CONGRESSIONAL RECORD - SENATE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP77M00144R001100220033-3
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 10
• Document Creation Date: December 16, 2016
• Document Release Date: April 25, 2005
• Sequence Number: 33
• Publication Date: September 15, 1976
• Content Type: OPEN

September 1 Apr?bled For s / 2 77 1,4 001100220033-3
158
hibition been in the Benste bill since arad oremertser roatis2catIAor hula. The Eouse CONCLUSION O t
June, but its parameters were explained
in a floor statement by the principal
sponsor of the bill Mr. Pnitrr A. HAIM
on September a:
Section 40~11(A)' prohibits the use Ed Per-
centage contingency fees in parent patriaa
cases Sled under. Seetian 4C. T)>". prghibt-
tion. Is to be Imposed by the court in e ward-
ing attorney's lees under subsection 4C(d)
(1) and in approving dismissals and com-
promises under subsection 40(c).
Section 4G(1) (B) makes, explicit twha pro-
hibition of ether contingency Sees unless
such fees are determined by the court after
a litigated judgment under subsection 4C
(d) (1) or, it a case is settled, by the court
under subsection 4C(d) (1) and 4C(c).
The standards to be used by the court In
determining a reasonable attorney's fee, are
as set forth in the Senate Report No. 94-803.
These provisions are Included to assure both
the reasonableness of the fees and that the
bulk of the State recovery would be distrib-
uted to consumers-not lawyers. -
What the Senate bill does permit;, Mr.
President, is a fee-a "reasonable" fee-
determined by the court.. Such fee can
be contingent on success, but I submit
that a reasonable hourly fee contingent
on success is a far cry from a percentage
contingency fee of one-third or one'-half
of the damages awarded. A reasonable
fee contingent on success, Mr. President,
means that parens patriae actions can
be filed which will result in plaintiff's
counsel receiving nothing if the case is
lost.
This very provision, Mr. President, was
Included in the bill, because of the strong
arguments or companies like Bristol-
Myers that parens patriae coul3 be
abused by the States and, used to harass
business 'through the filing of -frivolous
suits. I ask my colleagues to judge, Mr.
President, what stronger deterrent to the
filing of frivolous suits can exist than
counsel's knowing if he loses he will not
receive a fee?
Moreover, Mr. President, States cannot
contract to pay counsel "$300 and $400
per hour." Whatever fees counsel will get
under the bill will be "determined"-
not merely "approved"--by the court, and
they must be based primarily on. a rea-
sonable hourly- fee. As )Bristol-Myers well
knows, the $300 and $400 per hour fees
were paid in cases under circumst:irb..-es
which did not prohibit percentage ccrrl-
tingency fees.
In conclusion, Mr. President, I stand
by the Senate action and believe it to he
highly responsible, as well as responsive
to the tegitirrlate concerns expressed by
the responsible businesses which oppose
the Senate bill. I rise to make this state-
ment out of a, strong conviction that the
type of lobbying going on with respect
to this bill, epitomized by the Bristol-
'Myers letter, should not and cannot be
COfrdoined by responsible legislators re-
gardless of their views of the mla:it ass
Abe legislatioi].
Exars1T 1
BaISTCL-355553 Co.,.
WcxA,i3t9rf0a, D.C., September 7, 1.076.
V ii3COi oRzaeartMer: Shortly the House will
voiv eea The envy Passage of 1r.R. 81532x, the
Beeproveiment Act.
YOU Will recall that the Hamm recently
Jot'ISeeelli fket' fwresas patsies bill with its CID
The. Senate e~mgprcneyee '0611 permit. i/further morlong Wl pt's if
fr
for the piAirrtif:s' hI;hs1ieyar Lban. was e
ally returned to ooneum ors
I do hope you sell:] ieek to correct
ey The PRESIT)I] IG OE'FTCE R. Under the
n= pixvious order, the Senate will now re-
j_ sume consideration of the unftrilshed
busInes _ 3. 3684. which will he stated by
WAn.atall uy pr1vkYw pusuailiS ecwrueys. wuwgl title,
mnv nrove sr te.rcmttrur an t:n~ eetur.lly atiir u'n
lnlgation. ,.~ ..~ .,..~ n.es.o......o ......a ......., ...,
Vex= U*uly goc,VS, follows:
In the Ftecoaa of flepternber 7, I970,
Mr. NVELSONs relnari s In connection with
the submission of tors concurrent reiolu-
tLons were inc:arlrectllr set forth in two
psragrap:ns.
