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Court Endorses Before and After Method for Lost Profits

In Daubert case, court accepts before and after method for lost profits and diminution of value calculation but excludes parts of expert testimony because they merely restated company assumptions and conclusions without undergoing testing from the expert.

Admissibility Does Not Depend on Personal Knowledge of Facts

Appeals court says expert’s lack of personal knowledge of information undergirding lost profits calculation does not disqualify his opinion, as long as he can show experts in his field would rely on this information and it is otherwise reasonably reliable ...

Federal Circuit Weighs Use of EMVR in Pharmaceutical Case

Federal Circuit affirms award of 50% of gross margin, finding that, even though the entire market value rule is not per se inapplicable in the pharmaceutical context, it does not apply in this case because patents cover the entire infringing product.

Court Declares Lost Profits Analysis ‘Goes Too Far’

Court says nontraditional lost profits theory goes “too far” as it assumes sales occurred pursuant to a license the parties negotiated but never actually executed and assumes revenue derived not only from patents-in-suit, but also related unpatented softw ...

Apple, Inc. v. Samsung Electronics Co. (V)

Federal Circuit rejects Samsung’s call for apportioning damages related to design patent infringement, saying the proposed treatment would conflict with the express language of the applicable statute; court upholds most of $1 billion award to Apple.

Am. Aerial Servs. v. Terex United States

Court strikes parts of lost profits opinion, finding expert adopted plaintiff’s causation theory, “pinning the company’s overall financial performance” on defendants’ allegedly defective crane without offering supporting data or methodology to test theory ...

Expert’s Failure to Adhere to Objective Standard Spoils Analysis

Court excludes lost profits analysis under Daubert where expert calculates value of plaintiff’s book of business without documenting comparables, verifying plaintiff’s claims as to number of lost clients, and employing objective work-life expectancy data.

What Role for Revenue Ruling 59-60 Factors in Valuing Closely Held Business?

Expert’s use of Revenue Ruling 59-60 for valuation of closely held business and for damages calculation does not render opinion inadmissible under Daubert, court says, noting that scope of revenue ruling goes beyond valuation of estate and gift taxes.

Washington v. Kellwood Co. (I)

Court rejects bright-line reliability test for yardstick analysis, saying expert’s failure to find a “nearly identical” comparator did not render analysis unreliable and inadmissible under Daubert and finding companies were similar in material respects.

AstraZeneca AB v. Apotex Corp.

Federal Circuit affirms award of 50% of gross margin, finding that, even though the entire market value rule is not per se inapplicable in the pharmaceutical context, it does not apply in this case because patents cover the entire infringing product.

Advanced Drainage Sys. v. Quality Culvert, Inc.

In Daubert case, court accepts before and after method for lost profits and diminution of value calculation but excludes parts of expert testimony because they merely restated company assumptions and conclusions without undergoing testing from the expert.

Warsaw Orthopedic, Inc. v. NuVasive, Inc.

Federal Circuit strikes down lost profits where patentee does not practice patents and fails to qualify for convoyed sales because of missing functional relationship between nonpatented parts it sells to related company and latter’s patented products.

Immersion Corp. v. HTC Corp.

Court says nontraditional lost profits theory goes “too far” as it assumes sales occurred pursuant to a license the parties negotiated but never actually executed and assumes revenue derived not only from patents-in-suit, but also related unpatented softw ...

Am. Eagle Waste Indust., LLC v. St. Louis County

Appeals court says expert’s lack of personal knowledge of information undergirding lost profits calculation does not disqualify his opinion, as long as he can show experts in his field would rely on this information and it is otherwise reasonably reliable ...

What Rationale for Net Book Value in Damages Analysis?

Appeals court finds trial court did not err when it incorporated net book value calculation in its lost profits analysis in a case claiming breach of fiduciary duty and usurpation of business opportunity; dissent says damages calculation is “illogical.”

J&M Distrib., Inc. v. Hearth & Home Techs., Inc.

Expert’s use of Revenue Ruling 59-60 for valuation of closely held business and for damages calculation does not render opinion inadmissible under Daubert, court says, noting that scope of revenue ruling goes beyond valuation of estate and gift taxes.

Russell v. Allianze Life Ins. Co. of N.A.

Court excludes lost profits analysis under Daubert where expert calculates value of plaintiff’s book of business without documenting comparables, verifying plaintiff’s claims as to number of lost clients, and employing objective work-life expectancy data.

Court Emphasizes Benefit of Hindsight in Evaluating Loss Period

Court finds business valuator is qualified under Daubert to proffer lost profits calculation relying on statistics methods and says expert’s loss period is not a mere “guess” because hindsight reduces years of uncertainty as to relevant market conditions.

Aqua Shield v. Inter Pool Cover Team

Federal Circuit finds district court erred when it considered infringer’s actual profits a royalty cap instead of doing a hypothetical inquiry into what parties would have anticipated and ordered court to consider evidence of gross profits on remand.

Winn-Dixie Stores, Inc. v. Dolgencorp, LLC

Appeals court affirms Daubert exclusion of plaintiff's damages expert because she analyzed the wrong problem and her conclusion did not assist the trier of fact; also, her economic model and regression analysis failed to measure “effect of the violation.”

Charron v. Sallyport Global Holdings, Inc.

In a buyout case, the court finds that, in reselling company, defendants undervalued rollover equity interest by double counting risks specific to the company in order to avoid triggering windfall provision in prior sales agreement favorable to plaintiff.

Ericsson, Inc. v. D-Link Corp. (II)

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.

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