U.S. District Court Denies Motions to Exclude Experts but Grants Motions to Exclude Lay Witnesses ‘Expert’ Testimony
The U.S. District Court (Michigan) denied motions to exclude the plaintiff’s and the defendant’s expert witnesses and granted motions from both parties to exclude “expert” testimony from lay witnesses. The case involved alleged breach of contract on the part of the defendants regarding raiding of the plaintiff’s employees, and damages related thereto.
A valuation trial—on papers only?
Yes, but only in New York?
Damages expert dodges exclusion bullet
In a patent infringement case in Tennessee, the defendants filed a motion to exclude the testimony of the damages expert for the plaintiffs.
Appellate court KOs damages method for soybean farm
A CPA who specializes in damages used three ways to calculate damages to a Louisiana soybean farm caused by someone who was supposed to be checking for insects.
Bougie v. Garth-Niggeman
The case originated at trial court on issues of the buyout of a deceased member’s interest in an LLC restaurant. Among the issues was the use of the LLC’s recipes by the acquirer of the deceased’s interest in violation of the operating agreement. The two remaining LLC members claimed the use of the LLC’s recipes in other restaurants irreparably harmed them. However, the remaining members did not seek, nor did they prove, any damages resulting from the use of the recipes. The appellate court affirmed the trial court’s denial of a permanent injunction against the use of the recipes.
Trial Court’s Denial of Permanent Injunctive Relief for Irreparable Harm Is Upheld
The case originated at trial court on issues of the buyout of a deceased member’s interest in an LLC restaurant. Among the issues was the use of the LLC’s recipes by the acquirer of the deceased’s interest in violation of the operating agreement. The two remaining LLC members claimed the use of the LLC’s recipes in other restaurants irreparably harmed them. However, the remaining members did not seek, nor did they prove, any damages resulting from the use of the recipes. The appellate court affirmed the trial court’s denial of a permanent injunction against the use of the recipes.
Quattro Parent LLC v. Rakib
In this surmised summary judgment as to damages a New York trial court awarded damages to the plaintiff in a breach of contract suit. The determination of damages was made without a trial but “on paper.” Additionally, the court used a subsequent sale of the stock to determine the damages and opine that the company was “worthless.”
New York Trial Court Determines Damages Without a Trial and Uses Subsequent Transaction to Determine the Amount
In this surmised summary judgment as to damages a New York trial court awarded damages to the plaintiff in a breach of contract suit. The determination of damages was made without a trial but “on paper.” Additionally, the court used a subsequent sale of the stock to determine the damages and opine that the company was “worthless.”
Global BV News: CBV Institute releases its 2021 journal
The Chartered Business Valuators Institute (CBV Institute), Canada’s valuation professional organization (VPO) and standard-setter, puts out an excellent journal each year, and the 2021 edition is now available.
Business Valuation Case Law Yearbook, 2022 Edition
January 2022 PDF, Softcover (177 pages)
BVR (editor)
Business Valuation Resources, LLC
The legal coverage and in-depth analysis from the BVR legal team deliver lessons learned to help appraisers reach better and more defensible valuation conclusions. All the cases featured in this book impart important lessons about applicable legal principles, approved and discredited valuation methodology, and the act (and art) of presenting expert opinions. This must-have collection benefits both the generalist as well as the specialist.
Learn more >>
Business Valuation Update Yearbook, 2022 Edition
January 2022 PDF (454 pages)
BVR (editor)
Business Valuation Resources, LLC
BV News and Trends December 2021
A monthly roundup of key developments of interest to business valuation experts.
Use of DCF for damages survives challenge
In an antitrust lawsuit in Nevada, the expert for a company that alleges it was forced to close due to anticompetitive practices used the discounted cash flow (DCF) method to calculate damages.
In a Primarily Procedural Ruling, the Michigan Court of Appeals Affirms a Damages Award Including Goodwill
In this primarily procedural ruling, the Michigan Court of Appeals affirmed judgment from a lower court awarding damages, including goodwill, for breach of contract arising from a sale of a medical practice, including goodwill. The plaintiffs claimed that the defendants’ failure to comply with the transfer assistant clauses in the sale contract destroyed the practice goodwill, among other things.
Sherman v. Sherrod
In this primarily procedural ruling, the Michigan Court of Appeals affirmed judgment from a lower court awarding damages, including goodwill, for breach of contract arising from a sale of a medical practice, including goodwill. The plaintiffs claimed that the defendants’ failure to comply with the transfer assistant clauses in the sale contract destroyed the practice goodwill, among other things.
