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A recent Daubert case raised the issue of how closely a damages calculation has to reflect the corporate structure in order to be admissible.

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Namerow v. PediatriCare Associates, LLC

In pediatrician buyout suit, court says practice’s operating agreement requires net worth calculation; court agrees with defense expert’s definition of “net worth” as the value of assets minus liabilities, as stated in the balance sheets, and rejects proposed inclusion of intangible assets.

Court Says Expert’s Inclusion of Intangible Assets Violates Buyout Agreement

In pediatrician buyout suit, court says practice’s operating agreement requires net worth calculation; court agrees with defense expert’s definition of “net worth” as the value of assets minus liabilities, as stated in the balance sheets, and rejects proposed inclusion of intangible assets.

Zayo Group v. Latisys Holdings, LLC

In contract dispute, Chancery rejects plaintiff’s damages analysis, noting expert lacked valuation experience and chose a methodology (EBITDA multiple) that did not fit facts of case; court says there was no evidence that the alleged breach permanently diminished value of the acquired company.

Expert’s Use of Wrong Damages Methodology Results in ‘Grossly Inflated’ Damages

In contract dispute, Chancery rejects plaintiff’s damages analysis, noting expert lacked valuation experience and chose a methodology (EBITDA multiple) that did not fit facts of case; court says there was no evidence that the alleged breach permanently diminished value of the acquired company.

Enplas Display Device Corp. v. Seoul Semiconductor Co.

Court majority says jury award was based on insufficient evidence because expert’s damage theory envisioned a premium freedom-to-operate license based on past sales of noninfringing products; dissent says expert’s hypothetical negotiation reflected real world concerns and supported award.

Federal Circuit Majority Says ‘Premium’ License Calculation Includes Noninfringing Products

Court majority says jury award was based on insufficient evidence because expert’s damage theory envisioned a premium freedom-to-operate license based on past sales of noninfringing products; dissent says expert’s hypothetical negotiation reflected real world concerns and supported award.

Noven Pharmaceuticals v Novartis Pharmaceuticals

In breach of contract action, court finds defendant’s valuation report is discoverable; report is relevant to an issue in dispute and not protected by attorney-client privilege or work-product doctrine where valuation was not done solely in anticipation of litigation but had mixed purpose.

Court Finds Defendant’s Valuation Had ‘Mixed Purpose’ and Orders Disclosure

In breach of contract action, court finds defendant’s valuation report is discoverable; report is relevant to an issue in dispute and not protected by attorney-client privilege or work-product doctrine where valuation was not done solely in anticipation of litigation but had mixed purpose.

Bio Rad Labs. v. 10X Genomics, Inc.

Allowing that apportionment is “inherently imprecise,” court says damages expert’s supplemental report shows that the apportionment underlying three benchmark licenses aligns with the expert’s royalty rate in the hypothetical license; expert’s royalty opinion is admissible under Daubert.

Daubert Ruling on How to Satisfy Apportionment When Using Benchmark Licenses

Allowing that apportionment is “inherently imprecise,” court says damages expert’s supplemental report shows that the apportionment underlying three benchmark licenses aligns with the expert’s royalty rate in the hypothetical license; expert’s royalty opinion is admissible under Daubert.

Olive v. General Nutrition Centers

In IP case, appeals court upholds exclusion of expert testimony; one expert’s damages analysis was based on speculative assumptions as to link between increase in defendant’s revenue and infringement; second expert’s analysis was inadmissible, hinging on first expert’s unreliable opinion.

Court Rejects Expert’s Reliance on Other Celebrity Royalty Agreements to Develop Damages Analysis

In IP case, appeals court upholds exclusion of expert testimony; one expert’s damages analysis was based on speculative assumptions as to link between increase in defendant’s revenue and infringement; second expert’s analysis was inadmissible, hinging on first expert’s unreliable opinion.

MY Imagination v. M.Z. Berger & Co.

Court says plaintiff fails New York test for lost profits; plaintiff lacks coherent damages theory and, by its own admission, is unable to do more than speculate about future profitability; expert calculation represents “the sort of conjecture the reasonable certainty standard prohibits.”

Court Concludes Plaintiff Cannot Satisfy Three-Part New York Lost Profits Test

Court says plaintiff fails New York test for lost profits; plaintiff lacks coherent damages theory and, by its own admission, is unable to do more than speculate about future profitability; expert calculation represents “the sort of conjecture the reasonable certainty standard prohibits.”

Gill v. Gill

Earn-out payments related to sale of a marital asset were marital asset and subject to equitable distribution, Supreme Court’s majority says, even though value of the payments was uncertain as of the valuation date and the sale of the husband’s company took place after the valuation date.

Divided High Court Says Earn-Out Payments From Company Sale Are a Marital Asset

Earn-out payments related to sale of a marital asset were marital asset and subject to equitable distribution, Supreme Court’s majority says, even though value of the payments was uncertain as of the valuation date and the sale of the husband’s company took place after the valuation date.

In re PLX Tech. Stockholders Litig.

Chancery says plaintiffs proved directors breached fiduciary duties and duty to disclose but failed to prove damages; court rejects plaintiff experts’ DCF analysis, noting problematic projections and beta; “real-world market evidence” shows company was not worth more than deal price.

‘Real-World Market Evidence’ Does Not Support Dissenters’ Damages Claim, Chancery Says

Chancery says plaintiffs proved directors breached fiduciary duties and duty to disclose but failed to prove damages; court rejects plaintiff experts’ DCF analysis, noting problematic projections and beta; “real-world market evidence” shows company was not worth more than deal price.

Meridian Mfg. v. C&B Mfg.

Court admits expert opinion that reasonable royalty cannot exceed cost of developing noninfringing alternative because opinion is based on facts of the case; court excludes opposing expert’s royalty because he failed to assess comparability of selected licenses to patented technology.

Underdeveloped Comparability Analysis Means Exclusion of Reasonable Royalty Opinion

Court admits expert opinion that reasonable royalty cannot exceed cost of developing noninfringing alternative because opinion is based on facts of the case; court excludes opposing expert’s royalty because he failed to assess comparability of selected licenses to patented technology.

Exelon Corp. v. Commissioner

Appeals court upholds Tax Court’s ruling that taxpayer’s transactions do not represent section 1031 like-kind exchanges because taxpayer never assumed ownership of replacement plants; improper input from taxpayer’s law firm tainted appraisals used to show otherwise; accuracy penalty is justified.

Appeals Court Upholds Tax Court’s Section 1031 Decision Pivoting on ‘Tainted Appraisals’

Appeals court upholds Tax Court’s ruling that taxpayer’s transactions do not represent section 1031 like-kind exchanges because taxpayer never assumed ownership of replacement plants; improper input from taxpayer’s law firm tainted appraisals used to show otherwise; accuracy penalty is justified.

Bio Rad Labs. v. 10X Genomics, Inc.

Court finds plaintiff expert’s lost profits calculation regarding two-supplier market is inadmissible and rejects reasonable royalty to the extent expert failed to explain how apportionment in benchmark licenses relates to expert’s hypothetical license.

Daubert Ruling on How to Satisfy Apportionment When Using Benchmark Licenses

Court finds plaintiff expert’s lost profits calculation regarding two-supplier market is inadmissible and rejects reasonable royalty to the extent expert failed to explain how apportionment in benchmark licenses relates to expert’s hypothetical license.

Chrem v. Commissioner

Court finds using ESOP appraisal to show “qualified appraisal” is a long shot to meet charitable contribution verification requirements because appraisal did not consider tax consequences or value shares individual petitioners donated, but petitioners may have reasonable cause defense.

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