Class Action Fairness Act of 2003

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, we have heard discussion of the so-called Class Action Fairness Act. I oppose the Class Action Fairness Act for the simple reason that it is not fair. Actually, the legislation makes it more difficult for citizens to protect themselves against violations of State civil rights, consumer, health, and environmental protection laws. The way it would hurt them is it would force these cases out of convenient State courts, which have experience with the legal facts and issues involved in such cases; instead, it would push them into Federal courts with new barriers to lawsuits, with new burdens on plaintiffs.

For the many Americans who are watching this debate, we have to at least mention the first, basic question that scheduling this debate right now raises. Here we are, 3 weeks beyond October 1. October 1, of course, is the beginning of the new fiscal year. It is a deadline for passing the appropriations bills that fund the basic work of the Federal Government. It is the law that the House and the Senate must pass the 14 appropriations bills that fund our Nation and do it by October 1. We have not done that. The Congress has not lived up to the responsibility the law mandates. We are in the final few weeks, if not days, of this congressional session, but here we are, 3 weeks past the legal deadline to do what we are required to do, and what we are paid to do, and instead we are devoting these precious days not to acting on the people's priorities, but we will spend several days debating a bill which is a priority of some special interests.

Over the past several weeks, I have received call after call from Vermonters who are more and more anxious over Congress's ability--in fact, Congress's willingness--to finish appropriations for fiscal year 2004. I know other Senators, both Republicans and Democrats, are getting similar calls. I have told those Vermonters who call me to hang in there. I assure them that Congress will eventually get around to doing its work.

Then the Republican leadership decides to have us consider controversial special interest legislation such as this bill. Apparently the special interests can go to the front of the line. The people's interests go to the back of the line. I suggest we have it the wrong way around. Do the people's legislation first; do the appropriations bills first;

do the things we are required to do by law. Do the work that we go back home and tell everybody we are going to do, and if there is time left over for the special interests, let them come up then; don't put them ahead of the people.

My colleagues and I who serve on the Appropriations Committee worked long and hard to get the fiscal year 2004 bills voted out of our committee. We got them all out. They could go anytime they wanted. The Republican leadership has decided not to. The House has passed all 13 of the regular appropriations bills. They are waiting for the Senate to act. We are not acting. Instead, we are bringing up special interest legislation.

The new fiscal year began 3 weeks ago, but the Senate has not even bothered to take up the appropriations bills that fund Agriculture or Commerce, Justice, State, and, our Federal law enforcement, the FBI, the Department of Justice, the actions we take to counter terrorism.

As for Commerce, we might do that, so we might actually get us some jobs in this country at a time when we are losing a million a year.

Foreign operations? That hasn't been brought up.

Transportation? We all know our roads and bridges and rail system are falling apart. We ought at least to be voting. We may vote not to give any money to fix any of the problems of the Nation. We did vote, incidentally, to send $87 billion to Iraq and we will fix their roads; we will fix their electrical system; we will fix their communication system; we will fix their postal system; we will even give them a new ZIP Code. But maybe we could take a few minutes and bring up those things that might actually pay for roads and transportation and electrical grids and ZIP Codes in the United States.

Veterans Affairs is in there. The administration is cutting veterans benefits all over the country. They are cutting our veterans hospitals. They are cutting out what is available to our veterans. At the same time we are asking our men and women to serve in Iraq, we are cutting out their money. We ought at least to bring that up. Let's vote on it.

We voted to send money to the veterans of the Iraqi army. We voted to send money there. We ought to spend some time here voting on veterans in the United States.

We have the Housing and Urban Development appropriations bills. We have a great housing shortage in this country. We just spent billions. We had plenty of time to vote billions of dollars to build houses in Iraq. We can't even bring up the housing bill for the United States, but this special interest legislation we do make time to address.

What I would say is: OK, we voted to do all these things now for the Iraqi people. Can we at least spend a day or two voting on the same bills that might help the American people at the national, State, and local levels?

Let me tell you about a few of these programs that are being pushed aside so we can take up this special interest legislation.

In the area of agriculture, there is more than $1 billion in conservation assistance for farmers to help them improve water quality and stop sprawling development. Last year, the aid was delayed by more than 4 months. Each month is critical. The men and women who farm in this country are just barely getting by.

They stalled the Justice spending bill so we could get money as quickly as we possibly could to the police forces of Iraq. But because we stalled it, there is no money for the Bulletproof Vests Partnership Program which helps State and local police agencies buy armored vests to protect the lives of their officers. This is a good bipartisan program that Senator Ben Nighthorse Campbell and I put together.

I have had police officers come up to me all over the country, people I have never met, who want to shake hands and say, We really want to thank you and Senator Campbell and those who joined you to help us get this money. Now I am going to have to tell them it is stalled. We had to wait to get the money for Iraq, that is fine, but now we have to stall again because we have special interest legislation that comes up.

Take the COPS Program; this puts new police officers on the community streets and in our schools; the Violence Against Women Act programs that provide services for victims of domestic violence, sexual assault and stalking. Those were all set aside so we could bring up this special interest legislation.

All funding for transportation and critical infrastructure projects was bottled up. In fact, the Senate has failed to pass the transportation reauthorization bill. We don't have time to bring that up. We can bring up special interest legislation, we can bring up highways in Iraq, but we can't bring up the highway transportation bill here in the United States. And what is the cost to us? It is 90,000 jobs here in America.

All foreign assistance to nations other than Iraq and Afghanistan are on hold. In fact, all the funding to combat HIV/AIDS and other infectious diseases is also on hold.

We have another group of Americans awaiting action by Congress. Those are our veterans. They need Congress to make basic decisions about their medical care and benefits, decisions that are being held in limbo, and they have no idea where we are going to go.

These are priorities. American priorities are being set aside, and we will take care of Iraq. We will take care of the special interest legislation. In fact, the special interest legislation is going to do more harm than help.

I think the American people are entitled to ask why we are bogged down considering this controversial and unfair class action bill when the Senate has yet to take up and debate five important appropriations bills amounting to $301 billion.

I hope the Senate gets down to the business of the people and carries out the responsibilities given to us by the Constitution: taking up, debating, and passing the remaining appropriations bills. And we can pass them. There will be a bipartisan majority of both Republicans and Democrats working together to pass them, if we are even allowed to vote on them. We were allowed to vote on Iraq and special interest legislation. Can we take a little bit of time to vote on legislation that actually helps the people of America?

The American people and the people around the world depend upon the funds and services supplied through the spending measures that are now held hostage. Let us do our job. Let us move these bills. Let us spend a couple of weeks on the floor of the Senate legislating for the people of America. It would be a nice refreshing time. We could pass these bills.

Earlier this year, I joined with Senators Kennedy, Biden, Feingold, Durbin, and Edwards in requesting a hearing on class action litigation in order to help the Judiciary Committee develop consensus reforms-- something that we could have done. Republicans and Democrats could have joined on it. But our request was ignored. Actually, our letter went unanswered.

I ask unanimous consent that the letter be printed in the Record.

Mr. President, I had hoped that the Judiciary Committee would undertake a deliberate and careful review of information from parties

actually involved in class action litigation to provide a realistic picture of the benefits and problems with class actions. But instead of doing the work for America, we are proceeding with a special interest piece of legislation which has repeatedly failed to pass the Senate in recent years. Our Judiciary Committee did not carry out the kind of thorough and thoughtful legal analysis of this difficult issue it should have. The committee did not provide our fellow Senators with the assistance that they may want and need in this complex area.

I acknowledge the hard work and dedication of my friend, the senior Senator from California, Mrs. Feinstein, who took on an enormous task, attempting with her amendment to rectify some of the harms created by this bill. I appreciate the sincerity of her concern. I appreciate the genuine effort she made. But her amendment touches on only a sliver of the class action cases which this bill would affect--only when plaintiffs and primary defendants are from the same State--and even then it could cause harm.

At its core, this bill deprives citizens of the right to sue on State law claims in their own State courts if the principal defendant is a citizen of another State, even if that defendant has a substantial presence in the plaintiff's home State, and even if the harm done was in the plaintiff's home State. The amendment does not remedy that problem. It burdens the plaintiff even more.

I also want to recognize the sincere efforts made by my friend from Wisconsin, Senator Kohl. I may disagree with him about the nature of the problem. I may disagree with the appropriate solution in this area. But I do so respectfully. He has worked very hard, and I appreciate his efforts.

I would like to note the significant changes in the bill since it passed out of committee.

As originally drafted, this bill included mass tort claims along with class actions. It actually treated them like they were class actions.

One improvement the Judiciary Committee did manage to make to the bill was to strike that provision. We struck it. We voted on that, and we struck it. But somehow, mysteriously, after the bill left the committee with nobody voting, that was reversed. Now mass tort actions are again included in this bill.

Just in case anybody says this is what we voted out of committee, it is not. We changed that.

Now we find out how we actually get things changed in the committee because, apparently, our friends on the other side of the aisle could care less about what we actually did in committee. They just change it in the draft on the way over here. It is fascinating. I have never seen that in 29 years here. But I guess we live under new rules.

In the old days, we just lived under the Senator rules. But now we have rules outside the Senate rules. In fact, this bill is not the bill reported by the Judiciary Committee, S. 274. It is another bill--S. 1751--which was introduced last week. We didn't have hearings on that. We didn't have votes on that. I guess the special interest says, OK, as soon as you finish with the roads in Iraq, as soon as you finish the schools in Iraq, as soon as you finish giving the power grid to Iraq, as soon as you finish paying for the police officers in Iraq, as soon as you are finished with veterans' benefits for Iraq, before you do anything for American citizens, give us our special interest legislation, and we can just drop it in and go forward.

The special interest legislation will be subjected to the same shunting to a Federal court, and plaintiffs will endure the same unnecessary difficulties in making their claims and pursuing their remedies. But these mass tort cases are not class actions. They have not been analyzed under rule 23 standards or State law.

Mass tort actions have entirely different procedural vehicles to reach justice than class actions. They shouldn't be lumped in with class actions in any kind of class action bill, either this misguided attempt or a better wrought piece of legislation.

Some special interest groups are distorting the state of class action litigation by relying on a few anecdotes and an ends-oriented attempt to impede plaintiffs bringing class action cases. If we really want to correct things, we can and should take necessary steps to correct the problems in class action litigation. But simply shoving most suits into Federal court with the new one-sided rules isn't going to correct the real problems faced by plaintiffs and defendants. It will clog up the Federal courts, but it won't accomplish anything.

We forget that our State-based tort system remains one of the greatest and post powerful vehicles for justice anywhere in the world-- no doubt around the world--as a vehicle for justice. It lets ordinary people ban together to take on powerful corporations--sometimes even their own government.

Defrauded investors, deceived consumers, victims of defective products, and environmental torts, and thousands of other ordinary people have been able to rely on class action lawsuits in their State court systems to seek and receive justice.

I remember when the Soviet Union broke up. A group of legislators from the Duma came in to see me, as they did several other Senators. One of them asked a question. They said: We have heard it is actually possible that citizens in your country can ban together and sue the government. I said that is true.

They said: We have heard further that not only do they sometimes sue the government, but there are times the government loses. They win.

I said: Oh, yes.

They said: You mean you don't fire the judge and make him do it over again?

I said: You don't understand our system. It is not the Soviet Union. Here in the United States, we are able to ban together to take on the government. If the government is wrong, the government is going to lose.

It was an eye-opener to them. Actually, it was a bit of an eye-opener to me because I realized those things we take for granted other countries haven't had the opportunity to have.

I am old enough to remember the civil rights battles of the 1950s and the 1960s and the impact of class actions in vindicating basic rights through our courts. When Congress sat back and did nothing, when Presidents sat back and did nothing, it was class action lawsuits that won.

The landmark Supreme Court decision of Brown v. Board of Education was a culmination of appeals from four class action cases, three from Federal court decisions in Kansas, South Carolina, and Virginia, and one from a decision of the Supreme Court of Delaware.

Only the Supreme Court of Delaware, the State court, got the case right by deciding for the African-American plaintiffs.