Xodus Med. v. Prime Med. (II)
This was a patent infringement case related to technology “related to patient slippage within the context of the Trendelenburg position for surgery—when using a viscoelastic foam.” Ivan T. Hoffmann was the plaintiffs’ damages expert. The defendants sought to exclude Hoffmann’s testimony on lost profits and his opinion of the reasonable royalty. Lost profits should be excluded because “he fails to tie consumer demand for products to the patented features of those products,” and he “does not establish … that, but for the alleged infringement, Plaintiffs would have made each and every sale made by Defendants.” Hoffman’s reasonable royalty analysis should be excluded because Hofmann’s royalty rate calculation of $20.00 represents a 141.8% increase to his $8.27 per unit “starting point,” and he provided no explanation for this substantial increase. The plaintiffs argued that the defendants’ quibbles with Hoffman’s opinion was the stuff of cross-examination but not exclusion. The defendants’ motion was denied.
Court Denies Defendants’ Motion to Exclude Expert Testimony—The Subject of the Testimony Is the Subject of Cross-Examination but Not Exclusion
This was a patent infringement case related to technology “related to patient slippage within the context of the Trendelenburg position for surgery—when using a viscoelastic foam.” Ivan T. Hoffmann was the plaintiffs’ damages expert. The defendants sought to exclude Hoffmann’s testimony on lost profits and his opinion of the reasonable royalty. Lost profits should be excluded because “he fails to tie consumer demand for products to the patented features of those products,” and he “does not establish … that, but for the alleged infringement, Plaintiffs would have made each and every sale made by Defendants.” Hoffman’s reasonable royalty analysis should be excluded because Hofmann’s royalty rate calculation of $20.00 represents a 141.8% increase to his $8.27 per unit “starting point,” and he provided no explanation for this substantial increase. The plaintiffs argued that the defendants’ quibbles with Hoffman’s opinion was the stuff of cross-examination but not exclusion. The defendants’ motion was denied.
Incompetent valuation KOs jury verdict
The jury’s verdict in an eminent domain trial could not stand because the jury relied solely on the valuation the expert for the Pennsylvania Department of Transportation (PennDOT) did, “which was incompetent.”
Walsh v. Vinoskey
This case covered the appellate decisions regarding the well-publicized Vinoskey ESOP case. The appellate court affirmed the district court in deciding that the company owner had extensive knowledge about the company and its prior valuations, and thus it was plausible to infer that “something was off.” There was no clear error in the district court finding that the owner violated ERISA. The appellate court also allowed an offset to damages for the debt the owner forgave.
Court Affirms Violation of ERISA but Allows Offset of Debt Forgiveness in Determining Damages
This case covered the appellate decisions regarding the well-publicized Vinoskey ESOP case. The appellate court affirmed the district court in deciding that the company owner had extensive knowledge about the company and its prior valuations, and thus it was plausible to infer that “something was off.” There was no clear error in the district court finding that the owner violated ERISA. The appellate court also allowed an offset to damages for the debt the owner forgave.
Court Affirms Exclusion of Testimony From Witness as Being Based on Inadmissible Hearsay Evidence
The plaintiffs contended that the trial court erred in granting two defendants motions in limine to exclude evidence of the plaintiffs’ damages. The appellate court affirmed the decisions of the trial court.
HMH Enters. v. TAG Enters.
The plaintiffs contended that the trial court erred in granting two defendants motions in limine to exclude evidence of the plaintiffs’ damages. The appellate court affirmed the decisions of the trial court.
Appeals Court Decides Trial Court Abused Its Discretion in Choosing the Method of Determining Damages
In this case alleging damages to a soybean crop, a Louisiana court of appeals determined that the trial court abused its discretion when it chose an expert's methodology for calculating damages, as another methodology was supported by the record and was not overly speculative; a reduced damage award was appropriate. The trial court affirmed two other issues regarding evidence of cause of damages and the issue of standing as to who owned the land and thus the crops.
Dettenhaim Farms, Inc. v. Greenpoint Ag, LLC
In this case alleging damages to a soybean crop, a Louisiana court of appeals determined that the trial court abused its discretion when it chose an expert's methodology for calculating damages, as another methodology was supported by the record and was not overly speculative; a reduced damage award was appropriate. The trial court affirmed two other issues regarding evidence of cause of damages and the issue of standing as to who owned the land and thus the crops.
Patent Royalty Damages – What’s the Approach?
Royalty damages are one of the two primary types of patent infringement damages; which represent the majority of patent damages awarded and are a part of most patent damages cases. Experts John L Abramic and Richard F. Bero present a structured approach to addressing key royalty damages components. Drawing on the extensive patent damages and litigation experience of our presenters, the presentation covers royalty damages fundamentals, navigates patent damages case law, and provides insightful concepts ...