National Class Action Act of 2003

Mr. President, I yield myself 5 minutes under the time remaining.

Mr. President, my colleagues, I am for reforming the so-called class action litigation system we have in place. I think a strong majority of the Members of the Senate also favor a reform piece of legislation passing this body and ultimately being signed into law. But this is a two-way street, as everything we have to do in this body has to be. A 51-to-49 Senate means that neither side has the ability to do whatever they want without negotiating with the other half of the Senate. Either side has the potential to stop anything. That is what happens so many times in this body during this period of time we are in now where both sides can say, we are not going to do it this way, or, do it my way or don't do it at all. The clear result of that is nothing gets done. The end result is that both sides can blame the other side for failure in getting anything accomplished.

For those who truly want to get something done and worry less about who gets the credit, it is obvious that the way to do it is to sit down and negotiate and try to reach an agreement. I am absolutely convinced that an agreement that addresses the real problems dealing with class action could be reached in short order and allow us to get as many as 70 to 75 votes for a real class action reform bill. But that has not happened. It has not happened because my colleagues on the Republican side have generally said, we have what we want and we want to pass the bill that we wrote, even though they wrote much of it after it had already left the committee, as the distinguished Democratic leader talked about just a moment ago.

I have introduced a bill--S. 1769--which I think addresses all of the concerns people have raised about any potential abuses dealing with class action litigation. The idea would be for us to sit down with our colleagues and negotiate between their version and the version I have introduced to see if we can reach common ground and pass this in less than an hour with a substantial three-fourths of the Senate probably voting for it.

Many people have said the problem is forum shopping; many plaintiffs try to find the best forum they can possibly find and litigate in that forum for the best judgment they can get. My legislation says, no, we are going to follow principally the same rules the committee set out. If a third or fewer of the plaintiffs are from one single State, it belongs not in State court but in Federal court. That is the same situation that the committee has reported out. We are in agreement. If between one-third of the plaintiffs are from one State and two-thirds are from one State--if between one-third and two-thirds have been injured in Louisiana and filed suit--then Federal court decides whether it belongs in Federal court or State court.

That is principally the same finding that the committee bill has. We are in principle agreement in that regard. The Federal court makes the decision. For those who want it in Federal court, a Federal judge looking at all of the particulars of the litigation will decide whether it belongs in his or her court on the Federal level or whether the State has a greater interest in trying it on the State level. There is no disagreement.

But one area of disagreement I would like to point out is the situation of what happens if over two-thirds of the plaintiffs happen to be from one State, such as Louisiana. It is a big difference in what we do here. If two-thirds or more of the plaintiffs suffer injuries in my State, or any particular State, by the alleged defendant who is doing business in that State, who sells products in that State, and who must follow the law of that State passed by the State legislature, my proposal says that belongs in State court.

In the committee bill as drafted, they say even if every single person has been injured or has allegedly been injured in my State of Louisiana by a defendant allegedly in violation of the laws of Louisiana, passed by the State Legislature of Louisiana, if the defendant who caused the injury--even though they do business in my State and sell their products in my State, even if they have multiple stores in my State and are doing business and taking money out of my State for the things they sell, and if the defendant happens to have citizenship of Delaware, where many corporations are incorporated, or any other State, that doesn't belong in State court anymore; we are going to

put that in Federal court, which is already overburdened. The Federal judiciary says they don't want that jurisdiction.

Justice Rehnquist says he is opposed to it for that reason, among others.

This legislation says: No, we are going to put it in Federal court, even if everybody who is hurt and who is residing in the State, and the injuries were caused in violation of State law passed by the State legislature, because the defendant happens to have citizenship and is incorporated in another State, we will send it to Federal court.

People much more articulate than I have talked about this. One of the distinguished writers who has looked at this, Professor Arthur Miller from Harvard Law School, said the following:

S. 274 goes too far in broadening Federal diversity

jurisdiction. S. 274 would place in Federal courts most class

actions if the defendant is a citizen of a State that is

different from any member of the plaintiff class. I can find

no justification for denying State courts the right to hear

cases primarily involving its own citizens who claim they

have been harmed by a violation of their State's laws.

That is what the committee bill does. That is a principal reason their great expansion of Federal jurisdiction is so wrong.

