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   <P>The Senate's 49-48 vote to limit attorney's fees could deter future lawsuits against the tobacco industry and indirectly give the industry the special immunity protection it was unable to obtain in the direct votes on the topic. Below are two press reports of  the vote, followed by the recorded talley.</p>

<P>Excerpts from SENATE SETS CAP ON FEES FOR ATTORNEYS IN TOBACCO SUITS LEGISLATION: LAWMAKERS PUT A $500-AN-HOUR LIMIT ON LAWYERS. CRITICS SAY MEASURE COULD HAVE A CHILLING EFFECT.
by Alissa J. Rubin and Myron Levin, Los Angeles Times (6/17/98)</p>

  <P>After stripping legal protections for Big Tobacco from sweeping anti-smoking legislation, the Senate on Tuesday took a major step toward reducing the industry's vulnerability to lawsuits by adopting a cap on fees for attorneys who win big damage awards against the industry.</p>

  <P>By a vote of 49 to 48, lawmakers set $500 per hour as the maximum a lawyer could get for bringing a successful suit against the industry in the future.</p>

  <P>While that is a big payday for most types of legal work, critics said that the cap could discourage talented lawyers from filing suits with high upfront costs and a good chance of failure. In addition, the provision raises serious constitutional questions, critics said.</p>

  <P>"That's an outrage," said Richard Daynard, a Northeastern University law professor and head of the anti-industry Tobacco Products Liability Project.</p>

  <P>"What they've done is to essentially make tobacco litigation [uneconomical]," Daynard said. "They've carried out the basic goal of the tobacco companies, which is to make it as a practical matter impossible to get competent attorneys to bring actions against them that will have a good chance of succeeding."</p>

  <P>Critics of Tuesday's vote contended that, as a practical matter, Gorton's amendment would give the industry back a measure of what it had lost.</p>

  <P>"The $500 limit sounds like a lot of money but it could discourage the best lawyers from taking the riskiest and most difficult tobacco cases in the future," said Matthew Myers, general counsel for the National Center for Tobacco-Free Kids.</p>

  <P>"There's no limitation on how much lawyers suing any industry other than the tobacco industry can make" and tobacco companies "don't deserve this special protection either," Myers said.</p>

  <P>Many of those deeply involved in the debate, including anti-smoking groups and industry officials, were taken by surprise by the $500 limit.</p>

  <P>One industry official, who would not speak for attribution, said that cigarette makers still favor allowing a panel of arbitrators to set attorneys' fees in settled cases, as provided in the proposed settlement between the tobacco companies and the state attorneys general.</p>

  <P>But asked if a $500-an-hour limit would discourage top product liability lawyers from suing the industry, the industry source said: "I don't think there's any doubt about that. Sure it would."</p>

  <P>The limit on payments was tucked into an amendment that nominally was designed to control the fees of the private lawyers who filed the cases of the state attorneys general and class action suits that the McCain bill was designed to settle. In Senate debate, little was said about the provision, which was spelled out in a single line capping fees at $500 per hour "for actions filed after June 15, 1998."</p>

  <P>The bulk of the amendment sets out a fee schedule for cases that have already been filed, with the maximum fee going to lawyers who pioneered the legal arguments that brought the cigarette manufacturers to the bargaining table. Under the amendment, lawyers involved in cases filed before 1995 could get a maximum of $4,000 per hour, with the exact amount to be set by the judge in each case.</p>

  <P>Maximum fees of $2,000 an hour could be awarded in cases filed between Jan 1, 1995, and April 1, 1997. A $1,000-an-hour limit would apply to cases filed between that date and June 15. Some observers said that they thought the measure would be found to be an unconstitutional infringement on contractual rights.</p>

  <P>Using a hypothetical example, New York University law professor Stephen Gillers asked: "Where does Congress get off telling a state judge in Michigan what he can or can't award as a fee to Michigan lawyers, under a Michigan contract that is subject to Michigan legal ethics rules? It's rather odd for a Senate that favors states' rights to come along and tell state judges how to behave in cases before them."</p>

