# Petition for Writ of Certiorari — Ford Motor Company v. Buell-Wilson, 127 S. Ct. 2250 (2007) (No. 06-1068) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2116%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 ## Text : a = '. &§ tT oe ‘em id 061068 JAN 3 0 2007 No. __ OFFICE OF THE CLERK IN THE Supreme Court of the United States FORD MOTOR COMPANY. Petitioner. Vv. BENETTA BUELL-WILSON, ET AL. Respondents. On Petition For A Writ Of Certiorari To The California Court Of Appeal PETITION FOR A WRIT OF CERTIORARI THEODORE B. OLSON THEODORE J. BOUTROUS., JR. Counsel of Record WILLIAM E. THOMSON THOMAS H. DUPREE. JR. EILEEN M. AHERN GIBSON, DUNN & CRUTCHER LLP GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue. NW 333 South Grand Avenue Washington. DC 20036 Los Angeles, CA 90071 (202) 985-8500 (213) 229-7000 DAVID G. LEITCH JOHN M. THOMAS ROBERT W. POWELL BRYAN CAVE LLP MICHAEL J. OTREILLY lol N. Clark FORD MOTOR COMPANY Chicago. IL 6060] One American Road (312) 602-5058 Dearborn. MI 48126 (313) 322-7453 Counsel for Petitioner Ford Motor Company QUESTIONS PRESENTED Respondent Benetta Buell-Wilson was injured when she lost control of her Ford Explorer and it rotted over. Although Ford had prevailed in the previous eleven cases alleging similar design defects in the Explorer, a California jury found that the vehicle was defectively designed and awarded re- spondent and her husband more than $368 million, including $246 million in punitive damages. The California Court of Appeal found that the jury had acted with “passion or preju- dice,” and reduced the awards, but upheld liability for both compensatory and punitive damages. The questions presented are: 1. Whether California law deprives defendants of “fair notice” and thus violates the Due Process Clause if it permits the imposition of liability for punitive damages without re- gard to any objective indicators of reasonable conduct— including industry custom, governmental safety standards and policy judgments, and the existence of a genuine debate about what the law requires. 2. Whether, in upholding a $55 million punitive damage award and disregarding objective indicators of reasonable- ness and good faith in determining constitutional excessive- ness, the court rendered the “reprehensibility guidepost” a nullity, by depriving it of any constraining force in product liability cases. 3. Whether the Due Process Clause prohibits using a punitive damage award to punish a manufacturer for selling products not at issue in the case or to third parties not before the court. oF gee ae et i PARTIES TO THE PROCEEDINGS AND RULE 29.6 STATEMENT The plaintiffs in this case are Benetta Buell-Wilson and Barry Wilson. The defendants are Ford Motor Company and Drew Ford. Ford Motor Company has no parent corporation, and no publicly held company owns ten percent or more of its stock. ill TABLE OF CONTENTS Page TRAE 5 PAO UGe PRC RIOEEN BTEED visseronscpessdcperoreentoinnnbmsanenseagenannes i PARTIES TO THE PROCEEDINGS AND RULE BEER EEE ciciiictinsinnticshaiciithacintanibriicicaisitiaiiiaadiaita il FR Se FUR Tt senitnrixinctonensicinubtsinieiaebesinncanin iv OPINIONS AND ORDERS BELOW.................ccccccssecsssseeesees l Fe Sai eter etesiceotcireccesinadnipadlidaaaalicitisercagiisteineisiisiamaduaneaeiaads l CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED............. (iclasdsenasbbeasnetadionciuchionias | Se PA ERIN Ce TRE CA wise scicicincsccnscvsnisssnnigencnvecsivcatonmeen l REASONS FOR GRANTING THE WRIT ........ eee eeeeeeeeeee 9 I. REVIEW IS WARRANTED TO CLARIFY HOW THE DUE PROCESS “FAIR NOTICE” PRINCIPLE APPLIES TO STANDARDS FOR DETERMINING PUNITIVE DAMAGE LIABILITY........000 ee. 9 Il. REVIEW IS NECESSARY TO CLARIFY THE REPREHENSIBILITY GUIDEPOST IN PRODUCT LIABILITY AND PERSONAL INJURY CASES. ......::t.cccssocsseoveceeeses 22 Ill. AT A MINIMUM, THIS COURT SHOULD HOLD THIS PETITION PENDING ITS DECISION IN PHILIP MORRIS V. PRUEAIRONED The imposition of punitive damages in strict liability cases for sale of a lawful product was unknown at common iaw when the Fourteenth Amendment was ratified, and the court of appeal’s approach here, by stripping the analysis of any objective component, is an especially radical departure from the traditional practice. See Honda Motor Co., Ltd. v. Oberg, 512 U.S. 415, 430 (1994) (“Oregon’s abrogation of a well- established common-law protection against arbitrary deprivations of property” violated the Due Process Clause); id. at 436 (Scalia, J., concur- ring) (agreeing that by eliminating protections “traditionally accorded at common law,” Oregon “violate[d] the Due Process Clause”). 