• Litigation Consulting - QuickRead Top Story

    Estimating Lost Profits for a Self-Employed Business: What are a Self-Employed Person’s Earnings? What are Their Profits?

    March 5, 2025

    This article will discuss some of the unique factors relating to assessing lost profits for self-employed operated businesses. As examples, two extremes will be discussed. These extremes provide virtual bookends when assessing a claim of lost profits by a self-employed person. The first addresses a self-employed person who reports his/her income through a Schedule C, Sole Proprietor. The second addresses self-employed individuals that own and operate a subchapter S corporation and file an 1120S for that business. Financial experts will often be asked to estimate the lost earnings or lost earning capacity for an injured self-employed person. This type of…

  • Litigation Consulting - QuickRead Top Story

    Lost Profits or Lost Business Value: When to Use in Litigation Assignments

    February 5, 2025

    In a recent engagement, the author was asked to prepare a lost business analysis for an operating business. In this article, the author discusses when a lost profits vis-à-vis a lost business analysis is best suited.  Recently, I received a call from a new client. That is, I spoke with an attorney with whom I had worked in the past. He wanted to hire me to assess damages in a commercial damages case. The business had been injured by an alleged wrongful act. It was still operating and did not appear to be closing anytime soon. I began to discuss…

  • Litigation Consulting - QuickRead Top Story

    Discount Rates for Lost Profits

    July 2, 2024

    A Question of Facts and Varying Rates “How could an expert apply such a high or low discount rate to a stream of future lost profits and the court find it acceptable?” This article highlights my research looking into discount rates for lost profits and why there are so many variations of a theme when it comes to making such a calculation. When attending professional conferences, I enjoy talking with other experts involved in the litigation support field. During almost every discussion regarding commercial damages (lost profits or business destruction), there is a comment about the discount rate applied for…

  • Litigation Consulting - QuickRead Top Story

    The Panduit Test

    May 15, 2024

    Guidance Provided by Godinger Silver Art Ltd. The Panduit test is a widely used four factor test that is applied primarily in patent cases but also intellectual property cases. The test factors can be found in Panduit Corp v Stahlin Bros. Fibre Works, Inc. This article will focus primarily on the 2024 Godinger Silver Art Ltd. decision. The language of that decision has been used to explain the court’s understanding of how experts should apply the Panduit factors. Experts are asked to apply their education, training, and experience to assignments in estimating lost profits or critiquing the opposing expert’s analysis.…

  • Litigation Consulting - QuickRead Top Story

    Looking Back to Go Forward

    November 1, 2023

    A Review of the Basics for Lost Profits (Part VI) The first five installments of this series have been a review of the basics for calculating lost profits. In the series, lost profits was defined, the common methods used for calculating lost profits (yardstick, before and after, sales projections, market) were discussed, the court standards for assessing lost profits (foreseeability, proximate cause, reasonable certainty) were reviewed, the way of discounting future lost profits to present value was presented, modeling lost profits calculations and how these factors impact the discount rate were discussed. In addition, this series has addressed the differences…

  • Litigation Consulting - QuickRead Top Story

    Looking Back to Go Forward

    May 10, 2023

    A Review of the Basics for Lost Profits (Part V) This is the fifth article in a series reviewing the basics for lost profits. When calculating lost profits, some assignments will show results with future lost profits. The future lost profits must be discounted to a present value. This article will review issues relating to discounting future lost profits to their present value. The topics discussed will be (1) from what date to discount losses, (2) ex ante and ex post approaches, (3) modeling or not modeling projections of future losses, and (4) the appropriate discount rate. This is the…

  • Litigation Consulting - QuickRead Top Story

    Looking Back to Go Forward

    April 5, 2023

    A Review of the Basics for Lost Profits (Part IV) This is the fourth article in a series reviewing the basics for lost profits. Important in any assignment for calculating lost profits is understanding standards set by the courts. The three standards that courts use in assessing lost profit calculations are foreseeability, proximate cause, and reasonable certainty. In this segment, these court standards for providing a lost profits analysis are reviewed. Read Part I, Part II, and Part III. This is the fourth article in a series reviewing the basics for lost profits. In this segment, the court standards for…