In the p'rmarLent Itlacx)3n, the sei:oabe
pr,ragrapi7 on 1:ar:e S152541 will be printed
as follows :
Mr. Pn'r.deni., I ant Pierre to question
just how w,21] 'ale execut ve branch has
conducted. is e:ca.rr..natlt n of these p:l.ans.
Merely obscrvi cog the rn,aniner in which
notice or rise ?rrornas ect sales was trans-
mitted to the c:"onvrzittee on Foreign
ReIarions al:,s< dis'suiicinrr quest;ans.
Corn .rear g thr rrign al ,"sir:nd'ry list of
proposed sc.les and the resultant indi-
vidu:Ll EiCtaiiee..u ns rsv~.lsJs serious dis-
cr3parc1ee:, every Is-icough. 100th transimas"
sions were irepa?res3 key the Department
of Defense Far :xs;taace, the day after
receiving the nvent.11 list of offers, the
Ccnsrnittee or iorei;n Relations was
surpi:reed t, lied in its box an additional
arms sales aoi.'icaitaoa I;o I?raeI, boost-
ing obligat.),)tas to that. country by scme-
th.ing over ?;73 mill:tor.. That same com-
m nncatic-ri br'outs t,C nsvi!m that the dollar
value of P"opcasedd arils sales to Saudi
Arabia h:r+t rrivste'riously hler!?eased baY
$40 million In transmittal No. 7T-40 for
training eouinrn.cu t to Saudi Arabia,
there is $ I ri1li :.cw di: cr =_ G a`ne:e betv;een
the cover 14ettiA 111241 tae a,etua.I notiiica?-
tion. Now l 'OI1 rria.Y r.ot, In disturbed by
these clerical errors. P.thcnt all, $I million:
is a drop in th,-, bucket for Saudi Arabia
which is pianri rig to buy $702 million
worth of F'LCS 6; 7(xt3 and services on just
this day. taut. W. Preis id'ertt, a $I mil-
lion clerical error is at least as good f:adt..
cation that nL4 everyaia:nag IS, exactly
shipshape in A::aer;.ca':i aims sales policy.
Di,seovery ca' these: errors. :bourn leae3 lll3
to probe farther.
Mao, In he reervnsrn::rlt Rscoim, the
third paral: rap: -)n: page 1315257 will be
printed as f illows::
Mr. Frets lerit, clearly Congress mush
ac.t do imp: ocse a inr ire C 4Ert;tC4L% note in coal-
arms sales policy'. Tee ,sdrnttafstraktou
has clemoerstraled thin, ill is incapable of
so acting lei uwrniing up Its Labor Day,
packet. The c-flaetir mnrrner in wlrich,
this aanounren:Lent was cl.divered reveals
a deeper chaos; in this al-.ms sales pro..
gram whim.Ji only ,a revpcicdcible Congress
can now tricipe:r.
Exchange Act of 1934 to rerlydie issuers of
securitLys reglster.*0 pursuant to section 12
of such Act to maiatain - ccurc ',a records. Co
prohibit certaio. trriLes, sand rar otl'er pirr-
p-ses.
The PRESIDING OF z 1CER. The Pend-
ing question is on the rmeridrneni5 of tyre
Senator from ICdilio C/tr. ClrrtRCn).
(Mr. CRIIRCu's aanei dinerct No.. 2292 Is
printed in. yr>:,tcrday' - REscoRn at page
S15792..)
The PRESIDI'LC, O'41FICFiE. The time
for debate on this an endnent is 1L isb;-
ed to 1! hour to Its e, c)a:Ily r'tvfdeed and
controlled by the Senator from It ice
(Mr. C'lruscn) and 'he Senator from
Texas (Mr. Tow za). w:th the vote 'there-
on to immediately f.thow.. Who :yk:uta
time?
Mr. PROXMIItE h4- Presid n1, I as.k
unanimous cnrssent thL.t it grionim tail]`. be
ordered without the time being taken
from either side.
