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Identifying Frivolous Suits

It is always hard to discuss the issue of frivolous litgation for several reasons.

The first reason is that such discussions rarely begin with an agreed upon definition of frivolous. I prefer to use the definition of frivolous found in the Georgia Code at OCGA 9-15-14.

That code section deems litigation frivolous when it is based on an improper purpose or when a party has:

Asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.

It is possible to identify some suits that appear from the outset to be brought for improper purposes. I once argued that certain patent infringment suits by drug companies seem to be motivated by a desire to keep drugs on patent for an additional period of time rather than to prevent any actual infringement. See this New York Times editorial for the basis of my argument.

Similarly, I argued that a Monsato suit against a small Maine dairy claiming that the dairy's truthful advertising that it did not use milk from cows that had been given Bovine Growth Hormone was brought for the purpose of intimidating small dairies rather than vindicating any legal right of Monsanto. See here for links to the underlying facts.

It is more difficult to identify suits at the outset that are frivolous because they present such an absence of any justiciable law for fact that it can not reasonably be believed that a Court would accept it. The best evidence that such suits are frivolous occurs only after a court has refused to accept the position.

That difficulty is even more pronouced when information about a suit is gleaned not from an in depth review of the allegations and evidence but rather from a news report or from the characterization of the suit by those with an agenda.

For instance, it is easy to ridicule a person who sued McDonalds because coffee is hot. A hard look at the underlying facts of Stella Liebeck's case convinces most people that her claim was not frivolous.

Many of the discussions of frivolous litigation involve stories of personal injury suits that are either grossly exagerated or just plain made up.

It is not hard to characterize a suit in such a way as to make it appear silly. Let's try some examples of alleged corporate law suit abuse.

Perhaps you heard that the heavy machinery manufacturer Caterpillar sued Disney to stop the release of "George of the Jungle 2" because the movie cast bulldozers in a bad light. Sound pretty silly doesn't it?

Indeed, Caterpillar lost its bid for a Temporary Restraining Order. Still, if one looks closely enough, it is not hard to see that Caterpillar may have had a point. I would hesitate to label Caterpillar's trademark infringement action as completely frivolous unless and until I knew a lot more about both the facts and the law.

Let's try another. Did you hear about that crazy plaintiff suing over a defective Pop Tart? Some litigation-happy plaintiff tried to play the lawsuit lottery to collect $150,000 based on a breakfast pastry being defective.

In that case the plaintiff was Allstate Insurance Company. The Record Eagle of Northern Michigan reports:

A burned Toastette that an insurance company claims caused a Johannesburg house fire has resulted in a $150,000 lawsuit against Kraft Food.

Allstate Insurance Co. alleged in its suit that the toaster pastry ignited while being heated and started a fire that seriously damaged the home of James and Brenda Stricker on April 21, 1999.

Allstate lawyers claimed Kraft was negligent because the frosted fudge Nabisco Toastette was improperly designed and manufactured, making it unsafe. They also alleged that the company failed to warn customers that the product could catch fire.

Allstate has also sued Kellogg for defective pastries:

Joining other jurisdictions such as Washington Township in New Jersey and Springfield, Ohio, Fulton Couty, Ga., now has its own flaming Pop-Tarts suit.

Allstate Insurance Co., filing on behalf of an insured, Deanna Robinson, is suing the Kellogg Co., makers of numerous varieties of Pop-Tarts, claiming that the toaster treat was the proximate cause of a Nov. 13, 2000, house fire that caused $10,742.16 in property damage.

Are the Pop Tart cases frivolous? I really could not say.

Trying to make judgments about whether law suits are frivolous before the parties have an opportunity to present evidence and legal theories, and without a detailed examination of that evidence and authority, is a mug's game. Such efforts have a very low signal to noise ratio.

The way to deal with frivolous suits is to make sure that they do not work. The proper focus is to make whole any party harmed by the filing of a frivolous suit (including attorney fees, litigation expenses, and any other damages) and, in improper purposes cases, to make sure that the party bringing a frivolous suit does not benefit thereby.

There are ways to do both, but first we need to begin to have rational discussions of the subject. Those discussions do not include made up stories, urban legends, or misleading characterizations.

Posted by Dwight Meredith at November 15, 2004 03:12 PM | TrackBack