Today’s Wall Street Journal has a short version of my take on the Exxon Shipping v. Baker decision. Cf. also my Federalist Society podcast.

I’ve done a podcast for the Federalist Society on the Supreme Court punitive damages decision in Exxon Shipping v. Baker.

Looks like we’ll be hearing a lot more about the “Kivalina” (Alaskan Inupiat village) climate-change suit:

Over time, the two trial lawyers [Stephen Susman of Texas and Steve Berman of Seattle, both familiar to longterm readers of this site] have become convinced that they have the playbook necessary to win big cases against the country’s largest emitters. It’s the same game plan that brought down Big Tobacco. And in Kivalina — where the link between global warming and material damage is strong—they believe they’ve found the perfect challenger.

In February, Berman and Susman—along with two attorneys who have previously worked on behalf of the village and an environmental lawyer specializing in global warming—filed suit in federal court against 24 oil, coal, and electric companies, claiming that their emissions are partially responsible for the coastal destruction in Kivalina. More important, the suit also accuses eight of the firms (American Electric Power, BP America, Chevron, ConocoPhillips, Duke Energy, ExxonMobil, Peabody Energy, and Southern Company) of conspiring to cover up the threat of man-made climate change, in much the same way the tobacco industry tried to conceal the risks of smoking—by using a series of think tanks and other organizations to falsely sow public doubt in an emerging scientific consensus.

(Stephan Faris, “Conspiracy Theory”, The Atlantic, June). For the theory of legally wrongful participation in public debate (as one might call it), as it surfaced in the tobacco litigation, see, for example, this 2006 post.

More background on the suit at the Native American Rights Fund’s blog, here and here, and at attorney Matthew Pawa’s site. Carter Wood at NAM “Shop Floor” links to a report by the American Justice Partnership and Southeastern Legal Foundation (PDF) entitled, “The Most Dangerous Litigation in America: Kivalina“.

Yet more: Northwestern lawprof David Dana has a working paper at SSRN entitled “The Mismatch between Public Nuisance Law and Global Warming” (via Sheila Scheuerman/TortsProf). Abstract:

The federal courts using the common law method of case-by-case adjudication may have institutional advantages over the more political branches, such as perhaps more freedom from interest group capture and more flexibility to tailor decisions to local conditions. Any such advantages, however, are more than offset by the disadvantages of relying on the courts in common resource management in general and in the management of the global atmospheric commons in particular. The courts are best able to serve a useful function resolving climate-related disputes once the political branches have acted by establishing a policy framework and working through the daunting task of allocating property or quasi-property rights in greenhouse gas emissions. In the meantime, states do have a state legislative alternative that is preferable to common law suits, and that federal courts can facilitate without any dramatic innovations in federal preemption or dormant commerce clause doctrine.

In Alaska; Chevron; climate change; environment; Exxon; global warming; Kivalina; Seattle; stephen susman; Steve Berman; tobacco

It’s like magic, we’ll just make Big Business pay:

Washington, D.C., lawyer Thomas Fay has spent years hounding the Libyan government for money on behalf of victims of terrorist attacks. Now he’s hoping to collect — from American companies.

Fay has sent letters to 13 brand-name corporations, including Exxon Mobil and Chevron, notifying them that if he wins his case against Libya, he’ll be coming after them. He has even sent one to White & Case, the prominent law firm that recently signed on to defend Libya.

The gambit stems from a change in the law meant to make it easier for plaintiffs to secure judgments and collect from countries found responsible for sponsoring terrorist attacks. Until recently, those who had prevailed in court had few options for collecting.

But on Jan. 28, President George W. Bush signed a bill amending the Foreign Sovereign Immunities Act to allow plaintiffs to seek any asset owned by the terrorist-sponsoring country in reach of American courts, including frozen accounts or property managed by others. The amendment also permits victims to request punitive damages, which they couldn’t before, and eliminates some avenues for appeal. Under the new law, plaintiffs with pending cases had 60 days to file or refile claims.

Attorney Fay was among those lobbying for the new provision, which was sponsored by Sens. Frank Lautenberg (D-N.J.) and Arlen Specter (R-Pa.). (W.J. Hennigan, Legal Times, Apr. 15).

