Zaffarkhan v. Domesek
Appeals court upholds zero damages finding in dispute involving short-lived software startup, where plaintiff’s expert had no experience valuing software companies, misapprehended basic facts, and developed multimillion-dollar valuations for a company with no product, no revenue, and no investors.
ESOP case alive (for now), but court limits damages testimony under Daubert
In a developing ESOP case, the government recently suffered a setback when the court agreed with the trustee that portions of the damages testimony the government’s expert proposed failed to hold up under the Daubert reliability prong.
Willamette’s spring Insights issue is available
The Spring 2018 issue of Insights from Willamette Management Associates is titled “Thought Leadership in Breach of Fiduciary Duty Tort Claims—Valuation and Damages Analyses.”
Crocker v. Greater Colo. Anesthesia
Appeals court agrees with trial court that deal price does not reflect target’s fair value because price resulting from merger of medical entities compensated shareholders for agreeing to substantial future pay reduction and for making other concessions.
Deal Price Represents Unreliable Starting Point for Fair Value Calculation
Appeals court agrees with trial court that deal price does not reflect target’s fair value because price resulting from merger of medical entities compensated shareholders for agreeing to substantial future pay reduction and for making other concessions.
Takeaways From the AICPA FVS Conference
We attended many of the sessions at the AICPA’s 2017 Forensic and Valuation Services conference in Las Vegas along with over 1,000 attendees and found no shortage of tips, ideas, and advice.
Lost profits case awaiting Supreme Court decision
The United States Supreme Court has agreed to review a patent infringement case on the scope of damages. The issue is whether a patent holder may obtain lost profits for actions that occurred outside the United States, where the patentee has proven a domestic act of infringement.
Don’t assume causation, AICPA panel warns damages experts
Causation presents one of the most vexing problems for damages experts. But ignoring causation and simply working off the assumption that it exists may end up being the biggest problem for an expert.
In unusual business tort case, court exhibits flexibility in terms of calculating damages
The 8th Circuit recently upheld a sizable damages award in an unusual business tort case litigated under Nebraska law. One noteworthy aspect in terms of determining economic damages was that the court allowed expert testimony regarding the loss of value to the plaintiff even though the plaintiff did not fail completely upon the wrongdoing.
Federal Circuit drills down into Panduit, apportionment, and lost profits
The Federal Circuit recently examined a paramount damages issue that comes up in patent cases: whether, in terms of calculating lost profits, the patent holder’s ability to meet the Panduit factors makes a separate apportionment analysis unnecessary.
Court adheres to earlier ESOP liability and damages rulings
In a controversial ESOP case that turned on the trustee’s oversight of the pretransaction valuation work, the defendant trustee recently filed a motion for reconsideration. It argued the court had committed errors related to its liability and damages findings. Although the court owned up to some mistakes, including a misunderstanding of the concept of beta, it ultimately stuck to its earlier decision.
Pike v. Tex. EMC Mgmt., LLC
In business tort case involving unprofitable entity trying to market a trade secret, court upholds damages award; experts’ EBITDA valuations were based on commonly used method and numerous data sources, and experts linked data to conclusions, court says.
Defective Lost Profits Analysis Triggers Take-Nothing Ruling
High court discusses level of evidence required to establish future lost profits with “reasonable certainty”; plaintiff did not show it lost any contracts owing to defendants’ wrongdoing and failed to show profitability specific to claimed lost contracts.
Horizon Health Corp. v. Acadia Healthcare Co.
High court discusses level of evidence required to establish future lost profits with “reasonable certainty”; plaintiff did not show it lost any contracts owing to defendants’ wrongdoing and failed to show profitability specific to claimed lost contracts.
Damages Calculation Admissible Under Facts Available to PI Expert
Court says P.I. expert properly based economic loss determination on plaintiff’s actual work situation at time of expert report instead of speculating about future earnings; testimony is helpful to jury because it explains issues not usually encountered.
Federal Circuit reacts coolly to ‘pseudo’ lost profits argument; royalty analysis may consider profits
The Federal Circuit recently found a reasonable royalty calculation that took into account the plaintiff’s profit margin was not a lost profits analysis in disguise. The plaintiff’s expert did not try to circumvent the “but for” causation requirement that applied to a lost profits claim.
Berman v. Unimin Corp.
Court says P.I. expert properly based economic loss determination on plaintiff’s actual work situation at time of expert report instead of speculating about future earnings; testimony is helpful to jury because it explains issues not usually encountered.
Damages Calculation Admissible Under Facts Available to PI Expert
Court says P.I. expert properly based economic loss determination on plaintiff’s actual work situation at time of expert report instead of speculating about future earnings; testimony is helpful to jury because it explains issues not usually encountered.
Comcast Cable Communs. v. Sprint Communs. Co.
Court says forward citation method to determine value of patent in suit is not per se unreliable and royalty testimony based on it is admissible under Daubert; also, there is no bright-line rule against use of code- or step-counting for apportionment.
Court Affirms Validity of Patent Citation Analysis in Royalty Calculation
Court says forward citation method to determine value of patent in suit is not per se unreliable and royalty testimony based on it is admissible under Daubert; also, there is no bright-line rule against use of code- or step-counting for apportionment.
Flawed yardstick analysis sinks lost profits award
A drawn-out damages case in which a startup compression sportswear company sued the defendant "private label" manufacturer over an abandoned licensing deal promised to make the plaintiff rich but ultimately ended with nominal damages.
8th Circuit Validates Employment Contract and Damages Related to Breach
Appeals court affirms plaintiff’s employment contract with employee is enforceable, and competitor interfering with it is liable for profits plaintiff employer lost; court notes plaintiff established causation and proved loss with reasonable certainty.
Low-cost way to help clients enhance a damages claim
Compensation forfeiture is an option that damages plaintiffs can seek that is not difficult or expensive to prove--plus it can be “stacked” onto other remedies.
St. Jude Med. S.C., Inc. v. Biosense Webster, Inc.
Appeals court affirms plaintiff’s employment contract with employee is enforceable, and competitor interfering with it is liable for profits plaintiff employer lost; court notes plaintiff established causation and proved loss with reasonable certainty.
No Legal Barrier to Expert’s Adjusted Lost Profits Analysis
Federal Circuit upholds lost profits award based on adjusted market share analysis, finding expert accounted for huge price disparity between patentee’s product and infringer’s product and based market elasticity discount on sound economic principles.