School Bus Driver Tax Fairness Act of 2005

Mr. President, what is the parliamentary state of affairs?

Have no amendments been presented?

I ask the distinguished Senator from Massachusetts if he is prepared to submit an amendment. If he is, I would be happy to yield to him instead of making my comments.

Mr. President, I listened carefully to my friend and colleague from Massachusetts, and I do think he has a few things wrong. For instance, if the vast majority of the people bringing the suit are Massachusetts citizens, under this bill they have a right to bring it in State court, if they want to, although most civil rights cases are brought in Federal court because these are 14th amendment cases.

I remember years ago arguing on this floor on these issues, and, of course, the distinguished Senator from Massachusetts and others wanted these cases brought to the Federal courts because they were so afraid some of the State courts would not do justice in civil rights cases. They were right. They wanted them in Federal court. I do not blame them.

The Federal courts are made up of judges who are nominated and confirmed for life. Because of that, they should not have any political forces that would take them away from doing justice. In all honesty, nothing in this bill would stop Massachusetts classes made up wholly of Massachusetts citizens or even a majority of Massachusetts citizens from bringing these cases in State court, if they want.

One reason the Federal courts are so clogged is because of a wide variety of cases that are now being brought in Federal court, partly caused by people on both sides of the aisle. But there is no question Federal courts are not only good courts, by and large they are basically fair courts. And by and large they are basically very sophisticated courts. And by and large they apply, in these particular cases, the laws of the States in which the suits are brought--I might add, unless there are reasons from the Federal standpoint in applying otherwise.

Now, there is nothing in this bill that stops legitimate cases from proceeding. There is nothing in this bill that takes consumer rights away. There is nothing in this bill that will not give consumers or those who are injured a day in court. There is a lot in this bill to prevent some of the phony approaches that are taken by some in the legal profession who should be ashamed of themselves. This bill corrects those kinds of injustices, those kinds of excesses, those kinds of problems.

I urge my colleagues to vote against this carve-out amendment offered by my distinguished friend from Massachusetts, Senator Kennedy.

This amendment excludes from the bill's existing jurisdictional provisions those class actions involving civil rights violations and class actions involving wage-hour disputes. But before I address the imprudence of carving out these types of cases, I would like to make it perfectly clear, as I think I have up to now, that S. 5 in no way impairs the substantive rights of litigants to bring, among other claims, civil rights and wage-hour claims. Some opponents of this bill seem ready to conveniently gloss over this critical fact in their efforts to pass bad information about what this bill does.

S. 5 is procedural in nature and simply moves larger interstate class actions to the appropriate forum where they belong in the first place: in Federal court. These class actions often involve the most money, parties from different States, and issues that transcend State lines. Yet by the same token, the bill preserves States rights to adjudicate truly local disputes on behalf of their citizens.

Now, those are facts. This bill does not take any rights away from anybody. But what we are trying to do is stop the forum shopping; in other words, finding jurisdictions that will render outrageous verdicts that basically benefit the attorneys, the lawyers, not the people for whom they are suing.

Well, let me say, first, an affirmative exclusion of civil rights cases from Federal jurisdiction runs counter to the bedrock principles of encouraging our Federal courts to adjudicate civil rights disputes. I remember, in days gone by, there was a demand that these cases be in Federal court because they are courts of primary jurisdiction under the Constitution and because, as a general rule, more justice was done.

I think this principle speaks for itself when you look at the plethora of Federal civil rights statutes extending protections against employment, housing, race, and gender discrimination. That is just to name a few. Indeed, the Federal courts' involvement with civil rights is so pervasive that Federal courts routinely hear claims brought under State civil rights laws. This is not unusual.

The Federal judiciary's extensive involvement in civil rights matters has also led to favorable results for civil rights litigants. Honest litigants are not going to lose in Federal court. It is just that simple. And they are probably more greatly protected because there is naturally less politics in Federal court.

Federal courts have a long record of certifying discrimination class actions and approving generous settlements in most of these cases.

Take, for instance, the recent Home Depot gender discrimination settlement which paid class members somewhere in the neighborhood of $65 million or the $192 million Coca-Cola race discrimination settlement in which each class member was guaranteed a recovery of at least $38,000 in cold hard cash. And, of course, there is the recent Federal court certification of the largest civil rights class action in U.S. history involving 1.6 million former and current female employees of Wal-Mart.

These are successful, proven results that belie any claim that Federal courts are somehow hostile to civil rights actions. In fact, it is laughable to now say that we have to have these in State courts when all these years we have been working hard to get these cases to Federal court so they would be adjudicated more fairly.

Some of those who support a civil rights carve-out also contend the Federal courts are overworked and incapable of handling such matters, that the State courts are better equipped. Give me a break. We have heard this concern raised repeatedly from opponents of this bill who apparently believe that if they say it enough times, the proposition may somehow turn out to be true and, at the very least, to minimize the significant deficiencies in our State courts. These critics claim that it takes 5 years to get a class action to trial in Federal courts. But do they have the raw data to back these claims? Of course, they don't.

In reality, the median time for final disposition of a civil claim filed in Federal court is 9.3 months, and the median time to trial in a civil matter in Federal court is 22.5 months. Moreover, what some of the critics hide is the fact that the State courts have experienced a much more rapid growth in civil filings than have the Federal courts. Civil filings in State trial courts of general jurisdiction have increased 21 percent since 1984, and there are delays in many State courts on civil actions that are longer than they are in Federal court.

As for filings in some of the more notable magnet State court jurisdictions, let's look at some of the figures. Just look at this chart. The number of class actions filed in State courts have skyrocketed in State courts under current law. Take Palm Beach County, FL. It has gone up 35 percent between 1998 and 2000. In Jefferson County, TX, a notorious jackpot jurisdiction, it has gone up 82 percent. In Madison County, IL, another notorious jackpot jurisdiction--in other words, a jurisdiction where defendants don't have a chance because of politics and moneys donated to judges from the trial lawyers in that particular jurisdiction, primarily--over 5,000 percent between 1998 and 2003. Why? Because it is a county that is out of whack. If the plaintiffs' attorneys can get cases in Madison County, they are going to get big verdicts, outrageous verdicts for people who aren't even sick, people who don't even have problems in some cases.

The overall increase in State courts is 1,315 percent. So don't use that argument. If you add the fact that State courts are almost always courts of general jurisdiction where they hear matters ranging from traffic violations to domestic disputes, I think you get a pretty clear picture of what our State courts are faced with in terms of workload.

As a final point, I would like to note that the Judiciary Committee soundly defeated this very amendment of the distinguished Senator from Massachusetts during markup last Congress. We reported the bill in a bipartisan 13-to-5 vote in this Congress. The committee voted against the civil rights carve-out on a solid bipartisan basis and understood the inherent problems with this amendment. This amendment lost footing in committee and should not gain traction here.

The second carve-out excludes wage and hour or timesharing claims from the bill. These are actions brought by employees against their employers for violating wage and hour restrictions imposed under applicable labor laws. While these actions are certainly important for working Americans, there is no principled basis to exclude them from this bill, not one principled reason.

Again, let me be clear about S. 5. This bill in no way affects the substantive rights of these workers to seek redress for these wage and hour claims. In other words, employees who bring wage and hour claims against their employers will still have the exact same rights they do now if this bill is enacted. The only way the bill could possibly affect these cases is by moving them to Federal court. But what the proponents of this amendment overlook is that if a wage and hour case meets the interstate criteria of the bill, then there is absolutely no reason to exclude them from Federal court. It makes no difference if the case involves a defective product, a false advertising claim, or a breach of warranty. If the class action lawsuit involves parties from different States and involves a large amount in controversy, regardless of whether the claims are predicated on State law, then the case should be heard in Federal court. This is why we have diversity jurisdiction in the first place, and it is certainly what the Founding Fathers had in mind when they drafted our Constitution.

I urge my colleagues to vote against this amendment. It establishes bad policy and is nothing more than yet another attempt to weaken the bill. This amendment, including all other carve-outs, for that matter, also flies in the face of the bipartisan compromise that is now embodied in S. 5. I intend to honor this compromise and encourage my colleagues to do the same.

Let me just say, it is unseemly to claim that the Federal courts are not as good as the State courts. And it is even worse to claim that the Federal courts should not have jurisdiction in these matters. The fact is, we have provided through the Feinstein amendment language that permits certain cases to be in State courts. But when they get to the size of the 100 or more in a class and over $5 million, these cases have to be brought in Federal court. And the reason is because of these jackpot jurisdictions that I have been pointing out that really do not do justice and are not fair.

Earlier, the distinguished Senator from Illinois was talking about how few cases are filed in Madison County, IL. What he doesn't tell you is that the minute the lawyers start talking about a class action and they send a demand letter, the companies know they are dead if the case is brought in Madison County, IL. No matter how right they may be, they are dead because the judges in that particular jurisdiction are in the pockets of the local lawyers with whom the out-of-State lawyers who have these class actions align themselves in order to go in there and get these outrageous verdicts that would not be obtained in any fair court of law.

So what do the companies do? They have no choice. They will settle for what they estimate the defense costs to be because why should they take a chance on jackpot justice? And it then becomes, in the eyes of many, a broken system of extortion, extortion by attorneys, extortion by the judges over companies that probably have little or nothing to do with Madison County, IL, but because of the current system, wind up there, either getting staggered with unjust judgments or doing what prudence tells them they have to do, and that is paying whatever they estimate the defense costs to be to get rid of the lawyers. It comes as close to legal extortion as anything I have seen.

That is what we are trying to solve here. It doesn't take away anybody's rights. It just means they will have to prove their case in Federal courts. And Federal courts are very competent courts. Judges are appointed for life. They are less political, although every

once in a while you see some politicization of Federal court, but nothing like these jackpot justice jurisdictions that are constantly used by some of these unscrupulous lawyers to get outrageous verdicts so they can collect great big fees.

Yesterday, we talked about coupon settlements--the lawyers get huge fees and the person winds up with a $5 coupon that is meaningless. That doesn't mean that some of these cases are not valid, but they could just as easily be won in Federal court, if they are valid, as they can in State courts, but not as easily as in these jackpot justice jurisdictions where justice is denied. We can throw around big corporations all we want, but businesses in this country are not all big and, even if they are, they deserve to be treated justly.

That is what our court system should be doing. It should not discriminate against them because they are large corporations. If they are fair and right, they should be treated just as fairly and rightly as anybody else.

We have come close on this bill now a number of times, very close. In November of 2003, we struck a deal that gave the Class Action Fairness Act the requisite number of votes to pass even if the bill was filibustered. We got the votes, guaranteed up to 62. It was a bipartisan compromise that allowed us to reach this commonsense agreement. Believe me, this compromise does not satisfy everybody or, for that matter, doesn't satisfy anybody.

The fact is, it is what it is--a bipartisan compromise. If I would be permitted to write the bill the way I think it should be done, I think it would be perfect, and others in this body would feel the same way. But we have worked out this bipartisan compromise and we need to stick with it.

Senator Cornyn explained this morning why he believes the bill should go further in correcting abuses in the current system, and he explained how he would fix some of these problems legally. He is not wrong, by the way. He also said he would not advance these amendments at this time because he understands the complex dynamics in arriving at the compromise bill. We have been at this for the last 6 years. That is how long we have tried to get this bill through. This bill is not perfect, by any stretch of the imagination. No bill is around here, because we have to work with 535 Members of Congress. Depending on your perspective, this bill either gave away too much or not enough.

The fact is, this bill is just about right and it is time to get it done. We know we should get it done. A supermajority of those in this body should get it done. But nearly a year and a half after we struck a deal to get it done, a series of amendments are still being offered that would scuttle this bill and, unfortunately, the amendment by the Senator from Massachusetts happens to be one of them. Let us get down to the brass tacks. It is rug-cutting time. If any amendments upset the essential compromises that have been negotiated over a long period of time, this bill will not become law. The purpose of these amendments is not to improve the bill but to destroy it. The House of Representatives will not agree--they have made it super clear--to a bill that includes amendments that gut this bill's modest and reasonable reforms. I have to say I don't blame them. They have seen this process for the last 6 years. The American people have waited for this reform for far too long. I should remind my colleagues that if we fail our constituents at this time, the memory of the American people is a long one.

I will speak today about a number of amendments that will likely be offered. In my opinion, and in the opinion of those most familiar with the bill, these amendments are poison pills, and everybody knows it. These amendments were not part of our discussions with Senators Schumer, Dodd, and Landrieu that resulted in the current bipartisan legislation. I don't mean to limit it to them. There were a whole raft of Senators on both sides of the aisle.

