[Congressional Record Volume 149, Number 148 (Tuesday, October 21, 2003)]
[Senate]
[Pages S12948-S12963]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          CLASS ACTION FAIRNESS ACT OF 2003--MOTION TO PROCEED

  The PRESIDING OFFICER. The Senate will resume consideration of the 
motion to proceed to S. 1751.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Madam President, parliamentary inquiry: Is it in order at 
this point in time for the Senator to speak as in morning business for 
about 10 minutes?
  The PRESIDING OFFICER. The Senator should seek consent for that 
purpose.
  Mr. REID. I could not hear the Senator's request. I am sorry.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. The Senator from Virginia simply asked the parliamentary 
situation, could I proceed as in morning business for 15 minutes?
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.


                       Remarks by Service Members

  Mr. WARNER. Madam President, the press have reported comments made by 
a general officer, General Boykin, and those remarks have been the 
subject of considerable concern. They are also regrettably a subject of 
great discussion in the Arab press.
  I also am concerned, and I rise to advise my colleagues and others of 
a recommended course of action. I do so by first reading a letter 
signed by Senator Levin and myself dated last Friday. We wrote this 
letter jointly in the course of the debate on this floor in response to 
the request by the Commander in Chief, the President, for some $87 
billion to support our military and to support our reconstruction 
efforts in Iraq and elsewhere. I was a strong supporter and was happy 
to vote for it. Fortunately, the measure has passed and is now subject 
to the conferees.
  It is interesting, at the very time that we were passing this 
legislation, which are taxpayer funds in considerable amounts, the 
object was to provide freedom and quality of life for the people of 
Iraq. The people of Iraq largely follow the Muslim religion in 
teaching, in tenets, and it is dear to their hearts. At the same time, 
the coverage in the United States is about comments made by a 
distinguished officer, a man who has shown great personal courage in 
the profession as a soldier.
  Nevertheless, there are allegations with regard to these remarks that 
have been reported in the press. Senator Levin and I felt it was our 
duty, as chairman and ranking member of the Armed Services Committee, 
to make a recommendation to the Secretary of Defense.
  I am about to read that letter we sent on Friday, because I think it 
is a very responsible way to deal with a high-profile situation.
  Dear Mr. Secretary:
  Enclosed are copies of articles that have appeared in the press 
recently about public statements allegedly made in uniform by LTG 
William G. Boykin, U.S. Army, the Deputy Under Secretary of Defense for 
Intelligence. In matters pertaining to religious beliefs, the practice 
and expression, the Armed Forces have traditionally permitted as much 
latitude as possible,

[[Page S12949]]

consistent with the requirement of good order and discipline in the 
military's ability to accomplish its mission. We recognize the right of 
every American to free speech. However, as is well established, in 
part--I add, part in law--there are limits on the right of expression 
for service members. Public statements by a senior military official of 
an inflammatory, offensive nature that would denigrate another religion 
and which could be construed as bigotry may easily be exploited by 
enemies of the United States and contribute to an erosion of support 
within the Arab world and perhaps--I underline perhaps--increased risk 
for members of the U.S. Armed Forces serving in Muslim nations. It is 
the responsibility of the United States Senate to render constitutional 
``advice and consent'' with respect to the officer corps. Implicit in 
this confirmation process is our judgment that officers, especially 
those of flag and general rank, are persons possessing sound judgment 
and respect for the rights and beliefs of others. We recommend, 
therefore, that you refer this matter to the Department of Defense 
Inspector General for a thorough review of the facts and a 
determination as to whether or not there has been any inappropriate 
behavior by Lieutenant General Boykin. Please advise the committee of 
the results of this review.

  I now read from a press account of today, which purportedly carries--
and I have to rely on the authenticity of the press reports. I have no 
reason to disagree with them--an exchange between Secretary of Defense 
Rumsfeld and members of the press corps. The question: Mr. Secretary, 
last week here you were referring to Lieutenant General Boykin, you and 
General Myers said in effect he has the right to freedom of speech and 
the freedom of expression and yet, as we all know, we are responsible 
for what we say. How can you keep a man in a senior position on your 
staff whose views are so diametrically opposed to those of the 
President and to yours? End of question.
  Response by Secretary Rumsfeld: Let me make several hopefully 
precisely put sentences on this subject. First of all, I appreciate 
your question because it correctly indicated that the President's views 
and my views, or the President's views are that this is not a war 
against a religion. And all I did, despite the columnists and the press 
reports to the contrary, all I did was precisely state what the 
President and what I think are--I am having some difficulty reading 
this but I just have to literally read it as printed. I have not seen 
General Boykin's comments. I have since seen one of the network tapes 
and it had a lot of very difficult to understand words and subtitles 
which I was not able to verify. So I remain inexpert on precisely what 
he said and I was told he used notes and not text. And so I will stop 
there.
  General Boykin has requested an Inspector General review of this 
matter, and I have indicated if that is his request, I think it 
appropriate.
  I know that General Pace, who was apparently with the Secretary, has 
talked to him more recently. You may want to comment as well.
  General Pace: Yesterday, Jerry and I were just waiting for a meeting 
to begin and he just mentioned to me how sad he was that his comments 
have caused the furor that they have. There is no doubt in my mind, in 
talking to him, that if he could pick his words more carefully he 
would. There is also no doubt in my mind that he does not see this 
battle as a battle between religions. He sees it as a battle between 
good and evil. He sees it as the evil being the acts of individuals, 
not the acts of any religion or affiliation with religion. So clearly, 
in my very short conversation with Jerry, which he instigated, he is 
sad that this is the way that it is, but he is anxious to have the 
investigator do the investigator's job.
  I commend the Secretary of Defense, and I commend General Boykin. I 
think Senator Levin and I took the proper step. We had the option to 
put this letter into the public domain on Friday, but purposely I said 
to my colleague and to others--by the way, there were a number of 
others, as Senator Levin and I just discussed, on his side of the aisle 
and on my side of the aisle who expressed concern and asked of us, as 
the chairman and the ranking member, what we intended to do. Well, we 
made this recommendation and we purposely withheld it from public 
delivery, public release, as a consideration to the Secretary, such 
that he might take it into consideration as he dealt with this 
matter. I just presume he saw it and that he did take it into 
consideration. But I think at this point in time, while we have young 
men and women patrolling the streets in Iraq, Afghanistan, and other 
areas of the world, it is best we try to take this matter, hopefully, 
off the front pages, with the representation to the American public and 
others that the proper authorities are reviewing it--the Inspector 
General of the Department of Defense, and I anticipate my committee and 
indeed perhaps others here in the Senate will review the matter. But in 
fairness to this distinguished officer, such that he can devote his 
full time and attention to dealing with this issue, I am recommending--
not calling for, not demanding but recommending, having spent some time 
in the Department of Defense myself--that without any prejudice this 
officer be detailed from his present position, a position that deals 
with the war on terrorism throughout the world, that he be detailed 
elsewhere temporarily until such time as the Inspector General comes 
back with his report, at which time we can have further deliberations.

  That is in fairness to so many people who are deeply concerned about 
this issue, and indeed the men and women of the Armed Forces, and 
indeed the integrity of the military itself. When an officer wears that 
uniform and he stands before the people of the United States, or 
wherever he may be, and he makes remarks, people see in that uniform 
that he has been appointed to that position by the President of the 
United States of America and confirmed by the Senate of the United 
States. In that confirmation process we look at the professional 
credentials, we examine all the material that comes before us, but 
implicit in our confirmation by this body, the Senate, pursuant to the 
Constitution, implicit therein is that we feel this individual should 
be promoted and given the rank to which the President has appointed him 
because we have confidence in him that he has good, sound judgment--I 
repeat that: good, sound judgment--in the exercise of his freedom to 
speak.
  That is the question that remains to be answered. He is in a very 
high-profile position with global responsibilities on the war on 
terrorism. I think temporarily, without any prejudice whatsoever, 
asking him to take on another assignment until this matter is fully 
examined and studied and a report made to the Secretary of Defense and 
the Senate is in the interests of all concerned and indeed this 
officer.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Madam President, I want to express my appreciation for 
the thoughtfulness of Senator Warner. He has served his country for 
many years as a marine, a naval officer, as a Secretary of the Navy, 
and now the Senate chairman of the Armed Services Committee. I know he 
takes this issue very seriously.
  I do believe this officer should be entitled to a hearing, have an 
inspector general look at these very delicate matters. When we talk 
about people's personal religious beliefs as to whether one theology is 
valid and another one is not, we wouldn't expect a person of the 
Islamic faith to ratify the Christian faith or other faiths to say they 
validate the faith of someone else. That is just the way we see things, 
as we deal with matters of personal faith.
  But I think it is a delicate matter, particularly when a person is in 
uniform. I think going forward with a look at this and some thoughtful 
analysis as to what would be the right procedure would be appropriate. 
I thank our chairman of the Armed Services Committee for his comments.
  Mr. WARNER. I thank my colleague because you formerly served as 
attorney general. You have full comprehension of the importance of 
being fair to everyone. This recommendation I have is in the sense of 
fairness. I think it is in the interest of all, and I thank the Senator 
for his remarks.
  Mr. SESSIONS. I think it would be good for all of us to think a bit 
about the subject and what would be appropriate to ask of an officer in 
a church proceeding and whether uniforms make a difference and those 
kinds of things.

[[Page S12950]]

  I was going to speak about the class action reform. Did the Senator 
from Illinois have some comments?
  Mr. DURBIN. If the Senator from Alabama would yield for a moment, I 
would like to address the same issue and then yield back to him to 
discuss class action reform.
  Mr. SESSIONS. Would 5 minutes be sufficient? I am pleased to yield to 
the Senator from Illinois.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Madam President, I commend the Senator from Virginia. 
There are times when he and I have come together and I think good 
things have happened. I think this may be such a moment. I hope it is. 
I came to the floor to address this issue involving General Boykin, 
fully cognizant of the great contribution which he has made to this 
country in his military capacity over many years, risking his life and 
serving our Nation well, but feeling at this moment in time important 
questions need to be asked and answered about the things he said and 
did. I believe the Senator from Virginia--I do not want to 
mischaracterize his remarks--has suggested he be detailed to another 
position while these important questions are asked and considered and 
answers are brought forward. Am I correct in that conclusion?
  Mr. WARNER. Madam President, the Senator is correct, to simply give 
full and complete opportunity and have him temporarily detailed 
elsewhere. I think until such time as this thing is resolved 
factually--what did happen, what didn't happen--as the Secretary of 
Defense said, he didn't fully have all the facts at his command at this 
point in time and was asked a question. Although I must say I have read 
press accounts where the general was trying to explain what he did say, 
you and I know from experience in public life, when you try to explain 
what you tried to say, you need time out to do a little study.
  Mr. DURBIN. I thank the Senator from Virginia. I do say that is a 
very judicious and thoughtful approach. We want to be fair to this man 
who served his country well, but we also understand his remarks were 
viewed by many in a very negative light at a very critical moment in 
our history. I think what we should ask of everyone in the service of 
our country is what the President has asked, and that is to keep it 
very clear ours is a war against terrorism and not a war against the 
Islamic faith or people who adhere to it. We could no more expect 
General Boykin to embrace the Islamic faith and its principles than we 
would expect someone of the Islamic faith to accept Christian 
principles or Jewish principles and values. But we can expect every 
member of our Government to be tolerant and sensitive of other people's 
values and principles. I think that is a standard we should all live by 
in public life, whether appointed or elected.
  I think what the Senator from Virginia has done today is an important 
step forward. I would say his extraordinary service to this country in 
the military and as Secretary of the Navy and in the Senate I think 
means his recommendation will be understood as a heartfelt 
recommendation and taken seriously by the administration. I hope they 
do. I hope they follow his counsel and follow it quickly. The sooner we 
can defuse this matter the better for all, including the general, and I 
think the sooner it will be that we can bring some stability and 
perhaps some coherence to our position so we can fight this war on 
terrorism in terms all Americans, including the President, agree with.
  I thank the Senator from Virginia.
  Mr. WARNER. I thank my colleague.
  Muslims and Christians and people of other faiths all over this world 
are united in this fight against terrorism. We must make it very clear 
of our mutual respect for one another's faith.
  I yield the floor.
  Mr. DURBIN. I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. I thank the Senators for their comments. I fail, but I 
attempt to take my faith seriously. I respect followers of the Islamic 
faith who take their faith seriously, who study the scriptures and act 
in accordance therewith. We may disagree, but we respect one another. 
That is the way I was raised as an American, to respect one another's 
faith. I think respect for one another's faith makes me somewhat 
sympathetic to General Boykin, who goes to a church and shares some of 
his insights and beliefs. But then again he is an officer of the United 
States and has a position in a time of conflict, in a sensitive period, 
and maybe at one point apparently he may have worn the uniform while he 
made those remarks.
  I think it is appropriate for us to take some time out and look at 
this. I thank the chairman for that.
  Madam President, we are now to undertake and begin debate on the 
motion to proceed to the Class Action Fairness bill, S. 1751.
  Unfortunately, we are seeing a trend in which there are more and more 
pieces of legislation that deserve an up-or-down vote being subjected 
to a filibuster and 60-vote procedural hurdles. That is unfortunate. We 
should proceed with this legislation and discuss it and not be 
obstructive about going forward with it.
  The Class Action Fairness Act represents modest reform. It is a 
restrained bill that will address a number of very serious problems 
with the current status of class action lawsuits such as the plaintiff 
receiving coupons while trial lawyers pocket millions of dollars in 
fees.
  This body has a duty to address problems with the legal system. It is 
something we are required to do and should not have to overcome 60-vote 
hurdles. I am disappointed we may have to overcome another filibuster 
as we move forward.
  Obstructionism is always available, but I don't believe there is 
strong opposition to this bill. There is bipartisan support. If we let 
the debate go forward and people honestly consider whether it ought to 
be law or not, we would be willing to accept an up-or-down vote. That 
is a concern I express.
  The distinguished Senator from Delaware is here. He is very 
thoughtful on these matters. I know he would like to speak for 
approximately 15 minutes. I yield the floor.
  The PRESIDING OFFICER (Mr. Alexander). The Senator from Delaware.
  Mr. CARPER. I express my thanks to the Senator from Alabama for his 
kind words. I appreciate the opportunity to work with him on these and 
other issues. Tomorrow morning around 11 o'clock, an important vote 
will occur in the Senate. At the heart of this vote, for me, is to 
determine whether or not we go forward, Democrats and Republicans, to 
actually take up and debate the way we allow people who are harmed, 
hurt, or injured--in many cases, by business--to be compensated.
  Most would agree that if you or I, as individuals, are damaged by the 
actions of another or by the actions of a business, we should be made 
whole. I believe the same protection should inure to a group of people 
or a class of people who may be harmed or damaged in some way by the 
actions or products of some business.
  Over time we seem to have lost our sense of balance in the way we 
litigate class actions. When our Founding Fathers came up with our 
Federal courts, we did not have class actions. We did not have mass 
actions. We did not have private attorneys general actions. We did not 
have any of that. We had a concern on the part of our Founding Fathers 
that if a group of people in one State were harmed by a business or 
person in another State, maybe we ought to have a Federal court system, 
to ensure that the case is not heard by the potentially biased judges 
in the injured party's home state.
  The trial bar gets a bad rap in a lot of quarters, but I believe they 
play a very helpful and constructive role in this country. They 
sometimes do not get credit for that. One of the things they do is try 
to make sure, where people are harmed, they get compensated.
  Our system has lost the right kind of balance. Too often today--not 
always but too often--we end up debating national class action not in a 
Federal court but in a local court--in some cases, in a court where the 
judges are locally elected and the defendant is placed at a 
real disadvantage. I will give an example because this does not make 
much sense to me.

