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Evan Tager is a member of the Supreme Court & Appellate practice in Mayer Brown's Washington, DC office. Identified by Chambers USA as one of America's leading appellate lawyers for the past eight years, and profiled by Legal Times as a leading appellate lawyer, Evan has been integrally involved in a range of issues of paramount importance to the business community, including punitive damages, class certification standards, admissibility of expert testimony, and enforceability of arbitration agreements.
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A bankruptcy judge in the Eastern District of California recently issued a decision that is sure to raise appellate eyebrows.

Concluding in In re Sundquist that the defendant bank had violated the automatic stay by foreclosing on the home of a bankrupt mortgagor and enraged by what it perceived to be heavy-handed behavior both before and after the stay violation, the court awarded the plaintiffs $1,074,581.50 in compensatory damages and ordered the defendant to pay a whopping $45 million in punitive damages—i.e., nearly 42 times the quite substantial compensatory award.

But concerned that such a massive amount of punitive damages would be a windfall to the plaintiffs, the judge ordered the plaintiffs to pay $40 million, minus applicable taxes, to two non-profit organizations whose stated mission is to advance the interests of consumers in litigation and bankruptcy proceedings—the National Consumer Law Center and the National Consumer Bankruptcy Rights Center—and the five California state law schools. Specifically, the judge decided to bestow $10 million each (before taxes) on the two consumer law centers and $4 million each (before taxes) on the five law schools.
Continue Reading Bankruptcy Court Imposes Massively Disproportionate $45 Million Punitive Exaction, Then Plays Santa Claus With $40 Million Of It

Car insuranceSeemingly minor legal issues sometimes can have a surprisingly significant effect. That is particularly true with the ratio guidepost because the effect of any dispute about the guidepost’s application is literally multiplied. We recently filed an amicus brief on behalf of a group of organizations in an Eighth Circuit appeal that proves the point: Dziadek v. The Charter Oak Fire Insurance Company, No. 16-4070.
Continue Reading Mayer Brown Submits Amicus Brief For Chamber Of Commerce, American Tort Reform Association, And American Insurance Association In Eighth Circuit Appeal Involving Proper Application Of Punitive Damages Guideposts

TreatiseWe are excited to report that in late December Thomson Reuters released the fourth edition of the multi-volume treatise Business and Commercial Litigation in Federal Courts.  As in the first three editions, we contributed the chapter on punitive damages—Chapter 48 in the new edition.

The punitive damages chapter, which spans 154 pages, provides strategic

600px-I-70.svgSt. Louis and Kansas City have long been cross-state baseball rivals. Who can forget the 1985 I-70 World Series?

So it is hardly surprising that on the eve of St. Louis being named by the American Tort Reform Association as the number one Judicial Hellhole in the country, juries in Jackson County (home to Kansas City) would stake their own claim to that dubious distinction by returning two jaw-dropping punitive awards in consecutive days.
Continue Reading Kansas City Gives St. Louis A Run For The Money–Literally

Hot, burning tunnel & light. Way to another worldIn recent years, St. Louis has done much to earn a place on the American Tort Reform Association’s list of judicial hell holes.  Not content to rest on its laurels, the St. Louis circuit court grabbed the headlines again last week with a draw-dropping $70 million verdict against Johnson & Johnson ($67.25 million, including $65 million in punitive damages) and Imerys Talc America ($2.75 million, including $2.5 million in punitive damages) in a case alleging that J&J talcum powder caused the plaintiff’s ovarian cancer.
Continue Reading St. Louis Jury Returns Another Jaw-Dropping Verdict Against Johnson & Johnson

HiResCourts applying BMW and State Farm often emphasize the Supreme Court’s admonition that the constitutional line is not “marked by a simple mathematical formula”—typically when rejecting a defendant’s argument that the ratio of punitive to compensatory damages is indicative of an excessive award.  But in Mercedes-Benz USA v. Carduco, Inc., the Texas Court of Appeals showed that this dictum is a two-way street, reducing a punitive award to a small fraction of the compensatory damages.
Continue Reading Texas Court Of Appeals Reduces $115 Million Punitive Award To A Mere Shadow Of Itself

fraction (1)On June 9, 2016, the California Supreme Court issued its decision in Nickerson v. Stonebridge Life Insurance Co., holding that so-called Brandt fees should be treated as compensatory damages when calculating the ratio of punitive to compensatory damages even when they are awarded by the trial court after the jury has returned its punitive damages award.

As discussed in my post about our amicus brief for the Chamber of Commerce in Nickerson, Brandt fees are the attorneys’ fees incurred by an insured in obtaining policy benefits that an insurer has been held to have denied the insured in bad faith.  Accordingly, at first blush Nickerson may appear to be irrelevant outside the insurance context.  But that first impression may be mistaken.
Continue Reading California Supreme Court Holds That Brandt Fees Awarded Post-Trial By A Court Must Be Included In Denominator Of Punitive/Compensatory Ratio

We have previously posted—for example, here, here, here, and here—about the thorny problem of avoiding excessive punishment when multiple plaintiffs seek punitive damages for the same course of conduct.  Johnson & Johnson is the latest corporation to face this issue. 
Continue Reading Johnson & Johnson Hit With Two Huge Punitive Awards In Missouri Talcum Powder Litigation