6 See, e.g., Anderson v. General Motors Corp., No. BC116926 (Cal. Super. Ct., Los Angeles County) (jury award of $4.8 billion in punitive damages, subsequently reduced by trial court to $1 billion and settled on appeal); Jimenez v. DaimlerChrysler Corp., 74 F. Supp. 2d 548 (D.S.C. 1999) ($250 million punitive damage award), reversed for insufficiency of evidence, 269 F.3d 439 (4th Cir. 2001); Alex Berenson, For Merck, Vioxx Paper Trail Won’t Go Away, N.Y. Times, Aug. 21, 2005, at 1 ($229 mil- lion punitive damage award verdict (later reduced) against Merck regard- ing the drug Vioxx); Estate of Mohr v. DaimlerChrysler Corp., No. CV03-2433 (Tenn. Cir. Ct. February 2005), appeal pending (jury award of $48 million in punitive damages in design defect case); see also Inter- state Southwest Ltd. v. Avco Corp., No. 29,385 (Tex. Dist. Ct. 2005), appeal pending (jury verdict of $86.4 million in punitive damages in case involving commercial dispute over cause of defect in crankshafts used in aircraft engines manufactured by the defendant). 20 deciding whether Ford acted with punishable malice. Review by this Court is imperative if manufacturers are not to be subjected to arbitrary punitive damage awards based upon the whims of individual juries. To say, as the court did here, that the jury could find malice because “there is substantial evidence that Ford decision makers knew how to make the Explorer less dangerous, but chose not to be- cause of financial considerations,” App. 44a, is to place no limit whatsoever on the jury’s discretion to impose punish- ment. That is because a// manufacturers sell products to make a profit, a// products can and do cause injury, and a// design decisions reflect a balance of risks, costs, and utility. See, e.g., Corrosion Proof Fittings v. E.P.A., 947 F.2d 1201, 1223 n. 23 (Sth Cir. 1991) (“over the next 13 years, we can expect more than a dozen deaths from ingested toothpicks”). Many products, like automobiles, by their very nature pose risks of serious injury and death that cannot be materi- ally reduced without significant cost to society in the form of increased prices, less convenience or utility, or even less safety in other circumstances. See generally W. Kip Viscusi, Corporate Risk Analysis: A Reckless Act?, 52 STAN. L. REV. 547, 548-550 (2000). The due process problems arise be- cause once a jury concludes that the product is defective— i.e., that, by its lights, the manufacturer struck the risk-benefit balance in the wrong place—it is all too easy for the jury to take the next step and conclude the manufacturer acted with malice or conscious disregard for safety. In the absence of any objective standards, it will always be possible for a jury to conclude that the manufacturer “disregarded safety” by selling a product that it knew could be made even safer if it spent more money or sacrificed other product benefits. And empirical research shows that juries are more likely to assess punitive damages against manufacturers who have engaged in risk-benefit analysis. Jd. at 550-551, 556-557, 589-590. Deeply compounding the problem, jurors are confronted with deciding whether a product creates “too much risk” in the context of individual cases involving tragic personal inju- 21 ries, using hindsight, on the basis of a highly technical record and arcane and often conflicting opinion testimony from en- gineers and scientists. Stephen Breyer, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE RISK REGULATION 59 (1992); Carroll v. Otis Elevator Co., 896 F.2d 210, 215-216 (7th Cir. 1990) (Easterbrook, J., concurring) (“The ex post perspective of litigation exerts a hydraulic force that distorts judgment. ... [N]o matter how conscientious jurors may be, there is a bias in the system. Ex post claims are overvalued and technical arguments discounted in the process of litiga- tion. And the claims of crippled neighbors receive more weight than do potential injuries to be felt by passengers (and stockholders) in other states.”); Reid Hastie et al., Looking Backward in Punitive Judgments: 20-20 Vision?, in Cass R. Sunstein et al., PUNITIVE DAMAGES: HOw JURIES DECIDE 96, 108 (2002) (concluding that “hindsight bias is almost inevi- table when jurors make punitive damages decisions”). In- deed, if manufacturers can be punished for selling products that reasonable people (such as the jurors in the eleven previ- ous Explorer rollover cases) could conclude are not defec- tive, the only way they can modify their conduct to avoid punishment is to stop selling all products that might be sub- ject to criticism by a plaintiff's expert. See United States v. Powell, 423 U.S. 87, 93 (1975) (explaining why prohibition