lost profits in commercial litigation: proving and

Lost Profits in Commercial Litigation:

Proving and Defending DamagesLeveraging Calculation Methodologies, Documentation and Expert Evidence

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TUESDAY, AUGUST 7, 2018

Presenting a live 90-minute webinar with interactive Q&A

Zachary G. Newman, Partner, Hahn & Hessen, New York

Joshua D. Rievman, Partner, Cohen Tauber Spievack & Wagner, New York

B. Lee Wertz, Shareholder, Munsch Hardt Kopf & Harr, Houston

Lee would like to thank Tiffany Harrod of Munsch, Hardt, Kopf and Harr

for her hard work in researching and drafting of this presentation

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Joshua D. Rievman

[email protected]

What is the Purpose of Lost Profits Calculation?

Plaintiff

Determine the Loss Plaintiff Suffered Resulting from Defendant’s Conduct with Reasonable Certainty

Defendant

Refute or at Least Minimize Damage Calculation

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Josh Rievman

What are Lost Profits?

Lost Net Profit:

◦ Lost Revenue

◦ Directly Attributable to Defendant’s Conduct

◦ Net of “Avoided Costs”

◦ Over a Loss Period

Josh Rievman

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Usually the Subject of Expert Testimony

◦ Valuation Experts

◦ Accountants

Fact Witnesses Supporting Expert Testimony

◦ CFO

◦ CEO/General Manager

◦ Outside/Inside Accountant

Josh Rievman

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Plaintiff Business’ Financial Statements

Management Projections and Business Plans

Management interviews/testimony

Past Performance and Budgets

Competitive/Market Analysis

Analyst and Industry Reports

Forecasts re: The Economy/Growth/Availability of Credit/Capital

Geographic/Political Forecasts in Certain Cases

Mitigation Efforts

Josh Rievman

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Four Primary Methods:

Before and After

Yardstick

Lost Market Share

Contract Terms (If Applicable)

Josh Rievman

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Other potential sources of harm must be considered

Were the damages proximately caused by the defendant's conduct?

Are there independent variables that are not related to the defendant’s conduct?

What is happening in similar competitors and similar markets?

Josh Rievman

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Compares plaintiff's profitability before the alleged wrongdoing with its profitability after the wrongdoing

◦ Must establish that historical profits are reasonable basis to estimate profits for future

◦ Must adjust for factors unrelated to defendant’s conduct

Josh Rievman

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Josh Rievman

$0

$20

$40

$60

$80

$100

$120

2000 2002 2004 2006 2008 2010 2012 2014 2016 2018 2020

Lost Profits Illustration

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Not all changes will be the result of the complained of behavior

◦ Business could suffer on its own

Poor management, quality, health scare

◦ Industry as whole could suffer

Consumer Tastes or Habits Shift

◦ Exogenous Event

Flood, fire, attack in area

◦ Economic Event

Recession, credit/liquidity crisis

Josh Rievman

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Comparative Approach:

◦ Rely on actual performance of comparable companies as benchmark for what performance would have been.

If available, the performance of the same business at another location is useful

◦ Important to pick the most comparable companies, identify differences from business in question and apply adjustments

◦ Useful for when there is limited earning history or when company has been driven out of business

Josh Rievman

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May need to make adjustments

No two, three or five business are identical

Examples:

◦ Different quality

◦ Different markets

◦ Different products

◦ Higher growth rates

◦ Greater size

◦ Greater Capitalization

◦ Different geographic area

Josh Rievman

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Model examines market as whole

Based on assumption that Plaintiff would have maintained same market share but for the complained of behavior

Variation examines specific opportunities lost (subject to foreseeability requirement)

Josh Rievman

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Where applicable, where contract established level of business to be done between the parties, this can also be sued in the analysis

Josh Rievman

May be tempting to look to a defendant’s profits or avoided costs in certain cases, such as in cases involving misappropriation of trade secrets.

Many courts, however, find such damages impermissible, because they do not measure a plaintiff’s loss but instead a defendant’s unjust gain.