  Say I were poisoned by food we bought from a fast food restaurant. 
Say I decided to sue. If the amount in dispute were less than $75,000, 
my case could be heard in State court. If I sue for more than $75,000; 
it would be heard in a Federal court.
  On the other hand, if thousands of people, or tens of thousands of 
people,

[[Page S12951]]

bring a class action against that same restaurant for some alleged sin 
they have committed--and it may involve tens of millions of dollars--it 
may well end up in a State court, not in a Federal court. That does not 
seem right to me.
  There has been an effort to try to establish or reestablish the sense 
of balance in these kinds of cases. It started about 5 years ago, in 
the 105th Congress. Over time, I believe a more thoughtful approach has 
evolved and has led to the introduction of a bill this year, S. 274, 
called the Class Action Fairness Act. That bill has gone through 
hearings, I think in the last Congress, and hearings in this Congress. 
It has been through regular order. The Senate Judiciary Committee has 
had an opportunity to hold hearings, to debate the bill, to vote on 
amendments to the bill and ultimately to report the bill out.
  There are a number of aspects of the legislation that recommend it to 
me. I am a cosponsor of the legislation, and it enjoys bipartisan 
support. Among the original cosponsors are Senator Grassley and Senator 
Kohl of Wisconsin. The bill was reported out on a bipartisan vote. More 
Republicans voted for it than Democrats, but it had some bipartisan 
support.
  I will discuss how the class action system will work in our country 
if this legislation or something akin to it becomes law. First, it is 
not a perfect bill. I have an amendment or two that I want to offer to 
perfect the legislation. I noticed Senator Lieberman does as well. I 
have talked to other colleagues, including Senator Landrieu, who have 
ideas for amendments they want to offer. It is a work in progress. It 
is one that can be improved and should be improved.
  In order for us to be able to offer our amendments to the bill to 
perfect and improve it, we have to go through a vote tomorrow at 11 
o'clock on the motion to proceed, which, understandably but 
unfortunately, is opposed by leadership on my side. The fear, the 
concern, is we will get on to the bill and the opportunity for those 
who would like to offer amendments may not end up to be realized; the 
opportunity for us to offer amendments, to be fairly heard and vote 
will not occur. Therefore, they are reluctant to go to the bill without 
some further assurance.
  In the end, the only way we know for sure if our amendments are going 
to get a fair hearing, and have the opportunity to be debated and 
adopted, is to go to the bill, to take it up. I hope tomorrow, when we 
vote, that is what we will vote to do.

  Let me talk briefly about how I understand our legal system would 
work a little differently if this were to become the law of the land.
  First, the question is, Is this litigation going to be heard in State 
court or Federal court? Under the legislation, for a matter to be heard 
in Federal court or for the defendant in the case to be able to argue 
successfully that a case ought to be in Federal court as opposed to a 
State court, there would have to be a certain dollar amount at stake, 
and it would be $5 million. If it is under $5 million, it will be in 
State court.
  Second is the number of people in the plaintiff class. If you have 
less than 100 people in your plaintiff class, this litigation is going 
to be heard in a State court.
  Third, if a case is filed in a State court, and the defendant says, 
no, this ought to be in a Federal court, and they go to Federal court 
to try to get it removed to the Federal court, and the Federal court 
says, no, this remains in the State court, then it goes back to the 
State court. And unless the plaintiffs change the plaintiff class, or 
unless the plaintiffs somehow change their complaint, it is going to 
stay in State court.
  There are no caps on pain and suffering, no caps on punitive damages, 
no caps on noneconomic damages, no caps on attorney fees. We leave 
joint and several alone.
  In some States they apparently do not have class actions; they have 
mass actions--a few States such as West Virginia, Mississippi--where 
they aggregate a number of individual claims. The question is whether 
those are more properly heard in a Federal court or a State court.
  I think Senator Specter has negotiated a pretty good compromise in 
those instances. In some cases, if it were a major incident, such as an 
explosion or a fire or a catastrophic incident that involves people in 
one State, then it would basically be handled in State court; if not, 
it would be in a Federal court.
  Senator Feinstein had an issue on these private attorneys general 
cases, which apparently you or I could stand up or any citizen can 
stand up and say they represent a group of people on a particular wrong 
that has been committed. In some cases that is the way they really go 
about class action. Her amendment was adopted as part of the final 
agreement. If the bill comes to the floor, the private attorneys 
general agreement would be within the purview of State courts, not the 
Federal court.
  Senator Feinstein also offered I think quite a thoughtful amendment 
and one that addresses a concern raised by the Judicial Conference that 
we heard discussed earlier. My colleagues will recall the Judicial 
Conference is actually headed up by the Chief Justice of the United 
States, Chief Justice Rehnquist. But they, from time to time, will 
opine on things that are before us and maybe share their opinions with 
us. They suggested, when asked back in March, that there were some real 
concerns that they had with S. 274, and that it would cause a lot of 
cases that are now heard in State courts to end up flooding the Federal 
courts. They suggested that we ought to do something about it, that the 
Judiciary Committee ought to do something about it.
  Well, the Judiciary Committee did something about it. What they did 
is they adopted the Feinstein amendment in their markup back in April. 
The Feinstein amendment says basically this. It says: The plaintiff 
class, the people who are bringing the grievance, if two-thirds or more 
are from the same State of the defendant, automatically that case is 
heard in the State court. It says, if fewer than one-third of the 
plaintiff class are from the same State as the defendant, automatically 
it is heard in a Federal court. If the percentage of the plaintiff 
class is somewhere between one-third and two-thirds who are from the 
same State as the defendant, then it is up to a Federal judge in that 
area to make the final decision based on criteria. There are five 
pieces of criteria spelled out in the bill.
  So, again, if there are more than two-thirds of the plaintiff class 
in the same State as the defendant, it is a State matter; if fewer than 
a third of the plaintiffs from the same State as the defendant, it is 
in the Federal court; and between one-third and two-thirds are from the 
same State as the defendant, it is kind of a jump ball. The Federal 
judge in the area is asked to make the decision based on the criteria 
spelled out in the bill.

  Interestingly, the Judicial Conference came back after this amendment 
was adopted and the legislation was about to be reported out and they 
seemed to suggest, in a letter that they sent to the ranking Democrat 
on the Judiciary Committee, that their earlier concerns had been 
addressed. I think the Judicial Conference sent a similar letter to the 
folks in the House of Representatives suggesting the same thing in the 
month of May.
  A concern has been raised, a legitimate concern, about what 
percentage of cases are now going to end up in Federal court as opposed 
to State court under this bill. Some pretty smart people actually took 
the data from the last 5 years in States where they collected this data 
to look to see--in States such as New York, Massachusetts, Maine, where 
data is available--what percentage of cases in those States over the 
last 5 years would have ended up in a Federal court as opposed to a 
State court. Sixty percent or more of the cases in those states in the 
last 5 years would still have ended up in a State court. I think that 
is a good point to be mindful of.
  I do not know if any of us going forward could say what the future is 
going to be, but we should sure look back over the last 5 years and say 
if this were the law of the land, again, 60 percent or more of the 
cases would have stayed in State court.
  Let me close with this thought, if I could. Senator Lieberman is 
prepared to offer an amendment, I think a real good amendment, to the 
bill that addresses an issue for Connecticut. It is

[[Page S12952]]

