[Congressional Record Volume 162, Number 5 (Friday, January 8, 2016)]
[House]
[Pages H181-H200]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FAIRNESS IN CLASS ACTION LITIGATION ACT OF 2015
General Leave
Mr. GOODLATTE. Mr. Speaker, I ask unanimous consent that all Members
may have 5 legislative days within which to revise and extend their
remarks and to include extraneous materials on H.R. 1927.
The SPEAKER pro tempore (Mr. LaMalfa). Is there objection to the
request of the gentleman from Virginia?
There was no objection.
The SPEAKER pro tempore. Pursuant to House Resolution 581 and rule
XVIII, the Chair declares the House in the Committee of the Whole House
on the state of the Union for the consideration of the bill, H.R. 1927.
The Chair appoints the gentleman from Illinois (Mr. Rodney Davis) to
preside over the Committee of the Whole.
{time} 0915
In the Committee of the Whole
Accordingly, the House resolved itself into the Committee of the
Whole House on the state of the Union for the consideration of the bill
(H.R. 1927) to amend title 28, United States Code, to improve fairness
in class action litigation, with Mr. Rodney Davis of Illinois in the
chair.
The Clerk read the title of the bill.
The CHAIR. Pursuant to the rule, the bill is considered read the
first time.
The gentleman from Virginia (Mr. Goodlatte) and the gentleman from
Michigan (Mr. Conyers) each will control 30 minutes.
The Chair recognizes the gentleman from Virginia.
Mr. GOODLATTE. Mr. Chairman, I yield myself such time as I may
consume.
I rise today in support of a bill that combines two important
reforms, the Fairness in Class Action Litigation Act and the Furthering
Asbestos Claim Transparency Act, or the FACT Act. Let me first explain
why my colleagues should vote in favor of the Fairness in Class Action
Litigation Act.
Last year an independent research firm surveyed companies in 26
countries and found that 80 percent of those that were subject to a
class action lawsuit were U.S. companies, putting those U.S. companies
at a distinct economic disadvantage when competing with companies
worldwide.
The problem of overbroad class actions doesn't just affect U.S.
companies. It affects consumers in the United States who are forced
into lawsuits they don't want to be in. How do we know that? We know
that because the median rate at which consumer class action members
take the compensation offered in a settlement is an incredibly low
0.023 percent. That is right.
Only the tiniest fraction of 1 percent of consumer class action
members--less than 1 quarter of 1 percent--even bothers to claim the
compensation awarded them. That is clear proof that vastly large
numbers of class members are satisfied with the products they purchase,
don't want compensation, and don't want to be lumped into a gigantic
class action lawsuit.
Just recently a California judicial decision reported that, in a
class action consisting of over 230,000 people, only two of those
230,000 wanted the coupons offered in the class action settlement. The
judge in that case said that the case produced ``absolutely no benefit,
really, to anybody.'' So where is all of the money going in these
cases? To the lawyers who brought the lawsuits that hardly anyone
wanted to be in.
In another case, the district court had refused to certify the class
because most of the class members had not experienced any problems with
the product. But then the Ninth Circuit Court of Appeals reversed,
holding that ``proof of the manifestation of a defect is not a
prerequisite to class certification.''
In yet another case, when the Seventh Circuit Court of Appeals
allowed the certification of an overbroad class action, it had to
subsequently throw out the resulting settlement, stating, ``The
district court approved a class action settlement that is inequitable,
even scandalous,'' because the relatively few class members who were
actually injured ended up claiming less than 2 percent of what the
trial lawyers got the district judge to say was warranted based on the
overbroad size of the class.
Trial lawyers work the system today in the following way: They file
lawsuits, for example, against a company that sells a washing machine.
Some of those washing machines don't work the way they are supposed to,
but most of them do. But the lawyers file a class action lawsuit that
includes everyone who ever purchased a washing machine from the
company, even the large number of people who are completely satisfied
with their purchases.
When trial lawyers lump injured, non-comparably injured, and non-
injured people into the same class action lawsuit, the limited
resources of the parties are wastefully spent weeding through hundreds
of thousands of class members in order to find those with actual or
significant injuries. That is money that could have been spent
compensating deserving victims.
Sometimes, because judges don't separate the injured from the non-
injured in class actions early enough in the proceedings, they end up
throwing out settlements because it turns out hardly any of the class
members were harmed and didn't want compensation.
Other times, when judges realize they have created an overbroad
class, they justify their actions by coming up with novel theories to
provide some compensation to people who are entirely satisfied with the
product and who don't want compensation.
Either way, the solution is to direct judges to determine as best
they can early in the proceedings which proposed class members are
significantly and comparably injured and which aren't and to treat them
accordingly. That is fair to everyone.
The purpose of a class action is to provide a fair means of
evaluating like claims, not to provide a way for lawyers to
artificially inflate the size of a class to extort a larger settlement
value for themselves and, in the process, increase the prices of goods
and services for everyone.
Claims seeking monetary relief for personal injury or economic loss
should be grouped in classes in which those who are the most injured
receive the most compensation. No one should be forced into a class
action with other uninjured or minimally injured members only to see
their own compensation reduced.
The Fairness in Class Action Litigation Act would simply make clear
what currently should be clear to the Federal courts, namely, that
uninjured class members are incompatible with rule 23(b)(3)'s current
requirement that common claims predominate a class action.
[[Page H182]]
Here is the full text of the Fairness in Class Action Litigation Act,
along with quotes from the Supreme Court that show how the bill's text
codifies existing Supreme Court precedent:
The bill simply provides that ``no Federal court shall certify any
proposed class seeking monetary relief for personal injury or economic
loss unless the party seeking to maintain such a class action
affirmatively demonstrates that each proposed class member suffered the
same type and scope of injury as the named class representative or
representatives'' and that ``an order issued under rule 23(c)(1) of the
Federal Rules of Civil Procedure that certifies a class seeking
monetary relief for personal injury or economic loss shall include a
determination, based on a rigorous analysis of the evidence presented,
that the requirement in subsection (a) of this section is satisfied.''
That is it. One page. Fair rules. Common sense and wholly consistent
with Supreme Court precedent. Please join me in supporting this bill on
behalf of consumers everywhere.
The FACT Act is also simple, fair reform we should all support.
This legislation helps asbestos victims who must look to the
bankruptcy process to seek redress for their or their loved ones'
injuries. Too often, by the time asbestos victims assert claims for
compensation, the bankruptcy trust formed for their benefit has been
diluted by fraudulent claims, leaving these victims without their
entitled recovery.
Fraud is able to exist because of the excessive lack of transparency
plaintiffs' firms have forced on the asbestos trust system. Under the
current Bankruptcy Code, plaintiffs' firms essentially are granted a
statutory veto right over debtors' chapter 11 plans that seek to
restructure asbestos liabilities. Plaintiffs' firms have exploited this
leverage to obtain trust rules that prevent information contained
within the trust from seeing the light of day.
The predictable result has been a growing wave of claims and reports
of fraud. The increase in fraudulent claims has caused many asbestos
bankruptcy trusts to reduce recoveries paid to asbestos victims who
emerge following the formation of trusts.
The FACT Act, introduced by Congressman Farenthold, combats this
fraud by introducing long-needed transparency into the system.
First, it requires asbestos trusts to file quarterly reports on their
public bankruptcy dockets. These reports will contain basic information
about demands to the trusts and the bases for payments made by the
trusts to claimants.
Second, the FACT Act requires asbestos trusts to respond to
information requests about claims asserted against and the bases for
payments made by the asbestos trusts.
These measures are carefully designed to increase transparency while
providing claimants with sufficient privacy protection. To accomplish
these goals, the bill leverages privacy protections contained elsewhere
in the Bankruptcy Code and includes additional safeguards to preserve
claimants' privacy.
We cannot allow fraud to continue reducing recoveries for future
asbestos victims.
I thank Mr. Farenthold for introducing the FACT Act to combat fraud.
I urge all of my colleagues to vote in favor of this important
legislation.
Mr. Chairman, I reserve the balance of my time.
Mr. CONYERS. Mr. Chairman, I yield myself 5 minutes.
Members of the House, I rise in strong opposition to H.R. 1927, the
so-called Fairness in Class Action Litigation Act and Furthering
Asbestos Claim Transparency Act.
I oppose the legislation because it cleverly shields corporate
wrongdoers by making it more difficult for those who have been harmed
by their actions from obtaining justice and it allows these wrongdoers
to further victimize their victims.
Among H.R. 1927's many flaws is the fact that this legislation will
have the effect of denying individuals access to justice and
threatening victims of corporate wrongdoing, all in the name of
protecting the powerful. Section 2 of H.R. 1927 will make it virtually
impossible for victims of corporate wrongdoing to obtain relief through
class actions in cases seeking monetary relief by requiring a party
seeking class certification to show that every potential class member
suffered the same type and scope of injury at the certification stage.
Now, you know that is going to be difficult.
We come to the realization that, as it is, class actions are very
difficult to pursue. Under current procedure, the courts strictly limit
the grounds on which a large group of plaintiffs may be certified as a
class, including the requirements that their claims raise common and
factual legal questions and that the class representative's claims are
typical of those of the other class members.
Rather than improving upon this class certification process, however,
H.R. 1927 imposes requirements that are almost impossible to meet,
effectively undermining the use of class actions.
Finally, section 3 of H.R. 1927 gives asbestos defendants--the very
entities whose products injured millions of Americans--new weapons with
which to harm their victims.
Section 3 requires a bankruptcy asbestos trust to report on the
court's public case docket, which is then made available on the
Internet, the name and exposure history of each asbestos victim who
receives payment from such trust as well as the basis of any payment
made to the victim.
As a result, the confidential personal information of asbestos
claimants, including their names and exposure histories, would be
irretrievably released into the public domain. Just imagine what
identity thieves and others, such as insurers, potential employers,
lenders, and data collectors, could do with this sensitive information.
Essentially, this bill revictimizes asbestos victims by exposing
their private information to the public, information that has
absolutely nothing to do with compensation for asbestos exposure. This
explains why asbestos victims vigorously oppose this legislation, as it
is an assault against their privacy interests.
{time} 0930
So, in sum, H.R. 1927 is a seriously flawed bill that only benefits
those who cause harm to others. Not surprisingly, the White House has
appropriately issued a veto threat, stating that the administration
``strongly opposes House passage of H.R. 1927 because it would impair
the enforcement of important Federal laws, constrain access to the
courts, and needlessly threaten the privacy of asbestos victims.''
For all these reasons, I urge that this House oppose H.R. 1927.
Mr. Chairman, I reserve the balance of my time.
Mr. GOODLATTE. Mr. Chairman, I yield 3 minutes to the gentleman from
Pennsylvania (Mr. Marino), the chairman of the subcommittee.
Mr. MARINO. Mr. Chairman, I rise today in support of the FACT Act. As
chairman of the Subcommittee on Regulatory Reform, Commercial and
Antitrust Law, I have examined this piece of legislation for over the
past year. We held hearings on the bill and solicited views from
experts and victims alike. I heard many of the same concerns that we
are hearing this morning. However, my own conclusion is that the FACT
Act is a sound and necessary bill.
By preventing fraudulent claims, the FACT Act protects asbestos
victims and ensures the viability of the asbestos bankruptcy trust for
the unknown victims yet to come. Claims that the bill hurts the victims
are false. To the contrary, it would be a disservice to the victims
themselves to permit certain bad actors to raid the trust funds and
line their pockets in the process.
As companies that used asbestos filed bankruptcy, the trust funds
were created in recognition that victims must be compensated. Any
measure that preserves these funds is clearly pro-victim.
Some critics contend that the bill violates victim privacy by
requiring the disclosure of certain information. We examined this
specific issue during our hearings, and it could not be farther from
the truth. This bill provides protections that are absent in State tort
cases where court dockets and the personal information of plaintiffs
are part of the public record. Section 2 of the FACT Act simply
requires the claimant's name and a description of their exposure
history. It then explicitly states that any disclosure does not
[[Page H183]]
include any confidential medical records or the claimant's Social
Security number. It is important to note what might be missed here.
The FACT Act amends the Bankruptcy Code. By doing this, it
incorporates the existing privacy protections therein that permit the
bankruptcy judge to issue protective orders when disclosure of
information would create ``an undue risk of identity theft or other
unlawful injury.'' This is a sound and pertinent piece of legislation.
I would like to thank Chairman Goodlatte and my colleague from Texas
(Mr. Farenthold) for bringing it to the floor. I urge my colleagues to
support this legislation.
Mr. CONYERS. Mr. Chairman, I yield 3 minutes to the gentleman from
Tennessee (Mr. Cohen).
Mr. COHEN. Mr. Chairman, these bills are basically chamber of
commerce week in the United States Congress. That is what we have come
down to, is that the chambers of commerce who represent the large
corporations who would be the defendants in these actions, by and
large, and consist of the people that produce the asbestos, they are
part of it too. It gives them an opportunity to not have to pay out
damages to victims, victims where class actions are successful--but
would make it more difficult to be successful--and people who have been
victims of asbestos injuries, mesothelioma being the ultimate disease
that kills people from exposure to asbestos.
Now, on the other side of the chamber of commerce and my friends on
the other side are people on this side and certain groups. I want to
tell you who the folks are who are against the bill. The NAACP. The
Leadership Conference on Civil and Human Rights, often called the
conscience of the Congress. The American Federation of State, County
and Municipal Employees. Consumers Union. The American Bar
Association--and we have heard about how lawyers are doing this and
lawyers are doing that, lawyers are on both sides of the cases--the
American Bar Association. Americans for Financial Reform. Public
Citizen. The Southern Poverty Law Center, Morris Dees and company. The
National Disability Rights Network. The Asbestos Disease Awareness
Organization.
The Asbestos Disease Awareness Organization is the voice of the
victims, and they are against this. I have to be against it because I
stand with the victims and for justice and what is fair for people who
have been harmed by corporate wrongdoing.
I rise to tell a personal story. One of my best friends was a man
named Warren Zevon. He was a singer and songwriter. Somewhere along the
line, he was exposed to asbestos, and he died in September of 2003 of
mesothelioma. But for asbestos and him being exposed to it in some
manner, he would be with us today and would have been with us for the
last 12 years, giving us entertainment and songs and maybe songs about
some of the things that have been going down here.
One of his last songs was ``I Was in the House When the House Burned
Down.'' Well, it wasn't this House, but it could have been this House.
This House is the people's House, and it should be looking out for
victims and people who should get compensation in courts.
When we travel internationally, one of the things we find is that
people revere our justice system. They look to America for justice and
an open court system that they don't have in their own nations. These
bills would close the door on justice and close the door on the courts,
and that is not what America is about and that is not why we are
respected internationally.
I respectfully ask that we oppose these bills and vote ``no.''
Support the victims. Support justice.
Mr. GOODLATTE. Mr. Chairman, I reserve the balance of my time.
Mr. CONYERS. Mr. Chair, I yield 2\1/2\ minutes to the gentleman from
Georgia (Mr. Johnson), a distinguished member of our committee.
Mr. JOHNSON of Georgia. Mr. Chair, I rise in opposition to H.R. 1927,
section 3, the so-called Fairness in Class Action Litigation Act of
2015, which is actually the text of H.R. 526, the Furthering Asbestos
Claim Transparency, or the FACT Act.
It is a fact that the Koch brothers are probably sitting back at home
with their fingers crossed watching these debates, hoping and feeling
quite confident that this will pass because they know when it passes,
it is going to help them.
How does it help them? Well, they are the ones who manufactured or
acquired the companies that manufactured the asbestos, this asbestos
everybody knows now hurts people. So when people are hurt, they deserve
to be able to go into a court of law and establish their claim and seek
just compensation for their victimization by that company.
What this legislation does is to put its ugly hand on the scale of
justice in favor of the manufacturers of this dangerous product and,
also, their insurance companies. It puts its ugly hand on that scale,
weighs it down in favor of those companies. So all of them are looking
upon us now, hoping that we do what they would like for us to do.
Please know that not everybody is going to go along with this. There
are some who stand with victims who deserve a day in court. They
deserve, when they go to court, to not have to be subjected to the
public release of their very private and sensitive information, their
medical information. There should not be any kind of registry, like a
gun registry, established.
This is a registry--we should actually call it an asbestos death
database--which would allow these insurance companies and producers,
manufacturers of death, to have access to people's personal information
so that they could use it against them when they file claims. That is
what this bill is all about.
I would ask that my colleagues understand the true purpose and vote
``no'' on this act.
