Transcript

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner v. INEZ PREECE CAMPBELL AND MATTHEW C. BARNECK, SPECIAL ADMINISTRATOR AND PERSONAL REPRESENTATIVE OF THE ESTATE OF CURTIS B. CAMPBELL.

No. 01-1289

December 11, 2002, Wednesday, Washington, D.C.

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:04 a.m.

PROCEEDINGS

(11:04 a.m.)

JUSTICE STEVENS: We'll hear argument in Number 01-1289, State Farm Mutual v. Campbell and others.

Ms. Birnbaum, you may proceed whenever you're ready.

ORAL ARGUMENT OF SHEILA L. BIRNBAUM ON BEHALF OF THE PETITIONERS

SHEILA L BIRNBAUM: Thank you, Justice Stevens, and may it please the Court.

This case arose from a single failure by State Farm to settle a third party automobile case in the State of Utah within the policy limits of its insured in Utah.

There was evidence in the record, uncontroverted evidence, that this was the only case in the State of Utah where a policyholder of State Farm had been subject to potentially a threat of execution on a judgment.

All of the other judgments that were in excess of policy limits, which there were seven of in the State of Utah over a 14-year period, including both before and after Mr. Campbell's case--

JUSTICE STEVENS: Ms. Birnbaum, may I ask you a question about the record?

SHEILA L BIRNBAUM: --Yes, Your Honor.

JUSTICE STEVENS: As I understand the other side, what is at issue is a policy that your company had over the years, I forget the name of it, BP and something or other, and I looked for that policy in the record, and I couldn't find it.

Is it in the record?

Is there a written--

SHEILA L BIRNBAUM: It's in the lodging, Your Honor.

JUSTICE STEVENS: --It's a lodging?

SHEILA L BIRNBAUM: It's at 1506 to 1531 in the lodging, and if you look at the B, so-called PP&R... it's called the Performance Planning and Review Manual... it is a guide.

It is a personnel evaluation guide on how to evaluate personnel, and it applies to all, all the personnel of State Farm, all thousands of personnel, and what the plaintiff did was to cherry-pick from this long manual which is in the lodging, as I said, one or two points that didn't even apply to claims adjustors or claims representatives, but to supervisors, to try to create this pervasive nationwide scheme that there was an attempt by State Farm over 20 years to lessen the claims that they were paying and not pay the fair value of claims.

JUSTICE GINSBURG: Nonetheless, if the jury found such a policy, that there was a policy as alleged by the plaintiff, that's not... we have to take that as a given, don't we, Ms. Birnbaum?

SHEILA L BIRNBAUM: You may have to take that as a given, Your Honor, but the question becomes, how is that policy related in any way to this decision to try a case in the State of Utah, and how can State Farm be punished for its nationwide conduct, when all this case was about, and should have been about--

JUSTICE KENNEDY: Do you say the evidence of conduct in other jurisdictions should have been excluded, it was inadmissible?

SHEILA L BIRNBAUM: --Your Honor, some evidence could have come in under this Court's determination in BMW to show reprehensibility, but evidence that could have come in to show reprehensibility had to be comparable to the conduct that was at stake here.

JUSTICE SOUTER: Well, what do you say to the argument on the other side that the instances of conduct involving facts having nothing to do with settlement within policy limits, all came in, in effect as rebuttal, as admissible rebuttal evidence in response to issues that State Farm raised?

SHEILA L BIRNBAUM: Your Honor, the record is replete in our opening brief.

We cite to the many times all of this evidence came in on direct, of the plaintiff's experts and the plaintiff's so-called fact experts.

That's a makeshift argument.

This didn't just come in.

This was a 2 and month trial on... and most of that trial was geared to this nationwide scheme.

And more importantly, if you look at what the Utah Supreme Court said in reinstating this incredibly excessive verdict, 145 to 1, when you look at that, it is very clear that the Utah Supreme Court was looking at a national scheme.

JUSTICE SOUTER: Well, yes, that may be.

I mean, I think there's no question it was looking at a national scheme.

The question is whether our gripe, or your gripe is with the Utah Supreme Court or with the case as it was tried, and I take it your answer to my question is, there was evidence going to practices having nothing to do with settlement within policy limits that did come in without any relationship to rebuttal at all.

SHEILA L BIRNBAUM: That's exactly right, Your Honor.

JUSTICE SOUTER: Okay.

SHEILA L BIRNBAUM: And it's all cited in our brief, in our opening brief, many, many times.

JUSTICE SCALIA: And why doesn't--

JUSTICE O'CONNOR: --And were objections made each time?

SHEILA L BIRNBAUM: Your Honor, there was not, because that wasn't necessary in the State of Utah.

If a litigant objects in limine to the introduction of this evidence, which was done--

JUSTICE O'CONNOR: That was done.

SHEILA L BIRNBAUM: --That was many times done, and Your Honor, when this court came down with the case of BMW v. Gore, there was an oral argument made that that kind of evidence was unconstitutional under Gore, because it was dissimilar and extraterritorial.

JUSTICE SCALIA: Ms. Birnbaum, why doesn't it go to reprehensibility if it were true that this failure to settle claims that were quite valid was simply part of a nationwide pattern to pay out less than was due, not just in this context but in every context?

Why doesn't that go to reprehensibility?

SHEILA L BIRNBAUM: Because, Your Honor, if we are... if we permit litigants to create this overriding scheme that you are engaged in fraud in all your business practices, and that you can be punished for that, it is as if in Gore--

JUSTICE KENNEDY: Well, I think it does go to reprehensibility if we're giving some kind of an ethical report card to State Farm.

SHEILA L BIRNBAUM: --Your Honor--

JUSTICE KENNEDY: It does not go to reprehensibility, I would think would be your point, as to the harm suffered by this plaintiff.

SHEILA L BIRNBAUM: --Absolutely.

JUSTICE KENNEDY: And that seems to me the difference.

SHEILA L BIRNBAUM: Absolutely.

Your Honor--

JUSTICE SCALIA: You say it would go to reprehensibility, and it would go to the harm suffered by this plaintiff, if they introduced evidence of doing the same thing to other plaintiffs in other States, the same thing to other plaintiffs.

How does that go to the harm to this plaintiff?

SHEILA L BIRNBAUM: --Well, Your Honor--

JUSTICE SCALIA: You know, I don't understand how you can possibly say you cannot introduce evidence from other States, and at the same time say, unless it's introduced to show reprehensibility.

Once you say you're allowed to introduce it for reprehensibility, I don't know why all of this doesn't go to show that State Farm is more reprehensible.

SHEILA L BIRNBAUM: --Your Honor, because in Gore v. BMW this Court, the majority of this Court held that you can introduce on the reprehensibility question similar conduct that compares to the conduct that occurred to the particular plaintiff in the underlying case.

JUSTICE KENNEDY: Of course, that's all that was offered in Gore, of course.

SHEILA L BIRNBAUM: But that... but Your Honor, it would be like--

JUSTICE KENNEDY: So we didn't really have to reach your question in that case.

