Retaliatory RICO and the Puzzle of Fraudulent Claiming.

IntroductionPlaintiffs' lawyers have long been assailed for bringing spurious suits. In the late nineteenth century, railroad executives complained about bogus claims for railway injuries, ginned up, they said, by "[d]isreputable lawyers," alongside their "rascally confederates in the medical profession."1 In the 1950s, a prominent physician complained in the Saturday Evening Post that all medical malpractice suits amounted to "legalized blackmail" and insisted that the prime objective of plaintiffs' attorneys in such cases was to "aid in the holdup and run with the loot."2 And, in the early 1990s, Peter Huber penned a popular book lamenting the "legions of case-hardened lawyers" intent on asserting patently false claims.3There is at least a grain of truth to some of these dark assertions. To be sure, the doctor above was wrong-if you're looking for fraudulent claims, medical malpractice litigation is probably the last place to look.4 And, it is also true, and bears emphasis, that evidence suggests most suits within the tort liability system are genuine and meritorious.5 Yet, it's just as true that the tort system, writ large, has more than its share of specious activity. Various headline-grabbing mass torts-including cases such as fen-phen, asbestos, silica, and the Deepwater Horizon oil spill-have drawn many with dodgy entitlements to relief. And the auto accident system-responsible for the majority of all tort claims and three-quarters of all injury damage payouts-is, in certain segments, awash with those whose claims are feigned or built.6These bogus claims are costly. They account for billions of dollars of losses per year.7 They clog courts, making it harder for those with meritorious claims to obtain justice in a timely manner. They increase insurance premiums, and these hikes ultimately induce some individuals and entities to go "bare."8 And, they drain the coffers of corporate and individual defendants, diverting funds from those with valid entitlements and pressing financial need.9Aside from these practical considerations, fraudulent claiming imposes other costs, too. Suspicion of fraud sows distrust between plaintiffs and their institutional adversaries-almost certainly inducing some to "fight fire with fire."10 Misdiagnoses, often at the heart of fraudulent filings, sometimes dupe innocent plaintiffs, causing some to think, erroneously, that they are terribly sick.11 Finally and perhaps worst of all, fraudulent claims-and persistent beliefs about the prevalence of such claims-color the public's perception of civil litigation.12 This, in turn, causes judges and jurors to view future plaintiffs skeptically, tarnishes the reputation of the plaintiffs' bar, and reduces injury victims' interest in, and willingness to enter, the legal fray.13Moreover, when it comes to the operation, integrity, and stability of the tort liability system, responses to the fraud problem are similarly consequential, with implications that are, if anything, more profound. Like the angry doctor above, defendants have long used the specter of fraudulent filings to justify broad efforts to clamp down on litigation more generally. Persuaded by this advocacy, judges and policymakers have radically overhauled the civil justice system-to erect heightened pleading standards, impose certificate-of-merit requirements, create professional screening panels, curtail the admission of expert testimony, liberalize restrictions on removal, impose medical-criteria controls, limit class actions, and enhance Rule 11- all, in part, under the guise of smoking out fraudulent suits.14Now, with potentially far-reaching implications, corporate heavyweights are sharpening a new tool to tamp down on fraudulent claiming: what I call "retaliatory RICO." In recent years, more than a dozen corporate defendants have filed such actions against plaintiffs, their lawyers, and their experts to retaliate for the initiation of a wide range of allegedly bogus litigation, concerning matters as varied as asbestos injury, environmental devastation, workplace accidents, car wrecks, a motel fire, and elephant abuse. …