FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GERALD HESTER, 

No. 11-15646 Plaintiff-Appellee,

D.C. No. v. 

2:09-cv-00117-

VISION AIRLINES, INC., RLH-RJJ

Defendant-Appellant. 

GERALD HESTER,  No. 11-15761

Plaintiff-Appellant, D.C. No.

v.  2:09-cv-00117-

RLH-RJJ VISION AIRLINES, INC.,

Defendant-Appellee. OPINION 

Appeal from the United States District Court

for the District of Nevada

Roger L. Hunt, Senior District Judge, Presiding

Argued and Submitted

April 19, 2012—San Francisco, California

Filed July 18, 2012

Before: Alfred T. Goodwin, Stephen Reinhardt, and

Mary H. Murguia, Circuit Judges.

Opinion by Judge Goodwin

8291
COUNSEL

Edward H. Wasmuth, Jr., Smith, Gambrell & Russell, LLP,

Atlanta, Georgia, for the defendant-appellant-cross-appellee.

David M. Buckner, Grossman, Roth, P.A., Coral Gables, Florida, for the plaintiff-appellee-cross-appellant.

OPINION

GOODWIN, Circuit Judge:

Appellant Gerald Hester, a former pilot for Vision Airlines,

sued Vision on behalf of a Class of other pilots and flight

crew employees to recover “hazard pay,” which Hester and

the Class alleged Vision had accepted on their behalf and

never paid to them. After nearly two years of discovery disputes between Vision and the Class, the district court sanctioned Vision by striking its Answer, entered default

judgment against Vision, and held a jury trial to determine

damages.

Vision appeals, arguing (1) that the district court abused its

discretion by striking Vision’s Answer, (2) that the claims in

the Complaint are legally insufficient to support the default

judgment, and (3) that the district court abused its discretion

by certifying the Class. We reject Vision’s arguments and

affirm those orders. The Class cross-appeals, arguing that the

district court erred in dismissing, on the morning of trial, the

Class’s claim for punitive damages. We agree and reverse the

order dismissing the Class’s claim for punitive damages.

8294 HESTER v. VISION AIRLINES
I. Facts and procedural history

During the U.S. military occupation of Iraq and Afghanistan, the United States established an “air bridge” to deliver

supplies through war zones to U.S. posts in Baghdad, Iraq,

and Kabul, Afghanistan. The United States contracted with

private airlines to deliver supplies to those posts, and it provided “hazard pay” for the pilots and crew members of those

airlines.

In 2004, the United States contracted with Capital Aviation

to provide bi-weekly flights to Baghdad and Kabul. The contract provided one set of funds for the flight services by Capital Aviation and another set of funds for the hazard pay for the

pilots and crew members.

Pursuant to the contract, every pilot, first officer, and international relief officer was to receive $5000 in hazard pay per

round-trip flight. Every other crew member on the flights,

including attendants and mechanics, was to receive $3000 in

hazard pay per round trip.

The contract contained a “pass-through” provision to

ensure that the hazard pay actually made it to the pilots and

crew members who were risking their lives by transporting

supplies through war zones. The pass-through provision

required Capital Aviation to pass the hazard pay through to

any subcontractors, who were also required to pass the hazard

pay through to their employees without taking a cut for themselves.

Capital Aviation subcontracted with Vision Airlines to provide the flights to and from Baghdad and Kabul. For the average round-trip flight, Capital Aviation received from the

United States $27,000 in hazard pay on behalf of the pilots

and crew members. Capital Aviation then paid that full

amount to Vision.

HESTER v. VISION AIRLINES 8295
In the summer of 2005, at the beginning of Vision’s performance under the contract, Vision did pay some of the hazard

pay to its pilots, but by August of that year, Vision stopped

paying hazard pay to any of its employees, and it kept the

money for its own benefit. In addition to ceasing its intermittent distribution of hazard pay, Vision also fired all pilots and

crew members who knew about or had previously received

hazard pay, and it replaced them with employees who were

unaware that they were entitled to it. 

In January 2009, Hester filed a class action Complaint in

district court on behalf of Vison’s pilots and crew members

on the relevant flights. The court certified the Class. The

Class’s theories included unjust enrichment, money had and

received, and conversion. The Complaint alleged that, since

September 2005, Vision had received and retained more than

$21 million in hazard pay on behalf of its pilots and flight

crews, and the Class sought damages in that amount. 