I had a case in Louisiana. There are many crawfish farmers in Louisiana, probably the only State that has crawfish farmers--and maybe a few in the State of Texas. But they allege injuries because some chemical manufacturer had sold them pesticides and killed all of the crawfish in Louisiana. Every single plaintiff was from Louisiana. The injuries occurred in Louisiana. They sold the product in Louisiana. They were doing business in Louisiana selling the products. The State law of Louisiana said what they did was illegal and wrong and the plaintiffs deserved some compensation for the injuries they received. But no; under the committee bill, just because the defendant chemical manufacturer happens to be out of State the Federal court is going to be brought in to interpret State law that has been interpreted by the State supreme court and passed by the State legislature applying it to every State resident of my State.

That is not a legitimate way of handling cases that are uniquely a State concern, covered by State law and affecting only State injured plaintiffs in these cases. That is not what we want to do.

Our legislation also says that one of the abuses is these coupon sellers. We solved that problem in the past. Attorneys were filing on the number of coupons that may have been issued in settling a case for a defective product. You could go to the store and buy the product for a discount. The lawyers were being paid on the total number of coupons issued--not the ones actually redeemed. The attorney fees would be based only on those who exercised the right of buying the product with the use of their coupon.

As many people said, this is forum shopping, which the distinguished minority leader, Senator Daschle, talked about. They don't want forum shopping for plaintiffs, but they don't mind giving it to the defendant because the defendant, under this legislation, could ask that the case be removed out of State court at any time. Before the jury gets the case, if they think it may not go well, they will file a motion to move it to another court.

That is not right. How many times do they have a bite at the apple? Things aren't going very well anymore; we had better try another court. Let's go to the Federal court because we may lose in State court. If forum shopping is bad for plaintiffs--which we correct--it is no more justifiable for defendants to be able to do it, which is what this committee bill does.

I am only saying we need to say no to bringing this bill up until we have had a chance to talk about these issues in a serious form.

If I offer my amendment and the bill is brought up, they will move to table it, and, bingo, it is all over with, and we all go home. That is not the way to legislate on something as important as this. We need to negotiate. We need to talk about it.

What we are trying to say is, don't bring this bill up now. Vote against the motion to invoke cloture and let us see if we cannot sit down and talk about the differences that are not that great but hugely important--not that many but very important--between the two versions of the bill. I think we can put them together and get 75 votes, call it a day and everyone can be proud of the product we have produced.

I reserve the remaining time.

Mr. President, I yield myself the time I consume.

I echo the remarks of the distinguished Democratic leader which indicate another reason why we should not be voting for cloture on this bill; that is, the changes that were made to the bill after it got out of committee. I refer to it as being the ``committee

bill,'' but the bill before the Senate is not the committee bill. A funny thing happened on the way to the forum: the committee bill was changed. You report one thing out of committee, you expect that will be the thing that comes to the floor--maybe some technical changes, a period here, a paragraph there--but they changed the substance of the bill from the time it left the committee.

If we were dealing with a committee bill, you could make a legitimate argument that you should proceed to the bill that the committee reported. But what they are asking us to do is proceed to a bill that the committee did not report. In fact, it is substantially different from the committee bill. That is not normal procedure.

That is why the Democratic leader has suggested what we ought to do is say: Time out. Put together the heads of the people interested in this and see if we cannot produce a package where we could get three- fourths of all the Senators voting for it. It has substantial changes made by the committee managers. They certainly have a legal right to do it, but from the terms of policy and how we legislate, if you have a clear vote in the committee to do one thing and then come out and do something entirely different on a key part of the bill, that is a substantial change that did not come through the committee process.

What I am saying is we ought to be talking together, both sides talking together, in order to get a substantial vote to enact this legislation.

I support class action reform. I think our bill, S. 1769, has, in fact, clearly addressed the issues of forum shopping and the coupon settlements. We clearly spelled out when cases would be in State court and when cases would be in Federal court. We do not reach out and say that even if every single injured party was from one State and was injured in violation of the State laws passed by the State legislature and previously interpreted by the State supreme court, that just because a defendant happens to be incorporated in the State of Delaware, for instance, that somehow yanks that case out of State court which is best suited for interpreting State law and brought into Federal court which the Federal Judiciary Conference already says they do not want because they have more business than they can handle, resulting in further delays. That is not what this bill should be all about.

