[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4375 Introduced in House (IH)]
105th CONGRESS
2d Session
H. R. 4375
To provide provisions relating to Castano actions.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 31, 1998
Mr. Meehan introduced the following bill; which was referred to the
Committee on Commerce, and in addition to the Committees on Ways and
Means, and the Judiciary, for a period to be subsequently determined by
the Speaker, in each case for consideration of such provisions as fall
within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To provide provisions relating to Castano actions.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. TEXT OF H.R. 3868.
For purposes of this Act, the text of H.R. 3868 shall be considered
to be a part of this Act.
SEC. 2. CASTANO ACTIONS.
The text of H.R. 3868 included in this Act under section 1 is
amended by adding at the end of title VIII the following:
``Subtitle C--Castano Actions
``SEC. 821. CASTANO ACTIONS.
``(a) In General.--The rights and benefits afforded in titles III
and V of this Act are provided in settlement of, and shall constitute
the exclusive remedy for the purpose of determining, civil liability as
to addiction/dependency claims asserted in the various Castano Actions
against the manufacturers of cigarettes and others All bases for any
such claim under the laws of any State are preempted (including State
substantive, procedural, remedial, and evidentiary provisions) and
settled, with reservation of the rights of individual class members to
pursue their claims in a civil action not based on addiction or
dependency in accordance with this Act. For purposes of determining the
applicable statute of limitation or repose, individual actions filed by
those who were included within such class actions shall be considered
to have been filed as of the date of the filing of the original class
action.
``(b) Arbitration Panel and Awards.--
``(1) Establishment.--For the purposes of awarding of
attorneys' fees and expenses relating to litigation affected
by, or legal services that resulted in whole or in part in,
this Act, there is established an Arbitration Panel which shall
consist of 3 members appointed as follows:
``(A) one member shall be appointed by the
manufacturers;
``(B) one member shall be appointed jointly by the
private attorneys and Attorneys General who were
signatories to the Memorandum of Understanding dated
June 20, 1997, by and between manufacturers, the
Attorneys General, and the private attorneys (one vote
to the private attorneys and one vote to the Attorneys
General); and
``(C) one member shall be appointed jointly by the
aforementioned private attorneys, manufacturers, and
Attorneys General.
``(2) Operation.--
``(A) Establishment.--The members of the
Arbitration Panel shall be appointed not later than 30
days after the date of enactment of this Act. In the
event either the manufacturers or the private
attorneys/Attorneys General fail to timely appoint
their arbitrator, the Senior Judge for the United
States Court of Appeals for the District of Columbia
shall appoint such arbitrator within 10 days after
receipt of a petition to do so from a party which was
required to appoint an arbitrator. In the event the
manufacturers, the private attorneys, and the Attorneys
General are unable to agree upon the third arbitrator
within a period of 10 days after the later of their
appointments, then any of them may petition the Senior
Judge for the United States Court of Appeals for the
District of Columbia to appoint that arbitrator and the
Senior Judge shall do so within 10 days after the
receipt of a petition requesting the appointment.
``(B) Procedures.--Not later than 30 days after the
date on which all members of the Arbitration Panel are
appointed, the Panel shall establish the procedures
under which the Panel will operate which shall
include--
``(i) a requirement that any findings by
the Arbitration Panel must be in writing and
supported by written reasons;
``(ii) procedures for the exchanging of
exhibits and witness lists by the various
claimants for awards;
``(iii) to the maximum extent practicable,
requirements that proceedings before the Panel
be based on affidavits rather than live
testimony; and
``(iv) a requirement that all claims be
submitted to the Arbitration Panel not later
than 3 months after the date of enactment of
this Act and a determination made by the Panel
with respect to such claims not later than 6
months after such date of enactment.
``(3) Right to petition.--Any individual attorney or group
of attorneys involved in litigation affected by this Act or the
rendering of legal services that resulted, in whole or in part,
in this Act, shall have the right to petition the Arbitration
Panel for attorneys' fees and expenses.
``(4) Criteria.--In making any award pursuant to this
section, the Arbitration Panel shall consider the following
criteria:
``(A) The time and labor required by the claimant.
``(B) The novelty and difficulty of the questions
involved in the action for which the claimant is making
a claim.
``(C) The skill requisite to perform the legal
service involved properly.
``(D) The preclusion of other employment by the
attorney due to acceptance of the action involved.
``(E) Whether the fee is fixed or a percentage.
``(F) Time limitations imposed by the client or the
circumstances.
``(G) The amount involved and the results obtained.
``(H) The experience, reputation, and ability of
the attorneys involved.
``(I) The undesirability of this action.
