Amicus Curiae Brief — Safeco Ins. Co. of America v. Burr

(2%

Nos. 06-84, 06-100

IN THE

Supreme Court of the United States

SAFECO INSURANCE COMPANY OF AMERICA, ETAL..,

° Petitioners,

Vv.

CHARLES BurRR, ETAL.,

Respondents.

GEICO GENERAL INSURANCE COMPANY, ETAL.,

Petitioners,

Vv.

AJENE EDO,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF FORD MOTOR

COMPANY IN SUPPORT OF PETITIONERS

WALTER DELLINGER DAVID G. LEITCH

MATTHEW M. SHORS Counsel of Record

O’MELVENY & MYERSLLP JOHN M. THOMAS

1625 Eye Street, N.W. Office of the General Counsel

Washington, D.C. 20006 Ford Motor Company

(202) 383-5300 The Amencan Road

Dearborn, Michigan 48126

(313) 322-7453

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

FARES GE ALS TRIE ee ncccccecececcesscovecssescancosccnsssncnsesoneses il

STATEMENT OF INTEREST sicesidaeiibiciheniiaapiipelanicondeiaimbedeniiin l

it oF | __: SE EEE IEE 3

PIII itiicssccccicccenstalietictaasncetstbemtsattenansetenennnnatinn +

IF APPLIED TO PUNISH OBJECTIVELY

REASONABLE CONDUCT, § 1681n WOULD

VIOLATE THE FAIR NOTICE

REQUIREMENTS OF DUE PROCESS ..........:cccseccssseseeeeees 4

IIT tiecsdispiccinccishiastansasitichlleanaiitcaaainnianeatetciaiaiaiicine 12

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TABLE OF AUTHORITIES

Page(s)

CASES

A.B. Small Co. vy. American Sugar Ref. Co.,

rg Be eee piaiisisaniitundideniia 5

Anderson v. Creighton,

I I Dicicitneccthisitessnesectinneninvtinaneiensesniiingiita 6, 12

Anderson v. Creighton,

eI IT is cincssdeiinnnenodadeiainipaetenianitbitinbbiecdltundiiinis 10

Anderson v. Liberty Lobby, Inc.,

Ss re ee ntiesceriitiencctsctencbascuntistiiiniimatanpeiapione 11

Carter v. Atchley Ford, Inc.,

No. 8:01CV151, 2002 WL 802682 (D. Neb. 2002)......... 2

Champlin Ref. Co. v. Corp. Comm'n,

EE Se ctciccidninesetmncticnnninninininnepinnictbiiinnitiaipis 5

City of Chicago v. Morales,

Sr NE TI deine cirecivessinesdepieeniplnnaneninenisiiainsiiaiciniaied 4,5

Colautti v. Franklin,

a MEIN sisconscsininstiniiahesucneistauldassiielneiinibabsinenbigtdeta 9

Connally v. General Construction Co.,

I BI hitch inttschetshiaisdivuccisapeinidscicliehditniosepctinds 8

Giaccio v. Pennsylvania,

EN I siccciscivictitdattincsieineatsinantadigisdietuinhittehdinnsnel 5

Grayned v. City of Rockford,

a: Se TINE ctnichistsécciectis icteniinctioenuitiecianssindeiiiteiiaiokiegen 5

Hewitt v. State Bd. of Med. Examiners,

I RI icicle is andi dapabciainahiaeli 8

Hill v. Colorado,

a 4

iil

TABLE OF AUTHORITIES

(continued)

Page(s)

