[Congressional Record Volume 162, Number 4 (Thursday, January 7, 2016)]
[House]
[Pages H117-H123]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PROVIDING FOR CONSIDERATION OF H.R. 1927, FAIRNESS IN CLASS ACTION
LITIGATION ACT OF 2015
Mr. COLLINS of Georgia. Mr. Speaker, by direction of the Committee on
Rules, I call up House Resolution 581 and ask for its immediate
consideration.
The Clerk read the resolution, as follows:
H. Res. 581
Resolved, That at any time after adoption of this
resolution the Speaker may, pursuant to clause 2(b) of rule
XVIII, declare the House resolved into the Committee of the
Whole House on the state of the Union for consideration of
the bill (H.R. 1927) to amend title 28, United States Code,
to improve fairness in class action litigation. The first
reading of the bill shall be dispensed with. All points of
order against consideration of the bill are waived. General
debate shall be confined to the bill and amendments specified
in this resolution and shall not exceed one hour equally
divided and controlled by the chair and ranking minority
member of the Committee on the Judiciary. After general
debate the bill shall be considered for amendment under the
five-minute rule. In lieu of
[[Page H118]]
the amendment in the nature of a substitute recommended by
the Committee on the Judiciary now printed in the bill, it
shall be in order to consider as an original bill for the
purpose of amendment under the five-minute rule an amendment
in the nature of a substitute consisting of the text of Rules
Committee Print 114-38. That amendment in the nature of a
substitute shall be considered as read. All points of order
against that amendment in the nature of a substitute are
waived. No amendment to that amendment in the nature of a
substitute shall be in order except those printed in the
report of the Committee on Rules accompanying this
resolution. Each such amendment may be offered only in the
order printed in the report, may be offered only by a Member
designated in the report, shall be considered as read, shall
be debatable for the time specified in the report equally
divided and controlled by the proponent and an opponent,
shall not be subject to amendment, and shall not be subject
to a demand for division of the question in the House or in
the Committee of the Whole. All points of order against such
amendments are waived. At the conclusion of consideration of
the bill for amendment the Committee shall rise and report
the bill to the House with such amendments as may have been
adopted. Any Member may demand a separate vote in the House
on any amendment adopted in the Committee of the Whole to the
bill or to the amendment in the nature of a substitute made
in order as original text. The previous question shall be
considered as ordered on the bill and amendments thereto to
final passage without intervening motion except one motion to
recommit with or without instructions.
Sec. 2. Further proceedings on any question on a motion
relating to the disposition of the veto message and the bill,
H.R. 3762, may be postponed through the legislative day of
January 25, 2016, as though under clause 8 of rule XX.
The SPEAKER pro tempore. The gentleman from Georgia is recognized for
1 hour.
Mr. COLLINS of Georgia. Mr. Speaker, for the purpose of debate only,
I yield the customary 30 minutes to the gentleman from Florida (Mr.
Hastings), pending which I yield myself such time as I may consume.
During consideration of this resolution, all time yielded is for the
purpose of debate only.
General Leave
Mr. COLLINS of Georgia. Mr. Speaker, I ask unanimous consent that all
Members have 5 legislative days to revise and extend their remarks and
include extraneous materials on House Resolution 581 currently under
consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Georgia?
There was no objection.
Mr. COLLINS of Georgia. Mr. Speaker, I am pleased to bring forward
this rule today on behalf of the Committee on Rules. It is a structured
rule that provides 1 hour of general debate equally divided and
controlled by the chair and ranking member of the Committee on the
Judiciary.
Given the House's schedule this month, the rule also provides that a
vote on any motion relating to disposition of the veto message for
reconciliation measure passed yesterday by the House may be postponed
through January 25.
Consistent with the vision of Speaker Ryan and Chairman Sessions, I
am pleased that the robust majority of amendments submitted to the
Committee on Rules were made in order. Of the 13 amendments submitted,
10 amendments will be considered on the House floor.
Yesterday the House Committee on Rules received testimony from the
chairman of the Committee on the Judiciary and the ranking member of
the Subcommittee on the Constitution and Civil Justice, in addition to
receiving amendment testimony from several Members.
Mr. Fitzpatrick from Pennsylvania brought forward an important
amendment regarding FDA-approved medical devices. Although his
amendment was not germane to this particular piece of legislation, he
is a champion for his constituents, and I appreciate the testimony that
he shared with the committee. His constituent suffered unimaginable
pain, heartbreak, and ultimately her child because of Essure. It is my
understanding that the FDA will release their Essure safety review next
month. Once we assess the FDA's findings and conclusion, I hope
Congress will take any appropriate action needed to protect the health
of women and their unborn babies.
This rule provides for the consideration of H.R. 1927, the Fairness
in Class Action Litigation and Furthering Asbestos Claim Transparency
Act of 2015, introduced by the chairman of the Committee on the
Judiciary, Bob Goodlatte, and the chairman of the Subcommittee on the
Constitution and Civil Justice, Trent Franks.
Subcommittee hearings were held on this legislation. It was also
marked up and reported by the Committee on the Judiciary. Although this
bill went through regular order and enjoyed lively and meaningful
discussion at the subcommittee and full committee levels, some
misperceptions remain.
This legislation provides a targeted solution to a targeted problem.
The core issue it presents is whether the injury suffered by named
plaintiffs in a class action suit matches the injuries suffered by the
class. Additionally, and this is the point to clarify, the civil rights
class actions such as Brown v. Board of Education would not--and I
repeat, would not--be impacted by H.R. 1927.
Let me be clear. This legislation does not kill class action.