In April 2009, the Class sent Vision interrogatories and

requests for production, requesting “all communications and

documents that relate to hazard pay.” Vision responded by

affirming that “Defendant has no documents or communications relating to hazard pay.” 

In July, the Class filed a motion to compel Vision to produce the requested documents and to respond to the interrogatories. In October, the court held a hearing on the motion to

compel. At the hearing, Vision told the court that it had not

produced the requested documents because “there is no hazard pay.” In response, the Class’s counsel showed the court

some of Vision’s invoices, which the Class had obtained by

subpoenaing third parties in Virginia. At least one invoice

contained line entries such as “hazardous duty bonus,” “hazardous duty flight deck bonus,” “hazardous duty bonus, flight

crew,” and “hazardous duty bonus, cabin crew.” Vision

claimed that that invoice was merely an “internal document”

that Vision had used to calculate the total bid, and because

8296 HESTER v. VISION AIRLINES
Vision never actually paid a hazardous duty pay differential

to any of its flight crews, there was no hazard pay. Vision also

told the court that, in the contract between Vision and its

upstream contractors, “there is no amount that is separated or

allocated for hazard pay.”

At the end of the hearing, the court denied the Class’s

motion to compel because the court determined that the parties had failed to meet and confer sufficiently to figure out

what each side needed to produce. The court granted a 120-

day discovery extension.

Vision eventually turned over some documents to the

Class, but before doing so, Vision used a black marker to

obscure large portions of those documents, redacting what

appeared to be text, numbers, and invoice entries. Vision did

not provide a privilege log or claim that the redacted information was privileged. Because of the redacted documents, the

Class’s expert witness was not able to complete his report by

the deadline, so the Class filed a motion to extend that deadline. 

The Class filed a second motion to compel, and in September 2010, the court granted that motion and ordered Vision to

produce the requested documents by September 17, 2010. On

September 29, the court held a pretrial conference, at which

it learned that Vision still had not produced the documents as

ordered. The court again ordered Vision to produce the documents. On October 5, the day after the trial was initially

scheduled to begin, Vision still had not complied with the

order to produce the documents, so Hester filed a motion for

sanctions.

On October 8, the court scheduled a hearing and ordered

Vision to show cause why the court should not strike Vision’s

Answer and enter a default judgment. The court’s written

order to show cause stated that “[t]he Court believes that

Vision’s conduct has interfered with the Court’s ability to

HESTER v. VISION AIRLINES 8297
hear this case, delayed litigation, disrupted the Court’s timely

management of its docket, wasted judicial resources, and

threatened the integrity of the Court’s orders and the orderly

administration of justice.” The written order also warned

Vision that “[f]ailure to comply with the Local Rules of Practice, the Federal Rules of Civil Procedure, and the Court’s

orders may result in sanctions, up to and including casedispositive sanctions.”

On October 14, Vision responded to the motion for sanctions by providing a few of the requested documents. On

October 15 and October 22, Vision filed supplemental

responses, both of which contained a few more responsive

documents.

On October 25, the court held a hearing on the show cause

order. At that hearing, Harold Gewerter, Vision’s counsel,

affirmed that he had turned over everything that Vision had

provided him: 

“No, everything that we have has been provided, Your

Honor.” “[T]here’s been no intentional delays whatsoever on

my part and none on behalf of my client, it’s just the system

and the nature of the program and getting the proper approvals.” “[T]hey have everything that my client has or has access

to, Your Honor. And I have made sure that within 24 hours

of me receiving anything, I’ve sent it out.” “[T]hey have

every document. There’s nothing else out there. There’s no

surprises that are going to be produced at trial.” “I assure this

Court, there has been no intentional delay whatsoever. Everything that’s been done is fast as it can be done . . . .” “[T]here

are no other documents. I’ve asked that question ad nauseam

to my client and other people.” “We have produced all of the

records that we have.” “My client unfortunately doesn’t keep

a perfect set of records, it’s been a problem and — but every

record that we did have or do have has been turned over and

they now have them.”

8298 HESTER v. VISION AIRLINES
At the hearing, the court also discussed Vision’s failure to

produce a privilege log for the redacted material and the possibility of sanctioning Vision for forcing the Class to litigate

with a third party in Virginia to obtain documents that Vision

should have produced. The court warned Vision on the record

that, based on Vision’s intentional discovery violations, the

court has the authority to strike Vision’s Answer and to enter

a default judgment.

