court is reportedly ‘‘the place to be’’ if you are a plaintiff.143 Plaintiffs 

move cases to St. Louis City because ‘‘St. Louis City is a better venue,’’ according to one St. Louis plaintiffs’ attorney.144

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.’’ 145

• 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.’’ 146

33 

147 Rule 37 of the Federal Rules of Civil Procedure already imposes mandatory sanctions for 

failure to comply with required discovery disclosures, following an opportunity to be heard. See 

Fed. R. Civ. P. 37(a)(4) (‘‘Expenses and Sanctions’’). All courts also already have inherent powers 

to sanction parties for abusive practices, including willful transgressions of discovery procedures, 

such as document destruction. See, e.g., Capellupo v. FMC Corp., 126 F.R.D. 545, 550 (1989) 

(‘‘[T]he Court relies on its inherent power to regulate litigation, preserve and protect the integrity of proceedings before it, and sanction parties for abusive practices.’’) (citing cases); Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (‘‘It has long been understood that certain implied 

powers must necessarily result to our Courts of justice from the nature of their institution, powers which cannot be dispensed with in a Court because they are necessary to the exercise of 

all others.’’) (citations and quotations omitted). Generally, sanctions are appropriate when a 

party destroys discoverable material which the party knew or should have known was relevant 

to pending, imminent, or reasonably foreseeable litigation. See Jamie S. Gorelick et al., Destruction of Evidence § 3.8, at 88 (1989). Rule 37 also allows the court to forego sanction (defined 

as ‘‘pay[ment] to the moving party [of] the reasonable expenses incurred in making the motion 

[for sanctions], including attorney’s fees’’) under various circumstances, including if the nondisclosure was ‘‘substantially justified,’’ or ‘‘other circumstances make an award of expenses unjust.’’ Fed. R. Civ. P. 37(a)(4)(A). The amendment adopted by the Committee requires the sanctions be ‘‘commensurate’’ with those in Rule 37 and therefore under the amendment the same 

standards and safeguards for applying sanctions under Rule 37, or substantially similar state 

procedures, must be applied. 148The term ‘‘sought in’’ as used in the amendment means sought pursuant to the rules of 

the relevant Federal or state court proceeding. 149Letter from Leonidas Ralph Mecham, Secretary, United States Judicial Conference, to 

Chairman F. James Sensenbrenner, Jr. (July 9, 2004) (‘‘Judicial Conference Letter’’). 150 Judicial Conference Letter, at 1. 

Amendments Adopted at Committee 

Two amendments 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. Scott, imposes mandatory 

civil sanctions that are comparable to those available under Rule 

37 147 of the Federal Rules of Civil Procedure, in addition to other 

civil sanctions otherwise applicable, for the willful and intentional 

destruction of documents sought in 148 a pending civil court proceeding, and highly relevant to such proceeding, with the willful intent to obstruct such proceeding. The amendment applies its rule 

to proceedings in both state and Federal court. 

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. 4571.149

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.’’ 150 This assertion is 

contradicted by the Judicial Conference’s Advisory Committee on 

34 

151Federal Judicial Center Final Report on Rule 11 to the Advisory Committee on Civil Rules 

of the Judicial Conference of the United States (May 1991). 152 Judicial Conference Letter, at 2. 153 Id. at 2. 154See 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). 155See John Shapard et. al., Federal Judicial Center, Report of a Survey Concerning Rule 11, 

Federal Rules of Civil Procedure at 5. 156 Judicial Conference Letter, at 2. 157 Id. at 2. 

Civil Rules’s own survey. That committee undertook a review of 

Rule 11, in its pre-1993 form, and asked the Federal Judicial Center to conduct an empirical study of its operation and impact. The 

survey of 751 Federal judges found that an overwhelming majority 

of Federal judges believed that Rule 11 did not impede development of the law (95%); the benefits of the rule outweighed any additional requirement of judicial time (71.9%); the 1983 version of 

Rule 11 had a positive effect on litigation in the Federal courts 

(80.9%); and the rule should be retained in its then-current form 

(80.4%).151 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.’’ 152

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.’’ 153 In response, first, any unmeritorious Rule 11 motion could itself result 

in sanctions (and thereby be deterred) under Rule 11.154 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 

discouraged 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.155

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.’’ 156 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.’’ 157 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. 

35 

158 Id. at 2. 159 Id. at 3. 160 Id. at 1. 161See U.S. Const. Art. I, § 8, cl. 9; Art. III, § 1, cl. 1; Art. III, § 2, cl. 2. 

Surely if restoring teeth to Rule 11 results in some tension between 

lawyers, it is justified by helping to allow all Americans to live 

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.’’ 158 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.’’ 159 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 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 ‘‘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.’’ 160

However, Congress has never relinquished its constitutional authority to create and alter the rules of Federal court procedure,161

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. 

36 

HEARINGS

The full Committee on the Judiciary held a hearing on H.R. 4571 

and the issue of ‘‘Safeguarding Americans from a Legal Culture of 

Fear: Approaches to Limiting Lawsuit Abuse’’ on June 22, 2004. 

Testimony was received from Victor Schwartz, General Counsel, 

American Tort Reform Association; Philip Howard, Chair, Common 

Good; Karen R. Harned, Executive Director, National Federation of 

Independent Business; and Theodore Eisenberg, Professor of Law, 

Cornell Law School, with additional material submitted by individuals and organizations. 

COMMITTEE CONSIDERATION

On September 8, 2004, the Committee met in open session and 

ordered favorably reported the bill H.R. 4571 with amendment by 

a recorded vote of 18 yeas to 10 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. 

4571 . 

1. Mr. Keller offered an amendment that would require the suspension of attorneys from practice when they commit 3 or more 

Rule 11 violations in Federal court. The Keller amendment was 

amended by a Berman second degree amendment that provided for 

attorney appeals which was adopted by voice vote. By a rollcall 

vote of 20 yeas to 6 nays, the Keller amendment, as amended, was 

agreed to. 

ROLLCALL NO. 1 

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X 

Mr. Coble ........................................................................................................... X 

Mr. Smith .......................................................................................................... X 

Mr. Gallegly .......................................................................................................

Mr. Goodlatte .................................................................................................... X 

Mr. Chabot ........................................................................................................ X 

Mr. Jenkins ........................................................................................................ X 

Mr. Cannon .......................................................................................................

Mr. Bachus ........................................................................................................ X 

Mr. Hostettler .................................................................................................... X 

Mr. Green .......................................................................................................... X 

Mr. Keller ........................................................................................................... X 

Ms. Hart ............................................................................................................ X 

Mr. Flake ...........................................................................................................

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Carter .......................................................................................................... X 

Mr. Feeney ......................................................................................................... X 

Mrs. Blackburn .................................................................................................. X 

Mr. Conyers .......................................................................................................

Mr. Berman ....................................................................................................... X 

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

37 

ROLLCALL NO. 1—Continued 

Ayes Nays Present 

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................

Mr. Meehan .......................................................................................................

Mr. Delahunt ..................................................................................................... X 

Mr. Wexler .........................................................................................................

Ms. Baldwin ...................................................................................................... X 

Mr. Weiner .........................................................................................................

Mr. Schiff .......................................................................................................... X 

Ms. Sa ́nchez ...................................................................................................... X 

Mr. Sensenbrenner, Chairman .......................................................................... X 

Total ................................................................................................ 20 6 

2. Mr. Nadler offered an amendment that would have mandated 

that state courts follow certain procedures before sealing records or 

subjecting them to a protective order. By a rollcall vote of 8 yeas 

to 17 nays, the amendment was defeated. 

ROLLCALL NO. 2 

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X 

Mr. Coble ........................................................................................................... X 

Mr. Smith .......................................................................................................... Pass 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Chabot ........................................................................................................ X 

Mr. Jenkins ........................................................................................................ X 

Mr. Cannon .......................................................................................................

Mr. Bachus ........................................................................................................ X 

Mr. Hostettler .................................................................................................... X 

Mr. Green .......................................................................................................... X 

Mr. Keller ........................................................................................................... X 

Ms. Hart ............................................................................................................ X 

Mr. Flake ...........................................................................................................

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Carter .......................................................................................................... X 

Mr. Feeney ......................................................................................................... X 

Mrs. Blackburn ..................................................................................................

Mr. Conyers .......................................................................................................

Mr. Berman ....................................................................................................... X 

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................

Mr. Meehan .......................................................................................................

Mr. Delahunt ..................................................................................................... X 

Mr. Wexler .........................................................................................................

Ms. Baldwin ...................................................................................................... X 

Mr. Weiner .........................................................................................................

Mr. Schiff .......................................................................................................... X 

Ms. Sa ́nchez ...................................................................................................... X 

Mr. Sensenbrenner, Chairman .......................................................................... X 

Total ................................................................................................ 8 17 1 pass 

38 

3. Motion to report H.R. 4571, as amended, was agreed to by a 

rollcall vote of 18 yeas and 10 nays. 

ROLLCALL NO. 3 

Ayes Nays Present 

Mr. Hyde ............................................................................................................ X 

Mr. Coble ........................................................................................................... X 

Mr. Smith .......................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Chabot ........................................................................................................ X 

Mr. Jenkins ........................................................................................................ X 

Mr. Cannon .......................................................................................................

Mr. Bachus ........................................................................................................ X 

Mr. Hostettler .................................................................................................... X 

Mr. Green .......................................................................................................... X 

Mr. Keller ........................................................................................................... X 

Ms. Hart ............................................................................................................ X 

Mr. Flake ...........................................................................................................

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Carter .......................................................................................................... X 

Mr. Feeney ......................................................................................................... X 

Mrs. Blackburn .................................................................................................. X 

Mr. Conyers .......................................................................................................

Mr. Berman ....................................................................................................... X 

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................

Mr. Meehan .......................................................................................................

Mr. Delahunt ..................................................................................................... X 

Mr. Wexler ......................................................................................................... X 

Ms. Baldwin ...................................................................................................... X 

Mr. Weiner .........................................................................................................

Mr. Schiff .......................................................................................................... X 

Ms. Sa ́nchez ...................................................................................................... X 

Mr. Sensenbrenner, Chairman .......................................................................... X 

Total ................................................................................................ 18 10 

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. 

39 

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. 4571, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974: 

SEPTEMBER 13, 2004. 

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. 4571, the Lawsuit Abuse 

Reduction Act of 2004. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contacts are Lanette J. Walker (for 

federal costs), and Melissa Merrell (for the state and local impact). 

Sincerely, 

DOUGLAS HOLTZ-EAKIN, 

Director. 

Enclosure. 

H.R. 4571—Lawsuit Abuse Reduction Act of 2004 

H.R. 4571 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. 4571 would not affect direct 

spending or revenues. 

H.R. 4571 contains an intergovernmental mandate as defined in 

the Unfunded Mandates Reform Act 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 ($60 million in 2004, adjusted annually for inflation). The bill contains no new private-sector mandates. 

The CBO staff contacts for this estimate are Lanette J. Walker 

(for federal costs), and Melissa Merrell (for the state and local impact). This estimate was approved by Robert A. Sunshine, Assistant Director for Budget Analysis. 