  • Litigation Consulting - QuickRead Top Story

    Looking Back to Go Forward

    December 7, 2022

    A Review of the Basics for Lost Profits (Part III) This is the third installment of this series. The first part provided an overall introduction to this review of the basics for lost profits. The second part reviewed the similarities and differences between estimating lost profits and litigious based business valuations. This installment takes a deeper look into the methods for calculating lost profits. Four methods based on the “but for” theory are examined. The discussion of each methodology highlights the approaches taken for calculating lost profits and weaknesses or concerns that arise with each method. Read Part I Here…

  • Litigation Consulting - QuickRead Top Story

    Looking Back to Go Forward

    August 31, 2022

    A Review of the Basics for Lost Profits (Part II) In this second part of our series reviewing the basics for lost profits, we will contrast the differences between valuing a lost business and calculating an ongoing business’s lost profits. Because many experts calculating lost profits also provide business valuations, both in and out of litigation, it is good to be reminded of the similarities and differences between these two approaches when assessing commercial damages. In this article, we review five key categories that separate the approaches for calculating lost profits from valuing a lost business. It also is a…

  • Litigation Consulting - QuickRead Top Story

    Looking Back to Go Forward

    August 24, 2022

    A Review of the Basics for Lost Profits (Part I) Those who have worked in the forensic field for many years begin to take for granted how we approach and handle certain situations. We have a level of knowledge and experience that lets us move forward without much research. But, with this level of experience and understanding comes a level of forgetfulness. Not that we forget how to perform the analysis, but we forget why we need to perform an analysis a certain way. I believe it is good from time to time to stop and ask, “Why do we…

  • Litigation Consulting - QuickRead Top Story

    Lost Profits

    March 16, 2022

    Revisiting the Energy Capital Corp. v United States Case Causation It is important for the research and literature in our field to advance. Books, articles, and presentations help us improve and perfect the work we provide to the courts. It is also important that we review the history of our field to remind us “why we do things the way we do.” When reviewing the Energy Capital Corp. v United States case, financial experts will find several discussions regarding calculating lost profits that continue to provide a guide for other court opinions. This article will review three of those discussions:…

  • Litigation Consulting - QuickRead Top Story

    Lost Profits and COVID-19

    December 1, 2021

    A Unique Take on Causation Experts are becoming aware of how the COVID-19 pandemic has affected lost profit analyses that include 2020 and 2021. The pandemic and the slow recovery have created separate causations which may or may not become the proximate cause of a damaged business’ loss. For this reason, the effects of COVID-19 must be considered as an alternative causation to lost profits. The lockdowns across the country, the shuttering of non-essential businesses, and the overall fear which gripped the nation even as the economy was reopening caused a loss of revenue and profits to many businesses and…

  • Litigation Consulting - QuickRead Top Story - Valuation/Appraisal

    Lost Profits

    September 8, 2021

    Questions from the NACVA Conference Regarding Discounting Lost Earnings for Self-Employed Individuals In June 2021, the author of this article made a virtual presentation at the NACVA and the CTI’s Business Valuation & Financial Litigation Hybrid & Virtual Super Conference. The presentation was “Estimating Economic Loss of the Self-Employed: Lost Profits or Lost Earning Capacity”. One of the attendees asked a very good question regarding discounting future losses to present value, which is the main focus of this article. In June 2021, I presented a virtual session at the NACVA and the CTI’s Business Valuation & Financial Litigation Hybrid &…

  • Litigation Consulting - QuickRead Top Story - Valuation/Appraisal

    Assessing Lost Profits

    May 26, 2021

    After the COVID-19 Pandemic The COVID-19 pandemic put a strain on the U.S. and global economies as well as individual lives throughout the world. As much as most people would like to put 2020 behind us, experts will have to continue to review financial returns from 2020 in the historical data for businesses claiming to have been injured by wrongful acts in 2021 and the future. As much as an expert would like to disregard the 2020 results, questions need to be asked as to how the injured business’ market and customers were affected by the pandemic and what level…

