Massey Energy Wins Round 2

For those of you who don’t read the news — or watch stock prices — Massey Energy won again in the Supreme Court.  By a 3-2 majority, the Court again vacated a jury’s $50 million verdict won by Harmon Energy against Massey.

This is what I find baffling:  It took Justice Robin Davis 88 pages and 9 shiny new syllabus points to explain res judicata and the meaning of a forum selection clause in a contract?  Methinks she doth protest too much.  And Justice Albright’s dissent stretches for 55 pages (plus a 40 page appendix)?

Who the hell do they expect to read this stuff?  Or is this just an example of “baffling them with bullshit.”  You know, make the opinion so long and boring that (a) we presume it is an example of good scholarship, and (b) we never read it to discover if it contains fallacious reasoning.

I’ve tried to read the opinion, but I think the dissent says it all: its a result-oriented opinion “with the single-minded purpose of nullifying the work” of a jury that, in the future, will be horrible for West Virginia businesses.  I mean, the majority’s opinion doesn’t even contain a readable version of the facts; you’ve got to read the dissent to truly understand what happened.

Now, before you jackasses out there (particularly Steve Cohen at Citizens Against Lawsuit Abuse) post any more giddy comments suggesting this decision is “pro-business” or the will of God or some other nonsense, remember one little fact:

The plaintiffs, who were driven into bankruptcy by Massey Energy, were themselves small businesses. 

As the dissent notes, the majority opinion places “such unrealistic requirements as to foreseeability on contracting parties, the majority makes West Virginia a truly vulnerable place to do business.”  So for those of us representing small business, we’ve got a tough time explaining this case to your clientele.  For you jackasses getting funding from Phillip Morris, high-fives and shots all around.

My bet: this case is headed for the U.S. Supreme Court, and will probably be reversed.  In footnote 16 of the dissent, Albright points out the obvious:  Justice Benjamin’s presence on the case violated the Due Process rights of the litigants.  The U.S. Supreme Court once said that “justice must satisfy the appearance of justice.”  By receiving $3.5 million in campaign support from Don Blankenship, Massey’s CEO, while this case was pending appeal — at the same time that Benjamin was an unknown candidate who only raised a few hundred thousand in campaign donations — Benjamin carries the appearance of being in Blankenship’s pocket.  And by sitting on the appeal, it carries every appearance of Benjamin “staying bought.”