Class Action Fairness Act of 2004

CONGRESSIONAL RECORD
SENATE
CLASS ACTION FAIRNESS ACT OF 2004

Mr. GRASSLEY. Madam President, I wish to take an opportunity to make a few comments and respond to some of the statements that have been made by individuals on the other side of the aisle who are opposed to this bill. I know a lot of people on the other side of the aisle favor this bill and that is why we have been able to get to the place where this legislation is coming up again. So my remarks are made toward and in response to those who oppose this legislation, not those who have been helping us move it along.

For instance, I heard there were claims that the Class Action Fairness Act has never been considered before, that there have not been any hearings or markups on this legislation. Clearly, these Members have not been talking to the Senator from Wisconsin, Mr. Kohl, who has worked hard with me since the 105th Congress. Clearly, critics didn't pay any attention to what I had to say last night in my opening statement or, for that matter, many of the statements made by my colleagues on the long history of this legislation.

To the contrary, Congress has been considering this Class Action Fairness Act for several years. Small businesspeople who are paying for this irresponsible tort system we have in America would tell you they have been paying dearly too long and that this legislation is long overdue. One might even find some big companies saying that. But there is no free lunch in America. Somebody is paying when there are frivolous lawsuits. Somebody is paying when lawyers are getting paid too much and when consumers are getting too little. It is a cost to the economy, and we ought to do something about irresponsible costs to our economy.

My colleagues may remember-or they may not remember or we would not have heard these comments today about this legislation-as I indicated in my opening statement last night, both the House and Senate have convened hearings on class action abuse and the need for reform. Are we hearing there have never been hearings held? On what planet are those Senators living?

The House has passed similar versions of the Class Action Fairness Act since the 105th Congress and have done it, by the way, with very strong bipartisan support.

In the Senate in the 105th Congress-this is the 108th Congress. We can go back to the 107th, the 106th, and the 105th Congresses when there was work done on this legislation. At that time, I held hearings on class action abuse in the Judiciary Committee's Administrative Oversight and Court Subcommittee. In the 106th Congress, my subcommittee held another hearing on class actions, and the Judiciary Committee marked up and reported the Class Action Fairness Act, two Congresses ago.

In the last Congress, the 107th, the Judiciary Committee held a hearing on class action abuse. And in the 108th Congress, the Judiciary Committee marked up the bill.

Any Senator who says we have not had hearings on this legislation has not been in the Senate very long or they do not have very good staff helping them or they are not doing anything themselves.

The bill we are considering is also compromise legislation that we worked out in a bipartisan way, a continuation of the bipartisan spirit of this legislation that is exemplified by the work of Senator Kohl now for over four Congresses. We did this with Senators SCHUMER, DODD, and LANDRIEU since the cloture vote failed last October.

While the bill numbers may have changed for the Class Action Fairness Act, we have been working on it now for the fourth Congress. If people think just because we change the title of a bill we ought to have another hearing, that is just an excuse for stalling. If they do not like the bill, vote against it. But let's move something along that needs to be moved along, and there is a consensus in this body that it ought to be done.

I heard this morning claims that the Class Action Fairness Act would deny people the ability to file class action lawsuits. That is just plain not true. We do not take away claimants' ability to file in State court. All we do is modify the rules to allow removal to Federal court for class actions that fit certain criteria within this bill, and most often that is when there is a national implication of the class action suit, or it is not limited to a single State. It is in no way mandatory in our legislation that these cases need to proceed to the Federal court.

Moreover, the claims that we have heard this morning and this afternoon that the Federal courts do not certify class actions are not true either. The Federal courts certify class action cases all the time, and the claimants win their suits in the Federal courts and it is often seen as a forum of preference.

A recent Federal Judiciary Center study found that it was more likely for a class action to be certified in Federal court than in State court. There simply is no foundation, then, for the allegation that Federal courts are less capable of deciding these kinds of cases than State courts. Simply, that does not meet the commonsense test.

It also is not true that it will take longer for Federal courts to decide class actions. The Federal courts have more resources to decide these cases than State courts. In fact, we have the same Federal Judicial Center study indicating that State courts are much more likely than Federal courts to sit on class action lawsuits.

Also, I want to restate that we have made significant changes to the bill to ensure that truly local class actions stay in State court. This is the local controversy exception that was worked out to bring on other Democratic Senators who did not like certain aspects of the bill but wanted the bill to pass and said they would help us get it passed. Those Senators who wanted that local class action exemption, that the class action stay in State courts, were Senators SCHUMER, DODD, and LANDRIEU.

Earlier, some of my colleagues indicated that local issues, such as the PCP leak made famous in the Erin Brockovich case, or suits brought by nursing home residents would be required to be heard in Federal court. Again, this is not true because of the compromise that we crafted with these other Senators and included in the bill that is now before us.

So it is not true that if you have your case heard in Federal court, you will get no justice. That is an outrageous statement and, quite frankly, an insult to the Federal judiciary. The Class Action Fairness Act does not close the courtroom door to anyone. Congress has studied this issue, and Congress has found that there are many problems that need to be considered. That is why we have been working on this steadily for so many Congresses.

A number of studies have come out indicating there are serious abuses of the class action system. There have been numerous editorials and articles that support this bill. It is a bipartisan bill. So I think we ought to move on. The Senate is functioning as the Senate ought to function. As I said last night, nothing gets done in the Senate that is not bipartisan, and when it comes to an issue of partisanship, if 41 Senators stand against it-and that is quite a minority in this Senate-nothing gets done.

We had that vote last October, 59 votes, 1 short of the supermajority to move on, but enough to bring a halt to the consideration of this legislation, because nothing happens in this body unless there is strong bipartisan support. After that cloture vote, we spent last fall working with Senators on the other side of the aisle to get above that 60.

So if there is a situation where one Senator is still not satisfied, do we shut down the whole Senate, or where we maybe even have 10 Senators not satisfied? What more do we have to do to get over that customary rule in the Senate of 60 votes to stop debate to get to finality?

For sure, if we get to a cloture of 60 votes and end up with 70 votes or 75 votes, are not the people trying to stall this legislation somewhat embarrassed by wanting to shut down the whole legislative process? So we have worked to get over that magic hurdle, and when we get over that we will have plenty of votes.

Remember the vote we had through April and May on what we call the FSC/ETI bill, or the JOBS bill, the bill I called creating jobs in manufacturing? We took 15 days over about 2 months to get that legislation passed. It passed 92 to 5.

There were all sorts of games being played with it on matters totally unrelated to the underlying legislation, all in the interest of preserving minority rights. Well, I think this bill has met that test, and we ought to move on. We still have a few people who do not want to move on, and that is a sad commentary, because when one plays by the rules of the game, it seems to me that people who do not get their way have to quit crying in their beer and suck it in, suck it up and move on. That is what I am asking my colleagues on the other side to do, suck it up and move on.

Let the Senate work. It has worked. This legislation is proof that it is working.

I yield the floor.