One of the most pressing issues in punitive-damages law today is how to protect defendants from multiple punitive-damages awards for a single course of conduct, while still ensuring that wronged plaintiffs can recover punitive damages. Numerous commentators have proposed non-optout class actions for punitive damages as the best solution to the multiplepunishment
First, this Article explains that because the Supreme Court has held that an individual plaintiff can collect punitive damages only for harm done to that plaintiff, allowing plaintiffs to opt out and pursue their own claims creates no risk of imposing duplicative punishment on defendants. Second, this Article suggests that mandatory classes are particularly inappropriate for class-action settlements because settlements are not punitive in nature. In a class settlement, parties have incentives to manipulate the settlement fund’s allocation of punitive damages in ways that bear no connection to wrongdoing or punishment, and that allow defendants to significantly reduce their punitive-damages exposure. Instead, preserving class members’ right to opt out best protects plaintiff autonomy and helps ensure that defendants pay an appropriate amount of punitive damages.
Leah Chan Grinvald
In September 2009, Hansen Beverage Company sent Rock Art Brewery a letter demanding that Rock Art cease and desist its use of “VERMONSTER” as a trademark for beer. Hansen is a multi-million dollar beverage corporation and Rock Art Brewery is a small brewing company owned by a husband-and-wife team based in Vermont. Hansen’s gravamen was that Rock Art’s “VERMONSTER” beer allegedly infringed on Hansen’s “MONSTER ENERGY” trademarks.
Rock Art’s success highlights a growing phenomenon in trademark law: the use of shaming by small businesses and individuals to defend themselves against a trademark bully. To date, most scholarly work on curtailing the over-enforcement of trademarks has been focused on legal means, such as developing stronger defenses to infringement. While this is important and meaningful work, focusing on purely legal means may not assist small businesses or individuals who have no access to legal resources in the first instance. The goal of this Article is to complement the work being done by these scholars and suggest that shaming can be an effective, pre-litigation tool to combat trademark bullies. Since shaming is currently not guaranteed to be effective or available to all small businesses and individuals, this Article suggests a number of legal reforms that could be undertaken in order to maximize the availability of shaming, as well as assist in effective shaming.
Utter Confusion: Why “Utter Disregard for Human Life” Should Be Replaced with an Objective Analysis of the Defendant’s Activity
Hannah B. Schieber
Whether a criminal defendant acts with “utter disregard for human life” alone distinguishes first from second degree reckless crimes in Wisconsin. Though Wisconsin adopted this type of language over one hundred fifty years ago, neither the legislature nor the courts can adequately explain or apply it. Attempts by Wisconsin appellate courts to address the vagueness of “utter disregard” have resulted in arbitrary distinctions
The Wisconsin legislature must therefore abandon “utter disregard” and codify the proposed objective examination of the defendant’s reckless activity. The Objective Activity Test asks jurors to analyze whether the defendant engaged in an activity which, viewed objectively under the circumstances, has no purpose outside of threatening or causing harm to others. By shifting the focus away from whether the defendant’s activity reflects a certain mindset and on to the nature of the activity itself, the Objective Activity Test will better accomplish the legislature’s goal of providing heightened punishment for those offenders whose behavior was particularly reprehensible while remaining consistent with existing precedent. The use of “utter disregard” plagues the Wisconsin criminal justice system, and the legislature must take action.