40 

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. 4571 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) 

allow sanctions for abuses of the discovery process (the process by 

which lawyers on each side request information from the other side 

prior to trial), (5) apply Rule 11’s provisions to state cases a state 

judge finds affect interstate commerce, (6) require that personal injury cases be brought only where the plaintiff resides, where the 

plaintiff was allegedly injured, or where the defendant’s principal 

place of business is located; (7) apply a ‘‘three strikes and you’re 

out’’ rule to attorneys who commit Rule 11 violations in Federal 

district court; and (8) impose mandatory civil sanctions for willful 

and intentional document destruction willfully intended to obstruct 

a pending court proceeding. 

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, § 8 of the Constitution. 

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

The following discussion describes H.R. 4571 as reported by the 

Judiciary 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; allow monetary sanctions, including attorneys’ fees 

and compensatory costs, against any party making a frivolous 

claim; and allow sanctions for abuses of the discovery process (the 

process by which lawyers on each side request information from the 

other side prior to trial). 

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 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. 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 

41 

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 

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. Enhanced Sanctions for Document Destruction. This section provides that provides for mandatory civil sanctions that are 

commensurate with those available under Rule 37 of the Federal 

Rules of Civil Procedure, in addition to other civil sanctions otherwise applicable, for the willful and intentional destruction of documents sought in a pending civil court proceeding, and highly relevant to such proceeding, with the willful intent to obstruct such 

proceeding. The amendment applies to proceedings in both state 

and Federal court. 

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 vioVerDate Aug 04 2004 06:15 Sep 14, 2004 Jkt 029006 PO 00000 Frm 00041 Fmt 6659 Sfmt 6602 E:\HR\OC\HR682.XXX HR682
42 

lated, 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 the other party or parties 

to pay 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.— 

(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 

øRule 5, 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.¿ Rule 5. 

If warranted, øthe court may award¿ the court 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. 

* * * * * * * 

43 

ø(d) INAPPLICABILITY TO DISCOVERY.—Subdivisions (a) through 

(c) of this rule do not apply to disclosures and discovery requests, 

responses, objections, and motions that are subject to the provisions of Rules 26 through 37.¿ 

44 

AGENCY VIEWS


JCUS1.eps
45 


JCUS2.eps
46 


JCUS3.eps
47 


JCUS4.eps
48 

MARKUP TRANSCRIPT

BUSINESS MEETING 

WEDNESDAY, SEPTEMBER 8, 2004 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:00 a.m., in Room 

2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. [Chairman of the Committee] presiding. 

Chairman SENSENBRENNER. The Committee will be in order, a 

working quorum is present and pursuant to notice I will now call 

up the bill H.R. 4571, the ‘‘Lawsuit Abuse Reduction Act of 2004’’ 

for purposes of mark up and move its favorable recommendation to 

the House. Without objection, the bill will be considered as read 

and open for amendment at any point. And the Chair recognizes 

the gentleman from Texas, Mr. Smith, for 5 minutes to explain the 

bill. 

[The bill, H.R. 4571, follows:] 

49 


4571I1.eps
50 


4571I2.eps
51 


4571I3.eps
52 


4571I4.eps
53 


4571I5.eps
54 


4571I6.eps
55 

Mr. SMITH. Mr. Chairman, I am not sure my speaker is working. 

Oh, there it is. Mr. Chairman, frivolous lawsuits harm our economy 

and threaten to bankrupt business owners. This is especially true 

of small business owners who do not have the money to fund prolonged lawsuits. The alarming spread of frivolous lawsuits has 

made a mockery of our legal system. For example, 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. Of course many Americans have legitimate legal grievances from someone wrongly disfigured during an operation, to a 

company responsible for contaminating a community’s water supply. Americans deserve their day in court. No one who deserves 

justice should be denied justice. However, the gaming of the system 

by some lawyers makes the cost of doing business rise and draws 

down the integrity of the judicial system. 

Let me give some examples. The chief executive officer of San 

Antonio’s Methodist Children’s Hospital was sued after he stepped 

into a patient’s hospital room and asked how he was doing. Of 

course the jury cleared him of any wrongdoing. 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 threw out the 

case, writing that there is, quote, a common sense notion that it 

is necessary to properly chew hard foodstuffs prior to swallowing. 

End quote. 

In a New Jersey Little League game a player lost sight of a fly 

ball hit to him because of the sun. He was injured when the ball 

struck him in the eye. The coach was forced to hire a lawyer after 

the boy’s parents sued and the coach had to settle the case for 

$25,000. 

Today almost any party can bring any suit in practically any jurisdiction. That is 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 have filed 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. It is always someone else’s fault. Defendants on the other 

hand can unfairly lose their careers, their businesses and their reputations; in short, they can lose everything. 

This is not justice and there is a remedy. Change Federal Rule 

of Civil Procedure 11. The Lawsuit Abuse Reduction Act 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. 4571 if either 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 attorney’s fees of the party who was the 

victim of the frivolous claim. 

In addition, this legislation removes the provision that currently 

allows an attorney to file a frivolous pleading and then withdraw 

56 

it within 21 days. Attorneys now have no incentive to avoid filing 

frivolous pleadings because they can simply withdraw the pleading 

to avoid sanctions. 

Also if the State judge determines that a frivolous lawsuit has 

an impact on interstate commerce the judge could sanction the litigants by using Rule 11. 

Finally, 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. 

I might add, Mr. Chairman, that the presidential and vice presidential candidates all agree that we would be a better and a more 

prosperous America if we discouraged frivolous lawsuits. The Lawsuit Abuse Reduction Act is sensible reform that will help restore 

confidence in America’s justice system. 

Mr. Chairman, I will yield back. 

Chairman SENSENBRENNER. Who wishes to give the Democratic 

opening statement? 

Mr. SCOTT. I have—— 

Chairman SENSENBRENNER. The gentleman from Virginia, Mr. 

Scott. 

Mr. SCOTT. Mr. Chairman, I have an amendment when the time 

comes. 

Chairman SENSENBRENNER. Okay. Without objection, all Members may place opening statements in the record at this point. Are 

there amendments? The gentleman from Florida, Mr. Keller. 

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. 4517 offered by Mr. Keller of 

Florida. At the end of the bill insert the following new section. Section. 

[The amendment follows:] 

57 


A4571D1.eps
58 


A4571D2.eps
59 

Mr. KELLER. Mr. Chairman, I would ask unanimous consent that 

the amendment be considered as read. 

Chairman SENSENBRENNER. Without objection, so ordered and 

the gentleman is recognized for 5 minutes. 

Mr. KELLER. Thank you, Mr. Chairman. I am offering a three 

strikes and you are out amendment to deal with frivolous lawsuits. 

I would like to begin by quoting from Senator John Edwards of 

North Carolina and I am holding here an article that he wrote for 

Newsweek magazine on December 15, 2003, where he said, quote, 

frivolous lawsuits waste good people’s time and hurt the real victims. 

That is why I have proposed to prevent them. Lawyers who bring 

frivolous cases should face tough mandatory sanctions with a three 

strikes penalty. 

Also, in The Washington Post, on May 20, 2003, Senator John 

Edwards of North Carolina wrote an editorial where he said, quote, 

lawyers who file frivolous cases should face tough mandatory sanctions. Lawyers who file three frivolous cases should be forbidden to 

bring another suit for the next 10 years. 

In other words, three strikes and you are out. On the good advice 

of Senator Edwards, I have prepared a three strikes and you are 

out amendment. If an attorney were to be found by a particular 

Federal District Court to have filed three frivolous lawsuits, this 

amendment would automatically suspend that attorney from practicing law in that particular Federal District Court for 1 year, and 

require that that attorney petition for reinstatement after that year 

under such procedures and conditions as that court may prescribe. 

This is an automatic 1-year suspension, less severe than even what 

John Edwards proposed of 10 years. 

And so I would ask my colleagues in the spirit of bipartisanship 

and the good advice of myself and Senator John Edwards to accept 

this amendment, and I yield back the balance of my time. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Berman. 

Mr. BERMAN. I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. BERMAN. I had two questions of the author of the amendment. It seems on its surface like a good amendment. But is a finding by a Federal judge of a Rule 11 violation, that the suit or the 

motion is frivolous, is that an appealable decision? 

Mr. KELLER. It would be governed under the existing rules of 

Rule 11. 

Mr. BERMAN. I am sure it would. Is it appealable? 

Mr. KELLER. I don’t know. Do you know? 

Anything that you would normally be able to appeal under Rule 

11 you would be able to appeal. Anything that you wouldn’t be able 

to appeal under Rule 11 you wouldn’t be able to appeal. We are not 

changing any appellate rules. It is a much narrower—— 

Mr. BERMAN. I am asking a factual question. If you don’t know 

the answer, I understand because I don’t know the answer and 

that is why I am asking. Is it—— 

Chairman SENSENBRENNER. Will the gentleman yield? 

Mr. BERMAN. Sure. 

60 

Chairman SENSENBRENNER. Final orders are appealable under 

the Federal Rules of Civil Procedure and my guess is that if a Rule 

11 violation has been found to occur the court would dismiss the 

action and impose sanctions in Rule 11 and that would be a final 

order. 

Mr. BERMAN. That is what I would have thought and I appreciate the clarification. 

Mr. WATT. Would the gentleman yield? 

Mr. BERMAN. I would be happy to yield. 

Mr. WATT. Unfortunately, it is not quite that clear. If the decision results in a final order of dismissal, the case would be appealable. But this amendment seems to go far beyond that to deal with 

discovery violations, argument violations, and those things are interlocutory decisions by a court, and quite often don’t get resolved 

at all on any final basis. The case goes on. That order or decision 

having been entered on a procedural basis, the case goes on. The 

case may get appealed at some point, but seldom would that be the 

grounds for appeal, nor would it be appealable on an interlocutory 

basis, so—it is his time. 

Mr. BERMAN. I would be happy to yield. Let me just—I am not 

so concerned whether there is interlocutory appeal. I am just trying 

to deal with the factual—the situation where a particular judge in 

a particular case on three different occasions in that case, for reasons perhaps of animus towards the counsel has made a Rule 11 

finding. At some point is that subject to being reversed on appeal? 

Not necessarily before the end of the case, but in other words, 

would the attorney be suspended from practice before he would 

have a chance to contest the abuse of discretion, the finding that 

there was a Rule 11 violation? 

Mr. WATT. The point that I am making is that seldom would 

there be an appeal on a procedural motion of that kind because the 

case would continue. Suppose you have a finding that a frivolous 

argument is made. The case continues. 

Mr. BERMAN. Sure. 

Mr. WATT. And that one item never gets appealed because the 

case goes on. You can’t stop the case right there in the middle of 

that particular thing, take an appeal of that order. 

Mr. BERMAN. I understand. 

Mr. WATT. Because it is an interlocutory order. 

Mr. BERMAN. I guess the question for the author of the amendment, Rick, if—would you be willing to adjust your amendment to 

ensure that before the suspension is affected the lawyers had a 

chance to have a review of the finding three times—it could occur 

in one case. This applies, as somebody mentioned, to discovery motions, to other kinds of pleadings, and just—it would keep—essentially would keep the thrust of your amendment, but allow their, 

the actual suspension to be delayed until such time as the counsel 

has had a chance to review that finding on appeal. 