Mr. GOODLATTE. Mr. Chairman, I yield 5 minutes to the gentleman from
Texas (Mr. Farenthold), the chief sponsor of a portion of this
legislation.
Mr. FARENTHOLD. Mr. Chair, it is my privilege to be here to speak on
behalf of the FACT Act.
Just a quick, oversimplified history of how the asbestos trusts came
into being. The manufacturers of asbestos, when it became known that it
was such a deadly product, realized that there weren't enough assets
within the company to pay all the claims. So they availed themselves of
the bankruptcy laws of this country. What the bankruptcy courts said
was: Look, put all of your assets into a trust to pay off the victims
and you can reorganize your company. That is how these trusts were
created.
So the companies are not going to be on the hook anymore. The ones
that survived, reorganized, or were acquired have had their
obligations, with respect to asbestos, discharged in bankruptcy. What
they did to do this was they created these trusts to compensate future
victims.
So what is happening now is there are people who are gaming the
system, multiple claims in State or Federal courts. They are going to
these trusts saying: I was injured by asbestos, pay me. Which is what
is supposed to happen. But you are only supposed to get compensated
once for your asbestos injury. If you do multiple claims, you are
taking money out of the system that would be available for future
victims. Diseases like mesothelioma take years to manifest themselves.
What the FACT Act does is require these trusts to publish a very
small amount of information--the name of the person who is filing a
claim, the basis of their claim--I was exposed to asbestos at XYZ
location and developed mesothelioma--and it specifically protects their
privacy by prohibiting the release of their Social Security number.
The information that is required here is actually less information
than I would be required to give if, say, Mr. Cohen hit me with his
car. If I were hit by his car, I would have to disclose my name, the
nature of my injury, and a lot more information to file a suit in State
court. We are not asking for any more information than is normally
disclosed in any sort of litigation.
In fact, there are specific privacy protections in the Bankruptcy
Code that are going to protect even further than you would in a State
court. This bill was written to help those veterans who were exposed to
asbestos and are not yet manifesting symptoms. It was designed to help
all the victims who were exposed and are not yet manifesting symptons.
[[Page H184]]
If we drain all the money out of these trusts, there is nothing that
is going to be left to help the people who were injured later on in the
process. So this is why I introduced the legislation, this is why I
think it needs to pass, and this is why I urge my colleagues to join me
in supporting it.
I am also happy that this bill was combined with a great piece of
legislation to get rid of some of the waste, fraud, and abuse that is
happening within the system of class action lawsuits.
I don't know about you, Mr. Chairman, but my wife and I have probably
got a half a dozen or so notices in the mail over the years for class
actions. As a lawyer, I actually sit down and read them. It ends up
most of the time that they are offering me a coupon or a gift
certificate or something worth a couple of dollars while the
plaintiff's attorney is getting millions of dollars.
We need to get this system down to where those who are actually
injured as a result of whatever has happened in the class action get
adequate compensation and those folks who weren't injured or are happy
with the product don't get anything because they haven't asked for
anything, they don't want anything, and they weren't injured.
{time} 0945
This will simplify the system. It will lower the cost, and it will
make sure there is more money available for those who were actually
injured.
This is a great combination of bills, and I urge my colleagues to
support it.
Mr. CONYERS. Mr. Chairman, I include in the Record letters from 19
veterans organizations that are totally opposed to this bill.
January 7, 2015.
Re Veterans Service Organizations oppose H.R. 1927, the
Fairness in Class Action Litigation and Furthering
Asbestos Claims Transparency Act.
Hon. Paul Ryan,
Speaker of the House, House of Representatives, Washington,
DC.
Hon. Kevin McCarthy,
Majority Leader, House of Representatives, Washington, DC.
Hon. Nancy Pelosi,
Minority Leader, House of Representatives, Washington, DC.
Hon. Steny Hoyer,
Minority Whip, House of Representatives, Washington, DC.
Dear Speaker Ryan, Leader McCarthy, Leader Pelosi, and Whip
Hoyer: We, the undersigned Veterans Service Organizations,
oppose H.R. 1927, the ``Fairness in Class Action Litigation
and Furthering Asbestos Claims Transparency Act of 2015.'' We
have continuously expressed our united opposition to this
legislation via written testimony to the House Judiciary
Committee, House Leadership, in-person meetings and phone
calls with members of Congress, and most recently, an op-ed
many of our legislative teams submitted to ``The Hill'',
entitled ``Farenthold has his facts wrong: The FACT Act hurts
Veterans''. It is extremely disappointing that even with our
combined opposition H.R. 1927 stands poised to be voted on
the House floor later this week.
Veterans across the country disproportionately make up
those who are dying and afflicted with mesothelioma and other
asbestos related illnesses and injuries. Although veterans
represent only 8% of the nation's population, they comprise
30% of all known mesothelioma deaths.
When our veterans and their family members file claims with
the asbestos bankruptcy trusts to receive compensation for
harm caused by asbestos companies, they submit personal,
highly sensitive information such as how and when they were
exposed to the deadly product, sensitive health information,
and more. H.R. 1927 would require asbestos trusts to publish
their sensitive information on a public database, and also
include how much money they received for their claim as well
as other private information. Forcing our veterans to
publicize their work histories, medical conditions, social
security numbers, and information about their children and
families is an offensive invasion of privacy to the men and
women who have honorably served, and it does nothing to
assure their adequate compensation or to prevent future
asbestos exposures and deaths.
Additionally, H.R. 1927 helps asbestos companies add
significant time and delay paying trust claims to our
veterans and their families by putting burdensome and costly
reporting requirements on trusts, including those that
already exist. One must ask what is the real motivation for
this legislation brought forward by Representative
Farenthold? Rather than pursuing legislation to make it
easier and less burdensome for our veterans and their
families to get the compensation they so desperately need for
medical bills and end of life care, trusts will have to spend
time and resources complying with these additional and
unnecessary requirements at the expense of our veterans.
H.R. 1927 is a bill that its supporters claim will help
asbestos victims, but the reality is that this bill only
helps companies and manufacturers who knowingly poisoned our
honorable men and women who have made sacrifices for our
country.
We urgently ask on behalf of our members across the nation
that you oppose H.R. 1927.
Please contact Hershel Gober, National Legislative
Director, Military Order of the Purple Heart with any
questions.
Signed:
Air Force Sergeants Association, Air Force Women's Officers
Associated (AFWOA), American Veterans (AMVETS), Association
of the United States Navy (AUSN), Commissioned Officers
Association of the US Public Health Services, Fleet Reserve
Association (FRA), Jewish War Veterans of the USA (JWV),
Marine Corps Reserve Association (MCRA) Military Officers
Association of America (MOAA), Military Order of the Purple
Heart (MOPH), National Association of Uniformed Services
(NAUS), National Defense Council, Naval Enlisted Reserve
Association, The Retired Enlisted Association (TREA), United
States Coast Guard Chief Petty Officers Association, United
States Army Warrant Officers Association, Vietnam Veterans
Association (VVA).
Mr. CONYERS. I yield 2\1/2\ minutes to the distinguished gentlewoman
from Washington (Ms. DelBene).
Ms. DelBENE. Mr. Chairman, the FACT Act, which is part of the
underlying legislation, has been touted as an effort to promote
transparency and address a supposedly systemic problem of fraud with
asbestos trusts set up to pay settlements owed to victims of asbestos
exposure, but this bill is a solution in search of a problem and places
invasive demands on victims that violate their privacy and open them up
to identity theft and other abuses while failing to require
transparency from the companies that created this nationwide problem in
the first place. The nonpartisan GAO found that 98 percent of trusts
perform audits, and none of those audits uncovered fraud.
While the bill's proponents claim that this is a measure to protect
asbestos trusts for victims, it speaks volumes that not a single
victims group supports this bill.
For decades, asbestos companies knowingly put Americans at risk--
servicemembers, children, teachers, first responders, construction
workers, and even those who work here in the Capitol--with a toxic
product that kills close to 15,000 people every year. Today old
structures across the country still contain asbestos and can pose
serious health risks. Experts have referred to workers who perform
repair work as the current third wave of victims.
Given the nature of the asbestos threat, it is outrageous that the
laws fail to require asbestos companies to disclose information when it
comes to public health and safety and disappointing that this has
become a partisan issue.
In 1988, President Reagan signed into law the Asbestos Information
Act, which required manufacturers of asbestos-containing products to
report information about these products to the Environmental Protection
Agency, but the Asbestos Information Act was just a one-time reporting
requirement, and it predated the Internet.
That is why, along with my colleague, the gentleman from Texas (Mr.
Gene Green), I have introduced the Reducing Exposure to Asbestos
Database Act, or the READ Act, which amends the Asbestos Information
Act to require those who manufacture, import, or handle products
containing asbestos to annually report information to the EPA about
their products and any public location where they have been present in
the past year. This information would be made publicly available
online, helping Americans avoid exposure to asbestos and incentivizing
the continued reduction of asbestos use in our Nation until it is
finally eliminated once and for all. Unfortunately, when the READ Act
was offered as an amendment to this bill, it was not ruled in order.
Asbestos poses an ongoing threat to public health, and more
transparency about this deadly product, not less, should be the norm.
The CHAIR. The time of the gentlewoman has expired.
Mr. CONYERS. I yield an additional 15 seconds to the gentlewoman.
Ms. DelBENE. I urge my colleagues to oppose the FACT Act and join me
in working to promote transparency that helps, rather than victimizes,
those who have been facing heartbreaking consequences of asbestos
exposure.
Mr. GOODLATTE. Mr. Chairman, may I ask how much time is remaining on
each side?
[[Page H185]]
The CHAIR. The gentleman from Virginia has 14 minutes remaining. The
gentleman from Michigan has 16\3/4\ minutes remaining.
Mr. GOODLATTE. Mr. Chairman, I reserve the balance of my time.
Mr. CONYERS. Mr. Chairman, I yield 2\1/2\ minutes to the gentleman
from California (Mr. Peters).
Mr. PETERS. Mr. Chairman, veterans are disproportionately affected by
diseases caused by asbestos, and although veterans represent only 8
percent of the Nation's population, they comprise almost one-third of
all known mesothelioma deaths that have occurred in this country.
Mesothelioma has an uncommonly long period of latency of 20 to 30
years, which means that veterans exposed to asbestos who retired from
Active Duty decades ago are getting sick today.
Hundreds of Navy ships and military installations dating back to
World War II were constructed with asbestos flooring, flooring tiles,
ceiling tiles, and wall insulation. That means that hundreds of
thousands of workers and sailors were unknowingly exposed to dangerous
asbestos levels, and as a result many of those men and women contracted
asbestos-related diseases.
J. Patrick Little, the national commander of the Military Order of
the Purple Heart, wrote to House leadership in direct opposition of
this bill. He said: ``The FACT Act adds insult to injury for veterans
and their families at a time when they are suffering from the
devastating effects of asbestos exposure.''
The FACT Act must be amended to protect veterans who were exposed to
those dangerous minerals while serving their country. I tried to amend
this bill twice to exempt asbestos trusts from having to file onerous
reports to the bankruptcy courts if the claimant is a member of the
Armed Forces, a civilian employee of the Department of Defense, and
their families to avoid any potential delay in these individuals
receiving their desired benefits in a timely manner; but the majority
did not make this commonsense amendment in order because they are not
prepared to defend this bill against the serious concerns raised by
veterans, including the Military Order of the Purple Heart, who say
that the bill is unnecessary, unfair, and only benefits the asbestos
industry rather than our veterans who proudly served their country and
were unknowingly exposed to this deadly substance.
In the absence of this amendment, Mr. Chairman, I urge a ``no'' vote
on the bill.
Mr. GOODLATTE. Mr. Chairman, I reserve the balance of my time.
Mr. CONYERS. Mr. Chairman, I am pleased to yield 2\1/2\ minutes to
the gentleman from New York (Mr. Jeffries), a distinguished member of
our committee.
Mr. JEFFRIES. Mr. Chair, I thank the distinguished ranking member
from Michigan for yielding as well as for his steadfast leadership.
This is a new year with a new Speaker and new promises of bipartisan
cooperation, yet we are here today on the House floor doing the same
exact thing.
The asbestos industrial complex is responsible for unleashing
mesothelioma, lung cancer, and other exotic diseases of mass
destruction on thousands of unsuspecting Americans, many of whom have
served this country in the military, and yet we are being asked today
to support legislation that would shield the wrongdoers from liability.
At the end of the day, if you think about the bill that has been
presented to us, the claim has been made that it is about disclosure,
but the wrongdoers aren't really being asked to disclose anything
further.
The claim has been made about this bill that it is about efficiency,
yet there is not a scintilla of evidence of waste, fraud, or abuse.
The claim has been made that this is about fairness, yet at the end
of the day the practical effect of this legislation would be to prevent
the victims from being able to achieve just compensation.
At the end of the day, this is the same old approach: trying to find
a solution in search of a problem that does not exist. This is a
messaging bill that is dead on arrival in the Senate and will not be
signed into law by the President.
Instead of wasting the time and the treasure of the American taxpayer
through their elected Representatives here in the House, why don't we
just get back to doing the business of the American people?
Vote ``no'' against this invidious legislation so we can do what the
people have sent us to do here in the United States Congress.
Mr. GOODLATTE. Mr. Chairman, it is my pleasure to yield 3 minutes to
the gentleman from Michigan (Mr. Trott), a member of the Committee on
the Judiciary.
Mr. TROTT. Mr. Chairman, I support H.R. 1927, as it will bring
transparency to the asbestos claims process. This is an important goal,
as the secrecy that currently surrounds the process has led to abuse
and, in turn, compromised the benefits for future victims.
Those who oppose the bill have two arguments against passage. First,
they suggest that there really is not a fraud problem. Well, when you
leave the fox in charge of the henhouse, you typically end up with a
problem.
The facts are pretty clear. A lack of transparency has allowed some
law firms and individuals to manipulate the claims process. This should
not surprise anyone. When you allow one of the ultimate beneficiaries
to structure the trusts, administer the claims, with no accountability
or oversight, of course there will be abuse.
Several policy studies, the GAO, and independent judges in at least
10 different States have found questionable claims, fraud, and abuse.
So to those who vote against this solution, I say you are choosing to
enrich unethical lawyers and claimants at the expense of victims who
have legitimate injuries, injuries for which they deserve compensation.
The second argument against this bill is that it somehow compromises
the privacy of claimants. Again, this is not true. The FACT Act has
much stronger privacy protections than State court. Further, section
107 and rule 9037 of the Federal Rules of Bankruptcy Procedure offer
additional safeguards. The reporting requirements do not require the
disclosure of Social Security numbers or medical records. The act
requires the disclosure of less information than would be required if
the claimant were to start a lawsuit in State court.
A vote against this bill means you are okay with secrecy, you are not
bothered by fraud or abuse, you don't mind allowing lawyers to use
their positions as the architects of these trusts to line their own
pockets, and you don't care about the victims who have legitimate
claims of asbestos-related diseases.
It is, in fact, a problem that people have made this a political
issue. To those who have argued against this bill, I ask: Who will be
there and what resources will be available to our veterans when
fraudulent claims and multiple claims have exhausted these trusts?
The rule contemplated in H.R. 1927 brings much-needed transparency to
Bankruptcy Code section 524G.
I urge my colleagues to support the bill.
Mr. CONYERS. Mr. Chairman, I yield 2\1/2\ minutes to the gentlewoman
from Texas (Ms. Jackson Lee), a senior member of the House Committee on
the Judiciary.
Ms. JACKSON LEE. Chairman Goodlatte and Ranking Member Conyers, thank
you for managing this legislation; and thank you, Mr. Conyers, for
yielding the time.
Many of us in cases dealing with making sure our cities work,
sometimes we have a one-way street, and we gravitate toward the one-way
street because we might be able to move faster down that one-way
street. That is traffic flow.
But when we talk about justice for people, a one-way street doesn't
work because that means only one group of people can find justice at
the courthouse--and that is what this legislation does. It is a one-way
street. Only one group gets victory and justice because only one group
is not required to be transparent. The other group has to be
transparent. They can't get on the one-way street.
I oppose this legislation because it requires the Federal class
action to have each class member suffer the same type and same scope of
injury as the named class. I heard it on the floor by one of our
distinguished Members
[[Page H186]]
saying that it is the broken arm group. If you have got a broken arm,
you are in the class; if you have a broken leg, you aren't, but it came
about through the same incident. That is an unfair and impractical way
of getting justice for the American people.
The second reason I oppose this legislation is because it would
invade the privacy of asbestos victims by requiring the posting of
personal exposure and medical information online and erect new barriers
to victims receiving compensation for their asbestos illness.
