Promote Startups Act of 2017

Mr. Chairman, I thank the ranking member of the Committee on the Judiciary for his distinguished service and my good friend from Texas for his managing of this bill on which we have a vigorous and active disagreement, but realize that the role of the Committee on the Judiciary is to enhance justice for all Americans, no matter what size business, what ethnicity, racial background, what issue they bring, whether they bring a commercial issue or whether they are for criminal justice.

That is why I rise to oppose this legislation, for it is important that we monitor, promote, coddle, and respect justice. I oppose the legislation that aims to restore a long-discredited version of Federal Rule of Civil Procedure 11, in effect from 1983 to 1993. I use as a premise of my argument a letter from the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, in particular written by two distinguished Federal judges from Arizona, the chair of the Committee on Rules and the chair of the Advisory Committee on Rules, both Federal district court judges. But more importantly, my luck was to meet with a series of judges in the past week, Federal judges, Republican appointees and some Democratic appointees, and there was a vocal outcry of the outrage of this legislation, asking and begging that this legislation not be put in place.

Let me give you a description from the Federal courts, recognizing: ``We of course share the desire of the sponsors of LARA to improve the civil justice system''--and that is the Lawsuit Abuse Reduction Act-- ``in our Federal courts, including the desire to reduce frivolous filings. But LARA creates a cure worse than the problem it is meant to solve.''

``Moreover, as we are both Federal trial judges, our perspective is informed by our ongoing daily experience with the practical operation of the rules.''

I, too, am concerned about small businesses. That is why we need to proceed as we are proceeding. It gives thoughtful judges the ability to protect those entities. The facts do not, according to the letter, support any assumption that mandatory sanctions deter frivolous filings.

``A decade of experience with the 1983 mandatory sanctions provision,'' they go on to say, ``demonstrated that it failed to provide meaningful relief from

the litigation behavior it was meant to address, and instead generated wasteful satellite litigation that had little to do with the merits of cases.''

What good is that for the small litigant? What good will they have when they might be subject to satellite litigation? And so, Mr. Chairman, why would we want to return to the failed, discredited sanction regime rightly abandoned in 1993? H.R. 720 would require courts to impose monetary sanctions for any rule 11 violation, eliminating the safe harbor provision that currently allows attorneys to correct or withdraw a filing before rule 11 proceedings commence. That is justice: I made a mistake, I want to withdraw it. I am suing a small business, I have a different perspective. I know the facts, let me withdraw it.

The cost-shifting provision was eliminated by the courts because it encouraged satellite litigation, and many cases required parallel proceedings. Here is the worst of it: Suppose we were back in 1954. Would Brown v. Board of Education be a frivolous lawsuit subject to sanctions, a landmark decision of the United States Supreme Court that declared State laws establishing separate public schools for Black and White students unconstitutional? What about Griswold in 1965? It would also be judged as a frivolous lawsuit.

Mr. Chairman, Griswold was a landmark case in which the Supreme Court ruled that we had a right to privacy. Or what about the famous case that was made into a movie, Loving v. Virginia? I think for almost 25 years this mixed-marriage couple could not live in their own State. A lawsuit would have been considered frivolous. Loving was a landmark case which decided Virginia's antimiscegenation statute was unconstitutional.

New York Times Co. v. United States in 1971, the question was on the constitutional freedom of the press. It reinforced the First Amendment.

Mr. Chairman, it is impossible to go back to the old days. I ask my colleagues to support the Jackson Lee amendment, to come up and to oppose the underlying bill in the name of justice for all.

Mr. Chairman, I include in the Record a list of seven notable cases the Lawsuit Abuse Reduction Act may have barred from a courtroom.

seven notable cases the ``lawsuit abuse reduction act'' may have barred

from a courtroom

Contrary to proponents' claims, LARA does not deter

frivolous lawsuits. Rather it deters meritorious cases by

imposing a one-size-fits-all mandate for federal judges.

Mandatory sanctions inevitably chill meritorious claims

particularly in cases of first impression or involving new

legal theories, including cases to protect civil rights, the

right to privacy, the environment, collective bargaining and

the First Amendment. Our system of justice is a moving body

of law, and novel legal theories have the ability to shift

public policy and law.

Below are seven notable cases that LARA may have prevented

because the cases presented what--at the time they were

presented to the court--would have been considered novel

legal theories:

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954):

Brown was a landmark decision of the United States Supreme

Court that declared state laws establishing separate public

schools for black and white students unconstitutional. The

decision overturned the Plessy v. Ferguson decision of 1896

which allowed state-sponsored segregation. The Court's

unanimous decision stated that ``separate educational

facilities are inherently unequal.'' As a result, de jure

racial segregation was ruled a violation of the Equal

Protection Clause of the Fourteenth Amendment of the United

States Constitution. This ruling paved the way for

integration and the civil rights movement.

Griswold v. Connecticut, 381 U.S. 479 (1965): Griswold was

a landmark case in which the Supreme Court ruled that the

Constitution protected a right to privacy. The case involved

a Connecticut law that prohibited the use of contraceptives.

By a vote of 7-2, the Supreme Court invalidated the law on

the grounds that it violated the ``right to marital

privacy.''

Lawrence v. Texas, 539 U.S. 558 (2003): In Lawrence, the

Supreme Court considered the issue of whether adult

consensual sexual activity is protected by the Fourteenth

Amendment guarantee of equal protection under the law. The

Court found that the petitioners were free as adults to

engage in the private conduct in the exercise of their

liberty under the Due Process Clause. The decision

decriminalized the Texas law that made it illegal for two

persons of the same sex to engage in certain intimate sexual

conduct.

Massachusetts v. Environmental Protection Agency, 549 U.S.

497 (2007): In this case, twelve states and several cities of

the United States brought suit against the United States

Environmental Protection Agency (EPA) to force the federal

agency to regulate carbon dioxide and other greenhouse gases

as pollutants. The Supreme Court found that Massachusetts,

due to its ``stake in protecting its quasi-sovereign

interests'' as a state, had standing to sue the EPA over

potential damage caused to its territory by global warming.

The Court rejected the EPA's argument that the Clean Air Act

was not meant to refer to carbon emissions in the section

giving the EPA authority to regulate ``air pollution

agent[s].''

Loving v. Virginia, 388 U.S. 1 (1967): Loving was a

landmark civil rights case in which the United States Supreme

Court, by a 9-0 vote, declared Virginia's anti-miscegenation

statute, the ``Racial Integrity Act of 1924,''

unconstitutional, thereby ending all race-based legal

restrictions on marriage in the United States.