“This calculation of damages, however, does not consider the effect of the misappropriation on the plaintiff. Because this figure is tied to the defendant’s gains rather than the plaintiff’s losses, it is not a permissible measure of damages.” E.J. Brooks Co. v. Cambridge Security Seals, 2018 N.Y. Slip Op. 03171, 2018 WL 2048724 (N.Y. Court of Appeals) (emphasis in original).

Josh Rievman

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Depends on Expert’s Judgment

◦ Before and After is an internal comparison, good for business with consistent historical results and reliable budgets

◦ Yardstick is useful where there is a comparable peer group of businesses with available public information

◦ Lost Market Share helpful in well-defined and stable market

◦ Analysis of Contract Terms is useful where there is an ongoing contract that establishes level of output/purchase

Josh Rievman

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A good estimate of lost revenue is only a portion of the task

The goal is to determine lost net profits; not lost revenue

How to do this?

Subtract avoided costs

Josh Rievman

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What are avoided costs?

Costs that plaintiff did not/will not incur because of the reduced business

These costs are generally variable costs rather than fixed costs

Josh Rievman

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Fixed costs can be things like rent, license fees, payments on debt

Variable costs can be things like labor costs, cost of production materials

Josh Rievman

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How can we tell what is fixed and what is variable?

◦ One useful method is to “common size” expenses by taking them as percentage of revenue:

If expense as percentage of revenue is the same at all levels of revenue, it is likely fixed;

If expense varies with levels of revenue, it is likely variable.

Some costs can be both:

◦ A restaurant will need some minimum level of food and staff but will need to buy/hire more at higher level of business

◦ Some retailers pay rent in both fixed amounts and as percentage of sales

Josh Rievman

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For How Long do Lost Profits go on?

Until impediment removed

Allow time for business to get back on feet

Expert should examine efforts to mitigate damages

Josh Rievman

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Where loss period continues past the calculation date, need to discount the future lost profits

◦ Use a discount rate which can factor in risk

Risks can include:

◦ Risk that growth would not have been as strong absent the harm

◦ Economic Risk

◦ Political Risk

◦ Disruptive Technology or Business Model Risk

◦ Growth Rate

◦ Another way to address risk in analysis

Josh Rievman

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B. Lee Wertz

[email protected]

Reasonable Certainty Standard applies to:

(1) the proof of fact of damage

(2) the amount of damage

Evidence Needed to Establish the Standard of Proof:

Management Expertise and Experience

Availability of labor

Availability of capital

The Business Plan

Competition and Markets

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Business Records

Historical Financial Statements

◦ Balance Sheets, Profit & Loss Statements

◦ Revenue by Customer Reports

◦ General Ledger

◦ Three to five years prior to the event (annually)

◦ 12 months prior to the alleged event (monthly)

◦ Monthly financial statements since the date of the event to current

Business financial forecasts - Management budgets (New Business)

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Historical Financial Statements

◦ What Form? Depends on the accounting software/ version

Audited

10K or 10Q

Native format (Quick books, Peachtree etc.)

Excel Download (MAS 90/2000, etc.)

Tax Returns for the same period as Financials – Request all the schedules

◦ Use to support financial statements that were produced

◦ Possible differences due to cash versus accrual basis accounting

◦30

Debt and credit documentation - Subpoena third-party banks

Contracts – (customer, equipment, facilities, long term obligations)

Corporate formation documents/ operating capacity limits

Meetings with management

Deposition testimony

Industry trade publications/ professional associations

Federal and government economic data

Public company and competitive resources

Economic/ market / local events

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Qualified, Relevant & Reliable

The Expert – Qualifications / Lack of Independence

The Data – Is there a “Fit” or an Analytical Gap?

The Assumptions – Same

The Methodology – Failure to follow accepted methodologies – i.e. Discount to PV, faulty Yardstick, faulty cost analysis

The Opinions – Oversteps Expertise/ Causation

The Report – Federal Court (failure to comply with Rule 26)

The Disclosure/ Designation – follow the rules!

