Lost profits calculation goes off the track

BVWireIssue #257-1
February 7, 2024

economic damages & lost profits
calculating damages, damages, lost profits, breach of contract, expert testimony, rule 702, reliability, lost revenue, covenant

In a Missouri breach of contract case, the plaintiffs were carriers who delivered print newspapers to subscribers under an agreement that gave them territorial rights. When the publisher offered a digital version of the newspaper, the carriers, who allegedly were not compensated for lost subscriptions of the print edition, sued. The carriers claimed damages from the lost revenue and had an expert do the calculations.

Excluded: For the analysis, the expert assumed that every digital subscriber in the plaintiffs’ territories would have been a home delivery customer but for the digital version. But the contract with the carriers did not require that they be paid a fee regardless of the method of delivery. Plus, there was no evidence that every single digital subscriber would have been a print subscriber. Therefore, under the expert’s analysis, the plaintiffs would be in a better position than if there had been no breach—an “approach expressly prohibited under Missouri contract law,” the court said, granting the defendant’s motion to exclude the expert’s testimony.

The case is Bextermueller News Distribs., Inc. v. Lee Enters., 2023 U.S. Dist. LEXIS 229847; 2023 WL 900091 (Dec. 28, 2023), and a case analysis and the full opinion are available on the BVLaw platform.

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