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)