Article by Daniel E. Lazaroff
In 1983, significant amendments to the Federal Rules of Civil Procedure were adopted to address perceived abuses by federal litigants and their attorneys. Several quite dramatic changes in Rule 11 were designed to remedy sloppy lawyering practices that had resulted in unnecessary expenditure of time and money to the detriment of litigants and the judiciary. Amended Rule 11, by encouraging courts to impose sanctions more frequently, offered the promise of a deterrent to the continuation of objectionable practices and the hope of compensation to litigants victimized by litigation abuses.
The increased availability of Rule 11 sanctions, however, has also created a number of concerns regarding deleterious side effects. Most importantly, some have worried that more frequent judicial awards of sanctions would chill creative advocacy and spawn time-consuming satellite litigation which would further delay final adjudication on the merits. Others have noted that Rule 11 sanctions have been used disproportionately against plaintiffs and that they have been improperly imposed by federal judges as a fee-shifting mechanism. In addition, various commentators have observed that litigation of Rule 11 issues has contributed to a rising tide of incivility among counsel and between bench and bar in the federal courts.
Although the foregoing concerns were most often articulated with respect to civil rights litigation, the same potential for adverse effects exists in other important areas of the law, such as antitrust. In antitrust litigation, the liberal use of sanctions by federal judges would deter private enforcement of federal antitrust statutes by discouraging potential litigants and their attorneys from pursuing claims. This concern may be particularly acute when the potential plaintiff wishes to advance a novel or unpopular theory of recovery. The problem is compounded by the fact that the federal government has been less than enthusiastic about bringing antitrust actions in the last decade. In addition, antitrust jurisprudence is already rather complicated and confused because of many conflicting and ambiguous decisions. Consequently, if Rule 11 were used by unsympathetic federal judges to deter otherwise colorable private antitrust actions, both the public and private avenues of enforcement contemplated by Congress would be obstructed.
The main purpose of this Article is to examine and evaluate critically the use of Rule 11 in private antitrust actions. The Article begins with a brief overview of Rule 11. The Article identifies some of the major concerns engendered by the 1983 amendments to Rule 11 and then considers these concerns within the context of private antitrust litigation. The Article then reviews the case law; this review suggests that courts should exercise caution when imposing Rule 11 sanctions in antitrust cases in order to avoid the decidedly undesirable result of overdeterrence in an area in which private litigation may be uniquely useful in protecting the economic rights of all market participants. Finally, the Article discusses recently proposed amendments to Rule 11, assesses the adequacy of these proposals in light of the criticisms of Rule 11, and concludes with suggestions for reform.
About the Author
Daniel E. Lazaroff. Professor of Law and Cohen Chair in Law and Economics, Loyola Law School, Los Angeles. B.A., 1971, State University of New York at Stony Brook; J.D., 1974, New York University.
Citation
67 Tul. L. Rev. 1033 (1993)