Following up on the posts below, here’s a video interview with Governor Palin about the Supreme Court’s opinion reducing the punitive damages in Exxon Shipping Co. v. Baker.
-
“Last Term’s High Court Rulings Mostly Pro-Corporation”
Law.com features this story by Adam H. Charnes and James J. Heffernan, Jr. of Kilpatrick Stockton, taking the position that the Supreme Court’s latest term was predominately pro-business. The primary example cited in the story is the punitive damages decision in Exxon Shipping Co. v. Baker.
The authors’ view conflicts with that of Patricia Ann Millett, a former attorney in the Solicitor General’s office who co-chairs Akin Gump’s Supreme Court practice. In this story, Millett stated that the Court’s last term involved 24 cases involving business concerns, and in those decisions, the Court split almost evenly, ruling in ways that could be described as pro-business in thirteen of the cases, and ruling against business interests in eleven cases.
-
Exxon Valdez Plaintiffs’ Lawyers Comment on Interest Ruling (or Lack Thereof)
The Associated Press has this story on the U.S. Supreme Court’s decision not to decide whether the plaintiffs in Exxon Shipping Co. v. Baker are entitled to interest on their $507 million punitive damages award. (Scroll down to see our blog post on the same topic.) The AP story has several quotes from Stanford law professor Jeffrey Fisher, who represented the plaintiffs in the Supreme Court. Fisher says the Ninth Circuit has never refused to award interest in any similar case, and he doesn’t expect them to depart from that precedent here.
(Note: the AP story incorrectly states that the plaintiffs are seeking interest dating from the jury’s verdict in 1994, but the plaintiffs have actually requested interest from the date of the judgment, which occurred in September 1996. See the plaintiffs’ request for a Supreme Court ruling on the interest issue.)
Alaska Public Radio also has an audio report on the Exxon Valdez interest issue. In the report, Andrew Ott, an Alaska lawyer representing the plaintiffs, says it isn’t surprising that the Supreme Court declined to decide the interest issue, because it’s a matter of first impression that is more appropriately decided by the lower courts. He suggests that, no matter how the Ninth Circuit rules, the case may again make its way to the Supreme Court, extending the already two-decades-long life of this litigation.
-
U.S. Supreme Court Punts on Exxon Valdez Interest Issue
We previously blogged about the dispute between the parties over the interest to be award in Exxon Shipping Co. v. Baker. Today the Supreme Court issued its final judgment in the case, declining to decide the interest issue.
The Supreme Court’s opinion was silent on the question of interest, so the plaintiffs filed a post-opinion “submission” with the Supreme Court, asking the Supreme Court to clarify that they are entitled to post-judgment interest on the $507 million punitive damages award dating back to the date of the original judgment in September 1996. That would bring the total interest to $488 million, according to the plaintiffs’ calculations.
Exxon responded that the plaintiffs are not entitled to any interest at all. Exxon argued that the Supreme Court should either (1) decide the issue and declare that plaintiffs are not entitled to interest, or (2) remain silent on this issue, which (according to Exxon) would make plain that interest should not run from the date of the original judgment.
The Supreme Court’s judgment declined to decide the interest issue, but it expressly directed the Ninth Circuit “to address the parties’ contentions about respondents’ entitlement to interest on the award remaining, a matter on which this Court declines to rule in the first instance, without prejudice to the position of any party.” So neither party really got what they wanted. The plaintiffs didn’t get their interest award (not yet anyway), and Exxon doesn’t get to argue that the Supreme Court’s silence constitutes a tacit denial of interest.
As always, SCOTUSblog has full coverage.