Hunter v. Bryant,

SN Se ITD icesisineiaccassiriadaniinindetnadbessinninbinatadiaceiahiiie 6

In re Ratliff,

318 B.R. 579 (Bankr. E.D. Okla. 2004). 0.0... eceeeeceeeseeeee 2

Louisville & Nashville R.R.. Co. v. Railroad

Comm'n,

19 F. 679 (C.C.M.D. Tenn. 1884)... eceeeeeceteeeeeees 8

Malley v. Briggs,

ii cinissianataticnovisscsttindsnbinnianianainiosiastinil 6, 7

Screws v. United States,

ne ee er iheitescnheiniteantasieininitanetananicentiniiatind 4,11

State Farm Mut. Auto. Ins. Co. v. Campbell,

ee testaceesestieissidldhahnastbsiqgtinstcoenen snide 5, 12

Sw. Tel. & Tel. Co. v. Danaher,

SESE om eee 5,9, 10 -

United States v. Capital Traction Co.,

Be is I e oeserisctidcttestcnessstienciipnicsanmncennntinien 7

United States v. Lanier,

a cite aieiainai leernigaiiaisinnatensaiemniidninidases 5, 6

Village of Hoffman Estates v. Flipside, ,

ae SI II cscs scchvsprieilieiniianiiasdbietinintosnineenndneieiin 5

STATUTES AND CODES

Fair Credit Reporting Act, 15 U.S.C. § 1681.00... cceeeeeeees 2

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Nos. 06-84, 06-100

INTHE -

Supreme Court of the Anited States

SAFECO INSURANCE COMPANY OF AMERICA, ET AL.,

Petitioners,

v.

CHARLES BurRR, ETAL.,

Respondents.

GEICO GENERAL INSURANCE COMPANY, ET AL.,

Petitioners,

v.

AJENE EDO,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF FORD MOTOR

COMPANY IN SUPPORT OF PETITIONERS

STATEMENT OF INTEREST!

Ford Motor Company (“Ford”) assembles and distributes

! Pursuant to this Court’s Rule 37(a), blanket letters of consent from

the parties were filed with the Clerk on September 28, 2006 and Septem-

ber 29, 2006. Pursuant to Rule 37.6, Ford states that this brief was not

authored in whole or in part by counsel for any party, and that no person

or entity other than Ford made a monetary contribution to the preparation

or submission of this brief.

2

motor vehicles nationwide. One of Ford’s wholly-owned

subsidiaries, Ford Motor Credit Company (“Ford Credit”),

offers a wide variety of automotive financing products to and

through automotive dealers nationwide. As a provider of

financing products, Ford Credit is subject to litigation based

on the occasionally ambiguous terms of the Fair Credit

Reporting Act, 15 U.S.C. § 1681 et seg. (“FCRA”), and has a

direct interest in ensuring that it is not subject to statutory or

punitive damages for good faith, objectively reasonable

interpretations of the provisions of that act. See, e.g., Carter

v. Atchley Ford, Inc., No. 8:01CV151, 2002 WL 802682 (D.

Neb. 2002) (seeking punitive damages under FCRA).

Ford and Ford Credit are also routinely subject to other

litigation under state and federal law in which the plaintiff

secks statutory or punitive damages on the basis that they

have allegedly acted in conscious or reckless disregard of the

plaintiffs’ rights, the same standard that the Ninth Circuit

adopted in this case for awarding statutory and punitive

damages under FCRA. See, e.g., Buell-Wilson v. Ford

Motor Co., 141 Cal. App. 4th 525 (2006) (punitive damages

sought for “conscious disregard” of safety in designing

motor vehicle); Jn re Ratliff, 318 B.R. 579, 583 (Bankr. E.D.

Okla. 2004) (punitive damages sought for repossessing

secured vehicle in “reckless disregard” of federally protected

right to automatic bankruptcy stay). In many of these cases,

punitive damages are sought, and occasionally awarded,

even though Ford or Ford Credit’s conduct was objectively

reasonable, i.e., reasonable people could conclude that their

conduct was lawful. In Buell-Wilson, for example, the

California courts have upheld an award of punitive damages

against Ford based on alleged stability defects in the Ford

Explorer even though the National Highway Traffic Safety

Administration has repeatedly considered and rejected the

theories asserted by the plaintiffs, and even though, prior to

the Buell-Wilson trial, Ford had never lost an Explorer

3

rollover case at trial and at least 11 other juries had returned

defense verdicts in such cases.

As explained below, due process precludes punishment

for objectively reasonable conduct that reasonable people

could conclude was lawful. For this reason, it should

preclude punishment in this casé for an interpretation of

FCRA that the district court found was correct or that has

been endorsed by the Federal Trade Commission. Ford has a

substantial interest in ensuring that this Court’s decision

takes account of the constitutional limitations that apply, not

just in this case, but in all other cases in which punitive

damages are sought.