New York Times Co. v. United States, 403 U.S. 713 (1971):

This case considered whether the New York Times and

Washington Post newspapers could publish the then-classified

Pentagon Papers without risk of government censure. The

question before the Court was whether the constitutional

freedom of the press, guaranteed by the First Amendment, was

subordinate to a claimed need of the executive branch of

government to maintain the secrecy of information. The

Supreme Court ruled that the First Amendment protected the

right of the New York Times to print the materials.

Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978)

(The Snail Darter Case): In TVA, the Supreme Court affirmed a

court of appeals' judgment, which agreed with the Secretary

of Interior that operation of the federal Tellico Dam would

eradicate an endangered species. The Court held that a prima

facie violation of Sec. 7 of the Endangered Species Act, 16

U.S.C. Sec. 1536, occurred, and ruled that an injunction

requested by respondents should have been issued.

Mr. Chair, I rise in strong opposition to H.R. 720, the ``Lawsuit Abuse Reduction Act of 2017,'' because it is both unnecessary and counterproductive.

I oppose this legislation that aims to restore a long-discredited version of Federal Rule of Civil Procedure 11, in effect from 1983 to 1993.

The current Rule 11 allows federal courts, in their discretion, to impose sanctions for frivolous filings and it encourages litigants to resolve such issues without court intervention.

As written, H.R. 720 would change the sanctions for a violation of Federal Rules of Civil Procedure 11 to a cost-shifting sanction payable to the opposing party, an antiquated version of the Rule in effect from 1983 until 1993.

Why, Mr. Chair would we return to the failed and discredited sanction regime rightly abandoned in 1993?

H.R. 720 would require courts to impose monetary sanctions for any Rule 11 violation, eliminating the safe harbor provision that currently allows attorneys to correct or withdraw a filing before Rule 11 proceedings commence.

That cost-shifting provision was eliminated by the courts because it encouraged satellite litigation; many cases required parallel proceedings--one on the merits of the lawsuit and one on the Rule 11 motion.

The 1983 rule had a particularly negative disproportionate impact on plaintiffs, especially plaintiffs in civil rights cases, because plaintiffs in such cases often raise novel legal arguments, leaving them vulnerable to a Rule 11 motion by a defendant.

Reinstating this mandatory fee shifting rule, as H.R. 720 does, will again have a chilling effect on plaintiffs' claims, especially individual plaintiffs taking on large corporate interests.

Sanctions were more often imposed against plaintiffs than defendants and more often imposed against plaintiffs in certain kinds of cases, primarily in civil rights and certain kinds of discrimination cases.

A leading study on this issue showed that although civil rights cases made up 11.4% of federal cases filed, 22.7% of the cases in which sanctions had been imposed were civil rights cases.

The imposition of mandatory fees and costs ultimately shifts the purpose of the Rule from deterrence to compensation, encouraging parties to always file Rule 11 motions in the hopes of gaining additional compensation.

Both the Judicial Conference of the United States and the U.S. Supreme Court support preservation of the current version of Rule 11(c) and restoring the true balance between punishing unwarranted conduct and deterring unnecessary litigation.

Given the highly problematic experience under the 1983 rule, which sparked extensive and costly litigation, the rule burdened already strained federal court system, adversely affecting cases of all types, including civil litigation among businesses.

Congress should be looking for ways to decrease, not increase wasteful burdens on

courts, and should avoid rule changes that have a discriminatory impact on civil rights, employment, environmental, and consumer cases.

For these reasons and more, I oppose this bill.

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

Mr. Chairman, let me again emphasize our mutual commitment to justice and why I think the underlying bill skews justice and tips the scale of justice on Lady Justice.

I again refer you to the sitting experts, and that is the Judicial Conference of the United States, comprised of Federal judges all across America. I can't help but recite this sentence that strikes me as one as strong as possible to have been cited in a letter.

Their referral to LARA, the Lawsuit Abuse Reduction Act, in this one sentence, recognizing the concern about frivolous lawsuits or filings, they say:

But LARA creates a curse worse than the problem it is meant

to solve.

I think that that one sentence says it all. We are not here solving a problem. We are here creating a problem.

I am particularly struck by the comments regarding small businesses. My amendment improves H.R. 720 by preserving the current law and practice of courts awarding attorneys' fees when justice requires.

As written, H.R. 720 would change the sanctions for violation of Federal Rules of Civil Procedure 11 to a cost-shifting sanction, payable to the opposing party, an antiquated version of the rule in effect from 1983 until 1993. That cost-shifting provision was eliminated by the courts because it encouraged satellite litigation.

The Jackson Lee amendment would preserve the sanctions currently available under rule 11, which provide the correct balance in punishing unwarranted conduct--this is under the present status of rule 11-- without encouraging unnecessary litigation.

Specifically, my amendment will strike a provision of the legislation that mandates the award of reasonable attorney fees and costs. Instead, it restores judicial discretion to award such fees and costs when warranted.

Take small business A, who is mad at big bank XYZ. They mishandled my account, and they filed a lawsuit. Unfortunately, the bookkeeper--not accountant--bookkeeper that the small business used really made the mistake, but the judge, recognizing the small business had good intentions, would not have to mandatorily force them to be sanctioned and to pay attorneys' fees but might then have discretion. That is how you help small business A.

I ask my colleagues to support the reasonable Jackson Lee amendment.

Mr. Chair, thank you for this opportunity to explain the Jackson Lee Amendment to H.R. 720.

My amendment improves H.R. 720 by preserving the current law and practice of courts awarding attorney fees when justice so requires.

As written, H.R. 720 would change the sanctions for a violation of Federal Rules of Civil Procedure (FRCP) 11 to a cost-shifting sanction payable to the opposing party, an antiquated version of the Rule in effect from 1983 until 1993.

That cost-shifting provision was eliminated by the courts because it encouraged satellite litigation.

The Jackson Lee Amendment would preserve the sanctions currently available under Rule 11, which provide the correct balance in punishing unwarranted conduct, without encouraging unnecessary litigation.

Specifically, my amendment will strike a provision of the legislation that mandates the award of reasonable attorneys' fees and costs, and instead restores judicial discretion to award such fees and costs when warranted.

The Jackson Lee Amendment preserves the balance found in the current version of Rule 11, which gives the court discretion to determine an appropriate sanction.

H.R. 720 seeks a return to the failed and discredited sanction regime rightly abandoned in 1993.

