# Reply Brief — Warner-Lambert Co. v. Wakefield, Individually and as Personal Representative, Trustee, and of the Estate of Wakefield

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1355%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 1044

## Text

~. OUT. US

3 | - FILED
No. 04-1047 _ APR 13 2005

4

=

1 OFFICE, TEE Chin

In The —
Supreme Court of the Gnited States
e
WARNER-LAMBERT COMPANY and PFIZER INC.,

Petitioners,

¥.

MARY ROSE WAKEFIELD, INDIVIDUALLY,
AS PERSONAL REPRESENTATIVE, TRUSTEE,
EXECUTOR OF THE ESTATE OF MICHAEL HOLMES
WAKEFIELD AND MARY LOUISE WAKEFIELD,

Respondent.

r
vy

On Petition For Writ Of Certiorari
To The Oklahoma Court Of Civil Appeals

¢

REPLY ON PETITION FOR
A WRIT OF CERTIORARI

¢

DAVID KLINGSBERG
Counsel of Record
MARIS VEIDEMANIS
KAYE SCHOLER LLP
425 Park Avenue
New York, New York 10022
(212) 836-8000

STEVEN S. ROSENTHAL
KAYE SCHOLER LLP
The McPherson Building
901 Fifteenth Street, N.W.
Suite 1100
Washington, D.C. 20005
(202) 682-3500

RICHARD M. ELDRIDGE
THOMAS E. STEICHEN
ELDRIDGE COOPER STEICHEN & LEACH PLLC
110 West Seventh Street
Suite 200
Tulsa, Oklahoma 74119
(918) 388-5555

Attorneys for Petitioners

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342.2831

TABLE OF CONTENTS

Page
Re eR te aise cnc ndeendcccntoansiniracsncccdnianes i
pe FE SP yy kg g |. Sener ney etn mann reer ll
PRELIMINARY STATEMENT.......................c0sceeceees 1
ET die easton earaie capac hcaeainedisaadbasdaebianannes 2

I. RESPONDENT ADMITS THAT THE JURY
WAS TOLD TO CALCULATE PUNITIVE
DAMAGES ON THE BASIS OF WORLD-
WIDE REZULIN SALES AND PROFITS,
AND THE HOLDING OF THE COURT BE-
LOW THAT THIS CALCULATION IS CON-
SISTENT WITH BMW AND STATE FARM
UNDERSCORES THE NEED FOR CER-

I sata ahsiscnceasherdes Sasi athnmineaaacbsanaridansrone 2
II. THE PUNITIVE DAMAGE AWARD IS

UNCONSTITUTIONALLY EXCESSIVE ........ 6
II. PETITIONERS’ ARGUMENTS WERE

PT IEA aridacsiacishcdctnvasesencaearcocnunipeentendas 7

a icancnncttncaehoinnsa cis wikesdmoimniodisgdihionsechises 10

il

TABLE OF AUTHORITIES
Page

CASES:
Anchor Hocking, Inc. v. Waddill, 538 U.S. 974

CNIS a accenisisiaeaceceat clue ameaaaacete as Naaiee hdaaacaeae 6
Axen v. American Home Prod. Corp., 158 Or. App.

DOR, G74 Te Bee ok tials anionie 3°
BMW of North America v. Gore, 517 U.S. 559

CRI) ..<aasisssanxscsnsatiaiamecteschiadiaaaicaisialaaiaaammicatanae passim
Board of Dir. of Rotary Int'l v. Rotary Club of

Dascsrbe, 4B) 4225. BST Cee siactsncasissscccuatnescavithassntnecsvisatncs 8
Bocci v. Key Pharm., Inc., 76 P.3d 669 (Or. Ct. App.

DIGI) aicsixnnnsisnniaicssiaciciecsgsesstacaniuataean aaa alae dalla naditaaaedaaaateas 5
Boeken v. Philip Morris, Inc., 2005 WL 737511 (Cal.

