Reprinted with permission from The
National Law Journal, October 16, 1995. Copyright 1995 by the New York Law
FOE OF PUNITIVES TRIES TO NUDGE THE
ANDREW FREY CAREFULLY BUILDS A BODY OF LAW AS HE AIMS FOR THE PRIZE-A
WIN FROM THE JUSTICES.
Law Journal Staff Reporter
WASHINGTON - For the federal government's
top Supreme Court litigators, the primary concern is long-term, not to win but
to develop the law. But trade the traditional morning coat for a business suit
and clients with millions of dollars at stake; then, winning in the nation's
highest court becomes paramount.
But Andrew L. Frey, who spent almost as
many years in the Office of Solicitor General, representing the United States,
as he has in private practice, aims to do both-win and develop the law,
particularly the law on punitive damages.
Mr. Frey, 57, a partner in the
Washington, D.C., office of Chicago's Mayer, Brown & Platt, is a
first-string Supreme Court player who moves easily with the best from one
complex legal challenge to another. But what earns him a spot in a rather small
subset of Supreme Court regulars is his careful, creative and tenacious nudging
of the justices toward his view of one area of the law in case after case after
When he stands before the justices on
the morning of Oct. 11, the bearded advocate will argue-in his typically
straightforward, poker-faced, slightly nasal delivery-his 62d high court case.
It also will be the fifth punitive damages challenge to be heard by the court in
six years. Of those five punitive damages cases, Mr. Frey has been shepherd to
three, a remarkable record given the awesome hurdles to winning high court
And while he and his firm have been busy
at the high court, they also have led the charge in lower courts against what
they believe are excessive punitive damages awards, strategizing with defense
lawyers on how to minimize a company's exposure and laying the constitutional
groundwork for appeals.
Although the Supreme Court holds open
the door to punitive damages challenges by business, it has not yet asked
business to stay for dinner. Of the last four punitive damages decisions,
business scored but one victory, on narrow grounds unique to the state of
Oregon. That victory belonged to Andy Frey.
Given the justices' apparent reluctance
to curb these awards, lawyers and court scholars who have followed the justices'
decisions closely are not certain why they took BMW of North America Inc. v.
Gore, 94-896, this term. Some justices repeatedly have voiced concern about
punitive damages that "run wild," but the court has refused to draw "a
mathematical bright line" to guide lower courts on when damages awards are
The BMW case ultimately may not turn on
the issue of the excessiveness of the $2 million award being challenged. But if
it doesn't, "logic dictates they should take another case," says Mr. Frey. "I
don't think this is a situation where you have to convince the court there is a
problem. They just don't know what to do about it."
A Logical Approach
As a child, when sleep failed to chase
the remains of a busy day, Andy Frey did not count sheep; he multiplied
five-digit numbers by five-digit numbers in his head.
As an adult, he relaxes in his D.C. home
at a custom-made poker table, in a weekly game which for 25 years has hosted
such amateur card sharks as former White House counsel Abner Mikva.
He also does logic puzzles to engage and
relax the mind.
"He has an almost encyclopedic
understanding of the law: He understands how disparate aspects of the law fit
together in an almost holistic way," says Evan M. Tager, his colleague in the
firm's Supreme Court and Appellate Practice Group. "You seldom see that in any
His love of logic puzzles, adds Mr.
Tager, is emblematic of his approach to legal problems. "He looks first to the
logic; it is central to his approach," he explains.
Mr. Frey, who graduated first in his
class from Columbia University School of Law in 1962, is "one of the best people
I've met to analyze a legal problem," says longtime friend Kenneth S. Geller,
managing partner of the firm's D.C. office and a former deputy solicitor general
who served with Mr. Frey. "It's rare when he's caught off guard in an argument
because he has worked his position through to basic principles."
And, he adds, "Andy has probably given
more thought to the analytical underpinnings of punitive damages than anybody
else in the country."
The three men, along with Charles A.
Rothfeld and Andrew J. Pincus, have become the firm's de facto punitive damages
team. If he adheres to prior practice, before arguing the BMW case before the
high court, Mr. Frey will have conducted a moot court, sponsored by the U.S.
Chamber of Commerce, and tested his argument's strengths and weaknesses before
the team, all of whom, with the exception of Mr. Tager, served in the Solicitor
Mayer Brown was drawn into the punitive
damages battle about a decade ago through its work for a client, the Products
Liability Advisory Council, a Tysons Corner, Va.-based association of products
liability defense attorneys, recalls Mr. Frey. The council wanted an overview of
punitive damages law.