By eliminating the mandatory fee-shifting provision, the 1993 Rule discouraged satellite litigation and encouraged parties to move forward with the merits of the case.

Under the prior Rule 11, during the 1983-1993 time, mandatory fee- shifting was used to discourage plaintiffs from bringing meritorious claims using novel legal theories in civil rights and employment rights cases.

Reinstating this mandatory fee shifting rule, as H.R. 720 does, will again have a chilling effect on plaintiffs claims, especially individual plaintiffs taking on large corporate interests.

The Jackson Lee Amendment would preserve the current version of Rule 11(c) and restore the true balance between punishing unwarranted conduct and deterring unnecessary litigation.

The old rule disproportionately affected plaintiffs, especially plaintiffs in civil rights cases.

Sanctions were more often imposed against plaintiffs than defendants and more often imposed against plaintiffs in certain kinds of cases, primarily in civil rights and certain kinds of discrimination cases.

A leading study on this issue showed that although civil rights cases made up 11.4% of federal cases filed, 22.7% of the cases in which sanctions had been imposed were civil rights cases.

The imposition of mandatory fees and costs shifts the purpose of the Rule from deterrence to compensation, encouraging parties to always file Rule 11 motions in the hopes of gaining additional compensation.

For these reasons, I urge my colleagues to join me in supporting the Jackson Lee Amendment.

Committee on Rules of Practice and Procedure of the

Judicial Conference of the United States,

Washington, DC, April 13, 2015.

Hon. Bob Goodlatte,

Chairman, Committee on the Judiciary,

House of Representatives, Washington, DC.

Dear Mr. Chairman: We write to present the views of the

Judicial Conference Rules Committees on H.R. 758, the Lawsuit

Abuse Reduction Act of 2015.

As the current chairs of the Judicial Conference's

Committee on the Rules of Practice and Procedure (the

``Standing Committee'') and the Advisory Committee on the

Federal Rules of Civil Procedure (the ``Advisory

Committee''), we oppose H.R. 758, which seeks to reduce

lawsuit abuse by amending Rule 11 of the Federal Rules of

Civil Procedure. The bill would reinstate a mandatory

sanctions provision of Rule 11 adopted in 1983 and removed as

counterproductive in 1993. The bill would also eliminate a

provision adopted in 1993 that allows a party to withdraw

challenged pleadings. Our concerns mirror the views expressed

by the Judicial Conference in 2004 and 2005, and by the

Standing Committee and Advisory Committee in 2011 and 2013,

in response to similar legislation, and reflect our ongoing

daily experience with the practical operation of the rules.

We share the desire of the sponsors of H.R. 758 to improve

the civil justice system in our federal courts, including the

desire to reduce frivolous filings. But legislation that

would restore the 1983 version of Rule 11 would create a cure

worse than the problem it is meant to solve. Such legislation

also contravenes the longstanding Judicial Conference policy

opposing direct amendment of the federal rules by legislation

rather than through the deliberative process Congress

established in the Rules Enabling Act, 28 U.S.C.

Sec. Sec. 2071-2077.

A decade of experience with the 1983 mandatory sanctions

provision demonstrated that it failed to provide meaningful

relief from the litigation behavior it was meant to address,

and instead generated wasteful satellite litigation that had

little to do with the merits of cases. The 1983 version of

Rule 11 required sanctions for every violation of the rule,

and quickly became a tool of abuse. Aggressive filings of

Rule 11 sanctions motions required expenditure of tremendous

resources on Rule 11 battles having nothing to do with the

merits of the case and everything to do with strategic

gamesmanship. Many Rule 11 motions in turn triggered counter-

motions seeking Rule 11 sanctions as a penalty for filing of

the original Rule 11 motion.

The 1993 changes to Rule 11 followed years of examination

and were made on the Judicial Conference's strong

recommendation, with the Supreme Court's approval, and

effective only following a period of congressional review.

The 1993 amendments were designed to remedy the major

problems with the rule, strike a fair balance between

competing interests, and allow parties and courts to focus on

the merits of the underlying cases. Since 1993, the rule has

included a safe harbor, providing a party 21 days within

which to withdraw a particular claim or defense before

sanctions can be imposed. If the party fails to withdraw an

allegedly frivolous claim or defense within that time, a

court may impose sanctions, including assessing reasonable

attorney fees. Under the 1993 amendments, sanctioning of

discovery-related abuse remains available under Rules 26 and

37, which provide for sanctions that include awards of

reasonable attorney fees.

Minimizing frivolous filings is vital. The current rules

give judges tools to deal with frivolous pleadings, including

the imposition of sanctions where warranted. Rule 12(b)(6)

authorizes courts to dismiss pleadings that fail to state a

claim. Section 1927 of Title 28 of the United States Code

authorizes sanctions against lawyers for ``unreasonably and

vexatiously'' multiplying the proceedings in any case. Other

tools to address frivolous filings include 28 U.S.C.

Sec. 1915(e), which requires courts to dismiss cases brought

in forma pauperis that are frivolous, malicious, or fail to

state a claim, and 28 U.S.C. Sec. 1915A, which requires

courts to dismiss prisoner complaints against governmental

entities, officers, or employees that are frivolous,

malicious, or fail to state a claim.

Some may ask, why not give courts another tool to deter

frivolous filings by reinstating the 1983 version of Rule 11?

The answer is that the very process Congress established to

consider rule proposals exposed the 1983 version of Rule 11

as superficially appealing, but replete with unintended

consequences, chiefly an explosion of satellite litigation.

Congress designed the Rules Enabling Act process in 1934, and

reformed it in 1988, to produce the best rules possible

through broad public participation and review by the bench,

the bar, and the academy. The Enabling Act charges the

judiciary with the task of neutral, independent, and thorough

analysis of the rules and their operation. The Rules

Committees undertake extensive study of the rules, including

empirical research, so that they can propose rules that will

best serve the American justice system while avoiding

unintended consequences. Experience has shown that this

process works well. Direct amendment of Rule 11 will not only

circumvent the effective Rules Enabling Act process Congress

implemented, but as the careful study of Rule 11 undertaken

by the Rules Committees over many years demonstrates, direct

amendment of Rule 11 as envisioned by H.R. 758 would work

against the laudable purpose of improving the administration

of justice.