Therefore, I suggest we say no to the cloture vote and that we sit down and work out the minor differences but important differences between S. 1769 and the bill in the Senate which has never come through the committee process. That is unfortunate. That is the main reason we should say no to cloture at this time.

Mr. President, I oppose the Class Action Fairness Act, and I will vote against the motion to proceed. The main reason for my opposition is that notwithstanding its title, I do not think this bill is fair. I do not think it is fair to citizens who are injured by corporate wrongdoers and are entitled to prompt and fair resolution of their claims in a court of law. I do not think it is fair to our State courts, which are treated by this bill as if they cannot be trusted to issue fair judgments in cases brought before them. I do not think it is fair to State legislatures, which are entitled to have the laws that they pass to protect their citizens interpreted and applied by their own courts. This bill is not only misnamed, it is bad policy. It should be defeated.

First, let me note that S. 1751 is a different bill than was reported by the Judiciary Committee. It includes a new and potentially very significant provision concerning mass torts. A provision on this topic was in the original bill, but was stricken in committee. Now it is back, but with some complicated exceptions. The ramifications of this provision are not apparent on first reading, and it certainly would have been preferable for this kind of fine tuning to have been considered by the Judiciary Committee.

Make no mistake, by loosening the requirements for Federal diversity jurisdiction over class actions, S. 1751 will result in nearly all class actions being removed to Federal court. This is a radical change in our Federal system of justice. We have 50 States in this country with their own laws and courts. State courts are an integral part of our system of justice. They have worked well for our entire history. It is hard to imagine why this Senate, which includes many ardent defenders of federalism and the prerogatives of State courts and State lawmakers, would support such a wholesale stripping of jurisdiction from the States over class actions. In my opinion, the need for such a radical step has not been demonstrated.

Yes, there are abuses in some class actions suits. Some of the most disturbing have to do with class action settlements that offer only discount coupons to the members of the class and a big payoff to the plaintiffs' lawyers. But those abuses have occurred in Federal as well as State class actions. This bill does nothing to address those problems; it just moves them all to Federal court.

I note that a substitute amendment being crafted by the senior Senator from Louisiana will include a provision to address discount coupons. It is puzzling to me that such a provision is not contained in the underlying bill. Could it be that these coupon settlements, so often held up as the poster child for what is wrong with class actions, are actually something that the defendants' bar that is promoting this bill wants to preserve? We will find out if the Senate does proceed to the bill and an amendment is offered on that issue.

Class actions are an extremely important tool in our justice system. They allow plaintiffs with very small claims to band together to seek redress. Lawsuits are expensive. Without the opportunity to pursue a class action, an individual plaintiff often simply cannot not afford his or her day in court. But through a class action, justice can be done and compensation can be obtained.

There are three possible outcomes of this bill being enacted. Either the State courts will be deluged with individual claims, since class actions can no longer be maintained there, or there will be a huge increase in the workload of the Federal courts, resulting in delays and lengthy litigation over procedural issues rather than the substance of the claims, or many injured people will never get redress for their injuries. I don't believe any of these three choices are acceptable.

Particularly troubling is the increase in the workload of the Federal courts. These courts are already overloaded. The Congress has led the way in bringing more and more litigation to the Federal courts, particularly criminal cases. Criminal cases, of course, take precedence in the Federal courts because of the Speedy Trial Act. So the net result of removing virtually all class actions to Federal court will be to delay those cases.

There is an old saying with which I am sure we are all familiar: justice delayed is justice denied. I hope my colleagues will think about that aphorism before voting for this bill. Think about the real world of Federal court litigation and the very real possibilities that long procedural delays in overloaded Federal courts will mean that legitimate claims may not ever be heard. At the very least, we should provide in this bill some priority to class certification motions brought in Federal class actions.

One little noticed provision of this bill illustrates the possibilities for delay that this bill provides, even to defendants who are not entitled to have a case removed to Federal court under the bill's relaxed diversity jurisdiction standards. Under current law, if a Federal court decides that a removed case should be remanded to State court, that decision is not appealable. The only exception is for civil rights cases removed under the special authority of 28 U.S.C. Sec. 1443. But this bill allows defendants to immediately appeal a decision by a Federal district court that a case does not qualify for removal. That means that a plaintiff class that is entitled even under this bill to have a case heard by a State court may still have to endure years of delay while the appeal of a procedural ruling is heard. Where is the fairness in that?

