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The Comprehensive Guide to Lost Profits and Other Commercial Damages, Third Edition

The Comprehensive Guide to Lost Profits and Other Commercial Damages, Third Edition
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The 3rd Edition of The Comprehensive Guide to Lost Profits and Other Commercial Damages, edited by Nancy J. Fannon and Jonathan Dunitz, Esq., provides a deep and rich resource for financial experts and attorneys seeking guidance on damage calculations. The Guide focuses on financial evidence: how to gather it, interpret it, and tell its story in a lawsuit or litigation setting. Blending the financial expert’s knowledge of accepted methods and procedures with the attorney’s knowledge of legal issues and insights, it provides in-depth analysis and interpretation of the continually expanding body of case law.

"Fannon and Dunitz's Comprehensive Guide to Lost Profits and Other Commercial Damages brings together some of the best thinking of lawyers and accounting and valuation experts on issues that permeate every lost profits, financial and valuation case. It should be on the bookshelf and within easy reach of every trial lawyer who handles these complex cases." — Wilbur A. Glahn, III, Director, Chair, Business Litigation Practice Group McLane Law Firm, Manchester, New Hampshire

"This 1,500 plus-page treatise addresses virtually every financial and legal aspect of all types of damage cases. Written by top-notch professionals in their respective fields of damage litigation, this book is a valuable resource for any expert or attorney dealing with damages issues." — Shannon Pratt, CFA, ARM, ABAR, FASA, MCBA, CM&AA, CEO Shannon Pratt Valuations, Inc., Portland, Oregon

Download a sneak peek of the book | Download a recent BVU article about the book

Key highlights of the new edition include:

  • Updated and expanded chapters covering all aspects of calculating lost profits / loss of business value
  • An insightful and comprehensive look at the unjust enrichment remedy
  • Substantive new materials on forensic accounting
  • A new chapter covering business interruption
  • Expanded coverage of benefit of the bargain damages
  • Expanded insights into intellectual property damages, including patents, trademarks and copyright
  • New and enhanced abstracts of many of the lost profit and damage cases found throughout the book

Ensure that you have the most up-to-date thinking on damages by adding The Comprehensive Guide to Lost Profits and Other Commercial Damages to your business library today!