The State court justices understood they were constrained by the existing Supreme Court law but nonetheless held that the segregated schools of Delaware violated the 14th amendment. The Federal courts did not get it right; before any Federal court did so, a State court rejected separate and unequal schools. The U.S. Supreme Court, to their credit, joined in a unanimous decision in Brown v. Board of Education and closed down the highly discredited separate but equal idea, Plessie v. Ferguson. There was no separate but equal in the schools and they knew it--separate and unequal. The State courts realized that first in a class action suit and then the U.S. Supreme Court followed.

Many civil rights advocates, including the Lawyers' Committee for Civil Rights Under Law, Leadership Council on Civil Rights, Mexican American Legal Defense and Education, and the National Asian Pacific Legal Consortium have written to Senators in opposition to this legislation. The civil rights advocates conclude this legislation ``would discourage civil rights class actions, impose substantial barriers to settling class actions and render federal courts unable to provide swift and effective administration of justice.''

I ask their letter, dated September 16, 2003, be printed in the Record.

We all know without consolidating procedures, such as class action lawsuits, it might be impossible for plaintiffs to receive effective legal representation. Lawyers tend to be paid by the hour. They are well paid. But lawyers usually hope they get a portion of the proceedings to take on either the governmental or culprit defendants. They have to do so on a case-by-case individual basis. Sometimes that is what cheaters count on. That is how the cheaters get by on their schemes. If you cheat thousands of people just a little bit, you still cheat; if you only cheat them by $3 or $4, nobody will sue them. But if you are cheating a million people of $3 or $4 each, it adds up.

Class actions allow the little guys to band together and get a competent lawyer and address wrongdoing. The best class action made it possible for individual tobacco victims to take on the powerful tobacco conglomerates in ways individuals could not. It allows stockholders and small investors to join together and go after investment scams.

Another example of a class action litigation serving the public interest is the Firestone tire debacle. The national tire recall was started in part by the disclosure of internal corporate documents on consumer complaints of tire defects and design errors that were discovered in the litigation against Bridgestone/Firestone, Inc. Then the plaintiff's attorneys turned this information over to the National Highway Safety Administration. That started a Government investigation.

Months later, because some people had banded together, Bridgestone/ Firestone finally did what they should have done right from the beginning: They recalled 6.5 million tires--but not until after there were 101 fatalities, 400 injuries, and 2,026 consumer complaints.

As reported by Time magazine at the time, it is doubtful that the internal corporate consumer complaint information would have ever seen the light of day absent the civil rights justice discovery process.

The bill before the Senate creates unique risks and obstacles to plaintiffs that are not in the current system. A particularly troubling aspect of S. 1751 is it allows the removal of a case at any time. Anybody who has ever practiced law, anybody who has ever litigated cases--and I, as many other Senators, have--knows the possibilities for abusing this provision are obvious.

As more than 100 legal experts, law professors, noted in a letter to the distinguished Republican leader and the distinguished Democratic leader, Senators Frist and Daschle, they said:

This would give a defendant the power to yank a case away

from a state-court judge who has properly issued pretrial

rulings the defendant does not like, and would encourage a

level of forum-shopping never before seen in this country.

Moreover, this provision would allow an unscrupulous

defendant, anxious to put off the day of judgment so that

more assets could be hidden, to remove a case on the eve of a

state-court trial, resulting in automatic delay of months or

even years before the case would be tried in Federal courts.

I ask unanimous consent that the letter of the 100 law professors be printed in the Record.

Added to the ``removal-at-any-time'' problems in the legislation are the hurdles established by Senator Feinstein's amendment adopted in committee. I know it is well intentioned, but the amendment does set up cumbersome requirements for determining whether an action is to be heard in State or Federal court. It provides that a Federal judge may use five factors in deciding jurisdiction of a class action where between one-third and two-thirds of the plaintiffs are from the same State as primary defendants; and if two-thirds of the plaintiffs are from the same State as the primary defendants, then the case will stay in State court.

The bill fails to determine when this measurement takes place during the litigation. It has been my experience that membership in class actions frequently changes. So the two-thirds provision or the middle- third provision which is subject to judicial discretion could open up easily to judicial gamesmanship. The defendant could try to remove a case from State court at the discovery stage. Someone takes a deposition and finds, oops, this is going against us, let's get it out of here. Or the judge has made a ruling they do not like and they know they can never win on appeal, let's get it out of here, even after all the evidence is presented, or after closing arguments.

Actually, the way the bill is currently written, it could be done while the jury is deliberating. Considering the vast resources of defendants in many class actions as compared to plaintiffs, it will make it more difficult for class members to ever have a final ruling, where the bill will cause unnecessary and expensive litigation. It favors corporate defendants.

I like to think the scale of justice is even. This tilts the scale of justice and it will bounce right off the stand.

If there were ever a time to think about protecting the consumers, the investors, and the employees, think of Enron, WorldCom, and other corporate scandals. Think of the employees who worked so hard and were told to put their money in the corporate pension program. Look what has happened. Look at the employee investors. I am not too concerned about some of the leaders of a company like that. They might have to sell one of the $50 million homes or they no longer will have several billions of dollars but rather several hundred million, but I am worried about the people who truly had their lifesavings or their pension destroyed or their company destroyed.

This bill does nothing to make the Enrons of the world more accountable for their actions. Actually, the bill undercuts Congress's other efforts to make the companies more responsible or accountable for their misdeeds or more susceptible to penalties when they do wrong. The legislation makes it more difficult for the victims of corporate wrongdoing to join to make those companies accountable. It seems to me that is the exact opposite to the approach we should be taking.

Now, not surprisingly, consumers and those representing consumers object strongly to the enactment of this legislation.

I ask unanimous consent to have printed in the Record letters from numerous consumer advocates in opposition to this bill.

Last year a group of investors recovered millions of dollars in lost investments under State corporate fraud laws and a State class action case in Baptist Foundation of Arizona v. Arthur Andersen. These investors, mostly elderly, banded together to successfully recoup $217 million from Arthur Andersen. Why? Because of questionable accounting practices surrounding an investment trust. The case is just one example of how a State-based class action litigation holds corporate wrongdoers accountable and helps defrauded investors recoup their losses.

Like most Vermonters, I am a strong supporter of the environment. But I look at this bill and I think, what a green light for polluters and others responsible for environmental damages to avoid accountability in court. So many polluters, who would fear class action suits if they were to violate the law, now know they could get caught. With this legislation, they might take the old idea of: Go ahead and pollute; nobody gives a hoot. They are going to get away with it.

This legislation removes almost all important environmental class actions from State to Federal court. Not only does this deny State courts the opportunity to interpret their own State's environmental protection laws, but it also hampers and deters plaintiffs in pursuing important environmental litigation. It means we Vermonters would not have a say in our own courts--or those in Utah or in any other State.

Under this bill, environmental class action suits may not get litigated, reducing the incentive to keep our environment clean. Plaintiffs' attorneys may not be willing to take these high-risk, high- cost, and time-consuming cases, particularly when what they are looking for is injunctive relief. That is an injunction to stop the polluter from polluting. Intentionally or not, this bill protects polluters and ignores innocent victims of their negligence.

Just a few months ago, as I recall, we read about a horrible toxic dumping situation in Alabama and a monumental settlement in State court to clean up an entire community. It was in State court, though--in State court.

In Anniston, AL, the Monsanto Company manufactured PCBs-- carcinogens--from 1929 to 1971. For more than 40 years, in arrogant-- arrogant--disgusting disregard of people's health and the environment, Monsanto dumped untreated, unfiltered waste from its PCB plant into the streams and landfills of Anniston. They never let the residents--many of whom actually worked, and worked very hard, for Monsanto--they never let them know of the horrific risk to their environment and their health.

When the undeniable truth of Monsanto's malfeasance became clear, several thousand residents of Anniston sued in State court. They recently won a liability jury verdict. When the case moved into the damages phase, Monsanto was not out there defending and saying: Well, we did not do something bad. They knew they did something terrible. They did not start arguing about: Well, people were not injured by it. They knew they were injured by it.

So what did they do? They tried to get the judge removed. That is what they tried to do. Although the Alabama Supreme Court, a conservative supreme court, had already held that the trial judge was acting properly, Monsanto continued to oppose his participation. They tried everything they possibly could do to confuse people and escape facing up to the issues. They then had to focus on the merits of the case and settled with the local residents for $600 million and pledged to pay additional cleanup costs for the town.

The Alabama Supreme Court, the Alabama State court, did this very well. Not under this bill. Under this bill, it would have been yanked away from those courts, yanked away from the Alabama State court, yanked away from the Alabama Supreme Court, and stuck into Federal court.

Why? More than 100 people lived in Anniston. Even though all the people

suffered, they lived just a block or a driveway from each other. We, those of us who say we really care about States having their rights, would reach down and yank it right out of the State and say: You are not good enough to handle the case that involves your own people.

Cases such as this one would provide hard evidence that our State- based civil justice system is working--it is working--to protect the environment and to protect victims of polluters, and there is no reason to prefer a Federal reform for resolution of their claims. State courts, unlike the Federal courts, have a sound understanding of evolving local law and the open dockets to resolve conflicts in a manner that would protect our society from polluters.

In fact, we ought to at least ask, Do the Federal courts want this? The Judicial Conference, headed by Chief Justice William Rehnquist, wrote a letter in March of this year opposing this bill because its ``provisions would add substantially to the workload of the federal courts and are inconsistent with principles of federalism.''

They singled out serious environmental disasters as an example of class actions that should remain in State courts.

Chief Justice Rehnquist and the Judicial Conference said: What are you doing to us? Why are you sending these cases over there? State courts can handle them better.

I would be a very wealthy person if I had a couple dollars for every time I heard speeches or statements from my fellow Senators about how we have to better respect our individual States. After all, that is why we have a Senate. Each one of the 50 States has equal representation here to make sure the States are not subsumed in the Federal system. Those who would support this bill are giving the back of their hand to their States and saying: You are not smart enough, you are not good enough to take care of the laws of your own State.

Numerous organizations devoted to the protection of the environment oppose this bill, including Clean Water Action, Earthjustice, the Environmental Working Group, Friends of the Earth, Greenpeace, the Mineral Policy Center, the Natural Resources Defense Council, the Sierra Club, and the U.S. Public Interest Research Group.

These advocates conclude, in a letter, this bill ``would benefit polluters at the expense of people and communities harmed by public health and environmental disasters.'' I ask unanimous consent their letter be printed in the Record.

Mr. President, as colleagues may have gathered, I am not in favor of this piece of legislation, the Class Action Fairness Act. Man, I have heard things. There ought to be a law against misleading labels on legislation we pass because this would break the law. These many injured parties who have valid claims would have no effective way to seek relief. Class action suits have helped win justice and expose wrongdoing by the polluters, the big tobacco companies, and the civil rights violators, and brought about Brown v. Board of Education, as I said earlier. It gives average Americans at least a chance for justice. We should not take that chance for justice away from the American people.

So I hope Senators will consider the harm this bill would do the American people and to their constituents and join me in opposition.

Lastly, Mr. President, as I said, we found time to get highway money for Iraq, but we do not have time to pass the highway bill for America. We had time to get money to improve police departments and law enforcement in Iraq, but we do not have time to pass a bill to do the same here for Americans.

We had time to pass legislation to help military veterans in Iraq, but we can't find time to pass legislation for veterans in the United States.

Of course, I yield to my friend from Nevada.

Did the Senator say omnibus or ominous?

I appreciate the comments of my friend from Nevada. I can't think of any person who has worked harder to help get legislation through. The senior Senator from Nevada has a good reputation of working with both Republicans and Democrats. There are two primary reasons. One is the fact that he knows legislation better than anybody else around here. Secondly, he is totally honest and truthful to everybody.

It is frustrating because, again, there is legislation for highways in Iraq, but not in the United States, all these other things. We passed a transportation bill. That would mean 90,000 jobs right there that we could put Americans back to work.

I thank him for saying that. I don't care if people want to spend time on this bill. It is a terrible bill. If they want to spend time on it, let's at least get the appropriations bills done. Let's answer the questions of our veterans, whether the benefits will be there or not; answer the questions police officers have about benefits; answer the questions those in education have, whether the money will be there.

I see my good friend, the senior Senator from Illinois. I yield the floor.