SUMMARY OF ARGUMENT

As the petitions explain, the Ninth Circuit interpreted the

term “willful” as used in 15 U.S.C. § 1681n to permit the

imposition of punitive damages based solely on “negligence,

gross negligence, or a complet’ good faith but incorrect

interpretation of the law, and upon conduct that is objec-

tively reasonable as a matter of law.” Geico Pet. i.; see also

Safeco Pet. 2. So understood, the Ninth Circuit’s opinion

would permit punitive damages to be awarded under circum-

stances in which reasonable people could conclude—indeed,

like the district court and the Federal Trade Commission,

have concluded—that the defendant’s interpretation of its

obligations under FCRA was correct.

Such an interpretation of the statute raises serious due

process concerns by permitting jury-imposed punishment

without providing fair notice to defendants of what they were

required to do to avoid such punishment. At least a cen-

tury’s worth of precedent establishes that a statute is uncon-

stitutionally vague if applied to punish—civilly or crimi-

nally—conduct that is “objectively reasonable,” i.e., conduct

that reasonable people could conclude was lawful.

4

In Screws v. United States, 325 U.S. 91 (1945), this

Court confronted the same constitutional issue and inter-

preted the same word, “willful,” in a way that precluded

punishment for conduct that was objectively reasonable. To

avoid the constitutional problem in this case, this Court

should interpret “willful” in the same way and require proof

that the defendant knew it was violating a provision of

FCRA that was sufficiently definite that its meaning at the

time of the defendant’s conduct was not subject to reason-

able debate.

ARGUMENT

IF APPLIED TO PUNISH OBJECTIVELY

REASONABLE CONDUCT, § 1681n WOULD

VIOLATE THE FAIR NOTICE REQUIREMENTS OF

DUE PROCESS

As Petitioners argue, the Ninth Circuit interpreted the

term “willful” in 15 U.S.C. § 1681n to permit the imposition

of punitive damages based solely on “negligence, gross

negligence, or a completely good faith but incorrect interpre-

tation of the law, and upon conduct that is objectively

reasonable as a matter of law.” Geico Pet. i.; see also Safeco

Pet. 2. That interpretation would render the statute unconsti-

tutionally vague under the Due Process Clause of the Fifth

Amendment. The Court should avoid that constitutional

problem by adopting an interpretation of willful that pre-

cludes punishment for objectively reasonable conduct, just as

it did in Screws v. United States, 325 U.S. 91 (1945).

1. This Court has repeatedly held that vagueness in a

criminal or quasi-criminal statute violates due process if it

“fail{s] to provide the kind of notice that will enable ordinary

people to understand what conduct it prohibits.” City of

Chicago v. Morales, 527 U.S. 41, 56 (1999); accord, e.g.,

Hill v. Colorado, 530 U.S. 703, 732 (2000). “[Bjecause we

assume that man is free to steer between lawful and unlawful

5

conduct, we insist that laws give the person of ordinary

intelligence a reasonable opportunity to know what is

prohibited, so that he may act accordingly.” Grayned v. City

of Rockford, 408 U.S. 104, 108 (1972); accord, Morales, 527

U.S. at 56 (fair notice principle serves the purpose of

“provid{ing] the kind of notice that will enable ordinary

people to understand what conduct [a law] prohibits”).

Punishment therefore may not be predicated on a “statute

which either forbids or requires the doing of an act in terms

so vague that men of common intelligence must necessarily

guess at its meaning and differ as to its application.” United

States v. Lanier, 520 U.S. 259, 266 (1997).

This Court has never limited vagueness doctrine to

criminal penalties; on the contrary, it has consistently applied

the doctrine to civil statutes that are punitive in nature. See,

e.g., Village of Hoffman Estates v. Flipside, 455 U.S. 489,

499 (1982) (employing strict vagueness scrutiny for statute

that imposed quasi-criminal penalties); Giaccio v. Pennsyl-

vania, 382 U.S. 399, 402 (1966) (“[T]his state Act whether

labeled ‘penal’ or not must meet the challenge that it is

unconstitutionally vague”); Champlin Ref. Co. v. Corp.

Comm'n, 286 U.S. 210, 241 (1932) (holding penalty statute

unconstitutionally vague where it was designed not to

remedy a violation but “to inflict punishment.”); A.B. Small

Co. v. American Sugar Ref. Co., 267 U.S. 233 (1925)

(holding statute unconstitutionally vague in civil case); Sw.

