Class Action Fairness Act of 2003-Motion to Proceed

CLASS ACTION FAIRNESS ACT OF 2003—MOTION TO PROCEED

Mr. GRASSLEY. Mr. President, I would like to address my colleagues, as I did last night, on a bill of which I am the sponsor. It came out of the Senate Judiciary Committee on which I serve with very broad bipartisan support. It is called the class action lawsuit reform legislation. There has been a lot said about that legislation today that I would like to address.

I did listen with great interest, yesterday and today, to speeches made by my colleagues across the aisle, and I fear they greatly misrepresent the bill and the problems facing the class action system, so I will spend a few minutes setting the record straight.

First, my colleagues are trying to characterize this bill as special interest legislation and are suggesting that the President is pushing this as part of some rightwing agenda.

Given that I introduced this bill with my Democratic colleague from Wisconsin 6 years ago, I am surprised that my colleagues think that this President Bush's idea is bad and part of some rightwing special interest agenda because Senator Kohl, a Democrat from Wisconsin, would not be interested in participating in any effort of a rightwing conspiracy.

Anyway, Senator Kohl and I put this bill together because there is unfairness in the current class action system. Lawyers are getting rich while consumers and plaintiffs are getting worthless certificates and coupons. The current system has select State county courts deciding policies and interpreting laws for people that ought to be decided on the Federal level, in the Federal court, when they affect all 50 States. Some county judge in Illinois should not be making a decision that is going to affect consumer law of 49 other States.

That flips, as you know, the Federal system on its head, and it needs to be fixed. Our legislation fixes it. I think that wanting to fix this problem makes sense. It is not part of some rightwing agenda. It is a very key economic issue in our country.

This term "special interest legislation" is amusing in several other ways. The real special interest here is the plaintiffs bar; they are fighting this bill with everything they have. Crafty class action lawyers who are making out like bandits by bringing frivolous class action lawsuits and settling cases where they get all the money are the ones with the big special interest in this legislation because, if this bill passes, judges will have to scrutinize settlements to make sure that lawyers are not unfairly getting more money for their professional services than they ought to get.

Also, if this legislation passes, these very same lawyers will not be able to do what we call forum shopping—finding the best county judge someplace in the country who is sympathetic to their cause, before whom they can go and win for sure.

Of course, we have the Judicial Conference. In this bill, it would be required to figure out a way to make attorney's fees more reasonable and settlements more fair. So it looks like the biggest special interest with a dog in this fight is the plaintiffs bar.

I heard a lot of talk on the floor about how critical class actions are, and I would be the first to suggest that there is a place in our legal system for class action suits. They are a great, important tool to help injured people collectively recover for their injuries in cases where it might not be worthwhile for an individual to do that by himself or herself.

Somehow, my Democratic colleagues think this bill is the end of class action suits, and that is entirely wrong. Our bill leaves the important tool of class actions right where it is, in rule 23 of the Federal Rules of Procedure, and similar rules in most of the individual States. But the bill just allows more class actions, those that ought to be nationally viewed and obviously national in scope, to be heard in the Federal courts. In-state class actions will continue right along in State courts and large national class actions will continue right along in the Federal courts. Consumers will still have their day in court.
That is very important. Our bill does not take away their ability to sue as an individual or to sue as a class.

Another claim I heard yesterday was that our bill allows defendants to remove a case to Federal court at any time, even on the eve of a trial. Senator Breaux says he is worried about this problem and his alternative would fix it. The claim is just plain wrong. Our bill does not change the current removal rule. Under that rule, a defendant can remove a case within 30 days of receiving notice that a case is removable. That is a good rule and one we do not need to change. I do not appreciate people saying we are changing it when we are not changing it. Our bill will function under that rule so a defendant can move only a case within 30 days of receiving a complaint or an amended complaint. To say a defendant under our bill can willy-nilly remove a case at any time or even while a jury is deliberating a case is just not true. That is not the case under the current rule. It is not the case with this bill which does not change the current rule.

