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Overview:

The lost profit damages litigation landscape unceasingly shifts as emerging trends and court rulings continue to reshape the current paradigm. Notably, the economic disruption brought by the COVID-19 pandemic further complicates the calculation of damages, particularly for claims involving breach of contract or business interruption insurance.

Now, more than ever, practitioners need to keep themselves abreast of the latest legal developments to devise up-to-date strategies in bringing out the best in these lawsuits.

The Knowledge Group has assembled a panel of key thought leaders to provide the audience with an in-depth discussion of the best defense strategies against lost profits damages claims. In this LIVE Webcast, speakers will also present the latest trends, recent court rulings, critical issues, and share practical strategies to successfully navigate through today’s evolving legal climate.

Key topics include:

  • Lost Profits Damages: Litigation Trends and Developments
  • COVID-19-Related Cases
  • Calculation of Lost Profits: Overview, Issues and Challenges
  • Best Litigation Practices
  • What Lies Ahead

Learning Objectives:

  • Recognize the various lost profit damages approaches
  • Determine the fundamentals of and important considerations to take in calculating lost profit damages
  • Recognize the implications of COVID-19 in the calculation of lost profit damages

Credit:

Advance Preparation:

Print and review course materials

 

Method of Presentation:

On-demand Webcast (CLE); Group-Internet Based

 

Prerequisite:

General knowledge of commercial litigation

 

Course Code:

149430

 

NASBA Field of Study:

Business Law - Technical

 

NY Category of CLE Credit:

Areas of Professional Practice

 

Total Credits:

1.5 CLE

1.5 CPE (Not eligible for On-demand credit)


How to Claim CLE Credits Per State:

https://knowledgewebcasts.com/how-to-claim-cle-credits-per-state/


CLE State Requirements:

https://knowledgewebcasts.com/cle-state-requirements/

Speaker Panel:

Natalie R. Holden, Attorney
Husch Blackwell LLP

Natalie guides corporate clients through complex litigation, including commercial disputes, corporate constitutional rights and exigencies such as COVID-19.

Natalie is experienced in many phases of complex commercial litigation and has successfully guided clients through forward-thinking strategy, obtaining favorable results for clients in a wide range of disputes. She has represented corporations across a number of industries against claims of fraud, breach of contract, unfair business practices and product liability, always keeping the client’s wishes in mind. She handles all stages of the commercial litigation process, including investigating potential causes of action, developing legal arguments, drafting discovery, preparing and arguing dispositive motions, supervising document review teams and developing appeals research.

Natalie also has experience in governmental litigation, including asserting a wide range of corporate constitutional rights – including free speech, due process and preemption – on behalf of clients. She is well versed in the Federal Freedom of Information Act (FOIA) and state open records laws. Natalie knows the ins and outs of drafting FOIA requests, as well as the appeals process. She obtained a favorable judgment in the U.S. District Court for the District of Columbia in a lawsuit challenging the government’s failure to adequately respond to a FOIA request.

Lowell Pearson, Office Managing Partner
Husch Blackwell LLP

Lowell has more than 30 years of experience navigating the intersection of business and government at both the state and federal levels.

A wide range of clients – including regulated businesses in manufacturing, aviation and healthcare; individual political candidates and political action committees (PACs); and political subdivisions – rely on Lowell’s extensive experience in administrative law; election law and political campaign finance law; as well as government contract and procurement matters. A trusted litigator, he has handled numerous cases in the federal and state courts challenging government action, and has made multiple appearances before the Missouri Supreme Court in employment and constitutional cases.

Clients appreciate Lowell’s deep background within and innate understanding of public policy. Lowell worked in Washington, DC, as a policy advisor to the Judicial Conference of the United States and as counsel to Bob Dole’s 1988 presidential election campaign. He also served as both Missouri’s Deputy Director of Revenue and general counsel to Missouri Governor Matt Blunt. Lowell has been a regular speaker on administrative law, tax and election law issues to groups such as the Associated Industries of Missouri (AIM), the Missouri Chamber of Commerce and Industry, and the Associated General Contractors (AGC) of Missouri. His proven collaborative and relationship-building skills move client goals forward.

Krishnan Ramadas, Associate Director
Berkeley Research Group, LLC

Krishnan Ramadas is a Certified Management Accountant (CMA) with over 15 years of experience in the areas of financial/economic analyses and damages assessment in complex business disputes. He has significant expertise in evaluating lost profits, reasonable royalties, unjust enrichment, and price erosion, among other forms of damages, in a litigation setting. Mr. Ramadas has also assisted clients with pre-litigation licensing strategy and with the monetary aspect of settlement discussions. His primary focus areas include intellectual property matters (such as patent, copyright, and trademark infringement as well as misappropriation of trade secrets lawsuits) and commercial damages matters (for example,  breach of contract cases).