SHEILA L BIRNBAUM: --Your Honor, but it would be like in Gore saying that there was a plan to maximize profits, and that not only could you introduce and consider the repair issues that occurred in Gore, but you could also show that there was discrimination against minority customers, that there was--

JUSTICE BREYER: But the answer is that all that does go to reprehensibility.

It does.

A person who commits this conduct and is part of a company that engages in all kinds of bad action is a person who is somewhat more reprehensible than if you worked for a company that doesn't engage in all this bad action, but I thought your point was that that's true, but unless you draw a line like the line that was drawn in Gore, you are inviting a jury to punish the company for all kinds of things that truly do make them more reprehensible, but without standards, without a legislature telling them how reprehensible, et cetera.

SHEILA L BIRNBAUM: --I couldn't have said it any better, Your Honor.

[Laughter]

JUSTICE SCALIA: Well then, maybe... maybe you can tell me how one defines reprehensibility so that it only includes what you call the same acts.

Maybe you can tell me.

That's what gives me the trauma, and you say not different acts.

What is different acts?

It has to be something--

SHEILA L BIRNBAUM: Well, I think--

JUSTICE SCALIA: --other than a policyholder who... you know, who passed five, six cars on the highway?

SHEILA L BIRNBAUM: --No.

No, you have--

JUSTICE SCALIA: Why isn't cheating all policyholders in all contexts, paying less than they're entitled to, why isn't that similar to what happened here?

SHEILA L BIRNBAUM: --Because it had nothing to do with what happened here, and I'd like to explain to you.

Maybe it's a little... but what happens in third party and first party cases, in this particular case there was a decision to go to trial.

Why was that decision made to go to trial?

Because at least the lawyers for State Farm in some of the claims represented felt this was a no liability case.

Mr. and Mrs. Campbell said that they were not liable, that they didn't cause this accident.

This wasn't a no-brainer.

There was evidence.

The jury decided on other evidence.

But when you bring into this equation 20 years of conduct that, some of it that is lawful, this wasn't only fraudulent conduct.

This jury heard and was instructed... not instructed, but in the summation there was references to the payment of non-OEM, the specification of non-OEM parts, was perfectly legal in almost every jurisdiction.

JUSTICE KENNEDY: How would you formulate the standard that you want us to adopt, the standard which confines the reprehensibility evidence to what you deem to be appropriate in a case such as this?

SHEILA L BIRNBAUM: I think--

JUSTICE KENNEDY: What rule do we have?

SHEILA L BIRNBAUM: --I think, Your Honor, the proper reprehensibility inquiry is limited to an examination of a defendant's specific misconduct toward the plaintiff and similar conduct by the defendant toward others, but it has to be similar.

This was not similar conduct requiring--

JUSTICE GINSBURG: And here you're not drawing a line... one of the lines was similar conduct and in the same State, but in the automobile, automobiles, we're a very mobile society, so I don't think... well, perhaps you are, but you said this is, we draw a line around Utah, but suppose the driver who was insured by State Farm was from California, or from New York, where you get more than seven incidents out of 14 years?

SHEILA L BIRNBAUM: --But the question here was, was there a bad faith failure to settle?

That is the conduct.

If there was evidence of bad faith failure to settle in other States, that could come in on reprehensibility.

That could inform the jury in some way, and under BMW v. Gore, you said that that kind of conduct, similar conduct in BMW was identical conduct.

JUSTICE KENNEDY: Well then, then you have no concern with punishing for acts that took place out of State?

SHEILA L BIRNBAUM: No, I--

JUSTICE KENNEDY: You're abandoning that, or--

SHEILA L BIRNBAUM: --We have not gotten to the ratio of the comparable penalties questions under BMW.

We were just focusing on reprehensibility.

JUSTICE SCALIA: --What is similar conduct in BMW, to give some feel for what you mean by similar conduct?

SHEILA L BIRNBAUM: Exactly what the Court--

JUSTICE SCALIA: Selling cars with scratches on them, or is it selling... what about, you sell cars with defective, knowingly, with defective clutches?

Would that be similar?

SHEILA L BIRNBAUM: --No, it would not.

JUSTICE SCALIA: It would... it has to be cars with scratches, it has to be the same thing?

SHEILA L BIRNBAUM: It's the conduct--

JUSTICE SCALIA: Wow.

SHEILA L BIRNBAUM: --It was the conduct that occurred in that case.

In that case there was a failure to tell consumers--

JUSTICE SCALIA: The car had a scratch.

SHEILA L BIRNBAUM: --that the car had a--

JUSTICE SCALIA: So the only cases that are relevant are other cases where BMW pawned off cars that had scratches?

It could pawn off all sorts of other defects, but not scratches?

SHEILA L BIRNBAUM: --If you open it up to all kinds of other defects, then you're opening it up--

JUSTICE SCALIA: You lose, right.

SHEILA L BIRNBAUM: --You're opening it up--

[Laughter]

--to the kind of thing that can happen here, especially if it gets punished.

In this case there was a million dollars' worth of compensatory damages, a substantial number, and this verdict was 145 times that.

That could only be considered because it was punishing all of this extraterritorial, dissimilar, and in many instances, lawful conduct.

JUSTICE GINSBURG: I thought we had just gotten off the extraterritorial... where you said it wouldn't make any difference if the insured was from California or from Utah.

SHEILA L BIRNBAUM: That's exactly right, Your Honor.

The really important thing here is that the Utah Supreme Court--

JUSTICE KENNEDY: Excuse me.

I don't understand where we are on the out of State.

You say you're going to get to that under another--

SHEILA L BIRNBAUM: --Yes.

JUSTICE KENNEDY: --prong?

SHEILA L BIRNBAUM: Under ratio and comparable penalties, Your Honor.

Because this Court has said that you could introduce extraterritorial conduct, similar, past conduct with regard to reprehensibility, but there are three guideposts in Gore, and the Utah Supreme Court ignored the other two guideposts.

Of course, when it came to the ratio guidepost, this Court has repeatedly said there has to be a reasonable relationship, reasonable ratio between the penalty, the punishment, and the harm to the plaintiff: not the harm to others, not the harm to the community at large, not the harm to all of the consumers that dealt with State Farm, as the Utah Supreme Court held and found, and--

JUSTICE O'CONNOR: So how do we measure that?

How do we measure the ratio, the reasonable relationship of the penalty?

SHEILA L BIRNBAUM: --Here, Your Honor, there was a compensatory damage award of a million dollars.

That was a substantial compensatory award.

The ratio that would be reasonable with regard to a million dollars could not be 145 to 1.

JUSTICE SCALIA: Except that, you know, we say that you can't take into account harm to others, but you can take into account harm to others so long as that is done under the rubric of reprehensibility.

SHEILA L BIRNBAUM: As long--

JUSTICE SCALIA: If you've done the same thing to other people, you can be punished more.