Some in the business community have expressed concern about resolving nationwide class actions, like some of the tobacco litigation, in a single State court. I can understand why that might seem unfair to some. But this bill does not just address that situation. It also prevents a group of plaintiffs who are all from the same State from pursuing a class action in their own State courts if even one defendant is from another State. The proponents of this bill have chosen a remedy that goes far beyond the alleged problem. That raises questions about what the intent behind this bill really is.

It is important to remember that this debate is not about resolving questions of Federal law in the Federal courts. Federal question jurisdiction already exists for that. Any case involving a Federal statute can be removed to Federal court under current law. This bill takes cases that are brought in State court solely under State laws passed by State legislatures and throws them into Federal court. This bill is about making it more time consuming and more costly for citizens of a State to get the redress that their elected representatives have decided they are entitled to if the laws of their State are violated.

Diversity jurisdiction in cases between citizens of different States has been with us for our entire history. Article III, section 2 of the Constitution provides: ``The judicial Power shall extend . . . to Controversies between Citizens of different States.'' This is the constitutional basis for giving the Federal courts diversity jurisdiction over cases that involved only questions of State law.

The very first Judiciary Act, passed in 1789, gave the Federal courts jurisdiction over civil suits between citizens of different States where over $500 was at issue. In 1806, in the case of Strawbridge v. Curtiss, the Supreme Court held that this act required complete diversity between the parties--in all other instances, the Court said, a case based on State law should be heard by the State courts. So this bill changes a nearly 200-year-old practice in this country of preserving the Federal courts for cases involving Federal law or where no defendant is from the State of any plaintiff in a case involving only State law.

Why is such a drastic step necessary? Why do we need to prevent State courts from interpreting and applying their own State laws in cases of any size or significance? One argument we hear is that the trial lawyers are extracting huge and unjustified settlements in State courts, which has become a drag on the economy. We also hear that plaintiffs' lawyers are taking the lion's share of judgments or settlements to the detriment of consumers. But a recent empirical study contradicts these arguments. Theodore Eisenberg of Cornell Law School and Geoffrey Miller of NYU Law School recently published the first empirical study of class action settlements. Their conclusions, which are based on data from 1993-2002, may surprise some of the supporters of this bill.

First, the study found that attorneys' fees in class action settlements are significantly below the standard 33 percent contingency fee charged in personal injury cases. The average class action attorney's fee is actually 21.9 percent. In addition, the attorneys' fees awarded in class action settlements in Federal court are actually higher than in State court settlements. Attorney fees as a percent of class recovery were found to be between 1 and 6 percentage points higher in Federal court class actions than in State court class actions.

A final finding of the study is that there has been no appreciable increase in either the amount of settlements or the amount of attorneys' fees awarded in class actions over the past 10 years. The study indicates that there is no crisis here. No explosion of huge judgments. No huge fleecing of consumers by their lawyers. This bill is a solution in search of a problem. It is a great piece of legislation for wrongdoers who would like to put off their day of reckoning by moving cases to courts that are less convenient, slower, and more expensive for those who have been wronged. It is a bad bill for consumers, for State legislatures, and for State courts.

Mr. President, if the motion to proceed is adopted, I expect there will be many amendments offered. In an area like this the details matter, and if we are going to have class action reform we need a full and fair debate on the details with the opportunity to offer amendments. But the best result is for the Senate not to consider this bill at this time. I do not believe this unfair Class Action Fairness Act is ready to be considered on the floor, and I will vote no on the motion to proceed.

Mr. President, I rise today to address the Class Action Fairness Act of 2003. This legislation first was introduced and reported by a Judiciary subcommittee 5 years ago, during the 105th Congress. It is time to enact this legislation into law.

There is no need to recount the parade of horribles that makes the need for this legislation manifest. Suffice to say that even the liberal Washington Post has noted that ``national class actions can be filed just about anywhere and are disproportionately brought in a handful of State courts whose judges get elected with lawyers' money.'' And as one study has noted, ``[v]irtually every sector of the United States economy is on trial in Madison County [Illinois], Palm Beach County [Florida], and Jefferson County [Texas].''

The problem has grown much worse in recent years. Over the course of the 1990s, class-action filings increased by over 1,300 percent. What this suggests is that class-action litigation has become unhinged from actual events. These lawsuits are not being filed because businesses are injuring consumers 13 times more frequently than they did at the beginning of the last decade. Rather, these numbers reflect a breakdown in the litigation system itself. That system no longer bars frivolous suits that are brought purely for attorneys' own gain.

