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Concurrent Damages

by Bert I. Huang
100 Va. L. Rev. 711 (2014)
Article

In areas as diverse as copyright, pollution, consumer protection, and electronic privacy, statutory damages have become a familiar form of civil remedy. Yet judges are discovering that these formulaic awards can swing by orders of magnitude for arbitrary reasons—resulting in windfalls for some but little relief for others—due to the rigidly linear way in which the awards stack up, count by count. The irony is that too much structure, rather than too little, is what generates such capricious outcomes.

This Article proposes a solution: allow courts to run damages concurrently. As with concurrent criminal sentencing, the judge would recognize every act of violation, and yet group the nominal counts so that the effective penalties do not stack up arbitrarily. This simple option enables judges to tailor the structure of damages to match more closely how the harms actually add up (“Should the copyright damages accumulate per song, per album, per artist, or per playlist—in this case?”). Moreover, it can displace the troubling fudges—such as fictional awards—that some courts use when bound by the rigidity of statutory damages. Creating a concurrent damages option may thus make possible not only more accurate and consistent compensation but also clearer, truer signals for future actors and future courts.

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