I will repeat that for emphasis. We had a deal. None of these amendments were part of this deal. What happened to the days when a deal was a deal? These amendments are quite literally being offered at the eleventh hour and I think for a purpose other than to improve the bill.

Let's be honest about it. Consumers, plaintiffs, and others who have rights are not going to be foreclosed from vindicating their right in a court of law. It is just that they are not going to be able to take these cases--and certainly outrageous cases--to these jackpot justice jurisdictions where justice is denied any longer--except under some loophole exceptions in this bill. But the vast majority of the problems should be solved by this bill. There are a lot of people out there who have been very badly mistreated because of the current broken tort process, who are praying we will be able to get this bill through.

Let me make this clear. If we add one of these amendments, I think the bill is dead again, even though it has had 62 prime sponsors-- people who will automatically vote for this bill and who understand the game here is to get a bill out that will do some justice in this country and stop some of the jackpot justice that has been going on.

I don't mean to denigrate anybody's amendment, but let's be fair and make it clear that this bill does not take away rights. This bill enhances rights for both sides, and not just for plaintiffs but also for defendants. So fairness in the tort system will be brought back to the forefront. In the case of civil rights and wage-and-hour disputes, look, for years we have argued they should be in Federal court. Now, all of a sudden, they don't want them in Federal court. All you can do is surmise: why is that? I think everybody knows why.

I yield the floor.

Mr. President, I notice the distinguished Senator from Wisconsin is in the Chamber, but I would like to make a few more remarks if he does not feel too badly about it.

I support this bill. I have been working on it for 6 years. It is a grand compromise. We have Democrats and Republicans. It is bipartisan. It is not perfect, but it is as good as we can do and it will do an awful lot of good.

The evidence is clear and undeniable; the well-documented abuse of the class action litigation device too often ends up victimizing plaintiffs, the very people that class actions are supposed to benefit.

These abuses cheat millions of consumers who unwittingly have their legal rights adjudicated in local courts thousands of miles away. They deny the due process rights of defendants who are relentlessly hauled into a handful of small county courts where the playing field is unfairly tilted in favor of the personal injury bar, the plaintiffs' bar.

If that were not enough, class action abuses are eroding public confidence in our civil justice system. When abuses do occur in the class action system, the public can ultimately pay dearly through spiraling prices, lost jobs, and even bankrupt companies.

I have been listening to arguments from the other side, but to give the class action problem some perspective, I want to consider just the effect of this litigation in one locale, Madison County, IL. There we find a case study in rampant misconduct within the class action system, its corrupting effect on the courts, and the desperate need for reform.

This small county in the southwestern part of that State provides all the evidence necessary to convince anyone that the legal system is currently being exploited by shameless and self-seeking plaintiffs' lawyers. Madison County, IL is a rural county. I imagine it is the type of county where maybe Abraham Lincoln first got his start as a young lawyer and an advocate for justice.

In some notes perhaps taken in preparation for a law lecture around 1850, Lincoln set the ideal for his profession, a profession practiced by many in this Chamber, including myself.

No. 1, ``Discourage litigation . . . Point out how . . . the nominal winner is often a real loser--in fees, expenses, and waste of time.''

No. 2, ``Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more

nearly a fiend than he who habitually overhauls the register of deeds in search of defective titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it.''

And No. 3, ``An exorbitant fee should never be claimed.''

These words were uttered during a time when being a lawyer automatically carried with it a title of honor, integrity, and trust.

Unfortunately, Lincoln's words no longer carry much meaning for some of the lawyers who have descended on Madison County. In the land of Lincoln, the rule of law has too often been corrupted almost beyond recognition by self-interested plaintiffs' lawyers and seemingly pliant public officials. Some unscrupulous personal injury attorneys go forum shopping to find friendly jurisdictions. Certainly Madison County, IL is one of them.

Then some judges in those jurisdictions, some of whom are compromised by campaign contributions from the very same law firms arguing in their courtrooms, sometimes certify these cases with the proverbial rubber stamp, even though they are not worthy of being certified.

Finally, sympathetic local juries trying out-of-State corporations have sometimes bestowed unjustified and sometimes outrageous awards. This pattern of behavior is not only an affront to the due process rights of defendants, but it breeds disrespect for the rule of law itself.

I have heard colleagues on the other side of the aisle say, `Well, these are big corporations.' First, they aren't all big corporations, and second, even if they were, they still deserve fair treatment, due process, and an impartial justice system.

And make no mistake about it. These suits are not free. We all pay for them. The American consumer pays for the costs of these class actions.

The courthouse in Madison County, IL is what scholars now describe as a magnet court. Always on the lookout to find suitable venues for enriching themselves, entrepreneurial plaintiffs' attorneys--many of whom practice in the field of personal injury--are sucked into its orbit. The numbers alone tell the story. Over the last 5 years the number of class actions filed in the county has increased by 5,000 percent.

Let me repeat that so that astronomical figure can sink in. A 5,000- percent increase. It almost defies logic that so many national class actions are being brought in this small rural county.

In 1998, there were only two class actions filed in this county. In 2000, that number rose to 39. In 2001, there were 43 new class actions. One year later, the bridges leading to the riches of Madison County were clogged with carpetbagging lawyers as word hit the street that the local court there was giving away money as though it was Christmas morning. Enterprising plaintiffs' lawyers looking to make a quick buck knew Madison County was the place for business.

In 2004, 77 class action suits were filed. In 2003, there were another 106. Between 1998 and 2003, the number of class actions in the county rose from 2 to 106 per year. In the last 4 years, the lawyers who flocked to Madison County succeeded in having the following cases certified.

All Sprint customers in the entire Nation who have ever been disconnected on a cell phone call. That is a class action in Madison County.

Every Roto-Rooter customer in the country whose drains might have been repaired by a nonlicensed plumber.

All consumers who purchased limited edition Barbie dolls that were later allegedly offered for a lower price elsewhere.

These are just three examples of the abuses that are going on.

I know my friend from Illinois, the minority whip, Senator Durbin, is understandably protective about the state of affairs in Madison County. He points out that while many class actions are filed in Madison County, few are certified. It does not take a lot of cases like the ones I talked about to create an environment that encourages cases that are marginal at best. Through their increased filings, class action attorneys tell us a great deal of what we need to know about Madison County. That many of these cases are settled upon filing or even before they are filed tells us a lot. A demand letter from a class action attorney with a Madison County address is a dreaded piece of correspondence for any company or any defendant. If these types of cases were not such a drain on our economy, it would almost be easy to laugh at some of these cases.

We question the efficiency and fairness of a small county courthouse in Illinois adjudicating cases against national companies involving various State and Federal regulations and involving millions, if not billions, of dollars in settlements where neither the majority of plaintiffs nor the defendants are typically residents of the county. These locally elected judges, with the close assistance of interested plaintiffs' attorneys, in effect set policy for the entire Nation, defying the principles of self-government on which our Federal system is based.

This situation is a colossal mess, and a few plaintiffs' lawyers are exploiting it to the hilt, and giving all of us who love the practice of law a bad name.

The same five firms appeared as counsel in 45 of all cases filed between 1999 and 2000. Of the 66 firms appearing in these cases, 56 of them--85 percent--had office addresses outside of Madison County.

In this small county, with a population of only 259,000, there are somehow more mesothelioma claims from asbestos exposure than in all of New York City with its population of better than 8 million. One nine- member firm with an office in Madison County claims to handle more mesothelioma cases than any firm in the country.

Who benefits from all of this litigation? One Madison County judge approved a $350 million settlement against AT&T and Lucent for allegedly billing customers who leased telephones at an unfair rate. What did the lawyers get? Forty-four lawyers from four firms will split $80 million for legal fees and $4 million for expenses. And the customers? They actually lost money. After their legal fees, the average class member got hit for $6.49.

Think about that.

Lincoln's principles are a distant memory in Madison County. The Washington Post succinctly described the situation. ``Having invented a client, the lawyers also get to choose a court. Under the current absurd rules, national class actions can be filed in just about any court in the country.''

And those lawyers often pick Madison County. They are picking it because it is what some call a magic jurisdiction.

Let me refer to this chart, called ``Magic Jurisdictions.'' This is Dickie Scruggs, one of the best plaintiffs' lawyers in the country, a man I have great respect for. But in a luncheon talk on the asbestos situation at a panel discussion at the Prudential Securities Financial Research and Regulatory Conference on May 9, 2002, he had this to say. This is Dickie Scruggs. You can believe him. This man understands the litigation field. He is a billionaire from practicing law. He said:

What I call the ``Magic Jurisdictions'' is where the

judiciary is elected with verdict money. The trial lawyers

have established relationships with the judges that are

elected. They are State court judges. They are populists.

They have large populations of voters who are in on the deal.

They are getting their piece, in many cases. And so it's a

political force in their jurisdiction and it's almost

impossible to get a fair trial if you are a defendant in some

of these places. The plaintiff lawyer walks in there and

writes the number on the blackboard, and the first juror

meets the last one coming out the door with that amount of

money. The cases are not won in the courtroom. They're won

on the back roads long before the case goes to trial. Any

lawyer fresh out of law school can walk in there and win

the case, so it doesn't matter what the evidence or the

law is.

That is one of the leading plaintiffs' lawyers in the country. He was honest enough to call it the way it is in Madison County. Madison County is not the only jackpot jurisdiction, but I am concentrating on it since the distinguished Senator from Illinois has focused his remarks on our criticism of this jurisdiction.

Dickie Scruggs is a fine lawyer. I have said that. I worked with him on the tobacco settlement. He and Mississippi Attorney General Mike Moore did a good job for their clients and the American public. I am very familiar with what they did. I am familiar with the Castano Group as well, which

risked millions of dollars to bring the tobacco suits. They had an entire multifloor building filled with documents they accumulated at the cost of millions of dollars to make their case in the tobacco suits.

Dickie Scruggs is a fine lawyer. So is Mike Moore. So are the Castano Group lawyers.

Having said that, there is a reason the Super Bowl is held at a neutral site. It is clear that Madison County is not a neutral site. When it comes to class action defendants trying a class action case in Madison County, it is like shooting fish in a barrel.

Dickie Scruggs is simply too good of a lawyer to need any unfair advantage and that goes for the vast majority of plaintiffs' attorneys in our country. But there are a minority of lawyers who are causing the vast majority of our problems.

What makes for a magical jurisdiction? In a magic jurisdiction, the supposedly objective judges and jury, all stand to gain from a settlement. Madison County, as the Chicago Tribune notes, is a jackpot jurisdiction where local newspapers ``sport advertisements looking for the local plaintiff that can provide a convenient excuse to file.''

Some have concluded that this choice of venue might have something to do with the fact that in recent years the elected judges of the circuit court of Madison County have received at least three-quarters of their campaign funding from the lawyers who appear before them in these class action suits. In a simpler time, the State court would only certify a class if there was a substantial local connection. Some of the judges in Madison County have created an environment where a lifelong resident of Washington State, who worked in Washington, was allegedly exposed to asbestos in Washington, never received medical treatment in Illinois, and had no witnesses in Illinois to testify in his behalf, actually thought it was worth a shot to bring suit in a strange town halfway across the country. What was his connection to Madison County? He vacationed in Illinois for 10 days with his family nearly 50 years ago.

In this case, the court did the right thing and refused to certify this man's claim. But that a lawyer would even consider bringing it shows how far gone Madison County is. So far, the Illinois Supreme Court has taken the extraordinary step of rebuking it. As legal ethics professor Susan Koniak of Boston University School of Law explains:

Madison County judges are infamous for approving anything

put before them, however unfair to the class or suggestive of

collusion that is.

This is not justice. This is a travesty. The St. Louis Post-Dispatch, one of this Nation's great newspapers, has followed this epidemic of litigation closely. They describe the run on the Madison County courthouse as resembling ``gleeful shoppers mobbing a going out of business sale.''

Due process itself is corrupted by this circus. What is going on in Madison County too closely resembles legalized extortion in the eyes of many observers. The deck is stacked against these companies hauled to Illinois to answer these charges. The cases are sometimes heard on an expedited basis. Under these pressures they are typically given an offer they cannot refuse. Once the class is certified, they feel compelled to settle, regardless of the merits of the case. The risk of loss is simply too high. They do not even have to wait until the class is certified. They know that in most cases the class will be certified by the judges of Madison County. A simple demand causes many companies to say, `let's buy out of this for the lowest price we can, even though we do not owe them a dime. We will just settle for the attorney's fees.' These settlements are to the detriment of legitimate claims.

The class never has to be certified. No self-respecting lawyer will want to try a case in a county where the deck is totally stacked against his client. And so they settle.

Let us be clear, these are not truly local disputes.

