[Congressional Record (Bound Edition), Volume 149 (2003), Part 23]
[Senate]
[Pages 32406-32410]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          CLASS ACTION REFORM

  Mr. DODD. Mr. President, in October of this year, the majority leader 
sought to proceed to the Class Action Fairness Act, S. 1751.
  I joined 40 of my colleagues in opposing the motion to proceed. I 
said at the time that while I supported some reform of class action 
procedures, I could not support S. 1751 in its current form. I also 
expressed concern about whether there would be any meaningful 
opportunity for interested Senators to negotiate changes to the bill in 
a bipartisan fashion.
  Subsequent to the vote in October, I joined with three of my 
colleagues in sending a letter to the majority leader on November 14, 
2003. In that letter, we reiterated our interest in class action reform 
and we outlined several areas where we believed revisions to S. 1751 
were in order.
  In November, Senators Landrieu, Schumer, and I entered into 
discussions with Senators Frist, Hatch, Grassley, Kohl, and Carper. 
Those discussions have resulted in a compromise agreed to by our eight 
offices that I believe significantly improves upon S. 1751. I ask that 
the text of that compromise to printed in the Record immediately 
following my statement. I also ask that a summary of the compromise 
produced by my office be printed following my statement.
  Lastly, Mr. President, I want to point out that in my view this is a 
delicate compromise, which addresses the shortcomings of current class 
action practice while at the same time protecting the right of citizens 
to join with fellow citizens to seek the redress of grievances in the 
courts of our Nation. As I and my colleagues said in our letter of 
November 14, it is ``critical'' that this agreement ``be honored as the 
bill moves forward--both in and beyond the Senate.''
  The material follows.

                                S. 1751

       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE; REFERENCE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Class 
     Action Fairness Act of 2003''.
       (b) Reference.--Whenever in this Act reference is made to 
     an amendment to, or repeal of, a section or other provision, 
     the reference shall be considered to be made to a section or 
     other provision of title 28, United States Code.
       (c) Table of Contents.--The table of contents for this Act 
     is as follows:

 Sec. 1. Short title; reference; table of contents.
 Sec. 2. Findings and purposes.
 Sec. 3. Consumer class action bill of rights and improved procedures 
              for interstate class actions.
 Sec. 4. Federal district court jurisdiction for interstate class 
              actions.
 Sec. 5. Removal of interstate class actions to Federal district court.
 Sec. 6. Report on class action settlements.
 Sec. 7. Enactment of Judicial Conference recommendations.
 Sec. 8. Rulemaking authority of Supreme Court and Judicial Conference.
 Sec. 9. Effective date.

      SEC. 2. FINDINGS AND PURPOSES.

       (a) Findings.--Congress finds the following:
       (1) Class action lawsuits are an important and valuable 
     part of the legal system when they permit the fair and 
     efficient resolution of legitimate claims of numerous parties 
     by allowing the claims to be aggregated into a single action 
     against a defendant that has allegedly caused harm.
       (2) Over the past decade, there have been abuses of the 
     class action device that have--
       (A) harmed class members with legitimate claims and 
     defendants that have acted responsibly;
       (B) adversely affected interstate commerce; and
       (C) undermined public respect for our judicial system.
       (3) Class members often receive little or no benefit from 
     class actions, and are sometimes harmed, such as where--
       (A) counsel are awarded large fees, while leaving class 
     members with coupons or other awards of little or no value;
       (B) unjustified awards are made to certain plaintiffs at 
     the expense of other class members; and
       (C) confusing notices are published that prevent class 
     members from being able to fully understand and effectively 
     exercise their rights.
       (4) Abuses in class actions undermine the national judicial 
     system, the free flow of interstate commerce, and the concept 
     of diversity jurisdiction as intended by the framers of the 
     United States Constitution, in that State and local courts 
     are--
       (A) keeping cases of national importance out of Federal 
     court;
       (B) sometimes acting in ways that demonstrate bias against 
     out-of-State defendants; and
       (C) making judgments that impose their view of the law on 
     other States and bind the rights of the residents of those 
     States.
       (b) Purposes.--The purposes of this Act are to--
       (1) assure fair and prompt recoveries for class members 
     with legitimate claims;
       (2) restore the intent of the framers of the United States 
     Constitution by providing for Federal court consideration of 
     interstate cases of national importance under diversity 
     jurisdiction; and
       (3) benefit society by encouraging innovation and lowering 
     consumer prices.

