Yesterday we reported that the U.S. Supreme Court did not rule on the second cert. petition in Philip Morris v. Williams at its May 22 conference, even though the court’s online docket indicated that the petition was on the May 22 conference list. Today the court’s docket has been updated to reflect that the Williams petition has been moved to the court’s May 29 conference.
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No Ruling Yet on Second Cert. Petition in Philip Morris v. Williams
As we noted in a prior post, the second cert. petition in Philip Morris v. Williams was distributed for consideration at the Supreme Court’s May 22 conference. (See the online docket.) Today the Supreme Court has released its Order List showing the rulings made at the May 22 conference. The list makes no mention of Williams. Apparently, the court has deferred consideration of that petition to a later conference.
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Will the Exxon Valdez Case Produce a Unanimous Opinion?
Linda Greenhouse has an interesting article, “At Supreme Court, 5-to-4 Rulings Fade, but Why?” noting the substantial decline in 5-4 opinions from the United States Supreme Court this term. So far this term, only one of 35 opinions has been decided 5-4, whereas at this point last term, 13 out of 41 had been decided 5-4. Greenhouse posits that the reasons for this are “liberals using their limited leverage to exact some modest concessions as the price of helping the conservatives avoid another parade of 5-to-4 decisions.” As Greenhouse points out, three recent cases resulted in majority opinions with 6 or 7 justices in cases that might have been thought of as candidates for 5-4 decisions (the Indiana voter id law, the Kentucky lethal injection case, and the federal law on child pornography). This trend limits the influence of Justice Kennedy who last term was in the majority in all 24 5-4 decisions and only dissented in 2 of the 68 cases decided. This term, Justice Kennedy has already dissented 5 times.
The interesting question for purposes of this blog is how this potential trend toward greater agreement among the justices will play out in the Exxon Valdez case. By not focusing on the constitutional limits on punitive damages, Justices Scalia, Thomas and Ginsberg will not need to adhere to their prior dissents finding no due process limit on punitive damages. This potentially opens up a larger coalition to reverse the award. There is also a suggestion by Greenhouse that the recent cases that one might have expected to be 5-4 were more fact-driven opinions that did not rely on broad rules, which potentially enabled more justices to sign on. However, as we posted earlier, the oral argument in the Exxon case suggested a divided court. The question is how divided? Stay tuned to this blog to find out.
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Daily Journal Focus Column on Holdgrafer v. Unocal Opinion
Rex Heeseman had a column in the Daily Journal last Friday called “Price Fixing” (subscription required) which discusses the Holdgrafer v. Unocal opinion. His primary contention is that the Court of Appeal’s opinion is a departure from the approach taken by other courts in the wake of the U.S. Supreme Court’s recent decision in Philip Morris v. Williams. This is similar to the argument raised by plaintiffs in their petition for review. However, as we set forth in our answer to the petition for review, we believe the opinion simply applies the principles set by the United States Supreme Court in Campbell v. State Farm in precluding plaintiffs from seeking to punish a defendant for its dissimilar conduct toward non-parties.
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U.S. Supreme Court Will Consider Cert Petition in Philip Morris v. Williams at May 22 Conference
We previously blogged about Philip Morris’s petition for review from the Oregon Supreme Court’s decision on remand in Philip Morris v. Williams. The Supreme Court is set consider that petition during its May 22 conference, according to the online docket.
It will be quite interesting to see whether the Supreme Court grants this petition. Many observers viewed the Oregon Supreme Court’s opinion as a slap in the face (or more colorful metaphors) to the Supreme Court. My co-blogger Jeremy Rosen suggested that a summary reversal might be in order. On the other hand, Howard Bashman considered the case an “unattractive vehicle” for certiorari, since the Oregon Supreme Court couched its decision in terms of Oregon procedural law, rather than federal constitutional principles.
SCOTUSblog has identified this petition as one of its “Petitions to Watch,” meaning that Tom Goldstein at Akin Gump thinks the petition has a reasonable chance of being granted. SCOTUSblog also provides links to all the briefing at the petition stage, including the petition, the brief in opposition, the reply, and amicus briefs by the U.S. Chamber of Commerce, the Washington Legal Foundation, Associated Oregon Industries, and the Products Liability Advisory Council.
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Roundup of Stories on Exxon v. Grefer Cert Denial
Bloomberg: Exxon Loses U.S. Supreme Court Challenge to $112 Million Award
CNNMoney: Supreme Court Rejects Exxon Appeal In Property Cleanup Case
WSJ LawBlog: High Court Says No Thanks to Exxon-Mobil Punitives Appeal
Reuters UK: US High Court Won’t Hear Exxon Louisiana Appeal
Point of Law: Supreme Court Refuses to Hear Exxon Appeal of $112M Individual Property Damage Award
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U.S. Supreme Court Denies Cert. In McGee v. Tucoemas
According to the Order List posted today, the Supreme Court has denied our petition for certiorari in McGee v. Tucoemas. The next significant punitive damages petition on the Supreme Court’s plate is Exxon v. Grefer, which the justices will consider at their April 18 conference.
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SCOTUSblog Identifies Exxon v. Grefer As a Petition to Watch
Readers of SCOTUSblog are familiar with its regular “Petitions to Watch” feature, which identifies cert. petitions that Tom Goldstein at Akin Gump thinks have a reasonable chance of being granted. Today’s edition of Petitions to Watch lists Exxon v. Grefer, a punitive damages cert. petition that we’ve been blogging about.
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U.S. Supreme Court Will Consider McGee v. Tucoemas Federal Credit Union Cert. Petition on April 11
The U.S. Supreme Court has placed McGee v. Tucoemas Federal Credit Union on its April 11 conference list, according to the on-line docket. As we previously blogged, here and here, the question presented is: “Federal credit unions are federal instrumentalities chartered under the Federal Credit Union Act, 12 U.S.C. §§ 1751 to 1795k. Does their authority under that Act to ‘sue and be sued,’ 12 U.S.C. § 1757(2), waive their immunity as federal instrumentalities from punitive damage claims? The decision of the Court of Appeal of the State of California, which allowed the punitive damage claims here, declined to follow decisions of the Sixth, Eighth, Ninth, and Eleventh Circuits of the United States Court of Appeals.”