Cornell University’s Legal Information Institute has prepared this excellent summary and preview of the Exxon Valdez case scheduled to be argued in the U.S. Supreme Court on February 27, 2008. The preview concludes with this assessment: “The first question for the Court is when a shipowner can be held liable for punitive damages for a ship master’s tort. In answering this, the Court will resolve disagreement among the circuits. However, the question has a case-specific complication: Exxon’s possible independent liability. The second question—whether CWA displaces punitive damages under maritime law—may have little significance beyond this case. The Oil Pollution Act of 1990, not the CWA, is now the controlling statute in oil spill cases. Nevertheless, resolving the second question in Exxon’s favor may enable the court to avoid sending the case back for further factfinding if Exxon’s independent liability proves pivotal to judgment on Question 1.”

The Supreme Court issued an order today expanding the time allowed for oral argument in the Exxon Valdez case. Instead of the usual 30 minutes per side, the court has alloted 45 minutes per side for oral argument. The Court rejected the state of Alaska’s request to participate in oral argument.

Hat tip to SCOTUSblog.

Marcia Coyle of the National Law Journal has an interesting article about a DVD filed in the Supreme Court by the plaintiffs in the Exxon Valdez case. The DVD contains audio of Captain Hazelwood’s distress call to the Coast Guard and video of the environmental impact of the spill. The plaintiffs submitted the DVD without objection from Exxon Mobil.

The article mentions that the plaintiffs sought permission to file an electronic brief in the Supreme Court and the clerk’s office agreed to circulate the e-brief to the court, but the plaintiffs “decided not to push it.” I’m not sure why the plaintiffs thought an e-brief would be “pushing it.” Our firm regularly files e-briefs, and although we have never filed one in the U.S. Supreme Court, we have heard consistently from judges and court staff in other courts that they find e-briefs very useful and they would like to receive them more often. We have never had any court reject a request to file an ebrief.

For those of you who haven’t followed all the twists and turns of the litigation over the multi-billion dollar punitive damages award in the Exxon Valdez litigation, you can catch up using this flow chart.

The Daily Journal has an article (subscription required) previewing the February 27 oral argument in the Exxon Valdez case. The article begins: “When the Exxon Valdez oil tanker ran aground off the coast of Alaska in March 1989, the Berlin Wall had not fallen, NBC was making plans for a new sitcom called ‘Seinfeld,’ and John Roberts was a 34-year-old climber looking to make a name for himself as an appellate lawyer. Nineteen years later, Eastern Europe’s transformation and Seinfeld’s celebrated run are a part of history, but the Valdez dispute remains, as the Roberts-led Supreme Court is preparing to decide how much, if any, punitive damages Exxon owes for spilling 11 million gallons of oil into the Prince William Sound. The case, with arguments scheduled for Feb. 27, comes to the high court after three trips to the San Francisco-based 9th U.S. Circuit Court of Appeals, which settled on a $2.5 billion punitive-damages award to fishermen and other Alaskans who suffered economic harm from the massive environmental disaster. Though the figure was half the amount awarded by an Alaska jury, it was by far the largest punitive-damages award affirmed by a federal appellate court. Exxon protested that the award should be significantly lower, if not eliminated.”

The article makes the point that if the court sets forth a common law limitation on punitive damages, the case could have widespread impact, but if it simply applies maritime law, it is not likely to have much impact. The article also points out that the three primary dissenters in due process punitive damages cases (Justices Scalia, Thomas, and Ginsberg) may well be in play for Exxon in this case because the analysis under maritime law is different from the analysis under due process.

We previously blogged about the potential impact of the Exxon Valdez opinion here. And see here for a post about professor Erwin Chemerinsky’s article on the same subject.

UPDATE (by Lisa Perrochet on 2/13/08 at 9:55 a.m.): Cal Law has a similar story today [subs. req’d] regarding the imminent Exxon Valdez argument. Reporter Tony Mauro notes that Justice Alito has recused himself from the proceedings, opening the door for a 4-4 split. Mauro further observes, “Exxon supporters are hoping to win over Justices Antonin Scalia and Clarence Thomas, who have never found in their copies of the Constitution a bar against punitive damages. However, under maritime law — a form of judge-made common law — the two justices might join others who have voted to limit punitive damages in recent years.” Mauro also quotes Mayer Brown’s Andy Frey: “‘The shackles are off’ Scalia and Thomas” and, says Frey, even though the ruling may stress maritime law, it may also be “‘very important for the issue of punitive damages generally.’”

FURTHER UPDATE (by Jeremy Rosen on 2/13/08 at 1:21 pm): Some of the 32,000 class members in the case have created their own “whole truth” website. According to the BLT (the Blog of Legal Times), the class members started the website to “highlight the continuing impact on the lives and work of Native Alaskans and others in the Prince William Sound. The group also plans a candlelight vigil in D.C. around the time of the arguments.”

In an op-ed in the Anchorage Daily News (subscription required) John Devens of the citizens’ councils for Prince William Sound and Cook Inlet explains why those groups filed an amicus brief in support of the plaintiffs in the Exxon Valdez case. Devens argues that Exxon Mobil relies on outdated maritime law principles that no longer reflect today’s realities, and he argues that punitive damages must be available in maritime law cases to deter irresponsible corporate behavior. Devens faults Exxon most for its underfunding of Alyeska Pipeline: “Alyeska Pipeline, tasked with initial cleanup efforts after a spill, was utterly unprepared for what it faced on March 24, 1989. Exxon was (and is) one of the owners of Alyeska. It helped determine Alyeska’s budget, how much equipment Alyeska had on hand, and how Alyeska’s people were trained to clean up oil. Alyeska’s unpreparedness and the inadequate response that resulted were due in large measure to deliberate actions by Exxon itself.”

The February 2008 edition of the ABA Journal has this article on the Exxon Valdez case pending before the U.S. Supreme Court. The article focuses on the maritime law aspects of the case, but quotes Robin Conrad of the U.S. Chamber of Commerce for the proposition that the case presents an issue of fairness that transcends maritime law: “While the Due Process Clause is not an issue before the court per se, the question of fundamental fairness is front and center.”