California Punitives by Horvitz & Levy

  • New law review article on enforcement of U.S. punitive damages awards in France

    Professor François-Xavier Licari, of the University of Metz law school, has written another interesting article on the enforcement of American punitive damages awards in France.  The article, co-authored by Benjamin West Janke, is entitled Enforcing Punitive Damages Awards in France after Fountaine Pajot.  Here’s the abstract:

    In a landmark ruling, the Cour de cassation held that “an award of punitive damages is not, per se, contrary to public policy,” but that “it is otherwise when the amount awarded is disproportionate with regard to the damage sustained and the debtor’s breach of his contractual obligation.” Schlenzka & Langhorne v. Fountaine Pajot, S.A. involved the failed attempt by American judgment creditors to enforce their California judgment against a French defendant in France. At the same time that the judgment creditors were taking their case through the French legal system, the Cour de cassation, in a different line of cases, liberalized the conditions under which a foreign judgment could be enforced in France. But when the Court opened one door for the American plaintiffs, it closed another by refusing to enforce the judgment because it included disproportionate punitive damages. The Court’s reasons were inconsistent with prior interpretations of proportionality and disingenuous to the court’s modern approach to the enforcement of foreign judgments. In just a few words, the Court echoed prevailing French and European sentiments about American punitive damage awards. Unfortunately, the prevailing attitudes are dominated more by prejudice than by fact and reason.

    The article will appear in the American Journal of Comparative Law.

  • U.S. punitive damages in German courts

    The Federal Supreme Court of Germany held in 1992 that U.S. punitive damages awards are unenforceable in Germany because they violate the “ordre public” – – the fundamental values of Germany’s justice system.  The Federal Supreme Court got it wrong, according to this article by Madeleine Tolani (U.S. Damages Before German Courts: A Comparative Analysis with Respect to the Ordre Public).

  • The French dip deeper into punitive damages jurisprudence

    We have in prior posts touched on the historic reluctance outside of the United States (such as in France) to embrace the routine awarding of punitive damages. Last fall we noted commentary suggesting that reluctance may be fading, as indicated by a French high court ruling allowing enforcement of certain foreign punitive awards. A recent newsletter from ILO (International Law Office) notes a similar trend, and offers some thoughts on the subject, particularly with regard to insurance coverage for such awards.

    The introduction to the newsletter reads, “Recent developments point towards greater receptivity to punitive damages. In the past few months punitive damages have received increasing attention, not only from the legislature (leading to a proposed revision to the Civil Code), but also from the Court of Cassation. On December 1 2010 the Court of Cassation issued an interesting decision with regard to foreign judgments granting punitive damages. Whether insurance coverage will be available for foreign decisions awarding punitive damages may be a vital question for insureds, insurers and plaintiffs.”

    Check out the rest of the article online, titled, “Punitive Damages: is coverage available in France?” for more info.

    Update (8/3/11): Professor Francois Xavier Licari, at the University of Metz,
    has provided these additional helpful links:

    Professor Xavier’s comment published in a French law review and posted on SSRN (in
    French, but with an English abstract).

    A case summary with link to the opinion decided by the court of cassation.

  • French Supreme Court rules that American punitive damages awards are enforceable, as long as they don’t exceed compensatory damages

    Conflict of Laws has an interesting post about a recent decision by the French Supreme Court for private and criminal matters (Cour de Cassation).  According to the post, and I’ll have to take their word for it since I can’t read French, the French court held that foreign punitive damages awards do not violate public policy per se.  That’s a departure from the French appellate decision discussed here.

    The French Supreme Court went on to say, however, that a foreign punitive damages award would violate public policy if it were disproportionate to the plaintiff’s harm.  The particular punitive damages award at issue (awarded by a California jury judge) was $1.46 million.  The compensatory damages award was $1.39 million.  The French Supreme Court found the punitive damages award to be “clearly” disproportionate to the actual harm, and therefore unenforceable. 

    Thanks to professor François-Xavier Licari for alerting me to this story.

  • Law Review Article Focuses on a French Court’s Refusal to Enforce a California Punitive Damages Award

    Here’s a new law review article reminding us that foreign courts don’t care much for American-style punitive damages. The article, posted to SSRN by French law professor Francois-Xavier Licari, describes a case in which a French appellate court refused to recognize a California judgment because it included an award of punitive damages. The French court concluded that punitive damages are contrary to that nation’s public policy because they represent a windfall to the plaintiff. Other foreign courts have taken a similar approach.

    Apparently, the author of this article disagrees with that approach and thinks the judgment should have been enforced, but I can’t say for sure because I can’t read the article. It’s written in French. Perhaps an enterprising (and French-speaking) reader will offer a translation.

