Class Action Fairness Act of 2005

CLASS ACTION FAIRNESS ACT OF 2005

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Mr. DURBIN. Mr. President, I would like to spend a few minutes to discuss my amendment No. 3, which is pending at this time, and then ask that it be withdrawn. This is the amendment I had offered on Tuesday to clarify the scope of the ``mass action'' provision in Section 4(a) of the bill.

As I had explained earlier this week, this provision requires that mass actions be treated the same as class actions under this bill, and therefore taken out of State courts and removed to Federal courts. But it was still unclear to me--and to many of the injured people who will be affected by this bill--what precisely the drafters had in mind in coming up with this ``mass action'' language in the bill.

When I last took the floor, I had raised some questions about the differences between ``mass actions'' and ``mass torts,'' and whether mass torts would be ,I affected by the language in S. 5. I heard from proponents of this bill that these are two very different types of cases, and that the bill is designed to affect only mass actions and not mass torts.

In fact, Senator LOTT of Mississippi the other day explained on the floor that:

Mass torts and mass actions are not the same. The phrase ``mass torts'' refers to a situation in which many persons are injured by the same underlying cause, such as a single explosion, a series of event, or exposure to a particular product. In contrast, the phrase ``mass action'' refers to a specific type of lawsuit in which a large number of plaintiffs seek to have all their claims adjudicated in one combined trial. Mass actions are basically disguised class actions.

I am glad that the proponents of this bill agree with me that there is a very significant difference between these two types of cases. Mass torts are large scale personal injury cases that result from accidents, environmental disasters, or dangerous drugs that are widely sold.

Cases like Vioxx that I described earlier, and cases arising from asbestos exposure, are examples of mass torts. These personal injury claims are usually based on State laws, and almost every State has well established rules of procedure to allow their State courts to customize the needs of their litigants in these complex cases.

Senator LOTT also explained on the floor that:

There are a few States, like my State--I think, and West Virginia is another one and there may be some others--which do not provide a class action device. In those States, plaintiffs' lawyers often bring together hundreds, sometimes thousands of plaintiffs, to try their claims jointly without having to meet the class action requirements. And often the claims of the multiple plaintiffs have little to do with each other.

So, it seems to me that the authors of this bill are trying to include only these so-called mass actions and not mass torts.

And I understand from the statements made by Senator LOTT, the U.S. Chamber of Commerce, and many other proponents of the bill, that these so-called mass actions are currently filed only in Mississippi and West Virginia. In other words, this provision of S. 5 will have no impact on mass torts cases filed in the other 48 States.

That is good news because I would hate to see this bill--which already turns the idea of federalism on its head--preempt any more State rules and procedures than it already does with the diversity provisions.

I agree with the proponents that the scope of this language is limited.

It is my understanding from conversations with my colleagues who support this bill that a mass action, as used in this section of the bill, is simply a procedural device designed to aggregate for trial numerous claims. If that is the case, I believe my amendment would not be necessary.

I had offered my amendment as a good faith effort to keep mass tort cases from being impacted negatively by this provision. But if the language affects only a narrow set of procedural devices in a limited number of States, then I believe that is consistent with what I had attempted to achieve with my amendment.

Accordingly, I ask unanimous consent that my amendment, Amendment No. 3, be withdrawn.

The PRESIDING OFFICER. Is there objection to the request of the Senator to withdraw the amendment? Without objection, it is so ordered.

Mr. DURBIN. Mr. President, I would also like to talk about the bill generally.

Why are we even debating a question about whether a lawsuit can be filed in a State court or a Federal court? If you can file a lawsuit, you are supposed to have your day in court. But it is not that simple.

The reason why the business lobbies have spent millions of dollars in Washington pushing for this bill, the reason why this bill is the highest priority of the Bush administration and the Republican leadership in Congress, is because of one simple fact: Class action cases removed from State courts to Federal courts are less likely to go forward to be tried, they are less likely to reach a verdict where someone wins or loses, and if there is a decision on behalf of the plaintiffs, they are less likely to pay a reasonable amount of money in Federal court than in State court.

What I say to you is not idle speculation; it is based on Federal court decisions. That is why the business community has worked so long and so hard to remove the rights of consumers and citizens to sue in their own State courts. Rather, they want them removed to Federal courts where they have a better chance to win. The businesses know they can win more class action cases in Federal courts than they could ever win in State courts. That is what this whole debate is about. So you hear all of this talk about whether class action suits are filed here, whether they are filed there--frankly, many of these discussions overlook what these class action lawsuits are all about.

I had my staff compile some information on some of these lawsuits because people tell me: I don't understand what is a class action. I can understand if I am in an automobile accident, I get hurt, and I sue the person who ran into me. Is this what we are talking about? That probably wouldn't be a class action.

Let me give you some examples of real class action lawsuits. These cases will be more difficult to file and more difficult to be successful because the business interests are going to pass this bill.

U.S. postal workers given Cipro after the anthrax attacks in 2001 found out there were many damages that came from the drug, and the postal workers came together as a group to sue the company that made Cipro. This is a class action lawsuit.

Then we had a group of people in Rhode Island who were harmed because they were exposed to lead in paint. They sued, as a class, the manufacturers of lead paint that caused the damage to them physically. But because the manufacturers are not based in Rhode Island, this class action might be removed to a Federal court under this bill.

Then there was a court in Illinois in a class action lawsuit in one of the counties the proponents of this bill like to rail about. It was against Ford Motor Company because they were selling Ford Crown Victoria vehicles to police departments alleging they were better cars for police use. It turned out they had a defective fuel tank that made them dangerous for policemen. So, all of the police departments that bought these cars sued Ford Motor Company as a class because of a defective product. But because Ford Motors is based in Michigan, the Illinois police officers might have to litigate this case in a Federal court.

Here is another one against Foodmaker, which ran Jack-in-the-Box restaurants. It turned out thousands of their patrons were subjected to food contamination and serious illness. The patrons sued as a class. Why? Because any individual might say: I took my child to Jack-in-the-Box, my child became sick and went to the hospital, and was there for two days. The medical bills came to $1,500. But I can't file a lawsuit against the restaurant for $1,500.

Then, the parent finds out that the same thing happened to hundreds of other kids, so all the parents come together and say: Jack-in-the-Box, you should have done a better job. And this class of plaintiffs went forward in a State court. But they would have less of a chance for success under this bill. That is what it is about.

A suit was brought by mothers and fathers when they discovered that Beech-Nut was selling apple juice for infants that turned out to be nothing but sugar water.

What is the damage to an individual infant, or a single family? How do you measure it? If a company sold millions of bottles of this defective product, shouldn't that company be held accountable?

That is what this debate is all about. It is about accountability for those who cause harm to the public. The businesses that are responsible for environmental contamination, for producing dangerous products that cause injuries, for manufacturing items that shouldn't be sold, or for overcharging customers, should be held liable.

But these business interests come to Congress for help, and they are going to win today. As a result of this victory, fewer consumers and fewer families are going to have a chance to succeed in court.

The Government closes down the agencies to protect you, Congress will not pass the laws to protect you, and now this Senate will pass a law to close the courthouse doors in your States when you want to come together as a group and ask for justice. This is the highest priority of the Bush administration: closing that courthouse door, making sure these families and these individuals don't have a fighting chance.

I think there are a lot of other priorities we should consider, such as the cost of health care in America. We will not even talk about that issue on the Senate floor, let alone discuss bipartisan options for addressing that pressing problem.

This so-called Class Action Fairness Act may pass today, but the ultimate losers are going to be families across America who are hoping that Congress will at least consider their best interests in the very first piece of legislation that we consider.

I yield the floor.

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