• Telemarketers working for lawyers and chiropractors “line up every day” at police and public records offices to buy car-crash records [Dallas Morning News]
• Nice work if you can get it: Bernardine Dohrn’s terrorist-to-lawprof career track [Kass, Chapman @ Chicago Tribune, Ed Morrissey/HotAir, PoL, Horowitz/DtN, Daily Northwestern/FrontPage, Malkin, Power Line]
• Mystery of embattled Florida debt-relief law firm Hess Kennedy (Mar. 6) deepens as whereabouts of lawyer Edward Kennedy are questioned [ABA Journal]
• Criticism mounts of Calif. AG Jerry Brown’s lawsuits using global warming theories to force higher-density development [Stewart/LA Weekly, Walters/SacBee, via Kaus, scroll]
• Kevin Pho (KevinMD.com) on defensive medicine [USA Today]
• Colorado firm says lawsuit’s “settlement mill” allegations are concocted “by a competitor who doesn’t like (Azar’s) advertising.” [Colorado Springs Gazette]
• Hey, you can rig up a disposable camera to give you a little shock; it might also give you a D felony record under school zero tolerance [WTNH via Greenfield]
• One good thing about those anonymous snitchlines for domestic abuse, you don’t have to worry about bogus calls or anything like that [Colorado Springs Gazette on Texas polygamist raid backstory]
• Lawyers get $2 million in fees in Netflix class action [WSJ law blog; earlier]
• Supreme Court refuses cert on that very curious $112 million (originally $1 billion) land-contamination verdict from Louisiana [Exxon v. Grefer, Dow Jones/Fortune; CalPunitives link roundup; earlier; more background at Laura Hart/Louisiana Law Blog]
• Cow-pie bingo event falls victim to liability fears [three years ago on Overlawyered]

In today’s Washington Post:

Dana Milbank’s Feb. 28 column on Exxon Shipping Co. v. Baker operates on the premise that the winner of any Supreme Court argument should be whoever can best appeal to the justices’ sympathies regardless of the merits of the case. Such an approach is more appropriate for coverage of television game shows than the law.

The Post would do better to treat its readers like grownups and have its Supreme Court reporting done by journalists who don’t “yawn” at questions about the appropriateness of jury instructions.

– Theodore H. Frank

Washington

The writer is director of the American Enterprise Institute’s Legal Center for the Public Interest.

• Oregon Supreme Court plays chicken with SCOTUS over $79.5 million punitive damages award in Williams v. Philip Morris case. [Sebok @ Findlaw; Krauss @ IBD; POL Feb. 1]
• Speaking of punitive damages, I did a podcast on Exxon Shipping v. Baker. I can’t bear to listen to it, so let me know how I did. [Frank @ Fed Soc]
• Arkansas case alleged legal sale of pseudoephedrine was “nuisance” because meth-makers would buy it; case dismissed. [Beck/Herrmann]. This is why I’ve stockpiled Sudafed.
• Lawyers advertise for refinery explosion victims before fire goes out. [Hou Chron/TLR]
• Connecticut Supreme Court: cat-attack victim can sue without showing past history of violence by animal. [On Point] Looking forward to comments from all the anti-reformers who claim to oppose reform because they’re against the abrogation of the common law.
• Op-ed on the Great White fire deep pockets phenomenon. [SE Texas Record; earlier: Feb. 2]
• “FISA lawsuits come from Twilight Zone.” [Hillyer @ Examiner]
• Legislative action on various medical malpractice tweaking in Colorado, Hawaii, and Wyoming. [TortsProf]
• Request for unemployment benefits: why fire me just because I asked staffers for a prostitute? [Des Moines Register]
• “So much for seduction and romance; bring in the MBAs and lawyers.” [Mac Donald @ City Journal; contra Belle Lettre; contra contra Dank]
• Where is the Canadian Brandeis standing up for free speech? [Kay @ National Post]
• In defense of lobbying. [Krauthammer @ WaPo]