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Expert must be qualified to testify based on specialized knowledge;

Expert opinions must be relevant to the issues in the case & based upon a reliable foundation;

Expert must have a foundation for his opinions.

GROUNDS FOR EXCLUSION

Not qualified to give opinion;

Testimony and opinions are not reliable;

Testimony is without methodology, technique, or foundation;

Testimony does not provide a sufficient basis for opinions and the underlying facts and data do not support conclusions and opinions;

Testimony is conclusory;

Testimony is nothing more than subjective beliefs.

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17-year trend w/ cases citing Daubert/Kumho Tire.

Financial expert exclusion rate – 51% in 2016.

◦ Only 13% totally excluded from testifying.

◦ Partial exclusion rate has a growing trend.

Reasons for exclusion:

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Second, Fifth and Ninth Circuits see the most challenges to financial experts.

Economists see the highest exclusion rates:

Plaintiff’s experts are challenged twice as much as defense experts, but defense experts have marginally higher exclusion rates.

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"To infer cause, the sciences and the law require that: (1) the cause precedes the effect; (2) covariation exists between the cause and the effect; and (3) potentially influencing forces are controlled and ruled out as alternative explanations for the effect."

Kevin S. Marshall & Kurt J. Beron, Statistics and the Law: Proving Lost Profit, 2 Tex. Wesleyan L. Rev. 467, 474 (1996)

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Washington v. Kellwood Co., 105 F.Supp.3d 293 (S.D.N.Y. 2015)

◦ Plaintiff designed and sold compression sportswear apparel and accessories. Partnered with Defendant for manufacturing and marketing. Defendant terminated its license agreement and Plaintiff sued for future lost profits.

◦ Both parties moved to strike financial experts.

◦ Plaintiff's yardstick methodology compared Sunday Players line to Under Armour line and marketing similarities between the two companies. Yardstick method was found to be reliable.

◦ Defendant used market forecast method and the Court held the method was unduly speculative and unreliable under Daubert.

◦ Defendant solely relied on subjective belief and unsupported speculation.

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Quantum Fitness Corporation v. Cybex International, Inc. –2015 WL 5456995 (S.D.Tex 2015)

◦ Seller of fitness equipment, lost Houston sales rep to competitor

◦ New commercial facilities and residential communities were primary driver for direct sales of equipment

◦ Expert was able to demonstrate this fact with statistical correlation analysis

◦ Then used multi-family building permit data for the market area with a one year lag time (to allow for construction)

◦ Court found that any complaint about use of statistical correlation data went to the weight of the evidence

◦ Also held that use of building permit data had sufficient factual and methodological support.

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Zachary G. Newman

RECENT DEVELOPMENTS IN PROSECUTING AND DEFENDING LOST PROFIT DAMAGE CLAIMS

TUESDAY, AUGUST 7, 2018

ABOUT ZACHARY NEWMAN

▪ Over 25 years experience representing public and private companies,national banking associations, commercial lenders, leasing companies,corporate trustees, and private equity firms in business litigationthroughout the United States.

▪ His experience includes:

▪ Fiduciary Litigation (contested accountings, Prudent Investor Act claims,and breach of fiduciary duty claims).

▪ Banking Litigation (enforcing multi-million dollar credit facilities onbehalf of national and regional banks and institutional and specialtylenders, securing provisional remedies, and defending lender liabilitylitigation).

▪ Commercial Litigation and Complex Judgment Enforcement (contractdisputes, commercial insurance claims, aircraft lease disputes, unfaircompetition and restrictive covenants, and bankruptcy disputes).

DISCLAIMER

This presentation does not provide legal advice or legal representation. It is notintended to provide, and should not be construed as providing, legal, business, orconsulting advice. The content of this presentation does not reflect the positions orviews of the speaker or the firm and the content is solely being provided forhypothetical, theoretical, and educational purposes.