Madam President, I want to express my appreciation for the thoughtfulness of Senator Warner. He has served his country for many years as a marine, a naval officer, as a Secretary of the Navy, and now the Senate chairman of the Armed Services Committee. I know he takes this issue very seriously.

I do believe this officer should be entitled to a hearing, have an inspector general look at these very delicate matters. When we talk about people's personal religious beliefs as to whether one theology is valid and another one is not, we wouldn't expect a person of the Islamic faith to ratify the Christian faith or other faiths to say they validate the faith of someone else. That is just the way we see things, as we deal with matters of personal faith.

But I think it is a delicate matter, particularly when a person is in uniform. I think going forward with a look at this and some thoughtful analysis as to what would be the right procedure would be appropriate. I thank our chairman of the Armed Services Committee for his comments.

I think it would be good for all of us to think a bit about the subject and what would be appropriate to ask of an officer in a church proceeding and whether uniforms make a difference and those kinds of things.

I was going to speak about the class action reform. Did the Senator from Illinois have some comments?

Would 5 minutes be sufficient? I am pleased to yield to the Senator from Illinois.

I thank the Senators for their comments. I fail, but I attempt to take my faith seriously. I respect followers of the Islamic faith who take their faith seriously, who study the scriptures and act in accordance therewith. We may disagree, but we respect one another. That is the way I was raised as an American, to respect one another's faith. I think respect for one another's faith makes me somewhat sympathetic to General Boykin, who goes to a church and shares some of his insights and beliefs. But then again he is an officer of the United States and has a position in a time of conflict, in a sensitive period, and maybe at one point apparently he may have worn the uniform while he made those remarks.

I think it is appropriate for us to take some time out and look at this. I thank the chairman for that.

Madam President, we are now to undertake and begin debate on the motion to proceed to the Class Action Fairness bill, S. 1751.

Unfortunately, we are seeing a trend in which there are more and more pieces of legislation that deserve an up-or-down vote being subjected to a filibuster and 60-vote procedural hurdles. That is unfortunate. We should proceed with this legislation and discuss it and not be obstructive about going forward with it.

The Class Action Fairness Act represents modest reform. It is a restrained bill that will address a number of very serious problems with the current status of class action lawsuits such as the plaintiff receiving coupons while trial lawyers pocket millions of dollars in fees.

This body has a duty to address problems with the legal system. It is something we are required to do and should not have to overcome 60-vote hurdles. I am disappointed we may have to overcome another filibuster as we move forward.

Obstructionism is always available, but I don't believe there is strong opposition to this bill. There is bipartisan support. If we let the debate go forward and people honestly consider whether it ought to be law or not, we would be willing to accept an up-or-down vote. That is a concern I express.

The distinguished Senator from Delaware is here. He is very thoughtful on these matters. I know he would like to speak for approximately 15 minutes. I yield the floor.

Mr. President, I understand the Senator from Illinois would like to speak on this subject. First, I ask unanimous consent that Senator Voinovich be added as a cosponsor to S. 1751, the Class Action Fairness Act.

I ask the Senator from Illinois how much time he thinks he might need?

I thank the Chair and yield the floor.

Mr. President, I want to make one thing crystal clear: I am not here to provide any unfair benefit to any corporation or any defendant. We want fairness and justice in the legal system. But in a major class action case, under the current state of the law, a plaintiff lawyer who represents perhaps potential plaintiffs all over America--let's say it is a national case--can virtually choose any county in America to file the lawsuit. He can choose some counties that have only one judge, and perhaps he knows precisely what that judge thinks about plaintiff lawsuits. Or maybe he thinks that county has a most favorable jury.

Let me state what the Constitution says about it. Sure, a corporation has to register to do business in a State, but the Constitution, in article III, section 2 of the courts' power says this:

The judicial Power shall extend to all Cases, in Law and

Equity . . . between Citizens of different States. . . .

And corporations are considered domiciled in that place of domicile. Fundamentally, what has happened over the years is we have eroded the constitutional protection of diversity by rulings that allow plaintiffs to sue not only the foreign corporation from another State, but to sue some entity also as a defendant in that State, and the courts have concluded you have to have total diversity before you can remove it to Federal court. That has been a problem, allowing the real payor, the real target to be subject to jurisdiction in virtually any county in the country.

I am not here for any injustice. I think we have a pattern of injustice going on in class action lawsuits. We can make them better. They would be better in a more objective tribunal of Federal court where judges have lifetime appointments. They are not so tied to the plaintiff lawyer who may go to church with them or have contributed to their campaign or the jurors might not be buddies with some of the folks, and you have a more objective court. That is just a fact. That is why the Founding Fathers said what they said.

In sports we talk about home cooking. I know the hometown the Presiding Officer is from in Tennessee. It is such a wonderful place. It would treat foreigners just as fairly as local people, but most communities tend to favor the local guy from somebody

from out of town. That is why we have it set up so Federal judges hear these cases and give a little more objectivity, although the judge is from the local community, at least from the State, and the jurors are from the region. That is what we are about.

This bill would also fix some other situations. It would eliminate the coupon settlements. It would eliminate class notices that cannot be understood. The letter goes out to all the class members in language so complex nobody can understand. It eliminates negative awards. We have actually had cases in which the so-called plaintiffs, not even knowing they are plaintiffs, get a bill for attorneys fees and costs. It would protect against high awards for one group because they are from one area of the country, and it would eliminate the payment of bounties for lawsuits and help knock down some of the blackmail that has been going on: Filing these huge lawsuits costing so much money and embarrassing a defendant so they feel forced to pay rather than litigate for years at a very high cost.

Mr. President, those are the remarks I wish to make at this time. I will have some more later. I see the distinguished Senator from South Carolina is here, Senator Graham, who is an experienced litigator in his own right. I know he wants to speak on this subject.

Mr. President, will the Senator yield for a question?

Is the Senator aware that the letter I believe the Senator from Illinois was referring to is actually a letter from the Judicial Conference, not from the Chief Justice and, in fact, they have written another letter on March 26 of this year in which they actually warm up to this idea, and that the legislation, as we are now proceeding, answers a number of the questions they had originally?

Frankly, I know they don't want any more work. Nobody does, I guess. But I think many of these problems may have been solved.

Mr. President, I suggest the absence of a quorum.

Mr. President, I thank the Senator from South Carolina. I, too, have some very strong feelings about Bill Pryor. He is one of the finest nominees ever to be submitted to this body. I have no doubt about that. He needs an up-or-down vote. If he receives one, he will be confirmed.

We started out the debate tonight talking about the class action reform bill that is before us. We are seeking to consider the bill, but we are still debating the motion to proceed to the class action bill. I see the distinguished chairman of the Finance Committee is here, Senator Grassley, to speak on that legislation. I will be speaking on it further tonight, also.

I am pleased to yield to him.

I thank the distinguished chairman of the Finance Committee, a senior member of the Judiciary Committee, for his leadership on this legislation for quite a number of years. He is a champion of commonsense fairness in the legal system. That is all we are talking about.

I agree with Senator Grassley. I cannot imagine why somebody thinks that Federal courts, which have been the champion of liberties for Americans for years and years, are somehow now not fit to handle complex interstate class action lawsuits. It just boggles the mind. It is not sound logic. That argument is driven by the objections being made by the plaintiff lawyers who are interested in these cases. They want to be able to file them where they choose. They want no erosion of their ability to do so, and they are calling in their friends on the other side of the aisle, and some of them are responding.

It was referred to earlier that these are big corporations that need to be dealt with and we ought to be able to sue them, presumably, in any county in America you choose to sue them in. I do not believe that is what was contemplated by our Founding Fathers.

Let me tell you about another major industry in this country, the industry that is driving the objections to this bill; the plaintiff trial lawyer industry. A recent Tillinghast--I believe is the name of it--study showed their income last year was $37 billion. The income of the ``Trial Lawyers, Inc.'' is larger than that of Microsoft, Coca- Cola, and other companies of that size. It is a huge industry. They contribute aggressively to political campaigns, and they promote their agenda aggressively. It is a free country, and they have every right to do so. But I would just suggest that those who would argue that the only wonderful people in this deal are the plaintiff lawsuits may not be so correct.

Another study has shown 2 percent of the gross domestic product of this country goes to litigation costs. That is double what the other countries in the industrialized world are paying for litigation costs, and it is an extraordinary figure. It is a figure that is paid for not by just big corporations, it is paid for by every single American when they take out insurance.

I wish it were not so. If someone makes an error in America today, and you sue them, and then you seek punitive damages to punish them, the unfortunate reality is, probably they have insurance or the case would not have even gone forward. The lawyer would not proceed, probably, if they did not have money to pay and did not have insurance. They have insurance, so the punitive damage verdict gets rendered, and the insurance company pays it. What does the insurance company do? They raise the rates on everybody who is paying premiums. Innocent people are paying the penalty imposed by the litigation.

So we really need to think about how this system is working. I want it to work better. This is a modest step. As I noted earlier, the Constitution contemplates that lawsuits between people from two different States would be in Federal court. That is the diversity clause in the Constitution which has been the way things work for a long time. But the way things are working now, if you can name one defendant to be an in-State defendant, then in many instances you can make the case stay in State court. This process is allows a plaintiff to essentially pick the forum they want to pick.

If you are suing McDonald's for a problem in their entire system that affects people all over America, then that case ought to be in Federal court, unless you are located in the State where McDonald's is headquartered. That is what I think clearly was contemplated by the Founders. But by using the device of naming in-State plaintiffs for suing a defendant in the state he does business in, plaintiff lawyers have been able to break the diversity and keep it in State court.

We want people who have been injured to be compensated, and we want to make sure they are adequately compensated and that their compensation is legitimate and fair, and that the attorneys get paid a legitimate fee, and not get a huge fee and little or no compensation to the victims. The ugly truth is, in a lot of these cases, the corporations really just want the lawsuit to go away and have to take the plaintiff lawyer's word for what the plaintiff class wants in a settlement agreement. If the plaintiffs' lawyer says his clients--many of whom, virtually all of whom, he may never have met--would accept a coupon for a Blockbuster video, as long as the defendant pays the plaintiff lawyer's fees totaling $10 million, the defendant may be willing to pay that to get rid of the lawsuit.

So the clients get paid little and the attorney gets paid a lot. There is a conflict of interest and a tension there for people who are sensitive to it. We are seeing that in these cases. That is what Senator Grassley was talking about. We are seeing that as a pattern. This legislation will help deal with that problem, help bring more integrity to the system, allow the courts to monitor it more closely, and ensure more fairness for the victims of wrongdoing.

Don't misunderstand me, class actions can be an effective and legitimate tool. Some people are so frustrated by the abuses that they just want to attack all class actions. That is not what we are doing with this bill. Class actions are effective tools for a large number of people who may have been wronged by a single defendant or by defendants acting in concert. This can happen in a bank. Banks have been known to overcharge people. For example, a bank does not pay proper interest on an escrow account, and they owe each depositor $2 in interest. But there are 1 million depositors, and it has been going on for 5 years. The calculations get worked out. It is appropriate that those people get the interest they are entitled to and often a class action is the appropriate way to get this done. They ought to be paid fully what the law says you ought to be paid on the escrow account. The question is, however, are those plaintiffs always getting the money, and are these cases being handled in a way that is fair and just? How it works is what we are talking about. Certainly, 100,000 lawsuits--and they can be brought that way--each brought individually for a $2 misappropriation in an escrow account is not an efficient way for lawsuits to be settled. That is why we allow them all to be brought in one court. Then all plaintiffs are bound by the result as well as the defendant.

Too often, in recent years, however, these lawsuits have become a vehicle by which some trial lawyers are cashing in at the expense of the plaintiff class. The most troublesome aspect is that in many of these class actions the lawyer does not even know the clients, and in some cases does not even have a client. In these situations a lawyer first discovers a potential claim he or she thinks is a good one, and then runs around and finds a client to be the named client as a vehicle for the lawsuit. The end result is often not justice for the plaintiffs, and enrichment for the attorney. I know of a case in which the client--the named plaintiff--in the case died, and the lawsuit went on with no real party there for months before the attorney discovered his client had died. The attorneys were running the lawsuit, proceeding as they chose, with so little communication with their supposed client that they did not even know the person had died.

