Jeff Sessions

Mr. SESSIONS

Mr. SESSIONS. A vote for the Sessions amendment is a vote to put that extra money in the children's health care.

Mr. SESSIONS. That is precisely correct, as I see it.

Mr. SESSIONS. I guess the answer to the question, Mr. President, was the Minnesota case is not on an hourly basis but on a contingent fee basis?

Mr. SESSIONS. Will the Senator yield?

Mr. SESSIONS. I think there is some discussion about us voting at 10:45. I think that would be agreeable with me if there is no objection. I think I indicated to the Senator from Illinois that I might need 15 minutes. That would be for me, personally. I think there are some other Senators that would want to talk during that time on this issue. I would be prepared to agree to that, but I would not want to limit my own time, the whole argument, in favor of this bill, to 15 minutes. I want to say that to the Senator so I am not misleading him about the time.

Mr. SESSIONS. I have some concern. My concern about that is that the opposition to this amendment has already been talking at least 20 minutes, so I do not think it would be appropriate and I would not be able to agree to an evenly divided 22 minutes on each side. Perhaps if you added 15 minutes to that to our side and we voted at 11 o'clock, I would be prepared to consent to that.

Mr. SESSIONS. What I indicated I would agree to would be that we would add 15 minutes to the 22 minutes that you have, making 37 minutes for the proponent of the amendment and 22 minutes for the opposition. I think that would be fair in light of the fact that you have already taken more time than that this morning in opposition to the Senator's amendment.

