[House Report 109-24]
[From the U.S. Government Publishing Office]



109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     109-24

======================================================================
 
            MULTIDISTRICT LITIGATION RESTORATION ACT OF 2005

                                _______
                                

 March 17, 2005.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1038]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 1038) to amend title 28, United States Code, to allow a 
judge to whom a case is transferred to retain jurisdiction over 
certain multidistrict litigation cases for trial, and for other 
purposes, having considered the same, report favorably thereon 
without amendment and recommend that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     4
Committee Consideration..........................................     4
Vote of the Committee............................................     5
Committee Oversight Findings.....................................     5
New Budget Authority and Tax Expenditures........................     5
Congressional Budget Office Cost Estimate........................     5
Performance Goals and Objectives.................................     6
Constitutional Authority Statement...............................     6
Section-by-Section Analysis and Discussion.......................     6
Changes in Existing Law Made by the Bill, as Reported............     7
Markup Transcript................................................     8
Dissenting Views.................................................    17

                          Purpose and Summary

    H.R. 1038 would allow a designated U.S. district court (a 
so-called ``transferee'' court) under the multidistrict 
litigation statute \1\ to retain jurisdiction over referred 
cases arising from the same fact scenario for purposes of 
determining liability and punitive damages, or to send them 
back to the respective courts from which they were transferred. 
The legislation also provides a technical fix to a ``disaster'' 
litigation statute enacted during the 107th Congress. The bill 
will save litigants time and money, but does not interfere with 
jury verdicts or compensation rates for attorneys.
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    \1\ 28 U.S.C. Sec. 1407.
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                Background and Need for the Legislation

