Jeff Sessions

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. SESSIONS. Mr. President, I send an amendment to the desk and ask for its immediate consideration.

Mr. SESSIONS. Mr. President, this is in the nature of a technical change. It doesn't change the basic import of the amendment. I yield the floor. Mr. HATCH addressed the Chair.

Mr. SESSIONS. Mr. President, I would like to modify the amendment to reflect the change, which I send to the desk.

Mr. SESSIONS. Will the Senator yield?

Mr. SESSIONS. Would the Senator be agreeable to this amendment if we reworded it, in fact, make it apply to the tobacco lawyers? I will certainly feel good about that. The reason it was done this way is because many of the plaintiffs' attorneys apparently have it on a contingency fee basis, probably have filed lawsuits, may be entitled to hundreds of millions of dollars and have done very little work. It would be an unjust enrichment, it appears to me. I would certainly entertain that amendment. I think it is a suggestion that we ought to incorporate.

Mr. SESSIONS. I object.

Mr. SESSIONS. How long is the time agreement?

Mr. SESSIONS. That would be appropriate.

Mr. SESSIONS. It is my understanding that there will no further votes tonight.

Mr. SESSIONS. Thirty minutes.

Mr. SESSIONS. Let me clarify that as best I can.

Mr. SESSIONS. That is correct.

Mr. SESSIONS. Less.

Mr. SESSIONS. You are correct. The Senator is correct.

Mr. SESSIONS. My understanding is that States that have settled have conditioned their settlement on the requirements of the congressional global settlement. If there is no congressional action, then their settlements will be in full force and effect, but if it is, they are agreed to be vitiated by the congressional action.

Mr. SESSIONS. Mr. President, at this point I would like to further modify my amendment to address the concerns of the Senator from Iowa with regard to the ongoing State suits versus the national tobacco settlement. I send that to the desk at this time.

Mr. SESSIONS. I want to express my appreciation to the distinguished chairman of the Judiciary Committee, Senator Hatch, for his remarks. I appreciate them. His committee, the Judiciary Committee, of which I am a member, has begun wrestling with these very complex issues. I think he is exactly correct. It is a matter that requires the leadership of the President. He is going to have to step up to the plate and bring his departments of the U.S. Government on board if there is to be an agreement. It has so many possibilities of going awry. I think, personally, I have not decided whether this legislative body, the Congress, ought to get involved in this lawsuit or not. It may be the right thing for us to do. Then again it may turn out that it is not. But if we do, I think it is appropriate that we limit the amount of attorney's fees in these cases. Under the fee agreements that I understand are now in place, attorneys, private attorneys, who have been hired by the States have been involved in litigation maybe only a few weeks and could stand to receive tens of millions, even billions of dollars. In fact, most published reports indicate that fees could be as high as $10 billion to $14 billion in this litigation. That is far too much. That money needs to go to children. That is what these lawsuits were about, to have that money go to children for children's health, and that is what this bill would be involved with. So I feel very strongly about that. As to this being a tobacco industry bill, I am surprised the Senator from Illinois said that because I am supporting his amendment which would add another $50 billion, $60 billion to the tobacco industry, at least take away any benefit that now may come to them in that amount--a very significant issue. And I have come down on his side. I simply say, just as that amendment that came through to change perhaps the funding for the tobacco industry to save them a large amount of money was not fully debated, likewise the attorney's fees that have been out there have