against charging an “unreasonable” price for sugar was un- constitutionally vague: “Engaged in a lawful business which Congress had in no way sought to proscribe, [the defendant] could not have charged any price with the confidence that it would not later be found unreasonable.”) (emphasis omitted). Product design cases thus pose a particularly high risk that juries will “use their verdicts to express biases against big businesses.” State Farm, 538 U.S. at 417 (citation omit- ted). In fact, the court of appeal found that the jury in this case actually “acted out of passion or prejudice” and “was not acting as a fair and neutral trier of fact” during the same deliberation in which it found that Ford acted with malice and should be punished. App. 35a. And yet the court per- mitted that same jury’s determination of liability for punitive 22 damages to stand without regard to multiple objective factors that demonstrate that Ford’s conduct was objectively reason- able, not malicious. This Court should grant review and make clear that due process forbids such punishment. Il. REVIEW IS NECESSARY TO CLARIFY THE REPREHENSIBILITY GUIDEPOST IN PRODUCT LIABILITY AND PERSONAL INJURY CASES This Court also should grant review to provide guidance on how to evaluate reprehensibility in product liability and personal injury cases. This Court’s decisions in State Farm and Gore were rendered in the financial tort setting and thus the Court has not detailed the factors that should be consid- ered in analyzing reprehensibility in product liability cases involving personal injury, in which many of the most severe and arbitrary punishments are imposed. The court of ap- peal’s rulings not only contradict this Court’s decisions in State Farm and Gore, but also conflict with the Sixth Cir- cuit’s decision in Clark v. Chrysler Corp., 436 F.3d 594 (6th Cir. 2006), and the Ninth Circuit’s decision in Jn re Exxon Valdez, 472 F.3d 600 (9th Cir. 2006). If reprehensibility is properly evaluated, the necessary conclusion # that Ford’s conduct was not remotely reprehensible and the $55 million punishment is grossly excessive and unconstitutional. 1. State Farm and Gore held that the due process exces- siveness analysis should be conducted by reference to three guideposts: the reprehensibility of the defendant’s conduct; the ratio between punitive and actual or potential damages; and the difference between the award and the civil penalties authorized or imposed in comparable cases. State Farm, 538 U.S. at 418. “The[se] principles ... must be implemented with care, to ensure both reasonableness and proportional- ity.” Id. at 428. In Gore, the Court stated that “[t]he most important in- dicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct.” 517 U.S. at 575. “That conduct is sufficiently reprehensible 23 to give rise to tort liability, and even a modest award of ex- empiary damages does not establish the high degree of cul- pability that warrants a substantial punitive damages award.” Id. at 580. The Court also made clear that, even in the face of a finding of malicious fraud or other conduct warranting punitive damages, the existence of “reasonable disagree- ment” about the lawfulness of the defendant’s conduct is a factor that reduces reprehensibility. /d. at 579-580. In State Farm, the Court emphasized the need for “ex- acting” de novo scrutiny of punitive damages under the Due Process Clause. 538 U.S. at 418. The Court stated that “[i]t should be presumed a plaintiff has been made whole for his injuries by compensatory damages, so punitive damages should only be awarded if the defendant’s culpability, after having paid compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve pun- ishment or deterrence.” Jd. at 419. And the Court “in- structed [lower] courts to determine the reprehensibility of a defendant by considering. whether: the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had finan- cial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of in- tentional malice, trickery, or deceit, or mere accident.” Jd. 2. The lower courts have divided over how these factors apply in design defect and other cases outside the realm of the financial torts involved in State Farm (insurance bad faith) and Gore (consumer fraud). The court below concluded that “the reprehensibility of Ford’s conduct was high, given the catastrophic nature of Mrs. Wilson’s injuries, Ford’s reckless disregard for the safety of others, the repeated nature of Ford’s conduct, and the fact that Ford’s acts were intentional.” App. 55a.’ But in 7 While the court purported to be applying a de novo standard in con- ducting its due process review, App. 54a-55a, the court simply adopted 24 reaching this conclusion, the court gave no weight to the many objective factors, such as industry custom, federal regulatory judgments, and reasonable grounds for disagree- ment, that significantly mitigate against any finding of repre- hensibility. This approach conflicts with the Sixth Circuit’s decision in Clark. In Clark, the plaintiff was killed when his Dodge Ram pickup truck collided with a police car and his door opened during the accident and he was ejected. His estate persuaded a federal jury in Kentucky to find that Chrysler had acted with reckless disregard in designing the door be- cause it did not perform certain strength tests on the door frame recommended by plaintiff's experts—so-called “B- pillar twist out tests.” The jury imposed $3 million in puni- tive damages. See 436 F.3d at 596, 603. The Sixth Circuit initially affirmed, but following a re- mand from this Court for reconsideration in light of State Farm, the Sixth Circuit reduced the punitive award to ap- proximately $470,000. In its reprehensibility analysis, the court noted that while there was evidence “sufficient to sup- port the jury’s decision to award punitive damages,” it “dis- agree[d] with the district court’s decision that Chrysler’s conduct is sufficiently indifferent or reckless to support a $3 million award.” Jd.-at 601-602. Contrary to the court of appeal here, the C/ark court ex- pressly relied on Chrysler’s conformance with industry cus- tom and federal regulations and the fact that there was “a good-faith dispute over whether such testing is necessary.” Id. at 603. The court reasoned that, although Chrysler was allegedly aware that General Motors had engaged in such testing and “GM’s test may have alerted Chrysler to the defi- [Footnote continued from previous page] the same extraordinarily deferential view of the evidence that it used when applying the state-law “substantial evidence” test to the jury’s find- ing of malice. App. 56a (“As discussed ante, and as found by the jury ....”). This form of review clearly violates State Farm. 25 ciencies of its B-pillar design and prevented Mr. Clark’s ac- cident,” that did not establish high reprehensibility “because the test was neither required by the government nor used by other manufacturers.” /d. (citing Barber v. Nabors Drilling U.S.A., Inc., 130 F.3d 702, 710 (Sth Cir. 1997) (reversing pu- nitive damage award based on “good faith dispute” whether the defendant’s conduct violated plaintiffs mghts) and Satcher, 52 F.3d at 1317 (vacating punitive damage award based on, inter alia, genuine dispute in scientific community over safety feature at issue)). The Sixth Circuit also rejected the argument that the “fi- nancial vulnerability” factor supports a finding of high repre- hensibility in the product design context. The court ex- plained that, because “{iJn this case, economic injury 1s not involved [and] no other connection between Chrysler’s fi- nancial resources and the physical injury suffered by Mr. Clark was established,” the financial vulnerability “factor weighs against finding Chrysler reprehensible.” 436 F.3d at 604. But the court in this case ruled directly to the con- trary, declaring that “(t]he defendant’s financial condition is an essential factor in fixing an amount,” App. 51a,° and hold- ing that the “vulnerability” factor supported a finding of high reprehensibility because the “target of the conduct in this case was consumers, individuals who were vulnerable.” Jd. at 56a. This ruling also conflicts with the Ninth Circuit’s most recent ruling in the Exxon Valdez oil spill case. In re Exxon Valdez, 472 F.3d at 616-617 (explaining that for this factor to be relevant, “there must be some kind of intentional aiming or targeting of the vulnerable” and “Exxon did not intentionally target subsistence fisherman”). 8 The California court’s use of Ford’s wealth at the time of trial to jus- tify the punishment is itself irrational. While Ford had a net worth of $12.8 billion when the verdict was rendered, it Jost $12.7 billion in 2006. See Jeffrey McCracken, “Big Three Face New Obstacles In Restructur- ing; Ford’s Massive ’06 Loss, GM’s Accounting Woes Underscore Chal- lenges,” Wall St. J., Jan. 26, 2007, at Al. 26 The court of appeal’s finding that Ford’s conduct quali- fied as “intentional” and thus highly reprehensible conflicts with both Clark and Exxon Valdez. The court found that “(t]he evidence presented by the Wilsons in this case sup- ports a finding that Ford’s actions were the result of inten- tional conduct and deliberate decisions by Ford’s manage- ment, knowing the unreasonable risk of harm posed