In its brief, the Chamber asked the California Supreme Court to affirm the California Court of Appeal's holding regarding so-called “Brandt fees.” The Chamber asserts that, when determining the due process limits on punitive damages, Brandt fees should not be included in the denominator of the ratio guidepost when they are awarded by the court after trial. When a plaintiff is represented on a contingency basis, such fees do not reflect any actual loss to the plaintiff. The brief also points out that plaintiffs should be held to the same strategic choice of either submitting evidence to the jury or forgoing reliance on such evidence during post-verdict review of the amount of any punitive award. If the Court were to rule that Brandt fees can be included in the denominator of the ratio guidepost, it also should hold that this would dictate reducing the constitutionally permissible ratio. This lower ratio would be sufficient to accomplish California's interest in punishment and deterrence.
Donald M. Falk, Evan M. Tager, and Carl J. Summers of Mayer Brown LLP represented the U.S. Chamber of Commerce as co-counsel to the U.S. Chamber Litigation Center.