not been debated. As a matter of fact, they have not been discussed. At the Judiciary Committee hearing at which I appeared with Senator Hatch, I asked about attorney's fees of several of the attorneys general, and I got only evasive answers. So then I submitted written questions to them asking for detailed explanations of what kind of fee agreements had been entered into and asked them to respond to me in writing. Over a month has passed, and we have heard nothing from them. So I say there is a side agreement, an unhealthy, secret agreement, it appears, between the attorneys for the States and the tobacco industry, that the attorneys general and the States are saying they are not responsible for. You cannot do that. Mr. President, as an attorney, let me say this. An attorney's fidelity must be totally to his or her client, and in this instance, these attorneys, these plaintiff attorneys who have been hired to represent most of the States involved who have contingent fee agreements with their States need to have their total loyalty to the State. But if they are over there on the side entering into a fee agreement negotiation with the tobacco industry and saying to the American people and the people of the various States involved, ``Don't worry about the fee agreement, the tobacco industry is going to pay that,'' make no mistake about it, that is money taken from the children. That is money taken from the settlement that would go to benefit the health of people who have suffered from smoking. It is a side agreement that is not healthy. I have serious questions in my mind as a practicing attorney whether or not that is ethical because, you see, if that private side agreement between the tobacco people and the attorneys about how much money they get falls apart, those attorneys get no money--perhaps. And maybe the tobacco company can say, well, if you will just agree to this restriction or that restriction, we will agree to pay you two or three more billion dollars in attorney's fees. That is the kind of unhealthy relationship that should never occur in serious litigation, and this is certainly serious litigation. The Senator from Kentucky from the other party indicated that this settlement may exceed $500 billion. We cannot allow 10-20 percent of that money to go to attorneys, many of whom have filed lawsuits so recently that the ink is hardly dry on them. They have done very little litigation. Yet we are at the point of the tobacco industry coming in and agreeing to settle and pay it all and the litigation would presumably end and then they would get these huge sums in legal fees. I think it is a very important matter, and as far as this Senator is concerned I will not support any agreement, I will not support any global settlement legislation from this body that does not fully disclose every dime that is being paid, and I don't think we should. In addition to that, I think this body ought to make clear that if any settlement does occur, we should cap the amount of legal fees. I think $250 an hour is fine pay for any good lawyer, and that is the maximum they ought to be paid. If they are not worth that--they do not normally charge that--they should not get $250. But we say no more than $250 an hour and no more than $5 million per State. So that is 50 States to perhaps pay $5 million, and we could save substantial sums of money, Mr. President, that could go to benefit children's health in this country and not be involved in windfalls to attorneys who may have done very little work at all. I think this is a good bill. I just point out that, of course, if there is a global settlement and there needs to be some changes in the actual formula or caps involved in the payment of attorney's fees, that could be made a part of it. But I think this body right now needs to send a message to the people of this country that we are going to insist on full disclosure and we are going to put some reasonable limits on how much money can be spent on attorney's fees. Amendment No. 1125, as Modified Further