      SEC. 3. CONSUMER CLASS ACTION BILL OF RIGHTS AND IMPROVED 
                   PROCEDURES FOR INTERSTATE CLASS ACTIONS.

       (a) In General.--Part V is amended by inserting after 
     chapter 113 the following:

                      ``CHAPTER 114--CLASS ACTIONS

``Sec.
``1711. Definitions.
``1712. Coupon settlements.
``1713. Protection against loss by class members.
``1714. Protection against discrimination based on geographic location.
``1715. Notifications to appropriate Federal and State officials.

     ``Sec. 1711. Definitions

       ``In this chapter:
       ``(1) Class.--The term `class' means all of the class 
     members in a class action.
       ``(2) Class action.--The term `class action' means any 
     civil action filed in a district court of the United States 
     under rule 23 of the Federal Rules of Civil Procedure or any 
     civil action that is removed to a district court of the 
     United States that was originally filed under a State statute 
     or rule of judicial procedure authorizing an action to be 
     brought by 1 or more representatives as a class action.
       ``(3) Class counsel.--The term `class counsel' means the 
     persons who serve as the attorneys for the class members in a 
     proposed or certified class action.
       ``(4) Class members.--The term `class members' means the 
     persons (named or unnamed) who fall within the definition of 
     the proposed or certified class in a class action.
       ``(5) Plaintiff class action.--The term `plaintiff class 
     action' means a class action in which class members are 
     plaintiffs.
       ``(6) Proposed settlement.--The term `proposed settlement' 
     means an agreement regarding a class action that is subject 
     to court approval and that, if approved, would be binding on 
     some or all class members.

[[Page 32407]]



     ``Sec. 1712. Coupon Settlements.

       ``(a) Contingent Fees in Coupon Settlements.--If a proposed 
     settlement in a class action provides for a recovery of 
     coupons to a class member, the portion of any attorney's fee 
     award to class counsel that is attributable to the award of 
     the coupons shall be based on the value to class members of 
     the coupons that are redeemed.
       ``(b) Other Attorney's Fee Awards in Coupon Settlements.--
       ``(1) In general.--If a proposed settlement in a class 
     action provides for a recovery of coupons to class members, 
     and a portion of the recovery of the coupons is not used to 
     determine the attorney's fee to be paid to class counsel, any 
     attorney's fee award shall be based upon the amount of time 
     class counsel reasonably expended working on the action.
       ``(2) Court approval.--Any attorney's fee under this 
     subsection shall be subject to approval by the court and 
     shall include an appropriate attorney's fee, if any, for 
     obtaining equitable relief, including an injunction, if 
     applicable. Nothing in this subsection shall be construed to 
     prohibit application of a lodestar with a multiplier method 
     of determining attorney's fees.
       ``(c) Attorney's Fee Awards Calculated on a Mixed Basis in 
     Coupon Settlements.--If a proposed settlement in a class 
     action provides for an award of coupons to class members and 
     also provides for equitable relief, including injunctive 
     relief--
       ``(1) that portion of the attorney's fee to be paid to 
     class counsel that is based upon a portion of the recovery of 
     the coupons shall be calculated in accordance with subsection 
     (a); and
       ``(2) that portion of the attorney's fee to be paid to 
     class counsel that is not based upon a portion of the 
     recovery of the coupons shall be calculated in accordance 
     with subsection (b).
       ``(d) Settlement Valuation Expertise.--In a class action 
     involving the awarding of coupons, the court may, in its 
     discretion upon the motion of a party, receive expert 
     testimony from a witness qualified to provide information on 
     the actual value to the class members of the coupons that are 
     redeemed.
       ``(e) Judicial Scrutiny of Coupon Settlements.--In a 
     proposed settlement under which class members would be 
     awarded coupons, the court may approve the proposed 
     settlement only after a hearing to determine whether, and 
     making a written finding that, the settlement is fair, 
     reasonable, and adequate for class members. The court, in its 
     discretion, may also require that a proposed settlement 
     agreement provide for the distribution of a portion of the 
     value of unclaimed coupons to 1 or more charitable or 
     governmental organizations, as agreed to by the parties. The 
     distribution and redemption of any proceeds under this 
     subsection shall not be used to calculate attorneys' fees 
     under this section.