This presentation may not reflect current legal developments, or laws or rules thatmay apply in particular jurisdictions, and should not be relied upon or used as aresource or guide with respect to any information contained herein. Theinformation contained herein is provided merely for informational and educationalpurposes and is not being provided with the intent or expectation that the contentwill be relief upon other than for information and educational purposes.

You should not act, or refrain from acting, based upon this presentation, withoutfirst consulting with and engaging a competent, qualified, and licensed attorney whois authorized to practice law in the jurisdiction or jurisdictions of relevance to you.Mr. Newman and the firm expressly disclaim all responsibility for the accuracy of theinformation contained herein or the applicability to any particular matter orcircumstance.

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• As of last week, there are 586 reported decisions from January 1, 2018 that mention or address lost profit damages.

• Decisions from federal courts in every circuit, 35 state jurisdictions, and one US territory.

• The leading jurisdictions for such decisions are California (41); New York (26); and Texas (34)

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HOW HARD IT IS TO PROVE LOST DAMAGES IN THE COURTROOM

▪ A jury found that Eagle Oil & Gas Co. misappropriated a competitor's trade secret information.

▪ The trial court entered judgment on the jury's verdict.

▪ Eagle appealed and challenged the reliability of the expert testimony supporting the award of lost profits, the construction of the court's charge, and the award of exemplary damages.

Eagle Oil & Gas Co. v. Shale Exploration, LLC, 2018 Tex. App. LEXIS 2779

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THE BRIGHT LIGHTS OF AN APPEAL

▪ As damages, Shale claimed lost profits attributable to (1) mineral leases that it would have acquired but for Eagle's conduct; and (2) increased leasing costs resulting from Eagle's wrongful competition.

▪ The jury found for Shale awarding it $14,300,000 in lost profits, composed of (1) $4,000,000 attributable to the leases that Eagle acquired that Shale otherwise could have acquired and then resold to another party; and (2) $10,300,000 representing the increased cost of acquiring leases due to Eagle's competition.

▪ It also found that Eagle acted with malice and awarded $4,500,000 in exemplary damages.


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BATTLE OF THE EXPERTS

▪ Eagle contended that Shale did not prove that it is entitled to lost profits damages because its expert's testimony failed to demonstrate lost profits with reasonable certainty.

▪ Eagle further contended that the jury's award was lower than the range of lost profits to which Shale's expert testified, and thus a new trial was warranted.


46

REMEMBERING THE BASICS –PJI AND OTHER SOURCES

▪ The standard requires estimates of lost profits to be based on objective facts, figures, or data, from which the amount of the loss can be determined.

▪ Lost profits are unrecoverable if there are too few facts to permit a jury to make a proper calculation.

▪ Estimates also must concern net income—income minus expenses—rather than gross income.

▪ Although a plaintiff cannot recover lost profits that are hypothetical or hopeful, a defendant cannot avoid liability with respect to a claim for lost profits on the ground that the amount cannot be perfectly calculated.


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▪ Eagle asserts that Shale cannot recover lost profits for misappropriation of trade secrets because the damages question related back to the breach of contract claim rather than the misappropriation tort.

▪ Eagle contended that the charge's damages question permitted recovery of damages for breach of contract only, and not misappropriation, because it instructed the jury to award profits that Shale lost due to Eagle's failure to comply with the agreement only.

▪ RESULT: Court rejected argument on the grounds that Eagle itself was obligated to bring the omission to the court’s attention; Eagle’s own proposed instructions had the same elements as the final charge; and that the evidence was there and presented in any event to support the misappropriation award.


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REMEMBER THE BASICS: START WITH THE CONTRACT

▪ Lost profits are not recoverable for a fraudulent inducement claim when they are based on the provisions of an unenforceable contract.

▪ Lost profits is not limited by the terms of the amended teaming agreement, but by the parties' failure to include terms in the amended teaming agreement by which lost profits could be reasonably measured.

▪ PRACTICE TIP: Lost profits calculations often can be based on the contract terms themselves citing to, for example, the number of widgets to be sold and at what prices.

