Resolution in Support of Fair Recourse and Effective Deterrence Against Frivolous Claims


 This resolution supports efforts to provide victims of frivolous lawsuits with an effective and fair means to seek reimbursement of their legal expenses.  A single frivolous claim can easily cripple an individual or small business.  Changes to the Federal Rules of Civil Procedure in 1993 left victims of frivolous claims with practically no recourse.  The current federal rule provides unscrupulous lawyers with the ability to demand payment, even when a claim has no basis in law or fact, or is brought for purposes of harassment, without the threat of any economic consequences.  Since many states courts conform their rules to those used in federal courts to provide for consistency between the systems, the 1993 change weakening the federal rule against frivolous lawsuits also adversely impacted state civil justice systems.  This resolution supports policy that (1) eliminates the “safe harbor,” which permits those who file frivolous claims to withdraw them and thereby avoid any sanction; and (2) requires that offending party pay the other side’s reasonable attorneys’ fees and court costs incurred as a direct result of the violation.

Resolution in Support of Fair Recourse and Effective Deterrence Against Frivolous Claims

PURPOSE: To support policy that allows for fair recourse and effective deterrence againt frivolous claims.

WHEREAS, frivolous claims include those that are (1) presented for an improper purpose, such as harassment; (2) are not warranted by existing law or a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) have no basis in fact and is not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; or (4) involve denials of factual contentions not warranted based on the evidence;

WHEREAS, obtaining dismissal of a single frivolous claim can require tens of thousands of dollars in legal expenses, and thereby place significant pressure on individuals and small businesses to settle completely unfounded cases, scale back operations, or file for bankruptcy protection;

WHEREAS, 1993 amendments to Rule 11 left victims of lawsuit abuse with no effective means of recourse and does not deter those who would bring frivolous claims by:

1.   Requiring the lawyer for the party hit with a frivolous claim to undertake the additional expense of preparing a separate motion for sanctions, which he or she must send to the violator before filing it with the court.  Under this “safe harbor,” those who file frivolous claims may withdraw the claim within 21-days of receiving the motion without any obligation to reimburse the victim and without facing any penalty whatsoever.

2.   Permitting courts to take no action even after finding a claim or defense is frivolous; and

3.   Discouraging judges from requiring those who file frivolous claims to reimburse the victim for attorney’s fees and costs by limiting sanctions to “what suffices to deter repetition of the conduct or comparable conduct by others similarly situated.”

WHEREAS, the 1993 changes were an overreaction to exaggerated concerns regarding application of the Rule in effect from 1983 until 1993;

 WHEREAS, just two years prior to the 1993 amendment, 95 percent of surveyed federal judges believed that the prior version of Rule 11, which had strict penalties against frivolous claims, had an overall positive effect on practice and procedure and should not be changed, and three-quarters of those judges surveyed believed that the rule’s benefits in deterring frivolous lawsuits and compensating those victimized by such claims justified the use of judicial time involved in resolving such motions;[1]

WHEREAS, the Advisory Committee itself recognized that while there was some legitimate criticism of Rule 11’s application, such criticism was “frequently exaggerated or premised on faulty assumptions”;[2]

WHEREAS, members of the U.S. Supreme Court criticized the amendments as “render[ing] the Rule toothless” and allowing parties “to file thoughtless, reckless, and harassing pleadings, secure in the knowledge that they have nothing to lose,”[3] but some members nevertheless viewed their role in transmitting the amendment to Congress as “limited” to ensuring procedural requirements were satisfied;[4]

WHEREAS, Congress failed to intervene within a set seven-month period before the Rule automatically took effect;

WHEREAS, many state courts amended their rules of civil procedure with respect to frivolous claims to conform to federal Rule 11 based on a policy and practice of maintaining consistency with the federal rules to avoid forum shopping; and

WHEREAS, it is particularly important during these difficult economic times to provide victims of frivolous lawsuits with a fair opportunity to seek reimbursement of their legal expenses;

 THEREFORE, BE IT RESOLVED, that the American Legislative Exchange Council supports policy that would:

1.   Require imposition of sanctions when a claim or defense is found to be frivolous;

2.   Eliminate the 21-day “safe harbor”; and

3.   Fully authorize judges to order a party that brings a frivolous claim or defense to pay the victim’s reasonable attorney’s fees and costs incurred as a direct result of the violation;

 Approved by the ALEC Board of Directors, June 2011.



[1]  Federal Judicial Center, Final Report on Rule 11 to the Advisory Committee on Civil Rules of the Judicial Conference of the United States, May 1991.

[2] Amendments to Federal Rules of Civil Procedure and Forms, 146 F.R.D. 401, 523 (1993).

[3] Id. at 507-08 (Scalia, joined by Thomas, J.J., dissenting).

[4] Id. at 505 (Statement of White, J.) (noting that the Court routinely approved the Judicial Conference’s recommendations “without change and without careful study, as long as there is no suggestion that the committee system has not operated with integrity”); see also id. at 401 (1993) (transmittal letter of Rehnquist, C.J.) (indicating that “[w]hile 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.”).