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After years of bouncing back and forth in appeals courts, the Exxon Valdez litigation may finally have reached the end of the line in the 9th U.S. Circuit Court of Appeals – and a potential resolution. In December 2006, a three-judge 9th Circuit panel reduced an Alaska jury’s award to the fishermen and residents affected by the 1989 oil spill in Prince William Sound from $5 billion to $2.5 billion. Last week, the court reaffirmed the $2.5 billion award and denied Exxon’s petition for a panel rehearing. In its per curiam decision, the 9th Circuit made it clear it wanted the almost 20-year-old case resolved. “It is time for this protracted litigation to end,” the court wrote. The court reasoned that the previous award had represented damages at the highest range – a 9-to-1 ratio of punitives to harms. Instead, the court ruled that a 5-to-1 ratio was consistent with Exxon’s “reckless misconduct,” mitigated by its response to the accident. Though the $2.5 billion award is half the original jury award, the interest accrued will be about $2 billion for a total award of about $4.5 billion, according to Harold Berger, one of the proponents of the lawsuit and co-chairman of the suit’s discovery committee. Berger’s firm, Berger & Montague, was one of the four firms that litigated the case and would be among the chief breadwinners when the compensation is finally distributed. Berger, a former Philadelphia Common Pleas judge, said the court had ordered that a little more than 22 percent of the award go to attorney fees. Berger said the other main breadwinners would include Davis Wright Tremaine in Anchorage, Alaska; Faegre & Benson in Minneapolis; Cohen Milstein Hausfeld & Toll in Washington, D.C.; and Dickstein Shapiro, also headquartered in Washington. But Berger said Exxon had said it would appeal to the U.S. Supreme Court. “[Exxon] has been telling us from day one that this will go to the U.S. Supreme Court,” Berger said. “My feeling is that [the Supreme Court] won’t take it. I think there has to be an end to litigation sometime.” Berger said the plaintiffs team had not planned an appeal to re-establish the $5 billion award, though it thought the class was entitled to it. “The [$2.5 billion award] is very fair under the literal reading of these various decisions by the U.S. Supreme Court,” Berger said. “However, from the standpoint of damages, we feel strongly that we should have received the $5 billion.” He said if the Supreme Court did take up the case, the plaintiffs would revert to their position that they were entitled to $5 billion. In September 1994, an Alaska jury awarded $5 billion to those affected by the Exxon Valdez oil spill in Prince William Sound, and since then, Exxon has tied up the award in appeals. Attorneys from Berger & Montague, including Berger, H. Laddie Montague, Peter Kahana and the late David Berger, made up the team of Philadelphia attorneys who represented the class of about 34,000 fisherman and residents affected by the spill. The $5 billion jury award represented the largest punitive damage award in American history at that time, Berger said. The firm got involved in the litigation after the Federal Bar Association recommended it, based on the firm’s experience with the Three Mile Island case, attorneys told The Legal at the time. Berger said the firm’s complaint was the second complaint filed in what became the class action. He said after spending three days and nights working on the complaint, an Anchorage firm beat Berger & Montague to the punch only as a result of a computer glitch. “Back in 1989, the communications systems were not as efficient,” Berger said. Harold Berger and David Berger co-chaired the discovery committee for the litigation and doled out assignments to law firms throughout the country, Berger said. The result was more than 1,000 depositions and 10 million pages of documents, he said. Harold Berger said he still remembers flying over Prince William Sound right after the accident. “I saw blackened beaches, hundreds of dead otters floating and thousands of dead birds. It was a traumatic experience. And when we met with our clients, they were traumatized. They thought their entire livelihood was changed,” Berger said. Berger said he and other attorneys at the firm spent many sleepless nights working on the case. He said he recently spoke to an attorney in St. Louis who had worked on the litigation. Berger said the man remarked that he had been a young man when the litigation started, and now he was a grandfather. “I told him, ‘I hope you aren’t a great-grandfather before this is over,’” Berger said.

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