California Punitives by Horvitz & Levy

  • Yet Another Celebrity Punitive Damages Story

    Punitive damages lawsuits must be the latest celebrity trend. In our recent posts about Keanu Reeves’s efforts to fend off a punitive damages claim, we mentioned that Reeves is represented by appellate specialist David Ozeran, who was previously in the news for representing Lindsay Lohan. It now appears that Ozeran may have to fend off another punitive damages claim for his other celebrity client.

    According to this ABC News story, a Columbia University Student is threatening to sue Lohan for punitive damages because Lohan allegedly stole the student’s $11,000 fur coat at a nightclub. Apparently, on the evening in question, Lohan was photographed wearing a black coat. She then attended a birthday party at a nightclub where Masha Markova and her “blond mink” coat were in attendance. The mink coat disappeared and Lohan was allegedly photographed wearing a strikingly similar coat. (The photos are posted along with the story on the ABC News website.) Somehow, the coat was returned to Markova. While Lohan’s alleged “borrowing” of the coat sounds pretty sketchy, I’m more than a little skeptical of the claims by Markova’s lawyer that she can obtain punitive damages “in the six figure range” if she proceeds with a lawsuit.

  • U.S. Supreme Court Will Consider Cert Petition in Philip Morris v. Williams at May 22 Conference

    We previously blogged about Philip Morris’s petition for review from the Oregon Supreme Court’s decision on remand in Philip Morris v. Williams. The Supreme Court is set consider that petition during its May 22 conference, according to the online docket.

    It will be quite interesting to see whether the Supreme Court grants this petition. Many observers viewed the Oregon Supreme Court’s opinion as a slap in the face (or more colorful metaphors) to the Supreme Court. My co-blogger Jeremy Rosen suggested that a summary reversal might be in order. On the other hand, Howard Bashman considered the case an “unattractive vehicle” for certiorari, since the Oregon Supreme Court couched its decision in terms of Oregon procedural law, rather than federal constitutional principles.

    SCOTUSblog has identified this petition as one of its “Petitions to Watch,” meaning that Tom Goldstein at Akin Gump thinks the petition has a reasonable chance of being granted. SCOTUSblog also provides links to all the briefing at the petition stage, including the petition, the brief in opposition, the reply, and amicus briefs by the U.S. Chamber of Commerce, the Washington Legal Foundation, Associated Oregon Industries, and the Products Liability Advisory Council.

  • Adidas wins $137 Million in Punitive Damages from Payless for Trademark Infringement

    The Portland Business Journal reports that “A Portland jury awarded Adidas America Inc. nearly $305 million in a trademark infringement case late Monday. ‘It’s my understanding that, if it’s not the largest, it’s one of the largest trademark infringement verdicts ever,’ said Stephen Feldman, an attorney with Perkins Coie who helped represent Adidas. In the case, Adidas alleged that Payless infringed on its patented three-stripe design. The verdict included $30.6 million in actual damages, $137 million for willful infringement and an additional $137 million in punitive damages. ‘The company is reviewing the verdict and assessing its impact,’ Topeka, Kan.-based Collective Brands, owner of Payless, said in a statement. ‘The company believes that the verdict was excessive and unjustified.’ ‘The company will ask the court to set aside the verdict and, if it is not granted, intends to take all necessary steps to overturn it.’”

    It seems likely that reduction in the punitive damage award must occur because with a substantial compensatory damage award, a one-to-one ratio of punitive to compensatory damages is the upper end that should be permitted. Arguably, the $137 million for willful infringement should further reduce the punitive damage award as that already includes a significant penalty component.