I would like to address several points about this year's bill. First, there has been much argument from the opponents of this bill that its sponsors are doing something sneaky by employing rule XIV to bring a modified bill to the floor. The bill that we currently are considering includes a restored, modified version of the original bill's provision governing mass actions--which provision had been stripped out of the bill by a last-minute amendment in the Judiciary Committee. Bill opponents seem to suggest that whatever damage was done by that amendment they secured fair and square, and that bill supporters have no business undoing the damage on the Senate floor.

It is true that the committee amendment stripping the mass-action provision damaged the bill. The State of Mississippi, among others, entertains actions that are class actions in all but name--these suits technically are not class actions, but they function as their equivalent. And as any lawyer who has observed patterns of class-action litigation can tell you, a reform bill that did not apply in Mississippi would hardly be much of a reform at all.

If anything is improper about the way that the mass-action provision has been handled, it is the way that the original provision was stripped from the bill in the Judiciary Committee. I know, because I was there when it happened and saw it all. The stripping amendment was not circulated to Judiciary members in advance of the Committee's executive session--in contravention of the Committee's own self-imposed rules governing additional amendments to the bill. Most of us had not even had an opportunity to read the amendment. Chairman Hatch already had shown great indulgence toward bill opponents by allowing an additional day's markup of the bill, when he could have insisted on a final vote earlier. An additional amendment nevertheless was allowed, and was adopted once it was clear that it had the support of swing voters on the Committee--as well as the support of all Members who are hostile to the bill. The rest of us who support the underlying bill were forced to accept the amendment, without an opportunity to even learn what it would do.

By contrast to the way that the original amendment was handled, everyone has been afforded ample notice of the modified mass-action provision included in the current bill. This modified provision was negotiated among the bipartisan group of supporters of the original bill--including those whose support led to the adoption of

the original amendment. When a compromise finally was reached, it was announced during an executive session of the Judiciary Committee and reported in the newspapers. And if that was not adequate notice, Chairman Hatch provided a detailed description of the modified provision in the committee report for this bill, which was published last July. Yet to hear bill opponents tell the story, you would think that the modified proposal had been hidden from all members until this bill was introduced. This is simply absurd--a stealth amendment is not one that is announced months beforehand in a committee report.

I would also note today--speaking about the bill more generally--that it is hardly a radical reform. As two Democratic cosponsors of the bill recently emphasized in a letter to all Senators, the current bill ``does not contain any tort reform whatsoever. There are no caps on damages or attorney's fees, no limits on joint and several liability, and no new pleading requirements.'' These Senators also point out that as a result of a Democratic amendment added to the bill in the Judiciary Committee, ``federal jurisdiction does not extend to cases in which the claims involved less than $5 million or in which two-thirds or more of the plaintiffs are from the same state as the defendant.''

This last provision substantially dilutes the bill. The plaintiffs' lawyers who routinely file these class actions are among the wiliest members of the profession--I expect that they will have little difficulty structuring their plaintiff class such that more than two- thirds of plaintiffs are from the state in which the principal defendants are located and the action is filed. If this loophole is exploited to the extent that I fear that it will be, the principal effect of today's bill will be not to remove cases to federal court, but rather to keep them in the courts of the state where the defendants and most plaintiffs are located. Of course, such a reform would not be without its advantages. At the very least, those states that tolerate predatory class actions in their courts would be forced to bear the consequences of such litigation, because the suits would be directed at local businesses. This change might yet alleviate the collective-action problems and indulgence of regional prejudice that underlie much of the current class-action crisis.

Finally, in closing I would remark on the strange new federalism that this bill appears to have evoked in some of its opponents. In a statement of additional views in the committee report for this bill, all seven Judiciary Committee members who voted against the bill have denounced it as a violation of the high principle of States' rights. They describe the bill as raising ``serious constitutional issues'' by ``undermin[ing] James Madison's vision of a Federal government `limited to certain enumerated objects, which concern all the members of the republic.' '' These opponents even invoke the U.S. Supreme Court's decision in United States v. Morrison (2000), which struck down as beyond Congress's power a Federal law regulating violent crime that is unrelated to commercial activity. As bill opponents remind us, Morrison requires Congress to respect the distinction between what is truly national and what is truly local.

