How State Legislators Can Rein in Public Nuisance Litigation

ILR’s recently released report, 101 Ways: A User’s Guide to Promoting Fair and Effective Civil Justice, features numerous ways state legislators can bring balance and fairness to their state’s lawsuit system. Over the next few weeks, we’ll highlight some of these reforms in a series of blog posts, starting with public nuisance litigation. In the past few years, more and more cities and counties have teamed up with plaintiffs’ lawyers to file cookie-cutter public nuisance lawsuits over lawfully sold products or public policy issues best left to elected officials.

Public nuisance was traditionally used to bring claims over issues like access to public roads and waterways; it was never intended to bring lawsuits over products or public policy. ILR’s research, Taming the Litigation Monster: The Continued Threat of Public Nuisance Litigation, looks at how plaintiffs’ lawyers have convinced cities and counties to hire them on a contingency-fee-basis for public nuisance lawsuits and the dangers this approach holds for the legal system.

In 101 Ways, ILR recommends several reforms for state legislators that would rein in the misuse of public nuisance in municipality litigation, including:

• more narrowly defining what types of activities may constitute a nuisance under state law or disallowing the use of public nuisance claims premised on certain activities or theories;
• providing that conduct that is compliant with relevant state or federal regulations does not provide a basis for a nuisance claim;
• regulating conduct in a manner that does not permit municipalities to demand inconsistent obligations through a lawsuit; and
• requiring municipalities to meet threshold evidentiary requirements before proceeding with a claim, such as by providing proof of damages.

Even though plaintiffs’ lawyers have pitched public nuisance lawsuits as an easy way to increase revenue, courts have repeatedly recognized that state legislators—not courts—are better suited to handle public nuisance claims over public policy issues.

For example, from ILR’s research, Taming the Litigation Monster, in State ex rel. Hunter v. Johnson & Johnson, Oklahoma’s high court stated in its decision to reject an expansive interpretation of public nuisance that endorsing such an interpretation would allow “courts to manage public policy matters that should be dealt with by the legislative and executive branches; the branches that are more capable than courts to balance the competing interests at play in societal problems.”

State legislators shouldn’t let plaintiffs’ lawyers act as shadow elected officials by using public nuisance lawsuits to handle complex public policy issues. Instead, by enacting commonsense reforms, legislators can protect consumers and businesses and ensure public nuisance is only used in the way the law is intended to be used.

In the next post, we’ll discuss the recommendations from 101 Ways to cast sunshine onto the secretive world of third party litigation funding.