similar to an issued raised for Indiana, and similar to an issue I have 
heard raised, I think, for New Mexico.
  This is the issue that was raised. Let's say in Connecticut you have 
a river that has been polluted by a plant that damages people in 
Connecticut under Connecticut law. The plant is in Connecticut but 
owned by a company in another State. Again, the people who are damaged, 
the plaintiff class, if you will, are in Connecticut. The damage was in 
Connecticut and there are two defendants, one in Connecticut--the plant 
that did the pollution--and the owner of the plant that is in another 
State.
  What Senator Lieberman has come forth with and said is, in a case 
such as that, it ought to really be in a Connecticut court. I think he 
is right.
  Senator Lieberman will offer an amendment that says in those cases 
State law should prevail. They should not be moved someplace else. 
State law should prevail. He will offer that amendment if we have the 
opportunity--if we have the opportunity--to actually go to the bill, 
take it up, and debate it. In order to do that, we have to vote 
tomorrow for the motion to proceed.
  There is a real test that is going to take place here. If we actually 
vote for the motion to proceed and go to the bill, there is a burden of 
proof that rests on our colleagues on the other side of the aisle. They 
need to act in good faith. We need to actually have the opportunity to 
offer our amendments. We need to have the opportunity for a fair and 
open debate on reasonable perfecting amendments. If we do, then I think 
it may act as a confidence builder and maybe establish a measure of 
trust around here where, frankly, there is not too much. On the other 
hand, if our Republican colleagues take a different course and seek to 
cut off debate and reasonable amendments and not support reasonable 
amendments, perfecting amendments, then that sends a different message.
  I think there is more at stake for this body than just whether or not 
we are going to take up a class action bill. There is a whole lot more 
at stake. My hope is tomorrow, when we vote, if we vote to proceed, 
that our colleagues on the other side will keep that in mind and that 
their actions in the days or week or so ahead will reflect as much.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. VOINOVICH. Mr. President, I rise today to speak on behalf of the 
Class Action Fairness Act, a bill to stop unfair and abusive class 
action settlements that ignore the best interests of injured 
plaintiffs. It tickles the cockles of my heart that this is the first 
time I can recall that my colleague from the State of Delaware and I 
have spoken out on the same position on a bill before the Senate. 
Senator Carper and I have worked together for many years in the 
National Governors Association. We have been looking for an opportunity 
to collaborate and support legislation on the floor of the Senate. It 
is a particular pleasure for me to follow the Senator from Delaware. We 
both believe this is good legislation for the people in our districts 
and for our country.
  This legislation is sorely needed to help people understand their 
rights in class action lawsuits and protect them from unfair 
settlements. It is also needed to reform the class action process which 
has been so manipulated in recent years that U.S. companies are being 
driven into bankruptcy to escape a rising tide of frivolous lawsuits 
and has resulted in the loss of countless numbers of jobs, especially 
in the manufacturing sector.
  I believe that for the system to work, we must strike a delicate 
balance between the rights of the aggrieved parties to bring lawsuits 
and the rights of society to be protected against frivolous lawsuits 
and outrageous judgments that are disproportionate to compensating the 
injured and made at the expense of society as a whole. I believe that 
is what this legislation does, and I am proud to be a cosponsor of it.
  Since my days as Governor of Ohio, I have been very concerned with 
what I call the ``litigation tornado'' that has been sweeping through 
the economy of my State and throughout the United States. Ohio's civil 
justice system is in a state of crisis. Ohio doctors are leaving the 
State, and too many have stopped delivering babies because they cannot 
afford liability insurance. Ohio businesses are going bankrupt as a 
result of runaway asbestos litigation. Today, one of my fellow Ohioans 
can be a plaintiff in a class action lawsuit that she doesn't even know 
about that is taking place in a State she has never visited.
  In 1996, as Governor of Ohio, I was proud to sign H.B. 350, strong 
tort reform legislation that became law in Ohio for a while. It might 
have helped today's liability crisis, but it never got a chance. In 
1999, the Supreme Court of Ohio, in a politically motivated decision, 
struck down Ohio's civil justice reform law, even though the only 
plaintiff in the case was the Ohio Academy of Trial Lawyers, the 
personal injury bar's trade group. Their reason for challenging the 
law: They claimed their association would lose members and lose money 
due to the civil justice reform laws that were enacted. That is how 
they got standing in court. It was an incredible situation that I hope 
we never see again.
  While we were frustrated at the State level, I am proud to have 
continued my fight for a fair, strong civil justice system in the U.S. 
Senate. To this end, I worked with the American Tort Reform Association 
to produce a study titled ``Lawsuit Abuse in Ohio'' that captured the 
impact of this rampant litigation on Ohio's economy with a goal of 
educating the public on the issue and sparking change. Can you imagine 
what this study found? In Ohio, the litigation crisis costs every 
Ohioan $636 per year, and every Ohio family of four $2,500 per year. 
These are alarming numbers. This study was released on August 8, 2002. 
Imagine how these numbers have risen in 1 year. In tough economic 
times, families cannot afford to pay over $2,500 to cover other 
people's litigation costs. Something needs to be done, and the passage 
of this bill will help.

  This legislation is intended to amend the Federal judicial code to 
streamline and curb abuse of class action lawsuits, a procedural device 
through which people with identical claims are permitted to merge them 
and be heard at one time in court. In particular, this legislation 
contains safeguards that provide for judicial scrutiny of the terms of 
the class action settlements in order to eliminate unfair and 
discriminatory distribution of awards for damages and prevent class 
members from suffering a net loss as a result of a court victory.
  This bill is designed to improve the handling of massive U.S. class 
action lawsuits while preserving the rights of citizens to bring such 
actions. Class action lawsuits have spiraled out of control with the 
threat of large overreaching verdicts holding corporations hostage for 
years and years. In fact, America's civil justice system had a direct 
cost in 2001 of $205.4 billion or almost 2.5 percent of GDP. That is a 
14.3-percent jump from the year before, the largest percentage increase 
since 1986. Thousands of jobs have been impacted by that litigation.
  I emphasize to my colleagues that this is not a bill to end all class 
action lawsuits. It is a bill to identify those lawsuits with merit and 
to ensure that plaintiffs in legitimate lawsuits are treated fairly 
through the litigation process. It is a bill to protect class members 
from settlements that give their lawyers millions while they only see 
pennies. It is a bill to rectify the fact that over the past decade, 
State court class action filings increased over 1,000 percent. It is a 
bill to fix a broken judicial system.
  I am a strong supporter of this bill, and I urge my colleagues to do 
the same.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I understand the Senator from Illinois 
would like to speak on this subject. First, I ask unanimous consent 
that Senator Voinovich be added as a cosponsor to S. 1751, the Class 
Action Fairness Act.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. I ask the Senator from Illinois how much time he thinks 
he might need?
  Mr. DURBIN. Twenty minutes.
  Mr. SESSIONS. I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, this is an important debate. The average 
person listening to it may wonder why.

[[Page S12953]]

First you have to understand what a class action lawsuit is. I will try 
to define it in the simplest of terms. It is when not just one person 
but a group of people believe that they have been wronged, either 
financially or otherwise, and go to court and bring a lawsuit against a 
corporation, for example. So you have a large group of plaintiffs 
bringing the lawsuit, usually suing one defendant, a corporation. And 
oftentimes, this large group of people who have been harmed don't live 
in the same State. They may be from across the Nation. And so they have 
to decide where they are going to file the lawsuit. And that is what 
this comes down to.
  You say to yourself: Why is it so important to understand where you 
are going to file a lawsuit? Well, when I explain it from my point of 
view, perhaps you will understand why so much time and so much lobbying 
is going on behind this whole question about where you can file your 
lawsuit.
  First understand this: In my State of Illinois and virtually every 
other State in the Union, if you are a business and you want to do 
business in Tennessee or Illinois or Alabama or South Carolina, you 
can't just start up your business. The laws of your State will require 
you to register in that State that you are going to do business in. In 
my State of Illinois you register so they know you are there, who you 
are, what your home headquarters happens to be, and where it is 
located. Then you also have to do something in my State and most other 
States: You have to say where you can be served process. In other 
words, if you are sued by someone in the State of Illinois, and you are 
a registered corporation, you have already told the State of Illinois 
where they can find you.
  Why is that? Because the understanding is, if you want to have the 
advantage of selling your product in Illinois to Illinois citizens, you 
also have to submit yourself to the jurisdiction of Illinois law. That 
law will govern your business in the State of Illinois.
  It is very basic. If, in fact, someone believes that your product is 
defective, or you have done something wrong, they have to know where to 
find you. You don't want a situation where the corporation is 
unidentifiable, unapproachable. So every company--major companies in 
particular--understands the rules. If you want to do business in 
Illinois, you submit yourself to the jurisdiction of Illinois law.
  Now let's go back to the earlier example. This group of plaintiffs, 
this class, decides they are going to sue XYZ Corporation for something 
wrong. Where will they sue them? The corporation has already said, by 
virtue of doing business in Illinois, that we are prepared to be served 
process. We are prepared to submit ourselves to Illinois laws. We are 
prepared to go before Illinois courts. That is a pretty simple outcome. 
If you do your business in Illinois, you submit to that jurisdiction. 
You submit to those courts. And if people want to sue you, they know 
exactly where to find you to bring you into an Illinois court and let 
the court decide whether the plaintiff recovers or doesn't recover.
  Now, that is the simplest explanation of jurisdiction that I can 
remember from law school so many years ago and how it applies to 
States. In Federal courts it is a little different. If you have a 
defendant from one State and a plaintiff from another State, if you 
have a certain amount in controversy--I think it is $75,000--you have 
diversity of jurisdiction, so you can go into the Federal courts.
  In this case, this whole bill is about in which court you can file a 
class action lawsuit. You say to yourself, why does it make any 
difference if you are going to go into a State court in Illinois or 
into the Federal court in Illinois for your class action lawsuit? Why 
would it make any difference? The substantive law is supposed to be the 
same Illinois law. Why do you want to go to Federal court?
  Therein lies the reason for the bill. The people who are pushing this 
legislation understand that Federal courts are more conservative, less 
likely to let people have a lawsuit, to certify a class. When it comes 
to liability, Federal courts are more restrictive in liability than 
State courts.
  Don't take my word for that. I will tell you about several cases. 
This one is Birchler v. Gehl. Federal law discourages Federal judges 
from providing remedies for violation of State law. The Seventh 
Circuit--where Illinois sits--stated:

       When we are faced with opposing plausible interpretations 
     of State law, we generally choose the narrower interpretation 
     which restricts liability, rather than the more expansive 
     interpretation which creates substantially more liability.

  That was a 1996 case. Go to Federal court and it is less likely your 
class will be certified and you will receive any damages.
  Another case is Accord Werwinski v. Ford Motor Company, a 2002 case. 
A class action was brought by purchasers of Ford vehicles. The cars 
Ford sold had defective transmissions that cracked prematurely and 
inadequately lubricated gears that caused numerous car failures such as 
sudden acceleration or shifts into reverse. Plaintiffs who bought the 
cars presented evidence that Ford knew about this defect long before it 
was corrected but continued selling the cars. The case was originally 
filed in State court, but Ford Motor Company removed it to Federal 
court which dismissed the claims of the people who bought the Fords. In 
affirming the court's decision to dismiss the class action, the Third 
Circuit stated that when faced with two competing interpretations of 
State law, a Federal court ``should opt for the interpretation that 
restricts liability, rather than expands it. . . .''
  Those are two cases in the Federal law that explain why we are here 
today. The idea is to move the cases out of State court in the hopes 
that the defendant corporation that has been sued will have the case 
dismissed or, if there are damages, they will be reduced. It is not a 
question of whether they are liable or guilty; it is a question of 
where they are going to get the best deal.
  So the bill before us is an effort on behalf of the corporation 
defendants across America to push these cases into the Federal court. 
So for all the good reasons given for this class action reform, the 
real reason is that defendant corporations don't want to be held 
responsible for their misconduct. If held responsible, they want to pay 
less money. That is what it comes down to. That is what this is all 
about. They want to protect themselves and limit their liability.

  Under current law, Federal diversity jurisdiction for a class action 
doesn't exist unless every member of the class is a citizen of a 
different State from every defendant, and every member of the class is 
seeking damages in excess of $75,000.
  This bill would create a ``minimal diversity'' standard in two ways. 
In other words, you can get into Federal court. First, the amount-in-
controversy requirement is met if the total amount of the damages at 
stake exceeds $5 million, notwithstanding the amount of damage suffered 
by each individual plaintiff.
  Second, diversity can be achieved one of three ways: any member of a 
class of plaintiffs is a citizen of a State different from any 
defendant; two, any member of a class of plaintiffs is a foreign state 
or a citizen or a subject of a foreign state and any defendant is a 
citizen of a State; three, 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.
  This is what it gets down to. We are trying to find, through this 
bill, ways to move more cases into Federal court. So what does the 
Federal court system think of this idea?
  Well, the man who is at the top of the Federal court system, Chief 
Justice William Rehnquist, in a rare, rare occurrence, sent a letter to 
Congress saying: Don't do this; don't push these cases into Federal 
court. We don't have the expertise, the judges, or the time to consider 
the class action cases coming out of State courts into Federal court. 
It is understandable.
  The Federal court's first responsibility is in criminal cases, such 
as on the war on terrorism, and all the concerns we have about criminal 
procedure and criminal prosecution. That is their first responsibility.
  Then they have their own civil docket, where you have individuals 
suing one another, and companies suing one another. Chief Justice 
Rehnquist says: Do me no favors, U.S. Senate; don't push all these 
class action cases into the Federal courts; we cannot handle them.

[[Page S12954]]

  You would think, would you not, that some of the Members of the 
Senate, when coaxed by the Chief Justice of the Supreme Court not to 
push all these cases into Federal court, might stop. But they will not. 
The reason they are pushing this bill is they have their eye on the 
prize. The prize is that the corporate defendants found guilty and 
liable want to be protected from liability or want their liability 
reduced. They don't care what the Chief Justice has to say. They 
certainly don't care what the consumers have to say.
  I have some examples of class action cases so you can understand for 
a minute why these cases should be of concern to everybody. These are 
not cases that involve large corporations alone; they involve a lot of 
ordinary citizens.
  To give you an example, do you remember the Jack-in-the-Box 
restaurant scandal a few years back? In that scandal, it was found that 
Jack-in-the-Box restaurants were selling products which had been 
undercooked and, because of this, they were adulterated, dangerous, and 
there were children dying as a result. So a class action lawsuit was 
brought against the company that owned Jack-in-the-Box, Foodmaker, 
Inc., on behalf of some 500 victims--mainly children who had been to 
Jack-in-the-Box and got sick. Those 500 victims came together to hold 
Jack-in-the-Box, a Washington State corporation, liable. The court 
decided, yes, it should be held liable to the tune of $14 million for 
500 plaintiffs.

