Sunshine in Litigation Act of 2008

Mr. President, I rise today to introduce the Sunshine in Litigation Act of 2007, a bill to curb the ongoing abuse of secrecy orders in Federal courts. The result of this abuse, which often comes in the form of sealed settlement agreements, is to keep important health and safety information from the public.

This problem has been recurring for decades, and most often arises in product liability cases. Typically, an individual brings a cause of action against a manufacturer for an injury or death that has resulted from a defect in one of its products. The injured party often faces a large corporation that can spend an unlimited amount of money defending the lawsuit and prolong its resolution. Facing a formidable opponent and mounting medical bills, plaintiffs often have no choice but to settle the litigation. In exchange for the award he or she was seeking, the victim is forced to agree to a provision that prohibits him or her from revealing information disclosed during the litigation.

Plaintiffs get a respectable award, and the defendant is able to keep damaging information from getting out. Because they remain unaware of critical public health and safety information that could potentially save lives, the American public incurs the greatest cost.

This concern for excessive secrecy is warranted by the fact that tobacco companies, automobile manufacturers, and pharmaceutical companies have settled with victims and used the legal system to hide information which, if it became public, could protect the American people. Surely, there are appropriate uses for such orders, like protecting trade secrets and other truly confidential company information. This legislation makes sure such information is protected. But, protective orders are certainly not supposed to be used for the sole purpose of hiding damaging information from the public to protect a company's reputation or profit margin.

One of the most famous cases of abuse involved Bridgestone/Firestone tires. From 1992-2000, tread separations of various Bridgestone and Firestone tires were causing accidents across the country, many resulting in serious injuries and even fatalities. Instead of owning up to their mistakes and acting responsibly, Bridgestone/Firestone quietly settled dozens of lawsuits, most of which included secrecy agreements. It wasn't until 1999, when a Houston public television station broke the story, that the company acknowledged its wrongdoing and recalled 6.5 million tires. By then, it was too late. More than 250 people had died, and more than 800 were injured as a result of the defective tires.

If the story ended there, and the Bridgestone/Firestone cases were just

an aberration, one might argue that there is no urgent need for legislation. But, unfortunately, the list goes on. There is the case of General Motors. Although an internal memo demonstrated that GM was aware of the risk of fire deaths from crashes of pickup trucks with ``side saddle'' fuel tanks, an estimated 750 people were killed in fires involving these fuel tanks. When victims sued, GM disclosed documents only under protective orders and settled these cases on the condition that the information in these documents remained secret. This type of fuel tank was installed for 15 years before being discontinued.

Evidence suggests that the dangers posed by protective orders and secret settlements continue. On December 11, 2007, at a hearing before the Senate Judiciary Committee Subcommittee on Antitrust, Competition Policy and Consumer Rights, Johnny Bradley, Jr. described his tragic personal story about the implications of court-endorsed secrecy. In 2002, Mr. Bradley's wife was killed in a rollover accident allegedly caused by tread separation in his Cooper tires. While litigating the case, his attorney uncovered documented evidence of Cooper tire design defects. Through aggressive litigation of protective orders and confidential settlements in cases prior to the Bradleys' accident, Cooper had managed to keep the documents confidential. Prior to the end of Mr. Bradley's trial, Cooper Tires settled with him on the condition that almost all litigation documents would be kept confidential under a broad protective order. With no access to documented evidence of design defects, consumers will continue to remain in the dark.

In 2005, the drug company Eli Lilly settled 8,000 cases related to harmful side effects of its drug Zyprexa. All of those settlements required plaintiffs to agree, ``not to communicate, publish or cause to be published. . .any statement. . .concerning the specific events, facts or circumstances giving rise to [their] claims.'' In that case, the plaintiffs uncovered documents that showed that, through its own research, Lilly knew about the side effects as early as 1999. While the plaintiffs kept quiet, Lilly continued to sell Zyprexa and generated $4.2 billion in sales that year. More than a year later, information about the case was leaked to the New York Times and another 18,000 cases settled. Had the first settlement not included a secrecy agreement, consumers would have been able to make informed choices and avoid the harmful side effects, including enormous weight gain, dangerously elevated blood sugar levels and diabetes.

