Equity for the Victims, Equity for the Transgressor: The Classwide Treatment of Punitive Damages Claims

Practitioners' Note by Elizabeth J. Cabraser and Thomas M. Sobol

Recent United States Supreme Court decisions do not foreclose the possibility of separate certification of punitive damages claims under Federal Rule 23(b)(1)(3). In order to certify a mandatory punitive damages class, counsel must provide an evidentiary showing of the substantial probability that if damages were awarded, the claims of early litigants would exhaust the defendant's assets. The authors conclude that in such instances, classwide treatment of punitive damages strikes a balance between a plaintiff's right to a pro rata distribution from a protected punitive damages fund and a defendant's right to due process and desire to limit exposure in a single action.


About the Author

Elizabeth J. Cabraser; Thomas M. Sobol. Ms. Cabraser and Mr. Sobol are partners of Lieff, Cabraser, Heimann & Bernstein, L.L.P., based respectively in San Francisco, California, and New York, New York. The firm has prosecuted governments' and smokers' claims in the tobacco litigation and has served as one of the class counsel in the Exxon Valdez and Breast Implant litigations referenced in this Practitioners' Note.

Citation

74 Tul. L. Rev. 2005 (2000)