Tel. & Tel. Co. v. Danaher, 238 U.S. 482 (1915)($6,300

civil penalty violated due process). Nor is the doctrine

limited to statutory civil punishments. Indeed, with specific

reference to punitive damages, this Court recently observed

that “[e]lementary notions of fairness enshrined in our

constitutional jurisprudence dictate that a person receive fair

notice * * * of the conduct that will subject him to punish-

ment.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538

U.S. 408, 417 (2003) (quoting BMW of N. Am. v. Gore, 517

U.S. 559, 574-(1996)).2

2. In Lanier, this Court expressly recognized that the due

process vagueness standard, which protects all citizens from

punishment based on vaguely defined offenses, is function-

ally identical to the qualified immunity standard, which

protects public officials from civil liability based on legal

obligations that are not “clearly established.” 520 U.S. at

270-71. As the Court observed, the qualified immunity test

for public officers is “simply the adaptation of the fair

warning standard to give officials (and, ultimately, govern-

ments) the same protection from civil liability and its conse-

quences that individuals have traditionally possessed in the

face of vague criminal statutes.” /d. And this Court’s

opinions establish beyond any doubt that officials are

entitled to qualified immunity as long as their conduct is

“objectively reasonable” —.e., as long as reasonable officials

could conclude that the conduct at issue was lawful. Malley

v. Briggs, 475 U.S. 335, 341 (1986) (immunity available if

officers act in “objectively reasonable manner”; “Defendants

will not be immune if, on an objective basis, it is obvious

that no reasonably competent officer would have concluded

that [the conduct was lawful”); accord, e.g., Hunter v.

Bryant, 502 U.S. 224, 227 (1991) (under “settled law,”

officers are entitled to immunity “if a reasonable officer

could have believed” that his or her conduct was lawful);

Anderson v. Creighton, 483 U.S. 635, 641 (1987) (“The

2 The “actual damages” allowed by 15 U.S.C. § 1681n(a)(1)(A)—a

minimum of $100 regardless of actual losses—are unrelated to the

amount of any actual damages suffered by a plaintiff. Thus, as noted by

amici Farmers Insurance Co., these statutory damages are punitive in

nature and subject to the same constitutional limitations as punitive

damages. Amicus Br. of Farmers Ins. Co. of Or., ef ail., at 12-13 n.7,

citing United States v. Halper, 490 U.S. 435, 448 (1989), overruled on

other grounds by Hudson v. United States, 522 U.S. 93 (1997), and

Fitzgerald Publ'g Co. v. Baylor Publ'g Co., 807 F.2d 1110, 1117 (2d

Cir. 1986).

7

relevant question in this case, for example, is the objective

(albeit fact-specific) question whether a reasonable officer

could have believed Anderson's [conduct] to be lawful.”).

Accordingly, “if officers of reasonable competence could

disagree on [the matter at] issue, immunity should be recog-

nized.” Malley, 475 U.S. at 341.

3. At least a century of precedent supports this Court’s

conclusion in Lanier that the due process vagueness standard

likewise precludes punishment where reasonable people

acting in good faith can disagree on whether the conduct is

lawful. In United States v. Capital Traction Co., 34 App.

street railroad company to give passage to-all persons

desirous of using the railway cars “without crowding said

cars.” The defendant railroad company was charged with

overcrowding its cars. Stating that “the dividing line be-

tween what is lawful and unlawful cannot be left to conjec-

ture,” the court held that the statutory prohibition of

“crowded” railway cars was too indefinite and uncertain to

support an indictment. /d. at 594.

What may be regarded as a crowded car by one jury

may not be so considered by another. What shall con-

stitute a sufficient number of cars in the opinion of

one judge may be regarded as insufficient by another.

What may be regarded as grounds for acquittal by

one court may be held sufficient to sustain a convic-

tion in another. The principle of uniformity, one of

the fundamental elements essential in determining the

validity of criminal statutes, is wholly lacking.