Before proposing the 1993 amendments, the Advisory

Committee reviewed several empirical studies of the 1983

version of Rule 11, including studies conducted by the

Federal Judicial Center in 1985 and 1988, a Third Circuit

Task Force report on Rule 11 in 1989, and a New York State

Bar Committee report in 1987. In 1990, the Advisory Committee

issued a call for general comments on the rule. The response

was substantial and clearly called for a change. The Advisory

Committee concluded that Rule 11's cost-shifting provision

created an incentive for too many unnecessary Rule 11

motions. Amendments to Rule 11 were drafted by the Advisory

Committee and approved by the Standing Committee and Judicial

Conference. The Supreme Court approved the amendments and

transmitted them to Congress in May 1993 after extensive

scrutiny and debate by the bench, bar, and public in

accordance with the Rules Enabling Act process.

The amended rule has produced a marked decline in Rule 11

satellite litigation without any noticeable increase in

frivolous filings. In June 1995, the Federal Judicial Center

conducted a survey of 1,130 lawyers and 148 judges on the

effects of the 1993 amendments. The Center found general

satisfaction with the amended rule, and that a majority of

the responding judges and lawyers did not favor a return to

mandatory sanctions when the rule is violated.

In 2005, the Federal Judicial Center surveyed federal trial

judges to get a clearer picture of how the revised Rule 11

was operating. A copy of the study is enclosed. The study

showed that judges on the front lines--those who must contend

with frivolous litigation and apply Rule II--strongly believe

that the current rule works well. The study's findings

include the following highlights:

More than 80 percent of the 278 district judges surveyed

indicated that ``Rule 11 is needed and it is just right as it

now stands'';

87 percent prefer the existing Rule 11 to the 1983 version

or the version proposed by legislation (e.g., H.R. 4571 (the

Lawsuit Abuse Reduction Act of 2004) or H.R. 420 (the Lawsuit

Abuse Reduction Act of 2005));

85 percent strongly or moderately support Rule 11's safe

harbor provisions;

91 percent oppose the proposed requirement that sanctions

be imposed for every Rule 11 violation;

84 percent disagree with the proposition that an award of

attorney fees should be mandatory for every Rule 11

violation;

85 percent believe that the amount of groundless civil

litigation has not grown since the promulgation of the 1993

rule (for judges commissioned before 1992) or since their

first year as a federal district judge (for judges

commissioned after January 1, 1992); and

72 percent believe that addressing sanctions for discovery

abuse in Rules 26(g) and 37 is better than in Rule 11.

The findings of the Federal Judicial Center underscore the

judiciary's united opposition to legislation amending Rule

11. Lawyers share this view. The American Bar Association has

opposed H.R. 758. Indeed, of the 200 lawyers, litigants,

judges, and academics who participated in the 2010 conference

at Duke University Law School convened by the Advisory

Committee to search for ways to address the problems of costs

and delay in civil litigation, nobody proposed a return to

the 1983 version of Rule 11.

Thank you for considering the views of the Standing

Committee and Advisory Committee. We look forward to

continuing to work with you to ensure that our civil justice

system fulfills its vital role. If you or your staff have any

questions, please contact Rebecca Womeldorf, Secretary to the

Standing Committee.

Sincerely,

Jeffrey S. Sutton,

United States Circuit Judge Sixth Circuit,Chair, Committee

on Rules of Practice and Procedure.

David G. Campbell,

United States District Judge District of Arizona, Chair,

Advisory Committee on Civil Rules.

Mr. Chair, I reserve the balance of my time.

Mr. Chairman, reading again from the Judicial Conference letter, it says: The facts do not support any assumption that mandatory sanctions under H.R. 720--that is what the bill is about--deter frivolous filings. All it does, after a decade of experience, is that it demonstrates that it failed to provide meaningful relief from the litigation behavior it was supposed to address.

What it will do is it will punish the small business. By eliminating the mandatory fee-shifting provision, the 1993 rule discouraged satellite litigation. Reinstating this mandatory fee-shifting rule, as H.R. 720 does, will again have a chilling effect.

The Jackson Lee amendment would give the courts discretion to protect against the mom-and-pop business from having to pay because they mistakenly thought big bank XYZ did them in, and it really was a mistake on their part.

Sanctions are more often imposed against plaintiffs than defendants, more often imposed against plaintiffs in certain kind of cases, primarily civil rights and certain kinds of discrimination cases.

The Brown v. Board of Education of Topeka might have been perceived to be outrageous--how dare you try to strike down the separate but equal--and yet it has had an amazing impact and a case of moment in history.

Or the Loving v. Virginia, when two individuals who loved each other still were kept out of Virginia because they were of different races, it was absurd to file that lawsuit at that time. Yet, if they had not, or if these kinds of penalties were in place, they might be suffering mandatory sanctions and kept out of the courthouse.

A leading study on this issue showed that, although civil rights cases make up 11.4 percent, 22.7 percent of the cases in which sanctions have been imposed are civil rights cases.

Mr. Chair, I ask my colleagues to support the Jackson Lee amendment. In order to foster justice, support the Jackson Lee amendment, which restores to the courts judicial discretion on penalties and sanctions, if you will, and listen to the Judicial Conference: this is a curse worse than the problem.

Mr. Chair, I urge support of the Jackson Lee amendment, and I yield back the balance of my time.

Mr. Chair, I demand a recorded vote.

Mr. Chairman, I support Representative Conyers' amendment.

I include in the Record in support of our amendment a Judicial Conference letter dated April 13, 2015, and letters from a number of organizations, including the Alliance for Justice and the American Association for Justice.

I also include in the Record a letter from the American Bar Association, who begins their message:

``On behalf of the American Bar Association, ABA, and its over 400,000 members, I am writing to urge you to vote against H.R. 720, the Lawsuit Abuse Reduction Act . . . which is scheduled for a floor vote this week.''

Re Groups Strongly Oppose Attacks on Civil Justice.

Hon. Bob Goodlatte,

Chairman, Committee on the Judiciary, House of

Representatives, Washington, DC.

Hon. John Conyers, Jr.,

Ranking Member, Committee on the Judiciary, House of

Representatives, Washington, DC.

Dear Chairman Goodlatte and Ranking Member Conyers: On

February 2, the House Committee on the Judiciary is scheduled

to mark up several bills that collectively would make it more

difficult for Americans to enforce their legal rights, and

would place unreasonable burdens on the federal judiciary and

federal enforcement officials. The undersigned organizations

strongly oppose these bills as harmful and unnecessary.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, the Lawsuit Abuse Reduction Act, known as LARA, is just over one-page long, but it would prevent the filing of thousands of frivolous lawsuits in Federal courts. These absurd lawsuits cost many innocent families their savings and often ruin their reputations.

