California Punitives by Horvitz & Levy

  • U.S. Supreme Court Will Consider Exxon v. Grefer Cert. Petition on April 18

    The U.S. Supreme Court has placed Exxon v. Grefer on its April 18 conference list, according to the court’s online docket for that case. As we mentioned in a prior post, this case involves a $112 million punitive damages award and involves the following issues (as framed by Exxon’s cert. petition):

    1. Whether the Court of Appeal on remand denied due process when it continued to punish ExxonMobil for harm to nonparties, left intact a punitive damages award without finding that ExxonMobil’s conduct was reprehensible as it affected plaintiffs, and held that the jury could “consider the harm suffered by both parties and non-parties regardless of the type or similarity of harm suffered.”

    2. Whether, contrary to the decisions of other federal and state appellate courts, a court may remedy a concededly tainted punitive damages trial by affirming the maximum punitive damages award due process permits, rather than by ordering a new trial.

    3. Whether due process permits punitive damages twice the amount of compensatory damages in a case of economic injury when compensatory damages are $56 million and plaintiffs’ actual harm is no greater than $1.5 million.

  • Cert. Denied in Chemtall v. Stern

    According to the Order List posted today, the U.S. Supreme Court has denied the petition for certiorari in Chemtall v. Stern, a case involving the constitutionality of a reverse bifurcation procedure in which punitive damages issues are resolved before liability and compensatory damages. (See prior posts here and here.)

  • Supreme Court to Rule on Chemtall Cert. Petition on March 28

    The cert. petition in Chemtall v. Stern, which we have discussed in prior posts, is on the Supreme Court’s conference list for March 28, according to the Supreme Court’s online docket.

  • Philip Morris v Williams—It’s Baaaaaaack (Yet Another Punitive Damages Cert Petition to SCOTUS)

    When the Oregon Supreme Court thumbed its nose at the directives from the US Supremes in Philip Morris v. Williams, affirming a punitive damages award (one that’s 97 times the amount of the compensatory award) despite the trial court’s failure to instruct the jury that it should not punish for harm to nonparties, many of us were a bit surprised. (We’ve since noticed that the Oregon Supreme Court has something of a pattern going here.)

    Philip Morris is now knocking on the Supreme Court’s door again, this time with a cert petition that offers up these issues:

    QUESTIONS PRESENTED

    When this case was last before it, this Court reversed the decision of the Oregon Supreme Court and held that due process precludes a jury from imposing punitive damages to punish for alleged injuries to persons other than the plaintiff. Philip Morris USA v. Williams, 127 S. Ct. 1057, 1065 (2007). This Court then remanded the case to the Oregon Supreme Court with directions to “apply the [constitutional] standard we have set forth.” Ibid. On remand, however, the Oregon Supreme Court refused to follow this Court’s directive. Instead, the Oregon court “adhered to” the judgment that this Court had vacated because it found that Philip Morris had procedurally defaulted under state law and thereby forfeited its claim of federal constitutional error. App., infra, 22a.

    The questions presented—the second of which was accepted for review but not reached when this case was last before the Court—are:

    1. Whether, after this Court has adjudicated the merits of a party’s federal claim and remanded the case to state court with instructions to “apply” the correct constitutional standard, the state court may interpose—for the first time in the litigation—a state-law procedural bar that is neither firmly established nor regularly followed.

    2. Whether a punitive damages award that is 97 times the compensatory damages may be upheld on the ground that the reprehensibility of a defendant’s conduct can “override” the constitutional requirement that punitive damages be reasonably related to the plaintiff’s harm.

  • Punitive Damages Oral Arguments at the United States Supreme Court

    Eugene Volokh has an interesting post on the different lawyers who have argued punitive damages cases before the United States Supreme Court.

  • No Pro-Business Bias in Amicus Briefs at US Supreme Court

    Eugene Volokh points out that the number of amici briefs filed in “business” cases in the United States Supreme Court are roughly evenly divided between the “pro-business” and “pro-consumer” side, thus refuting a major claim made in the recent piece by Jeffrey Rosen. We blogged about this same issue previously here. Indeed, as we pointed out, the recent Exxon Valdez case shows the vast majority of amici briefs coming from the plaintiffs’ side.