Thousands of workers and family members have been exposed to,
suffered, or died of asbestos-related cancers and lung disease. It is
particularly outrageous that many of the major asbestos producers
refuse to accept responsibility.
{time} 1000
I would make the argument that many of us knew a very dear friend,
Congressman Bruce Vento. I understand his wife may be in the gallery.
I think it is important that we think of the asbestos victims and
their families who suffered from mesothelioma, as Congressman Vento
did, and died.
His wife requested an opportunity to testify so that the voices of
their family members could be heard on this bill, but she was turned
down. I will include that letter in the Record.
In the last Congress, she and two other asbestos victims repeatedly
requested to testify on the FACT Act, but they were turned down.
January 5, 2016.
Re Asbestos Patients and Their Families Say ``Listen to
Us''--Oppose Section 3 of H.R. 1927, the So-Called ``FACT
Act''
Dear Representative: We write to express our strong
opposition to the misnamed ``Furthering Asbestos Claim
Transparency Act'' (the FACT Act), which has been
incorporated as Section 3 of H.R. 1927, the ``Fairness in
Class Action Litigation Act.'' Sponsors of the FACT Act claim
that the legislation will ``increase relief for victims of
asbestos.'' We are asbestos patients and family members of
loved ones who have died or presently suffer from the
wrongful and deceitful conduct of asbestos companies. We are
from states and districts across the United States. We are
Republicans and Democrats. We represent current and former
workers, veterans, police officers, firefighters, homemakers
and children. We have come together to express our
unquestioned opposition to this legislation and our utter
outrage that the House may pass it without even giving us--
the ``Real People,'' not of Washington, but the actual
victims of asbestos exposures a chance to testify on the
record about the bill--even though supporters claim it is in
our interest!
The fact is the so-called FACT Act is not in the interest
of asbestos victims. The bill, as it is designed to do, will
make it harder for victims to seek justice for their injuries
and suffering. It is in the interest of the companies that
are lobbying for it--the companies that used asbestos,
knowing that it was a deadly toxin, exposed their workers and
the public, and are now seeking to use Congress to shield
them from legal liability for their behavior. We are
horrified by this reality and we are going to do our best to
let all Americans know what is going on here.
Many of us traveled to Washington, DC in February to watch
the hearing on the FACT Act. Our group's spokesperson, Susan
Vento, the widow of the late Congressman Bruce Vento who
passed away from mesothelioma in 2000, had requested an
opportunity to testify so that the voices of the people who
are most affected by this bill would be heard. But she was
turned down. In the last Congress, Sue and two other asbestos
victims repeatedly requested to testify on the FACT Act, but
they, too, were turned down each time. Tragically, one of
those victims passed away from asbestos disease. To date, not
one person who has been directly affected by the ravages of
asbestos disease has been permitted to testify about this
legislation. The bill's supporters claim to care about
victims, yet we have been treated with disrespect and neglect
every step of the way.
There is really no mystery why supporters of the
legislation don't want to hear from us--it's because they
know that this legislation was never intended to benefit
victims. This legislation is being advanced at the request of
the companies that used asbestos and concealed the dangers
from their workers, employees and consumers, many of whom are
paying with their very lives due to these deadly exposures.
Now these companies are seeking to shield themselves from
responsibility under the guise of imposing ``transparency''
on asbestos victims. Congress should not favor asbestos
wrongdoers over the interests of patients and families.
The FACT Act would force victims seeking any compensation
from a private asbestos trust fund to reveal on a public web
site private information including the last four digits of
our Social Security numbers, and personal information about
our families and kids. This is offensive. The information on
this public registry could be used to deny employment,
credit, and health, life, and disability insurance. We are
also extremely concerned that victims would be more
vulnerable to cybercriminals, such as identity thieves, con
artists, and other types of predators.
Glen Kopp, a partner with the law firm of Bracewell &
Giuliani and a leading authority in the area of privacy law,
recently reviewed the FACT Act and concluded that it presents
significant privacy concerns. (See ``Analysis: Identity Theft
Threatens Asbestos Victims Under Congressional Proposal,''
Asbestos Nation, EWG Action Fund, http://
www.asbestosnation.org/analysis-identity-theft-for-asbestos-
victims-looms-under-
congressional-proposal/)
Mr. Kopp noted that the personal information of asbestos
patients and families that the FACT Act would make public is
precisely the type of information that is typically used by
identity thieves. That is why federal and state law
enforcement authorities recommend this type of information be
kept away from any form of public disclosure. And yet, the
FACT Act would require it to be placed on a public web site!
While the legislation invades the privacy of asbestos
patients and families, it contains no requirements for
transparency from the asbestos industry, which concealed the
dangers of asbestos exposure for decades, causing one of the
worst public health crises in U.S. history, affecting not
just our families, but millions of American families, and
that still continues to this day.
The FACT Act is completely one-sided. It requires so-called
transparency from asbestos victims but it allows asbestos
companies to continue to demand confidentiality of their
settlements and hide information about how and when they
exposed the public and their workers to asbestos. How can
asbestos companies claim they want transparency, after they
spent decades covering up the dangers of asbestos while we
and our family members were unknowingly exposed?
We have heard that the FACT Act is needed because of an
epidemic of fraud against the asbestos trusts. But the
evidence doesn't support this claim. This bill treats us and
other asbestos victims like criminals rather than innocent
victims of corporate deceit.
The signatories on this letter represent thousands of
people across the country who are suffering because of
asbestos exposure. We would like to be in Washington in
person to object to this mean-spirited and dangerous
legislation. But most of us can't travel because of our
illnesses. Others don't have the resources or the time to
come all the way to Washington. But each and every one of us
opposes any legislation that would make life more difficult
for asbestos victims. Asbestos victims and our families don't
have time on our side. Every day counts for us. Mesothelioma
victims are typically racing against the clock to ensure
their families aren't burdened with huge medical bills and
that they are taken care of. It's astonishing to us that, of
all the issues Congress could be addressing relating to
asbestos, you have chosen one that does nothing for victims,
but rather one that gives additional tools to the asbestos
industry to drag out these cases and escape accountability.
We are the real people who matter in this debate, and yet
the supporters of the FACT Act would not allow any of us to
testify. We may have been shut out of the hearings, but we
will not be silenced. We are determined to stop any
legislation that places the interests of the asbestos
industry above the rights of innocent victims. The U.S.
Congress should honor all veterans and hard-working
Americans. Please vote no.
Sincerely,
Susan Vento, Widow of Rep. Bruce Vento (D-MN),
Mesothelioma Victim, Maplewood, Minnesota; Judy Van
Ness, Widow of Richard Van Ness, Veteran and
Mesothelioma Victim, Richmond, Virginia; Kim Beattie,
Niece of Jerry Fisher, beloved Uncle and Mesothelioma
Victim, West Branch, Iowa; Pam Wilson, Neice of Jerry
Fisher, beloved Uncle and Mesothelioma Victim,
Johnston, Iowa; Michael and Sharon Valach, Son and
Daughter-in-law of George Valach, Mesothelioma Victim,
Hiwassee, Virginia; Loring and Mary Jane Williams; Mary
Jane Williams is a Mesothelioma Patient, Springfield,
Ohio; Ginger and Jaffod Horton; Ginger Horton is a
Mesothelioma Patient, Fairview, North Carolina; Jill
Waite, Daughter of Bruce Waite, Deceased Mesothelioma
Victim, Ontario, Ohio; Latonyta Manuel, Widow of Andrew
Manuel Jr., Mesothelioma Victim, Canton, Michigan;
Courtney Davis, Daughter of Larry Davis, deceased,
because Congress never eliminated asbestos use, Durham,
North Carolina; Rachel Alice Shaneyfelt, Rachel is a
Mesothelioma Patient, Trussville, Alabama.
Ms. JACKSON LEE. I want to listen to the families. I oppose this
legislation, and I ask my colleagues to vote against it.
Mr. Chair, I rise in opposition to H.R. 982, the so-called ``Fairness
in Class Action Litigation and Furthering Asbestos Claim Transparency
Act of 2015.''
I oppose this intrusive and burdensome legislation for two reasons.
First, I oppose H.R. 1927 because it would prohibit a federal court
from certifying a federal class action unless each class member has
suffered the same type and same scope of injury as the named class
representative.
The practical effect of this requirement, if enacted, would be the
effective immunization of corporate misconduct and fraud such as the
[[Page H187]]
Volkswagen ``cheat device'' scandal on CleanDiesel vehicles.
For example, if H.R. 1927 were to become law, two families who were
defrauded by Volkswagen would not be able to join together to bring a
class action because they bought their cars at slightly different times
or drove the cars in slightly different ways.
This makes no sense unless the objective is to discourage ordinary
Americans from obtaining relief for the injuries caused by the
misconduct of large national corporations.
The second reason I oppose this legislation is because it would
invade the privacy of asbestos victims by requiring the posting of
personal exposure and medical information online and erect new barriers
to victims receiving compensation for their asbestos illnesses they
contracted through no fault of their own and for which asbestos
producers were legally responsible.
We have witnessed decades of uncontrolled use of asbestos, and, even
after its hazards became widely known, the consequences of this
dangerous product are visiting death, disease, and heartbreak on
innocent victims and their families.
Hundreds of thousands of workers and family members have been exposed
to, suffered from, or died of asbestos-related cancers and lung
disease.
And sadly, the toll continues to the present day.
It is estimated that each year 10,000 people in the United States are
expected to die from asbestos related diseases.
This is an outrage--and to add to their misery--they have to deal
with the onerous provisions of H.R. 1927.
Time and time again, asbestos victims have faced huge obstacles,
inconvenient barriers, and veiled but persistent resistance in
receiving compensation for their injuries.
It is important to note that asbestos litigation is the longest-
running mass tort litigation in the history of the United States.
It is particularly outrageous that many of the major asbestos
producers refused to accept responsibility and most declared bankruptcy
in an attempt to limit their future liability.
In 1994 Congress passed reasonably balanced legislation that allowed
the asbestos companies to set up bankruptcy trusts to compensate
asbestos victims and reorganize under the bankruptcy law.
But these trusts lack adequate funding to provide just compensation;
according to a 2010 RAND study, the median payment across the trusts is
sufficient to compensate only 25% of the damages suffered by the
claimant.
With compensation from these trusts so limited, asbestos victims have
sought redress from the manufacturers of other asbestos products to
which they were exposed--the original tortfeasors.
The Occupational Safety and Health Administration, better known as
OSHA, noted two decades ago that: ``It was aware of no instance in
which exposure to a toxic substance has more clearly demonstrated
detrimental health effects on human than has asbestos exposure.''
We see the harm that asbestos causes when it afflicts its victims--
ordinary Americans who simply went to work every day to support their
families.
And although the proponents of this legislation assert that it is
intended to protect asbestos victims, it is interesting to note that
not a single asbestos victim has come forth to express support for this
legislation.
As the widow of one of our former colleagues, the beloved Congressman
Bruce Vento of Minnesota, who passed away from mesothelioma, has
stated, this legislation ``does not do a single thing'' to help
asbestos victims and their families.
H.R. 1927 does not help and actually disturbs a reasonably well-
functioning asbestos victim compensation process.
Entities facing overwhelming mass tort liability for causing asbestos
injuries may, under certain circumstances, shed these liabilities and
financially regain their stability in exchange for funding trusts
established under Chapter II of the Bankruptcy Code to pay the claims
of their victims, under certain circumstances.
H.R. 1927, however, interferes with this longstanding process in two
ways.
First, the legislation would require these trusts to file a publicly
available quarterly report with the bankruptcy court that includes
personally identifiable information about claimants, including their
names, exposure history, and basis for any payment made to them.
Second, the bill requires the trusts to provide any information
related to payment and demands for payment to any party to any action
in law or equity concerning liability for asbestos exposure.
It is particularly galling that many of the major asbestos producers
refuse to accept responsibility and that most declared bankruptcy in an
attempt to limit their future liability.
How much more can we put on these poor victims?
If you want information, go to their counsel, go to the courthouse.
With more than 10,000 Americans suffocating every year from horrific
asbestos diseases like mesothelioma, this House should be focused on
ensuring justice for the victims and protecting the public health and
safety instead of debating legislation designed to delay compensation
and deny justice for dying asbestos victims.
I urge my colleagues to vote against this utterly intrusive
legislation.
Mr. GOODLATTE. Mr. Chairman, I continue to reserve the balance of my
time.
Mr. CONYERS. Mr. Chairman, I yield 1 minute to the gentlewoman from
California (Ms. Pelosi), the minority leader.
Ms. PELOSI. I thank the gentleman for yielding, and I thank him for
his ongoing championing of the pledge we take every day: liberty and
justice for all.
Mr. Chairman, last year marked the 800th anniversary of the signing
of the Magna Carta. Eight hundred years ago, this storied charter first
laid out a basic right to justice as the foundation of a fair society.
It was interesting to see in the observance of the 800th anniversary
of the Magna Carta that they brought out 12 chairs to represent where
the barons sat to make their case to King John. Those 12 chairs
represent a trial by jury, 12 peers. Even under the King, the Magna
Carta declared the lawful judgment by his peers. This much was owed the
people.
``To no one will we sell, to no one will we deny, or delay right or
justice.'' We pledge each day not justice for only the powerful and the
wealthy, but liberty and justice for all.
You can read what I said and much more about justice and the Magna
Carta in the book ``1215: The Year of Magna Carta.'' It is pretty
thrilling that 800 years ago, people knew that it was fundamental for
the leverage to be with the people and that they had rights. The right
to justice is part of the beating heart of America's democracy. It is
the sword and shield against plutocracy and tyranny.
Yet, today, with their class action bill, Republicans are trying to
weaken that right, taking the justice that belongs to every American
and handing it to the privileged few. It is about who has the leverage.
Class actions are an indispensable tool for individuals to hold
powerful interests and big corporations accountable for their misdeeds.
Without the ability to band together, Americans who have endured grave
injuries and egregious wrongs face a David and Goliath struggle for
justice.
Without class actions, the wealthy and powerful can divide and
conquer their victims, burying families' pleas for fair remedy with the
sheer weight of their money and resources. With this bill, Republicans
are yet again helping the special interests flatten hardworking
Americans.
We see the same goal in play in the Republican provisions attacking
asbestos victims that are folded into this bill. As was mentioned by
our colleague, Congresswoman Jackson Lee, in her letter, Sue Vento,
widow of our esteemed colleague, Bruce Vento, made a plea for them not
to include this in this bill, but they did.
These provisions claim to serve transparency. Indeed, the
Republicans' effort to protect asbestos companies, intimidate asbestos
victims, could not be clearer. They require absolutely no transparency
on the part of the asbestos companies. Instead, they invade the privacy
of thousands of Americans, many of them veterans and even children in
schools.
This isn't about somebody taking a job that has risks. This is about
children going to school and being exposed to asbestos and their
privacy being invaded.
I am so pleased we will have a motion to recommit to address that
later.
It also makes them vulnerable to harm by disclosing personal
information in the public domain.
Over and over again, this Republican Congress works to stack the deck
for the special interests against hardworking Americans. We see it in
campaign finance, where Republicans will drown the voices of the
American people in a tidal wave of unlimited special interest spending
in our elections and completely resisting any opportunity to disclose.
If you like transparency, you should love disclosure of where this
money is coming from.
[[Page H188]]
We see it in the assault on labor, where Republicans would dismantle
collective bargaining and undermine workers seeking a bigger paycheck,
which they have long deserved.
We see it in this bill on class actions, where Republicans would deny
justice to millions of Americans. In the courts, in the workplace, in
our environment, in our elections, the Republican Congress has
strengthened powerful interests and weakened hardworking Americans.
Our Founders pledged their lives, their liberty, their sacred honor,
to establish a government of the many, not a government of the money.
This is the people's House. Let us stand with the American people in
opposing this appalling Republican bill.
With that, I urge a ``no'' vote on the bill.
Mr. GOODLATTE. Mr. Speaker, I yield 2\1/2\ minutes to the gentleman
from Texas (Mr. Farenthold).
Mr. FARENTHOLD. Mr. Chairman, as we have been going through this
debate, we have entered in the Record and had some discussions about
the groups that oppose this bill. I did want to point out that there
are quite a few organizations--veterans organizations included--that
are in support of this bill.
