(page 1) BOB DOLE KANSAS United States Senate OFFICE OF THE REPUBLICAN LEADER WASHINGTON, DC 20510-7020 (the remainder of this page is handwritten with black ink marker) Dole Danforth McConnell Lee Rawls - Justice Hatch Gramm Kasten Grassley (end of page 1) (page 2) March 18, 1992 TO: SENATOR DOLE FROM: SHEILA BURKE SUBJECT: 11:00 A.M. MEETING -- MONETARY CAPS ON TITLE VII AWARDS At Senator Danforth's request, you have scheduled a meeting to discuss the possible strategy for dealing with the recently reported bill to remove the monetary caps on awards under Title VII. (the following line is underlined) Background. S. 2062 -- the Equal Remedies Act which was introduced on November 26, 1991 removes the monetary caps on the amount of punitive and compensatory damages available to victims of discrimination under Title VII (and the ADA, which references Title VII remedies). Capped punitive and compensatory damages were first included for actions under Title VII as part of the Civil Rights Act of 1991. Prior to that time, only equitable relief (e.g. backpay, reinstatement) had been available under Title VII. In contrast, Section 1981, a Reconstruction era statute broadly covering discrimination based on race or national origin in contracts, has long provided for unlimited punitive and compensatory damages and jury trials. Of course, the proponents of the bill argue that all they are seeking is parity for [underlined] all [end underlined] victims of discrimination. In my conversation with the staff it became apparent that a number of senators are nervous about having to vote on this issue and would like to take the opportunity to muddy the water by proposing a number of amendments. The amendments that have been discussed include: product liability, malpractice reform, and aviation liability reform. There is also some debate as to whether anyone wants to be brave enough to try to put caps on [underlined] all [end underlined] awards, not just those awarded under Title VII. The bill was ordered reported on March 11 but has [underlined] not yet [underlined] been filed. (end of page 2) (page 3) (the following line is underlined) POSSIBLE AMENDMENTS TO S. 2062, THE EQUAL REMEDIES ACT I. [underlined] Amendments to the Underlying Bill. [end underlined] • [underlined] Amendment to Limit Contingency Fees to 20 Percent [end underlined] by Senator McConnell. This amendment was offered to the Civil Rights bill last year, and it was defeated by a vote of 68 to 30. It was defeated because supporters of the bill considered it a "killer" amendment that could have unravelled the coalition supporting the legislation. The scope of the amendment may be broadened beyond civil rights cases. • [underlined] S. 2053, The Employee Equity and Job Preservation Act of 1991, [end underlined] introduced by Senator Hatch. This bill would remove the caps that now exist under Section 1977A, and replace them with a $50,000 cap on punitive, noneconomic and future pecuniary damages. • [underlined] An Amendment May Be Offered [end underlined] to extend the existing caps on Section 1977A, created by last year's Civil Rights Bill, to Section 1981. II. [underlined] Civil Justice Reform Amendments. [end underlined] • [underlined] S. 640, the Product Liability Fairness Act, [end underlined] introduced by Senator Kasten. The Commerce Committee reported this bill by a vote of 13 to 7 on October 4. It is currently on the Senate Calendar. The Committee reported an identical bill last Congress but it was blocked from floor consideration. • [underlined] S. 645, the General Aviation Accident Standards Act of 1991, [end underlined] introduced by Senator Kassebaum. The Commerce Committee held a hearing on S. 645 on September 19. Hollings has refused to mark up the bill. The Committee has reported similar legislation during each of the three previous Congresses. • [underlined] S. 2180, the Access to Justice Act of 1992. [end underlined] This package is the Administration's proposal on civil justice reform. The bill has been referred to the Judiciary Committee, which has taken no action. • [underlined] Amendment to Reform Punitive Damage Awards in Federal Suits, Product Liability, and Medical Malpractice Cases [end underlined] by Senator Danforth. This amendment would abolish punitive damages and replace them with a civil penalty. The penalty would be unlimited in amount and decided by a judge. The penalty would be awarded in a bifurcated proceeding and a large percentage of it would awarded to trust funds, which would be used to fund programs which help prevent the malicious action for which the damages were awarded. (end of page 3) (page 4) • [underlined] Amendment to Set an Upper Limit on Noneconomic Damages for All Federal Suits, Product Liability and Medical Malpractice Suits [end underlined] by Senator Danforth. • [underlined] Amendment to the 1934 Securities Act [end underlined] by Senator Domenici. The amendment calls for fee shifting in frivolous section 10(b) class actions and establishes proportional liability for directors and officers in such cases. This was offered as an amendment to the banking bill last year, but Senator Domenici withdrew it before a vote. • [underlined] Amendment to Require a Litigation Impact Statement [end underlined] by Senator McConnell. This would require bill reports to include an analysis of whether legislation will result in increased litigation. • [underlined] The "Loser Pays" provision from S. 1979, the Lawsuit Reform Act, [end underlined] introduced by Senator McConnell. The bill has been referred to the Judiciary Committee, which has taken no action. III. [underlined] Medical Malpractice Reform Amendments. [end underlined] • [underlined] S. 1836, the American Health Quality Act, [end underlined] introduced by Senator Durenberger. The bill has been referred to the Finance Committee, which has taken no action. • [underlined] S. 1936, the Health Equity and Access Improvement Act of 1991, [end underlined] introduced by Senator Chafee. The bill has been referred to the Finance Committee, which has taken no action. • [underlined] S. 1123, the Health Care Liability Reform and Quality of Care Improvement Act of 1991, [end underlined] introduced by Senator Hatch. The bill has been referred to the Finance Committee, which has taken no action. • [underlined] S. 489, the Insuring Access Through Medical Liability Reform Act of 1991, [end underlined] introduced by Senator Hatch. The bill has been referred to the Labor Committee, which has taken no action. • [underlined] S. 1232, the Medical Injury Compensation Act, [end underlined] introduced by Senator Domenici. The bill has been referred to the Finance Committee, which has taken no action. - 2 - (end of page 4) (page 5) WEDNESDAY, MARCH 18, 1992 11:00 A.M. S-230 RE: TORT REFORM Dole Danforth Kasten McConnell Durenberger - will try Domenici Hatch Kassebaum Justice Department Boyden Gray (end of page 5)