Each year, the U.S. Chamber of Commerce publishes a list of the Top 10 Most Ridiculous Lawsuits for the year. The infamous list from 2019 includes a suit by a woman against New York City who alleged she fell down the stairs after being scared by a Dexter poster in a subway station.
To be sure, the term “frivolous” tends to be overused by defendants as hyperbole to criticize claims. After all, the term instantly sparks comparisons to infamous suits, such as those on the U.S. Chamber of Commerce’s Top 10 list.
In jurisprudence, the term “frivolous” nevertheless serves two important functions. First, the term describes a type of suit which no litigant has a right to file. Despite misconceptions to the contrary, there is no fundamental right to have a frivolous claim vetted by a court. As the U.S. Supreme Court stated in Lewis v. Casey, 518 U.S. 343, 353 n. 3 (1996), “[d]epriving someone of a frivolous claim … deprives him of nothing at all.”
Second, the term describes the type of suit which federal and state law endeavors to preclude or deter from being filed or prosecuted. Rule 11 of the Federal Rules of Civil Procedure authorizes sanctions against attorneys or pro se parties who sign frivolous pleadings. Many states (1) preclude the filing of a suit without a certificate of merit, (2) authorize damages or sanctions for frivolous claims, malicious prosecution or abuse of process, and/or (3) provide Anti-SLAPP protections. State bar rules can subject an attorney to discipline for lawsuit abuse.
The policy reasons for separating frivolous lawsuits from other types of suits are obvious. Such suits impose “a heavy burden upon the resources of the court at the expense of other litigants with potentially meritorious claims.” Gamble v. Kentucky Dept. of Corrections, 2017 WL 1028574 (E.D.Ky. March 16, 2017). Besides being fundamentally unfair, the costs of defending such a suit can be substantial, if not prohibitive. Such suits can also chill lawful activity, such as free speech, fair competition and unbiased employment decisions.
That frivolous suits are viewed so unfavorably begs three questions: (1) When is a lawsuit actually frivolous? (2) How prevalent are frivolous lawsuits? (3) Why do frivolous suits persist?
When is a Lawsuit Frivolous?
The word “frivolous” may be susceptible to many definitions. Black’s Law Dictionary defines a frivolous claim as “[a] claim that has no legal basis or merit, esp. one brought for an unreasonable purpose such as harassment.” Black’s Law Dictionary (10th ed. 2014). The U.S. Supreme Court has defined a frivolous pleading as one which lacks an arguable basis in law or fact. Neitzke v. Williams, 40 U.S. 319 (1989).
Rule 11 of the Federal Rules of Civil Procedure states a suit cannot be brought (1) “for any improper purpose, such as to harass … or needlessly increase the cost of litigation”; (2) unless “warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law”; or (3) unless “[t]he factual contentions have evidentiary support, or if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.”
1. Meritless v. Frivolous
Absent subtle distinctions, most definitions relegate frivolousness to some level below meritless. The Supreme Court in Neitzke drew the distinction between frivolousness and failure to state a claim, holding that a frivolous claim is one which is “without arguable merit”, and that “a finding of a failure to state a claim does not invariably mean that the claim is without arguable merit.” Id.
Comment 2 to the American Bar Association Rule 3.1 further clarifies the distinction between meritless and frivolous:
“The filing of an action … for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. What is required of lawyers, however, is that they inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith arguments in support of their clients’ positions. Such action is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.”
2. Overly Zealous or Creative v. Frivolous
Courts can be reluctant to punish parties or lawyers who present claims which are “overzealous or overly creative as opposed to vexatious and frivolous.” ICU Medical, Inc. v. Alaris Medical Systems, Inc., 558 F.3d 1368, 1381 (Fed.Cir. 2009). See also Royal Indem. Co. v. Liberty Mut. Ins. Co., 2008 WL 232900 *1 (S.D.Fla. June 5, 2008)(“…there is a difference between clever and frivolous … and, obviously, clever is better.”); Soto v. Bushmaster Firearms Intl., LLC, 139 F.Supp.3d 560, 563 (D.Conn. 2015)(“Rule 11 seeks to deter frivolous litigation without chilling creativity”).