  Now, what this bill tries to do is to move that case out of the State 
court in Washington and into a Federal court so the amount of the 
verdict--if there was one--would be considerably less. That is good for 
the bottom line of that corporation. Is it fair to the families who 
went to the Jack-in-the-Box restaurants in States across America and 
thought they were going to get a wholesome product, safe for their 
children to eat, and then the parents watched their children die from 
E. coli, and not have their day in State court, where Jack-in-the-Box 
said they were submitting to the jurisdiction? I don't think so.
  There was a class action lawsuit in California against Beech-Nut 
Corporation and its parent company, Nestle. They were guilty of selling 
something they called apple juice which, after being examined, turned 
out to be nothing more than sugar water. Parents were buying what they 
thought was nutritious apple juice for their infants, and the company 
was selling them fraudulently a product marked apple juice but was 
literally sugar water and a little coloration. Blame went back and 
forth between companies and suppliers, and the court ultimately decided 
these two companies, Beech-Nut and Nestle, were liable to the tune of 
$3.5 million to be reimbursed to consumers across America.
  What companies such as Nestle are trying to do with this bill is 
reduce their liability and make it even more difficult for parents, 
each of which may have been out only $10 or $20, but each had given a 
product to their children that was misrepresented and fraudulently 
labeled. This is designed to help those powerful special interest 
groups and corporations at the expense of consumers such as those 
parents whose children were receiving this adulterated product.
  Ford Motor Company had a class action to replace defective ignition 
systems in millions of cars that stalled often on the highways.
  Mobil Corporation entered into a $14 million settlement agreement in 
a class action suit because a fire at a refinery in New Orleans 
resulted in sending volatile and hazardous compounds into the air and 
it caused great health damage to the people living around them.
  Blue Cross and Blue Shield paid a $14.6 million settlement in a class 
action suit because they fraudulently billed individuals and failed to 
pass on savings to consumers. They ended up paying for it.
  American Airlines breached a contract with frequent fliers when it 
retroactively changed rules for redeeming mileage awards.
  The point is that each and every one of these lawsuits, for each 
plaintiff, may seem small. But compounded, they represent a large 
amount of liability for the corporation and they represent, in fact, a 
large number of people, each with a small recovery.

  Frankly, I think there are things we can and should do to make class 
action suits better in this country. John Breaux of Louisiana, who has 
been a friend of business and has worked with them over the years, has 
a good substitute bill. Many who have called me from the business 
community say I urge you, for goodness' sake, to take a look at the 
Breaux substitute. It is a sensible bill. It will clean up some of the 
worst abuses in class action lawsuits. But it is not going to get into 
this game-playing that is suggested in this bill that allows defendant 
corporations to literally pick the Federal court they want to go into 
in the hopes they will have reduced liability or no liability. That is 
what it comes down to.
  I think this debate before us is a lot more important than some lead 
to believe. Some suggest we are merely modifying and reforming tort law 
in America. It is much more. It is a question of whether the courthouse 
door is open for the average citizen. It is a question of whether those 
people, wronged by giant corporations, have an opportunity for a day in 
court. Those who back this bill want to close that courthouse door and 
make it difficult to open. They want these plaintiffs to end up in a 
Federal court where they are less likely to succeed, and if they do 
succeed, they will have less in compensation. That to me is unjust and 
that is the reason we should oppose this legislation.
  I hope my colleagues will think long and hard before they sign on to 
this bill thinking it has no impact. It has a great impact on a lot of 
innocent people who deserve a day in court. Justice is at stake here. I 
urge my colleagues not to accept the easy argument that this is a 
simple reform. It goes to the heart of justice in this country, and it 
does not affect the real abuses in the system which I believe the 
Breaux bill does.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I want to make one thing crystal clear: 
I am not here to provide any unfair benefit to any corporation or any 
defendant. We want fairness and justice in the legal system. But in a 
major class action case, under the current state of the law, a 
plaintiff lawyer who represents perhaps potential plaintiffs all over 
America--let's say it is a national case--can virtually choose any 
county in America to file the lawsuit. He can choose some counties that 
have only one judge, and perhaps he knows precisely what that judge 
thinks about plaintiff lawsuits. Or maybe he thinks that county has a 
most favorable jury.
  Let me state what the Constitution says about it. Sure, a corporation 
has to register to do business in a State, but the Constitution, in 
article III, section 2 of the courts' power says this:

       The judicial Power shall extend to all Cases, in Law and 
     Equity . . . between Citizens of different States. . . .

  And corporations are considered domiciled in that place of domicile. 
Fundamentally, what has happened over the years is we have eroded the 
constitutional protection of diversity by rulings that allow plaintiffs 
to sue not only the foreign corporation from another State, but to sue 
some entity also as a defendant in that State, and the courts have 
concluded you have to have total diversity before you can remove it to 
Federal court. That has been a problem, allowing the real payor, the 
real target to be subject to jurisdiction in virtually any county in 
the country.
  I am not here for any injustice. I think we have a pattern of 
injustice going on in class action lawsuits. We can make them better. 
They would be better in a more objective tribunal of Federal court 
where judges have lifetime appointments. They are not so tied to the 
plaintiff lawyer who may go to church with them or have contributed to 
their campaign or the jurors might not be buddies with some of the 
folks, and you have a more objective court. That is just a fact. That 
is why the Founding Fathers said what they said.
  In sports we talk about home cooking. I know the hometown the 
Presiding Officer is from in Tennessee. It is such a wonderful place. 
It would treat foreigners just as fairly as local people, but most 
communities tend to favor the local guy from somebody

[[Page S12955]]

from out of town. That is why we have it set up so Federal judges hear 
these cases and give a little more objectivity, although the judge is 
from the local community, at least from the State, and the jurors are 
from the region. That is what we are about.
  This bill would also fix some other situations. It would eliminate 
the coupon settlements. It would eliminate class notices that cannot be 
understood. The letter goes out to all the class members in language so 
complex nobody can understand. It eliminates negative awards. We have 
actually had cases in which the so-called plaintiffs, not even knowing 
they are plaintiffs, get a bill for attorneys fees and costs. It would 
protect against high awards for one group because they are from one 
area of the country, and it would eliminate the payment of bounties for 
lawsuits and help knock down some of the blackmail that has been going 
on: Filing these huge lawsuits costing so much money and embarrassing a 
defendant so they feel forced to pay rather than litigate for years at 
a very high cost.
  Mr. President, those are the remarks I wish to make at this time. I 
will have some more later. I see the distinguished Senator from South 
Carolina is here, Senator Graham, who is an experienced litigator in 
his own right. I know he wants to speak on this subject.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM of South Carolina. Mr. President, I will be brief. I wish 
to speak about class actions and echo what my friend from Alabama said. 
I have tried very hard during my time being a legislator at the State 
and Federal level to make sure when legal reform is accomplished it is 
done so in a balanced way.
  I am not a big fan--I think many of my colleagues know this--of the 
Federal Government taking over State legal systems. If you can do it at 
home, it is better to do it at home. I am not a big fan of deciding 
what is fair before the jury meets. We have honest differences on some 
of those issues.
  Having said all that, there is a huge need for legal reform. I cannot 
tell you one system in America that really doesn't need to be reformed, 
the legal system included. My friend from Alabama is absolutely right. 
What we are trying to do today is correct an abuse. The Constitution, 
as he read to us, envisioned a dynamic where we would have two people 
from different States and we would not want to put one person in the 
other person's backyard. The Constitution has survived so long and so 
well, and it spoke to that and said: Let's take that into Federal 
court, a neutral side.
  As the diversity clause of the Constitution has been interpreted, it 
requires complete diversity of all plaintiffs and all defendants. About 
100 years later, maybe 200 years later--I don't know when class action 
lawsuits came into being--there is another way of suing people. It has 
its place in our society to bring a bunch of people affected by a 
similar event in different places to try as a unit rather than doing 
hundreds or thousands of individual cases. But this class action 
concept flies in the face of why the Constitution speaks about 
diversity.
  My friend from Alabama is exactly right. It is being abused. We have 
a situation where you may have many plaintiffs throughout the country 
with a single defendant, and it allows people to go into an area that 
is equivalent to home cooking. It really destroys the purpose of the 
diversity provisions in the Constitution. What we are trying to do is 
correct that. There are no damage limitations. There are no limitations 
on anybody making a claim at all. If you buy the idea this is unfair, 
then you buy the idea that the Federal court is unfair; that you can't 
get a good hearing by a Federal judge. I think that is absolutely 
wrong.
  Justice Rehnquist has a problem on his hands. He has a lot of cases. 
He has a lot of overworked judges, and I am going to get to that in a 
minute. I have a way to help Justice Rehnquist. There are a bunch of 
people who need to help him, and I will talk about that in a moment.
  Mr. SESSIONS. Mr. President, will the Senator yield for a question?
  Mr. GRAHAM of South Carolina. Yes.
  Mr. SESSIONS. Is the Senator aware that the letter I believe the 
Senator from Illinois was referring to is actually a letter from the 
Judicial Conference, not from the Chief Justice and, in fact, they have 
written another letter on March 26 of this year in which they actually 
warm up to this idea, and that the legislation, as we are now 
proceeding, answers a number of the questions they had originally?
  Frankly, I know they don't want any more work. Nobody does, I guess. 
But I think many of these problems may have been solved.
  Mr. GRAHAM of South Carolina. Mr. President, I am more informed than 
when I began this debate. That is good for me and good for the public. 
I did not know that. It makes a lot of sense. I find it a little odd 
that people would be opposed to the level that was being portrayed.
  The idea that we should not do this in Federal court, I think we can 
accommodate it. I am all for having more Federal judges, and we will 
talk about that in just a moment, but the bottom line, and the reason I 
am voting for this particular legislation is I think it corrects an 
abuse. It gets us back to the constitutional model that everyone 
envisioned where if you have a diversity--and this is what class action 
is all about, bringing a lot of people together from disparate places 
and groups to try it at one time, in a place that is convenient to 
everybody and in a logical way, that one would want a fair forum. I 
think Senator Feinstein's amendment was perfect. If there are two-
thirds of the plaintiffs in any one State, it stays in State court. If 
there are half the people in one State, the judge can decide whether to 
remove it. If less than a third are in a particular State, then it goes 
to Federal court. To me, that is a perfect compromise. It makes a lot 
of sense.
  I have no problem voting for this because we are correcting abuses. 
This is one way to reform our State legal system.
  Let me give a quick statement about home cooking. I am sure, as the 
Presiding Officer said, in Tennessee people will treat you fairly. I am 
sure that is true in Alabama, and in South Carolina I am sure that is 
true. But there are places that one does need to know who they are up 
in front of. I can remember very well one of the first cases I had as a 
young lawyer getting out of law school. It involved a speeding ticket 
of a friend of mine. We were going to go to magistrate's court. I was 
going to be Perry Mason, and we were going to make this great injustice 
right.
  The highway patrolman was getting ready to testify and he said: 
Hello. And then he said: How are you doing, uncle?
  So the judge was the uncle of the police officer. That struck me as 
not being quite right, and I said: Your Honor, nothing personal, but do 
you mind if we have a jury trial?
  He said: Well, Lord, no.
  He called his wife out, the aunt of the police officer, and she 
called up some of the cousins and we had a jury trial.
  The point is, that was not a good experience. Part of it is true and 
part of it is embellished, but I do not want anybody to go into a 
situation, businesspeople or otherwise, where they believe they are 
being dragged to a place that is unfair, and that is what is going on.
  There is a group of plaintiffs attorneys out there and they have a 
right to use the law to their benefit, and they are using it very 
cleverly to their benefit but in a way that is unfair and is hurting 
our economy. I am glad and proud to support this reform measure because 
I believe it does more good than harm, and that is what we in the 
Senate are all up here to do.
  I ask unanimous consent to go into morning business or speak as if I 
was in morning business.
  The PRESIDING OFFICER. Is there objection?
  Mr. SESSIONS. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The Senator from South Carolina has the floor.
  Mr. GRAHAM of South Carolina. I am trying to change subjects. May I 
make an inquiry to the Presiding Officer? Can I speak about Mr. Pryor's 
nomination as a judge now? Is that appropriate?
  The PRESIDING OFFICER. The Senator is free to speak on any subject he 
wishes.
  Mr. GRAHAM of South Carolina. Mr. President, I am liking these rules.


