October 2020 Although Halloween is meant to be a fun festive event, it is wrought with opportunities for things to go frightfully wrong. There are many instances when surrounding events have led to injury or economic damages, often with satisfaction pursued through the courts. Below are some notable cases and cautions for the holiday season. [...]
May 2020 The overall economic damage of the COVID-19 pandemic continues to build. Restrictions on business activity and overall movement via safer at home directives have (i) constrained contract participants’ ability to perform or (ii) impacted the business decision of whether it is reasonable to perform. Those who were forced or otherwise elected to not [...]
March 2020 Under normal circumstances, in a primarily capitalistic society, the laws of supply and demand establish reasonable prices for goods and services. In times of emergency, markets are much more vulnerable to exploitation. Laws prohibiting price gouging in an emergency are designed to protect consumers against such exploitation and the potentially dangerous conditions that [...]
In a recent Telephone Consumer Protection Act (TCPA) case (Golan v. FreeEats.com, Inc. (d/b/a/ ccAdvertsing et al.)), the U.S. Court of Appeals for the Eighth Circuit affirmed a lower court’s massive cut in post-trial damages. This ruling may open additional doors to defendants in TCPA claims in attempts to lessen damages based on the reasonableness [...]
June 2019 Lost compensation claims value the economic losses associated with employment that is eliminated, interrupted or reduced because of improper employment decisions or environments, personal injury or wrongful death, or other changes in employment circumstances associated with civil litigation. In many cases, the loss of employer provided healthcare is a material component of these [...]
February 2019 Kim Kardashian, the most recognizable name in reality television, has filed a $10 million lawsuit in California federal court asserting that fast fashion brand Missguided has made her into an “unwitting and unwilling spokesperson” for its celebrity knockoff clothing products. The filing describes "Missguided does not merely replicate the looks of these celebrities as [...]
January 2019 Taxability affects the actual economic recovery from a litigation settlement or award. In assessing whether to accept a settlement or make the investment to take a case to trial, tax implications are an important element in the evaluation of risk versus reward. Generally, whether litigation proceeds are taxed depends on the underlying basis [...]
January 2019 In December 2018, the Delaware Supreme Court upheld a judgement in the matter of Akron, Inc. v. Fresenius Kabi AG wherein the Court of Chancery for the first time ever found that a “Material Adverse Effect” (“MAE”) justified a buyer’s termination of a merger agreement. Establishing a MAE has historically proven difficult, even [...]
December 2018 While Daubert provides common challenges to the admissibility of expert testimony, inconsistent positions regarding its applicability at the class certification stage remain. Generally, it is advisable for both plaintiffs and defendants to involve expert witnesses as part of the class certification stage, to clarify appropriate approaches, achievable outcomes and/or demonstrate the strength of [...]
November 2018 In a recent medical malpractice suit, former NFL defensive tackle Sharrif Floyd sued his surgeon, among others, for damages and lost earnings totaling in excess of $180 million. As claims for future lost earnings need to be established to a reasonable certainty, Mr. Floyd faces an uphill battle in demonstrating that amount is [...]
September 2018 In a case highly reminiscent of a prior lawsuit against StarKist Tuna, Trader Joe’s has been embroiled in a class action claim regarding the degree to which it fills its tuna cans. Plaintiffs’ claim that reasonable consumers would believe that the cans contained an adequate amount of tuna and were misled because the [...]
Higher education can provide a host of benefits, including opportunities for increased earnings. In a typical lost earnings case, many expect that the more education the Plaintiff has or is expected to obtain, the more lost earnings Plaintiff will suffer (all other factors being equal). However, this may not always be the case. The ultimate [...]
June 2018 One common point of disagreement amongst opposing sides of a lost earnings case is future earnings, especially when the claimant has no meaningful earnings history. This typically occurs in personal injury cases in which the injured party is a child or an adolescent. Recently published data by the Board of Governors of the [...]
April 2018 The US Court of Appeals for the Federal Circuit's recent decision in Exmark Manufacturing Company v. Briggs & Stratton Power Products Group, LLC (January 12, 2018) validates that there is no clear-cut method to value a patented invention’s contribution to a larger, multicomponent product (aka apportionment). Specifically, the Federal Circuit stated that “…apportionment [...]
Damage experts often disagree regarding the appropriate discount rate in a lost earnings claim, a factor that can make a meaningful difference in the economic damages conclusion. A recent article, "An Interactive Settlement Tool Streamlines Negotiations in Lost Earnings Matters", demonstrates the significance of the applied rate on damages. A low discount rate benefits the [...]