CGI Fed. Inc. v. FCi Fed., Inc., 814 S.E.2d 183Supreme Court of Virginia

June 7, 2018

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DO NOT OVERLOOK THE IMPORTANCE OF DETAILED AND SPECIFIC EVIDENCE

▪ Contract provision limits lost profits damages just to "anticipated profit[s] for incomplete work.”

▪ Steel manufacturer sued for lost profits after its counterparty breached its contract.

▪ When asked about lost business opportunities, the manufacturer testified that he could not remember them "off the cuff" but that it bids on "a tremendous amount of projects weekly.”

▪ It testified to missing several business opportunities, but was able to identify only one by name and could not not recall the amount of NAFCO's lost profits in that project.

▪ It also could not provide a number for the dollar value of damages for lost business opportunities.

N. Ala. Fabricating Co. v. Bedeschi Mid-West Conveyor Co., LLC, 2018 U.S. Dist. LEXIS 80634

United States District Court for the District of KansasMay 14, 2018

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CONTRACT TERMS ARE NOT ALWAYS A SAFE HARBOR

▪ Defendants assert that the parties never contemplated recovery of lost profits because their Contract precludes such recovery.

▪ Article 24 specifically covers suspensions and limits lost profits damages just to "anticipated profit[s] for incomplete work.”

▪ "In all cases, reimbursement to [NAFCO] shall be limited to its actual costs and expenses, without any overhead or anticipated profit for incomplete work."). Defendants also cite Article 25(A) to support their argument against NAFCO's lost profits claim.

▪ But that provision applies merely to termination and precludes liability "for any damages or loss of anticipated profits because of such termination."

▪ The court does not view either provision to prohibit recovery of lost profits entirely. Instead, the Contract precludes lost profits in limited situations, i.e., lost profits for incomplete work because of a suspension and lost profits because of termination.



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AVAILABILITY OF SUMMARY RELIEF?

▪ The corporate witness testified about alleged damages and the basis therefore.

▪ He also testified that he could not provide a specific number for the amount of the lost profits.

▪ He testified that the company had lost business opportunities, but he could name only one of those opportunities and could not recall the amount of the lost profits on that project.

▪ Defendants argued that the testimony failed to establish lost profits and lost business opportunities damages with any reasonable certainty.

▪ Plaintiff replied that the testimony was sufficient and that a declaration was provided providing a more specific calculation of the lost profits and lost business opportunities damages.

▪ Court denied defendant summary judgment.



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ANOTHER EXAMPLE OF TRIPPING BEFORE THE FINISH LINE

▪ $2.01 million for breach of an oral exclusive distributorship agreement.

▪ Applying the correct substantive standard instead of the incorrect one applied by the district court, the damages award could not possibly be sustained.

▪ Standing alone, the company’s testimony, while competent evidence for certain categories in the damages request, was not the best evidence of lost profits, and so could not support the burden to establish future profit losses to a reasonable certainty.

Yujin Robot Co. v. Doe, 2018 U.S. App. LEXIS 20843United States Court of Appeals for the Ninth Circuit

July 26, 2018

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WHY WAS THIS NOT SUFFICIENT?

▪ Unfulfilled or cancelled purchase orders▪ Despite displaying a stack of papers to the jury that

purportedly represented purchase orders, only a single invoice and purchase order from one of four retailers was produced.

▪ No other documentary evidence of any purchase order cancellations. In these circumstances, the uncorroborated testimony of lost purchase orders was not the "best evidence" of the future loss.

▪ Higher standard for new or fledgling businesses▪ No evidence to support its assumptions about

overhead rates▪ Lack of documentary evidence or sufficient testimony

to substantiate projections.

Yujin Robot Co. v. Doe, 2018 U.S. App. LEXIS 20843United States Court of Appeals for the Ninth Circuit

July 26, 2018

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HOW CERTAIN DOES THE PROOF NEED TO BE?

Q. [By Counsel for Ma-Tex] Has -- has Ma-Tex undertaken to try to restore its good will it believes it has lost as a result of Mr. Orbison's conduct?