TABLE OF CONTENTS

VOLUME ONE

  • About the Editors
  • Acknowledgments
  • About the Contributing Authors
  • Foreword
  • Chapter 1. Professional Standards for Experts
    By Michael A. Crain, CPA/ABV, ASA, CFA, CFE
    • 1.0 Certified Public Accountants
    • 2.0 Economists and Other Financial Experts (Non-CPAs)
    • 3.0 Conclusion
  • Chapter 2. The Process: A Brief Introduction to the U.S. Court Systems From Filing to Appeal
    By Jonathan M. Dunitz, Esq., and Cliff T. Hutchinson, Esq.
    • 1.0 Introduction and Overview of U.S. Court and Trial System
    • 2.0 The Rules of Evidence
  • Chapter 3. Spoliation of Evidence
    By David B. Chaffin and Rachel J. Eisenhaure
    • 1.0 Introduction and Overview
    • 2.0 Spoliation: Defined and Explained
    • 3.0 Sanctions for Spoliation
    • 4.0 Spoliation Issues Relating to Experts
    • 5.0 Spoliation Issues Relating to ESI
  • Chapter 4. A Guide to Electronic Discovery and Evidence
    Daniel K. Gelb, Esq., and Richard M. Gelb, Esq.
    • 1.0 What Is ESI and Where Does It Reside?
    • 2.0 Under What Circumstances Must ESI Be Preserved and What Protocol Should Be Followed for Doing So?
    • 3.0 How Should ESI Be Produced?
    • 4.0 How Should ESI Be Managed During Litigation?
    • 5.0 What Is Required for ESI to Be Admitted Into Evidence at Trial?
    • 6.0 How Can Financial Experts Assist With E-Discovery?
  • Chapter 5. Expert Depositions: Accountants, Economists, and Appraisers Scope Note
    By David L. Herzer Jr., Esq.
    • 1.0 Expert Depositions, Generally
    • 2.0 Expert Depositions, Financial Experts
  • Chapter 6. Motions to Exclude Financial Experts
    By Jonathan M. Dunitz, Esq.
    • 1.0 Basic Legal Predicate
    • 2.0 Factors to Consider in Making a Motion to Exclude an Expert
  • Chapter 7. Motions to Exclude Expert Testimony
    By Robert M. Lloyd, Esq.
    • 1.0 Expert Qualifications
    • 2.0 Methodology
    • 3.0 The Data
    • 4.0 Assumptions
    • 5.0 Failure to Deal With Inconsistent Facts
    • 6.0 Conclusion
  • Chapter 8. Context of the Lost Profits Damages Claim
    By Jonathan M. Dunitz, Esq., and Tyler L. Farmer, Esq.
    • 1.0 How a Claim for Lost Profits Arises
    • 2.0 Common Elements of Lost Profits Damages Cases
  • Chapter 9. Performing Credible Lost Profits Calculations— Assumptions, Documentation, and Analyses
    By James O’Brien, CPA, CFF, Robert Gray, CPA/ABV/CFF, CFE, and Greg Stillman
    • 1.0 Proper Planning
    • 2.0 Determining the Proper Damages Period
    • 3.0 Estimating the Relevant Lost Revenues and Associated Costs
    • 4.0 Sufficient Reliable Data
    • 5.0 Summary
  • Chapter 10. Establishing Evidence in Lost Profits Cases
    By Tom Burrage, CPA/ABV, CVA, CFF
    • 1.0 Introduction
    • 2.0 Establishing a Reliable Foundation for the Claim
    • 3.0 Data and Information Generally Available From the Parties
    • 4.0 Market and Demand for Plaintiff’s Product
    • 5.0 Industry and Economic Data
    • 6.0 Adequate Consideration of All Available Data
  • Chapter 11. The Reasonable Certainty Requirement in Lost Profits Litigation: What It Really Means
    By Robert M. Lloyd, Esq.,
    • 1.0 Balancing the Competing Concerns
    • 2.0 The Factors Courts Consider
    • 3.0 Replacing Rules With a Standard
  • Chapter 12. Calculating Damages for Early-Stage Companies
    By Neil J. Beaton, CPA/ABV/CFF, CFA, ASA, and Tyler L. Farmer, Esq.
    • 1.0 Legal Requirements: The Basic Parameters
    • 2.0 Methods for Proving Lost Profits for New Businesses
  • Chapter 13. Lost Profits Versus Lost Business Value
    By Tyler L. Farmer, Esq. and Neil J. Beaton, CPA/ABV/CFF, CFA, ASA
    • 1.0 Introduction
    • 2.0 Definition of Value in a Loss of Business Value Claim
    • 3.0 Considerations in Making the Claim for Lost Business or Lost Profits
    • 4.0 Comparison of Lost Profits Versus the Lost Value of a Business
    • 5.0 Can Plaintiffs Recover Both Lost Profits and Lost Business Value?
    • 6.0 Conclusion
