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.
Court Deems Future Lost Profits Formula an Exercise in Speculation
Court rejects lost profits projections based on expert’s unique formula finding calculation was based on “questionable” assumptions; court also finds no “hard” evidence that damage from defendant’s conduct had long-term effect on plaintiff’s customers.
Case Collapses When Experts Apply Wrong Measure of Damages
District court adopts Bankruptcy Court’s finding that expert testimony was inadmissible because the plaintiff’s experts used the wrong method to calculate damages; lost profits were not available where the plaintiff’s business was completely destroyed.
Court Sets Aside Big Lost Profits Award Based on Bad Yardstick Analysis
Court reconsiders earlier order for retrial on lost value damages, finding plaintiffs “had no intention of pursuing a realistic damages award” and lack admissible evidence supporting multimillion-dollar value claims; instead, court awards one dollar.
Sherwood Invs. Overseas Ltd. v. Royal Bank of Scot. N.V. (In re Sherwood Invs. Overseas Ltd., Inc.)
District court adopts Bankruptcy Court’s finding that expert testimony was inadmissible because the plaintiff’s experts used the wrong method to calculate damages; lost profits were not available where the plaintiff’s business was completely destroyed.
Washington v. Kellwood Co. (III)
Court reconsiders earlier order for retrial on lost value damages, finding plaintiffs “had no intention of pursuing a realistic damages award” and lack admissible evidence supporting multimillion-dollar value claims; instead, court awards one dollar.
Court Clarifies Rule 26 Protection for ‘Reporting’ and ‘Non-reporting’ Experts
Court says background information in expert’s report is what Rule 26 has in mind in requiring statement of “the facts or data considered by the witness” in forming his opinion; court clarifies discovery rules to communication with nonreporting expert.
Breach of Noncompete Means Damages for ‘Loss Sustained’ and Lost Profits
In breach of noncompete case, appeals court finds measure of damages is not limited to net loss; statute allows damages “for the loss sustained” in addition to lost profits, and trial court properly credited and adjusted expert’s typical damages models.
Flawed Lost Profits Analysis Leaves Plaintiff Bereft of Damages Evidence
Court excludes damages opinion where expert relied on historical data from one construction project to calculate lost profits for subject project without establishing comparability as to type of contract and scope of work and by using “ad hoc” method.
Court Distinguishes Between Proving Fact of Damage and Amount
Court upholds lost profits award, noting at trial plaintiff established “the fact of damages” with the requisite certainty; defendant deprived plaintiff of learning about job applicants, some of whom plaintiff would have hired to perform additional work.
Marten Transp., Ltd. v. Plattform Adver., Inc.
Court upholds lost profits award, noting at trial plaintiff established “the fact of damages” with the requisite certainty; defendant deprived plaintiff of learning about job applicants, some of whom plaintiff would have hired to perform additional work.
3M Innovative Props. Co. v. GDC, Inc.
Court finds expert’s use of two-supplier and market share methods as well as Panduit test generate admissible lost profits calculation; court also admits expert’s reasonable royalty analysis, saying it does not include unlawful post-expiration sales.
No Automatic Bar to Royalties Accruing After Life of Patent
Court finds expert’s use of two-supplier and market share methods as well as Panduit test generate admissible lost profits calculation; court also admits expert’s reasonable royalty analysis, saying it does not include unlawful post-expiration sales.
How else to look at the 'Gawker' case: It's about unjust enrichment
It's not your average lost profits or lost business opportunity case. Rather, Hogan's damages experts were successful in quantifying damages under the less-common unjust enrichment theory. Rather than focusing on the damages to Hogan, the plaintiff, stemming from Gawker's misconduct, the experts calculated the gain to Gawker, the defendant, from the misuse of Hogan's assets, that is, his brand and other intellectual property.
Court Sets Aside Big Lost Profits Award Based on Bad Yardstick Analysis
Court strikes down multimillion-dollar lost profits award, finding it was based on expert testimony that was “sheer surmise and conjecture”; using yardstick method, expert claimed upstart company would have achieved 50% of sales of market leader.
Washington v. Kellwood Co. (II)
Court strikes down multimillion-dollar lost profits award, finding it was based on expert testimony that was “sheer surmise and conjecture”; using yardstick method, expert claimed upstart company would have achieved 50% of sales of market leader.
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.
Defendant’s Obfuscatory Tactics to Preclude Expert Testimony Fail
Court rejects defendant’s relevance attack on plaintiff expert’s opinion, noting under Daubert testimony need not “fit” a particular cause of action but is relevant where it assesses damages based on harm to plaintiff caused by defendant’s misconduct.
Court Clarifies Rule 26 Protection for ‘Reporting’ and ‘Non-Reporting’ Experts
Court says background information in expert’s report is what Rule 26 has in mind in requiring statement of “the facts or data considered by the witness” in forming his opinion; court clarifies discovery rules to communication with nonreporting expert.
Luminara Worldwide, LLC v. Liown Elecs. Co.
Court says background information in expert’s report is what Rule 26 has in mind in requiring statement of “the facts or data considered by the witness” in forming his opinion; court clarifies discovery rules to communication with nonreporting expert.
RMS of Wisconsin, Inc. v. S-K JV
Court excludes damages opinion where expert relied on historical data from one construction project to calculate lost profits for subject project without establishing ...
Loss of Value Damages Does Not Require Showing of Complete Destruction
In tortious interference with business relations case, trial court rejects post-trial attack, finding sufficient evidence to support jury award to plaintiff, including expert testimony about total loss of value to company based on defendants’ misconduct.
West Plains, LLC v. Retzlaff Grain Co. (I)
In tortious interference with business relations case, trial court rejects post-trial attack, finding sufficient evidence to support jury award to plaintiff, including expert testimony about total loss of value to company based on defendants’ misconduct.
Pivotal Ruling on Damage Calculation for SEP Infringement
In dispute over infringement of standard-essential patent (SEP), Federal Circuit holds royalty must be apportioned to the value of the patented feature and must exclude any added value to the patented feature from standard’s widespread adoption.
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.