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Author Topic: Fossil Fuels: Degraded Democracy and Profit Over Planet Pollution  (Read 13450 times)

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AGelbert

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http://jenkinslaw.com/wp-content/uploads/2014/04/Running-Aground-in-a-Sea-of-Complex-Litigation-a-Case-Comment-on-the-Exxon-Valdez-Litigation.pdf
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JOURNAL OF ENVIRONMENTAL LAW [Vol. 18:151 
The purpose of this comment is to describe the history of the Exxon Valdez litigation and analyze whether the courts and corresponding laws are equipped to effectively handle mass environmental litigation.
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Robert Jenkins is a J.D. Candidate, UCLA School of Law, 2000; Bachelor of Journalism, University of Texas, Austin, 1997

Agelbert NOTE: Such careful language. LOL! Notice that word, "equipped".  ::) They are EQUIPPED, alright! They are EQUIPPED to be HANDMAIDENS of Fascist Government Policies. Their coercive power shows its fangs every single time, without exception, that the state, in cahoots with a large corporation, wish to "limit" the liability.

But NO SUCH care is taken when an individual, say, starts a fire by accident on corporate or public land. This brazen display of a double standard is proof that there IS NO LAW, just service for those in power. Every law, statute, code and regulation, both civil and criminal, can be litigated around in a mockery of any ethical considerations whatsoever. The system is EQUIPPED quite well to DEFEND POWER.

So, although I understand the approach of the lawyer here to look for "reparable" flaws in the system BECAUSE he is, after all, PART of that system as a licensed attorney, I can only conclude that it is extremely myopic.

That too, is part of the design of the Court system and lawyer Training logical thought train. They wish to hair split everything down to tiny, manageable pieces of "liability" which TOTALLY IGNORES the MASSIVE Mens Rea in all planning and execution of activities in the corporate world. The Court system REFUSES to ASSUME that corporations are, by definition, GUILTY until proven innocent. Corporations have a "guilty mind" because their charter DEMANDS they eschew ethics in order to attain profits.

This hair splitting plays into the hands of lawyers because they have more to argue about and thus charge more for their services and thus limit a large portion of the population to NOT BEING ABLE TO AFFORD their services. The corporations (actually, the wealthy individuals that run the corporations - the whole "limited liability" SCAM is all about legal IRRESPONSIBILITY)  HAVE the power and the money so it serves THEM well. This corrupt, self reinforcing loop of money chasing power and shafting the poor degrades democracy and accelerates total fascist tyranny over the masses.

The end result is a Court System that is INCAPABLE (by design, NOT by accident of some "overlooked" flaw) of administering justice but coats all their pro-corporate skullduggery with the color of law (look what "color of law" means to understand that statement I just made;)).

Snippet 1:
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Oil spills leave more than an environmental mess in their wake. They usually leave a mess of litigants and court dockets jammed with lawsuits filed by private and public parties, making claims for damages based upon a myriad of theories of liability.'

Snippet 2:
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.. this comment focuses almost exclusively on the litigation between the numerous plaintiffs who suffered injuries as a result of the spill and the defendant Exxon. 15 Although this paper focuses on Exxon, it is important to note that plaintiffs filed suit against other defendants who played a role in the tragedy. 16 Despite these other suits, the plaintiffs'primarily focused their efforts on Exxon.

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Snippet 3:
The analysis in Part II discusses the strategies chosen by the plaintiffs for pursuing their cases against Exxon, their goals, and the strengths and weaknesses of their choices.

Part III consists of two parts:

Section A discusses the substantive and procedural tools used by Exxon to minimize the number of plaintiffs proceeding with claims and their ultimate results;

Section B analyzes Exxon's use of settlements, particularly with the governments of Alaska and the United States to limit its liability to private parties.   