Mr. SESSIONS. I thank the Senator from Wyoming for his comments. He is a very thoughtful Member of this body and watches after the taxpayers' money with great interest. I think his comments are right on point. I am delighted to have him share those with us today. We are talking about allowing $5 million in attorney's fees to be paid. In addition to that, we are talking about allowing unlimited amounts of money to be spent for expenses in a litigation. That could be for computerization, committees, receiving records, clerks analyzing records and collating records, filing records, and storing records. I have been an attorney for a long time. This idea about 30,000 documents, that is what you normally say when you come to court and you are not ready to go to trial and you say, ``Judge, we have 5,000 documents.'' Well, probably 4,999 of them are some sort of receipts or documents that do not even need reviewing, have no real significance to the issue at hand, but there may be a few in there that do. That is a price of fame about how many documents it is--suggesting the great complexity of the case that may have very little to do with the complexity of the case. Let me say this, there has been a lot of talk about big tobacco. I am not supporting big tobacco. I am supporting the amendment that is on the floor today. What I would like to say is there is another big political force in this country, there is another big force in this country that attempts to work its will, and that is the plaintiff lawyers. They are one of the major contributors to campaigns in this Nation. They receive settlements of millions of dollars in lawsuits and contribute millions of dollars to people, politicians and judges and others who further their view of what litigation is about. Now, I believe in litigation. I am not against litigation. I am not against the lawsuits. I do not want to pass a bill that would stop these lawsuits. I am going to tell you we are talking about not just millions of dollars, not just tens of millions of dollars, not just hundreds of millions of dollars in legal fees. We are talking about billions of dollars, tens of billions of dollars. Published reports indicate that this time that the plaintiff attorneys, these private attorneys who are hired to do these cases by the State attorney generals, they expect to receive $10 to $14 billion--billion dollars. In the State of Alabama, outside the education, the general fund budget of the State of Alabama is less than $1 billion. We are talking about a small group--not hundreds and hundreds of attorneys, but a small group of probably less than 100 firms, probably less than 50 firms, receiving $10 to $14 billion in legal fees. Many of these States have only just filed their lawsuits. The tobacco company comes in and agrees, and they put the money out on the table--$300, $400, or $500 billion on the table. Most of these attorneys have contingent-fee contracts, in which they intend to receive a percentage of that money, and they did little more than copy a lawsuit and file the same lawsuit some other lawyer filed in some other State. They are entitled to do that under their fee agreement. It is not right. It is money that ought to be going to the health of children in America. This bill says we are going to put a limit on it, and $5 million is a pretty good legal fee. In my opinion, $250 an hour is high-paid attorneys. I think anywhere else you would see that. So we think that is a good limitation on it. And it is unlimited on expenses that may be incurred. I think, Mr. President, this is a good way to deal with this matter. I am going to tell you what has offended me. I was a State attorney general just last year, and I had some knowledge of how this litigation was being managed and how these attorneys were being hired on a contract basis. So I have asked about that when we have had hearings in the Senate Judiciary Committee of which I am a member. I have asked one of the attorneys general what the fee agreement was in his State. He avoided answering that. Others have asked that question. We have gotten no answers. I have written an attorney general and two of these plaintiff lawyers and asked them, over a month ago, to tell me the nature of their fee agreement and how much they expected to get. I have yet to hear from them. Senator Grassley, a member of the Judiciary Committee, has also written letters asking about how much money is going to be paid for attorney's fees, and they won't say. They have everything else spelled out in this global settlement, but they don't talk about the billions of dollars that will be going to plaintiff attorneys, many of them who put little work into the case. They don't want to talk about that. In fact, this whole settlement agreement is designed to conceal the amount of money paid as attorney's fees. There is no other way to describe it. I hate to say that. It is a serious matter, what is happening here. Let me explain to you, as a litigator and attorney myself, and former attorney general, I have an appreciation for this matter. These private plaintiff attorneys who expect to make themselves rich on this settlement representing the States involved have said: We won't talk about our attorney's fees publicly. We will just enter into a side agreement with big tobacco and they will pay our attorney's fees. The tobacco industry will pay our attorneys' fees. The State of Alabama, the State of Minnesota, or the State of Illinois won't have to pay our attorney's fees. The tobacco industry will pay our attorney's fees. That is a joke. That is not a way to settle a lawsuit. These attorneys work for the State, who is supposed to be paying their fee, not the party on the other side, not the person they are suing. They should not be paying the fee in a secret arrangement. These attorneys are representing the State, the people. We need to know and we are entitled to know how much they are being paid. This bill says that they must make public any fee agreements they have and report to the people how much they expect to receive. I think that, at a minimum, we need do that. It is time to send a message that we are not going to tolerate this behavior. Everything else is going to be on the table. We are not going to have bills that go through to provide tax benefits to tobacco and we are not going to have plaintiff lawyers, who are some of the biggest contributors to political campaigns in America, enriching themselves any more than tobacco ought to enrich itself with a secret, side agreement. Now, let me talk about that just a little more. The problem --and I think any lawyer would recognize this--is a conflict of interest. The attorney for one side says to his client: Don't worry about the attorney's fee, Mr. Client. I will get the attorney's fees from the guy we are suing. He will pay me and we don't need to bother to tell you about that. See? So the deal is, well, you get into a tough point in the negotiation and you can't reach a settlement, and big tobacco says to the attorney for the State of Alabama, or the State of Illinois, or the State of Minnesota: Well, why don't we just add a billion dollars for attorney's fees, Mr. Attorney. Maybe you can agree to this idea. See, that is the fundamental conflict that is there. I think this probably would violate the standard rules of ethics. Certainly, it would violate the high standards of the legal profession. And I am sure any group of prominent attorneys asked about that would express very serious concerns about that because it presents a conflict of interest and the kind of activity that ought not to be tolerated. So I think we need to get into this. I think we need to limit these fees and take that money, as our bill does, and send it to the National Institutes of Health so it can be used for research on children's diseases. I think that is the appropriate use of any of these excess fees. Mr. President, let me just say this. There are a lot of States who have just recently filed these suits. I submit they have done little more than copy the suits that some of these other States have filed. Yet, they are large States and they are going to receive tens of billions of dollars, and based on what I understand may be a common fee arrangement, these attorneys would be entitled to receive 25 percent of the recovery. I don't know why the published reports say that it is $10 to $14 billion. That seems to me to be less than some of these arrangements. Maybe, but at any rate, it is too much. Twenty-five percent of that may be $100 billion in legal fees, which could provide all kinds of assistance and aid to dealing with children's diseases and health-related matters, many of which we ought to focus on tobacco, because we do know that tobacco is a very unhealthy substance. We know that teenagers who become smokers find it extremely difficult to quit later as an adult. In fact, it is many times more difficult for a person to quit smoking if they commence smoking as a teenager than if they began as an adult. That is why we need to deal with the health question of teen smoking and why I think it is an important national issue. I salute those who believe in doing something about it. Finally, let me just say this. What business do we have in involving ourselves in this kind of litigation and trying to involve ourselves in what kind of attorney's fees should be paid? The reason we are involved in it is because we have been asked to. The attorney generals, these plaintiff lawyers, and big tobacco have all asked us to involve ourselves and legislate this settlement. That is an interesting, probably unprecedented event, so far as I know, in the history of this country. We are talking about dealing with that professionally and analyzing it. A number of committees in this body are looking at it today, and I am sure it will be hammered out and much will be done. But I simply say that if this body does not legislate a global settlement concerning this litigation, this amendment will have no effect. It takes effect only if there is a global legislative confirmation of some sort of this settlement. At that point, I think it is appropriate for us to limit attorney's fees and deal with this. As a matter of fact, I think it is more than appropriate; I think it is absolutely essential that we do so. So, Mr. President, I say to this body that this amendment is, in no way, designed to assist big tobacco. I am offended that anyone would suggest that it does. It is designed to put money in the hands of children by taking it from lawyers who are about to receive one of the biggest windfalls in the history of litigation--not one of the biggest, but the biggest windfall in the history of litigation in the entire world is about to occur. Attorneys are about to receive tens, hundreds of millions of dollars for cases they only worked on a few months. A few firms may have worked longer, but most only have worked a few months on these cases and have not expended large sums of money. This amendment gives them a very generous $5 million in attorney's fees and an unlimited expense account to carry on their litigation. And, in addition, it says there has to be some reasonable limits. We are not going to allow them to have a jackpot justice and make tens of hundreds of millions of dollars off of litigation of this kind. So I say to the distinguished Members of this body that this is a proper thing for us to do. It is a proper time for us to do it. I also say there is something unhealthy here, something that does not quite smell right, when we have secret agreements on attorney's fees, representing billions of dollars, and they won't even be discussed at a time we are being asked to evaluate this entire settlement. So, Mr. President, I strongly believe that this is a reasonable and fair amendment. It allows very generous attorney's fees and expenses to be paid, but sets a cap on it so the people of this country can know that the recovery in these lawsuits is going to help and not go to attorneys in a windfall. Mr. President, I yield the floor. Mr. DURBIN addressed the Chair.