Virtually every time this body or the courts attempt to reform class
action lawsuits after clear abuses, opponents claim the reforms,
whatever they may be, will mean the demise of class action.
When Congress passed the Private Securities Litigation Reform Act in
1995 to limit frivolous securities lawsuits, opponents claimed it would
kill securities class action. It did not. In fact, President Clinton
vetoed the legislation, Congress overrode the veto, and our legal
system is the better for it.
When Congress passed the Class Action Fairness Act, CAFA, in 2005,
opponents once again claimed that the passage would mean the end of
class actions. CAFA had two targeted goals: reducing abusive forum
shopping by plaintiffs and requiring greater Federal scrutiny
procedures for the review of class action settlements in certain
circumstances.
You may recall an infamous Alabama class action involving Bank of
Boston, where the attorneys' fees exceeded the relief to the class
members, and the class members lost money paying attorneys for the
victory. It doesn't sound like much of a victory. Yet at the time, the
opponents of reform made virtually identical arguments against that
legislation that they are making today against H.R. 1927. They are
baseless and unsupported by history.
{time} 1245
Researchers at the Federal Judicial Center conducted a study on the
impact of CAFA and concluded that post-enactment there was an increase
in the number of class actions filed in or removed to the Federal
courts based on diversity jurisdiction, consistent with congressional
intent.
The class action is alive and well and is an important part of our
legal system, and it will remain that way. Claims to the contrary are
overused and inaccurate.
H.R. 1927 is a targeted solution that says a Federal court may not
certify a proposed class unless the party seeking the class action
demonstrates through admissible evidentiary proof that each proposed
class member suffered an injury of the same type and the extent of the
injury of the named class representative or representatives.
This requirement already exists in rule 23 of the Federal Rules of
Civil Procedure. Unfortunately, not all courts appropriately interpret
and apply these standards. If my colleagues across the aisle disagree
with rule 23 standards, then we can certainly debate the merits of that
standard.
But to claim that codifying an existing standard to ensure consistent
and appropriate application by the courts will kill the class action
and discourage victims from seeking redress is simply not supported by
the facts.
Class actions exist--and rightly so--to allow a group of individuals
similarly harmed to seek monetary compensation for their injuries.
Today, however, there are far too many cases in which a named plaintiff
with an injury brings a lawsuit seeking to represent a class. No
problem here. This is how the system was designed to work.
The abuse of the system arises when the class includes countless
others that have suffered no injury at all. These no-injury class
actions are designed simply to exploit companies and achieve a quick
payday because either no genuine injury has occurred yet or because it
never will.
[[Page H119]]
Class actions should be preserved as a tool for those harmed to
receive compensation. H.R. 1927 will allow the courts to focus their
resources on cases where injury has occurred and ensuring those
responsible are held accountable.
Not surprisingly, this commonsense approach is supported by the
American people. A recent DRI National Poll on the Civil Justice System
found that 78 percent of Americans would support a law requiring a
person to show that they were actually harmed by a company's products,
services, or policies to join a class action rather than just showing
potential for harm.
Further illustrating this body's commitment to do right by victims
and ensure that they are compensated for their injuries, H.R. 1927 also
contains the text of the Furthering Asbestos Claim Transparency Act, or
the FACT Act.
The FACT Act is designed to reduce fraud in compensation claims for
asbestos-related diseases so we can ensure that resources exist for
true victims. Double-dipping is an all too common occurrence in
asbestos claims, and for every dollar inappropriately given, it means
$1 less for true victims who face mesothelioma and other asbestos-
related illnesses.
True victims are often those to whom our country owes its greatest
debt: our veterans. Veterans currently comprise 9 percent of the
population; yet, they make up approximately 30 percent of asbestos
victims. Veterans are uniquely positioned to benefit from the increased
transparency that would result from the enactment of this bill.
Many veterans groups support this legislation, including the American
Military Society, Save our Veterans, the Veterans Resource list, and
numerous other State and local veterans groups.
Opponents of this bill also claim that it will negatively impact
privacy rights for claimants. This is not true. The bill actually
requires far less personal information than is currently required by
State courts in their current disclosure forms.
This legislation will reduce fraud in the asbestos trust system,
which will ultimately protect and maximize assets available to
compensate future asbestos victims, veterans or otherwise.
I thank Chairman Goodlatte and his staff for their tireless work to
bring forward these pro-victim reforms, and I am pleased we will have
robust general and amendment debate on this important topic.
Mr. Speaker, I reserve the balance of my time.
Mr. HASTINGS. Mr. Speaker, I yield myself such time as I may consume.
I thank the gentleman from Georgia for yielding me the customary 30
minutes for debate.
Mr. Speaker, I rise in opposition to this rule, which provides for
consideration of H.R. 1927, called the Fairness in Class Action
Litigation Act, which in practice will unfairly hamper large numbers of
injured parties from effectively seeking redress in court, including
civil rights, employment discrimination, consumer protection, and
asbestos victim litigants.
Let me put my bona fides on the table here. I have filed class
actions, particularly in civil rights cases. Each of them were
certified as class actions. They led to the desegregation of schools in
the county that I am privileged to serve, the desegregation of juvenile
detention facilities, and several others too numerous to mention.
As a United States district court judge, I also had the privilege of
presiding in cases where certification was sought for class actions.
The great majority of those cases were not certified by me, largely for
the reason that they did not meet the rigorous test that is already in
place and that has been in place for nearly 40 years, with many changes
having taken place over the years through the Federal process. That is
what I would argue would be the best for us to do.
First, this bill includes language that prohibits Federal courts from
certifying that a group can file a class action lawsuit unless the
group demonstrates by admissible evidentiary proof that each proposed
class member suffered an injury of the same type and scope of the
injury of the named class representative.