  • Boston Legal Attacks Supreme Court’s Punitive Damages Jurisprudence

    Tony Mauro describes a recent episode of Boston Legal which engaged in a direct attack on the United States Supreme Court. Among other things, the main character, Alan Shore, played by actor James Spader “lights into the court as he argues before look-alike justices on behalf of a Louisiana child rapist facing the death penalty. The episode aired just six days after the real court heard arguments in Kennedy v. Louisiana, an actual child rape/death penalty case. A sample of the rhetoric: Shore attacks the ‘overtly and shamelessly pro-business’ court, and takes a sharp detour from the rape case to slam Justice Antonin Scalia for his seemingly likely support for Exxon Mobil in the case – also argued recently – involving punitive damages awarded after the Exxon Valdez oil spill. ‘Nineteen years after the Valdez oil spill and the plaintiffs are still waiting to be fully compensated,’ Shore says. When the Scalia character interjects sharply, ‘You are getting so far off point,’ Shore shoots back: ‘My point is, who are you people? You’ve transformed this court from being a governmental branch devoted to civil rights and liberties into a protector of discrimination, a guardian of government, a slave to monied interests and big business and today, hallelujah, you seek to kill a mentally disabled man.’”

  • Keanu Reeves Loses Motion to Strike Punitive Damages Claim

    Last week we blogged about a photographer who is suing Keanu Reeves for punitive damages. Today, Judge Elizabeth Grimes of the L.A. Superior Court denied Reeves’ motion to strike the plaintiff’s punitive damages claim. Apparently, Reeves argued in his motion that punitive damages should be unavailable because the complaint failed to allege that he acted intentionally when he hit the plaintiff with his car. Judge Grimes disagreed: “There’s not a whiff of accident here.” The case is currently set for trial on October 27.

  • A Class Action Lawsuit Filed by Parents of Soldiers Who Died in Iraq Seeks $36 Billion in Punitive Damages from Anti-War T-Shirt Company

    The Associated Press reports that “A Tennessee couple who lost their son in Iraq want an Arizona merchant to pay more than $40 billion in damages to survivors of soldiers whose names are on the anti-war shirts he is selling online. A complaint seeking class-action status for the lawsuit by Robin and Michael Read says Dan Frazier of Flagstaff has no right to profit from commercial sale of products that use the dead soldiers’ names without permission. The change, requested Tuesday in federal court in Tennessee, would cover the heirs of all U.S. service members killed in the Middle East since Sept. 11, 2001, and seek $4 billion in compensatory damages and $36.5 billion of punitive damages. . . . Frazier’s ‘Bush lied — They died’ T-shirts, sold at his site CarryaBigSticker.com, list Iraq war casualties’ names, and Frazier contends he is covered by First Amendment free-speech protections. . . . The Reads’ amended complaint says Frazier has no right to make a profit from the commercial sale of products using the casualties’ names without permission.”

  • How the Supreme Court’s Recent Punitive Damages Decisions Limit Class Actions

    Professor Sheila Scheuerman of the Charleston College of Law has posted this forthcoming Baylor Law Review article on SSRN: “Two Worlds Collide: How the Supreme Court’s Recent Punitive Damages Decisions Affect Class Actions.” Here’s the abstract, summarizing Scheuerman’s thesis that punitive damages are no longer available as a class-wide remedy except in cases in which the plaintiffs have uniform injuries:

    This article examines the intersection between two controversial areas of the law – punitive damages and class actions – and argues that the Supreme Court’s recent jurisprudence clarifying the due process limits on punitive damages has broad implications on the procedural laws governing the types of cases that can properly be certified as a class action. Specifically, the article discusses the Supreme Court’s evolving approach to punitive damages from one that considered the harm a defendant’s conduct caused to society as a whole to one that now focuses almost exclusively on the harm to the specific individual bringing the lawsuit. This shift, which recently culminated in the Court’s 2007 decision in Philip Morris USA v. Williams, constitutionally requires that the amount of a punitive damages award relate to the amount of harm suffered by the party bringing the suit. That requirement is at odds with class action practices that treat punitive damages as a common, class-wide issue and that have allowed juries to assess a punitive damages award before evaluating the harm to the individual class members. The article argues, therefore, that where injuries are not uniform among class members, punitive damages cannot be pursued as a class-wide remedy.

    Hat tip: TortsProf Blog.