Mr. SESSIONS. I yield 5 minutes to the Senator.

Mr. SESSIONS. I do not think it is a deterrent, and also I point out that these are attorneys representing the people, the States involved, and it is not unusual at all for lawyers to work for less an hour rate for a governmental body than they do for a private individual.

Mr. SESSIONS. That is correct. We think there are going to be some real jackpot fees awarded here, under the way this case ended so abruptly. That really exacerbates the unfairness of it. The litigation was filed. Many people thought it would last for years. Then, all of a sudden, there is a settlement entered into with huge sums of money being paid by the tobacco industry, allowing attorneys, under their agreements, to receive huge sums of money for very little work.

Mr. SESSIONS. The Senator from Kentucky understands completely.

Mr. SESSIONS. The Senator from Kentucky is precisely correct. These parties, both sides--do not forget, the tobacco industry is in here, too, asking us to approve it, and the tobacco industry also does not want to talk about how much they are paying these plaintiffs' lawyers. So they have asked us to review it. In effect, they have suggested in testimony before my Committee on the Judiciary that we approve it and analyze it fairly and justly, and that is our responsibility.

Mr. SESSIONS. Certainly.

Mr. SESSIONS. I say the distinguished Senator from Kentucky raises a very important and troubling point. It is, in my opinion, at least improper if not unethical for an attorney representing a party to enter into private negotiations with the person he is suing to establish how much his fee ought to be. You see, there is a conflict there.

Mr. SESSIONS

Mr. SESSIONS. Yes.

Mr. SESSIONS. Yes.

Mr. SESSIONS. Yes. I appreciate your correcting that.

Mr. SESSIONS. I do think that, depending on the wording of these understandings between the attorneys general and lawyers, that the fee may be a percentage of the whole $500 billion that the Senator referred to.

Mr. SESSIONS. If the Senator will yield.

Mr. SESSIONS. Mr. President, the effect of this amendment would be to make sure this amendment applies to tobacco attorneys, too. It would limit their fees if they were in excessive amounts. Mr. President, I suggest the absence of a quorum.

Mr. SESSIONS. No, not the private litigants.

Mr. SESSIONS. It does, yes. Yes.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent the joint resolution be considered read a third time and passed, the preamble be agreed to, the motion to reconsider be laid upon the table, and that any statements relating to the resolution appear at this point in the Record.

Mr. SESSIONS. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of Calendar No. 153, H.J. Res. 75.