There are no records kept of the number of confidentiality orders accepted by State or Federal courts. However, anecdotal evidence suggests that court secrecy and confidential settlements are prevalent. Beyond General Motors, Bridgestone/Firestone, Cooper Tires, and Zyprexa, secrecy agreements had real life consequences by allowing Dalkon Shield, Bjork-Shiley heart valves, and numerous other dangerous products and drugs to remain on the market. And those are only the ones we know about.

While some States have already begun to move in the right direction, we still have a long way to go. It is time to initiate a Federal solution for this problem. The Sunshine in Litigation Act is a modest proposal that would require Federal judges to perform a simple balancing test to ensure that the defendant's interest in secrecy truly outweighs the public interest in information related to public health and safety.

Specifically, prior to making any portion of a case confidential or sealed, a judge would have to determine--by making a particularized finding of fact--that doing so would not restrict the disclosure of information relevant to public health and safety. Moreover, all courts, both Federal and State, would be prohibited from issuing protective orders that prevent disclosure to relevant regulatory agencies.

This legislation does not prohibit secrecy agreements across the board. It does not place an undue burden on judges or our courts. It simply states that where the public interest in disclosure outweighs legitimate interests in secrecy, courts should not shield important health and safety information from the public. The time to focus some sunshine on public hazards to prevent future harm is now.

I urge my colleagues to support this important legislation.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I rise today to introduce the Sunshine in Litigation Act of 2007, a bill to curb the ongoing abuse of secrecy orders in Federal courts. The result of this abuse, which often comes in the form of sealed settlement agreements, is to keep important health and safety information from the public.

This problem has been recurring for decades, and most often arises in product liability cases. Typically, an individual brings a cause of action against a manufacturer for an injury or death that has resulted from a defect in one of its products. The injured party often faces a large corporation that can spend an unlimited amount of money defending the lawsuit and prolong its resolution. Facing a formidable opponent and mounting medical bills, plaintiffs often have no choice but to settle the litigation. In exchange for the award he or she was seeking, the victim is forced to agree to a provision that prohibits him or her from revealing information disclosed during the litigation.

Plaintiffs get a respectable award, and the defendant is able to keep damaging information from getting out. Because they remain unaware of critical public health and safety information that could potentially save lives, the American public incurs the greatest cost.

This concern for excessive secrecy is warranted by the fact that tobacco companies, automobile manufacturers, and pharmaceutical companies have settled with victims and used the legal system to hide information which, if it became public, could protect the American people. Surely, there are appropriate uses for such orders, like protecting trade secrets and other truly confidential company information. This legislation makes sure such information is protected. But, protective orders are certainly not supposed to be used for the sole purpose of hiding damaging information from the public to protect a company's reputation or profit margin.

One of the most famous cases of abuse involved Bridgestone/Firestone tires. From 1992-2000, tread separations of various Bridgestone and Firestone tires were causing accidents across the country, many resulting in serious injuries and even fatalities. Instead of owning up to their mistakes and acting responsibly, Bridgestone/Firestone quietly settled dozens of lawsuits, most of which included secrecy agreements. It wasn't until 1999, when a Houston public television station broke the story, that the company acknowledged its wrongdoing and recalled 6.5 million tires. By then, it was too late. More than 250 people had died, and more than 800 were injured as a result of the defective tires.

If the story ended there, and the Bridgestone/Firestone cases were just

an aberration, one might argue that there is no urgent need for legislation. But, unfortunately, the list goes on. There is the case of General Motors. Although an internal memo demonstrated that GM was aware of the risk of fire deaths from crashes of pickup trucks with ``side saddle'' fuel tanks, an estimated 750 people were killed in fires involving these fuel tanks. When victims sued, GM disclosed documents only under protective orders and settled these cases on the condition that the information in these documents remained secret. This type of fuel tank was installed for 15 years before being discontinued.