A. It's going to be very difficult to do so; it's going to take years to do that.

Q. Do you believe that Ma-Tex has actually suffered damage to its good will as a result of Mr. Orbison's conduct?

A. Are you talking about an amount for the good will?

Q. . . . . That is correct.

A. It's $120,000; 10,000 a month.

Q. And for how long? That 10,000 a month is for how long?

A. Twelve months.

Q. And for how much?

A. 120,000 total.

Orbison v. Ma-Tex Rope Co., 2018 Tex. App. LEXIS 4381

Court of Appeals of Texas, Sixth District, TexarkanaJune 15, 2018, Decided

55

THE RULING

▪ The trial court found that, but for Orbison's solicitation on behalf of API, Ma-Tex would have secured the two recertification orders of Halliburton Pinnacle and Arklatex and that it would have made a net profit of $2,321.00 on these orders.

▪ The trial court also found that Orbison's and API's actions in soliciting its customers caused Ma-Tex to lose good will of the value of $120,000.

▪ In addition, the trial court found that Orbison spent at least 10% of his working time between April 11, 2016, and August 12, 2016, assisting API in setting up its recertification division to the detriment of Ma-Tex.



56

THE APPEAL

▪ A plaintiff 'must do more than show they suffered some lost profits.

▪ Merely testifying as to the amount of claimed lost profits without providing any indication of how the lost profits were determined is legally insufficient evidence of lost profits.

▪ Testimony still does not provide this Court with the objective facts, figures, or data from which the amount of lost profits were calculated, nor the method he used to calculate them.



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FUTURE PROFITS

▪ There may be no recovery for loss of future profits when it is uncertain that there would have been any profits at all.

▪ The parties expressly conditioned a subcontract on several contingencies and their negotiations. The final terms of the subcontract were uncertain, and, consequently, any award of lost profits was uncertain.

▪ The parties' failed to include terms in the agreement by which lost profits could be reasonably measured.

CGI Fed. Inc. v. FCi Fed., Inc., 814 S.E.2d 183Supreme Court of Virginia

June 7, 2018

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▪ Plaintiff formed RDS to develop and market a smartphone preloaded with outdoor software, HuntZone, FishZone, RecZone. Plaintiff developed the software and partnered with Defendant for the hardware.

▪ Contrary to the NDA, Trimble developed a competing product with Cabela's with apps called ReconHunt and ReconFish.

▪ Plaintiff sued and a jury awarded $51.3 million in lost profits.

▪ Court determined that the evidence established legal cause of harm, but Plaintiff did not present sufficient evidence of damages.

ANOTHER EXAMPLE: MISSED SHOT

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Recreational Data Servs., Inc. v. Trimble Navigation, Ltd.404 P.3d 120 (Alaska 2017)

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▪ Defendant correctly argued on appeal, "the fact of damages" must be proven by a preponderance of the evidence; "the amount of damages is a separate factual issue, that in the case of lost profits, must be proven to a reasonable certainty…"

▪ “Fact of harm” and “amount of damages” were separate issues.

▪ Plaintiff sufficiently proved harm but not damages amount.

▪ Court determined the jury was properly instructed that Plaintiff could prevail on its claims by proving their elements by a preponderance of the evidence and yet receive no lost-profits damages, if the evidence did not support such an award to a reasonable certainty.

ALASKA SUPREME COURT

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PLAINTIFF PRESENTED NO EXPERT TESTIMONY AS TO DAMAGES

• Plaintiff pled $111 million in damages;

• Presented profit and loss statements from market research data;

• Presented a valuation sketched out on a whiteboard by a Trimble employee after Remington announced its withdrawal;

• No evidence of similar business profits;

• No similar enterprise evidence;

• No expert testimony as to economic and financial data, market surveys and analyses;

• No factual basis, or real-world corroboration from comparable sources to show lost profits with reasonable certainty.


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THANK YOU

ZACHARY G. NEWMANLITIGATION PARTNER

[email protected]

Hahn & Hessen LLP

lost profits in commercial litigation: proving and

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