A lawyer for the class of Alaskan commercial fishers who sought punitive damages stemming from the Exxon Valdez oil spill in 1989 confirmed this afternoon that Alaska Gov. Sarah Palin -- Sen. John McCain's pick for vice president -- and her husband Todd, both commercial fishers at the time, could have qualified as members of the class. But neither filed claims by the deadline this past February. "They were both eligible to participate," says Stanford Law School professor and Davis Wright Tremaine partner Jeffrey Fisher, who argued on behalf of the plaintiffs before the Supreme Court last term.
Then and now, Todd Palin fished for salmon in Bristol Bay, which is far from Prince William Sound where the devastating spill occurred. But Fisher said that early in the litigation, the "mandatory punitive damages class" was defined to include both those who fished in "oiled fisheries" that were damaged directly, and "unoiled fisheries" like Bristol Bay, where the damage was less direct. Fisher says claimants from Bristol Bay and other distant areas asserted they were harmed when the price of their product was depressed after the spill. But eligible members of the class had to file claims by February, and Fisher said the Palins did not do so.
If they had, Fisher says, they would have been eligible to receive a payment that is less than the roughly $15,000 that directly injured fishers will receive under the reduced punitive damage award that resulted from the Supreme Court ruling in June. In that June 25 decision, the Court said the punitive damage award, originally set by a jury at $5 billion, was excessive under maritime law and knocked it down to $507 million. Last week Exxon Mobil agreed to begin paying out some of the award, though a dispute remains over interest.
Fisher notes that Alaska and Gov. Palin were strongly supportive of the plaintiffs in the litigation. "The justices Sen. McCain likes," Fisher added, were were not as supportive. In the 5-3 decision, Chief Justice John Roberts Jr. was in the majority that cut the punitive damages award, and Justice Samuel Alito Jr. recused because he owns Exxon Mobil stock. The others in the majority written by Justice David Souter were Antonin Scalia, Clarence Thomas, and Anthony Kennedy.
After the Supreme Court ruled, Gov. Palin was critical of the outcome. “I am extremely disappointed with today’s decision by the U.S. Supreme Court,” she was quoted as saying. “While the decision brings some degree of closure to Alaskans suffering from 19 years of litigation and delay, the Court gutted the jury’s decision on punitive damages.” She also said, “It is tragic that so many Alaska fishermen and their families have had their lives put on hold waiting for this decision. My heart goes out to those affected, especially the families of the thousands of Alaskans who passed away while waiting for justice.”