On May 3, Exxon argued its appeal of the $6 billion punitive damages award levied against it in 1994, in response to the 1989 Exxon Valdez oil spill. The oil was more (or less) cleaned up long ago, but ten years later the legal briefs pile up. The paper generated in the aftermath of the spill might by now exceed the tonnage of oil lost into Prince William Sound.

Exxon is arguing that the jury's award, equaling one year of the corporation's profits, was "outrageously excessive and unjust." Another example of the citizenry gone insane. Nefarious, calculating plaintiffs out to get whatever they can at any cost. Runaway juries, pillaging any mega-corporation in sight. Not anything like the reasonable manner in which Exxon says business should be conducted. "This verdict is out of line by any standards." As for the spill, it also, while unfortunate, was in its own way completely reasonable. It was a "terrible accident which Exxon deeply regrets."

Exxon spent $2 billion in the cleanup effort and paid another $1.5 billion in fines, settlements, and damage claims. "$3-1/2 billion incurred in expenses is enough to deter anybody of anything. Piling on an additional $5 billion will achieve nothing not already achieved," said Exxon's attorney during his one hour argument in the US Ninth Circuit Appellate Court in Seattle. Upholding this damage award will only "make private plaintiffs rich while making Exxon less rich. This, in Exxon's view of the world, is quite unreasonable."

The plaintiffs, "spillionairs," as Exxon calls them--hoping to soon be rubbing shoulders with the already rich oil barons--are 40,000 thousand fishermen, plus townspeople, natives, and businesses. According to Exxon, The Riviera is going to get mighty crowded between fishing seasons.

These plaintiffs so fortuitously located in the economic damage radius of the Valdez spill joined a class action suit against the petro-giant leading to the aforementioned damage award. The jury decided that Exxon had behaved recklessly. That and the fact that the fishermen had lost a year of fishing following the spill influenced the jury's calculation of Exxon's penalty.

Not all of the plaintiffs were comfortable with the payoff for what washed up on their beaches. A group of Seattle-based fish processors, the "Seattle Seven" signed a secret settlement agreement with Exxon. The processors agreed to pursue the trial, then return their portions of any damage award to Exxon. Exxon, in return, paid the processors $70 million up front. In non-legal terms, the processors sold out their fellow plaintiffs. The trial judge, upon hearing about the "astonishing ruse," promptly nullified the agreement.

Once the judge had ruled against the agreement, the processors re-formulated their position. Their share of the $5 billion is more than $700 million. They were suddenly back with the original program, once again happy members of the aggrieved class. From the processors' point of view, their shifting allegiances are perfectly reasonable. Exxon agrees, up to a point. Arguing that the agreement should stick, they say the processors should get only what they bargained for. As their lawyer said, "public policy favors out-of-court settlements."

The plaintiffs, during their hour, argued that, while out of court settlements are favored, they are not supposed to be secret. They also assert that public policy doesn't favor double-crossing fellow plaintiffs. "A class can't include parties whose interests are contrary to the class" is the way the plaintiffs' lawyers said it.

Not least among Exxon's examples of the injustice of holding business as usual hostage to the reckless civil court system was the court bailiff incident. It seems that back in 1994, a bailiff displayed his weapon and jokingly offered to shoot a holdout juror. While the juror in question neither witnessed, nor heard about the incident, Exxon argues that its effect was "inherently coercive." The bailiff was fired. The judge ruled the incident didn't prejudice the outcome. He was incredulous that anyone would take such a threat seriously.

At least one of the appellate judges harbors some doubt about whether it was even "proved" that Exxon was responsible for the spill. While Exxon had "stipulated" during the trial that it was responsible, the judge said his research suggested it wasn't enough to prove Exxon's liability. The judge no doubt has sound legal logic to make his conclusion seem perfectly reasonable. Everyone else, armed with nothing but the bald facts, may have assumed that point at least was settled. The judge, meanwhile, said if his conclusions prove correct, the plaintiffs "are not entitled to one damn cent."

Exxon's larger argument attacks punitive damages in general. Raising the specter of runaway juries drunk on blank checks, they say that business cannot be reasonably conducted in such an environment. Business needs to know what costs they can expect to face. Thus Exxon argues for a cap on punitive damages. "The purpose of punitive damages," said Exxon's attorney, is "to achieve societal good." Something which hasn't happened in this case or similar cases, they say.

Law professor Michael Rustad, a well known expert on such things, said punitive damage caps would eliminate their effect as a deterrent. "These people want to know the price of wrongdoing in advance so they can include it in the cost of doing business."

It could take months for the court to publish its decision. Whichever way the decision goes, the matter is expected to head to the Supreme Court for the championship round. Meanwhile, the fishermen, townspeople, Alaskan natives, and local businesses who suffered from the devastation of the largest single oil spill in history are still waiting for their bit of compensation.