Not always. This is not always the case. A lot of these lawsuits are handled fairly and objectively, but we are seeing abuses there on a regular basis.

For some cases they have not even been able to show any damages, yet the lawyers have still received huge amounts of money. For example, the Toshiba case. In this case, a class action suit was filed in Texas. It complained of an entirely theoretical defect in the ``floppy disk controllers'' of Toshiba laptops. There were no allegations that the asserted defect had resulted in injury to any user, and not one customer had ever reported a problem attributable to the defect. Facing potential liability of $10 billion, Toshiba decided they needed to settle this claim. They were willing to pay. The class members received as their payment between $200 and $400 off any future purchases of Toshiba products. In other words, they got a settlement--a discount on future purchases of a Toshiba product--only if they bought products from the defendant again in the future. The two named plaintiffs, the ones who were working with the attorneys, presumably, got $25,000, and the plaintiffs' attorneys received $147 million. That is a lot of money. The fact that most class members only benefitted from the lawsuit if did business with the defendant in the future is not good. It seems to me the company was wanting the lawsuit to be over, they were willing to pay the lawyers whatever fee they asked for, and give some sort of token settlement to the class members, and get out of this thing, just to make the suit go away, even though no real damages had happened to the class members as of that date.

Lawyers are supposed to represent real clients who have been truly harmed. They are ethically bound to represent the clients' interests foremost, far above their own interests.

Class action lawsuits are designed to be available when lawyers realize that an entire class of people have been harmed in the same way that his client has been harmed. However, class actions should not become a feeding trough for attorneys. Class actions should not be a situation where good advocates figure out a way, by adding unrelated defendants, to file actions in friendly circuits or to use other methods to utterly maximize the benefit from their side of the litigation, while ignoring the fairness overall.

I respect lawyers. I believe in them. I have litigated, many cases. I believe lawyers should maximize the ability to protect their clients. In my comments about some of these lawyers that say they are protecting their client's interests but are really protecting their own pockets, I mean to be critical. Some of the lawyers, in fact, deserve no real criticism because they are simply choose to file the lawsuit in the forum most favorable to their client, and they are not supposed to look at whether that forum is fair to the defendant or not. You have to admire lawyers that are genuinely seeking to protect their client's best interests.

But we must, as a legislative body, monitor these cases. We must, as a legislative body, work to make sure that fairness is occurring in our courts.

Let me cite the Bank of Boston case filed in my State of Alabama. I was attorney general of Alabama during part of this time and I heard about some of these complaints. It is a good example of the class action system and how it is broken.

In this case a class action was filed by a Chicago attorney in the circuit court, the county court of Mobile, AL. A Chicago attorney looked all over the country, and decided to file the lawsuit in Mobile. The case alleged that the Bank of Boston, MA, did not promptly post interest to the escrow accounts of its members. The settlement that was agreed to limited the maximum recovery for each individual class member to $9 each. However the class action attorneys received over $8 million in legal fees, an amount approved by the State court. It is shocking that the legal fees the class action attorneys received, were debited from the plaintiff class' bank accounts, averaging 5.3 percent of the balance in each account. Many of the bank members did not even know they were members of the plaintiff class, did not even know that attorneys were representing them, and most of all, had no idea that money would come out of their accounts to pay those attorneys. Imagine not even knowing you were involved in a class action until you realize that money has been taken out of your bank account to pay their legal fees.

What is even worse is that for a number of the accounts, the debit to the account exceeded the credit they obtained from the settlement, meaning that after the settlement, more money came out of their account than went back in.

Dexter Kamowitz of Maine--a plaintiff in Maine that is being bound by a county judge in Alabama--was one of those plaintiffs. He did not initiate the class action against the Bank of Boston. However, he received a credit of $2.19 to his account after the settlement. At the same time, the class action attorney debited Mr. Kamowitz's account for $91.33 in legal fees, producing a net loss of $89.14. Such results, as might be expected, produced outrage from class members in other States.

Judge Frank Easterbrook, reviewing the case as a Federal judge on the Seventh Circuit Court of Appeals asked: What right does Alabama have to instruct financial institutions [headquartered] in Florida to debit the accounts of citizens in Maine and other States?

I do believe that we need to be careful about expanding Federal jurisdiction. We don't want to do this willy-nilly. But we also need to be careful to ensure that State courts cannot unfairly include class members from all over the country and bind them by the verdict they render.

Federal jurisdiction is currently allowed in cases where there is a de minimis interstate commerce nexus. We

know that from civil rights cases and plaintiffs cases and civil cases. If there is a Federal nexus, you can file it in certain cases in Federal court. I believe it is certainly appropriate, when we are dealing with a national corporation, dealing with clients in every State in America.

The bill offered by Senators Grassley and Kohl would help eliminate some of these class action abuses. We have talked about class action problems for a very long time. I believe it is time to stop talking and get moving and pass a bill that will help class action plaintiffs be treated fairly in this entire process. I hope we can have a healthy debate and move this legislation that reforms class action forward.

I am also pleased to see, as I conclude these remarks, the distinguished chairman of the Senate Judiciary Committee, Senator Orrin Hatch. He has wrestled with the class actions issues from the beginning. As a skilled lawyer himself, he understands the issues ably. He is able to discuss them in a very intelligent way. He understands the history of this entire proceeding. It is a pleasure for me to serve with him on the Judiciary Committee. I know at this time he would like to share some remarks.

I yield the floor.

If the Senator will yield, based on his experience, it is indeed an unusual thing that we have a filibuster of a motion to proceed to a bill that has this kind of bipartisan support. Is it not?

I think it is particularly telling, I say to the Senator, because this is not like the circumstances we had when the Democrats were in the majority and Senator Daschle called up the entire Agriculture bill, or the entire Energy bill, which were huge bills, under rule XIV, that had not been addressed in the committee. This bill had hearings in committee and we voted for it 12 to 7. There was only one basic change to the bill.

I just recall when Senator Daschle was the majority leader, he brought up huge legislation outside of the committee that could not have been passed in the committee. We were forced to debate that legislation on the floor under rule XIV. To say there is some procedural problem here, when Senator Hatch has managed the bill through the committee process, when we have debated the bill, and when we have voted on the bill in committee, it came out 12 to 7, is baffling. As far as rule XIV is concerned, everybody was given notice of what would happen, this is just pure obstructionism. This is just an excuse to delay, delay, obstruct, obstruct.

We are coming to the end of this legislative session. We have a lot of things to do. One of the things we absolutely ought to do is to move this bipartisan bill to fix class action litigation in America. It is the right thing to do. It has the overwhelming majority support of the Members of this body. Yes, it has the opposition of a small but powerful little group of trial lawyers who put a lot of money in the political campaigns, but it is the right thing to do, and we ought to move forward with it.

I think there is every reason for those who believe in improving the legal system to be upset at the obstructionism that we are facing by a majority leader who has approved this. I think if we had some leadership on the other side by Senator Daschle, we could move this bill. To lay back is to allow the trial lawyers to control this matter.

There are a lot of reasons why we ought not have a single state judge in Madison County, as the Senator said, trying cases that have impact all over America. That is not good. A Federal court, with a Federal judge, with a quality group of law clerks, a fine staff, and by far a smaller caseload than most State judges have--I would say on the average, in my experience, that the State judges would carry maybe 10 times as many cases on their docket as a Federal judge has on the Federal court docket. The Federal judges give more attention to the cases and they have more ability to focus on a case. There is the ability to issue subpoenas nationwide and make things happen in ways that are more difficult in State court. So a major class action involving millions of dollars and thousands of plaintiffs from different states ought to be tried in Federal court when there is a majority of the people involved who are out of State.

This reform fixes some of the problems associated with class actions. It sets up legislation that gives special scrutiny for those abused coupon-related settlements, where the victims get coupons and lawyers get big fees.

It guarantees that notifications to class Members to be in plain English. It scrutinizes against a negative awards, where plaintiffs who may not have even known they were plaintiffs end up having to pay attorney's fees in a case they never authorized to go forward. It provides protection against unwarranted higher awards for certain class members, just because they are in a certain area of the country. And there are prohibitions on the payment of bounties.

It makes it more difficult, when you are facing a fair judge who you believe will rule on the law and give you a fair shake, not in a county that has a reputation of just hammering defendants in favor of the attorneys who file the cases. That allows defendants to litigate with integrity, and not feel they must just pay up, almost in the form of blackmail, to get the matter away so they can go on about their business. This is not a fair way to do business.

This bill has a lot of good things in it that will make this area of the law, class actions, better, more fair, and more objective.

I thank the chair and I yield the floor.

Mr. President, I suggest the absence of a quorum.

Mr. President, I ask unanimous consent the order for the quorum call be rescinded.

Mr. President, I thank the ranking Democrat in the Senate Judiciary Committee, Senator Leahy, as well as Senator Reid of Nevada, for coming to the floor today to discuss the agenda of Congress. It is worthy of reflection.

Some of us went home last week after the vote dispirited because this administration was afraid to offer the Iraq reconstruction package as an up-or-down vote. They believed--and I think they were right--they couldn't pass it. So many Members of Congress had so many questions and reservations, the only way it could pass was to combine it with the money for our troops. Many of us, looking at this terrible Faustian bargain, had to vote for the bill to support the troops, believing that, frankly, if it were my child, someone near or dear to my family, as it is for so many people in Illinois, I wouldn't want to shortchange the troops one penny. So we ended up passing about $15 or $16 billion in reconstruction for Iraq.

Trust me, stories are already pouring in about some of the questionable contracting that is going on over there. There is real doubt among some as to whether this money will achieve the goal we are seeking. We want peace in Iraq. We want stability. We want our troops to come home. But we want to do it in the right way.

So far, this administration, since the declaration of the military victory, has seen a long string of embarrassments and defeats and setbacks. There have been pretty pictures painted by some on the other side who have gone there, but they can't overcome the reality of every morning's newscast which tells about another soldier being killed or another 10 soldiers being maimed.

I have visited with some of those soldiers who have returned from Iraq. Their lives will never be the same. To say they got by because they were simply wounded is to overlook the obvious. Many of them will carry scars for the rest of their lives because of a policy of this administration which, frankly, has not stood the test of time.

The reason I think it is important to reflect on that is to consider where we are today. Now that we have moved from the issue of Iraq, we are back on an issue which is near and dear to the Republican leadership in Congress as well as to the White House. Take a look at the agenda of this Congress and particularly what we are discussing today. It is an agenda which attempts to slow down the legitimate responsibilities of government directly through Executive orders and indirectly with historic deficits.

Yes, this fiscal conservative, compassionate Republican President has stood by and watched as we have reached record depths in terms of debt in America. Although he can point to a recession which he blames on the previous President, which is fair game in Washington, he can point to a war on terrorism, the fact is, most of this deficit is his own creation.

President Bush's tax policy, his economic plan has been a failure for America's economy. But it has been a dramatic success for those who were praying for a bigger deficit. I don't know who that might be, but if you were looking for a President to deliver the biggest deficit in the history of the United States, this President has done it. That deficit, of course, shortchanges us when we need to really pursue the valuable and vital functions of government.

There are some things which only government can do. I know my friends from the conservative side of the political spectrum hate to concede this point, but there are certain things only government can do. Certainly military defense is one. Defense against terrorism is another. But there are others, and they will come to our attention as we consider the debate before us on a bill related to class action lawsuits.

The agenda of the Republicans in Congress and the President is one that is guided by the naive belief that the balance of power within our Government is outdated. It is an agenda which would close the courthouse doors to ordinary Americans in the name of penalizing trial lawyers but continue to protect the most politically powerful. This is nothing new in government. The people who have the power to line the Halls of Congress with their lobbyists in their three-piece suits and fancy shoes are well represented. They are the voices you hear when you come to vote for a bill.

The voices that are not heard are those of consumers and families and working people who are disadvantaged time and again by these special interests. The Class Action Fairness Act is a special interest piece of legislation designed exclusively to protect those who are wealthy and powerful from even being held accountable in court.