In fact, there is a pretty broad base of support: The 60 Plus
Association; the Air Force Association, Department of Indiana; the
American Military Society; the Arizona Chamber of Commerce and
Industry; Arizona Manufacturers Council; the Civil Justice Association
of California; Coalition for Common Sense; Cost of Freedom, Indiana
Chapter; Florida Chamber of Commerce; Florida Justice Reform Institute;
Georgia Chamber of Commerce; Hamilton County Veterans; Illinois Chamber
of Commerce; Lawsuit Reform Alliance of New York; the Louisiana
Association of Business and Industry; the Michigan Chamber of Commerce;
the Military Officers Association, Indianapolis Chapter; Missing in
America Project of Indiana; National Association of Manufacturers; the
National Black Chamber of Commerce; the New Jersey Civil Justice
Institute; the North Carolina Chamber of Commerce; the Pennsylvania
Chamber of Commerce and Business and Industry; the Reserve Officers
Association Department of Indiana; Save Our Veterans; the South
Carolina Civil Justice Coalition; the Taxpayers Protection Alliance;
the Texas Civil Justice League; the Cost of Freedom, Inc., of Indiana;
Texans for Lawsuit Reform; the U.S. Chamber Institute for Legal Reform,
the U.S. Chamber of Commerce; the Veteran Resource List; the West
Virginia Business and Industry Council; the West Virginia Chamber of
Commerce; Wisconsin Manufacturers & Commerce; and, importantly, to me,
as a Texan, the Texas Coalition of Veterans Organization, which is an
umbrella group that represents more than 600,000 Texas veterans.
This bill is absolutely pro-veteran. As was pointed out on the other
side of the aisle, a very large percentage of folks exposed to asbestos
are veterans compared to the general population. Under sovereign
immunity, they have no one to turn to but these trusts and the
manufacturers that created these trusts.
So it is important that we have the FACT Act to preserve the
resources in these trusts so that our veterans who are injured by
asbestos and come down with mesothelioma or other asbestos-related
diseases have resources to compensate them for their injury.
Mr. CONYERS. Mr. Speaker, I yield myself 15 seconds to ask my friend
from Texas: Are there any asbestos victims organizations among that
list that you recited?
I yield to the gentleman from Texas (Mr. Farenthold).
Mr. FARENTHOLD. I don't know if any of them particularly are asbestos
victims associations. But, again----
Mr. CONYERS. Reclaiming my time, that is what I wanted to know, and
the gentleman has told me.
Mr. Chairman, I yield 1\1/2\ minutes to the gentleman from
Pennsylvania (Mr. Cartwright).
Mr. CARTWRIGHT. Mr. Chairman, I rise this morning to add my voice to
those speaking against this anticonsumer bill and to remind my
colleagues, if I can, of what it is to be an American.
One of the signal features of American citizenship is that we have
rights. We have rights to property, to liberty, to our privacy. We have
rights to be free of negligently inflicted injury and death. We have
rights to be free of dangerous and defective products. We have rights
that are enforced in court. These are rights that are respected.
To the point Representative Cohen made, people around the world envy
us for our rights, our Bill of Rights, our full spectrum of rights.
People envy us all over the world for our individual rights. But these
individual rights are no good unless you can go to court and enforce
them.
And make no mistake, Mr. Chair, the people who are bringing this bill
and who are behind it are the ones who routinely get hauled into court
to account for causing injuries and violations of American individual
rights. They are the ones behind this bill.
The bill is wrong. Cutting back on American individual rights is
wrong, too. So I urge my colleagues to vote ``no'' on H.R. 1927.
Mr. FARENTHOLD. Mr. Chairman, I reserve the balance of my time.
Mr. CONYERS. Mr. Chairman, I yield 2 minutes to the gentleman from
Virginia (Mr. Scott), our former leader of the Committee on the
Judiciary.
Mr. SCOTT of Virginia. I thank the gentleman for yielding.
Mr. Chairman, I rise in opposition to H.R. 1927, the so-called
Fairness in Class Action Litigation Act.
In 2013, in Butler v. Sears, Judge Posner of the Seventh Circuit
Court of Appeals spoke critically of the commonality in damages
requirement found in this bill.
He said that ``the fact that damages are not identical across all
class members should not preclude class certification. Otherwise
defendants would be able to escape liability for tortious harms of
enormous aggregate magnitude but so widely distributed as not to be
remediable in individual suits.'' The court found that such a
requirement ``would drive a stake through the heart of the class action
device.''
Furthermore, Mr. Chair, the bill includes the so-called FACT Act,
which would have a devastating impact on workers exposed to asbestos.
In the last few decades, thousands of workers in my district have
developed asbestosis, lung cancer, and mesothelioma because of asbestos
exposure that occurred between the 1940s and 1970s.
This exposure was inflicted upon many victims by corporations, such
as one a New Jersey court found to have ``made a conscious, cold-
blooded business decision, in utter flagrant disregard of the rights of
others, to take no protective or remedial action.''
That is the kind of business that will benefit from the bill. The
victims don't want it.
In the letter the ranking member will be introducing, they point out
that veterans represent 8 percent of the population, but 30 percent of
the victims.
That letter points out that the FACT Act would mandate unnecessary
public disclosure of sensitive personal information and would increase
the cost of litigation, thereby limiting the available pool of money to
compensate the victims of those cold-blooded business decisions.
Mr. Chairman, I would hope that we would recognize that the asbestos
victims have suffered too much already. Therefore, we should defeat
this legislation.
Mr. FARENTHOLD. Mr. Chairman, I continue to reserve the balance of my
time.
Mr. CONYERS. Mr. Chairman, I yield 2 minutes to the gentleman from
Texas (Mr. Gene Green).
{time} 1015
Mr. GENE GREEN of Texas. Mr. Chairman, I want to thank our ranking
member of the Judiciary Committee for yielding to me.
I rise in strong opposition to this legislation. The so-called
Fairness in Class Action Litigation Act is an attempt by the House
majority to take away America's access to the courthouse and punish
asbestos victims by requiring personal information be made public on
the Internet.
I am proud to represent the hardworking people in the 29th District
of Texas. Our district is home to the Port of Houston and the largest
petrochemical complex in the country. The people in Eastside Houston
and Harris County are proud of the work they do in producing the oil
and gas and chemicals that drive our Nation's economy.
[[Page H189]]
We also produce a lot of seafarers because we are the largest
international port in the country.
This inherently hazardous work needs to be done as safely as
possible. Workers in Harris County and throughout our great country
should not be exposed to known human carcinogens like asbestos. This is
why I introduced, with my colleague, Representative Suzan DelBene, the
Reducing Exposure to Asbestos Database, or READ Act, last year.
This legislation would expand existing protections enacted under the
Reagan administration that would create a public database with the
location of asbestos and asbestos-containing products in the country.
The READ Act would bring much-needed transparency to the known
location of asbestos in our country, potentially saving thousands of
Americans from asbestos-related illnesses, like lung cancer and
mesothelioma, while helping industry reduce workers' exposure to this
known carcinogen.
I urge my colleagues to stand with America's working families and
join me in voting against today's bill that unfairly punishes asbestos
victims and denies the American people access to the justice they
deserve.
Mr. FARENTHOLD. Mr. Chairman, I continue to reserve the balance of my
time.
Mr. CONYERS. Mr. Chairman, I yield myself the balance of my time.
Members of the House, this legislation is just the latest attempt to
take power away from ordinary citizens and place it in the hands of the
most powerful corporations and industries in this country.
Whether it is by making it almost impossible for ordinary people to
pursue their day in court through the important class action mechanism
or threatening the privacy of asbestos victims, it is clear that H.R.
1927 does not have the interest of ordinary people in mind.
And it raises a broader question of who, rightfully, should hold
power in a representative democracy like ours, politically
unaccountable corporations, who seek only to maximize their own profit,
or the people who are supposed to be sovereign. We say it is the
people.
I yield back the balance of my time.
Mr. FARENTHOLD. Mr. Chairman, I yield myself such time as I may
consume to close.
There have been a lot of arguments we have heard today for and
against this bill, but I think the biggest argument for it is that it
preserves precious and limited resources for those who were injured by
asbestos and shuts down an avenue of waste, fraud, and abuse that is
being exploited right now in the current system.
There has also been a lot of talk about veterans. Folks have said the
FACT Act hurts veterans. I say it helps veterans. As I pointed out
earlier, veterans cannot pursue litigation against the United States
Government because of sovereign immunity, so they have to rely solely
on the bankruptcy claims process to get recovery. That is why a
significant number of veterans groups, many of whom I list earlier,
have written to the committee in support of the FACT Act.
In fact, let me read you the words of John Brieden, a former national
commander of the American Legion, in a letter he wrote to The Hill.
The FACT Act, and its sunshine provision, is strongly
supported by veterans like myself who are dedicated to
preserving the rapidly diminishing congressionally
established asbestos trust fund for all servicemembers who
have been injured by a substance we now know to be dangerous
and even deadly.
The best way to protect veterans and other asbestos victims from
attorneys' double dipping is the FACT Act's requirement to disclose
information about the trust fund claims. We have got to protect the
privacy in here. That is why the FACT Act was specifically drafted to
protect the privacy of those who claim.
The text of the section of the bill that deals with asbestos trusts
is only 1\1/2\ pages long, but a big part of that is dedicated to
privacy. The disclosures are minimal. It is the name of the person, the
type of their injury. It particularly prohibits the disclosure of the
claimant's Social Security number. So protection is done.
The settlement amounts, work history, and information about the
veteran's children and family is simply not in the bill. Furthermore,
confidential medical records and Social Security numbers disclosing
that information is expressly prohibited under the bill.
So, in summary, this legislation enacts two important reforms that
will increase fairness in class action lawsuits and will introduce
transparency into the asbestos trust system.
Given that class action lawsuits involve more money and touch more
Americans than any other litigation pending in our legal system, it is
important we have a Federal class action system that benefits those
that have been truly injured, and injured in comparable ways, and is
fair to both plaintiffs and defendants.
The Fairness in Class Action Litigation Act would require that a
class be composed of members with comparable injuries. The bill would,
thereby, achieve a very important reform, clustering actually injured
individuals or similarly injured class members in their own class.
People who were injured deserve their own class action in which they
present their uniquely powerful cases and get the large recoveries that
they deserve.
Under this legislation, uninjured or noncomparably injured people can
still join class actions, but they must do so separately, without
taking away from the potential recovery of those who are actually
injured or more significantly injured.
This legislation also seeks to introduce a modest amount of
transparency into a very opaque asbestos bankruptcy system.
The opponents to the FACT Act have offered creative and far-ranging
allegations against the measure, but we know these allegations are
unfounded. What we do know is the that there is widespread fraud and
abuse in the asbestos bankruptcy trust system because it has been
documented in news reports, State bankruptcy cases, and before the
Judiciary Committee in numerous hearings on this issue.
We also know that the FACT Act will introduce transparency to help
curb this fraud, and it will help asbestos victims by protecting these
trust funds for those future claimants who have not yet started to show
symptoms.
I urge my colleagues to reject the unfounded allegations offered
against today's bill and vote in support of these simple, meaningful,
commonsense reforms.
I yield back the balance of my time.
The CHAIR. All time for general debate has expired.
Pursuant to the rule, the bill shall be considered for amendment
under the 5-minute rule.
In lieu of the amendment in the nature of a substitute recommended by
the Committee on the Judiciary printed in the bill, it shall be in
order to consider as an original bill for the purpose of amendment
under the 5-minute rule an amendment in the nature of a substitute
consisting of the text of Rules Committee Print 114-38. That amendment
in the nature of a substitute shall be considered as read.
The text of the amendment in the nature of a substitute is as
follows:
H.R. 1927
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Fairness in Class Action
Litigation and Furthering Asbestos Claim Transparency Act of
2015''
SEC. 2. FAIRNESS IN CLASS ACTION LITIGATION.
(a) In General.--No Federal court shall certify any
proposed class seeking monetary relief for personal injury or
economic loss unless the party seeking to maintain such a
class action affirmatively demonstrates that each proposed
class member suffered the same type and scope of injury as
the named class representative or representatives.
(b) Certification Order.--An order issued under Rule
23(c)(1) of the Federal Rules of Civil Procedure that
certifies a class seeking monetary relief for personal injury
or economic loss shall include a determination, based on a
rigorous analysis of the evidence presented, that the
requirement in subsection (a) of this section is satisfied.
SEC. 3. FURTHERING ASBESTOS CLAIM TRANSPARENCY.
(a) Amendments to Title 11, United States Code.--Section
524(g) of title 11, United States Code, is amended by adding
at the end the following:
``(8) A trust described in paragraph (2) shall, subject to
section 107--
``(A) file with the bankruptcy court, not later than 60
days after the end of every quarter, a report that shall be
made available on the
[[Page H190]]
court's public docket and with respect to such quarter--
``(i) describes each demand the trust received from,
including the name and exposure history of, a claimant and
the basis for any payment from the trust made to such
claimant; and
``(ii) does not include any confidential medical record or
the claimant's full social security number; and
``(B) upon written request, and subject to payment
(demanded at the option of the trust) for any reasonable cost
incurred by the trust to comply with such request, provide in
a timely manner any information related to payment from, and
demands for payment from, such trust, subject to appropriate
protective orders, to any party to any action in law or
equity if the subject of such action concerns liability for
asbestos exposure.''.
(b) Effective Date; Application of Amendments.--
(1) Effective date.--Except as provided in paragraph (2),
this section and the amendments made by this section take
effect on the date of the enactment of this Act.
(2) Application of amendments.--The amendments made by this
section shall apply with respect to cases commenced under
title 11 of the United States Code before, on, or after the
date of the enactment of this Act.
The CHAIR. No amendment to that amendment in the nature of a
substitute shall be in order except those printed in House Report 114-
389. Each such amendment may be offered only in the order printed in
the report, by a Member designated in the report, shall be considered
read, shall be debatable for the time specified in the report equally
divided and controlled by the proponent and an opponent, shall not be
subject to amendment, and shall not be subject to a demand for division
of the question.
Amendment No. 1 Offered by Mr. Cohen
The CHAIR. It is now in order to consider amendment No. 1 printed in
House Report 114-389.
Mr. COHEN. Mr. Chairman, I have an amendment at the desk.
The CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
Line 6 on the first page, strike ``No'' and insert ``Except
as provided in subsection (c), no''.
After line 18 on the first page, insert the following:
(c) Exception.--Subsection (a) does not apply with respect
to a claim for monetary relief brought against a perpetrator
of a terrorist attack by a victim of the attack.
The CHAIR. Pursuant to House Resolution 581, the gentleman from
Tennessee (Mr. Cohen) and a Member opposed each will control 5 minutes.
The Chair recognizes the gentleman from Tennessee.
Mr. COHEN. Mr. Chairman, I rise in support of my amendment, which was
made in order, and which would make an exception to H.R. 1927's
required showing for class certification for any claims brought by the
victims of a terrorist attack against the attack's perpetrators.
We all agree that victims of terrorist attacks deserve justice, and
they should have the fullest opportunity to obtain compensation for any
injuries they have suffered because of such attacks.
Sadly, our history over the last generation has no shortage of
examples of the kind of victims this amendment would help. From the
1983 bombing of the Marine barracks in Beirut and the 1996 Khobar
Towers bombing in Saudi Arabia, to the downing of Pan Am 103 by
Qadhafi's Libya, recourse to our courts has been one of the few ways
that victims of terrorism have been given at least some opportunity to
seek justice for the acts committed against their family members and
them.
I know Chairman Goodlatte shares my concerns for these victims, and I
applaud him for his successful efforts to create a compensation fund
for those victims of state sponsors of terrorism who receive final
court judgements against those state sponsors.
The program also compensates those held hostage in the U.S. Embassy
in Iran in 1979.
In some of these cases, the victims, or their survivors, pursued
class actions against the state sponsors of the terrorist act. Yet,
under section 2 of H.R. 1927, these victims may not have had the
opportunity to pursue a class action in the first place.
As noted during the general debate, section 2 adds the new
requirement that a named plaintiff prove, as a condition of class
certification, that every putative class member suffered the same
``scope'' of injury; not comparable, but the same scope.
This requirement can be read to preclude a class action where, for
instance, one terrorism victim loses his legs, while another loses his
arms as a result of some terrorist attack. Or maybe somebody isn't a
direct victim of the terrorist attack, but hurt in the aftermath of the
attack. In short, they did not suffer the same scope of injury.
I note that ``scope'' can mean the same thing as ``extent,'' as the
bill introduced originally stated. Current rules, while requiring
commonality of facts and law, does not require a showing of commonality
in damages as a prerequisite for certifying a class action, as this
``scope of injury'' standard requires.
