Sen. Josh Hawley Scorches Alejandro Mayorkas
Is the phrase ‘friendly litigation’ (4.59 min into the video) used by GOP Senator Josh Hawley in an exchange with Alejandro Mayorkas (Secretary of Homeland Security.) a standard phrase?Alejandro Mayorkas told Josh Hawley that he was unfamiliar with the term. Is the phrase ‘friendly litigation’ a term used by lawyers? If so what does it mean? It seems like an oxymoron but I’m not a lawyer.
Not a lawyer, but while there is such a thing as “friendly lawsuit”, I am only aware of the phrase “friendly litigation” when the word “friendly” is an adjective for something, such as consumer-friendly litigation.
I also found this:
It is a term, but it is not common and usually pejorative. The best example I can think of is the Windsor case which ended up striking down DOMA. Windsor sued the Obama administration seeking to declare DOMA unconstitutional. Obama supported her but “defended” the government’s position in court. It is why four Justices would have dismissed the suit for lack of standing.
The short version is that you want me to do something and I want to do it, but by you suing me and me pretending to “defend” myself in court and inevitably lose, then I can tell others that I really, really tried, but the court made me do it.
I’m not sure I’ve heard the phrase, but it’s immediately apparent to me what he means (I didn’t watch enough of the video to know what specifically he’s talking about). Sometimes an entity (particularly a government entity) will want to do something it is prohibited from doing (or not to do something it is required to do). Sometimes this is political or partisan, sometimes not, but that entity will get sued by a third-party and the agency will (openly or tacitly) agree with the party suing it in an effort to get a court order requiring (or prohibiting) some action or reviewing some statute (this is often a separation of powers issue).
A somewhat related term that I do hear regularly is “friendly subpoena.” Usually, we think of subpoenas as being used to force a reluctant party to produce evidence and battles over those subpoenas can be drawn out and contentious.
But other times, a entity (often a large corporation or state agency) is more than happy to provide the information, but because of some law or policy is required to demand a subpoena. So you send a “friendly subpoena” and they give you what you want (and what they’re happy to give you). (Another example, in my work, are state employee witnesses who are happy to come testify, but need a subpoena for HR purposes).
Edit: As far as I can tell, the term is periodically used in judicial opinions, but typically as a negative. For example: " The pleadings reveal agreement by the parties on every material question of fact, and reveal further that if a timely demurrer had been interposed, this case would have been dismissed in the trial court. The only purpose of this admittedly ‘friendly’ litigation is to obtain an advisory opinion, in advance of executive action, concerning the effect of certain penal statutes and regulations." Gortmaker v. Seaton (Oregon 1969); Telenor Mobile Communications v. Storm LLC (2nd Cir 2009) (noting that the district court had “concluded that the judgments obtained by Alpren against Storm had contravened the rule against ‘friendly litigation’”).
It comes up in commercial litigation. Suppose you have two companies with a long-standing commercial relationship which they want to maintain, but there’s a clause in one of their contracts that is ambiguous. They simply cannot agree on how it should be interpreted. They don’t want to tear up their entire relationship over one contract, but they each owe a duty to their respective shareholders to do their best to advance their positions. In that case, they might go to court to have the contractual issue resolved, but hope to maintain the overall good relationship. That’s friendly litigation.
The same situation can arise with a subsidiary of a corporation. Since the main corp and the subsidiary are both corporations, and owe separate duties to their shareholders, they may have to go to court to resolve a dispute about a contract or the terms of the subsidiarity. Again, they don’t want to break up, but they need to get the dispute resolved, so they ship it off to the lawyers and the courts to get a ruling.
That’s not how I would use the term. It is “friendly” in the sense that we are not cursing each other under our breaths and doing it to hash out an ambiguous term, but south of our border we use it as described above. Political or financially motivated with an agreed upon result.
Thanks Northern Piper. Thanks everybody.
One case which is typically cited as friendly litigation in the Anglo-Canadian legal world is
In that case, High Trees leased a block of flats from Central London Property Trust, at a set rate. During WWII, High Trees wasn’t able to meet the payments because occupancy was way down, so Central London agreed High Trees could pay half the rent.
After the War, Central London sued High Trees to recover the unpaid rent.
The reason this was considered friendly litigation is that High trees was actually a subsidiary of Central London. Normally an agreement between the principal and subsidiary wouldn’t go to litigation, but Central London was in receivership. The receiver owed a duty to all creditors of Central London to try to recover all potential claims. There was an argument in law that since there had been no formal agreement to change the rent contract, the original rent rates still applied.
The receiver felt they had to bring the lawsuit, even though there was a good argument that Central London was barred from trying to renege on the waiver of full rents - which is exactly what Lord Denning ruled.
And there was no appeal, in part because the receiver felt they had satisfied their duty to recover the claim.
I think that the standard decision in US law regarding the “rule against ‘friendly litigation’” is Lord v. Veazie (1850).
The Court first explains that the “the contract set out in the pleadings was made for the purpose of instituting this suit, and that there is no real dispute between the plaintiff and defendant. On the contrary, it is evident that their interest in the question brought here for decision is one and the same, and not adverse; and that in these proceedings the plaintiff and defendant are attempting to procure the opinion of this court upon a question of law, in the decision of which they have a common interest opposed to that of other persons, who are not parties to this suit.”
The Court goes on to dismiss the case because “[t]he objection in the case before us is, not that the proceedings were amicable, but that there is no real conflict of interest between them; that the plaintiff and defendant have the same interest, and that interest adverse and in conflict with the interest of third persons, whose rights would be seriously affected if the question of law was decided in the manner that both of the parties to this suit desire it to be.”
When it comes to Government action (or inaction) the practice has been to allow some other entity to intervene to create adversity, and I think that’s probably right since there are a number of other equities in involved (although it creates standing questions). But the key, at least in the US usage, is the alignment of the two sides.
I recall some suit over copyright (and apparently a tactic for some US lawyers with a certain moral inclination). Basically the lawyer would represent a copyright holder, find a willing “victim” to admit to having downloaded the copyright material, who would be sued and produce a court-ordered settlement of a high value that the defendant’s lawyer (who was in on the scam) would not contest. The lawyer could then use this high settlement as an example when suing other uncooperative defendants to coerce them to settle or else face similar high penalties.
IIRC when the court was apprised of this under-the-table agreement they were not happy and sanctioned the participants.
I’ve not seen the Hawley video. But I believe it’s common these days for plaintiffs to collude with governments sue in court in order to give their preferred policies the force of a court order.
So let’s suppose some activist group wants to institute police reforms. The politicians currently controlling the town also want to institute those same police reforms. There’s nothing stopping them from instituting those reforms. But the potential problem is that a subsequent administration could decide to undo those reforms. So they work with the activist group to have a lawsuit over it, then they make a settlement in which they agree to do the reforms, and the judge signs off on it. Once that’s done, they’ve bound the hands of any future administration.
And similar for any number of other possible policy issues.
I wouldn’t be surprised if that’s what Hawley is compaining about.
I just happened to come across a case which is an example of this type of litigation: Hydro-Electric Power Commission of Ontario v. The Coniagas Reduction Company, Limited, [1933] UKPC 44, on appeal from the Ontario Supreme Court to the Judicial Committee of the Privy Council in London.
At issue was an agreement between two companies that apparently had a good working relationship, but they could not determine if the agreement (which they had inherited from their predecessors) was perpetual in nature. So they went to court:
There must have been a lot of money at stake, to take it all the way to the JCPC.