When you look at the options available to us, if you have a President who really doesn't care to work for consumers and working families, and a Government which is unresponsive because of that President or the lack of funds, and a Congress unwilling to address these same issues, there is only one place for an American to turn. That is the court system. So what this Congress tries to do time and time again is to close the doors of the courthouse so that that family, that consumer, that small business, that individual doesn't have a chance to go into the courthouse and ask for justice. They are doing that with this class action bill.

Whether the agenda is driven by the White House, the leadership of the House of Representatives, the committees on the floor of the Senate, the not

so invisible hand of the right-wing agenda is busily at work. We see it in the nominees sent up for lifetime appointments to the Federal judiciary, men and women who are not even close to the center stripe of political thinking, in the hopes that if you cannot close the courthouse door, make sure there is a judge on the bench who will rule consistently on behalf of the wealthy and powerful in America.

Some will say what I am saying sounds a lot like class warfare. I can recall what Warren Buffet, one of the wealthiest men in America, told us a few weeks ago. He came to a luncheon on Capitol Hill and spoke to a group of Senators and talked about President Bush's tax cuts for the wealthy. This wealthy man from Omaha, NE, said, ``Some people say this is class warfare.'' He said, ``I want to tell you something. It is true, and my class is winning the war.''

That is a fact. They have won the war with the President's tax cuts. They will continue to win the war when it comes to closing the courthouse doors. The agenda is being driven by President Bush and his gang of compassionate conservatives. It is not just this issue of litigation and tort reform. It stretches in so many directions. This is an administration that wants to drill for oil in the Arctic National Wildlife Refuge rather than to demand that automobile manufacturers in Detroit make more fuel-efficient cars, which they can do. The technology is available. But this administration would much rather invade a pristine wildlife refuge set aside by President Eisenhower 50 years ago than pick up the phone and say to the Big Three in Detroit that you have to do better. We need more fuel-efficient cars and we are going to support legislation to make it happen.

That shows you where they are coming from. They would much rather drill in a wildlife refuge than to ask for more fuel efficiency from the automobile manufacturers. This is an administration that cuts education funding for schoolchildren to pay for tax benefits for the wealthiest people in America. It is an administration that would restrict background checks on gun purchasers while protecting gun manufacturers from liabilities. Rather than to make certain that we keep guns out of the hands of people with criminal records or a history of mental illness, they say instead, in the name of a second amendment, we cannot ask those questions and, if we do, we cannot keep the records long enough for law enforcement to use them. It is a constitutional right as far as they are concerned under the second amendment.

Yet when it comes to gun manufacturers making defective products and dangerous products and selling them, this administration falls over backward in an effort to protect them from any liability in court, this administration which would cap the compensation of injured victims of medical negligence, medical malpractice, and never question the insurance companies that continually make mistakes and charge the most outrageous premiums. Now we are forced to debate a bill that divides instead of unifies us.

It is especially troubling at a time when so many appropriations bills have not even been considered in the Senate and we are going to work on this bill for special interest groups. The majority leader brought this bill before us instead of an appropriations bill. Here we are after October 1, at a time when we should have passed all of our appropriations bills, but instead of addressing the immediate needs of Government, we are going to address the immediate needs of the special interest groups.

I find it interesting that the bill before us is not the bill that passed the Judiciary Committee, which I served on a little earlier this year. There is a provision back in the bill called a mass tort provision. I will not go into all the details of it other than to tell you the special interests have won again. There was a bipartisan motion in the Judiciary Committee--I am not sure there was debate--to delete a section of the bill for so-called mass tort actions. It was a motion by Senator Specter, a Republican, and Senator Feinstein, a Democrat. It was removed without controversy.

Guess what happened. That bill was thrown away. The bill before us today reinstates this prohibition against mass tort actions. That is fundamentally unfair, and we knew that. The special interest groups prevailed again.

How fair is the Class Action Fairness Act before us? It is not about fairness or justice. It is about protecting the powerful against legal challenges from the little guy. Who wants this bill? Who wants this class action bill? I will tell you those who line up on the side of this bill. It is the major tobacco companies, including Philip Morris, which is sick and tired of being sued by those who have been damaged by their deadly tobacco products. They have come to the Republican Congress and prevailed on them to make it more difficult for the victims of those tobacco products to come to court. So the tobacco companies want this bill to pass. Gun manufacturers, understanding their exposure to liability by selling defective guns, selling them in quantities where they knew or should have known they would fall in the hands of criminals, don't want to be sued in court anymore. Even though the death rate in America--on the streets of Chicago, New York, and Washington--continues to climb from gun murders, this bill says the victims are going to have a tougher time suing the gun manufacturers.

Those who pollute want this bill. Those involved in environmental pollution are less likely to be sued because of this bill.

Others include the pharmaceutical companies, every insurance company in America that I know of, the National Association of Manufacturers, and Financial Services Roundtable. The list of special interest groups is very lengthy.

There is another group on the other side who oppose this bill--an interesting coalition. Listen to those who have come out in opposition to the bill. The first name on the list may be the most curious. It is Chief Justice of the U.S. Supreme Court, William Rehnquist. Why? Because this bill shifts a lot of class action lawsuits from State courts to Federal courts. Chief Justice Rehnquist understands that the Federal courts are not in a position to deal with these lawsuits. He said this is a bad bill; it is bad for the administration of justice in America. He is not a bleeding heart when it comes to consumer cases. His precedents and rulings will speak for themselves. But he says this bill is bad, and he is right.

Then the list of organizations--which I will not read--is two pages long. These groups are a clear indication of why it should not be passed. I will say generically that many of the leading medical groups, including the American Cancer Society, the Heart and Lung Society, many leading environmental groups in America, and almost every one of the major consumer groups in America, say this is a bad bill. It will keep ordinary Americans from having their day in court.

I ask unanimous consent that the list be printed in the Record.

National Organizations Opposed to Federal Class Action Legislation

This is a classic battle between the biggest companies in America, that don't want to face legal responsibilities, and the most vulnerable people in America, who have no other recourse but the courts. Consumers, environmentalists, gun control advocates, and civil rights champions often turn to the class action process of our civil justice system because the Government--beholden to the special interest groups and the corporate agenda--simply is unwilling to take on these same big corporations.

Unfortunately, when you pit these two sides together on Capitol Hill, consumers don't have a chance. This bill is a clear indication of that.

The bill is fundamentally unfair and unnecessary. How can you be sure it is only the plaintiffs who are guilty of abusing forum shopping but never the defendant? That is the argument being made. They say we have to restrict the people who can bring lawsuits in court.

The argument on the other side is that there are so many frivolous lawsuits. The honest answer is that there are some frivolous lawsuits, and there always will be in a system open for any individual to file a lawsuit. On the other hand, we know many of these lawsuits--and I will recount several later on--give clear indications and evidence of the fact that many people who are sued in class action lawsuits have a real responsibility to the consumers and the American people that they don't meet.

I am concerned when they tell me the bill will restrict their ability to fight for rights of consumers and victims of corporate malfeasance, and I hope the sponsors can carry their burden in explaining to the American people why they believe this bill will not tilt the advantage to the corporate defendants.

To the extent there are abuses in the class action process, it should be addressed with a scalpel, not a sledgehammer, which this bill does. If the problem is concentrated only in a handful of State courts, the solution isn't to remove every case to Federal court. That is what this bill does.

The American Tort Reform Association, which represents all of the special interest groups that would close the courthouse doors, obviously championed this bill. They released a study recently which I find amazing and, in a way, offensive.

In their report, entitled, ``Bringing Justice to Judicial Hellholes 2002,'' this organization identified 13 counties or cities that they define as ``judicial hellholes,'' because they supposedly attract lawsuits from around the Nation to plaintiff-friendly courts.

What does that mean? If you are a lawyer in some part of the country and want to file a class action suit, this association argues that you can shop around to find the friendliest judges who will certify your class. That is the first step in a class action suit. The court has to basically certify under State law whether you can gather together the individuals you call your ``plaintiffs' class'' to sue a defendant. They argue that in some parts of America it is more likely to be certified than not. They characterize those as judicial hellholes. One of them is near and dear to me because it is in my home State, in Madison County, IL. I was born in St. Clair County, the adjoining county. I am familiar with Madison County and most of the people who practice law there and the judges on the bench.

Well, with all of their valiant and well-funded national research, the American Tort Reform Association came up with about a dozen ``hellhole'' counties, and a few more they call ``honorable mentions.''

That is about a total of 20 counties they have identified out of over 3,000 counties in the United States and more than 18,000 cities, villages, and towns--20 problem counties out of 21,000 cities and counties. That is fewer than .0001 percent of all the counties and cities in the country.

Clearly, if that is where the problem lies, with 20 places, why would we pass Federal legislation to affect every county and every city in America? Yet the solution the sponsors seek is exactly that.

Let me speak for a moment about the real story of Madison County because it has been recounted over and over by the advocates of tort reform as an outrageous, out-of-control situation.

It is said there have been hundreds of consumer class action cases filed in the last few years and rarely are any not certified for trial. That is what the American Tort Reform Association says. Yet while the number of filings increased, the number of consumer class action certifications in that county has actually declined over the last 2 years.

State judges, including those in Madison County, are disposing of frivolous consumer class action cases by refusing to certify them for trial. Moving them to Federal court simply transfers the responsibility for making that determination.

Let me give some numbers so we can get a feel for one of these judicial ``hellholes'' from the groups that advocate this legislation.

Madison County, IL: Consumer class actions filed--1999, 12; 2000, 39; 2001, 60; 2002, 76; 2003, 44 as of July 2.

Let's go back for each of those years and find out how many were actually certified to go forward and be tried. In 1999, 12 were filed, 6 were certified; in 2000, 39 filed, 14 certified; in 2001, 60 filed, 2 certified; in 2002, 76 filed, 1 certified; in 2003 so far, 44 filed, none certified.

Does this sound like a situation out of control? The sum total of all the class action lawsuits for these 5 years so far is 23 over 5 years-- 23 class action lawsuits in Madison County, IL, the so-called judicial ``hellhole.'' Frankly, the arguments made on the floor just are not borne by the facts.

Additionally, of 166 verdicts that were reached in all cases filed in Madison County, 55 resulted in no monetary verdicts to plaintiffs. Only 11 verdicts in the 166 cases tried resulted in verdicts in excess of $1 million. The median verdict for all cases in Madison County, IL, is $28,649.

If there are problems in any jurisdiction or any State, they can be solved there. In Alabama, for example, one of the favorite targets for criticism by tort reformers, the State supreme court reprimanded a few State judges who had certified numerous classes.

In Mississippi, another jurisdiction frequently mentioned by supporters of class action reform, the State legislature recently repealed Mississippi's venue and joinder statutes, making it more difficult to bring mass tort claims.

Removing these cases to Federal court does not solve the problem. In fact, it is going to heap more of a burden and demand for more specialization and responsibility on our Federal courts, many of which are already overburdened.

I see my colleagues are on the floor. I am going to take a few minutes to point out the kinds of lawsuits about which we are talking.

When the average person hears ``class action lawsuit,'' they may not have an idea of what it is about. I would like to give a few examples of class action lawsuits and understand, I hope, for a moment that those who are coming to the floor trying to restrict the rights of plaintiffs to come into a class and file

a lawsuit have to face the reality of the history of class action legislation. We will find in these cases some recurring themes, but the most recurring theme is this:

The plaintiffs in a class action lawsuit were usually damaged a very slight amount or in a very limited way individually or as families, but when you take together the sum total of all the damage done by the defendant, it becomes substantial. If someone--Senator Leahy used this example in committee--if someone overcharges a person 2 cents a gallon for gasoline so that each time they fill up they lose 40 cents, there is not a great loss to an individual. But when you put that together in terms of the millions of people buying gasoline, one can understand that if the defendant corporation has been guilty of fraud or wrong dealing, they have made millions of dollars at the expense of 40 cents a fill-up of individual consumers. So class action lawsuits bring all these consumers in one group against a corporation that may have harmed them only a slight amount individually.

Let me give some examples. Foodmaker, Inc., the parent company of Jack-in-the-Box restaurants, agreed to pay $14 million in a class action settlement in the State of Washington. The class included 500 people, mostly children, who became sick in early 1993 after eating undercooked hamburgers tainted with E. coli. The victims suffered from a wide range of illnesses, from more benign sicknesses to those that required kidney dialysis. Three children died. The settlement was approved in 1996. So 500 individual families, instead of suing Jack-in- the-Box and its parent company Foodmaker, came together as a class because that corporation was selling products so tainted and adulterated that it led to death and serious illness--500 people, $14 million, but deaths were involved in the process.