It is rare that two class members suffer the exact same scope of
injury, and almost impossible to prove this at the certification stage.
Think about Boston. Some people lost a leg, some people lost a life,
some people lost both legs. They couldn't be part of a class. The
relevant inquiry is whether they allegedly both suffered injury as a
result of the same alleged wrongful act by the defendant.
It is hard enough as it is to pursue class actions because of years
of efforts by industry to make it more and more difficult. Sometimes,
in these terrorist situations, it is a different type of defendant.
It is wrong to place the heightened burdens of H.R. 1927 on terrorism
victims who seek justice for the acts committed against them. I would
ask that this amendment be accepted by the other side because all it
does is make exception for victims of terrorism, and we all share in
our hope that victims of terror get justice and that we don't put any
more hurdles in the way of them successfully completing the track of
seeking justice for them and their heirs, ancestors who might have been
killed in those attacks.
My amendment would offer them relief of these burdens, and I would
hope the other side would accept it.
I yield back the balance of my time.
Mr. FARENTHOLD. Mr. Chairman, I rise in opposition to the amendment.
The CHAIR. The gentleman from Texas is recognized for 5 minutes.
Mr. FARENTHOLD. Mr. Chairman, I agree with Mr. Cohen 100 percent that
the victims of terrorism deserve compensation from those who
perpetrated the acts of terror.
However, I oppose this amendment because it denies the victims of
terrorism the protections that the bill would otherwise afford them. If
this amendment is adopted, it would result in less compensation for the
most deserving victims in class action lawsuits.
Under the base bill, the most severely injured victims of terrorism
would have their own day in court, and they would be compensated to the
maximum extent because their entire class would consist of
significantly injured members.
Under the base bill, the most significantly injured will not have
their compensation reduced by the cost of weeding out from the class
the significantly less injured or uninjured.
But if this amendment were adopted, huge numbers of uninjured or less
significantly injured victims of terrorism would be allowed into the
class and be able to siphon off for themselves the limited resources
that may be available to compensate those most injured. That is not
right and it is not fair, but that is what this amendment would allow.
{time} 1030
To recap, thed purpose of a class action is to provide a fair means
of evaluating similar claims, not to provide a means of artificially
inflating the size of a class to extort a larger settlement value.
Exempting a subset of money damage cases from the bill, as this
amendment would do, would only serve to incentivize the creation of
artificially large classes to extort larger or unfair settlements from
innocent parties for the purpose of disproportionately awarding
uninjured parties.
Any claims seeking monetary relief for personal injuries or economic
loss should be grouped into classes that are similar with the most
injured receiving the most compensation. It is a fair principle that
should be applied equally for the benefit of all, including terrorism
victims. Why should victims of terrorism be subjected to a particularly
unfair treatment by being allowed to be forced into a class action
[[Page H191]]
with other uninjured or marginally injured members, only to see their
own compensation reduced? That does a disservice to those claimants,
yet that is exactly what the amendment attempts to do.
Mr. Chairman, I oppose this amendment, and I urge my colleagues to
oppose this amendment.
Mr. Chairman, I yield back the balance of my time.
The CHAIR. The question is on the amendment offered by the gentleman
from Tennessee (Mr. Cohen).
The question was taken; and the Chair announced that the noes
appeared to have it.
Mr. COHEN. Mr. Chairman, I demand a recorded vote.
The CHAIR. Pursuant to clause 6 of rule XVIII, further proceedings on
the amendment offered by the gentleman from Tennessee will be
postponed.
Amendment No. 2 Offered by Mr. Cohen
The CHAIR. It is now in order to consider amendment No. 2 printed in
House Report 114-389.
Mr. COHEN. Mr. Chairman, I rise to ask that the amendment be
considered.
The CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
Line 6 on the first page, strike ``No'' and insert ``Except
as provided in subsection (c), no''.
After line 18 on the first page, insert the following:
(c) Exception.--Subsection (a) does not apply with respect
to a claim for monetary relief arising from a foreign-made
product.
The CHAIR. Pursuant to House Resolution 581, the gentleman from
Tennessee (Mr. Cohen) and a Member opposed each will control 5 minutes.
The Chair recognizes the gentleman from Tennessee.
Mr. COHEN. Mr. Chairman, having seen the outcome of the last vote
where there was one Member of the other side and four Members of this
side, and the vote was given to the other side, I just think that it
would be best for the process if I withdrew this amendment because I
can see the writing on the wall. And I am going to withdraw the
amendment and hope that maybe on the floor we will pass something that
takes care of the victims of terror and see that they aren't deterred
by this.
I would like to just mention my friend, Warren Zevon, again. He had a
song called ``Lawyers, Guns and Money'' and the other side is certainly
for two-thirds of that.
Mr. Chairman, I ask unanimous consent to withdraw the amendment.
The CHAIR. Is there objection to the request of the gentleman from
Tennessee.
There was no objection.
The CHAIR. The amendment is withdrawn.
Amendment No. 3 Offered by Mr. Conyers
The CHAIR. It is now in order to consider amendment No. 3 printed in
House Report 114-389.
Mr. CONYERS. I have an amendment at the desk, Mr. Chairman.
The CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
Line 6 on the first page, strike ``No'' and insert ``Except
as provided in subsection (c), no''.
After line 18 on the first page, insert the following:
(c) Exception.--Subsection (a) does not apply with respect
to a claim for monetary relief under title VII of the Civil
Rights Act of 1964 (42 U.S.C. 2000e et seq.).
The CHAIR. Pursuant to House Resolution 581, the gentleman from
Michigan (Mr. Conyers) and a Member opposed each will control 5
minutes.
The Chair recognizes the gentleman from Michigan.
Mr. CONYERS. Mr. Chairman, I rise in support of the amendment which
would exempt from section 2(a) of the bill any claim for monetary
relief under title VII of the Civil Rights Act of 1964. Title VII
prohibits discrimination in employment on the basis of race, color,
sex, religion, or national origin.
During the subcommittee hearing on H.R. 1927 in the Judiciary
Committee, I expressed concern about the effect the bill's original
language would have on civil rights claims. In particular, I was
concerned that the bill applied to all class actions and that it
restrictively defined ``injury'' to mean the alleged impact of a
defendant's action on a plaintiff's body or property. Although the bill
was revised in committee to delete this narrow definition of ``injury''
from H.R. 1927 and to limit the bill's scope to class actions seeking
monetary relief for personal injury or economic loss, I remain
concerned that significant categories of civil rights cases could still
be effectively precluded by this bill.
Plaintiffs in employment discrimination cases, cases that seek
backpay and other monetary relief for economic loss resulting from an
adverse employment decision, frequently pursue class actions because
such employment cases tend to be the kind that are well-suited for
class treatment. These cases often involve multiple victims who were
subjected to the same discriminatory employment practice or policy.
While damages awarded pursuant to a single plaintiff may not be large
enough to deter the employer's alleged wrongdoing, aggregate damages
awarded to plaintiffs as a result of a class action would have a
deterrent effect.
Unfortunately, the bill still requires class action plaintiffs to
prove at the certification stage that every potential class member
suffered the same type and same scope of injury, a requirement that is
virtually impossible and cost prohibitive to meet. This onerous
requirement would effectively deter employment discrimination
plaintiffs from proceeding with any class actions.
Moreover, Federal Rule of Civil Procedure 23 already imposes
significant constraints on the ability of plaintiffs to pursue class
actions. Indeed, it was an employment discrimination case in Walmart v.
Dukes that the Supreme Court gave what, in my view, was a cramped
interpretation of rule 23's commonality requirement making it harder
for employees claiming discrimination to proceed as a class.
Because of my continuing concerns with the legislation's potential
effects on this important category of civil rights cases, I urge the
House to adopt my amendment.
Mr. Chairman, I reserve the balance of my time.
Mr. FARENTHOLD. Mr. Chairman, I rise in opposition to the amendment.
The CHAIR. The gentleman from Texas is recognized for 5 minutes.
Mr. FARENTHOLD. Mr. Chairman, I oppose this amendment.
First, the base bill only applies to proposed classes ``seeking
monetary relief for personal injury or economic loss.'' Insofar as
civil rights cases do not seek money damages, they are completely
unaffected by the substitute and would proceed just as they do today.
Indeed, Rule 23(b)(2) expressly provides for civil rights cases in
which a class action can be certified when the defendant--and I am
quoting the rule--``has acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the class as
a whole.'' Injunctive relief and declaratory relief, of course, are not
claims for monetary relief.
Now, if money damages are sought by a proposed class, then of course
they should be subject to the procedures in this bill. The purpose of a
class action is to provide a fair means of evaluating like claims, not
to provide a means for artificially inflating the size of a class to
extort a larger settlement value. Exempting a subset of money damage
cases from the bill, as this amendment would do, would serve only to
incentivize the creation of artificially large classes to extort larger
and unfair settlements for the purpose of disproportionately awarding
uninjured plaintiffs.
Any claims seeking monetary damages for personal injury or economic
loss should be grouped in classes in which those who are most injured
receive the most compensation. Why should certain civil rights
claimants seeking money damages under one specific statute be subjected
to a particularly unfair treatment by being allowed to be forced into a
class action with other uninjured or minimally injured members, only to
see their own compensation reduced? That does a disservice to those
claimants. That is exactly what this amendment would do.
Mr. Chairman, I urge my colleagues to oppose the amendment.
Mr. Chairman, I yield back the balance of my time.
Mr. CONYERS. Mr. Chairman, I yield back the balance of my time.
The CHAIR. The question is on the amendment offered by the gentleman
from Michigan (Mr. Conyers).
[[Page H192]]
The question was taken; and the Chair announced that the noes
appeared to have it.
Mr. CONYERS. Mr. Chairman, I demand a recorded vote.
The CHAIR. Pursuant to clause 6 of rule XVIII, further proceedings on
the amendment offered by the gentleman from Michigan will be postponed.
Amendment No. 4 Offered by Mr. Deutch
The CHAIR. It is now in order to consider amendment No. 4 printed in
House Report 114-389.
Mr. DEUTCH. Mr. Chairman, I have an amendment at the desk.
The CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
Line 6 on the first page, strike ``No'' and insert ``Except
as provided in subsection (c), no''.
After line 18 on the first page, insert the following:
(c) Exception.--This section does not apply with respect to
a claim brought by a gun owner seeking monetary relief
involving the defective design or manufacturing of a firearm.
The CHAIR. Pursuant to House Resolution 581, the gentleman from
Florida (Mr. Deutch) and a Member opposed each will control 5 minutes.
The Chair recognizes the gentleman from Florida.
Mr. DEUTCH. Mr. Chairman, we know the intentions behind the bill
before us today, H.R. 1927, the so-called Fairness in Class Action
Litigation Act. The goal of this bill isn't to protect consumers. The
goal of this bill is to wipe out class action lawsuits and to deprive
consumers of their ability to band their resources together to take
large corporations to court for defective and, many times, dangerous
products.
We have heard from many of my colleagues already today about the
problems this bill creates, and I agree that this is a bad bill. But it
is a uniquely bad bill for one group in particular: gun owners. That is
right, gun owners--law-abiding Americans exercising their Second
Amendment rights who suffer injury or even death when gun manufacturers
sell defective and ultrahazardous weapons.
Every year, many gun owners and innocent bystanders are killed when a
firearm discharges just at being set down on the ground, when a faulty
safety leaves a child dead, when an experienced and safety-conscious
gun owner is the victim of a deadly malfunction. Unique to consumer
products, no Federal safety agency has the authority to issue a recall
of a defectively manufactured firearm. Indeed, the Consumer Product
Safety Commission has jurisdiction and oversight to ensure that more
than 15,000 household and recreation products are safe for consumers.
Thanks to years of hard work by the gun lobby, the Consumer Product
Safety Commission is specifically prohibited from protecting consumers
from defectively manufactured firearms. Moreover, the Bureau of
Alcohol, Tobacco, Firearms and Explosives has the authority to license
gun manufacturers but does not have the authority to recall defectively
manufactured firearms.
Today, this bill's rigorous requirement for certifying a class would
render gun owners even more powerless. Currently, gun owners' only
recourse in these unfortunate events is our court system, and most
people don't have the resources to go up against the massive titans of
the gun industry.
Let me give you an example of the kind of class action suit that
would not exist under this legislation. In 2013, a class action was
filed against Taurus in a U.S. District Court in my State of Florida.
The claim involved a design defect in the semiautomatic pistol's
trigger safety blade.
Let me read you a news story from Alabama. You will hear about Judy
Price, an experienced gun owner. She says she knows them all, how to
handle them safely, and she speaks to people taking concealed-carry
classes. Price said that no amount of gun knowledge could have saved
her from what happened in 2009. Her concealed-carry holster fell to the
floor as she was undressing. Then her Taurus pistol went off with a
bullet going through her groin, through her stomach, and into her
liver.
``I laid down on the floor. I looked up into his eyes, and I said,
`Paul, I am going to die tonight. But I love you.' ''
Incredibly, she didn't die that night, although for about 9 days it
was ``touch and go,'' she said.
The lead plaintiff in this country was actually a sheriff from Iowa.
Chris Carter, a sheriff's deputy in Scott County, was serving on
narcotics detail and was pursuing a fleeing suspect. As he ran, his
pistol fell from his holster, hitting the ground and discharging a
bullet that struck a nearby vehicle. Luckily, it was unoccupied.
Thanks to the ability to pursue a class action, this case was
settled, and Taurus voluntarily recalled the pistols. Under this
legislation, it is unlikely that gun owners wronged by bad actors in
the gun manufacturing industry would have any recourse at all.
I will give you one more example. The gun owner who took his 22 Colt
single-action revolver with him fishing. When his gun fell out of his
holster, it fired and lodged a bullet in his bladder. He lost the
ability to have children.
Under this bill, Federal courts would only be able to hear class
action suits involving a group of people if they can prove that they
have all ``suffered the same type and scope of injury'' as the named
representatives. The family who lost a loved one to a bullet wound in
the head due to a defective gun living in Florida would not be able to
join with a gun owner shot in the knee in Oregon, would not be able to
join together and seek justice even if the injuries were caused by the
same defect in the same make and model of gun.
{time} 1045
This overly specific language would prevent gun owners from
satisfying the bill's requirement that each member demonstrate the
``same type'' and ``scope of injury.''
It would remove the courts as the last remaining venue to ensure that
gun manufacturers are held liable for selling defectively manufactured
firearms.
My amendment can fix this problem at least--at least--with respect to
gun owners bringing claims for a defective design or manufacturing of a
firearm.
This bill's rigorous requirements for certifying a class would have
prevented the lawsuits I mentioned and would keep any future class
actions brought by gun owners against manufacturers for defectively
manufactured items from moving forward. The manufacturers, in many
cases, were well aware of the defects for many years, but it took a
class action for them to finally do something about it.
Today, you have the opportunity to choose to stand with sportsmen,
with law-abiding citizens purchasing guns to protect their homes and
families, and with law enforcement who are protecting our communities,
or you can stand with the gun manufacturers when they put out defective
products that put responsible gun owners at risk.
I strongly urge support for my amendment, and I reserve the balance
of my time.
Mr. FARENTHOLD. Mr. Chairman, I rise in opposition to the amendment.
The CHAIR. The gentleman from Texas is recognized for 5 minutes.
Mr. FARENTHOLD. Mr. Chairman, I feel like I am caught in Groundhog
Day. I am making the same argument again and again.
The purpose of this bill is to make sure the most injured are the
most compensated and not result in a dilution of those by bringing in
massive amounts of people not similarly injured.
I disagree with the gentleman's argument that it isn't a similar
injury if you are shot in the leg or you are shot in the arm by a
defective gun.
Why should guns be treated differently than toasters? If your
defective product injures somebody, you are responsible for it; but if
your defective product doesn't injure somebody, you shouldn't be.
Mr. DEUTCH. Will the gentleman yield?
Mr. FARENTHOLD. I yield to the gentleman from Florida.
Mr. DEUTCH. I would agree with the gentleman that guns should be
treated exactly the same way as toasters. I hope that the gentleman
would consider working with me to ensure that the Consumer Product
Safety Commission could recall defective guns just like they can recall
defective toasters.
[[Page H193]]
Mr. FARENTHOLD. Reclaiming my time, we are dealing with the tort
system right now and class action. I would be happy to have a
conversation sometime in the future about consumer protection
legislation.