While a long, detailed memo for the
council was in its final stages, Mr. Frey says, "Serendipitously, I got a call
from Paul McGrath asking if I would be interested in getting Browning-Ferris
into the Supreme Court."
At the time, J. Paul McGrath, now
corporate counsel to Allied-Signal in Morristown, N.J., was with New York's
Dewey Ballantine. His client Browning- Ferris, the waste disposal giant, was
fighting a $6 million punitive damages award.
Mr. McGrath had worked in the Justice
Department's civil and antitrust divisions when Mr. Frey was deputy solicitor
general. "He was my coach, mentor, sparring partner, in my first two arguments
in the Supreme Court," he recalls. Turning to Mr. Frey at Mayer Brown, he adds,
"was like working with the crew at the S.G.'s office."
In Browning-Ferris Industries v. Kelco
Disposal Inc., 492 U.S. 257 (1989), the justices rejected Mr. Frey's claim that
the Eighth Amendment's guarantee against "excessive fines" applied to punitive
After Browning-Ferris, the high court
took up three punitive damages challenges, all based on the 14th Amendment's due
process clause. In two, Mr. Frey did not play a central role, but made his
clients' views known in amicus briefs. In the third, Mr. Frey scored business'
only victory thus far.
In Pacific Mutual Life Insurance Co. v.
Haslip, 499 U.S. 1 (1991), and TXO Production Corp. v. Alliance Resources Corp.,
113 S.Ct. 2711 (1993), the high court upheld punitive awards that were four
times and more than 500 times the compensatory damages, respectively. Review of
the punitive damages awards by the trial courts and appellate courts, the
justices said, met the demands of due process.
Refusing to articulate a test that would
fit every case, the court in Haslip said "general concerns of reasonableness and
adequate guidance from the court" should determine whether due process has been
But in Honda Motor Co. v. Oberg, 114
S.Ct. 2331 (1994), Mr. Frey, up against Harvard Law School's Laurence Tribe,
returned to convince the justices that an Oregon statute barring trial and
appeals courts from reviewing jury-issued punitive damages awards violated the
due process clause.
From the last three high court cases,
Mr. Frey says, "We've gained a clear and unequivocal recognition there is a
substantive due process right to be free from unreasonably excessive punitive
damages. What we don't know is what the content of that right is. Honda
recognized this was unfinished business. I think the court took BMW to start
Mr. Frey says his work on punitive
damages parallels his experience in the Solicitor General's office. He joined
that office as an assistant in 1972, and a year later became the deputy
solicitor general for criminal appeals, a position he held for 13 years and in
which he became noted for developing the law on the exclusionary rule, Miranda
and double jeopardy.
Persuading the Justices
During that period, the law surrounding
double jeopardy was very unsettled and the high court began to work its way
through a series of related problems. Mr. Frey is credited by scholars and
others with persuading the justices, in case after case, to read the double
jeopardy clause as he did, ultimately taking a pro-law enforcement
In Lincoln Caplan's book on the
solicitor general's office, "The Tenth Justice," double jeopardy scholar Peter
Westen, of the University of Michigan Law School, called Mr. Frey's work "just
highly intelligent advocacy...He just tested old myths about doctrine, and came
up with ideas based on good legal reasoning. It was a careful, methodical,
With punitive damages and the high
court, the process is similar, says Mr. Frey, explaining, "You have a dialogue
with the court as it works through these issues. I get a great deal of
satisfaction from that."
Mr. Frey and his team are not the only
voices of business talking to the high court about punitive damages. Other
significant players include Theodore B. Olson, of the D.C. office of Los
Angeles' Gibson, Dunn & Crutcher, and Carter Phillips, of the D.C. office of
Chicago's Sidley & Austin.
At Mayer Brown, punitive damages work is
not a large percentage of its huge appellate practice, says Mr. Geller, but "it
involves some of our most significant cases."
Besides its work on the excessive fines
and due process issues, Mr. Frey and his team have brought to the high court in
the BMW case a new wrinkle, the so- called extraterritoriality issue. In the TXO
decision two years ago, the justices said juries could consider a defendant's
alleged wrongdoing in other jurisdictions to show a pattern of conduct or intent
in determining whether to award punitive damages. In BMW, Mr. Frey argues, the
Alabama jury went a step further.
