July 5, 2007

Anthony Sebok's Findlaw column on the Pearson pants suit cites Overlawyered and repeats two points regular readers of Overlawyered and Point of Law have seen before:

• Meritless cases often settle for nuisance value, thus making them profitable to bring;


• Rule 11, as currently constituted, "has proven to be a very toothless weapon against abusive plaintiffs" and "does not effectively protect defendants from frivolous, or even, in some cases, fraudulent suits."

Yet Sebok concludes that there is no epidemic of fraudulent litigation. I suppose it depends on one's definition of "epidemic" and "fraudulent"; as we've noted before, Bill Lerach successfully swiped several billion dollars in nuisance settlements bringing meritless Enron litigation, helped by an erroneous district-court class certification. (Such erroneous class certifications helped make Madison County a judicial hellhole.) Sebok acknowledges that "lawyer-driven" cases where plaintiffs act as their own attorneys might merit loser-pays rules to deter meritless lawsuits that would be cheaper to settle than fight, but what makes most class-action litigation any less "lawyer-driven" such that they should be subject to different rules?