Nine Lives: The Punitive Damage Class

The concept of the punitive damage class has a long and dubious lineage, extending back more than thirty years. During the 1980s and the 1990s the concept of the punitive damage class excited plaintiffs' attorneys, inspired countless academics, riveted at least a few defense counsel, and caught the attention of a scattering of federal judges. Nonetheless, certification of actual punitive damage classes has proved elusive, as court after court refused to give their imprimatur to the punitive damage class. In truth, the history of the punitive damage class has been one of repeated repudiation, punctuated by scattered, anomalous success (a point which its advocates have difficulty acknowledging). The punitive damage class's Waterloo, however, clearly arrived with the Supreme Court's decision in Ortiz v. Fibreboard Corp. ― celebrated, or at least commemorated in this symposium. Because the Rule 23(b)(1)(B) limited-fund class category has been the usual procedural vehicle for the punitive damage class, the Court's exacting requirements for certification of a limited-fund class action in Ortiz foredoomed almost every subsequent attempt to certify a punitive damage class. And yet the punitive damage class has proved enduring and hard to stave off. Hence, the Supreme Court's string of punitive damage cases, decided in the 1990s and into the twenty-first century, breathed new life into the moribund idea of the punitive damage class. The Court's suggestions of constitutional constraints on punitive damage awards provided a basis for advancing the argument for the Rule 23(b)(1)(B) limited fund. Seizing this jurisprudence, Judge Jack Weinstein cobbled together an innovative theory to undergird certification of a punitive damage class in In re Simon II Litigation, thus providing renewed hope to the advocates of the punitive damage class. Nevertheless, in 2005 ― more than twenty-five years after the first suggestion of a punitive damage class ― the Second Circuit unceremoniously buried the punitive damage class once again. For those who have lived through thirty years of mass-tort litigation, this renewed advocacy on behalf of the punitive damage class presents a rather intriguing, if not preposterous, prospect. The renewed arguments in favor of the punitive damage class take three forms. First, it is urged that courts take an expansive view of the Supreme Court's holdings in both Ortiz and Phillip Morris USA v. Williams, and interpret such decisions to support certification of punitive classes under Rule 23(b)(3). Second, other commentators suggest that the Supreme Court ought to grant review of a certified 23(b)(1)(B) punitive damage class, in order to create a specific exception to Ortiz that would authorize courts to certify punitive damage classes under 23(b)(1)(B). Third, plaintiffs' attorneys argue that CAFA opens the door to creative use of the punitive damage class through the law's authorization for “mass-action” cases. This Article examines these theories currently urged in support of the punitive damage class and assesses whether there actually is a viable means of sustaining a punitive damage class in the post-Ortiz, post-Simon II class action era. The Article concludes that prevailing class action jurisprudence, integrated with the Court's punitive damage jurisprudence, is unlikely to support certification of a Rule 23(b)(3) punitive damage class. In addition, the Supreme Court is extremely unlikely to create an Ortiz exception for punitive damage classes. Finally, the article suggests that CAFA cannot and does not support any Congressional intent to approve punitive damage classes as “mass actions” under this new jurisdictional statutory scheme.