CX. Age. Agmtid 3, FI sescsacicucecusn cictnaismadastacinaensennsines 5
Boerner v. Brown & Williamson Tobacco Co., 394

Pek SG (Oa Cie, Fee secsrstsitaecinteteasbesbaeseestestacenceenss 6
Continental Trend Resources, Inc. v. OXY USA Inc.,

101 F.3d 634 (10th Cir. 1996), cert. denied, 520

UG ERR Ca avast aartalatenieans 6
Craig v. Holsey, 590 S.E.2d 742 (Ga. Ct. App. 2003).......... 5
Ford Motor Co. v. Romo, 538 U.S. 1028 (2003)..............0.... 6
Hardeman v. City of Albuquerque, 377 F.3d 1106

(BOs Cite, DDG) vccexsissiccincusittcnchimaps itetandaetpatalataninetiattievcess 8
Harris Trust and Sav. Bank v. Salomon Smith

Barney, inc.,, S30 UB. BEB GI vo ccncnsaccocssssnsseccsccssvesecess 9
Howell v. Mississippi, 125 S. Ct. 856 (2005)..............ccc eee 9
Jenkins v. Georgia, 418 U.S. 153 (1974)... eeeeeeeeeees 8
Johnson v. Ford Motor Co., 45 P.3d 86 (Okla. 2002) .......... 8

ill

TABLE OF AUTHORITIES - Continued

Page
Key Pharms., Inc. v. Edwards, 538 U.S. 974 (2003)........... 6
Oklahoma City Urban Renewal Auth. v. City of
Oklahoma City, __ P.3d __, 2005 WL 44399
(Okla. Jan. 11, 2005)............. OE a eT REM 8
Peters v. Golden Oil Co., 600 P.2d 330 (Okla. 1979)........... 8
Philip Morris USA, Inc. v. Williams, 504 U.S. 801
eka oe aaah eansaceonaiencal 6
Raley v. Ohio, 360 U.S. 423 (1959)................cccssssssecccceeeesees 8
State Farm Mut. Auto. Ins. Co. v. Campbell, 538
IIIT inisthachiintntndestpiahedghosisiansamoiaceustbenesseen passim
Tiger Flats Prod. Co. v. Oklahoma Petroleum, 711
i sald as petoiiabaalianesaiiion 8
U.S. v. Zannino, 895 F.2d 1 (1st Cir.), cert. denied,
OS ee rOetneT 8
White v. Ford Motor Co., 312 F.3d 998 (9th Cir.
LER A a Seen nee ee RN EGA ie eRe ee 6
Williams v. Philip Morris, Inc., 193 Or. App. 527, 92
P.3d 126, review granted, 337 Or. 669, 104 P.3d
601 (2004) ...... aUiiactadaanesgeonaoteiadeadnsdnaieseasiiebicusesakamanaaee 5
STATUTES AND RULES
nn a so sen euneuaaaseniueaecnananness 2,4
ne SI UE, II 1 1t U ss ss scccnsnadcsanssessnadienssenddathercsnemesiel 9
I I II II | ac cence oudamemcieusaniienanianeoniaaias 9

SN a A I Us tsi a snicdnat tin tpn ediiaeninsunpaanaueanenbabaeaiinein’ 1,9

PRELIMINARY STATEMENT

Respondent’s Brief in Opposition (“R. Br.”) virtually
ignores the reasons for granting certiorari. Instead,
respondent devotes almost all of her brief to arguing that
certain questions — but not the specific Questions Pre-
sented — were not preserved. As shown in Point III, infra,
the Questions Presented were raised in and specifically
addressed by the court below, and the points in the peti-
tion are all “fairly included” within those questions. Sup.
Ct. R. 14.1(a). What little argument respondent offers on
the issue of whether certiorari should be granted does not
refute petitioners’ showing that the punitive damages
were calculated on the basis of world-wide sales and
profits from an FDA-approved drug, which squarely
conflicts with State Farm Mut. Auto. Ins. Co. v. Campbell,
538 U.S. 408 (2003), and BMW of North America v. Gore,
517 U.S. 559 (1996), and presents significant issues for
this Court’s review.

As discussed in the petition and in the amicus briefs
submitted in support thereof, the context for the Questions
Presented is that a jury was instructed by counsel and
permitted to calculate punitive damages regarding a
prescription drug on the basis of worldwide sales figures,
when those sales were lawful because the drug was ap-
proved for sale by the FDA and foreign regulatory agen-
cies. That result creates a risk of excessive, multiple
punishments based on out-of-state conduct. Moreover, that
conduct lacks the requisite “nexus” to any harm to this
plaintiff and has no relationship to reprehensibility,
because worldwide sales necessarily include sales to
everyone who benefitted from the drug and did not sustain
any harm. That result also allows a jury to become a de
facto national regulator of what prescription drugs may be
sold nationally, contrary to this Court’s holding that a
state may not “use the punitive damages deterrent as a
means of imposing its regulatory policies on the entire
Nation.” BMW, 517 U.S. at 585. That power undermines
the FDA’s expert determination that a drug should be on

2

the market because its benefits outweigh its risks, and
chills the incentive to develop vitally needed medications,
adversely affecting health care. Respondent’s brief simply
ignores these and other important legal and policy consid-
erations, which flow from BMW and State Farm. In
addition, this petition is an ideal vehicle for this Court to
examine the holdings of these two landmark decisions in a
product liability/personal injury case, because plaintiff
argues that those cases apply only where economic injury
was claimed.