  • Supreme Court Amicus Briefs in Punitive Damages Cases

    Jeffrey Rosen’s article about the pro-business leanings of the U.S. Supreme Court (see earlier post here) contains an interesting quote from David Vladeck, who used to work for the Public Citizen Litigation Group and is now a law professor at Georgetown. Vladeck contends that U.S. Supreme Court cases pitting consumer lawyers against big business have not been fair fights, because business interests generate more amicus briefs:

    “There’s us on one side, with a brief or two, and industry on the other side, with a well-coordinated campaign of 10 or 12 briefs, with each one written by a member of the elite Supreme Court bar that address an issue in enormous depth.” He added, ruefully, “You admire their handiwork, but it’s frustrating as hell to deal with.”

    The numbers don’t support Vladeck’s complaint, at least not in the Supreme Court’s recent punitive damages cases. To the contrary, it is the pro-plaintiff groups that have generated more amicus briefs. For example, in the Exxon Valdez case currently pending before the court, the Supreme Court’s docket lists 16 amicus briefs on the merits in support of the plaintiffs, compared to only seven amicus briefs for the defense. In the court’s previous punitive damages case, Philip Morris v. Williams, the docket shows the amicus briefs were more evenly distributed, with each side generating 12 amicus briefs on the merits.

    Perhaps the punitive damages cases are atypical. Maybe a study of all the Court’s business cases over the last few years would support Vladeck’s assertion. But looking at the punitive damages cases, it does not appear that the plaintiffs’ bar is having any trouble generating amicus briefs to support their positions.

  • A Pro-Business Supreme Court?

    Jeffrey Rosen has an article in the New York Times Magazine in which he contends that there is a pro-business consensus on the United States Supreme Court. He points out the the U.S. Chamber endorsed the nominations by President Clinton of Justices Ginsberg and Breyer because of their perceived understanding of business interests. In fact, as Rosen explains, “Exactly how successful has the Chamber of Commerce been at the Supreme Court? Although the court is currently accepting less than 2 percent of the 10,000 petitions it receives each year, the Chamber of Commerce’s petitions between 2004 and 2007 were granted at a rate of 26 percent.” Rosen also points to a series of recent wins by business interests in the United States Supreme Court, often with unanimous or close to unanimous votes. The article also focuses on the interesting point that in some cases, such as punitive damages, certain “conservative” justices such as Justices Scalia and Thomas actually do not come down on the “pro-business” side. We have previously blogged about that issue here and here.

  • Plaintiffs Waive Opposition to Cert. Petition in Chemtall v. Stern

    We previously mentioned the pending cert. petition in Chemtall v. Stern, which presents an issue regarding the constitutionality of a reverse bifurcation procedure in which punitive damages issues are decided before liability and compensatory damages. Apparently, the plaintiffs are not too concerned about Carter Philips‘ petition, as they waived their right to file a response. (See the Supreme Court’s online docket for this case.) They aren’t really taking much of a risk, because the Supreme Court would call for an opposition before deciding to grant certiorari.

  • “Conservative” Judges and Punitive Damages

    A commentator on the recent Exxon Valdez argument in the U.S. Supreme Court opined that “The right wing judges who pollute our courts have drastically reduced punitive damages, which is the issue here, to the point where they’re completely useless.” As set forth in greater detail in an earlier post, it is difficult to make the traditional “liberal” vs. “conservative” judge argument with respect to punitive damages considering that Justices Scalia and Thomas (presumably two of the justices considered to be most “conservative”) have joined with Justice Ginsberg to dissent from the Supreme Court’s jurisprudence in finding due process limitations on the size of punitive damage awards. Similarly, Justices Stevens, Breyer, and Souter have joined with Justices Kennedy, O’Connor, Rehnquist, Alito and Roberts to find due process limitations on punitive damage awards.