Now, you may find a significant difference between punishing you for what you did to the other people, and punishing you more for what you did to this person, because it is rendered more reprehensible because of what you did to other people, but I don't see a whole lot of difference between the two.

SHEILA L BIRNBAUM: --But even if there is a ratio, what reprehensibility does is put you on the continuum of blameworthiness, and this Court has said previously that 4 to 1 is close to the line.

In TXO it permitted 10 to 1 because economic damages was small, and you looked at potential harm as well as the realized harm to the litigant there.

Here, he had substantial compensatory damages.

In addition, if you look at the third guidepost in Gore, you have comparable penalties and sanctions for comparable conduct.

That's how that is defined.

What was the conduct here?

It was a failure to settle within policy limits.

It wasn't intentional tort ; it was--

JUSTICE STEVENS: May I just suggest an analogy?

This, in a way this reminds me of the argument we heard last week... maybe it was last session... about the three strikes law in California ; that you're not necessarily punished for the other things you did, but you can take into account your prior crimes even in other States in order to justify a more severe penalty for what you've done here.

And isn't it... part of the argument the other side makes is that this is a very large company, and the board of directors doesn't hear about a [dollar] 100 million punitive damage award down in Texas, and therefore you've got to at least give them enough money so the board of directors will know they ought to take corrective steps.

SHEILA L BIRNBAUM: --Could I just first answer this [dollar] 100 million punitive damage award, because I think that really shows where the Utah Supreme Court is going.

There was no judgment.

This had nothing to do with bad faith failure to settle.

It had to do with an uninsured motorist coverage.

The case was settled for pennies on the dollar.

There was no--

JUSTICE KENNEDY: 99 cents?

Unidentified Justice: [Laughter]

SHEILA L BIRNBAUM: --Pennies.

Pennies.

Unfortunately I couldn't put into evidence the amount because there as a confidentiality agreement, but that case had nothing to do with the kind of conduct here.

You cannot--

JUSTICE KENNEDY: No, but I suppose to the extent it's relevant it is, that you need an awfully big award against an awfully big company, because you want the company itself to take corrective steps, and if this [dollar] 100 million award isn't even called to the attention of the board of directors, maybe that says you needed a larger award than would otherwise be justified.

SHEILA L BIRNBAUM: --Your Honor, I think if you look at this, this was a jury award that was never made into a judgment.

Why would anybody... it was settled.

It was a runaway verdict in a place.

Why would anybody go to the board of directors with something like that?

JUSTICE SOUTER: Okay, let's assume the [dollar] 100 million had never happened.

SHEILA L BIRNBAUM: Okay.

JUSTICE SOUTER: The argument as made is, this is a company with a surplus in, literally measured in the billions.

You've got to have a really big judgment to get their attention.

What's your response?

SHEILA L BIRNBAUM: The answer to that is, first of all, surplus was the wrong number to ever focus on.

That money is accounted for, and there are some very good briefs, amicus briefs that talk about surplus.

There was never a profit from underwriting in this particular instance, and the fact that the company has surpluses, that's to pay out claims.

JUSTICE BREYER: That's just saying how rich they are.

I mean, the question... whether they're rich or not, they seem quite rich, but maybe they're not, but the harm here was what?

That is he had a [dollar] 50,000 policy.

SHEILA L BIRNBAUM: Yes.

JUSTICE BREYER: And he for a period of time the client thought that he'd have to pay [dollar] 136,000 out of his own pocket, for how long a period of time?

SHEILA L BIRNBAUM: There is a question in the record.

The trial court said that it was for a short period of time.

The Utah Supreme Court said it was for 18 months.

JUSTICE BREYER: All right, so for 18 months he's frightened that he'll have to pay [dollar] 136,000 out of his own pocket, all right.

Now, because of that fright, he was given a million dollars in compensation and another [dollar] 145 million... I don't know, how much went to him?

How much went to the lawyers?

SHEILA L BIRNBAUM: Well, Your Honor, there would be 40 percent that would go to the lawyers--

JUSTICE BREYER: So--

SHEILA L BIRNBAUM: --and under the agreement the--

JUSTICE BREYER: --[dollar] 56 million goes to the lawyers.

SHEILA L BIRNBAUM: --Right.

JUSTICE BREYER: And how much went to him?

How much went to him?

SHEILA L BIRNBAUM: 10 percent of the award was--

JUSTICE BREYER: All right, so [dollar] 14 million went to him, and where did the rest go?

SHEILA L BIRNBAUM: --It went to the two other plaintiffs in the original case.

JUSTICE BREYER: Okay.

Now, that's all necessary for the follow... or at least not necessary, reasonable for the following reason.

This is a very big company, and unless you really make them pay they might do this again, or if not this, something equally bad, okay?

Now, what's your response?

SHEILA L BIRNBAUM: The response to that, Your Honor, is there's nothing in this record... first of all, that kind of ratio is totally unreasonable and out of proportion to the harm to the plaintiff.

JUSTICE BREYER: That's not my question.

My question is, there is a claim.

Even if it's out of proportion to the harm, we've got to wake these people up at State Farm.

Now, they get wakened up by this 145 million judgment, believe me, and--

SHEILA L BIRNBAUM: Yes.

There's no question of that.

JUSTICE BREYER: --All right.

Now... all right.

Now, what's your response to that, that's a very desirable and necessary thing, or they might do it again?

SHEILA L BIRNBAUM: It's not a necessary thing on this record, it is not a desirable thing.

There was no--

JUSTICE BREYER: Because?

SHEILA L BIRNBAUM: --There was no evidence in this record that there was any other case in which there had been a failure to settle within policy limits that jeopardized an insuree--

JUSTICE BREYER: All right, suppose there had been 10 cases in which 10 other people were frightened of having to pay [dollar] 136,000 for a period of 18 months.

Then, in your opinion, would it have been justified to enter this judgment of [dollar] 145 million to wake them up?

Indeed, at 4 month intervals they kept doing this over and over.

SHEILA L BIRNBAUM: --Your Honor, if that happened, then each one of those plaintiffs could have a bad faith failure to settle claim in which they could have gotten punitive damages in their own States.

There is no... this whole concept that this is a clandestine scheme, every--

JUSTICE SCALIA: Maybe no amount of money will suffice.

Maybe we have to send them to jail.

SHEILA L BIRNBAUM: --Well, that's what--

[Laughter]

That's what the Supreme Court of Utah said, even though it's not in their statute.

Can you imagine, on fair notice, when we talked about fair notice, that you could go to jail for a failure to settle one case in the State of Utah?

JUSTICE KENNEDY: Did this jury--

JUSTICE SCALIA: --It didn't have authority to send them to jail though, did it?

SHEILA L BIRNBAUM: No, they didn't.

JUSTICE SOUTER: You know, but you're making... I think you're making two arguments.

First, you're making the argument that you started with, and that is, evidence was improperly admitted, acts in other States were improperly considered, acts unlike failure to settle were improperly considered.

