Wednesday, March 19, 2008

BP and Exxon Justice?

"In a case that could test the limits of punitive damages, the Supreme Court will hear arguments today related to the $2.5 billion award against what is now ExxonMobil Corp. for the 1989 Exxon Valdez oil spill. ... Beyond taking its case to lawmakers and presenting arguments in litigation, Exxon has sought to influence academic thinking about the remedy, funding research by several prominent scholars who concluded that juries were likely to act arbitrarily in awarding punitive damages. ... Moreover, Exxon complains that jurors were permitted to consider the award's amount in light of the company's profitability", WSJ, 27 February 2008.

"Victims of the 2005 Texas City refinery accident should not be allowed to block a $50 million criminal settlement between BP and the government, prosecutors wrote in court papers filed this week. Federal prosecutors argue they didn't violate the victims rights when they didn't include them in settlement discussions. They also noted that, among other things, including them in negotiations could make it more difficult to reach an agreement. ... The prosecutors' response, filed this week, says the government shouldn't be compelled to have discussions with victims on issues related to possible fines in a criminal case. In such discussions the government might not be able to reveal all the facts to the victims because it 'poses a significant risk of publicity that could impair the government's ability to secure a negotiated resolution or could impair the defendant's constitutional rights if negotiations fail'," my emphasis, Tom Fowler at the Houston Chronicle, 8 March 2008.

"A congressional committee is investigating the government's proposed criminal plea deal with BP stemming from the deadly 2005 Texas City refinery explosion, questioning whether the deal woulf protect workers or deter future misconduct. ... John [Dingell's] ... letter posed dozens of pointed questions about the deal's adequacy, how it was forged, prosecutors' responsibilities to include blast victims in the plea process and whether top executives are culpable. ... The committee wants a meeting with prosecutors, documents related to the plea deal, and an assessment from the [DOJ] about whether the deal is an 'ineffectual deterrent to future violations' given BP's history of problems. ... Dingell and Rep. Bart Stuart ... said in the letter that even if the fine is the largest imposed for a violation of the Clean Air Act, 'this alone does not address whether the fine is adequate to achieve the goal of deterrence, particularly since the fine is less than a single day of profits for BP in 2006 and 2007'," Kristen Hays and Lise Olson (H&O) at the Houston Chronicle, 13 March 2008.

This case is a farce. The Supremes had no business hearing it. Exxon funded research? Big deal. Is this Exxon's answer to the Tobacco Research Institute of the 1950s? The Supremes heard "doll" evidence in deciding Brown v. Topeka School Board. Are juries less "arbitrary" than judges? I think not. As for Exxon's profitability. I remember companies lobbying the California Supreme Court to admit evidence of their net worth so as to limit punitive damages awards against them. Exxon should have been forced to pay this judgment decades ago. Will the Supremes now hear arguments to limit fines individuals might pay as a result of criminal convictions if they can't "afford" to pay them? Should a Los Angeles drug dealer be able to contest a fine by pleading poverty?

Of course, it could make it more "difficult to reach an agreement", if that means sell out the public interest. Get out that crying towel. The Bush administration's new found concern with defendant's consitutional rights is touching. I wonder in Exxon would settle its punitive damages case for the $50 million fine BP is being asked to pay by Uncle Sam? This is a joke.

I wonder if the Supremes will consider the Dingell-Stuart letter in deciding the Exxon Valdez case? Or it they have already decided it. For Exxon. Exxon's academics claim juries are arbitrary. Look at the DOJ and the BP case. See my 22 November 2007 and 29 February 2008 posts.

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