488
O'Connor, J., dissenting
"His Honor has instructed you that you may award punitive damages and I've indicated to you what punitive damages [are]. Now, just consider the wealth of this corporation. [T]he reason for putting in [expert evidence on TXO's resources] is that's how a jury considers the amount of punitive damages. This is a multi-million dollar corporation—even a billion dollars in assets. . . . [Think about imposing a punitive award in the range of a] million, twelve million dollars. Those kinds of numbers are not out of line when you talk about a corporation that has assets of something like a billion dollars." Id., at 757-758 (emphases added).
Counsel for respondent Alliance Resources Corp. similarly did not argue that punitive damages should be linked to potential harm. He did mention that TXO anticipated a large profit from its nefarious scheme. See id., at 779-780; ante, at 461 (plurality opinion). But counsel once again made no attempt to quantify TXO's potential gain. Nor did he encourage the jury to base the punitive damages award on TXO's expected profit. Instead, counsel argued only one measure for punitive damages—TXO's wealth:
"A two billion dollar company. Ha[s] earnings of $225,000,000, average. Last year made $125,000,000.00 alone. Last year. Now, what's a good fine for a company like that? A hundred thousand? A million? You can do that if you think it's fair . . . ." Tr. 781.
The portion of counsel's argument the plurality relies upon, ante, at 461, turns out to be a transition between a discussion of TXO's conduct and a plea for the jury to award punitive damages based exclusively on TXO's wealth. Immediately after delivering the portion of the argument the plurality reproduces—in which counsel told the jury that the punishment should " 'fit' " the scheme and " 'fit the wealth,' " ibid.— he asked rhetorically, "Now, how much is the wealth?" Tr. 780. It was then that he told the jury, in great detail, about
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