Save Lives, Not Tobacco

The Coalition For Accountability

May 12, 1999

Dear Senate Judiciary Committee Member:

SAVE LIVES, NOT TOBACCO: The Coalition for Accountability is writing to urge you to oppose S. 353, the so-called Class Action Fairness Act of 1999, because it would virtually wipe out one of the most effective avenues of redress available to Americans injured by tobacco -- class action litigation.

Our coalition represents more than 350 public health, consumer, medical, civic and business organizations which support national, state and local efforts to reduce the devastating toll tobacco takes on public health.

S. 353 would, for the first time, give federal courts jurisdiction over almost all state class action claims, even those involving primarily intra-state disputes over state law. As reported last year by the Subcommittee for Administration Oversight and the Courts, the bill accomplishes this extraordinary transfer of power from state to federal courts by giving federal courts jurisdiction over state class action cases whenever any plaintiff class member (named or unnamed) is from a different state than any defendant, unless the majority of the proposed plaintiff class are from a single state which is also the home of all of the primary defendants. Because the various tobacco companies are incorporated in different states and they are often sued together, there will be few, if any, tobacco class action suits against the industry that will not be removable to federal court. Therefore, this bill will allow Philip Morris, R.J. Reynolds and the other tobacco industry giants to take state class action claims away from state courts and put them into federal courts over the objections of the plaintiffs.

By permitting the transfer from state courts to the federal courts, this legislation will cause interminable delay for class action cases against the tobacco industry, both increasing the costs of suing the industry and delaying justice. Class action cases can sometimes come to trial in state courts in a matter of a few months, but take years to be tried in federal court. The more class actions that are removed to federal courts, the greater will be the delay. Federal courts are already overburdened and not equipped to handle the flood of cases that will be shifted from state to federal courts. Further, federal courts are not expert in the state statutory and common law claims brought by most tobacco plaintiffs, complicating these cases even further. The bill would add delay and expense to tobacco class actions and make it much harder for injured consumers to take on the tobacco industry in court.

While our greatest concern is with the diversity changes that would federalize most state class actions, we also have objections to three other provisions in the bill. We believe the federal limitation on attorneys fees in this bill are inappropriate; individual state and federal courts should have the ability to continue to determine reasonable and appropriate attorneys fees, especially for such an innovative and evolving area of civil litigation as tobacco class action cases. The mandatory sanctions under Rule 11 are also very troublesome. Again, the innovative nature of tobacco law has required plaintiffs to test new legal theories, which they might not otherwise do if they knew mandatory sanctions under Rule 11 could be imposed. Both of these provisions are also unnecessary as state and federal courts already have adequate mechanisms for dealing with any potential abuses involving attorneys fees and frivolous motions. Finally, we see little benefit to plaintiffs from the Attorneys General notice requirement.

Class action suits are one of the only ways that injured consumers can bring legal claims against tobacco companies. That's why the tobacco industry tried to wipe out class actions in the June 20, 1997 deal it sought with state attorneys general. The proposal to end tobacco class action litigation in the June 20 deal was widely criticized by the public health community and was rejected by the Senate Commerce Committee in the McCain tobacco control bill. Save Lives urges you not to revive this issue by allowing tobacco companies to get the "back door" immunity from state class action suits currently contained in S. 353.

We urge you not to give the tobacco industry this special protection from state class action suits. Please vote against the Class Action Fairness Act of 1999 when it is brought up before the Judiciary Committee.

Co-Chairs of SAVE LIVES, NOT TOBACCO: The Coalition for Accountability

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