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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 [...]

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 [...]

Fraudulent Revenue Recognition Order Causes Rift At The SEC

September 2014 A settlement agreement has been reached In the Matter of Lynn R. Blodgett, Adm. Proc. File No. 3-16045 (August 28, 2014), but without consensus on the part of the Securities Exchange Committee (“SEC”) as to the appropriate penalty. The underlying circumstances involve a financial fraud action against two executives at Affiliated Computer Services, Inc. [...]

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 [...]

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 [...]

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 [...]

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 [...]

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