Mr. SESSIONS. I am delighted to try to answer that. It is a very unusual thing that is happening to this Senate and we have been asked by the attorneys general, by the defendants, the tobacco companies, too, in fact, by legislation legislate a lawsuit. So it is unusual. They are asking us to do that because many of the things that they want, each side wants, cannot be accomplished through private litigation. They want to, in effect, control new tobacco companies that have not been making tobacco and have not made people sick before, they want to control them and others. So they have asked this body for a lot of reasons to ratify this through our legislation. To that degree, they have asked us to ratify. I think we need to find out what the attorney's fees are. I think as part of our legislation our legislation ought to control legal fees and we ought not to pay any more than that mentioned in this amendment. That is, basically, where we are.

Mr. SESSIONS. The Senator is correct.

Mr. SESSIONS. Alabama, thank you very much, I say to the Senator from Iowa. [Laughter.]

Mr. SESSIONS. Yes. The amendment would deal with attorney fees, involving payment of attorney fees--payments of attorney fees.

Mr. SESSIONS. Mr. President, I would like to address a very important issue that has not been discussed much. It has been raised a few times but not openly discussed. I think it is consistent with Senator Durbin's concern that a tax benefit being proposed has not had full public discussion. One of the things that has not had public discussion regarding the tobacco settlement is attorney's fees. Many of the States have undertaken very lucrative agreements with plaintiff lawyers who States attorneys general have hired to represent their States to carry on this litigation. Less than a year ago, I was attorney general of the State of Alabama, and I was asked and it was suggested to me to hire plaintiff attorneys to represent the State of Alabama. It was suggested that a 25-percent contingent fee would be appropriate in those cases. I rejected that. I felt like it was not necessary for the State of Alabama to undertake such a generous fee agreement. Other States have undertaken such agreements, and that is of much concern to me. Now we have the case coming before this Senate of being asked to bless or to approve by legislation those agreements. It is important for us to consider that every dollar that is spent on attorney's fees is a dollar that does not go to children's health. So this amendment limits the amount of money that can be spent on attorney's fees and says any excess moneys that are saved in that regard will be sent to the National Institutes of Health to be used for research for children's illnesses. I think that is the appropriate way to do this. We have a lot of attorneys who have been talking a lot about children's health, so let's talk about that seriously, and let's ask about how this has happened. Let me just say, the way this agreement has been entered into, the attorneys general, with their attorneys who they have hired, have entered into an agreement, a global settlement agreement, with the tobacco industry. Oddly enough, it mentions nothing about attorney's fees. What we have learned since then is that there is a side agreement between the plaintiffs' attorneys who represent the States and the tobacco industry to pay their attorney's fees directly by the tobacco industry, apart from the State that they represent, which is a very odd situation and, in fact, in my opinion, Mr. President, represents a conflict of interest, because at this point, you have the attorneys supposedly representing the State entering into an agreement, a side agreement, with the attorneys and the party on the other side of this litigation, the tobacco industry. So that puts them in a situation in which, if they do not agree and this settlement does not go forward, they do not get their attorney's fee. That is basic. That is a conflict, I submit, between their interests and their duty and fidelity to the State, their client, and the opposing side who now is paying their fees. Why didn't they put it in the agreement? Why didn't they state it publicly? Because they don't want to talk about it. Most of the estimates and many reports have been suggested as to how much these fees might be. Some have said $10 to $14 billion. That is what I have seen published in several different instances. Let me repeat that: $10 to $14 billion. That is the greatest legal fee ever paid in the history of this Nation, in the history of this world. It is the mother of all attorney's fees. We are talking about $10 to $14 billion. Outside of education, the budget of the State of Alabama is $1 billion. So we are talking about an incredible sum of money that could provide tremendous amounts of research and care for children. That is where this money ought to go. We are talking about a secret side agreement by which the attorneys, supposedly representing the States and the children, have gone over here now and have set up a side agreement with the people they have been accusing of being so bad, the tobacco industry, the people they are suing. That is not an appropriate way to do it. I think if this body is to approve a global settlement and enact legislation in that regard, this body ought to make clear where we stand with regard to attorney's fees. We cannot allow some secret side agreement representing billions of dollars that could be going to children to be paid under the table by the party for the other side to the attorneys to the States who are representing the children. I think this is a very important subject, Mr. President, and I care about it very deeply. I think Senator Durbin's amendment deals with a tax question that has not been fully aired. This is a question that has not been fully aired, and it needs to be. Our amendment would do something else. It would say that every fee agreement that has been entered into between the State attorneys general and the lawyers they hired, the plaintiffs' lawyers they hired to represent them has to be made public, and the statement has to be made public. We limit the amount of fees. I think this is a large fee, most people think this is huge. Mr. President, $5 million is the limit per State we think is appropriate for this kind of litigation. In addition to that, we say it should not exceed $250 per hour in billing time. So that would be the cap on the fees that this bill would set forth: that no more than either $250 per hour, which is far more than what the average working man in this country makes, I assure you, $250 per hour would be the maximum time. If it goes over that, we would cap it at $5 million. I think that is a reasonable proposal. It would not take effect until and if this body enters into a global settlement of this litigation. I think it is quite appropriate. I think that we need to deal with this issue. I will just say this, as to the secretiveness of it. There have been several inquiries made by members of various committees of this Senate and one made by me of an attorney general about what the fee agreement was, and he did not set forth that agreement. Right after that hearing, over a month ago, I wrote a letter to the parties involved in this litigation, and I asked them to state the agreement they had with the attorneys representing those States publicly. We have a response not from one of them. They have not responded. This is a public contract between the attorneys general of the States and the lawyers who are representing the States. So I think something is amiss here. It is something we ought to deal with. This amendment deals with it straight up. I believe it fulfills the needs that we are here for, and that is to make sure we get the most money possible for children and children's health. Mr. CRAIG addressed the Chair.

Mr. SESSIONS. My amendment would limit the amount of money that could be paid for the plaintiffs attorneys that have been hired as private attorneys by the attorneys general, and would not vitiate Senator Durbin's amendment, but, in fact, would be in addition to that, and would not undermine or kill that amendment.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, if there is no further business to come before the Senate, I now ask the Senate stand in adjournment under the previous order.