Some courts have even taken a positive view of creative claims. These courts recognize that new rules of law arise from the creative energies of lawyers who are willing to make good faith arguments for the modification or extension of existing law. U.S. v. Adkins, 937 F.2d 947, 952 (4th Cir. 1991). If a claim can be labeled as creative or clever, therefore, chances are it will not be found to be frivolous.
3. Hope of Evidence v. Frivolous
The 1993 Comments to Rule 11 recognizes that “sometimes a litigant may have good reason to believe that a fact is true … but may need discovery, formal or informal, from opposing parties or third persons to gather and confirm the evidentiary basis for the allegation.” A reasonable hope of finding supporting evidence does not make a claim frivolous.
Nevertheless, “[a] factual claim is frivolous if no reasonably competent attorney would claim that it has [or likely has] a reasonable evidentiary basis.” Thompson v. RelationServe Media, Inc., 610 F.3d 628, 665 (11th Cir. 2010).
How Prevalent Are Frivolous Lawsuits?
The prevalence of frivolous lawsuits has been contentiously debated, with only anecdotal evidence to support their proclivity. Some label fear of frivolous suits a myth created by lobbyists and public relations to justify tort reform.
Still, many trial attorneys, this author included, can currently point to at least one frivolous suit on their docket. The filing of frivolous lawsuits has been serious enough as to warrant the recent attention of state bar associations and courts.
Earlier this year, for example, the Florida Supreme Court suspended an attorney for filing frivolous lawsuits under the Americans with Disabilities Act, including 26 federal suits against gas stations over the lack of closed captioning on the television screens next to gas pumps.
In 2019, a Pennsylvania lawyer was suspended for filing frivolous employment claims which attempted to extort settlements and run up court costs for defendants.
In 2018, a Florida District Court imposed a fine of $9.1 million against two law firms for filing 1,000 frivolous claims in over 3,700 lawsuits against tobacco companies without investigating the facts to support such claims.
Why Do Frivolous Lawsuits Persist?
Although federal and state laws exist to preclude or deter the filing and prosecution of frivolous lawsuits, such laws are not always up to the task. There are several reasons for these shortcomings.
1. Safe Harbor
Rule 11 of the Federal Rules of Civil Procedure precludes a defendant from filing a motion for sanctions until 21 days after a frivolous pleading is served, during which time the pleading can be withdrawn or corrected. Accordingly, the mere filing of the frivolous pleading itself is not sanctionable; only the continued prosecution of the suit after 21 days warrants sanctions.
Despite this safe harbor, the filing of a suit itself be harmful. Since a suit is a matter of public record, it can cause a defendant humiliation and embarrassment. The suit itself can become part of the defendant’s credit record or prevent the closing of a business or real estate deal.
Moreover, as former Justice Antonin Scalia opined in his dissent to the adoption of the Rule 11 “Safe Harbor:
“Baseless filing puts the machinery of justice in motion, burdening courts and individuals alike with needless expense and delay. Even if the careless litigant quickly dismisses the action, the harm triggering Rule 11’s concerns has already occurred.”
146 F.R.D. 401, 508 (1993)
Indeed, a defendant cannot simply wait for the plaintiff to decide whether to continue the prosecution of a filed suit. Under Federal Rule 12, a responsive pleading must be filed within 21 days. This deadline necessarily requires that the defendant incur the expense of legal representation to investigate and defend the suit so a responsive pleading can be timely filed.
Even as to a frivolous suit, an end to harassment, humiliation and defense costs thus can provide leverage for a settlement for at least 21 days. For many plaintiffs, this 21-day period may be all the time that is needed to make a claim worthwhile.
2. Lenience For Pro Se Plaintiffs
Many lawsuits are filed by plaintiffs without the benefit of legal counsel or pro se. Typically, such plaintiffs have endeavored, without success, to find affordable legal representation.