• Longtime Overlawyered favorite Judy Cates, of columnist-suing fame, is using large sums of her own money to outspend incumbent James Wexstten in hard-fought race for Illinois state judgeship; Democratic primary is Feb. 5 [Belleville News-Democrat, Southern Illinoisan]
• City council told: we’ll cancel your liability coverage if you throw all meetings and city records open to public [Seattle Times]
• Attorney member of Canadian Senate in spot of bother after revelation that she billed client for 30 hours in one day [Vancouver Province, edit]
• A public wiki just for Scruggsiana? After Keker’s minions swoop in to do their edits, the Mississippi attorney may wind up portrayed as the next Mother Teresa, and not the Hitchens version either [WikiScruggs]
• Same general category of point, my Wikipedia entry now suddenly describes me as “controversial”, when but a month ago I wasn’t;
• $28 to $52 million in 18 months for serving as a DoJ “corporate monitor” sounds like nice work if you can get it, and former AG Ashcroft got it without competitive bidding [Lattman, St. Pete Times edit, PolitickerNJ, NJLJ]
• The Amiable Nancy (1818), admiralty case that could prove crucial precedent in Exxon Valdez punitive appeal, has nothing to do with The Charming Betsey (1804), key precedent on international law [Anchorage Daily News; Tom Goldstein/Legal Times]
• “First do no harm… to your attorney’s case” [Cole/Dallas Morning News via KevinMD]
• Probers haven’t come up with evidence of more than middling tiger-taunting, and attorney Geragos says he’ll sue zoo’s p.r. firm for defaming his clients [KCBS; SF Chronicle; AP/USA Today]
• UK’s latest “metric martyr” is Janet Devens, facing charges for selling vegetables in pounds and ounces at London’s Ridley Road market [WSJ; earlier]
• Lawyer can maintain defamation suit over being called “ambulance chaser” interested only in “slam dunk” cases, rules Second Circuit panel [eight years ago on Overlawyered]

• “What you will not see in the findings of this bill, where politicians typically describe the problem they intend to solve, is any evidence that arbitration harms consumers or anyone else.” [WSJ]
• You saw it first on Overlawyered (Jun. 9; Jul. 20; Sep. 14): “Plaintiffs Lawyers in ‘Blood Feud’ Over Fees From $2 Billion Settlement” [American Lawyer]
• Junk science verdict against Dole Pineapple and Dow Chemical over pesticide use. [Cal Biz Lit]
• Alabama Supreme Court points out that good-faith contract dispute does not merit multi-billion-dollar punitive damages. [Birmingham News; Marketwatch; Exxon v. Alabama via Alabama Appellate Watch via Bashman]
• Still more Montgomery Blair Sibley follies. [Legal Times]
• The latest farm follies. [Postrel; Mair; Rauch]
• Why Ron Paul is a crank [Frum]

SCOTUSblog reports:

In an unusual order, with seven of the nine Justices not taking part, the Court summarily upheld a D.C. Circuit Court ruling that those Justices had immunity to a civil damages claim of $75,000 by a Washington, D.C., attorney who has challenged the Court for an earlier refusal to hear his case. Since those seven members of the Court were directly sued, they were recused; under federal law, when the Court does not have a quorum (six Justices minimum), the effect is to affirm the lower court ruling. The attorney, Montgomery Blair Sibley, had sued the Justices after they had denied review of a case involving a domestic relations and child custody dispute. In Monday’s order, no Justice made any comment on the Circuit Court ruling being affirmed.

Earlier on Overlawyered.

Stuart Taylor, Jr. on the Exxon Valdez and telecom-surveillance cases (National Journal, Oct. 29 — will rotate off free site, so catch it now). P.S.: Ted has more on the high court’s grant of cert in the Exxon case.

• New Jersey Supreme Court won’t touch appellate court reversal of $105M dram-shop verdict against Aramark Corp. Not noted in our earlier coverage: Aramark was held liable as a deep pocket through illegitimate piercing of the corporate veil, adding yet another problem to an appalling series of problems with the trial. [New Jersey Law Journal; earlier on Overlawyered; Point of Law]
• Half-trillion-dollar class certified against Wal-Mart in lawless Ninth Circuit decision. [Point of Law]
• Court papers show direct link to Lerach in Milberg probe. Most entertaining: a letter by Lerach saying “Dr. Cooperman’s reputation and character are impeccable.” Cooperman has since pled guilty to taking kickbacks, and Milberg Weiss now says he has no credibility. [National Law Journal; WSJ Law Blog]
• Slip and fall worth $5.7M [Atlantic City Press]
• Cardiologists doing Brazilians: “Graduating med students aren’t blind; they see established physicians with busy practices dropping out. Looking ahead they see more headaches–more controls and regulations, more scrutiny, more liability, less money.” [TIME via Kevin MD]
• Florida law may allow men to get out of paying fraudulent paternity when DNA shows they’re not the father. [Miami Herald; see also Parker v. Parker; earlier on Overlawyered]
• Editorial: Alabama Supreme Court ruling on illegal multi-billion-dollar punitive damages award in Exxon contract dispute can prove state is no longer tort hell. [Press-Register]
• Update to earlier Overlawyered post: Danny Cuesta pleads guilty, sentenced to fifteen months; Melissa Cuesta, whose claim we covered, arrested for perjury, pleads not guilty. [EmpireStateNews.net via Teacher trash blog]
• Incomes and inequality: what the numbers don’t tell us. [Marginal Revolution]
• India and the drug patent wars. [AEI]
• I (along with John Beisner, Michael Hausfeld, and John Stoia) am speaking on a panel on the Class Action Fairness Act at the National Press Club February 14. [Federalist Society]