A footnote right here. My read is that Brown v. Board of Education,
the most significant school desegregation case in the history of this
country, would not have qualified as a class action under this measure,
as proposed.
My friends in the majority claim that this measure is necessary to
reduce fraud and exploitation in the class action system, maintaining
that, under current rules, Federal courts have certified classes that
include individuals who have not been injured, but have been forced
into a class action lawsuit against their will.
This claim and the legislation it inspired has been met by much
opposition from a broad range of legal, civil rights, labor, consumer,
and public interest groups, including the American Bar Association, the
American Civil Liberties Union, AFSCME, NAACP, Consumer Federation of
America, National Consumer Law Center, Public Citizen, Public Justice,
and American Association for Justice, among a myriad of others.
Mr. Speaker, I include in the Record letters from the American Bar
Association, Public Citizen, American Federation of Labor and Congress
of Industrial Organizations, the Asbestos Disease Awareness
Organization, and the Military Order of the Purple Heart. All of those
organizations that I just identified are opposed to this legislation.
Their language speaks for itself, for those who may peruse the
Congressional Record.
American Bar Association,
Washington, DC, June 23, 2015.
Hon. Bob Goodlatte,
Chairman, House Judiciary Committee,
Washington, DC.
Dear Chairman Goodlatte: On behalf of the American Bar
Association and its almost 400,000 members, I write to offer
our views as the Committee considers class action reform. I
understand that your Committee intends to mark up H.R. 1927,
the ``Fairness in Clam Action Litigation Act of 2015''
tomorrow. The ABA has long recognized that we must continue
to improve our judicial system; however, we cannot support
legislation such as H.R. 1927, because it would unnecessarily
circumvent the Rules Enabling Act, make it more difficult for
large numbers of injured parties to efficiently seek redress
in court, and would place added burdens on an already
overloaded court system.
This proposed legislation would circumvent the time-proven
process for amending the Federal Rules of Civil Procedure
established by Congress in the Rules Enabling Act. Rule 23 of
the Federal Rules of Civil Procedure governs determinations
whether class certification is appropriate. This rule was
adopted in 1966 and has been amended several times utilizing
the procedure established by Congress. The Judicial
Conference, the policymaking body for the courts, is
currently considering changes to Rule 23, and we recommend
allowing this process to continue. In addition, the Supreme
Court is poised to rule on cases where there are questions
surrounding class certification. For example, the Court
agreed to hear Tyson Foods v. Bouaphakeo, where they will
determine whether a class can be certified when it contains
some members who have not been injured. We respectfully urge
you to allow these processes for examining and reshaping
procedural and evidentiary rules to work as Congress
intended.
Currently, to proceed with a class action case, plaintiffs
must meet rigorous threshold standards. A 2008 study by the
Federal Judicial Center found that only 25 percent of
diversity actions filed as class actions resulted in class
certification motions, nine percent settled, and none went to
trial. These data show that current screening practices are
working. However, if the proponents of this legislation are
concerned about frivolous class action cases and believe that
screening can be even more effective through rule changes,
those changes should be proposed and considered utilizing the
current process set forth by Congress in the Rules Enabling
Act.
In addition to circumventing the rulemaking process, the
proposed legislation would severely limit the ability of
victims who have suffered a legitimate harm to collectively
seek justice in a class action lawsuit. The proposed
legislation mandates that in order to be certified as a class
each individual member must prove he or she suffered an
injury of the same type and scope to the proposed named class
representative(s), and requires plaintiffs to show they
suffered bodily injury or property damage.
We were pleased learn that a manager's amendment is
expected to be offered during tomorrow's markup that removes
the requirement that the alleged harm to the plaintiff
involved bodily injury or property damage. This improves the
bill, but the remaining requirement leaves a severe burden
for people who have suffered harm at the hands of large
institutions with vast resources, effectively barring them
from forming class actions. For example, in a recent class
action case against the Veterans Administration, several
veterans sued for a variety of grievances centered on delayed
claims. The requirement in this legislation
[[Page H120]]
that plaintiffs suffer the same type of injuries might have
barred these litigants from forming a class because each
plaintiff suffered harms that were not the same.
Class actions have been an efficient means of resolving
disputes. Making it harder to utilize class actions will add
to the burden of our court system by forcing aggrieved
parties to file suit in smaller groups, or individually.
We appreciate the opportunity to provide our input and urge
you to keep these recommendations in mind as you continue to
debate class action reform legislation. If the ABA can
provide you or your staff with any additional information
regarding the ABA's views, or if we can be of further
assistance, please contact me or ABA Governmental Affairs
Legislative Counsel, David Eppstein.
Sincerely,
Thomas M. Susman,
Director,
Governmental Affairs Office.
____
Public Citizen,
Washington, DC, May 13, 2015.
Re Oppose H.R. 26
House of Representatives,
Judiciary Committee, Washington, DC.
Dear Honorable Committee Members: On behalf of Public
Citizen's more than 350,000 members and supporters, we
strongly urge you to oppose H.R. 526, the Furthering Asbestos
Claim Transparency Act (FACT Act).
The FACT Act invades the privacy of asbestos disease
victims and will have the effect of delaying compensation for
those suffering with lethal diseases like mesothelioma.
Congress should act to protect these victims instead of
opening the door for the asbestos industry to further escape
accountability for poisoning the public and exposing trust
claimants to scams, identity theft, and other privacy
violations.
The dangerous product asbestos was once ubiquitous as
insulation and flame retardant in buildings, homes and
workplaces like naval vessels. The frightening reality is
that an unknown amount of the cancer-causing substance is
still present in our surroundings, but the asbestos industry
does not have to disclose where and when it was and is being
used.