    UPDATE (9/13/10): Professor Licari has been kind enough to provide this English-language version of the abstract of his article:

    Recently, a French Court of Appeal (cour d’appel) refused to recognize a California judgment (to grant an “exequatur”) that awarded punitive damages to American citizens in a breach of contract case involving the sale of a ship from French sellers. The French Court gave several reasons in refusing to grant the exequatur, particularly: French law only allows for compensatory damages and considers the principle of full compensation as fundamental; punitive damages create an unjust enrichment (a windfall) for the plaintiff. In effect, the punitive damages given by the California court were disproportionate to the actual damages. In sum, punitive damages hurt French public policy (l’ordre public international français). The author contends that none of these arguments stand up to an objective examination. For example, a close look at French case law shows the principle of full compensation has never been considered as belonging to the ordre public in the international sense of the notion. Furthermore, French private law knows “private penalties” (pienes privées), and some of them resemble American punitive damages. Last but not least, two recent law reform proposals militate in favor of the introduction of punitive damages to the French Civil Code. This essay advocates for a better understanding of the notion of punitive damages and their role in American law, and urges French courts to give effect to reasonable punitive damage awards.

    Professor Licari has also pointed out that a snippet of an English translation of the French appellate opinion appears in a footnote in this U.S. Supreme Court amicus brief. See this citation in footnote 17: Court of Appeal of Poitiers, No. 0702404 (Feb. 26, 2009) (“a foreign decision which . . . awards punitive damages far in excess from the price of the vessel, object of the contract . . . infringes upon the principle of proportionality between the damages and the breach guaranteed by Article 8 of the French Declaration of the Rights of Man and the Citizen.”)

  • Punitive Damages in China

    For the first time, the People’s Republic of China has passed a law authorizing punitive damages, according to this “Alert” issued by Greenberg Traurig. The law apparently applies only to products liability lawsuits. One of the stated purposes of the law is to promote “social harmony and stability.”

  • “The Need for Enforcement of U.S. Punitive Damages by the European Union”

    The Minnesota Journal of International Law has an article by Jessica J. Berch in its Winter 2010 edition entitled “The Need for Enforcement of U.S. Punitive Damages by the European Union.” For those of you with access to Westlaw or Lexis, the citation is 19 Minn. J. Int’l L. 55.

    As Adam Liptak of the New York Times noted in a story last year, many European nations refuse to enforce U.S. punitive damages awards because they believe that compensation should be the only goal of civil litigation, and punishment should be reserved for criminal proceedings. Ms. Berch would like that to change, as summarized in the article’s conclusion: “In a world with increasing amounts of cross-border transactions, it is imperative that judgments can be enforced in countries other than the one handing down the judgments. If another round of negotiations begins over the provisions of the Hague Convention, this author hopes that both sides will be more informed about the trends in punitive damages and will use that information to grant reciprocal, uniform, and liberal enforcement to all foreign judgments.”

    UPDATE: (1/11/10: Donna Bader comments on this post at her blog, An Appeal to Reason.)

  • New Book on Punitive Damages from a European Perspective

    TortsProf Blog has a post about a new book published by the Institute for European Tort Law entitled “Punitive Damages: Common Law and Civil Law Perspectives.” The book can be purchased here for $189.00. Here’s the publisher’s description:

    With the growing literature on the subject of punitive damages, the consensus is that it seems worthwhile and even necessary to discuss, thoroughly and on a comparative basis, the nature, role and suitability of such damages in tort law and private law in general.

    This book contains reports from selected jurisdictions that explicitly allow the award of punitive damages as well as from jurisdictions which purport (sometimes emphatically) to deny their existence (although a number covertly incorporate such damages into the framework of their tort systems). It benefits from an economic analysis of punitive damages, a report from a private international law perspective, one on their insurability and one on aggravated damages. The book’s comparative report and conclusion critically evaluates the material in the above reports and advances a thorough analysis of the nature of punitive damages, the cases for and against them, and their suitability in the field of tort law. Alternative remedies in private and criminal law are also considered.

    The publication will appeal to students, academics, practitioners, judges, policy makers and those in the insurance industry.

    UPDATE: On a related note, Professor Michael Wells Lewis of the University of Georgia School of Law has posted an article on SSRN entitled: “A Common Lawyer’s Perspective on the European Perspective on Punitive Damages.” Hat tip: TortsProf Blog (again).

  • Indian Court Sets Aside Punitive Damages for Condom in Pepsi Bottle

    According to this story from India PRWire, the Delhi States Consumer Disputes Redression Commission has issued an opinion setting aside a punitive damages award of 100,000 rupees in a case in which the plaintiff claimed he became ill after drinking a bottle of Pepsi that had a condom in it. The Commission affirmed the compensatory damages award of 23,000 rupees.

    If I understand the exchange rate correctly, 100,000 rupees is equal to about $2,000.

    Perhaps the plaintiff would have been better off if he found a mouse in his bottle of Elsinore beer.

  • Supreme Court of British Columbia: No Punitive Damages Under Marine Liability Act

    The Supreme Court of British Columbia ruled a few weeks ago, in McDonald v. Queen of the North, that a plaintiff cannot obtain punitive damages for violation of Canada’s Marine Liability Act. This seems consistent with other opinions suggesting a generally restrictive approach towards punitive damages in Canada. I would love to know if anyone has conducted research to determine whether Canadian citizens are victims of malicious and oppressive conduct more frequently than U.S. citizens, as a result of the fact that tortfeasors in Canada don’t have to worry about the threat of blockbuster punitive damages.