At this point, under the bill we are discussing, if you exempt guns,
people injured by guns--truly injured by guns--will actually receive
less compensation because they will be exempted, and the plaintiffs'
attorneys will be able to build a big class where even if, in a worst-
case scenario, you could exhaust all of the resources of the gun
company, you end up maybe with people getting a coupon for 20 percent
off their next firearm as opposed to actual monetary damages, with the
plaintiffs' attorney taking home millions.
This bill is designed to make sure the most injured get the most
money and those not injured do not. That is what we are trying to do
here. Regardless of whatever exception you want to put for whatever
industry, the bill generally works for all industries. That is the way
it was designed.
I urge everyone to oppose this amendment
I yield back the balance of my time.
Mr. DEUTCH. Mr. Chairman, I yield back the balance of my time.
The CHAIR. The question is on the amendment offered by the gentleman
from Florida (Mr. Deutch).
The question was taken; and the Chair announced that the noes
appeared to have it.
Mr. DEUTCH. Mr. Chairman, I demand a recorded vote.
The CHAIR. Pursuant to clause 6 of rule XVIII, further proceedings on
the amendment offered by the gentleman from Florida will be postponed.
Amendment No. 5 Offered by Ms. Moore
The CHAIR. It is now in order to consider amendment No. 5 printed in
House Report 114-389.
Ms. MOORE. Mr. Chairman, I have an amendment at the desk.
The CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
Line 6 on the first page, strike ``No'' and insert ``Except
as provided in subsection (c), no''.
After line 18 on the first page, insert the following:
(c) Exception.--Subsection (a) does not apply with respect
to causes of action arising under the Fair Housing Act (42
U.S.C. 3601 et seq.) or the Equal Credit Opportunity Act (15
U.S.C. 1691 et seq.).
The CHAIR. Pursuant to House Resolution 581, the gentlewoman from
Wisconsin (Ms. Moore) and a Member opposed each will control 5 minutes.
The Chair recognizes the gentlewoman from Wisconsin.
Ms. MOORE. Mr. Chairman, my amendment would exempt suits arising out
of the Fair Housing Act or the Equal Credit Opportunity Act.
I offer my amendment today, Mr. Chairman, out of a real concern about
the consequences the bill will have on social justice issues. One of
these issues that is very dear to me is the disparate access to
financial products for African Americans. That is the reason that I,
before I became a Member of Congress, created a credit union for my
area in Milwaukee, Wisconsin.
We are still seeing discrimination in housing and auto financing and
insurance products in my home district of Milwaukee. This is not
something, Mr. Chairman, that happened in the good old days. We have
witnessed discrimination in mortgage loans as recently as 2012.
As a member of the Financial Services Committee, we have learned
about the CFPB's role in cracking down on auto lenders who discriminate
against minorities. Folks who have the same credit score, if your name
is Rodriguez or Barack Obama Jones, suddenly your auto loan would be at
a higher rate.
Class actions are an important tool to fight back. For example, in
Adkins v. Stanley, a class action suit was filed against Morgan Stanley
for practices through a mortgage lender that had a significant impact
against an entire African American community. In Detroit, Michigan,
from where our distinguished ranking member hails, the practices led to
filling these communities with high-risk subprime loans, leading up to
the 2008 housing crisis. I would commend any of you to go to Detroit
and see the result of that discrimination where entire communities have
been eviscerated.
Actions helped to uncover and fight back against auto finance lender
practices that used these subjective criteria, whether your name was
Rodriguez or Barack Obama Jones, to determine creditworthiness. This
practice was found to have a disproportionate impact, charging these
higher interest rates for minorities compared to White borrowers with
the exact, similar credit ratings.
I reserve the balance of my time.
Mr. FARENTHOLD. Mr. Chairman, I rise in opposition to the amendment.
The CHAIR. The gentleman from Texas is recognized for 5 minutes.
Mr. FARENTHOLD. Mr. Chairman, I once again make the same argument.
Once we take out one specific claim or the other, we do away with the
benefits to that group that this bill confers.
This bill is pro-consumer by making sure the most injured receive the
most compensation and that you don't artificially build up a class and
dilute the award. It is the exact same argument I made on almost all of
the previous amendments.
I urge my colleagues to oppose the amendment.
I yield back the balance of my time.
Ms. MOORE. Mr. Chairman, that argument is not a good argument because
when you think of the example of just, say, Morgan Stanley, if there
was someone who, in Detroit, Michigan, lost their house through the
subprime lending, that has as much impact on that person as the person
next door who was underwater and couldn't sell their home and couldn't
repair it because of the impact on their next-door neighbor.
This notion that they have to be injured in exactly the same way
really flies in the face of logic and, of course, flies in the face of
justice.
I would ask Members to adopt my amendment. It is common sense. It is
just. There are so many cases against minorities, in particular, that
would be adversely impacted through this legislation.
I yield back the balance of my time.
The CHAIR. The question is on the amendment offered by the
gentlewoman from Wisconsin (Ms. Moore).
The question was taken; and the Chair announced that the noes
appeared to have it.
Ms. MOORE. Mr. Chairman, I demand a recorded vote.
The CHAIR. Pursuant to clause 6 of rule XVIII, further proceedings on
the amendment offered by the gentlewoman from Wisconsin will be
postponed.
Amendment No. 6 Offered by Ms. Moore
The CHAIR. It is now in order to consider amendment No. 6 printed in
House Report 114-389.
Ms. MOORE. Mr. Chairman, I have an amendment at the desk.
The CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
Line 6 on the first page, strike ``No'' and insert ``Except
as provided in subsection (c), no''.
After line 18 on the first page, insert the following:
(c) Exception.--Subsection (a) does not apply with respect
to any cause of action arising from a pay equity claim under
Title VII of the Civil Rights Act of 1964 (42 U.S.C 2000e et
seq.) or that portion of the Fair Labor Standards Act (29
U.S.C. 206(d)) known as the Equal Pay Act of 1963.
The CHAIR. Pursuant to House Resolution 581, the gentlewoman from
Wisconsin (Ms. Moore) and a Member opposed each will control 5 minutes.
The Chair recognizes the gentlewoman from Wisconsin.
Ms. MOORE. Mr. Chairman, my amendment would exempt pay equity
lawsuits arising from title VII of the Civil Rights Act or the Equal
Pay Act.
Today, the wage gap for women is a very real experience, not only for
those women, but for families in the United States workforce. According
to the National Women's Law Center, the gender wage gap amounts to over
$10,000 a year in median income.
But this bill, H.R. 1927, takes away one of the only effective tools
that women in the workplace have to narrow the wage gap. That is
through class action suits filed under title VII of the Civil Rights
Act or the Equal Pay Act. This bill would, to borrow Judge Posner's
term, really drive a stake through the heart of the Equal Pay Act or
the Civil Rights Act.
This bill will make it harder to certify members of a class in pay
equity
[[Page H194]]
cases because each detail relating to the type and scope of the damage
is often unique to the woman who was injured. For example, a woman
involved in a class could have a different type of job, different
number of years working for a company, different wages, different
benefits, and if the company is discriminating against all women,
across all the job categories, they would not be certified as a class
unless they made exactly the same pay, worked there exactly the same
number of years, which, Mr. Chairman, is ludicrous.
This bill would also make it harder for women in pay equity cases
because, at the certification stage, women wouldn't have the same
information about each other to know whether or not they could be in
the same class.
Mr. Chairman, I reserve the balance of my time.
Mr. FARENTHOLD. Mr. Chairman, I rise in opposition to the amendment.
The CHAIR. The gentleman from Texas is recognized for 5 minutes.
Mr. FARENTHOLD. Mr. Chairman, again, we get back to the argument, as
you start to exempt certain groups or certain types of lawsuits, it
creates the same situation we have now that we are trying to fix in
that class where those mostly injured get the most compensation and
those only marginally injured are compensated accordingly.
I think part of where the other side has a little misunderstanding of
the bill is I keep hearing the word ``exact.'' It is not the exact same
injury. The bill requires that class members share the same scope of
injury, which is intended to prevent certification of grossly overbroad
class action lawsuits that include members with wildly varying injury.
The dictionary and ordinary meaning of ``scope'' is the range of a
relevant subject. Judges are certainly capable of determining relevant
range of injuries that would make class members suitably typical of one
another. I think this could happen in all cases and actually probably
more so in these equal pay type of cases if the scope of the injury is
being paid less.
Again, I think common sense is going to dictate. As we have seen
historically, the vast majority of the times our Federal Court systems
get it right. There are few notable exceptions, but that is beyond the
scope of this argument.
I would urge my colleagues to oppose this amendment, this exception,
to a great piece of legislation that is designed to make our class
action system fair and make sure those who are the most injured are the
most compensated.
I reserve the balance of my time.
Ms. MOORE. Mr. Chairman, I appreciate my colleague for that
exhaustive explanation and definition of scope.
Common sense just ain't common, so we cannot rely on common sense.
I just want to say that the courts already require a plaintiff
seeking class action certification to make substantial showings that
they have, in fact, been injured. That is our argument, that they have
to have the same scope and that we need to reserve the benefits for
those at the top so that women who are discriminated against in a
firm--we are only concerned with those women who are going to lose the
most money because they didn't get a management position. We are not
going to be concerned with the women who worked in the janitorial
services and were discriminated against.
I think that there is a smoking gun here when you hear our opponents
make these furious arguments and regale us with definitions of scope,
where the courts have already done that. If it ain't broke, don't fix
it.
I yield back the balance of my time.
Mr. FARENTHOLD. Mr. Chairman, I stand by the plain language of the
statute, and the intent is to help victims and make the class action
system fair. Exceptions will only weaken that.
I urge my colleagues to oppose this amendment.
I yield back the balance of my time.
The CHAIR. The question is on the amendment offered by the
gentlewoman from Wisconsin (Ms. Moore).
The question was taken; and the Chair announced that the noes
appeared to have it.
Ms. MOORE. Mr. Chairman, I demand a recorded vote.
The CHAIR. Pursuant to clause 6 of rule XVIII, further proceedings on
the amendment offered by the gentlewoman from Wisconsin will be
postponed.
{time} 1100
Amendment No. 7 Offered by Ms. Maxine Waters of California
The CHAIR. It is now in order to consider amendment No. 7 printed in
House Report 114-389.
Ms. MAXINE WATERS of California. Mr. Chairman, I have an amendment at
the desk.
The CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
On the first page, line 6, strike ``No'' and insert
``Except as provided in subsection (c), no''.
On the first page, after line 18 insert the following:
(c) Exception.--The requirements for a demonstration under
subsection (a) and the inclusion of a determination relating
to that requirement under subsection (b) do not apply with
respect to a claim against--
(1) any institution or third party servicer that receives
or services funds under title IV of the Higher Education Act
of 1965 (20 U.S.C. 1070 et seq.);
(2) any institution that originates, services, or otherwise
administers qualified education loans (as defined in section
221 of the Internal Revenue Code of 1986); or
(3) any institution providing a course of education
approved for purposes of chapter 33 of title 38, United
States Code.
The CHAIR. Pursuant to House Resolution 581, the gentlewoman from
California (Ms. Maxine Waters) and a Member opposed each will control 5
minutes.
The Chair recognizes the gentlewoman.
Ms. MAXINE WATERS of California. Mr. Chairman, I rise in support of
my amendment to H.R. 1927, the Fairness in Class Action Litigation Act.
My amendment would protect students, servicemembers, and veterans who
are seeking monetary relief from fraudulent institutions of higher
education by exempting them from the onerous requirements for class
certification outlined in the bill.
H.R. 1927 requires Federal courts to certify a class only when all
class members demonstrate they have suffered the same type and scope of
injury. This additional requirement would be unduly burdensome to
students, servicemembers, and veterans who have been fraudulently
misled by the for-profit college industry.
For example, recently the Department of Education conducted a joint
investigation with California Attorney General Kamala Harris. They
concluded that for-profit college Corinthian Colleges misrepresented
its job placement rates to prospective and enrolled students.
Specifically, the investigation found that, among other abuses, a
Corinthian accounting program reported a job placement rate of 92
percent of its graduates in accounting-related fields, but that, in
reality, only 12 percent of the graduates of this program had secured
jobs in accounting.
For a separate business associate program, Corinthian reported a 95
percent job placement rate, but the Department of Education determined
that, in reality, only 14 percent of the program's graduates had jobs
in the relevant field.
It is clear that, with job placement rate errors of 80 and 81 percent
respectively, students enrolled in both programs were intentionally and
fraudulently misled by Corinthian Colleges.
Yet, under H.R. 1927, these defrauded students arguably would not be
able to form a class to seek relief because they have been injured by a
mere 1 percent degree of difference or because they were lied to about
job placement rates in different careers. This is totally illogical and
unfair, and it defeats the purpose of the class action.
As the example demonstrates, particularly in the context of higher
education, H.R. 1927 essentially makes class certification impossible
to achieve and, thus, impractical to pursue. The inability to bring
forth class actions will selectively shield for-profit colleges from
accountability and will significantly reduce access to our court system
for deserving students and veterans.
We only need to look further at Corinthian Colleges to understand the
harm that ensues when these schools are left unaccountable. For
decades, Corinthian Colleges defrauded its students by inflating job
placement rates,
[[Page H195]]
by engaging in unfair marketing practices and illegal debt collection
tactics, and by requiring students to take out private loans at high
interest rates.
According to the California attorney general, it likewise unlawfully
used military seals in its advertising materials to lure an increasing
number of our active servicemen and veterans. Worse yet, by including
bans on class actions as a prerequisite to enrollment, Corinthian
Colleges protected itself from liability while engaging in these awful
predatory tactics.
As a result of its decades of predatory conduct, Corinthian Colleges
was finally forced to close its doors in April 2015, leaving thousands
of students with tens of thousands of dollars in debt, with worthless
degrees, and with no job opportunities to show for their time and hard
work.
Hundreds of veterans forfeited their GI benefits, which were earned
on the battlefield in service to our country. One veteran of the wars
in Iraq and Afghanistan told Politico that the months he had spent
studying auto mechanics at a Corinthian school was wasted time because
of the poor equipment and the training he received.
In October, a Federal judge ruled that Corinthian Colleges was
operating a predatory lending scheme and ordered the school to pay back
$531 million in damages to all students who attended the network of
colleges before it closed its doors.
Yet, in reality, because the school has filed for bankruptcy,
executives will walk away with millions while students and veterans
will never see any of the money owed to them. Meanwhile, taxpayers will
be expected to pick up the tab for this and any other future Corinthian
judgments.
The law already favors schools like Corinthian and other big
corporations over classes of harmed consumers--as evidenced by the fact
that students were unable to join together and prevail in a class
action during Corinthian's prior decades of misconduct, and prior to
its bankruptcy and collapse. Corinthian should have been forced to
repay these students out of their own profits, and our service members
and veterans should have had their G.I. benefits returned so those
funds could be used at a competitive, high-achieving institution.
Yet, today, we are considering advancing H.R. 1927, which will serve
as an additional barrier to ensuring justice for these students,
service members and veterans. My amendment would eliminate the hurdle
that H.R. 1927 imposes on defrauded students, which would help ensure
that the institutions of higher education would be on the hook for
their fraud and unfair practices, and ensure that other for-profit
institutions would be held accountable in the future.
I would ask for support for my amendment. I am sure that my
colleagues on the opposite side of the aisle would not want to go down
in history as preventing these kinds of acts from being dealt with.
I yield back the balance of my time.
Mr. FARENTHOLD. Madam Chair, I claim the time in opposition to the
amendment.
The Acting CHAIR (Ms. Foxx). The gentleman from Texas is recognized
for 5 minutes.
Mr. FARENTHOLD. Madam Chair, I oppose this amendment for the same
reason that I have opposed almost every amendment so far in that it
exempts a certain class from the bill that is designed to help those
who are most injured.
First, the base bill only applies to classes that are seeking
monetary relief for personal injury or economic loss. Insofar as
education-related cases do not seek monetary damages, they are
completely unaffected by the bill and would proceed just as they do
today. If money damages are being sought, then, of course, they should
be subject to the procedures in this bill.
The purpose of a class action is to provide a fair means of
evaluating like claims, not to provide a means of artificially
inflating the size of a class to extort a larger settlement. The other
side is continually saying that these groups or classes must be exactly
the same. The language is of the same scope. The bill is designed to
keep from grossly inflating the size of a class.
The students of the college that the gentlewoman is citing were all
in the same class and would appear to be similarly injured. I cannot
predict what a court would do. I believe, under this bill, even without
the gentlewoman's amendment, they would continue to be certified as a
class because the scope of their injuries would be the same.