The Centers for Disease Control and Prevention report that
roughly 3,000 people continue to die from mesothelioma and
asbestosis every year and some experts estimate the death
toll is as high as 12,000-15,000 people per year when other
types of asbestos-linked diseases and cancers are included.
Instead of helping these victims, H.R. 526 would put
unworkable burdens on claims trusts. For example, the bill
would impose a requirement for trusts to respond to any and
all corporate defendants' information requests. Such a
requirement would have the effect of slowing or virtually
stopping the ability of trusts to provide compensation for
victims. Since patients diagnosed with fatal asbestos-caused
diseases like mesothelioma have very short expected
lifespans, a delay in justice could leave victims' next of
kin struggling to pay medical and funeral bills.
The FACT Act does nothing to improve the lives of those
facing an asbestos death sentence through no fault of their
own. The bill instead adds insult to injury and inexcusably
invades the privacy of victims by requiring public disclosure
of personal claim information, including portions of their
social security numbers, opening the door to identity theft
and possible discrimination.
Instead of the FACT Act's misguided push for
``transparency'' via asbestos trust claim information
disclosures, an appropriate transparency standard would
ensure that workers and consumers have all the information
necessary to limit their potential exposure to the deadly
substance. Specifically, companies should publicly disclose
their activities related to the manufacture, processing,
distribution, sales, importation, transport or storage of
asbestos or asbestos-containing products. That's why Public
Citizen supports Sens. Durbin and Markey's and Reps. DelBene
and Green's Reducing Exposure to Asbestos Database Act (READ
Act, S. 700/H.R. 2030) which would create an information
portal for the public to learn about the many asbestos-
containing products that are currently bought and sold in the
U.S.A.
The real outrage is the double oppression of asbestos
victims, and the real need for transparency is disclosure of
past and ongoing asbestos exposures. Please oppose H.R. 526.
Sincerely,
Lisa Gilbert,
Director, Public Citizen's Congress Watch division.
Susan Harley,
Deputy Director, Public Citizen's Congress Watch division.
____
American Federation of Labor and Congress of Industrial
Organizations,
Washington, DC, January 5, 2016.
Dear Representative: I am writing to express the strong
opposition of the AFL-CIO to H.R. 1927, the ``Fairness in
Class Action Litigation and Furthering Asbestos Claim
Transparency Act'' which is scheduled for consideration by
the House of Representatives this week. This bill
incorporates H.R. 526, the Furthering Asbestos Claim
Transparency Act (FACT Act), which would invade the privacy
of asbestos victims by posting personal exposure and medical
information online and create new barriers to victims
receiving compensation for their asbestos diseases. The AFL-
CIO urges you to oppose this harmful bill.
Decades of uncontrolled use of asbestos, even after its
hazards were known, have resulted in a legacy of disease and
death. Hundreds of thousands of workers and family members
have suffered or died of asbestos-related cancers and lung
disease, and the toll continues. Each year an estimated
10,000 people in the United States are expected to die from
asbestos related diseases.
Asbestos victims have faced huge barriers and obstacles to
receiving compensation for their diseases. Major asbestos
producers refused to accept responsibility and most declared
bankruptcy in an attempt to limit their future liability. In
1994 Congress passed special legislation that allowed the
asbestos companies to set up bankruptcy trusts to compensate
asbestos victims and reorganize under the bankruptcy law. But
these trusts don't have adequate funding to provide just
compensation, and according to a 2010 RAND study, the median
payment across the trusts is only 25 percent of the claim's
value. With compensation from these trusts so limited,
asbestos victims have sought redress from the manufacturers
of other asbestos products to which they were exposed.
The AFL-CIO is well aware that the system for compensating
asbestos disease victims has had its share of problems, with
victims facing delays and inadequate compensation and too
much money being spent on defendant and plaintiff lawyers. We
have spent years of effort trying to seek solutions to make
the asbestos compensation system fairer and more effective.
But the FACT Act does nothing to improve compensation for
asbestos victims and would in fact make the situation even
worse. In our view, the bill is simply an effort by asbestos
manufacturers who are still subject to asbestos lawsuits to
avoid liability for diseases caused by exposure to their
products.
The FACT Act would require personally identifiable exposure
histories and disease information for each asbestos victim
filing a claim with an asbestos trust, and related payment
information, to be posted on a public docket. This public
posting is an extreme invasion of privacy. It would give
unfettered access to employers, insurance companies, workers
compensation carriers and others who could use this
information for any purpose including blacklisting workers
from employment and fighting compensation claims.
The bill would also require asbestos trusts to provide on
demand to asbestos defendants and litigants any information
related to payments made by and claims filed with the trusts.
This would place unnecessary and added burdens on the trusts
delaying much-needed compensation for asbestos victims. Such
a provision allows asbestos defendants to bypass the
established rules of discovery in the civil justice system,
and provides broad unrestricted access to personal
information with no limitations on its use.
Congress should be helping the hundreds of thousands of
individuals who are suffering from disabling and deadly
asbestos diseases, not further victimizing them by invading
their privacy and subjecting them to potential blacklisting
and discrimination.
The AFL-CIO strongly urges you to oppose H.R. 1927.
Sincerely,
William Samuel,
Director, Government Affairs Department.
____
Asbestos Disease
Awareness Organization,
Redondo Beach, CA, February 4, 2015.
Re Opposition to the Furthering Asbestos Claim Transparency
Act of 2015 (H.R. 526)
Hon. Bob Goodlatte,
Chairman, House Committee on the Judiciary, Washington, DC.
