[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 1712 Introduced in Senate (IS)]







107th CONGRESS
  1st Session
                                S. 1712

To amend the procedures that apply to consideration of interstate class 
actions to assure fairer outcomes for class members and defendants, and 
                          for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           November 15, 2001

   Mr. Grassley (for himself, Mr. Kohl,  Mr. Hatch, Mr. Carper, Mr. 
 Thurmond, Mr. Chafee, and Mr. Specter) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To amend the procedures that apply to consideration of interstate class 
actions to assure fairer outcomes for class members and defendants, and 
                          for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; REFERENCE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Class Action 
Fairness Act of 2001''.
    (b) Reference.--Whenever in this Act reference is made to an 
amendment to, or repeal of, a section or other provision, the reference 
shall be considered to be made to a section or other provision of title 
28, United States Code.
    (c) Table of Contents.--The table of contents for this Act is as 
follows:

 Sec. 1. Short title; reference; table of contents.
 Sec. 2. Findings and purposes.
 Sec. 3. Consumer class action bill of rights and improved procedures 
                            for interstate class actions.
 Sec. 4. Federal district court jurisdiction for interstate class 
                            actions.
 Sec. 5. Removal of interstate class actions to Federal district court.
 Sec. 6. Report on class action settlements.
 Sec. 7. Effective date.

 SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--Congress finds the following:
            (1) Class action lawsuits are an important and valuable 
        part of the legal system when they permit the fair and 
        efficient resolution of legitimate claims of numerous parties 
        by allowing the claims to be aggregated into a single action 
        against a defendant that has allegedly caused harm.
            (2) Over the past decade, there have been abuses of the 
        class action device that have--
                    (A) harmed class members with legitimate claims and 
                defendants that have acted responsibly; and
                    (B) undermined public respect for our judicial 
                system.
            (3) Class members often receive little or no benefit from 
        class actions, and are sometimes harmed, such as where--
                    (A) counsel are awarded large fees, while leaving 
                class members with coupons or other awards of little or 
                no value;
                    (B) unjustified awards are made to certain 
                plaintiffs at the expense of other class members; and
                    (C) confusing notices are published that prevent 
                class members from being able to fully understand and 
                effectively exercise their rights.
            (4) Abuses in class actions undermine the national judicial 
        system and the concept of diversity jurisdiction as intended by 
        the framers of the United States Constitution, in that State 
        and local courts are--
                    (A) keeping cases of national importance out of 
                Federal court;
                    (B) sometimes acting in ways that demonstrate bias 
                against out-of-State defendants; and
                    (C) making judgments that impose their view of the 
                law on other States and bind the rights of the 
                residents of those States.
    (b) Purposes.--The purposes of this Act are to--
            (1) assure fair and prompt recoveries for class members 
        with legitimate claims;
            (2) restore the intent of the framers of the United States 
        Constitution by providing for Federal court consideration of 
        interstate cases of national importance under diversity 
        jurisdiction; and
            (3) benefit society by encouraging innovation and lowering 
        consumer prices.

 SEC. 3. CONSUMER CLASS ACTION BILL OF RIGHTS AND IMPROVED PROCEDURES 
              FOR INTERSTATE CLASS ACTIONS.

    (a) In General.--Part V is amended by inserting after chapter 113 
the following:

                      ``CHAPTER 114--CLASS ACTIONS

``Sec.
``1711. Definitions.
``1712. Judicial scrutiny of coupon and other noncash settlements.
``1713. Protection against loss by class members.
``1714. Protection against discrimination based on geographic location.
``1715. Prohibition on the payment of bounties.
``1716. Clearer and simpler settlement information.
``1717. Notifications to appropriate Federal and State officials.
``Sec. 1711. Definitions
    ``In this chapter:
            ``(1) Class.--The term `class' means all of the class 
        members in a class action.
            ``(2) Class action.--The term `class action' means any 
        civil action filed in a district court of the United States 
        under rule 23 of the Federal Rules of Civil Procedure or any 
        civil action that is removed to a district court of the United 
        States that was originally filed under a State statute or rule 
        of judicial procedure authorizing an action to be brought by 1 
        or more representatives as a class action.
            ``(3) Class counsel.--The term `class counsel' means the 
        persons who serve as the attorneys for the class members in a 
        proposed or certified class action.
            ``(4) Class members.--The term `class members' means the 
        persons (named or unnamed) who fall within the definition of 
        the proposed or certified class in a class action.
            ``(5) Plaintiff class action.--The term `plaintiff class 
        action' means a class action in which class members are 
        plaintiffs.
            ``(6) Proposed settlement.--The term `proposed settlement' 
        means an agreement regarding a class action that is subject to 
        court approval and that, if approved, would be binding on some 
        or all class members.
``Sec. 1712. Judicial scrutiny of coupon and other noncash settlements
    ``The court may approve a proposed settlement under which the class 
members would receive noncash benefits or would otherwise be required 
to expend funds in order to obtain part or all of the proposed benefits 
only after a hearing to determine whether, and making a written finding 
that, the settlement is fair, reasonable, and adequate for class 
members.
``Sec. 1713. Protection against loss by class members
    ``The court may approve a proposed settlement under which any class 
member is obligated to pay sums to class counsel that would result in a 
net loss to the class member only if the court makes a written finding 
that nonmonetary benefits to the class member substantially outweigh 
the monetary loss.
``Sec. 1714. Protection against discrimination based on geographic 
              location
    ``The court may not approve a proposed settlement that provides for 
the payment of greater sums to some class members than to others solely 
on the basis that the class members to whom the greater sums are to be 
paid are located in closer geographic proximity to the court.
``Sec. 1715. Prohibition on the payment of bounties
    ``(a) In General.--The court may not approve a proposed settlement 
that provides for the payment of a greater share of the award to a 
class representative serving on behalf of a class, on the basis of the 
formula for distribution to all other class members, than that awarded 
to the other class members.
    ``(b) Rule of Construction.--The limitation in subsection (a) shall 
not be construed to prohibit a payment approved by the court for 
reasonable time or costs that a person was required to expend in 
fulfilling the obligations of that person as a class representative.
``Sec. 1716. Clearer and simpler settlement information
    ``(a) Plain English Requirements.--Any court with jurisdiction over 
a plaintiff class action shall require that any written notice 
concerning a proposed settlement of the class action provided to the 
class through the mail or publication in printed media contain--
            ``(1) at the beginning of such notice, a statement in 18-
        point or greater bold type, stating `LEGAL NOTICE: YOU ARE A 
        PLAINTIFF IN A CLASS ACTION LAWSUIT AND YOUR LEGAL RIGHTS ARE 
        AFFECTED BY THE SETTLEMENT DESCRIBED IN THIS NOTICE.';
            ``(2) a short summary written in plain, easily understood 
        language, describing--
                    ``(A) the subject matter of the class action;
                    ``(B) the members of the class;
                    ``(C) the legal consequences of being a member of 
                the class action;
                    ``(D) if the notice is informing class members of a 