Frivolous lawsuits have been filed against a weather channel for failing to accurately predict storms, against television shows people claimed were too scary, against a university that awarded a low grade, and against a high school that dropped a member from the track team.

Lawyers who bring these cases have everything to gain and nothing to lose under current rules, which allow plaintiffs' lawyers to file frivolous suits without any penalty. Meanwhile, defendants are often faced with years of litigation and substantial attorneys' fees.

Prior to 1993, it was mandatory for judges to impose sanctions, such as orders to pay for the other side's legal expenses, when lawyers filed frivolous lawsuits. Then, the Civil Rules Advisory Committee, an obscure branch of the courts, made penalties optional. This needs to be reversed by Congress.

LARA requires lawyers who file frivolous lawsuits to pay attorneys' fees and court costs of innocent defendants. This will serve as a disincentive to file junk lawsuits.

Further, LARA specifically requires that no changes ``shall be construed to bar or impede the assertion or development of new claims, defenses, or remedies under Federal, State, or local laws, including civil rights laws, or under the Constitution of the United States.''

So civil rights law would not be affected in any way by LARA, and that might go a long way to reassuring the ranking member's concerns about its impact on civil rights.

Opponents argue that reinstating mandatory sanctions for frivolous lawsuits impedes judicial discretion, but this is false. Under LARA, judges retain the discretion to determine whether or not a claim is frivolous. If a judge determines that a claim is frivolous, then they must award sanctions. This ensures that victims of frivolous lawsuits obtain compensation. But the decision to determine whether a claim is frivolous or not remains with the judge.

The American people are looking for solutions to obvious lawsuit abuse. LARA restores accountability to our legal system by reinstating sanctions for attorneys who are found by a judge to have filed frivolous lawsuits. Though it will not stop all lawsuit abuse, LARA encourages attorneys to think twice before making an innocent party's life miserable.

These attorneys engage in legalized extortion and try to force individuals to settle out of court instead of paying huge legal costs. There is currently no disincentive to deter attorneys from filing frivolous claims. By requiring attorneys who file junk lawsuits to pay the court costs of those they sue, such lawsuits will be discouraged.

I thank Chairman Goodlatte, the chairman of the Committee on the Judiciary, for bringing this much-needed legislation to the House floor. I ask my colleagues who oppose frivolous lawsuits and who want to protect innocent Americans from false charges to support the Lawsuit Abuse Reduction Act.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield such time as he may consume to the gentleman from Ohio (Mr. Chabot), a senior member of the Committee on the Judiciary.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, the Judicial Conference, by its own admission, objects to any amendments to the Federal rules it doesn't propose itself, but Congress has the constitutional authority and responsibility to establish and amend the Federal rules. It also has the duty to address problems with the judicial system that fall within its enumerated powers. Reducing frivolous lawsuits and ensuring that those who face meritless filings are able to receive compensation for losses caused by frivolous claims is a significant improvement to our justice system.

Also, Mr. Chairman, I would ask my colleagues, does a bill that grants the victims of corporate fraud the right to damages create satellite litigation? Of course it doesn't. What it does is create a means of guaranteed compensation for a wrong suffered. This bill does just that. It creates a means of guaranteed compensation for a wrong suffered; namely, the wrong of a frivolous lawsuit.

It is the job of judges to apply the law. It is the job of Members of Congress to write the law. We are the people's representatives, and all of us have constituents who have been the victims of frivolous lawsuits. We are responsible for the lack of any redress today for the victims of frivolous lawsuits, and we aim to remedy that today by passing this bill on behalf of the constituents who sent us here. If you deny that the victims of frivolous lawsuits are real victims, then vote against this bill, but if you think the victims of frivolous lawsuits should be entitled to compensation, just like anyone else who proves their legal claims in court, you should support this bill.

Mr. Chair, I reserve the balance of my time.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, a few minutes ago, a judicial poll was mentioned. But I would point out to all of my colleagues that only one survey was done that consisted mostly of judges who had experience under both the stronger rule with mandatory sanctions. That poll showed overwhelming support for mandatory sanctions. When judges who had experience under both the stronger and weaker versions of rule 11 were polled, they overwhelmingly supported mandatory sanctions for frivolous lawsuits.

The survey of 751 Federal judges found that an overwhelming majority of Federal judges believed, based on their experience under both a weaker and stronger rule 11, that a stronger rule 11 did not impede development of the law: 95 percent; the benefits of the rule outweighed any additional requirement of judicial time: 72 percent; the stronger version of rule 11 had a positive effect on litigation in the Federal courts: 81 percent; and the rule should be retained in its then current form: 80 percent. Incredible.

A 2005 survey was also mentioned. In that survey, only 278 judges responded, as opposed to the 751 who responded to the survey done in 1990. Over half of the judges who responded to the 2005 survey had no experience under the stronger rule 11 because they were appointed to the bench after 1992. So that 2005 survey tells us very little about how judges comparatively view the stronger versus the weaker rule 11.

I would also point out that in the 1990 survey, roughly twice as many responded as in the 2005 survey.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield myself such time as I may consume.

Let me first point out that this bill is being key voted by the United States Chamber of Commerce. It has been endorsed by the National Federation of Independent Business, and also endorsed by the Physicians Insurance Association of America.

Mr. Chairman, let me remind Members what the base bill--which is just a page long--actually does. It makes it mandatory for the victims of frivolous lawsuits filed in Federal Court to be compensated for the harm done to them by the filers of frivolous lawsuits. The bill doesn't change the existing standards for determining what is or is not a frivolous lawsuit. So under the bill, mandatory sanctions would only be awarded to victims of frivolous lawsuits when those lawsuits have no basis in law or fact.

The victims of frivolous lawsuits are real victims. They have to shell out thousands of dollars, endure sleepless nights, and spend time away from their family, work, and customers, just to respond to frivolous pleadings. Few would ever claim that judges should have the discretion to deny damage awards to victims of legal wrongs proved in court.

So why should judges have the discretion to deny damage awards to victims of frivolous lawsuits who prove in court that the case brought against them was, indeed, frivolous?

A vote against LARA, including a vote for the motion to recommit, is a denial of the fact that victims of frivolous lawsuits are real victims. But they are real victims, and they deserve to be guaranteed compensation when they prove in court that the claims against them are frivolous. This bill would do just that, and for these reasons, I urge my colleagues to support it.

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I claim the time in opposition to the amendment.

Mr. Chairman, I oppose this amendment which allows lawyers who file frivolous claims to escape any sanction.

