[Congressional Record Volume 151, Number 13 (Wednesday, February 9, 2005)]
[Senate]
[Pages S1215-S1217]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           TEXT OF AMENDMENTS

  SA 4. Mrs. FEINSTEIN (for herself and Mr. Bingaman) submitted an 
amendment intended to be proposed by her to the bill S. 5, to amend the 
procedures that apply to consideration of interstate class actions to 
assure fairer outcomes for class members and defendants, and for other 
purposes; as follows:

       On page 24, before line 22, insert the following:
       (c) Choice of State Law in Interstate Class Actions.--
     Notwithstanding any other choice of law rule, in any class 
     action, over which the district courts have jurisdiction, 
     asserting claims arising under State law concerning products 
     or services marketed, sold, or provided in more than 1 State 
     on behalf of a proposed class, which includes citizens of 
     more than 1 such State, as to each such claim and any defense 
     to such claim--
       (1) the district court shall not deny class certification, 
     in whole or in part, on the ground that the law of more than 
     1 State will be applied;
       (2) the district court shall require each party to submit 
     their recommendations for subclassifications among the 
     plaintiff class based on substantially similar State law; and
       (3) the district court shall--
       (A) issue subclassifications, as determined necessary, to 
     permit the action to proceed; or
       (B) if the district court determines such 
     subclassifications are an impracticable method of managing 
     the action, the district court shall attempt to ensure that 
     plaintiffs' State laws are applied to the extent practical.
                                 ______
                                 
  SA 5. Mr. PRYOR (for himself, Mr. Bingaman, and Ms. Cantwell) 
proposed an amendment to the bill S. 5, to amend the procedures that 
apply to consideration of interstate class actions to assure fairer 
outcomes for class members and defendants, and for other purposes; as 
follows:

       On page 5, between lines 2 and 3, insert the following:
       ``(1) Attorney general.--The term `attorney general' means 
     the chief legal officer of a State.
       On page 5, line 3, strike ``(1)'' and insert ``(2)''.
       On page 5, line 5, strike ``(2)'' and insert ``(3)''.
       On page 5, line 12, strike the period at the end and insert 
     the following: ``, but does not include any civil action 
     brought by, or on behalf of, any attorney general.''.
       On page 5, line 13, strike ``(3)'' and insert ``(4)''.
       On page 5, line 17, strike ``(4)'' and insert ``(5)''.
       On page 5, line 21, strike ``(5)'' and insert ``(6)''.
       On page 6, line 1, strike ``(6)'' and insert ``(7)''.
       On page 6, between lines 5 and 6, insert the following:

[[Page S1216]]

       ``(8) State.--The term `State' means each of the several 
     States of the United States, the District of Columbia, the 
     Commonwealth of Puerto Rico, the Commonwealth of the Northern 
     Mariana Islands, and any territory or possession of the 
     United States.
       On page 14, strike lines 20 and 21, and insert the 
     following:
       (1) by striking subsection (d) and inserting the following:
       ``(e) As used in this section--
       ``(1) the term `attorney general' means the chief legal 
     officer of a State; and
       ``(2) the term `State' means each of the several States of 
     the United States, the District of Columbia, the Commonwealth 
     of Puerto Rico, the Commonwealth of the Northern Mariana 
     Islands, and any territory or possession of the United 
     States.''; and
       On page 15, line 7, insert ``, but does not include any 
     civil action brought by, or on behalf of, any attorney 
     general'' before the semicolon at the end.
                                 ______
                                 
  SA 6. Mr. CORNYN submitted an amendment intended to be proposed by 
him to the bill S. 5, to amend the procedures that apply to 
consideration of interstate class actions to assure fairer outcomes for 
class members and defendants, and for other purposes; which was ordered 
to lie on the table; as follows:

       On page 26, strike line 21, and insert the following:

     SEC. 9. CLASS COUNSEL FEES.