At one point in the hearing, the Class identified, as an

example of Vision’s insufficient production, a document that

Vision had produced only in heavily redacted form. That

single-page document was marked as “page 20,” although

Vision had not produced pages 1 through 19 or any pages

beyond page 20. Because Vision still had not produced an

unredacted version of page 20, the following exchange ensued

(Mr. Gewerter represents Vision, and Mr. Buckner represents

the Class): 

THE COURT: Okay. I want to stay with this document. Do you have access to this document unredacted?

MR. GEWERTER: I have access but the one I

have is actually a little bit larger but it’s the same

thing, just so you know that.

THE COURT: Do you know what — do you

know what the nature of the items that are redacted

are?

MR. GEWERTER: Yes. I found those out, yes.

Your Honor, I have — do I have a copy of the unredacted version? I have a — I do have that now, yes,

and I thought it was attached to the — I was out of

town last week.

THE COURT: I understand you were out of town.

HESTER v. VISION AIRLINES 8299
MR. GEWERTER: And I thought this was

attached to — even though it’s not part of the contract, it’s post-contract, it’s really a reasonableness

test, I do now have it. This was done — I’m on the

cell phone back in Washington talking to my secretary trying to coordinate on this as e-mails were

coming into my office.

THE COURT: You do have an unredacted copy of

this?

MR. GEWERTER: Yes, the only thing is —

THE COURT: Can you give an unredacted copy

to the plaintiff?

MR. GEWERTER: I will then, Your Honor.

THE COURT: Today.

MR. GEWERTER: Except the one they’re going

to get, so they don’t think it’s any different, the print

itself is a little bit larger and it looks like it was —

but it’s the exact same document, somehow it got

printed differently, but it’s the same document.

THE COURT: All right.

MR. BUCKNER: Judge, actually we’d like the

whole document, not just — obviously it’s Page 20

of something. I mean, we’d like the whole thing.

MR. GEWERTER: That’s the end of the contract.

What happens is when they’re all done with the contract they then physically affix this to the contract to

go upstream to McNeil I should say and that’s how

this — this document is post —

8300 HESTER v. VISION AIRLINES
THE COURT: Are there 19 pages then in the contract and then this is the 20th page?

MR. GEWERTER: I don’t have it because, you

know, the contract’s printed off different ways and

there is one version with 19 pages. There’s some

version with different amounts of pages. Unfortunately it depends on whose computer you get this off

of, so there’s nothing else out there, Your Honor. I

have asked from the horse’s mouth, Is there anything

else out there? and I was told from six other people

sitting in a room with nine people, There’s nothing

else out there, last Friday morning.

. . . .

THE COURT: So, if I understand what it is that

you’ve told the Court is, is that except for this document [Page 20] which is now redacted that you have

an unredacted copy and that you can provide, as to

all the other documents that Mr. Buckner has talked

about that it is your understanding from Vision that

the documents either do not exist or what does exist

have been disclosed?

MR. GEWERTER: That’s correct. 

The court then ordered Vision to produce a unredacted version of Page 20 to the Class by the end of that day, October

25. Vision did not produce Page 20. Instead, Vision produced

a different document, labeled “Section 6.3.3,” which had

never before been produced, although it was responsive to

discovery requests. Also, Vision did not produce the larger

document of which Section 6.3.3 was apparently a part.

On November 3, the court ordered Vision’s Answer

stricken, default judgment entered, and a jury trial to be held

HESTER v. VISION AIRLINES 8301
to determine damages. The court explained Vision’s discovery violations in a written order. 

That same day, Vision finally turned over an unredacted

version of Page 20. Vision’s counsel stated that he had “just

received [Page 20] minutes ago from a secure location.”

Vision did not produce pages 1 through 19 or any other pages

of the larger document.

A few days later, the court held the jury trial on damages.

Before the jury was selected, the court ordered that “the jury

will not be permitted to entertain punitive damages” because

“the complaint does not establish sufficient evidence, nor

clear and convincing evidence as required by the Nevada

Revised Statutes,” of conduct justifying punitive damages.

After two days of trial, the jury returned a damages verdict of

$4,509,268, which, after including interest and costs, became

a judgment totaling $5,270,230.06.