        SECTION 2: MULTIDISTRICT LITIGATION/THE LEXECON DECISION

    H.R. 1038 would reverse the effects of a Supreme Court 
interpretation of 28 U.S.C. Sec. 1407, the Federal 
multidistrict litigation statute. The case in question is 
commonly referred to as ``Lexecon.'' \2\
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    \2\ Lexecon v. Milberg Weiss Bershad Hynes & Lerach, et. al., 118 
S. Ct. 956 (1998).
---------------------------------------------------------------------------
    Under Sec. 1407, a Multidistrict Litigation Panel (MDLP)--a 
select group of seven Federal judges selected by the Chief 
Justice of the United States--helps to consolidate lawsuits 
which share common questions of fact filed in more than one 
judicial district nationwide. Typically, these suits involve 
mass torts--a plane crash, for example--in which the plaintiffs 
are from many different States. After weighing relevant 
circumstance, the panel attempts to identify the one U.S. 
district court nationwide which is best suited to adjudicate 
pretrial matters. The panel then remands individual cases back 
to the districts where they were originally filed for trial 
unless they have been previously terminated.
    For approximately 30 years, however, the district court 
selected by the panel to hear pretrial matters (the 
``transferee court'') often invoked Sec. 1404(a) of Title 28 to 
retain jurisdiction for trial over all of the suits. This 
provision is a general venue statute that allows a district 
court to transfer a civil action to any other district or 
division where it may have been brought; in effect, the court 
selected by the panel simply transferred all of the cases to 
itself. According to the Administrative Office of the U.S. 
Courts and the MDLP, this process has worked well since the 
transferee court was versed in the facts and law of the 
consolidated litigation. This is also the one court that could 
compel all parties to settle when appropriate.
    The Lexecon decision altered the Sec. 1407 landscape. The 
case pertained to a 1998 defamation case brought by a 
consulting entity (Lexecon) against a law firm that had 
represented a plaintiff class in the Lincoln Savings and Loan 
(S&L) litigation in Arizona. Lexecon had been joined as a 
defendant to the class action, which the MDLP transferred to 
the District of Arizona. Before the pretrial proceedings were 
concluded, Lexecon reached a ``resolution'' with the 
plaintiffs, and the claims against the consulting entity were 
dismissed.
    Lexecon then brought a defamation suit against the law firm 
in the Northern District for Illinois. The law firm filed a 
motion under Sec. 1407 requesting the MDLP to empower the 
Arizona court which adjudicated the original S&L litigation to 
preside over the defamation suit. The panel agreed, and the 
Arizona transferee court subsequently invoked its jurisdiction 
pursuant to Sec. 1404 to preside over a trial that the law firm 
eventually won. Lexecon appealed, but the Ninth Circuit 
affirmed the lower court decision.\3\
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    \3\ 102 F.3rd 1524 (9th Cir. 1996).
---------------------------------------------------------------------------
    The Supreme Court reversed, holding that Sec. 1407 
explicitly requires a transferee court to remand all cases for 
trial back to the respective jurisdictions from which they were 
originally referred. In his opinion, Justice Souter observed 
that ``the floor of Congress'' was the proper venue to 
determine whether the practice of self-assignment under these 
conditions should continue.\4\
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    \4\ Lexicon at 964.
---------------------------------------------------------------------------
    Section 2 of the bill responds to Justice Souter's 
admonition. In the absence of a Lexecon ``fix,'' the MDLP will 
be forced to remand cases to their transferor districts, and 
then have each original district court decide whether to 
transfer each case back to the transferee district for trial 
purposes under Sec. 1404. This alternative, to invoke the 
Chairman of the MDLP, would be ``cumbersome, repetitive, 
costly, potentially inconsistent, time consuming, inefficient, 
and a wasteful utilization of judicial and litigant 
resources.'' \5\
---------------------------------------------------------------------------
    \5\ Hearing on H.R. 2112 Before the Subcomm. on Courts and 
Intellectual Property of the House Comm. on the Judiciary, 106th Cong., 
1st Sess. (June 16, 1999) (statement of the Honorable John F. Nangle, 
Chairman, Judicial Panel on Multidistrict Litigation, at 5).
---------------------------------------------------------------------------
    In the wake of the Lexecon, decision significant problems 
have arisen that have hindered the sensible disposition of 
multidistrict litigation. Transferee judges throughout the 
United States have voiced their concern to the MDLP about the 
urgent need to clarify their authority to retain cases for 
trial. Indeed, transferee judges have been unable to order 
self-transfer for trial, even though all parties to constituent 
cases have agreed on the wisdom of self-transfer for trial.\6\ 
Instead, complex multidistrict cases should be streamlined as 
much as possible by providing the transferee judge as much 
discretion as possible to expedite trial when the transferee 
judge, with full input from the parties, deems this to be 
appropriate. In other words, there is a pressing need to 
recreate the multidistrict litigation environment that existed 
before the Lexecon decision.
---------------------------------------------------------------------------
    \6\ See, e.g., MDL-1125--In re Air Crash Near Cali, Columbia, on 
12/20/95, S.D. Fla. (Judge Highsmith).
---------------------------------------------------------------------------
    The change advocated by the MDLP and other multidistrict 
practitioners is well-justified in light of judicial practice 
under the Multidistrict Litigation statute for the past 30 
years. It promotes judicial administrative efficiency and will 
encourage parties to complex Federal litigation to settle.

SECTION 3: TECHNICAL AMENDMENTS TO MULTIPARTY, MULTIFORUM JURISDICTION 
               OF DISTRICT COURTS/``DISASTER'' LITIGATION

