Category: Damages

Disgorgement remedy potentially broadened by Second Circuit

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 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 other wrongful conduct. …

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New Path for Accelerated Discovery Requires Immediate Expert Assistance

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 production of …

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Permanent link to this article: http://betweenthenumbers.net/2014/03/new-path-for-accelerated-discovery-requires-immediate-expert-assistance/

Recovering Investor Confidence After a Restatement

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.  A recent study, developed through a collaboration of professors from Singapore Management University and Boston College, suggests that the three quarter rebuilding period described in prior research may be …

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Permanent link to this article: http://betweenthenumbers.net/2014/02/recovering-investor-confidence-after-a-restatement/

US Supreme Court to Hear Significant Copyright Case

Technology is changing at a rapid pace and this change touches on some serious legal issues.  A recent article by Marc Miller and Melissa Reinckens of DLA Piper discusses a case that will be heard by the U.S. Supreme Court.  The cases involves, Aereo, a New York-based startup technology company financed by Barry Diller, utilizes …

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Permanent link to this article: http://betweenthenumbers.net/2014/01/us-supreme-court-to-hear-significant-copyright-case/

$765 Million Settlement Not Enough!

A recent article by Case Funding Inc., indicated that Judge Anita Body had questions about the adequacy of the $765 million settlement between the NFL and NFL players.  The settlement relates to mild traumatic brain injuries (mTBI) that NFL players have suffered or may suffer in the future as a result of their NFL careers. …

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Permanent link to this article: http://betweenthenumbers.net/2014/01/765-million-settlement-not-enough/

Speculative damages lead to summary judgment

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 to 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 million in damages, …

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Ernst & Young gets settlement deal of the decade

E&Y just settled the Lehman Brothers class action against them for $99 million. It made little news. The 2008 Lehman Brothers bankruptcy was at least partially caused by accounting malfeasance. This article describes the bankruptcy examiner’s report on this wrongdoing. Arthur Andersen was entirely destroyed for a bad audit of Enron that was no worse …

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Permanent link to this article: http://betweenthenumbers.net/2013/12/ernst-young-gets-settlement-deal-of-the-decade/

Disgorgement of Profits on Unpaid Benefits Granted in ERISA Long Term Disability Case

In Rochow v. Life Insurance Company of North America (“LINA”), the Appeals Court affirmed a disgorgement remedy of $3.8 million under ERISA in this long term disability case.  In a previous appeal, the Court had determined that LINA had acted in an arbitrary and capricious manner when it continuously denied Daniel Rochow benefits for his long …

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Get the Court’s Daubert Rationale on the Record

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 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 Court …

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Permanent link to this article: http://betweenthenumbers.net/2013/11/first-circuit-reverses-two-speculative-damage-types/

Nash bargaining solution in patent damages is not always a 50%/50% split

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 theoretical mathematical …

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