Mr. KELLER. Let me tell you where I share your sympathies and 

let me tell you what my concerns are about what you are asking. 

Okay, the idea that an attorney is about to be barred from practicing in a particular Federal District Court for 1 year because a 

judge has found three separate times. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

61 

Mr. BERMAN. I would ask unanimous consent for 2 additional 

minutes. 

Chairman SENSENBRENNER. Without objection. 

Mr. BERMAN. Okay. 

Mr. KELLER. Will the gentleman yield? 

Mr. BERMAN. Yes. 

Mr. KELLER. I understand at that point, when it is final he 

should be allowed to appeal, and it is my understanding from talking with staff that he would have that existing right under Rule 

11. But the reason I am concerned about broadening this, I made 

this so narrow, specifically to come within the confines of what 

Senator Edwards was talking about and to avoid controversy, that 

if we are now talking about changing the Federal Rules of Civil 

Procedure with respect to an appellate rights under Rule 11 I think 

would unnecessarily broaden the amendment and make it more 

controversial than less controversial. 

Mr. BERMAN. Reclaiming my time, I am not suggesting changing 

the appellate rights. I am suggesting that the suspension not be 

implemented until the appeal of that—of the finding is deferred. 

Obviously, if three such findings could occur in one case, you don’t 

intend that in the middle of that case even though it has not resulted in the dismissal of the case. It is about a specific pleading, 

it is about a specific discovery request—— 

Mr. KELLER. Will the gentleman yield? 

Mr. BERMAN. Yes. 

Mr. KELLER. Because right now I don’t see any case law that 

would cause me concerns about the appellate rights, I am not willing to amend it at this point. If after this amendment is adopted 

between now and the time it comes to the floor there is a reason 

to adjust it in the spirit of fairness I will certainly work with you 

and ask for a manager’s amendment. 

Mr. BERMAN. Okay. And then my second question, I notice you 

only apply this to Federal actions. You don’t seek to control what 

States do with attorneys who engage in frivolous motions and frivolous suits. 

Mr. KELLER. That is correct. 

Mr. BERMAN. In State courts. What was your reason for not 

doing that? 

Mr. KELLER. Well, and not only is it Federal action, it is a particular Federal district court like in Florida. If you have three frivolous suits in the middle district court that would apply. If you have 

two in the middle and one in the south it wouldn’t apply. The reason is I wanted it narrow and clean. Customarily the practice of 

disciplining and suspending attorneys and barring them is a State 

issue, and I—— 

Chairman SENSENBRENNER. The time of the gentleman has expired. 

Mr. KELLER. That should be the case. 

Chairman SENSENBRENNER. Has once again expired. 

Mr. COBLE. Mr. Chairman. 

Chairman SENSENBRENNER. Gentleman from North Carolina, Mr. 

Coble. 

Mr. COBLE. Mr. Chairman, move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

62 

Mr. COBLE. And Mr. Chairman, I will not consume 5 minutes. I 

think the gentleman from Florida’s amendment and the bill comes 

under the heading of reform, and on reform, particularly as it applies to capping damages, I have consistently voted against capping 

damages, Mr. Chairman, because I believe philosophically damages 

should be exclusively reserved for juries. This bill, however, is a 

different cat. And I am inclined to—while I support the bill and I 

am inclined to support the gentleman from Florida’s amendment on 

the ground that, as he pointed out in his statement, frivolous lawsuits serve no good purpose and create inestimable mischief. I want 

to ask the gentleman from Florida a question to be sure I am reading this correctly. 

Mr. KELLER. Yes, sir. 

Mr. COBLE. Rick, this—you have separated this as to district. In 

North Carolina, for example, we have three Federal districts. 

Mr. KELLER. That is right. 

Mr. COBLE. They would not be cumulative. If I brought a frivolous lawsuit in the Eastern District, for example, and two in the 

middle district I would not be penalized at that point. Am I correct 

about that? 

Mr. KELLER. That is correct, sir. 

Mr. COBLE. Very well. I support the bill and the amendment, Mr. 

Chairman. Yield back. 

Mr. WATT. Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from North Carolina, 

Mr. Watt. 

Mr. WATT. I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. WATT. I thank the Chairman for the time. I would just say 

to the gentleman that it does appear that he has tried to narrow 

this, but in the process of trying to narrow it he really has the potential of creating a very serious problem because you are talking 

about a potential interaction between one particular judge in one 

case and a lawyer in that case and nobody outside that case, so basically you end up with a situation where a judge who has a particular animus, either toward the case that the lawyer has filed or 

toward a particular lawyer, is going to be the final and sole arbiter 

of whether that lawyer gets disbarred. And I will give you a real 

life example so that you will know exactly what my concern is with 

this amendment, and hopefully Mr. Coble would know this also. 

In a civil rights case in North Carolina a particular judge, because he didn’t like the civil rights case, not because the lawyers 

were out of line in any way, decided that he was going to do everything that he could to frustrate that case. This amendment leaves 

that judge as the final and sole arbiter of whether a lawyer gets 

disbarred in that case. That is not something that you should be 

doing. And because these are procedural findings, not substantive 

findings on the final outcome of a case, they are not appealable immediately so that the lawyer could actually be disbarred before the 

case even gets resolved in the final analysis by any court of appeal. 

There is no parallel judge in that judicial district who could overrule one particular judge because there is no way to appeal over 

to another judge. There is no appellate judge who can review this 

because it is an interlocutory procedural order. And you have set 

63 

up a situation where one lawyer, one judge with a particular animus in a case, can ruin the whole legal career of a lawyer without 

any possibility of appeal, and that is just going way overboard and 

I don’t think—I mean, I can’t support that. 

Mr. KELLER. Will the gentleman yield? 

Mr. WATT. Yeah, I am happy to yield to you. 

Mr. KELLER. We are not talking about disbarring anybody. We 

are talking about a 1-year suspension and it is far narrower with 

the—— 

Mr. WATT. Well, I suppose you think that is not important to a 

particular lawyer who practices in one judicial district that is 

equivalent to a disbarment of that lawyer, and the abuse is even 

more pronounced in this case because it typically is going to be 

some lawyer who—— 

Mr. KELLER. Will the gentleman yield? 

Mr. WATT. —who is constantly bringing cases that some judge 

doesn’t like and if the judge sees the opportunity to get rid of that 

lawyer for a year, then the next year they are going to come back 

and do the same thing and they will be gone for a second year. And 

in many States lawyers don’t practice in but one judicial district as 

a practical matter. So you can talk about this as some theoretical 

rhetorical issue, but this is a practical problem that you have created that gives a judge absolute final authority to say to a lawyer 

you can’t practice in my court this year and when you come back 

next year I am going to start it over again because I will find you 

did something frivolous in that case. 

I am happy to yield to the gentleman. 

Mr. KELLER. Well, thank you. And I may not have enough time 

here. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

For what purpose does the gentleman from Wisconsin, Mr. Green, 

seek recognition? 

Mr. GREEN. Move to strike the last word, Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. GREEN. Mr. Chairman, in listening to the comments of my 

colleague on the other side of the aisle, I am sure that Senator Edwards considered such things and maybe he decided that the 

quickest way to avoid the problems the gentleman raises is not to 

file frivolous claims. I yield the balance of my time to the gentleman from Florida. 

Mr. WATT. Will the gentleman yield to me for just one response? 

Mr. KELLER. I thank the gentleman for yielding. 

Chairman SENSENBRENNER. The time belongs to the gentleman 

from Wisconsin. 

Mr. KELLER. Mr. Watt, I am not under any pretense that whatever I am going to say is going to convince you here. But just to 

respond to a couple of issues, first, another lawyer from North 

Carolina, Senator Edwards, wanted to ban you for 10 years from 

filing lawsuits anywhere. We are talking about a suspension of 1 

year in that particular district court. Now, your objection to that, 

saying, well, maybe a judge may not like you and what if this judge 

on three separate occasions found that not only is he going to grant 

this motion for summary judgement against the plaintiff attorney’s 

client. He is also going to enter a Rule 11 and wouldn’t that be 

64 

awful because one particular judge doesn’t like an attorney and 

therefore this is a bad situation. I would respond to just bring you 

to the real world, and you and I both practice law. You may be a 

plaintiff’s attorney who does civil rights cases, I may be a defense 

attorney who does civil rights cases, and in any particular Federal 

District Court there is going to be some judges that are going to 

be more likely to grant a summary judgement and some more that 

are likely to let it go to jury trial. So in any particular case you 

may have a judge who doesn’t like you, you feel, or who is too 

tough in granting dismissals or summary judgments and once you 

have the final order entered that can be appealed. The likelihood 

that you will have three separate judicial findings that there was 

a frivolous case filed and then they are upheld on appeal, and the 

person is only suspended for 1 year, that that being unjust, I think 

is relatively remote. The likelihood of preventing frivolous lawsuits 

because they will think twice about filing suits is relatively great. 

So I think the benefits outweighs whatever risk you are bringing, 

and I would just point out that it is a lot narrower and more focused than the other Member of Congress from North Carolina, 

and I would urge my colleagues to support this motion. 

Mr. WATT. Would the gentleman yield? 

Mr. KELLER. Yes, I would yield. Or I am sorry. 

Mr. GREEN. Yes, I would yield time to the gentleman from North 

Carolina. 

Mr. WATT. I would just say you are in the Judiciary Committee 

practicing politics. I am in the Judiciary Committee trying to assess the practical impact. I don’t much care what John Edwards 

said in some political context, in some other context that had nothing to do with the point that I am raising here, had nothing to do 

with the civil rights case, had nothing to do with anything else that 

we are talking about the practical consequences of the way you 

have drafted this amendment. Now, you can either practice national politics, in which case you know damn well you know you 

have no intention of using John Edwards as any kind of an authority on any kind of issue. You can practice national politics, or you 

can do what this Committee is supposed to do, which is to look at 

the practical consequences of how these things play out in court. 

And my point to you is the practical consequences of your political 

posturing can be devastating in the real world in a real life situation. And if you want to do that, go right ahead. 

Mr. GREEN. Reclaiming my time, it is a pity if Senator Edwards 

was indeed political posturing. I thought he was making a valid 

point with respect to our judicial system. I further yield time to the 

gentleman from Florida. 

Mr. KELLER. I thank the gentleman for yielding and at this time 

I would ask unanimous consent that the article that Senator Edwards wrote for Newsweek on December 15, 2003 and the articles 

he wrote for The Washington Post of May 20, 2003 be submitted 

into the record without objection. 

Chairman SENSENBRENNER. Without objection. 

[The articles referred to follow:] 

65 


Edwards1.eps
66 


Edwards2.eps
67 


Page53.eps
68 

Mr. KELLER. I would also point out that I have to take Senator 

Edwards at face value, assuming he was genuine in wanting to ban 

frivolous lawsuits, that it wasn’t just some sham political stunt to 

try to cover the fact that he doesn’t like caps and I take him at 

his word. I am genuine. He is genuine. This is a good faith idea, 

and I ask everyone to vote for this amendment. Yield back the balance of my time. 

