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Alcee H.
Democrat FL 20

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  • Providing for Consideration of H.R. 1927, Fairness in Class Action Litigation Act of 2015

    by Representative Alcee L. Hastings

    Posted on 2016-01-07

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    HASTINGS. Mr. Speaker, I yield myself such time as I may consume. I thank the gentleman from Georgia for yielding me the customary 30 minutes for debate.

    Mr. Speaker, I rise in opposition to this rule, which provides for consideration of H.R. 1927, called the Fairness in Class Action Litigation Act, which in practice will unfairly hamper large numbers of injured parties from effectively seeking redress in court, including civil rights, employment discrimination, consumer protection, and asbestos victim litigants.

    Let me put my bona fides on the table here. I have filed class actions, particularly in civil rights cases. Each of them were certified as class actions. They led to the desegregation of schools in the county that I am privileged to serve, the desegregation of juvenile detention facilities, and several others too numerous to mention.

    As a United States district court judge, I also had the privilege of presiding in cases where certification was sought for class actions. The great majority of those cases were not certified by me, largely for the reason that they did not meet the rigorous test that is already in place and that has been in place for nearly 40 years, with many changes having taken place over the years through the Federal process. That is what I would argue would be the best for us to do.

    First, this bill includes language that prohibits Federal courts from certifying that a group can file a class action lawsuit unless the group demonstrates by admissible evidentiary proof that each proposed class member suffered an injury of the same type and scope of the injury of the named class representative.

    A footnote right here. My read is that Brown v. Board of Education, the most significant school desegregation case in the history of this country, would not have qualified as a class action under this measure, as proposed.

    My friends in the majority claim that this measure is necessary to reduce fraud and exploitation in the class action system, maintaining that, under current rules, Federal courts have certified classes that include individuals who have not been injured, but have been forced into a class action lawsuit against their will.

    This claim and the legislation it inspired has been met by much opposition from a broad range of legal, civil rights, labor, consumer, and public interest groups, including the American Bar Association, the American Civil Liberties Union, AFSCME, NAACP, Consumer Federation of America, National Consumer Law Center, Public Citizen, Public Justice, and American Association for Justice, among a myriad of others.

    Mr. Speaker, I include in the Record letters from the American Bar Association, Public Citizen, American Federation of Labor and Congress of Industrial Organizations, the Asbestos Disease Awareness Organization, and the Military Order of the Purple Heart. All of those organizations that I just identified are opposed to this legislation. Their language speaks for itself, for those who may peruse the Congressional Record.

    American Bar Association, Washington, DC, June 23, 2015.

    Hon. Bob Goodlatte, Chairman, House Judiciary Committee, Washington, DC.

    Dear Chairman Goodlatte: On behalf of the American Bar Association and its almost 400,000 members, I write to offer our views as the Committee considers class action reform. I understand that your Committee intends to mark up H.R. 1927, the ``Fairness in Clam Action Litigation Act of 2015'' tomorrow. The ABA has long recognized that we must continue to improve our judicial system; however, we cannot support 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 would place added burdens on an already overloaded court system.

    This proposed 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 agreed to hear Tyson Foods v. Bouaphakeo, where they 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 rulemaking process, the proposed legislation would severely limit the ability of victims who have suffered a legitimate harm to collectively seek justice in a class action lawsuit. The proposed legislation mandates that in order to be certified as a class each individual member must prove he or she suffered an injury of the same type and scope to the proposed named class representative(s), and requires plaintiffs to show they suffered bodily injury or property damage.

    We were pleased learn that a manager's amendment is expected to be offered during tomorrow's markup that removes the requirement that the alleged harm to the plaintiff involved bodily injury or property damage. This improves the bill, but the remaining requirement leaves a severe burden for people who have suffered harm at the hands of large institutions with vast resources, effectively barring them from forming class actions. For example, in a recent class action case against the Veterans Administration, several veterans sued for a variety of grievances centered on delayed claims. The requirement in this legislation [[Page H120]] 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.

    Class actions have been an efficient means of resolving disputes. Making it harder to utilize class actions will 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 recommendations 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, Director, Governmental Affairs Office.

    ____ Public Citizen, Washington, DC, May 13, 2015.

    Re Oppose H.R. 26 House of Representatives, Judiciary Committee, Washington, DC.

    Dear Honorable Committee Members: On behalf of Public Citizen's more than 350,000 members and supporters, we strongly urge you to oppose H.R. 526, the Furthering Asbestos Claim Transparency Act (FACT Act).

    The FACT Act invades the privacy of asbestos disease victims and will have the effect of delaying compensation for those suffering with lethal diseases like mesothelioma. Congress should act to protect these victims instead of opening the door for the asbestos industry to further escape accountability for poisoning the public and exposing trust claimants to scams, identity theft, and other privacy violations.

    The dangerous product asbestos was once ubiquitous as insulation and flame retardant in buildings, homes and workplaces like naval vessels. The frightening reality is that an unknown amount of the cancer-causing substance is still present in our surroundings, but the asbestos industry does not have to disclose where and when it was and is being used.