Let me give another example. General Chemical of Richmond, CA. On July 26, 1993, the chemical oleum, a sulfuric acid compound, leaked from a railroad tank car. The leak caused a cloud to spread directly over North Richmond, CA, a heavily populated community. Over 24,000 people sought medical treatment because of that leak. General Chemical entered into a $180 million settlement with 60,000 northern California residents who were injured and sought treatment for the effects of that pollution. Individual plaintiffs received up to $3,500.

What is the likelihood that if you personally or a member of your family ended up going to a hospital or a doctor and had $500 or $600 or $1,000 in medical bills that you would turn around and hire a lawyer and sue General Chemical responsible for that illness in your family? I don't think the likelihood is very strong. But when they brought together the 60,000 people who were damaged because of this environmental leak of a sulfuric acid compound, the company agreed to pay $180 million to some 60,000 people.

Let me give another example. Beech-Nut Corporation, and its parent company Nestle, were accused of deceptive business practices, guilty of selling--listen to this--Beech-Nut and Nestle were found guilty of selling sugar water labeled as pure apple juice for infants. After passing blame back and forth between companies and suppliers, they eventually agreed to settlements of $3.5 million to reimburse consumers who unknowingly fed their babies sugar water instead of apple juice. Is that the kind of thing that merits a lawsuit? In an individual situation you may ask, How sick is the baby?

The bottom line is, these companies were trying to make money by deceiving parents into believing they were selling a nutritious product and ended up paying $3.5 million because of it.

Class action lawsuits by consumers who as individuals would never have a day in court, but coming together finally found justice in their State courts, a justice which is threatened by the so-called class action fairness bill which is before us today.

There was a class action lawsuit brought against Ford Motor Company for defective ignition systems in millions of cars that stalled on highways, and Mobile Corporation paid a $14 million settlement because of a class of residents in New Orleans who, after a fire at a Mobile Oil refinery and scattered debris sent volatile and hazardous compounds in the air, were forced to evacuate. The settlement was $13.4 million to those exposed to this pollution from the Mobil Oil refinery.

It was a class action lawsuit against a corporate giant. How many of those individual families would stand together seeking justice? In this case, they did stand together successfully. Individually would they have gone to court? Highly unlikely.

Blue Cross and Blue Shield of Iowa paid a $14.6 million settlement in three class action lawsuits because of fraudulent billing practices. Blue Cross apparently negotiated secret discounts with hospital and providers and failed to pass those along to those who should have received them--their customers. The list goes on and on.

I see several of my colleagues on the floor. I will close and say I am sure we are going to return to this issue in a short time. I ask my colleagues in the Senate who may not have practiced law, who may not be familiar with class action lawsuits to please do the following: Read these cases. Understand class action lawsuits are not always frivolous ideas.

I can recall some that were. There was a lawsuit brought by a class, not certified, for all the people who bought Milli Vanilli records, and then came later to learn that those two people were not even singing on the records. To me, that is a joke, a bad one. It is a fraud on the public but certainly not deserving of a class action suit.

How can one compare that to companies that sell tainted and adulterated food, to companies that deceive parents about the nutritious value of the foods they sell, or companies that are engaged in pollution that endangers the lives of individuals? Those companies need to be held accountable.

This bill tries to absolve them from liability, to move the cases to Federal court, to make it more difficult to push the classes together, and make it more difficult to recover. These are real live stories of ordinary families and people who will ultimately lose if this bill passes.

I hope the Senate has the good sense to stop this in its tracks, stand up for consumers and working families who need a voice in this Chamber even if they cannot afford a lobbyist in the hallway.

I yield the floor.

Mr. President, I am sorry to keep the body a little bit later, but I do think we need to make some points that really need to be made. We should be debating the Class Action Fairness Act of 2003 rather than squandering away the Senate's time debating a motion to proceed to the bill. That has become typical around here. Anything that can delay, anything that can make it miserable, anything that can make it difficult to pass legislation or even consider legislation, we are finding the other side is doing to us.

Yesterday, my colleague from Vermont, the ranking member of the Judiciary Committee, observed accurately that the days remaining in this session are numbered and that floor time is indeed precious. But what puzzles me is if there is such a premium for time, then why in the world are we faced with a Democrat filibuster on the motion to proceed to a bill? Usually, if you are going to filibuster, you filibuster the bill. So we all know what is going on here.

From what I know, based on the remarks yesterday from the ranking member and others, I understand that there is an objection to proceeding to S. 1751 because it has been characterized by some as ``special interest legislation.'' What ``special interest'' are we talking about? Are we talking about the ``special interest'' of millions of consumers throughout the country who are affected every day by class action abuses, or are we talking about the ``special interest'' of the everyday American worker who stands to lose because his or her employer can't increase wages or offer better health benefits because of the commercial uncertainties created by uncontrolled class action litigation, or are we talking about the ``special interest'' of the general American public that is losing faith in the American civil justice system because of the outrageous class action coupon settlements that only benefit the attorneys?

On this whole special interest point, I would like to direct your attention to a recent poll showing that the overwhelming majority of Americans believe that class action lawsuits benefit lawyers at the expense of their clients.

Look at this chart. ``Opinions on class action lawsuits; who benefits most from class action lawsuits.'' Lawyers for the plaintiffs, the public says--47 percent believe the lawyers benefit the most. They are right, especially in these frivolous suits we have been referring to. Buyers of products, 5 percent; companies being sued, 7 percent; 9 percent of the American people think the plaintiffs benefit the most from class action lawsuits--the ones they are bringing the suits for. Only 9 percent of the American public think the injured parties, the so-called victims, are the ones who benefit; 12 percent don't know; 20 percent say the lawyers for companies. So of the total opinion of the American people in a poll conducted, with an error margin of plus or minus 3.5 percentage points, a total 67 percent of the American people believe the lawyers are the ones who benefit from these class action suits; 67 percent believe class action lawsuits are a virtual bonanza for lawyers. The public is not too dumb; they are right.

In stark contrast, the poll shows only 9 percent of Americans believe the class action lawsuits benefit the victims or the plaintiffs themselves. When the public perception of class action lawsuits in our civil justice system is so negatively skewed, I find it difficult to say with a straight face this bill somehow advances ``a special interest.''

Perhaps the ``special interest'' we are really talking about is that belonging to one Hilda Bankston. Who is Hilda Bankston? This is Hilda in the photo. A beautiful woman, a decent person. I can tell you with certainty she is not a tobacco company. She is not a gun manufacturer or somebody who pollutes the environment. Hilda Bankston and her husband Mitch owned Bankston Drugstore in Fayette, MS, a small local pharmacy where Mitch worked as a pharmacist. The Bankstons were dragged into hundreds of lawsuits filed by class action attorneys in the State of Mississippi by virtue of owning the only drugstore in Jefferson County. Their small business became a prime target for forum-shopping class action attorneys in pharmaceutical cases.

The Bankstons' nightmare began in 1999 when Bankston Drugstore was named a defendant in the fen-phen diet drug class action lawsuit simply for filling a prescription written by a doctor--something they were supposed to do. Since then, plaintiffs lawyers have filed hundreds of pharmaceutical lawsuits against Bankston Drugstore. Every time a big drug maker was sued, even if the company was located in New York, or California, the plaintiffs' lawyers added Hilda Bankston and her husband as defendants--this hard-working owner of a single drugstore-- just because she sold that drug from her neighborhood drugstore, which was her obligation to do.

Even though Mrs. Bankston no longer owns the drugstore, she continues to be named a defendant in these lawsuits today and is buried under a mountain of discovery requests because of the litigation. On a more personal level, Mrs. Bankston describes to us the toll this ordeal has taken on her both personally and professionally. She testified that, ``no small business should have to endure the nightmares I have experienced. . . . I have spent many sleepless nights wondering if my business would survive the tidal wave of lawsuits cresting over it.''

Mrs. Bankston also suffered the loss of her husband when, within three weeks of being named as a defendant in the fen-phen case, her husband died of a heart attack. It is stories like Mrs. Bankston's--an every-day citizen just trying to fulfill the American dream--that makes this bill so compelling. I think to characterize this bill as appeasing ``special interests'' is not only disingenuous but it ignores the extensive mountain of evidence showing otherwise. It is pure, unmitigated bunk and they know it.

I also understand the ranking member expressed surprise and concern over the lone difference between S. 274 as reported out of the committee and the rule XIV version of the bill, S. 1751, that we are now trying to move forward. To set the record straight, we are simply invoking Senate rule XIV, which is procedurally proper, to simply accommodate the revised mass actions provision the committee had removed from the bill during markup on the condition that it would be modified and replaced in the bill before floor consideration. That is what we agreed to do. That is all we did. The rule XIV version of the bill, which is numbered S. 1751, is the identical bill we voted favorably out of committee, except for the return of the revised mass actions provision the members on the Judiciary Committee knew or should have known would be restored into the bill before floor consideration.

Just on Friday, the majority leader asked unanimous consent to bring up S. 274, substituting with the text of what is now S. 1751. There was an objection from the other side of the aisle which forced the majority leader to bring up S. 1751 under rule XIV. To now hear we are somehow not acting in

good faith is, at best, a misunderstanding and at worst a deliberate attempt to mislead. You make the decision, you make the judgment on that. I know what I think.

By way of background, I want to explain what happened with this provision. When the original bill, S. 274, was marked up during committee last April, the committee members agreed to an amendment offered by Senators Feinstein and Specter striking two provisions from the bill only with the understanding that the language would be modified and replaced before floor consideration. The first provision defined private State attorneys general actions as class actions within the meaning of the bill. These are statutory actions a private citizen can bring on behalf of the general public. My colleague from California, Senator Feinstein, expressed specific concern over this provision because she believed it would interfere with an existing California statute permitting such representative actions. This provision has remained out of the bill.

It is the second provision that necessitated the rule XIV alternative. This second provision is what we commonly refer to now as the mass actions provision. A mass action is a civil action seeking to try the claims en masse of all plaintiffs and defendants in a single trial, but pursued without the procedural due process prerequisites for litigating such a matter as a class action. Mass actions are used heavily in certain States such as West Virginia and have been used to unfairly consolidate for trial diverse claims of as many as 8,000 plaintiffs from over 35 States against over 250 defendants. These actions are especially problematic because they proceed without satisfying any of the standard class action prerequisites, such as commonality and typicality of claims.

Although the original bill contained a provision that defined mass actions to qualify as class actions, my colleague Senator Specter raised a specific concern over the scope of the provision and moved it be stricken. Because the committee didn't have a meaningful opportunity to evaluate the Senator's concerns before markup, I, as chairman, agreed to strike this provision, but only with the understanding that we would modify the provision and replace it before the bill reached the floor, which is exactly what we did.

After the extensive post-markup negotiations and other discussions among my staff and the staff of Senators Specter, Feinstein, Kohl, and Grassley, we were able to reach consensus on a revised mass actions provision in early September.

Let me stress there are no surprises here on what we were going to do with the mass actions provision. Everybody who appeared that day in the Judiciary Committee markup was aware the bill sponsors would work with the sponsors of the amendment, Senators Specter and Feinstein, to develop compromise language. Indeed, we called specific attention to this understanding in our committee report on S. 274, which has been widely and publicly available since last July.

As for using rule XIV, which is an effective rule in the Senate, a rule that can be legitimately used, and has been used in this case, we gave advance notice to our Democratic counterparts, Senators Feinstein and Kohl, over a month ago that there was a possibility we would have to use this procedural device to ensure the operative text reflected the understanding when the bill was reported out of committee.

I also understand from my staff that these offices then informed, among others, the ranking member on our committee about the potential use of the rule when we introduced S. 1751 last week. Simply put, we were open and above board. We didn't have to be, but we were. We didn't have to be because the rule is the rule. We are entitled to use it. The Democrats have used it time after time, as have Republicans. There are no surprises here. I was the most shocked to find claims that something somehow or another was askew and not properly handled. Again, that is pure bunk, and everybody knows it. But I suppose when we have television in the Senate, we are going to see that type of argument made from time to time, even though it doesn't hold water and can't stand the light of day.