                proposed settlement agreement--
                            ``(i) the benefits that will accrue to the 
                        class due to the settlement;
                            ``(ii) the rights that class members will 
                        lose or waive through the settlement;
                            ``(iii) obligations that will be imposed on 
                        the defendants by the settlement;
                            ``(iv) the dollar amount of any attorney's 
                        fee class counsel will be seeking, or if not 
                        possible, a good faith estimate of the dollar 
                        amount of any attorney's fee class counsel will 
                        be seeking; and
                            ``(v) an explanation of how any attorney's 
                        fee will be calculated and funded; and
                    ``(E) any other material matter.
    ``(b) Tabular Format.--Any court with jurisdiction over a plaintiff 
class action shall require that the information described in subsection 
(a)--
            ``(1) be placed in a conspicuous and prominent location on 
        the notice;
            ``(2) contain clear and concise headings for each item of 
        information; and
            ``(3) provide a clear and concise form for stating each 
        item of information required to be disclosed under each 
        heading.
    ``(c) Television or Radio Notice.--Any notice provided through 
television or radio (including transmissions by cable or satellite) to 
inform the class members in a class action of the right of each member 
to be excluded from a class action or a proposed settlement, if such 
right exists, shall, in plain, easily understood language--
            ``(1) describe the persons who may potentially become class 
        members in the class action; and
            ``(2) explain that the failure of a class member to 
        exercise his or her right to be excluded from a class action 
        will result in the person's inclusion in the class action.
``Sec. 1717. Notifications to appropriate Federal and State officials
    ``(a) Definitions.--
            ``(1) Appropriate federal official.--In this section, the 
        term `appropriate Federal official' means--
                    ``(A) the Attorney General of the United States; or
                    ``(B) in any case in which the defendant is a 
                Federal depository institution, a State depository 
                institution, a depository institution holding company, 
                a foreign bank, or a nondepository institution 
                subsidiary of the foregoing (as such terms are defined 
                in section 3 of the Federal Deposit Insurance Act (12 
                U.S.C. 1813)), the person who has the primary Federal 
                regulatory or supervisory responsibility with respect 
                to the defendant, if some or all of the matters alleged 
                in the class action are subject to regulation or 
                supervision by that person.
            ``(2) Appropriate state official.--In this section, the 
        term `appropriate State official' means the person in the State 
        who has the primary regulatory or supervisory responsibility 
        with respect to the defendant, or who licenses or otherwise 
        authorizes the defendant to conduct business in the State, if 
        some or all of the matters alleged in the class action are 
        subject to regulation by that person. If there is no primary 
        regulator, supervisor, or licensing authority, or the matters 
        alleged in the class action are not subject to regulation or 
        supervision by that person, then the appropriate State official 
shall be the State attorney general.
    ``(b) In General.--Not later than 10 days after a proposed 
settlement of a class action is filed in court, each defendant that is 
participating in the proposed settlement shall serve upon the 
appropriate State official of each State in which a class member 
resides and the appropriate Federal official, a notice of the proposed 
settlement consisting of--
            ``(1) a copy of the complaint and any materials filed with 
        the complaint and any amended complaints (except such materials 
        shall not be required to be served if such materials are made 
        electronically available through the Internet and such service 
        includes notice of how to electronically access such material);
