[Congressional Record Volume 151, Number 47 (Tuesday, April 19, 2005)]
[House]
[Pages H2120-H2121]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
MULTIDISTRICT LITIGATION RESTORATION ACT OF 2005
Mr. SENSENBRENNER. Mr. Speaker, I move to suspend the rules and pass
the bill (H.R. 1038) to amend title 28, United States Code, to allow a
judge to whom a case is transferred to retain jurisdiction over certain
multidistrict litigation cases for trial, and for other purposes.
The Clerk read as follows:
H.R. 1038
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Multidistrict Litigation
Restoration Act of 2005''.
SEC. 2. MULTIDISTRICT LITIGATION.
Section 1407 of title 28, United States Code, is amended--
(1) in the third sentence of subsection (a), by inserting
``or ordered transferred to the transferee or other district
under subsection (i)'' after ``terminated''; and
(2) by adding at the end the following new subsection:
``(i)(1) Subject to paragraph (2) and except as provided in
subsection (j), any action transferred under this section by
the panel may be transferred for trial purposes, by the judge
or judges of the transferee district to whom the action was
assigned, to the transferee or other district in the interest
of justice and for the convenience of the parties and
witnesses.
``(2) Any action transferred for trial purposes under
paragraph (1) shall be remanded by the panel for the
determination of compensatory damages to the district court
from which it was transferred, unless the court to which the
action has been transferred for trial purposes also finds,
for the convenience of the parties and witnesses and in the
interests of justice, that the action should be retained for
the determination of compensatory damages.''.
SEC. 3. TECHNICAL AMENDMENT TO MULTIPARTY, MULTIFORM TRIAL
JURISDICTION ACT OF 2002.
Section 1407 of title 28, United States Code, as amended by
section 2 of this Act, is further amended by adding at the
end the following:
``(j)(1) In actions transferred under this section when
jurisdiction is or could have been based, in whole or in
part, on section 1369 of this title, the transferee district
court may, notwithstanding any other provision of this
section, retain actions so transferred for the determination
of liability and punitive damages. An action retained for the
determination of liability shall be remanded to the district
court from which the action was transferred, or to the State
court from which the action was removed, for the
determination of damages, other than punitive damages, unless
the court finds, for the convenience of parties and witnesses
and in the interest of justice, that the action should be
retained for the determination of damages.
``(2) Any remand under paragraph (1) shall not be effective
until 60 days after the transferee court has issued an order
determining liability and has certified its intention to
remand some or all of the transferred actions for the
determination of damages. An appeal with respect to the
liability determination and the choice of law determination
of the transferee court may be taken during that 60-day
period to the court of appeals with appellate jurisdiction
over the transferee court. In the event a party files such an
appeal, the remand shall not be effective until the appeal
has been finally disposed of. Once the remand has become
effective, the liability determination and the choice of law
determination shall not be subject to further review by
appeal or otherwise.
``(3) An appeal with respect to determination of punitive
damages by the transferee court may be taken, during the 60-
day period beginning on the date the order making the
determination is issued, to the court of appeals with
jurisdiction over the transferee court.
``(4) Any decision under this subsection concerning remand
for the determination of damages shall not be reviewable by
appeal or otherwise.
``(5) Nothing in this subsection shall restrict the
authority of the transferee court to transfer or dismiss an
action on the ground of inconvenient forum.''.
SEC. 4. EFFECTIVE DATE.
(a) Section 2.--The amendments made by section 2 shall
apply to any civil action pending on or brought on or after
the date of the enactment of this Act.
(b) Section 3.--The amendment made by section 3 shall be
effective as if enacted in section 11020(b) of the
Multiparty, Multiforum Trial Jurisdiction Act of 2002 (Public
Law 107-273; 116 Stat. 1826 et seq.).
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Wisconsin (Mr. Sensenbrenner) and the gentleman from California (Mr.
Berman) each will control 20 minutes.
The Chair recognizes the gentleman from Wisconsin (Mr.
Sensenbrenner).
General Leave
Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all
Members may have 5 legislative days within which to revise and extend
their remarks and include extraneous material on H.R. 1038, the bill
currently under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Wisconsin?
There was no objection.
Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may
consume.
(Mr. SENSENBRENNER asked and was given permission to revise and
extend his remarks, and include extraneous material.)
Mr. SENSENBRENNER. Mr. Speaker, H.R. 1038, the Multidistrict
Litigation Restoration Act of 2005, reverses the effect of a 1998
Supreme Court case commonly referred to as ``Lexecon,'' which has
hampered the Federal court system from adjudicating complex,
multidistrict cases that are related by a common fact situation. Just
as importantly, the bill functions as a technical correction to a
related ``disaster litigation'' provision that was incorporated in the
Department of Justice Authorization Act, which Congress passed in 2002.
