Category: Disgorgement & Lost Profits
-
Management’s Projections in Disputes
Financial projections prepared by management often play a central role in valuation and damages analyses. However, their use in litigation and dispute contexts presents a fundamental tension: while management typically possesses the deepest operational insight into a business, its forecasts may also reflect optimism, bias, or litigation-driven incentives. As a result, professional standards, judicial precedent,…
-
The overlap between Lost Profits and Diminution in Value
Economic damages disputes often turn on how loss is defined, measured, and framed. One of the most challenging issues arises when different damage theories appear to quantify the same economic harm from different perspectives. The analysis of lost profits and diminution in value sits at the center of this challenge, requiring careful attention to economic…
-
Alternative Explanations in Lost Profits
In commercial litigation involving lost profits, the evidentiary burden to establish damages rests with the plaintiff. While expert witnesses are not required to prove causation—and are generally permitted to assume liability as a given—the credibility and strength of an expert’s opinion is greatly enhanced by a thorough and thoughtful consideration of causation and its alternatives.…
-
The Basics of Deductible Costs
Please do not accept assertions by opposing counsel and/or their expert witness that 100% of costs are an appropriate deduction from lost profits or disgorgement calculations. Nor should you blindly accept assertions that none of the costs are deductible. While there are circumstances in which deduction of 0% or 100% of costs is appropriate, they…
-
The Basics of the Panduit Test
Establishing a clear framework for assessing damages is essential in patent and intellectual property litigation. One of the most widely recognized methods for determining damages in patent infringement cases is the Panduit Test. The Panduit Test provides a structured approach to evaluate the financial impact of patent infringement. While the Panduit Test was originally created…
-
The Basics of Duty to Mitigate
Many types of commercial litigation include the duty to mitigate. The duty to mitigate is an affirmative duty: a plaintiff must make reasonable efforts to reduce their losses. When a plaintiff does not, then their damages are reduced under the assumption they had taken reasonable efforts to reduce their losses, or they are excluded from…
-
Producing QuickBooks Online is Easy
If opposing counsel is claiming that producing QuickBooks Online accounting records cannot be done, or doing so would be difficult and overly burdensome, it is not. Producing a QuickBooks Online for litigation can be done in a few short minutes. There is no need to make any changes or modifications to the file, the company’s…
-
The Basics of Lost Profits
Lost profits is a form of compensatory damages, and a potential remedy in most commercial litigation cases including breach of contract, business interruption, theft of trade secrets, and most business torts. Lost profits seek to compensate plaintiff with the benefits they were denied due to alleged wrongdoing. At the highest level, lost profits are the difference…
-
Producing QuickBooks Desktop is Easy
If opposing counsel is claiming that producing QuickBooks Desktopaccounting records cannot be done, or doing so would be difficult and overly burdensome, it is not. Producing a QuickBooks Desktop file for litigation can be done in a few short minutes. Copy, paste. There is no need to make any changes or modifications to the file,…