Democrats Look to Colloquies on Class Action

Posted February 8, 2005 at 6:25pm

Senate Democratic opponents of a bill to limit class-action lawsuits acknowledged Tuesday that their last-ditch attempts to alter the measure on the Senate floor would likely fall short.

Senate Judiciary ranking member Patrick Leahy (D-Vt.) painted a grim picture of efforts to add amendments to the bill, a feat that, if accomplished, could make it harder for the House and Senate to pass the same bill and send it to the president’s desk for his signature.

“It’ll be whatever they want in the end. I mean, the Republicans control the place after all,” Leahy said of the Senate Republican leadership’s attempts to pass the bill without amendment in order to secure the quick House passage that leaders in the other chamber have promised.

Sources said that even Senate Minority Leader Harry Reid (D-Nev.) told his Members at a leadership meeting Tuesday that he did not believe any of the amendments Democrats were offering had enough votes to pass.

At a press conference later in the day, Reid, who opposes the bill, bemoaned the fact that the handful of Democratic supporters of the legislation had made a pledge to Republican sponsors to vote against all amendments.

Senate Minority Whip Dick Durbin (D-Ill.) agreed with Reid’s assessment, saying, “Even the most reasonable of amendments are just being categorically rejected.”

The majority of Senate Democrats, trial lawyers and consumer protection groups have sought to block the bill, which they say would deny plaintiffs their day in court.

But House Republicans and business leaders have signaled that the Senate’s bipartisan compromise bill must pass without amendment. House Majority Leader Tom DeLay (R-Texas) warned the Senate on Tuesday that adopting any amendments to the measure would be “jeopardizing” the measure because the House would not take up an amended bill and would likely pursue a more stringent measure on their own terms.

If that happened, Senate Democratic backers of the bill would likely withdraw their support, giving opponents the ability to filibuster any conference report.

The Senate bill, which has been called “a fragile compromise” by Members of both parties, would make it harder for lawyers to bring class-action suits in state courts that are known for awarding large settlement sums for consumer fraud or corporate wrongdoing. Instead, if large class-action cases involve plaintiffs from different states and involve large sums of money, the suit would be heard in federal courts, which have traditionally been less sympathetic.

The measure is principally aimed at preventing class action suits that minimally benefit consumers with low-value coupon awards, while plaintiffs’ lawyers reap millions in lawyers’ fees.

Still, some opposition Democrats said they might not lose out completely.

“There are some things that are perhaps moving toward a good ending,” Durbin said.

In particular, Democrats and consumer groups are hoping to build support for Sen. Jeff Bingaman’s (D-N.M.) amendment to make sure that federal courts do not summarily throw out class-action cases simply because they involve various state laws.

Bingaman and Sen. Dianne Feinstein (D-Calif.) were huddling as of press time Tuesday on reworking the amendment to make it more attractive to moderate Republicans.

But industry lobbyists said they would be flabbergasted if Senate Majority Leader Bill Frist (R-Tenn.) allowed too many Republicans to wander off the reservation when the bill’s fate hung in the balance.

Sen. Tom Carper (D-Del.), a supporter of the class-action bill, said a better solution might be to simply have a colloquy about Bingaman’s concerns on the Senate floor “to make sure the intent of the bill is clear.” Colloquies are often used to signal to judges the Congress’ intent, even if it is not explicitly spelled out in the law.

Similarly, Durbin said his amendment to exempt “mass torts,” or cases where state judges have forced similar plaintiffs to combine into one case, may be resolved through a colloquy on the floor as well.

But proposals by Sen. Edward Kennedy (D-Mass.) to exempt wage and hour disputes and civil rights claims from the bill are likely to fail according to a variety of sources. The same fate is likely to befall an amendment from Sen. Mark Pryor (D-Ark.) that would exempt law class actions brought by states’ attorneys general, such as cases like the massive anti-tobacco cases brought in the 1990s by states concerned about health care costs.

But even Republicans are being caught up in the anti-amendment fervor of bill backers. Sen. Lindsey Graham (R-S.C.) was angered by the notion that amendments on the floor were not welcome.

“I’m going to do what I think makes this bill better regardless of all the rhetoric about not being able to amend anything,” said Graham. Still, Graham acknowledged that he would be “a good soldier” and vote for the bill regardless of whether his proposal is adopted.

Graham’s amendment would allow judges to unseal class-action settlement agreements if they believe other consumers would be helped by the knowledge of a company’s alleged wrongdoing.

Of course, some Democrats and Republicans held out the possibility that some of their amendments could be included in a managers’ package, provided that the House would not see it as a radical change in the underlying bill.