     ``Sec. 1713. Protection against loss by class members

       ``The court may approve a proposed settlement under which 
     any class member is obligated to pay sums to class counsel 
     that would result in a net loss to the class member only if 
     the court makes a written finding that nonmonetary benefits 
     to the class member substantially outweigh the monetary loss.

     ``Sec. 1714. Protection against discrimination based on 
       geographic location

       ``The court may not approve a proposed settlement that 
     provides for the payment of greater sums to some class 
     members than to others solely on the basis that the class 
     members to whom the greater sums are to be paid are located 
     in closer geographic proximity to the court.

     ``Sec. 1715. Notifications to appropriate Federal and State 
       officials

       ``(a) Definitions.--
       ``(1) Appropriate federal official.--In this section, the 
     term `appropriate Federal official' means--
       ``(A) the Attorney General of the United States; or
       ``(B) in any case in which the defendant is a Federal 
     depository institution, a State depository institution, a 
     depository institution holding company, a foreign bank, or a 
     nondepository institution subsidiary of the foregoing (as 
     such terms are defined in section 3 of the Federal Deposit 
     Insurance Act (12 U.S.C. 1813)), the person who has the 
     primary Federal regulatory or supervisory responsibility with 
     respect to the defendant, if some or all of the matters 
     alleged in the class action are subject to regulation or 
     supervision by that person.
       ``(2) Appropriate state official.--In this section, the 
     term `appropriate State official' means the person in the 
     State who has the primary regulatory or supervisory 
     responsibility with respect to the defendant, or who licenses 
     or otherwise authorizes the defendant to conduct business in 
     the State, if some or all of the matters alleged in the class 
     action are subject to regulation by that person. If there is 
     no primary regulator, supervisor, or licensing authority, or 
     the matters alleged in the class action are not subject to 
     regulation or supervision by that person, then the 
     appropriate State official shall be the State attorney 
     general.
       ``(b) In General.--Not later than 10 days after a proposed 
     settlement of a class action is filed in court, each 
     defendant that is participating in the proposed settlement 
     shall serve upon the appropriate State official of each State 
     in which a class member resides and the appropriate Federal 
     official, a notice of the proposed settlement consisting of--
       ``(1) a copy of the complaint and any materials filed with 
     the complaint and any amended complaints (except such 
     materials shall not be required to be served if such 
     materials are made electronically available through the 
     Internet and such service includes notice of how to 
     electronically access such material);
       ``(2) notice of any scheduled judicial hearing in the class 
     action;
       ``(3) any proposed or final notification to class members 
     of--
       ``(A)(i) the members' rights to request exclusion from the 
     class action; or
       ``(ii) if no right to request exclusion exists, a statement 
     that no such right exists; and
       ``(B) a proposed settlement of a class action;
       ``(4) any proposed or final class action settlement;
       ``(5) any settlement or other agreement contemporaneously 
     made between class counsel and counsel for the defendants;
       ``(6) any final judgment or notice of dismissal;
       ``(7)(A) if feasible, the names of class members who reside 
     in each State and the estimated proportionate share of the 
     claims of such members to the entire settlement to that 
     State's appropriate State official; or
       ``(B) if the provision of information under subparagraph 
     (A) is not feasible, a reasonable estimate of the number of 
     class members residing in each State and the estimated 
     proportionate share of the claims of such members to the 
     entire settlement; and
       ``(8) any written judicial opinion relating to the 
     materials described under subparagraphs (3) through (6).
       ``(c) Depository Institutions Notification.--
       ``(1) Federal and other depository institutions.--In any 
     case in which the defendant is a Federal depository 
     institution, a depository institution holding company, a 
     foreign bank, or a non-depository institution subsidiary of 
     the foregoing, the notice requirements of this section are 
     satisfied by serving the notice required under subsection (b) 
     upon the person who has the primary Federal regulatory or 
     supervisory responsibility with respect to the defendant, if 
     some or all of the matters alleged in the class action are 
     subject to regulation or supervision by that person.
       ``(2) State depository institutions.--In any case in which 
     the defendant is a State depository institution (as that term 
     is defined in section 3 of the Federal Deposit Insurance Act 
     (12 U.S.C. 1813)), the notice requirements of this section 
     are satisfied by serving the notice required under subsection 
     (b) upon the State bank supervisor (as that term is defined 
     in section 3 of the Federal Deposit Insurance Act (12 U.S.C. 
     1813)) of the State in which the defendant is incorporated or 
     chartered, if some or all of the matters alleged in the class 
     action are subject to regulation or supervision by that 
     person, and upon the appropriate Federal official.
       ``(d) Final Approval.--An order giving final approval of a 
     proposed settlement may not be issued earlier than 90 days 
     after the later of the dates on which the appropriate Federal 
     official and the appropriate State official are served with 
     the notice required under subsection (b).
       ``(e) Noncompliance if Notice Not Provided.--
       ``(1) In general.--A class member may refuse to comply with 
     and may choose not to be bound by a settlement agreement or 
     consent decree in a class action if the class member 
     demonstrates that the notice required under subsection (b) 
     has not been provided.
       ``(2) Limitation.--A class member may not refuse to comply 
     with or to be bound by a settlement agreement or consent 
     decree under paragraph (1) if the notice required under 
     subsection (b) was directed to the appropriate Federal 
     official and to either the State attorney general or the 
     person that has primary regulatory, supervisory, or licensing 
     authority over the defendant.
       ``(3) Application of rights.--The rights created by this 
     subsection shall apply only to class members or any person 
     acting on a class member's behalf, and shall not be construed 
     to limit any other rights affecting a class member's 
     participation in the settlement.
       ``(f) Rule of Construction.--Nothing in this section shall 
     be construed to expand the authority of, or impose any 
     obligations, duties, or responsibilities upon, Federal or 
     State officials.''.
       (b) Technical and Conforming Amendment.--The table of 
     chapters for part V is amended by inserting after the item 
     relating to chapter 113 the following:

``114. Class Actions........................................1711''.....

      SEC. 4. FEDERAL DISTRICT COURT JURISDICTION FOR INTERSTATE 
                   CLASS ACTIONS.

       (a) Application of Federal Diversity Jurisdiction.--Section 
     1332 is amended--
       (1) by redesignating subsection (d) as subsection (e); and

[[Page 32408]]

       (2) by inserting after subsection (c) the following:
       ``(d)(1) In this subsection--
       ``(A) the term `class' means all of the class members in a 
     class action;
       ``(B) the term `class action' means any civil action filed 
     under rule 23 of the Federal Rules of Civil Procedure or 
     similar State statute or rule of judicial procedure 
     authorizing an action to be brought by 1 or more 
     representative persons as a class action;
       ``(C) the term `class certification order' means an order 
     issued by a court approving the treatment of some or all 
     aspects of a civil action as a class action; and
       ``(D) the term `class members' means the persons (named or 
     unnamed) who fall within the definition of the proposed or 
     certified class in a class action.
       ``(2) The district courts shall have original jurisdiction 
     of any civil action in which the matter in controversy 
     exceeds the sum or value of $5,000,000, exclusive of interest 
     and costs, and is a class action in which--
       ``(A) any member of a class of plaintiffs is a citizen of a 
     State different from any defendant;
       ``(B) any member of a class of plaintiffs is a foreign 
     state or a citizen or subject of a foreign state and any 
     defendant is a citizen of a State; or
       ``(C) any member of a class of plaintiffs is a citizen of a 
     State and any defendant is a foreign state or a citizen or 
     subject of a foreign state.
       ``(3) A district court may, in the interests of justice and 
     looking at the totality of the circumstances, decline to 
     exercise jurisdiction under paragraph (2) over a class action 
     in which greater than one-third but less than two-thirds of 
     the members of all proposed plaintiff classes in the 
     aggregate and the primary defendants are citizens of the 
     State in which the action was originally filed based on 
     consideration of--
       ``(A) whether the claims asserted involve matters of 
     national or interstate interest;
       ``(B) whether the claims asserted will be governed by laws 
     of the State in which the action was originally filed or by 
     the laws of other States;
       ``(C) whether the class action has been pleaded in a manner 
     that seeks to avoid Federal jurisdiction;
       ``(D) whether the action was brought in a forum with a 
     distinct nexus with the class members, the alleged harm, or 
     the defendants;
       ``(E) whether the number of citizens of the State in which 
     the action was originally filed in all proposed plaintiff 
     classes in the aggregate is substantially larger than the 
     number of citizens from any other State, and the citizenship 
     of the other members of the proposed class is dispersed among 
     a substantial number of States; and
       ``(F) whether, during the 3-year period preceding the 
     filing of that class action, 1 or more other class actions 
     asserting the same or similar claims on behalf of the same or 
     other persons have been filed.
       ``(4) A district court shall decline to exercise 
     jurisdiction under paragraph (2)--
       ``(A)(i) over a class action in which--
       ``(I) greater than two-thirds of the members of all 
     proposed plaintiff classes in the aggregate are citizens of 
     the State in which the action was originally filed;
       ``(II) at least 1 defendant is a defendant--
       ``(aa) from whom significant relief is sought by members of 
     the plaintiff class;
       ``(bb) whose alleged conduct forms a significant basis for 
     the claims asserted by the proposed plaintiff class; and
       ``(cc) who is a citizen of the State in which the action 
     was originally filed; and
       ``(III) principal injuries resulting from the alleged 
     conduct or any related conduct of each defendant were 
     incurred in the State in which the action was originally 
     filed; and
       ``(ii) during the 3-year period preceding the filing of 
     that class action, no other class action has been filed 
     asserting the same or similar factual allegations against any 
     of the defendants on behalf of the same or other persons; or
       ``(B) two-thirds or more of the members of all proposed 
     plaintiff classes in the aggregate, and the primary 
     defendants, are citizens of the State in which the action was 
     originally filed.
       ``(5) Paragraphs (2) through (4) shall not apply to any 