       Rule 23(h) of the Federal Rules of Civil Procedure is 
     amended--
       (1) in paragraph (1), by inserting ``The claim shall 
     include the number of hours worked on the case each day by 
     each attorney, paralegal, or other individual, a description 
     of the activities performed each day by each individual, and 
     the standard hourly rate charged for each individual.'' after 
     ``time set by the court.''; and
       (2) by adding at the end the following:
       ``(5) Limitation.--
       ``(A) Definition.--For purposes of this paragraph, the term 
     `lodestar value' means the amount equal to the number of 
     hours worked on a class action case multiplied by the actual 
     hourly rates customarily charged by lawyers of comparable 
     experience.
       ``(B) In general.--The court may not award attorney fees in 
     a class action under this subsection in an amount in excess 
     of 400 percent of the lodestar value for such class 
     action.''.

     SEC. 10. EFFECTIVE DATE.

                                 ______
                                 
  SA 7. Mr. CORNYN submitted an amendment intended to be proposed by 
him to the bill S. 5, to amend the procedures that apply to 
consideration of interstate class actions to assure fairer outcomes for 
class members and defendants, and for other purposes; which was ordered 
to lie on the table; as follows:

       On page 14, strike line 12 and insert the following:
     eral or State officials.

     ``Sec. 1716. Opt-in class

       ``(a) In General.--Notwithstanding any other provision of 
     law, upon the motion of a party in a class action under this 
     chapter, a court may refuse to certify a class under rule 23 
     of the Federal Rules of Civil Procedure unless each member of 
     the class has affirmatively requested to be included in the 
     class.
       ``(b) Notice.--If the court imposes the requirement 
     described in subsection (a), the court shall direct the best 
     notice practicable to all eligible class members regarding 
     the effect of the class action suit on their rights to seek 
     redress in another manner if they do not affirmatively 
     request to be included in the class.''.
                                 ______
                                 
  SA 8. Mr. CORNYN submitted an amendment intended to be proposed by 
him to the bill S. 5, to amend the procedures that apply to 
consideration of interstate class actions to assure fairer outcomes for 
class members and defendants, and for other purposes; which was ordered 
to lie on the table; as follows:

       On page 26, between lines 5 and 6, insert the following:
       (d) Reporting of Class Action Settlements.--
       (1) Initial report.--Not later than 10 days after court 
     approval of a class action settlement under rule 23(e) of the 
     Federal Rules of Civil Procedure, the attorney for the 
     certified class shall submit a report to the Administrative 
     Office of the United States Courts, which contains--
       (A) the title of the case;
       (B) the jurisdiction of the court;
       (C) the name of the presiding judge;
       (D) the date on which the case was filed;
       (E) a definition of the putative class, including the 
     number of persons in the certified class;
       (F) the name of the defendants, attorneys for the 
     defendants, and the nature of the business of each defendant;
       (G) a description of the claim action by court 
     certification;
       (H) the name of the firms and attorneys for the certified 
     class;
       (I) the amount of the attorneys' fees sought and the amount 
     of such fees approved by the court;
       (J) the number of persons in the certified class determined 
     to be eligible for benefits;
       (K) the total amount of monetary damages awarded, including 
     the value of any cy pres or similar pay out; and
       (L) a specific description of injunctive or similar relief 
     approved by the court.
       (2) Subsequent report.--Not later than the earliest of the 
     date of the final distribution of payments to class members, 
     the date of the reversion of any uncollected benefit to the 
     defendants, or 360 days after the date on which the court 
     approves a class action settlement under rule 23(e) of the 
     Federal Rules of Civil Procedure, the attorney for the 
     certified class shall submit a report to the Administrative 
     Office of the United States Courts, which contains--
       (A) the total amount of the attorneys' fees paid, a 
     description of the method used to calculate such fees, and a 
     detailed report of all billing records;
       (B) the number of persons in the certified class determined 
     eligible to receive benefits, the number of such persons who 
     received benefits, and the amount of benefits paid to such 
     persons;
       (C) an accounting of the total value transferred, including 
     the value of any cy pres or similar pay out, and the value 
     paid by the defendants in noncash benefits; and
       (D) if any benefit remains uncollected or has reverted to 
     the defendants, the total value of such benefit.
       (3) Rulemaking.--The Administrative Office of the United 
     States Courts shall promulgate regulations regarding the 
     content, format, and timing of the reports required to be 
     submitted under paragraphs (1) and (2).
       (4) Publication.--The Administrative Office of the United 
     States Courts shall make the information contained in the 
     report submitted under paragraphs (1) and (2) publicly 
     accessible by posting such information on its website.
                                 ______
                                 