Chairman SENSENBRENNER. The Chair would admonish all Members that it is a violation of the rules to call into question the motivations of Members of either this body or the other body. 

Gentleman from California, for what purpose do you seek recognition? 

Mr. BERMAN. Mr. Chairman, I have an amendment to the 

amendment. 

Chairman SENSENBRENNER. The Clerk will report the amendment to the amendment. 

The CLERK. Mr. Chairman, I don’t have an amendment. 

Chairman SENSENBRENNER. There is no amendment at the desk. 

Mr. BERMAN. There should be a perfecting amendment offered by 

Mr. Berman. It is at the desk right now. 

Chairman SENSENBRENNER. That is not the desk. 

Mr. BERMAN. It is a desk. It is not that desk. 

Chairman SENSENBRENNER. Amendments will be submitted to 

the Clerk so they can be read by the Clerk. The Clerk will read 

the amendment. 

The CLERK. Amendment—perfecting amendment offered by Mr. 

Berman to the Keller amendment to H.R. 4571. Add the following 

new section a(3). (3), an attorney has the right to appeal any suspension described by this section and the suspension shall not take 

place pending such appeal. 

[The amendment follows:] 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes in support of his perfecting amendment. 

Mr. BERMAN. Yes, Mr. Chairman, I take Mr. Keller’s comments 

at face value and in responding to Mr. Watt, he said I don’t think 

an amendment which says three findings of frivolous conduct by 

the attorney approved, supported continued or maintained after an 

appeal should allow that attorney to avoid any suspension, and this 

simply makes clear that there is an appeal of the suspension and 

the suspension doesn’t take place pending the appeal. 

Chairman SENSENBRENNER. Does the gentleman yield back? 

Mr. KELLER. Move to strike the last word. 

Chairman SENSENBRENNER. Does the gentleman yield back? 

Mr. BERMAN. I yield back. 

Chairman SENSENBRENNER. Gentleman from Florida. 


A4571C.eps
69 

Mr. KELLER. I will accept the amendment. 

Mr. BERMAN. Thank you. 

Chairman SENSENBRENNER. The question is on agreeing to the 

Berman amendment to the Keller amendment. Gentleman from— 

those in favor will say aye. Opposed no. The ayes appear to have 

it. The ayes have it. And the perfecting amendment by Mr. Berman 

to the Keller amendment is agreed to. 

The question now is on the adoption of the Keller amendment, 

as amended. 

Gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SCOTT. Mr. Chairman, notwithstanding the amendment that 

was just adopted, you still have the first two strikes that you can 

be placed on the edge even with the frivolous findings. The suspension of the attorney for one violation may be appropriate, it may 

not be appropriate for just a minor offense. This is not only the filing of the lawsuit, but also anything that goes on in the middle of 

the lawsuit, a filing, a failure to provide information on a timely 

basis, anything can result in a Rule 11. And some of the findings 

of a violation of Rule 11 may be minor, in fact you may just get 

a warning. Three—two warnings early in your career and a third 

warning 20 years later should not result in—even if the warning 

is well taken, should not result as a mandatory, with no discretion, 

suspension from practice for a year. I would hope that we would 

defeat the bill. 

Mr. KELLER. Will the gentleman yield? 

Mr. SCOTT. Excuse me. I yield to the gentleman from Florida. 

Mr. KELLER. I think it is fine the way it is. And whatever concerns you may have about injustice, we tried to be reasonable and 

accommodate by giving you an immediate appeal. So I think by 

taking the last amendment that should alleviate your concerns. 

Mr. SCOTT. Reclaiming my time, the immediate appeal is for the 

third strike, not the first two. And the finding may in fact be valid. 

It is just a very minor technical offense for which a warning would 

be appropriate, not a 1-year suspension. 

I yield to the gentleman from North Carolina. 

Mr. WATT. Can I just ask the gentleman a question? Your 

amendment says shall determine the number of times that the attorney has violated that rule in that Federal District Court during 

that attorney’s career. What is your intention with respect to—how 

would you define that Federal court? 

Mr. KELLER. Will the gentleman yield? 

Mr. WATT. Would it be the North Carolina Federal courts? Would 

it be the Western District, the Eastern District? Would it be that 

particular—— 

Mr. KELLER. Will the gentleman yield? 

Mr. WATT. Yeah. 

Mr. KELLER. I don’t know the names of your districts in North 

Carolina, but if you—— 

Mr. WATT. There are three in North Carolina. 

Mr. KELLER. Okay, let me just use Florida because it also has 

three. You have a northern district, a middle district and a southern district. You would have to be found in the middle district 

70 

three times to have violated Rule 11. If you were found two times 

in the middle district and one time in the southern district, this 

would not apply, the suspension. I am defining a district court as 

it reads, that District Court. 

I yield back. 

Mr. SCOTT. I yield back. 

Chairman SENSENBRENNER. The question is on the Keller 

amendment, as amended by the Berman amendment. Those in 

favor will say aye. 

Mr. SMITH. May we have a rollcall vote on that? 

Chairman SENSENBRENNER. Those in favor will say aye. Opposed 

no. The ayes appear to have it. 

Mr. SMITH. May we have a rollcall vote? 

Chairman SENSENBRENNER. rollcall will be ordered. The question 

is on agreeing to the amendment offered by the gentleman from 

Florida, Mr. Keller, as modified by the perfecting amendment of 

the gentleman from California, Mr. Berman. 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. 

Mr. HYDE. Aye. 

The CLERK. Mr. Hyde votes aye. 

Mr. Coble. 

Mr. COBLE. Aye. 

The CLERK. Mr. Coble votes aye. 

Mr. Smith. 

Mr. SMITH. Aye. 

The CLERK. Mr. Smith votes aye. 

Mr. Gallegly. 

[no response.] 

The CLERK. Mr. Goodlatte. 

Mr. GOODLATTE. Aye. 

The CLERK. Mr. Goodlatte votes aye. 

Mr. Chabot. 

Mr. CHABOT. Aye. 

The CLERK. Mr. Chabot votes aye. 

Mr. Jenkins. 

Mr. JENKINS. Aye. 

The CLERK. Mr. Jenkins votes aye. 

Mr. Cannon. 

[no response.] 

The CLERK. Mr. Bachus. 

[no response.] 

The CLERK. Mr. Hostettler. 

Mr. HOSTETTLER. Aye. 

The CLERK. Mr. Hostettler votes aye. 

Mr. Green. 

Mr. GREEN. Aye. 

The CLERK. Mr. Green votes aye. 

Mr. Keller. 

Mr. KELLER. Aye. 

The CLERK. Mr. Keller votes aye. 

Ms. Hart. 

Ms. HART. Aye. 

The CLERK. Ms. Hart votes aye. 

71 

Mr. Flake. 

[no response.] 

The CLERK. Mr. Pence. 

[no response.] 

The CLERK. Mr. Forbes. 

Mr. FORBES. Aye. 

The CLERK. Mr. Forbes votes aye. 

Mr. King. 

Mr. KING. Aye. 

The CLERK. Mr. King votes aye. 

Mr. Carter. 

Mr. CARTER. Aye. 

The CLERK. Mr. Carter votes aye. 

Mr. Feeney. 

Mr. FEENEY. Aye. 

The CLERK. Mr. Feeney votes aye. 

Mrs. Blackburn. 

Mrs. BLACKBURN. Aye. 

The CLERK. Mrs. Blackburn votes aye. 

Mr. Conyers. 

[no response.] 

The CLERK. Mr. Berman. 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman votes aye. 

Mr. Boucher. 

[no response.] 

The CLERK. Mr. Nadler. 

Mr. NADLER. No. 

The CLERK. Mr. Nadler votes no. 

Mr. Scott. 

Mr. SCOTT. No. 

The CLERK. Mr. Scott votes no. 

Mr. Watt. 

Mr. WATT. No. 

The CLERK. Mr. Watt votes no. 

Ms. Lofgren. 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren votes aye. 

Ms. Jackson Lee. 

[no response.] 

The CLERK. Ms. Waters. 

[no response.] 

The CLERK. Mr. Meehan. 

[no response.] 

The CLERK. Mr. Delahunt. 

Mr. DELAHUNT. No. 

The CLERK. Mr. Delahunt votes no. 

Mr. Wexler. 

[no response.] 

The CLERK. Ms. Baldwin. 

Ms. BALDWIN. No. 

The CLERK. Ms. Baldwin votes no. 

Mr. Weiner. 

[no response.] 

The CLERK.Mr. Schiff. 

72 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff votes aye. 

Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. No. 

The CLERK. Ms. Sa ́nchez votes no. 

Mr. Chairman. 

Chairman SENSENBRENNER. Aye. 

The CLERK. Mr. Sensenbrenner votes aye. 

Chairman SENSENBRENNER. Members in the chambers who wish 

to cast or change their vote. Gentleman from Alabama, Mr. Bachus. 

Mr. BACHUS. Mr. Chairman, I vote aye. 

The CLERK. Mr. Bachus aye. 

Chairman SENSENBRENNER. Further Members in the chamber 

who wish to cast or change their vote? If not, the Clerk will report. 

The CLERK. Mr. Chairman, there are 20 ayes and six noes. 

Chairman SENSENBRENNER. And the amendment is agreed to. 

Are there further amendments. 

Mr. NADLER. Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from New York, Mr. 

Nadler. 

Mr. NADLER. Mr. Chairman, I have an amendment at the desk. 

Chairman SENSENBRENNER. The Clerk will report the amendment. 

The CLERK. Amendment to H.R. 4571 offered by Mr. Nadler. At 

the end of the bill insert the following section. Availability of court 

records. (a), in general, a court may not order that a court record 

be sealed or subjected to a protective order or that access to that 

record be otherwise restricted unless the court makes a finding of 

fact in writing that identifies the interest that justifies the order 

and that determines that the order is no broader than necessary 

to protect the interest. (b), applicability. This section applies to any 

court record including a record obtained through discovery whether 

or not formally filed with the Court in any Federal or State court. 

[The amendment follows:] 

73 


A4571E.eps
74 

Mr. SMITH. Mr. Chairman, I reserve a point of order. 

Chairman SENSENBRENNER. Point of order is reserved. The gentleman from New York is recognized for 5 minutes. 

Mr. NADLER. Thank you, Mr. Chairman. Mr. Chairman, this is 

the same amendment I offered to a bill 2 years ago when you said 

that you thought it was a very constructive amendment and you 

are pleased to support it and I said I would like to take yes for an 

answer and the amendment was adopted. But the bill was not. 

What the amendment says is that—well, let’s put it this way. 

Very often in civil litigation someone may have an unsafe product 

or an unsafe procedure, and rather than go to trial they settle with 

the plaintiff and they pay the plaintiff a certain amount of money 

because the plaintiff was damaged by this unsafe product, but a 

condition of the settlement which the plaintiff agrees to, because he 

or she is getting the money, is that the records will be sealed and 

no one will ever talk about it. And this perpetuates the situation 

where the unsafe product is continued to be marketed and nothing 

changes. 