    The legislative history of Sec. 3 of H.R. 1038 is 
intertwined with that of Sec. 3 of H.R. 860 from the 107th 
Congress.
    As passed by the House on March 14, 2001, H.R. 860, the 
``Multidistrict, Multiparty, Multiforum Trial Jurisdiction Act 
of 2001,'' contained the following core provisions.
    (1) Section 2 (Lexecon). Section 2 of the bill would have 
enacted a ``straight'' Lexecon fix identical to that of H.R. 
1038.
    (2) Section 3 (``disaster'' litigation). Section 3 of H.R. 
860 conferred original jurisdiction on U.S. district courts to 
adjudicate any civil action arising out of a single accident in 
which at least 25 persons are either killed or injured. Damages 
for each person must exceed $150,000, and minimal diversity 
rules apply (i.e., jurisdiction will lie if any one plaintiff 
and any one defendant are from different States), with one 
exception: the ``substantial majority'' of all plaintiffs and 
the ``primary'' defendants are citizens of the same State, and 
the claims will be ``primarily'' governed by the laws of that 
State (i.e., State courts would hear these ``exception'' 
cases). If the base requirements of Section 3 are otherwise 
satisfied, the court may determine liability and punitive 
damages, but would remand to State courts for determination of 
compensatory damages.\7\
---------------------------------------------------------------------------
    \7\ See H.R. Rept. No. 106-276, 106th Cong., 1st Sess. (1999) and 
H.R. Rept. No. 107-14, 107th Cong., 1st Sess. (2001) for a detailed 
explanation of why ``disaster'' litigation redress was needed.
---------------------------------------------------------------------------
    The Senate Committee on the Judiciary took no action on 
H.R. 860, but the matter was revived during House-Senate 
conference deliberations on what became the ``21st Century 
Department of Justice Appropriations Authorization Act.'' \8\ 
Pursuant to negotiations, the conferees agreed to take ``half'' 
of H.R. 860--section 3, or the ``disaster'' litigation portion. 
It is codified as section 11020 of the Department of Justice 
authorization statute. In addition, one of the threshold 
criterion triggering its application was changed in conference. 
Specifically, and in addition to the other criterion, a U.S. 
district court may only retain jurisdiction over such cases if 
at least 75 persons (not 25) have been killed or injured.
---------------------------------------------------------------------------
    \8\ H.R. 2215, Pub. L. No. 107-273.
---------------------------------------------------------------------------
    The Committee believes that a straight Lexecon fix is 
meritorious in its own right, promoting as it does judicial 
efficiency. But there is another problem the legislation 
remedies in light of the legislative history of H.R. 860.
    The disaster litigation portion of H.R. 860 now set forth 
in the Department of Justice authorization statute contemplates 
that the Lexecon problem is solved. In other words, the new 
disaster litigation law only creates original jurisdiction for 
a U.S. district court to accept these cases and qualify as a 
transferee court under the multidistrict litigation statute. 
But the transferee court still cannot retain the consolidated 
cases for determination of liability and punitive damages, 
which effectively nullifies the statute. In this sense, the 
Lexecon fix--its freestanding merits aside--also functions as a 
technical correction to the recently-enacted disaster 
litigation measure.

                                Hearings

    No hearings were held on H.R. 1038.

                        Committee Consideration

    On March 3, 2005, the Subcommittee on Courts, the Internet, 
and Intellectual Property met in open session and ordered 
favorably reported the bill H.R.1038 by voice vote, a quorum 
being present. On March 9, 2005, the Committee met in open 
session and ordered favorably reported the bill H.R. 1038 by 
voice vote, a quorum being present.

                         Vote of the Committee

    In compliance with clause 3(b) of Rule XIII of the Rules of 
the House of Representatives, the Committee notes that there 
were no recorded votes during consideration of H.R. 1038.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of Rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of Rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of Rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of Rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 1038, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 11, 2005.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1038, the 
``Multidistrict Litigation Restoration Act of 2005.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Gregory 
Waring, who can be reached at 226-2860.
            Sincerely,
                                       Douglas Holtz-Eakin.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 1038--Multidistrict Litigation Restoration Act of 2005.
    CBO estimates that implementing H.R. 1038 would have no 
significant impact on the Federal budget and would not affect 
direct spending or receipts. H.R. 1038 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and would not affect the budgets 
of State, local, or tribal governments.
    Enacting H.R. 1038 would remove existing impediments to the 
consolidation of certain lawsuits within the Federal judicial 
system. The bill would permit a Federal judge to consolidate 
such cases for trial on the common issues of liability and 
punitive damages if those cases were consolidated for pretrial 
proceedings. The bill also would allow Federal judges to 
determine compensatory damages in such consolidated cases under 
certain conditions. Under current law, cases related by one or 
more common questions of fact that are pending in multiple 
Federal judicial districts may be consolidated before a single 
Federal judge only for pretrial proceedings. At the end of 
those proceedings, each case must now be remanded for trial 
back to the judicial district where it originated.
    CBO expects that enacting this bill would result in a more 
efficient use of Federal judicial resources. Any savings 
realized by the Federal court system would be small, CBO 
estimates, and might be offset by increased court costs that 
could arise from additional cases being moved from State court 
to Federal court under the bill. Thus, CBO estimates that 
implementing H.R. 1038 would result in no significant net 
impact on the Federal budget.
    The CBO staff contact for this estimate is Gregory Waring, 
who can be reached at 226-2860. This estimate was approved by 
Peter H. Fontaine, Deputy Assistant Director for Budget 
Analysis.