In punishing BMW for failing to disclose
it had repainted a new car before Dr. Ira Gore Jr. bought it, he contends the
jury illegally multiplied the $4,000 in compensatory damages by the 1,000
refinished cars sold by BMW over a 10-year period throughout the United States,
even though failure to disclose would not have been illegal in some states. When
the Alabama Supreme Court later reduced the award to $2 million, he adds, its
remittitur was tainted by the original illegal jury award.
Mayer Brown also is developing "good
constitutional arguments" for the bifurcation of trials to determine whether
punitive damages should be awarded, says Mr. Tager, and is working on issues
surrounding multiple awards for the same conduct.
"Sensitizing lawyers to adequately
preserve these issues is still a very live problem," says Mr. Frey. "The earlier
we get involved, the greater the likelihood we can help; we have just spent so
much time thinking through these issues."
When he first began researching the law
and history of punitive damages a decade ago, "it was a sleepy backwater" of
academic interest, recalls Prof. Michael Rustad, of Suffolk University Law
School in Boston.
"Punitive damages have been around a
long time, but all of a sudden, in the ' 80s, we see this theory that they are
amercements [pecuniary penalties] under the Eighth Amendment," he says. "That is
quite amazing. When that challenge was rebuffed, they mounted
Case for Punitives
All of the empirical evidence shows
punitive damages are used appropriately, says Professor Rustad, who is
supporting Dr. Gore in the BMW challenge. A joint study by the Justice
Department and National Center for State Courts this summer reported that
punitive awards, particularly in products liability and medical malpractice
cases, are rare, he notes.
"I would never say that in individual
cases there are not injustices," says Professor Rustad, a punitive damage
scholar. "But the high-ratio awards tend to be reduced or vacated by trial or
"To suggest this is an issue of due
process magnitude is another global achievement. How these lawyers were able to
step-by-step lay the foundation for a due process challenge is an amazing
Faced with the "creative lawyering" of
Mr. Frey and others, Professor Rustad and his supporters say Dr. Gore was wise
to turn to another Supreme Court veteran, Michael Gottesman, of Georgetown
University Law Center, to fend off the BMW challenge. Professor Gottesman urges
the justices not to decide the constitutional questions because legislation in
Congress addresses those issues.
Not only should the Supreme Court stay
out of the fray, says Professor Rustad, so should Congress. "This has always
been the province of the states and they have been very active in mounting their
A major cottage industry of lawyers and
interest groups has grown up around the punitives issue, he adds. "From 1986
until today, look how far they've come with this. Where they'll go next, I don't
For now, Andy Frey is focused on Oct.
11. He says he waits until the day before a high court argument to decide what
he actually will say.
"That's part of his persona; it makes
him look a little risque," chuckles Mr. Geller. "The truth is he has thought
about his argument for months."
The only time his day-before method
threatened to fail was when he was deputy solicitor general and thought he was
having a heart attack the afternoon before an immigration argument. "It was
actually something I ate in the Justice Department cafeteria," he recalls. "I
got home from the hospital about 11 p.m., totally washed out, and started making
an argument outline."
Mr. Geller still remembers him lying on
the couch in Mr. Geller's adjoining office. The next day, Mr. Geller says, Mr.
Frey delivered a "brilliant argument, typical of his composure and
Although the BMW case may be decided on
the extraterritoriality issue, the high court also agreed to hear the
excessiveness challenge, reminds Mr. Frey. That shows the justices feel the
lower courts need guidance and explains why logic dictates they will take
another case if they don't address it in BMW, he says.
And when that occurs, Mr. Frey adds, "My
hope is to have the right case in place."
10/16/95 NLJ A1, (col.
more American Lawyer Media news on the Web on law.com
Andrew Frey graduated first
in his class at the Columbia Law School and was Notes Editor of the Columbia Law
Review. After graduation he served as law clerk to Judge George T. Washington of
the D.C. Circuit. Following some years in private practice, he joined the
Solicitor Generalís Office, where he served for 14 years. For most of that
period, Andy held the position of Deputy Solicitor General in charge of the
federal governmentís criminal litigation in the Supreme Court. Andy received
numerous Presidential and Department of Justice awards while serving with the
Department. He has argued more than 60 cases in the Supreme Court (most
recently, BMW v. Gore). He also represented the White House in its
recent dispute with the Whitewater Independent Counsel over attorney-client
privilege issues. Andy is a member of the American Law Institute and the
American Academy of Appellate Lawyers.† Full attorney profile.
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