     class action in which--
       ``(A) the primary defendants are States, State officials, 
     or other governmental entities against whom the district 
     court may be foreclosed from ordering relief; or
       ``(B) the number of members of all proposed plaintiff 
     classes in the aggregate is less than 100.
       ``(6) In any class action, the claims of the individual 
     class members shall be aggregated to determine whether the 
     matter in controversy exceeds the sum or value of $5,000,000, 
     exclusive of interest and costs.
       ``(7) Citizenship of the members of the proposed plaintiff 
     classes shall be determined for purposes of paragraphs (2) 
     through (6) as of the date of filing of the complaint or 
     amended complaint, or, if the case stated by the initial 
     pleading is not subject to Federal jurisdiction, as of the 
     date of service by plaintiffs of an amended pleading, motion, 
     or other paper, indicating the existence of Federal 
     jurisdiction.
       ``(8) This subsection shall apply to any class action 
     before or after the entry of a class certification order by 
     the court with respect to that action.
       ``(9) Paragraph (2) shall not apply to any class action 
     that solely involves a claim--
       ``(A) concerning a covered security as defined under 
     16(f)(3) of the Securities Act of 1933 and section 
     28(f)(5)(E) of the Securities Exchange Act of 1934;
       ``(B) that relates to the internal affairs or governance of 
     a corporation or other form of business enterprise and that 
     arises under or by virtue of the laws of the State in which 
     such corporation or business enterprise is incorporated or 
     organized; or
       ``(C) that relates to the rights, duties (including 
     fiduciary duties), and obligations relating to or created by 
     or pursuant to any security (as defined under section 2(a)(1) 
     of the Securities Act of 1933 and the regulations issued 
     thereunder).
       ``(10) For purposes of this subsection and section 1453, an 
     unincorporated association shall be deemed to be a citizen of 
     the State where it has its principal place of business and 
     the State under whose laws it is organized.
       ``(11)(A) For purposes of this subsection and section 1453, 
     a mass action shall be deemed to be a class action removable 
     under paragraphs (2) through (10) if it otherwise meets the 
     provisions of those paragraphs.
       ``(B)(i) As used in subparagraph (A), the term `mass 
     action' means any civil action (except a civil action within 
     the scope of section 1711(2)) in which monetary relief claims 
     of 100 or more persons are proposed to be tried jointly on 
     the ground that the plaintiffs' claims involve common 
     questions of law or fact, except that jurisdiction shall 
     exist only over those plaintiffs whose claims in a mass 
     action satisfy the jurisdictional amount requirements under 
     subsection (a).
       ``(ii) As used in subparagraph (A), the term `mass action' 
     shall not include any civil action in which--
       ``(I) all of the claims in the action arise from an event 
     or occurrence in the State in which the action was filed, and 
     that allegedly resulted in injuries in that State or in 
     States contiguous to that State;
       ``(II) the claims are joined upon motion of a defendant;
       ``(III) all of the claims in the action are asserted on 
     behalf of the general public (and not on behalf of individual 
     claimants or members of a purported class) pursuant to a 
     State statute specifically authorizing such action; or
       ``(IV) the claims have been consolidated or coordinated 
     solely for pretrial proceedings.
       ``(C)(i) Any action(s) removed to Federal court pursuant to 
     this subsection shall not thereafter be transferred to any 
     other court pursuant to section 1407, or the rules 
     promulgated thereunder, unless a majority of the plaintiffs 
     in the action request transfer pursuant to section 1407.
       ``(ii) This subparagraph will not apply--
       ``(I) to cases certified pursuant to rule 23 of the Federal 
     Rules of Civil Procedure; or
       ``(II) if plaintiffs propose that the action proceed as a 
     class action pursuant to rule 23 of the Federal Rules of 
     Civil Procedure.
       ``(D) The limitations periods on any claims asserted in a 
     mass action that is removed to Federal court pursuant to this 
     subsection shall be deemed tolled during the period that the 
     action is pending in Federal court.''.
       (b) Conforming Amendments.--
       (1) Section 1335(a)(1) is amended by inserting ``(a) or 
     (d)'' after ``1332''.
       (2) Section 1603(b)(3) is amended by striking ``(d)'' and 
     inserting ``(e)''.