What may strike the casual observer as unusual is that the very members who invoke Morrison against this bill recently have denounced that very decision--and any judicial nominee suspected of harboring views in line with the Supreme Court majority in that case--in the course of the judicial-confirmation process. On this very day, the Judiciary Committee will hold a hearing for one of the President's nominees to the U.S. Court of Appeals for the District of Columbia. I would not be surprised to learn that the same Judiciary Committee members denouncing this bill on the Senate floor today will then proceed down the Capitol elevators, take the shuttle to the large Judiciary hearing room, and denounce the President's nominee as a secret supporter of United States v. Morrison.

To conclude, I would simply note that it is beyond argument that the interstate commerce clause and Article III's authorization for diversity jurisdiction were included in the Constitution in order to empower Congress to protect both interstate commerce and out-of-State defendants from local prejudice. Nothing could be a more appropriate application of these congressional powers than the legislation that we are considering today. Yet to listen to this bill's opponents, one might come away with the impression that the interstate commerce clause was designed to allow Congress to regulate all violent crime, and any other subject that touches Congress's fancy and that happens to poll well--any subject, that is, except for interstate commerce. The opponents of this bill can play at either John Paul Stevens or John Calhoun. They cannot play at both--or at the very least, they ought not do so on the same day.

I look forward to Congress's enactment of the important legislation before us today.

Mr. President, I ask unanimous consent that the 5 additional minutes of morning business just consumed by the distinguished assistant majority leader be charged against the Republican time for debate on the motion to proceed to S. 1751.

Mr. President, in a moment, I am going to ask that the Chair recognize the distinguished Senator from Nevada for comments that he may care to make on the motion to proceed and on the upcoming vote at 12:30 on cloture regarding that issue. I want to perhaps tee it up a little bit and talk about why I think this motion to proceed is so important. I am only going to do so for a few minutes, and I will talk some more after the Senator from Nevada has had a chance to speak, and perhaps someone on the other side who wishes to speak.

I worry that our system of litigation has simply become too expensive and too time-consuming to serve the needs of consumers and the public. Those of us who have represented people in court, whether they be a plaintiff or a defendant in a lawsuit, know that sometimes after the lawsuit is over, even though lawsuits invariably have winners and losers, sometimes it is hard to tell the difference between the two because the process, as I say, costs so much and takes so much time.

Unfortunately, because of that, a lot of people with valid claims, who have been dealt an injustice and should have access to our courts or some means to vindicate those claims, are simply frozen out. That is something we need to work on not just on this bill, on this day, but going forward. I hope we will.

This bill, I believe, is very important because, indeed, I think the purpose of a class action lawsuit is a good one. It does, as originally intended, serve the purpose of providing individuals with relatively small claims an opportunity to get access to the court to get justice, even though it may not be economically sustainable because, of course, they have to hire a lawyer, pay court costs, and all the like.

The purpose, I believe, is laudable, but as in a lot of areas, experience and scholarship by the Nation's leading thinkers and just plain common sense tell us that, with the circumstances that confront us today when it comes to class action lawsuits, the system is not just broken but that it is falling completely apart.

Mr. President, I reserve any remaining comments that I may have and, according to the time that has been split between the parties on this issue, recognize the Senator from Nevada for comments he may care to make at this time.

That is certainly fine.

Mr. President, if I may inquire of my colleague from Vermont, Senator Ensign was here when I started, and then Senator Leahy came in after I started, so I apologize. May I inquire approximately how long the Senator from Vermont wishes to speak?

I certainly ask that the Senator from Vermont be recognized for that purpose.

Mr. President, first I inquire as to the remaining time on the Republican side.

I ask unanimous consent that of that time, the last 10 minutes before the vote be reserved for the Senator from Iowa, the sponsor of the bill, or his designee; that following this UC request we go to the Senator from Nevada for 5 minutes; thereafter, that the Senator from Delaware be recognized for 5 minutes for any comments he may make; and then that the remainder of the time be reserved for me or my designee.

How much time remains for the Republican side?

I ask unanimous consent to revise the previous unanimous consent agreement to provide for 7 minutes for Senator Grassley or his designee, 3 minutes for Senator Kohl, the Senator from Wisconsin, and I reserve the remaining time for myself, such as remains.