Evidence suggests that the dangers posed by protective orders and secret settlements continue. On December 11, 2007, at a hearing before the Senate Judiciary Committee Subcommittee on Antitrust, Competition Policy and Consumer Rights, Johnny Bradley, Jr. described his tragic personal story about the implications of court-endorsed secrecy. In 2002, Mr. Bradley's wife was killed in a rollover accident allegedly caused by tread separation in his Cooper tires. While litigating the case, his attorney uncovered documented evidence of Cooper tire design defects. Through aggressive litigation of protective orders and confidential settlements in cases prior to the Bradleys' accident, Cooper had managed to keep the documents confidential. Prior to the end of Mr. Bradley's trial, Cooper Tires settled with him on the condition that almost all litigation documents would be kept confidential under a broad protective order. With no access to documented evidence of design defects, consumers will continue to remain in the dark.

In 2005, the drug company Eli Lilly settled 8,000 cases related to harmful side effects of its drug Zyprexa. All of those settlements required plaintiffs to agree, ``not to communicate, publish or cause to be published. . .any statement. . .concerning the specific events, facts or circumstances giving rise to [their] claims.'' In that case, the plaintiffs uncovered documents that showed that, through its own research, Lilly knew about the side effects as early as 1999. While the plaintiffs kept quiet, Lilly continued to sell Zyprexa and generated $4.2 billion in sales that year. More than a year later, information about the case was leaked to the New York Times and another 18,000 cases settled. Had the first settlement not included a secrecy agreement, consumers would have been able to make informed choices and avoid the harmful side effects, including enormous weight gain, dangerously elevated blood sugar levels and diabetes.

There are no records kept of the number of confidentiality orders accepted by State or Federal courts. However, anecdotal evidence suggests that court secrecy and confidential settlements are prevalent. Beyond General Motors, Bridgestone/Firestone, Cooper Tires, and Zyprexa, secrecy agreements had real life consequences by allowing Dalkon Shield, Bjork-Shiley heart valves, and numerous other dangerous products and drugs to remain on the market. And those are only the ones we know about.

While some States have already begun to move in the right direction, we still have a long way to go. It is time to initiate a Federal solution for this problem. The Sunshine in Litigation Act is a modest proposal that would require Federal judges to perform a simple balancing test to ensure that the defendant's interest in secrecy truly outweighs the public interest in information related to public health and safety.

Specifically, prior to making any portion of a case confidential or sealed, a judge would have to determine--by making a particularized finding of fact--that doing so would not restrict the disclosure of information relevant to public health and safety. Moreover, all courts, both Federal and State, would be prohibited from issuing protective orders that prevent disclosure to relevant regulatory agencies.

This legislation does not prohibit secrecy agreements across the board. It does not place an undue burden on judges or our courts. It simply states that where the public interest in disclosure outweighs legitimate interests in secrecy, courts should not shield important health and safety information from the public. The time to focus some sunshine on public hazards to prevent future harm is now.

I urge my colleagues to support this important legislation.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on Thursday, February 28, 2008, at 9:30 a.m., in open session, with a possibility of a closed session, to receive testimony on the Department of the Navy in review of the defense authorization request for fiscal year 2009 and the Future Years Defense Program.

Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on February 28, 2008, at 10 a.m., in order to conduct a hearing entitled ``Semiannual Monetary Policy Report To Congress.''

Mr. President, I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to meet during the session of the Senate on Thursday, February 28, 2008, at 10 a.m., in room 253 of the Russell Senate Office Building, in order to conduct a hearing. The purpose of this hearing is to review the President's proposed Department of Transportation budget for the 2009 fiscal year.

Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate in order to conduct a hearing on Thursday, February 28, 2008, at 9:30 a.m., in room SD366 of the Dirksen Senate Office Building. At this hearing, the Committee will hear testimony regarding the impact of increased minimum wages on the economies of American Samoa and the Commonwealth of the Northern Mariana Islands.

Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet during the session of the Senate on Thursday, February 28, 2008, at 10 a.m., in room 215 of the Dirksen Senate Office Building, in order to conduct a hearing entitled ``The Real Estate Market: Building a Strong Economy.''

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Thursday, February 28, 2008, at 9:30 a.m. in order to hold a hearing on U.S. policy options in post-election Pakistan.

Mr. President, I ask unanimous consent that the Senate Committee on the Judiciary be authorized to meet during the session of the Senate, in order to conduct an executive business meeting on Thursday, February 28, 2008 at 10 a.m. in room SD-226 of the Dirksen Senate Office Building.

Agenda

I. Bills: S. 2304, Mentally Ill Offender Treatment and Crime Reduction Reauthorization and Improvement Act of 2007, (Domenici, Kennedy, Specter, Leahy); S. 2449, Sunshine in Litigation Act of 2007, (Kohl, Leahy, Graham); S. 352, Sunshine in the Courtroom Act of 2007, (Grassley, Schumer, Leahy, Specter, Graham, Feingold, Cornyn, Durbin); S. 2136, Helping Families Save Their Homes in Bankruptcy Act of 2007, (Durbin, Schumer, Whitehouse, Biden, Feinstein); and S. 2133, Home Owners ``Mortgage and Equity Savings Act'', (Specter, Coleman).

II. Nominations: Kevin J. O'Connor to be Associate Attorney General, Department of Justice; Gregory G. Katsas to be Assistant Attorney General, Civil Division, Department of Justice.

Mr. President, I ask unanimous consent that the Joint Economic Committee be authorized to meet, during the session of the Senate, in order to conduct a hearing entitled ``War at any cost? The total economic costs of the war beyond the Federal budget'' on Thursday, February 28, 2008. The hearing will commence at 9:30 a.m. in room 106 of the Dirksen Senate Office Building.

Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on February 28, 2008, at 2:30 p.m. in order to hold a closed hearing.

Mr. President, I ask unanimous consent that the Committee on Environment and Public Works, Subcommittee on Clean Air and Nuclear Safety, be authorized to meet during the session of the Senate on Thursday, February 28, 2008, at 10 a.m. in room 406 of the Dirksen Senate Office Building in order to conduct a hearing entitled, ``Nuclear Regulatory Commission Oversight: Security of Our Nation's Nuclear Plants.''

Mr. President, I ask unanimous consent that the Senate Committee on the Judiciary, Subcommittee on Terrorism, Technology and Homeland Security, be authorized to meet during the session of the Senate, in order to conduct a hearing entitled ``Weaknesses in the Visa Waiver Program: Are the Needed Safeguards in Place to Protect America?'' on Thursday, February 28, 2008, at 2:30 p.m. in room SD-226 of the Dirksen Senate Office Building.

Witness list

Paul Rosenzweig, Deputy Assistant Secretary, Office of Policy, U.S. Department of Homeland Security, Washington, DC; Tony Edson, Deputy Assistant Secretary for Visa Services, U.S. Department of State, Washington, DC; Jess Ford, Director, International Affairs and Trade, Government Accountability Office, Washington, DC; Susan Ginsburg, Director of Programs on Mobility and Security, Migration Policy Institute, Washington, DC; and Jessica Vaughan, Senior Policy Analyst, Center for Immigration Studies, Washington, DC.