We provided advance notice and opportunity to review the text to our Democratic sponsors and the sponsors of the amendment so they could all verify that no other changes were made. That is good faith, in my view. We gave advance notice of our intended use of this device for a provision we made clear to everyone we intended to modify. So I am particularly baffled as to why the ranking member of our committee is calling this a mystery. This is no mystery. We did exactly what we said we would do when we marked up this bill in committee, and the bill was voted out with a partisan vote of 12 to 7, but, of course, the distinguished Senator from Vermont didn't vote for the bill in committee. That may be what is behind these types of comments. He never has been for this bill.

I suspect all is fair in love and war. This being war, they can say whatever they want on the floor of the Senate, even though it is totally wrong.

I believe rule XIV is the most appropriate way of handling the unique set of circumstances leading to the revision of the class action provisions, especially in light of the limited number of days remaining in this session. Given the number of pressing appropriations issues facing the Senate in the coming months, I think it makes little sense to waste valuable floor time debating as a separate amendment a provision that the key Republican and Democratic members have already worked out in good faith. It is even more absurd to be forced to debate a motion to proceed to this bill.

There is only one reason for that. That is to delay, delay, delay, and hopefully bollix up everything at the end of this session so nothing good gets done. I ask my colleagues to support the motion to proceed to S. 1751, the rule XIV version, the Class Action Fairness Act of 2003.

A Senator got on the floor and made a number of what I thought were outrageous comments as well pertaining to this being a special interest piece of legislation. This is a people's bill. The biggest losers under the current system are the people. Lawyers sue companies and negotiate settlements in which they get all the money. So consumers get ripped off twice: Their lawyers rip them off by taking the settlement money that is supposed to go to them, and then they have to pay for the payoff to the lawyers at higher prices.

How about tax cuts for the wealthy? That was an argument made yesterday. The class action bill would not protect the wealthy. It is the opponents of the bill who are trying to protect the wealthy--the wealthy trial lawyers in this case. Although not all class action lawyers are to be criticized, some actually are good lawyers who actually do what is right within the law in fair class actions that really are brought to help people. We are talking about the ones who need to be reformed. Some of these wealthy lawyers who need reform amass their riches by ripping off consumers in bad settlements. We have shown that throughout this debate.

Senators raised the issue of defective products, protecting gun manufacturers. The only successful class action against gun manufacturers, the only case in which any relief was awarded was in Federal court. That is what we are trying to do here, and they act as if the Federal courts are not capable of handling these cases? This doesn't stop legitimate class actions. It just says there is no longer going to be these phony forum-shopped cases in corrupt jurisdictions where there are corrupt judges and where jurors don't realize they are saddling all of America with these outrageous verdicts that pay off the attorneys but do very little for consumers or for the plaintiffs who are supposedly the real victims.

We heard the argument yesterday that Justice Rehnquist is opposed to this bill. Opponents keep saying Chief Justice Rehnquist opposes the bill, but whenever we ask for a citation to that opposition, we get absolutely nothing. They talk about the Judicial Conference letters, but those letters do not express opposition to the bill that was reported out of committee.

How about forum shopping? Defendants cannot forum shop. The plaintiff always gets to choose where to file the lawsuit. If they file in State court, they can often choose precisely the judge who will hear the case. All the defendant can do is remove to Federal

court where the case will be heard by a randomly selected judge, not a stacked, forum-shopped deal with a corrupt judge or maybe not even a corrupt judge, but one who just believes the plaintiffs should win no matter what the facts are. Again, I think that is corruption. It is nonsense to say defendants can forum shop or that forum shopping is the purpose of this bill. That is nonsense. Yet that is what one of our distinguished Senators was saying yesterday.

How about the scalpel argument? Any suggestion that this class action problem is concentrated in a handful of State courts is wrong. It is a problem in many places, and if you fix it in one place, the party moves to some other court in some other town.

How about Madison County, IL, by the way? We had the two Senators from Illinois speak: One just found Madison County to be the most circumspect county in the world. The other basically called the judges and the lawyers, many of whom never practiced law in Madison County, people who were abusing the system. He even implied some of them were corrupt.

The figures in Madison County do indicate a problem. Look at the dramatic increase in the number of class actions, virtually all of which were nationwide class actions over a short period, an increase from 2 in 1998 up to over 75 last year. Why are all these people, all these attorneys from other States flocking to the middle of nowhere to file lawsuits in which none of the claimants and none of the defendants are from the area? Do we really need to ask why? We know why. Because of corruption--corrupt judges, or should we say misconceived judges, to be nice about it, or judges who always find for the plaintiffs or steer everything in favor of the plaintiffs or always find class actions to exist when they really shouldn't. That is corruption.

We hear statistics indicating half of the class actions have been certified, but what the distinguished Senator from Illinois should have said was ``certified so far.''

What I find curious is that the distinguished Senator from Illinois didn't give the number of class actions that were denied. What happens in Madison County is that the case is filed, and when the lawyer decides he wants to put the squeeze on the defendant to settle, he starts moving toward getting a class certified, but sometimes it takes a while.

By the way, just moving to get a class certified in Madison County where it is almost granted at will is enough to scare any corporation because once that happens, that corporation is in real trouble, and so are that corporation's employees who are likely to lose their jobs, their income, their health care, and their pensions if the company gets thrown into bankruptcy.

We have heard allegations that under the class action bill, a defendant can remove a case at any time, even on the eve of trial. The current removal statute, 28 USC section 1446(b), provides that a case must be removed to Federal court ``within 30 days after the defendant's receipt . . . of a copy of the [complaint] in the action.''

This class action bill would not change that rule. The allegation that a class action bill would allow a case to be removed to Federal court at any time is ridiculous. But that is what we are getting used to from those who argue against this issue.

Now why do they do that? Why can they not see these simple, easy to see facts of life? Well, I hate to say it but I think it comes down to the fact these trial lawyers are the biggest hard money funders of many of these people who will vote against this bill. They get whatever they pay for. They can rely on their friends in the Congress to ignore what really should be ethical and good changes in the law and to stand in the way of those changes. That is what is happening here.

That is taking the sugar coat off, but that is what is happening. The fact is that we have people in this body who will vote for the trial lawyers no matter how wrong they may be.

Now, when I say trial lawyers, I am speaking about this select group of trial lawyers who really are giving the legal profession a bad name, who are in it for the money so they can support their own political candidates, live in high style, be influential in their respective communities, most all of which are outside of Madison County, by the way, and who can just about afford to do anything they want to do and are used to doing anything they want to do.

I happen to know a lot of good trial lawyers who are honest and decent, who really fight hard for their plaintiffs, for people who were wronged, for victims, and who are disgusted with these trial lawyers who are taking procedural advantage, monetary advantage, of forum shopping in this country. It is coming to the point where even the American Trial Lawyers Association is starting to get split on these types of issues because they realize that some of these people are giving trial lawyers who are good, honest, decent, hard-working trial lawyers a bad name, because they are getting lumped into the term ``trial lawyers'' all the time with these people who are bad actors, who are in it for the money.

Now, they paint a very big picture about how they are in it for the little consumers, but look at the coupon settlements. Look at the amount of money they are getting in fees. Look at the way the consumers have been ripped off. Look at the cost to society. Look at the companies that are in shambles and can no longer employ people. Look at the unfairness of forum shopping. Look at the unfairness of corruption.

I commend trial lawyers who are honest and decent and who bring decent class actions. They know they can win in Federal court just as much as they can win in State court, but they also know they cannot forum shop as well in Federal courts.

Now, one can still forum shop but not nearly like they can in a number of jurisdictions in this country in certain counties where, as I say, judges are owned lock, stock, and barrel by various political interests.

Well, I have kept us long enough, but this is an important bill and to filibuster even the motion to proceed to the bill, at this late date, leads only to one conclusion and that is unfairness, delay, win at any cost, fear to debate this bill straight up and down, fear to have votes straight up and down. The reason they are afraid is because they know if Senators were permitted to vote their consciences this bill would pass overwhelmingly, if it were not for the untold influence of big class action money.

I yield the floor.

No question that we usually do not have a filibuster on a motion to proceed, because if any of my colleagues are going to filibuster, they should filibuster the bill. By filibustering the motion to proceed, they can delay a vote on that for 3 days. Then they can filibuster the bill and delay that for another 3 days, which eats up 6 days at a crucial time of the year when we are trying to do all of the appropriations bills, a prescription drug benefit and Medicare reform, asbestos reform, judges, a whole raft of other very important issues, including the Energy bill. So by eating up all this time it makes it difficult to pass any of these matters, and it makes one wonder what in the world is behind all of this.

It was a bipartisan supported bill. Democrats and Republicans support this bill. It will pass if Senators are permitted to vote their consciences and are permitted to vote up or down without the phony delays of a filibuster, especially a filibuster on the motion to proceed.

By the way, rule XIV is an effective rule of the Senate. Both sides have

used that in order to expedite consideration of matters and everybody understands that, and everybody can then debate.

Mr. President, I am pleased that Majority Leader Frist has called up the Class Action Fairness Act. I have been working on this bill since the 105th Congress, so I think it is about time the Senate completes action on this bill.

My colleagues will recall that in October of last year Senator Frist brought this bill to the floor, but we were not able to proceed to the bill because of filibuster, and we lost the vote on cloture on the motion to proceed by just a one-vote margin. A supermajority of 60 votes was needed. We had 59 votes which, obviously, means that last fall we had enough votes to pass the legislation but could not get around the filibuster.

When you are up against a filibuster, you have to work out issues because nothing in the Senate gets done that is not done in a fairly broad bipartisan way. Since then, I have worked in good faith with Senator Hatch, chairman of the Judiciary Committee, and our lead Democratic cosponsors, Senator Kohl and Senator Carper, to modify the bill to address a number of concerns raised by their colleagues on the Democratic side, Senators Dodd, Landrieu, and Schumer.

These Senators are now satisfied with the changes we made to this bill. We reintroduced the legislation this year as S. 2062. So the bill before us goes even further in terms of compromising on the issues than were brought before the Senate last October--enough action, I hope, that we can get to finality within a few days.

As many colleagues may already know, this bill has gone through many changes and mostly changes to accommodate the minority in the Senate, a few Democratic Senators. I have worked in good faith with my colleagues on the other side of the aisle to bring people together and to address valid concerns to increase support for this bill, especially to get over the hurdle of the supermajority of 60 to get to stop debate and get to finality.

To tell you the truth, Mr. President, I really didn't think we needed to make any changes in this class action bill that we originally introduced this Congress--in other words, last year. I thought then, and I think now, that the original introduction was a pretty good bill. But, of course, being a pretty good bill in my judgment doesn't mean it has enough votes to get that supermajority and get the compromise that is necessary to get to finality. So in order to move the class action bill forward, I did my best to listen to the issues raised and to make modifications to the bill where there was room for compromise.

Yet S. 2062 still retains the goals I wanted to achieve and other cosponsors

wanted to achieve; that is, to fix some of the more egregious problems that we are seeing in the class action system, and to provide a more legitimate forum for nationwide class action lawsuits.

The deal we have struck is a very carefully crafted compromise that should not need any further modifications. So I am asking my colleagues to withhold offering amendments to avoid disrupting the balance we have achieved. I also hope we will not see a lot of nongermane amendments offered to this bill--meaning nothing to do with this legislation. Under the rules of the Senate, they can be offered but they are very distracting. We ought to keep our focus upon the class action system reform. Instead, we should focus on the germane amendments, get this bill done, and move on. We should not get all caught up in message amendments that will do nothing but play politics and delay all the hard work that we put into this bipartisan compromise bill. So I hope we can pass this bipartisan class action bill without changes and without any further delay.

The reality is that the class action system is broken and we should do something about it. The current class action system is rife with problems which have undermined the rights of both plaintiffs and defendants. Class members are often in the dark as to what their rights are, with the class lawyers, driving the lawsuits and the settlements, with their interests as much in mind as those of members of the class.

