S 353 IS
106th CONGRESS
1st Session
S. 353
To provide for class action reform, and for other purposes.
IN THE SENATE OF THE UNITED STATES
February 3, 1999
Mr. GRASSLEY (for himself, Mr. KOHL, and Mr. THURMOND) introduced the
following bill; which was read twice and referred to the Committee on the
Judiciary
A BILL
To provide for class action reform, and for other purposes.
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 `Class Action Fairness Act of 1999'.
SEC. 2. NOTIFICATION REQUIREMENT OF CLASS ACTION CERTIFICATION OR
SETTLEMENT.
(a) IN GENERAL- Part V of title 28, United States Code, is amended by
inserting after chapter 113 the following new chapter:
`CHAPTER 114--CLASS ACTIONS
`Sec.
`1713. Notification of class action certifications and
settlements.
`1714. Limitation on attorney's fees in class actions.
`Sec. 1711. Definitions
`In this chapter the term--
`(1) `class' means a group of persons that comprise parties to a civil
action brought by 1 or more representative persons;
`(2) `class action' means a civil action filed pursuant to rule 23 of
the Federal Rules of Civil Procedure or similar State rules of procedure
authorizing an action to be brought by 1 or more representative persons on
behalf of a class;
`(3) `class certification order' means an order issued by a court
approving the treatment of a civil action as a class action;
`(4) `class member' means a person that falls within the definition of
the class;
`(5) `class counsel' means the attorneys representing the class in a
class action;
`(6) `plaintiff class action' means a class action in which class
members are plaintiffs; and
`(7) `proposed settlement' means a settlement agreement between or among
the parties in a class action that is subject to court approval before the
settlement becomes binding on the parties.
`Sec. 1712. Application
`This chapter shall apply to--
`(1) all plaintiff class actions filed in Federal court; and
`(2) all plaintiff class actions filed in State court in which--
`(A) any class member resides outside the State in which the action is
filed; and
`(B) the transaction or occurrence that gave rise to the class action
occurred in more than 1 State.
`Sec. 1713. Notification of class action certifications and settlements
`(a) Not later than 10 days after a proposed settlement in a class action
is filed in court, class counsel shall serve the State attorney general of
each State in which a class member resides and the Attorney General of the
United States as if such attorneys general and the Department of Justice were
parties in the class action with--
`(1) a copy of the complaint and any materials filed with the complaint
and any amended complaints (except such materials shall not be required to
be served if such materials are made electronically available through the
Internet and such service includes notice of how to electronically access
such material);
`(2) notice of any scheduled judicial hearing in the class action;
`(3) any proposed or final notification to class members of--
`(A)(i) the members' rights to request exclusion from the class
action; or
`(ii) if no right to request exclusion exists, a statement that no
such right exists; and
`(B) a proposed settlement of a class action;
`(4) any proposed or final class action settlement;
`(5) any settlement or other agreement contemporaneously made between
class counsel and counsel for the defendants;
`(6) any final judgment or notice of dismissal;
`(7)(A) if feasible the names of class members who reside in each State
attorney general's respective State and the estimated proportionate claim of
such members to the entire settlement; or
`(B) if the provision of information under subparagraph (A) is not
feasible, a reasonable estimate of the number of class members residing in
each attorney general's State and the estimated proportionate claim of such
members to the entire settlement; and
`(8) any written judicial opinion relating to the materials described
under paragraphs (3) through (6).
`(b) A hearing to consider final approval of a proposed settlement may not
be held earlier than 120 days after the date on which the State attorneys
general and the Attorney General of the United States are served notice under
subsection (a).