How much time is on the Republican side?

I commend the Senator from Louisiana for his constructive efforts to get involved in class action reform. He has made a good contribution to the debate by offering some additional ideas for those that were considered in the Judiciary Committee when we voted this Class Action Fairness Act out of the committee.

It makes no sense to me to say vote against bringing the bill up in order to fix class action abuse. If people are serious about class action reform, then they would want us to bring up the bill. They would vote in favor of cloture and we would simply have a debate, as we do on all legislation on the merits of the bill, as voted out of committee or at least brought up for consideration here with whatever amendments may be offered.

The Senator from Louisiana has some constructive amendments, no doubt, and he has shown himself to be a master at bridging the gaps in this body and achieving consensus. He is to be commended for it. We need more people willing to look at the merits of legislation and vote on those merits. That is all we are asking.

I point out that, while there are a lot of different newspapers in the country, one that watches what happens in Washington, in particular, is the Washington Post which has observed that:

. . . ``clients'' in class action lawsuits get token payments

while the lawyers get enormous fees. This is not justice. It

is an extortion racket that only Congress can fix.

Very strong words. Not mine but those of the editorial board of the Washington Post.

Others who should be in a position to know a lot about this subject-- for example, the Judicial Conference of the United States, chaired by the Chief Justice of the U.S. Supreme Court--have acknowledged problems with the class action system. While they are not in the business of lobbying for specific language, certainly we want to pay attention to some of the suggestions they may have about ways we can correct some of those problems. That is what this is all about.

This is some of the language I was referring to, obviously, speaking of the Judicial Conference:

. . . thanked Congress for ``working to resolve the serious

problems generated by overlapping and competing class

actions.''

Ultimately, I think we are all interested in the same thing; that is, that people who are hurt due to the wrongful conduct of others have a means to redress those injuries and make sure the wrongful actor pays. But we are not in the business of making sure that a few benefit at the expense of many. That is what happens now with an abusive class action system which enriches entrepreneurial class lawyers who find a so- called class representative and are then able to manufacture a huge lawsuit where they reap millions of dollars in fees and the consumer gets a coupon.

There is an old country and western song ``she gets the gold mine and he gets the shaft.'' In this instance, it is the lawyers who get the gold mine and consumers get the shaft in modern class action litigation. We ought to be about fixing that. We cannot fix it until this matter comes up on the motion to proceed and at least 60 Senators vote on the motion to proceed.

I hope my colleagues will heed the eloquent words of the Senator from Delaware, Mr. Carper, and Senator Kohl, my colleague on the Judiciary Committee, and vote to bring the matter up.

I reserve the remainder of our time.

Mr. President, the Senator from Louisiana has made an eloquent plea for class action reform. Unless we have cloture, there will be no class action reform anytime in the near future. We know the Senate has a very busy calendar of conference committees working on an Energy bill, on Medicare, prescription drug reform, and many other issues. The time is ripe, and I suggest to my colleagues the time for reform is now.

Finally, this is not a matter of lawyer bashing. This is about jobs. This is about added cost to consumers. When frivolous litigation is filed which, in essence, once a class action is certified becomes legal blackmail because class action lawsuits are rarely, if ever, tried with a jury because the risks are so enormous, it literally becomes a ``bet the ranch'' or I should say ``bet the company'' lawsuit. So what happens is they are almost always settled but under unequal terms and really amount to, in too many instances, legal coercion. But what happens is, when that money is paid, that cost is not necessarily absorbed by that company, that job creator, but is passed on to consumers; and consumers pay and, ultimately, job loss occurs.

So, Mr. President, I urge my colleagues who believe we need to address this tremendous problem, we need to address job loss, we need to address consumer cost, we need to address this abuse, to vote for cloture.

I thank the Chair. Mr. President, I do not want to interfere with my friend from Nevada, but I understood we were going back and forth; is that correct?

Has there been time reserved under the order for the Senator from Vermont?

Mr. President, how much time is reserved under the order for the Senator from Vermont?

I will not use the 30 minutes. I am going to use approximately 5 minutes of my 30 minutes.

I thank the Chair. Mr. President, I do take my time under the order.

As I stated before, I do oppose this bill, a bill that has not had hearings, has not had a vote in the committee, but when you review it, you realize--let me be parochial for a moment--this legislation would deprive Vermonters of the right to band together to protect themselves against violations of State civil rights, consumer, health, and environmental protection laws in their own State courts.