                    Performance Goals and Objectives

    H.R. 1038 does not authorize funding. Therefore, clause 
3(c)(4) of Rule XIII of the Rules of the House of 
Representatives is inapplicable. H.R. 1038 would allow a 
designated U.S. district court under the multidistrict 
litigation statute to retain jurisdiction over referred cases 
arising from the same fact scenario for purposes of determining 
liability and punitive damages, or to send them back to the 
respective courts from which they were transferred.

                   Constitutional Authority Statement

    Pursuant to Rule XI, clause 2(1)(4) of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article III, section 1, of the 
Constitution.

               Section-by-Section Analysis and Discussion

    Section 1. Short Title. The Act may be cited as the 
``Multidistrict Litigation Restoration Act of 2005.''
    Section 2. Multidistrict Litigation. Section 2 affirms the 
authority of a transferee court to retain jurisdiction under 
the general multidistrict litigation statute over district and 
State actions initially referred to it for trial purposes, ``in 
the interest of justice and for the convenience of the parties 
and witnesses.'' Similarly, Sec. 2 also specifies that a 
transferee court which retains jurisdiction over referred 
actions for trial may only make determinations regarding 
compensatory damages if it is convenient to the parties and 
witnesses and promotes the interest of justice.
    Section. 3. Technical Amendments to Multiparty, Multiforum 
Trial Jurisdiction Act of 2002. Section 3 clarifies that 
transferred actions brought under the ``disaster'' litigation 
statute (enacted as part of the ``21st Century Department of 
Justice Appropriations Authorization Act'') may be retained by 
the transferee court for determinations of liability and 
punitive damages. The determination of non-punitive (i.e., 
compensatory) damages may be retained by the transferee court 
only if it is convenient to the parties and witnesses and 
promotes the interest of justice.
    Section 3 also prescribes the terms by which a 
determination governing liability, choice of law, and punitive 
damages may be appealed.
    Section 4. Effective Date. H.R. 1038 applies two effective 
dates to different provisions of the bill. The provisions of 
Sec. 2 will apply to any civil action pending on or brought on 
or after the date of enactment of H.R. 1038.
    Section 3 applies to ``disaster'' cases that are addressed 
by Sec. 1020 of the Department of Justice authorization statute 
from the 107th Congress. The provision is therefore deemed to 
take effect as though it were a part of Sec. 11020. This means 
that Sec. 3 of the bill applies to any relevant civil action if 
the accident giving rise to the cause of action occurred on or 
after the 90th day after the date of enactment of the ``21st 
Century Department of Justice Appropriations Authorization 
Act,'' which was November 2, 2002.
    In conclusion, the Committee notes that the text of H.R. 
1038 is identical to that of H.R. 1768 from the 108th Congress, 
which the House passed under suspension of the Rules by a 
rollcall vote of 418-0 on March 24, 2004.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of Rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italics and existing law in which no change is 
proposed is shown in roman):

    TITLE deg.SECTION 1407 OF TITLE 28, UNITED STATES CODE

Sec. 1407. Multidistrict litigation

    (a) When civil actions involving one or more common 
questions of fact are pending in different districts, such 
actions may be transferred to any district for coordinated or 
consolidated pretrial proceedings. Such transfers shall be made 
by the judicial panel on multidistrict litigation authorized by 
this section upon its determination that transfers for such 
proceedings will be for the convenience of parties and 
witnesses and will promote the just and efficient conduct of 
such actions. Each action so transferred shall be remanded by 
the panel at or before the conclusion of such pretrial 
proceedings to the district from which it was transferred 
unless it shall have been previously terminated or ordered 
transferred to the transferee or other district under 
subsection (i): Provided, however, That the panel may separate 
any claim, cross-claim, counter-claim, or third-party claim and 
remand any of such claims before the remainder of the action is 
remanded.

