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Senate Debates How to Curb Mythical Frivolous Lawsuits

By George Khoury, Esq. on November 08, 2017 | Last updated on March 21, 2019

Several bills recently introduced in the Senate, aimed at curbing frivolous lawsuits, sparked congressional debate that might be worrisome to many federal practitioners. The suite of bills seek to erect higher barriers for individuals to sue businesses, as well as to make federal class action practice less lucrative for attorneys.

While many senators believe that more needs to be done to stop the overwhelming volume of frivolous lawsuits, the data does not bear this out. According to Myriam Gilles, a professor at the Benjamin Cardozo School of Law, the idea of an epidemic of frivolous lawsuits harming small businesses is a "convenient myth."

The Greedy Attorney Is Good for Taxpayers

For many attorneys, the frivolous lawsuit epidemic myth is upsetting due to the lack of truth. However, when it comes to class action lawyers benefiting financially more than class members, and even class representatives, this truth is unavoidable, but also rather loaded. Sure, class action lawyers and law firms may make millions while class members get worthless coupons, but the end result matters less than the fact that a wrongdoer was held accountable.

The natural reaction when seeing such lopsided numbers might be to think it's unfair to the actual victims. But, the truth of the matter is that any class action settlement must be approved by a judge, and the lawyers that earn millions usually have put in the hours, and borne the risk financially, to justify the pay. Having attorneys motivated by greed to go after the wrongdoers that harm society is a good thing. And that must always be remembered that those "greedy lawyers" are going after wrongdoers (nowhere is this more misunderstood than when looking at ADA laws).

Taking the extra-long view, if the government were tasked with enforcing the laws (like ADA or consumer protection laws) that class action and other lawyers enforce, it would be on the taxpayers, rather than the law violators, to pay the cost of enforcement. Simply put, those "greedy lawyers" actually save taxpayer money.

Frivolous Controls

In addition to the remedies already in place for defendants who have frivolous claims filed against them, new legislation seeks to impose sanctions on any attorney found filing a frivolous case. Additionally, it seeks to remove the 21 day safe harbor within which a plaintiff can withdraw a complaint and avoid sanctions.

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