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January 28, 2008
McKenna helping lead effort for states to support respondents in Exxon v. Baker

OLYMPIA – Attorney General Rob McKenna announced today that Washington will sign on to an amicus brief to support the commercial fishermen, seafood processors, tribes and others whose lives were impacted by the 1989 Exxon Valdez oil spill.

McKenna is taking a lead role in encouraging other states to support the respondents in Exxon v. Baker, which will be argued in the United States Supreme Court this year. He and Maryland Attorney General Douglas Gansler co-signed a letter sent by e-mail to attorneys general nationwide, encouraging them to sign onto the amicus brief being prepared by Maryland. So far, 18 additional states have agreed to sign the brief. {UPDATE: 34 states signed onto the filed brief, including Washington and Maryland.}

“Fishermen in Washington have personally contacted me to let me know how vitally important this case is to their livelihood,” McKenna said. “The lawsuit also raises important issues that should be of concern to everyone, including the states’ ability to protect our waterways and coastlines from toxic spills.”

In their letter, McKenna and Gansler said the Exxon Valdez disaster caused substantial harm to the economy and way of life in Alaska's Prince William Sound.

The amicus brief will state that the court should reject both the strict complicity rule for vicarious liability for punitive damages, as proposed by Exxon, and the company’s argument that the federal Clean Water Act implicitly preempts federal maritime law from providing for punitive damages in common-law tort actions. 

It will also contend that because 48 states have punitive damages, the law that applies generally to corporations for land-based misconduct should also apply to maritime law and toxic spills. Exxon’s proposed strict complicity rule would threaten to undermine the states’ ability to deter and punish reckless misconduct.

Additionally, states will assert that there is no reason to conclude that Congress intended for the Clean Water Act to preempt the availability of punitive damages in private tort actions under federal maritime law.

An estimated 32,000 claimants represented by up to 60 different law firms await the outcome of the case. More than a third of class members, 11,000, reside in states other than Alaska. About 20 percent of claimants in the case are no longer living.

So far, these states have agreed to sign on to the amicus: Arkansas, Delaware, Georgia, Kentucky, Maryland, Maine, Montana, Nebraska, Nevada, New Mexico, New Hampshire, North Carolina, North Dakota, Ohio, Oregon, Rhode Island, South Dakota, Utah, Washington and West Virginia. {UPDATE: 34 states signed onto the filed brief, including Washington and Maryland.}

Exxon Valdez spilled 10.8 million gallons of unrefined Alaskan crude oil into Prince William Sound, wrecking in an area accessible only by helicopter and boat. The region was a habitat for salmon, sea otters, seals, sea birds and the great white shark.

In 1994, in the case of Baker vs. Exxon, an Anchorage jury awarded $287 million for actual damages and $5 billion for punitive damages.

Exxon appealed the ruling and the 9th U.S. Circuit Court of Appeals ordered the original judge to reduce the punitive damages. In December 2002, the judge announced that he had reduced the damages to $4 billion.

Exxon appealed again, sending the case back to court to be considered in regard to a recent Supreme Court ruling. Punitive damages were increased to $4.5 billion, plus interest.

After more appeals and oral arguments heard by the 9th Circuit Appellate Court in January 2006, the damages award was cut to $2.5 billion in December 2006. The court cited recent U.S. Supreme Court rulings relative to limits on punitive damages.

Exxon appealed again. On May 23, 2007, the Ninth U.S. Circuit Court of Appeals denied Exxon Mobil Corp.'s request for another hearing, letting stand its ruling that Exxon owes $2.5 billion in punitive damages.

Exxon then appealed to the U.S. Supreme Court, which on Oct. 29, 2007, agreed to decide whether Exxon Mobil Corp. should pay the $2.5 billion in punitive damages. This amounts to approximately $75,000 per claimant, because Exxon took the unusual step of asking for certification of a class for purposes of punitive damages.


Letter from Attorneys General Gansler and McKenna

{UPDATE: Filed amicus brief }

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Media Contact: Kristin Alexander, Media Relations Manager, (206) 464-6432


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