            ``(2) notice of any scheduled judicial hearing in the class 
        action;
            ``(3) any proposed or final notification to class members 
        of--
                    ``(A)(i) the members' rights to request exclusion 
                from the class action; or
                    ``(ii) if no right to request exclusion exists, a 
                statement that no such right exists; and
                    ``(B) a proposed settlement of a class action;
            ``(4) any proposed or final class action settlement;
            ``(5) any settlement or other agreement contemporaneously 
        made between class counsel and counsel for the defendants;
            ``(6) any final judgment or notice of dismissal;
            ``(7)(A) if feasible, the names of class members who reside 
        in each State and the estimated proportionate share of the 
        claims of such members to the entire settlement to that State's 
        appropriate State official; or
            ``(B) if the provision of information under subparagraph 
        (A) is not feasible, a reasonable estimate of the number of 
        class members residing in each State and the estimated 
        proportionate share of the claims of such members to the entire 
        settlement; and
            ``(8) any written judicial opinion relating to the 
        materials described under subparagraphs (3) through (6).
    ``(c) Depository Institutions Notification.--
            ``(1) Federal and other depository institutions.--In any 
        case in which the defendant is a Federal depository 
        institution, a depository institution holding company, a 
        foreign bank, or a non-depository institution subsidiary of the 
        foregoing, the notice requirements of this section are 
        satisfied by serving the notice required under subsection (b) 
        upon the person who has the primary Federal regulatory or 
        supervisory responsibility with respect to the defendant, if 
        some or all of the matters alleged in the class action are 
        subject to regulation or supervision by that person.
            ``(2) State depository institutions.--In any case in which 
        the defendant is a State depository institution (as that term 
        is defined in section 3 of the Federal Deposit Insurance Act 
        (12 U.S.C. 1813)), the notice requirements of this section are 
        satisfied by serving the notice required under subsection (b) 
        upon the State bank supervisor (as that term is defined in 
        section 3 of the Federal Deposit Insurance Act (12 U.S.C. 
        1813)) of the State in which the defendant is incorporated or 
        chartered, if some or all of the matters alleged in the class 
        action are subject to regulation or supervision by that person, 
        and upon the appropriate Federal official.
    ``(d) Final Approval.--An order giving final approval of a proposed 
settlement may not be issued earlier than 90 days after the later of 
the dates on which the appropriate Federal official and the appropriate 
State official are served with the notice required under subsection 
(b).
    ``(e) Noncompliance if Notice Not Provided.--
            ``(1) In general.--A class member may refuse to comply with 
        and may choose not to be bound by a settlement agreement or 
        consent decree in a class action if the class member 
        demonstrates that the notice required under subsection (b) has 
        not been provided.
            ``(2) Limitation.--A class member may not refuse to comply 
        with or to be bound by a settlement agreement or consent decree 
        under paragraph (1) if the notice required under subsection (b) 
        was directed to the appropriate Federal official and to either 
        the State attorney general or the person that has primary 
        regulatory, supervisory, or licensing authority over the 
        defendant.
            ``(3) Application of rights.--The rights created by this 
        subsection shall apply only to class members or any person 
        acting on a class member's behalf, and shall not be construed 
        to limit any other rights affecting a class member's 
        participation in the settlement.
    ``(f) Rule of Construction.--Nothing in this section shall be 
construed to expand the authority of, or impose any obligations, 
duties, or responsibilities upon, Federal or State officials.''.
    (b) Technical and Conforming Amendment.--The table of chapters for 
part V is amended by inserting after the item relating to chapter 113 
the following:

``114. Class Actions........................................    1711''.

 SEC. 4. FEDERAL DISTRICT COURT JURISDICTION FOR INTERSTATE CLASS 
              ACTIONS.

    (a) Application of Federal Diversity Jurisdiction.--Section 1332 is 
amended--
            (1) by redesignating subsection (d) as subsection (e); and
            (2) by inserting after subsection (c) the following:
    ``(d)(1) In this subsection--
            ``(A) the term `class' means all of the class members in a 
        class action;
            ``(B) the term `class action' means any civil action filed 
        under rule 23 of the Federal Rules of Civil Procedure or 
        similar State statute or rule of judicial procedure authorizing 
        an action to be brought by 1 or more representative persons as 
        a class action;
            ``(C) the term `class certification order' means an order 
        issued by a court approving the treatment of some or all 
aspects of a civil action as a class action; and
            ``(D) the term `class members' means the persons (named or 
        unnamed) who fall within the definition of the proposed or 
        certified class in a class action.
            ``(2) The district courts shall have original jurisdiction 
        of any civil action in which the matter in controversy exceeds 
        the sum or value of $2,000,000, exclusive of interest and 
        costs, and is a class action in which--
                    ``(A) any member of a class of plaintiffs is a 
                citizen of a State different from any defendant;
                    ``(B) any member of a class of plaintiffs is a 
                foreign state or a citizen or subject of a foreign 
                state and any defendant is a citizen of a State; or
                    ``(C) any member of a class of plaintiffs is a 
                citizen of a State and any defendant is a foreign state 
                or a citizen or subject of a foreign state.
            ``(3) Paragraph (2) shall not apply to any civil action in 
        which--
                    ``(A)(i) the substantial majority of the members of 
                the proposed plaintiff class and the primary defendants 
                are citizens of the State in which the action was 
                originally filed; and
                    ``(ii) the claims asserted therein will be governed 
                primarily by the laws of the State in which the action 
                was originally filed;
                    ``(B) the primary defendants are States, State 
                officials, or other governmental entities against whom 
                the district court may be foreclosed from ordering 
                relief; or
                    ``(C) the number of members of all proposed 
                plaintiff classes in the aggregate is less than 100.
            ``(4) In any class action, the claims of the individual 
        class members shall be aggregated to determine whether the 
        matter in controversy exceeds the sum or value of $2,000,000, 
        exclusive of interest and costs.
            ``(5) This subsection shall apply to any class action 
        before or after the entry of a class certification order by the 
        court with respect to that action.
            ``(6)(A) A district court shall dismiss any civil action 
        that is subject to the jurisdiction of the court solely under 
        this subsection if the court determines the action may not 
        proceed as a class action based on a failure to satisfy the 
        prerequisites of rule 23 of the Federal Rules of Civil 
        Procedure.
            ``(B) Nothing in subparagraph (A) shall prohibit plaintiffs 
        from filing an amended class action in Federal court or filing 
        an action in State court, except that any such action filed in 
        State court may be removed to the appropriate district court if 
        it is an action of which the district courts of the United 
        States have original jurisdiction.
            ``(C) In any action that is dismissed under this paragraph 
        and is filed by any of the original named plaintiffs therein in 
        the same State court venue in which the dismissed action was 
        originally filed, the limitations periods on all reasserted 
        claims shall be deemed tolled for the period during which the 
        dismissed class action was pending. The limitations periods on 
        any claims that were asserted in a class action dismissed under 
        this paragraph that are subsequently asserted in an individual 
        action shall be deemed tolled for the period during which the 
        dismissed action was pending.
            ``(7) Paragraph (2) shall not apply to any class action 
        that solely involves a claim--
                    ``(A) concerning a covered security as defined 
                under 16(f)(3) of the Securities Act of 1933 and 
                section 28(f)(5)(E) of the Securities Exchange Act of 
                1934;
                    ``(B) that relates to the internal affairs or 
                governance of a corporation or other form of business 
                enterprise and that arises under or by virtue of the 
                laws of the State in which such corporation or business 
                enterprise is incorporated or organized; or
                    ``(C) that relates to the rights, duties (including 
                fiduciary duties), and obligations relating to or 
                created by or pursuant to any security (as defined 
                under section 2(a)(1) of the Securities Act of 1933 and 
                the regulations issued thereunder).
            ``(8) For purposes of this subsection and section 1453 of 
        this title, an unincorporated association shall be deemed to be 
        a citizen of the State where it has its principal place of 
        business and the State under whose laws it is organized.
            ``(9)(A) For purposes of this section and section 1453 of 
        this title, a civil action that is not otherwise a class action 
        as defined in paragraph (1)(B) shall nevertheless be deemed a 
        class action if--
                    ``(i) the named plaintiff purports to act for the 
                interests of its members (who are not named parties to 
                the action) or for the interests of the general public, 
                seeks a remedy of damages, restitution, disgorgement, 
                or any other form of monetary relief, and is not a 
                State attorney general; or
                    ``(ii) monetary relief claims in the action are 
                proposed to be tried jointly in any respect with the 
                claims of 100 or more other persons on the ground that 
                the claims involve common questions of law or fact.
            ``(B)(i) In any civil action described under subparagraph 
        (A)(ii), the persons who allegedly were injured shall be 
        treated as members of a proposed plaintiff class and the 
        monetary relief that is sought shall be treated as the claims 
        of individual class members.
            ``(ii) Paragraphs (3) and (6) of this subsection and 
        subsections (b)(2) and (d) of section 1453 shall not apply to 
        any civil action described under subparagraph (A)(i).
            ``(iii) Paragraph (6) of this subsection, and subsections 
        (b)(2) and (d) of section 1453 shall not apply to any civil 
action described under subparagraph (A)(ii).''.
    (b) Conforming Amendments.--
            (1) Section 1335 (a)(1) is amended by inserting ``(a) or 
        (d)'' after ``1332''.
            (2) Section 1603 (b)(3) is amended by striking ``(d)'' and 
        inserting ``(e)''.

 SEC. 5. REMOVAL OF INTERSTATE CLASS ACTIONS TO FEDERAL DISTRICT COURT.

