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Comparison of the House and Senate Class Action Bills (1999)

H.R. 1875 S. 353 Public Citizen Comments
Provision Provision
Sec. 3a
District Court Jurisdiction
(28 USC § 1332)

The federal district courts have original jurisdiction over state class actions when: (1) any plaintiff is a citizen of a different state from any defendant; (2) any plaintiff is a foreign country or citizen/subject of a foreign country and any defendant is a citizen of any U.S. state; or (3) any plaintiff is a citizen of any U.S. state and any defendant is a citizen/subject of a foreign country.

Sec. 3
Diversity Jurisdiction
(28 USC § 1332)

The federal district courts have original jurisdiction over state class actions when the aggregate amount in controversy is over $75,000 and: (1) any plaintiff is a citizen of a different state from any defendant; (2) any plaintiff is a foreign country or a citizen/subject of a foreign country and any defendant is a citizen of any U.S. state; or (3) any plaintiff is a citizen of any U.S. state and any defendant is a foreign state or a citizen/subject of a foreign country.

1. Since the founding of the Republic it has been our shared national understanding that, with relatively few exceptions, it is the province of the state courts to adjudicate disputes involving questions of state law. These bills stand this basic understanding on its head and represent a significant transfer of judicial power from state to federal court. These bills will result in most state class actions being brought in or removed to federal court. Even cases involving plaintiffs almost entirely from one state, and involving only one state's law, could end up in federal court if a primary defendant is an out-of-state company. Corporations are only considered to be in-state if they are incorporated or have their principal place of business in the state.

2. State court judges regularly interpret state law to apply it as new factual situations arise. On the other hand, federal judges are less apt to extend state law in new areas, believing it is the province of state not federal courts. This could have a direct impact on new areas like tobacco and HMO accountability litigation.

3. Our federal courts are already overburdened with cases that traditionally have been dealt with in state courts. This bill will add thousands of complex, time-consuming class action cases. As a result, justice will not only be greatly delayed for class action plaintiffs, but for individual plaintiffs with civil cases in the clogged federal courts as well.

Provision Provision Public Citizen Comments
Sec. 3a
Abstaining from jurisdiction
(28 USC § 1332)

The federal district court shall abstain from hearing the action if the action is an intrastate case (the claims will be governed primarily by the laws of the state in which the action was filed and the "substantial majority" of plaintiffs and the "primary defendants" are citizens of a single state), a limited scope case (all aggregated matters in controversy do not exceed $1 million or the class is made up of fewer than 100 plaintiffs), or a state action case (the primary defendants are States, State officials, or other governmental entities).

Sec. 3
Abstaining from jurisdiction
(28 USC § 1332)

The district court shall abstain from hearing a class action under the above original jurisdiction classification if either: (1) the "substantial majority" of the proposed plaintiffs and the "primary defendants" are citizens of a single state and the claims asserted will be governed primarily by the laws of that state, or (2) the primary defendants are states or governmental entities against whom the district court may be foreclosed from ordering relief.

The bills both slightly ameliorate the harshness of these removal provisions by requiring a federal district court to abstain from hearing a civil action if the "substantial majority of the members of all proposed plaintiff classes" and the primary defendants are citizens of the same state. The problem, however, is that a substantial majority of state class actions do not solely involve in-state plaintiffs and defendants.

In addition, the House bill requires abstention if the claims do not exceed $1 million in the aggregate or there are fewer than 100 class members. Unfortunately, these requirements will only be met by a select few cases and federal courts will have jurisdiction in most cases.

Provision Provision Public Citizen Comments
Sec 3a/4a
Exempt Areas
(28 USC § 1332/1453(new))

The bill does not apply to class actions concerning a covered security as defined in Section 16(f)(3) of the Securities Act of 1933 and Section 28(f)(5)(E) of the Securities Exchange Act of 1934.

 

 

Sec 3
Exempt Areas
(28 USC § 1332/1453(new))

The bill does not apply if the claim relates to a corporation's or business association's internal affairs or governance or to claims relating to any security as defined by the Securities Act of 1933.

 
Provision Provision Public Citizen Comments
Sec. 4(new)
Removal
(28 USC § 1453)

Class actions may be removed to federal court by any defendant without consent or any plaintiff member who is not a named or representative class member without consent. Cases may be removed before or after the case is certified as a class action.

Sec. 4
Removal
(28 USC § 1453)

Class actions may be removed to federal court by any defendant or any plaintiff member who is not a named or representative class member without consent. Cases may be removed before or after the case is certified as a class action.

  
Provision Provision Public Citizen Comments
Sec. 4
Post-removal
(28 USC § 1447)

If, after removal, the court determines that no aspect of an action that is subject to its jurisdiction solely under this bill may be maintained as a class action under Federal Rule of Civil Procedure 23, it shall dismiss the action. An action dismissed under this subsection may be refiled in state court, but is still removable to federal court if the U.S. District Courts have original jurisdiction. The statute of limitations is tolled upon dismissal to the full amount provided under federal law.

Sec. 3
Post-removal
(28 USC § 1332)

If the action is subject to federal court jurisdiction solely through this bill and the court determines the action cannot proceed as a class action for failure to satisfy Federal Rule of Civil Procedure 23, the court shall dismiss or, if after removal, strike the class allegations and remand the action. The statute of limitations is tolled upon dismissal or remand to the full amount provided under federal law. Nothing will prohibit plaintiffs from filing an amended complaint in federal or state court.