S. 5 does nothing to remove local disputes from local courts. The suits we are talking about in Madison County and other jackpot jurisdictions are on behalf of nationwide classes of clients against corporations that do business in every State. Madison County is not chosen as the venue because of its quaint scenery. It is chosen because defendants in these class actions often do not get a fair shake in Madison County.

This is not a triumph of federalism and local decisionmaking. It is the evisceration of federalism and fairness. A bedrock principle of our federal system is that states are largely free to regulate their own particular affairs. To allow one State, in effect, to legislate for another is to violate an important principle of self-government that this country is built upon. Madison County has been flooded with class action claims and now the Nation is drowning in them. This is a classic case for Federal intervention. In fact, this is a case study for the type of intervention in Federal affairs the Constitution was meant to allow.

What happens in Madison County affects the whole country. The overwhelming majority of class actions filed in Madison County are nationwide lawsuits in which 99 percent of the class members live outside the county. As a result, decisions reached in Madison County courts affect consumers all over the country and the county's elected judges effectively set national policies on important commercial issues.

There is a place for personal injury law in the American justice system. I understand that. I am an attorney. I have tried many cases. I know that there is a legitimate and honest place for personal injury suits in our civil justice system. Americans have a sacred right to take their case to court when they are harmed by a person or product. Yet this right is seriously undermined by a seriously compromised class action regime. To help rescue it, we need to enact this reform. Today's lawyers do not take cases that come to them. They invent cases. They behave more like entrepreneurs than counsel, trying to find an issue and income stream before they find a plaintiff. They act like businessmen--the CEOs of Trial Lawyers, Incorporated.

The problem is that their business plan makes hash out of our system of impartial justice. It simply defies belief that county courts are the proper venue for multijurisdictional litigation. Some of the plaintiffs' bar have put a ``pay the lawyer first'' business model in motion in Madison County. First, find sympathetic judges. Then bankroll their campaigns. And to seal the deal, move the case through the system so fast that the defendants do not always get a fair opportunity to fully investigate the claim. Justice does demand fairness, but our system of decentralized class action litigation is fundamentally unfair to defendants, plaintiffs, and the average American who ends up footing the bill for the unjustified billion-dollar settlements.

If this were a board game, it would be ``Class Action Monopoly.'' Start at `Go', and come up with an idea for a lawsuit. Find a named plaintiff to pay off. Make allegations, no proof needed. Get out of rule 23, the Federal rule 23, free. Convince your magnet State court judge to certify the ``class.'' File copycat lawsuits in State courts all over the country. Sue as many companies in as many States possible even if they have no connection to the State.

Who gets the money? In the Columbia House case, $5 million for lawyers, discount coupons for plaintiffs. In the Blockbuster case, $9.25 million for lawyers, free movie coupons for plaintiffs. In the Bank of Boston case, $8.5 million for lawyers; some claimants even had to pay themselves.

But ``What happens to me?'' Your employer takes a hit, maybe lays you off. Your health and car insurance premiums go up. And we are all familiar with that. The lawyers win, you lose. This game gets pretty old, pretty quick. But this is this jackpot monopoly system we have in Madison County, and a whole bunch of jackpot jurisdictions in this country.

Now, the Class Action Fairness Act is an important but modest reform. It does not deprive substantive legal rights to any American. All it does is make it easier to put these national cases where they belong, and that is in our Federal courts.

According to one study, 98 of the 113 class actions filed in Madison County from 1998 to early 2002 could have been moved to Federal court under this legislation. Justice demands that we act. We cannot play around with this any more. Those who are injured will get

their day in court, but it will be Federal court, with sophisticated judges who are appointed for life, who have no reason to be unfair. By voting for S. 5, we will help make sure they get it in a court where justice can be dispensed.

I yield the floor to the distinguished Senator from Wisconsin.

Mr. President, I rise in opposition to the amendment offered by my colleague from Arkansas. At best, this amendment is unnecessary. At worst, it will create a loophole that some enterprising plaintiffs' lawyers will surely manipulate in order to keep their lucrative class action lawsuits in State court.

Before I go into more details about the problems with the amendment, I would like to point out that the National Association of Attorneys General does not endorse this measure, nor has it pushed for its inclusion in the class action bill. One would expect that if the current bill somehow impairs the ability of State attorneys general to bring lawsuits on behalf of their citizens, we would have a position from them by now. But we do not, and the association's silence speaks volumes about the merits of this amendment.

Let me first note that this amendment, which excludes from the scope of this legislation any ``civil action brought by or on behalf of, the Attorney General of any State,'' is unnecessary. Let me explain why.

State attorneys general have authority under the laws of every State in this country to bring enforcement actions to protect their citizens. These suits, known commonly as parens patriae cases, are similar to class actions to the extent that the attorney general represents a large group of people.

But let me be perfectly clear that they are not class actions.

There is no certification process, there are no representative class members named in the complaint, and plaintiffs' attorneys who stand to gain millions of dollars in fees. Rather, they are unique lawsuits authorized under State constitutions or State statutes that are brought on behalf of the citizenry of a particular State. These actions are brought typically in consumer protection matters under State law and usually involve local disputes. As such, S. 5 in no way affects these lawsuits.

To underscore, I direct my colleagues to section 1711(2) of the bill which explicitly defines a ``class action'' to mean any civil action filed in a district court of the United States under rule

23 of the Federal Rules of Civil Procedure, or any civil action that is removed to a district court of the United States that was originally filed under a State or rule of judicial procedure authorizing an action to be brought by one or more representatives as a class action.

This statutory definition makes it perfectly clear that the bill applies only to class actions, and not parens patriae actions. Class actions being those lawsuits filed in Federal district court under rule 23 of the Federal rules of civil procedure or lawsuits brought in State court as a class action. Neither of these conditions are met when compared to the nature of a parens patriae action, and consequently, are excluded from the reach of this bill.

What I think the proponents of this amendment are really concerned about is the impact of this bill on State attorneys general if they choose to pursue an action other than a parens patriae action. But this possibility does not make this amendment necessary.

First, attorneys general are not required to use class actions to enforce their State laws and protect their citizens. To the contrary, their main weapon has been, and continues to be, the parens patriae action authorized under State statute.

Second, this legislation has been carefully crafted to distinguish between truly local suits and those that involve national issues. Thus, if an attorney general brings a class action, and that class action involves matters of truly local concern, it will certainly fall under one of the bill's exceptions. On the other hand, if the lawsuit is aimed at an out-of-State corporation for conduct that affects citizens in multiple States, or if the lawsuit is interstate in nature, then that suit should be removed to Federal court. Removal of such a case is particularly appropriate because there would likely be similar suits brought in a number of courts, and one of the central purposes of this legislation is to promote judicial efficiency and fairness by allowing copy-cat class actions to be coordinated in one Federal proceeding.

As I noted earlier, this amendment is not only unnecessary, it actually creates opportunities for gaming. If this legislation enables State attorneys general to keep all class actions in State court, it will not take long for plaintiffs' lawyers to figure out that all they need to do to avoid the impact of S. 5 is to persuade a State attorney general to simply lend the name of his or her office to a private class action. In other words, plaintiffs' lawyers will try to keep interstate class actions in State court by simply naming that State's attorney general at the end of complaint as a cocounsel or of-counsel. Undoubtedly, we will see arguments that if an attorney general merely sends in a letter saying that he/she is sympathetic 10 the action, the lawsuit will be exempt from the bill's provisions. I think this is the very type of forum shopping that S. 5 is supposed to eliminate and we should not be encouraging it now.

Indeed, to give the potential gaming some real life perspective, I direct your attention, Mr. President, to an article from the Boston Globe which reports that the Massachusetts attorney general had made arrangements with private plaintiffs' attorneys to prosecute a consumer-oriented class action against the drug store chain Walgreens. Under the arrangement, the plaintiffs lawyers pocketed hefty fees while the state AG's office received a portion of the settlement money.

But the article reports that this privatization arrangement has drawn criticism because the settlement did very little to benefit consumers. The article reports that too little of the settlement money actually went to consumers, but rather to groups such as Public Citizen, the American Lung Association, and Massachusetts Bar Association. Perhaps more troubling about the article is the alleged campaign contribution ties between the private attorneys who prosecuted these cases and the State attorney general office.

Given the close ties between this State AG and private attorneys, I find that this amendment will only encourage these types of arrangements in the future that do not benefit consumers.

We do not want to risk creating a situation in which State attorneys general can be used as pawns so that class action lawyers can remain in one of their magic jurisdictions and avoid the import of this bill. S. 5 would put an end to class action reform without diminishing in any way the ability of State attorneys general to discharge their duty to protect their citizens--and to do so in State court. I urge my colleagues to vote against this amendment.

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

Mr. President, I would like to take a moment to demonstrate just how out of balance the class action has become and to underscore why we need to get this bill passed.

Before I do, I want to make it clear that I do not object to class lawsuits. Legitimate class action lawsuits are helpful, when they are legitimate, when there is a good cause of action, when people really have been abused.

Legitimate cause of actions do not have to seek out these favorable jurisdictions where the law is stacked against the defendants, which is what this bill helps to cure. When they are legitimate and brought in the best interest of the class members, class action lawsuits are a vital part of our judicial system. They can serve as a means to ensure that injured parties who might otherwise go unrepresented have the opportunity to have their injuries redressed.

However, in recent years we have witnessed a disturbing trend where some lawyers are bringing and settling class action lawsuits in which the chief interests actually being served appear to be those of the lawyers and not the people for whom they are bringing the actions. Too often the plaintiffs' attorneys recover millions of dollars in attorney's fees while the class action members get little more than a coupon, if that.

While we must acknowledge that there have been a few isolated instances of abusive settlements in the Federal courts, these are the rare exception. By contrast, numerous examples of abusive class action settlements

originate from the State courts. As we have noted in the Judiciary Committee report in the 108th Congress, the Class Action Fairness Act is a ``modest, balanced bill to address some of the most egregious problems in class action practice.'' It is not, however ``intended to be a panacea that will correct all class action abuses.''

This bill is the result of intense bipartisan negotiations and is our best effort to address a problem that is pervading our State court system. Abuse of the class action system has reached a critical point, and it is time that we as a legislative body address the problem. The public is increasingly aware of the system's unfairness. News programs, such as ABC's ``20/20,'' have covered the rise in class action jurisdictions in certain magnet jurisdictions, magnet meaning jurisdictions where these extortionate suits are brought because they can get a tremendous advantage regardless of whether they are right or wrong.

Scores of editorials have called for actions in newspapers all across this country. Abuse of the class action system has even become the inspiration for popular literature. In 2003, the author, John Grisham, released a book entitled ``The King of Torts.'' Grisham's novel takes its reader into the world of the mass tort/class action lawyer where clients are treated like chattel and bargaining chips. The value of a potential action is not measured by the merit of the claim but on the number of class members that can be rounded up. The end game is not the pursuit of justice for the class members and clients, but in the pursuit of a hefty attorney's fee.

Although Grisham's book is intended as fiction, it is hard to distinguish it from the facts of our broken class action system.

Let me read a few passages:

Nobody earns ten million dollars in six months. . . . You

might win it, steal it, or have it drop out of the sky, but

nobody earns money like that. It's ridiculous and obscene.

Now this quote may come from a fictional story, but it is too often too close to the truth. This short novel written by Grisham demonstrates the problems with our class action system all too well. As his book shows, with drug manufacturers the sad but inevitable fact is that people are injured every day in this country by products they buy, and justice does require that they receive just compensation for their injuries.

Frequently, class actions are the best way to compensate large groups of injured consumers. Yet, Grisham's novel, ``The King of Torts,'' also shows that the financial reward of a settlement is so great that the class action system has attracted a small group of unscrupulous lawyers who will do anything, say anything, and sue anything or anybody--not to help their clients but to line their own pockets.

We keep hearing this is not a crisis, that not everyone is gaming the system. Everyone in this body knows, however, that a few bad apples can spoil the bunch. In this case, these few lawyers are hurting our civil justice system. This reform is one small step toward restoring some balance to that system. What I have read in this work of fiction is too often fact today. Everybody knows it. Without question, many of today's class actions are nothing more than business opportunities for some lawyers to strike it rich and too often they have little, if anything, to do with fairly compensating the injured class members.

Some law firms make no secret of this. One law firm actually states on its Web site that it has brought over 24 nationwide class actions in Madison County, IL, a court notorious for approving settlements that benefit the lawyers, and that it specializes in class actions that seek less than $500 in damages for class members. Plaintiffs beware.

I am told, for example, of a law firm that explicitly acknowledges that the more potential class members there are to a claim, the more the case is worth their while. Specifically, the ``frequently asked questions'' section of their firm's Web site states:

More claimants means greater potential liability for

defendants. Because there is greater potential liability,

these lawsuits become worthwhile for lawyers to prosecute on

a contingent-fee basis.