                      Nomination of William Pryor

  When we are speaking about judges and whether or not we need judges, 
we

[[Page S12956]]

really do. There is a backlog in this country in certain courts, and 
one of the people being nominated by President Bush is William Pryor 
from Alabama. He has been nominated to a seat that has been declared a 
judicial emergency by the Judicial Conference of the United States.
  All I can say about this case is that my friend from Alabama should 
be very proud of the nominee who has been put forward by President 
Bush. Bill Pryor is the attorney general of Alabama. That is a 
political job, and ofttimes the hardest thing for lawyers to do is to 
be a good lawyer when politics are involved because the thing I love 
most about the law is that it is a place to go to where polling does 
not matter and where the popular cause does not always win out.
  Sometimes the unpopular cause has its day and would win in a forum it 
could never win otherwise. Our Founding Fathers were brilliant in 
creating a system where popularity meant a lot in the area that we 
live, but a courtroom is a place where it should be quiet, and there 
are good men and women who are listening to the facts of one's case and 
no matter whether someone is rich, poor, regardless of their 
background, it is a place they can go to be listened to, where maybe 
the crowd would not listen to them. That is what I love so much about 
the law. It is a place where people who could not get a fair shake in 
the popularity world of politics could get a fair shake where people 
would actually listen to their individual claim, where the unpopular 
may have its day.
  When one is attorney general, they get elected by their people, but 
they are also required to enforce the law, and the concept of the law 
is to give people who are not popular their day in court. What I am 
looking for in a judicial nominee is someone who can be very passionate 
about life's issues and questions but can also be very fair. President 
Bush has done us a great favor to send Bill Pryor forward. I have met 
him. I have talked to him. He is the kind of young man I think most of 
us would want our child to grow up to be, the son we would love to 
have. He is academically qualified, rated by the American Bar 
Association as extremely qualified. People from all walks of life who 
know him like him. If my colleagues met him, they would find he is a 
charming young man. He seems to be somebody who is sure of who he is 
and what he believes.

  A lot of this filibustering that is going on now has behind it the 
issue of abortion. Special interest politics is very strong in America, 
and it has its place. Groups need to ban together and speak out about 
things they have in common. I think our job as Senators, when it comes 
time to look at judges, is not to judge somebody on whether they are 
just pro-choice or pro-life. I am a pro-life person, and I agree with 
Bill Pryor. He is a very passionate man. He is a very honest man about 
his pro-life beliefs.
  There will come a day when there will be a Democratic President and 
maybe I will be in the Senate and that Democratic President may send up 
a pro-choice person. I think my job is to see whether or not they can 
take their beliefs on that issue and put them aside when it comes time 
to be a judge.
  All I can say about Bill Pryor is that when he was attorney general 
he had the obligation to review a statute that the State of Alabama 
passed--the Senator may correct me if I am wrong--about partial-birth 
abortion, something we just did today. This is an emotional area. 
People are very emotional about partial-birth abortion. We are evenly 
divided on early-stage abortions, abortions in the early stages of 
pregnancy. It is about 50/50. But when it gets to the seventh, eighth, 
and ninth month, about 75 to 80 percent of Americans say we should not 
be having abortions on unborn children at that stage in pregnancy 
unless the mother's life is at stake.
  We had about 60 Senators today vote for that. For 8 years now, we 
have been voting on that concept. So it is an extremely popular 
concept. A lot of people buy into it who are not strictly pro-life. 
There are some pro-choice people today who voted to ban partial-birth 
abortion. So that is an issue that has a lot of emotion and a lot of 
momentum behind it.
  He read the statute and he issued an opinion that had to make him the 
skunk of the garden party. He issued an opinion that said: I read the 
statute and I do not think it will meet constitutional muster.
  If anyone has talked to him at all, they know he is a very serious, 
pro-life person. So I argue to my colleagues, this is exactly the kind 
of young man or woman they would be looking for to promote, to be able 
to take the politically popular event, put a good legal analysis on the 
event, and make a decision that is not going to sell well. That is 
exactly what I am looking for in somebody to be a judge, and the 
Senators from Alabama should be very proud they have sent a very noble 
person forward.
  There are other examples of doing things that just are tough. My 
State of South Carolina had in our constitution for the longest time a 
ban on interracial marriage. One does not have to be a rocket scientist 
to figure out how that all came about. Those of us in the South who 
have grown up in the South have had tremendous struggles to be fair to 
African-American citizens. There is a legacy there that no one should 
be proud of, but things are getting better, thank God. When we look 
into the past--and it is in other parts of the country, but it is 
particularly true in the South--when that is put into a State 
constitution, one can only imagine the passion that went into placing 
something like that in the constitution.
  Well, now, later on in life, all of us realize that is unfair, that 
should never happen, but who wants to be the person to step forward and 
get that argument started all over again because it really was never 
used?
  Well, Bill Pryor, as attorney general, had the courage to tell 
everyone, whether they agreed with him or not, that there is no place 
in our constitution for this kind of prohibition, and he led a charge 
to get rid of it, something I think tells a lot about the young man.
  The bottom line is, we are going to have a lot of time to talk about 
Bill Pryor because there is a movement to keep him from being on the 
Federal bench, a movement that is driven by politics, a movement that, 
if it continues, will change over 200 years of how the Senate and the 
executive branch work.
  The worst thing we could do, in my opinion, is to take the political 
disagreements we have in the early part of the 21st century and change 
the constitutional process, probably forever, the consequence being 
that good young men and women such as Bill Pryor can't become judges 
because a few special interest groups don't like them.
  If Bill Pryor can't be a Federal judge, given his academic 
background, the way he has lived his life, and the qualifications he 
brings to the job, then America is hurting because we have let politics 
get into the judicial process in an unhealthy way.
  There will be many more days and many more hours to talk about this. 
I look forward to talking to anybody who will listen about why I 
believe so strongly that we should allow the nomination of this young 
man to be voted on on the Senate floor--he has come out of committee--
and why he would make a fine Federal judge.
  I, again, let the Senator from Alabama know I am sorry that he and 
his colleagues from Alabama have to go through this. I am sorry for Mr. 
Pryor's family, that they have to go through this. But there will be 
some fighting back going on. I urge my colleagues on the other side of 
the aisle, if you continue to do this, inevitably here is what will 
happen.
  The next time there is a Democratic President there will be special 
interest pressure placed on our party over here on the Republican side 
to do exactly the same thing to some other nominee who may be equally 
qualified. The next thing you know, we are going to have a situation 
where good men and women will not put themselves through this. They are 
going to say it is not worth it.
  One of the things that came up in the hearing about Bill Pryor was 
that he and his wife were going to take their daughters, I believe, to 
Disney World. Disney World had Gay Pride Day that day, and they made a 
decision not to go on that particular day.
  It is uncomfortable for me to talk about that. I imagine it is very 
uncomfortable for Bill Pryor to have to talk about things like that. 
That has no

[[Page S12957]]

place in the evaluation process, because what is the purpose of that? 
``Yes, we got you now. You must hate gay people because you and your 
wife decided not to go to Disney World on a particular day.''
  His answer was: It was a family decision that my wife and myself 
made. But I promise you that if anybody comes before me as a judge, 
that I will honestly and fairly deal with him.
  We are getting into areas of people's personal beliefs and family 
decisions that are unhealthy, that will drive good men and women away 
if that is what you are going to have to put up with to try to serve 
your country.
  The bottom line is, we are going to have some fussing and fighting 
about what is right for Bill Pryor and others, but if we don't wake up 
we are going to ruin 200 years of history that has worked and we are 
going to drive good men and women away from wanting to serve their 
country as a judge and all of us lose then.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I thank the Senator from South Carolina. 
I, too, have some very strong feelings about Bill Pryor. He is one of 
the finest nominees ever to be submitted to this body. I have no doubt 
about that. He needs an up-or-down vote. If he receives one, he will be 
confirmed.
  We started out the debate tonight talking about the class action 
reform bill that is before us. We are seeking to consider the bill, but 
we are still debating the motion to proceed to the class action bill. I 
see the distinguished chairman of the Finance Committee is here, 
Senator Grassley, to speak on that legislation. I will be speaking on 
it further tonight, also.
  I am pleased to yield to him.
  The PRESIDING OFFICER (Mr. Coleman). The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, I would like to address my colleagues, 
as I did last night, on a bill of which I am the sponsor. It came out 
of the Senate Judiciary Committee on which I serve with very broad 
bipartisan support. It is called the class action lawsuit reform 
legislation. There has been a lot said about that legislation today 
that I would like to address.
  I did listen with great interest, yesterday and today, to speeches 
made by my colleagues across the aisle, and I fear they greatly 
misrepresent the bill and the problems facing the class action system, 
so I will spend a few minutes setting the record straight.
  First, my colleagues are trying to characterize this bill as special 
interest legislation and are suggesting that the President is pushing 
this as part of some rightwing agenda.
  Given that I introduced this bill with my Democratic colleague from 
Wisconsin 6 years ago, I am surprised that my colleagues think that 
this President Bush's idea is bad and part of some rightwing special 
interest agenda because Senator Kohl, a Democrat from Wisconsin, would 
not be interested in participating in any effort of a rightwing 
conspiracy.
  Anyway, Senator Kohl and I put this bill together because there is 
unfairness in the current class action system. Lawyers are getting rich 
while consumers and plaintiffs are getting worthless certificates and 
coupons. The current system has select State county courts deciding 
policies and interpreting laws for people that ought to be decided on 
the Federal level, in the Federal court, when they affect all 50 
States. Some county judge in Illinois should not be making a decision 
that is going to affect consumer law of 49 other States.
  That flips, as you know, the Federal system on its head, and it needs 
to be fixed. Our legislation fixes it. I think that wanting to fix this 
problem makes sense. It is not part of some rightwing agenda. It is a 
very key economic issue in our country.
  This term ``special interest legislation'' is amusing in several 
other ways. The real special interest here is the plaintiffs bar; they 
are fighting this bill with everything they have. Crafty class action 
lawyers who are making out like bandits by bringing frivolous class 
action lawsuits and settling cases where they get all the money are the 
ones with the big special interest in this legislation because, if this 
bill passes, judges will have to scrutinize settlements to make sure 
that lawyers are not unfairly getting more money for their professional 
services than they ought to get.
  Also, if this legislation passes, these very same lawyers will not be 
able to do what we call forum shopping--finding the best county judge 
someplace in the country who is sympathetic to their cause, before whom 
they can go and win for sure.
  Of course, we have the Judicial Conference. In this bill, it would be 
required to figure out a way to make attorney's fees more reasonable 
and settlements more fair. So it looks like the biggest special 
interest with a dog in this fight is the plaintiffs bar.
  I heard a lot of talk on the floor about how critical class actions 
are, and I would be the first to suggest that there is a place in our 
legal system for class action suits. They are a great, important tool 
to help injured people collectively recover for their injuries in cases 
where it might not be worthwhile for an individual to do that by 
himself or herself.
  Somehow, my Democratic colleagues think this bill is the end of class 
action suits, and that is entirely wrong. Our bill leaves the important 
tool of class actions right where it is, in rule 23 of the Federal 
Rules of Procedure, and similar rules in most of the individual States. 
But the bill just allows more class actions, those that ought to be 
nationally viewed and obviously national in scope, to be heard in the 
Federal courts. In-state class actions will continue right along in 
State courts and large national class actions will continue right along 
in the Federal courts. Consumers will still have their day in court. 
That is very important. Our bill does not take away their ability to 
sue as an individual or to sue as a class.