      SEC. 5. REMOVAL OF INTERSTATE CLASS ACTIONS TO FEDERAL 
                   DISTRICT COURT.

       (a) In General.--Chapter 89 is amended by adding after 
     section 1452 the following:

     ``Sec. 1453. Removal of class actions

       ``(a) Definitions.--In this section, the terms `class', 
     `class action', `class certification order', and `class 
     member' shall have the meanings given such terms under 
     section 1332(d)(1).
       ``(b) In General.--A class action may be removed to a 
     district court of the United States in accordance with 
     section 1446 (except that the 1-year limitation under section 
     1446(b) shall not apply), without regard to whether any 
     defendant is a citizen of the State in which the action is 
     brought, except that such action may be removed by any 
     defendant without the consent of all defendants.
       ``(c) Review of Remand Orders.--
       ``(1) In general.--Section 1447 shall apply to any removal 
     of a case under this section, except that 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.
       ``(2) Time period for judgment.--If the court of appeals 
     accepts an appeal under paragraph (1), the court shall 
     complete all action on such appeal, including rendering 
     judgment, not later than 60 days after the date on which such 
     appeal was filed, unless an extension in granted under 
     paragraph (3).
       ``(3) Extension of time period.--The court of appeals may 
     grant an extension of the 60-day period described in 
     paragraph (2) if--
       ``(A) all parties to the proceeding agree to such 
     extension, for any period of time; or

[[Page 32409]]

       ``(B) such extension is for good cause shown and in the 
     interests of justice, for a period not exceed 10 days.
       ``(4) Denial of appeal.--If a final judgment on the appeal 
     under paragraph (1) is not issued before the end of the 
     period described in paragraph (2), including any extension 
     under paragraph (3), the appeal shall be denied.
       ``(d) Exception.--This section shall not apply to any class 
     action that solely involves--
       ``(1) a claim concerning a covered security as defined 
     under section 16(f)(3) of the Securities Act of 1933 and 
     section 28(f)(5)(E) of the Securities Exchange Act of 1934;
       ``(2) a claim that relates to the internal affairs or 
     governance of a corporation or other form of business 
     enterprise and arises under or by virtue of the laws of the 
     State in which such corporation or business enterprise is 
     incorporated or organized; or
       ``(3) a claim that relates to the rights, duties (including 
     fiduciary duties), and obligations relating to or created by 
     or pursuant to any security (as defined under section 2(a)(1) 
     of the Securities Act of 1933 and the regulations issued 
     thereunder).''.
       (b) Technical and Conforming Amendments.--The table of 
     sections for chapter 89 is amended by adding after the item 
     relating to section 1452 the following:

``1453. Removal of class actions.''.

