Are you in federal court, considering the certification of state-law questions to the Ohio Supreme Court?
Brad Hughes, partner in the firm's Appellate and Supreme Court practice group, authored the white paper "Are you in federal court, considering the certification of state-law questions to the Ohio Supreme Court? Some past and present points to ponder."
In October 2014, District Judge Watson of the U.S. District Court for the Southern District of Ohio certified a question of state law to the Ohio Supreme Court in a significant breach-of-contract dispute between American Municipal Power, Inc. and Bechtel Power Corporation. The dispute before him in federal court concerned Bechtel’s alleged breach of an engineering, procurement and construction contract for a coal-fired power plant. Judge Watson wanted to know whether, under Ohio law, reckless conduct by a contracting party—as distinct from willful or wanton conduct—may preclude that party from enforcing a limitation-of-liability clause in the agreement. In his order certifying this question, Judge Watson noted that “resolution of the issue implicates the difference between $97 million and $500,000 in potential damages” in the dispute between AMP and Bechtel. Out-of-state counsel were admitted pro hac vice in the Supreme Court to litigate the certified question, 200 pages of preliminary and merits briefing were submitted by the parties, and the Ohio Council of Retail Merchants joined the fray as an amicus curiae. A year after Judge Watson certified the question—almost five years into the underlying lawsuit between AMP and Bechtel— 45 minutes of pitched oral argument on the certified question took place before the Supreme Court in Columbus. Last summer, though, by a vote of 5-2, the court issued a one-sentence entry declining to answer Judge Watson’s question, with no reason given. Am. Mun. Power, Inc. v. Bechtel Power Corp., 146 Ohio St. 3d 251, 2016-Ohio-3431. So the parties returned to federal court, where they continued to litigate their dispute until a stipulated dismissal, without the benefit of an answer to the question that Judge Watson certified. The certified question interlude in Bechtel Power, which took 18 months, calls to mind Macbeth’s tale “full of sound and fury, signifying nothing.”