Hon. John Conyers, Jr.,
Ranking Member, House Committee on the Judiciary, Washington,
DC.
Dear Chairman Goodlatte and Ranking Member Conyers: As both
a mesothelioma widow and the President and Co-Founder of the
Asbestos Disease Awareness Organization, I respectfully write
to express my strong opposition to the Furthering Asbestos
Claim Transparency (FACT) Act of 2015, H.R. 526.
Asbestos is a known human carcinogen that causes deadly
cancerous diseases. Asbestos-related diseases kill at least
10,000 Americans every year. Yet, it remains a major public
health hazard that severely affects too many American
families. Notwithstanding these lethal exposures, the 2014
U.S. Geological Survey World Report confirmed that although
Asbestos has not been mined in the United States since 2002,
the U.S. continues to import Asbestos to ``meet manufacturing
needs.''
These same manufacturing interests who for years hid the
dangers of their lethal Asbestos products, are now asking
Congress--under the guise of transparency--to impose new time
and cost-consuming requirements on the asbestos trusts, grant
asbestos defendants new rights to infringe upon victims'
privacy, and operate the trusts in a manner that will unduly
burden asbestos victims and their families, without
justification. I oppose the bill not only because it is both
fundamentally unfair and discriminatory toward asbestos
cancer victims, but because it is entirely one-sided, and
seeks absolutely nothing in the way of increased transparency
from the same industry that caused the largest man-made
disaster in human history, and covered it up for years.
[[Page H121]]
There is no justification for exposing families to the
additional burdens set forth in H.R. 526. Information needed
to verify the health of the trusts is already publicly
available in a way that protects the privacy of the victims
of asbestos disease and their families. And trusts
established by asbestos companies undergoing reorganization
effectively compensate current and future asbestos victims
while allowing business operations to continue. Trusts are
designed to decrease litigation and costs, yet the proposed
reporting requirements contained in the FACT Act work
contrary to that very purpose. Instead, the FACT Act grants
asbestos companies the right to require from the trusts any
information they choose, at any time, and for practically any
reason. The resulting delay in compensation will gravely
impact patients' pursuit of medical care, negatively affects
all victims of asbestos exposure, and effectively limits the
justice they deserve. Accordingly, I am strongly opposed to
the FACT Act, which creates even greater burdens for patients
and families to overcome during an already extremely
difficult time.
I am extremely disappointed that recent Congressional
legislative efforts have focused on ways to limit the
litigation designed to compensate victims, when the most
obvious way to limit the impact of asbestos exposure is
through increased public awareness of the dangers posed, and
prevention. Americans need legislation that will stop the
continued import of asbestos into our country, and prevent
the continued expanse of environmental and occupational
asbestos-related diseases. As consumers and workers,
Americans deserve transparency to prevent exposure to
asbestos, not to penalize victims.
More than 30 Americans die each day from a preventable
asbestos-caused disease. On behalf of the American citizens,
we urge you to take the time to hear from the victims of
asbestos exposure and consider legislation that will protect
public health, not legislation designed only to delay and
deny justice for victims of asbestos exposure.
Sincerely,
Linda Reinstein,
President and Co-Founder,
Asbestos Disease Awareness Organization.
____
Military Order
of the Purple Heart,
Springfield, VA, July 8, 2015.
Hon. John Conyers,
Washington, DC.
Dear Representative Conyers: As H.R. 526 ``FACT Act'' makes
it way through the legislative process, the Military Order of
the Purple Heart of the U.S.A. (MOPH) wishes to reiterate its
firm opposition to this bill.
We are disappointed to see that our declaration of
opposition in February of this year has not stopped this bill
in its tracks. Have no doubt and make no mistake, the FACT
Act will have a very burdensome and detrimental effect on the
asbestos personal injury trust claims for veterans and their
families who have been exposed to this deadly product. The
Association of the United States Navy (AUSN) and American
Veterans (AMVETS) recognize this as well and recently joined
us in opposing this legislation.
On May 14th during the full Judiciary Committee mark-up of
H.R. 526 ``FACT Act'', the legislation's author,
Representative Blake Farenthold shared with the committee a
list of eleven ``veterans organizations'' that support the
FACT Act. It needs to be noted that none of the groups
mentioned were a national veterans service organization such
as the MOPH. In fact, the majority of the groups listed by
the Representative are not recognized veterans service
organizations at all.
The Military Order of the Purple Heart, of the U.S.A. is a
Congressionally chartered national veterans service
organization and is the only one that is exclusively made up
of combat wounded Purple Heart veterans. We carefully
consider each piece of veterans' related legislation to
assure it is either truly beneficial or truly negative for
veterans before we take an official position. We speak on
behalf of our 45,000 members across the nation, not just a
couple of hundred in a few states.
H.R. 526 is bad for veterans. The MOPH has been, and will
continue to be, staunch advocates for our members and all
veterans of the United States Armed Forces. We continue to
oppose H.R. 526 and respectfully ask you to join us.
Respectfully,
J. Patrick Little,
National Commander.
Mr. HASTINGS. Mr. Speaker, the reality is that the current screening
practices for certifying which individuals may file a class action
lawsuit are working. Currently, plaintiffs must meet, as I said
earlier, rigorous threshold standards to proceed with a class action.
In fact, a 2008 study by the Federal Judicial Center found that only
25 percent of diversity actions filed as class actions resulted in
class certification motions. In the cases I presided in, there were
less than 25 percent. 9 percent settled and none went to trial.
Why must we begin this new year with yet another piece of legislation
that is a solution in search of a problem?