  Another claim I heard yesterday was that our bill allows defendants 
to remove a case to Federal court at any time, even on the eve of a 
trial. Senator Breaux says he is worried about this problem and his 
alternative would fix it. The claim is just plain wrong. Our bill does 
not change the current removal rule. Under that rule, a defendant can 
remove a case within 30 days of receiving notice that a case is 
removable. That is a good rule and one we do not need to change. I do 
not appreciate people saying we are changing it when we are not 
changing it. Our bill will function under that rule so a defendant can 
move only a case within 30 days of receiving a complaint or an amended 
complaint. To say a defendant under our bill can willy-nilly remove a 
case at any time or even while a jury is deliberating a case is just 
not true. That is not the case under the current rule. It is not the 
case with this bill which does not change the current rule.
  There are some other potential problems with the proposal by my 
friend Senator Breaux that he talked about yesterday, but I will be 
happy to look at any amendments he has available. One thing he said 
sticks out in my mind. Senator Breaux suggested if a class of 
plaintiffs is all from Louisiana and a class is injured by an out-of-
state meatpacker--that was the example he used--they should be able to 
sue the meatpacker in the State court. He describes a pure diversity 
case which under the Constitution belongs in the Federal court. He is 
proposing to turn constitutional diversity jurisdiction on its very 
head. That does not sound like a very good idea to me. His approach 
would allow the same rampant forum shopping we currently see in the 
system. Senator Breaux's alternative would not fix any of these abuses 
and, in fact, his alternative plan makes things much worse.
  Another misstatement that concerned me is this claim that the bill 
before the Senate is not the same bill that came out of committee; that 
the mass action language materialized out of thin air; that we are 
trying to pull the wool over our colleagues' eyes. Not true, again.
  First, the Class Action Fairness Act--the bill before the Senate, the 
bill I am sponsoring--included a provision dealing with mass actions 
when it was first introduced. If my colleagues look at the transcript 
of the committee markup, they would find, and I think they would 
probably remember this, that Chairman Hatch of the Judiciary Committee 
agreed to strip the mass action provision in committee on the condition 
that Senator Specter and Senator Feinstein worked on compromise 
language to be included in the

[[Page S12958]]

bill when it got to the Senate floor. It is in the Record. Nobody is 
pulling any wool over anybody's eyes.
  Chairman Hatch, Senator Specter, and I collaboratively reworked the 
mass action language, had Senator Feinstein look it over and sign off 
on it. In fact, we made modifications she requested and then we ran it 
by all of the original cosponsors of the Class Action Fairness Act. So 
the claim this bill is somehow unexpected and that we are hiding the 
ball is an unfair, untrue statement.
  I also heard opponents of the bill claim this bill will hurt 
consumers, will hurt civil rights litigants, will hurt tobacco 
plaintiffs, and will hurt gun victims. The reality is these class 
actions will continue to be brought in both Federal and State court 
after this bill becomes law. I don't understand what the big fear is 
about the Federal courts deciding some of these cases. In fact, I 
remind my colleagues many of these cases against tobacco plaintiffs and 
gun manufacturers and civil rights violations have for years been 
routinely filed in the Federal courts of America. The claim that 
somehow taking a big national class action out of State court will hurt 
these folks just does not hold water.
  Another claim we heard yesterday was Chief Justice Rehnquist opposes 
this bill. For months we have been hearing this claim, that the Chief 
Justice opposes the bill, and for months we have asked for proof of the 
claim. There is no proof. Why continue to quote him? Maybe this claim 
comes from a letter the Judicial Conference sent to the last Congress 
criticizing certain aspects of the older version of the bill. Justice 
Rehnquist is the de facto chair of the Judicial Conference. They must 
be making a gigantic leap to claim he had problems with parts of that 
old bill. The fact of the matter is, currently the Judicial Conference, 
which Chief Justice Rehnquist chairs, supports many things about this 
bill and has publicly thanked the Congress for taking up this issue. It 
offered a few ideas last spring for determining which cases should stay 
in the State courts and which ones should go to the Federal courts, and 
our Feinstein compromise addressed some of those very ideas suggested 
by the Judicial Conference Chief Justice Rehnquist chairs.
  We are going to hear a lot about class actions during this debate. 
Many of them will be important cases. Two things I ask my colleagues to 
remember regarding a good, necessary class action: First, it is very 
possible our bill will not have any effect whatever on the case. 
Second, the only effect our bill might have is just to make the case 
eligible for Federal court where the case was filed. In fact, many of 
the cases discussed yesterday sounded to me as if they would either be 
unaffected by the bill or could be proceeded to in Federal court.
  I know there are Members of this body who will not ever support this 
bill. They will never go up against the plaintiffs bar. They will never 
go up against those personal injury lawyers. They would say the present 
system, even though it gives lawyers millions of dollars and little old 
consumers a coupon for some product they will never want to buy, or for 
some part of an airplane ticket for some place they are never going to 
go, somehow is OK. I hope they will check their facts before they make 
statements against this bill even though they may never vote for it. 
They ought to be intellectually correct as they make their points.
  I have taken this opportunity to set the record straight. That ought 
to give us the number of votes it takes to get beyond a Democrat 
filibuster and move forward on a bill that has passed the House three 
times in 6 years and ought to pass the Senate and ought to go to the 
President. We ought to have fairness in our court system. When 
consumers need to be protected, we ought to have consumers getting the 
benefit of winning the case, not their lawyer.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. I thank the distinguished chairman of the Finance 
Committee, a senior member of the Judiciary Committee, for his 
leadership on this legislation for quite a number of years. He is a 
champion of commonsense fairness in the legal system. That is all we 
are talking about.
  I agree with Senator Grassley. I cannot imagine why somebody thinks 
that Federal courts, which have been the champion of liberties for 
Americans for years and years, are somehow now not fit to handle 
complex interstate class action lawsuits. It just boggles the mind. It 
is not sound logic. That argument is driven by the objections being 
made by the plaintiff lawyers who are interested in these cases. They 
want to be able to file them where they choose. They want no erosion of 
their ability to do so, and they are calling in their friends on the 
other side of the aisle, and some of them are responding.
  It was referred to earlier that these are big corporations that need 
to be dealt with and we ought to be able to sue them, presumably, in 
any county in America you choose to sue them in. I do not believe that 
is what was contemplated by our Founding Fathers.
  Let me tell you about another major industry in this country, the 
industry that is driving the objections to this bill; the plaintiff 
trial lawyer industry. A recent Tillinghast--I believe is the name of 
it--study showed their income last year was $37 billion. The income of 
the ``Trial Lawyers, Inc.'' is larger than that of Microsoft, Coca-
Cola, and other companies of that size. It is a huge industry. They 
contribute aggressively to political campaigns, and they promote their 
agenda aggressively. It is a free country, and they have every right to 
do so. But I would just suggest that those who would argue that the 
only wonderful people in this deal are the plaintiff lawsuits may not 
be so correct.
  Another study has shown 2 percent of the gross domestic product of 
this country goes to litigation costs. That is double what the other 
countries in the industrialized world are paying for litigation costs, 
and it is an extraordinary figure. It is a figure that is paid for not 
by just big corporations, it is paid for by every single American when 
they take out insurance.
  I wish it were not so. If someone makes an error in America today, 
and you sue them, and then you seek punitive damages to punish them, 
the unfortunate reality is, probably they have insurance or the case 
would not have even gone forward. The lawyer would not proceed, 
probably, if they did not have money to pay and did not have insurance. 
They have insurance, so the punitive damage verdict gets rendered, and 
the insurance company pays it. What does the insurance company do? They 
raise the rates on everybody who is paying premiums. Innocent people 
are paying the penalty imposed by the litigation.
  So we really need to think about how this system is working. I want 
it to work better. This is a modest step. As I noted earlier, the 
Constitution contemplates that lawsuits between people from two 
different States would be in Federal court. That is the diversity 
clause in the Constitution which has been the way things work for a 
long time. But the way things are working now, if you can name one 
defendant to be an in-State defendant, then in many instances you can 
make the case stay in State court. This process is allows a plaintiff 
to essentially pick the forum they want to pick.
  If you are suing McDonald's for a problem in their entire system that 
affects people all over America, then that case ought to be in Federal 
court, unless you are located in the State where McDonald's is 
headquartered. That is what I think clearly was contemplated by the 
Founders. But by using the device of naming in-State plaintiffs for 
suing a defendant in the state he does business in, plaintiff lawyers 
have been able to break the diversity and keep it in State court.
  We want people who have been injured to be compensated, and we want 
to make sure they are adequately compensated and that their 
compensation is legitimate and fair, and that the attorneys get paid a 
legitimate fee, and not get a huge fee and little or no compensation to 
the victims. The ugly truth is, in a lot of these cases, the 
corporations really just want the lawsuit to go away and have to take 
the plaintiff lawyer's word for what the plaintiff class wants in a 
settlement agreement. If the plaintiffs' lawyer says his clients--many 
of whom, virtually all of whom, he may never have met--would accept a 
coupon for a Blockbuster video, as long as the defendant pays the 
plaintiff lawyer's fees totaling $10 million, the defendant may be 
willing to pay that to get rid of the lawsuit.

[[Page S12959]]

  So the clients get paid little and the attorney gets paid a lot. 
There is a conflict of interest and a tension there for people who are 
sensitive to it. We are seeing that in these cases. That is what 
Senator Grassley was talking about. We are seeing that as a pattern. 
This legislation will help deal with that problem, help bring more 
integrity to the system, allow the courts to monitor it more closely, 
and ensure more fairness for the victims of wrongdoing.
  Don't misunderstand me, class actions can be an effective and 
legitimate tool. Some people are so frustrated by the abuses that they 
just want to attack all class actions. That is not what we are doing 
with this bill. Class actions are effective tools for a large number of 
people who may have been wronged by a single defendant or by defendants 
acting in concert. This can happen in a bank. Banks have been known to 
overcharge people. For example, a bank does not pay proper interest on 
an escrow account, and they owe each depositor $2 in interest. But 
there are 1 million depositors, and it has been going on for 5 years. 
The calculations get worked out. It is appropriate that those people 
get the interest they are entitled to and often a class action is the 
appropriate way to get this done. They ought to be paid fully what the 
law says you ought to be paid on the escrow account. The question is, 
however, are those plaintiffs always getting the money, and are these 
cases being handled in a way that is fair and just? How it works is 
what we are talking about. Certainly, 100,000 lawsuits--and they can be 
brought that way--each brought individually for a $2 misappropriation 
in an escrow account is not an efficient way for lawsuits to be 
settled. That is why we allow them all to be brought in one court. Then 
all plaintiffs are bound by the result as well as the defendant.
  Too often, in recent years, however, these lawsuits have become a 
vehicle by which some trial lawyers are cashing in at the expense of 
the plaintiff class. The most troublesome aspect is that in many of 
these class actions the lawyer does not even know the clients, and in 
some cases does not even have a client. In these situations a lawyer 
first discovers a potential claim he or she thinks is a good one, and 
then runs around and finds a client to be the named client as a vehicle 
for the lawsuit. The end result is often not justice for the 
plaintiffs, and enrichment for the attorney. I know of a case in which 
the client--the named plaintiff--in the case died, and the lawsuit went 
on with no real party there for months before the attorney discovered 
his client had died. The attorneys were running the lawsuit, proceeding 
as they chose, with so little communication with their supposed client 
that they did not even know the person had died.
  Not always. This is not always the case. A lot of these lawsuits are 
handled fairly and objectively, but we are seeing abuses there on a 
regular basis.
  For some cases they have not even been able to show any damages, yet 
the lawyers have still received huge amounts of money. For example, the 
Toshiba case. In this case, a class action suit was filed in Texas. It 
complained of an entirely theoretical defect in the ``floppy disk 
controllers'' of Toshiba laptops. There were no allegations that the 
asserted defect had resulted in injury to any user, and not one 
customer had ever reported a problem attributable to the defect. Facing 
potential liability of $10 billion, Toshiba decided they needed to 
settle this claim. They were willing to pay. The class members received 
as their payment between $200 and $400 off any future purchases of 
Toshiba products. In other words, they got a settlement--a discount on 
future purchases of a Toshiba product--only if they bought products 
from the defendant again in the future. The two named plaintiffs, the 
ones who were working with the attorneys, presumably, got $25,000, and 
the plaintiffs' attorneys received $147 million. That is a lot of 
money. The fact that most class members only benefitted from the 
lawsuit if did business with the defendant in the future is not good. 
It seems to me the company was wanting the lawsuit to be over, they 
were willing to pay the lawyers whatever fee they asked for, and give 
some sort of token settlement to the class members, and get out of this 
thing, just to make the suit go away, even though no real damages had 
happened to the class members as of that date.
  Lawyers are supposed to represent real clients who have been truly 
harmed. They are ethically bound to represent the clients' interests 
foremost, far above their own interests.
  Class action lawsuits are designed to be available when lawyers 
realize that an entire class of people have been harmed in the same way 
that his client has been harmed. However, class actions should not 
become a feeding trough for attorneys. Class actions should not be a 
situation where good advocates figure out a way, by adding unrelated 
defendants, to file actions in friendly circuits or to use other 
methods to utterly maximize the benefit from their side of the 
litigation, while ignoring the fairness overall.
  I respect lawyers. I believe in them. I have litigated, many cases. I 
believe lawyers should maximize the ability to protect their clients. 
In my comments about some of these lawyers that say they are protecting 
their client's interests but are really protecting their own pockets, I 
mean to be critical. Some of the lawyers, in fact, deserve no real 
criticism because they are simply choose to file the lawsuit in the 
forum most favorable to their client, and they are not supposed to look 
at whether that forum is fair to the defendant or not. You have to 
admire lawyers that are genuinely seeking to protect their client's 
best interests.
  But we must, as a legislative body, monitor these cases. We must, as 
a legislative body, work to make sure that fairness is occurring in our 
courts.
  Let me cite the Bank of Boston case filed in my State of Alabama. I 
was attorney general of Alabama during part of this time and I heard 
about some of these complaints. It is a good example of the class 
action system and how it is broken.
  In this case a class action was filed by a Chicago attorney in the 
circuit court, the county court of Mobile, AL. A Chicago attorney 
looked all over the country, and decided to file the lawsuit in Mobile. 
The case alleged that the Bank of Boston, MA, did not promptly post 
interest to the escrow accounts of its members. The settlement that was 
agreed to limited the maximum recovery for each individual class member 
to $9 each. However the class action attorneys received over $8 million 
in legal fees, an amount approved by the State court. It is shocking 
that the legal fees the class action attorneys received, were debited 
from the plaintiff class' bank accounts, averaging 5.3 percent of the 
balance in each account. Many of the bank members did not even know 
they were members of the plaintiff class, did not even know that 
attorneys were representing them, and most of all, had no idea that 
money would come out of their accounts to pay those attorneys. Imagine 
not even knowing you were involved in a class action until you realize 
that money has been taken out of your bank account to pay their legal 
fees.
  What is even worse is that for a number of the accounts, the debit to 
the account exceeded the credit they obtained from the settlement, 
meaning that after the settlement, more money came out of their account 
than went back in.
  Dexter Kamowitz of Maine--a plaintiff in Maine that is being bound by 
a county judge in Alabama--was one of those plaintiffs. He did not 
initiate the class action against the Bank of Boston. However, he 
received a credit of $2.19 to his account after the settlement. At the 
same time, the class action attorney debited Mr. Kamowitz's account for 
$91.33 in legal fees, producing a net loss of $89.14. Such results, as 
might be expected, produced outrage from class members in other States.
  Judge Frank Easterbrook, reviewing the case as a Federal judge on the 
Seventh Circuit Court of Appeals asked: What right does Alabama have to 
instruct financial institutions [headquartered] in Florida to debit the 
accounts of citizens in Maine and other States?
  I do believe that we need to be careful about expanding Federal 
jurisdiction. We don't want to do this willy-nilly. But we also need to 
be careful to ensure that State courts cannot unfairly include class 
members from all over the country and bind them by the verdict they 
render.
  Federal jurisdiction is currently allowed in cases where there is a 
de minimis interstate commerce nexus. We