It is not designed to make it exact. It is the same scope. And that
is where we are trying to go. Claimants who are seeking monetary relief
need to be grouped in classes in which the most injured receive the
most compensation, but it doesn't have to be the exact same injury.
I don't see any need for this amendment. I think it actually would
unfairly hurt those folks from the college because they would not be
subject to the protections of this bill in that an attorney could
inflate the class to include folks, let's say, who didn't have as many
damages and who were from other colleges. I can think of a wide variety
of hypotheticals here.
The idea behind this bill is, regardless of the class, if you are the
most injured, you should be the most compensated, and there is a lot of
area in which the judges can determine what the scope of those injuries
is.
I urge my colleagues to oppose the amendment.
Madam Chair, I yield back the balance of my time.
The Acting CHAIR. The question is on the amendment offered by the
gentlewoman from California (Ms. Maxine Waters).
The question was taken; and the Acting Chair announced that the noes
appeared to have it.
Ms. MAXINE WATERS of California. Madam Chair, I demand a recorded
vote.
The Acting CHAIR. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentlewoman from California
will be postponed.
Amendment No. 8 Offered by Mr. Johnson of Georgia
The Acting CHAIR. It is now in order to consider amendment No. 8
printed in House Report 114-389.
Mr. JOHNSON of Georgia. Madam Chair, I have an amendment at the desk.
The Acting CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
Line 10 on the first page, strike ``and scope''.
Line 8 on the first page, strike ``or economic loss''.
The Acting CHAIR. Pursuant to House Resolution 581, the gentleman
from Georgia (Mr. Johnson) and a Member opposed each will control 5
minutes.
The Chair recognizes the gentleman.
Mr. JOHNSON of Georgia. Madam Chair, my amendment would remove the
scope and economic loss language from the bill.
Think of yourself as driving down a two-lane road, doing 55 miles an
hour. It is nighttime or it could be daytime. Suddenly, you lose
control of your car because your ignition switch cuts off the car and
you lose control of your power steering and your brakes. There is an
18-wheeler coming at you and you have no time to react. There is a
crash and you, as the driver, are killed in the unfortunate accident.
Let's assume that that has happened in numerous other cases. Perhaps
the injuries were not as bad as a death. Perhaps someone just suffered
a closed-head injury, a concussion, or perhaps a broken arm in the
accident. Let's assume that both of those cars were made by the same
manufacturer, had the same ignition switch, and a defect in that
ignition switch caused the crashes.
Now there are numbers of claimants who are wanting to get together
and file a class action lawsuit because they know that the large
company has an army of lawyers, all of whom will go to court against a
single plaintiff to defeat the claim. These briefcase-toting, loafer-
wearing, silk-stocking lawyers, who are getting paid $900 an hour go to
court, have helped the corporation hide the existence of the defect for
many years, and there have been so many accidents that have occurred
that singular plaintiffs who aggregate their claims and come together
against that corporation have a better shot at winning the case than
has just a single plaintiff who is going against an army of corporate
lawyers.
This legislation changes the rules. It tilts the scales in favor of
the company by making the plaintiffs prove that
[[Page H196]]
they have suffered the same type and scope of injury as has the named
class representative, and that is despite there being one common
question of law in fact that permeates all of the cases. Why shouldn't
they be allowed to bring that case together?
This amendment would remove the scope and economic loss language of
the bill so that it would not impede the ability of claimants to bring
a class action lawsuit against a corporate wrongdoer. I would ask my
colleagues to support my amendment.
Madam Chair, I reserve the balance of my time.
Mr. FARENTHOLD. Madam Chair, I rise in opposition to the amendment.
The Acting CHAIR. The gentleman from Texas is recognized for 5
minutes.
Mr. FARENTHOLD. Madam Chair, this amendment should be defeated
because it essentially guts the bill.
The bill requires that class action members share the same scope of
injury, which is intended to prevent the certification of grossly
overbroad class action lawsuits that include members with wildly
varying injuries.
The ordinary meaning of scope in the dictionary is the range of a
relevant subject. Judges are certainly capable of determining the
relevant range of injuries that would make class members suitably
typical of one another.
{time} 1115
The base bill uses the word ``scope'' to make clear that all class
members do not need to have suffered the same type of injury to the
exact same extent, but they still must demonstrate they have suffered
the same range of injuries as determined by the court.
This amendment also strikes the term ``economic loss'' from the bill.
The base bill defines the scope of class actions covered by the bill as
those involving claims for monetary relief for personal injury or
economic loss. Economic loss is defined by Black's Law Dictionary as
``a monetary loss, such as lost wages or lost profits.'' In a products
liability suit, the economic loss includes the cost of repair or
replacement of defective property as well as commercial loss for the
property's inadequate value and consequential loss of profits or use.
These sorts of claims should also be covered under the bill because
they are claims for monetary relief. Those with significantly greater
claims for such relief should have their own day in court and the
chance to obtain the most compensation for their economic loss.
I am urging my colleagues to reject this gutting amendment.
I reserve the balance of my time.
Mr. JOHNSON of Georgia. Madam Chair, that is exactly what I want to
do, is to gut this legislation, because it guts the ability of asbestos
victims to press class actions against the wrongdoing Koch brothers and
other companies that manufacture that product.
I want it to be known that there are veterans organizations that
oppose this legislation: the Air Force Sergeants Association; Air Force
Women Officers Associated; American Veterans, AMVETS; the Association
of the United States Navy; the Commissioned Officers Association of the
U.S. Public Health Services; Fleet Reserve Association; the Jewish War
Veterans of the USA; the Marine Corps Reserve Association; the Military
Officers Association of America; the Military Order of the Purple
Heart; the National Association of Uniformed Services; the National
Defense Council; the Naval Enlisted Reserve Association; the Retired
Enlisted Association; the United States Coast Guard Chief Petty
Officers Association; the United States Army Warrant Officers
Association; the Vietnam Veterans Association; and on and on.
I don't know what those veteran organizations that my friend named
actually do. I don't know who they are. They certainly have names that
appear to misrepresent whether or not they are in favor of the rights
of servicemen and -women, but these organizations that I just named
are.
I yield back the balance of my time.
Mr. FARENTHOLD. Madam Chair, again, I urge my colleagues to oppose
this bill. The gentleman on the other side of the aisle, Mr. Johnson of
Georgia, of course, indicated that it is his intent to gut the bill
here.
We need to defeat this amendment. Of course, Mr. Johnson is free to
vote against the bill, although I belive that would be a mistake.
I would urge my colleagues to not only oppose this amendment, but to
support the underlying bill when we get to it.
I yield back the balance of my time.
The Acting CHAIR. The question is on the amendment offered by the
gentleman from Georgia (Mr. Johnson).
The question was taken; and the Acting Chair announced that the noes
appeared to have it.
Mr. JOHNSON of Georgia. Madam Chair, I demand a recorded vote.
The Acting CHAIR. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentlewoman from Georgia
will be postponed.
Amendment No. 9 Offered by Ms. Jackson Lee
The Acting CHAIR. It is now in order to consider amendment No. 9
printed in House Report 114-389.
Ms. JACKSON LEE. Madam Chair, I have an amendment at the desk.
The Acting CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
Beginning on page 2, strike line 5 and all that follows
through line 2 on page 3, and insert the following:
``(8)(A) A trust described in paragraph (2) shall, subject
to subparagraph (B) and section 107, provide upon written
request and subject to payment (demanded at the option of the
trust) for any reasonable cost incurred by the trust to
comply with such request, to any party that is a defendant in
a pending court action relating to asbestos exposure,
information that is directly related to the plaintiff's claim
in that pending action.
``(B) A defendant requesting information under subparagraph
(A) shall first disclose to such plaintiff and such trust,
subject to an appropriate protective order the median
settlement amount paid by that defendant for claims settled
or paid within 5 years of the date of the request, by disease
category, for the State in which the plaintiff's action was
filed. No personally identifiable information shall be
included in any exchange of information under this
paragraph.''.
The Acting CHAIR. Pursuant to House Resolution 581, the gentlewoman
from Texas (Ms. Jackson Lee) and a Member opposed each will control 5
minutes.
The Chair recognizes the gentlewoman from Texas.
Ms. JACKSON LEE. Madam Chair, I think most of all that we have had a
vigorous discussion on behalf of the American people. I hope they are
listening.
I hope my colleagues are listening because, as I listened to the
debate myself, I heard a continuing theme: Let's bash the plaintiffs
and those seeking justice and make sure we make our friends who want to
eliminate costs, eliminate the road to justice, provide them with an
opportunity to reconfigure the road that has the Lady Justice balanced
scales as a symbol of this system.
When I heard my colleague from Texas, a good friend, talk about costs
and making sure that the individuals in the class are spread out so
that they are limited in the ability to press their case, I got the
answer. Again, I say that a one-way street to justice is unacceptable.
There are too many people who died that I cannot stand on this floor
and deny those who are sick and ailing or those who had in the 1950s
thalidomide where babies were born with malformations because women
took medicine that had not been tested.
The Jackson Lee amendment would provide a balanced approach to the
bill's disclosure requirements by applying transparency rules in the
bill equally to the asbestos industry defendants. Specifically, this
amendment will require that an asbestos defendant seeking information
from the trusts about a plaintiff to first make available to the
plaintiff and trust information about the median settlement amount paid
by that defendant for claims settled or paid within 5 years of the date
of the request for the State in which the plaintiff's actions were
filed.
The American Bar Association understands my point. Frankly, in their
comments, they made the following statement that I think is important:
``We oppose legislation such as H.R. 1927, because it would
unnecessarily circumvent the Rules Enabling Act, make it more difficult
for large numbers of injured parties to efficiently seek redress in
court''--again, a one-way street--``and could place added burdens on
the already overloaded court system.'' The ABA goes on to relate how
this bill is a poor bill.
[[Page H197]]
I include their letter for the Record.
American Bar Association,
Washington, DC, January 6, 2016.
Hon. Paul Ryan,
House of Representatives,
Washington, DC.
Hon. Nancy Pelosi,
House of Representatives,
Washington, DC.
Dear Speaker Ryan and Minority Leader Pelosi: On behalf of
the American Bar Association and its over 400,000 members, I
write to offer our views as the House considers class action
reform. I understand that you intend to bring up H.R. 1927,
the ``Fairness in Class Action Litigation Act of 2015,'' as
early as this week. The ABA has long recognized that we must
continue to improve our judicial system; however, we oppose
legislation such as H.R. 1927, because it would unnecessarily
circumvent the Rules Enabling Act, make it more difficult for
large numbers of injured parties to efficiently seek redress
in court, and could place added burdens on an already
overloaded court system.
This legislation would circumvent the time-proven process
for amending the Federal Rules of Civil Procedure established
by Congress in the Rules Enabling Act. Rule 23 of the Federal
Rules of Civil Procedure governs determinations whether class
certification is appropriate. This rule was adopted in 1966
and has been amended several times utilizing the procedure
established by Congress. The Judicial Conference, the
policymaking body for the courts, is currently considering
changes to Rule 23, and we recommend allowing this process to
continue. In addition, the Supreme Court is poised to rule on
cases where there are questions surrounding class
certification. For example, the Court recently heard
arguments in Tyson Foods v. Bouaphakeo where it will
determine whether a class can be certified when it contains
some members who have not been injured. We respectfully urge
you to allow these processes for examining and reshaping
procedural and evidentiary rules to work as Congress
intended.
Currently, to proceed with a class action case, plaintiffs
must meet rigorous threshold standards. A 2008 study by the
Federal Judicial Center found that only 25 percent of
diversity actions filed as class actions resulted in class
certification motions, nine percent settled, and none went to
trial. These data show that current screening practices are
working. However, if the proponents of this legislation are
concerned about frivolous class action cases and believe that
screening can be even more effective through rule changes,
those changes should be proposed and considered utilizing the
current process set forth by Congress in the Rules Enabling
Act.
In addition to circumventing the traditional judicial
rulemaking process, the legislation would severely limit the
ability of victims who have suffered a legitimate harm to
seek justice collectively in a class action lawsuit. The
legislation mandates that no Federal court shall certify any
proposed class seeking monetary relief for personal injury or
economic loss unless the party affirmatively demonstrates
that each proposed class member suffered the same type and
scope of injury as the named class representative(s). This
requirement leaves a severe burden for people who have
suffered personal injury or economic loss at the hands of
large institutions with vast resources, effectively barring
them from forming class actions. For example, in a class
action against the Veterans Administration, several veterans
sued for a variety of grievances centered on delayed claims.
The requirement in this legislation that plaintiffs suffer
the same type of injuries might have barred these litigants
from forming a class because each plaintiff suffered harms
that were not the same.
We were pleased that a manager's amendment offered in
Committee removed the requirement that the alleged harm to
the plaintiff involved bodily injury or property damage. This
improved the bill, but the remaining requirement leaves too
high a burden. Class actions have been an efficient means of
resolving disputes. Many of the legitimate complaints about
lawsuit abuses through class-action litigation have been
addressed through the evolution of class-action standards by
the courts themselves; others are currently being considered
by the Judicial Conference as part of the Rules Enabling Act
process. Making it harder for victims to utilize class
actions could add to the burden of our court system by
forcing aggrieved parties to file suit in smaller groups, or
individually.
We appreciate the opportunity to provide our input and urge
you to keep these concerns in mind as you continue to debate
class-action reform legislation. If the ABA can provide you
or your staff with any additional information regarding the
ABA's views, or if we can be of further assistance, please
contact me or ABA Governmental Affairs Legislative Counsel,
David Eppstein.
Sincerely,
Thomas M. Susman.
Ms. JACKSON LEE. Again, my friends, this speaks to the idea that we
are not focusing on the plaintiff. So the injured party is at a
disadvantage.
Let me say to my colleagues that this bill is unnecessary because, in
a class action, you do not get the same amount of money. It just allows
you to put together your resources to press forward your case. So if
you are a poor farmer or if you are a poor waitress or you are someone
driving a 1989 car and you are in a circumstance that puts you in a
category where that car, even as old as it is, had some defect and you
have no ability to press your case, you have the ability to press your
case along with others. I am outraged to think that they would deny
that.
So my amendment says to the defendant: You need to put forward all
the information that you are demanding of those individuals who are
singularly unable to provide the kind of legal representation that they
need.
If transparency was the true goal of this bill, then, why doesn't the
bill require settling defendants to reveal information important to
public safety? The asbestos health crisis is the result of a massive
corporate coverup. Trust information is already public. So let's make
it a two-way street.
Let me also include for the Record a letter and these words: ``Far
from being even-handed, this bill allows defendants--and only
defendants--to do an end-run around state rules of discovery that place
limits on information-gathering. The bill would tip the scales of
justice in favor of asbestos defendants.''
January 6, 2016.
Re Opposition to Section 3 of H.R. 1927, the Fairness in
Class Action Litigation and Furthering Asbestos Claim
Transparency Act of 2015
Hon. Paul Ryan,
Speaker, House of Representatives,
Washington, DC.
Hon. Nancy Pelosi,
Minority Leader, House of Representatives,
Washington, DC.
Dear Speaker Ryan and Leader Pelosi: The undersigned groups
strongly oppose Section 3 of H.R. 1927, the ``Fairness in
Class Action Litigation and Furthering Asbestos Claim
Transparency Act of 2015,'' formerly H.R. 526, the
``Furthering Asbestos Claim Transparency Act'' (FACT Act).
This bill will interfere with state legal systems without
justification, severely invade the privacy of asbestos
victims and their families, and delay and deny justice to
people suffering from lethal asbestos-related diseases. While
it may seem like an opportune time to legislate in the area
of asbestos litigation, this bill is extremely misguided. It
will do little more than harm dying victims (including many
former Navy shipyard workers), while advantaging the big
corporations responsible for compensating them.
For decades, secrecy and deceit have been a way of business
for the asbestos industry, and this bill does absolutely
nothing to change that. This wholly unnecessary and one-sided
legislation is an affront to states' rights and unfair to
victims.
Section 3 of H.R. 1927 has two primary provisions: 1)
requires asbestos trusts to disclose on public websites the
private, confidential information about every asbestos
claimant and their families, including past, current and
future claimants. The legislation does nothing to stop
asbestos defendants from continuing to demand secrecy when
they settle cases (as they routinely do), or force companies
to disclose any information to help a claimant with his or
her case. To this day, these companies refuse to make public
information about where asbestos is present, where it was
used, and where it is imported. This bill is an unfair and
unwarranted imposition on people who are likely to die
because the asbestos industry covered up the dangers of
asbestos for over 50 years and still insists on
confidentiality today. Moreover, the information that will go
on these public sites includes victims' names, addresses,
medical information, how much they received in compensation,
and the last four digits of their social security numbers.