It is essential that LARA reverse the 1993 amendments to rule 11. The current rule allows those who file frivolous lawsuits to avoid sanctions by withdrawing claims within 21 days after a motion for sanctions has been filed. This loophole, which LARA closes, gives unscrupulous lawyers an unlimited number of free passes to file frivolous pleadings with impunity.

Justice Scalia correctly predicted that such amendments would, in fact, encourage frivolous lawsuits. Opposing the 1993 amendments in which the 21-day rule was instated, Justice Scalia wrote:

In my view, those who file frivolous suits in pleadings

should have no safe harbor. The rules should be solicitous of

the abused and not of the abuser. Under the revised rule,

parties will be able to file thoughtless, reckless, and

harassing pleadings, secure in the knowledge that they have

nothing to lose: if objection is raised, they can retreat

without penalty.

LARA would eliminate the free pass lawyers use to file frivolous lawsuits. This amendment would eliminate that free pass that is so costly to innocent Americans.

Mr. Chairman, I oppose the amendment, and I yield back the balance of my time.

Mr. Chairman, I oppose this amendment which would strike the provision for penalties for frivolous lawsuits and, thus, defeat the purpose of the bill.

Today, there is no guarantee that a victim of a frivolous lawsuit will be compensated, even when a court finds that the lawsuit is frivolous. This legislation gives the victims of frivolous lawsuits the ability to receive compensation from those who abuse the legal system. The underlying bill enables innocent Americans to protect

themselves and their families from absolutely absurd lawsuits, which can cost them their reputations and their livelihoods.

Mr. Chair, I urge my colleagues to oppose this amendment, and I reserve the balance of my time.

Mr. Chairman, let me just summarize this bill in one sentence, and that is that no reputable attorney is going to have any concerns with this legislation.

Mr. Chair, I yield back the balance of my time.

Mr. Chairman, let me say, first of all, that the ranking member of the Judiciary Committee, the gentleman from Michigan (Mr. Conyers), has been a champion of civil rights all of his life. I recognize and respect that.

For that reason, I would like to try to reassure him that the base bill already says, as I mentioned in my opening statement:

``Nothing in this Act or an amendment made by this Act shall be construed to bar or impede the assertion or development of new claims, defenses, or remedies under Federal, State, or local laws, including civil rights laws, or under the Constitution of the United States.''

This provision clearly preserves the right to assert claims under the civil rights laws or the Constitution. I don't know how this language could be more clear.

This amendment would allow frivolous claims to be brought under civil rights laws without any of the penalties required in the base bill. If this amendment were adopted, the bill would invite the filing of frivolous civil rights claims without any penalty whatsoever.

I urge my colleagues to oppose this amendment, which regrettably would expose innocent Americans to abusive and frivolous lawsuits.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I appreciate the Chair pointing out that it is improper to impugn the integrity or damage the reputation of the President of the United States or others. I thank the Chair for pointing that out.

Mr. Chairman, the Lawsuit Abuse Reduction Act makes three important changes to rule 11 to limit lawsuit abuse by imposing sanctions for bringing frivolous lawsuits. These changes apply to all cases brought in Federal district courts.

However, this amendment would change that. If this amendment is adopted, the changes to rule 11 made by LARA would not apply to lawsuits brought in relation to whistleblower claims. There is no reason to make this or other exceptions.

The changes made by the Lawsuit Abuse Reduction Act should apply uniformly throughout the Federal courts. Because this amendment excludes certain cases from the bill's coverage and thereby allows frivolous lawsuits to be filed without any of the penalties required by the bill, I oppose the amendment.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, proponents of this amendment want to allow lawsuits with no basis in law or fact to proceed without penalty if the lawsuit relates to whistleblowers. Think about that. The proponents of this amendment support lawsuits that apparently have no basis in law or fact, and they want those frivolous lawsuits to proceed without penalty.

Let me remind Members what the base bill--which is just one page long--actually does. It makes it mandatory for the victims of frivolous lawsuits filed in Federal court to be compensated for the harm done to them by the filers of frivolous lawsuits. The bill doesn't change the existing standards for determining what is or is not a frivolous lawsuit. So under the bill, mandatory sanctions would only be awarded to victims of frivolous lawsuits when those lawsuits, as determined by the judge, have no basis in law or fact, including cases related to whistleblowers that have no basis in law or fact.

This amendment would allow legally frivolous whistleblower cases to go without penalty and leave their victims uncompensated, so I urge all of my colleagues to oppose it.

Once again, I don't know how any reputable attorney would have any concerns with this legislation.

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I yield myself such time as I may consume.

I rise in strong opposition to H.R. 720, the so-called Lawsuit Abuse Reduction Act.

This bill amends rule 11 of the Federal Rules of Civil Procedure in ways that will chill the advancement of civil rights claims and increase exponentially the volume and costs of litigation in the Federal courts.

These concerns are not hypothetical. H.R. 720 restores the deeply flawed version of rule 11 in effect from 1983 to 1993 in two ways: by requiring mandatory sanctions for even unintentional violations rather than leaving the imposition of sanctions to the court's discretion, as is currently the case; and secondly, by eliminating the current rule's 21-day safe harbor provision, which allows the defending party to correct or withdraw allegedly offending submissions.

Simply put, H.R. 720 will have a disastrous impact on the administration of justice in numerous ways. To begin with, the bill will chill legitimate civil rights litigation, which, to me, of course, is very important.

Civil rights cases often raise novel legal arguments, which made such cases particularly susceptible to sanction motions under the 1983 rule. For example, a Federal Judicial Center study found that the incidence of rule 11 motions under the 1983 rule was ``higher in civil rights cases than in some other types of cases.''

Another study showed that, while civil rights cases comprised about 11 percent of the cases filed, more than 22 percent of the cases in which sanctions had been imposed were, in fact, civil rights cases.

Under the 1983 rule, civil rights cases were clearly disadvantaged. Yet, H.R. 720 would reserve this problematic regime.

Although the bill's rule of construction is a welcome acknowledgment of the problem, it does nothing to prevent defendants from using rule 11 as a weapon to discourage civil rights plaintiffs. Even a landmark case like Brown v. Board of Education might not have been pursued had H.R. 720's changes to rule 11 been in effect at that time, because the legal arguments in the case were novel and not based on then-existing law.

In addition, H.R. 720 will substantially increase the amount, cost, and intensity of civil litigation and create more grounds for unnecessary delay and harassment in the courtroom itself.