[[Page S12960]]

know that from civil rights cases and plaintiffs cases and civil cases. 
If there is a Federal nexus, you can file it in certain cases in 
Federal court. I believe it is certainly appropriate, when we are 
dealing with a national corporation, dealing with clients in every 
State in America.
  The bill offered by Senators Grassley and Kohl would help eliminate 
some of these class action abuses. We have talked about class action 
problems for a very long time. I believe it is time to stop talking and 
get moving and pass a bill that will help class action plaintiffs be 
treated fairly in this entire process. I hope we can have a healthy 
debate and move this legislation that reforms class action forward.
  I am also pleased to see, as I conclude these remarks, the 
distinguished chairman of the Senate Judiciary Committee, Senator Orrin 
Hatch. He has wrestled with the class actions issues from the 
beginning. As a skilled lawyer himself, he understands the issues ably. 
He is able to discuss them in a very intelligent way. He understands 
the history of this entire proceeding. It is a pleasure for me to serve 
with him on the Judiciary Committee. I know at this time he would like 
to share some remarks.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I am sorry to keep the body a little bit 
later, but I do think we need to make some points that really need to 
be made. We should be debating the Class Action Fairness Act of 2003 
rather than squandering away the Senate's time debating a motion to 
proceed to the bill. That has become typical around here. Anything that 
can delay, anything that can make it miserable, anything that can make 
it difficult to pass legislation or even consider legislation, we are 
finding the other side is doing to us.
  Yesterday, my colleague from Vermont, the ranking member of the 
Judiciary Committee, observed accurately that the days remaining in 
this session are numbered and that floor time is indeed precious. But 
what puzzles me is if there is such a premium for time, then why in the 
world are we faced with a Democrat filibuster on the motion to proceed 
to a bill? Usually, if you are going to filibuster, you filibuster the 
bill. So we all know what is going on here.
  From what I know, based on the remarks yesterday from the ranking 
member and others, I understand that there is an objection to 
proceeding to S. 1751 because it has been characterized by some as 
``special interest legislation.'' What ``special interest'' are we 
talking about? Are we talking about the ``special interest'' of 
millions of consumers throughout the country who are affected every day 
by class action abuses, or are we talking about the ``special 
interest'' of the everyday American worker who stands to lose because 
his or her employer can't increase wages or offer better health 
benefits because of the commercial uncertainties created by 
uncontrolled class action litigation, or are we talking about the 
``special interest'' of the general American public that is losing 
faith in the American civil justice system because of the outrageous 
class action coupon settlements that only benefit the attorneys?
  On this whole special interest point, I would like to direct your 
attention to a recent poll showing that the overwhelming majority of 
Americans believe that class action lawsuits benefit lawyers at the 
expense of their clients.
  Look at this chart. ``Opinions on class action lawsuits; who benefits 
most from class action lawsuits.'' Lawyers for the plaintiffs, the 
public says--47 percent believe the lawyers benefit the most. They are 
right, especially in these frivolous suits we have been referring to. 
Buyers of products, 5 percent; companies being sued, 7 percent; 9 
percent of the American people think the plaintiffs benefit the most 
from class action lawsuits--the ones they are bringing the suits for. 
Only 9 percent of the American public think the injured parties, the 
so-called victims, are the ones who benefit; 12 percent don't know; 20 
percent say the lawyers for companies. So of the total opinion of the 
American people in a poll conducted, with an error margin of plus or 
minus 3.5 percentage points, a total 67 percent of the American people 
believe the lawyers are the ones who benefit from these class action 
suits; 67 percent believe class action lawsuits are a virtual bonanza 
for lawyers. The public is not too dumb; they are right.
  In stark contrast, the poll shows only 9 percent of Americans believe 
the class action lawsuits benefit the victims or the plaintiffs 
themselves. When the public perception of class action lawsuits in our 
civil justice system is so negatively skewed, I find it difficult to 
say with a straight face this bill somehow advances ``a special 
interest.''
  Perhaps the ``special interest'' we are really talking about is that 
belonging to one Hilda Bankston. Who is Hilda Bankston? This is Hilda 
in the photo. A beautiful woman, a decent person. I can tell you with 
certainty she is not a tobacco company. She is not a gun manufacturer 
or somebody who pollutes the environment. Hilda Bankston and her 
husband Mitch owned Bankston Drugstore in Fayette, MS, a small local 
pharmacy where Mitch worked as a pharmacist. The Bankstons were dragged 
into hundreds of lawsuits filed by class action attorneys in the State 
of Mississippi by virtue of owning the only drugstore in Jefferson 
County. Their small business became a prime target for forum-shopping 
class action attorneys in pharmaceutical cases.
  The Bankstons' nightmare began in 1999 when Bankston Drugstore was 
named a defendant in the fen-phen diet drug class action lawsuit simply 
for filling a prescription written by a doctor--something they were 
supposed to do. Since then, plaintiffs lawyers have filed hundreds of 
pharmaceutical lawsuits against Bankston Drugstore. Every time a big 
drug maker was sued, even if the company was located in New York, or 
California, the plaintiffs' lawyers added Hilda Bankston and her 
husband as defendants--this hard-working owner of a single drugstore--
just because she sold that drug from her neighborhood drugstore, which 
was her obligation to do.
  Even though Mrs. Bankston no longer owns the drugstore, she continues 
to be named a defendant in these lawsuits today and is buried under a 
mountain of discovery requests because of the litigation. On a more 
personal level, Mrs. Bankston describes to us the toll this ordeal has 
taken on her both personally and professionally. She testified that, 
``no small business should have to endure the nightmares I have 
experienced. . . . I have spent many sleepless nights wondering if my 
business would survive the tidal wave of lawsuits cresting over it.''
  Mrs. Bankston also suffered the loss of her husband when, within 
three weeks of being named as a defendant in the fen-phen case, her 
husband died of a heart attack. It is stories like Mrs. Bankston's--an 
every-day citizen just trying to fulfill the American dream--that makes 
this bill so compelling. I think to characterize this bill as appeasing 
``special interests'' is not only disingenuous but it ignores the 
extensive mountain of evidence showing otherwise. It is pure, 
unmitigated bunk and they know it.

  I also understand the ranking member expressed surprise and concern 
over the lone difference between S. 274 as reported out of the 
committee and the rule XIV version of the bill, S. 1751, that we are 
now trying to move forward. To set the record straight, we are simply 
invoking Senate rule XIV, which is procedurally proper, to simply 
accommodate the revised mass actions provision the committee had 
removed from the bill during markup on the condition that it would be 
modified and replaced in the bill before floor consideration. That is 
what we agreed to do. That is all we did. The rule XIV version of the 
bill, which is numbered S. 1751, is the identical bill we voted 
favorably out of committee, except for the return of the revised mass 
actions provision the members on the Judiciary Committee knew or should 
have known would be restored into the bill before floor consideration.
  Just on Friday, the majority leader asked unanimous consent to bring 
up S. 274, substituting with the text of what is now S. 1751. There was 
an objection from the other side of the aisle which forced the majority 
leader to bring up S. 1751 under rule XIV. To now hear we are somehow 
not acting in

[[Page S12961]]

good faith is, at best, a misunderstanding and at worst a deliberate 
attempt to mislead. You make the decision, you make the judgment on 
that. I know what I think.
  By way of background, I want to explain what happened with this 
provision. When the original bill, S. 274, was marked up during 
committee last April, the committee members agreed to an amendment 
offered by Senators Feinstein and Specter striking two provisions from 
the bill only with the understanding that the language would be 
modified and replaced before floor consideration. The first provision 
defined private State attorneys general actions as class actions within 
the meaning of the bill. These are statutory actions a private citizen 
can bring on behalf of the general public. My colleague from 
California, Senator Feinstein, expressed specific concern over this 
provision because she believed it would interfere with an existing 
California statute permitting such representative actions. This 
provision has remained out of the bill.
  It is the second provision that necessitated the rule XIV 
alternative. This second provision is what we commonly refer to now as 
the mass actions provision. A mass action is a civil action seeking to 
try the claims en masse of all plaintiffs and defendants in a single 
trial, but pursued without the procedural due process prerequisites for 
litigating such a matter as a class action. Mass actions are used 
heavily in certain States such as West Virginia and have been used to 
unfairly consolidate for trial diverse claims of as many as 8,000 
plaintiffs from over 35 States against over 250 defendants. These 
actions are especially problematic because they proceed without 
satisfying any of the standard class action prerequisites, such as 
commonality and typicality of claims.
  Although the original bill contained a provision that defined mass 
actions to qualify as class actions, my colleague Senator Specter 
raised a specific concern over the scope of the provision and moved it 
be stricken. Because the committee didn't have a meaningful opportunity 
to evaluate the Senator's concerns before markup, I, as chairman, 
agreed to strike this provision, but only with the understanding that 
we would modify the provision and replace it before the bill reached 
the floor, which is exactly what we did.
  After the extensive post-markup negotiations and other discussions 
among my staff and the staff of Senators Specter, Feinstein, Kohl, and 
Grassley, we were able to reach consensus on a revised mass actions 
provision in early September.
  Let me stress there are no surprises here on what we were going to do 
with the mass actions provision. Everybody who appeared that day in the 
Judiciary Committee markup was aware the bill sponsors would work with 
the sponsors of the amendment, Senators Specter and Feinstein, to 
develop compromise language. Indeed, we called specific attention to 
this understanding in our committee report on S. 274, which has been 
widely and publicly available since last July.
  As for using rule XIV, which is an effective rule in the Senate, a 
rule that can be legitimately used, and has been used in this case, we 
gave advance notice to our Democratic counterparts, Senators Feinstein 
and Kohl, over a month ago that there was a possibility we would have 
to use this procedural device to ensure the operative text reflected 
the understanding when the bill was reported out of committee.
  I also understand from my staff that these offices then informed, 
among others, the ranking member on our committee about the potential 
use of the rule when we introduced S. 1751 last week. Simply put, we 
were open and above board. We didn't have to be, but we were. We didn't 
have to be because the rule is the rule. We are entitled to use it. The 
Democrats have used it time after time, as have Republicans. There are 
no surprises here. I was the most shocked to find claims that something 
somehow or another was askew and not properly handled. Again, that is 
pure bunk, and everybody knows it. But I suppose when we have 
television in the Senate, we are going to see that type of argument 
made from time to time, even though it doesn't hold water and can't 
stand the light of day.
  We provided advance notice and opportunity to review the text to our 
Democratic sponsors and the sponsors of the amendment so they could all 
verify that no other changes were made. That is good faith, in my view. 
We gave advance notice of our intended use of this device for a 
provision we made clear to everyone we intended to modify. So I am 
particularly baffled as to why the ranking member of our committee is 
calling this a mystery. This is no mystery. We did exactly what we said 
we would do when we marked up this bill in committee, and the bill was 
voted out with a partisan vote of 12 to 7, but, of course, the 
distinguished Senator from Vermont didn't vote for the bill in 
committee. That may be what is behind these types of comments. He never 
has been for this bill.
  I suspect all is fair in love and war. This being war, they can say 
whatever they want on the floor of the Senate, even though it is 
totally wrong.
  I believe rule XIV is the most appropriate way of handling the unique 
set of circumstances leading to the revision of the class action 
provisions, especially in light of the limited number of days remaining 
in this session. Given the number of pressing appropriations issues 
facing the Senate in the coming months, I think it makes little sense 
to waste valuable floor time debating as a separate amendment a 
provision that the key Republican and Democratic members have already 
worked out in good faith. It is even more absurd to be forced to debate 
a motion to proceed to this bill.
  There is only one reason for that. That is to delay, delay, delay, 
and hopefully bollix up everything at the end of this session so 
nothing good gets done. I ask my colleagues to support the motion to 
proceed to S. 1751, the rule XIV version, the Class Action Fairness Act 
of 2003.
  A Senator got on the floor and made a number of what I thought were 
outrageous comments as well pertaining to this being a special interest 
piece of legislation. This is a people's bill. The biggest losers under 
the current system are the people. Lawyers sue companies and negotiate 
settlements in which they get all the money. So consumers get ripped 
off twice: Their lawyers rip them off by taking the settlement money 
that is supposed to go to them, and then they have to pay for the 
payoff to the lawyers at higher prices.
  How about tax cuts for the wealthy? That was an argument made 
yesterday. The class action bill would not protect the wealthy. It is 
the opponents of the bill who are trying to protect the wealthy--the 
wealthy trial lawyers in this case. Although not all class action 
lawyers are to be criticized, some actually are good lawyers who 
actually do what is right within the law in fair class actions that 
really are brought to help people. We are talking about the ones who 
need to be reformed. Some of these wealthy lawyers who need reform 
amass their riches by ripping off consumers in bad settlements. We have 
shown that throughout this debate.