September 2016 A recent successful Daubert motion highlights the importance of taking a step back from a damages calculation to assess the critical question of “Does this damages presentation really make sense?” Finjan, Inc. (‘Finjan”) vs. Sophos, Inc. (“Sophos”) is a patent infringement action involving 14 different claims related to six different patents for computer [...]
June 2015 The April 2013 Supreme Court decision in Comcast Corp. v. Behrend, No. 11-864, was a profound change benefitting companies facing class action lawsuits. The Court held that a plaintiff seeking certification must establish through “evidentiary proof” that damages can be measured on a class-wide basis. Individual damage issues can defeat class certification where [...]
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 [...]
March 2015 The Government Accountability Office (“GAO”) recently published a summary of the testimony of US Comptroller General Gene L. Dodaro regarding government efficiency and effectiveness. The GAO reports annually to Congress on federal programs, agencies, offices, and initiatives (both within departments and government-wide) that are fragmented, overlapping, or duplicative. It also identifies opportunities for [...]
March 2015 Prejudgment interest is often applied to a personal injury award in an attempt to capture the lost value of the use of monies prior to the judgment date. A recent case, Bean v. Pacific Coast Elevator Corporation (“Pacific Coast”), has addressed whether costs awarded to a plaintiff in addition to damages are also [...]
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 [...]
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 [...]
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 to [...]
March 2014 The Eastern District of Texas is well known for its intense patent activity and already provides early disclosure of infringement and invalidity contentions to facilitate faster resolution of these cases. The Court has now taken similar action by providing an option for accelerated damage discovery, including requiring a two week turnaround between defendant’s [...]
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 [...]
January 2014 When it comes to damage calculations, the term “speculative” is effectively a death sentence. In order to provide evidentiary value, a damage calculation must be based on a reasonable degree of certainty. In Carter v. Clements Walker PLLC, et al. (“CW”), the Court found that despite an expert opinion that Carter suffered $33 [...]
January 2014 In the course of affirming the district court’s decision in Kraft Foods Group Brands LLC v. Cracker Barrel Old Country Store, Inc., 2013 WL 6017396, Judge Posner went a step further. While upholding the injunction, he ended his assessment with some comments “for future reference” when it comes to consumer surveys offered to demonstrate [...]
December 2013 The Federal Circuit ruled in Uniloc USA, Inc. v. Microsoft Corp. that the widely used (but fatally flawed) 25 percent rule can no longer be part of reasonable royalty damages calculations. This article provides the details of this reasonable royalty damages decision. Since that time, plaintiffs have advanced the Nash Bargaining Solution, a [...]
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 [...]
October 2013 Economists and other financial experts are often hired to assess damages, assuming that liability will be proven. However, liability it self can sometimes be established or disproven based on statistics. For example, in a recently affirmed case involving employment discrimination, the application of a simple method failed to provide the Court with information [...]
October 2013 The announcement of the Nobel Prize winners every October means that at least once a year a handful of economists become relatively popular, at least momentarily. Like many public announcements, the lasting impact of this announcement can be measured using the principles of an event study. In this case, one measure of this [...]
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 [...]
September 2013 A recently affirmed decision to grant judgment for the defendant as a matter of law highlights the importance of expert testimony that is consistent with previously-disclosed opinions presented in a Rule 26 report. In Rembrandt Vision Technologies, Inc. v. Johnson & Johnson Vision Care, Inc., the expert's testimony was struck because of critical [...]
September 2013 An event study captures the impact of a certain event(s) on a marketplace. This technique is most commonly used in the context of the stock market, when analysts study the effects of certain events on stock prices. In such an event study, analysts look at share prices prior to the event of interest [...]
September 2013 In many cases, punitive damages dwarf compensatory damages. However, one should not overlook the importance of the compensatory element of damages, as they can serve as a limiting factor for the punitive component. In Nickerson v. Stonebridge Life Insurance Company (B234271, Aug. 29, 2013), the California Court of Appeal affirmed the trial court’s [...]
August 2013 For economists and data analysts, many interesting pop culture newsbytes spawn a desire to understand the greater forces at work. Powerful analytical tools we often use for complex questions of market share fragmentation, competitive landscape analysis, event studies and pricing models can also help us frame everyday questions of cultural norms. The press [...]
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 [...]