Worthwhile, indeed. Worthwhile for the lawyers.

A small handful of wealthy lawyers is profiting from the class action system. According to an article appearing in the 2001-2002 edition of the Harvard Journal of Law and Public Policy five firms accounted for nearly half of the class action lawsuits filed in Madison County, IL, and Jefferson County, TX.

Of the lawsuits filed in these districts, many allege the same causes of action, represent the same class of plaintiffs that are brought against many of the same parties within an industry.

While these lawyers might have something to gain, the same cannot clearly be said with respect to plaintiffs, consumers, and those employed by defendant companies, who lose their jobs as a result of these types of lawsuits.

It is evident that a few key courts have been singled out by a small group of legal players in the class action world. This point is reinforced by a 2003 study conducted by the Institute for Civil Justice/RAND and funded jointly by the plaintiffs and defense bar to determine who gets the money in class action settlements. The study found that in State court consumer class settlements, it is the class counsel and not their clients who often walk away with a disproportionate share of the settlement.

What do their clients get? Well, quite simply, not enough. I believe that the many hard-working and honest class action lawyers should be compensated for their hard work and efforts. The overwhelming number of lawyers are honorable people. They are honest. They are hard working. Only a few are causing the lion's share of trouble. The majority of the honest ones are not searching for jackpot jurisdictions where the judges and the lawyers are in cahoots and somehow always find against the defendants.

I also believe such compensation should be reconcilable with a fair recovery for the client. I have supported large recovery for trial lawyers when I thought it was justified. Quite honestly, it is simply not right when our judicial system allows lawyers to walk away with millions of dollars while in some cases their clients walk away with nothing more than a coupon good toward a future purchase of the very product that was the subject matter of the class action to begin with.

I do not know about my colleagues, but when I have a problem with a product, sometimes the last thing I want to do is buy that product or have anything to do with the company or firm that makes that particular product. Frankly, keep your coupon and show me the money. If the coupons were so good, one would expect the lawyers would request that they be paid in coupons, not money.

In real life, we are too often reminded of the legendary fictional case Jarndyce v. Jarndyce of Charles Dickens' ``Bleak House'' in which legal fees ate up the whole estate so that the intended beneficiaries could not benefit.

Consider the case of Degradi v. KB Holdings, Inc., in Cook County, IL. The suit alleged that KB Toys, one of the Nation's largest toy retailers, engaged in deceptive pricing practices in some of their products. Specifically, the suit alleged that the prices of certain products were marked to appear reduced when in fact the apparently reduced price was the market price.

In the settlement with KB Toys over these allegedly deceptive pricing practices, the toy store paid attorney's fees and costs of $1 million and not one dime of cash to class members. As part of the settlement, the store held an unadvertised 30-percent-off sale on selected products. That is laughable. Under the terms of the settlement agreement, the toy retailer agreed to offer a 30-percent discount on selected products between October 8 and October 14, 2003. In other words, they held a week-long sale that was not even publicly advertised. By the time most of the class members learned about the sale, their opportunity to recover under the terms of the settlement had passed.

In fact, an independent analyst stated that KB Toys would likely benefit from the settlement because they were driving traffic. What did the class counsel get? They got $1 million. Good work if one can get it, but not necessarily a good outcome for their clients.

Then there was the 1998 class action filed in Fulton County, GA, alleging

that Coca-Cola improperly added sweeteners to apple juice. In this Coca-Cola case, in the settlement of a class action lawsuit alleging that Coca-Cola improperly added sweeteners to apple juice, it was the lawyers who got a sweet deal--$1.5 million in fees and costs. Unfortunately, class members came up empty again, receiving 50-cent coupons but no cash. So each of them got 50-cent coupons while the lawyers walked away with $1.5 million in attorney's fees.

As my colleagues know, I am a lawyer. In my practice, I represented both plaintiffs and defendants. I have watched some of the greatest lawyers appear in court when I started to practice law in Pittsburgh, PA, such as James McArdle. When Jimmy McArdle tried a case, the courtroom was always filled with young and old lawyers who wanted to watch a master at work. He brought one of the first cases against the tobacco industry.

He lost that one, but it was the case that paved the way to clean up the tobacco industry in this country.

I supported many of the tobacco class action lawyers because I thought what they did was in the best interests of their clients and the American public. But this current class action system is out of whack and needs to be fixed. I understand many of these classes are comprised of hundreds if not thousands of members, and I do not begrudge class action attorneys a reasonable fee award. But when the class member gets a 50-cent coupon and the lawyers get $1.5 million because the company has to settle rather than take a chance of going on and getting killed in a forum-shopped court, then you can see why I am upset about this.

There is also the case of Scott v. Blockbuster, Inc. Blockbuster Video was named as a defendant in 23 class action lawsuits brought by consumers, alleging that they were charged excessive late movie return fees. In 2001, Blockbuster agreed to enter into a settlement agreement. Under the terms of the settlement, which was approved by a Jefferson County, TX, State court, the class attorneys received approximately $9.25 million in attorney's fees while the class members received--you guessed it--coupons. Each class member got a $1-off, or buy one get one free coupon. Experts have predicted only 20 percent of the class members will even redeem these coupons.

I am pleased the bill before us at least ties legal fees to the actual amount of redeemed coupons. If only 1,000 people redeem those $1 coupons, the attorneys would be entitled to a percentage of that $1,000 but not $9.25 million.

I have described a few of the many class action settlements streaming out of our State court system. Many State courts appear at times to be nothing more than rubberstamps for the lawyers' proposed settlement agreements. This is not civil justice.

In that Jefferson County case, the company, Blockbuster, had to settle. They could not risk going to trial in that particular jurisdiction because of the outrageous verdicts that are granted by jurors who appear to be compromised.

This is akin to legalized extortion. Too often it appears that the chief interests served by these settlements are those of the class counsel and not the class members. This bill does not prevent class action suits, but it does stop some of these excesses.

The Class Action Fairness Act would alleviate many of the problems present in the current class action system by allowing truly national class actions to be filed in or removed to Federal court. Some of our colleagues have indicated the consumer will be lost here because they will not be able to bring these cases. Give me a break. Of course they will be able to bring these cases. But they have to be brought in a legitimate way, in Federal court where it is much less likely that they will be hammered by political judges who are in cahoots with the plaintiffs' lawyers in that jurisdiction. Federal courts as a general rule will adequately dispense justice in these matters. So the suits can be brought. This will level the playing field that has become tilted in many jurisdictions in the last few years.

It also reforms the way Federal courts would approve proposed settlements with basic requirements such as a hearing and a finding by the court that the settlement is fair, reasonable, and adequate.

This is the second time the Class Action Fairness Act has come to the Senate floor, but we have been working on it for 6 years. When we failed to achieve cloture by one vote in the preceding Congress--by one vote we failed to achieve cloture--we sat down with several Democratic Senators to reach bipartisan agreement on a bill. We know it is difficult for them to work on this bill because the largest hard money contributor to Democrats in the Senate happens to be the American Trial Lawyers Association. Some people believe Democrats are owned by them. I do not believe that. I know there are many wonderful lawyers in the American Trial Lawyers Association. Most are decent, honorable people, and I know many of them. But there are some who are unscrupulous, and they are the ones who have been fighting this reform. And they have the means to do so since they have become billionaires as a result of these coupon cases won in jackpot jurisdictions.

The bill we are considering today is the result of all of these negotiations. S. 5, the Class Action Fairness Act of 2005, presents this Congress with an opportunity to correct some of the dubious practices currently found in the class action system, and to protect the average consumer.

The first response I have is that this amendment is based on a faulty premise. Federal courts do not have a hard and fast rule against certifying multistate class actions. Rather, both Federal and State courts conduct a fair, full inquiry before certifying a class, to ensure that common legal issues predominate, as required by the Federal rule governing class actions. Put simply, this Bingaman-Feinstein amendment, as amended by Senator Feinstein, would toss State laws and procedural fairness out the window for the sake of allowing nationwide class actions. It would reverse nearly 70 years of established Supreme Court case law that requires Federal courts to apply the proper State laws when they hear claims between citizens of different States.

It would reverse numerous decisions by State supreme courts rejecting the application of one State's laws to class action claims that arise in 50 States, and it would seriously undermine the ability of plaintiffs and defendants alike to have a fair trial.

Most importantly, it would have the perverse effect of perpetuating the very magnet court abuses that this legislation seeks to end. The reason for this requirement is self-evident. The whole point of a class action is to resolve a large number of similar claims at the same time. If the differences among class members' legal claims are too great, a class trial will not be fair or practical. In some circumstances, Federal courts have found that the law of different States was sufficiently similar that a class could go forward. In other cases, they have found that the differences were too great to have a fair class trial.

The proposed amendment would take away the discretion of Federal judges to make these important decisions. It is as though we do not trust our Federal judges. In this case, we can trust them.

Proponents of the amendment conveniently ignore the fact that Federal law in this issue is quite consistent with the approach taken by numerous State supreme courts which have refused to certify cases where the differences in State law would make it impossible to have a fair and manageable trial.

In fact, the proposed amendment would reverse decisions by the Supreme Courts of California, Texas, New York, and numerous other States that have rejected nationwide class actions under such circumstances.

Second of all, Federal courts already use subclassing where appropriate. Subclassing basically means dividing a class into a couple of smaller classes whose claims are similar. Rule 23 of the Federal Rules of Civil Procedure, the nearly 40-year-old rule governing class actions, explicitly gives courts the option to use subclasses to account for variations in a class as long as the class would still be manageable and fair--for example, if a case involves State law that can easily be divided into three or four groups, subclassing would be appropriate if the trial would otherwise be manageable. At the same time, if subclassing were used in every

situation that involves different State laws, in some cases there would be so many subclasses that it would be impossible to have a manageable or even a fair trial.

Under current law, Federal judges have discretion to decide when subclassing makes sense.

This approach is working. Why would we change it?

The amendment not only changes it but makes it even worse.

Finally, the amendment would hurt consumers by subverting State law. The proposed amendment suggests that if subclassing will not work, the courts should simply respect State laws to the extent practical. What does that mean? How does a court partially carry out a State law? Judges are responsible for carrying out the law, period--not for carrying out the law to the extent practical.

By suggesting the Federal courts should ignore variations in State laws when respected State law is impractical, this provision would perpetuate the very problem that the class action bill is trying to fix. For example, in the notorious Avery vs. State Farm case, a county judge applied Illinois law to claims that arose throughout the country, ruling that insurers could not use aftermarket parts in making auto accident repairs even though several States had passed laws encouraging and even requiring the use of these more economical parts to keep down the costs of insurance premiums. The approach taken by the Avery judge--condoned by the proposed amendment--hurts consumers by denying them the protection of their State laws.

Some State legislatures have adopted particularly strong laws in certain areas because their citizens have expressed strong feelings about those issues--for example, privacy or consumer fraud. Under this amendment, citizens of such States will not be entitled to the protection of their States laws in nationwide class actions. Instead, their claims will be subject to some compromise law created by a judge who allowed for a class action trial. That is not justice. That is not good law. That is not a good way to approach things. That is not good procedure.

For all of these reasons I urge our colleagues to vote against the Bingaman-Feinstein amendment and keep this bill intact. We also know that should that amendment pass, this bill is dead. One more time, it will be dead. I hope we have enough Senators who realize the importance of getting this bill through and getting these egregious harms straightened out to pass this bill without amendment.

Let me refer one more time to Dickie Scruggs' comments which he made at a luncheon--``Asbestos for Lunch''--which was a panel discussion at the Prudential Securities Financial Research and Regulatory Conference on June 11, 2002, in New York.

I happen to admire Dickie Scruggs. He is very sharp. He is smart. He has made a billion dollars from practicing law, and I think he has made it legitimately--mainly in the tobacco cases. I have worked very closely with the attorneys in those cases. I have a lot of respect for him. He is an honest man.

When this honest man, a top trial lawyer, one of the best in the country, who is a plaintiffs' lawyer, who has brought class actions, who understands the whole system better than those lawyers, says this, I think we ought to pay attention to it. Here is what he said at that luncheon, and he is one of the leading plaintiffs' lawyers in the country. He said:

[w]hat I call the ``magic jurisdictions'' . . . [is] where

the judiciary is elected with verdict money.

What does he mean by that? He means the attorneys make so much money that they in turn can give a small percentage of that money to these judges so they can get elected and reelected. So there is an interest in the courts in making sure the attorneys make a lot of money so they can get their share to be reelected.

