After being reversed twice by the U.S. Supreme Court, including in last term's Philip Morris v. Williams case (Oct. 26, 2006; Feb. 20, 2007; much more), the Oregon Supreme Court has once again reaffirmed the $79.5 million punitive damages award. Steenson has details. SCOTUS avoided addressing the issue of excessiveness of damages, so the Oregon Supreme Court's decision is a direct challenge to that jurisprudence. The Court is going to be faced with the need to write a "No, this time we really mean it" reversal, or effectively undo its precedents in the area. (Update: Turkewitz suggests the latter outcome is likely.)
WSJ editorial on a pending case on the certiorari docket:
Long ago, in a legal galaxy far, far away, American courts saw antitrust law as a way to protect competitors from, well, the competition. These days everyone outside the Ninth Circuit Court of Appeals concedes that if antitrust has any claim to legitimacy, it lies in its ambition to maximize consumer welfare, not competitor protection. ...
The problem is that a price-squeeze complaint amounts to telling one company -- AT&T in this case -- that it is charging consumers too little. And forcing AT&T to raise its retail prices might help linkLine, but it would hurt consumers, who would be forced to pay more for Internet access in the name of preserving a "competitive" market. Our courts used to think that punishing consumers to keep competitors alive was normal, reasonable behavior. Antitrust regulators in Europe still think this way. And so, apparently, does the Ninth Circuit, which may explain why it ruled that linkLine's case should go forward.
Lyle Roberts is a one-stop shop.
So asks the Patent Baristas blog in discussing the sovereign-immunity issues of Biomedical Patent Management v. State Of California and the related cert petition. The Wall Street Journal discussed the issue November 13.
That Ted Frank guy who told the Legal Times "The proper way to look at it, I think, is that the Enron case is dead after today," appears to have been right. The plaintiffs' attenuated "scheme liability" theory contradicted federal law, as Stoneridge affirmed, and the Court refused to hear the appeal of the Enron plaintiffs from the Fifth Circuit decision shutting down the case.
Of course, the banks that settled for billions of dollars rather than risk tens of billions of dollars of liability after the erroneous district court ruling don't get to get their money back, and the plaintiffs' attorneys (including the felon Bill Lerach) will make hundreds of millions of dollars in their use of the courts as legalized extortion.
(Semi-related update: Bainbridge podcast on Stoneridge at the Federalist Society; Portfolio notes that the Enron plaintiffs return to district court to try a new theory.)
Wyeth v. Levine, certiorari to the Supreme Court of Vermont, will decide to what extent FDA regulation of warning labels preempts failure-to-warn claims. The solicitor general's brief nicely explains the stakes, and why reversal is merited now that the Court has granted cert. Public Citizen's pro-litigation brief is also on the web. (Update: Beck and Herrmann have a comprehensive post.)
Altria v. Good, certiorari to the First Circuit, will resolve tobacco companies' preemption defense to light-cigarette consumer fraud class actions. Can a manufacturer be held liable for "consumer fraud" for using a government-mandated description for their product? The NCLC brief explains why this is important beyond tobacco. Public Citizen's brief in a similar Illinois case is on the web. Public Citizen's brief in a similar Illinois case is on the web. (Update: see also Steenson and WSJ. Also Lahav, who mistakenly labels Public Citizen's position as "pro-consumer," though it would raise prices, reduce consumer choices, and, in at least in the drug context, hurt consumer safety.)
Allison Hayward and David Becker debate Crawford v. Marion County (Jan. 9).
John Fund on today's Supreme Court argument over the constitutionality (!) of photo-ID laws for voting:
Indiana officials make the obvious point that, without a photo ID requirement, in-person fraud is "nearly impossible to detect or investigate." A grand jury report prepared by then-Brooklyn District Attorney Elizabeth Holtzman in the 1980s revealed how difficult it is to catch perpetrators. It detailed a massive, 14-year conspiracy in which crews of individuals were recruited to go to polling places and vote in the names of fraudulently registered voters, dead voters, and voters who had moved. "The ease and boldness with which these fraudulent schemes were carried out shows the vulnerability of our entire electoral process to unscrupulous and fraudulent misrepresentation," the report concluded. No indictments were issued thanks to the statute of limitations, and because of grants of immunity in return for testimony.
Even modest in-person voter fraud creates trouble in close races. In Washington state's disputed 2004 governor's race, which was won by 129 votes, the election superintendent in Seattle testified in state court that ineligible felons had voted and votes had been cast in the name of the dead. In Milwaukee, Wis., investigators found that, in the state's close 2004 presidential election, more than 200 felons voted illegally and more than 100 people voted twice. In Florida, where the entire 2000 presidential election was decided by 547 votes, almost 65,000 dead people are still listed on the voter rolls -- an engraved invitation to fraud. A New York Daily News investigation in 2006 found that between 400 and 1,000 voters registered in Florida and New York City had voted twice in at least one recent election.
Ted Boutros in the Wall Street Journal (h/t S.W.) why the Ninth Circuit's affirmance of a $2.5 billion punitive damages award against Exxon is unconstitutional. Earlier: Sep. 12; Jan. 19.
In today's Wall Street Journal, SEC Commissioner Paul Atkins is yet another voice warning about the dangers of a reversal in Stoneridge v. Scientific-Atlanta. John Engler weighs in at USA Today. In the Legal Times, Richard Booth correctly asks who really gains from the alleged Stoneridge fraud.
Warren Richey has a fair overview of the facts in today's Christian Science Monitor, and Kara Scannell in the Wall Street Journal covers Bill Lerach's lobbying campaign. And, interestingly, Roger Parloff, who previously called for reversal, has changed his mind:
These issues were decided in 1994, and Congress has twice consciously chosen not to overrule the part of that Court decision that barred private suits against aiders and abettors, which is what Scientific-Atlanta and Motorola really were (if anything) here. Congress decided — reasonably — that shareholder litigation is so fraught with abuse, and is such a grotesquely inefficient and ineffective way of reimbursing fraud victims, that it was wiser to leave the deterrence and punishment of aiders and abettors to the SEC and federal prosecutors.
Earlier on Point of Law: Epstein podcast and column; Bainbridge; Copland; and Frank.