Class members receive court and settlement notices in hard-to- understand legalese. The notices are written in small print and in confusing legal jargon so class members often do not understand their rights or, more importantly, the consequences of their actions with respect to the class action lawsuit of which they are a part.

Furthermore, many class action settlements only benefit lawyers, with little or nothing going to the members who have been harmed. We are all familiar with class action settlements where the members get a coupon of little or no value, and the lawyers get all the money available in the settlement agreement. We know that is not protecting the consumers of America.

In addition, the current class action rules are such that the majority of the large nationwide class action lawsuits can only proceed in State court when they are clearly the kinds of cases that should be decided in our Federal courts because they have nationwide implications.

At least these class action lawsuits should have had an opportunity to be heard in Federal court because usually they are the cases that involve the most amount of money, citizens from all across the country, and issues of nationwide concern.

Why should a State court or a county court be deciding these kinds of class action cases that are going to impact people all across our country? Those cases ought to be decided in a Federal jurisdiction. This present system has never made sense to me.

To further compound the problem, the present rules are easily gamed by unscrupulous lawyers who steer class action cases to certain State- preferred courts where judges are quick to certify a class and approve settlements with little regard to class members' interests and the parties' due process rights.

We have heard of class action lawyers manipulating case pleadings to avoid removal of a class action lawsuit to Federal court, claiming that their clients suffered under $75,000 in damages, in order to avoid the Federal jurisdiction amount threshold in existing law.

We have also heard of class action lawyers crafting lawsuits in such a way to defeat the complete diversity requirements by ensuring that at least one named class member is from the same State as one of the defendants, even if every other class member is from a different State.

These are only a couple of the gamesmanship tactics that we hear lawyers like to utilize to bring down an entire class action legal system. The fact is, many of these class action cases are just frivolous lawsuits that are cooked up by lawyers to make a quick buck, with little benefit to class members whom the lawyers are supposed to be representing.

This is a real drag on the economy. Many a good business is being hurt by frivolous litigation costs. Unfortunately, the current class action rules are contributing to the cost of businesses across America and particularly hitting hard small businesses that get caught up in the class action web.

Too many frivolous lawsuits are being filed and too many good companies and consumers are having to pay for lawyer greed. We need to restore some commonsense reform to our legal system, and this legislation does it. It should have been done years ago.

So my colleagues understand, then, why Senator Kohl of Wisconsin and I originally joined forces several Congresses ago--too long ago--to do something about these runaway abuses, and the only thing standing between us and success several years ago was the powerful influence of personal injury lawyers within our political system.

The Class Action Fairness Act will address some of the more egregious problems within our class action system, and it will, at the same time, preserve class action lawsuits as an important tool to bring representation to the unrepresented.

I remind my colleagues of all the time that was spent working on finding a fair solution to the class action problem. For the past four Congresses, Senator Kohl, Senator Hatch, and others have joined me in studying the abuses in the class action system and working to solve these problems. Over the years, both the House and Senate Judiciary Committees have convened numerous hearings on these class action abuses and, more importantly, highlighting the need for reform. The House passed similar versions of class action bills in several Congresses with very strong bipartisan support.

In the Senate, in the 105th Congress, I held a hearing on class action abuse in the Judiciary Committee's Administrative Oversight Subcommittee. In the 106th Congress, my subcommittee held another hearing on class action, and the Judiciary Committee, at that time, marked up and reported out our class action legislation. The Judiciary Committee held a hearing on class action abuse again in the 107th Congress and again in this 108th Congress. The Judiciary Committee marked up the bill which is before the Senate.

Chairman Hatch, Senator Kohl, and I worked closely with Senator Feinstein to make sure that more in-State class actions stayed in State court. That was a compromise to garner a little more bipartisan support at that time.

We also worked closely with Senator Specter, albeit a Republican but a person who had some questions about this legislation, to make sure that his concerns relative to class actions were addressed.

The bill was approved by the Judiciary Committee with solid bipartisan support. Late last year, we worked with Senators Schumer, Dodd, and Landrieu to address concerns they raised and to get them on board. Those Senators joined us in the introduction of the numbered bill before us, S. 2062, in February of this year in a bipartisan show of support for class action reform.

I wanted to elaborate on the history of this bill so my colleagues were aware of the tremendous amount of time, over almost a decade, that Congress has spent studying the problem with our class action system and all the work and compromises that we put into this bipartisan bill to hopefully now get it passed.

I will highlight some of the changes that we made to the bill to increase bipartisan support since Senator Kohl and I introduced the first Class Action Fairness Act several years ago.

The bill, as was originally introduced, did several things. It required that notice of proposed settlements in all class actions, as well as all class notices, be in clear, easily understood English and include all material settlements and the terms of those settlements, including amount and source of attorney's fees. Mr. President, you should not have to be a lawyer to understand what you are suing about and what your cause is and what is going to happen to attorney's fees and other issues in the settlement. Presently, it is pretty complicated to understand that situation.

Because plaintiffs give up their right to sue by joining a class action, they have a right to understand the ramifications of their actions in joining a class.

Then our bill required that State attorneys general, or other responsible State government officials, be notified of any proposed class settlement that would affect the residents of their States.

We included this provision to help protect class members because such notices would provide State officials with an opportunity to object if the settlement terms were unfair to the citizens of their particular State. Somebody at the State level ought to be reviewing that for the populations of their States.

Our bill also requires that courts closely scrutinize class action settlements where the plaintiffs only receive a coupon or some other noncash award while, as I have said before, the lawyers get the bulk of the money.

Our bill required the Judiciary Committee to report back to Congress on the best practices in class action cases and how to best ensure fairness of class action settlements.

Finally, the bill allowed more class action lawsuits to be removed from State court to Federal court. The bill eliminated the complete diversity rule for class action cases but left in State court those class actions with fewer than 100 plaintiffs, class actions that involved less than $5 million, and class actions in which the State government entity, like the attorney general--well, no that is not right--where a State government entity is a primary defendant. Our bill still does many of these things, but we have made a number of modifications to get broader bipartisan support.

In the Judiciary Committee last year, we incorporated the Feinstein amendment, which would leave in State court class action cases brought against a company in its home State where two-thirds or more of the class members are also residents of that State. We also incorporated changes to address issues raised by Senator Specter relative to how mass actions should be treated under the bill.

In our negotiations in late 2003 with Senators Schumer, Dodd, and Landrieu, we made numerous changes. I am only going to mention a few of those important compromises reached. Examples: We made changes to the coupon settlement provisions in the bill, providing that attorneys fees must be based either on the value of the coupons actually redeemed by class members or the hours actually billed in prosecuting the case.

We deleted the bounties provision because of concern that it might harm civil rights plaintiffs.

We deleted provisions in the bill that dealt with specific notice requirements because the Judicial Conference has already approved similar notice requirements to the Federal Rules of Civil Procedure.

To address questions about the merry-go-round issue, we eliminated a provision dealing with the dismissal of cases that failed to meet rule 23 requirements so that existing law continues to apply.

We deleted a provision allowing plaintiff class members to remove class action because of gaming concerns.

We placed reasonable time limitations on appellate review of remand orders in the bill.

We clarified that citizenship of proposed class members is to be determined on the date plaintiffs file the original complaint or when plaintiffs amend that complaint.

We made modifications to the Feinstein compromise that I have already referred to and to the class actions language referred to.

We clarified that nothing in the bill restricts the authority of the Judicial Conference to promulgate rules with respect to class actions.

Finally, we crafted a new local class action exception which would allow class actions to remain in State court if, No. 1, more than two- thirds of the class members are citizens of the forum State; No. 2, there is at least one in-State defendant from whom significant relief is sought by members of the class and whose conduct forms a significant basis of the plaintiffs' claims; No. 3, principal injuries resulting from the alleged conduct or related conduct of each defendant were incurred in the State where the action was originally filed; and lastly, 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 3 years. We did this to ensure that truly local class action cases, such as a plant explosion or some other localized event, would be able to stay in the State court where the harm took place.

So we have made significant concessions to get our Democratic colleagues on board the Class Action Fairness Act. They have been telling us they are ready to support the bill and to get it passed. Both sides have been asking the leader to bring up this bill. Now that we have an agreement to proceed to the bill, hopefully no partisan politics will be played and we will get down to business and finally get this job done. It is time to make real progress on the class action bill and get it passed.

Again, I want to remind my colleagues that we crafted a carefully balanced bill that consists of all of these compromises and more that I have mentioned. I believe we have done a pretty good job of addressing legitimate concerns with the bill, and I am hopeful we will not see lots of amendments to disrupt this compromise.

I urge my colleagues to refrain from offering nonrelevant amendments, amendments that have nothing to do with this bill, because this is a bill that should not be bogged down with everyone's pet project, for which the Senate is so famous. All of our hard work of forging a bipartisan compromise bill should not go down the drain.

The bottom line is class action reform is badly needed. Both plaintiffs and defendants alike are calling for change. The Class Action Fairness Act will help curb many problems that have plagued the class action system.

The bill will increase class member protections and ensure the approval of fair settlements. It will allow nationwide class actions to be heard in the proper forum--the Federal courts--but keep primarily State class actions in State court. It will preserve the process but put a stop to the more egregious abuses. It will also help to put a stop to the frivolous lawsuits that are a drag on our economy and especially harmful to small business.

Now that we have worked out a delicate compromise, we should be able to get this bipartisan bill done without any changes.

A lot of my colleagues listening will say: Well, the gall of the Senator from Iowa to say that we have such a perfect bill before the Senate that we should not have any amendments. Well, over the course of several years, this has been a bipartisan bill in sponsorship. We developed more broad bipartisan consensus last year to get this bill out of committee. We just about had enough consensus to move the bill, one vote short of a supermajority, last October, of 60 votes, to move this bill.

Then there were further compromises made to get over that hurdle. You can quantify in this body, what it takes, as a measure of bipartisanship. It is whether you get that 60-vote supermajority to stop debate and to get to finality. That is where the power of the minority comes into play in this body. They can say they need further compromise to move this bill to finality. We did that between last October and now.

Some people do not want class action reform and they have a right to vote against it. But it seems when the Senate process has worked to bring about the necessary votes, and those necessary votes are gotten by the proper bipartisan compromises being worked out, then we ought to be able to let the Senate work its will. The rights of the minority have been protected.

Have the rights of every last Senator been protected? No. But if we had to wait for that to happen, no bill would pass. But if it did pass, it would pass by a 100-to-0 margin.

We are there. Hopefully this bill will pass the way it has been worked out and be done in a short period of a few days. We do not have a lot of time to spend on it. Of course, that works to the advantage of those who do not want anything because they represent the interests, they would say, of the consumers, and I don't doubt that is what they are concerned about. But they are also, intended or not, representing the interests of the selfish personal injury lawyers who want to play games with picking this county in this State, or that county in that State--some Podunk county where they can win their case.

It would be OK if that case were only pertinent to the people of that State,

but you find this forum shopping with national implications. Something of national implication should not be decided in one Podunk county in one State but should be decided by our Federal courts.

I yield the floor.

Yes. I yielded the floor, but if you want me to hold the floor----

Mr. President, if I could say this before I yield the floor, and I am going to yield the floor right away, first of all, I appreciate the statement by the Senator from Delaware. He may have missed it, but sometime in my remarks tonight I made some commentary about his efforts to help work a compromise and bring up issues that were very important to get settled in order to move to finality.

Also, Mr. President, I want to tell you as well as other Members of this body, this bill is where it is because of the urgency Senator Carper has put on this legislation, to get it passed, because he knows of the need. He also understands the need of bipartisanship.

I hope I have given him proper credit in this way. So many times as we Senators do, we go to breakfasts or lunches to speak to groups that are interested in legislation, and they are always asking us about this bill or that bill. More often than not, particularly when I am talking to small business groups, I am often asked about when are we going to get class action reform. I say, under certain circumstances we will get it. Sometimes people compliment me because I was the prime sponsor of this legislation. But I say at every one of these meetings, they need to thank Senator Carper whenever they see him, because no person in the Senate is trying move this bill along and do it in a bipartisan way, no one more than Senator Carper.

I can say to Senator Carper, I thank him very much for what he has done and I yield the floor.

Yes. I guess I didn't understand that was part of my responsibility. I will do that right away.