Photo of Andrew L. Frey

Andy Frey has been integral to the development of constitutional limitations on punitive damages for over 30 years.  During that time, he has argued four punitive damages cases in the US Supreme Court for business defendants, including BMW of North America, Inc. v. Gore, the Court’s seminal excessiveness case, as well as Philip Morris USA v. Williams and Honda Motor Co. v. Oberg, each of which resolved procedural due process challenges in favor of our clients.  No other defense counsel has argued more than one punitive damages case in the Court.  Andy also has successfully argued punitive damages cases in many lower federal and state courts.  Andy has represented insurers, automobile manufacturers, consumer product manufacturers, pharmaceutical companies, energy companies, financial institutions, and many other kinds of businesses in punitive damages litigation.

In addition, Andy has written many scholarly pieces on punitive damages, including co-authoring with Evan Tager and Lauren Goldman the chapter on punitive damages in the ABA’s multi-volume treatise, Business and Commercial Litigation in Federal Courts.  Andy has also often appeared on panels on punitive damages.

Andy retired from Mayer Brown in 2020, but remains available to assist Mayer Brown clients with punitive damages litigation.

Two Sides to a StoryAs we noted in a prior post, many state legislatures and supreme courts have mandated that the amount of punitive damages be tried separately from other issues in the case if the defendant so requests.  The principal impetus for mandating this procedure was concern that evidence of the defendant’s financial condition, though assumed to be relevant to the amount of punitive damages, is undeniably irrelevant to and presents a grave risk of prejudicing the resolution of the other issues in the case—i.e., liability for the underlying tort, comparative fault, compensatory damages, and liability for punitive damages.

We will address in a future post why the assumption that an organization’s financial condition is relevant to the setting of punitive damages is false.  But the purpose of this post is to take sides in the debate over whether this safeguard—colloquially known as bifurcation—is worth invoking.

Continue Reading To Bifurcate Or Not To Bifurcate, That Is The Question

Concept_Split Coin_14927417MediumThere are substantial tactical questions whether or when it is in the defendant’s interest to seek bifurcation of the amount of punitive damages from other trial issues and whether the defendant should in some circumstances seek bifurcation of all punitive damages issues from compensatory damages issues or trifurcation so that punitive liability and punitive amount are each tried in separate second and third phases, respectively (if necessary).

Those are subjects for another post.  This post concerns the defendant’s right to have a separate proceeding to determine punitive amount, which is the most common form of bifurcation.

Continue Reading Why Defendants In Punitive Damages Cases Have A Due Process Right To Bifurcation

The threat of large punitive damages awards is particularly acute for businesses, large and small.  Like many of its counterparts in other states, the Montana legislature sought to relieve businesses of the unpredictability and hydraulic pressure to settle created by the risk of uncabined punitive awards by imposing a cap on such awards: the lesser of $10 million or 3% of a defendant’s net worth.

615px-Flag_of_Montana.svgThough similar restrictions have generally, but not always, withstood state constitutional challenge, a Montana state trial court judge struck down the cap as unconstitutional a little over three months ago.  The defendant, with support from the Montana Attorney General as intervenor and two Montana business organizations as amici, has urged the Montana Supreme Court to reverse the lower court and uphold the constitutionality of the cap.  (For copies of their briefs, click here and search for case DA 14-0113). 

Our friends at the California Punitive Damages Blog recently issued this post on a decision of the West Virginia Supreme Court of Appeals reducing an $80 million punitive award against a nursing home to $32 million. The post focuses on the court’s conclusion that a reduction of the compensatory damages from $11.5 million to $4.6 million necessitated a proportionate reduction in the punitive damages.  The post points out that courts in California have been divided as to whether that kind of automatic proportionate reduction is appropriate.
Continue Reading California Punitive Damages Blog Reports On Recent West Virginia Supreme Court Decision