CCL Files Amicus Brief in Climate Change Litigation for Six U.S. Senators

March 20th, 2019

     CCL filed an amicus brief today on behalf of six U.S. Senators in the climate change litigation brought by Oakland and San Francisco against a number of major oil companies. The case is pending in the U.S. Court of Appeals for the Ninth Circuit, after a federal district court dismissed the litigation based on a determination that the issue requires resolution in the U.S. Congress.

     Senators Sheldon Whitehouse (D-RI), Dianne Feinstein (D-CA), Richard Blumenthal (D-CT), Mazie Hirono (D-HI), Edward Markey (D-MA), and Kamala Harris (D-CA) argue in the brief that the defendant companies' argument that climate change should be addressed but by the Congress or Executive Branch is disingenuous because the companies have a long history of opposing action by the legislature or by federal agencies and use their political clout against against action on the issue or candidates favoring action. The brief details the myriad ways that the defendants have impeded progress on this incredibly important issue and urges the court to treat the defendants' pleas for a different forum as pretextual and an attempt to assure that no forum confronts the issue.

     The brief also points out that federal courts have a "virtually unflagging obligation" to exercise the jurisdiction given them under a 1976 Supreme Court precedent, Colorado River Water Conservation Dist. v. United States. Moreover, the cities have claimed a real injury proximately caused by the defendants that will not be otherwise remedied without a court's willingness to hear their case.

     The Ninth Circuit is expected to hear oral argument in the dispute later this year.


CCL Files Brief in Opposition to Supreme Court Petition in Preemption Case

March 19th, 2019

     Today, CCL filed a brief on behalf of Juanita Nye, opposing the petition for certiorari filed by BNSF Railway Co., which seeks to avoid its liability in the death of Ms. Nye's husband at a railway crossing in Oklahoma.

     Jeffrey Nye, a 51-year-old eighth-grade science teacher and sports coach, was killed when a BNSF train hit his car. Vegetation overgrowth hid the approaching train, which also failed to sound its horn to warn motorists at the crossing. The vegetation also obscured the railroad crossing sign. A passenger in the vehicle who was injured but survived reported that Mr. Nye yelled "train" just as his car began to cross the tracks and the train first became visible.

     BNSF asserted that it cannot be sued for inadequate signage, known as crossbucks, because the signs were funded as part of a federal program that preempts state causes of action on those grounds. However, it failed to produce evidence that the particular crossbucks at issue were part of the federal funding project. Instead, evidence established that, at the time the federal project was completed, only one crossbuck had been erected and that the current crossbucks were different on each side of the track, both facts are inconsistent with any claim of federal funding and compliance with the specifications of the program, which require two crossbucks that would be identical. The trial court found the evidence sufficiently in dispute that it denied BNSF summary judgment and held that the issue was ripe for the jury's decision.

     The jury found liability and implicitly decided the factual issue of funding against BNSF. It appealed to the Oklahoma Supreme Court, which upheld the verdict. That court determined that BNSF's appeal was little more than an attempt to re-try the case in the supreme court by arguing all facts were matters of law for the court's, rather than the jury's determination.

     Before the U.S. Supreme Court, BNSF argues that Oklahoma imposed a more stringent standard of proof to support preemption than federal courts do and that intervention is necessary to permit railroads to claim preemption on the basis of unrebutted circumstantial evidence because records from 30 years ago are too scattered and fragmented. CCL's brief demonstrates that the Oklahoma Supreme Court's decision is consistent with both prior U.S. Supreme Court decisions and with other federal courts. BNSF's claimed circuit split simply does not exist. Moreover, the facts overwhelmingly support Ms. Nye's claim that federal funding was not involved with these particular crossbucks and that liability exists even without the sign issue because of the overgrown vegetation and the failure of the train to sound its horn.

     BNSF will have an opportunity to write a reply brief, and the Supreme Court is likely to take the matter up at its April 5 conference.

CCL Files AAJ Amicus Brief in U.S. Supreme Court on Punitive Damages in Seaworthiness Cases

March 1st, 2019

     In The Dutra Group v. Batterton, the U.S. Supreme Court will consider whether punitive damages are available to injured members of a crew suing for their injuries because the vessel was not seaworthy. CCL President Robert S. Peck co-authored an amicus brief on behalf of the American Association for Justice with AAJ Senior Associate General Counsel Jeffrey White, arguing that the public policy reasons advanced by The Dutra Group do not stand up to scrutiny.

     The case began when Christopher Batterton, a deckhand, was permanently injured when a hatch blew open and crushed his left hand. In his subsequent lawsuit, he alleged the ship was unseaworthy. The U.S. Court of Appeals for the Ninth Circuit held that punitive damages were available in Batterton's case.

     Before the U.S. Supreme Court, The Dutra Group argues that the availability of punitive damages would harm the maritime industry and the American economy more generally, placing companies like theirs at a competitive disadvantage with foreign vessels that would not be liable for punitive damages and that large awards, as well as fear of large awards, have a destabilizing effect on commerce.

     The AAJ amicus brief demonstrates that these public policy arguments are part of a long-running public relations campaign that is refuted by empirical studies and that the U.S. Supreme Court has already reviewed the research and found contradicts claims of runaway punitive damage awards in deciding the Exxon Valdez case in 2008. Instead, the research shows that punitive damages remain rare, are closely related to compensatory damages, and are predictable. Assertions that the availability of punitive damages scare companies to settle meritless claims are equally devoid of empirical support. Instead, the AAJ brief asserts that The Dutra Group's bid to end the centuries-old availability of punitive damages for egregious misconduct is nothing less than a bid to permit reprehensible actions in the name of commerce.