[Congressional Record Volume 144, Number 77 (Monday, June 15, 1998)]
[Senate]
[Pages S6324-S6326]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        NATIONAL TOBACCO POLICY AND YOUTH SMOKING REDUCTION ACT

  The PRESIDING OFFICER. Under the previous order of the Senate, we 
will now continue with the consideration of S. 1415.
  The Senate continued with the consideration of the bill.
  The PRESIDING OFFICER. The Senator from Washington.
  Mr. GORTON. Mr. President, parliamentary inquiry: May I send an 
amendment to the desk without asking unanimous consent some pending 
amendment be set aside?
  The PRESIDING OFFICER. The Senator may send up the amendment without 
consent.


                Amendment No. 2705 To Amendment No. 2437

                  (Purpose: To limit attorneys' fees)

  Mr. GORTON. Mr. President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Washington [Mr. Gorton] proposes an 
     amendment numbered 2705 to amendment No. 2437.

  Mr. GORTON. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       At the end of the pending amendment, add the following:

     SEC.  LIMIT ON ATTORNEYS' FEES.

       (a) Fees Covered by This Section.--Notwithstanding any 
     other provision of law, or any arrangement, agreement, or 
     contract regarding attorneys' fees, attorneys' fees for--
       (1) representation of a State, political subdivision of a 
     state, or any other entity listed in subsection (a) of 
     Section 1407 of this Act;
       (2) representation of a plaintiff or plaintiff class in the 
     Castano Civil Actions described in subsection (9) of Section 
     701 of this Act;
       (3) representation of a plaintiff or plaintiff class in any 
     ``tobacco claim,'' as that term is defined in subsection (7) 
     of Section 701 of this Act, that is settled or otherwise 
     finally resolved after June 15, 1998;
       (4) efforts expended that in whole or in part resulted in 
     or created a model for programs in this Act,

     shall be determined by this Section.
       (b) Attorneys' Fees.
       (1) Jurisdiction.--Upon petition by the attorney whose fees 
     are covered by subsection (a), the attorneys' fees shall be 
     determined

[[Page S6325]]

     by the last court in which the action was pending.
       (2) Criteria.--In determining an attorney fee awarded for 
     fees subject to this section, the court shall consider--
       (A) The likelihood at the commencement of the 
     representation that the claimant attorney would secure a 
     favorable judgment or substantial settlement;
       (B) The amount of time and labor that the claimant attorney 
     reasonably believed at the commencement of the representation 
     that he was likely to expend on the claim;
       (C) The amount of productive time and labor that the 
     claimant attorney actually invested in the representation as 
     determined through an examination of contemporaneous or 
     reconstructed time records;
       (D) The obligations undertaken by the claimant attorney at 
     the commencement of the representation including--
       (i) whether the claimant attorney was obligated to proceed 
     with the presentation through its conclusion or was permitted 
     to withdraw from the representation; and
       (ii) whether the claimant attorney assumed an unconditional 
     commitment for expenses incurred pursuant to the 
     representation;
       (E) The expenses actually incurred by the claimant attorney 
     pursuant to the representation, including--
       (i) whether those expenses were reimbursable; and
       (ii) the likelihood on each occasion that expenses were 
     advanced that the claimant attorney would secure a favorable 
     judgment or settlement;
       (F) The novelty of the legal issues before the claimant 
     attorney and whether the legal work was innovative or modeled 
     after the work of others or prior work of the claimant 
     attorney;
       (G) The skill required for the proper performance of the 
     legal services rendered;
       (H) The results obtained and whether those results were or 
     are appreciably better than the results obtained by other 
     lawyers representing comparable clients or similar claims;
       (I) The reduced degree of risk borne by the claimant 
     attorney in the representation and the increased likelihood 
     that the claimant attorney would secure a favorable judgment 
     or a substantial settlement based on the progression of 
     relevant developments from the 1994 Williams document 
     disclosures through the settlement negotiations and the 
     eventual federal legislative process;
       (J) Whether this Act or related changes in State laws 
     increase the likelihood of the attorney's success;
       (K) The fees paid to claimant attorneys that would be 
     subject to this section but for the provisions of subsection 
     (3);
       (L) Such other factors as justice may require.
       (3) Effective date.--Notwithstanding any other provision of 
     law, this section shall not apply to attorneys' fees actually 
     remitted and received by an attorney before June 15, 1998.
       (4) Limitation.--Notwithstanding any other provision of 
     law, separate from the reimbursement of actual out-of-pocket 
     expenses as approved by the court in such action, any 
     attorneys' fees shall not exceed a per hour rate of--
       (A) $4000 for actions filed before December 31, 1994;
       (B) $2000 for actions filed on or after December 31, 1994, 
     but before April 1, 1997, or for efforts expended as 
     described in subsection (a)(4) of this section which efforts 
     are not covered by any other category in subsection (a);
       (C) $1000 for actions filed on or after April 1, 1997, but 
     before June 15, 1998;
       (D) $500 for actions filed after June 15, 1998.
       (c) Severability.--If any provision of this section or the 
     application of such provision to any person or circumstance 
     is held to be unconstitutional, the remainder of this section 
     and the application of the provisions of such to any person 
     or circumstance shall not be affected thereby.

