## Facts

- Mark J. Geragos and E. Pat (Eugene Paterson) Harris were criminal-defense attorneys representing Michael Jackson during a heavily publicized criminal investigation.
- Geragos chartered a private jet from XtraJet, Inc., owned by Jeffrey Borer, to transport Jackson so that Jackson could surrender for an arranged arrest in a controlled setting.
- Borer directed an employee to install concealed video and audio recording devices on the aircraft to capture Jackson and his lawyers during the flight, intending to sell the recording to the media.
- The recording equipment captured video, but the audio was not recorded because the audio device was not properly set up.
- After learning about the recording, Geragos demanded the tape through XtraJet’s attorney; the demand was refused.
- Geragos and Harris sued and sought emergency relief to prevent dissemination of the recording; the trial court granted a temporary restraining order and later injunctive relief.
- The case proceeded to a bench trial. Plaintiffs introduced testimony that a recording of this type could likely sell for $1 million to $2 million.
- There was no evidence the videotape was actually sold, no evidence of any specific offer, and no evidence showing the tape’s actual contents.
- Borer presented no witnesses and offered no evidence at trial.
- The trial court entered judgment for plaintiffs and awarded:
  - Geragos: $2,000,000 compensatory damages and $16,000,000 punitive damages.
  - Harris: $250,000 compensatory damages and $2,000,000 punitive damages.
- Borer appealed, challenging the sufficiency of the evidence supporting the compensatory and punitive damages amounts.

## Issues

1. Whether the evidence supported multi-million-dollar compensatory damages when the videotape was not shown to have been sold, its contents were not proved, and the valuation testimony was hypothetical.
2. Whether the punitive damages awards were excessive under California law and federal due process, given the limited evidentiary support for compensatory damages and the ratio between punitive and compensatory damages.
3. Whether the proper remedy, if damages were excessive, was a conditional remittitur with a new trial on damages if plaintiffs did not accept the reduced amounts.

## Decision

- The Court of Appeal left the judgment of liability intact, treating the appeal as directed to the amount of damages rather than the underlying wrongdoing.
- The court held the compensatory damages awards were excessive as a matter of law because the record did not support damages tied to a realized sale, an actual offer, or proof of the recording’s specific content and economic value.
- The court held the punitive damages totals were constitutionally excessive once compensatory damages were reduced to an amount supported by the record.
- The court reversed the damages awards and remanded for a new trial limited to damages unless plaintiffs accepted a remittitur to:
  - $150,000 in total compensatory damages (combined), and
  - $600,000 in total punitive damages (combined).
- If plaintiffs accepted those reduced amounts, the judgment would be modified and affirmed as modified.

## Legal Principles

- Compensatory damages must bear a reasonable relationship to the evidence; damages based on speculative market value, without proof of a sale, offer, or measurable loss, may be deemed excessive.
- A compensatory award may be set aside or reduced when it “shocks the conscience” in light of the record and appears disproportionate to the harm proved.
- Punitive damages are constrained by due process and are evaluated using guideposts that include reprehensibility, the ratio between punitive and compensatory damages, and comparison to statutory or similar civil penalties.
- When liability is supported but damages are excessive, an appellate court may order a conditional remittitur and otherwise require a new trial limited to damages.

## Conclusion

In *Geragos v. Borer*, the California Court of Appeal addressed a covert videotaping on a chartered plane arranged to record Michael Jackson and his attorneys for possible sale to the media; although the conduct supported liability, the court found the multi-million-dollar compensatory awards and $18 million in punitive damages unsupported by the evidence and constitutionally excessive, ordering a new trial on damages unless plaintiffs accepted a reduced total of $150,000 compensatory and $600,000 punitive damages.


Geragos v. Borer, 2010 WL 60639 (2010)