The tolling provisions under both bills are problematic. First, it is unclear whether state courts will consider themselves bound to toll the statute of limitations because of the bill's reference to tolling principles "under Federal law." Second, the bill's language is of no benefit to a reconstituted class action because federal law, as interpreted by the federal courts, only provides for tolling of statutes of limitations for new individual actions, not new class actions. Thus, under the bill, future class action litigants may see their cases barred.
Provision Provision Public Citizen Comments
Sec. 5
Applicability

The Act would apply to any action commenced on or after the date of the Act's enactment.

Sec. 6
Effective Date

The Act would apply to any action commenced on or after the date of the Act’s enactment.

   
Provision Provision Public Citizen Comments
Does not contain this section

 

Sec.2
Attorney's Fees
(28 USC § 1714 (new))

Attorney's fees and expenses for the plaintiff's attorney cannot exceed a reasonable percentage of the following: any damages and prejudgment interest paid to the class; any future financial benefits to the class based on the cessation of alleged improper conduct by the defendants and costs actually incurred by all defendants in complying with the costs of an injunctive order or settlement agreement.

In addition, the court may award attorney's fees and expenses to plaintiff's counsel based on a reasonable lodestar calculation.

Congressionally mandated attorney’s fees provisions are a significant and inappropriate federal intrusion on the state courts’ ability to determine their own rules and procedures. Individual judges reviewing these settlement agreements, not politicians in Washington, are in the best position to determine what is appropriate compensation.
Provision Provision Public Citizen Comments
Does not contain this section

 

Sec. 5
Sanctions

Sanctions for frivolous filings under Federal Rule of Civil Procedure 11 are made mandatory instead of discretionary.

Currently, Rule 11 limits the amount of sanctions to the amount that would deter similar conduct. The limitation is taken out under S. 353, leaving no outer limit on the amount of sanctions that could be imposed.

Public Citizen opposes section 5 of S. 2083, which would make sanctions for violations of Rule 11 mandatory for all civil actions, including class actions. History shows that mandatory Rule 11 sanctions are used disproportionately against plaintiffs, particularly civil rights plaintiffs, and their attorneys and those attempting to extend the law in a way favorable to ordinary citizens, which often includes class action cases. Moreover, if sanctions are made mandatory, Rule 11 litigation would enormously expand. In times of heavy dockets, we should be seeking ways to lessen, not increase, satellite litigation.
Provision Provision Public Citizen Comments
Does not contain this section. Sec. 2
Attorney General Notice
(28 USC § 1713 (new))

Within ten days of filing a proposed class action settlement in court, class counsel shall serve the State Attorney General of each state in which a class member resides and the U.S. Attorney General the following: a copy of the complaint, any materials filed with the complaint, and any amended complaints (or notice of how to access this material electronically); notice of any scheduled judicial hearings; any proposed or final notification to class members regarding the members rights to request exclusion from the class or a statement that no right of exclusion exists and any proposed settlement; any proposed or final settlement; any settlement or other agreement contemporaneously made between class counsel and defense counsel; any final judgment or notice of dismissal; 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 (if the above is not feasible, a reasonable estimate of the number of class members residing in each state and the estimated proportionate claim of such members to the entire settlement); and any written judicial opinion relating to the above listed materials.

Under subsection (e)(1), class members 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 the above section.

We have found the Attorneys General participation can be helpful in policing abusive class action settlements. Most Attorneys General offices do not have the space, time, or resources to deal with this provision, however. First, by requiring plaintiffs' counsel to provide all the pleadings in every class action (state and federal court) where any state citizen is a class member (often requiring notice to all 50 attorneys general), the provision will generate an immense amount of paper. Most AG offices do not know how they would handle this type of deluge. Second, although the bill asserts not to impose any obligations upon state AGs, Attorneys General are concerned that they will be held accountable for failing to adequately police those abusive class action settlements where they have been provided with the pleadings. It is unfair to expect oversight without providing the means with which to do this.

 

 

Provision Provision Public Citizen Comments
Does not contain this section.

 

Sec. 2
Hearings on settlement

(28 USC § 1713)

The State and U.S. Attorneys General must have at least 120 days after receiving the above notices before hearings on final approval of a proposed settlement can be held.

  
Provision Provision Public Citizen Comments
Does not contain this section.

 

Sec. 2
Plaintiff notice requirements

(28 USC § 1712)

Any court with jurisdiction over a plaintiff shall require that any written notice to the class contain a short summary describing the subject matter of the class action, the legal consequences of being a class member, the ability of a class member to seek removal of the action to federal court, and any other material information. If the correspondence is to inform class members of a proposed settlement agreement, an additional summary must be given of the benefits that will accrue to the class, the rights that class members will lose or waive through settlement, obligations that will be imposed on the defendants by settlement, the amount of attorneys fees being sought, and an explanation of how attorney fees will be calculated and funded. Notice provided through television or radio must describe the people who may potentially become class members, explain the right to exclude oneself from the class, and that failure to exercise the right of exclusion will result in class membership.

  

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