    The Centers for Disease Control and Prevention report that roughly 3,000 people continue to die from mesothelioma and asbestosis every year and some experts estimate the death toll is as high as 12,000-15,000 people per year when other types of asbestos-linked diseases and cancers are included.

    Instead of helping these victims, H.R. 526 would put unworkable burdens on claims trusts. For example, the bill would impose a requirement for trusts to respond to any and all corporate defendants' information requests. Such a requirement would have the effect of slowing or virtually stopping the ability of trusts to provide compensation for victims. Since patients diagnosed with fatal asbestos-caused diseases like mesothelioma have very short expected lifespans, a delay in justice could leave victims' next of kin struggling to pay medical and funeral bills.

    The FACT Act does nothing to improve the lives of those facing an asbestos death sentence through no fault of their own. The bill instead adds insult to injury and inexcusably invades the privacy of victims by requiring public disclosure of personal claim information, including portions of their social security numbers, opening the door to identity theft and possible discrimination.

    Instead of the FACT Act's misguided push for ``transparency'' via asbestos trust claim information disclosures, an appropriate transparency standard would ensure that workers and consumers have all the information necessary to limit their potential exposure to the deadly substance. Specifically, companies should publicly disclose their activities related to the manufacture, processing, distribution, sales, importation, transport or storage of asbestos or asbestos-containing products. That's why Public Citizen supports Sens. Durbin and Markey's and Reps. DelBene and Green's Reducing Exposure to Asbestos Database Act (READ Act, S. 700/H.R. 2030) which would create an information portal for the public to learn about the many asbestos- containing products that are currently bought and sold in the U.S.A.

    The real outrage is the double oppression of asbestos victims, and the real need for transparency is disclosure of past and ongoing asbestos exposures. Please oppose H.R. 526.

    Sincerely, Lisa Gilbert, Director, Public Citizen's Congress Watch division.

    Susan Harley, Deputy Director, Public Citizen's Congress Watch division.

    ____ American Federation of Labor and Congress of Industrial Organizations, Washington, DC, January 5, 2016.

    Dear Representative: I am writing to express the strong opposition of the AFL-CIO to H.R. 1927, the ``Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act'' which is scheduled for consideration by the House of Representatives this week. This bill incorporates H.R. 526, the Furthering Asbestos Claim Transparency Act (FACT Act), which would invade the privacy of asbestos victims by posting personal exposure and medical information online and create new barriers to victims receiving compensation for their asbestos diseases. The AFL- CIO urges you to oppose this harmful bill.

    Decades of uncontrolled use of asbestos, even after its hazards were known, have resulted in a legacy of disease and death. Hundreds of thousands of workers and family members have suffered or died of asbestos-related cancers and lung disease, and the toll continues. Each year an estimated 10,000 people in the United States are expected to die from asbestos related diseases.

    Asbestos victims have faced huge barriers and obstacles to receiving compensation for their diseases. Major asbestos producers refused to accept responsibility and most declared bankruptcy in an attempt to limit their future liability. In 1994 Congress passed special legislation that allowed the asbestos companies to set up bankruptcy trusts to compensate asbestos victims and reorganize under the bankruptcy law. But these trusts don't have adequate funding to provide just compensation, and according to a 2010 RAND study, the median payment across the trusts is only 25 percent of the claim's value. 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 AFL-CIO is well aware that the system for compensating asbestos disease victims has had its share of problems, with victims facing delays and inadequate compensation and too much money being spent on defendant and plaintiff lawyers. We have spent years of effort trying to seek solutions to make the asbestos compensation system fairer and more effective. But the FACT Act does nothing to improve compensation for asbestos victims and would in fact make the situation even worse. In our view, the bill is simply an effort by asbestos manufacturers who are still subject to asbestos lawsuits to avoid liability for diseases caused by exposure to their products.

    The FACT Act would require personally identifiable exposure histories and disease information for each asbestos victim filing a claim with an asbestos trust, and related payment information, to be posted on a public docket. This public posting is an extreme invasion of privacy. It would give unfettered access to employers, insurance companies, workers compensation carriers and others who could use this information for any purpose including blacklisting workers from employment and fighting compensation claims.

    The bill would also require asbestos trusts to provide on demand to asbestos defendants and litigants any information related to payments made by and claims filed with the trusts. This would place unnecessary and added burdens on the trusts delaying much-needed compensation for asbestos victims. Such a provision allows asbestos defendants to bypass the established rules of discovery in the civil justice system, and provides broad unrestricted access to personal information with no limitations on its use.

    Congress should be helping the hundreds of thousands of individuals who are suffering from disabling and deadly asbestos diseases, not further victimizing them by invading their privacy and subjecting them to potential blacklisting and discrimination.

    The AFL-CIO strongly urges you to oppose H.R. 1927.

    Sincerely, William Samuel, Director, Government Affairs Department.