While sanctions for frivolous lawsuits are available as to a pro se plaintiff, jurisprudence has held that in determining whether to impose sanctions on a party proceeding pro se, “the court may consider the special circumstances of litigants who are untutored in the law.” Maduakolam v. Columbia Univ., 866 F.2d 53, 56 (2d Cir. 1989). For an unsophisticated pro se plaintiff, therefore, sanctions may not always be available as a deterrent for a frivolous claim.
3. The Bar To Frivolous Litigation Can Be Easy To Overcome
As set forth above, the line between frivolous and non-frivolous claims can be thin. Under certain circumstances, little is needed to defend an accusation that a claim is frivolous. As noted in the 1993 Comments to Rule 11:
“… the extent to which a litigant has researched the issues and found some support for its theories even in minority opinions, in law review articles, or through consultation with other attorneys should certainly be taken into account in determining whether [Rule 11] has been violated. Although arguments for a change of law are not required to be specifically so identified, a contention that is so identified should be viewed with greater tolerance under the rule.”
For some claims, this low bar provides little deterrent to the filing of a frivolous claim which is close to the line. An attorney can simply cite some obscure reference to support the questionable claim.
4. A Lawyer Doesn’t Know What He/She Doesn’t Know
Lawyers can research the law and investigate the facts and still get it horribly wrong as to whether a claim has merit. This is more apt to happen with attorneys who (1) are inexperienced, (2) venture into an unfamiliar area of the law, or (3) rush to meet a statute of limitations.
Experience has taught the author that no case is more frustrating or costly than the one brought by a lawyer who does not know what he or she is doing.
5. Reluctant Judges
Ultimately, a judge is the final arbiter of (1) whether a plaintiff or legal counsel should be punished for filing a frivolous suit, and (2) whether the suit should be dismissed for failing to state a claim. For various reasons, some judges are reluctant to issue sanctions or order early dismissal.
For suits before such reluctant judges, a plaintiff may believe there is nothing to fear from filing such a suit. At the very least, the plaintiff may determine the potential benefit of the suit — a quick settlement — outweighs the potential risk of sanctions.
For some claimants, a lawsuit is more about principle than money. Practicality, including the possibility of sanctions, is often cast aside in favor of the principle motivating the lawsuit.
The principle motivating a frivolous lawsuit may be noble, such as the exposure of unethical behavior. More often, the principle motivating such a lawsuit is ignoble and petty, such as revenge or interference.
7. The Cost of Seeking Sanctions
Under most federal and state laws, punishment of a plaintiff or legal counsel for a frivolous suit is not automatic. Generally, the defendant must file a motion or claim to obtain reimbursement for the fees and incurred in defending the suit.
This hurdle presents a cost -benefit dilemma – is it better (1) to incur additional expenses in pursuing a motion or claim for reimbursement, or (2) to simply stop the bleeding. The second option may be the optimal choice especially if (1) the chances the motion or claim will be denied by the judge are substantial, or (2) collectability of reimbursement is problematic.
The unfortunate reality is frivolous lawsuits are filed too often, and must be defended. So, how do businesses minimize the risks presented by such lawsuits? There are a few options to consider.
Many liability insurance policies provide for defense costs in addition to indemnity. Transferring the risk of defense costs to an insurer is often reason enough to acquire such a policy.
2. Mediation Agreement
For contractual arrangements, a clause providing for mediation as a condition precedent to filing suit can provide an opportunity to talk with a potential claimant before a suit is filed. Especially as to a pro se claimant or misinformed lawyer, mediation with an experienced mediator may be able to preempt a frivolous lawsuit.
3. Strategic Asset Protection Plan
A deep pocket can be an attractive incentive to file a frivolous lawsuit. A corporate or wealth structure which lawfully separates and insulates pockets can make such a suit less attractive.
Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding labor & employment issues. To contact him for a speaking engagement please e-mail him at firstname.lastname@example.org