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The Evolving Landscape

of Patent Litigation Damages In the last 18 months, we have seen numerous decisions which will likely have a dramatic impact on the landscape of patent litigation damages. Two of the most impactful decisions, Apple v. Samsung and WesternGeco v. Ion Geophysical, made their way to the United States Supreme Court. However, we will not see the true practical outcome of either of these hallmark decisions for man ...

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The Daubert Standard’s Impact

on Expert Witness Testimony Expert witness testimony has played a vital role in both criminal and civil trials in the United States. Testimony from expert witnesses constantly helps judges and jurors reach conclusions in controversial and complex cases. Therefore, the Daubert Standard is important to know and understand in general, and especially as an expert witness. The Daubert Standard helps courts deter ...

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The Expert Witness Exchange: Car Rentals, $16 Million

and an Expert Witness While there are hundreds of Daubert decisions issued every week, only a few go a long way in shaping the way experts are screened by judges in the future. And even fewer times, a multimillion-dollar verdict is hinged solely on the expert witness testimony! In this article, the author discusses the district and appellate court decision in Alaska Rent-A-Car v. Avis Budget Group. ...

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The Pink Elephant in the Courtroom

Un-Impeaching Opinions of Calculated Values Valuation or calculation? That is the question asked, answered, and argued by judges, experts, lawyers, and industry thought leaders apropos to whether a calculation of value can be used in litigation. The answer echoed throughout courtrooms across America thus far is a resounding “it depends.” This article offers a synopsis of the debate over calculation engageme ...

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Overview of the But For Investment Portfolio

To Measure Trustee Breach of Fiduciary Duty Damages The but for investment portfolio is a tool that damages analysts utilize to estimate economic damages when there is an allegation of a breach of fiduciary duty with regard to the management of an investment. In its simplest form, the but for investment portfolio estimates the value of a portfolio but for the alleged breach of fiduciary duty. Case law prece ...

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Buyers and Sellers Can Benefit from Use of Earnouts

Must Know Accounting Rules Earnouts are often used in transactions to bridge the gap between what a buyer is willing to pay up front and what a seller wants in the way of total compensation to complete a deal. Therefore, earnouts are typically constructed to allow the seller to enjoy additional upside if the acquired company reaches certain performance targets after the sale while providing the buyer with d ...

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Discounting Lost Profits to Present Value

Ex ante, Ex post, and Hybrid Methodologies January 2019 will be the twentieth anniversary of one of the seminal articles written on discounting lost profits, Peter Schulman’s Economic Damages: Discounting Concepts and Alternatives. This article addresses the concepts and complexities of discounting lost profits that were discussed in the Schulman article and advances and additional methodology for discounti ...

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The Expert Witness Exchange

Marketplace Platform for Aspiring and Experienced Litigation Support Professionals There is no disputing the influence that expert witnesses have on litigation outcomes—this much we know for sure. Their expertise is often relied upon by the court in rendering decisions, weighing the opinions, methodology, and, indeed, the credibility of the competing expert witnesses involved for each party to the legal dis ...

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The Financial Expert

Often the Link Between Damages and Causation Even with established liability, a plaintiff seeking damages must be able to calculate damages with reasonable certainty and demonstrate a causal link between the defendant’s acts and the plaintiff’s injury. The concept of causation is simple—did a defendant’s wrongful act cause the plaintiff’s damages? Proving causation, however, is not always as simple. Many ti ...

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The Daubert Standard’s

Impact on Expert Witness Testimony Expert witness testimony has played a vital role in both criminal and civil trials in the United States. Testimony from expert witnesses constantly helps judges and jurors reach conclusions in controversial and complex cases. Therefore, the Daubert Standard is important to know and understand in general, and especially as an expert witness. The Daubert Standard helps court ...

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The Expert Witness Exchange

Marketplace Platform for Aspiring and Experienced Litigation Support Professionals Until now, a lawyer could not put out a call for help with a single case description and submit that to one, a dozen, or an entire community of relevant subject matter experts simultaneously with the single push of a button. Until now, an expert might have to choose between paying for advertising to be listed in a directory a ...

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Unique Circumstances When Calculating Lost Profits

Reliability of Client’s Data This article discusses how experts can handle the unique situation of receiving unreliable data. Litigation and appraisal literature will be reviewed as will the author’s handling of unreliable data in a recent lost profits case. In the end, warning signs will be reviewed to alert the expert to potential problems with the projected data. ...

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Application of the Sales Projection Method

In Measuring Trustee Breach of Fiduciary Duty Damages (Part I of II) The prudent investment of trust assets can minimize the potential for trustee fiduciary litigation risk, in addition to maximizing the trust beneficiaries’ economic interest in the trust. However, trust beneficiaries may initiate a breach of fiduciary duty tort claim when they feel that the trustee has breached any investment management fi ...

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Federal Circuit Provides Guidance

On Patent Damages and Apportionment In two recent cases, the U.S. Court of Appeals for the Federal Circuit provided important guidance when applying apportionment principles to calculate reasonable royalty damages.  See Finjan, Inc. v. Blue Coat Systems, Inc., 879 F.3d 1299 (Fed. Cir. 2018); Exmark Mfg. Co. v. Briggs & Stratton Power Products Group, LLC, 879 F.3d 1332 (Fed. Cir. 2018).  The Federal Circ ...

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Commercial Damages and Lost Profits

Case Study of a Real Estate Developer For most lost profits cases, the losses begin at the date of the harmful act and end when the injured party is returned to the position it would have had “but for” the alleged damaging act of the defendant. However, not every lost profit matter is a breach of contract where beginning and ending dates can be easily defined. Sometimes losses may not occur until a period i ...

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How to Select a Case Appropriate Mediator

Factors to Consider Finding the Right Mediator Mediation is a dispute resolution process that is now more popular than arbitration. Many contracts require parties use mediation, if a dispute arises; and courts have adopted the use of mediation to help reduce the number of cases headed to trial. Yet with all this popularity, there remains a significant problem with using mediation: getting the "wrong" mediat ...

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