  SA 9. Mr. CORNYN submitted an amendment intended to be proposed by 
him to the bill S. 5, to amend the procedures that apply to 
consideration of interstate class actions to assure fairer outcomes for 
class members and defendants, and for other purposes; which was ordered 
to lie on the table; as follows:

       On page 26, strike line 21, and insert the following:

     SEC. 9. RIGHT OF INTERLOCUTORY APPEAL.

       (a) In General.--Section 1292(a) is amended by adding at 
     the end the following:
       ``(4) Orders of the district courts of the United States 
     granting or denying class certification under rule 23 of the 
     Federal Rules of Civil Procedure, if notice of appeal is 
     filed within 10 days after entry of the order. An appeal 
     under this paragraph shall stay all discovery and other 
     proceedings in the district court unless the court finds, 
     upon the motion of any party, that specific discovery is 
     necessary to preserve evidence or to prevent undue prejudice 
     to that party.''.
       (b) Conforming Amendment.--Rule 23(f) of the Federal Rules 
     of Civil Procedure is amended by striking ``An appeal'' and 
     inserting ``Except as provided under section 1292(a)(4) of 
     title 28, United States Code, an appeal''.

     SEC. 10. EFFECTIVE DATE.

                                 ______
                                 
  SA 10. Mr. CORNYN submitted an amendment intended to be proposed by 
him to the bill S. 5, to amend the procedures that apply to 
consideration of interstate class actions to assure fairer outcomes for 
class members and defendants, and for other purposes; which was ordered 
to lie on the table; as follows:

       On page 8, beginning on line 7, strike ``The court'' and 
     all that follows through line 13.
                                 ______
                                 
  SA 11. Mr. CORNYN submitted an amendment intended to be proposed by 
him to the bill S. 5, to amend the procedures that apply to 
consideration of interstate class actions to assure fairer outcomes for 
class members and defendants, and for other purposes; which was ordered 
to lie on the table; as follows:

       On page 21, line 3, strike ``all of the claims'' and all 
     that follows through ``(IV)'' on page 21, line 8.
                                 ______
                                 
  SA 12. Mr. FEINGOLD proposed an amendment to the bill S. 5, to amend 
the procedures that apply to consideration of interstate class actions 
to assure fairer outcomes for class members and defendants, and for 
other purposes; as follows:

       On page 22, strike line 22 and all that follows through 
     page 23, line 4, and insert the following:
       ``(1) In general.--Section 1447 shall apply to any removal 
     of a case under this section, except that--
       ``(A) not later than 60 days after the date on which a 
     motion to remand is made, the district court shall--
       ``(i) complete all action on the motion; or
       ``(ii) issue an order explaining the court's reasons for 
     not ruling on the motion within the 60 day period;
       ``(B) not later than 180 days after the date on which a 
     motion to remand is made, the

[[Page S1217]]

     district court shall complete all action on the motion unless 
     all parties to the proceeding agree to an extension; and
       ``(C) notwithstanding section 1447(d), a court of appeals 
     may accept an appeal from an order of a district court 
     granting or denying a motion to remand a class action to the 
     State court from which it was removed if application is made 
     to the court of appeals not less than 7 days after entry of 
     the order.

                          ____________________