According to Variety, famed director and actor Woody Allen has sued American Apparel, Inc. for compensatory and punitive damages: “The lawsuit complained of a billboard featuring a frame from ‘Annie Hall,’ a film that won Allen a best director Oscar. The image showed Allen dressed as a Hasidic Jew with a long beard and black hat and Yiddish text meaning ‘the holy rebbe.’ The words ‘American Apparel’ also were on the billboard. The billboard falsely implied that Allen sponsored, endorsed or was associated with American Apparel, said the lawsuit, which seeks at least $10 million in compensatory damages and unspecified punitive damages.”

Jacob Sullum at Reason has posted commentary on the recent New York Times article on punitive damages that we blogged about here. Sullum argues: “Last week The New York Times ran a front-page story by Adam Liptak that describes the dismay caused in foreign courts by the American concept of punitive damages. It’s not just that such awards are sometimes jaw-droppingly high; it’s also that they serve a purpose, punishment/retribution, that is usually said to be a function of the criminal justice system, where defendants enjoy stronger procedural safeguards than they do in civil courts. Punitive damages—which are not really damages at all, since compensation for injuries is not the goal—invite juries to pick numbers out of thin air, with little or no statutory guidance, as an expression of how reprehensible they think the defendant’s conduct was. And while the Supreme Court has said the Due Process Clause imposes some limits on the ratio of punitive to compensatory damages, it has not taken the next logical step of saying that when the goal is explicitly punishment rather than compensation, defendants should receive all the protections they would get in a criminal case, including a higher burden of proof for the accuser.”

In 1989, in Browning Ferris Industries v. Kelco Disposal, Inc., the Supreme Court held that the Excessive Fines Clause of the Eight Amendment does not apply to awards of punitive damages in cases between private parties. Today, the Court surprisingly overturned Browning-Ferris and held that punitive damages imposed by state courts are in fact governed by the Eighth Amendment. It remains to be seen how the overlay of Eighth Amendment jurisprudence will impact the ratio analysis set forth in State Farm v. Campbell and other cases; a colorable argument can be made that any awards exceeding compensatory damages are inherently excessive and therefore unconstitutional. Read the Court’s opinion here.

According to the New York Law Journal, a New York trial judge found that a lawsuit over bedbugs could not include a claim for punitive damages because the bugs were merely a nuisance. However, the court let go forward the negligence claims of two Maryland tourists for bites they sustained during a two-night stay at the theater district’s Milford Plaza. In holding that plaintiffs could not seek punitive damages, the court had to distinguish a Judge Posner 7th Circuit opinion which had upheld a significant punitive damage award for bedbugs.

The New Jersey Supreme Court decided today in Tarr v. Bob Ciasulli’s Mack Auto Mall, Inc. that the defendant was entitled to a new trial because the plaintiff’s attorney improperly invited the jury to award punitive damages on a general deterrence theory, to “send a message to deter this particular defendant and others.” The court held that, under New Jersey’s Punitive Damages Act, a jury may aim only for deterrence of the specific defendant.

The court also held that jurors deciding punitive damages can properly consider the defendant’s financial condition both at the time of the wrongdoing and at the time of trial. In so holding, the court rejected the defendant’s argument that it cannot be subjected to punitive damages because it is now a defunct organization with no assets. Based on this holding, the plaintiff’s attorney claimed victory and predicted he would obtain a larger award of punitive damages than the $85,000 he obtained in the first trial, according to this article on Law.com.

The New Jersey Supreme Court’s opinion is contrary to California law on both issues. In California, numerous opinions have recognized the legitimacy of a general deterrence theory. (See, e.g., Ferguson v. Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037 [“Punitive damages by definition are not intended to compensate the injured party, but rather to punish the tortfeasor whose wrongful action was intentional or malicious, and to deter him and others from similar extreme conduct”].) And California courts have repeatedly held that juries can consider the defendant’s financial condition only as of the time of trial. (See, e.g., Kelly v. Haag (2006) 145 Cal.App.4th 910, 915 [“A punitive damages award is based on the defendant’s financial condition at the time of trial”].)

We’ve previously discussed the recent Holdgrafer opinion reversing a $5 million punitive damages award because it was tainted by improperly admitted evidence of defendant’s dissimilar conduct toward nonparties. Plaintiffs have filed a petition for rehearing taking scattershot aim at the appellate decision. Plaintiffs argue, among other things, that the opinion “errs in holding that a de novo standard of review applies to the trial court’s determination of similarity of conduct,” and that the Court of Appeal’s “legal standards for determining whether conduct is ‘similar’ are too narrow.”

The Court of Appeal has 30 days from the date of the opinion (i.e., until April 3) to rule on the rehearing petition. You can follow the progress on the court’s online docket.

According to the New York Law Journal, famed plaintiff’s class action lawyer Melvyn Weiss of Milberg Weiss has pleaded guilty to a racketeering charge for participating in a scheme to pay kickbacks to lead plaintiffs in shareholder suits.

David Johnson writes about the recent Texas Supreme Court opinion in Fairfield Insurance Co. v. Stephens Martin Paving, LP which paves the way for at least some punitive damages to be insurable. Johnson contends that the opinion does not mean all punitive damages are insurable: “In Fairfield, the Court once again expressed language that would favor the enforcement of punitive damage insurance agreements where the insured was a business, but the opinion also contained language that would not have favored the enforcement of the same provisions against individual insureds. One could glean that the Court is continuing to follow its recent trends against equitable/policy arguments trumping express insurance provisions and in continuing to side with business insureds against insurers but not so much for individual insureds.” We previously blogged about this case here.

Law.com reports that a Philadelphia jury has awarded $25 million in punitive damages in a mesothelioma case. The plaintiff’s attorney says this is the first time he has seen punitive damages awarded in a Philadelphia asbestos case in over 20 years. Even in California, punitive damages are rare (though not unheard of) in asbestos cases.

The Reno Gazette Journal reports that a jury awarded damages of more than $590 million (with $375 million of that in punitive damages) to Darren and Charla Mack’s 9-year-old daughter and Charla’s estate, in the wrongful death lawsuit filed against Darren who had previously admitted stabbing Charla to death on June 12, 2006, in the garage of his townhouse. He has insisted that it was self defense, but pleaded guilty to first-degree murder on Nov. 5. He is now seeking to withdraw his guilty plea.

UPDATE (by Curt Cutting at 11:30 AM): In case you’re wondering, the punitive damages award against OJ was $25 million.