In short, this ill-conceived and unneeded bill unnecessarily
circumvents the Rules Enabling Act, the process established by the
Congress to amend the Federal Rules of Civil Procedure, making it more
difficult for large numbers of injured parties to effectively seek
redress in court and would place additional burdens on an already
overloaded court system.
I should add that the Judicial Conference, the policymaking body for
the Federal courts of this country, is currently considering changes to
rule 23, which governs determination of whether class certification is
appropriate, and the Supreme Court has agreed to hear cases where there
are questions surrounding class certification, including Tyson Foods v.
Bouaphakeo.
It would behoove us to allow these processes for examining and
revising procedural and evidentiary rules to work as Congress intended.
The requirement in this bill that each proposed class member must
prove he or she suffered an injury of the same type and scope of the
injury of the named class representative effectively bars individuals
who have suffered harm at the hands of large institutions with immense
resources from forming class actions.
I am also highly concerned that the injury language included in this
bill will exclude from the courts entire categories of lawsuits, most
significantly, victims of discriminatory practices or civil rights
violations seeking redress.
A commonsense reading of this provision, as I indicated, might well
have excluded class actions such as Brown v. Board of Education. Brown
served as a catalyst for the modern civil rights movement, ultimately
leading to full equality for African Americans.
Under this legislation, class action plaintiffs must effectively
prove the merits of their case as a condition of class certification,
making most class actions nearly impossible to pursue.
A mechanism must exist to hold corporations and other entities
accountable when they engage in systemic discrimination, unfair and
deceptive practices, consumer fraud, and other wrongdoing that harms
large numbers of people. This bill undermines this vital tool.
Let me give you an example, which is the cases brought against airbag
deception that are currently being litigated and that we see much of in
the news. If we were to look at scope of injury, some people were
killed, and some people received minor injuries. Some people who had
those airbags did not receive injuries.
But it seems logical to allow that all of the persons who had those
automobiles should have an opportunity for corrective procedures,
regardless of whether or not that was a wrongful death or whether or
not there was an injury. The scope becomes nebulous when you look at it
from the perspective of actual circumstances that we are confronted
with sometimes in class actions.
H.R. 1927 also includes a provision--and this troubles me deeply and
should trouble everybody that is in Congress and in this Nation--that
would delay the work of asbestos compensation trusts. Formerly, the
Furthering Asbestos Claim Transparency Act, section 3 of this bill,
will shield the asbestos industry from accountability while exposing
trust claimants to scams, identity theft, and other privacy violations.
This portion of the bill is similarly opposed by a number of groups
that I have identified, including the Military Order of the Purple
Heart, the Asbestos Disease Awareness Organization, and the
Environmental Working Group, just to name a few.
For instance, the bill requires trusts to respond to any and all
corporate defendants' requests for information. Ladies and gentlemen,
that could take years. By that time, many of the complainants may very
well have died. And what troubles me a lot is that the trust fund is
making money.
It is similar to what automobile insurance companies do. When there
is an automobile accident, if they think that there was harm
perpetrated by their insured, they immediately establish a fund that
would cover that liability. Then their lawyers go to work to not pay
the claim at all and, next, to delay the claim.
The longer they keep it away from an ultimate settlement, the more
money the insurance company makes. And they make enough money sometimes
[[Page H122]]
to pay the claim that they could have settled or paid the claim of the
injured victim in the first place.
{time} 1300
The measure also requires public disclosure of personal claim
information, including portions of those with asbestos-related
diseases' Social Security numbers.
Interestingly, this legislation does not impose these same burdensome
reporting requirements for the companies that exposed Americans to
asbestos.
Despite its promise, this bill does nothing to improve judicial
efficiency or reduce fraud in the court system and, instead, severely
hampers justice for victims of corporate wrongdoing.
I reserve the balance of my time.
Mr. COLLINS of Georgia. Mr. Speaker, I reserve the balance of my
time.
Mr. HASTINGS. Mr. Speaker, I yield 3 minutes to the gentlewoman from
New Jersey (Mrs. Watson Coleman), a good friend of mine.
Mrs. WATSON COLEMAN. Mr. Speaker, I thank the gentleman for yielding
to me.
Mr. Speaker, I rise today against another handout to corporate
interests, this time needlessly limiting access to courts for American
consumers and workers.
The bill we would consider under this rule is the second blow in a
one-two punch for American families. We kicked off 2016 by defunding
Planned Parenthood and, effectively, repealing the Affordable Care Act.
Now we are considering legislation that would limit class action
lawsuits, and needlessly threaten the privacy of asbestos victims, as
well as other victims of faulty product designs, negligence, and
dangerous environmental occurrences.
The end goal is obvious: enable corporations to avoid both blame and
accountability when they have harmed consumers or knowingly exposed
workers to toxic chemicals.
I wish that I were more surprised, but I am not. The truth is clear
in this bill. It is just the next step in Republican efforts to lift
corporate interests above any level of scrutiny, endangering citizens
and consumers in the process.
Our courts are a cornerstone of justice for everyday Americans. We
need to find ways to expand, not restrict, access to our legal system
for victims.
Class actions have cleaned up the environment after oil spills,
banned cigarette ads aimed at children, and policed price-fixing on
Wall Street, among many other things.
Other nations allow big corporations to run amok, harming people
through dangerous products, fraud, and dishonesty, virtually unchecked.
But here in the United States of America, class action lawsuits are a
vital tool that hold even the very powerful accountable for their
malfeasance.
Mr. Speaker, it is time to get to work on policies for the American
people, not against them, and I urge my colleagues to vote against the
rule and the underlying bill, H.R. 1927.