Let's assume, for the sake of argument, that you lose... I mean, if you win on that, I presume we're not going to get to the point you're arguing now.

Let's assume you lose on that.

You get to the point that you're arguing now and you say, okay, 4 times the amount of actual damage would be okay, 145 is not.

What do we put in an opinion to indicate what is the proper point in between 4 and 145?

SHEILA L BIRNBAUM: I think you've already put that in your opinions in this Court already, and that is that there has to be a relationship between the amount of the punitive damages and the compensatory harm to the plaintiff.

JUSTICE SOUTER: Yes, I know that, and the question is, is 4 times the relationship appropriate, and 145 is not?

And how about 80, and 60, and 20?

How do we grapple with that?

SHEILA L BIRNBAUM: Well, I think you grapple with that only by looking at the three guideposts that you've already put forth, and it could be 4, it could be 5, and some courts have even held 10, but most of the courts that have followed your jurisprudence have held that 3, or 4, or 5 is close to the line.

JUSTICE SOUTER: Is the point of your argument ultimately... you're not saying this, but I mean, if we accept the way you're going, are we really going down the road to saying, look, at some point we've got to leave this in a less protean state, and we've got to pick a number, and is that our business to do?

SHEILA L BIRNBAUM: Now, we're not asking you to put a bright line.

It would be helpful, but I don't think this Court is prepared to do that.

JUSTICE KENNEDY: Well, would the bright line be helpful if we said, up to... pick a number... 10 times will be usually accepted unless that is not adequate enough to compensate the plaintiff for the wrong that was done to him?

SHEILA L BIRNBAUM: That would be an excellent way of drawing the line, Your Honor.

JUSTICE SCALIA: You get this out of what provision of our Bill of Rights?

SHEILA L BIRNBAUM: Your Honor, we get it out of due process, the two bedrock provisions called due process and federalism.

Federalism, comity, States' rights.

JUSTICE GINSBURG: But as far as--

JUSTICE SCALIA: --It's not specific, is it?

10 times is what it says.

SHEILA L BIRNBAUM: No, we're not suggesting that.

I thought it was a good idea, however.

[Laughter]

JUSTICE GINSBURG: Ms. Birnbaum, I'd like you to clarify your position on what has been called extraterritoriality--

SHEILA L BIRNBAUM: Yes, Your Honor.

JUSTICE GINSBURG: --because I thought today that you were very forthright with the Court.

You said no, you're not going to make a distinction whether the plaintiff comes from California or New York rather than Utah.

SHEILA L BIRNBAUM: Right.

JUSTICE GINSBURG: So you can't just draw a line around the State of Utah and say, that's the relevant State.

But you tell us a supplemental brief was calling attention to a case where there was a specific request to make that kind of charge.

You made no such, State Farm made no such request in this case, as far as I can tell.

SHEILA L BIRNBAUM: Yes, they did, Your Honor.

JUSTICE GINSBURG: Yes?

Where?

SHEILA L BIRNBAUM: Well, it might not have been totally the same that--

JUSTICE GINSBURG: Which one?

SHEILA L BIRNBAUM: --It's in the lodging at 394.

It was instruction number 46.

JUSTICE GINSBURG: Yes, and instruction number 46, which I looked for, was the closest thing.

SHEILA L BIRNBAUM: That's right--

JUSTICE GINSBURG: That talks about both compensatory and punitive damages, that you should base it on State Farm's conduct in handling of the case against Curtis Campbell.

SHEILA L BIRNBAUM: --Right.

JUSTICE GINSBURG: Only.

SHEILA L BIRNBAUM: Right.

JUSTICE GINSBURG: Now, that's not even saying other people within Utah.

So that's... and it's alike for compensatory and punitive.

That is nothing like the charge that said, look in the State of Nevada.

But I just wanted to make sure that you are saying, you don't look only to Utah, because this particular plaintiff happened to come to Utah.

It would be the same thing if the plaintiff came from California.

SHEILA L BIRNBAUM: Absolutely, Your Honor.

Let me just mention one other part of the guideposts which I think are very relevant here, and that is comparable penalties for comparable misconduct, and here it is uncontroverted that the penalty that the Utah courts or the Utah system could have placed on State Farm for an act, for a single act of bad faith failure to settle, which was at stake here, was [dollar] 10,000.

Yet when the Utah Supreme Court examined that guidepost from the Court, it looked at the scheme.

It looked at all of the nationwide conduct to determine that 1) you could be... you would have to disgorge all your profits or you could be imprisoned, which was not correct anyhow under the Utah statute.

But if you restate the guideposts that you have already come down with, and you make it clear that we're talking about conduct that was permitted to the plaintiffs, that we're talking about reasonable ratios that had to do with the plaintiff's wrong, not harm to others, not harm to all of those in Utah... in fact, if you look at the bad faith failure to settle issue, there was no one in the State of Utah that was harmed by that kind of conduct.

There was nobody that was even subject, Justice Breyer, for a short time with execution, and that... and there was no reason, there was no reason to deter that kind of conduct because there was no conduct in the future, after the Campbell case, that that even came close to.

So I think that if you focus on those factors, those guideposts that you elucidated to in Gore, and make them stronger, that would be sufficient for the lower courts to do their job in doing a meaningful... meaningful appellate review, not the kind of review here that was based on questionable conclusions and improper predicates.

Thank you.

JUSTICE STEVENS: Thank you, Ms. Birnbaum.

Mr. Tribe, we'll hear from you.

ORAL ARGUMENT OF LAURENCE H. TRIBE ON BEHALF OF THE RESPONDENT

LAURENCE H TRIBE: Justice Stevens, and may it please the Court.

I think I might begin by saying that I barely recognize the case that, though I didn't try, I read the transcript in, from hearing Ms. Birnbaum's description.

She says that the conduct involved in this case was simply the failure to settle.

It wasn't, she says, even an intentional tort.

Well, the Court's--

JUSTICE KENNEDY: Well, that was the sole ground of liability, was it not?

LAURENCE H TRIBE: --The sole ground of original liability was objectively unreasonable failure to settle, but phase 2, which was held at the insistence of plaintiffs, who wanted... of the defendants who wanted to bifurcate, phase 2 focused on the question of whether there was an intentional tort, and there was found to be fraud ; and the court, the trial court affirmed the judgment partly on the ground of intentional fraud ; and the fraud, and it's not a surprise really to the lawyers for the defendants, because they made it clear in their opening statement that they understood the whole theory of this case to be that the insurance policies that were being sold by State Farm, which led people to think that in first and in third party cases the claims adjuster would try to do a reasonably objective job of satisfying the claim if possible, in fact weren't bad at all.

There was a clandestine cap that was imposed by this innocuous-looking bureaucratic PP&R program that was thoroughly documented and that was imposed from headquarters, documented elaborately by hundreds of examples ; and it's true, some of them came from other States, and I will get to that ; but they were all just illustrative, because it came from headquarters in Bloomington, and it was a directive--

JUSTICE BREYER: I take it the policy is, pay as little as possible, even if fraud is necessary?

