February 27, 2008

Exxon Valdez Oral Argument Transcript

The transcript of this morning's oral argument is available here.


  1. Roberts's first question at 6 was more or less the point I wanted the Court to get to, I think. I think the Court gets the corporations-only-act-through-agents point well enough that they won't go for a broad no-vicarious-liability-for-punitive-damages rule. Exxon seemed to be pushing an Ultramar-style managers-are-policymakers argument, but I'm not sure they contested the definition of "managerial" in instruction 34. Will the Court add in a Kolstad good-faith defense to the Restatement rule, despite the fact that no state does that? Hard to say. (Ohio's rule for corporate criminal liability does something similar to Kolstad (see p. 18), but I think that's it.)

    I'm curious how Dellinger was going to finish his sentence at 10 that begins, "There are eight states..." Maybe he means "...that follow a policymaker definition of 'managerial agent.'" But I only counted six jurisdictions, including Guam (see pp. 12 and 19). This is the thing that blogs and same-day-transcript policies would be great for, I think. Any Exxon people out there who can finish Dellinger's sentence?

  2. It's funny that you mention the Guam case. Perhaps you noticed this, but I was counsel of record for Mobil in that case. It was a fun case because we were writing on a blank slate; the Guam Supreme Court had been created only recently and had very little precedent, none on the managerial agent issue. The court agreed to adopt a managerial agent rule, but they declined to adopt the policymaker requirement of White v. Ultramar.

    Although I represented Mobil in that case, I'm not involved in the Exxon Valdez case. I can't say for sure how Dellinger was going to finish that sentence, but Fisher picked up on that point during his argument. He said that Dellinger had cited eight jurisdictions that follow the policymaker rule, but he (Fisher) took issue with Dellinger's characterization of some of those jurisdictions, specifically Kansas, Connecticut and DC. (See page 42.)

  3. Hadn't realized that you were on the Park case--that's funny. I classified Guam as a policymaker state based on its upshot: "[W]e adopt the Egan definition of managerial agent as the term is used in the Restatement rule, and hold that a managerial agent under the Restatement is an employee who exercises substantial discretionary authority which results in the ad hoc formulation of policy over an aspect of the corporation's business." The court rejects Ultramar, but it's close enough for me to put it in the same "policymaker" bin. I suppose it depends on what the difference is between ad-hoc policy and non-ad-hoc policy. My charts are much too complicated already to consider variants of the policymaker rule, though I probably ought to put more explanation on the Park footnote. I'm also motivated to keep Guam as a policymaker state by a desire to give Guam one of the coveted same-rule-for-both-crime-and-punitive-damages awards, besides the one for Minnesota.

    Looking at footnote 5 of the reply brief, 2008 WL 466089, Dellinger's not just talking about policymaker definitions of "managerial agent"; he says they have "the Amiable Nancy rule or something close to it." I'd call that a 5R Problem, and I count (at p. 19) 12 states with those. The reply brief note 5 cites five states, and the main petitioner's main brief note 7 cites three, including New Hampshire, so Fisher might be right that those are Dellinger's eight. FWIW, I think they're wrong to include Mississippi--its punitive-damages statute talks about the actions of the defendant, but that doesn't tell us whose actions should count as the corporation's. New Hampshire follows the any-agent rule for "enhanced compensatory damages." They're missing Colorado, Delaware, North Dakota, Ohio, West Virginia, and Wisconsin. But I don't think Dellinger is talking about the policymaker jurisdictions (California, Guam, Illinois, Minnesota, Nevada, and New Jersey). He cites Ultramar at footnote 6, but none of the others.

    While I'm nitpicking on the state-counting, the plaintiffs' "a slight majority of states follow the any-agent rule" bit, 2008 WL 466089, *25-*26, is wrong, the Restatement Third of Agency notwithstanding. In jurisdictions considering the issue, my article counts a 34-18 advantage for a more restrictive rule, such as the Restatement.

    I didn't do any work as a lawyer that led to any opinions on the food-chain issue, though it did come up a few times in cases that settled, and I was clerking at the Fifth Circuit when Kolstad came out. I'm involved in Exxon only as a spectator, albeit one with an unnatural amount of interest in the issue.