Mr. COLLINS of Georgia. Mr. Speaker, I reserve the balance of my
time.
Mr. HASTINGS. Mr. Speaker, I yield 3 minutes to the gentleman from
Vermont (Mr. Welch), my good friend and former member of the Rules
Committee; and we miss him.
Mr. WELCH. Mr. Speaker, the 114th Congress will be remembered as the
Congress that tried and tried again to unravel the extraordinary and
great achievements of that American President of a century ago,
Theodore Roosevelt.
President Roosevelt was a Republican. He believed in capitalism, he
believed in profit, he believed in commerce. But he understood
something that this Congress seems to forget: The axiom that power
corrupts, and absolute power corrupts absolutely, applies to Wall
Street and to large corporations as much as it does to oligarchs and
despots.
Mr. Speaker, this legislation does end any realistic opportunity for
consumers who are hammered by corporate negligence or irresponsibility
or outright deceit from joining together to get the justice they are
entitled to by using the only practical means available to obtain it,
the class action lawsuit.
Instead, this legislation would deny class action status to all
consumers affected by the exact same corporate misconduct--say, faulty
brakes--unless they suffered the identical injury, a broken arm, but
not a broken leg.
In a case of current moment, of real corporate misconduct and actual
deceit, Volkswagen lying about its emissions control and, really,
fudging the numbers on its mileage, the 3,000 Vermonters and 11 million
Americans would have to file individual suits unless each suffered the
same exact economic loss.
What is the justification for building this barrier to access to the
courts? There is none.
But the proponents of this legislation are advocating, idealistically
and ideologically, the underpinning of so much other legislation for
Americans who are seeking safety, who are seeking opportunity, who are
seeking justice.
Think about it. Repealing the ACA, Affordable Care Act, with no
replacement for those 17 million Americans who are now covered;
unraveling Dodd-Frank, leaving Wall Street to its old ways that led to
the collapse of the economy in 2008; denying Puerto Rico, at the last
minute, the option that every other municipality or State has if there
is a credit situation to go into bankruptcy, all in service of hedge
fund billionaire investors from Wall Street.
Starving the FTC and the SEC of their budgets so that they are no
longer able to provide protections to consumers and small investors
that they are entitled to.
Teddy Roosevelt, capitalist that he was, would never have stacked the
deck so high against everyday Americans.
You know, we are talking a lot in this country about income
inequality that is real. We can debate the causes.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. HASTINGS. I yield the gentleman an additional 30 seconds.
Mr. WELCH. But the reality is we are building a structure of
inequality, bill by bill, brick by brick. Denying class action access
to the courts for everyday Americans injured by similar or the same
corporate misconduct is to deny them a basic American right.
Mr. Speaker, I urge our colleagues to vote against this legislation
and stand up for access to justice.
Mr. COLLINS of Georgia. Mr. Speaker, I reserve the balance of my
time.
Mr. HASTINGS. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, yesterday the House of Representatives cast its 62nd
vote to repeal the Affordable Care Act.
That we began the second session of the 114th Congress in this manner
sends the regrettable, but undeniable message that it may be a new
year, and we may have a new Speaker, but we are dealing with the same
old majority Congress, intent on advancing partisan measures with
little chance of becoming law.
H.R. 1927 will serve to close the courthouse doors to concerned and
vulnerable citizens injured by large corporations.
Mr. Speaker, if we defeat the previous question, I will offer an
amendment to the rule to bring up bipartisan legislation that will
close a glaring loophole in our gun laws, allowing suspected terrorists
to legally buy firearms. This bill would bar the sale of firearms and
explosives to those on the FBI's terrorist watch list.
Mr. Speaker, I ask unanimous consent to insert the text of the
amendment in the Record, along with extraneous material, immediately
prior to the vote on the previous question.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Florida?
There was no objection.
Mr. HASTINGS. Mr. Speaker, I urge my colleagues to vote ``no'' and
defeat the previous question, and vote ``no'' on the rule.
I yield back the balance of my time.
Mr. COLLINS of Georgia. Mr. Speaker, I yield myself such time as I
may consume.
Again, a lot can be said, and I am so glad for the coming to the
floor later. This will be debated, amendments will be offered. The
House is in regular order doing what the House is supposed to be doing.
One thing that I would like to share is, as the previous speaker had
talked about history--and I am currently, myself, reading a biography
outtake on Theodore Roosevelt and his time in the Presidency and the
things that he did--there is an amazing balance that he
[[Page H123]]
struck for, basically, common people and victims.
I think that is exactly what we are doing here, because one of the
things that the underlying bills do not do is they do not close the
courthouse. They do not do the things that, if you look in history, as
I pointed out in my opening statement, if you look at every time the
Congress has taken up the class action issue, there has been the
falling-of-the-sky phenomenon, that it is going to tear the courthouse
down, nobody is going to get anything done.
The actual truth is the class action has increased and efficiency was
found. And for the true victims, they find their compensation.
The courthouse that I have had the wonderful privilege of practicing
in is a place where people find justice. It is not a place to be
abused. It is not a place to sometimes take advantage of an open
system. That is what we are doing here, and that is what I want people
who read and understand this opportunity, because these are the same
arguments that have been had before.
But, you know, Mr. Speaker, I appreciate the opportunity to come
before this body, explore the differences between the Republican
majority's vision for our country and that of this administration and
those who share the President's view.
The Republican majority is fighting for a legal system that is
victim-focused; a legal system that supports our veterans and ensures
that those injured have their day in court and receive compensation.
A legal system full of fraud, abuse, and waste is a legal system ill-
equipped to provide justice to victims.