    ____ Asbestos Disease Awareness Organization, Redondo Beach, CA, February 4, 2015.

    Re Opposition to the Furthering Asbestos Claim Transparency Act of 2015 (H.R. 526) Hon. Bob Goodlatte, Chairman, House Committee on the Judiciary, Washington, DC.

    Hon. John Conyers, Jr., Ranking Member, House Committee on the Judiciary, Washington, DC.

    Dear Chairman Goodlatte and Ranking Member Conyers: As both a mesothelioma widow and the President and Co-Founder of the Asbestos Disease Awareness Organization, I respectfully write to express my strong opposition to the Furthering Asbestos Claim Transparency (FACT) Act of 2015, H.R. 526.

    Asbestos is a known human carcinogen that causes deadly cancerous diseases. Asbestos-related diseases kill at least 10,000 Americans every year. Yet, it remains a major public health hazard that severely affects too many American families. Notwithstanding these lethal exposures, the 2014 U.S. Geological Survey World Report confirmed that although Asbestos has not been mined in the United States since 2002, the U.S. continues to import Asbestos to ``meet manufacturing needs.'' These same manufacturing interests who for years hid the dangers of their lethal Asbestos products, are now asking Congress--under the guise of transparency--to impose new time and cost-consuming requirements on the asbestos trusts, grant asbestos defendants new rights to infringe upon victims' privacy, and operate the trusts in a manner that will unduly burden asbestos victims and their families, without justification. I oppose the bill not only because it is both fundamentally unfair and discriminatory toward asbestos cancer victims, but because it is entirely one-sided, and seeks absolutely nothing in the way of increased transparency from the same industry that caused the largest man-made disaster in human history, and covered it up for years.

    [[Page H121]] There is no justification for exposing families to the additional burdens set forth in H.R. 526. Information needed to verify the health of the trusts is already publicly available in a way that protects the privacy of the victims of asbestos disease and their families. And trusts established by asbestos companies undergoing reorganization effectively compensate current and future asbestos victims while allowing business operations to continue. Trusts are designed to decrease litigation and costs, yet the proposed reporting requirements contained in the FACT Act work contrary to that very purpose. Instead, the FACT Act grants asbestos companies the right to require from the trusts any information they choose, at any time, and for practically any reason. The resulting delay in compensation will gravely impact patients' pursuit of medical care, negatively affects all victims of asbestos exposure, and effectively limits the justice they deserve. Accordingly, I am strongly opposed to the FACT Act, which creates even greater burdens for patients and families to overcome during an already extremely difficult time.

    I am extremely disappointed that recent Congressional legislative efforts have focused on ways to limit the litigation designed to compensate victims, when the most obvious way to limit the impact of asbestos exposure is through increased public awareness of the dangers posed, and prevention. Americans need legislation that will stop the continued import of asbestos into our country, and prevent the continued expanse of environmental and occupational asbestos-related diseases. As consumers and workers, Americans deserve transparency to prevent exposure to asbestos, not to penalize victims.

    More than 30 Americans die each day from a preventable asbestos-caused disease. On behalf of the American citizens, we urge you to take the time to hear from the victims of asbestos exposure and consider legislation that will protect public health, not legislation designed only to delay and deny justice for victims of asbestos exposure.

    Sincerely, Linda Reinstein, President and Co-Founder, Asbestos Disease Awareness Organization.

    ____ Military Order of the Purple Heart, Springfield, VA, July 8, 2015.

    Hon. John Conyers, Washington, DC.

    Dear Representative Conyers: As H.R. 526 ``FACT Act'' makes it way through the legislative process, the Military Order of the Purple Heart of the U.S.A. (MOPH) wishes to reiterate its firm opposition to this bill.

    We are disappointed to see that our declaration of opposition in February of this year has not stopped this bill in its tracks. Have no doubt and make no mistake, the FACT Act will have a very burdensome and detrimental effect on the asbestos personal injury trust claims for veterans and their families who have been exposed to this deadly product. The Association of the United States Navy (AUSN) and American Veterans (AMVETS) recognize this as well and recently joined us in opposing this legislation.

    On May 14th during the full Judiciary Committee mark-up of H.R. 526 ``FACT Act'', the legislation's author, Representative Blake Farenthold shared with the committee a list of eleven ``veterans organizations'' that support the FACT Act. It needs to be noted that none of the groups mentioned were a national veterans service organization such as the MOPH. In fact, the majority of the groups listed by the Representative are not recognized veterans service organizations at all.

    The Military Order of the Purple Heart, of the U.S.A. is a Congressionally chartered national veterans service organization and is the only one that is exclusively made up of combat wounded Purple Heart veterans. We carefully consider each piece of veterans' related legislation to assure it is either truly beneficial or truly negative for veterans before we take an official position. We speak on behalf of our 45,000 members across the nation, not just a couple of hundred in a few states.

    H.R. 526 is bad for veterans. The MOPH has been, and will continue to be, staunch advocates for our members and all veterans of the United States Armed Forces. We continue to oppose H.R. 526 and respectfully ask you to join us.

    Respectfully, J. Patrick Little, National Commander.

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