Id. at 596.3

3 Even before this Court began to address vagueness issues, lower

courts had reached a consensus that statutes could not constitutionally be

applied to impose quasi-criminal punishment where reasonable people

could reach different conclusions about whether the conduct was

Sixteen years later, in Connally v. General Construction

Co., 269 U.S. 385 (1926), this Court adopted the Capital

Traction language as its own. The Oklahoma statute at issue

in Connally imposed a fine and potential imprisonment for

certain employers who failed to pay employees at least “the

current rate of per diem wages in the locality where the work

is performed.”” 269 U.S. at 388. Quoting from Capital

Traction, this Court observed that the “dividing line between

what is lawful and unlawful cannot be left to conjecture,” -

that a penal statute “must be so clearly expressed that the

ordinary citizen can choose, in advance, what course it is

lawful for him to pursue,” that a “citizen cannot be helc to

answer charges based upon penal statutes whose mandates

are so uncertain that they will reasonably admit of different

constructions,” and that penal statutes “should not admit of

such a double meaning that the citizen may act upon the one

conception of its requirements and the courts upon another.”

Id. at 393.

It was in this context that this Court in Connally adopted

the modern standard for evaluating vagueness claims on

which it later relied in Lanier: “[A] statute which either

forbids or requires the doing of an act in terms so vague that

men of common intelligence must necessarily guess at its

meaning and differ as to its application, violates the first

essential of due process of law.” Connally, 269 US. at 391.

unlawful. See, e.g. Louisville & Nashville R.R. Co. v. Railroad

Comm'n, 19 F. 679, 691 (C.C.M.D. Tenn. 1884) (“quasi criminal”

penalties could not be imposed for charging “unjust” and “unreasonable”

rates because one jury might find that the rates charged were unjust or

unreasonable, while another jury, on the same facts, might find to the

contrary, thereby “making the guilt or innocence of the accused depend-

ent upon the finding of the jury, and not upon a construction of the act.”);

Hewitt v. State Bd. of Med. Examiners, 84 P. 39, 41 (Cal. 1906) (revoca-

tion of medical license for “grossly improbable statements” unconstitu-

tional because “the members of one board might conclude that it

contained ‘grossly improbable statements,’ while another board might

reach an entirely opposite conclusion.”).

9

Noting the ambiguity of both “current rate of wages” and

“locality” in the statute, the Court concluded that the statute

at issue was unconstitutionally vague because “the applica-

tion of the law depends not upon a word of fixed meaning in

itself, or one made definite by statutory or judicial definition,

or by the context or other legitimate aid to its construction,

but upon the probably varying impressions of juries.” Jd. at

395.

4. Other decisions, both before and after Connally, have

held statutes unconstitutional where liability depended on the

“probably varying impressions” of courts and juries, i.e.,

when such statutes were applied to punish defendants under

circumstances where reasonable people (and, therefore

reasonable courts and juries) could disagree about whether

their conduct was lawful. See, e.g. Colautti v. Franklin, 439

U.S. 379, 401 (1979) (punishment improper where “experts

can — and do — disagree”); Southwestern Telegraph &

Telephone Co. v. Danaher, 238 U.S. 482 (1915). In Dana-

her, for example, an Arkansas statute required telephone

companies to provide service to all applicants, subject to

such “reasonable regulations” as the telephone company

should establish. The defendant telephone company in

Danaher had adopted a regulation under which it would not

furnish service to patrons in arrears for past service and,

further, would not provide to such patrons the discount

normally allowed for paying in advance. The Arkansas

Supreme Court found that the telephone company’s regula-

tion was unreasonable and that it had therefore violated the

statute, and it affirmed a penalty of $6,300.

This Court held that the $6,300 penalty “was so plainly

arbitrary and oppressive as to be nothing short of a taking of

its property without due process of law.” 232 U.S. at 491.

The Court held that the penalty violated the “fundamental

principles of justice” embraced by the due process clause

because the defendant was justified in believing it was

10

reasonable, even if it was foreseeable that a court might hold

the regulation unreasonable:

If it be assumed that the state legislature could

have declared such a regulation unreasonable, the

fact remains that it did not do so, but left the matter

where the company was well justified in regarding

the regulation as reasonable and in acting on that be-

lief. * * * Some regulation establishing a mode of

inducing prompt payment of the monthly rentals was

necessary. * * * The protection of its own revenues

and justice to its paying patrons required that some-

thing be done. It acted by adopting the regulation

and then impartially enforcing it. There was no mode

of judicially testing the regulation's reasonableness in

advance of acting under it, and, as we have seen, it

had the support of repeated adjudications in other ju-

risdictions.

Id. at 490-91.