By making sanctions mandatory and having no safe harbor, the 1983 rule spawned a cottage industry of rule 11 litigation. Each party had a financial incentive to tie up the other in rule 11 proceedings.

We heard testimony on a previous version of this bill that almost one-third of all Federal lawsuits during the decade that the 1983 rule was in effect were burdened by such satellite litigation, where the parties tried the underlying case and then put each side's counsel on trial.

Finally, H.R. 720 strips the judiciary of its discretion and independence. H.R. 720 overrides judicial independence by removing the discretion that rule 11 currently gives judges in determining whether to impose sanctions and what type of sanctions would be most appropriate. It also circumvents the painstakingly thorough Rules Enabling Act process that Congress established more than 80 years ago.

For all of these reasons, I urge my colleagues to join us in opposing this highly problematic legislation.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I am pleased to yield 3 minutes to the gentleman from New York (Mr. Nadler),

the senior member of the House Committee on the Judiciary.

Mr. Chairman, I am pleased to yield 4 minutes to the distinguished gentlewoman from Texas (Ms. Jackson Lee).

Mr. Chairman, I yield an additional 1 minute to the gentlewoman.

Mr. Chairman, it is my pleasure to yield 4 minutes to the gentleman from Georgia (Mr. Johnson).

Mr. Chairman, I yield myself such time as I may consume. These constitute my closing observations on this measure.

Mr. Chairman, H.R. 720 would turn back the clock to a time when rule 11 discouraged civil rights cases, restricted judicial discretion, and engendered vast amounts of time-consuming and costly so-called satellite litigation.

Not surprisingly, the Judicial Conference of the United States, the principal policymaking body for the judicial branch charged with proposing amendments to the Federal Rules of Civil Procedure under the careful, deliberate process specified in the Rules Enabling Act, opposes this measure, noting that it creates a cure worse than the problem it is meant to solve.

Likewise, the American Bar Association opposes this legislation, as do numerous consumer and environmental groups, including: Public Citizen, the Alliance for Justice, the Center for Justice and Democracy, the Consumer Federation of America, Consumers Union, Earthjustice, the National Association of Consumer Advocates, and six other major organizations.

Finally, last Congress, the Obama administration, strongly opposed a substantively identical measure, noting that the bill was ``both unnecessary and counterproductive,'' and that it ``actually increases litigation.''

Accordingly, I urge my colleagues in this body to reject this flawed bill.

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I ask that my amendment be brought forward at this time.

Mr. Chairman, I am very concerned that H.R. 720 may have a serious, deleterious impact on the ability of individuals to protect their civil and constitutional rights in Federal court. This is a point that has been emphasized on this side ever since we have started examining, more carefully, H.R. 720. Accordingly, my amendment would simply exempt these types of cases from the bill.

Based on a decade of experience with the 1983 version of the Federal Rules of Civil Procedure, we know that the civil rights cases were, in fact, disproportionately impacted because they often raised novel arguments.

For example, a 1991 Federal Judicial Center study found that the incidence of rule 11 motions was ``higher in civil rights cases than in some other types of cases.'' Another study shows that, while civil rights cases comprised only 11 percent of the Federal cases filed, more than 22 percent of the cases in which sanctions had been imposed were, in fact, civil rights cases.

The bill contains a rule of construction intended to clarify that ``it not be construed to bar the assertion of new claims or defenses or remedies, including those arising under civil rights laws or the Constitution.''

The inclusion of this language is an acknowledgment of the disproportionate impact that the 1983 rule had on civil rights cases, and we should applaud--and I am sure we do--its intent.

Nevertheless, I fear this rule of construction, by itself, will not prevent defendants from using rule 11 as a weapon to dissuade civil rights plaintiffs from pursuing their claims.

My amendment makes an explicit exception for civil rights and constitutional actions. As a result, litigants will be clearly aware of its existence and will not be able to force opposing parties into satellite litigation when the case is brought under a civil rights law.

This amendment is necessary to avoid even the possibility of a chilling effect that the revisions made by the bill to rule 11 could have on those advocating for civil rights and constitutional law protections. As the late Robert Carter, a former United States judge for the Southern District of New York, who earlier in his career represented one of the plaintiffs in the Brown v. Board of Education case, said of the 1983 version of rule 11:

``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.''

For that reason alone, I urge the adoption of this amendment.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield the balance of my time to the gentlewoman from Texas (Ms. Jackson Lee).

Mr. Chairman, I demand a recorded vote.

Mr. Speaker, I demand a recorded vote.

Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous materials on H.R. 720.

Mr. Chairman, I yield myself such time as I may consume.

H.R. 720, the Lawsuit Abuse Reduction Act, would restore mandatory sanctions for frivolous lawsuits filed in Federal court.

Many Americans may not realize it, but today, under what is called rule 11 of the Federal Rules of Civil Procedure, there is no requirement that those who file frivolous lawsuits pay for the unjustified legal costs they impose on their victims, even when those victims prove to a judge the lawsuit was without any basis in law or fact.

As a result, the current rule 11 goes largely unenforced because the victims of frivolous lawsuits have little incentive to pursue additional litigation to have the case declared frivolous when there is no guarantee of compensation at the end of the day.

H.R. 720 would finally provide light at the end of the tunnel for the victims of frivolous lawsuits by requiring sanctions against the filers of frivolous lawsuits, sanctions which include paying back victims for the full cost of their reasonable expenses incurred as a direct result of the rule 11 violation, including attorneys' fees.

The bill also strikes the current provisions in rule 11 that allow lawyers to avoid sanctions for making frivolous claims and demands by simply withdrawing them within 21 days. This change eliminates the ``free pass'' lawyers now have to file frivolous lawsuits in Federal court.

The current lack of mandatory sanctions leads to the regular filing of lawsuits that are baseless. So many frivolous pleadings currently go under the radar because the lack of mandatory sanctions for frivolous filings forces victims of frivolous lawsuits to roll over and settle the case, because doing that is less expensive than litigating the case to a victory in court.

Correspondence written by someone filing a frivolous lawsuit, which became public, concisely illustrates how the current lack of mandatory sanctions for filing frivolous lawsuits leads to legal extortion. That correspondence to the victim of a frivolous lawsuit states: ``I really don't care what the law allows you to do. It's a more practical issue. Do you want to send your attorney a check every month indefinitely as I continue to pursue this?''

Under the Lawsuit Abuse Reduction Act, those who file frivolous lawsuits would no longer be able to get off scot-free and, therefore, they couldn't get away with those sorts of extortionary threats any longer.

