Commercial Damages

|Commercial Damages

Questionable Claims Regarding the Lost Earnings of a Professional Athlete

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 [...]

Settlement May Not Provide Class Members with the Benefit They Expect

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 [...]

The Value of Higher Education in Lost Income Claims

September 2018 Higher education can provide a host of benefits. In certain industries, opportunities for increased pay are directly tied to credentials. Many assume that such outcomes uniformly favor additional education from a financial perspective. In a typical lost earnings case, many might similarly expect that the more education the Plaintiff has or is expected [...]

Federal Circuit Allows Flexibility in Determining Royalty Rate

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 [...]

The Appropriate Discount Rate In A Lost Earnings Claim

October 2018 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, “Calculate Economic Damages Associated with Lost Earnings Claims Accurately and Efficiently”, demonstrates the significance of the applied rate on damages. A low discount [...]

Patent Features Double Count Leads To Daubert Exclusion

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 [...]

Supreme Court To Address Use of Statistics For Class Action Certification

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 [...]

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 [...]

GAO Reports Worsening Improper Payments

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 [...]

Costs Excluded From Prejudgment Interest Calculation In Personal Injury Award

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 [...]

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 [...]

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 to [...]

Newly Accelerated Damages Discovery Requires Immediate Expert Assistance

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 [...]

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 [...]

Addressing The Seventh Circuit’s Concerns Regarding Consumer Surveys In Litigation

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 [...]

Nash Bargaining Solutions In Patent Damages Is Not Always A 50%/50% Split

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 [...]

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 [...]

Statistical Sophistication Would Have Provided A Different Liability Answer

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 [...]

The Popularity Spike Of Nobel Prize Winners In The “Dismal Science”

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 [...]

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 [...]

Expert Thrown Out After Claiming Major Report “Typos” on Cross Examination

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 [...]

Punitive Damages That Are Limited To Simple Multipliers Require A Greater Focus On Compensatory Damages

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 [...]

Baby Names As A Marketplace: What Are Americans “Buying”?

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 [...]

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 [...]

Federal Circuit Decision Demonstrates The Risks When Defendants Decline To Calculate Possible Damages

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 [...]

Neither Expert Nor Inventor Allowed To Opine On Reasonable Royalty Damages

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 [...]

Can Time Series Decomposition Allow Us To Settle The Score On Which Sport Is Best?

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 [...]

Calculate Economic Damages for Lost Earnings Accurately and Efficiently

June 2018 Lost compensation is a measure of economic damages in personal injury, medical malpractice, wrongful termination, failure to promote and other similar torts.  Independent damages experts (usually economists or CPAs) are often employed to calculate lost compensation because of their unique background/skill set in addressing such economic losses.  However, the desire to minimize costs [...]

Seventh Circuit Bars Class Certification Because Of Damages

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 [...]

Why Chocolate Doesn’t Create More Nobel Laureates For Your Country

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, [...]

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 [...]

Posner Opinion Provides Worthwhile Damage Guidance

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 [...]

Federal Circuit Corrects Recurring Errors With The Entire Market Value Rule

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 [...]

SEC Report Is Relevant To Litigators Presenting Financial Information

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, [...]

Federal Circuit Approves Evidence Of Both Settlements And Related Negotiations In Reasonable Royalty Damages

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 [...]

Sixth Circuit Provides Practical Guidance Regarding Expert Testimony Admissibility

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 [...]

2016-11-10T11:30:43+00:00Commercial Damages|

Second Excess Fee And Revenue Sharing 401(k) Trial Again Results In A Big Plaintiff Victory

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’ [...]

2018-11-21T12:16:52+00:00Commercial Damages|

Seventh Circuit Provides Primer On Regression Analysis And What Can Go Wrong

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 [...]

2015-05-13T10:59:50+00:00Commercial Damages|

Solving Everyday Puzzles Using Regression Analysis

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 [...]

2018-12-05T14:24:38+00:00Commercial Damages|

A Primer On Regression Analysis

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 [...]

2016-11-10T11:30:45+00:00Commercial Damages|

Court-Appointed Expert Will Likely Have The Final Word On Damages In Oracle vs. Google

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 Court [...]

Helping Your Expert Witness Succeed

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 [...]

2018-11-21T15:31:40+00:00Commercial Damages|

Improving Cross-Examination Of Expert Witnesses

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 [...]

2015-05-13T11:07:38+00:00Commercial Damages|

Improving Your Expert Deposition Results Is Easy

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, [...]

2016-11-10T11:30:50+00:00Commercial Damages|

Avoiding Common Mistakes When Selecting An Expert Witness

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 [...]

2015-05-13T11:07:59+00:00Commercial Damages|

Selecting Discount Rates For Personal Injury & Employment Damage Calculations

November 2012 When calculating damages covering future periods, the future amounts must be reduced to present value to account for the time value of money. In the majority of 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 [...]

IRS Toughens Position On Deductibility Of Government Settlements

 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 [...]

2016-11-10T11:30:55+00:00Commercial Damages|

Punitive Damages Now More Difficult In Patent Cases

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 [...]

Federal Circuit Throws out Economic Damages as a Double Recovery

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 [...]

Post-Judgment Reasonable Royalty Rates Get Important Additional Guidance

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: [...]

Federal Circuit Court Of Appeals Provides Guidance On Reasonable Royalty Damage Calculations

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 [...]

Reasonable Royalty 25% Rule Is Dead

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 [...]

Avoiding A Contingency Fee Tax Trap

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 [...]

2016-11-10T11:31:00+00:00Commercial Damages|

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 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 [...]

California Appellate Court Limits Punitive Damages in a Commercial Setting to a 1:1 Ratio

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 [...]

Beware Of Poll Results

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 [...]

Chi-Square Statistical Test Evaluates Independence

June 2013 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. [...]

First Law Signed By Obama Will Increase Employment Discrimination Litigation

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 [...]

Using Statistics To Establish (Or Disprove) Relationships

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 [...]

RIF Statistical Audits Reduce Discrimination Risks

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 [...]

Federal Health Care Fraud Enforcement Efforts Recover Record Amounts

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. [...]

Calculating Sample Size

Sampling is an accepted way of making estimates at a much lower cost and when done properly, statistics can provide useful information regarding the likelihood that information obtained from the sample is representative of the entire population from which the sample was taken. This article provides a primer of information that the person considering a [...]

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