Due Process Forgotten: The Problem of Statutory Damages and Class Actions

Abstract

Part II examines the theoretical rationale underlying both statutory damages and class actions: making individual claims marketable. This Part explains how combining the class action with statutory damages invites overdeterrence, a fact aptly demonstrated by the FACTA class actions. Part III describes the constitutional framework for analyzing constitutional excessiveness under the Due Process Clause. This Part shows how the modem due process standard for punitive damages - known as the BMW guideposts - in fact evolved from a test developed in early Supreme Court precedent analyzing the constitutional limits on statutory damages. Part IV examines modem judicial treatment of due process challenges to aggregate statutory damages awards. First, this Part discusses how courts confronted with due process challenges to statutory damages have refused to apply the BMW guideposts. Second, this Part addresses the altemative method courts have taken to due process statutory damages challenges: avoidance. Finally, Part V argues that the modem BMW standard should apply to aggregate statutory damages awards, and should be considered during the class certification phase of proceedings. Using the FACTA class actions as an illustration, this Part concludes that there is no principled reason to ignore the BMW guideposts, the history of the constitutional excessiveness standard, or the reality of modem class action litigatio