           *       *       *       *       *       *       *

    (i)(1) Subject to paragraph (2) and except as provided in 
subsection (j), any action transferred under this section by 
the panel may be transferred for trial purposes, by the judge 
or judges of the transferee district to whom the action was 
assigned, to the transferee or other district in the interest 
of justice and for the convenience of the parties and 
witnesses.
    (2) Any action transferred for trial purposes under 
paragraph (1) shall be remanded by the panel for the 
determination of compensatory damages to the district court 
from which it was transferred, unless the court to which the 
action has been transferred for trial purposes also finds, for 
the convenience of the parties and witnesses and in the 
interests of justice, that the action should be retained for 
the determination of compensatory damages.
    (j)(1) In actions transferred under this section when 
jurisdiction is or could have been based, in whole or in part, 
on section 1369 of this title, the transferee district court 
may, notwithstanding any other provision of this section, 
retain actions so transferred for the determination of 
liability and punitive damages. An action retained for the 
determination of liability shall be remanded to the district 
court from which the action was transferred, or to the State 
court from which the action was removed, for the determination 
of damages, other than punitive damages, unless the court 
finds, for the convenience of parties and witnesses and in the 
interest of justice, that the action should be retained for the 
determination of damages.
    (2) Any remand under paragraph (1) shall not be effective 
until 60 days after the transferee court has issued an order 
determining liability and has certified its intention to remand 
some or all of the transferred actions for the determination of 
damages. An appeal with respect to the liability determination 
and the choice of law determination of the transferee court may 
be taken during that 60-day period to the court of appeals with 
appellate jurisdiction over the transferee court. In the event 
a party files such an appeal, the remand shall not be effective 
until the appeal has been finally disposed of. Once the remand 
has become effective, the liability determination and the 
choice of law determination shall not be subject to further 
review by appeal or otherwise.
    (3) An appeal with respect to determination of punitive 
damages by the transferee court may be taken, during the 60-day 
period beginning on the date the order making the determination 
is issued, to the court of appeals with jurisdiction over the 
transferee court.
    (4) Any decision under this subsection concerning remand 
for the determination of damages shall not be reviewable by 
appeal or otherwise.
    (5) Nothing in this subsection shall restrict the authority 
of the transferee court to transfer or dismiss an action on the 
ground of inconvenient forum.

                           Markup Transcript



                            BUSINESS MEETING

                        WEDNESDAY, MARCH 9, 2005

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:00 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
    Chairman Sensenbrenner. The Committee will be in order. A 
working quorum is present comprised entirely of Members of the 
majority party. So rather than doing a ratification of minority 
Committee assignments, since there is no one here to make a 
motion to do that, we will now go to the next item on the 
agenda which is the adoption of S. 167, the ``Family 
Entertainment and Copyright Act of 2005,'' and the Chair 
recognizes the gentlemen from Texas, Mr. Smith, the Chairman of 
the Subcommittee on Courts, the Internet, and Intellectual 
Property for a motion.
    Mr. Smith. Mr. Chairman, I ask unanimous consent that we 
consider the following bills en bloc: S. 167, H.R. 683, H.R. 
1036, H.R. 1037, H.R. 1038.
    Chairman Sensenbrenner. How about House Concurrent 
Resolution----
    Mr. Smith. It's my understanding, Chairman, that needs to 
be considered separately.
    Chairman Sensenbrenner. Okay. Without objection, the 5 
bills mentioned by the gentleman from Texas will be considered 
en bloc, and the Chair recognizes the gentleman from Texas to 
explain them.
    Mr. Smith. I'll try to be brief, Mr. Chairman. The first 
bill, S. 167 really consists of three previous bills that this 
Committee has approved and that passed the House last year. The 
first one is the Family Movie Act, and I think Members will 
recall that that simply gives parents the right to determine 
what their children see when they rent or buy a movie video.
    The second part of this particular bill is the Art Act 
which creates new penalties for those who camcord movies in 
public theaters and who willfully infringe copyright law by 
distributing copies of prereleased works, movies or otherwise.
    The Trademark Dilution Revision Act of 2005 simply, 
basically protects trademarks in a better way and also makes 
sure that people cannot infringe trademarks as easily as they 
do now. It also does a good job of trying to keep us out of 
court to determine some of the ambiguities of that particular 
subject.
    The two technical correction bills are just that, technical 
corrections of the Satellite Viewer, Home Viewer Movie Act, and 
the technical corrections, in addition to the satellite 
corrections are technical corrections of the CARP bill, which 
we approved last year and which passed the House.
    The last bill in the en bloc package, Mr. Chairman, is your 
bill, the Multidistrict Litigation Restoration Act of 2005, and 
I will yield to you to make any comments on that.
    And that would be the quick summary of the five bills en 
bloc.
    [The bill, H.R. 1038, follows:]
      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