July 2013 With the recent midweek July 4th holiday, many offices found that the following Friday was something of a partially observed holiday, with many employees electing to take a vacation day and enjoy a four day weekend. Of course, companies vary significantly in the number of paid holidays they offer their employees, but interestingly [...]
June 2013 The Federal Circuit affirmed a $391 million damage award in Versata Software, Inc. v. SAPAmerica, Inc., No. 2012-1029, -1049 (Fed. Cir. May 1, 2013). In reviewing the damage portion of the ruling, one cannot help but question the strategy that the defendant employed, which offered only criticisms to the plaintiff’s damages calculation without [...]
May 2013 A Delaware federal court recently closed the door on each of two possible paths to damages for Plaintiff in the matter of AVM Technologies, LLC v. Intel, Inc. (Civil Action No. 10-610-RGA). U.S. District Judge Richard G. Andrews granted Defendant’s motion to exclude Plaintiff’s expert, while also granting Defendant’s motion in limine to [...]
May 2013 A recent ruling in a New Jersey federal court will no doubt serve as a warning for litigants who decline to employ the services of an expert to establish reasonable royalties. In the matter of Unicom Monitoring, LLC (“Plaintiff”)v. Cencom, Inc. et al (“Defendant”) (Civil Action No. 06-1166 (MLC)), U.S. District Judge Mary [...]
April 2013 Every fan loves his sport. There is much debate over which sports are growing in popularity and which are on the decline. Although popularity does not necessarily indicate superiority, it does tell us something about public opinion on the topic. One way to approximate each sport’s relative popularity is to look at web [...]
Lost compensation is a common element of economic damages in personal injury, medical malpractice, wrongful termination, failure to promote and other similar torts. Economists or CPAs are generally engaged as independent damage experts to calculate lost compensation because of their unique skill set in addressing such losses. However, these experts are often employed only after [...]
March 2013 The Seventh Circuit decided Espenscheid vs. DirectSat, Inc., (No. 12-1943, February 4, 2013), upholding the district court’s decision to not certify a class of employees containing wage and hour law violations. The ruling is notable as class certification was denied because the class members had different amounts of claimed work that had not [...]
March 2013 Seventh Circuit Judge Richard Posner is one of the foremost legal scholars in the United States, particularly on economic matters. He has written numerous influential opinions and almost forty books on law and economics, teaches at the University of Chicago Law School, and is widely respected in the legal community. And two of [...]
March 2013 The article, “Chocolate Consumption, Cognitive Function, and Nobel Laureates” recently published in the New England Journal of Medicine (NEJM), demonstrates that even published research may contain errors. The author, Franz H. Messerli, examines the correlation between countries’ chocolate consumption per capita and Nobel laureates per 10 million people. The linear relationship is strong, [...]
December 2012 “Who Wants to be a Millionaire” is an American game show that is based on the UK program of the same name. When ABC contracted for the show in North America, the program and concept were already successful. The showed aired on Disney’s ABC in primetime for three years, and has been in [...]
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 [...]
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 [...]
October 2012 In re: Apple vs. Motorola, the parties sued each other for patent infringement involving smartphones. Seventh Circuit Judge Richard Posner, sitting by designation, threw out all damage witnesses for both parties on Daubert motions. Then, since both parties lacked damages testimony, he dismissed both cases with prejudice. Interestingly, Judge Posner did not allow [...]
September 2012 In LaserDynamics v. Quanta Computer, Case No. 11-1440 (Aug. 30, 2012) the U.S. Court of Appeals for the Federal Circuit overturned an $8.5 million lump sum jury award and remanded the case for a new damages trial. The Federal Circuit addressed three issues of interest to the calculation of reasonable royalties. The Appellate [...]
September 2012 This week, the Securities and Exchange Commission (SEC) released a report required by Section 917 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The study’s legislative mandate includes addressing: “the existing level of financial literacy among retail investors, including subgroups of investors identified by the Commission; methods to improve the timing, [...]
June 2012 Patent law (35 U.S.C. § 284) allows for lost profits in patent infringement cases, but requires damages of at least a reasonable royalty even if lost profits cannot be substantiated. The determination of a reasonable royalty is most often done through a hypothetical negotiation which attempts to ascertain the royalty upon which the [...]
May 2012 In Newell Rubbermaid, Inc. vs. The Raymond Corporation (No. 10-3912, April 3, 2012), the Sixth Circuit evaluated the trial court’s exclusion of Plaintiff’s expert testimony, and related successful defendant motion for summary judgment because of a failure to have minimally-required expert witness evidence. In upholding the trial court’s exclusion under the abuse of [...]
