The Formal Notice Requirement Behind Rule 11 Sanctions: Why an Informal Threat Should Not Be Treated as a Binding Promise

Author: Collin L. Ryan, Associate Member, University of Cincinnati Law Review

Talk is cheap, put your money where your mouth is, et cetera—all idioms that reflect a common underlying theme that in order for one’s statements to be taken seriously, one must take a formal action threatening stern consequences. Anything less, and others will think the statements insignificant. In a recent decision from the Sixth Circuit Court of Appeals in Penn LLC v. Prosper Bus. Dev. Corp., the court found that the same theme applies to civil procedure—that for purposes of Rule 11 sanctions, an informal warning letter is insufficient, and formal service of a motion is required.[1] While other circuit courts have reached similar conclusions,[2] the Seventh Circuit disagrees, holding that strict compliance with the formalities of the sanctions process is not required.[3] However, in consideration of the court’s textual arguments, policy rationale, and practical implications, the reasoning of the Sixth Circuit is more persuasive, and other jurisdictions should not follow the Seventh Circuit’s interpretation of Rule 11.

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