Mr. Ramadas has experience working in a diverse range of industries, with a strong focus on consumer electronics products (such as smartphones, televisions, and computers) as well as pharmaceutical products and medical devices. His additional industry experience includes aerospace, automotive, biometrics, semiconductors, software, and telecommunications.

Mr. Ramadas has been recognized as a damages expert.  He has been retained as a consulting expert to assist in pre-litigation royalty analysis.  In addition, Mr. Ramadas has participated as a damages expert in training workshops for attorneys organized by the National Institute for Trial Advocacy (NITA).  Mr. Ramadas has also helped develop course materials for the American Institute of Certified Public Accountants’ (AICPA) Expert Skills Workshop, and has delivered presentations and authored articles on damages-related topics.

Agenda:

Lowell PearsonOffice Managing Partner

Husch Blackwell LLP

AND

Natalie R. HoldenAttorney

Husch Blackwell LLP

  • General Overview of Lost Profits Damages approaches
    • Before and After: comparison of a company’s performance before the damaging event and after the damaging event
    • Yardstick/Benchmark: look at the company’s lost profits compared to similar companies in the relevant time period
    • But for: what would the profits have been “but for” the damaging act, by looking at economic conditions, capital needs, and capacity
    • Forecast: Look at what the forecasted profits were before the damaging event

Krishnan RamadasAssociate Director

Berkeley Research Group, LLC

  • What are lost profits damages?
    • An economic damages remedy available in certain types of business disputes/litigation.
    • The profits that could have been earned by the plaintiff if the defendant did not engage in the alleged wrongful act (i.e., profits that would have been earned by plaintiff “but-for” defendant’s alleged wrongful conduct).
  • Examples of types of cases (causes of action) where lost profits might be claimed (non-exhaustive list):
    • Intellectual property disputes such as: patent, trademark and copyright infringement.
    • Trade secret misappropriation.
    • Breach of contract.
    • Unfair competition.
    • False advertising.
  • Economics behind calculation of lost profits.
    • How do you calculate lost profits?
      • Lost sales. How do you determine lost sales?
      • What are the costs that need to be incurred to make those lost sales?
    • Methodologies that can be used in determining lost profits.
      • Market share approach. For example, in patent infringement cases, what share of the alleged infringer’s sales could have been made by the plaintiff? Can use plaintiff’s market share in the relevant market.
      • Before and After.
      • Yardstick/Benchmark/Comparable company method.
      • Use of company projections.
  • Some important considerations in calculating lost profits.
    • Causal link to damages, i.e., must show that sales were lost to the alleged wrongful act and not due to other reasons. Consider showing one or two examples.
      • g., Panduit test in patent infringement cases.
    • Must ensure that all relevant costs are accounted for.
    • Did the plaintiff mitigate? That is, did they engage in any other profitable activities or saved costs that they otherwise would not have if they made the claimed lost sales?
  • Apportionment considerations – not needed in patent infringement cases where damages are based upon a Panduit analysis (Mentor Graphics v. EVE-USA).

Lowell PearsonOffice Managing Partner

Husch Blackwell LLP

AND

Natalie R. HoldenAttorney

Husch Blackwell LLP

  • Are lost profits damages recoverable?
    • Breach of Contract
      • Is there a provision limiting the recovery of damages?
      • Are they consequential or special damages?
        • Must demonstrate for certainty the damages were caused by the breach
          • Complicating COVID-19 factor—would the plaintiff have suffered damages anyway due to COVID-19?
        • Must be able to prove the extent of the loss with reasonable certainty?
          • Does COVID-19 complicate things so much that loss cannot be proven with reasonable certainty?
        • Must demonstrate the damages were fairly within the contemplation of the parties
      • Tort Actions
        • Generally barred by the economic loss rule
          • Trends pertaining to this
  • How does the fact that COVID-19 may have decreased expected profits impact damages calculations? If the projections were prepared in 2019, for example, and a business lost profits based on an action unrelated to the pandemic, is that business entitled to a calculation that did not include COVID-19? Or do we have to adjust for the fact that COVID-19 was going to decrease their profits anyway?
  • Similarly, how do increased costs from COVID-19 (I.e. increase sanitization and cleaning) impact the calculation?

Date & Time:

Thursday, July 15, 2021

12:00 pm to 1:30 pm (ET)

Materials:

Download Course Materials

Who Should Attend:

  • Litigation Attorneys
  • Damage Experts
  • General Counsel
  • Forensic Accountants
  • C-Level Executives
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SPEAKERS

Natalie R. HoldenAttorney
Husch Blackwell LLP
Lowell PearsonOffice Managing Partner
Husch Blackwell LLP
Krishnan RamadasAssociate Director
Berkeley Research Group, LLC

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