     SEC. 6. REPORT ON CLASS ACTION SETTLEMENTS.

       (a) In General.--Not later than 12 months after the date of 
     enactment of this Act, the Judicial Conference of the United 
     States, with the assistance of the Director of the Federal 
     Judicial Center and the Director of the Administrative Office 
     of the United States Courts, shall prepare and transmit to 
     the Committees on the Judiciary of the Senate and the House 
     of Representatives a report on class action settlements.
       (b) Content.--The report under subsection (a) shall 
     contain--
       (1) recommendations on the best practices that courts can 
     use to ensure that proposed class action settlements are fair 
     to the class members that the settlements are supposed to 
     benefit;
       (2) recommendations on the best practices that courts can 
     use to ensure that--
       (A) the fees and expenses awarded to counsel in connection 
     with a class action settlement appropriately reflect the 
     extent to which counsel succeeded in obtaining full redress 
     for the injuries alleged and the time, expense, and risk that 
     counsel devoted to the litigation; and
       (B) the class members on whose behalf the settlement is 
     proposed are the primary beneficiaries of the settlement; and
       (3) the actions that the Judicial Conference of the United 
     States has taken and intends to take toward having the 
     Federal judiciary implement any or all of the recommendations 
     contained in the report.
       (c) Authority of Federal Courts.--Nothing in this section 
     shall be construed to alter the authority of the Federal 
     courts to supervise attorneys' fees.

     SEC. 7. ENACTMENT OF JUDICIAL CONFERENCE RECOMMENDATIONS.

       Notwithstanding any other provision of law, the amendments 
     to rule 23 of the Federal Rules of Civil Procedure, which are 
     set forth in the order entered by the Supreme Court of the 
     United States on March 27, 2003, shall take effect on the 
     date of enactment of this Act or on December 1, 2003 (as 
     specified in that order), whichever occurs first.

     SEC. 8. RULEMAKING AUTHORITY OF SUPREME COURT AND JUDICIAL 
                   CONFERENCE.

       Nothing in this Act shall restrict in any way the authority 
     of the Judicial Conference and the Supreme Court to propose 
     and prescribe general rules of practice and procedure under 
     chapter 131 of title 28, United States Code.

     SEC. 9. EFFECTIVE DATE.

       The amendments made by this Act shall apply to any civil 
     action commenced on or after the date of enactment of this 
     Act.
                                  ____


Summary of Changes to S. 1751 as Agreed to by Senators Frist, Grassley, 
            Hatch, Kohl, Carper, Dodd, Landrieu, and Schumer


          the compromise improves coupon settlement procedures

       S. 1751 would have continued to allow coupon settlements 
     even though only a small percentage of coupons are actually 
     redeemed by class members in many cases.
       The compromise proposal requires that attorneys fees be 
     based either on (a) the proportionate value of coupons 
     actually redeemed by class members or (b) the hours actually 
     billed in prosecuting the class action. The compromise 
     proposal also adds a provision permitting federal courts to 
     require that settlement agreements provide for charitable 
     distribution of unclaimed coupon values.


 the compromise eliminates the so-called bounty prohibition in s. 1751

       S. 1751 would have prevented civil rights and consumer 
     plaintiffs from being compensated for the particular 
     hardships they endure as a result of initiating and pursuing 
     litigation.
       The compromise deletes the so-called ``bounty provision'' 
     in S. 1751, thereby allowing plaintiffs to receive special 
     relief for enduring special hardships as class members.


