Class Action Fairness Act of 2003-Motion to Proceed

CLASS ACTION FAIRNESS ACT OF 2003-MOTION TO PROCEED

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

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

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

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

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

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

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

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

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

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

. . . "clients" in class action lawsuits get token payments while the lawyers get enormous fees. This is not justice. It is an extortion racket that only Congress can fix.

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

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

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

. . . thanked Congress for "working to resolve the serious problems generated by overlapping and competing class actions."

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

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

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

I reserve the remainder of our time.

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

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

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