    • 7.0 Additional Resources
  • Chapter 14. Discounting Lost Profits in Damage Measurements
    By Michael A. Crain, CPA/ABV, ASA, CFA, CFE
    • 1.0 Introduction
    • 2.0 Objective of Compensatory Damages: Making the Plaintiff Whole
    • 3.0 Interest Rates, Rates of Return, and Discount Rates
    • 4.0 Conclusion
  • Chapter 15. Discounting Damages: Case Law
    By Robert M. Lloyd, Esq.
    • 1.0 Cases Allowing a Risk-Free Rate
    • 2.0 Cases Requiring a Risk-Adjusted Rate
    • 3.0 Cases Allowing a Reinvestment Rate
    • 4.0 Other Opinions Discussing the Discount Rate
    • 5.0 Alternatives to Challenging the Discount Rate
    • 6.0 Conclusion
  • Chapter 16. Use of Forensic Evidence in a Lost Profits Case
    By Michael Kaplan, CPA/ABV/CFF, CVA, CFFA, and Rebekah Smith, CPA/CFF, CVA, CFFA
    • 1.0 Introduction
    • 2.0 Indicators That Forensic Evidence Is Needed
    • 3.0 Admissibility of Forensic Evidence
    • 4.0 Cases Demonstrating the Use of Forensic Evidence
  • Chapter 17. Financial Forensic Services for Internal Investigations
    By Peter Resnick, CPA, CFF, CFE, and Greg Naviloff, CPA (NY), CFF, CFE, ABV
    • 1.0 Introduction
    • 2.0 White-Collar Crimes and Financial Forensic Services
    • 3.0 Distinguishing Financial Audit From Financial Forensic Services
    • 4.0 Financial Forensic Services and Internal Investigations
    • 5.0 Engagement Acceptance
    • 6.0 Initial Allegation Response
    • 7.0 Phases of a Financial Forensic Internal Investigation
    • 8.0 Common Mistakes in Internal Investigations
  • Chapter 18. Business Interruption and Damage Claims
    By John Garaffa, Esq.
    • 1.0 Introduction
    • 2.0 Business Interruption Insurance Policy Issues
    • 3.0 Valuing Business Interruption
  • Chapter 19. Lost Profits for Physician Practices and Violation of Noncompete Agreements
    By Mark O. Dietrich, CPA/ABV
    • 1.0 Overview
    • 2.0 Basic Factors to Consider
    • 3.0 In-Depth Look at Special Issues in Identifying Damages
    • 4.0 Conclusion
    • 5.0 Glossary of Terms
  • Chapter 20. Lost Profits Issues Unique to the Government Contracts Industry
    By Patrick A. McGeehin, CPA, and Daniel E. Johnson, Esq.
    • 1.0 Government Contracting Types
    • 2.0 Government Contract Cost Analysis
    • 3.0 Application of Government Contract Principles to Lost Profits Disputes
    • 4.0 Conclusion
  • Chapter 21. Construction Claims
    By Colin A. Johns, CPA/CFF, CFE, CA, and Greg A. McKinnon, CPA/CFF, CMA
    • 1.0 Introduction: Definition and Presentation of Construction Claims
    • 2.0 Claim Pricing Methodologies
    • 3.0 Claims for Delay
    • 4.0 Disruption
    • 5.0 Acceleration
    • 6.0 Typical Causes of Construction Claims
    • 7.0 Lost Profits on Impairment of Working Capital and Bonding Capacity
    • 8.0 Summary
  • Chapter 22. Lost Profits for Automobile Dealerships
    By Timothy W. York, CPA/ABV
    • 1.0 Franchise Relationships
    • 2.0 Lost Profits Considerations
    • 3.0 Understanding the Dealership Business
    • 4.0 Relevant Resources
    • 5.0 General Bibliography
  • Chapter 23. Lost Profits Analysis in Eating Establishments
    By Ron Seigneur, CPA/ABV, ASA, CVA, CFF, CGMA
    • 1.0 Introduction
    • 2.0 General Background of Restaurant Industry
    • 3.0 Financial Performance
    • 4.0 Establishing Causation for Losses of Eating Establishments
    • 5.0 Forensic Considerations
    • 6.0 Examples of Lost Profits in Restaurants
    • 7.0 Restaurant Industry Resources
    • 8.0 Notable Case Law Relating to Restaurants
  • Chapter 24. Intellectual Property Overview
    By Michael A. Crain, CPA/ABV, ASA, CFA, CFE
    • 1.0 Overview: Comparing IP Valuation to IP Damages Measurements
    • 2.0 Summary
  • Chapter 25. Patent Infringement Damages: Lost Profits and Royalties
    By Richard F. Bero, CPA/ABV, CVA, CLP, CFF
    • 1.0 Federal Law Governing Patent Infringement
    • 2.0 The Patented Technology at Issue
    • 3.0 Lost Profits in Patent Infringement Cases