A little background is in order at this point. During the 107th
Congress, I authored legislation to address the Lexecon and disaster
litigation problems. As passed under suspension by the House, my bill,
H.R. 860, accomplished two goals: First, the bill reversed the effect
of the Lexecon case which dealt with the authority of a specially
designated U.S. district court to handle complex multidistrict cases
consolidated for trial. Pursuant to the decision, the court known as
the ``transferee'' court could retain Federal and State cases only for
pretrial matters, but not the actual trials themselves.
H.R. 860 simply codified existing practice of the preceding 30 years
by allowing the transferee court to retain jurisdiction for the purpose
of determining liability and punitive damages, or to refer the cases
back to those courts in which the cases were originally filed. This
feature streamlines adjudication and enables the transferee court to
induce the parties to settle.
Second, H.R. 860 conferred original jurisdiction on U.S. district
courts to adjudicate any civil action arising out of a single accident
under prescribed conditions, but would remand the case to the State
courts for determination of compensatory damages. This portion of H.R.
860 is commonly referred to as the ``disaster litigation'' part of the
bill.
The Committee on the Judiciary in the other body took no action on
H.R. 860, but the matter was resurrected during House-Senate conference
deliberations on the Department of Justice authorization bill. Pursuant
to negotiations, the conferees agreed to take half of H.R. 860, the
disaster litigation portion, which is currently codified as section
1369 of title 28 of the U.S. Code.
Trying to enact a straight Lexecon fix through the bill before us is
meritorious in its own right, promoting as it does judicial efficiency,
but there is another problem that the bill solves. The currently
codified disaster litigation portion of H.R. 860 contemplates that the
Lexecon problem is solved. In other words, the new disaster litigation
law only creates original jurisdiction for a U.S. district court to
accept those cases and qualify as a transferee court
[[Page H2121]]
under the multidistrict litigation statute; but the transferee court
still cannot retain the consolidated cases for determination of
liability and punitive damages, which compromises the operation of the
statute.
In this sense, then, the Lexecon fix, its freestanding merits aside,
also functions as a technical correction for the recently enacted
disaster litigation measure. H.R. 1038, in tandem with the now-codified
disaster litigation provisions, will produce what was originally
intended when legislation addressing this issue was first proposed, a
fix to the Lexecon problem and a disaster litigation measure that
really works.
I remind Members that H.R. 1038 is identical to H.R. 1768 from the
108th Congress, which passed the House by a rollcall vote of 418-0. In
sum, this legislation speaks to process, fairness and judicial
efficiency. It will not interfere with jury verdicts or compensation
rates for litigators.
Mr. Speaker, I include for the Record a letter from the U.S. Judicial
Conference stating their strong support for enactment of H.R. 1038. I
urge my colleagues to join me in a bipartisan effort to support this
bill.
Judicial Conference
of the United States,
Washington, DC, April 18, 2005.
Hon. F. James Sensenbrenner, Jr.,
Chairman, Committee on the Judiciary, House of
Representatives, Washington, DC.
Dear Mr. Chairman: The Judicial Conference of the United
States strongly supports enactment of H.R. 1038, the
``Multidistrict Litigation Restoration Act of 2005,'' which
you introduced on March 2, 2005 and which was reported
favorably by the House Judiciary Committee on March 17, 2005.
H.R. 1038 will facilitate the resolution of claims by
citizens and improve the administration of justice.
Currently, section 1407(a) of title 28, United State Code,
the multidistrict litigation statute, authorizes the Judicial
Panel on Multidistrict Litigation (the Judicial Panel) to
transfer civil actions with common questions of fact that are
pending in multiple federal judicial districts ``to any
district for coordinated or consolidated pretrial
proceedings.'' It also requires the Judicial Panel to remand
any such action to the district court in which the action was
filed at or before the conclusion of such pretrial
proceedings, unless the action is terminated before then in
the transferee court.
Although the federal courts had for nearly 30 years
followed the practice of allowing a transferee court to
invoke the venue transfer provision (28 U.S.C. Sec. 1404(a))
and transfer the case to itself for trial purposes, the
Supreme Court in Lexecon, Inc. v. Milberg Weiss Bershad Hynes
& Lerach, 523 U.S. 26 (1998), held that such statutory
authority did not exist. The Court noted that the proper
venue for resolving the desirability of such self-transfer
authority is the ``the floor of Congress.'' 523 U.S. at 40.