  Senators raised the issue of defective products, protecting gun 
manufacturers. The only successful class action against gun 
manufacturers, the only case in which any relief was awarded was in 
Federal court. That is what we are trying to do here, and they act as 
if the Federal courts are not capable of handling these cases? This 
doesn't stop legitimate class actions. It just says there is no longer 
going to be these phony forum-shopped cases in corrupt jurisdictions 
where there are corrupt judges and where jurors don't realize they are 
saddling all of America with these outrageous verdicts that pay off the 
attorneys but do very little for consumers or for the plaintiffs who 
are supposedly the real victims.
  We heard the argument yesterday that Justice Rehnquist is opposed to 
this bill. Opponents keep saying Chief Justice Rehnquist opposes the 
bill, but whenever we ask for a citation to that opposition, we get 
absolutely nothing. They talk about the Judicial Conference letters, 
but those letters do not express opposition to the bill that was 
reported out of committee.
  How about forum shopping? Defendants cannot forum shop. The plaintiff 
always gets to choose where to file the lawsuit. If they file in State 
court, they can often choose precisely the judge who will hear the 
case. All the defendant can do is remove to Federal

[[Page S12962]]

court where the case will be heard by a randomly selected judge, not a 
stacked, forum-shopped deal with a corrupt judge or maybe not even a 
corrupt judge, but one who just believes the plaintiffs should win no 
matter what the facts are. Again, I think that is corruption. It is 
nonsense to say defendants can forum shop or that forum shopping is the 
purpose of this bill. That is nonsense. Yet that is what one of our 
distinguished Senators was saying yesterday.
  How about the scalpel argument? Any suggestion that this class action 
problem is concentrated in a handful of State courts is wrong. It is a 
problem in many places, and if you fix it in one place, the party moves 
to some other court in some other town.
  How about Madison County, IL, by the way? We had the two Senators 
from Illinois speak: One just found Madison County to be the most 
circumspect county in the world. The other basically called the judges 
and the lawyers, many of whom never practiced law in Madison County, 
people who were abusing the system. He even implied some of them were 
corrupt.
  The figures in Madison County do indicate a problem. Look at the 
dramatic increase in the number of class actions, virtually all of 
which were nationwide class actions over a short period, an increase 
from 2 in 1998 up to over 75 last year. Why are all these people, all 
these attorneys from other States flocking to the middle of nowhere to 
file lawsuits in which none of the claimants and none of the defendants 
are from the area? Do we really need to ask why? We know why. Because 
of corruption--corrupt judges, or should we say misconceived judges, to 
be nice about it, or judges who always find for the plaintiffs or steer 
everything in favor of the plaintiffs or always find class actions to 
exist when they really shouldn't. That is corruption.

  We hear statistics indicating half of the class actions have been 
certified, but what the distinguished Senator from Illinois should have 
said was ``certified so far.''
  What I find curious is that the distinguished Senator from Illinois 
didn't give the number of class actions that were denied. What happens 
in Madison County is that the case is filed, and when the lawyer 
decides he wants to put the squeeze on the defendant to settle, he 
starts moving toward getting a class certified, but sometimes it takes 
a while.
  By the way, just moving to get a class certified in Madison County 
where it is almost granted at will is enough to scare any corporation 
because once that happens, that corporation is in real trouble, and so 
are that corporation's employees who are likely to lose their jobs, 
their income, their health care, and their pensions if the company gets 
thrown into bankruptcy.
  We have heard allegations that under the class action bill, a 
defendant can remove a case at any time, even on the eve of trial. The 
current removal statute, 28 USC section 1446(b), provides that a case 
must be removed to Federal court ``within 30 days after the defendant's 
receipt . . . of a copy of the [complaint] in the action.''
  This class action bill would not change that rule. The allegation 
that a class action bill would allow a case to be removed to Federal 
court at any time is ridiculous. But that is what we are getting used 
to from those who argue against this issue.
  Now why do they do that? Why can they not see these simple, easy to 
see facts of life? Well, I hate to say it but I think it comes down to 
the fact these trial lawyers are the biggest hard money funders of many 
of these people who will vote against this bill. They get whatever they 
pay for. They can rely on their friends in the Congress to ignore what 
really should be ethical and good changes in the law and to stand in 
the way of those changes. That is what is happening here.
  That is taking the sugar coat off, but that is what is happening. The 
fact is that we have people in this body who will vote for the trial 
lawyers no matter how wrong they may be.
  Now, when I say trial lawyers, I am speaking about this select group 
of trial lawyers who really are giving the legal profession a bad name, 
who are in it for the money so they can support their own political 
candidates, live in high style, be influential in their respective 
communities, most all of which are outside of Madison County, by the 
way, and who can just about afford to do anything they want to do and 
are used to doing anything they want to do.
  I happen to know a lot of good trial lawyers who are honest and 
decent, who really fight hard for their plaintiffs, for people who were 
wronged, for victims, and who are disgusted with these trial lawyers 
who are taking procedural advantage, monetary advantage, of forum 
shopping in this country. It is coming to the point where even the 
American Trial Lawyers Association is starting to get split on these 
types of issues because they realize that some of these people are 
giving trial lawyers who are good, honest, decent, hard-working trial 
lawyers a bad name, because they are getting lumped into the term 
``trial lawyers'' all the time with these people who are bad actors, 
who are in it for the money.
  Now, they paint a very big picture about how they are in it for the 
little consumers, but look at the coupon settlements. Look at the 
amount of money they are getting in fees. Look at the way the consumers 
have been ripped off. Look at the cost to society. Look at the 
companies that are in shambles and can no longer employ people. Look at 
the unfairness of forum shopping. Look at the unfairness of corruption.
  I commend trial lawyers who are honest and decent and who bring 
decent class actions. They know they can win in Federal court just as 
much as they can win in State court, but they also know they cannot 
forum shop as well in Federal courts.
  Now, one can still forum shop but not nearly like they can in a 
number of jurisdictions in this country in certain counties where, as I 
say, judges are owned lock, stock, and barrel by various political 
interests.
  Well, I have kept us long enough, but this is an important bill and 
to filibuster even the motion to proceed to the bill, at this late 
date, leads only to one conclusion and that is unfairness, delay, win 
at any cost, fear to debate this bill straight up and down, fear to 
have votes straight up and down. The reason they are afraid is because 
they know if Senators were permitted to vote their consciences this 
bill would pass overwhelmingly, if it were not for the untold influence 
of big class action money.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. If the Senator will yield, based on his experience, it 
is indeed an unusual thing that we have a filibuster of a motion to 
proceed to a bill that has this kind of bipartisan support. Is it not?
  Mr. HATCH. No question that we usually do not have a filibuster on a 
motion to proceed, because if any of my colleagues are going to 
filibuster, they should filibuster the bill. By filibustering the 
motion to proceed, they can delay a vote on that for 3 days. Then they 
can filibuster the bill and delay that for another 3 days, which eats 
up 6 days at a crucial time of the year when we are trying to do all of 
the appropriations bills, a prescription drug benefit and Medicare 
reform, asbestos reform, judges, a whole raft of other very important 
issues, including the Energy bill. So by eating up all this time it 
makes it difficult to pass any of these matters, and it makes one 
wonder what in the world is behind all of this.
  Mr. SESSIONS. I think it is particularly telling, I say to the 
Senator, because this is not like the circumstances we had when the 
Democrats were in the majority and Senator Daschle called up the entire 
Agriculture bill, or the entire Energy bill, which were huge bills, 
under rule XIV, that had not been addressed in the committee. This bill 
had hearings in committee and we voted for it 12 to 7. There was only 
one basic change to the bill.
  Mr. HATCH. It was a bipartisan supported bill. Democrats and 
Republicans support this bill. It will pass if Senators are permitted 
to vote their consciences and are permitted to vote up or down without 
the phony delays of a filibuster, especially a filibuster on the motion 
to proceed.
  By the way, rule XIV is an effective rule of the Senate. Both sides 
have

[[Page S12963]]

used that in order to expedite consideration of matters and everybody 
understands that, and everybody can then debate.
  Mr. SESSIONS. I just recall when Senator Daschle was the majority 
leader, he brought up huge legislation outside of the committee that 
could not have been passed in the committee. We were forced to debate 
that legislation on the floor under rule XIV. To say there is some 
procedural problem here, when Senator Hatch has managed the bill 
through the committee process, when we have debated the bill, and when 
we have voted on the bill in committee, it came out 12 to 7, is 
baffling. As far as rule XIV is concerned, everybody was given notice 
of what would happen, this is just pure obstructionism. This is just an 
excuse to delay, delay, obstruct, obstruct.
  We are coming to the end of this legislative session. We have a lot 
of things to do. One of the things we absolutely ought to do is to move 
this bipartisan bill to fix class action litigation in America. It is 
the right thing to do. It has the overwhelming majority support of the 
Members of this body. Yes, it has the opposition of a small but 
powerful little group of trial lawyers who put a lot of money in the 
political campaigns, but it is the right thing to do, and we ought to 
move forward with it.
  I think there is every reason for those who believe in improving the 
legal system to be upset at the obstructionism that we are facing by a 
majority leader who has approved this. I think if we had some 
leadership on the other side by Senator Daschle, we could move this 
bill. To lay back is to allow the trial lawyers to control this matter.
  There are a lot of reasons why we ought not have a single state judge 
in Madison County, as the Senator said, trying cases that have impact 
all over America. That is not good. A Federal court, with a Federal 
judge, with a quality group of law clerks, a fine staff, and by far a 
smaller caseload than most State judges have--I would say on the 
average, in my experience, that the State judges would carry maybe 10 
times as many cases on their docket as a Federal judge has on the 
Federal court docket. The Federal judges give more attention to the 
cases and they have more ability to focus on a case. There is the 
ability to issue subpoenas nationwide and make things happen in ways 
that are more difficult in State court. So a major class action 
involving millions of dollars and thousands of plaintiffs from 
different states ought to be tried in Federal court when there is a 
majority of the people involved who are out of State.
  This reform fixes some of the problems associated with class actions. 
It sets up legislation that gives special scrutiny for those abused 
coupon-related settlements, where the victims get coupons and lawyers 
get big fees.
  It guarantees that notifications to class Members to be in plain 
English. It scrutinizes against a negative awards, where plaintiffs who 
may not have even known they were plaintiffs end up having to pay 
attorney's fees in a case they never authorized to go forward. It 
provides protection against unwarranted higher awards for certain class 
members, just because they are in a certain area of the country. And 
there are prohibitions on the payment of bounties.
  It makes it more difficult, when you are facing a fair judge who you 
believe will rule on the law and give you a fair shake, not in a county 
that has a reputation of just hammering defendants in favor of the 
attorneys who file the cases. That allows defendants to litigate with 
integrity, and not feel they must just pay up, almost in the form of 
blackmail, to get the matter away so they can go on about their 
business. This is not a fair way to do business.
  This bill has a lot of good things in it that will make this area of 
the law, class actions, better, more fair, and more objective.
  I thank the chair and I yield the floor.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________