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Calculating Damages for Early-Stage Companies

Measuring lost profits damages for new or early-stage businesses can be a daunting task. Traditional damage analyses that rely on historical results are often meaningless since, by definition, startup companies usually lack a track record of operating results. Without an operating history for measuring lost profits, the damages expert walks a thin line between speculation and reasoned analysis. Under most circumstances, to be admissible evidence, damage analyses require a relevant and reliable factual basis. These ...

New Damages Guide Examines Crypto Landscape

An understanding of the current issues and developments within the cryptocurrency industry, plus a look at some emerging case law, are crucial for damages experts in this area. This is an excerpt from the upcoming 7th edition of The Comprehensive Guide to Economic Damages.

Damages experts point to areas of practice growth

Damages related to cannabis firms, cryptocurrency, and intellectual property are on the rise, according to the editors of the recently released 7th edition of BVR’s Comprehensive Guide to Economic Damages.

Gutierrez v. Padilla

The plaintiffs bought two automotive supply businesses from the defendant. The plaintiffs alleged that the defendant and the defendant’s broker made representations about the condition of the businesses during the sale and breached various terms of the sale contract. The district court dismissed complaints against the defendant’s broker and awarded damages to both parties regarding alleged actions in regard to the sale contract. The appeals court affirmed the district court’s decisions.

New Mexico Appeals Court Affirms Awards of Damages to Both Parties on Claims of Breach of Contract

The plaintiffs bought two automotive supply businesses from the defendant. The plaintiffs alleged that the defendant and the defendant’s broker made representations about the condition of the businesses during the sale and breached various terms of the sale contract. The district court dismissed complaints against the defendant’s broker and awarded damages to both parties regarding alleged actions in regard to the sale contract. The appeals court affirmed the district court’s decisions.

New edition of BVR’s guide to economic damages is available

The Comprehensive Guide to Economic Damages, already the profession’s leading guide of its type, is now even more wide-ranging in its new 7th edition, which has just been released.

Expert Survives Daubert—Allowed to Testify as to Lost Business Value

The case dealt with two motions to preclude testimony of an expert witness as to the loss in value of the plaintiff’s business. The plaintiff was an environmental consulting firm allegedly injured as a result of the actions of certain employees including breach of their fiduciary duty. The court concluded that the witness may testify because his report was based on sufficient facts and data and he applied reliable principles to the facts of this case.

White Buffalo Env’t, Inc. v. Hungry Horse, LLC

The case dealt with two motions to preclude testimony of an expert witness as to the loss in value of the plaintiff’s business. The plaintiff was an environmental consulting firm allegedly injured as a result of the actions of certain employees including breach of their fiduciary duty. The court concluded that the witness may testify because his report was based on sufficient facts and data and he applied reliable principles to the facts of this case.

The Comprehensive Guide to Economic Damages, Seventh Edition

April 2023 Hardcover, PDF (501 pages)

Business Valuation Resources, LLC

The Comprehensive Guide to Economic Damages, 7th Edition combines the economic expert’s knowledge of damages calculations and methods with legal and case analysis. It provides a deep and rich resource for financial experts and attorneys seeking guidance on appropriate remedies and related damages calculations. Learn more >>

Damages experts caught up in Irish bar fight

In a New York case, majority owners of an Irish soccer bar used the proceeds of a lease buyout to relocate the bar—and cut out the minority owners at the same time.

In a damages case, one expert survives Daubert, another does not

In an ongoing damages case in Delaware, the plaintiff had a Daubert motion to exclude the opinions of the defendant’s rebuttal expert.

New case on damages in the metaverse

An artist is liable for trademark infringement after creating and selling a series of non-fungible tokens (NFTs) that depict fur-covered purses resembling the iconic Hermès Birkin bag.

O’Mahony v. Whiston

In a case of disputes among the owners of an Irish soccer bar in New York City, the court awarded economic damages and punitive damages after the controlling owners took proceeds of a lease buyout of the bar’s prior location to establish a new identical bar in a new location while cutting out the minority owners from the new bar. Using assets of the old corporation and thereby misappropriating a corporate opportunity of the old corporation, they started a new identical bar (including the name) in a new location in a corporation the control owners set up.

New York Court Awards Lost Corporate Opportunity and Punitive Damages in Restaurant-Related Case

In a case of disputes among the owners of an Irish soccer bar in New York City, the court awarded economic damages and punitive damages after the controlling owners took proceeds of a lease buyout of the bar’s prior location to establish a new identical bar in a new location while cutting out the minority owners from the new bar. Using assets of the old corporation and thereby misappropriating a corporate opportunity of the old corporation, they started a new identical bar (including the name) in a new location in a corporation the control owners set up.

Johnston v. Vincent

The plaintiffs and defendants in this case, upon appeal to the Supreme Court of Louisiana, appealed certain rulings of the Louisiana Court of Appeals. The defendants asserted that the Court of Appeals failed to apply the manifest error standard correctly in reversing the district court’s findings of what constituted trade secrets and their misappropriation. The Supreme Court reversed the Court of Appeals on this issue. The Supreme Court also reversed the Court of Appeals as to the increase in the amount of lost profits damages. The Supreme Court also affirmed the Court of Appeals in its determination that actual damages must be trebled and that unjust enrichment damages must be awarded in some amount but were not to be trebled.

