What begins with the assignment of actions that seem run-of-the-mill swiftly leads to a huge accumulation of lawsuits, which gains relevance with identical complaints, containing generic, vague, and inaccurate claims, purposely evidenced (at most) with faulty (and often doubtful) documentary evidence.
The assignments of multiple identical lawsuits in various jurisdictions, boosted by free legal aid, and high financial return, burden the legal department of large corporations, often forcing the early closure of cases in order to avoid the high costs of a complex judicial system.
This scenario is not just an abstraction. Similar cases are actually under the watchful eye of the National Council of Justice (CNJ), which recently took a concrete stance against predatory litigation, issuing Recommendation No. 159/2024, with a view to curbing abusive practices that compromise the judicial function and access to justice.
Under the genre “abusive litigation,” we have “conduct or lawsuits without any grounds, frivolous, artificial, dilatory, fraudulent, unnecessarily split, standing as procedural harassment or violating the duty to mitigate losses, among others, which, according to their extent and impacts, may constitute predatory litigation“.
For instance, potentially abusive practices may include a) the “assignment of similar lawsuits, with complaints that state generic information and identical causes of action, often only different by the personal data of the parties involved, without due establishment of the facts of the specific case;” b) the “distribution of lawsuits without required documents to minimally prove the alleged legal relationship or with the submission of documents unrelated to the cause of action;” c) the “filing of lawsuits with the purpose of pressuring attain extra-procedural benefit, such as the execution of an agreement to meet claims, often with an attempt to not-payment of procedural costs;” d) “requests for free legal submitted without basis, proof or minimum evidence of economic need;” e) the “withdrawal of actions or statement of waiver of rights after the denial of injunctions, or when the plaintiff is notified to prove the facts alleged in the complaint, to regularize the representation at court, or when the defendant’s defense is accompanied by documents proving the existence or validity of the disputed legal relationship;” f) the “filing of lawsuits in districts other than the domicile of the plaintiff, the defendant or the place of the disputed fact;” and g) the “submission of documents with incomplete, illegible or outdated data, often on behalf of third parties.”
In recent years, these lawsuits have been piling up in the Courts: an estimated 2.8 million lawsuits initiated in the country involve unfounded litigation. These lawsuits can lead to annual costs of up to BRL 25 B for the public treasury, according to a survey carried out by the Intelligence Network of the National Council of Justice (CNJ)[1], which reviewed information from Courts of Justice in 20 Brazilian states.
Judges and Courts are directed to identify, deal with and above all prevent abusive litigation, understood as a misrepresentation of the right to appeal to the Judiciary, sometimes embodied by artificial, frivolous, or unfounded conduct, which burdens the system, and undermines the effective judicial relief.
In addition to the structural and operational challenges, there are financial and reputational aspects that are especially imposed on financial institutions, insurance companies, public utilities, and other large corporations, since there is a perception that they have abundant resources.
Although the Code of Civil Procedure authorizes judges to impose penalties to discourage actions that breach good faith, the reality shows that, in the daily volume of cases, the detection, control, and curbing of these practices are still a great challenge.
The situation of insurers has been drawing the attention of complementary mechanisms, such as the Lawsuit Profile Monitoring Center (Numopede) of the Disciplinary Board of the Courts of the State of São Paulo, which classified the health industry[2] as one of the most critical, where predatory litigation abound in actions on medical therapies, plastic surgeries, and compulsory hospitalizations.
In any case, the noteworthy Recommendation of the National Council of Justice strengthens the reliability of the Judiciary, as an up-to-date Branch, aware and ready to face the tangible and real impacts of predatory litigation on our society. After all, much more than good intentions, firm and concrete efforts are needed to ensure the fight against predatory litigation that mars the effectiveness of the judicial system.
[1]https://veja.abril.com.br/coluna/radar/litigancia-predatoria-causa-prejuizo-de-r-25-bilhoes-aponta-levantamento
[2] https://www.tjsp.jus.br/Noticias/Noticia?codigoNoticia=95695
Available in: https://analise.com/opiniao/litigancia-predatoria-o-impacto-das-acoes-abusivas-no-judiciario-e-nas-empresas
Autor: Sergio Luiz Bernardelli Junior • email: sergio.bernardelli@ernestoborges.com.br