to con- sumers, as opposed to a mere accident.” App. 57a. But this is a strict liability case, not an intentional tort case, and it is undisputed that Ford engineers and executives did not “in- tend” to injure the Wilsons or anyone else. The “evidence” of intent cited by the court is nothing more than the evidence discussed above demonstrating that Ford’s engineers debated the pros and cons of various designs and tests in striking the balance between risk and utility. The Sixth Circuit, however, rejected this approach. Even though Chrysler’s design “was substantially outdated and had been removed from the modern state of the art and state of the industry for over 40 years,” “B-pillar twist-out was a known failure in the automotive industry,” and “Chrys- ler knew that if a driver was ejected, the risk of death sub- stantially increased,” the court rejected the argument that Chrysler’s design decisions could be characterized as “inten- tional.” While the court “agree[d] that Chrysler ignored po- - tential hazards presented by a weak B-pillar,” it “disagree[d] that this [intentional misconduct] factor weighs in favor of finding Chrysler’s conduct reprehensible.” 436 F.3d at 601, 605. The Ninth Circuit’s approach in Exxon Valdez mirrors that of the Sixth Circuit. The court observed that, while Exxon’s conduct “imposing a tremendous risk on a tremen- dous number of people” could not “be regarded as merely accidental,” Exxon “acted with no intentional malice towards plaintiffs .... Exxon did not spill the oil on purpose.” 472 F.3d at 618, 631 n.6. The “conduct did not result in any in- tentional damage to anyone,” and this factor “militates against viewing Exxon’s misconduct as highly reprehensi- ble.” /d. at 618. 27 “ Finally, the California court’s holding that Ford’s con- duct was “more reprehensible” because it was “repeated and not an isolated incident,” App. 56a-57a, also conflicts with Clark. While Ford won the eleven prior trials alleging the same defects in the Explorer—and then won two victories during the trial below and additional victories since?—the ~ court ruled that Ford’s conduct was “repeated.” /d. But the Sixth Circuit rejected this argument: “The district court also held that Chrysler’s conduct was not isolated because . . . Chrysler put anyone who drove a Dodge Ram pickup truck at risk. Because there is no evidence that Chrysler repeatedly engaged in misconduct while knowing or suspecting that it was unlawful, we conclude to the contrary.” 436 F.3d at 604; see also Part ILI infra. 3. The court of appeal’s approach “make[s] ‘reprehensi- bility’ a concept without constraining force,” Gore, 517 U.S. at 590 (Breyer,-J., concurring),!° and contradicts this Court’s decision in Gore. In Gore, the jury found that the defen- dant’s policy with respect to the disclosure of factory repairs constituted ““gross, oppressive, or malicious’ fraud” even though that policy was consistent with statutes defining dis- closure obligations in about 25 States. 517 U.S. at 565. Ala- bama had no such disclosure statute, and this Court “ac- cept[ed] . . . the jury’s finding that BMW suppressed a mate- rial fact which Alabama law obligated it to communicate.” 517 U.S. at 579-580. Nevertheless, this Court recognized that BMW, in attempting to determine what it was required 9 See, e.g., Shatz v. Ford Motor Co., 412 F. Supp. 2d 581 (N.D. W. Va. 2006) (jury verdict in Ford’s favor); Davis v. Ford Motor Co., No. Civ. A. 302CV271LN, 2006 WL 83500 (D. Miss. Jan. 11, 2006) (mem. op.) (judgment as a matter of law in Ford’s favor); cf Jaramillo v. Ford Motor Co., 116 Fed. Appx. 76 (9th Cir. 2004) (initial jury verdict in favor of Ford reversed and remanded for new trial). 10 See also TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 480- 481 (1993) (O’Connor, J., dissenting) (“[w]ithout objective criteria on which to rely, almost any decision regarding proportionality will be a matter of personal preference”) (citation omitted); Haslip, 499 U.S. at 23 (affirming punitive damages where they “did not lack objective criteria”). 