The PRESIDI6rr.G (1h1ICi'EII.. Without
objection, it is so ordered.
The clerk will call t us roll.
The assistant 1egt?;umare clerk pro-
ceeded to call the rcii.
Mr- PROXIstIRRE M'-. President, I ask
unanimous cemrserit tied: the- oee3er fair
the quorum rail be re iii taall recipient to the ultimate Idaho that, ai trlough I think his auner oc,
think we are engaging in pure tokenism. rec.pierrt :as once that is not, l kely to be ment is a goer' amendment atarI J sl p?ed language of the _ in.
in ,order to a? sieve chat.
So t:hu ii this bill is all. effe it
mexni; A di rerriru5. bribes. It is nc t e :
good as it c,:-i..id be. if we coils ale ii.
amcndrn.ent of the Senator front
But I .],link .1 is a very good prcrixrs1 a
step iii the r?ught direction, sore. I , ,I: t
it i:r n,rt doe, _ e:raded.
Irl.r. CIIUkce;fJ. May I may .t, :lie
ri t.raaf i bu
ator Last I really had not
describe the tiii, as a t.wthl.es? fig .
would like Lila bfti 'o be a saber -tottrye+i
tiger. As it comes to the Sen:al.e :i1 crir;
got ore big saber tootru. I would 111 :to
add the other one. For evervc ate; k , e v
that the sax's-toe-shed tiger, v,iW
one saber to >tlt-----?
Mr_ 1.'RG.1tIE.E . It is bets::r? ha r it
tiger F1 all.
- Mr. CHU1..CH? It is better th,:ran no
at all. But l''r? use Is it right aes.idl see ,slat
this t.ger h;a-i bot:tli saber teeth, anc vie
can do that tf we pass this a,rn!endr, t.art:.
hrr:' PROIIJ f) E. In the 1:s asat,e or
this ht'i1., we have sad assistance froerrs ri
number of fsects o:f our society interested
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 September hppfpygd For RVIM a Rpp-1"/0 q, 9 - 7M RP 01100220033-3
in corporate activity, including the ac-
counting profession, business leaders,
and most particularly, the Securities; and
Exchange Commission. I have already
referred to the contributions of the Com-
mission in this process. l: now wish to dis-
cuss an amendment to S. 3664: Oat the
Commission has proposed.
Sections 2 and 3 of the bill reflect the
proscriptions of certain types of foreign
payments. The Commission noted that
because the bill contains an absolute pro-
vision against certain foreign payments,
an argument might be made that the leg-
islation reflects congressional concern for
the Commission's interpretation of the
"materiality" standard for determining
the disclosure obligation established by
other sections of the Federal securities
laws. To alleviate this specific problem,
the Commission suggested an express dis-
claimer in the legislation that the bill
would not affect the ability of the Com-
mission or private parties to induce dis-
closure of material facts to investors or
others under other provisions of the Fed-
eral securities laws.
I think that the Commission's careful
articulation of the factors to be con-
sidered in determining the obligation to
disclose certain facts regarding c. ues-
tionable or illegal corporate payments
and practices, contained in the corr.pre-
hensive report submitted to my commit-
tee in May of this year, clearly indicates
that it is proceeding in a thoughtful and
responsive' manner in this area, a:-.id I
note that the general, standard for 'ma-
teriality" subsequently adopted by the
Supreme Court in TSC v. Northwa;7, 44
U.S.L.W. 4852 (June 14, 1976), comports
with the definition advanced by the
Commission as amicus curiae. As the
Commission itself notes., it was not the
intention of the draftsmen of S. 3664, or
of my committee in approving that bill,
in any way to question or diminish the
work of the Commission over the ,years
in giving content to the concept of mate-
riality. Because I think that the bill and
its legislative history are clear ;ri this
regard, I consider it unnecessary to en-
cumber the legislation to the specific
language proposed by the Commissicrl.
Mr. TOWER. Mr. President, 1: "ield
myself such time as I may require.
I would like to note that the saber-
toothed tiger is now extinct [laughteri
and I cannot imagine my distinguished
progressive and liberal friend from Idaho
characterizing a bill that he advocates
as a saber-toothed tiger. It really is
Neanderthal politics. We will not get
into that. I have been accused of that.