Let me start at the beginning again. It is best heard in full. Here is what Dickie Scruggs said:

[W]hat I call the ``magic jurisdictions, . . . [is] where the

judiciary is elected with verdict money. The trial lawyers

have established relationships with the judges that are

elected; they're State Court judges; they're popul[ists].

They've got large populations of voters who are in on the

deal, they're getting their [piece] in many cases. And so,

it's a political force in their jurisdiction, and it's almost

impossible to get a fair trial if you're a defendant in some

of these places. The plaintiff lawyer walks in there and

writes the number on the blackboard, and the first juror

meets the last one coming out the door with that amount of

money . . . The cases are not won in the courtroom. They're

won on the back roads long before the case goes to trial. Any

lawyer fresh out of law school can walk in there and win the

case, so it doesn't matter what the evidence or the law is.

He said it better than anybody on this floor has said it. And he is a trial lawyer. He said it is almost impossible to get a fair trial if you are a defendant in some of these places. He is talking about Madison County, IL, Jefferson County, TX, jurisdictions in Mississippi, and other jurisdictions throughout the country. I do not want to name them all. The fact is that is what he is talking about. It is impossible to get a fair trial.

I wonder. I have heard my colleagues come on the Senate floor and say there were only two cases a year in Madison County. Come on. That ignores all the threatened cases, demand letters, and settled cases for what are basically defense costs--whatever it costs the company to hire their law firm to defend them because they cannot afford to go to a verdict in that particular jurisdiction because that verdict money is what supports the judges to begin with. They are as interested as anybody in making sure that those verdicts are big, even if they are unjust.

That is what this is all about--and the Bingaman amendment, as amended by my dear friend, Senator Feinstein from California, continues to perpetuate this system.

This is not an overwhelming antilawyer bill. This is not an overwhelming bill that takes away consumers' rights. In fact, it is not a bill that takes away consumers' rights at all. This is not a bill that is unfair. This is a bill that will straighten out these egregious, wrongful actions by some of these jurisdictions by putting these important cases in courts where it is much more likely that justice will prevail. That is what this bill does. It will not prevent anybody from suing. It will not prevent anybody from recovering. It is just that these cases will be tried in Federal jurisdictions in these very prestigious Federal courts, as they should be because of the diversity problems that are presented by these cases, and it is much more likely that we will have less fraud, less unfairness, less jackpot justice in the Federal courts than lawyers are allowed to forum shop them in remote counties with little attachment to the parties.

I suggest the absence of a quorum.

Mr. President, I send an amendment to the desk and ask for its immediate consideration.

Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. President, I rise to offer an amendment to S. 5, the Class

Action Fairness Act of 2005, to ensure that State attorneys general elected by the people of their States as the chief law enforcement officer will still be able to do their business and protect the people of their States.

My amendment simply clarifies that State attorneys general should be exempt from S. 5 and be allowed to pursue their individual State's interests as determined by themselves and not by the Federal Government.

I know that S. 5 is intended to fix problems around class action law in America, and I think most agree that the attorneys general are not part of the problem. In the simplest terms, this amendment allows them to seek State remedies to State problems. I hope we can all agree infringement on State rights should not be a result of this bill.

I believe class actions remain an important tool for enforcing shareholder and employee rights, for cracking down on telemarketing fraud in attempts to prey on the elderly, and in forcing companies to improve product safety both in the manufacture of unreasonably dangerous products and in drugs. We need to make sure class action reform does not unnecessarily restrict the ability of citizens to seek redress for legitimate claims.

While we all may not agree with those in Congress that we need to improve the class action process, we should all agree that it should not be done by shutting State attorneys general out of the system. I believe to do so would circumvent the intent of our Founding Fathers in recognizing that State sovereignty should not be dismissed by Federal action so easily. To that end, I offer this amendment in an attempt to quash ambiguity about the authority of State attorneys general that may exist in this bill.

It should be known that this commonsense amendment in no way impairs the class action reforms as intended in this bill, nor does it in any way expand the authority of State attorneys general. What this amendment does is clarify the existing authority of State attorneys general.

I have heard in the hallways, and as I have gone through the corridors in the Senate in the last few days, that there are some who do not want any amendments to this bill. This amendment, if accepted, I believe is very consistent with the intent of the bill. I believe the authors of the bill did not intend to shut out State attorneys general. So even though some do not want amendments--I think we ought to consider all amendments; some of the amendments are very worthy of consideration. Although some do not want amendments, I think they can vote for this with a clear conscience that this will not change the intent of the bill.

I am a former State attorney general. I understand the important work they do for consumers and the most vulnerable in our society. It is not just my opinion that this amendment is needed. I offer this amendment on behalf of a bipartisan group of 46 State attorneys general who have expressed that it is critically important to all their constituents, especially the poor, elderly, and disabled, that provisions in this legislation be clarified so as not to compromise the traditional law enforcement authority.

I have a letter. Interestingly enough, in the first paragraph of the letter, it says--and these are 46 State attorneys general:

We take no position on the act as a general matter and,

indeed, there are differing views among us on the policy

judgments reflected in the act.

This is very clear. The attorneys general are split on the underlying act, but they are not split on their authority being called into question with this act.

They say:

Clarifying the act does not apply to and would have no

effect on actions brought by State attorneys general on

behalf of their respective States and citizens.

I want to talk in just a minute about how State attorneys general are different from private sector lawyers. I will get to that in a minute.

I ask unanimous consent to print in the Record this letter signed by 46 State attorneys general, Democrats and Republicans, collectively representing more than 90 percent of the country, who are very concerned that this legislation as it is written will stop them from doing an important part of their jobs.

Mr. President, I have served with some of these attorneys general, and I can say they come from different ideological points of view and different ways of practicing law. As a whole, they are not taking a position on the bill, but as you can see by this letter, the vast majority of State AGs agree on one point: As the chief legal officers for their respective States, there must be clarification in the bill to make sure they can continue to represent the citizens of their States and carry out their duties as elected officials.

As we all know, attorneys general frequently investigate and bring actions against defendants who have caused harm to their citizens. These cases are usually brought pursuant to the attorneys general parens patriae authority under their respective consumer protection and antitrust statutes. This is an important point. Not all States have parens patriae authority. In fact, the State of Arkansas, when I was attorney general, had very limited parens patriae. In fact, one could argue none at all. We always had to pursue our actions under the Deceptive Trade Practices Act, which is a State statute, and we had specific authority in that statute.

I heard some people say, again, in the hallways here, that all States have parens patriae and therefore we do not need this amendment. But that is not the case. In some instances, such actions have been brought with the attorney general acting as the class representative for consumers in the State. It is my concern, as well as those of 46 attorneys general, that certain provisions in S. 5 might be interpreted to hamper their ability to bring such actions, thereby impeding one means of protecting their citizens from unlawful activity and resulting harm.

It is important to all consumers, but especially to the poor, elderly, and disabled, that the provisions of the act not be misconstrued and that attorneys general maintain the enforcement authority needed to protect them from illegal practices.

I know there are many people who want this body to pass class action reform this year and do not want to ruin its chances by adding too many amendments to the underlying bill. But, as I said a few moments ago, in this case, with this particular amendment, we are not changing the intent of the bill.

I would like to address a falsehood about the amendment that I have heard, and that is that some people have said this amendment would create a major loophole because suits could be brought on behalf of State attorneys general, that some attorneys general may allow their friends to use their names to avoid moving the case to Federal court.

The notion is incorrect and, quite frankly, it is offensive. Let me be clear.

No one can add a State attorney general without his or her express consent or permission. Moreover, attorneys general are statewide elected officials accountable to the same citizens who vote for us. They work hard and take their responsibility as chief legal officers very seriously. State attorneys general would not expend the resources or their reputations to take up a class action they did not believe was worthy of protecting their citizens.

In addition, it should be noted that in many cases, attorneys general are not after the check or the payment in litigation. They are not eyeing the big settlement, although in some cases there are large settlements at the end of the horizon. The primary objective of State attorneys general is not chasing the money but bringing about reform.

Let me be clear on this point. I alluded to this a few moments ago. State attorneys general are fundamentally different from private attorneys. Private attorneys have clients, and they are out there doing what their clients want: trying to get a recovery and trying to make their clients whole. I understand that. That is a good thing. I do not have any problem with that.

State attorneys general are different. Generally speaking--maybe not in every single case but generally speaking, when the State attorney general becomes involved, there is a matter of public policy in the litigation. In fact, I said a few moments ago that the State attorneys general are elected officials. That is not true in every single case. I think there are about 35 elected attorneys general. There are a couple selected by the supreme court or by the State legislature, and some are appointed by the Governor.

Nonetheless, attorneys general have a level of accountability that you do not find in private practice because they are accountable to the people, either the people who elected them or appointed them or selected them for the office. And attorneys general, more than private lawyers, are sensitive to criticism.

I can assure you, the last thing an attorney general wants to read is an opinion by a judge who is criticizing the attorney general for bringing a frivolous lawsuit, criticizing the attorney general for going too far. That is the last thing the attorney general wants to read in the paper.

Also, there is the court of public opinion. The attorney general does not like bad editorials to be written about him or her. They do not like to be out on the street and people questioning their integrity or their sense. So attorneys general have a level of accountability that just does not exist in other areas of practice.

That is an important distinction. As I mentioned a few moments ago, normally cases brought by States involve a matter of public policy, and we can go through a long list of cases and show where the public policy is in the cases and also show how a lot of these cases would not be profitable for the private sector to bring.

Oftentimes there is a matter of fairness and not a matter of money involved in these cases. There are several major examples where State attorneys general have filed a cause of action in State court to protect their citizens or bring reform. However, if we do not act to clarify S. 5, I am concerned this legislation would make it much harder for the attorneys general to do their jobs.

Back in the 1990s, the attorneys general around the country pooled together and sued the tobacco industry for reimbursement of State moneys as a result of disease brought about by smoking. I know in some quarters that is still a very controversial decision. Let me very respectfully remind the Congress that the Congress a year, two or three before this settlement occurred had the chance to enter into a federally mandated global settlement of all claims. That did not happen. The States pursued their case after the Congress failed to act.

This tobacco case resulted in a historic global settlement that drastically altered the way our Nation views and approaches smoking. Money from these settlements was used by the States for youth smoking prevention, to improve health care, educate citizens on the dangers of smoking, and an increased level of treatment for smoking-related illnesses. My State of Arkansas has spent every penny of the tobacco money it has received on health-related issues--every single penny.

Back to the point about the difference in the private sector attorney representing the individual or representing a class versus the attorney general representing the State's interest and the citizens of the State, when you look at the settlement agreement between the tobacco companies and the State, if I recall right, it was about 147 pages long. It was very detailed, very negotiated, a very hard-to-reach settlement.

I believe it was 147 pages long without the attachments, and 91 of those pages, that is two-thirds of the pages approximately, were about the public policy and changing the tobacco industry's practices. Here again, in private litigation it is about getting recovery for one's client, and we understand that, but when the attorney general is involved it is a materially different type of litigation.

I have never seen a private settlement in which two-thirds of the settlement document requires the industry

or the company to change its practices, but that is the type of litigation the attorneys general enter into.

Each State in the tobacco case filed individual suits in their respective State's court alleging fraud. In our particular State, we alleged the Deceptive Trade Practices Act violations and also a number of common law claims. Due to the nature of the claims, if this legislation as it is written would have existed at the time of this case, it may have presented hurdles to the attorneys general that could have prevented a resolution.

In 2001, several State attorneys general took on Ford and Firestone for failure to disclose defects in Firestone tires used on Ford SUVs, of which they should have been aware. These cases were brought again in Arkansas, and other States have similar laws, under our State's Deceptive Trade Practices Act, fraud and consumer protection laws.

Let us make this point in another case. In private causes of action, and there were many relating to the Ford and the Firestone litigation, the parties' and the lawyers' primary concern was trying to make the plaintiffs whole. That is the nature of that type of litigation.

In the attorney general actions, we established a restitution fund and a long series of injunctions against the companies in the way they marketed their products. In fact, some people may have noticed they have seen some new Ford Explorer ads on television in recent weeks. These Ford Explorer ads are due to the attorney general lawsuit, and they deal with the safety of Ford Explorers. All this goes back to the way Ford Explorers were marketed originally. The buyers bought them thinking they were safe under pretty much all conditions, but practice has taught us differently. So I make that point one more time to show how different State litigation is versus private litigation.

Ultimately, the Ford case was settled. However, had these States been required to file separate State cases under their own consumer protection laws, as could be required under this class action bill, those States would have been removed to Federal court. The Federal court would then have been required to become an expert in each State's diverse consumer laws and remedies.