<P>Excerpts from SENATE VOTES TO LIMIT LAWYERS' FEES IN TOBACCO SUITS by David E. Rosenbaum, New York Times (6/17/98)</p>

  <P>In what could be a crucial week on tobacco legislation, the Senate voted on Tuesday by the narrowest of margins to limit lawyers' fees in suits against cigarette makers.</p>

  <P>The vote came shortly after Sen. Trent Lott, R-Miss., the majority leader,
scheduled a meeting of all Republican senators for Wednesday morning to decide whether to stop debate on the tobacco bill and bring the legislation to a final vote.</p>

  <P>The amendment added to the extensive tobacco bill provides that lawyers who took the greatest risk and were involved in cases before 1995 could collect as much as $4,000 an hour. But the allowable fee would drop on a sliding scale so that those who enter cases after Tuesday could not charge more than $500 an hour.</p>

  <P>Gorton's amendment was approved, 49 to 48. Two earlier amendments to restrict lawyers' fees that were rejected, one last month and one last week, did not distinguish between lawyers who brought suits early and those who became
involved late.</p>

  <P>The question of lawyers' fees is a highly partisan one and goes far beyond the tobacco issue. For years, trial lawyers have been among the Democrats' most loyal and generous supporters. Republicans, on the other hand, depend more on business interests for political support. These interests fear damage suits generally and are especially worried that trial lawyers will use the windfall from tobacco suits to finance suits in other areas.</p>

  <P>Sponsors of the tobacco legislation said that they hoped the cap on legal fees would enhance the prospects of Senate passage of the bill soon.</p>

  <P>But the legislation's chances are bleak in the House, where Republican leaders have said that they are unalterably opposed to the Senate bill. They have not offered a measure of their own. But they seem to favor dealing with teen-age smoking with the low-budget, approach of "Just Say No" that the Reagan administration took to drug abuse.</p>

  <P>The main interest of President Clinton, who favors strong anti-smoking legislation, is to get virtually any bills passed by the Senate and House so a conference committee will have an opportunity to work out a final bill.  Conference committees are where the White House has the most influence because that is where the threat of a presidential veto becomes most meaningful.</p>

  <P>In the Senate, Democrats are almost unanimously in favor of ending the debate on the tobacco bill, a procedure called cloture that requires 60 votes in the 100-member Senate for approval.</p>

  <P>Republicans are split on the question. If Lott proposes cloture, considered the prerogative of the majority leader, enough Republicans will probably go along to approve it. If that happens, the bill will almost surely be passed.</p>

  <P>Republicans have voted solidly against cloture motions on the tobacco bill proposed by Democrats, considering them challenges to the Republican leadership.</p>

  <P>Sen. John McCain, R-Ariz., the chief sponsor of the tobacco bill, said Tuesday that he hoped the resolution of the issue of lawyers' fees would provide the impetus for the Republican leadership to support cloture.</p>

  <P>"It's time we made a decision on this bill," he said.</p>

  <P>The only remaining contentious amendment, McCain said, involves whether to end the government's price-support program for tobacco growers and what kind of assistance to offer the farmers and communities whose economies are dependent on tobacco. Debate on those matters began on Tuesday.</p>

  <P>Voting on the amendment to limit lawyers' fees was stretched to 40 minutes, about twice as long as normal, as the two sides tried desperately to switch votes to tilt the issue their way.</p>

  <P>At the end, Sen. Gordon Smith, R-Ore., who had voted against the amendment, was prevailed on by the Republican leadership to change his vote, providing the one-vote margin of victory.</p>

<P>HERE IS THE VOTE TALLEY AS REPORTED BY C-SPAN:</p>

 Description

Senators approved an amendment to the tobacco bill that limits certain attorney's fees. The limits are in a declining scale that ranges from $4,000/hour for action before 12/31/94, to $500/hour for the most recent action.

