Punitive Damages: Factors to be Considered

David A. Szwak

Punitive Damages: Factors to be Considered

Postby David A. Szwak » Thu Oct 06, 2005 10:16 pm

In determining the amount of any award of exemplary damages, the jury may consider the following factors:
1. The reprehensibility of defendant's acts
2. The severity of the injuries that plaintiff suffered or was threatened with
3. The profitability of defendant's conduct
4. The wealth of the defendant
5. The amount of compensatory damages awarded
6. The ratio that your award of exemplary damages would bear to the compensatory damages awarded
7. The costs of litigation
8. Any potential or actual criminal penalties that have or may be imposed on defendant
9. Any other exemplary damage judgments that have or may be imposed on defendant
10. The amount needed to punish the defendant and to deter the defendant and others like him. Grimstaus v. Ford Motor Co., 119 Cal. App. 3d 757, 174 Cal. Rptr. 348 (1981).

In awarding punitive damages against the defendant under the Fair Credit Reporting Act, the jury must consider the following factors in assessing the award:
a) The remedial purpose of the Act;
b) The harm(s) to consumer intended to be avoided or corrected by the Act;
c) The manner in which the defendant conducted its business;
d) The manner in which agency dealt with plaintiff; and
e) The defendant's income and net worth.
Fury Imports, Inc. v. Shakespeare Co., 554 F.2d 1376 (5th Cir. 1977); Jones v. Credit Bureau of Huntington, Inc., 399 S.E.2d 694 (W. Va. 1990); Nitti v. Credit Bureau of Rochester, Inc., 84 Misc.2d 277, 375 N.Y.S.2d 817 (1975); Pinner v. Schmidt, 805 F.2d 1258 (5th Cir. 1986) [La.]; Collins v. Retail Credit Co., 410 F.Supp. 924 (U.S.D.C. Mich. 1976); Boothe v. TRW Credit Data, 768 F.Supp. 434 (U.S.D.C. S.D. N.Y. 1991); Russell v. Shelter Fin. Services, 604 F.Supp. 201 (U.S.D.C. W.D. Mo. 1984); Yohay v. City of Alexandria Employees Credit Union, Inc., 827 F.2d 967 (4th Cir. 1987) [Va.]; Ackerley v. Credit Bureau of Sheridan, Inc., 385 F.Supp. 658 (U.S.D.C. Wyo. 1974); Verdin v. Equifax Services, Inc., 1992 W.L. 111223 (U.S.D.C. E.D. La. 1992); Guimond v. Trans Union Corp., --- F.3d --- (9th Cir. 1994); Continental Trend Resources v. OXY, 44 F.3d 1465, 1476 (10th Cir. 1995); Dunn v. HOVIC, 1 F.3d 1371 (3d Cir. 1993); 15 U.S.C. 1681n.

The jury should also consider an award which would be adequate to affect defendant's future conduct. Pinner v. Schmidt, 805 F.2d 1258 (5th Cir. 1986) [La.]; Collins v. Retail Credit Co., 410 F.Supp. 924 (U.S.D.C. Mich. 1976).

If the jury awards punitive damages under the Fair Credit Reporting Act, the award of punitive damages need not bear any relationship to any award to actual damages the jury may award, except to the extent it must meet constitutional standards set forth in State Farm and other cases since that time. In essence there is no method of computation and the jury should award punitive damages which, in their judgment, are necessary, in light of the factors provided to the jury. Jones v. Credit Bureau of Huntington, Inc., 399 S.E.2d 694 (W. Va. 1990).


JURY INSTRUCTION NO. ____ :

In this case, defendant has stipulated to a willful violation of the Fair Credit Reporting Act. Accordingly, you may award punitive damages against the defendant. As the triers of facts, in awarding punitive damages under the Fair Credit Reporting Act, may award puntive damages even if you believe Plaintiff proved no actual damages or just nominal actual damages. Boothe v. TRW Credit Data, 768 F.Supp. 434 (U.S.D.C. S.D. N.Y. 1991); Russell v. Shelter Fin. Services, 604 F.Supp. 201 (U.S.D.C. W.D. Mo. 1984); Yohay v. City of Alexandria Employees Credit Union, Inc., 827 F.2d 967 (4th Cir. 1987) [Va.]; Ackerley v. Credit Bureau of Sheridan, Inc., 385 F.Supp. 658 (U.S.D.C. Wyo. 1974); Verdin v. Equifax Services, Inc., 1992 W.L. 111223 (U.S.D.C. E.D. La. 1992); Guimond v. Trans Union Corp., --- F.3d --- (9th Cir. 1994); 15 U.S.C. 1681n.

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