Now, this is ridiculous: at the URL http://www.overlawyered.blogspot.com/ (no, I’m not going to give it a live link) someone or other has erected a pseudo-blog under the heading, “Overlawyered”, followed by a verbatim swipe of the paragraph (”Overlawyered explores an American legal system…”) which for years stood atop this site’s sidebar and currently stands atop our “about us” page. The imitation-Overlawyered blog has relatively little content, but one of its entries (dated May 05, 2006) consists of excerpts swiped verbatim from a post of Ted’s of Feb. 16, 2006 on this site about a South Texas legal case.

Other content on the pseudo-Overlawyered site suggests that the author(s) take an interest in the South Texas legal scene, and have established a large group of blogspot entities which blogroll each other under the banner of “Team Kenedeno” (more at http://teamkenedeno.blogspot.com/). These interlocking sites often sport not very accurate names such as corpuschristicallertimes.blogspot.com, microsoftdotcom.blogspot.com, and exxonmobile.blogspot.com, and at least one of them (at http://wattslawfirm.blogspot.com/) also contains a more extensive verbatim swipe from Ted’s Feb. 16, 2006 post, mentioned above.

I looked around for a while, but failed to find any appropriate “report abuse” procedure on the Blogspot/Blogger site. The nearest thing was a “Flag Objectionable Content” button which apparently triggers a review for hate speech, obscenity, etc., but does not offer any way of reporting the rather different problem arising here. Reader suggestions are welcome.

Update from Ted: “We’ve contacted the appropriate people. Thanks for everyone’s help.”

Justinian Lane responds to my recent Liability Outlook about the Buell-Wilson case (Jan. 4 and links therein). The PDF version has pretty typesetting and graphics in lieu of substance, though I question the choice of Futura (a sans serif typeface designed for display) as the font for the main text, as well as the use of oversized bullets.

I was especially impressed that Lane responded to my criticism of the inaccuracy of the court’s description of the case by quoting the court’s description of the case, and my criticism of California evidentiary rules by citing California evidentiary rules. Lane doesn’t explore the implications of his explicit contention that juries get it right only seven percent of the time, an even better argument for reform if it were true than the one I made. Ironically for a piece that purports to “set the record straight,” Lane has more misrepresentations of my argument and factual errors than I have time to spend counting.

To take a non-obvious one, Lane’s description of the Grimshaw case is incorrect (or at least poorly worded, depending on what he means by “backfired”): comparative evidence in that case showing that the Pinto was safer than other subcompacts and no more likely to explode was excluded over Ford’s objection. (In the famous case against Ford brought by state prosecutors over the Pinto, Ford was allowed to introduce that evidence, and an Indiana jury acquitted Ford.) I leave it to the error- and non-sequitur-seeking reader to peruse Lane’s other arguments, including the claim that the amount of the award against Ford is justified because Lee Raymond contracted with Exxon to receive stock options that, after the share price went up, turned out after the fact to be worth a lot of money.

But let’s give credit to Bizarro-Overlawyered for their new tack of acknowledging the existence of other arguments, even if they still can’t bring themselves to address them head-on or link to what they purport to be commenting on. Judge for yourself.

Following up on my post the other day about the lawyers’ share of the possible $4.5 billion Exxon payout — the WSJ Law Blog discussed this yesterday, and provided some additional and interesting numbers. The lawyers’ share of the award has been set at 22.4% of the final judgment, including interest. That’s smaller than the percentage in many contingent-fee agreements, but results in a lot of dollars here.