Mr. President, I ask unanimous consent that the Subcommittee on Water and Power of the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate in order to conduct a hearing on Thursday, February 28, 2008, at 2 p.m., in room SD-366 of the Dirksen Senate Office Building. At this hearing, the Committee will hear testimony regarding the following legislation:

S. 177/H.R. 2085, to authorize the Secretary of the Interior to convey to the McGee Creek Authority certain facilities of the McGee Creek Project, Oklahoma, and for other purposes;

S. 1473/H.R. 1855, to authorize the Secretary of the Interior, acting through the Bureau of Reclamation, to enter into a cooperative agreement with the Madera Irrigation District for purposes of supporting the Madera Water Supply Enhancement Project;

S. 1474/H.R. 1139, to authorize the Secretary of the Interior to plan, design and construct facilities to provide water for irrigation, municipal, domestic, and other uses from the Bunker Hill Groundwater Basin, Santa Ana River, California, and for other purposes;

S. 1929, to authorize the Secretary of the Interior, acting through the Commissioner of Reclamation, to conduct a feasibility study of water augmentation alternatives in the Sierra Vista Subwatershed;

S. 2370, to clear title to certain real property in New Mexico associated with the Middle Rio Grande Project, and for other purposes;

H.R. 2381, to promote Department of the Interior efforts to provide a scientific basis for the management of sediment and nutrient loss in the Upper Mississippi River Basin, and for other purposes.

Mr. President, I rise to introduce legislation that is of great importance to my State. Last year a bipartisan coalition of Senators came together to pass the Surface Mining Control and Reclamation Act Amendments of 2007. Since that time, some lawyers and bureaucrats in Washington have taken it upon themselves to misinterpret the law. We need to fix this. The legislation I am introducing will yet again reiterate congressional intent as to how the program should be run. The bill that passed as part of the Tax Relief and Health Care Act 2006, which was a part originally of the pension reform bill, fixed the abandoned mine land trust fund so it would run as Congress originally intended, which was some 30 years earlier. For the first time in years, States were scheduled to receive funding they were promised that would be used to clean up abandoned coal mines where that was needed.

For States that had been certified by the Office of Surface Mining as having completed their coal cleanup work, funding was expected to go to these States to do whatever the State legislators chose to be a priority for that State.

The language is simple and straightforward. It reads:

Payments shall be made in 7 equal annual installments,

beginning in fiscal year 2008.

As we passed the legislation, everyone involved knew what that meant. For years, our State's money has been held hostage to pay for other programs. With the passage of the abandoned mine land bill, the money would flow with no strings attached and no diversions to other programs. Congressional intent was very clear. Unfortunately, last week I was told by lawyers and bureaucrats at the Department of Interior that they have decided to ignore the congressional intent and have chosen to send the money to States such as Wyoming in the form of grants. It seems they don't have enough Federal employees because their plan will create an onerous program that will undoubtedly require more hires.

As one of the lead Senators in passing the original legislation, I know what Congress meant when we wrote:

Payments shall be made in 7 equal and annual installments,

beginning in fiscal year 2008.

To ensure that no confusion existed, I met with the Office of Surface Mining and with the Office of Management and Budget on numerous occasions to discuss that particular issue. Congress intended for payments to be made. Congress did not expect the agency to create a new grant program. When I realized this egregious misinterpretation of the law was a possibility, I took immediate action. I asked those same lawyers and bureaucrats who did not read the law to provide me with the legislative language that makes it explicitly clear that they should interpret the law the way Congress intended.

That is the bill I am introducing today with my colleague from Montana and the other Senator from Wyoming. Only in the absurd world that is Washington could an agency believe the word ``payment'' means grant. I look forward to working with my colleagues to swiftly move this forward so the executive branch can finally follow what Congress intended.

I have to tell my colleagues it was quite a shock to find out a whole program was going to be set up so Wyoming could ask for its money piecemeal. We have been begging for 30 years to get this money. The money has been paid in by the coal companies to cover reclamation and then anything that had to do with coal impact. We did the reclamation. We are now handling the coal impact. But the money has been held hostage; $550 million worth of money has been held over that period.

Last year Congress said: Wyoming and Montana--Montana has $58 million--deserve their money. So do several other States. We will give it to them.