Yea - 49 45 R; 4 D	Nay - 48 8 R; 40 D	Present - 2 1 R; 1 D	NV - 1 1 R; 0 D
Abraham, Spencer (R-MI) Allard, Wayne (R-CO) Ashcroft, John (R-MO) Bond, Christopher S. (R-MO) Brownback, Sam (R-KS) Burns, Conrad R. (R-MT) Campbell, Ben Nighthorse (R-CO) Chafee, John H. (R-RI) Coats, Dan (R-IN) Collins, Susan (R-ME) Coverdell, Paul (R-GA) Craig, Larry E. (R-ID) Domenici, Pete V. (R-NM) Enzi, Mike (R-WY) Faircloth, Lauch (R-NC) Frist, William H. (R-TN) Gorton, Slade (R-WA) Gramm, Phil (R-TX) Grams, Rod (R-MN) Grassley, Charles (R-IA) Gregg, Judd (R-NH) Hagel, Chuck (R-NE) Helms, Jesse (R-NC) Hutchison, Kay Bailey (R-TX) Hutchinson, Tim (R-AR) Inhofe, James M. (R-OK) Kempthorne, Dirk (R-ID) Kyl, Jon (R-AZ) Lugar, Richard G. (R-IN) Mack, Connie (R-FL) McCain, John (R-AZ) McConnell, Mitch (R-KY) Murkowski, Frank H. (R-AK) Nickles, Don (R-OK) Roberts, Pat (R-KS) Santorum, Rick (R-PA) Sessions, Jeff (R-AL) Smith, Bob (R-NH) Smith, Gordon (R-OR) Snowe, Olympia J. (R-ME) Stevens, Ted (R-AK) Thomas, Craig (R-WY) Thompson, Fred (R-TN) Thurmond, Strom (R-SC) Warner, John W. (R-VA) Byrd, Robert C. (D-WV) Dodd, Christopher J. (D-CT) Dorgan, Byron L. (D-ND) Lieberman, Joseph I. (D-CT)	Bennett, Robert F. (R-UT) Cochran, Thad (R-MS) D'Amato, Alfonse M. (R-NY) DeWine, Mike (R-OH) Hatch, Orrin G. (R-UT) Jeffords, James M. (R-VT) Roth, William V., Jr. (R-DE) Shelby, Richard C. (R-AL) Akaka, Daniel K. (D-HI) Baucus, Max (D-MT) Biden, Joseph R., Jr.(D-DE) Bingaman, Jeff (D-NM) Breaux, John B. (D-LA) Bryan, Richard H. (D-NV) Bumpers, Dale (D-AR) Cleland, Max (D-GA) Conrad, Kent (D-ND) Durbin, Richard (D-IL) Daschle, Thomas A. (D-SD) Feingold, Russell D. (D-WI) Feinstein, Dianne (D-CA) Ford, Wendell H. (D-KY) Glenn, John (D-OH) Graham, Bob (D-FL) Harkin, Tom (D-IA) Hollings, Ernest F. (D-SC) Inouye, Daniel K. (D-HI) Johnson, Tim (D-SD) Kennedy, Edward M. (D-MA) Kerrey, J. Robert (D-NE) Kohl, Herb (D-WI) Kerry, John F. (D-MA) Landrieu, Mary (D-LA) Lautenberg, Frank R. (D-NJ) Leahy, Patrick J. (D-VT) Levin, Carl (D-MI) Mikulski, Barbara A. (D-MD) Moseley-Braun, Carol (D-IL) Moynihan, Daniel Patrick (D-NY) Murray, Patty (D-WA) Reed, Jack (D-RI) Reid, Harry (D-NV) Robb, Charles S. (D-VA) Rockefeller, John D., IV (D-WV) Sarbanes, Paul S. (D-MD) Torricelli, Robert (D-NJ) Wellstone, Paul D. (D-MN) Wyden, Ron (D-OR)	Lott, Trent (R-MS) Boxer, Barbara (D-CA)	Specter, Arlen (R-PA)

 

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