 Thie compromise eliminates the potential for notification burden and 
                               confusion

       S. 1751 would have created a complicated set of 
     unnecessarily burdensome notice requirements for notice to 
     potential class members. The compromise eliminates this 
     unnecessary burden and preserves current federal law related 
     to class notification.


        the compromise provides for greater judicial discretion

       S. 1751 included several factors to be considered by 
     district courts in deciding whether to exercise jurisdiction 
     over class action in which between one-third and two-thirds 
     of the proposed class members and all primary defendants are 
     citizens of the same state.
       The compromise provides for broader discretion by 
     authorizing federal courts to consider any ``distinct'' nexus 
     between (a) the forum where the action was brought and (b) 
     the class members, the alleged harm, or the defendants. The 
     proposal also limits a court's authority to base federal 
     jurisdiction on the existence of similar class actions filed 
     in other states by disallowing consideration of other cases 
     that are more than three years old.


        the compromise expands the local class action exception

       S. 1751 established an exception to prevent removal of a 
     class action to federal court when 2/3 of the plaintiffs are 
     from the state where the action was brought and the ``primary 
     defendants'' are also from that state (the Feinstein 
     formula). The compromise retains the Feinstein formula and 
     creates a second exception that allows case to remain in 
     state court if: (1) more than 2/3 of class members are 
     citizens of the forum state; (2) there is at least one in-
     state defendant from whom significant relief is caught and 
     who contributed significantly to the alleged harm; (3) the 
     principal injuries happened within the state where the action 
     was filed; and (4) no other class action asserting the same 
     or similar factual allegations against any of the defendants 
     on behalf of the same or other persons has been filed during 
     the preceding three years.


 the compromise creates a bright line for determining class composition

       S. 1751 was silent on when class composition could be 
     measured and arguable would have allowed class composition to 
     be challenged at any time during the life of the case. The 
     compromise clarifies that citizenship of proposed class 
     members is to be determined on the date plaintiffs filed the 
     original complaint, or if there is no federal jurisdiction 
     over the first complaint, when plaintiffs serve an amended 
     complaint or other paper indicating the existence of federal 
     jurisdiction.


        the compromise eliminates the ``merry-go-round'' problem

       S. 1751 would have required federal courts to dismiss class 
     actions if the court determined that the case did not meet 
     Rule 23 requirements. The compromise eliminates the dismissal 
     requirement, giving federal courts discretion to handle Rule 
     23-ineligible cases appropriately. Potentially meritorious 
     suits will thus not be automatically dismissed simply because 
     they fail to comply with the class certification requirements 
     of Rule 23.


         the compromise improvements treatment of mass actions

       S. 1751 would have treated all mass actions involving over 
     100 claimants as if they were class actions. The compromise 
     makes several changes to treat mass actions more like 
     individual cases than like class actions when appropriate.
       The compromise changes the jurisdictional amount 
     requirement. Federal jurisdiction shall only exist over these 
     persons whose claims satisfy the normal diversity 
     jurisdictional amount requirement for individual actions 
     under current law (presently $75,000).
       The compromise expands the ``single sudden accident'' 
     exception so that federal jurisdiction shall not exist over 
     mass actions in which all claims arise from any ``event or 
     occurrence'' that happened in the state where the action was 
     filed and that allegedly resulted in injuries in that state 
     or in a contiguous state. The proposal also added a provision 
     clarifying that there is no federal jurisdiction under the 
     mass action provision for claims that have been consolidated 
     solely for pretrial purposes.


  the compromise eliminates the potential for abusive plaintiff class 
                                removals

       S. 1751 would have changed current law by allowing any 
     plaintiff class member to remove a case to federal court even 
     if all other class members wanted the case to remain in state 
     court. The compromise retains current law--allowing 
     individual plaintiffs to opt out of class actions, but not 
     allowing them to force entire classes into federal court.


 the compromise eliminates the potential for abusive appeals of remand 
                                 orders

       S. 1751 would have allowed defendants to seek unlimited 
     appellate review of federal court orders remanding cases to 
     state courts. If a defendant requested an appeal, the federal 
     courts would have been required to hear the appeal and the 
     appeals could have taken months or even years to complete.

[[Page 32410]]

       The compromise makes two improvements: (1) grants the 
     federal courts discretion to refuse to hear an appeal if the 
     appeal is not in the interest of justice; (2) Establishes 
     tight deadlines for completion of any appeals so that no case 
     can be delayed more than 77 days, unless all parties agree to 
     a longer period.


the compromise preserves the rulemaking authority of supreme court and 
                          judicial conference

       The compromise clarifies that nothing in the bill restricts 
     the authority of the Judicial Conference and Supreme Court to 
     implement new rules relating to class actions.


                   the compromise is not retroactive

       Unlike the House Bill, the compromise will not 
     retroactively change the rules governing jurisdiction over 
     class actions.

                          ____________________