  • Litigation Consulting - QuickRead Top Story - Valuation/Appraisal

    Lost Profits

    February 24, 2021

    Moving Forward During COVID-19 The COVID-19 pandemic has brought difficulties and major lifestyle changes for most of us. This is particularly true for the business world. Some firms have been negatively impacted. Some businesses have benefitted from the change in our lifestyles. Because causation is an important consideration in commercial damages cases, experts assigned to estimate lost profits must consider the impact of COVID-19 on a business or industry when calculating damages for 2020 and 2021. Courts are aware of the impact COVID-19 has had on the economy and the public. This article addresses issues experts should consider when assessing…

  • Financial Forensics - QuickRead Top Story

    Using International Economic Time Series Data in Determining Lost Profits

    June 25, 2020

    Forensic engagements that involve determining lost profits or other economic damages often require a “time series” of economic and market data. When the lost profits or other economic damages engagement involves comparing international companies, multi-country economic data, and international market data, the challenges in locating meaningful data become especially difficult. In this article, the authors share how a time series analysis was used in an engagement, resulting from a breach of a franchise in a European Union (EU) country. To perform the time series analysis, the authors needed to gather multi-country economic data to determine the alleged lost profits and/or…

  • Litigation Consulting - QuickRead Top Story

    Economic Damage Measurements

    March 19, 2020

    Lost Profits and Loss of Business Value—Differences and Correlation in Terms of the Harmful Impact to Plaintiff’s Claims When a plaintiff suffers, or believes to have suffered, economic damages as a result of a defendant’s actions in a civil matter he/she and their attorney are faced with determining the amount of economic damage suffered. A damages remedy is provided to restore the plaintiff to the same economic position they were in prior to the act. The selection of the appropriate economic damage is a factual one based on various elements including causation and timing. While this may appear relatively straightforward,…

  • Litigation Consulting - QuickRead Top Story

    Lost Profits and Discount Rates

    March 11, 2020

    What Do the Courts Want? Finding the methodology for determining the appropriate discount rate in a lost profits case can be a convoluted journey. The numerator (the lost profits) may be adjusted through modeling. The denominator (the discount rate) may be a risk-free rate, a rate of return on investments, or the rate of return commensurate with generating the lost profits had no wrongful act occurred. And, whether modeling is used to adjust the lost profits will impact the risk premia that affects the discount rate. Experts must review the facts of each assignment and apply an approach which they…

  • Case Law - Litigation Consulting - QuickRead Top Story

    Case Study—Royalties and Lost Profits from Intellectual Property Infringement

    December 18, 2019

    Theory into Practice In our literature and at professional conferences, we often discuss the theoretical aspects of our work. For lost profits this includes discussions on the best method for valuing lost profits (before and after, yard stick, but for) or the optimal discount method (ex ante, ex post, or hybrid). Occasionally, these become academic debates with little impact on our “real life” work. This year, I received an assignment that allowed me to apply some of these theoretical ideas to real life circumstances. This case involved stolen intellectual properties and three separate loss categories: lost royalties, lost profits, and…

  • Litigation Consulting - QuickRead Top Story

    Contractor’s Lost Profits Due to Impaired Surety Bonding Capacity

    September 25, 2019

    Denny Construction, Inc. v. City and County of Denver, Colorado, acting by and through its Board of Water Commissioners This article presents a case analysis wherein a general contractor sued for breach of contract and litigated the owner for breach of co bid due to its impaired bonding capacity, which resulted from defendant’s declaration of default and claim against the contractor’s performance bond. This latter act had a negative impact on the general contractor since the surety company reduced or eliminated the general contractor’s bonding capacity until the litigation was resolved. Therefore, the general contractor was unable to bid on…