Now, clearly the—when you are involving health services the secrecy 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. It requires that a 

judge must make a finding of fact where a gag order is requested. 

If the judge finds that the privacy interest is broader than the public interest because there may be a legitimate privacy interest, then 

the judge must allow the gag order and the secrecy. But if the 

judge finds that the public interest and the health and safety of the 

situation outweighs the privacy interest claim, then the judge will 

not issue or will not approve the gag order. When it comes to 

health and safety, public access to medical malpractice lawsuit materials is absolutely essential. When it comes to public safety, public access to knowledge that a given product is unsafe is essential 

because otherwise it may not be changed. If the public knows as 

a result that a given car is unsafe or whatever, the manufacturer 

will have pressure to fix it up rather than simply bear the cost of 

settlement of litigation every so often. So this amendment balances 

the public interest and knowledge and public knowledge of admitted safety defects with the privacy interest that a manufacturer or 

someone else may actually have and says that the judge decides in 

each case that the privacy interest outweighs the public interest 

and therefore he will okay the privacy agreement or that the public 

safety and health interest outweighs the privacy interest and 

therefore he won’t. And therefore, I urge my colleagues to vote for 

this amendment, and I hope the Chairman will agree with himself 

2 years ago that this is a wise amendment. 

Ms. LOFGREN. Would the gentleman yield? 

Mr. NADLER. Yes, I will. 

Ms. LOFGREN. I agree with the intent of this amendment and I 

think whenever there is litigation that affects health and safety, 

product liability issues, you are absolutely correct. A phenomenon 

that has occurred in California in the last several years, however, 

is impacted potentially by this amendment, and it is situations 

where you have competitors who are filing litigation primarily to 

75 

discover trade secrets. It has nothing to do with the kind of litigation you are discussing. And there has been a lot of discussion in 

the California legislature about this very issue, and how to make 

sure that the real object of the litigation isn’t actually to discover 

something that should not be discovered. And I think that if we 

adopt this amendment we need to make clear, I would prefer actually that it be in the amendment but perhaps we could just do it 

in report language, that there is a presumption that if it is not a 

health and safety issue, but merely a trade secret, that great deference should be given to protecting trade secret. 

Mr. NADLER. Reclaiming my time. 

Ms. LOFGREN. I certainly would. 

Mr. NADLER. If the gentlelady would yield, we give the judge the 

discretion in any case where the gentlelady is describing. The public interest and publicity would not outweigh the interest in privacy, and that is exactly the way this amendment is drafted for 

that reason. 

Ms. LOFGREN. I understand that. But what we have discovered 

in California, and it is really a Silicon Valley issue in large part, 

is that in the course of discovery, because the courts are so overburdened, that it has become a huge issue in terms of even the judicial calendar and in the discovery issue, which is why I was 

struggling to figure out a way to offer an amendment to this. But 

I wasn’t able to do so. The California legislature has not in the 

course of 2 years. 

So I just wanted to raise the issue, and perhaps we could give 

guidance to the judiciary in our—— 

Mr. NADLER. Reclaiming my time. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

Does the gentleman wish to pursue his point of order? 

Mr. SMITH. Mr. Chairman, I do wish to pursue the point of order. 

Chairman SENSENBRENNER. Gentleman from Texas will state his 

point of order. 

Mr. SMITH. Okay. Mr. Chairman, let me say at the outset that 

this may well be a good amendment and well intentioned. However, it is not relevant to the underlying piece of legislation and 

therefore is not germane. This amendment deals primarily with the 

sealing of court records whereas the underlying legislation deals 

with frivolous lawsuits. So I don’t believe this particular amendment is germane. It may be worthy at another time, with another 

bill, but here it is not germane and I will—— 

Mr. BERMAN. Would the gentleman yield? 

Mr. SMITH. And I will be happy to yield to the gentleman from 

New York. 

Mr. NADLER. Are you going to offer this? 

Mr. SMITH. Or the gentleman from California. 

Mr. BERMAN. If the gentleman would yield. 

Chairman SENSENBRENNER. The proper procedure on a point of 

order is for Members to seek recognition. 

Mr. SMITH. Okay. I will yield back the balance of my time. 

Chairman SENSENBRENNER. Gentleman from California. 

Mr. BERMAN. I would just like to say that unfortunately this bill 

doesn’t simply deal with frivolous lawsuits. It opens up to—this bill 

has a provision regulating venue determinations in State courts 

having nothing to do with frivolous lawsuits. This bill goes unfortuVerDate Aug 04 2004 06:15 Sep 14, 2004 Jkt 029006 PO 00000 Frm 00075 Fmt 6659 Sfmt 6601 E:\HR\OC\HR682.XXX HR682
76 

nately far beyond the issue of Rule 11 and frivolous lawsuits. And 

I just think the Members of the Committee should understand that 

it has additional provisions in this bill that have no relationship either to Rule 11 or frivolous lawsuits and in fact seeks to decide 

what historically has always been State law decisions about which 

county you can bring a lawsuit in in a personal injury case for reasons that I truly don’t understand and will look forward to hearing 

from you as author of it later on. 

Chairman SENSENBRENNER. Anybody else wish to be heard on 

the point of order? Gentleman from New York. 

Mr. NADLER. Mr. Chairman, I would suggest—first of all, I agree 

with Mr. Berman. The amendment is not out of order for the reasons that he stated. But I think we can even clarify that because 

I am willing to narrow the amendment and simply say in any case 

concerning Rule 11 or forum shopping, a court, et cetera, and that 

I think would obviate any problem that Mr. Smith may have. 

Chairman SENSENBRENNER. Does the gentleman withdraw the 

amendment? 

Mr. NADLER. I would like to amend the amendment. 

Chairman SENSENBRENNER. Well, the Chair has to rule on the 

point of order first. 

Mr. NADLER. I will withdraw the amendment. 

Chairman SENSENBRENNER. The amendment is withdrawn. Are 

there further amendments? 

Mr. NADLER. Yes. Mr. Chairman. 

Chairman SENSENBRENNER. Gentleman from New York. 

Mr. NADLER. I have an amendment, the same amendment with 

the words ‘‘in any case concerning Rule 11 or forum shopping’’ after 

the words ‘‘In General.’’ 

Chairman SENSENBRENNER. The Clerk will report the amendment. 

The CLERK. Amendment to H.R. 4571 offered by Mr. Nadler. At 

the end of the bill insert the following: ‘‘section. Availability of 

court records. In general.’’ 

[The amendment follows:] 

77 


A4571B.eps
78 

Mr. NADLER. At that point, right after the words ‘‘In General,’’ 

‘‘In any case concerning Rule 11 or forum shopping,’’ and then just 

read the rest. 

The CLERK. ‘‘a court may not order that a court record’’—— 

Mr. NADLER. Mr. Chairman. I make—— 

The CLERK. —‘‘be sealed or subjected to a protective order . . .’’ 

Mr. NADLER. Mr. Chairman, I move to waive the reading of the 

rest of the amendment. 

Chairman SENSENBRENNER. Well, are there copies of the amendment for Members of the Committee? Because we have never 

waived the reading of an amendment—— 

Mr. NADLER. Then I withdraw the motion. 

Chairman SENSENBRENNER. Okay. The Clerk will continue to 

read. 

The CLERK. —‘‘or that access to that record be otherwise restricted, unless the court makes a finding of fact in writing that 

identifies the interest that justifies the order and that determines 

that the order is no broader than necessary to protect that interest. 

‘‘(b) Applicability. This section applies to any court record, including a record obtained through discovery, whether or not formally 

filed with the court, in any Federal or State court.’’ 

Chairman SENSENBRENNER. The gentleman from New York is 

recognized for 5 minutes. 

Mr. NADLER. Thank you, Mr. Chairman. I won’t take 5 minutes 

because I explained the point of the amendment before. I think 

Members of the Committee in the prior year recognized the merit 

of the amendment. The Chairman certainly did. And I think that 

the addition of these words at the beginning of the amendment, in 

any case, limiting its applicability to any case concerning Rule 11 

or forum shopping, should satisfy any validity to the point of order. 

I don’t think the point of order was valid in any event because of 

what Mr. Berman said. But certainly limiting it to cases concerning 

Rule 11 or forum shopping certainly makes it germane to the bill. 

I yield back. 

Chairman SENSENBRENNER. The gentleman yield back. 

Mr. NADLER. Yes, I do. 

Chairman SENSENBRENNER. Gentleman from Texas. 

Mr. SMITH. Mr. Chairman, if you have accepted this amendment 

in past years, I don’t have any objection to the amendment now. 

Chairman SENSENBRENNER. The gentleman yield back? 

Mr. SMITH. And I will yield back. 

Chairman SENSENBRENNER. The question is on agreeing to the 

second Nadler amendment. Those in favor will say aye. Opposed 

no. The noes appear to have it. 

Mr. NADLER. Mr. Chairman, there was one no. I would ask for 

the ayes and nays. 

Chairman SENSENBRENNER. rollcall was ordered. Those in favor 

of the amendment offered by the gentleman from New York will as 

your names are called answer aye. Those opposed no. And the 

Clerk will call the roll. 

The CLERK. Mr. Hyde. 

Mr. HYDE. No. 

The CLERK. Mr. Hyde votes no. 

Mr. Coble. 

Mr. COBLE. No. 

79 

The CLERK. Mr. Coble votes no. 

Mr. Smith. 

Mr. SMITH. Pass. 

The CLERK. Mr. Smith passes. 

Mr. Gallegly. 

[no response.] 

The CLERK. Mr. Goodlatte. 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte votes no. 

Mr. Chabot. 

[no response.] 

The CLERK. Mr. Jenkins. 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins votes no. 

Mr. Cannon. 

[no response.] 

The CLERK. Mr. Bachus. 

[no response.] 

The CLERK. Mr. Hostettler. 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler votes no. 

Mr. Green. 

Mr. GREEN. No. 

The CLERK. Mr. Green votes no. 

Mr. Keller. 

Mr. KELLER. No. 

The CLERK. Mr. Keller votes no. 

Ms. Hart. 

Ms. HART. No. 

The CLERK. Ms. Hart votes no. 

Mr. Flake. 

[no response.] 

The CLERK. Mr. Pence. 

[no response.] 

The CLERK. Mr. Forbes. 

Mr. FORBES. No. 

The CLERK. Mr. Forbes votes no. 

Mr. King. 

Mr. KING. No. 

The CLERK. Mr. King votes no. 

Mr. Carter. 

Mr. CARTER. No. 

The CLERK. Mr. Carter votes no. 

Mr. Feeney. 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney votes no. 

Mrs. Blackburn. 

[no response.] 

The CLERK. Mr. Conyers. 

[no response.] 

The CLERK. Mr. Berman. 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman votes aye. 

Mr. Boucher. 

[No response.] 

80 

The CLERK. Mr. Nadler. 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler votes aye. 

Mr. Scott. 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott votes aye. 

Mr. Watt. 

Mr. WATT. No. 

The CLERK. Mr. Watt votes no. 

Ms. Lofgren. 