Mr. President, I would. like to just. re-
emphasize a few points. The proposal
of the Senator from Idaho, it should be
understood, clearly understood, is not
limited to transactions between U.S.
concerns and foreign governments. It
would also require the reporting of legiti-
mate payments, fees, commissions made
by U.S. publicly held corporations to
private foreign firms. A sweeping dis-
closure of this nature is totally unwar-
ranted and without justification. As the
Secretary of Commerce points ou, it
would place an enorrr:tous paperwork
burden on American industry.
Iieynra; that; I: mitrbi; :note it places
Arneric t: t i;toe:ses at a competitive
disadvan r acre.
'I'hi; Er a :)?:ttsion ?or disclosure, not
prohibi::ir.n. i'he c,on:m,.ittee bill pre-
scribes twat to aribes be paid. It imposes
a criminr1 1.)rohibitloii. on the ,Payment
of bribe;; 7 I.s Will is one that n,.qulires.
the disclosure of ;c great. amount of In-
format io it, under normal c:lrcum-
stancei vivid be coniridered pr'oprie-
tar y
11; c,nnt: .,i_~, result in the embarrass-
merit no Ott iv of foreign governments,
out psi'; r. sI! r crei;n firrirrs to the extent
that t:nr!r ari;,ld not; s tint to trade with
An;eri::itr. Sir n= 'u vir,:ce; In operate under
these dr?rto :1o'ittions
sac w it ra time for us to impose In-
hiti.tianr or the ability of the 'United
,3to tes c d':, !r a mess abroad. We have
a balan l~r -ot )ay? nmerits problem, and we
::crust rernalt cornpetii:,ive in the inter-
narional.-ia r c e t plac es
i poirr, :nli :r!riher there. is; also a pro-
vis::on r:r this .rt,.endit cut that requires
1'orrirtn ". uh anal:rsis and annual re-
portint; of the dtsclo;ecl. transaction.'r'his
appears In ]r c be ;i serious and direct
mt?erierence in the till; irs of other cotm-
I;rles? ,err tap!; eve;:; in tne domestic af-
I'ai-s of other co.rattles. I do not believe
I t is aphr i pr i. ] to to pu:t tire: U.S. Govern-
iner;t ir. 'he 1)ositiorr of annually co?m-
ine:cttirig to 11 to :acorn], fiber of another
country s1d :uerr giving the report wide
!;ireulaL! ::!.
This ptrr vts, on is is my view, extremely
dangerou~ ar.,i it deserves very careful
consideration by n. )t only the Senate
13ankisr ' 'orrimittee but by the Commtit-
'l ee on I 'c red v n ]y,eta lions as well. In ad-
dition, I 1-Iii"a'e should obtain detailed
comment and testimony I'.rom the I e-
partmer,r: of -;t ;r e on the potential ad-
'erre inr,':tcr t might have on the con-
iurt o1 1. te;-ear dipi:;macy.
I hop r t.hi : :ide '711 not rush into
c:onsrdera'rot )I this nit::;ter now. a hope
the an, en in!t: tr will not be adopted. I
think it '.. e !n:er.,Iment Is adopted it will
r-ound r..i a; Ii. I knell :or what we are
t:-ea I ly' to^, rzri'' ! n do, aracl that is to spe-
t ifical]'i osrt.trre bribery. This is a, mat-
ter of sort e .r!:rericy 11tilt, must be dealt
',vito, Eli;t ion ru i=e as Secretary Ric.harrd-
s or: slat:: tt1:. ataend.r:neni; is too inroad,
t nr, at I it :;L!110 tmnt. too narrow; it
~eoparoi2lr, : n1ities Exchange (iii
U.S.C. 'lts,t is amended by ine:ertlitti
"(l)" i?trr bI c:nd be adding at the eatd
thereo' th Ilo. -.
"(2r F 111(1 t
pent ii It ,>m+ ,o at.,te any ma er:ul I I
', . .laKe, ,at.el lk tl.r,y ii .?a:
lie(,, .a. r
Iit tb2 1 '?,r:' nista'tices under iv i. 1,
they wt re not nsisl,eading - an .._,
r:0U1 tai: I :: roll ill wli.h al:,y ,'>.an I .,~.,
;.101:. or au :i an Issuer whi,ih has a . i
of se-.?u . t . tex't', p..,.tI'stlant Ic S,?;tai,
of L,a II in required t.; fit, _
nor'-:; r-`, ,at, :') .iee:tof 11](dl of 1.1.1, or I, co ,Cer1.1 a'it.h env examin&,l.'11 at 1.1t
Alt it :ea. wii;b respect to fa, curt,) tit::
register ^1 r ? uric ictered ulid ^: tOt
curL,.le:, .at . o -Cll. .