April 2012 In Tussey vs. ABB. Inc. (Case No. 2:06-CV-04305-NKL, March 31, 2012), a United States District Court for the District of Western Missouri decided an important case regarding common fees and revenue sharing within 401(k) plans. The case imposed extensive liability on the plan sponsor, resulting in $36.9 million of damages, plus Plaintiff’s attorneys’ [...]
March 2012 After a jury trial, ATA Airlines (ATA) won a nearly $66 million verdict against Federal Express Corporation (FedEx). FedEx appealed that ruling. In ATA Airlines, Inc. v. Federal Express Corp., No. 11-1382 (7th Cir. Dec. 27, 2011), a distinguished panel consisting of Justices Easterbrook, Posner, and Wood criticized the complex damages analysis accepted [...]
February 2012 Regression analyses are commonly used in litigation because of their ability to ascertain both liability and damages. However, the ability to communicate this relatively sophisticated statistical analyses to a layperson (e.g., jury) can be challenging to some experts. We present two practical applications that demonstrate regression’s power to answer real world questions/puzzles. Why [...]
February 2012 “If you’re going to play the game, boy, ya gotta learn to play it right” From “The Gambler”, famously recorded by Kenny Rogers Multiple articles have been written regarding a ruling in re: Duran v. US Bank National Association, California Court of Appeal, 1st Appellate Dist., (February 6, 2012), which incorrectly claim that [...]
February 2013 Regression analysis is a statistical technique that is commonly used in litigation because of its unique ability to ascertain both liability and damages. Specifically, litigation invariably involves questions of (i) whether event x caused event y, and (ii) if so, how much did y change because of x. As regression is used more [...]
November 2011 Lost profits are typically understood to yield higher damages than reasonably royalties, but this is not always the case. Higher reasonable royalty damages most frequently occurs when the patent holder (inventor) is not in a position to exploit the invention by manufacturing the product himself. In such event, (i) the inventor cannot make [...]
November 2011 The District Court appointed an independent expert on the issue of damages pursuant to Rule 706 of the Federal Rules of Evidence. The public may learn about the Court-appointed damage expert’s conclusion as early as this week, since the independent expert’s report is due on November 14, 2011. No doubt, the District [...]
October 2011 In early September 2011, a trial court ordered a new trial involving a jury verdict in which Oracle obtained a $1.3 billion verdict from SAP. By all accounts, Oracle’s verdict is the largest ever awarded for copyright infringement. In lieu of a new damages trial, Oracle can accept a remitter of $272 million [...]
Published in Los Angeles Lawyer, April 2003 Expert witnesses are more important than ever. Most complicated cases do not settle until after the experts have issued comprehensive reports or had their depositions taken. This trend will increase because education had not kept pace with the continuing increase in knowledge, causing an ever-widening gap between [...]
Published in Los Angeles Lawyer, April 2005 In many respects, the cross-examination of an expert witness is the same as for other witnesses. Some basics include: Be brief…Do not quarrel with the witness…Never ask a question to which you do not already know the answer…Avoid one question too many…and so on. However, there are some [...]
Published in Los Angeles Lawyer, November 2004 In the vast majority of circumstances, your deposition results can be improved by adding a few questions that usually challenge expert witnesses. Consider the following practical advice gleamed from hundreds of actual depositions. These questions should be modified slightly depending upon your deposition strategy. Before the deposition begins, [...]
Published in Los Angeles Lawyer, April 2004 If you want to improve your chances of success, commit these ideas to stone. Then follow them religiously. 1. Keep it simple This is the greatest commandment, and the one most frequently violated. Too much information in a visual aid will confuse rather than clarify. Creativity does [...]
Published in Los Angeles Lawyer, November 2002 The following suggestions result from my experience serving as a witness, watching hundreds of other expert witnesses, and locating witnesses when servings as a confidential consultant. They are intended to help attorneys avoid common mistakes in selecting an expert witness. Be careful when your potential expert witness is too [...]
Updated February 2021 When calculating damages covering future periods, the future amounts must be reduced to present value to account for the time value of money. In many cases, economic damage calculations in personal injury, wrongful death, and employment cases use discount rates that are too low. Consequently, the calculated damages pertaining to future periods [...]