The victims of lawsuit abuse are not just those who are actually sued. Rather, we all suffer under a system in which innocent Americans everywhere live under the constant fear of a potentially bankrupting frivolous lawsuit.

As the former chairman of The Home Depot company has written: ``An unpredictable legal system casts a shadow over every plan and investment. It is devastating for startups. The cost of even one ill- timed abusive lawsuit can bankrupt a growing company and cost hundreds of thousands of jobs.''

The prevalence of frivolous lawsuits in America is reflected in the absurd warning labels companies must place on their products to limit their exposure to frivolous claims. A 5-inch brass fishing lure with three hooks is labeled ``Harmful if swallowed.'' A household iron contains the warning ``Never iron clothes while they are being worn.'' A piece of ovenware warns, ``Ovenware will get hot when used in oven.''

And here are just a couple of examples of frivolous lawsuits brought in Federal court, where judges failed to award compensation to the victims:

A man sued a television network for $2.5 million because he said a show it aired raised his blood pressure. When the network publicized his frivolous lawsuit, he demanded the court make them stop. Although the court found the case frivolous, not only did it not compensate the victim, it granted the man who filed the frivolous lawsuit an exemption from even paying the ordinary court filing fees.

In another case, lawyers filed a case against a parent, claiming the parent's discipline of their child violated the Eighth Amendment of the Constitution, which prohibits cruel and unusual punishment by the government, not private citizens. One of the lawyers even admitted signing the complaint without reading it.

The court found the case frivolous, but awarded the victim only about a quarter of its legal costs because rule 11 currently doesn't require that a victim's legal costs be paid in full. The Lawsuit Abuse Reduction Act would change that.

I thank the former chairman of the Judiciary Committee, Lamar Smith, for introducing this simple, commonsense legislation that would do so much to prevent lawsuit abuse and restore Americans' confidence in the legal system. I urge my colleagues to support it today.

Mr. Chairman, I reserve the balance of my time.

Mr. Speaker, I rise in opposition to the motion.

Mr. Speaker, I will be brief.

Proponents of the motion to recommit want to allow lawsuits with no basis in law or fact to proceed without penalty in the area covered by their motion. Let that sink in for a moment--and just a brief moment.

The proponents of the motion to recommit support certain lawsuits that apparently have no basis in law or fact. Otherwise, they have no relevance to this bill. If they are relevant motions, they won't have to worry about it. They want those frivolous lawsuits to proceed without penalty.

Every time a judge decides a company made a defective product that ended up hurting people, damages are awarded. When a lawyer makes up a lawsuit that has no basis in law or fact, that lawsuit is a defective product. The victims harmed by that defective product should be compensated just like everyone else.

Oppose this motion to recommit, pass the base bill, and let's show America where we stand on frivolous lawsuits and on the compensation rightfully owed to the victims of frivolous lawsuits.

Mr. Speaker, I yield back the balance of my time.

Mr. Chairman, my amendment would reinstate the Federal Rules of Civil Procedure rule 11(c)(2) safe harbor provision, which allows parties to avoid penalties, by withdrawing or correcting the claims within 14 days from when the alleged violation of rule 11(b) becomes known, anytime up until the end of the discovery period.

This bill would force attorneys to assess their case blindly as it stands. Every attorney knows to assess their case based upon an objective set of facts regarding the situation.

A good attorney would never overpromise a cause of action, but this bill prevents even a fair assessment of a case. A full and accurate analysis of the merits of the case must be done on day one, because this bill requires mandatory sanctions with no grace period. We have tried this already, and it did not work.

This bill will eliminate rule 11(c)(2)'s safe harbor provision, which currently allows the target of a rule 11 motion for sanctions to withdraw or correct the paper claim, defense, contention, or denial that is the subject of the motion for sanctions within 21 days after service.

Between 1938 and 1983, there were only 19 rule 11 filings. In 1983, rule 11 was changed to the standard being proposed by this bill. In the 10 years without this safe harbor provision, nearly 7,000 motions for sanctions were made. A 1989 study showed that roughly one-third of all Federal civil lawsuits involved rule 11 satellite litigation, and approximately one-fourth of all those cases on the docket involved rule 11 actions that did not result in sanctions. Thus, attorneys had a dual job: one to try the case, and the other to try the opposing counsel.

We can't go back to a failed system. The amount of sanction litigation that clogged the system was so extensive that in 1993, a mere 10 years after this failed legal experiment began, a safe harbor provision was established to unclog the system, and it worked. Since then, the amount of rule 11 sanction satellite litigation has come down, and the courts are now better able to focus on the case at hand.

In committee, Mr. Cicilline of Rhode Island, recommended the reimplementation of the 21-day safe harbor provision.

Instead of following this commonsense proposal, the committee rejected it by an 18-4 vote. I believe such an important provision needs to be revisited, but with a compromise. That is why I drafted this amendment that offers a 14-day safe harbor provision; and as a measure to protect further abuse, my safe harbor amendment is only available prior to the completion of discovery, yet another attempt to have a compromise here.

The intent for this discovery provision is that an attorney, during discovery, may realize a flaw in their case. Such a revelation should allow an attorney to correct or withdraw their claim without having the fear of having mandatory automatic sanctions imposed on them. Instead, this bill, as written, immediately places sanctions on the mistaken lawyer. This is well-intentioned, but it does not acknowledge the realities of litigation or the legal process.

In the real world, clients can easily misrepresent a situation to their counsel, and the truth won't be known until discovery. This bill will have a stifling effect on the legal community and will lead to denied justice because attorneys will not be willing to take a case unless it is a guaranteed win.

We should take the lessons learned from the 1983 experiment and preserve the safe harbor provision to protect well-intended plaintiffs' attorneys and not stack the deck against those who seek justice.

Mr. Chair, I urge support for my amendment, and I reserve the balance of my time.

Mr. Chair, there is a sanction in place. You have to remove your claim or your assertion that is in question, and there is the cost of time that any attorney has to put in. But at the end of the day, we have already been down this road and it has failed. Now all we are going to see is more litigation again without the requisite increase in funding to our Federal courts.

And so what we are going to see is anybody who sued--whether you are a plaintiff suing or defendant--is going to now have far more complex, dual-track litigation, and that is going to increase costs on businesses and on individuals who are facing litigation in our Federal courts. I believe we need to keep the lessons learned from the past, and I urge Members to adopt my amendment.

Mr. Chair, I yield back the balance of my time.

Mr. Chair, I demand a recorded vote.