ARGUMENT

I. RESPONDENT ADMITS THAT THE JURY WAS
TOLD TO CALCULATE PUNITIVE DAMAGES
ON THE BASIS OF WORLDWIDE REZULIN
SALES AND PROFITS, AND THE HOLDING OF
THE COURT BELOW THAT THIS CALCULA-
TION IS CONSISTENT WITH BMW AND STATE
FARM UNDERSCORES THE NEED FOR CER-
TIORARI

The only “evidentiary support for the award of puni-
tive damages” identified by the Oklahoma Court of Civil
Appeals was “evidence of the dollar amount of world-wide
gross sales of Rezulin — $48 million per month,” and
alleged “expert testimony that [Warner-Lambert’s] profit
margin on Rezulin sales was thirty percent.” App. 17. Such
profits, the court held, “clearly provided a basis for jury
determination” under the Oklahoma punitive damages
statute, 23 OKLA. STAT. § 9.1(C), of “the increased financial
benefit derived by the defendant as a direct result of the
conduct causing the injury to the plaintiff and other
persons or entities.” Jd. Thus, the highest state appellate
court to hear this case expressly found that the punitive
damage award was based on worldwide sales and profits.
That disposes of respondent’s assertion that petitioners
are asking the Court to “speculate” about the basis for the
award. R. Br. at 4.

3

This punitive damage award is directly contrary to
State Farm and BMW. In BMW, 517 U.S. at 572-73, the
Court held that a State “does not have the power ... to
punish [a defendant] for conduct that was lawful where it
occurred and that had no impact on [that State] or its
residents.” Respondent had the burden of showing that the
out-of-state conduct was unlawful. Jd. at 573. But there
was no evidence as to the law of any other state, and the
jury was not asked to apply such law. Thus, there was no
basis on which the jury could have found that all of the
worldwide sales of Rezulin were unlawful. Nor does
respondent even argue that they were. By upholding
punitive damages calculated on the basis of worldwide
sales and profits, the courts below improperly punished
petitioners for conduct — selling Rezulin — that was “lawful
where it occurred” and “had no impact on [Oklahoma] or
its residents.” Jd. at 572-73.

The court below held that the award does not punish
defendants “for conduct legal in other states.” A. 18.
Indeed, respondent asserts that Warner-Lambert’s conduct
was “not legal in any state.” R. Br. at 23. A grant of the
petition is warranted to clarify and re-affirm this Court's
holding that states have no “legitimate concern in impos-
ing punitive damages to punish a defendant” even for
“unlawful acts committed outside of the state’s jurisdic-
tion.... [E]ach State alone can determine what measure
of punishment, if any, to impose on a defendant who acts
within its jurisdiction.” State Farm, 538 U.S. at 421-22.
Axen v. American Home Prod. Corp., 158 Or. App. 292,
316, 974 P.2d 224, 240 (1999), on which respondent relies,
is not to the contrary, because the punitive award in that
case was not calculated on out-of-state sales.

Worldwide sales, which include sales to every diabetic
who benefitted from and had no complications from
Rezulin treatment, also have no “nexus to the specific
harm suffered by the plaintiff,” as required by State Farm,
538 U.S. at 422. No such nexus was identified by the court
below. Respondent ignores the argument.

4

Moreover, basing a punitive award on worldwide sales
violates the Due Process Clause prohibition against
“arbitrary punishments” (id. at 409), for the reasons
explained in the Petition at 21-22. Respondent ignores the
issue. Contrary to BMW, 517 U:S. at 574, petitioners had
no “fair notice” that this arbitrary factor could be used to
calculate punitive damages. No such notice is provided by
23 OKLA. STAT. § 9.1(C), because worldwide sales have no
relationship to any “increased financial benefit” derived
“as a direct result of the conduct causing the injury.” As
respondent correctly states, “global sales” are “wholly
distinct” from “wrongful acts in other states.” R. Br. at 25.
Yet, punitive damages in this case were improperly as-
sessed on the basis of global sales and purported profits.