28 to disclose, “could reasonably rely on [other] state ... stat- utes for guidance.” /d. at 579. The Court also noted that the “diversity” of state laws “demonstrates that reasonable peo- ple may disagree about the value of a full disclosure require- ment.” /d. at 570. The Court concluded that a failure to dis- close is “less reprehensible . . . when there is a good-faith basis for believing that no duty to disclose exists,” id. at 579- 580, and when “a corporate executive could reasonably in- terpret” the law to allow nondisclosure. Jd. at 578. This same analysis is equally applicable in product li- ability cases. Even if some amount of punitive damages can be imposed because respondents’ paid experts disagree with Ford—and with Ford’s experts, the federal government, the entire motor vehicle industry concerning stability and roof design, and many other juries—the existence of grounds for reasonable people to disagree on this issue is surely relevant to the reprehensibility analysis, just as the state disclosure statutes were relevant to that issue in Gore. But the court below simply disregarded these and all other objective indi- cators of good faith and reasonableness in branding Ford’s design decisions highly reprehensible. This Court should grant review because meaningful ap- plication of the reprehensibility guidepost is crucial in prod- uct liability cases. As this case shows, such cases often pro- duce very substantial compensatory damage verdicts, includ- ing large non-economic damage awards for pain and suffer- ing and emotional distress. Absent careful and objective scrutiny of reprehensibility, even a 1:1 or 2:1 ratio between punitive and actual damages can result in a “a punitive sanc- tion that is tantamount to a severe criminal penalty,” Gore, 517 U.S. at 585, and unconstitutional. lil. AT A MINIMUM, THIS COURT SHOULD HOLD THIS’ PETITION PENDING ITS DECISION IN PHILIP MORRIS V. WILLIAMS. Philip Morris USA v. Williams, No. 06-1289, presents the question whether the Oregon courts improperly punished Philip Morris for allegedly causing harm to third parties not 29 before the courts in that case. That issue is squarely, and quite graphically, presented in this case. Ford filed a motion in limine to bar any punitive damage evidence or argument that did not relate to conduct that caused injury to respondents (Motion in Limine No. 31), and a separate motion to exclude the Bronco II evidence. Re- spondents’ Appendix 12-17; RT82-89. The court denied that motion, but granted Ford a standing objection. RT629. At trial, respondents focused extensively on the Bronco II, at- tacking the Bronco II’s design in their opening and closing arguments, and spending the better part of several days ex- amining witnesses about it. See, e.g., RT662-690, 1247- 1251, 1269-1272, 1274-1275, 2858-2880, 2887-2893, 2906- 2909, 2991-2996, 8169-8174, 8508-8509. And they encour- aged the jury to impose punitive damages based on the Bronco II. RT8172-8174. Although Ford asked that the jury be instructed that “[i]n determining the appropriate amount of punitive damages ... you may consider only the harm to the plaintiffs,” App. 103a, the court denied the instruction, RT8497-8498, and the jury imposed $246 million in punitive damages. Respondents ac- knowledge that the award was based in part on Ford’s sale of supposedly “other defective vehicles,” including the Bronco Il and the Pinto. App. 107a. As there is no allegation that respondents were harmed by the Bronco II or the Pinto, there can be no dispute that the jury and the court below punished Ford for alleged harm to third parties. Yet the court rejected Ford’s arguments that due process precluded the imposition of punitive damages for its sale of the Bronco II or for other- wise allegedly harming third parties. App. 56a-57a. Moreover, to the extent it assumed that every sale of the Explorer is an example of “repeated” misconduct the court effectively nullified Ford’s many prior victories in Explorer cases, and inflicted punishment based on conduct exonerated by other juries. The court has also subjected Ford to the threat of duplicative punishment in future cases that rely on the same supposed “repeated” conduct to impose additional 30 punitive damages for marketing the Explorer. See State Farm, 538 U.S. at 423. Accordingly, this Court should, at a minimum, hold this petition pending the decision in Williams. CONCLUSION The Court should grant certiorari and set this case for plenary consideration, or, in the alternative, hold this petition pending its decision in Williams. Respectfully submitted. THEODORE B. OLSON THEODORE J. BOUTROUS, JR. Counsel of Record WILLIAM E. THOMSON THOMAS H. DUPREE, JR. EILEEN M. AHERN GIBSON, DUNN & CRUTCHER LLP GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, NW 333 South Grand Avenue Washington, DC 20036 Los Angeles, CA 90071 (202) 955-8500 (213) 229-7000 DAVID G. LEITCH JOHN M. THOMAS ROBERT W. POWELL BRYAN CAVE LLP ~ MICHAEL J. O’REILLY 161 N. Clark Ford Motor Company Chicago, IL 60601 One American Road (312) 602-5058 Dearborn, MI 48126 (313) 322-7453 Counsel for Petitioner Ford Motor Company January 30, 2007 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2116%3A01. Public record. Not legal advice.