Now there was a little question about what that did with debt, but we were able to show them that paying off debt with debt wound up with the same amount of debt but wasn't stealing from the States. So we were able to get that confirmed by this body and put into law. It said we would be paid in seven equal annual payments, beginning in the year 2008. Now we find out it could be millions of payments over a number of years under a grant program. They do realize they can't deny any grant request the State has, but each and every transaction would have to go through somebody. We are not about to hire that many people to do what is explicit in the language.

I will ask the rest of my colleagues to help us on this amendment. We will find a place to put it, and we will get it done this year so the intent of the law we passed last year will get done.

Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on Thursday, February 14, 2008, at 11:10 a.m. in open session, in order to receive testimony on the strategy in Afghanistan and recent reports by the Afghanistan study group and the Atlantic Council of the United States.

Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on Thursday, February 14, 2008, at 2:30 p.m. in open session, in order to receive testimony on the strategy in Afghanistan and recent reports by the Afghanistan study group and the Atlantic Council of the United States.

Mr. President, I ask unanimous consent that the Committee an Energy and Natural Resources be authorized to meet during the session of the Senate in order to conduct a hearing on Thursday, February, 14, 2008, at 9:30 a.m., in room SD366 of the Dirksen Senate Office Building. At this hearing, the Committee will hear testimony regarding the President's fiscal year 2009 budget request for the USDA Forest Service.

Mr. President, I ask unanimous consent that the Committee on Environment and Public Works be authorized to meet during the session of the Senate on Thursday, February 14, 2008 at 10:30 a.m. in room 406 of the Dirksen Senate Office Building in order to conduct a hearing entitled, ``Legislative Hearing on the Marine Vessel Emissions Reduction Act of 2007, S. 1499.''

Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet during the session of the Senate on Thursday, February 14, 2008, at 10 a.m., in room 215 of the Dirksen Senate Office Building, in order to hear testimony on ``International Aspects of a Climate Change Cap and Trade Program''.

Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs be authorized to meet during the session of the Senate on Thursday, February 14, 2008, at 1:30 p.m. in order to conduct a hearing entitled ``The Homeland Security Department's Budget Submission for Fiscal Year 2009.''

Mr. President, I ask unanimous consent that the Committee on Indian Affairs be authorized to meet during the session of the Senate, on Thursday, February 14, at 9:30 a.m. in room 628 of the Dirksen Senate Office Building in order to conduct an Oversight Hearing on the President's fiscal year 2009 Budget Request for Tribal Programs.

Mr. President, I ask unanimous consent that the Senate Committee on the Judiciary be authorized to meet during the session of the Senate, in order to conduct an executive business meeting on Thursday, February 14, 2008 at 10 a.m. in room SD-226 of the Dirksen Senate Office Building.

Agenda:

I. Bills: S. 2304, Mentally Ill Offender Treatment and Crime Reduction Reauthorization and Improvement Act of 2007 (Domenici, Kennedy, Specter, Leahy); S. 2449, Sunshine in Litigation Act of 2007 (Kohl, Leahy, Graham); S. 352, Sunshine in the Courtroom Act of 2007 (Grassley, Schumer, Leahy, Specter, Graham, Feingold, Cornyn, Durbin); S. 2136, Helping Families Save Their Homes in Bankruptcy Act of 2007 (Durbin; Schumer, Whitehouse, Biden); S. 2133, Home Owners ``Mortgage and Equity Savings Act'' (Specter, Coleman).

II. Nominations: Kevin J. O'Connor to be Associate Attorney General, Department of Justice, Gregory G. Katsas to be Assistant Attorney General, Civil Division, Department of Justice.

Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs' Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia be authorized to meet during the session of the Senate on Thursday, February 14, 2008, at 9:45 a.m., in order to conduct a hearing entitled, ``Building and Strengthening the Federal Acquisition Workforce.''

Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on February 14, 2008, at 2:30 p.m., to hold an open hearing.