Petitioners were further denied due process because
there was no evidence of the actual profit margin for
Rezulin while it was on the market, and accordingly there
was no basis for any finding of “financial benefit” to
Warner-Lambert “as a direct result of the conduct causing
the injury.” Respondent’s assertion that Rezulin had a
31.7% profit margin in 1999 is false. R. Br. at 22." Nor
could the jury “infer” the amount of Rezulin profits from
Oklahoma (R. Br. at 23) when there was no evidence of
sales, profits, or prescriptions in Oklahoma.

Respondent’s argument that the punitive award is
justified in light of Warner-Lambert’s alleged “misdeeds”
and “reprehensibility” (R. Br. at 3, 28) further illustrates the
need to clarify and re-emphasize this Court’s decisions. State
Farm held that “[d]ue process does not permit courts, in the
calculation of punitive damages, to adjudicate the merits of
other parties’ hypothetical claims against a defendant

* Exhibit 2946, cited by respondent, was specifically identified at trial
as a “forecast for sales and profitability” that “projected” profit margins,
and therefore is not evidence of actual profits. Respondent correctly states
that Exhibit 2286 shows that Rezulin had $48.7 million “net sales” in
January 1998, but does not mention the testimony that net sales are
simply “sales less rebates and discounts,” not profits. R.3806, Tr. 2104.

5

under the guise of [a] reprehensibility analysis.” 538 U.S.
at 423. Nevertheless, many state courts have used a
“reprehensibility analysis” to approve punitive damages
based on out-of-state conduct, nullifying that principle.’
Respondent’s argument that the jury could properly
consider Warner-Lambert’s “net worth” or “financial condi-
tion” in assessing punitive damages misstates the basis for
the award. R. Br. at 4-5, 24. In summation, respondent’s
counsel did not ask the jury to award punitive damages
based on net worth or financial condition, but on alleged
profits from worldwide Rezulin sales, in a range of $21-$600
million. R.3823, Tr. 3410. Respondent concedes that her
counsel made this argument. R. Br. at 29. And this was the
sole “evidentiary support” for the calculation of punitive
damages found by the Court of Civil Appeals. A. 17.

Respondent argues that evidence of worldwide
Rezulin sales came from Warner-Lambert’s annual reports
that defendants offered at trial. R. Br. at 2. But the fact
that evidence is properly admitted does not mean that it
can be used for an unconstitutional purpose. The only
reference at trial to the sales figures in the annual reports
was by respondent’s counsel during her summation in the
punitive damages phase.

Respondent says that there is no conflict among lower
courts, so that petitioners “merely” argue that the decision
below conflicts with U.S. Supreme Court authority. R. Br.

* See, e.g., Boeken v. Philip Morris, Inc., 2005 WL 737511, at *32-42
(Cal. Ct. App. April 1, 2005) (upholding punitive damages of $50
million, a 9:1 ratio, based on out-of-state conduct); Williams v. Philip
Morris, Inc., 193 Or. App. 527, 559 n.8, 92 P.3d 126, 143 n.8, review
granted, 337 Or. 669, 104 P.3d 601 (2004) (court upheld punitive award
in a 96:1 ratio by holding that “all of the out-of-state conduct . . . led to
actions within Oregon or that were directed to Oregonians [so] Oregon
has the authority to punish defendant for such conduct”); Craig v.
Holsey, 590 S.E.2d 742 (Ga. Ct. App. 2003) (using reprehensibility
analysis to uphold a 22:1 ratio); Bocci v. Key Pharm., Inc., 76 P.3d 669,
674 (Or. Ct. App. 2003) (using same analysis to uphold a 7:1 ratio).

6

at 5. But that decision and the state court cases cited in
n.2, supra, do conflict with appellate decisions that con-
form to State Farm and BMW. See, e.g., White v. Ford
Motor Co., 312 F.3d 998, 1020 (9th Cir. 2002); Continental
Trend Resources, Inc. v. OXY USA Inc., 101 F.3d 634, 637
(10th Cir. 1996), cert. denied, 520 U.S. 1241 (1997). That is
yet another reason why certiorari should be granted.
Notably, contrary to respondent’s assertion that only a
“small fraction” of cases involving Rezulin remain (R. Br.
at 6), thousands of such cases are still pending in the
federal MDL court and various state courts, so these
issues could arise again in the same context.