In September and October 2008, the IRS issued two pronouncements that address when litigation settlement payments with governments are deductible. These settlements could occur under any government regulation, including for example the False Claims Act, Medicare billing, environmental laws, anti-trust laws, as well as any state law. This issue will likely arise more regularly under [...]
September 2007 In a landmark decision that overturns long-standing precedent, the Court of Appeals for the Federal Circuit (CAFC) unanimously heightened the test to determine whether an infringer is subject to enhanced damages because of willful infringement of a patent. Such enhanced or punitive damages can be up to three times the compensatory damages. The [...]
November 2018 In Texas Advanced Optoelectronic Solutions Inc. v. Renesas Electronics America Inc, f/k/a Intersil Corporation, the Federal Court of Appeals recently overturned the trial court’s economic damages award based on an impermissible double recovery across the multiple causes of action involved. Texas Advanced Optoelectronic Solutions, Inc., (“TAOS”) and Intersil Corporation (“Intersil”) each develop and [...]
July 2009 A jury in the Eastern District of Texas found that Abbott Laboratory's best-selling drug, Humira, violated a patent on Johnson & Johnson's Remicade. The jury awarded the largest patent infringement damage award ever, at 1.67 billion. Because the jury found Abbott's infringement was willful, the Court has the discretion of awarding up to [...]
July 2007 Calculating patent infringement damages just got harder, and the allowable damages a lot larger. The Court of Appeals for the Federal Circuit (CAFC) hears all patent law appeals from any of the United States district courts. In an important ruling that changes the range of possible patent damages, the CAFC ruled a “reasonable [...]
May 2009 The Supreme Court in eBay v. MercExchange, 547 U.S. 388 (2006) overturned the Federal Circuit's "general rule" of automatically issuing a permanent injunction after a finding of patent infringement. District courts must now use a four-factor test to exercise equitable discretion in deciding whether to issue a permanent injunction. The four factors are: [...]
April 2011 In monetary terms, the biggest decision made by the Supreme Court in the current session is a case that they decided NOT to take. On March 21, 2011, the Supreme Court denied certiorari of a Ninth Circuit ruling made on September 3, 2010 in re: F.B.T. Productions vs. Aftermath Records. Absent a settlement, [...]
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 is [...]
April 2010 In ResQNet.com, Inc. v. Lansa, Inc., Nos. 08-1365, -1366, 09-1030 (Fed. Cir. Feb. 5, 2010), the United States Court of Appeals for the Federal Circuit (CAFC) provides useful instruction regarding common (but poor) practices that are seen in reasonable royalty damages analyses in patent infringement cases. The CAFC referenced its recent decision in [...]
February 2010 On September 15, 2009, the Judicial Conference approved rule changes under federal Rule 26 regarding expert reports and the discoverability of communications with expert witnesses. The rule changes have been submitted to the U.S. Supreme Court with a recommendation that they be approved and transmitted to Congress in accordance with the Rules Enabling [...]
January 2011 The Federal Circuit ruled in Uniloc USA, Inc. v. Microsoft Corp. (January 4, 2011) that the widely used but fatally flawed 25 percent rule can no longer be part of reasonable royalty damages calculations. Generally speaking, the rule pushed patent infringement damages higher. Because a reasonable royalty is the most frequently used measure [...]
In re: Commissioner vs. Banks and Commissioner vs. Banaitis, the Supreme Court ruled (8-0) that contingency attorney fees paid by an individual must be included in the taxpayer's income and then deducted. This has the following adverse outcomes: Once included in gross income, the legal fee is deducted as an itemized deduction, causing: i. the standard [...]
October 2009 A recent study published in the Journal of Empirical Legal Studies finds that fully 61% of plaintiffs who reject a settlement offer and proceed to trial obtain less money than if they had settled. Defendants made the wrong decision in 24% of the cases. This is substantially different than a 50%/50% error rate [...]
June 2011 Although the case at issue involves insider trading, the limitations involving disgorgement as a monetary remedy could be applied to 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 that [...]
December 2006 In the legislative session that just ended, Civil Code 3426.4 was amended to permit recovery of costs by a prevailing party in litigation of claims for trade secret misappropriation when a party acts maliciously or in bad faith. Costs include expert witness fees that are “actually incurred and reasonably necessary”. Costs incurred by [...]
October 2003 A 2002 case, Energy Capital Corp. v. United States (302 F.3d 1314; 2002 U.S. App. LEXIS 16447), provides guidance on three issues that frequently arise in calculating damages. The case provides guidance on the following issues: Can A New Venture be Awarded Lost Profits? What is the Proper Date to Use When Performing [...]