State litigation is different from private litigation, and I think to some degree this amendment is a matter of States rights. In 2000, 26 attorneys general from 26 States brought suit against Publishers Clearinghouse claiming that the company was intentionally preying on the elderly by misrepresenting their sweepstakes award. My colleagues may remember that for years people used to get mail with pictures of celebrities, and in big bold letters it would have your name and say: You have won X number of millions of dollars. Or it would say: Congratulations, millionaire.

Think about it. We do not get those letters anymore. Why? Because the States intervened. The States came in under consumer protection laws and looked at how deceptive those ads were. In fact, in Arkansas when I was in the attorney general's office I would talk to an adult child of a deceased person or an adult child who had put their parents in a nursing home and they would clean out the closets and the living room or whatever and they would find stacks and stacks of magazines that had been ordered through these sweepstakes companies.

Even if one reads everything in great detail, they would find in the fine print that ordering does not increase their chances of winning. Most people do not read all the fine print. Most people thought that ordering did increase their chance of winning, and what happened was people would order the same magazine. People would tell me they would find 10 copies of the same Sports Illustrated or 10 copies of the same Newsweek or Good Housekeeping because these senior citizens ordered to try to win the sweepstakes.

It is sad and unfortunate, but they saw this as a chance they were willing to take to leave a lot of money to their children and grandchildren. So we came in as States and put a stop to that. I think it was 26 States that banded together and put a stop to that.

It was alleged that Publishers Clearinghouse was profiting from this fraud at the expense of the vulnerable elderly. I can recall that these individuals had spent their life savings on these fraudulent sweepstakes. When we got inside of the cases, we found many seniors in Arkansas who had spent hundreds, maybe thousands of dollars trying to win sweepstakes.

Is there someone here who thinks the actions of the attorneys general are out of step with common sense and fairness? In this bill we should make sure we do not take away any existing authority of the attorneys general.

These are just a few examples of the very hard and worthy work by the State attorneys general where they are trying to protect the citizens of their States. I challenge my colleagues to deem the work they do as frivolous or as junk lawsuits because attorneys general around the country have a layer of accountability that does not exist elsewhere. They are accountable to the people. They are accountable to the legislature that makes their budgets. They are accountable to the Governor. They are accountable in the court of public opinion.

I ask my colleagues to support this amendment to this bill for several reasons. One is that the overwhelming majority of State attorneys general, our States' chief legal officers, are concerned about the language of this bill, and we should be concerned about it. Remember, these attorneys general represent the citizens in all of our States. They try to get out there and do the right thing for their citizens.

Secondly, by making this change, we are not obstructing the intent of the bill, but I believe very strongly we are clarifying the authority that already exists.

Third, we should allow our attorneys general to seek State remedies to State problems. I think this is an important piece of this. It goes back to States rights. It goes back to local control and people trying to do things the way they want to handle them in their own States.

So I implore all of my colleagues who are champions of States rights or who want to protect the integrity of the bill and want to leave the tools that currently exist with the State attorneys general, to vote for this amendment.

I yield the floor.

I thank my colleagues for their attention to this amendment. I am encouraged in one way because I know they have spent time with the amendment and studied it, analyzed it. What encourages me is all four who spoke against this--in fact, every Senator who spoke against the amendment--have said that this bill as currently drafted will not alter or limit the existing rights of any State attorney general. That is very good news.

I don't agree with that interpretation. In fact, there are 46 attorneys general, Democrats and Republicans from all over the country, who have written a letter saying they do not agree, or at least they have concern with that interpretation.

I hope when this law, if it passes, S. 5, is challenged, and it will be at some point or be litigated at some point, and a State attorney general tries to pursue some sort of action and there is a challenge saying the State cannot do it, I hope the courts will recognize the legislative history we developed today. The intention of this Senate and the conference is not to limit any existing rights or any existing abilities of the State attorneys general in pursuing cases they may deem appropriate to pursue.

In addition, a number of the opponents, maybe all, have focused on some language in the bill. We need to clarify that language so when we vote on this we will be able to vote from an informed position. The language is ``but does not include any civil action brought by or on behalf of any Attorney General.''

Chairman Grassley and others have pointed to that language and indicated they have some concern with that. I respect that concern.

Let me flesh that out, if I may. In virtually every State, and probably every State, the work of the attorney general's office is too large for one person to do. In other words, the AG himself or herself cannot sign every pleading, cannot attend every hearing, cannot participate in everything. They cannot do it. There are not enough hours in the day and the workload is too heavy. Again, I think every State law does this routinely. I don't know of any exception. What that means is every attorney general in America has an assistant attorney general or deputy attorney general or some other titled person in their office who every single day routinely does things on behalf of the attorney general. It has to be that way.

Under the laws of the States, the attorney general is the one who is ultimately responsible. When a pleading is signed, that signatory-- whichever deputy or assistant or attorney general it may be--that person is binding the State's attorney general to certain things in the pleadings.

The attorney general is the officer of the court. The attorney general has ethical responsibilities and ethical duties. I would argue that these ethical duties are above and beyond what is in the private practice of law because that lawyer, as the attorney general, is representing the State he or she was elected or selected to represent. Also, some are concerned that the phrase ``or on behalf of'' may mean that a private sector law firm could be retained by the State to pursue a matter. That is true. That is existing law today. And everybody has said the intention of S. 5 is not to limit or alter or change any authority of the States' attorneys general.

So all that is true. However, in every State I am aware of--I cannot promise this is true in every State, but in every State I am familiar with, there is a process which States' attorneys general have to go through in order to hire outside counsel. I think if we spent 30 minutes looking at various States and the needs of various States, probably 100 percent of the people in the Senate would understand that there may be cases where it might be appropriate to hire outside counsel under certain circumstances.

But there is a process. For example, in Arkansas, we had to go to the State legislature. We had to go to the State legislative committee and get approval to hire outside counsel. We also had to have the Governor sign off on the approval. So we had both the legislative and the executive branch signing off on that decision. Again, I cannot promise every State has that same process, but every one I am familiar with has some sort of process they go through and do that.

The United States is a union of States. We should not think of these attorneys general as attorneys. I tried to make this point several times. They are different than private practice attorneys. These attorneys represent the State. They are the mouthpiece for the State. They do the will of the legislature of the State in all of its various capacities.

Mr. President, may I ask how much time I have?

Mr. President, after the 15 seconds, what will happen? Can I ask unanimous consent to extend it for another, say, 10 minutes?

Thank you, Mr. President.

But the only point I was going to make on that is, we are a union of States. We should always see the States' attorneys general as being a little different than private sector lawyers. There is nothing wrong with private sector lawyers. Like I said many times during the course of this debate on this amendment, they are doing their job. They are representing their clients, and that is great and fantastic. That is the way the system works. But the State's attorney general does more. The State's attorney general has more responsibility. When they speak, they speak on behalf of the State. It is kind of like us being here in Washington. Certainly we are everyday citizens like everybody else, but we are elected to come here and represent our States in this great body.

So I will ask my colleagues to try to see States' attorneys general in a different light, in a materially different light, not a slightly different light but in a materially, substantially different light than you see your ordinary attorneys in private practice.

Like I said, some say this amendment is unnecessary because it honors the integrity of the bill. I like that in terms of legislative history. But I also say the counterargument there is: If it is unnecessary and if it does not change the impact of the bill, why not vote on it and allow the amendment to make sure we are all protecting the ability of our States to pursue litigation in the way they have always been able to do that.

Mr. President, I ask for the yeas and nays on my amendment.

Mr. President, I yield the floor.

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

Mr. President, I ask unanimous consent that I be able to speak for as much time as I consume in morning business.

Mr. President, something is happening in our Tax Code that very few people understand, and I wanted to call it to their attention.

There is something going on called repatriation, which is a $2 word that probably people won't understand. But I want to explain it.

Repatriation is a process by which U.S. companies that have moved some operations overseas, begun to manufacture and sell products overseas and made income overseas, are able to bring their profits back into this country.

When an American corporation makes a profit as a result of selling overseas, or producing overseas--we have something in this country called deferral in our tax law. It says you can defer paying taxes on your foreign profits as long as you don't bring them back into this country. But when you bring them back--which is called repatriation-- then you must pay taxes like everybody else does.

Let's take Huffy bicycle company, for example. The Huffy bicycle company made bicycles for almost 100 years in this country. They sold them in Wal-Mart, Sears, and Kmart. Huffy then shut down their plants in the United States, and got rid of their workers. Today Huffy bicycles are still sold in the United States but they are made in China for roughly 30 cents or 40 cents an hour labor by people who work 7 days a week, 10 to 12 hours a day. The company decided they should actually manufacture their bicycles in China and presumably make more money.

What happens to that income? We have a perverse and insidious provision in our tax law that says, shut your manufacturing plant, move those jobs overseas, and we will give you a deal. You don't have to pay taxes on the profits that you once made in the United States when you made that bicycle or the Radio Flyer little red wagon, which is now made in China, or the Newton cookies, but now earn on the same products made overseas until you bring those profits back to the United States. Only then do you have to pay taxes. That is the deal.

Whenever companies defer their tax obligation, they understand that when they repatriate the income to the U.S., they are going to have to pay taxes. But they got a special deal, as is always the case, it seems.

Last year a bill was passed with a tiny, little provision which was very controversial. I opposed the provision, but it got passed. The special deal is that the repatriation of income back into this country now by companies that earned that income overseas--in some cases by moving their American jobs overseas--now get to pay taxes at the 5\1/4\ percent tax rate.

What prompts me to come to the floor to talk about this, despite the fact I opposed this last year, was a New York Times article that says, ``Hitting the Tax Break Jackpot.''

Let me quote a part of it.

When Congress passed a one-time tax break on foreign

profits last fall, lawmakers said their main purpose was to

encourage American companies to build new operations and hire

more workers here at home. But as corporations are gearing up

to bring tens of billions of dollars back to the United

States this year, adding jobs is far from their highest

priority. Indeed, some companies say they might end up

cutting their workforces here in the U.S.

Hewlett-Packard, which has accumulated $14 billion in

profits and lobbied intensely for the tax break, announced

January 10 that it would continue to reduce its workforce

this year. That would come on top of more than 25,000 jobs

eliminated during the previous 3 years.

We have a provision in tax law now that says to these companies that have earned this money overseas, you deferred taxes on them previously, now you are going to bring them back. We encouraged them to bring them back. And, by the way, while all the other American people are working and paying income taxes--and, yes, those at the bottom of the ladder who pay income taxes pay the lowest rate of 10 percent but it is 10 percent, 15 percent, up to 35 percent, despite the fact everybody else is going to pay a higher rate of taxes--you repatriate those profits, and we will allow you to pay an income tax rate of 5\1/4\ percent.

There was a Governor of Texas named Ma Ferguson. Ma Ferguson became Governor of Texas, I believe, when her husband died. As Governor of Texas, Ma Ferguson got involved in a very controversial issue dealing with some sort of initiative in Texas about English only. She held a press conference. She held up a Bible. She said: If English is good enough for Jesus, it is good enough for Texas.

She didn't quite understand, I guess.

But the good enough concept is something we all talk about here. If the 5\1/4\ percent income tax rate is good enough for the biggest corporations in this country that have moved jobs overseas, and now bring profits back and get to pay 5\1/4\ percent, why is it not good enough for the Olsens, Johnsons, and the Larsens? Those are names from my hometown. Why is it not good enough for the people living down the street, or up the block, or on the farm who may pay multiples of this tax rate?

Let me show a chart. These companies aren't doing anything wrong. These companies are simply going to benefit handsomely from what this Congress did for them--to say to them: By the way, we will give you a very special deal. This is Exxon Mobil, IBM, Hewlett-Packard, Pepsi- Cola, and so on--unpatriated foreign earnings totaling tens of billions of dollars. And they get to pay income taxes at 5\1/4\ percent. That sounds like a sales tax, doesn't it? That sounds like a sales tax and not an income tax. But do average folks get to pay an income tax at 5\1/4\? No. Nobody else does.

It kind of reminds me Tom Paxton's old song. He seemed to be able to say it in kind of a simple way. He got all excited--this folksinger-- when the Congress gave a big, old loan to Chrysler Corporation. So he wrote a song saying, ``I'm Changing My Name to Chrysler.''

Oh the price of gold is rising out of sight, and the dollar

is in sorry shape tonight, what a dollar used to get us now

won't get a head of lettuce. No the economic forecast isn't

bright.

He says:

I'm changing my name to Chrysler. I am going down to

Washington, DC, I will tell some power broker, ``What you did

for Iacocca would be perfectly acceptable to me.''

Maybe he would want to write a couple more verses. Maybe he would like to pay income taxes at 5\1/4\ percent. Maybe every citizen of my home State of North Dakota would like to be able to pay a 5\1/4\ percent income tax rate.

