award to the amount that, combined with any compensatory damages, conforms to the applicable statutory cap. This is not to say that the statutory cap is completely irrelevant to the constitutionality analysis, at least in light of the decision of the Ninth Circuit Court of Appeals in Zhang. That decision suggests that Title VII’s statutory cap substitutes for a comparable civil penalty, the third BMW factor, as a yardstick of constitutionality of a punitive damages award in discrimination cases. See Zhang, 339 F.3d at 1045 (using Title VII’s statutory cap as a comparator in a § 1981 discrimination case, because there was no civil penalty for discrimination claims, and the statutory cap represented a legislative judgment similar to a civil penalty); see also Abner, 513 F.3d at 164 (<HOLDING>). The cap just is not the starting point in
holding without discussion of the punitive damages issue that judgment for embezzlement which included actual and punitive damages was nondischargeable holding tcpa is remedial statute and that statutory damages are not punitive damages holding that the termination of the fee cap did not affect litigation in progress when the fee cap was in effect holding that the combination of the statutory cap and a high threshold for culpability for punitive damages in a title vii case confined a punitive damages award within the cap to a level tolerated by due process holding a court may not award punitive damages