LAURENCE H TRIBE: --And, in fact, it was necessary here.

That is, they made up things.

They doctored the file.

JUSTICE BREYER: All right, I see that, but what's--

LAURENCE H TRIBE: They made up the fact that... they defamed this dead person and said that he was speeding to meet a pregnant girlfriend, who didn't exist.

There were findings that they systematically shredded, and destroyed, and fabricated documents for two decades in order to cover up the fact that they were not selling what they were pretending to sell.

And it was found in this case clearly, and then again de novo by the Utah Supreme Court, that this policy, which was clandestine and then covered up, was a policy that had persisted for two decades, which they even now seem unwilling to acknowledge.

JUSTICE STEVENS: --Can I interrupt with a question?

LAURENCE H TRIBE: Sure.

JUSTICE STEVENS: I'm sure you're going to get to it, but one can infer... maybe it's not entirely clear... that all of this was established, and there are very, very many, many bad, bad deeds done in all parts of the United States, but that the [dollar] 145 million is in large part punishment for what was done outside of Utah.

LAURENCE H TRIBE: Oh, I don't think so, Justice Stevens.

I do plan to get to that.

JUSTICE STEVENS: The second point that relates to that is that when the Supreme Court of Utah made the comparison to what the criminal penalty might have been, they had to be referring to more than what could have been imposed in Utah.

LAURENCE H TRIBE: No, Justice Stevens, what they said was this.

They referred among other things to the Utah Unfair Claims Practices Act, which said [dollar] 10,000 fine per violation ; and there were in their view thousands of individual instances of wrongfully denied benefits.

JUSTICE STEVENS: In Utah?

LAURENCE H TRIBE: In Utah, yes, because they didn't draw this fancy distinction between first and third party claims that is being drawn for the convenience of State Farm.

The wrong is not--

JUSTICE KENNEDY: That's the basis of the underlying tort, which was the failure... which was the excess.

LAURENCE H TRIBE: --That was the example--

JUSTICE KENNEDY: Which was the excess.

LAURENCE H TRIBE: --Justice Kennedy.

That was the tip of the iceberg.

Justice Kennedy, this is very important.

In this particular case, it was the failure to settle a case, and it was a fraudulent failure to settle a case, not just a random accident, but it was pursuant to exactly the same policy, capping the average amount that a given claims agents puts out in terms of State Farm money, that is used in these other instances.

It was exactly the same policy.

In this case, it was because this fellow named Bill Brown wanted to move to Colorado, and because he did, and because he was close to his quota, and this is all in the record, and it is found... and it's not disputed any longer.

Because he wanted to move to Colorado, he puts pressure on somebody underneath him to make sure that that year's numbers look better.

JUSTICE BREYER: Of course, companies would have a policy of trying to make as much money as possible.

LAURENCE H TRIBE: It's not just making as much money--

JUSTICE BREYER: Well, some companies could add--

LAURENCE H TRIBE: --it's stealing.

JUSTICE BREYER: --could add to that, by the way, one way we make money is, we pay out as little as possible and we charge as much as possible.

I remember an airline that had the policy, charge the customer the highest price he will pay for the service that he wants, all right?

LAURENCE H TRIBE: But Justice Breyer--

JUSTICE BREYER: There could be such a policy.

LAURENCE H TRIBE: --Right--

JUSTICE BREYER: Now--

LAURENCE H TRIBE: --and if the policy is sell him a ticket and then turn him away at the door--

JUSTICE BREYER: --Oh, no, no, but by the way--

LAURENCE H TRIBE: --pretending to sell him a place--

JUSTICE BREYER: --it might be that such a policy would even condone doing a lot of bad things to do that, and what's worrying me about permitting that kind of policy to serve as a justification for a [dollar] 145 million judgment is precisely what I wrote in my concurrence in the BMW case, that the Constitution, indeed the Magna Carta says that you should not take life, liberty, or property without law ; and to take 12 people, call them a jury, selected at random, and tell them that they are free to go through the business practices of a company--

LAURENCE H TRIBE: --Justice Breyer--

JUSTICE BREYER: --to unite them under the name of a policy and then assess [dollar] 145 million for every bad thing that this jury thinks--

LAURENCE H TRIBE: --Justice Breyer, please... I believe in the Magna Carta as much as you do.

It was not arbitrary.

There were criteria.

The criteria were pursuant to an instruction proposed by State Farm, and in this case it was not every bad thing.

All of the specifics, including these seemingly trivial things like appearance allowances, were all introduced in particular cases to show how they were being used by someone who was up against his monthly quota, and because he was up against the monthly quota... you read the testimony of Gary Fye at page 1375 and 1387 of the joint appendix.

Because they were up against the monthly quota, the people at the receiving end who thought they had a claims agent who was, as they call him, a good neighbor, in fact had someone who was selling them a place in the airline, and it wasn't there, deliberately.

JUSTICE KENNEDY: --Nothing you have said, Mr. Tribe, Professor, persuades me that the jury didn't punish this company for being a bad company quite without reference--

LAURENCE H TRIBE: Because of the--

JUSTICE KENNEDY: --to the harm this plaintiff suffered.

LAURENCE H TRIBE: --Well, first of all, as to the harm suffered, proposed instruction 40 by State Farm would have told the jury, I think consistent with this Court's jurisprudence and with the history of punitive damages, that they could consider the effect of State Farm's behavior, quote, +"/.

+" on the lives of plaintiffs and of other policyholders.

and it's because, Justice Breyer, of what you said in BMW that a lot of other people who are harmed by these practices are not likely to be able to sue.

That is, they're not going to make it.

Mr. Fye testified at 30 and 44, for everyone like Campbell, who will take on a company this size and with the resources of State Farm, there are hundreds, if not thousands, who will simply go away, because State Farm--

JUSTICE GINSBURG: Mr. Tribe, maybe fewer, maybe fewer now after a verdict of that size, and isn't that one of the problems?

LAURENCE H TRIBE: --Well, that's the hope.

That--

JUSTICE GINSBURG: Isn't that... now there's an incentive for lawyers to pursue such claims.

Before they might have thought them too small to be worthwhile.

LAURENCE H TRIBE: --One of the advantages... there may be down sides, but if we prevail, Justice Ginsburg, we're prevailing on a theory that the practice we've identified, which is quite specific, for 20 years of putting these invisible caps that cheat the insured in all kinds of cases throughout the State of Utah, there will no longer be anyone who can recover for those harms, beyond compensatory damages, because the penalty will have been extracted.

JUSTICE BREYER: The question that's bothering me--

JUSTICE GINSBURG: --Is that true in New York or Vermont?

I mean, you said in Utah there would be no one who can get another [dollar] 145 million--

LAURENCE H TRIBE: I think if they've done this in every State, then they should be exposed to the possibility of punitive damages in other States.

JUSTICE GINSBURG: --So you could multiple that by 50.