  Mr. GORTON. Mr. President, there is at least an informal 
understanding that there will be a debate on this amendment tomorrow 
for approximately 1 hour. With the kind indulgence of my friend and 
colleague from Minnesota, I am going to simply give a brief explanation 
of this amendment now so Members who are watching, or staffs who are 
watching, will understand its general subject matter.
  Twice during the course of this debate we have debated the subject of 
limitations on attorneys' fees. On both occasions I have voted to table 
those amendments, not because I felt that limitations on attorneys' 
fees in connection with tobacco litigation and legislation were not 
appropriate, but because I felt that the amendments themselves were 
unfair. This amendment is a third attempt to provide some limitations 
in a manner that I, at least, believe to be considerably more sensitive 
and more fair to the attorneys who have been involved in that 
litigation. I hope under those circumstances it will be given 
reasonably careful consideration by my colleagues.
  We are dealing with litigation that is literally unprecedented, I 
think, in the history of the United States, with the potential of 
immense recoveries on the part of various States interfered with and 
amended by the legislation that we are considering here on the floor. 
Under those circumstances, the possibility that attorneys' fees would 
be awarded in the billions of dollars--perhaps even in the billions of 
dollars to some individual firms, but certainly in the order of nine 
digits to many individuals and individual firms--is a matter that I 
think greatly disturbs the majority of the American people and many, if 
not most, members of the bar. Those attorneys' fees have been subject 
to much criticism from the outside, and there should be a way to see to 
it that they are dealt with fairly.
  The difficulty with the two earlier amendments, in my view at least, 
was that they treated all lawyers, all attorneys who were involved in 
tobacco litigation--past, present, and future--in exactly the same 
fashion. Yet it is obvious that, if we look at the history of this 
controversy, the initial litigation and the ideas for that initial 
litigation that were brought forth some time ago, in the early 1990s, 
were developed by a group of tremendously gifted and imaginative 
attorneys at a time at which the odds on their success, looking at it 
from the beginning, would have been judged to have been very small.
  They have shown great skill, great persistence; they have spent, in 
many cases, a great deal of their own and their law firms' money; and I 
think the reward they have earned is considerably larger than awards 
that will be earned by those who got into this litigation very late in 
the game when it was obvious that the litigation was going to be 
settled for large amounts of money or litigated successfully; not to 
mention those who will bring tobacco-related litigation in the future 
when, under the terms of this bill, and many State legislative acts, it 
will be almost impossible for an attorney to lose a tobacco case.
  As a consequence, the fundamental approach of this amendment is to 
say that for those who were in this litigation early--that is, before 
the end of the year 1994--attorneys' fees can be up to $4,000 an hour--
a huge amount of money beyond any question, a mind-boggling amount of 
money, but nevertheless considerably less than many of these attorneys 
will get in the absence of such legislation, on the basis of percentage 
contingent fees.
  Moreover, like other amendments in this connection, that is a 
ceiling, not a floor. The courts, in this case, will make a 
determination considering all of the same items that have been outlined 
in previous decisions of the U.S. Supreme Court and in previous 
amendments on this subject. So when a judge determines that amount is 
too much, the judge may reduce the amount below that hourly fee but 
under no circumstances may go above it.
  The second category of attorneys will be those who were involved in 
this litigation after 1994 but before early last year. Their ceiling 
will be half the amount of the pioneers, or $2,000 an hour. And certain 
other attorneys who worked on developing the ideas that went into this 
case will fall into that category as well.
  The next clear date is when the Liggett Tobacco Company agreed, in 
effect, to turn state's evidence to settle the matter and to admit its 
liabilities and admit, generally speaking, the liabilities of the other 
tobacco companies. Those who got into the litigation after that were 
almost certain winners--almost certain winners. They did not run the 
risks that earlier attorneys did, and their maximum fee under this 
amendment will be $1,000 an hour. That will, in fact, be somewhat less 
than the maximum recovery under the last Faircloth amendment, because 
while it stated the sum of $1,000 an hour, it allowed for recovery of 
costs over--considerably over and above the actual costs incurred in 
the litigation.
  Finally, after the beginning of this debate here, assuming that this 
debate, of course, ends up in actual legislation, tobacco litigation 
will be almost like Workmen's Compensation litigation in all of our 
State courts, and the limit there is $500 an hour under this amendment, 
half that in the last Faircloth proposal. Again, these are limits, 
these are maximums, but they are maximums set in a different way than 
they were in the other two amendments, reflecting the actual risks, the 
actual

[[Page S6326]]

imagination, the actual work that went into the litigation and, for 
that matter, into the legislation itself.
  I am not certain this is a totally perfect proposal of this nature, 
but I think it is highly reasonable. I think it is highly generous. I 
think it meets the views of people in the United States as a whole who 
do not think the lawyers in this case should become billionaires out of 
it. And it will husband the actual recoveries, whatever those 
recoveries may be and however they are derived, far more for the 
purposes of the litigation and the legislation itself than relatively 
unlimited contingent fees would do.
  That is a brief explanation and a justification of something that I 
hope meets with the support of those who have felt that there ought to 
be limits on those attorneys' fees, but that they should be somewhat 
lower and those on the other side, who, like I, have voted against 
these previous limitations on the grounds that they weren't sensitive 
enough and for at least some people were not high enough. I would like 
to bring people together on this so that at least this particular 
element of this debate can be brought to a successful conclusion.

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