    • 4.0 Substitute Products
    • 5.0 The Market at Issue
    • 6.0 The Patent Owner’s Products
    • 7.0 Alternative Actions Available to the Infringer
    • 8.0 Market Share Damages
    • 9.0 Price Erosion
    • 10.0 Collateral Sales—Lost Profits
    • 11.0 Royalty Damages
    • 12.0 Reasonable Royalties
    • 13.0 Post-Verdict Royalties
    • 14.0 Limitations on Damages
    • 15.0 Damages Against the U.S. Government Under §1498
    • 16.0 Prejudgment Interest
  • Chapter 26. Successfully Using Experts in Patent Infringement Cases
    By William J. Marsden Jr., Esq., and Timothy Devlin, Esq.
    • 1.0 A Primer for Attorneys on Patent Damages
    • 2.0 Reasonable Royalty Damages
    • 3.0 Ongoing Royalties and Mandatory Licenses
    • 4.0 Additional Types of Damages and Limitations
    • 5.0 Recent Updates
    • 6.0 Case-Based Examples
    • 7.0 Conclusion
  • Chapter 27. Lost Profits in Trademark and Copyright Cases
    By Richard Hoffman, Mark Glick, Ph.D., J.D., and Milan Politi ,J.D.
    • 1.0 Trademark Damages
    • 2.0 Copyright Damages
    • 3.0 Summary of Copyright Infringement Damages
  • Chapter 28. Introduction to Equitable Remedies
    By George P. Roach
    • 1.0 Advantages
    • 2.0 Disadvantages
    • 3.0 Basis of Equitable Remedy
    • 4.0 Variation by Jurisdiction
    • 5.0 Discretion and Limited Jurisdiction
    • 6.0 Decline in Familiarity
    • 7.0 Conclusion
  • Chapter 29. Counting the Beans: Unjust Enrichment and the Defendant’s Overhead
    By George P. Roach
    • 1.0 Introduction
    • 2.0 Relevance
    • 3.0 Semantics
    • 4.0 The Origins of Unjust Enrichment: Defendant as Quasi-Trustee
    • 5.0 The Origins of Unjust Enrichment: The Americanization of ‘Profit’
    • 6.0 Remedy Measurement in Related Areas of the Law
    • 7.0 The 2nd Circuit: An Uneven Commitment to Consistency?
    • 8.0 Willfulness and Overhead
    • 9.0 Survey by Circuit
    • 10.0 Incremental Versus Full Absorption
    • 11.0 Conclusions
  • Chapter 30. Restitution Rollout: The Restatement (Third) of Restitution & Unjust Enrichment: Counter-Restitution for Monetary Remedies in Equity
    By George P. Roach
    • 1.0 Introduction
    • 2.0 Anti-Netting Doctrine as a Genetic Marker for Monetary Remedies in Equity
    • 3.0 Monetary Remedies in 19th Century IP Case Opinions
    • 4.0 Semantics
    • 5.0 Quasi-Trustee
    • 6.0 Counter-Restitution
    • 7.0 Disgorgement by Default
    • 8.0 Gross Disgorgement Cases
    • 9.0 FTC Claims for Gross Disgorgement
    • 10.0 Conclusion
  • Chapter 31. Post-Acquisition Disputes and Related Damages
    By Jeff Litvak, CPA/ABV/CFF, ASA, Kenneth Mathieu, CPA/ABV/CFF,
    Jared Bourgeois, CPA/ABV, CFE, and Kevin R. Shannon, Esq.
    • 1.0 Introduction
    • 2.0 Overview of the Transaction Process
    • 3.0 Breach of Contract Claims in Post-Acquisition Disputes
    • 4.0 Pitfalls to Avoid in Assessing Breach of Contract Damages
    • 5.0 General Process for Resolving Post-Acquisition Disputes
    • 6.0 Case Study
    • 7.0 Insights and Observations Regarding Merger and Acquisition Disputes
    • 8.0 Conclusion
  • Appendix A. Links to Ethical Guidelines Published by Member Organizations
  • Appendix B. Links to Requirements for Certifications, by Organization
  • Appendix C. Decision Tree to Determine the Application of Professional Standards
  • Appendix D. Comparison of AICPA Professional Standards and Federal Rule of Evidence 702
  • Appendix E. Federal Rules of Evidence Pertaining to Expert Testimony
  • Appendix F. Federal Rules of Civil Procedure Pertaining to Expert Testimony
  • Appendix G. Sample Scheduling Orders
  • Appendix H. Reference Manual on Scientific Evidence: 3rd Edition (2011), Selected Sections

VOLUME TWO

  • Introduction
  • Court Case Summary Table
  • Court Case Abstracts
Author/Editor: Nancy Fannon and Jonathan Dunitz
Publisher: Business Valuation Resources, LLC
Published: March 2014

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