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EXXON VALDEZ OIL SPILL (EVOS) LITIGATION UPDATE      

On Wednesday, July 1, 2009, Exxon made another partial payment to plaintiffs of the money they owe.  This time, they transferred $470 million, a partial payment on interest.  They continue to fight about $70 million in costs, and have asked the Ninth Circuit Court of Appeals to assemble a larger panel "en banc" to hear the matter.
        
Some of the $470 million has to be transferred to the Chugach Native Corporations and some will be reserved for costs, and the pendency of the Cook Inlet/Nautilus appeal with the Ninth Circuit. But the EQSF is now working with lead counsel and the Plaintiffs' Allocation Committee to develop a plan to move as much of the money - expected to be about $410 million passing through the plan of allocation - to claimants.  Within the next two weeks, lead counsel expects to file the first in a series of applications with Judge Holland to distribute punitive damages interest.  The first of these applications is expected to be for claimants who do not have an encumbrance on their claim which should amount to more than half of the $410 million available to be distributed.
        
Actual distributions on the first application will not begin until after Judge Holland has approved the application and the 30 day time period for appeals has passed without objection.  Thus, distributions should not be expected until sometime around mid-October.
        
In addition, the EQSF Administrator has advised us that more than 2500 punitive damages checks already issued by the EQSF to claimants and lien holders remain un-cashed.  The Administrator urges all recipients of such checks to negotiate them, immediately, to avoid having a bank refuse to honor them as stale.

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MSNBC: Oil plagues sound 20 years after Exxon Valdez
Future risk assessments must look at longer impacts, recovery council says
msnbc.com
updated 12:18 a.m. AKT, Tues., March. 24, 2009

Twenty years after the Exxon Valdez spilled 11 million gallons of crude oil in Alaska's Prince William Sound, oil persists in the region and, in some places, "is nearly as toxic as it was the first few weeks after the spill," according to the council overseeing restoration efforts.

"This Exxon Valdez oil is decreasing at a rate of 0-4 percent per year," the Exxon Valdez Oil Spill Trustee Council stated in a report marking Tuesday's 20th anniversary of the worst oil spill in U.S. waters. "At this rate, the remaining oil will take decades and possibly centuries to disappear entirely."

Read More:  http://www.msnbc.msn.com/id/29838444/

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Plaintiffs' counsel in the Exxon Valdez Litigation announced today that the process of distributing punitive damages money to claimants who have no outstanding liens in 13 claim categories (oiled fisheries, Native subsistence , and the Prince William Sound Fund) consistent with the Judge Russell Holand's November 24 order is now underway, and should be completed by mid-December. "Barring some unforseen event," we intend to complete this distribution round by December 15," said Lynn Sarko, Exxon Qualified Settlement Fund Administrator. The Fund is the legal entity that is charged with distributing monies from the Exxon Valdez oil spill litigation to claimants.

For those claimants who have already signed up to receive funds by direct bank deposit, the next round of payments are expected to be made on or about Friday, December 5. For those who will receive distributions by check, they should be mailed no later than Monday, December 15.

Though the cutoff date has passed for claimants to request "direct deposit" for the current round of distributions, plaintiffs' counsel encourage all claimants to request direct deposit for future rounds as it results in quicker payments, and is less costly. About one quarter of the claimants have already applied to participate in the direct deposit program. "Claimants who are listed in our October 31 application to Judge Holland now have an accurate estimate of the amount they will soon receive, and will be able to do appropriate year end financial and tax planning," said Sarko. Because Judge Holland has authorized a attorney fee of 22.4% , claimants should receive 77.6% of the gross amounts that are listed in court documents. The documents listing the gross distribution amounts for each claimant can be viewed on the Anchorage Daily News web site, and on the EVOS web site, www.exspill.com. Thus, someone whose claim is listed at $10,000 should expect a check for $7,760.

Efforts will be made in early 2009 to distribute punitive damages money to claimants in the 13 categories who have active liens, and to claimants in the remaining 39 claim categories. "We tried to distribute as much money as possible to the largest number of claimants in 2008," said Sarko. "We are very pleased that Judge Holland has authorized us to begin the punitive damage distributions. We understand that many claimants are in desperate need of these funds in these difficult economic times."

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From Table of Contents of Exxon's Petition:

I. The Court Should Grant Certiorari to Resolve the Conflict in the Circuits on Whether Maritime Law Permits Vicarious Punitive Damages. page 11

II. The Court Should Grant Certiorari to Resolve the Conflict in the Circuits on Whether Maritime Law Permits Judge-Made Remedies When Congress Has Not Authorized Them in Applicable Statutes. page 15

III. The Court Should Grant Certiorari to Remedy Confusion in the Lower Courts and Make Clear the Permissible Size of Punitive Damage Awards under Maritime Law and under the Due Process Clause. page 21

A. Maritime Law page 21
B. Due Process. page 27 (petition not granted for part B)

EXXON's Appeal to the Supreme Court

http://www.adn.com/static/includes/news/exxonpetition.pdf
The Court will hear Exxon's petition as to the following issues:

1. Whether Exxon can be liable for its drunk captain absent a showing that Exxon "directed, countenanced or participated in the conduct...."

2. Is Exxon's punitive liability limited to the penalties contained in the Clean Water Act ? (This is Exxon's argument that $ 25,000,000 is right and $ 40,000,000 is too much):

3. Is $ 2.5Billion within the limits allowed by federal maritime law?
The Court elected not to hear any arguments about whether, even if maritime law allowed the penalty, it is permitted under Constitutional due process.

Submitted for publication on this website by ORA Board member Chuck McCallum

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Thank You to the communities and organizations who contributed to the success of the reopener claim. Both the State and U.S. Attorneys General have requested further investigation and reparation from Exxon.

On December 22, 2006, the United States Court of Appeals for the Ninth Circuit issued its decision on Exxon's most recent appeal. District Court Judge H. Russel Holland had concluded that a punitive damages award of $4.5 billion was consistent with the due process clause of the United States Constitution. But the Ninth Circuit reduced that award to $2.5 billion, saying that number was the outer limit of what the Constitution allowed. The circuit's opinion was authored by Fairbanks, Alaska Judge Andrew Kleinfeld and the Circuit's Chief Judge, Mary Schroeder, of Phoenix. There was a dissenting opinion from Judge James Browning, of San Francisco, who concluded that the Constitution would allow the jury's original $5 billion award.

Exxon has now asked a larger group of Ninth Circuit judges to hear the case, a process called asking for "en banc" consideration. The panel solicited plaintiffs' response to Exxon's request, which was filed on March 2. We expect to hear from the circuit this spring as to whether en banc consideration will be granted. Plaintiffs' lawyers do not yet know whether the court will do so. Assuming the Ninth Circuit decides not to hear the case further, Exxon will have 90 days from the date the court says it is not going to hear an en banc petition to ask the United States Supreme Court to hear the case, a process called filing a "petition for certiorari." Plaintiffs will have 30 days to respond to any such petition.

With interest the $2.5 billion judgment, if it stands, is currently close to $4.5 billion. It is expected that over $3 billion will be available for distribution to claimants covered by the plan of allocation, after reductions for fees, after reductions for the "Seattle Seven" settlement, and after distributions for certain plaintiffs who receive a distribution outside the plan of allocation.

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A community-based foundation...

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The Oiled Regions of Alaska Foundation was formed to help southcentral Alaska towns and villages. We receive and distribute donated funds for charitable purposes that benefit communities and regions that were directly impacted by the Exxon Valdez oil spill of March 1989.