II. Discussion

We first address the district court’s order striking Vision’s

Answer. A court’s order imposing sanctions is reviewed for

abuse of discretion. Dreith v. Nu Image, Inc., 648 F.3d 779,

786 (9th Cir. 2011); Jorgensen v. Cassiday, 320 F.3d 906,

912 (9th Cir. 2003). “If a party . . . fails to obey an order to

provide or permit discovery,” the court may impose sanctions,

including “striking pleadings in whole or in part.” Fed. R.

Civ. P. 37(b)(2)(A)(iii); see also, e.g., Dreith, 648 F.3d at

786. “Where the sanction results in default, the sanctioned

party’s violations must be due to the willfulness, bad faith, or

fault of the party.” Jorgensen, 320 F.3d at 912 (internal quotation marks omitted). A court’s finding that conduct is willful

or in bad faith is reviewed under the “clearly erroneous” standard. Id.

In this case, the district court found that “Vision has intentionally delayed production of documents, misrepresented its

8302 HESTER v. VISION AIRLINES
current and past production to both the Court and the Class,

and otherwise engaged in bad faith conduct.” The court’s

findings (1) that Vision violated the court’s discovery order

and (2) that Vision did so willfully and in bad faith are both

supported by evidence in the record and the court’s own credibility determinations. Vision does not argue that it did not

violate the discovery order or that its actions were not willful

and in bad faith. 

Vision’s sole argument is that the district court abused its

discretion because it failed to consider less drastic sanctions,

which is one of the factors that a district court must consider

before striking a pleading. See, e.g., Dreith, 648 F.3d at 788.

Because the district court thoroughly discussed less drastic

sanctions in its written order, Vision’s argument is meritless.

Although a default judgment sanction is “a harsh penalty

imposed only in extreme circumstances, we will overturn [it]

only if we have a ‘definite and firm conviction that it was

clearly outside the acceptable range of sanctions.’ ” Id. (citation omitted) (quoting Malone v. U.S. Postal Serv., 833 F.2d

128, 130 (9th 1987)). 

[1] A court must consider the following five factors before

striking a pleading or declaring default: “(1) the public’s

interest in expeditious resolution of litigation; (2) the court’s

need to manage its docket; (3) the risk of prejudice to the

other party; (4) the public policy favoring the disposition of

cases on their merits; and (5) the availability of less drastic

sanctions.” Id. (internal quotation marks omitted). 

[2] In this case, the district court considered each of those

factors and made the following determinations: 

(1) “[T]he public interest in the expeditious resolution of

cases . . . [is] best served by striking Vision’s answer and

entering a default against it.” 

HESTER v. VISION AIRLINES 8303
(2) “[T]he Court’s interest in managing its docket [is] best

served by striking Vision’s answer” because Vision’s “intentional, bad faith conduct in the discovery process” “has led to

multiple hearings and motions before this Court which have

nothing to do with the merits of this case, but have been necessary due to Vision’s misconduct. These extra motions and

hearings have interfered with the Court’s ability to efficiently

manage its docket in a manner fair to all parties with pending

cases.” 

(3) “Vision’s conduct has prejudiced the Class and limited

the Class’ ability to try this case . . . .”

(4) “While public policy favors that cases be heard on their

merits, Vision has done everything it can to prevent such resolution. Through its conduct, Vision has attempted to ensure

that an accurate and fair trial on the merits of this case will

never happen.” 

(5) The court devoted special attention to the availability of

less drastic sanctions. It “carefully weighed the impact and

severity of this sanction and . . . considered whether alternative sanctions would be sufficient,” but it “determined that no

alternative sanction would be sufficient and Vision’s conduct

warrants striking its Answer.” The court explained why neither a discovery extension nor an adverse inference instruction would be sufficient under the circumstances.

[3] Vision’s argument that the court failed to adequately

consider less drastic sanctions relies on Computer Task

Group, Inc. v. Brotby, 364 F.3d 1112 (9th Cir. 2004) (per

curiam), in which this court identified three factors to assess

whether a district court had adequately considered less drastic

sanctions: (1) whether the district court “explicitly discussed

the alternative of lesser sanctions and explained why it would

be inappropriate,” (2) whether the district court had “implemented lesser sanctions before ordering the case dismissed,”

8304 HESTER v. VISION AIRLINES
and (3) whether the district court had “warned the offending

party of the possibility of dismissal.” Id. at 1116.

