On March 11, I joined Tiger Joyce, President of the American Tort Reform Association, and Dan Mehan, President and CEO of the Missouri Chamber of Commerce and Industry, in a Washington Legal Foundation webinar about the issues raised in a recently filed petition for certiorari seeking review of a $2.1 billion Missouri state-court judgment. You can view the webinar here.
Continue Reading Evan Tager Discusses Whether A Case Involving Baby Powder Might Yield The Next Blockbuster Supreme Court Punitive Damages Decision
A Tribute To Andy Frey Upon His Retirement From Mayer Brown
Adding to the list of sad things that happened in 2020, my long-time friend and mentor Andy Frey retired from Mayer Brown at the end of the year. Although Andy will remain available to consult on punitive damages and other matters as needed, I will greatly miss our regular collaboration in the effort to make the law of punitive damages fairer and more rational.
Andy joined Mayer Brown in 1986 after a lengthy stint in the Solicitor General’s office, where he served as Deputy Solicitor General with responsibility for the criminal docket for 13 years. During his time in the SG’s office, Andy helped steer the Supreme Court to fundamentally revise its constitutional criminal-procedure jurisprudence in several critical respects. In addition, he developed an appreciation and knowledge of the purposes of criminal sentencing that later informed his approach to punitive damages.
Continue Reading A Tribute To Andy Frey Upon His Retirement From Mayer Brown
Eighth Circuit Okays 25:1 Ratio In Fraud Case
Ordinarily, a ratio of 25:1 would ring the death knell for a punitive damages award. But just as a 1:1 ratio is not always a safe harbor, a double-digit ratio is not always indicative of a punitive award that exceeds constitutional bounds.
Such is the case in Adeli v. Silverstar Automotive, Inc.
Continue Reading Eighth Circuit Okays 25:1 Ratio In Fraud Case
Fourth Circuit Reverses Findings Of Vicarious Punitive Liability Under Title VII And North Carolina Law
Making important law on the question of vicarious liability for punitive damages, the Fourth Circuit recently reversed awards of punitive damages under Title VII and North Carolina law in Ward v. AutoZoners.
The case involved alleged peer-on-peer sexual harassment at an AutoZone store. Keith Ward, an AutoZone employee, reported to multiple supervisors that a coworker, Christina Atkinson, had targeted him repeatedly for lewd remarks and inappropriate physical contact. Ward alleged that the supervisors took ineffective action in response, causing him to suffer anxiety, stress, and chest pains that required medical attention.
Continue Reading Fourth Circuit Reverses Findings Of Vicarious Punitive Liability Under Title VII And North Carolina Law
An Update On Recent Excessiveness Decisions: Part II
Last week, I posted the first installment of a two-part series on recent excessiveness decisions. In this second installment, I discuss two additional excessiveness decisions.
In re: Volkswagen “Clean Diesel” Marketing, Sales Practices, & Products Liability Litigation
This case involves allegations that Volkswagen used so-called defeat devices to evade federal and state emissions test procedures. After more than 1,000 vehicle owners sued Volkswagen, alleging fraud and California statutory claims, the company entered into two settlements. Ten vehicle owners opted out.
Continue Reading An Update On Recent Excessiveness Decisions: Part II
An Update On Recent Excessiveness Decisions: Part I
During the past couple of months, courts have been busy addressing excessiveness challenges to punitive damages awards. In this post, I discuss two recent decisions. In a second post, I will cover two additional decisions.
This is a class action under the Fair Credit Reporting Act (“FCRA”). In essence, the plaintiffs alleged that TransUnion included in their credit reports an erroneous notification that they are on a government terrorist watch list.
Continue Reading An Update On Recent Excessiveness Decisions: Part I
Seventh Circuit Agrees With Mayer Brown Amicus Brief That $3 Million Punitive Damages Award Was Unconstitutionally Excessive
Last summer, my colleague C.J. Summers and I posted a report about Saccameno v. U.S. Bank National Association, a Seventh Circuit case in which we had filed an amicus brief on behalf of the Chamber of Commerce of the United States.
In late November 2019, the Seventh Circuit issued an opinion reducing the punitive damages to a 1:1 multiple of the compensatory damages, agreeing with both the bottom line and a good deal of the analysis in our brief. And in late January 2020, the court denied the plaintiff’s rehearing petition.
Continue Reading Seventh Circuit Agrees With Mayer Brown Amicus Brief That $3 Million Punitive Damages Award Was Unconstitutionally Excessive
A $6.8 Million Band Aid
Last October, I reported on the $8 billion punitive verdict returned by a Philadelphia jury against Johnson & Johnson in a case alleging that the company had failed to warn that its antipsychotic drug Risperdal could cause young men to develop breasts.
I expressed the view that a punishment of this size in an individual case is proof positive that the jury was animated by passion and prejudice and that a reduction of the punitive award would therefore be an inadequate remedy.
Regrettably, the trial court overlooked the fact that preposterous awards like this are indicative of a malfunctioning jury and instead merely reduced the punitive damages to $6.8 million—ten times the compensatory damages.
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If This Isn’t A Product Of Passion Or Prejudice, What Is?
By now, you’ve probably read reports of the $8 billion punitive verdict against Johnson & Johnson in an individual case alleging failure to warn that young men using its antipsychotic drug Risperdal could develop breasts. Robot-like, virtually every article about the verdict says that the verdict is likely to be reduced because it is disproportionate to the $680,000 award of compensatory damages.
Continue Reading If This Isn’t A Product Of Passion Or Prejudice, What Is?
Mayer Brown Submits Amicus Brief For Chamber Of Commerce In Seventh Circuit Appeal Involving Proper Application Of Punitive Damages Guideposts
Although the Supreme Court identified three guideposts for evaluating whether a punitive award is unconstitutionally excessive 23 years ago in BMW v. Gore and refined those guideposts 16 years ago in State Farm v. Campbell, lower courts continue to make conceptual errors interpreting and applying the guideposts. The Seventh Circuit will have the opportunity to address and rectify several such errors made by a district court in upholding a $3 million punitive award in Saccameno v. U.S. Bank National Association.
Continue Reading Mayer Brown Submits Amicus Brief For Chamber Of Commerce In Seventh Circuit Appeal Involving Proper Application Of Punitive Damages Guideposts