`(c) Any court with jurisdiction over a plaintiff class action shall
require that--
`(1) any written notice provided to the class through the mail or
publication in printed media contain a short summary written in plain,
easily understood language, describing--
`(A) the subject matter of the class action;
`(B) the legal consequences of being a member of the class
action;
`(C) the ability of a class member to seek removal of the class action
to Federal court if--
`(i) the action is filed in a State court; and
`(ii) Federal jurisdiction would apply to such action under section
1332(d);
`(D) if the notice is informing class members of a proposed settlement
agreement--
`(i) the benefits that will accrue to the class due to the
settlement;
`(ii) the rights that class members will lose or waive through the
settlement;
`(iii) obligations that will be imposed on the defendants by the
settlement;
`(iv) the dollar amount of any attorney's fee class counsel will be
seeking, or if not possible, a good faith estimate of the dollar amount
of any attorney's fee class counsel will be seeking; and
`(v) an explanation of how any attorney's fee will be calculated and
funded; and
`(E) any other material matter; and
`(2) any notice provided through television or radio to inform the class
members of the right of each member to be excluded from a class action or a
proposed settlement, if such right exists, shall, in plain, easily
understood language--
`(A) describe the persons who may potentially become class members in
the class action; and
`(B) explain that the failure of a person falling within the
definition of the class to exercise such person's right to be excluded
from a class action will result in the person's inclusion in the class
action.
`(d) Compliance with this section shall not provide immunity to any party
from any legal action under Federal or State law, including actions for
malpractice or fraud.
`(e)(1) A class member may refuse to comply with and may choose not to be
bound by a settlement agreement or consent decree in a class action if the
class member resides in a State where the State attorney general has not been
provided notice and materials under subsection (a).
`(2) The rights created by this subsection shall apply only to class
members or any person acting on a class member's behalf, and shall not be
construed to limit any other rights affecting a class member's participation
in the settlement.
`(f) Nothing in this section shall be construed to impose any obligations,
duties, or responsibilities upon State attorneys general or the Attorney
General of the United States.
`Sec. 1714. Limitation on attorney's fees in class actions
`(a) In any class action, the total attorney's fees and expenses awarded
by the court to counsel for the plaintiff class may not exceed a reasonable
percentage of the amount of--
`(1) any damages and prejudgment interest actually paid to the
class;
`(2) any future financial benefits to the class based on the cessation
of alleged improper conduct by the defendants; and
`(3) costs actually incurred by all defendants in complying with the
terms of an injunctive order or settlement agreement.
`(b) Notwithstanding subsection (a), to the extent that the law permits,
the court may award attorney's fees and expenses to counsel for the plaintiff
class based on a reasonable lodestar calculation.'.
(b) TECHNICAL AND CONFORMING AMENDMENT- The table of chapters for part V
of title 28, United States Code, is amended by inserting after the item
relating to chapter 113 the following:
`114. Class Actions
--1711'.
SEC. 3. DIVERSITY JURISDICTION FOR CLASS ACTIONS.
Section 1332 of title 28, United States Code, is amended--
(1) by redesignating subsection (d) as subsection (e); and
(2) by inserting after subsection (c) the following:
`(d)(1) In this subsection, the terms `class', `class action', and `class
certification order' have the meanings given such terms under section 1711.
`(2) The district courts shall have original jurisdiction of any civil
action where the matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs, and is a class action in which--
`(A) any member of a class of plaintiffs is a citizen of a State
different from any defendant;
`(B) any member of a class of plaintiffs is a foreign state or a citizen
or subject of a foreign state and any defendant is a citizen of a State;
or
`(C) any member of a class of plaintiffs is a citizen of a State and any
defendant is a foreign state or a citizen or subject of a foreign
state.
`(3) The district court shall abstain from hearing a civil action
described under paragraph (2) if--
`(A)(i) the substantial majority of the members of the proposed
plaintiff class are citizens of a single State of which the primary
defendants are also citizens; and
`(ii) the claims asserted will be governed primarily by the laws of
that State; or
`(B) the primary defendants are States, State officials, or other
governmental entities against whom the district court may be foreclosed
from ordering relief.
`(4) In any class action, the claims of the individual members of any
class shall be aggregated to determine whether the matter in controversy
exceeds the sum or value of $75,000, exclusive of interest and costs.
`(5) This subsection shall apply to any class action before or after the
entry of a class certification order by the court.