5. In short, numerous decisions of this Court over the

last century, in several different contexts, all establish the

fundamental principle that the “fair notice” required to

accord due process prohibits punishment for conduct that

reasonable people could conclude was lawful——-conduct

which, in the qualified immunity cases, the Court has called

“objectively reasonable.’””4

4 The term “objectively reasonable” is perhaps unfortunate, because

it suggests that there is some objective method—apart from the verdict of

a jury or the judgment of a court—by which to definitively decide

whether conduct is reasonable, creating the apparent paradox that

conduct found by a court or jury to be “unreasonable”. (or worse) can

nevertheless be “objectively reasonable.” See Anderson v. Creighton,

483 U.S. 635, 643 (1987). As this Court recognized in Anderson,

however, the paradox is purely semantic in nature and can be eliminated

by simply changing the words used to describe the relevant concept. /d.

And there is nothing at al] paradoxical about the concept: there are many

11

The Court has likewise interpreted the very word at issue

in this case—“willful”—consistently with the above prece-

dents in order to avoid a constitutional vagueness problem.

In Screws v. United States, 325 U.S. 91 (1945), three law

enforcement officers were charged with “willfully” depriv-

ing a prisoner of his constitutional rights in violation of the

precursor to 18 U.S.C. § 242. Concerned about the constitu-

tional implications of interpreting “willfully” in a way that

would permit an officer to be punished for intentionally

doing “‘an act which some court later holds deprives a person

of due process of law,” this Court interpreted “willfully” to

require proof that the defendants had the “specific intent to

deprive a person of a federal right made definite by decision

or other rule of law.” Screws, 325 U.S. at 97, 103.

This case can and should be resolved in the same way as

Screws. Here, as in Screws, an unduly broad interpretation

of “willful” creates th€potential—of unconstitutionally

punishing defendants for an objectively reasonable interpre-

tation of the law that is later rejected by the courts. Here, as

in Screws, this constitutional problem can be eliminated by

interpreting the statute to require proof that the defendant

knew it was violating a provision of FCRA that is suffi-

ciently definite that its meaning at the time of the defen-

dant’s conduct was not subject to reasonable debate.

As in the qualified immunity cases, the objective compo-

nent of the standard adopted in Screws “protects ‘all but the

plainly incompetent or those who knowingly violate the

circumstances where reasonable people, courts and juries, forced to

decide whether conduct is “reasonable,” can be expected to reach

different conclusions, such that conduct found by some people to be

unreasonable might be found by others to be reasonable. The fact that

reasonable people might disagree on what constitutes negligence, for

example, explains why judgment as a matter of law on negligence issues

is rarely appropriate. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986) (summary judgment proper only if “a reasonable jury

could [not] return a vegdict forthe nonmoving party”).

12

law.”” Anderson, 483 U.S. at 638 (quoting Malley, 475 U.S.

at 341). And the subjective component eliminates the

possibility of punishment for mere incompetence. Even the

objective component alone, applied—as due process re-

quires—to punitive damages as it has been applied in so

many other contexts over the last century, has the potential to

substantially reduce the “acute danger of arbitrary depriva-

tion of property” from the random imposition of punitive

damages for actions about which reasonable people can

disagree. State Farm Mut. Auto. Ins. Co. v. Campbell, 538

U.S. 408, 417 (2003) (quoting Honda Motor Co. v. Oberg,

512 U.S. 415, 432 (1994)). Applied in this case, it prohibits

punishing Petitioners for judgments about the meaning of

FCRA that are consistent with those made by the district

court and the Federal Trade Commission.

CONCLUSION

To the extent that the Ninth Circuit interpreted FCRA to

permit statutory and punitive damages to be awarded even

though reasonable people—including the district court and

the Federal Trade Commission—agreed or could have

agreed with the defendants’ interpretations of their obliga-

tions under FCRA, that interpretation violates the due

process clause of the United States Constitution. This Court

should reverse.

Respectfully submitted,

WALTER DELLINGER DAVID G. LEITCH

MATTHEW M. SHORS Counsel of Record

O’MELVENY & MYERS LLP JOHN M. THOMAS

1625 Eye Street, N.W. Office of the General Counsel

Washington, D.C. 20006 Ford Motor Company

(202) 383-5300 The American Road

Dearborn, Michigan 48126

(313) 322-7453

Counsel for Amicus Curiae

Dated: November 13, 2006