Other Commercial Damages

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Breach of Contract and Economic Damages Claims During COVID-19

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 [...]

Price Gouging in an Emergency

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 [...]

Defendants of TCPA Class Actions Just Got Some Help to Lower Damages

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 [...]

Tax Implications for Litigation Settlements and Awards

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 [...]

Historic Material Adverse Effect Ruling Demonstrates What It Takes to Establish One

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 [...]

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 [...]

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 [...]

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 [...]

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 [...]

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 [...]

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 [...]

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