    Chairman Sensenbrenner. The Chair passes on this.
    Without objection, all Members may place opening statements 
in the record on each of the bills being considered en bloc at 
this time. Hearing no objection, so ordered.
    [The prepared statement of Mr. Berman follows:]
Prepared Statement of the Honorable Howard L. Berman, a Representative 
     in Congress from the State of California, and Ranking Member, 
    Subcommittee on Courts, the Internet, and Intellectual Property
    Mr. Chairman,
    I intend to support H.R. 1038, The Multidictrict Litigation 
Restoration Act of 2005, and would ask my colleagues to do the same.
    This Committee has approved legislation containing the provisions 
of H.R. 1038 in each of the past three Congresses. In the 106th 
Congress, the House passed the bill by voice vote on suspension. In the 
107th Congress, the House passed identical legislation by unanimous 
consent, and last year the exact same bill passed the House 418-0. Each 
time, the legislation has died in the Senate.
    This bill has a very narrow purpose and effect--it would simply 
overturn the 1998 Lexecon decision of the Supreme Court.
    The Lexecon decision held that a multidistrict litigation 
transferred to a federal court for pretrial proceedings cannot be 
retained by that court for trial purposes. In so holding, the Lexecon 
decision upset decades of practice by the Multidistrict Litigation 
Panel and federal district courts. The Lexecon decision also increases 
the cost and complexity of such multidistrict litigations by requiring 
courts other than the tranferee court, which has overseen discovery and 
other pretrial proceedings, to conduct the trial.
    This bill overturns the Lexecon decision in a carefully calibrated 
manner. While the bill allows a transferee court to retain a case for 
trial on liability issues and, when appropriate, on punitive damages, 
it creates a presumption that the trial of compensatory damages will be 
remanded to the transferor court. In so doing, the bill is careful to 
overturn the Lexecon decision without expanding the power previously 
exercised by transferee courts. More importantly, the presumption 
regarding the trial of compensatory damages ensures that plaintiffs 
will not be unduly burdened in pursuit of their claims.
    This bill(s narrow breadth should be contrasted with broader, and 
more troubling legislation to expand federal court jurisdiction, such 
as so called class action reform.
    I ask my colleagues to vote for H.R. 1038, and then for the bill as 
amended.
    I yield back the balance of my time.

    Chairman Sensenbrenner. Are there any amendments to any of 
the bills?
    [No response.]
    Chairman Sensenbrenner. There being no amendments, without 
objection, the previous question is ordered on reporting the 
bills favorably and the vote on reporting these bills favorably 
will be taken when a reporting quorum is present.
    Without objection the order for the previous question is 
vitiated. There is a Subcommittee amendment on H.R. 683, the 
Dilution Bill. Without objection, the Subcommittee amendment is 
agreed to. Hearing none, so ordered.
    And now without objection, the previous question is ordered 
on reporting the bills favorably with H.R. 683 being reported 
favorably as amended. And the vote will be taken at the time 
that a reporting quorum appears.
    [Intervening business.]
    Chairman Sensenbrenner. If there are no further amendments, 
without objection, the previous question is ordered favorably 
reporting Senate 167.
    We are still one short of a reporting quorum. I would ask 
the Members present to be patient, and as soon as we round up--
here we go. They have been rounded up. [Laughter.]
    The previous question has been ordered on reporting 
favorably the following bills: Senate 167, H.R. 683, H.R. 1036, 
H.R. 1037 and H.R. 1038. So many as are in favor of reporting 
these bills favorably will say aye.
    Opposed, no?
    The ayes appear to have it. The ayes have it, and the bills 
are reported favorably.
    Without objection, those bills which were amended here, 
meaning H.R. 683, will be reported favorably to the House in 
the form of a single amendment in the nature of a substitute, 
incorporating the amendments adopted here today. That unanimous 
consent request also includes Senate 167 as amended.
    Is there any objection?
    [Intervening business.]
    Chairman Sensenbrenner. With the next unanimous consent 
request, the gentleman will be given the right to file 
dissenting views on that bill. There will be separate Committee 
reports that will be filed on each of the bills considered en 
bloc. Does the gentleman withdraw his reservation?
    Mr. Watt. Yes.
    Chairman Sensenbrenner. Okay. Without objection, all 
Members will be given 2 days as provided by House rules, in 
which to submit additional dissenting supplemental or minority 
views, and without objection the staff is directed to make any 
technical and conforming changes.
    [Intervening business.]
    Chairman Sensenbrenner. There being no further business to 
come before the Committee, the Committee stands adjourned.
    [Whereupon, at 10:17 a.m., the Committee was adjourned.]
                            Dissenting Views