Louisiana Supreme Court Reverses Appellate Court as to Misapplication of the Correct Manifest Error Standard, Other Damages-Related Issues

The plaintiffs and defendants in this case, upon appeal to the Supreme Court of Louisiana, appealed certain rulings of the Louisiana Court of Appeals. The defendants asserted that the Court of Appeals failed to apply the manifest error standard correctly in reversing the district court’s findings of what constituted trade secrets and their misappropriation. The Supreme Court reversed the Court of Appeals on this issue. The Supreme Court also reversed the Court of Appeals as to the increase in the amount of lost profits damages. The Supreme Court also affirmed the Court of Appeals in its determination that actual damages must be trebled and that unjust enrichment damages must be awarded in some amount but were not to be trebled.

Ali Sedaghatpour v. Lemonade Ins. Co. (I)

Similar to what happened with many of the pandemic cases, the court here determined that cryptocurrencies did not have a physical presence or at least not one that was part of the cause of the theft that the plaintiff suffered. Definitions of cryptocurrencies supported the decision of the court. The Court of Appeals affirmed this case. In valuing cryptocurrencies, the lack of insurance coverage could be an additional risk to be considered. Subsequent to the date of this claim, most insurance companies had specifically excluded loss of cryptocurrency from coverage.

Cryptocurrency Determined Not to Be a Physical Loss and Not Covered by Insurance

Similar to what happened with many of the pandemic cases, the court here determined that cryptocurrencies did not have a physical presence or at least not one that was part of the cause of the theft that the plaintiff suffered. Definitions of cryptocurrencies supported the decision of the court. The Court of Appeals affirmed this case. In valuing cryptocurrencies, the lack of insurance coverage could be an additional risk to be considered. Subsequent to the date of this claim, most insurance companies had specifically excluded loss of cryptocurrency from coverage.

Ipse dixit nixes some of expert’s opinion

In an economic damages case in Delaware, both sides filed a number of motions to exclude expert testimony, evidence, and arguments.

Valuing Winery Losses—Understanding the Process and Addressing Common Issues

Winery losses present unique challenges, and it can be easy to encounter issues when evaluating them. The goal of this session is to provide attendees with enough background on the winery industry and winery losses in order to know the right questions to ask when dealing with them. This program will cover an overview of the typical kinds of winery losses, a high-level walk-through of the winemaking process, the crucial variables when it comes to ...

Business Valuation Update Yearbook, 2023 Edition

January 2023 PDF, Softcover (426 pages)

BVR (editor)

Business Valuation Resources, LLC

It's that time of year again, BVR's “greatest hits” publication is here!  The Business Valuation Update Yearbook 2023 covers the previous year’s most groundbreaking and thought-provoking advancements in valuation.  It captures changes in regulations and professional standards, key takeaways from professional conferences, and tactical practice-building ideas. This critical desktop reference puts you ahead of the competition with on-the-ground reporting by the BVR editorial team including an Introduction by Andy Dzamba, BVR Executive Editor and insights from notable BV experts. Learn more >>

VeroBlue Farms USA Inc. v. Wulf

In this complex case, which the district court judge called “a doozy,” the subject of this subissue was a motion by the defendants to exclude the testimony of the plaintiff’s (VeroBlue Farms USA Inc.) damages expert, Brandi Kleinman, CPA/CFF. The district court judge assigned the case to the court’s magistrate judge for recommendation of decision. The motion alleged a multitude of issues and flaws with the opinions of Kleinman. The magistrate, despite these alleged issues and flaws, denied the motion, thereby allowing Kleinman to testify.

U.S. District Court (Texas) Allows Testimony of Damages Expert Despite Alleged ‘Flawed Opinions’

In this complex case, which the district court judge called “a doozy,” the subject of this subissue was a motion by the defendants to exclude the testimony of the plaintiff’s (VeroBlue Farms USA Inc.) damages expert, Brandi Kleinman, CPA/CFF. The district court judge assigned the case to the court’s magistrate judge for recommendation of decision. The motion alleged a multitude of issues and flaws with the opinions of Kleinman. The magistrate, despite these alleged issues and flaws, denied the motion, thereby allowing Kleinman to testify.

Endless River Techs. LLC v. Trans Union LLC

The plaintiff sued for damages in relation to termination of a contract requiring the plaintiff to develop software for use by the defendant in comparing real-time online insurance quotes insurers give to their customers. The defendant terminated the contract and admittedly breached the contract. A jury awarded the plaintiff $18.3 million in damages relating to the breach. However, the contract between the plaintiff and the defendant had a liability limiting clause, which prohibited recovery of “consequential damages.” After reviewing motions by the parties, the judge sided with the defendant in determining that the damages awarded were “consequential damages” and not “direct damages” and were not allowed under the contract between the parties.

U.S. District Court Overturns Jury Award for Consequential Damages

The plaintiff sued for damages in relation to termination of a contract requiring the plaintiff to develop software for use by the defendant in comparing real-time online insurance quotes insurers give to their customers. The defendant terminated the contract and admittedly breached the contract. A jury awarded the plaintiff $18.3 million in damages relating to the breach. However, the contract between the plaintiff and the defendant had a liability limiting clause, which prohibited recovery of “consequential damages.” After reviewing motions by the parties, the judge sided with the defendant in determining that the damages awarded were “consequential damages” and not “direct damages” and were not allowed under the contract between the parties.

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