…or Judge Posner will punish you. The punitive damages exceeded the compensatory damages in this bed bug case against Motel 6 by some 37 times. The Supreme Court’s recent line of argument in Pacific Mutual v. Haslip, State Farm v. Campbell and BMW v. Gore has suggested that “four times the amount of compensatory damages might be close to the line of constitutional impropriety.”
But the four-times figure is arbitrary. Judge Posner comes to the Supreme Court’s rescue by cogently laying out the theory of punitive damages, gently taking the Court to task in the process. A high multiple may be justified when the action to be punished is unlikely to be discovered or when the actual compensatory damages are low and would not motivate plaintiffs to otherwise bring suit against a legally-aggresive defendant. Both factors play a role in the bed bug case but would not justify absurdities such as the billions of dollars in punitive damages awarded against Exxon in the Exxon Valdez case.
My only worry with Posner’s analysis is that juries and judges may not be able to handle it. Perhaps the Supreme Court knows this and instead promulgates a foolish rule that is nevertheless easier to follow.
Addendum: Posner is the only person alive who deserves both a Nobel Prize and a seat on the U.S. Supreme Court. I put greater odds on the former than the latter but I happen to know that he recently visited the White House. Remember where you read it first.