If it is good enough for Exxon Mobil, why isn't it good enough for my citizens, or good enough for all the citizens of this country?

This was done last year with very little debate; just stuck in a big old bill and says it is going to create jobs. Let us give a special deal to some big old economic interests. Nobody will care and nobody will know.

Now we see the result--hitting the tax break jackpot. Those who are going to get the biggest benefits as a result of the generosity which I think has probably not ever been given before. All of these companies expected that the profits they earned overseas would be taxed at the regular tax rate when they brought the profits back. That is what they were told. That is what the deal was. That is what the deferral was in the Tax Code.

Guess what. They got a big old fat tax break unlike any that is given to any other American citizen. They get to pay 5.25 percent.

By the way, they boast that they would be creating jobs and that now appears not to be true. Some of the same companies that moved their American jobs overseas to boost foreign profits now get a special deal back home to pay lower taxes than virtually any other American citizen.

Congress ought to hang its head and maybe Tom Paxton ought to write another song: If it is good enough for Hewlett-Packard and good enough for Exxon Mobil, it ought to be good enough for constituents who live up the block and down the street and on the farm in this country.

Enough about that. These things happen behind closed doors with little debate and great complexity and people do not understand. Somehow at the end of the day it is always kind of the cake and crumbs approach to public policy: The big interests get the cake; the little folks get the crumbs and hope everyone is happy and nobody debates too much about it.

Social Security

There is a lot of this influence in the Social Security debate. I will talk for a moment about that. I also will talk about the budget that was offered yesterday. The Social Security debate is

an example of this strange approach to public policy.

Social Security was created in 1935. The first monthly benefit was paid in 1940. Social Security has lifted tens of millions of senior citizens out of poverty. Fifty percent of America's elderly were living in poverty when Social Security was enacted. Today it is less than 10 percent.

The fact is, Social Security works. It has been a Godsend for a lot of people who reach retirement age. Social Security is the one dependable source of income they know will be there. It is the social insurance that they have paid for over all the years when they worked. Social Security includes not only old-age retirement benefits but also provides disability and survivor benefits. It is the one piece of that social insurance that workers knew would be there, and it has always been there.

Now, in 1983, a commission said, when the baby boomers retire, they will hit the retirement rolls like a tidal wave.

After the Second World War, the soldiers came home. We have all seen the pictures. We beat back the oppression of Hitler and Nazism. What a wonderful time. There was a great outpouring of romance and affection when the soldiers got home. We had the biggest baby crop in the history of the world. We had a lot of babies. Those GIs came home; they had families; they raised families; they built schools; they created jobs; they went to college on the GI bill. They built this country.

There comes a time, then, when the baby boomers will retire and we have a strain on the Social Security system. So we decided to save for that. This year, for example, we collected Social Security taxes from worker paychecks--$151 billion more than needed to pay out current Social Security benefits. We are doing that every year. This will help grow Social Security trust assets to over $5 trillion by 2018.

The President said the other night something that is not right or not accurate. He said, in the year 2018, the Social Security system will be paying out more than it takes in. That is just flat wrong. Our colleague, Daniel Patrick Moynihan, once said everyone is entitled to their own opinion but not everyone is entitled to their own set of facts.

In the year 2018, the Social Security system will be taking in taxes from paychecks as well as a substantial amount of interest that will exist on the Treasury bonds that have been accruing over these many years in the Social Security trust. This interest, along with the tax collected from paychecks, will far exceed that which is necessary to be paid out. It is the year 2042 or 2052, according to either the Social Security actuaries or the Congressional Budget Office, where we hit the point we can no longer pay full benefits. It is not bankrupt at that point, but unless we make some adjustment, we cannot pay full benefits.

The President's proposal for private accounts, however, anticipates a level of investment return on private accounts that, if realized, means the economic growth in the country would put Social Security in a position where it would not have a problem at all for the long term. With that kind of economic growth as projected by the President, there will be no problem in Social Security. It will meet its obligations over the long term.

But we have a circumstance now where the President and Administration official say Social Security is in crisis, it is bankrupt, it is flat bust, depending on whom you listen to. The purpose of using that language is to convince people there is a very serious problem here. There may need to be some adjustments because people are living longer, better, and healthier lives. But there is not a crisis that justifies taking the Social Security system apart, which is what the President proposes to do.

He proposes several things, none of which he talks about but all of which are part of his plan: First, borrow a great deal of money, from $1 to $3 trillion. Second, change the indexing in Social Security and cut benefits. Under his plan, you are borrowing money, cutting benefits, investing the borrowed money in the stock market, and hoping in the end it comes out all right.

All the indications I have seen, whether from the Congressional Budget Office or the Brookings Institution or others, say that workers will come out further behind, not ahead, as a result of this plan.

The question, What should we do, is answered, we preserve, protect, and strengthen Social Security. This program works. It is probably true that almost none of those who are proposing these changes--borrowing money and putting it in private accounts and taking the Social Security system apart--will ever have to worry about Social Security. Almost all of them will have sufficient assets to not be too worried about Social Security for themselves. But there are a lot of people in this country who do worry about Social Security. It has always been there and can always be there as part of the social insurance that represents the foundation of retirement security.

Retirement security has two parts. One part is the guaranteed insurance on which we pay premiums in the form of taxes every month from our paychecks. That is always there. The second part in retirement security is private investments, 401(k)s, IRAs, and others. I support that. I believe we ought to do even more to incentivize private investments. But we should do that without taking apart the Social Security Program.

The Budget

Now, finally, I mention the budget. The budget offered yesterday is a budget that has a great many controversial issues. All Members would agree we have the largest deficits in the history of this country. This country is way off track in fiscal policy. It needs to be put on track. It is not just fiscal policy. Fiscal and trade policy, between them, contributed somewhere between $1 to $1.2 trillion in debt just in the last year. That is unsustainable. You cannot continue to do that.

The trade deficit we will know on Thursday of this week, but the trade deficit is somewhere around $600 to $700 billion--just in the past year. The fiscal policy budget deficit is somewhere around $560 billion. This country cannot continue it do this. It is off track.

We have to put it on track.

The budget that was offered yesterday claims that we will have a budget deficit this year of roughly $427 billion. The fact is that figure takes the Social Security tax money we are supposed to be putting into Social Security and uses it to make the deficit look smaller. The real budget deficit for the current year is expected to be about $587 billion, and although that is the real deficit, that does not include the costs of Iraq, Afghanistan, and prosecuting the war because the President does not include that in the budget. Why? Because he says we do not know what it will cost despite the fact we have known for a long while it is costing at least $5 billion a month. He is now saying, I want you to approve an extra $80 billion in emergency funding. So we have roughly a $580 billion out-of-balance budget that does not even include the extra money that is necessary that the President knows he will ask Congress to spend on Iraq and Afghanistan and the military budget.

You could get a much better grip on what all this costs by taking a look at the numbers in his proposed budget dealing with gross debt. He is proposing about a $677 billion increase in gross federal debt next year versus this year. So that is the real measure of how much we are spending that we do not have--a $677 billion increase in gross debt.

Now, we know we have to tighten our belt. There are some things in the budget I agree with, some I do not. I do not agree that, for example, we ought to shut down Amtrak except for the east coast. That is what the President wants to do. I do not support that. I think rail passenger service strengthens this country and it is good for this country.

I do not agree that we should cut back on Indian tribal colleges. It is the one step up and out of poverty and toward hope and opportunity that has been remarkably successful. I could go through a list of things where I might disagree.

On the spending side, I do not agree with the President that we ought to begin building earth-penetrating, bunker-busting, designer nuclear weapons. What on Earth is that about? Spending money to build more nuclear weapons? Bunker busters? I do not understand that. Not only is it the wrong

message for the world, it is spending money we do not have on things we do not need.

Let me give you an example of a little program in this budget that we have spent almost $200 million on over the years. It is Television Marti. It is this country deciding to send television signals to the Cuban people to tell them how good things are outside of Cuba. Well, I visited Cuba. The Cuban people know how good things are outside of Cuba. That is why they try to escape Cuba.

It is interesting, we spend all this money on Television Marti to broadcast into Cuba. We do it through Aerostat balloons, and now we do it with a sophisticated C-130 airplane, which is very expensive. And guess what. No Cubans see the television broadcasts. Oh, we broadcast. We have expensive studios and expensive people, and we have balloons, and we have airplanes, and we broadcast these television signals to the Cuban people. And the President wants to double the money for it, despite the fact that all those signals are jammed and the people do not see the broadcasts. I do not understand that.

What on Earth could they be thinking about? They are going to double funding for the broadcasting signals into Cuba that are jammed and that the Cuban people cannot see. In fact, one of the reasons he wants to double funding is he wants to buy another airplane for this program. So you talk about waste, it is unbelievable.

I think the most important point to make about the budget, however, is it is time for Republicans and Democrats, for the President and the Congress, to level with the American people. We have a fiscal policy that is reckless, is way out of control and is completely unsustainable. You cannot spend $677 billion that you do not have--not next year, not last year, not the year after next. You cannot have a trade deficit that is wildly out of balance. And you cannot have a Tax Code that incentivizes shutting down American factories and sending American jobs overseas. You cannot keep doing these things.

There are some who take a look at this place, and they see a bunch of windbags in blue suits, I suppose. They think we just talk, and occasionally, when the lights go out, we pass something like a 5.25 percent special tax break for the biggest economic interests.

The American people deserve for us to be serious about fiscal policy, about trade policy and about tax policy, and for us to begin to put together a plan to put this country back on track. It is not all the fault of one side or the other. But if both sides do not pull in the right direction, this country cannot provide economic health and opportunity and growth in the future.

What is happening in this country no one on this floor recognizes because no one in the Senate has lost a job because of outsourcing; no one here has lost a job because their plant was closed.

Let me again say, as I conclude, the people who worked for Huffy Bicycles know what that is like. The people who worked for Schwinn Bicycles know what that is like. The people who worked for Fig Newton know what that is like. The people who worked for Levi Strauss know what that is like. The people who made T-shirts and shorts for Fruit of the Loom know exactly what that is like. They all lost their jobs because they cannot compete with people who are willing to work for 30 cents an hour overseas. The employers have found a billion people on this Earth who are willing to do it. And they will not only work for 30 cents an hour, you can put them in factories and dump sewage and dump chemicals into the air and water. You can work them 7 days a week, and if they decide to create a union, you can fire all of them, just like that.

If this country does not get serious about stemming the outmigration of jobs and about stemming the hemorrhaging of red ink in international trade in our trade deficit and dealing with our fiscal policy and budget deficit, our economic future is not going to be a bright future.

We have far too much promise as a country to let this happen to us. We need leadership, yes, from the White House, and from Congress, to deal with serious things in a serious way. I hope that happens soon. I want to be a part of a group that is bipartisan that says let's put this country back on track. But I see precious little evidence of bipartisanship these days. The minute you stand and talk about the facts, all of a sudden you are being excessively partisan, and the White House comes after you; to wit, the story yesterday about the RNC and what they have decided to do with respect to Senator Reid.

Well, there is a lot at stake in this Congress and this President getting it right for a change: on budgets, on trade, on taxes. And I, for one, hope we can begin a serious discussion about serious issues in the days ahead and give people some hope that their future will be a brighter and better future.

Mr. President, I yield the floor.

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

Mr. President, we are in our second day of debate on the important Class Action Fairness Act of 2005. Because of my responsibilities as chairman of the Senate Finance Committee, I have not had a chance to participate in the debate of a bill that I have been the sponsor of going back to the 105th Congress. It is a pleasure for me to participate and anticipate the passage of this legislation.

It is about time that the Senate gets this bill done and gets it to the President. Of course, I am very pleased that Majority Leader Frist sees this as an important enough issue to move so early in the 109th Congress. I also thank Chairman Specter, as new chairman of the Senate Judiciary Committee, for getting this class action bill through committee so very quickly. I hope we can move expeditiously with few or no amendments, pass this bill, and have the President sign it, which we are sure he will.

My colleagues will recall that in the 108th Congress, Senator Frist brought the class action fairness bill to the floor in October 2003, but we were not able to proceed to the bill. We lost the vote on cloture on the motion to proceed by just a one-vote margin; in other words, 50 votes as opposed to the 60-vote supermajority that cloture takes.

