[Congressional Record Volume 149, Number 149 (Wednesday, October 22, 2003)]
[Senate]
[Pages S12998-S12999]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        REGULATION BY LITIGATION

  Mr. McCONNELL. Mr. President, I rise to speak in support of the class 
action bill that will be before the Senate later this morning.
  A few years ago during the debate on lawsuits against tobacco 
companies, gun manufacturers, and lead paint companies, the satirical 
publication, the Onion, wrote a spoof piece entitled ``Hershey's 
Ordered to Pay Obese Americans $135 billion.'' This was a tongue-in-
cheek article which everyone found quite amusing at that time.
  It began:

       In one of the largest product-liability rulings in U.S. 
     history, the Hershey Foods Corporation was ordered by a 
     Pennsylvania jury to pay $135 billion in restitution to 
     900,000 obese Americans who for years consumed the company's 
     fattening snack foods.

  The spoof went on:

       ``Let this verdict send a clear message to `Big Chocolate,' 
     '' said Pennsylvania['s] Attorney General . . . addressing 
     reporters following the historic ruling. ``If you knowingly 
     sell products that cause obesity, you will pay.''

  The article continued:

       The five-state class action suit accused Hershey's of 
     ``knowingly and willfully marketing rich, fatty candy bars 
     containing chocolate and other ingredients of negligible 
     nutritional value.'' The company was also charged with 
     publishing nutritional information only under pressure from 
     the government, marketing products to children, and 
     artificially ``spiking'' their products with such substances 
     as peanuts, crisped rice, and caramel to increase consumer 
     appeal.

  The article went on to discuss the use of class action litigation to 
force chocolate manufacturers to adopt policies preferred by the 
plaintiffs.
  It concluded by saying:

       Whatever the outcome of Hershey's appeal, the chocolate 
     industry has been irrevocably changed as a result of [the] 
     verdict.

  When I read this piece in the Onion a few years ago, I thought it was 
quite creative. I thought it illustrated the disturbing misuse of class 
actions, using class actions to circumvent legislative decisions with 
respect to setting policy. I was not the only one who thought so. 
Former Secretary of Labor under President Clinton, Robert Reich, wrote 
that:

       The era of big government may be over, but the era of 
     regulation through litigation has just begun.

  It turns out that the Onion was not merely creative, it was, in fact, 
prescient. A few months ago, I read another article, this one a real 
news story, not a spoof, entitled ``Ailing Man Sues Fast Food Firms.'' 
The article began:

       Want a class action lawsuit with that burger?

  It reports that a lawyer ``has filed suit against the four big fast-
food corporations, saying their fatty foods are responsible for his 
client's obesity and health-related problems.''
  The lawyer filed his lawsuit in State court in the Bronx, ``alleging 
that McDonald's, Burger King, Wendy's and [Louisville-based] KFC 
Corporation are irresponsible and deceptive in the posting of their 
nutritional information, that they need to offer other options on their 
menus, and that they created a de facto addiction in their consumers, 
particularly the poor and children.''
  The lawyer said:

       You don't need nicotine or an illegal drug to create an 
     addiction, you're creating a craving.

  The lead plaintiff, a 56-year-old maintenance supervisor, said he 
``traced it all back to high fat, grease and salt, all back to 
McDonald's, Wendy's, Burger King.'' He said:

       There was no fast food I didn't eat, and I ate it more 
     often than not because I was single, it was quick, and I'm 
     not a very good cook. It was a necessity, and I think it was 
     killing me, my doctor said it was killing me, and I don't 
     want to die.

  The attorney ``aimed to make his case into a class action lawsuit,'' 
with the ultimate goal ``to force the fast-food industry `to offer a 
larger variety to the consumers, including non-meat vegetarian, less 
grams of fat, and a reduction' '' in meal size.
  Mr. President, by the way, damages in the case were unspecified. 
Given the horror stories we have heard of plaintiffs getting the short 
end of the stick in class action cases, the plaintiffs better hope that 
class action reform gets enacted before their case is resolved, lest 
their lawyer bank all the cash while they are stuck with a coupon as a 
result of a ``drive-by''--or should I say ``drive-through''--
settlement. The coupon could probably buy a large french fry. That 
would be about all it would purchase.
  A disturbing thing about lawsuits against ``big fast food'' is that 
they promote a culture of victimhood and jettison the principle of 
personal responsibility. I have, in fact, introduced the Commonsense 
Consumption Act to try to restore sanity to our legal system with 
respect to these types of cases against the fast food industry.
  But an equally disturbing aspect that this high profile case 
illustrates is the use of class action lawsuits to circumvent 
legislative decisions and subvert the democratic process. No branch of 
Government should mandate that Burger King and McDonald's carry veggie 
burgers for portly patrons. But even if that is something Government 
should do, it should not be the judicial branch that does it, 
particularly a State court setting national culinary policy.
  Let me give another example with which people might not be as 
familiar. A national class action lawsuit certified in an Illinois 
county court has resulted in a determination that car insurance 
companies violated their contracts by refusing to provide original 
manufactured parts to policyholders who were involved in accidents. 
This determination resulted in a $1.8 billion verdict against State 
Farm.
  This case is noteworthy because the county court which certified the 
class action let the case stand, even though several State insurance 
commissioners testified that a ruling in favor of the nationwide case 
would actually contravene the laws of other States. These laws either 
allowed, or in fact required, the use of generic car parts as a way to 
keep costs down for consumers.
  As the New York Times reported, the result of this State class action 
was to ``overturn insurance regulations or State laws in New York, 
Massachusetts, and Hawaii, among other places,'' and ``to make what 
amounts to a national rule on insurance.''
  The concerns with this case were not due to the interests of ``big 
insurance.'' Ralph Nader's group, Public Citizen, the attorneys general 
of New York, Massachusetts, Pennsylvania, and Nevada, and the National 
Association of Insurance Commissioners all filed briefs opposing the 
Illinois State court's determination because this county court's new 
national rule on insurance would be bad for consumers--though I suspect 
the trial lawyers in that case have made out quite handsomely.

  It is not only appropriate, but necessary, to use class actions to 
efficiently provide remedies to large numbers of plaintiffs. But it is 
inappropriate to use them to circumvent the decisions that belong to 
other branches of Government and to other States. Maybe Ralph Nader, 
New York, Massachusetts, Pennsylvania, and other States are wrong and 
the county judge in Illinois is right, and we should require that 
original manufacturer parts be used in auto repairs. But that is a 
decision for the people of the several States to make, not unelected 
judges.
  Mr. President, class action reform will ensure that truly national 
cases are decided in a national forum, and I hope we can enact this 
important reform. The Democrat leadership has said their caucus 
recognizes the need for reform. I think the fact that they are 
filibustering the motion to proceed questions that notion.
  But we will soon have a chance to see if our friends on the other 
side of the aisle are sincere about trying to solve the problem of 
class action litigation. If they are serious, then they should support 
cloture on the motion to proceed and give us a chance to go forward 
with this important legislation. If we get on the bill, then they can 
try to improve the flaws they see in it, or maybe even substitute an 
entirely new proposal, which I understand one of the Democratic 
Senators advocates. But if

[[Page S12999]]

we cannot even get on the bill, we cannot attempt to solve whatever 
problems they think might be in the bill.
  I am hopeful that we won't have the situation we had a few months 
ago, where folks on the other side claimed to want to do something 
about the problems with our medical liability system, but then, to a 
man, filibustered the motion to proceed on medical liability reform. We 
will soon see if our friends on the other side of the aisle are 
sincerely interested in moving forward on this legislation.
  Mr. President, I yield the floor.

                          ____________________