Il. THE PUNITIVE DAMAGE AWARD IS UNCON-
STITUTIONALLY EXCESSIVE

Respondent argues that State Farm and BMW are
limited to cases involving economic damages. But this
Court has not said that, and in numerous product liability
cases involving physical harm it granted certiorari, va-
cated the punitive damages judgment, and remanded for
reconsideration in light of State Farm.’ Moreover, lower
courts have applied State Farm and BMW to punitive
damage awards in personal injury/product liability cases.
See, e.g., Boerner v. Brown & Williamson Tobacco Co., 394
F.3d 594, 602-03 (8th Cir. 2005) (reducing punitive dam-
ages in product liability case to a 1:1 ratio, based upon
State Farm and BMW analysis). To the extent that the
Oklahoma Court of Civil Appeals and other courts might
accept respondent’s contention that State Farm and BMW
are inapplicable to personal injury cases, that is another
reason for granting certiorari.

* See Philip Morris USA, Inc. v. Williams, 504 U.S. 801 (2003); Key
Pharms., Inc. v. Edwards, 538 U.S. 974 (2003); Anchor Hocking, Inc. v.
Waddill, 538 U.S. 974 (2003); Ford Motor Co. v. Romo, 538 U.S. 1028
(2003). ‘

7

Respondent’s argument that the punitive damage
award was not unconstitutionally excessive because “ijt
was substantially below the lowest recommended range” is
specious. R. Br. at 29. That “recommendation” was made
to the jury by respondent’s counsel, and ranged from $21
million to $600 million, which in itself demonstrates the
unprincipled nature of the basis on which the jury was
told to calculate punitive damages. By the same reasoning,
any punitive damage award would pass muster so long as
it was lower than the top of some outrageous range re-
quested by the plaintiff’s counsel.

Ill. PETITIONERS’ ARGUMENTS WERE PRE-
SERVED

Respondent's argument that Warner-Lambert failed to
preserve its claims of error is frivolous. The first Question
Presented is whether the punitive damage award conflicts
with State Farm and BMW. See Petition at i. Petitioners
made this precise argument at every stage of the proceed-
ings below. See id. at 7. And the argument was not made
in only “three sentences,” as respondent suggests (R. Br. at
19), but in numerous pages in petitioners’ “Brief in Chief”
(opening brief) and reply brief to the Oklahoma Court of
Civil Appeals. Petitioners specifically argued that the
punitive damage award was unconstitutional because it
was based on worldwide sales and had no nexus to any
harm to the plaintiff. See Appellants’ Brief in Chief at 26-
29 and Reply Brief at 22-29. State Farm was mentioned
five times in petitioners’ Brief in Chief and 14 times in the
reply brief. BMW was mentioned twice in the Brief in
Chief and once on reply.

Respondent admits that the Court of Civil Appeals
“addressed [Warner-Lambert’s] arguments under State
Farm that there was an ‘insufficient nexus between the
punitive damages and the actual harm suffered by plain-
tiff,” and also “addressed [Warner-Lambert’s] argument
that the award violated the guidelines outlined in BMW.”
R. Br. at 15. “Where the court below actually passes on a

8

federal question, any inquiry into whether or when the
question was raised for jurisdictional purposes becomes
irrelevant.” Jenkins v. Georgia, 418 U.S. 153, 157 (1974);
Raley v. Ohio, 360 U.S. 423, 436-37 (1959). Respondent
does not even argue that the second Question Presented
(whether the award is unconstitutionally excessive) was
not preserved. Nor did respondent argue below that the
punitive damages issues were not preserved. Thus, “the
record as a whole” shows that the Questions Presented
were “adequately presented in the state system.” Board of
Dir. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537,
549-50 (1987).

Respondent cites Oklahoma cases stating that points
of error not contained in appellate briefs are waived. But
in each case, the appellant neither made any argument on
the claim of error nor cited any authority.‘ In contrast,
petitioners extensively briefed the punitive damages
issues, based on BMW and State Farm, in both of their
briefs to the Court of Civil Appeals.