Sec. i'he "c u tiles Eaeh.axtge e4.rt c;i 1 i!1+
s sine'itei b, isertl ig after sect ._..V'
foll(wi I g new 'ieCtlcn. :
F,NtS TO OFrICRAI.s
1,(,> , 3t-A. s716.1t be l tnlaaYl,1 f(tr I':..1
tastier. ,vt.ieh i,as IS class o'' securltcit Yet,: .
tered l.v,rttuai'.t ',o se,.tion :.a of Viol t;,,' ar
wh:i'th tit req.nred tea file reportit ;rune: it.,
to sectcax 16:d 1 of this titre to ntake u:vE u
the malls ore' tiny is"aims or Lis';rit ' ena.;t ,.
of ;.nteratate t'orrnrte-ce corruptl,,r ,o )r'et
pay or pnimit,c o pa:', or authoi.t:e ,he pt5
meat ,i'? an, nicne, or to offer give ol,
'proinlmit to g:..(, or authorize the giving '11:
anvttli 15 ,)f N::,Ite 14l-6-
.. 1) Jill' 1)(-toll WI 0 rS all ofliClit]. 3f I.. it')
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: _: 'IIIIIt^ 1
 SepternbelAygr r~ffor ReIt~,LaM S( A Il ~ ~1I00gJ O1 100220033-3
sign government or instrumentality thereof
for the purpose of inducing that individual- -
__"(A) to use his influence with it foreign
government or instrumentality, o:r
"(B) to fail to perform his official func.-
_tions, to assiJ such issuer in obtaining or
retaining business for or with, or directing;
business to, any person or influencing Iegis.-
latlon or regulations of that government or
instrumentality,
"(2) any foreign political'party or official
thereof or any candidate for foreign political
office for the purpose of inducing that party,
ofli'cial, or candidate-
"(A) to use its or his influence with a for-
eign government or instrumentality thereoll,
or.
"(B) to fail to perform its or his official
functions,
to assist such issuer in obtaining or retaining
business for or with, or directing business to,
any person or influencing legislation or regu-
lations of that government or instrumental-
ity; or
"(3) any person, while knowing or having
reason to know that all or a portion of euelx
money or thing of value will be offered, given:,
or promised directly or indirectly to any in-
dividual who is an official of a fote:lgn govern-
ment or Instrumentality thereof. or t:)
any foreign political party or official thereof
or any candidate for foreign political office..
for the purpose of inducing that individualt
official, or party-
"(A) to use his or its influence with r:(
foreign government or instrumentality, or
"(B) to fall to perform his or its official
functions,
to assist such Issuer In obtaining or retainin is
business for or with, or directing business to.
any person or influencing legislation or regu-.
'lations of that government or Instrumental-
ity.'..
PAYMENT:; To OFFICIAL."
Stec. 3. (a) It shalt be unlawful .for any do?-
mestic concern, other than an lasuer which
Is, subject to section 30A of the Sccuritiec;
Exchange Act of 1934, to make use of the,
malls or of any means or instrumentality or
Interstate commerce corruptly to offer, pay
or promise to pay, or authoritze the l)aymeni.
of, any money, or to offer, give, or promisee
to give or authorize the giving of, anything,
of value to-
(1) any individual who Is an official of a?
foreign government or instrumentality there,
of for the purpose of Inducing that Individ-
ual- -
(A) to use his Influence with a foreign
government or Instrumentality, or
(B) to fail to perform his official func-
tions,
to assist such concern in obtaining o:, retain..
ing business for or with, or directing burl.
ness to, and person or influencing legisla-.
tion or regulations of that government oil
instrumentality.
(2) any foreign political party or official
thereof or any candidate for foreign political
office for the purpose of inducing that party,
official, or candidate--
(A) to use Its or his influence, with a for-
eign government or instrumentality thereof,
or
(B) to fail to perform its or hii; official
functions,
to assist such concern in obtaining or retain..
