Wednesday, February 28, 2007
That's what Beck & Herrmann think, due to the Williams case. The basic jump they propose -- and it has some appeal -- is that if you can't get punitives for people who really aren't before the court, you shouldn't be able to get punitives for people who for all realistic purposes aren't before the court.
Of course, we at least pretend in class litigation that the class members are represented and thus, in some sense, present. That makes to me a shift to the outright end of punitives in class action to be more of a leap than they would suggest.
B&H also note the potential problem -- now Constitutional -- of being precluded from presenting all possible defenses, and its special applicability in bifurcated class actions (where individualized issues are left to a secondary phase).
I think they may put a bit more weight than warranted on a particular "first" -- so long as final judgment comes after an opportunity to present defenses, my guess is that it's okay -- but it's an interesting argument, especially if there's a case where the first phase of the trial doesn't just consider the availability of punitive damages but also the amount of them.
Both arguments (and others they note) will certainly be popping up and may have some traction.