Part IV describes Exxon's numerous post-trial motions and appeals as well as allegations by plaintiffs that Exxon is using delay tactics to avoid payment.   :(  >:(

Finally, the conclusion to this paper contains a general analysis of how the court system  performed  ;D in handling this complex environmental litigation. ;)

Snippet 4:
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THE PLAINTIFFS GATHER: MAY WE BE HEARD?
The litigants ... are as varied as the species of wildlife in Prince William Sound.17

The Exxon Valdez litigation began with more than 52,000 plaintiffs and 84 law firms filing more than 200 suits in both state and federal court in the first year alone. While the army of plaintiffs
were allies against a common enemy, they also had competing interests. Specifically, the plaintiffs were in disagreement on whether to proceed as individual claimants or to implement representative litigation through class certification. Those in favor of representative litigation believed it was the most effective way to combat a deep-pocket defendant like Exxon on behalf of plaintiffs who would otherwise lack the resources to pursue their claims. The plaintiffs favoring individualism through the pursuit of their own claims argued that representative litigation would be inefficient, take longer, and would deny them their constitutional right to the counsel of their choice.19 

Exxon, for its part, argued that "certification would unnecessarily complicate the case, lead to logistical and paperwork problems, and allow for frivolous claims. "20 Exxon wanted to continue their ongoing claims-settlement program which had already paid a total of $235 million to about 10,500 claimants.2' 17. Swisher,

Agelbert NOTE: Right off the bat, we have plaintiffs approaching the COURT SYSTEM from the assumption that there is more justice for a "deep pocketed" adversary than not. This is prima facie evidence of a DYSFUNCTIONAL COURT SYSTEM.
If the Court system WAS functional, the constitutionally protected individual approach would be the obvious choice to obtain justice, rather than mass litigation.
Exxon hemmed and hawed about "frivolous" lawsuits and such because they were persuing a divide and counquer strategy through individual settlements (out of court, if possible). Exxon's legalese LIE that "certification would unnecessarily complicate the case, lead to logistical and paperwork problems, and allow for frivolous claims. " was part of it's ethics free efforts to AVOID liabiliity.
Snippet 5:

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Another reason representative litigation was the better choice for the plaintiffs in the Valdez litigation was because litigating against Exxon meant litigating against one of the world's largest corporations.43 Representative litigation enables plaintiffs to combine resources-a more effective way for individuals with limited funds to do battle against a deep-pocket defendant with seemingly limitless resources. For example, as of March 1999, Exxon spent more than $300 million in legal fees and appears willing to spend whatever it takes to litigate the matter through every possible level.44

Agelbert NOTE: More evidence that the so-called "day in court" that the Court System "guarantees" is a polite, but cruel, fiction. As above, MONEY, not justice or ethics, dictated the approach to REPRESENTATIVE (i.e. class action scattergun mass settlement). Even though Exxon made some noises about not wanting "certification" of classes for damage awards, in a mass settlement award, The CHIEF benefactor is the corporation being sued because its legal fees are much reduced AND its liability is GAURANTEED to be limited by the settlement. That is NOT justice.

And I find it absolutely insulting for an attorny to claim representative litigation is BETTER because a Corporation CANNOT BE EASILY BANKRUPTED by the "Race to the Courthouse" of many litigants. Say WHAT? So now, all of a sudden, the guilty party has to be PROTECTED if it is a large corporation, REGARDLESS of the damages? MORE PROOF of what our Court System is REALLY all about:

Quote
Representative litigation in a case of this magnitude may also have the advantage of preventing a race to the courthouse for a limited fund. Parties might fear that their interests will be impaired by other plaintiff's judgments. Exxon's company profits for the year of the spill exceeded $4 billion.45 While it is true that Exxon had tremendous economic strength, by September 1991,
252 private lawsuits were filed seeking a total of $59 billion.46

Agelbert NOTE: The counselor is concerned about all those lawsuits. Isn't that rich! Race to the Courthouse!!? Hello? You mean judges can't prioritize damages awards? You mean Courts cannot group lawsuits under one large umbrella? That's BS! I know they can! See the massive RIP OFF minuscule award to the Navajoes ($150,000) from Uranium mining.

NOW, all of a sudden, the "day in Court" for ANYONE who suffered damages that our COURT SYSTEM is SUPPOSEDLY BASED ON in order to provide JUSTICE on an INDIVIDUAL BASIS , has to take second fiddle to CONCERN for bankrupting a GUILTY AS SIN corporation or a more agile plaintiff getting all the money than the late coming, but better deserving plaintiff!!? Is this guy for REAL?