There are some other potential problems with the proposal by my friend Senator Breaux that he talked about yesterday, but I will be happy to look at any amendments he has available. One thing he said sticks out in my mind. Senator Breaux suggested if a class of plaintiffs is all from Louisiana and a class is injured by an out-of-state meatpacker—that was the example he used—they should be able to sue the meatpacker in the State court. He describes a pure diversity case which under the Constitution belongs in the Federal court. He is proposing to turn constitutional diversity jurisdiction on its very head. That does not sound like a very good idea to me. His approach would allow the same rampant forum shopping we currently see in the system. Senator Breaux's alternative would not fix any of these abuses and, in fact, his alternative plan makes things much worse.

Another misstatement that concerned me is this claim that the bill before the Senate is not the same bill that came out of committee; that the mass action language materialized out of thin air; that we are trying to pull the wool over our colleagues' eyes. Not true, again.

First, the Class Action Fairness Act—the bill before the Senate, the bill I am sponsoring—included a provision dealing with mass actions when it was first introduced. If my colleagues look at the transcript of the committee markup, they would find, and I think they would probably remember this, that Chairman Hatch of the Judiciary Committee agreed to strip the mass action provision in committee on the condition that Senator Specter and Senator Feinstein worked on compromise language to be included in the bill when it got to the Senate floor. It is in the RECORD. Nobody is pulling any wool over anybody's eyes.

Chairman Hatch, Senator Specter, and I collaboratively reworked the mass action language, had Senator Feinstein look it over and sign off on it. In fact, we made modifications she requested and then we ran it by all of the original cosponsors of the Class Action Fairness Act. So the claim this bill is somehow unexpected and that we are hiding the ball is an unfair, untrue statement.

I also heard opponents of the bill claim this bill will hurt consumers, will hurt civil rights litigants, will hurt tobacco plaintiffs, and will hurt gun victims. The reality is these class actions will continue to be brought in both Federal and State court after this bill becomes law. I don't understand what the big fear is about the Federal courts deciding some of these cases. In fact, I remind my colleagues many of these cases against tobacco plaintiffs and gun manufacturers and civil rights violations have for years been routinely filed in the Federal courts of America. The claim that somehow taking a big national class action out of State court will hurt these folks just does not hold water.

Another claim we heard yesterday was Chief Justice Rehnquist opposes this bill. For months we have been hearing this claim, that the Chief Justice opposes the bill, and for months we have asked for proof of the claim. There is no proof. Why continue to quote him? Maybe this claim comes from a letter the Judicial Conference sent to the last Congress criticizing certain aspects of the older version of the bill. Justice Rehnquist is the de facto chair of the Judicial Conference. They must be making a gigantic leap to claim he had problems with parts of that old bill. The fact of the matter is, currently the Judicial Conference, which Chief Justice Rehnquist chairs, supports many things about this bill and has publicly thanked the Congress for taking up this issue. It offered a few ideas last spring for determining which cases should stay in the State courts and which ones should go to the Federal courts, and our Feinstein compromise addressed some of those very ideas suggested by the Judicial Conference Chief Justice Rehnquist chairs.

We are going to hear a lot about class actions during this debate. Many of them will be important cases. Two things I ask my colleagues to remember regarding a good, necessary class action: First, it is very possible our bill will not have any effect whatever on the case. Second, the only effect our bill might have is just to make the case eligible for Federal court where the case was filed. In fact, many of the cases discussed yesterday sounded to me as if they would either be unaffected by the bill or could be proceeded to in Federal court.

I know there are Members of this body who will not ever support this bill. They will never go up against the plaintiffs bar.
They will never go up against those personal injury lawyers. They would say the present system, even though it gives lawyers millions of dollars and little old consumers a coupon for some product they will never want to buy, or for some part of an airplane ticket for some place they are never going to go, somehow is OK. I hope they will check their facts before they make statements against this bill even though they may never vote for it. They ought to be intellectually correct as they make their points.

I have taken this opportunity to set the record straight. That ought to give us the number of votes it takes to get beyond a Democrat filibuster and move forward on a bill that has passed the House three times in 6 years and ought to pass the Senate and ought to go to the President. We ought to have fairness in our court system. When consumers need to be protected, we ought to have consumers getting the benefit of winning the case, not their lawyer.