Extraterritoriality and Punitive Damages: Is There a Workable System?
Hull, Cordell A., Defense Counsel Journal
The U.S. Supreme should speak more definitively on the extent to which conduct in other instances and net worth may be used against defendants
OVER THE last decade, there has been a marked shift in the manner in which American courts award punitive damages. While it remains a goal of the judicial system to maintain the two-fold purpose of punitive damages-punishment of the offending party and deterrence of others-the U.S. Supreme Court recently laid down rules in State Farm Mutual Automobile Insurance Co. v. Campbell1 that such damages may be awarded only if the defendant's constitutional rights are protected. Defendants facing punitive damages must have procedural and substantive due process protections to ensure against the arbitrary deprivation of property.
What factors are juries to consider in assessing and later appellate courts in reviewing punitive damages awards? To what extent may conduct outside the relevant jurisdiction be considered? This conduct is commonly referred to as constituting the "extraterritoriality" considerations. The State Farm decision answered some of the questions regarding extraterritoriality, but allowed others to remain-specifically, whether and to what extent juries may consider a defendant's wealth in computing punitive damages, and the decision's applicability to products liability cases.
PUNITIVE DAMAGES JURISPRUDENCE IN THE UNITED STATES
A. In the Beginning
In American law, the concept of punitive damages has been recognized as "a well-established principle of common law."2 In its earlier jurisprudence, the Supreme Court left the regulation of punitive damages awards to state legislatures and the discretion of judges and jurors in state courts. But in 1986 in Aetna Life Insurance Co. v. Lavoie,3 it intimated that it would begin to review punitive damages awards based on due process. While the Court disposed of the case on alternative grounds, it noted that Aetna's due process arguments relating to the punitive damages award "raise important issues which, in an appropriate setting, must be resolved."4
One of the Court's first opportunities post-Lavoie came in 1989 in Browning-Ferris Industries of Vermont Inc. v. Kelco Disposal Inc.,5 in which the Court held that a punitive damages award is not subject to invalidation under the excessive fines clause of the Eighth Amendment, which, the Court ruled, is applicable only to criminal sanctions. Then the Court began holding that the imposition of punitive damages must conform to both procedural (Honda Motor Co. v. Oberg)6 and substantive (BMW of North America Inc. v. Gore)7 due process requirements. In Pacific Mutual Life Insurance Co. v. Haslip8 and TXO Production Corp. v. Alliance Resources Corp.,9 the Court began to examine the size of punitive awards compared to the compensatory award. While it upheld the punitives in both cases, it noted some uneasiness and concerns about due process and the uneven ratios of punitive to compensatory damages.
B. BMW and Cooper Industries
In 1996 in BMW, the Court finally articulated a due process framework within which judges could work in considering punitive damage awards and invalidated an award that was "grossly excessive" in relation to compensatory damages.
The plaintiff in BMW sued the carmaker after learning that his new car had been repainted, a common practice by BMW. He sued in Alabama state court based on fraud, alleging that the repainting diminished the car's value by some $4,000. The jury found for the plaintiff, awarding him that amount but tacking on $2 million in punitive damages. Recognizing "elementary notions of fairness," the Court held that a person must receive fair notice not only of the conduct that will subject him to punishment but also of the severity of the penalty that a state may impose, the Court invalidated the punitive award.
BMW was not "on notice" of the severity of the punishment, the Court stated, and it set out three "guideposts" for lower courts to consider in awarding punitive damages: (1) "the degree of the reprehensibility" of the harm; (2) "the disparity between the harm or potential harm suffered by" the plaintiff and the amount of punitive damages; and (3) "the difference between [the punitive damages] remedy and the civil penalties authorized or imposed in comparable cases. …