Ms. LOFGREN. Pass. 

The CLERK. Ms. Lofgren passes. 

Ms. Jackson Lee. 

[No response.] 

The CLERK. Ms. Waters. 

[No response.] 

The CLERK. Mr. Meehan. 

[No response.] 

The CLERK. Mr. Delahunt. 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt votes aye. 

Mr. Wexler. 

[No response.] 

The CLERK. Ms. Baldwin. 

Ms. BALDWIN. Aye. 

The CLERK. Ms. Baldwin votes aye. 

Mr. Weiner. 

[No response.] 

The CLERK.Mr. Schiff. 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff votes aye. 

Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez votes aye. 

Mr. Chairman. 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Sensenbrenner votes no. 

Chairman SENSENBRENNER. Further Members in the Committee 

wish to cast or change their vote? The gentlewoman from California. 

Ms. LOFGREN. No. 

The CLERK. Ms. Lofgren, no. 

Chairman SENSENBRENNER. Gentleman from California, Mr. 

Gallegly. 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. 

Chairman SENSENBRENNER. Gentleman from Alabama, Mr. 

Bachus. 

Mr. BACHUS. No. 

The CLERK. Mr. Bachus, no. 

Chairman SENSENBRENNER. Further Members who wish to cast 

or change their votes? Gentleman from Ohio, Mr. Chabot. 

Mr. CHABOT. Aye. 

The CLERK. Mr. Chabot, aye. 

Chairman SENSENBRENNER. The Clerk will report. 

81 

The CLERK. Mr. Chairman, there are 8 ayes, 17 noes. 

Chairman SENSENBRENNER. The amendment is not agreed to. 

Are there further amendments? The gentleman from Virginia, 

Mr. Scott. 

Mr. SCOTT. Mr. Chairman, I have an amendment at the desk, 

SD-010.XML, with interdelineations. 

Chairman SENSENBRENNER. The Clerk will report that amendment. 

The CLERK. Amendment to H.R. 4571 offered by Mr. Scott. At 

the end of the bill, insert the following: Section ’blank’. Enhanced 

sanctions for document destruction. 

(a) In General. Whoever willfully and intentionally—— 

[The amendment follows:] 

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read. The gentleman from Virginia is recognized for 

5 minutes. 


A4571A.eps
82 

Mr. SCOTT. Thank you, Mr. Chairman. Mr. Chairman, this deals 

with people who willfully and intentionally destroy documents that 

are subject to discovery. The bill—the amendment as originally introduced had criminal sanctions. Those have been removed and it 

leaves it to civil, just civil penalties for destroying documents 

sought and relevant to the proceeding. 

I would hope that the amendment would be adopted. 

Mr. SMITH. Mr. Chairman. 

Chairman SENSENBRENNER. Gentleman from Texas, Mr. Smith. 

Mr. SMITH. Mr. Chairman, I think this is a good amendment. I 

know it is well-intentioned and to the best of my knowledge the 

gentleman from Virginia has in fact made the changes that we suggested. Is that correct? 

The only question I have for the gentleman from Virginia deals 

with a word in the second sentence of section (a) which now reads 

‘‘whosoever willfully and intentionally influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede.’’ the word 

‘‘endeavors’’ could be vague, even unconstitutionally vague, and if 

the gentleman is satisfied with that, I would still support the 

amendment. But I don’t want the amendment to be found unconstitutional because of too vague of a word. 

Mr. SCOTT. I would ask unanimous consent that ‘‘endeavors’’ be 

changed to ‘‘attempts.’’ 

Chairman SENSENBRENNER. Without objection. 

Mr. SCOTT. And thank the gentleman. 

Mr. SMITH. And Mr. Chairman, I support the amendment and 

recommend that we adopt it. 

Chairman SENSENBRENNER. The question is on agreeing to the 

amendment offered by the gentleman from Virginia, Mr. Scott. 

Those in favor will say aye. Opposed aye. The ayes appear to have 

it. The ayes have it. The amendment is agreed to. 

Are there further amendments? The gentleman from North Carolina, Mr. Watt. 

Mr. WATT. Mr. Chairman, I don’t have an amendment. I move 

to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. WATT. And I won’t take 5 minutes, Mr. Chairman. I just 

want to express that I think we are making a mistake if we pass 

this bill and go back to a situation where we have removed discretion from judges once again. We have been through this over and 

over again. There seems to be a consistent tug of war between 

whether we think we as legislators can decide what procedural consequences should take place in a courtroom without giving judges 

any discretion and control over their courtrooms, or whether judges 

are better positioned to do that. I think we have consistently politicized that and that the right decision was made originally when we 

went away from this back in 1993 to give judges more discretion 

and not make these penalties mandatory. 

Judges have the authority to prevent frivolous lawsuits, prevent 

frivolous conduct in their courts, and I think we ought to allow 

them to do that. When we cast these broad ‘‘one size fits all’’ rules 

and make a certain course of action mandatory in every single 

case, we are ignoring what is just in cases, and I think judges are 

83 

better positioned to know that, observing the conduct in their 

courtroom and making good, judicious decisions about it. 

Now, do judges make bad decisions sometimes? Yes, they do, but 

I think we are about to make a bad decision by telling every judge 

in America that you must have a mandatory consequence for something that is going on in your case, in your courtroom. And it may 

have the reverse effect because it may make judges less likely to 

find that there was frivolous actions around the edges so that they 

don’t get into this mandatory situation. I think we are seeing that 

in mandatory sentencing now, and I think we are making a real 

serious mistake to go in this direction. 

And I will yield back. 

Chairman SENSENBRENNER. Gentleman from California, Mr. Berman, for what purpose do you seek recognition. 

Mr. BERMAN. Move to strike the last word. 

Chairman SENSENBRENNER. Gentleman is recognized for 5 minutes. 

Mr. BERMAN. Mr. Chairman, I don’t entirely agree with my 

friend from North Carolina on the subject. I think there is a great 

deal of discretion remaining. The court has the discretion to decide 

whether or not a particular pleading or motion is frivolous and by 

its very nature that involves a great deal of discretion in the judge. 

And then, unlike mandatory sentencing, which provides whole minimum sentences regardless of the factual situation or of the particular case, this allows the judge to decide the appropriate sanction. There is no effort to say that a finding of rule 11 violation has 

a minimum financial burden or an automatic suspension or disbarment. 

So I think there is a part of this bill that makes a great deal of 

sense, and I also think it answers. I think, giving Rule 11 teeth 

deals with the issue of abuse of the process. I think it is a far better approach than some of the tort reform measures that I have 

seen pushed through this Committee. My concern, and the reason 

I have to vote no on this bill is because of the provisions that are 

unrelated to Rule 11. All of a sudden, in a bill that is packaged as 

a bill dealing with frivolous lawsuits, there are all these rules on 

venue, not just in Federal court, but in State courts. 

I don’t know if a particular State rule on where you can bring 

a personal injury action is appropriate or not appropriate. The notion that we are now going to automatically amend 50 State laws 

and rules of State courts on venue for personal injury actions, even 

where they are said to involve interstate commerce, makes no 

sense to me whatsoever, absent some compelling case that all 50 

of these States have inappropriate rules that allow what the sponsors call forum shopping. 

What happens in a—let’s assume Boeing, the principal office is 

in Chicago, the product is manufactured in the State of Washington, and designed in the State of Washington. A plaintiff who 

resides in North Carolina wants to bring a lawsuit where Boeing 

has most of its operations in the State of Washington, where the 

particular plane was manufactured on a products liability theory. 

The notion that that is the inappropriate place because it is not 

where the injury occurred, and it is not where the plaintiff resides, 

and it is not where Boeing’s principal office is, maybe that is right 

and maybe it isn’t. 

84 

The notion that we are going to, in one fell swoop, automatically 

restrict in any other place where you can bring that action, without 

any demonstration that it is simply for the purposes of finding a 

judge that is plaintiff-oriented, especially when there is nothing 

done here to limit the ability of Defendants to remove to Federal 

Court any cases, shows, I think, a bias on one side of an issue and 

conflict. 

So, I would implore the sponsor of the bill, my friend from Texas, 

to limit this to sections 1, 2 and 3, and to eliminate section 4, 

which opens up a whole can of worms, has nothing to do with frivolous lawsuits, and seeks to amend personal and State court personal injury actions in cases involving interstate commerce in a 

way that we have no idea what it means in terms of which county 

in a particular State you can bring this action in. 

If you proceed with this, I have no doubt you have the votes to 

pass it in the House and out of this Committee. But once again, 

you will have overreached. You have a good idea, but you can’t resist adding more and more on to it, and this will be another in a 

trail of 10 years of bills put out in the name of reform that never 

come into law, and they never do, whether it is class action, medical malpractice, joint and several liability or all of the dozens of 

other cases, elimination of Federal jurisdiction that you try because 

you, even when you have a reasonable idea, you add on stuff and 

go too far and make it another one-house bill. 

Take out Section 4 on forum shopping, make that the subject of 

a separate hearing in the appropriate Subcommittee of Judiciary 

about whether it is appropriate, and move ahead with your efforts 

on Rule 11, and you will have my support. 

Mr. CHABOT. Will the gentleman yield? 

Mr. BERMAN. I would happy to. 

Mr. CHABOT. I think the gentleman—the point is most of these 

don’t become law because they get blocked by the trial lawyers over 

in the other body. That is what happens. 

Mr. BERMAN. No. I will give you—if I may reclaim my time. 

Chairman SENSENBRENNER. The gentleman’s time has expired. 

Mr. DELAHUNT. I move to strike the last word. 

Chairman SENSENBRENNER. Does the gentleman from California 

want 2 additional minutes? 

Mr. BERMAN. I would like one additional minute. 

Chairman SENSENBRENNER. Without objection. You may have 5. 

Mr. BERMAN. I will let Mr. Delahunt seek recognition. With that 

offer, I can’t—— 

Chairman SENSENBRENNER. Does the gentleman yield back his 

additional minute? 

Mr. BERMAN. I do. 

Chairman SENSENBRENNER. For what purpose does the gentleman from Massachusetts seek recognition? 

Mr. DELAHUNT. I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. DELAHUNT. I yield to the gentleman from California as much 

time as he may consume. 

Mr. BERMAN. To simply characterize it in that fashion, as trial 

lawyers defeating the bill in the Senate, that demeans the integrity 

of a lot of different people. When you come forward on medical malVerDate Aug 04 2004 06:15 Sep 14, 2004 Jkt 029006 PO 00000 Frm 00084 Fmt 6659 Sfmt 6601 E:\HR\OC\HR682.XXX HR682
85 

practice legislation, and you make some cases regarding different 

aspects of abuse and reasons why healthcare costs could be contained, but you will not look at any of the provisions or moderate 

any of those provisions regarding what the cap should be or how 

you should deal with the collateral source rule. 

When you deal with class actions in a fashion that essentially removes State role and any meaningful fashion without providing 

any kinds of balance, you go too far. One day you will get the message that you keep having one House bill because you always add 

stuff on. Deal with the merits of the forum shopping issue. Why 

does that need to be in here? You promote it as a Rule 11 bill in 

effort to give Rule 11 some teeth to deal with the frivolous lawsuits 

and then you have to add this other section—which raises a whole 

series of other questions—which involves really an unprecedented 

intrusion into Federalism by seeking to regulate how State laws, 

State legislatures and State courts decide venue issues on personal 

injury cases handled in State courts. 