    I opposed reporting H.R. 1038, the ``Multidistrict 
Litigation Restoration Act of 2005,'' to the full House at the 
March 9, 2005 Judiciary Committee markup because I object to 
the process under which the bill was considered and because I 
object to certain substantive provisions of the bill.
    I object to the process because the Subcommittee on Courts, 
the Internet, and Intellectual Property did not conduct a 
hearing on H.R. 1038. The Subcommittee reported the bill by 
voice vote on March 3, 2005 and the full Committee markup was 
held less than one week later. Those who support H.R. 1038 
contend that the bill did not warrant a hearing in light of 
other hearings and markups on identical or related bills from 
previous Congresses. The last hearing on a prior version of 
this bill was in the 106th Congress. However, subsequent 
versions of the bill have undergone substantial changes worthy 
of examination. At the hearing on this bill during the 106th 
Congress the Subcommittee heard testimony from a witness who 
expressed serious concerns about the bill's expansion of 
Federal jurisdiction. \1\ These concerns have never been 
addressed. I believe a hearing should have been held in this 
Congress to evaluate the revised bill and to determine whether 
the revisions remedied the serious federalism issues raised by 
the prior iteration of this bill or made them worse.
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    \1\ See Hearing on H.R. 2112 Before the House Subcommittee on 
Courts and Intellectual Property, 106th Cong. (1999) (statement of 
Brian Wolfman, Staff Attorney, Public Citizen).
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    In addition to my concerns about process, I also object to 
certain substantive provisions of H.R. 1038. A prior version of 
this bill, H.R. 860 was partially passed into law in the ``21st 
Century Department of Justice Appropriation Authorization 
Act,'' \2\ codified as Sec. 11020 of the DoJ bill. Despite some 
adjustments \3\, I believe Sec. 11020 inappropriately expands 
the jurisdiction of the Federal courts by infringing on the 
traditional jurisdiction of the state courts with are better 
equipped to handle personal-injury and wrongful death cases. 
H.R. 1038 compounds that problem by insuring that the 
transferee court can retain the consolidated cased for 
determination of liability and punitive damages. Expanding 
Federal jurisdiction will add an additional burden to the 
Federal courts at a time when our Federal courts are already 
overcrowded and backlogged. Moreover, in light of passage (also 
without the benefit of a timely hearing) of S. 5, the ``Class 
Action Fairness Act of 2005,'' \4\ which steers most class 
actions and mass tort cases into Federal court, I believe H.R. 
1038 will exacerbate the strain already imposed on the Federal 
courts. While the bill's proponents maintain that the bill will 
increase judicial efficiency for the Federal courts, a 
proposition with which I disagree, it would do so by 
encroaching on the jurisdiction of state courts and states' 
rights and would do so at the expense of accident victims. I 
think we have lost sight of the fact that the courts are for 
the convenience of litigants, not judges and administrators.
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    \2\ Pub. L. No. 107-273.
    \3\ For example, Sec. 11020 creates Federal jurisdiction for civil 
actions arising out of a single accident that results in the death or 
injury of 75 or more persons when specified conditions are met. Under 
the original version of this bill Federal district courts were 
authorized to adjudicate cases arising out of a single accident where 
at least 25 persons were killed or injured.
    \4\ The Class Action Fairness Act was signed into law on February 
18, 2005. See Pub. L. No. 109-2
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    While some may characterize this bill as a ``non-
controversial'' piece of legislation that should be quickly 
moved through the legislative process, I believe that the 
landscape has changed with the passage of the Class Action 
Fairness Act. Accordingly, I believe that we failed to properly 
exercise our responsibility as Members of the Judiciary 
Committee by not conducting a more extensive review of this 
bill. Consequently, while I favor some of the provisions of the 
bill, I oppose reporting H.R. 1038 to the full House.

                                   Melvin L. Watt.

                                  
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