``(5) Appeal and enforcement.--The findings of the
Arbitration Panel shall be final, binding, nonappealable, and
payable within 30 days after the date on which the finding is
made public, except that if an award is to be paid in
installments, the first installment shall be payable within
such 30-day period and succeeding installments shall be paid
annually thereafter.
``(6) Source and payment of awards.--In no event shall any
award of the Arbitration Panel be paid from, credited against,
or otherwise affect, in any way any other payments that are
required to be made by a manufacturer under any other provision
of this Act. Any such award shall be payable jointly and
severally by the manufacturers and liability therefor cannot be
discharged or avoided in bankruptcy proceedings. In any
bankruptcy proceedings, all awards of the Arbitration Panel
shall be afforded the same status as payments to be made
pursuant to this Act.
``(7) Validity and enforceability of private agreements.--
Notwithstanding any other provision of this Act, nothing in
this section shall be construed to abrogate or restrict in any
way the rights of any parties to mediate, negotiate, or settle
any fee or expense disputes or issues to which this section
applies, or to enter into private agreements with respect to
the allocation or division of fees among the attorneys party to
any such agreement.
``(c) Definitions.--As used in this subtitle:
``(1) Castano actions.--The term `Castano actions' means
the following civil actions: Glona Wilkinson Lyons, et al. v.
American Tobacco Co., et al. (USDC Alabama 96-0881-BH); Agnes
McGinty, et al. v. American Tobacco Co., et al. (USDC Arkansas
LR-C-96-861); Willard R. Brown, et al. v. R.J. Reynolds Tobacco
Co., et al. (San Diego, California-00711400); Gray Davis &
James Ellis, et al. v. R.J. Reynolds Tobacco Co., et al. (San
Diego, California-00706458); Chester Lyons, et al. v. Brown &
Williamson Tobacco Corp., et al. (Fulton County, Georgia-E-
59346); Roselyn Peterson, et al. v. American Tobacco Co., et
al. (USDC Hawaii-97-00233-HG); Jean Clay, et al. v. American
Tobacco Co., et al. (USDC Illinois Benton Division-97-4167-
JPG); William J. Norton, et al. v. RJR Nabisco Holdings Corp.,
et al. (Madison County, Indiana 48001-9605-CP-0271); Alge Emig,
et al. v. American Tobacco Co., et al. (USDC Kansas-97-1121-
MIB); Gloria Scott, et al. v. American Tobacco Co., et al.
(Orleans Parish, Louisiana-97-1178); Vern Masepohl, et al. v.
American Tobacco Co., et al. (USDC Minnesota-3-06-CV-888);
Matthew Tepper, et al. v. Philip Morris Incorporated, et al.
(Bergen County, New Jersey-BER-L-4983-97-E); Carol A. Connor,
et al. v. American Tobacco Co., et al. (Bernalillo County, New
Mexico-CV96-8464); Edwin Paul Hoskins, et al. v. R.J. Reynolds
Tobacco Co., et al.; Josephine Stewart-Lomantz v. Brown &
Williamson Tobacco, et al.; Rose Frosina, et al. v. Philip
Morris Incorporated, et al.; Catherine Zito, et al. v. American
Tobacco Co., et al.; Kevin Mroczkowski, et al. v. Lorillard
Tobacco Company, et al. (Supreme Court New York County, New
York-110949 thru 110953); Judith E. Chamberlain, et al. v.
American Tobacco Co., et al. (USDC Ohio-1:96CV2005); Brian
Walls, et al. v. American Tobacco Co., et al. (USDC Oklahoma-
97-CV-218-H); Steven R. Arch, et al. v. American Tobacco Co.,
et al. (USDC Pennsylvania-96-5903-CN); Barreras-Ruiz, et al. v.
American Tobacco Co., et al. (USDC Puerto Rico-96-2300-JAF);
Joanne Anderson, et al. v. American Tobacco Co., et al. (Knox
County, Tennessee); Carlis Cole, et al. v. The Tobacco
Institute, Inc., et al. (USDC Beaumont Texas Division-
1:97CV0256); Carrol Jackson, et al. v. Philip Morris
Incorporated, et al. (Salt Lake County, Utah-CV No. 98-
0901634PI).
``(2) Addiction claims.--The term `addiction claims' or
`dependency claims' refers only to any cause of action where
the claim for relief seeks a cessation program or other means
to reduce or eliminate the user's addiction to or dependency on
tobacco products, and as used in this subtitle is brought by
those who claim the need for nicotine reduction assistance.
Neither addiction claims or dependency claims includes claims
based upon manifestation of tobacco-related illnesses or
tobacco-related diseases.''.
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