Why? Why go that far? You are risking a partisan, more of a partisan fight here and a sure death in the Senate. It isn’t simply because of a particular interest group’s lobbying. It is because you 

guys never let a reasonable idea be enough. You always want to 

push it further, go to an extreme in order to make a point, a point 

that I don’t think you are making very well. 

I yield back. 

Mr. DELAHUNT. I am reclaiming my time. I would just like to associate myself with the remarks of the gentleman from California. 

I think there is opportunity, and I think there is opportunity and 

I think he has articulated well to address some of the concerns that 

have been mentioned by proponents. But, again, there is simply an 

overreaching effort here. I am not going to suggest it is for political 

motives, but some would infer that it might be. 

Mr. WATT. Would the gentleman yield to me so I can suggest 

that? 

Mr. DELAHUNT. I will yield to the gentleman from North Carolina for purposes of a suggestion. 

Mr. WATT. I think it is quite obvious that they would rather have 

the issue than a bill that does some constructive things to reduce 

frivolous lawsuits—— 

Mr. DELAHUNT. Well, reclaiming my time—— 

Mr. WATT. —instead of blaming that on somebody in the Senate, 

but—so, I don’t think I am hesitant to suggest that that is the case. 

Mr. DELAHUNT. Well, reclaiming my time. 

As I look down the list of the bills that we are considering here 

today, one might describe the agenda as the frivolous anti-Plaintiff 

legislative day in the Judiciary Committee. I mean, we all know 

what this is about. It is about an election cycle. 

But I really do think that, you know, there are opportunities are 

as put forth by Members such as Mr. Berman, where there could 

be a consensus and where good sound public policy could be crafted. The direction that we are going, we might as well just simply 

eliminate the jurisdiction of State courts. 

Why don’t we just simply file an amendment to the Constitution, 

the United States Constitution, repealing—if the gentleman from 

North Carolina could help me, what is the States rights amendVerDate Aug 04 2004 06:15 Sep 14, 2004 Jkt 029006 PO 00000 Frm 00085 Fmt 6659 Sfmt 6601 E:\HR\OC\HR682.XXX HR682
86 

ment of the U.S. Constitution, because I knew you were the Chair 

of that caucus? 

Mr. SCOTT. What is the question again? 

Mr. DELAHUNT. Well, if the gentleman had been listening to me, 

I think it is the 10th amendment. 

Mr. WATT. I try to tune out all of that, a good portion of the 

morning, but go ahead. 

Mr. DELAHUNT. Well, is it the 10th amendment that invests in 

States’ certain rights, that reserve certain rights? 

Mr. WATT. Last time I checked. I think they may have repealed 

it by now. 

Mr. DELAHUNT. At least in terms of the Federalism as it applies 

to the judicial systems of the States and the Federal Government, 

the direction that we have been going in, since I served in this 

Committee is de facto elimination, a repeal of the 10th amendment 

as it applies—— 

Chairman SENSENBRENNER. The time of the gentleman has expired. 

Mr. SCHIFF. Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Schiff, has had very little to say today. 

Mr. SCHIFF. I thank you for not applauding that. 

Mr. Chairman, I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SCHIFF. My colleague from Massachusetts poses the question 

of why don’t we just stop fooling around and remove the jurisdiction of the State courts. The problem with that is we have already 

moved to remove the jurisdiction of the Federal courts. We did that 

last month. 

And pretty soon, we will be left with no jurisdiction of any court. 

I have often remarked in Committee my concern about the degradation of relationship between this Congress and the courts in 

general. In addition to the concern raised by my colleague from 

California, Mr. Berman, over really an impressive interference with 

the venue decisions that are made by the States and in the State 

courts, I am also troubled by the intrusion that we are making and 

the way we are making it into the Federal courts promulgations of 

rules over their own procedures. 

We passed in Congress some years ago the rules enabling act 

that establish certain procedures for how rules would be adopted 

in the Federal courts. Under those congressionally-mandated procedures, those new rules will, in the first instance be considered and 

drafted by the U.S. Judicial conference, thereafter be submitted for 

public comment and reconsideration, then be submitted to the U.S. 

Supreme Court for consideration and promulgation, and finally 

they are sent to Congress which retains the power to veto any rule 

before it goes into effect. 

We have bypassed all of that. In fact, in section 2 of this bill gone 

way beyond bypassing that; in fact, we are reversing exactly that 

process that was actually undertaken. This section 2 of the bill was 

something that was enacted in 1983, evidently caused great problems within the judiciary, and then was undone in 1993. The judicial conference has written to the Congress with respect to this bill 

that undoing the rule 1993 Rule 11 amendments, even though no 

87 

serious problem has been brought to the judicial conference rules 

attention would frustrate the purpose and the intent of the Rules 

Enabling Act. 

Section 2 of H.R. 4571 would effectively reinstate the 1983 

version of Rule 11 that proved so contentious and wasted so much 

time and energy of the bar and bench. Section 2 indeed, in some 

ways, seems to go beyond the provisions that created serious problems with the 1983 rule. It may cause even greater mischief. Rule 

11 in its present form has proven effective and should not be revised. That is what the judicial conference has to say. 

Basically, what we are contemplating here, and, frankly, when I 

first read this proposal, it struck me at a gut level as something 

very worthwhile consideration. I didn’t know the history of it. 

When you look at the history of it, you read that this was tried for 

10 years and that it spawned a cottage industry where someone 

would file the Rule 11 motion, the opposing counsel would then file 

the Rule 11 motion on the Rule 11 motion, and you would have litigation over whose Rule 11 motion should succeed. That when there 

were mandatory attorneys’ fees and mandatory imposition of sanctions, that basically you end up creating this cottage industry in 

Rule 11 motions. Revenue, the bench says this was a waste of time. 

In fact, the bench said it created more dollars of unnecessary litigation. 

Now that is, I would admit, a kind of counterintuitive result. I 

would not have anticipated that. But that has been the experience 

of the judiciary, and, to my experience, no one has contradicted 

that. No one has said the evidence the judiciary put forward, the 

surveys of judges were somehow wrong in error, missed the point 

or that the judicial conference now takes a different point of that. 

Mr. SMITH. Would the gentleman from California yield. 

Mr. SCHIFF. I would be delighted to yield. 

Mr. SMITH. I want to point out a couple or surveys that were 

done that the gentleman may not be aware of. For example, in 

1990 the judicial conference surveyed 750 Federal judges and found 

that 95 percent believed that Rule 11—this is the pre-1993 rule— 

did not impede development of the law. 80 percent of the judges believed the rule should not—excuse me, 80 percent of the judges believed the rule should have been retained in its then current form. 

Furthermore, they did another poll after the rule was repealed. 

This survey was done in 1985 and in that survey, two-thirds of the 

judges, two thirds of the defense attorneys, and 66 percent of the 

other attorneys supported restoring Rule 11’s compensatory function once again. So we may be looking at different surveys, but 

clearly the judges themselves felt that the original revenue was a 

good rule and regretted changing it. 

Chairman SENSENBRENNER. The time of the gentleman from 

California has expired. 

Mr. SCHIFF. Mr. Chairman, may I request 2 additional minutes. 

Chairman SENSENBRENNER. Without objection. 

Mr. SCHIFF. I appreciate the author’s comments, but again, turning to the views expressed by the judicial conference, ‘‘experience 

with the amended rule since 1993 has demonstrated a market decline to Rule 11 satellite litigation without any noticeable increase 

in the number of frivolous filings.’’ 

88 

1See ‘‘Agency Views.’’ 

In June 1995, the Federal Judicial Center conducted a survey of 

1130 lawyers, 148 judges, on the effect of the 1993 Rule 11 amendments. 580 attorneys, 120 judges responded. The center found general satisfaction with the amended rule. It also found that more 

than 75 percent of the judges and lawyers would oppose a provision 

that would require a court to impose a sanction when the rule is 

violated. A majority of the judges and lawyers, both Plaintiffs and 

Defendant’s lawyers believed that groundless litigation was handled effectively by judges. 

So I don’t understand the disparity in our statistics. But I also 

don’t understand why if, the judges do feel, that the rule should go 

back to the form it was in before the 10-year bad experience, that 

the judicial conference is not recommending that course, is not initiating the rules, enabling act procedures. 

Why they are opposing Congress bypassing their process and 

their point of view. So, again, the gentleman—this doesn’t seem at 

odds with what we are hearing directly from the judicial conference. I would be more than interested in having the judicial conference come and testify and maybe explain the statistics 

shortsighting and in preparation for this hearing. 

And I thank the gentleman for the additional time and yield 

back. 

Chairman SENSENBRENNER. Are there further amendments? 

Mr. WATT. Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from North Carolina. 

Mr. WATT. I ask unanimous consent that the letter from the Secretary of the Judicial Conference of the United States,1 dated July 

9, 2004 from which Mr. Schiff was reading, be made a part of the 

record. 

Chairman SENSENBRENNER. Without objection. 

The gentleman from Texas. 

For what purpose do you seek recognition? 

Mr. SMITH. Mr. Chairman, I have a unanimous consent request 

that the letter from the American Tort Reform Organization be 

made a part of the record as well as a list, as well of those organizations requesting the Lawsuit Reduction Act. Those organizations 

would include the American Medical Association, National Association of Manufacturers, National Federation of Independent Businesses, National Restaurant Association and the Chamber of Congress. 

Thank you, Mr. Chairman. 

Chairman SENSENBRENNER. Thank you. Without objection. 

[The material referred to follows:] 

89 


ATRA1.eps
90 


ATRA2.eps
91 


ATRA3.eps
92 

Are there further amendments? If there are no further amendments. The question occurs on the motion to report the bill H.R. 

4571 favorably as amended. 

All in favor say will say aye. 

Aye. 

Opposed no. 

No. 

Ayes appear to have it. 

Mr. SMITH. Mr. Chairman, I would like a rollcall vote. 

Chairman SENSENBRENNER. rollcall is ordered. 

Those in favor of the motion to report H.R. 4571 favorably as 

amended will as your name is called answer aye. 

Those opposed, no. 

And the clerk will call the roll. 

The CLERK. Mr. Hyde. 

Mr. HYDE. Aye 

The CLERK. Mr. Hyde votes aye. 

Mr. Coble. 

Mr. COBLE. Aye. 

The CLERK. Mr. Coble votes aye. 

Mr. Smith. 

Mr. SMITH. Aye. 

The CLERK. Mr. Smith votes aye. 

Mr. Gallegly. 

Mr. GALLEGLY. Aye. 

The CLERK. Mr. Gallegly votes aye. 

Mr. Goodlatte. 

Mr. GOODLATTE. Aye. 

The CLERK. Mr. Goodlatte votes aye. 

Mr. Chabot. 

Mr. CHABOT. Aye. 

The CLERK. Mr. Chabot votes aye. 