`(6)(A) A district court shall dismiss, or, if after removal, strike the
class allegations and remand, any civil action if--
`(i) the action is subject to the jurisdiction of the court solely under
this subsection; and
`(ii) the court determines the action may not proceed as a class action
based on a failure to satisfy the conditions of rule 23 of the Federal Rules
of Civil Procedure.
`(B) Nothing in subparagraph (A) shall prohibit plaintiffs from filing an
amended class action in Federal or State court.
`(C) Upon dismissal or remand, the period of limitations for any claim
that was asserted in an action on behalf of any named or unnamed member of any
proposed class shall be deemed tolled to the full extent provided under
Federal law.
`(7) Paragraph (2) shall not apply to any class action, regardless of
which forum any such action may be filed in, involving any claim relating
to--
`(A) the internal affairs or governance of a corporation or other form
of entity or business association arising under or by virtue of the
statutory, common, or other laws of the State in which such corporation,
entity, or business association is incorporated (in the case of a
corporation) or organized (in the case of any other entity); or
`(B) the rights, duties (including fiduciary duties), and obligations
relating to or created by or pursuant to any security (as defined under
section 2(a)(1) of the Securities Act of 1933 or the rules and regulations
adopted under such Act).'.
SEC. 4. REMOVAL OF CLASS ACTIONS TO FEDERAL COURT.
(a) IN GENERAL- Chapter 89 of title 28, United States Code, is amended by
adding after section 1452 the following:
`Sec. 1453. Removal of class actions
`(a) In this section, the terms `class', `class action', and `class
member' have the meanings given such terms under section 1711.
`(b) A class action may be removed to a district court of the United
States in accordance with this chapter, except that such action may be
removed--
`(1) by any defendant without the consent of all defendants; or
`(2) by any plaintiff class member who is not a named or representative
class member without the consent of all members of such class.
`(c) This section shall apply to any class action before or after the
entry of any order certifying a class.
`(d) The provisions of section 1446 relating to a defendant removing a
case shall apply to a plaintiff removing a case under this section, except
that in the application of subsection (b) of such section the requirement
relating to the 30-day filing period shall be met if a plaintiff class member
files notice of removal within 30 days after receipt by such class member,
through service or otherwise, of the initial written notice of the class
action.
`(e) This section shall not apply to any class action, regardless of which
forum any such action may be filed in, involving any claim relating to--
`(1) the internal affairs or governance of a corporation or other form
of entity or business association arising under or by virtue of the
statutory, common, or other laws of the State in which such corporation,
entity, or business association is incorporated (in the case of a
corporation) or organized (in the case of any other entity); or
`(2) the rights, duties (including fiduciary duties), and obligations
relating to or created by or pursuant to any security (as defined under
section 2(a)(1) of the Securities Act of 1933 or the rules and regulations
adopted under such Act).'.
(b) REMOVAL LIMITATION- Section 1446(b) of title 28, United States Code,
is amended in the second sentence by inserting `(a)' after `section 1332'.
(c) TECHNICAL AND CONFORMING AMENDMENTS- The table of sections for chapter
89 of title 28, United States Code, is amended by adding after the item
relating to section 1452 the following:
`1453. Removal of class actions.'.
SEC. 5. REPRESENTATIONS AND SANCTIONS UNDER RULE 11 OF THE FEDERAL RULES OF
CIVIL PROCEDURE.
Rule 11(c) of the Federal Rules of Civil Procedure is amended--
(1) in the first sentence by striking `may, subject to the conditions
stated below,' and inserting `shall';
(2) in paragraph (2) by striking the first and second sentences and
inserting `A sanction imposed for violation of this rule may consist of
reasonable attorneys' fees and other expenses incurred as a result of the
violation, directives of a nonmonetary nature, or an order to pay penalty
into court or to a party.'; and
(3) in paragraph (2)(A) by inserting before the period `, although such
sanctions may be awarded against a party's attorneys'.
SEC. 6. EFFECTIVE DATE.
The amendments made by this Act shall apply to any civil action commenced
on or after the date of enactment of this Act.
END