    (a) In General.--Chapter 89 is amended by adding after section 1452 
the following:
``Sec. 1453. Removal of class actions
    ``(a) Definitions.--In this section, the terms `class', `class 
action', `class certification order', and `class member' shall have the 
meanings given such terms under section 1332(d)(1).
    ``(b) In General.--A class action may be removed to a district 
court of the United States in accordance with this chapter, without 
regard to whether any defendant is a citizen of the State in which the 
action is brought, except that such action may be removed--
            ``(1) by any defendant without the consent of all 
        defendants; or
            ``(2) by any plaintiff class member who is not a named or 
        representative class member without the consent of all members 
        of such class.
    ``(c) When Removable.--This section shall apply to any class action 
before or after the entry of a class certification order in the action.
    ``(d) Procedure for Removal.--Section 1446 relating to a defendant 
removing a case shall apply to a plaintiff removing a case under this 
section, except that in the application of subsection (b) of such 
section the requirement relating to the 30-day filing period shall be 
met if a plaintiff class member files notice of removal within 30 days 
after receipt by such class member, through service or otherwise, of 
the initial written notice of the class action.
    ``(e) Review of Orders Remanding Class Actions to State Courts.--
Section 1447 shall apply to any removal of a case under this section, 
except that notwithstanding section 1447(d), an order remanding a class 
action to the State court from which it was removed shall be reviewable 
by appeal or otherwise.
    ``(f) Exception.--This section shall not apply to any class action 
that solely involves--
            ``(1) a claim concerning a covered security as defined 
        under section 16(f)(3) of the Securities Act of 1933 and 
        section 28(f)(5)(E) of the Securities Exchange Act of 1934;
            ``(2) a claim that relates to the internal affairs or 
        governance of a corporation or other form of business 
        enterprise and arises under or by virtue of the laws of the 
        State in which such corporation or business enterprise is 
        incorporated or organized; or
            ``(3) a claim that relates to the rights, duties (including 
        fiduciary duties), and obligations relating to or created by or 
        pursuant to any security (as defined under section 2(a)(1) of 
        the Securities Act of 1933 and the regulations issued 
        thereunder).''.
    (b) Removal Limitation.--Section 1446(b) is amended in the second 
sentence by inserting ``(a)'' after ``section 1332''.
    (c) Technical and Conforming Amendments.--The table of sections for 
chapter 89 is amended by adding after the item relating to section 1452 
the following:

``1453. Removal of class actions.''.

SEC. 6. REPORT ON CLASS ACTION SETTLEMENTS.

    (a) In General.--Not later than 12 months after the date of 
enactment of this Act, the Judicial Conference of the United States, 
with the assistance of the Director of the Federal Judicial Center and 
the Director of the Administrative Office of the United States Courts, 
shall prepare and transmit to the Committees on the Judiciary of the 
Senate and the House of Representatives a report on class action 
settlements.
    (b) Content.--The report under subsection (a) shall contain--
            (1) recommendations on the best practices that courts can 
        use to ensure that proposed class action settlements are fair 
        to the class members that the settlements are supposed to 
        benefit;
            (2) recommendations on the best practices that courts can 
        use to ensure that--
                    (A) the fees and expenses awarded to counsel in 
                connection with a class action settlement appropriately 
                reflect the extent to which counsel succeeded in 
                obtaining full redress for the injuries alleged and the 
                time, expense, and risk that counsel devoted to the 
                litigation; and
                    (B) the class members on whose behalf the 
                settlement is proposed are the primary beneficiaries of 
                the settlement; and
            (3) the actions that the Judicial Conference of the United 
        States has taken and intends to take toward having the Federal 
        judiciary implement any or all of the recommendations contained 
        in the report.
    (c) Authority of Federal Courts.--Nothing in this section shall be 
construed to alter the authority of the Federal courts to supervise 
attorneys' fees.

SEC. 7. EFFECTIVE DATE.

    The amendments made by this Act shall apply to any civil action 
commenced on or after the date of enactment of this Act.
                                 <all>