Section 2 of H.R. 1038 responds to the Lexecon decision by
amending 28 U.S.C. Sec. 1407 to allow a judge with a
transferred case to retain it for trial or to transfer it to
another district in the interest of justice and for the
convenience of the parties and witnesses. This section also
provides that any action transferred for trial must be
remanded by the Judicial Panel to the district court from
which it was transferred for the determination of
compensatory damages, unless the transferee court finds for
the convenience of the parties and witnesses and in the
interests of justice that the action should be retained for
the determined of compensatory damages. As experience has
shown, there is wisdom in permitting the judge who is
familiar with the facts and parties and pretrial proceedings
of a transferred case to retain the case for trial. Also, as
with most federal civil actions, multidistrict litigation
cases are typically resolved through settlement. Allowing the
transferee judge to set a firm trial date promotes the
resolution of these cases.
H.R. 1038 also seeks to make corrections to the Multiparty,
Multiforum Trial Jurisdiction Act of 2002, which was enacted
as section 11020 of the ``21st Century Department of Justice
Appropriations Authorization Act'' (Pub. L. No. 107-273, 116
Stat. 1758; now codified in various sections in title 28,
United States Code. See 2 U.S.C. Sec. Sec. 1369, 1391, 1441,
1697, and 1785.)
The Judicial Conference appreciates your support of H.R.
1038. If you or your staff have any questions, please contact
Mark W. Braswell or Karen Kremer, Counsel, Office of
Legislative Affairs (202-502-1700).
Sincerely,
Leonidas Ralph Mecham,
Secretary.
Mr. SENSENBRENNER. Mr. Speaker, I reserve the balance of my time.
Mr. BERMAN. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I rise to support House passage of H.R. 1038. At least
five times over the past 6 or 7 years I have risen to support
legislation virtually identical to H.R. 1038. Each time the legislation
has stalled in the Senate.
This bill has a very narrow purpose and effect. It overturns the 1998
Lexecon decision of the Supreme Court. That decision held that a
multidistrct litigation transferred to a Federal court for pretrial
proceedings cannot be retained by that court for trial purpose. In so
holding, the Lexecon decision upset decades of practice by the
multidistrict litigation panel and Federal district courts. The Lexecon
decision also increases the cost and complexity of such multidistrict
litigations by requiring courts other than the transferee court which
has overseen the discovery and other pretrial proceedings to conduct a
trial.
The provisions of this bill overturn Lexecon in a carefully
calibrated manner. While the bill allows a transferee court to retain a
case for a trial on liability issues and, when appropriate, on punitive
damages, it creates a presumption that the trial of compensatory
damages will be remanded to the transferor court. In so doing, the bill
is careful to overturn the Lexecon decision without expanding the power
previously exercised by transferee courts. More importantly, the
presumption regarding the trial of compensatory damages ensures that
plaintiffs will not be unduly burdened in pursuit of their claims.
In addition, this bill makes technical and conforming corrections to
the provisions in the 2002 Department of Justice authorization measure
relating to the consolidation of mass tort cases. While not universally
endorsed, most Democratic members of the Committee on the Judiciary
have supported this piece of legislation each time it is submitted for
consideration, and I ask my colleagues to once again vote for H.R.
1038.
Mr. Speaker, I reserve the balance of my time.
Mr. SENSENBRENNER. Mr. Speaker, I yield 1 minute to the gentleman
from Texas (Mr. Smith).
Mr. SMITH of Texas. Mr. Speaker, I will not repeat the chairman's
description of the bill's contents, but I would note that his bill is
identical to the text of the legislation we passed in the last Congress
by a vote of 418-0.
H.R. 1038 helps the Multidistrict Litigation Panel discharge its
responsibilities by streamlining the adjudication of complex,
multidistrict cases in a manner that is fair to all litigants.
Mr. CONYERS. Mr. Speaker, I have supported this legislation in the
past because I am told it will improve the ability of Federal courts to
handle complex multidistrict litigation arising from a common set of
facts.
But I do have some reservations about this bill. When Congress
enacted the Multidistrict Litigation, MDL, statute 35 years ago, its
purpose was not to impose an unfair burden on plaintiffs and their
families. Congress made plain its insistence on preserving the ability
of individual plaintiffs to have their eventual day in court in a
Federal district courthouse reasonably close to their home.
I want to make sure we continue to strike the right balance between
emphasizing judicial economy and efficiency and preserving fundamental
fairness during the critical trial phase. With this underlying goal in
mind, I support this legislation. However, I hope the bill will
continue to improve as it moves through the Senate and into Conference.
Mr. BERMAN. Mr. Speaker, I have no further requests for time, and I
yield back the balance of my time.
Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Wisconsin (Mr. Sensenbrenner) that the House suspend the
rules and pass the bill, H.R. 1038.
The question was taken; and (two-thirds having voted in favor
thereof) the rules were suspended and the bill was passed.
A motion to reconsider was laid on the table.
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