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Other Commercial Damages

||Other Commercial Damages

Court Requires Expert Witness to Have a Body and a Brain

May 2015 A recent case addressed the interesting question of whether a corporation could serve as an expert witness.  The matter involved a breach of fiduciary duty case coordinated with an appraisal proceeding, in re Dole Food Company (“Dole”).  The defendants designated Stifel, Nicolaus & Company, Incorporated (“Stifel”), a corporation, to serve as their expert [...]

Daubert Provides For Liberal Admission Of Expert Testimony

July 2014 The 8th Circuit Court of Appeals has reversed a district court decision to grant summary judgment based on excluding three plaintiff experts regarding causation. While the district court ruled the experts did not reliably exclude alternative causes of injury and therefore their testimony was inadmissible under Daubert, the Court of Appeals concluded that [...]

Ninth Circuit Overturns Daubert Exclusion, Again Noting Trial Court Is A Gatekeeper, Not A Fact Finder

June 2014 In a recent case involving the City of Pomona (“Pomona”) v. SQM North America Corporation (“SQM”), Pomona alleged that SQM’s importation of sodium nitrate for fertilizer caused a perchlorate contamination in the city. Although the district court excluded under Daubert the expert testimony of Pomona’s expert witness on causation, the Ninth Circuit reversed [...]

New Federal Option To Fight Trade Secret Theft

May 2014 A bipartisan bill by U.S. Senators Chris Coons and Orrin Hatch called the Defend Trade Secrets Act was recently introduced to build on the Economic Espionage Act of 1996 and create a federal private right-of-action for theft of corporate trade secrets, providing the same federal protections available for patents, trademarks, and copyrights. The bill’s [...]

Disgorgement Remedy Potentially Broadened By Second Circuit

April 2014 In a sharply-divided 2-1 vote, the Second Circuit Court of Appeals found that a civil disgorgement amount can exceed the profit that the defendant personally received. Although the case facts and Opinion directly involved insider trading in an action brought by the Securities and Exchange Commission, the rationale could presumably be applied in [...]

Average Time To Regain Investor Confidence May Be Longer Than Previously Believed

February 2014 When a financial restatement is necessary, it is not surprising that investors will take some time to regain trust and give full credit to future earnings announcements.  Exactly how long is a function of various factors, including the nature of the restatement and the corrective actions taken.  A recent study, developed through a [...]

Get The Court’s Daubert Rationale On The Record

November 2013 A recent ruling encourages any litigator sponsoring expert testimony to ensure that the Court memorializes its critique of the Court’s gatekeeping function of expert testimony. The ruling also reversed two inherently speculative damage claims that are not that uncommon. In Smith v. Jenkins, F.3d (1st Cir. Oct. 15, 2013) (Nos. 11–2349, 11–2378, 11–2389), the Appellate [...]

AAA Updates Discovery Rules

September 2013 The American Arbitration Association ("AAA") has made substantive revisions to the AAA's Commercial Arbitration Rules which are effective for any AAA-administered arbitration filed on or after October 1, 2013.  One important area of update is the discovery process. These new rules should make it easier for arbitrators to more closely control discovery and its [...]

Is Daubert Overapplied?

August 2013 Recently, another Daubert exclusion of expert evidence was overturned on appeal.  On July 19, in re: Gregory Call vs. Pure Earth, et al, the Third Circuit reversed a district court’s ruling that excluded expert witness testimony based on Daubert grounds.  The matter was remanded for a new trial on damages.  Although the Third [...]

Supreme Court Brings California Closer To The Federal Expert Witness Admissibility Standard

December 2012 In a unanimous opinion, the California Supreme Court clarified that trial courts may use either California Evidence Code Sections 801(b) or 802 to admit or exclude the expert’s testimony.  Potentially, the Opinion widens California judicial authority to exclude expert testimony by placing California closer to the federal Daubert standard and the majority of [...]

Rules Of Thumb And Other Short-Cuts Are Dangerous For Damage Calculations

November 2012 Plaintiffs often desire short cuts to damage measurements.  Given the cost of using experts employing proper methods and data, the temptation is obvious.  For example, business valuation programs are commonly available that will spit out a result once the user inputs a few financial statistics for the subject company.  Why pay thousands of [...]

Federal Circuit Reverses Damage Verdict Not Supported By Proper Expert Testimony

September 2009   Many lawyers admit that they are not “a numbers person”. If you are one of these folks, you need to hire an experienced and thoughtful damages expert. Although this article discusses patent damages, the broader lesson involves the need to present a complete damages analysis at trial using an expert witness who [...]

Daubert & Kumho Expert Challenges Increase, Moving Away From Their Original Purposes

June 2011 PricewaterhouseCoopers (PwC) recently issued a study of what has occurred with financial (usually damages) experts since the 1999 Supreme Court decision in Kumho Tire Co. vs. Carmichael clarified that the Daubert criteria for challenges to expert witnesses extended to non-scientific experts. PwC compiled the results of cases, providing a plethora of statistics (actually [...]

Disgorgement Returned As A Monetary Remedy In Delaware Cases

June 2011 Although the case at issue involves insider trading, the limitations involving disgorgement as a monetary remedy could be applied to many other circumstances. The Delaware Supreme Court took little time in reversing a lower court decision that could have had widespread effects. The case is important because of the large number of companies [...]

Ninth Circuit Provides New Cost-Based Rule For Antitrust Cases

September 2007   In McKenzie-Willamette Hospital vs. PeaceHealth (no. 05-35627, September 4, 2007), the Ninth Circuit established a new test regarding whether bundled transactions were a violation of §2 of the Sherman Act. The case is important because of the prevalence of bundled transactions, and because it establishes a split with the Third Circuit. Bundled [...]