-
Buell-Wilson v. Ford: Two of the Three Issues Raised in the Petition are Not Dependent on the United States Supreme Court’s Opinion in Williams III
A few weeks ago we blogged about the California Supreme Court’s grant of review in Buell-Wilson v. Ford, and we noted that case is on hold pending the U.S. Supreme Court’s decision in Philip Morris v. Williams (Williams III). As we noted here, however, Ford’s petition raised three issues, two of which are independent of the issue presented in Williams III. Those issues are: (1) As a matter of California law and federal due process, are punitive damages prohibited in product liability cases where the manufacturer’s design conformed to objective indicators of reasonable safety, including industry standards and custom, governmental safety standards and policy judgments, and the existence of a genuine debate about what the law requires? and (2) Is a $55 million punitive damage award, imposed in addition to $18 million in non-economic damages, in a case involving a single accident where the vehicle’s design was objectively reasonable, unconstitutionally excessive and arbitrary?
The California Supreme Court’s online docket confirms that the court granted review on each of the three issues, and did not limit review to the Williams III issue. After the decision in Williams III comes out, the California Supreme Court could then move forward to decide the other two issues raised in the petition, or the court could remand the case back to the Court of Appeal for a further opinion in light of Williams III. Thus, this case could end up deciding far more than simply the narrow Williams III issue.
-
Doug Rendleman Law Review Article: “A Plea to Reject the United States Supreme Court’s Due Process Review of Punitive Damages”
Doug Rendelman, a law professor at Washington & Lee School of Law, has posted this article on SSRN. Here’s the abstract:
Because the audience and readers of this piece are not United States lawyers, I supply background and I paint with a broad brush. In short, the United States Supreme Court’s use of the Due Process Clause for judicial tort reform of punitive damages was a serious mistake. On the nebulous due-process foundation, the Court built imprecise yet wrongheaded doctrine based on misguided policy justifications. Other common-law countries ought to learn from our blunders, above all not to repeat them.
I wrote this for the Second International Symposium on the Law of Remedies sponsored by the University of Windsor and the University of Auckland. The Symposium was in Auckland, New Zealand, in November 2007. It will be published in 2008 in a book titled The Law of Remedies: New Directions in the Common Law edited by Jeff Berryman and Rick Bigwood. The footnotes are in Canadian, not Bluebook, form.
The adoption of U.S.-style judicial review of punitive damages is not likely to be a big issue in many countries; most other legal systems don’t seem to generate the sort of mega-awards we see here in the U.S. As far as the U.S. system goes, Rendleman’s criticisms echo the views Justices Scalia and Thomas have expressed ever since the Supreme Court required due process review of punitive damages in BMW v. Gore in 1996. Nevertheless, there is no indication that Justices Scalia and Thomas will be able to win over a majority of the justices on that issue anytime soon. Things may change, however, if McCain wins the presidential election and appoints a justice or two in the Scalia/Thomas mold. This is one area in which a more conservative court would actually be bad news for business interests.
-
Senators Criticize “Pro-Business” Supreme Court for Exxon Valdez and Other Decisions
As reported on LegalNewsline, the Senate Judiciary Committee held a hearing yesterday entitled “Courting Big Business: The Supreme Court’s Recent Decisions on Corporate Misconduct and Laws Regulating Corporations.” Committee Chairman Patrick Leahy took the lead in chiding the Supreme Court for ruling in favor of businesses in several high profile cases.
As Patricia Ann Millett (a former attorney in the SG’s office) notes in the article, however, it is a fallacy to say the Supreme Court favored corporate interests in its previous term. Over the past term, the Supreme Court decided 24 cases involving business concerns, and in those decisions, the Court split almost evenly, ruling in ways that could be described as pro-business in thirteen of the cases, and ruling against business interests in eleven cases.
A debate over whether the Supreme Court is actually pro-business has been raging for a while. See, for example, the New York Times Magazine article “Supreme Court Inc.” by Jeffrey Rosen (contending the Supreme Court has shifted to a pro-business philosophy), and this Slate blog post by Eric Posner (contending the Court is pro-free-market, not pro-business).