LAURENCE H TRIBE: Well, you know, it seems to me, if you look at the opinion that was delivered from the bench by the district court after 2 months, in his own words... they accuse us of writing his opinion.

In his own words, what he said was that absent a punitive award, the problem of recurrence of their misconduct is extremely high, the probability of recurrence ; because he saw the evidence that they never stopped ; and he said that even the [dollar] 25 million award that he felt constrained by State law, mistakenly, to give, he thought would not suffice because... and I'm now reading from his December 19 opinion... because the [dollar] 25 million may not be enough to offset the profit that they're likely to have earned.

That is, every time they cheat the insured by--

JUSTICE STEVENS: Mr. Tribe, you've told me that this is all based on what happened in Utah.

I haven't read this massive record, and you tell me you have.

In the second phase of the punitive damages trial, not the first one--

LAURENCE H TRIBE: --Yes.

JUSTICE STEVENS: --when they did get into out of State evidence, what proportion, in your judgment, of that evidence related to Utah, and what proportion related to other States?

LAURENCE H TRIBE: I think the overwhelming majority related to Utah, and every time it came in dealing with another State, contrary to what we heard, it was because the door had been opened, and it was specifically found by the trial court that they waived any objection to the testimony in question, despite what we heard about--

JUSTICE STEVENS: But you're telling me that over half of the evidence related to Utah itself?

LAURENCE H TRIBE: --Yes, but let me tell you, Justice Stevens, it was so uniform that the particular examples were picked because they so nicely illustrated the way a particular device like the use of non-OPM parts would interact with the cap that was imposed.

It was nothing about--

JUSTICE STEVENS: Are they correct in telling us that this... there's only one example of a failure to settle--

LAURENCE H TRIBE: --We have no way of knowing, Justice Stevens, because they have erected... the record also shows that since the 1970s, part of their policy of destroying records has included--

JUSTICE STEVENS: --Yes, but there must have been a lot of records--

LAURENCE H TRIBE: --getting rid of all those records.

JUSTICE STEVENS: --But they didn't destroy all the evidence to have a trial go on this long.

LAURENCE H TRIBE: Well, it's because... part of what was said by the trial court was that it took the persistence of a David to bring this particular Goliath to his knees.

Much of the evidence certainly wasn't produced through discovery.

The key evidence, including the May 1979 PP&R report, was obtained indirectly through other cases, not with any cooperation on the part of State Farm.

State Farm kept saying, we don't have a PP&R policy.

Oh, and then we got rid of it in 1992 ; and we got rid of it again in 1994 ; and yes, there's a PP&R policy, but it doesn't actually set the cap on any particular claim.

Well, that's a nicely and artfully put point.

It doesn't.

What it does is, it imposes a ceiling which averages things out and forces whoever is unlucky enough to come in when somebody is about to hit his ceiling to get cheated.

It seems to me that we... it's true that it all began by looking at this, as it happened, failure to settle.

That's a happenstance.

It could have begun in some other way.

Because it happened to a couple that was rather vulnerable, and yet tenacious: this fellow had had one wife who had been murdered in his home, another wife who had died of cancer.

He himself had Parkinson's disease.

They were part of the weakest of the herd, as State Farm's policies put it, that they're picked on, because they're less likely to fight back.

But it happened that these people did fight back, and it seems to me it's not a matter of rewarding them.

They get a relatively small piece of this.

The family of the dead young man gets part of it.

The State may get part of it.

The key point is that it is a critical disincentive, and Justice Kennedy, any notion--

JUSTICE KENNEDY: Well, some people get part of it that weren't hurt at all.

LAURENCE H TRIBE: --Some lawyers will certainly get part of it.

I don't--

JUSTICE KENNEDY: I wasn't referring to the lawyers.

LAURENCE H TRIBE: --I--

[Laughter]

What made me think you might have been?

No, but it seems--

JUSTICE KENNEDY: Well, I was referring to the other people that took an assignment of the claim together with--

LAURENCE H TRIBE: --That could be, but--

JUSTICE BREYER: --I was referring to them, and my problem is that in fact what you have is a system where if you take, let's call it the most evil corporation in the world, and I'm sure there are some such, and they commit a very minor tort in respect to someone, pursuant to their policy of being evil--

Unidentified Justice: [Laughter]

JUSTICE BREYER: --and it seems to me that there are criminal laws, there are regulatory authorities, there are statutes--

LAURENCE H TRIBE: --Right.

JUSTICE BREYER: --there is common law, there are many, many sources of law ; and it's disturbing in terms of the picture of the law to have 12 people picked at random to assess an enormous fine without standards other than, ["], and I'm assuming he is evil.

LAURENCE H TRIBE: Justice Breyer, first, it's not fair to say that was the only standard.

JUSTICE BREYER: Oh, no, I'm trying--

LAURENCE H TRIBE: Second... second--

JUSTICE BREYER: --to get you to say what the standard was, if it is not that.

LAURENCE H TRIBE: --I thought this Court did a rather good job in BMW.

Reprehensibility could hardly be higher when one has a repeat offender who even now mischaracterizes its intentional tort, when one has a repeat offender that obstructs justice--

JUSTICE KENNEDY: But again, you're defining reprehensibility quite without regard to the specific injury imposed on the plaintiff.

LAURENCE H TRIBE: --Well--

JUSTICE KENNEDY: You're defining... you're giving a report card to the entire company.

LAURENCE H TRIBE: --No, but Justice Kennedy, in TXO this Court talked about the ratio not just of the harm that actually befell the particular plaintiff, but of the punitive damages to the harm that might have befallen that plaintiff if the tortious plan had been carried to completion.

Here, if it had been carried to completion the home would have been taken, because a deal would not have been struck in December of '84... of '84, and also in TXO, and in other cases, you've spoken of the harm to the larger community.

You've also spoken of the importance of extracting the profit from tortious behavior.

JUSTICE KENNEDY: I think... Justice Breyer touched on this.

Part of the harm to the larger community here is the image that this does to the judicial system when corporations, businesses, people of substance want to use the courts and they're deterred from doing it by the threat of runaway punitive damages, and that is not good for the legal system.

LAURENCE H TRIBE: Justice Kennedy, I certainly agree in principle ; but to pick a case in which a corporation has defied the legal system, has shredded documents, has covered up its deliberate wrongdoing, has not even bothered to pay attention to a [dollar] 100 million award... yes, of course it wasn't reduced to a judgment, but the evidence in this case is that that's not relevant.

What was critical is that they had built a wall of deniability so that no one in a decisionmaking capacity is informed of punitive judgments.

Mr. Muskowski testified in this case that he would not let anyone know, in a position of authority, even of the punitive judgment in this case ; and in their reply brief they say, well, Mr. Mendoza had decisionmaking authority, but if you look at the relevant pages in the joint appendix, you'll see that that's not true.

In the colloquy it's clear that he did not.

What that means is that a company can surround itself with an impregnable wall and in effect spit at the legal system.

How good is that for its image?

