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Back to Basics for Lost Profit Damages Calculations Amid COVID-19

Does the pandemic have an impact on the measurement of future lost profits, particularly where the underlying breach occurred before the pandemic arose? This is an area of law that could change as courts begin to face disputes in the context of a COVID-19 world. In the meantime, this article gives a primer on calculating lost profits damages.

Alleged reveal of secret KFC recipe points up valuation question

Ever wonder what those secret 11 herbs and spices are in KFC’s original recipe fried chicken?

Excelling in Litigation and Dispute-Related Valuations: How to Not Get Caught Bringing a Knife to a Gunfight

Preparing a valuation analysis can be difficult enough, let alone defending it against an opposing party questioning your every move. It is important for valuation experts to know how their valuations may be challenged by other experts and work to effectively address these issues pre-emptively. Presenters Sean Saari and Bob Ranallo discuss how to prepare yourself, and your valuation report, when you know your work will be subject to review and critique in a litigation ...

Judicial panel resistant to consolidating COVID-19 business interruption litigation

Responding to requests by plaintiffs who are pursuing lawsuits against insurers for COVID-19-related business losses, the Judicial Panel on Multidistrict Litigation (JPML Panel) recently rejected two proposals for centralization.

D&P’s de Gray releases new financial damages guide for lost value calculations

Neil de Gray, a director in the Toronto office of Duff & Phelps, makes a strong argument for the use of business valuation professionals in any calculation of damages in his new guide The Financial Damages Model for Loss of Value, published late last month by Lexology.

Rose’s 1, LLC v. Erie Ins. Exch.

D.C. court, ruling on parties’ motions for summary judgment, finds restaurant owners cannot show that mayor’s COVID-19-related closure orders constituted “direct physical loss” to the property, as required under the existing business interruption policy; court rules for insurer and closes case.

Court Says Restaurants Fail to Meet Requirements for COVID-19-Related Business Interruption Coverage

D.C. court, ruling on parties’ motions for summary judgment, finds restaurant owners cannot show that mayor’s COVID-19-related closure orders constituted “direct physical loss” to the property, as required under the existing business interruption policy; court rules for insurer and closes case.

Deviations From Historical Cash Flow and Their Implications to Effective Discount Rates for Lost Profits Analyses

The authors address the direct relationship between projected cash flows (that is, those being measured for risk) and discount rates in a lost profits analysis.

Michigan court decides COVID-19 business interruption claim; many more cases in the pipeline

COVID-19-related business interruption cases are winding their way through the court system, and one state court, in a matter of first impression, recently issued a decision.

Accounting fraud causes Berkshire Hathaway subsidiary to overpay for sinking German manufacturer

Financial experts were unable to prevent a Berkshire Hathaway subsidiary, Precision Castparts Corp. (PCC), from acquiring a German family business for five times as much as the collapsing company was worth, recent articles in the New York Times and the German newspaper Handelsblatt report.

Damage Valuation in a Financial Advisor Termination Case

In a wrongful termination of a financial advisor, the damage calculation involves a determination of the value of the advisor’s book of business at the time of termination as well as consequential and any special damages.

Geiger v. Creative Impact Inc.

Court admits survey evidence, finding expert’s methodology conformed to accepted principles in the field and noting that technical objections go toward weight; court also admits both parties’ damages experts, finding they had extensive experience in the field and were both qualified; questions as to reliability of method “can be explored at trial.”

Expert’s Damages Calculation Based on Extensive Experience in Field Is Reliable, Court Finds

Court admits survey evidence, finding expert’s methodology conformed to accepted principles in the field and noting that technical objections go toward weight; court also admits both parties’ damages experts, finding they had extensive experience in the field and were both qualified; questions as to reliability of method “can be explored at trial.”

NetOne, Inc. v. Panache Destination Management

Court says plaintiff fails to show defendant breached contract in COVID-19-related damages case; plaintiff’s invocation of force majeure clause is futile where clause is silent as to whether plaintiff has a right to full deposit after termination of contract due to imposed travel restrictions.

Plaintiff’s COVID-Related Contract Claim Falters Despite Force Majeure Provision

Court says plaintiff fails to show defendant breached contract in COVID-19-related damages case; plaintiff’s invocation of force majeure clause is futile where clause is silent as to whether plaintiff has a right to full deposit after termination of contract due to imposed travel restrictions.

Business interruption trends and cases triggered by COVID-19

The gleaming billboards of Times Square went dark on May 27 for one minute to alert the nation that pandemic-related business interruption insurance claims are being denied by insurers.

Does business interruption insurance decrease company-specific risk?

Business valuers often ‘tic the box’ on property and casualty insurance policies as part of their management interviews.

Supreme Court rules on willfulness requirement to obtain infringer’s profits

In a trademark infringement case that turned on whether the plaintiff had to show willful infringement by the defendant to obtain the infringer’s profits, a unanimous U.S. Supreme Court recently answered no.

No act of God excuse for Victoria’s Secret buyer—February agreement excepted pandemic

In the wake of COVID-19, a number of buyers have resorted to force majeure (aka act of God) clauses to withdraw from deals.

Business interruption cases and the role financial experts can play

Filing a business interruption claim has become one of the go-to moves for businesses as they try to mitigate the impact of COVID-19. A discussion of two cases that were adjudicated just before the COVID-19 crisis came into relief explains the trajectory many claims, including claims arising out of the COVID-19 crisis, may take and points to opportunities for damages experts.

J&M Industries, Inc. v. Raven Industries, Inc.

Court admits most of damages expert’s reasonable royalty opinion, finding expert properly apportioned out value of nonpatented features in calculating royalty rate; expert’s use of industry-specific data from ktMINE database was reasonable and sufficiently tied to facts of the case, court says.

Court Finds Use of Industry Licensing Data Reasonable and Relevant to Expert’s Reasonable Royalty Opinion

Court admits most of damages expert’s reasonable royalty opinion, finding expert properly apportioned out value of nonpatented features in calculating royalty rate; expert’s use of industry-specific data from ktMINE database was reasonable and sufficiently tied to facts of the case, court says.

Business interruption cases and the role financial experts can play

To mitigate the impact of COVID-19, business owners have increasingly turned to business interruption insurance.

Business interruption and other legal claims arising out of COVID-19 crisis

Just as the novel coronavirus causing COVID-19 brought businesses and economic activity to a sudden halt, an ABA panel discussed the grave effects on businesses and the legal doctrines available to business owners to mitigate the economic injury stemming from business interruption and unforeseeable circumstances.

Binghamton Precast & Supply Corp. v Liberty Mutual Fire Insurance Co.

In dispute over business interruption insurance coverage, appellate court says plaintiff showed actual loss of business income within meaning of controlling policy; court rejects defendant’s argument that plaintiff had to show lost sales, saying this is not a reasonable interpretation of policy.

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