-
Rex Heeseman Op-Ed in Daily Journal Discusses Impact of Exxon Valdez
Rex Heeseman, a superior court judge in Los Angeles County and an adjunct law professor at Loyola Law School, wrote an op-ed in the Daily Journal entitled “Award Season” (subscription required) discussing the Exxon Valdez decision (Exxon Shipping Co. v. Baker).
Judge Heeseman predicts that the Supreme Court’s decision will be influential on punitive damages law beyond the narrow confines of maritime cases:
[S]ome have remarked that, as a maritime case, Exxon will not influence the general law regarding punitive damages. While an understandable view from a plaintiff perspective, much in Exxon suggests otherwise.
I tend to agree, and have made the same observation on this blog (scroll down to the last paragraph of the post). I think that Judge Heeseman may be taking this a little too far, however, when he suggests that the Supreme Court may adopt a one-to-one ratio limit for all punitive damages case. As I said in that same post, I don’t see enough votes on the Court for that point of view. But you never know what might happen with this issue the next time a new justice joins the court.
-
Exxon Valdez Plaintiffs File Reply In Support of Request for Interest
The plaintiffs in Exxon Shipping Co. v. Baker have filed their reply brief in support of their request for interest on the $500 million punitive damages award. You can read our prior posts on this subject here, here, and here, plus the plaintiffs’ original submission and Exxon’s response (courtesy of SCOTUSblog).
On a related note, the Alaska Public Radio Network reports a disagreement among Alaska state officials on whether the state should weigh in on the interest dispute. Three state legislators thing the state should get involved, but a state attorney who has represented the state in Exxon Shipping thinks otherwise. Personally, I don’t see how an amicus brief would have much influence with the court on a question like this.
-
Larry Tribe’s Oral Argument in TXO v. Alliance Resources Was One of the Best, According to Linda Greenhouse
The New York Times’ Linda Greenhouse, responding to a reader question about the best and worst Supreme Court arguments she has witnessed, identified Larry Tribe’s performance in a punitive damages case, TXO v. Alliance Productions, as one of the best:
As for the best — I’ve seen many terrific arguments. One memory that always brings a smile was an argument by Laurence H. Tribe, the Harvard law professor, in a 1993 punitive damages case, TXO v. Alliance Resources. He had been brought in after the court, over his client’s opposition, had agreed to hear the other side’s appeal — not a good posture to be in. Larry completely changed the theory of the case — turning a likely loser into a case that during the argument appeared to be making unexpected headway. As this was unfolding, to the surprise of nearly everyone, Justice Scalia said to him with evident irony — “Professor Tribe, I don’t remember this argument in your opposition to cert” (knowing, of course, that Larry had nothing to do with the case at that stage of the proceedings) — to which Larry replied without breaking stride: “Justice Scalia, I like to think it was there by implication.” (This is my memory — I haven’t checked the transcript — but he won the case.)
If Greenhouse is right about Tribe’s influence on the outcome of the case, perhaps that explains the fractured Court in that case. The justices could not put together a five-justice majority to answer whether the amount of punitive damages violated due process. Three justices (Stevens, Rehnquist, Blackmun) said courts should review punitive damages for “reasonableness,” and they concluded that the award in that case passed the test. One justice (Kennedy) thought a more stringent test was appropriate, but he thought the award in TXO barely passed the test. Three justices (O’Connor, White and Souter) said a more stringent test was appropriate and the award did not pass the test. And two justices (Scalia and Thomas) said the Supreme Court has no business reviewing state court punitive damages awards for excessiveness. If Greenhouse’s assessment is correct, O’Connor’s opinion might have been the majority opinion going into the argument, but maybe Tribe persuaded two of the others (possibly Kennedy and Rehnquist) to jump ship. If so, Tribe successfully delayed the Supreme Court’s crackdown on excessive punitive damages for three years, when the court revisited the issue in in BMW v. Gore.
Thanks to my partner David Ettinger for the tip.