[Congressional Record Volume 144, Number 77 (Monday, June 15, 1998)]
[Senate]
[Page S6341]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          AMENDMENTS SUBMITTED

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        NATIONAL TOBACCO POLICY AND YOUTH SMOKING REDUCTION ACT

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                       GORTON AMENDMENT NO. 2705

  Mr. GORTON proposed an amendment to amendment No. 2437 proposed by 
Mr. Durbin to the bill (S. 1415) to reform and restructure the 
processes by which tobacco products are manufactured, marketed, and 
distributed, to prevent the use of tobacco products by minors, to 
redress the adverse health effects of tobacco use, and for other 
purposes; 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 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 representation 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 substantial settlement based on the progression of 
     relevant developments from the 1995 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 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.

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