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ACA submits amicus brief in Exxon MTBE litigation.

In May, ACA submitted an amicus brief in the case of Exxon Mobil Corp. v. New York City before the U.S. Court of Appeals for the Second Circuit. The amicus brief is ACA's latest entry as part of the association's Amicus and Legal Tracking System program.

In the Exxon Mobil Corp. v. New York City litigation, the City of New York seeks to defend a jury verdict that awarded the city damages in excess of Dollar100 million based upon the possibility that the City might at some indefinite point of time in the next 25 years seek to use water that might contain small amounts of one type of contaminant, the gasoline additive MTBE. Moreover, this verdict is based on contaminant levels that fall within the City's own safe drinking water standards and, thus, will not injure the City's ability to provide safe drinking water to its residents.

ACA determined that this case contained the elements its Amicus Program is designed to address, and invited four other parties to participate as joint amici: the American Chemistry Council; the National Association of Manufacturers; the NFIB Small Business Legal Center; and the U.S. Chamber's National Litigation Center.

Through its Amicus and Legal Tracking System program, ACA chooses select prominent cases each year in which it files an amicus or "friend of the court" brief as a show of support in cases that can adversely impact the industry. Specifically, the Amicus Program seeks to prevent court decisions that establish bad precedent or overturn such precedent where it currently exists and advance the legal protection of property due process and liberties that rightfully belong to good faith corporate interests and behavior. Since its 2007 inception, ACA has filed some 20 amicus briefs.

In its amicus brief ACA concentrates on advancing three fundamental arguments:

1. This damages award cannot stand because the jury's factual findings demonstrate both that the City has not established a cognizable injury, and that the City's damages claim is not ripe. By finding that MTBE levels do not and will not exceed safe drinking water standards, the jury effectively rejected the City's claim of injury from a loss of drinking water and found that the City had not met its burden of proving cognizable injury. For purposes of ripeness, the City failed to prove that the alleged injury was "certainly impending and real and immediate," as the jury concluded that the water supply would only become a potential issue, if at all, in 25 years;


2. The district court's decision allowing the City nonetheless to seek damages and then upholding the jury's factually-unfounded Dollar100 million damages award was plain error and should be reversed; and

3. The consequences of the district court's erroneous legal rulings extend far beyond the present case--the court effectively redefined the term "drinking water" to mean "pristine water," so that the presence of any trace amount of any foreign substance can render the drinking water damaged, in defiance of reality. If left to stand, it would "open the floodgates to claims against virtually every manner of human enterprise that could be linked with such trace detections, affecting such diverse sectors of the economy as agriculture, manufacturing, petroleum, and drug companies," ACA's brief noted.

"The fact that there is some contamination, albeit harmless, does not justify damages awarded to a public entity from this defendant. Regardless of this prolonged economic recession, city attorneys should still respect the rule of law and exercise better prosecutorial discretion," said Tom Graves, ACA vice president and general counsel.
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Title Annotation:ACA Issues In-Depth
Publication:JCT CoatingsTech
Date:Jul 1, 2011
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