In this case, the district court warned Vision on the record

several times about the possibility of a case-dispositive sanction, and the court’s written order contained an explicit, threeand-a-half-page discussion of why less drastic sanctions were

insufficient. Therefore, because the first and third factors of

Computer Task Group show that the court did adequately

consider lesser sanctions, Vision’s argument focuses on the

second factor, emphasizing that the district court did not

implement lesser sanctions before striking Vision’s Answer.

[4] The fact that a court does not implement a lesser sanction before striking an answer is not dispositive. It is just one

factor. And Vision’s own authority, Computer Task Group,

minimized that factor by holding that, in light of the defendant’s “willful disobedience,” the district court “could reasonably conclude that additional lesser sanctions would be

pointless” because “[i]t is appropriate [for a district court] to

reject lesser sanctions where the court anticipates continued

deceptive misconduct.” Id. at 1116-17 (first alteration in original) (quoting Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 352 (9th Cir. 1995)).

[5] Here, the district court considered Vision’s willful disobedience, the pointlessness of lesser sanctions, and its anticipation of continued deceptive conduct by Vision: 

In the Court’s view, Vision will act to delay this

litigation and prevent discovery by any means necessary. The Court has no reason to believe that given

an extension Vision would now begin to adhere to its

obligations and comply with the Court’s orders. Nor

does the Court believe that Vision could rectify the

harm that it has already caused by not preserving

documents. To extend discovery would merely give

HESTER v. VISION AIRLINES 8305
Vision what it desires—further delay—and would

simply validate Vision’s misconduct.

. . . .

. . . It has also become evident that Vision is willing to mislead the Court time after time in order to

keep from producing relevant, possibly critical, discovery material. 

[6] Accordingly, the district court did not abuse its discretion in striking Vision’s Answer because it applied the correct

law and made findings that were supported by evidence in the

record.

We now turn to Vision’s argument that the claims and allegations in the Complaint are insufficient to support a default

judgment. We review the Complaint de novo, see Knievel v.

ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005), and we hold that

the Complaint is legally sufficient. 

[7] When a default judgment is entered against a party, that

party may appeal the sufficiency of the Complaint, but

“ ‘facts alleged to establish liability are binding upon the

defaulting party, and those matters may not be relitigated on

appeal.’ ” Alan Neuman Prod., Inc. v. Albright, 862 F.2d

1388, 1392 (9th Cir. 1988) (quoting Danning v. Lavine, 572

F.2d 1386, 1388 (9th Cir. 1978)). The appeal should focus on

the legal sufficiency of the claims themselves and whether

those claims are supported by factual allegations in the Complaint. E.g., id.

[8] First, Vision unpersuasively argues that the claims for

unjust enrichment, money had and received, and conversion

are merely conclusory. For each claim, Vision identifies a few

miscellaneous, irrelevant facts that are not alleged in the

Complaint, but Vision provides no explanation of which elements of the claims are unsupported by factual allegations. 

8306 HESTER v. VISION AIRLINES
Second, Vision argues that, in Nevada, conversion applies

only to personal property and not to money. The Nevada

Supreme Court disagrees. Larson v. B.R. Enters., Inc., 757

P.2d 354, 355-56 (Nev. 1988). In Nevada, a defendant’s

wrongful dominion over a plaintiff’s commission of money is

sufficient for a conversion claim, even when no personal

property is involved. Id. Vision’s argument fails.

Third, Vision disputes the facts as they appear in the Complaint. The Complaint alleges “There is no employment contract between Vision and any of the Class members who

served as crew members on the flights to and from the airports in Baghdad and Kabul.” Vision argues that the Class

members did have express employment contracts with Vision

and that those contracts preclude the Class’s claims for equitable relief. 

[9] We reject Vision’s argument because it is merely an

attempt by Vision to relitigate the facts alleged in the Complaint. Furthermore, throughout discovery, Vision never produced a single employment contract for any Class member, so

Vision’s version of the facts is unsupported. The Class members were almost certainly at-will employees. Dillard Dep’t

Stores, Inc. v. Beckwith, 989 P.2d 882, 884-85 (Nev. 1999);

Am. Bank Stationary v. Farmer, 799 P.2d 1100, 1101-02

(Nev. 1990) (“[A]ll employees in Nevada are presumed to be

at-will employees.”). 

We next turn to Vision’s appeal of the order certifying the

Class under Rules 23(a) and 23(b)(3) of the Federal Rules of

Civil Procedure. We review for abuse of discretion the certification order itself, and we review for clear error any findings

of fact upon which the certification order relied. Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1171-72 (9th

Cir. 2010). 