Petitioners also asked the Oklahoma Supreme Court
to review these issues. Petitioners’ Brief in Chief was
initially filed with the Supreme Court, which then decided
to refer the case to the Court of Civil Appeals. Recognizing
that the Supreme Court has already seen the Brief in

* Oklahoma City Urban Renewal Auth. v. City of Oklahoma City,
___ P.3d __, 2005 WL 44399 (Okla. Jan. 11, 2005) (claim of error not
briefed); Johnson v. Ford Motor Co., 45 P.3d 86 (Okla. 2002) (nine
points of error asserted, but only three briefed); Tiger Flats Prod. Co. v.
Oklahoma Petroleum, 711 P.2d 106 (Okla. 1985) (claim of error merely
alluded to in briefs, without supporting authority); Peters v. Golden Oil
Co., 600 P.2d 330 (Okla. 1979) (appellant cited no authority and made
no argument to convince appellate court to reverse); Hardeman v. City
of Albuquerque, 377 F.3d 1106 (10th Cir. 2004) (appellants indicated in
their post-trial motion that they were not seeking review of a constitu-
tional issue, and thus failed to preserve it); U.S. v. Zannino, 895'F.2d 1
(1st Cir.), cert. denied, 494 U.S. 1082 (1990) (appellant attempted to
“adopt” arguments of co-defendants in brief without providing any
argument of his own).

9

Chief, the certiorari process in Oklahoma does not provide
for full briefing, but rather for a limited 10-page petition
for certiorari. Okla. Sup. Ct. R. 1.179(b). By rule, “[t}he
petition, answer, and reply shall not reach the merits of
the appeal.” Okla. Sup. Ct. Rule 1.179(d).

Respondent argues that petitioners waived their
argument that the trial court refused their requested
instructions based on BMW, 517 USS. at 572-73, to limit
the jury’s focus to Oklahoma transactions. Respondent
ignores U.S. Supreme Court Rule 14.1(a), which provides
that “[t]he statement of any question presented is deemed
to comprise every subsidiary question fairly included
therein.” Under this rule, “[o]nce a federal claim is prop-
erly presented, a party can make any argument in support
of that claim; parties are not limited to the precise argu-
ments they made below.” Harris Trust and Sav. Bank v.
Salomon Smith Barney, Inc., 530 U.S. 238, 245 n.2 (2000).
Respondent admits that after the trial court delivered its
instructions to the jury, her counsel asked the jury to
calculate punitive damages based on the global profits for
Rezulin, triggering the constitutional issue. R. Br. at 29.
The trial court’s refusal to give instructions, based on
BMW, that it could not award punitive damages based on
out-of-state conduct that had no relationship to any harm
to the plaintiff is part of the procedural history “fairly
included” in the first Question Presented.®

Contrary to respondent’s argument (R. Br. at 20),
petitioners are not contending that the Oklahoma punitive
damages statute is unconstitutional on its face, but that it
was “interpreted and applied” in an unconstitutional
manner. Petition at 16. Petitioners argued in their Brief in
Chief (at 27) that the statute should be interpreted as

* Howell v. Mississippi, 125 S. Ct. 856, 858 (2005), cited by
respondent, is distinguishable because the petitioner “did not properly
present his claim” before the state appellate court “as one arising under
federal law.” Petitioner also cites Oklahoma Supreme Court Rule 15,
but that was repealed in 1997.

10

limited to financial benefit in Oklahoma that has a nexus
to harm to this plaintiff. But the Court of Civil Appeals
held that the statute could encompass “world-wide gross
sales.” A. 17. Under that interpretation, the statute is
unconstitutional in light of BMW and State Farm. That
issue arose only after the Court of Civil Appeals failed to
interpret the statute in a constitutional manner. Petition-
ers then raised the issue in their certiorari petition to the
Oklahoma Supreme Court. R. Br. at 2a.

CONCLUSION

For the foregoing reasons, and the reasons set forth in the
petition, the petition for a writ of certiorari should be granted.

Respectfully submitted,

DAVID KLINGSBERG
Counsel of Record

MARIS VEIDEMANIS

KAYE SCHOLER LLP

425 Park Avenue

New York, New York 10022
(212) 836-8000

STEVEN S. ROSENTHAL
KAYE SCHOLER LLP

The McPherson Building
901 Fifteenth Street, N.W.
Suite 1100

Washington, D.C. 20005
(202) 682-3500

RICHARD M. ELDRIDGE

THOMAS E. STEICHEN

ELDRIDGE COOPER STEICHEN
& LEACH PLLC

110 West Seventh Street

Suite 200

Tulsa, Oklahoma 74119

(918) 388-5555

Attorneys for Petitioners

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1355%3A3. Public record. Not legal advice.