This extreme invasion of privacy will make victims and their
families vulnerable to predators, con artists, and
unscrupulous businesses who will scour these sites for
information.
2) It gives any defendant in any asbestos lawsuit the right
to demand any information about any asbestos victim from any
asbestos trust at any time for any reason. The trusts
themselves have already told the House Judiciary Subcommittee
on Regulatory Reform, Commercial and Antitrust Law that such
a provision would place substantial burdens on them,
requiring them to spend tens of thousands of additional hours
per year trying to comply with this requirement. And because
the provision is unlimited, the costs of compliance for
trusts would be very high as well. Trusts are already
underfunded. A RAND study found that the median payment from
asbestos trusts to victims is 25 percent of the value of the
claim, and some payments are as low as 1.1 percent of the
claim's value.
In addition to cost burdens, severe delays will result. As
explained by Caplin & Drysdale attorney Elihu Inselbuch in
his
[[Page H198]]
``Responses to Questions for the Record'' following his 2013
subcommittee testimony: because trusts will be buried in
otherwise unnecessary paperwork seeking claimant information,
``The bill would slow down or stop the process by which the
trusts review and pay claims, such that many victims would
die before receiving compensation, since victims of
mesothelioma typically only live for 4 to 18 months after
their diagnosis.'' In many cases, ``the delays in trust
payment will force dying plaintiffs, who are in desperate
need of funds, to settle for lower amounts with solvent
defendants . . . Delay is a weapon for asbestos defendants.''
Finally, Mr. Inselbuch explained that, because this bill
does not require that the information demanded by defendants
be relevant to, or admissible in, any lawsuit, it is an
unwarranted and ``heavy-handed piece of federal interference
with the states' legal systems.''
Far from being even-handed, this bill allows defendants--
and only defendants--to do an end-run around state rules of
discovery that place limits on information-gathering. The
bill would tip the scales of justice in favor of asbestos
defendants by giving defendants access to information about
victims' settlements with asbestos trusts while allowing
defendants to continue hiding information about their
settlements with other victims. To level the playing field,
victims should be entitled to information from defendants
regarding previous settlement amounts and true transparency
about where the defendants' asbestos was used, manufactured,
and stored.
As to the claim that this bill will ``prevent fraud,'' this
bill places new, burdensome requirements on regularly-audited
trusts. No one can find evidence of significant fraud in the
trust process. The U.S. Government Accountability Office
(GAO) studied the problem and did not identify one fraudulent
claim. As Mr. Inselbuch noted, ``[b]ecause the injured victim
was typically exposed to multiple asbestos products at
multiple job sites over a period of many years, he or she
must file different claims, with different trusts, with
different forms that request different information. The fact
that the exposure information submitted to one trust differs
from the exposure information submitted to another does not
mean it is `inconsistent'--and certainly not specious or
fraudulent.'' Similarly, with regard to charges that victims
``double-dip,'' he explains, ``when an asbestos victim
recovers from each defendant whose product contributed to
their disease, that victim is in no way `double-dipping';
rather they are recovering a portion of their damages from
each of the corporations who harmed them. In fact, each trust
is responsible for and pays for only its own share of the
damages.'' And as noted above, each trust usually can pay
only pennies on the dollar.
Since at least the 1930s, asbestos companies and their
insurers have been denying responsibility for the millions of
deaths and illnesses caused by this deadly product. The
Centers for Disease Control and Prevention report that
roughly 3,000 people continue to die from mesothelioma and
asbestosis every year. Other experts estimate the death toll
is as high as 15,000 people per year when other types of
asbestos-linked diseases and cancers are included. The
companies hid the dangers posed by asbestos exposure, lied
about what they knew, fought against liability for the harms
caused, tried to change the laws that held them responsible
and, to this day, fight against banning asbestos in the U.S.
The asbestos industry is not interested in transparency. This
legislation is nothing but another industry attempt to avoid
responsibility for the grave harms they have caused. We are
asking you to stand with veterans and other cancer victims of
the asbestos industry's wrongdoing and oppose H.R. 1927.
Thank you for your consideration of our views.
Sincerely,
Alliance for Justice, Asbestos Disease Awareness
Organization, Center for Effective Government, Center
for Justice & Democracy, Connecticut Center for Patient
Safety, Constitutional Alliance, Consumer Action,
Consumer Watchdog, EWG Action Fund, National Employment
Lawyers Association, National Association of Consumer
Advocates, National Consumers League,
OpenTheGovernment.org, Protect All Children's
Environment, Public Citizen, U.S. PIRG.
Ms. JACKSON LEE. I ask my colleagues to support my amendment.
I reserve the balance of my time.
Mr. FARENTHOLD. Madam Chair, I claim the time in opposition.
The Acting CHAIR. The gentleman from Texas is recognized for 5
minutes.
Mr. FARENTHOLD. Madam Chair, one of the issues the FACT Act addresses
is State court litigants' inability to obtain information from
bankruptcy asbestos trusts. The FACT Act eliminates this problem by
requiring minimal disclosures from asbestos trusts and allowing for
access to additional information at the cost of the requesting party.
It doesn't put a burden on the trusts.
The amendment not only removes the minimal disclosure requirements,
but it would replace additional disclosure requirements on parties who
request information from the asbestos trust.
Over the course of four separate hearings before the Judiciary
Committee the issue highlighted was the lack of disclosure by the
asbestos bankruptcy trust, not private party litigants. There has been
no record of plaintiffs encountering difficulties in obtaining
information necessary to sue these businesses. In fact, the evidence is
to the contrary. Go look at a plaintiff's attorney who specializes in
asbestos litigation Web site and you see how they tout their access to
information necessary to sue these companies.
It is the parties, other than the plaintiffs, including other
asbestos bankruptcy trusts, as well as State court judges, who have
difficulty obtaining information from the asbestos bankruptcy trust
system which has created an environment that is conducive to fraud and
takes money out of those trusts that is needed for future victims. The
FACT Act merely levels the playing field so all parties have access to
the same information.
I urge my colleagues to oppose this amendment.
I reserve the balance of my time.
Ms. JACKSON LEE. How much time do I have remaining?
The Acting CHAIR. The gentlewoman from Texas has 1 minute remaining.
Ms. JACKSON LEE. Madam Chair, I vigorously disagree with my good
friend from Texas (Mr. Farenthold) because it is very clear that the
bill would tip the scales of justice in favor of asbestos defendants by
giving defendants access to information about victim settlements with
asbestos trusts while allowing the defendants to continue hiding
information about their settlements.
My amendment asks for the defendants to give the same information. No
matter how much my good friend tries to redirect and suggest that this
bill does not do that, it does.
Might I also suggest that the other side offered the suggestion that
there were groups like Save Our Veterans, The Cost of Freedom, Veterans
Resource, that were representing the veterans community. Again, I would
take issue with that representation. I insert into the Record a whole
list that has been recounted by the gentleman from Georgia (Mr.
Johnson), my colleague.
January 7, 2015.
Re Veterans Service Organization oppose H.R. 1927 the
``Fairness in Class Action Litigation and Furthering
Asbestos Claims Transparency Act''
Hon. Paul Ryan,
Speaker of the House, House of Representatives,
Washington DC.
Hon. Kevin McCarthy,
Majority Leader, House of Representatives,
Washington DC.
Hon. Nancy Pelosi,
Minority Leader, House of Representatives,
Washington DC.
Hon. Steny Hoyer,
Minority Whip, House of Representatives,
Washington DC.
Dear Speaker Ryan, Leader McCarthy, Leader Pelosi, and Whip
Hoyer: We, the undersigned Veterans Service Organizations
oppose H.R. 1927 the ``Fairness in Class Action Litigation
and Furthering Asbestos Claims Transparency Act of 2015.'' We
have continuously expressed our united opposition to this
legislation via written testimony to the House Judiciary
Committee, House Leadership, in-person meetings and phone
calls with members of Congress, and most recently, an op-ed
many of our legislative teams submitted to ``The Hill'',
entitled ``Farenthold has his facts wrong: The FACT Act hurts
Veterans''. It is extremely disappointing that even with our
combined opposition H.R. 1927 stands poised to be voted on
the House floor later this week.
Veterans across the country disproportionately make up
those who are dying and afflicted with mesothelioma and other
asbestos related illnesses and injuries. Although veterans
represent only 8% of the nation's population, they comprise
30% of all known mesothelioma deaths.
When our veterans and their family members file claims with
the asbestos bankruptcy trusts to receive compensation for
harm caused by asbestos companies, they submit personal,
highly sensitive information such as how and when they were
exposed to the deadly product, sensitive health information,
and more. H.R.1927 would require asbestos trusts to publish
their sensitive information on a public database, and also
include how much money they received for their claim as well
as other private information. Forcing our veterans to
publicize their work histories, medical conditions, social
security numbers, and information about their children and
families is an offensive invasion of privacy to the men and
women who have honorably served, and it does nothing to
assure their adequate compensation or to prevent future
asbestos exposures and deaths.
Additionally, H.R. 1927 helps asbestos companies add
significant time and delay paying
[[Page H199]]
trust claims to our veterans and their families by putting
burdensome and costly reporting requirements on trusts,
including those that already exist. One must to ask what is
the real motivation for this legislation brought forward by
Representative Farenthold? Rather than pursuing legislation
to make it easier and less burdensome for our veterans and
their families to get the compensation they so desperately
need for medical bills and end of life care, trusts will have
to spend time and resources complying with these additional
and unnecessary requirements at the expense of our veterans.
H.R. 1927 is a bill that its supporters claim will help
asbestos victims, but the reality is that this bill only
helps companies and manufacturers who knowingly poisoned our
honorable men and women who have made sacrifices for our
country.
We urgently ask on behalf of our members across the nation
that you oppose H.R. 1927.
Please contact Hershel Gober, National Legislative
Director, Military Order of the Purple Heart at
[email protected] with any questions.
Signed:
Air Force Sergeants Association, Air Force Women's
Officers Associated (AFWOA), American Veterans (AM
VETS), Association of the United States Navy (AUSN),
Commissioned Officers Association of the US Public
Health Services, Fleet Reserve Association (FRA),
Jewish War Veterans of the USA (JWV), Marine Corns
Reserve Association (MCRA), Military Officers
Association of America (MOAA), Military Order of the
Purple Heart (MOPH), National Association of Uniformed
Services (NAUS), National Defense Council, Naval
Enlisted Reserve Association, The Retired Enlisted
Association (TREA), United States Coast Guard Chief
Petty Officers Association, United States Army Warrant
Officers Association, Vietnam Veterans Association
(VVA).
Ms. JACKSON LEE. The Air Force Sergeants Association, Vietnam
Veterans Association, Jewish War Veterans of the USA, and others, these
are the groups that are saying they are against this bill. The reason
is because they are for the little guy. That is why they go to the
battlefield and fight.
I am standing here for the little guy. My amendment says let the big
guys give you the same information and the little guys shouldn't even
have to pay, if I might say. Let the big guys do it because they are
the individuals who come and try to thwart the individuals.
Madam Chair, let me express my appreciation to Chairman Sessions and
Ranking Member Slaughter for their leadership and for making the
Jackson Lee Amendment in order.
Thank you for this opportunity to explain my amendment to H.R. 1927,
the ``Fairness in Class Litigation and Furthering Asbestos Claim
Transparency Act of 2015''.
The Jackson Lee Amendment #9 would provide a balanced approach to the
bill's disclosure requirements by applying the transparency rules in
the bill equally to asbestos industry defendants.
Specifically, this Amendment would require that an asbestos defendant
seeking information from the trust about a plaintiff to first make
available to the plaintiff and trust information about the median
settlement amount paid by that defendant for claims settled or paid
within 5 years of the date of the request, for the State in which the
plaintiffs action was filed.
Thus, in order for defendants to obtain the privileges of victim
information disclosure as required in H.R. 1927, asbestos companies
would also be required to report information about their asbestos-
containing products.
Without the Jackson Lee Amendment, H.R. 1927 is one-sided.
If passed without this balance approach, H.R. 1927 maintains the
rights of asbestos defendants to demand confidentiality of settlements
and protects an asbestos defendant's right to continue to hide the
dangers of their asbestos products from asbestos victims and the
American public.
A typical asbestos defendant who settles a case in the tort system
demands confidentiality as a condition of settlement in order to ensure
that other victims cannot learn how much they paid or for which
asbestos products the defendant is paying compensation.
These same defendants now want the victims to disclose specific
settlement amounts with the trusts, along with product exposure
information and work history, that they do not themselves provide nor
would have provided before the trusts were created.
If transparency were the true goal of this bill, then why doesn't the
bill require settling defendants to reveal information important to
public safety and health?
The asbestos health crisis is the result of a massive corporate
cover-up.
For decades, asbestos companies knew about the dangers of asbestos
and failed to warn or adequately protect workers and their families.
Now, the same industry responsible for causing this crisis is asking
Congress to protect them from liability.
At the very least, this bill should require asbestos defendants to
reveal information about their asbestos products, where they are in
use, and how many Americans continue to be exposed to those products.
Trust information is already public.
Trusts already disclose far more information than solvent defendants
do about their settlement practices and amounts--the settlement
criteria used by a trust and the offer the trust will make if the
criteria are met are publicly available in the Trust Distribution
Procedures (``TDP'') for that trust.
Trusts also file annual reports with the Bankruptcy courts and
publish lists of the products for which they have assumed
responsibility.
If asbestos victims are going to be forced to reveal private medical
and work history information in a public forum, to the very industry
that caused their harm, asbestos defendants should at least be required
to reveal which of their products contain asbestos and how many people
are being exposed.
H.R. 1927 seeks to override state law regarding discovery and
disclosure of information.
State discovery rules currently govern disclosure of a trust
claimant's work and exposure history.
The bill's proponents offer no explanation as to why the bill's
potentially costly and burdensome information request provision is
necessary or why Federal law should subvert state discovery processes.
If such information is relevant to a state law claim, a defendant can
seek and get that information according to the rules of a state court.
What a defendant cannot do, and what this bill would allow, is for a
defendant to engage in fishing expeditions for irrelevant information
which has no use other than to delay a claim for as long as possible.
Thus, H.R. 1927 must be amended to apply to defendants who should be
required to reveal important information about their asbestos-
containing products.
Lastly, let me add that the asbestos defendants would not be required
to disclose trade secrets under this amendment.
The asbestos defendants would only be required to disclose
information about which of their products contain asbestos, where they
are in use, and how many people are being exposed.
The Jackson Lee Amendment would not force asbestos defendants to
reveal industry trade secrets or place them at a competitive
disadvantage in the marketplace.
Instead, this amendment ensures transparency from both the asbestos
victims and asbestos defendants since transparency is the stated goal
of the bill.
I urge my colleagues to Support the Jackson Lee Amendment.
I ask for my amendment to be supported.
I yield back the balance of my time.
Mr. FARENTHOLD. Madam Chairman, with all due respect to the
gentlewoman from Houston, who is my friend, the requirement of the FACT
Act does not require that the settlement amount be disclosed. What it
does require to be disclosed is the minimal amount of information that
we believe is necessary to help prevent fraud, that is, the name of the
claimant and the basis of exposure and the nature of the claim. It
specifically protects all sorts of private information, in addition to
the protections already built into the Bankruptcy Clause.
I guess the veterans groups are divided on that. Ms. Jackson Lee
listed out a group, and we have entered into the Record a list of
veterans groups and other groups that support it.
Of most interest to the gentlewoman from Texas should be the Texas
Coalition of Veterans Organization, which represents more than 600,000
Texas veterans, supports this because they know that our young
servicemen and -women that were exposed to asbestos and have not yet
manifested the symptoms of mesothelioma or other asbestos-related
diseases need to have these trusts in place so that there will be money
to compensate them because they can't sue the Federal Government over
sovereign immunity. This protects the veterans and makes sure there is
money for future claimants.
I yield back the balance of my time.
The Acting CHAIR. The question is on the amendment offered by the
gentlewoman from Texas (Ms. Jackson Lee).
The question was taken; and the Acting Chair announced that the noes
appeared to have it.
Ms. JACKSON LEE. Madam Chair, I demand a recorded vote.
The Acting CHAIR. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by
[[Page H200]]
the gentlewoman from Texas will be postponed.
{time} 1130
The Acting CHAIR. The Committee will rise informally.
The Speaker pro tempore (Mr. Kline) assumed the chair.
____________________