The Rise of “Empty Suit” LitigationTM is likely to continue.

In recent years, plaintiffs’ lawyers are increasingly asserting “no-injury” theories in the courts. These types of claims have become so frequent that the American Tort Reform Foundation coined the phrase “empty suit litigation”TM to describe them. These are claims in which the harm to the attorneys’ clients (or class members) is illusory. They either seek recovery for speculative present or future “injuries” or rely upon a fictitious construct of an economic loss that is a creative invention of expert testimony.

Generally, a plaintiff must show a physical injury or demonstrate, in an objective and meaningful way, that he or she experienced a financial loss as a result of a defendant’s conduct. This is the case because, over time, the law has developed critical safeguards against claims that are either speculative or that courts are ill-equipped to address or compensate.

Such foundational requirements ensure that the court system is not overwhelmed with lawsuits based on what might or could occur, diverting judicial time and the financial resources of those named in such suits from cases involving actual, current injuries. Tort and consumer law reserve liability to objectively verifiable, genuine harms.

At a very minimum, Article III standing requires an “injury in fact,” that the injury is “fairly trace[able]” to the actions of the defendant, and that the injury will “likely . . . [be] redressed by a favorable decision.”

In The Rise of “Empty Suit” Litigation™: Where Should Tort Law Draw The Line?, Victor E. Schwartz discusses the need to stop all litigation where an individual or class action plaintiff has suffered no real harm, physical, emotional or economic. He also addresses individual claims where there has been no real injury, or economic loss and class actions that rely on speculative or expert-driven theories of harm or damages.

With respect to these and other types of claims, courts are largely rejecting “empty suit litigation.” When courts dismiss these types of claims, the ground for doing so varies significantly: lack of standing, failure to state a claim, federal preemption, and failure to meet class certification requirements are among the most common bases.

It appears, however, that while judges recognize that these claims violate fundamental principles of law, they are struggling to find a proper basis to dismiss them. Some lawsuits have settled for significant sums. For that reason and the persistence of lawyers who try to expand tort and consumer law, this litigation is likely to continue. The Article finds that some courts are slowly easing traditional requirements for recovery solely for emotional harm and a new Restatement is likely to advance this process.

The Source Article at FedSoc – The Rise of “Empty Suit” LitigationTM WHERE SHOULD TORT LAW DRAW THE LINE? by Victor E. Schwartz† & Cary Silverman – focuses on four variants of no-injury theories that are either emerging or experiencing a resurgence in the courts.


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