The Republican majority is committed to making life better for all
Americans. We have done that this week through reducing the regulatory
burden on families and small businesses so we can jump-start our
economy.
We have done that this week by sending to the President's desk a bill
that rescinds ObamaCare so that we can get to work on restoring a
patient-centered healthcare system, such as the Empowering Patients
First Act proposed by my colleague, Dr. Price.
And let it be said, just as has been said over the centuries, doing
the right thing over and over is still the right thing. And I believe
if it is 62 times, it can be 62 more times, because this Congressman
from the Ninth District of Georgia believes, as his constituents have
found in the Ninth District, that ObamaCare is not for the people and
needs to be gone and replaced with a patient-centered approach that we
can do as a Republican majority.
You see, we have also sent to the President's desk a measure to stop
Planned Parenthood from destroying our next generation of men and women
and directing those funds to organizations that provide mammograms and
true women's health care.
And we will continue to fight to keep our Nation safe from enemies,
foreign and domestic, while preserving the sacred constitutional rights
of all Americans.
Mr. Speaker, I urge my colleagues to support this rule and H.R. 1927.
The material previously referred to by Mr. Hastings is as follows:
An Amendment to H. Res. 581 Offered by Mr. Hastings
At the end of the resolution, add the following new
sections:
Sec. 3. Immediately upon adoption of this resolution the
Speaker shall, pursuant to clause 2(b) of rule XVIII, declare
the House resolved into the Committee of the Whole House on
the state of the Union for consideration of the bill (H.R.
1076) to increase public safety by permitting the Attorney
General to deny the transfer of a firearm or the issuance of
firearms or explosives licenses to a known or suspected
dangerous terrorist. The first reading of the bill shall be
dispensed with. All points of order against consideration of
the bill are waived. General debate shall be confined to the
bill and shall not exceed one hour equally divided and
controlled by the chair and ranking minority member of the
Committee on the Judiciary. After general debate the bill
shall be considered for amendment under the five-minute rule.
All points of order against provisions in the bill are
waived. At the conclusion of consideration of the bill for
amendment the Committee shall rise and report the bill to the
House with such amendments as may have been adopted. The
previous question shall be considered as ordered on the bill
and amendments thereto to final passage without intervening
motion except one motion to recommit with or without
instructions. If the Committee of the Whole rises and reports
that it has come to no resolution on the bill, then on the
next legislative day the House shall, immediately after the
third daily order of business under clause 1 of rule XIV,
resolve into the Committee of the Whole for further
consideration of the bill.
Sec. 4. Clause 1(c) of rule XIX shall not apply to the
consideration of H.R. 1076.
____
The Vote on the Previous Question: What It Really Means
This vote, the vote on whether to order the previous
question on a special rule, is not merely a procedural vote.
A vote against ordering the previous question is a vote
against the Republican majority agenda and a vote to allow
the Democratic minority to offer an alternative plan. It is a
vote about what the House should be debating.
Mr. Clarence Cannon's Precedents of the House of
Representatives (VI, 308-311), describes the vote on the
previous question on the rule as ``a motion to direct or
control the consideration of the subject before the House
being made by the Member in charge.'' To defeat the previous
question is to give the opposition a chance to decide the
subject before the House. Cannon cites the Speaker's ruling
of January 13, 1920, to the effect that ``the refusal of the
House to sustain the demand for the previous question passes
the control of the resolution to the opposition'' in order to
offer an amendment. On March 15, 1909, a member of the
majority party offered a rule resolution. The House defeated
the previous question and a member of the opposition rose to
a parliamentary inquiry, asking who was entitled to
recognition. Speaker Joseph G. Cannon (R-Illinois) said:
``The previous question having been refused, the gentleman
from New York, Mr. Fitzgerald, who had asked the gentleman to
yield to him for an amendment, is entitled to the first
recognition.''
The Republican majority may say ``the vote on the previous
question is simply a vote on whether to proceed to an
immediate vote on adopting the resolution . . . [and] has no
substantive legislative or policy implications whatsoever.''
But that is not what they have always said. Listen to the
Republican Leadership Manual on the Legislative Process in
the United States House of Representatives, (6th edition,
page 135). Here's how the Republicans describe the previous
question vote in their own manual: ``Although it is generally
not possible to amend the rule because the majority Member
controlling the time will not yield for the purpose of
offering an amendment, the same result may be achieved by
voting down the previous question on the rule. . . . When the
motion for the previous question is defeated, control of the
time passes to the Member who led the opposition to ordering
the previous question. That Member, because he then controls
the time, may offer an amendment to the rule, or yield for
the purpose of amendment.''
In Deschler's Procedure in the U.S. House of
Representatives, the subchapter titled ``Amending Special
Rules'' states: ``a refusal to order the previous question on
such a rule [a special rule reported from the Committee on
Rules] opens the resolution to amendment and further
debate.'' (Chapter 21, section 21.2) Section 21.3 continues:
``Upon rejection of the motion for the previous question on a
resolution reported from the Committee on Rules, control
shifts to the Member leading the opposition to the previous
question, who may offer a proper amendment or motion and who
controls the time for debate thereon.''
Clearly, the vote on the previous question on a rule does
have substantive policy implications. It is one of the only
available tools for those who oppose the Republican
majority's agenda and allows those with alternative views the
opportunity to offer an alternative plan.
Mr. COLLINS of Georgia. Mr. Speaker, I yield back the balance of my
time, and I move the previous question on the resolution.
The SPEAKER pro tempore (Mr. Holding). The question is on ordering
the previous question.
The question was taken; and the Speaker pro tempore announced that
the noes appeared to have it.
Mr. HASTINGS. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this question will be postponed.
____________________