People DIED, animals DIED, nature was contaminated and people and animals are STILL suffering and dying from this but the LAWYER now claims that a REPRESNTATIVE settlement is a "Better deal" for the PLAINTIFFS (LOL!).

Soberly, he pulls out the legal FACT that punitive damages are designed to punish, not destroy. Yes that is true. That's why Exxon lawyers sought to avoid "compensatory" damages like the plague and agreed to a "punitive" damages type settlement. But our crocodile tear crying counselor does not mention that minor detail until he calls it a "victory" for Exxon further down. So this is a GAME?  ??? It's about WINNERS AND LOSERS, not Ubi jus ibi remedium?    ???

At any rate, that is an ADMISSION that, though the lawyer doesn't want to go there  ,  even though people, animals and nature were DESTROYED, the COURT SYSTEM cannot asset strip a corporation to the last penny, if need be, to provide an equitable damages award.

Quote

Even an economic giant like Exxon could be slain and bankrupted by massive litigation.  Thus, the possibility of a race for the courthouse suggests that representative litigation is a better approach for plaintiffs in environmental disasters of this magnitude To this end, the certification of a mandatory punitive damages class was also appropriate. After all, punitive damages are designed to punish and not to destroy. Courts have found that excessive damages awards can be a violation of a defendant's due process rights. These constitutional concerns could have come into play if Exxon had suffered unlimited multiple punishments.
47

Agelbert NOTE: SURE... The old "Courts have found" TRICK. Violation of the defendant's "due process rights" is code speech for limiting a corporation's LIABILITY under LEGALESE color of law. WHO, EXACTLY, decides, boys and girls, what an "excessive damages award" IS, anyway?  .

RIGHT! The JUDGE, not the jury! So this baloney about "excessive damages award threat" being a logical and practical reason to go the representative litigation route is pure sophistry. I am certain a study of the stare decisis involving "excessive damages awards" is 100% about CORPORATE defendants getting coddled by the judge while the individual plaintiff gets the shaft. "Due Process", MY ARSE! 

This ROT in or system goes back, once again , to the "limited liability" FICTION so loved by fascists the world over. So we have a logical train of thought here that claims Exxon has lots of money so it is prudent and practical to do representative litigation even though our legal system is "based on individual litigation". That is followed by the more "prudence" about individuals not having the money to go at it individually and the, really ridiculous, rationale that some individuals might have such "small" damages that they wouldn't "bother" to sue because the legal costs won't make it "worth their while".

WTF!? It's OBVIOUS that individuals in a damages lawsuit SHOULD have ALL legal costs paid by the losing party! Exxon was GUILTY from day one. The only thing to discuss was the damages, period. It should have been ASSUMED that all the plaintiffs' legal fees would be the responsibility of Exxon. But that's not how our DYSFUNCTIONAL COURT SYSTEM "works". So this lawyer is doing some "practical and prudent" pretzel logic to "justify" representative class action even though it A) will reduce the per person damages and B) the legal costs to Exxon while not helping the plaintiffs with THEIR legal costs AT ALL!   >:(

Snippet 6:

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Unlike its resistance to the certification of plaintiffs' classes for compensatory damages, Exxon pursued and supported class certification for punitive damages. Exxon scored a big victory by getting a non-opt-out mandatory class for punitive damages. Thus, there would be only one trial for punitive damages to defend and no possibility for multiple punishments. This would reduce Exxon's litigation expenses and, more importantly, limit their exposure to punitive damages.

Agelbert NOTE: So Exxon pulled the fast one on the plaintiffs by getting "punitive", rather than "compensatory" damages. See what the counselor said about "punitive" awards are to punish, not to destroy according to the law. Ethics free Exxon and its ethics free lawyers KNOW how the Court System "works". So it goes. 

To be continued:  8)
Hope deferred maketh the heart sick: but when the desire cometh, it is a tree of life. Pr. 13:12

 

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