Now, it may be that an ideal legal system might not use juries for this purpose, but is it the mission of this Court to redesign the legal systems of the 50 States?

15 States have signed an amicus brief here saying it's important to them to be able to use punitive damages when the regulatory and criminal justice systems haven't quite caught up with whatever latest axis of evil is afoot in the corporate world.

Is it really helpful to any of us to have a corporation be able to defraud all of the people who rely on it, who depend on it, and get away with paying simply what harm they happened to cause in the one case when they get caught?

It seems to me especially bizarre, especially bizarre for State Farm to speak here proudly of the fact that this is the worst case in history.

JUSTICE STEVENS: Can I ask one other question just about the proceedings here?

LAURENCE H TRIBE: Yes.

JUSTICE STEVENS: The record is so large I didn't have the whole thing completely in mind.

After the trial judge reduced the jury's award of [dollar] 145 million to... what was it, [dollar] 20 million?

LAURENCE H TRIBE: 25.

JUSTICE STEVENS: --[dollar] 25 million, State Farm still appealed.

LAURENCE H TRIBE: There was a cross-appeal by State Farm.

JUSTICE STEVENS: Well, did both sides appeal that?

LAURENCE H TRIBE: Yes.

JUSTICE STEVENS: I see.

It wasn't clear to me.

LAURENCE H TRIBE: That's right.

State Farm appealed because it thought there should be no punitives.

It seems even now they think it did nothing wrong.

JUSTICE STEVENS: Yes.

LAURENCE H TRIBE: And there was a cross-appeal by the Campbells on the grounds that they thought it was a mistake of State law to have reduced the punitives.

JUSTICE STEVENS: I was thinking it would have been quite a shock if State Farm had been the only appellant here and that was the result of that appeal.

LAURENCE H TRIBE: Yes.

JUSTICE STEVENS: It's sort of dramatic, yes.

LAURENCE H TRIBE: Yes, well--

JUSTICE STEVENS: Both sides appealed.

LAURENCE H TRIBE: --Yes, that's correct.

JUSTICE GINSBURG: And isn't there a certain irony in that it was chopped down to [dollar] 25 million, and then the Utah Supreme Court, using this Court's case law, saying we don't give the ordinary deference that we would give to that judgment of the trial court, because the Supreme Court had told us we must engage in de novo review, and engaging in de novo review, we don't chop it down, we put it back to where it was originally.

LAURENCE H TRIBE: Well, Justice Ginsburg, I think in a sense that looks ironic.

It looks as though Cooper v. Leatherman came back in a boomerang, but I think really the way I read the opinion of the Utah Supreme Court, they applied Cooper in an even more vigorous way in general.

That is, they didn't just engage in de novo review of the question of excessiveness.

They engaged in de novo review of all the facts, so you have not just a jury, but a jury and a trial court and a full appellate court.

The only fact on which they said they weren't going to defer was a technical issue about the wealth of State Farm, and the real reason they actually gave for increasing the 25 to 145 was their conviction that the trial court believed that 25 would not stop State Farm from persisting in its practices, and that it was only their own earlier suggestion that the ratio should matter a great deal that had misled the trial court.

JUSTICE SCALIA: What do you think the ratio should... I mean, we did say something in BMW about ratio between compensatory damages and punitives.

What do you think the ratio should be?

No limit, 10 to, 145... whatever it takes to stop them?

I mean, what if nothing will stop them but sending them to jail?

LAURENCE H TRIBE: Well, in this case, sending them to jail was an option that the Supreme Court of Utah mentioned, and that State Farm doesn't seem to take very seriously.

They think the State Supreme Court of Utah doesn't understand its own law.

There are provisions of Utah law that make deliberate fraud of the sort they committed an imprisonable offense, and maybe that's an option, but that suggests--

JUSTICE BREYER: You mean, you could right in this case put people in prison for--

LAURENCE H TRIBE: --Well, I haven't... I have no contact with the Attorney General of Utah, but they--

JUSTICE BREYER: --No, no, I mean, you'd have to bring another trial, wouldn't you?

LAURENCE H TRIBE: --Well, of course you... yes.

Yes, but the comparability standard asks, how serious an offense is this, and I submit it's extremely serious.

But to your question, Justice Scalia, on ratio, I think that instead of trying to come up with a number... because I think suggesting any number would be so arbitrary that it would do more damage to this Court than good to the legal system.

It's not like 6 months for the idea of a serious crime.

I mean, it would just be a number plucked from the air, and it would backfire, because as the law and economics people are fond of pointing out, any number you pick will then lead people to sort of modify their behavior accordingly, and just internalize the costs on a kind of bad man theory, and what you really are trying to do is stop the behavior.

We're not talking about negligence here.

We're talking about something of which the optimal level is zero.

The optimal level of deliberate fraud and deception covered up in this way is zero.

The relevance of the ratio, I think, is simply as one thing to look at.

If the ratio looks very high, you ask why is it so high?

In this case, the answer comes back, it's so high because the ratio of the number of people they hurt to the number who are going to be motivated to sue and able to sue is very low.

I mean, is very... you know, a number... a huge number will be hurt.

A very small number are going to be able to make it through that filter.

JUSTICE O'CONNOR: Well, with verdicts like this, we might see an increase, don't you think?

LAURENCE H TRIBE: Well, I suppose.

I suppose, but there are ways of getting rid of frivolous lawsuits.

The point also is, it's hard... if you see an increase, Justice O'Connor, and if it is an increase that gets anywhere, it might be because they stopped destroying the evidence, because they stopped fabricating... they've so doctored the files, like the file in this case, to make it look in any given case as though the report that they give corresponds to the history of the case, and it's awfully hard to sue successfully when the file has been massaged and doctored.

The result in a case like this is of course it looks like a very large award, but--

JUSTICE KENNEDY: What if there were in Utah a second Campbell, a second excess carrier, and the case was tried 6 months later.

Would they get the same punitive damages?

LAURENCE H TRIBE: --No.

If it was for any activity that occurred during the period from May 1979 to the time of this trial--

JUSTICE KENNEDY: Both hypothetical plaintiffs are injured around the time Campbell is, and they both bring the same kind of suit and they have the same evidence ; they each get the 145?

LAURENCE H TRIBE: --No.

I think that it's a penalty that is like... there ought to be some double jeopardy like doctrine that if they can show that they've already been punished for this course of conduct, they ought not to have to pay the penalty a second time.

Now, the Double Jeopardy Clause--

JUSTICE GINSBURG: Mr. Tribe, I thought you answered--

JUSTICE STEVENS: --What's the authority for that proposition?

LAURENCE H TRIBE: --I would... I just made it up.

[Laughter]

JUSTICE STEVENS: Professor Tribe.

LAURENCE H TRIBE: I just made it up.

I said there ought to be such a doctrine.

JUSTICE GINSBURG: Mr. Tribe, you're talking about a second Utah plaintiff.