That is unacceptable to this Vermonter. The same could be said of all the other 49 States, and it ought to be unacceptable to the Senators from each of the other 49 States.

In fact, the country might ask what it says about our priorities that we are even having this debate. Of the many pressing issues already on the Senate's plate awaiting action and awaiting time on the floor, all the appropriations bills that we are required by law to pass by September 30 and have yet to even be taken up for a vote or debate should be among our highest priorities. If we are going to tell how the laws should be made and how the courts should be run, we ought to at least demonstrate to the American people that we, in the Senate, can follow the law and do our appropriations bills at the time we are supposed to.

Instead, we set aside those issues that by law we are required to do, those issues that are the priorities of the American people, to take up another priority. We ask: Whose priority is this bill? The bill is a top priority to special interests that include big polluters and big violators of the American people's consumer rights and civil rights past, present, and future.

Class actions are one remaining tool available to the average American in seeking justice, and some special interests want nothing more than to weaken the public's hand in class action proceedings.

While the Senate is spending several days debating this bill, think of those appropriations bills that by law we should have brought up weeks ago and what is in those bills: not special interests but American interests, such as funding for the Department of Justice to provide bulletproof vests for law enforcement officers, the same law enforcement officers who protect all of us, or how about the money to put more cops on the streets and to implement the prevention programs of the Violence Against Women Act? Those are not special interests; they are American interests.

Despite the fact the fiscal year began 3 weeks ago, we are dallying with this special interest legislation that benefits large corporate interests at the expense of individuals harmed by these corporations.

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 plaintiffs' home State, and even if the harm done was in the plaintiffs' home State.

Less than a week ago, with no hearings before our committee, mass tort actions were included in the bill along with true class actions, despite the fact

that when we actually did vote on it in the Judiciary Committee, both Republicans and Democrats voted to take that out. This simply amplifies the harm done to citizens' rights, and to the possibility of vindicating those rights in their own State courts.

It also shows how special interest legislation comes on the floor. Here is legislation bypassing the committee, legislation that is dumped on the floor and provisions added to it that had been voted down by a majority of the committee of jurisdiction, a majority requiring both Republicans and Democrats to vote for it.

Special interests groups are distorting the state of class action litigation by relying on a few anecdotes in an ends-oriented attempt to impede plaintiffs bringing class action cases. There are problems in class action litigation. There are ways of taking care of that. But simply shoving most suits into Federal court with new one-sided rules will not correct the real problems faced by plaintiffs and defendants.

After all, our State-based tort system remains one of the greatest and most powerful vehicles for justice anywhere in the world. I think of when the Soviet Union broke up, as I said before on the floor, and members of the new governing body came to the United States to study how we do things. I recall a group coming to my office and saying: We have heard that people in the United States in your States can sue the Government, sue the State.

I said: That's right.

They said: We have heard further that they actually could win, and the State could lose.

I said: It happens all the time.

They said: You mean, you don't fire the judges; you don't start over again?

I said: Absolutely not; this is our system. We set it up that way so people can go to their State courts and sue.

If this is passed, I would hate to have to explain to those people from the former Soviet Union that we have taken such a step backward.

One reason that our State-based tort systems are so great is that there is an availability of class action litigation that lets ordinary people band together to take on powerful corporations or 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 our State court systems to seek and receive justice.

If they cannot, that is what the cheaters count on. We are only cheating you $5 or $6 or $10 or $15. Why would you sue for that? But if there are millions being cheated, then you have a chance to do something. Class actions allow the little guys to band together. Whether it is to force manufacturers to recall and correct dangerous products, as we saw with the Bridgestone/Firestone tire recall, or to clean up after devastating environmental harms, as we saw with Monsanto in Alabama, or to vindicate the basic civil rights they are entitled to as citizens of our great country, they are using class actions, and they should continue to do so.

The so-called Class Action Fairness Act is something that appeared on the Senate desk with no hearings. It almost looks as if it has been drafted in the legal section of one of the major polluters of this country. It would leave injured parties who have valid claims with no effective way to seek relief.

Class action suits have helped win justice and exposed wrongdoing by corporate and Government wrongdoers. They have given average Americans at least a chance for justice. We should not take that away.

I reserve the remainder of my time.