Ing business for or with, or directing business
to, any person or influencing legislation or
regulations of that government or instru-
mentality; or
(3) any Individual, while knowing or hay-?
Ing reason to know that all or a portion oil
Such money or thing of value will be offered,
given, or promised directly or indirectly to
any Individual who Is an officiaLof it. foreign
government or instrumentality thereof. or to
Or an.), canctictate for foreign political office,
for the pua]x:m of inducing that individual,
ofciaf or prx,y.--
(A) 0 use his or Ila; influence with a for-
eign guverrcne'nt or instrumentality, or
(B) to fiui',: to ;)er:form his or its official
functions,
to crceot elcs-li concern In obtaining or re-
taining bunin,en for or with, directing busi-
ness to. any person or influencing legislation
or re;rnlat;:s)LLe of that government- or
inacrunaenl.iil;i t y.
(bl hny perno:n who willfully violates this
sectiorr -hail. upon co:e.viction be fined not
more than 810,000, or Imprisoned not more
than taro yean3, or both.
(c) As u,-ed in tt.is se;tion-
(I) the terra ".lornestic oneeru" means
an individual Who is .a citizen or national of
the U'rd,taed Estes, or any corporation, part-
nership. asociation, ioint>"stock company,
business trust, or unincorporated organiza-
tion whicll is ow:oerl. Or controlled 'by in-
dividuals -orbo are citisens -or nationals of
the United li testes, wld.ch has its principal
place Of bu]slnees in the United States, or
which is orgarrtrod under the laws of a State
of the IJnit:ed Stable or any territory, posses-
sion, or commorxwealt.h of the United States;
and.
(2) aaie ttsrru'?intoratacte a:l0anieace" means
trade, contln~=.rce, transportation; or com-
munication arrong the several States, or be-
tween 1mt' Pr.: cosign country and any State,
or betueei;. ia" i3tete and any place or ship
outside thereof, and intch term Includes the
intrw,tate vie of a telephone or other inter-
state near a r,f corircruriloatlon or any other
interstate lccatril:n ocl-,atity.
Mr. PN?I_.U.4IRF'. Air. President, I
move to reconsider the vote by which the
bill w'a.; Psiraeel.
hfr. ' "Ci'ct' t Ih . I in.c:w'Ic to I ay that :motion
on the ta,tt'e.-
The mutlnrt tc Ili on the table was
agreec. to.
C^E >ivc)1;_(3F( Vl:r'CI--H.R. 14260
Mr. U.1'11C)LPH ]fir.. President, I ask
unar.msou ; roil: sot 4tb.at my vote on H.R.
14201) :,n 1'riday Se.i:1ernber 10, 1976, be
changed i?rorr, ` to "nay" and that
the Ile-, rn innnt RECoen reflect my nega-
tive t'cr e.
'I'he pl-(. tIDDIG OFFICER Wr. Mc-
Gove srl i VvithoiA, :eblectfon, it Is so or-
derF-d -
Alt. PCOVii:R. Mr President, I suggest
the abr:ence (if a quolrunt.
ThtE' 'RI,sl::)m'GF OF' FILER. The clerk
will cail ttic ra11.
T' l o a.: ]-::slot legislative clerk pro-
eeedcu Co call the roll]..
Mr. lkice,C1%rE:1RN Mr. President, I ask
unan:in e-us consent that the order for
the quc.ruin caJibe :res,-inded.
_Thee I'HIF:S:CD:1Wt?.; OFFICER (Mr.
HATxra'.VA.'). 1Nitllouii objection, It is so
ordered,
FAR VIER,-:L'f:)-CU.Ni3LIMER DIRECT
MA.R.KE'C1:RTC! ACT--1:70NFER:ENCE
REPORT
Mi?. Mc(IK)VERN. itIr. President, I sub-
mit e, report of tt,e committee of confer-
ence on H.R. 10339 and ask for its Im-
mediat e consaderiitlon.
The PRE SEXING OFFICER (Mr.
HATB:n WAY) . The report will be stated by
title. ,
s 15.E ;:
The assistant legislative clerk reil,c,. as
follows:
The oommittee