KMK Law Complex Litigation Blog

"Barratry" dates back to 15th Century Middle English and is defined by Mirriam Webster's Dictionary as: (1) the purchase or sale of office or preferment in church or state; (2) an unlawful act or fraudulent breach of duty by a master of a ship or by the mariners to the injury of the owner of the ship or cargo; and (3) the persistent incitement of litigation. Barratry is a common law crime in some states and a civil tort or equitable defense in others.

Recently, a district court in the Southern District of Ohio applied the concept of barratry in a class action case and entered an order requiring the plaintiff to show cause why the class action complaint should not be dismissed because "on review of the pleadings it appears to the Court that the lawsuit was not filed in good faith and that Plaintiff has engaged in conduct amounting to barratry in order to establish grounds to sue [Defendant]. Thus, it appears that this lawsuit is an abuse of judicial process and ought to be dismissed under the unclean hands doctrine." See Charlton v. Fifth Third Bancorp, et al., Case No. 08-cv-703 (S.D. Ohio) (Sept. 15, 2009 Show Cause Order ). The class action complaint was voluntarily dismissed in less than 48 hours following the Court's order.

Generally, defendants challenge plaintiffs' standing in arguing inadequate representation or lack of commonality/typicality when opposing class certification. The district court's order illustrates that in some cases, if the relevant facts can be established through allegations in the complaint, defendants can attack the plaintiff at the motion to dismiss stage and try to knock out a case before conducting class discovery and the completion of class briefing.