Here are items you need to determine when selecting a financial expert to address your damages calculation:
September 2010 A plaintiff with a large verdict against accounting giant KPMG lost its award because the appellate court could not find evidence that would support the damages. The moral of the story is that one should not take short cuts on damages analysis in substantial commercial cases. While this moral may sound self-evident, we [...]
March 2011 A Lone Pine order is a case management device in which the judge requires the plaintiff to make a prima facie showing of injury, causation, and/or damages. Its purpose is to simplify or eliminate cases to lessen the burdens on the courts and defendants. In a Lone Star order, plaintiffs are required to [...]
July 2005 In two rulings issued in June 2005, the California Supreme Court interpreted the U.S. Supreme Court guidance on punitive damages. It was the first time in at least two decades that the California Supreme Court addressed punitive damages. The rulings were as follows: Courts could consider the defendant's conduct towards people other than [...]
July 2006 The U.S. Patent and Trademark Office (PTO) has been allowing patents on tax strategies. So far, the PTO lists 43 issued patents, and 62 patent applications that are under examination. Each of these patents and patent applications supposedly provide some unique means of complying with the Internal Revenue Code that no one should [...]
May 2007 California’s Fourth Appellate District certified for publication a significant decision addressing the constitutionality of punitive damages awards. In a decision that will apply to the majority of business tort cases, the Court ruled when: “… the conduct in question only involves economic damage to a single plaintiff who is not particularly vulnerable, an [...]
April 2005 In enacting its new punitive damages tax, California failed to consider the plaintiff's likely federal income tax impact. As a result, plaintiffs in certain cases are better off not getting any punitive damage award at all. Because of (i) the conflict of interest between the plaintiff lawyer and his client and (ii) the [...]
March 2008 On February 20, 2007, Philip Morris won a (perhaps temporary) victory when the U.S. Supreme Court reversed a $79.5 million punitive damage verdict award involving the death of a single Oregon smoker. The case is the first since the 2003 ruling in re: State Farm vs. Campbell. The State Farm case specified that punitive damage awards [...]
June 2011 Based on results of its May 2011 survey, the Associated Press (AP) reported that President Obama hit his highest approval rating in two years, with his approval shooting past 50 percent based on the economy: “President Barack Obama's approval rating has hit its highest point in two years — 60 percent — and [...]
May 2007 The obligation to retain and produce drafts of expert reports in discovery is becoming a common dispute area. Using current word processing technology, such drafts are often not reduced to paper. Typically, the party seeking additional discovery contends that the expert witness should produce emails and/or report drafts that were provided to employing [...]
Statisticians describe independence as whether the occurrence of one event or characteristic makes it neither more nor less probable that other event(s) or characteristic(s) occur(s). The chi-square test described below is one of the most widely used tests for evaluating independence of variables, particularly when the number of observations and/or variables becomes larger. This article [...]
February 2009 The first piece of legislation signed by President Obama is the Lilly Ledbetter Fair Pay Act of 2009 (“FPA”). This anti-discrimination law overturns a Supreme Court ruling that established a short statute of limitations. Under the new law, employment discrimination claims are certain to increase. The Act takes effect as if enacted on [...]
February 2011 Statisticians describe independence as whether the occurrence of one event or characteristic makes it neither more nor less probable that other event(s) or characteristic(s) occur(s). The chi-square and Fisher exact tests described below are the most widely used tests for evaluating independence of variables. The classic tool for teaching probability involves placing different [...]
March 2009 Unfortunately, current difficult economic times are forcing many employers to lay off employees. Employers considering a reduction in force (RIF) can reduce risk of discrimination allegations through relatively inexpensive pre-RIF statistical testing. When compared to the cost of litigation, testing before final conclusions are reached is an inexpensive check on the proposed actions. [...]
March 2011 Most national polling organizations are independent and do not have an agenda they want to advance. Independent and accurate polling is the basic requirement for trust in the polling organization. Knowing this, those organizations that do have a political agenda are usually good at hiding it. But, bias does exist. The possibility of [...]
February 2011 U.S. Department of Health and Human Services (HHS) released its required annual Health Care Fraud and Abuse Control Program report. The report showed that the government’s health care fraud prevention and enforcement efforts recovered more than $4 billion in taxpayer dollars in fiscal year 2010. This is the highest annual amount ever recovered. [...]