  • Keanu Reeves Fights Punitive Damages Claim

    Here we go again, with yet another celebrity punitive damages case. The Long-Beach Press Telegram reports that a photographer is suing Keanu Reeves for punitive damages. Apparently, the photographer was trying to take a picture of Reeves in his parked car, and Reeves pulled the car away from the curb, knocking down the plaintiff. The article indicates that Los Angeles Superior Court judge Elizabeth Grimes will hear Reeves’ motion to strike the plaintiff’s claim for punitive damages on Monday.

    Reeves is represented by David Ozeran, who is perhaps best known for representing Lindsay Lohan. Ozeran also happens to be an appellate specialist, and we’ve had the pleasure of working with him as co-counsel on several appellate matters.

  • Does the Bible Encourage Lawsuits for Punitive Damages?

    Michael Roberts at Injuryboard.com has a post entitled “Trial Lawyers and the Bible,” in which he states that the work of plaintiffs’ lawyers has biblical roots. He cites several biblical passages which support the notion of providing compensation for property damages and personal injuries. He also cites a passage from the book of Exodus that contemplates an early form of punitive damages. I wonder whether the bible also authorizes the concept of defending against false or excessive claims.

    ADDITIONAL COMMENT (BY Jeremy Rosen): Assuming biblical passages are a good source for punitive damages, it is interesting that one of the cited passages suggests that single digit ratios between punitive and compensatory damages are required: “If a man steals an ox or a sheep, and kills it or sells it, he shall pay five oxen for an ox and four sheep for a sheep. . . . (Exodus 22:1-4).”

  • Proposed Global Online Freedom Act of 2007 (HR 275) Would Authorize Punitive Damages for Blocking Government Websites

    An Ars Technica article titled Bill Would Penalize Companies for Aiding Internet Censorship describes an interesting pending bill that includes a provision for punitive damages against companies that give up user information to would-be censors or block content from US government sites. As summarized by Ars Technica:

    “US-based companies could be held liable for helping officials in other countries censor the Internet, if a bill proposed by House Representative Chris Smith (R-NJ) is approved. Smith recently announced his plans to push the Global Online Freedom Act (HR 275) to the House floor for voting after having lobbied human rights organization Reporters Without Borders for support. Among other things, the Global Online Freedom Act will bar US companies from disclosing personally-identifiable information about a user, except for ‘legitimate foreign law enforcement purposes.’

    ‘American high-tech firms have produced the technology and know-how that has led to a modern-day information revolution,’ Smith said in a statement. ‘Sadly, however, instead of working to allow everyone to benefit from these advancements, these same high-tech firms are colluding with dictators and tyrannical regimes such as China to suppress human rights information and punish pro-democracy advocates.’

    Among other things, the Act appears to be a direct response to the furor over Yahoo’s involvement in outing a number of Chinese dissidents to the government, resulting in their arrest and imprisonment. At least two Chinese pro-Democracy advocates have filed lawsuits against Yahoo for turning over their e-mails to the government, but Yahoo has said repeatedly that it simply complied with the requests of local law enforcement and was not aware of the nature of the investigations. . . .

    The Global Online Freedom Act would not only prevent companies like Yahoo from giving up the goods to totalitarian regimes, but would also prohibit US-based Internet companies from blocking online content from US government or government-financed web sites in other countries. When it comes to non-government sites, the Act would require companies to disclose to the newly-created Office of Global Internet Freedom the terms that they     do filter, and for the Office to continually monitor these filtered terms.

    If the companies violate any of these new restrictions, they could face civil and criminal penalties of up to $2 million, and aggrieved citizens (those who have suffered from the companies’ violations, like the Chinese dissidents discussed above) are free to pursue punitive damages and other legal remedies from the offenders.”

    The current version of the bill is available here. The official summary of the bill is available here.

    The specific provision on punitive damages provides: “(c) Private Right of Action- Any person aggrieved by a violation of this section may bring an action for damages, including punitive damages, or other appropriate relief in the appropriate district court of the United States, without regard to the amount in controversy, and without regard to the citizenship of the parties.”