Commentary and analysis of the possibility for class certification of a “punitive damage” class under Federal Rule of Civil Procedure 23. Federal courts are split over whether it is appropriate to certify a punitive damage class, either for a determination of liability for punitive damages or for actual classwide determination of damages. This article discusses several federal court decisions evaluating whether it is appropriate to certify a punitive damage class. Many federal courts have rejected punitive damage classes in a number of seminal mass tort cases. Punitive damage classes have failed for the inability of plaintiffs to prove the existence of a limited fund under Rule 23(b)(1)(B); because of choice of law problems in proposed Rule 23(b)(3) class; and as a possible violation of the Anti-Injunction Act (28 U.S.C. § 2283). However, some other federal courts have been willing to entertain requests for punitive damage classes. The concept for punitive damage classes is simple and compelling. If certified, a punitive damage class could provide a means to pay all class claimants a share of a single punitive damage fund. Theoretically, the punitive damage class eliminates the problem of successive punitive damage awards against a defendant. However, punitive damage classes have proved elusive in federal practice.
Linda S. Mullenix, Complex Litigation: Punitive Damages Class, National Law Journal, Jan. 24, 2000, at A18.