Vision alleges that Hester had an employment contract with

Vision and that the other Class members did not. Based on

HESTER v. VISION AIRLINES 8307
those allegations, Vision argues that Hester’s claims are not

typical of the Class’s claims, that common issues of law and

fact do not predominate, and that Hester cannot adequately

represent the Class.

[10] Vision’s argument fails, however, because Vision did

not produce any evidence that Hester had an employment

contract with Vision. In support of its argument that an

employment contract existed, Vision refers only to a singlepage, unilateral memorandum from Vision to Hester, which

informed Hester of changes in rates at which Vision would

pay captains and first officers. The substance of that memorandum took effect over a year after Hester began working for

Vision, and Hester signed it only to indicate that he was “acknowledging receipt of this new policy.” Nothing in this document, which simply details changes in the pay structure for

Vision’s pilots, suggests that Hester was a party to an employment contract with Vision or that he was situated differently

from other members of the Class. Accordingly, Vision has not

shown that the court relied on clearly erroneous facts, and we

hold that the district court did not abuse its discretion in certifying the Class. 

[11] Finally, we turn to the Class’s cross-appeal of the district court’s order dismissing the claim for punitive damages.

We review that order de novo. Knievel, 393 F.3d at 1072. In

this case, in which jurisdiction is based on diversity, Nevada

law determines the availability of punitive damages: 

[I]n an action for the breach of an obligation not arising from contract, where it is proven by clear and

convincing evidence that the defendant has been

guilty of oppression, fraud or malice, express or

implied, the plaintiff, in addition to the compensatory damages, may recover damages for the sake of

example and by way of punishing the defendant. 

. . . .

8308 HESTER v. VISION AIRLINES
If punitive damages are claimed pursuant to this section, the trier of fact shall make a finding of whether

such damages will be assessed. If such damages are

to be assessed, a subsequent proceeding must be

conducted before the same trier of fact to determine

the amount of such damages to be assessed. The trier

of fact shall make a finding of the amount to be

assessed according to the provisions of this section.

NEV. REV. STAT. § 42.005(1), (3).

[12] As noted above, the Class’s claims are not based on

an action for breach of contract. Thus, the statute allows punitive damages. Whether punitive damages are appropriate and

what amount is appropriate are questions reserved for the trier

of fact, although the court has the responsibility to determine

whether, as a matter of law, the plaintiff has offered sufficient

evidence of oppression, fraud, or malice to support a punitive

damages instruction. Wickliffe v. Fletcher Jones of Las Vegas,

Inc., 661 P.2d 1295, 1297 (Nev. 1983), abrogated on other

grounds by Countrywide Home Loans, Inc. v. Thitchener, 192

P.3d 243, 253 n.39 (Nev. 2008). 

In Wickliffe, for example, the lower court dismissed the

plaintiff’s punitive damages claim after the plaintiff’s case in

chief because it determined that, as a matter of law, there was

insufficient evidence of oppression, fraud, or malice. Id. at

1296. The Nevada Supreme Court reversed, holding that there

was sufficient evidence to support the instruction. Id. at 1297.

The conduct in that case, which involved wrongful possession

of a leased vehicle, “could properly have been found to be

wrongful conduct that was willful, intentional, and done in

reckless disregard of its possible results.” Id. (internal quotation marks and alteration omitted).

[13] Likewise, in this case, the Complaint alleges facts that

could allow a jury to conclude that Vision engaged in oppression, fraud, or malice when it refused to pay its employees the

HESTER v. VISION AIRLINES 8309
hazard pay they were due, when it fired those employees to

whom it had already paid hazard pay, or when it continued to

accept hazard pay monies from upstream contractors for years

with no intention of distributing that money. Accordingly, we

reverse the order dismissing the claim for punitive damages,

and we remand for a jury trial to determine whether, by clear

and convincing evidence, Vision was “guilty of oppression,

fraud or malice,” NEV. REV. STAT. § 42.005(1), when it withheld the hazard pay from its employees. 

[14] As a final note, based on the record before us, Harold

Gewerter appears to have committed numerous ethical violations. We recommend that the district court, in the exercise of

its discretion, report Mr. Gewerter to the state bar to determine whether disbarment or some other sanction is merited.

AFFIRMED in part, REVERSED in part, and

REMANDED.

Plaintiff to recover costs.

8310 HESTER v. VISION AIRLINES