I thought you answered--

LAURENCE H TRIBE: Yes, a second--

JUSTICE GINSBURG: --Several questions ago you said this could be multiplied at least 50 times.

That is, one big winner in each State.

LAURENCE H TRIBE: --Well, if they commit 50 big offenses, it's part of our jurisprudence of 50 States that they might be subject to 50 penalties.

That--

JUSTICE STEVENS: Your argument is that this is all Utah damages, so there are--

LAURENCE H TRIBE: --That's right.

That's--

JUSTICE STEVENS: --49 other claims out there that must be at least as valuable.

LAURENCE H TRIBE: --Well, that's right.

JUSTICE STEVENS: Yes.

JUSTICE SCALIA: And even in Utah, I thought our case says you're punishing them for the harm done to this plaintiff.

LAURENCE H TRIBE: Ultimately, you are.

JUSTICE SCALIA: If you can take reprehensibility into account, but it's for the harm done to... well, what about the harm done to all the other plaintiffs in Utah?

LAURENCE H TRIBE: Justice Scalia, there's no pretense that this is compensatory damages.

The compensatory damage compensates them for the harm done to them.

JUSTICE SCALIA: Then you shouldn't have said that.

LAURENCE H TRIBE: Then the reprehensibility of what was done to them is affected by, as this Court has said, whether it was an isolated event, as they claimed, or whether it was done as part of a schematic, systematic form of predation.

Now, it was of that sort.

That was shown.

The fact that it was predation that was launched from Bloomington and therefore spread throughout the country is State Farm's problem.

It shouldn't be the problem of the plaintiff who collects punitive damages in a given case.

JUSTICE SOUTER: Mr. Tribe, I can't remember... I assume it's in the briefs, I just don't remember, what was the instruction to the jury on any limits on their consideration of the out-of-State evidence?

Was the jury told, look, you can only punish them for what they did here, this only goes to intent, or something like that?

LAURENCE H TRIBE: There was no request here, as there was, for example, in the recent Ninth Circuit case against Ford, no request whatsoever by State Farm for such an instruction.

What they did request, and were not entitled to, was that under BMW they preserved an objection that the out-of-State evidence be completely disregarded, even though it came in in response to the doors that they had opened, but they did not--

JUSTICE SOUTER: But the objection never eventuated in a request for an instruction--

LAURENCE H TRIBE: --Not at all.

JUSTICE SOUTER: --or in instruction addressing specifically that point?

LAURENCE H TRIBE: No, and they were fully aware... I mean, the day after BMW came down, there was a bench conference.

There was an extended colloquy.

It was fully--

JUSTICE STEVENS: But wasn't that after the trial?

I thought that was in the petition for reconsideration?

LAURENCE H TRIBE: --No.

The... May 21, 1996 was before the full-blown 2-month period of the phase 2 trial.

JUSTICE STEVENS: I see.

LAURENCE H TRIBE: And it was known very clearly the day after BMW that a good bit of the evidence in this case, because many of the examples of how this policy worked, would come from other places, would not be Utah-based.

The [dollar] 100 million verdict which would illustrate the wall they built would come from Texas.

They never once asked for an instruction limiting matters to Utah, and I don't fault them for it.

It would have been rather bizarre to do so, because they knew full well that we were not asking the Utah jury or the Utah courts to punish them for what they did elsewhere.

We were simply using what was done elsewhere first to rebut their commissioners... they brought in commissioners from various States to testify that State Farm never did anything wrong.

The trial court said, now you know, if you do that, you're going to open the door... Justice Stevens, I wanted to just... if you do that, you're going to open the door to proof of what happened elsewhere.

They didn't mind, and they insisted that the sequence of proof be rebuttal first, actually, through depositions, and then the principal arguments, which made it look as though it was part of the direct case.

I think that--

JUSTICE STEVENS: Thank you, Mr. Tribe.

LAURENCE H TRIBE: --this judgment should be affirmed.

Thank you.

SHEILA L BIRNBAUM: Do I have a little time, can I just... left to respond?

JUSTICE STEVENS: You have about--

SHEILA L BIRNBAUM: Two minutes?

JUSTICE STEVENS: --You have, I think, a minute and a half... but let's make it two and a half.

REBUTTAL ARGUMENT OF SHEILA L. BIRNBAUM ON BEHALF OF THE PETITIONER

SHEILA L BIRNBAUM: Thank you, Your Honor, I appreciate that, because there are certain things that Mr. Tribe said that I think we have to clarify.

First of all, this case, on the openings of the plaintiff, the plaintiff said to the jury, this case transcends the Campbells' file.

It involves a nationwide practice.

He went on to say, you're going to be evaluating and assessing and hopefully requiring State Farm to stand accountable for what it is doing across the country.

That is the purpose of punitive damages.

On the summation, they asked this jury to act as a national regulator, because none of the regulators had acted against State Farm.

Can you imagine, in a 14... in a 20-year period, State Farm handled approximately 280 million claims.

JUSTICE SOUTER: What limiting instruction did you ask for?

SHEILA L BIRNBAUM: The only instruction, Your Honor, was the instruction that I previously read to Justice Ginsburg that they should look to the conduct toward the Campbells, and that was the instruction.

There was no other instruction.

But whether there was an instruction or not, I think as the Ninth Circuit just said in White v. Ford, you have to look at the evidence, the openings, the closings, and what was punished here.

It was a scheme, and the scheme had no causal relationship with the decision to try this case.

You asked, Justice Stevens, how much of the evidence was extraterritorial?

Huge amounts, and it came in on direct, and we have it cited in our brief, and it wasn't only--

JUSTICE STEVENS: Do you disagree with Mr. Tribe's suggestion that over half the evidence related to Utah?

SHEILA L BIRNBAUM: --No, Your Honor.

It related to Mr. Campbell's underlying case, not to actions in Utah that harmed Utah policyholders.

That was all inferred from this large national scheme.

In fact, the evidence is contrary.

JUSTICE STEVENS: You're saying the Utah evidence was evidence relating to this particular case--

SHEILA L BIRNBAUM: Absolutely.

JUSTICE STEVENS: --rather than to other Utah policyholders.

SHEILA L BIRNBAUM: And if you look at the footnote in their brief, and look at our reply brief, we point out all of that evidence had to do with the underlying case.

The lawyers from the underlying case, Mr. Campbell, Mrs. Campbell, Ospital, Slusher et cetera, and this issue of whether there was one, whether this... Mr. Campbell was vulnerable, Mr. Campbell was the only person in this whole trial that wasn't vulnerable.

He was a 60-year-old white man and who had a B.A. and an M.A. He sat through the entire trial and he said he was not liable, and the decision was made that this was a no liability case.

Mr. Tribe says Ospital was not speeding--

JUSTICE STEVENS: Thank you, Ms. Birnbaum.

SHEILA L BIRNBAUM: --Thank you so much.

JUSTICE STEVENS: I think we've got your position.

The case is submitted.

(Whereupon, at 12:06 p.m., the case in the above-entitled matter was submitted.)