The U.S. Supreme Court is once again taking up the question of constitutional limits on punitive damage awards in Cooper Industries v. Leatherman Tool Group, No. 99-2035.

Leatherman makes a multipurpose tool popular with outdoor enthusiasts. Cooper moved to capture part of this market with a knock-off that was almost indistinguishable from the Leatherman product and used a photo of Leatherman's tool -- minus the identifying marks -- to promote its own product in brochures. Leatherman sued under Oregon law. A federal court jury awarded $50,000 in compensatory and $4.5 million in punitive damages. The district court upheld the amount, and the 9th Circuit court of appeals affirmed, finding no abuse of discretion.

In the Supreme Court, Cooper argues that the court of appeals should have reviewed the verdicts de novo, giving no deference to the trial court. Cooper contends that jury awards of punitive damages are wildly unpredictable, imposing different penalties on similarly situated defendants. Appeals courts reviewing such verdicts de novo and applying the guideposts set forth in BMW v. Gore, could develop more consistency in awards. The Seventh Amendment does not preclude appellate courts from substituting their own view of a reasonable amount in place of the jury's because punitive damages are not a "fact" found by the jury.

AAJ filed a brief as amicus curiae in support of Leatherman. AAJ argued that there is no constitutional right to predictable (as distinguished from non-excessive) punitive damages. Moreover, the Court has never distinguished punitive damages from compensatory for Seventh Amendment purposes. Indeed, a major factor in the adoption of the Seventh Amendment was to protect the jury's power to award punitive damages.