After that vote, I worked with Senator Hatch, who was then chairman of the Judiciary Committee, and our lead Democratic cosponsors, Senators Kohl and Carper, to modify the bill to address concerns that were raised by three Senators and maybe others, but I remember specifically Senators Dodd, Landrieu, and Schumer. Then we reintroduced the Class Action Fairness Act in February 2004 as a new bill with a new number, S. 2062. It contained the compromise language that we worked out with Senators Dodd, Landrieu, and Schumer. Senator Frist then attempted to bring up the bill last July. Unfortunately, we were once again denied the ability to close debate on the bill, and we lost, again, a cloture vote. This was because Senators wanted to offer nongermane amendments--amendments, as you know, Mr. President, that have absolutely nothing to do with the subject matter of the underlying bill. This was particularly disappointing to me after all of the hard work we had done to reach an acceptable compromise with several Democrats. We could have passed the bill in the 108th Congress, but raw politics got in the way.

Now is the time to get this bill done. We have reintroduced the language contained in last year's bill, a compromise worked out with Senators Dodd, Landrieu, and Schumer. That is what is now before us in S. 5, the very same bill. We made no changes to last year's bipartisan compromise. So I hope we can stop having politics interfere with this bill and pass what is a relatively modest bill that will help reform a class action regime that has gotten to be very bad, which ends up most of the time serving no one except the lawyers who bring these class action suits.

I would like to give some background on the need for this very important legislation. Everyone has heard about the abuses going on with the current class action system. These problems undermine the rights of both plaintiffs and defendants. Class members often do not understand what their rights are in a class action suit, while the class action lawyers drive the lawsuits and the settlements. Class members cannot understand what the court and the settlement notices say because they are in very small type and written in hard-to-understand legalese. So class members often do not understand their rights and they don't understand the consequences of their actions with respect to the class action lawsuit in which they are invited to participate.

Moreover, many class action settlements only benefit the lawyers, with little or nothing going to the class members. We are all familiar with the class action settlements where the plaintiffs got coupons of little value, or maybe no value, and the lawyers got all of the money available in the settlement agreement. So what is the point of bringing a lawsuit? I thought it was to find redress for the plaintiffs and not to benefit the lawyers who bring the case. But that is what happens many times now in these class action lawsuits. The lawyers drive those cases, not the individuals who allegedly have been injured. The lawyers are the ones who get the millions and millions of dollars in fees while the people who allegedly have been injured get worthless coupons.

In addition, the current class action rules are such that the majority of large nationwide class actions are allowed to proceed to State court when they are clearly the kinds of cases that should be decided in Federal Court. The U.S. Constitution provides that cases involving citizens of two different States and an amount of controversy of $75,000 can be heard in Federal Court. However, the law has been interpreted in such a way that class action lawsuits; that is, cases involving large sums of money, citizens of many different States, and issues of national concern, have been restricted to State courts even though they have national consequences. Crafty lawyers game the system. Crafty lawyers file these large class actions in certain courts. They are shopping for magnet State courts, and they are able to keep them there.

For example, in Madison County, IL, the most notorious class action magnet State court, which has been called a ``judicial hellhole,'' class action filings have jumped from 77 in 2002 to 106 in 2003. I understand that Madison County has had an increase of over 5,000 percent in the number of class action filings since 1998. That surely says something. Clearly, the judges there are playing somewhat fast and loose with the class action rules when they are deciding whether to certify a class action lawsuit. So unscrupulous lawyers are gaming the present rules to steer their class action cases to these certain preferred State courts, such as Madison County, IL, where judges are quick to certify classes, quick to approve settlements, with little regard to the class members' interests or the parties' due process rights. Of course, that is the reason for this legislation. We need to do something about this kind of abuse of the judicial process.

Class action lawsuits at least should have the 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 county court be deciding these kinds of class action cases that impact people all across the country? Of course, that just doesn't make sense to me; hence, the authorship of this legislation. I hope it doesn't make sense to at least a majority of my colleagues.

Both the House and Senate held numerous hearings on this legislation and on other kinds of class action abuse. We heard about class lawyers manipulating case pleadings to avoid removal of a class action lawsuit to Federal court, where it should be, claiming that their clients suffered under $75,000 in damages in order to avoid the Federal jurisdictional amount threshold.

We heard about class lawyers crafting lawsuits in such a way to defeat the complete diversity requirement by ensuring that at least one named class member was from the same State as one of the defendants even if every other class member was from one of the other 49 States.

We heard about attorneys who filed the same class action lawsuit in dozens of State courts all across the country in a race to see which judge would certify the fastest and the broadest of class.

We heard about class action lawyers entering into collusive settlements with defendant attorneys which were not in the best interest of class members.

These are only a few of the gamesmanship tactics lawyers like to utilize to bring down the entire class action legal system. The bottom line is that many of these class actions are just plain frivolous lawsuits that are cooked up by the lawyers to make a quick buck, with little or no benefit to the class members who the lawyers are supposed to be representing.

Out-of-control frivolous filings are a real drag on the economy. Many a good business is being hurt by this frivolous litigation cost. Unfortunately, the current class action rules are contributing to the cost of business all across America, and it particularly hits small business because it is the small business that gets caught up in the class action web without the resources to fight.

Too many frivolous lawsuits are being filed. Too many good companies and consumers are having to pay for this lawyer greed. Make no mistake about it, there is a real impact on the bottom line for many of these companies and, to some extent, on the economy as a whole. They have to eat this increased litigation cost or else it is farmed out to consumers, such as you and me, and this is all in the form of higher prices for goods and services we buy.

This is unacceptable, and we need to do something about this. We need to restore some commonsense reform to our legal system. We need to restore common sense to the class action system. We should pass this bill.

I now wish to say something about class action lawsuits. They can be a very good tool for many plaintiffs with the same claims to band together to seek redress from a company that has wronged them. I am not against the use of class action lawsuits, and neither are other supporters of this bill. We are not here to put a stop to the class action tool.

I certainly know my friend and original cosponsor of this bill, Senator Kohl, feels the same as I do. People who have been injured should be able to sue companies that do not follow the law. Our problem is many class actions are not proceeding in the way they were originally intended.

Our problem is many of these lawsuits are not fair and violate the due process rights of both plaintiffs as well as defendants.

Our problem is many times these lawsuits are not helping the class members at all. They are an effective tool for lawyers to make a big, easy buck.

Our problem is these kinds of suits should have an opportunity to be heard in Federal court, not stuck in a magnet court in a county that has no connection whatsoever to the case. That is why Senator Kohl and I joined forces several Congresses ago--this is the fifth Congress this bill has been around for us to try to do something about this situation. That is a period of 8 years past and 10 years including this Congress--to do something about the problems we were seeing and about the runaway abuses.

The Class Action Fairness Act will address some of the more egregious problems with the class action system while preserving class action lawsuits as a very important tool which brings representation to the unrepresented.

Let me underscore for my colleagues that S. 5 is a very delicate compromise. As my colleagues already know, this bill has gone through many changes to accommodate Democratic Senators, much to the frustration of some of my Republican colleagues who think we have gone too far.

I worked in good faith with these colleagues on the other side of the aisle to bring people together and to address valid concerns to increase support for this bill, most importantly to, hopefully, have 60 votes on board, the supermajority it takes to bring a halt to debate, to get to finality, to get this bill passed, to get it to the House where we are told it will pass if we do not change it, and go to the President very quickly.

I did not think then that we needed to make any changes to the class action bill that was originally introduced several Congresses ago, but as compromise is often necessary in this process if I wanted 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 that compromise.

Nevertheless, with all the compromises we cut, S. 5 still retains the goal we set out to achieve: to fix some of the most egregious problems we are seeing in the class action system and to provide a more legitimate forum for nationwide class action lawsuits.

The deal that was struck is a very carefully crafted compromise that does not need to be modified any further. So I am asking my colleagues to withhold the offering of amendments to avoid disrupting the balance we have achieved.

My colleagues should not be fooled. The amendments that are going to be offered are an attempt to weaken or gut the bill. Some amendments may sound reasonable, but they pose a problem in the other body. Other amendments may sound good, but they do not have anything to do with class action reform. Other amendments are, plain and simple, poison pills.

We have worked far too long and we have worked far too hard to have this bill come down because folks are misled into supporting an amendment that in reality perpetuates the problem and preserves the status quo.

We have worked far too long and too hard to have this bill delayed and complicated with amendments that the House will never accept.

We have also worked far too long and far too hard to have this bill bogged down by amendments that are not critical to the core purpose of the legislation.

So then let's get this bill past the finish line, not create more hurdles and obstacles. I ask my colleagues to vote against the amendments and keep the bill clean. How often do we in this body, the Senate of the United States, have the respect the House is giving us by saying if this bill is not changed any more, they will buy it the way it is? That happens once in a decade. We ought to take advantage of it.

I would like to highlight, before I sit down, some of the changes we made to the bill to increase support for this bill since Senator Kohl and I introduced the first Class Action Fairness Act in the 105th Congress, now 8 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, including amounts and sources of attorney's fees. Since plaintiffs give up their right to sue, they need to understand the ramifications of their actions and should not have to hire another attorney to find out what these notices mean.

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 notice would provide State officials with an opportunity to object if the settlement terms are unfair to their citizens.

Our bill also required that courts closely scrutinize class action settlements where the plaintiffs only receive coupons or noncash awards while the lawyers get the bulk of the money.

It required the Judicial Conference to report back to the Congress on the best practices in class action cases and how to best ensure fairness of these 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 courts those class actions with fewer than 100 plaintiffs, class actions that involve less than $5 million, and class actions in which a State government entity is the primary defendant.

Our bill still does many of these things, but we have made a number of modifications to get this bipartisan support.

In the Judiciary Committee in the 108th Congress, we incorporated Senator Feinstein's amendment which would leave in State court class action

cases brought against a company in its home State where at least 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 would be treated under this bill. In our negotiations and outside the committee with Senators Schumer, Dodd, and Landrieu, we made numerous changes, so I will only mention a few of the more important compromises we reached.

For example, we made changes to the coupon settlement provisions in the bill providing that attorney's 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 for these Senators the bounties provision because of a concern that it would harm civil rights plaintiffs.

We deleted provisions in the bill that dealt with specific notice requirements because the Judicial Conference had already approved similar notice arrangements 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 fail to meet rule 23 requirements so that existing law applies.

We deleted a provision allowing plaintiff class action members to remove class actions to Federal court because of gaming concerns. We placed reasonable time limits on the appellate review of remand orders in the bill. We clarified that citizenship of proposed class members is to be determined on the date the plaintiff filed the original complaint or when plaintiffs amend the complaint.

We made further modifications to the Feinstein compromise already referred to and to the mass action language Senator Specter was concerned about. We clarified that nothing in the bill restricts the authority of the Judicial Conference to promulgate rules with respect to class actions.

Finally, we drafted a new what is called local class action exception, which would allow class members to remain in State court if, one, more than two-thirds of the class members are citizens of this forum State; two, 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 for the plaintiffs' claims; three, the 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, four 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 all of 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 State court. So we have made significant concessions to get our Democratic colleagues on board this Class Action Fairness Act. Of course, some of my Republican colleagues feel we have made too many compromises. But these folks on the other side of the aisle have been telling us that they are ready to support the bill and get it passed, so the time has come that hopefully no more politics are played, that we get down to business and we get this bill done. It is time to make real progress on a class of lawsuits that has become burdensome for business, not beneficial to the plaintiffs, and enriching of attorneys.

If we do that--and we do that when we pass this bill--again I want to remind my colleagues that we have crafted a carefully balanced bill that consists of a number of compromises and some would say too many compromises. I think we have done a pretty good job of addressing legitimate concerns with the bill and I am hopeful we will not see a lot of amendments to disrupt this compromise. I am hopeful my colleagues will join me and vote against all killer amendments that gut or weaken the bill. I am hopeful my colleagues will join me and vote against poison-pill amendments that the House will never accept.

All of these amendments need to be defeated because we should send a clean bill to the House. All of our hard work on forging a bipartisan compromise bill should not go down the drain.

The bottom line is this class action reform is badly needed. Both plaintiffs and defendants alike are calling for change. The Class Action Fairness Act will help curb the many problems that have plagued the class action system. S. 5 will increase class members' protection and ensure the approval of fair settlements. It will allow nationwide class actions to be heard in a proper forum, the Federal courts, but keep primarily State class actions where they belong, in State court. It will preserve the process but put a stop to the more egregious abuses. It will also put a stop to the frivolous lawsuits that are a drag on the economy.

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

I see another person who has worked very hard on this bill has come to the Chamber and that is Senator Carper of Delaware. There is no person who has been more determined to get this bill passed and get it passed in a bipartisan way, and I appreciate very much the cooperation he has given us over the last year but, more importantly, in a time when I have been involved with a lot of issues other than class action, he has kept me focused on this bill that I want to get passed, and he has helped me get the job done. I thank Senator Carper as well as other Democrats who have helped in this process.

I yield the floor.

I thank my colleague from Delaware, and I suggest the absence of a quorum.