Mr. Jenkins. 

Mr. JENKINS. Aye. 

The CLERK. Mr. Jenkins votes aye. 

Mr. Bachus. 

Mr. BACHUS. Aye. 

The CLERK. Mr. Bachus votes aye. 

Mr. Hostettler. 

Mr. HOSTETTLER. Aye. 

The CLERK. Mr. Hostettler votes aye. 

Mr. Green. 

Mr. GREEN. Aye. 

The CLERK. Mr. Green votes aye. 

Mr. Keller. 

Mr. KELLER. Aye. 

The CLERK. Mr. Keller votes aye. 

Ms. Hart. 

Ms. HART. Aye. 

The CLERK. Ms. Hart votes aye. 

Mr. Flake. 

[no response.] 

The CLERK. Mr. Pence. 

[no response.] 

The CLERK. Mr. Forbes. 

93 

Mr. FORBES. Aye. 

The CLERK. Mr. Forbes votes aye. 

Mr. King. 

Mr. KING. Aye. 

The CLERK. Mr. King votes aye. 

Mr. Carter. 

Mr. CARTER. Aye. 

The CLERK. Mr. Carter votes aye. 

Mr. Feeney. 

Mr. FEENEY. Aye. 

The CLERK. Mr. Feeney votes aye. 

Mrs. Blackburn. 

Mrs. BLACKBURN. Aye. 

The CLERK. Mrs. Blackburn votes aye. 

Mr. Conyers. 

[no response.] 

The CLERK. Mr. Berman 

Mr. BERMAN. No. 

The CLERK. Mr. Berman votes no. 

Mr. Boucher. 

[no response.] 

The CLERK. Mr. Nadler. 

Mr. NADLER. No. 

The CLERK. Mr. Nadler votes no. 

Mr. Scott. 

Mr. SCOTT. No. 

The CLERK. Mr. Scott votes no. 

Mr. Watt. 

Mr. WATT. No. 

The CLERK. Mr. Watt votes no. 

Ms. Lofgren. 

Ms. LOFGREN. No. 

The CLERK. Ms. Lofgren votes no. 

Ms. Jackson Lee. 

[no response.] 

The CLERK. Ms. Waters. 

[no response.] 

The CLERK. Mr. Meehan. 

[no response.] 

The CLERK. Mr. Delahunt. 

Mr. DELAHUNT. No. 

The CLERK. Mr. Delahunt votes no. 

Mr. Wexler. 

[no response.] 

The CLERK. Ms. Baldwin 

Ms. BALDWIN. No. 

The CLERK. Ms. Baldwin votes no. 

Mr. Weiner. 

[no response.] 

The CLERK.Mr. Schiff. 

Mr. SCHIFF. No. 

The CLERK. Mr. Schiff votes no. 

Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. No. 

The CLERK. Mr. Chairman. 

94 

Chairman SENSENBRENNER. Aye. 

The CLERK. Mr. Chairman votes aye. 

Chairman SENSENBRENNER. Members in the Chamber who wish 

to cast or change their votes. 

The gentleman from Florida, Mr. Wexler. 

Mr. WEXLER. No, please. 

The CLERK. Mr. Wexler, no. 

Chairman SENSENBRENNER. Further Members who wish to cast 

or change their votes. If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 18 ayes and 10 noes. 

Chairman SENSENBRENNER. Then 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 incorporating the amendments adopted here today. Without objection 

the Chairman is moved to go to conference pursuant to House 

rules. Without objection the staff is directed to make any technical 

and conforming changes. That all Members will be given 2 days as 

provided by the House rules in which to submit additional 

supplementing or minority views. 

(95) 

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. 2 Currently, no withdrawal right exists for court-initiated sanctions. 

3Such violations are already subject to mandatory sanctions under Rule 26(f) of the Federal 

Rules. 

DISSENTING VIEWS 

We strongly oppose H.R. 4571, the so-called ‘‘Frivolous Lawsuit 

Reduction Act.’’ 

The legislation will have a significant, adverse impact on the 

ability of civil rights plaintiffs to seek recourse in our courts, will 

operate to benefit foreign corporate defendants at the expense of 

their domestic counterparts, and will massively skew the playing 

field against injured victims. This sweeping overhaul of our civil 

justice system is being completed on the thinnest conceivable 

record of a single cursory hearing and 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 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. For 

these and the reasons set forth herein, we dissent from this legislation. 

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 

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 plaintiffs may ‘‘only’’ be filed in the 

state and county (or federal district) where the plaintiff resides, 

96 

4Lawrence C. Marshall et. al., The Use and Impact of Rule 11, 86 Nw. U.L. Rev. 943 (1992). 

5 Ending Illegitimate Advocacy: Reinvigorating Rule 11 Through Enhancement of the Ethical 

Duty to Report, 62 OHSLJ 1568, (2001). 

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 pursuing 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. 

Section 6, added to the bill by an amendment offered by Mr. Keller, requires judges to sanction an attorney if the court determines 

that the attorney has violated Rule 11 three times in his or her entire career (a so-called ‘‘three strikes and you’re out’’ provision). 

The required sanction is suspension from the practice of law in 

that district court for at least one year. This sanction appears to 

apply retroactively, to violations that occurred before their new 

statute takes effect. 

Finally, Section 7, added to the bill by an amendment offered by 

Mr. Scott, provides for enhanced penalties for parties who destroy 

documents concerning a legal proceeding. 

I. The Rule 11 and the ‘‘Three Strikes and You’re Out’’ provision 

will have a chilling impact on civil rights actions 

By requiring a mandatory sanctions regime that would apply to 

civil rights cases, H.R. 4571 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 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.’’ Another study showed that ‘‘civil rights 

cases 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.’’4

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 fling 

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.’’ 5

97 

6 Uncertain and Certain Litigation Abuses, 2004: Hearings on ‘‘Safeguarding Americans from 

a Legal Culture of Fear: Approaches to Limiting Lawsuit Abuse’’ Before the Comm. on the Judiciary, 108th Cong. (2004) (statement of Theodore Eisenberg, Professor, Cornell University). 7Symposium, 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). 8Mr. Keller (R–FL) claims that he offered this provision because it is based on language offered by Senator Edwards, who introduced a bill with Senator Durbin providing for a ‘‘three 

strikes and you’re out’’ attorney sanctions regime for medical malpractice cases. S. 1374, 108th 

Cong. (2004). The problem with this line of argument is that the Senate Republicans rejected 

the Edwards proposal. Moreover, the Edwards proposal specifies that upon the third frivolous 

filing, the judge is required to refer the attorney to disciplinary proceedings. It does not mandate 

a one-year suspension, but rather leaves that decision to the State Bar. 

As Professor Theodore Eisenberg, Professor of Law, Cornell University testified before the House Judiciary Committee, ‘‘A Congress considering reinstating the fee-shifting aspect of Rule 11 in 

the name of tort reform should understand what it will be doing. 

It will be discouraging 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.’’ 6

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.’’ 7

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. 

For similar reasons we object to Section 6, added to the bill in 

the markup by Rep. Keller, which provides that if a court finds 

that an attorney has violated Rule 11 three times, the court must 

suspend the attorney from practice for at least one year. We object 

to this provision because like the Majority’s Rule 11 changes, it will 

have a chilling effect on civil rights cases. Here the impact could 

well be worse than the Rule 11 amendments, because there is no 

rule of construction concerning civil rights to mitigate the harm to 

any extent. Even more egregiously, as drafted, the three strikes 

penalty would appear to apply on a retroactive basis. This means 

a civil rights attorney could have his license suspended for violations that occurred before this penalty regime even existed.8

Finally, H.R. 4571 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 

98 

9 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 

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 effect on interstate commerce. 

would unreasonably be subject to sanctions, and even suspension, 

without appeal contrary to the purpose of Rule 11. 

II. The sweeping new forum shopping provision will unfairly benefit 

foreign corporations to the disadvantage of their U.S. competitors and unfairly omits business litigation from its scope 

A. Section 4 will benefit foreign corporations 

We are particularly offended by Section 4 of the bill, which would 

recast state and federal court jurisdiction and venue in personal injury cases. 

Our most significant concern is that 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.9 This means 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 if often the case, any suit against the foreign company 

would be banned by H.R. 4571. 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. 

The bill forces this absurd result because it is drafted from the 

premise that every personal injury suit is brought against a business defendant headquartered in the U.S. In the real world, of 

course, this is not the case. The result is that not only do foreign 

corporations receive a financial windfall under the bill, but so does 

every possible defendant who is not a U.S. corporation. Thus legal 

actions brought against individuals who do not have minimum contacts with the state the victim resides in or is injured in, but do 

have contacts with other states, would be barred by H.R. 4571. 

Similarly, personal injury cases brought against aliens, foreign 

99 

10 It is instructive to consider Title 28, Section 1391 of the United States Code, which governs 

venue in federal courts, provides for jurisdiction when the action is based on diversity of citizenship or federal question, and specifies where the suit may be filed if the defendant is a corporation, if the defendant is an alien, if the defendant is an officer or employee of the United States 

or any agency, acting in his official capacity, or if the defendant is a foreign state. By contrast, 

most of these categories of defendants are simply ignored by Section 4 of H.R. 4571. 11 America’s Litigious Businesses, September 2004, study on file with Judiciary Committee. 

states, and state and federal officials all would be much harder, if 

not impossible, to pursue if H.R. 4571 were to become law.10

B. Section 4 will place victims at a significant litigation disadvantage compared with corporate defendants 

It is difficult to consider H.R. 4571 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.’’ We are aware of 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? Nexus to the plaintiff? The defendant? 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. 

Beyond this, mandating dismissal would seem to be an extreme 

and costly remedy as compared to simply transferring the case to 

another court. It is also unclear from the drafting whether or not 

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 and 

stick an inappropriate second court with a case that does not belong there. Or, 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. It is also unclear whether 

a dismissal is appealable, which could cause huge delays. 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 delays because it requires the state court to make another 

time consuming and costly determination before accepting or dismissing the case. Again, these delays should not bother a defendant, but what about a victim who may be in drastic need of medical 

attention and expenses? 

Beyond this, 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.11 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 

100 

12 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. 

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.12 If the Majority believes so strongly in the efficacy of this 

forum shopping provision, why are they unwilling to apply it across 

the board? 

CONCLUSION

We are happy to work with the Majority in reigning in frivolous 

lawsuits, but surely we can go after the frivolous cases without 

harming the ability of civil rights actions to be brought. We are 

willing to consider the issue of forum shopping, if it can be documented, but surely we can do better than passing legislation which 

so explicitly benefits foreign corporations at the expense of their 

U.S. counterparts and so massively tilts the playing field in favor 

of defendants. We urge the Majority to reconsider this ill-timed and 

ill-considered legislation. 

JOHN CONYERS, Jr. 

ROBERT C. SCOTT. 

MAXINE WATERS. 

TAMMY BALDWIN. 

JERROLD NADLER. 

MELVIN L. WATT. 

SHEILA JACKSON LEE. 

ROBERT WEXLER. 

ANTHONY D. WEINER. 

LINDA T. SA ́ NCHEZ. 

Æ