According to the WSJ, there are 62 law firms representing plaintiffs. Each firm’s share depends in part on how many clients it represents, and there is a three-percent “bonus” for the most-active firms. So each lawyer’s share of the $1 billion+ is a little hard to calculate, but partners at both Faegre & Benson and Davis Wright Tremaine estimated that their firms would each clear over $100 million. Faegre, for example, has 262 partners, so that would be $381,679 each — just $22,451 for each of the 17 years that the case has been pending, but on the other hand there were almost certainly long stretches where little if any work was being done.

Oops — almost forgot the actual plaintiffs. There are 32,677 of them, who will be splitting the other three or four billion (depends on the final interest award). Assuming it’s $3.5 billion, and assuming everybody has an equal share (which isn’t true), each plaintiff would recover $107,108, or $6,300 for each of the 17 years he or she has been waiting. Is it fair that each lawyer on the case will end up with three or four times the cash that an injured party is getting? Let the comments begin.

The WSJ’s Law Blog reported recently on the joy being experienced by lawyers in the firms representing plaintiffs in the Exxon Valdez case, their spirits dampened only mildly by the Ninth Circuit’s recent reduction in the punitive award from $4.5 billion to $2.5 billion. Those firms include traditional plaintiffs’ firms such as Milberg Weiss, but also firms normally seen representing defendants, such as Davis Wright Tremaine and Faegre & Benson.

How do Faegre & Benson lawyers feel about the prospect of sharing in perhaps one-third of $2.5 billion? “It’s great,” said partner Brian O’Neill to the WSJ. Any grief due to the $2 billion reduction is probably tempered by the amazing $2 billion in post-judgment interest that will be tacked onto the final bill. (Actually, maybe that’s not amazing in itself, since the case has been pending since 1989. Still, the interest “is not chicken s___,” as O’Neill put it.) O’Neill said of the titanic fee that is coming their way, “This is one of the few chances a bill-by-the-hour guy and a bill-by-the-hour firm has to get ahead.” I for one have been worried for some time about how the partners in these little “bill-by-the-hour firms” were managing to get by, so it’s good to know that for once they may have been able to afford that second can of beans for the family at Christmas dinner.

Damages in the case were estimated at about $500 million. The Ninth Circuit basically held that the evidence did not warrant a punitive award that went to the limit of what is permitted under State Farm v. Campbell, a 9:1 or “single-digit” ratio, and reduced the ratio to 5:1.

“Class members and class counsel Eugene Stearns are claiming that companies that process class action claims are illegally taking a large part of class members’ winnings in the $1.1 billion Exxon-Mobil breach-of-contract case. Stearns argues the recovery companies are engaging in the unlicensed practice of law and duplicating work already done by his law firm. Florida federal Judge Alan S. Gold has voided members’ contracts with one processing company and Stearns’ firm is challenging other contracts.” Stearns boasts (or is it complains?) that he is getting not “an additional dime” for his work protecting the gas station owners from the percentage-seeking middlemen, but he is probably not in too great need of dimes at the moment, his firm having been awarded an eye-popping $249 million in fees in the action itself. (Carl Jones, “Class Action Processors Accused of Illegally Pocketing Big Share of Awards in ExxonMobil Case”, Miami Daily Business Review, Nov. 16).

The Equal Employment Opportunity Commission sued ExxonMobil last month over its policy of requiring pilots of its planes to retire at age 60. The federal agency prefers individualized assessments of age-related inability to handle the duties of the job — which in this case might mean that an employer would start the removal process for an elderly pilot only after a legally bulletproof file had been assembled documenting the pilot’s decline in capabilities.

Exxon Mobil spokesman Russ Roberts said the company’s policy addressed the issue of safety and was modeled after Federal Aviation Administration guidelines. He said the policy is long-standing and consistent, not arbitrary and discriminatory.

“Our pilots face the same challenges commercial pilots do flying large, complex, high-speed jets,” he said. “We told the EEOC that we would not change our safety practices in response to complaints filed by pilots.”

(Steve Quinn, “Suit Accuses Exxon of Age Discrimination”, AP/CBSNews.com, Sept. 23). At the Denver Post, columnist Al Lewis discusses this and other recent age-bias lawsuits (”Gray hair + pink slip = lawsuit”, Sept. 27). More on the subject: Oct. 19, etc.