(Text for those without flash or javascript) Fulcrum's professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors and industry specialists Our expertise encompasses damages analysis, lost profit studies, business and intangible asset valuations, appraisals, fraud investigations, statistics, forensic economic analysis, royalty audits, strategic and market assessments, computer forensics, electronic discovery and analysis of computer data.

Firm Overview
Video

Fulcrum Library

Damages Analysis

Library Sections:

Intellectual Property

Federal Circuit Court of Appeals Provides Guidance On Reasonable Royalty Damage Calculations

We summarize why plaintiff’s damages expert was rejected, and provide practical suggestions as what to do.

Largest-Ever Patent Infringement Damages Award

The plaintiff-friendly Eastern District of Texas, known for its "rocket docket", dished up a Texas-sized damages award involving a blockbuster drug.

Post-Judgment Royalty Rates In Patent Infringement Cases Increase

As part of the fallout from the Supreme Court’s eBay decision, trial courts must make separate non-jury findings regarding post-verdict damages when a permanent injunction is not granted. Under this recent case, all other things being equal, the royalty rate will always be higher than what the jury found.

Patent Damage Changes Are Coming

Patent reform has been discussed since 2001. The House of Representatives has now passed the most sweeping changes to patent law in over 50 years, and is waiting for the Senate’s companion bill. We discuss the impact this legislation will have on patent lawsuit damages. Most commentators say the new law favors defendants, but we are not so sure. We explain the changes, and why various technology companies disagree on whether this law is a good idea.

Punitive Damages Now More Difficult In Patent Cases

Overturning a 24-year old precedent, the CAFC creates a new standard for when enhanced patent infringement damages apply. Under the new standard, legal opinions are less important, but will probably be obtained by most clients anyhow.

Patent Damages Case Redefines A “Reasonable Royalty”

The Federal Circuit issued a ruling that significantly changes patent infringement damages. By allowing consideration of product benefits received by the potential customer/infringer, the CAFC upheld a royalty that exceeds the gross sales price of the patented product. Under this ruling, plaintiffs will have much more evidence to argue about, and damages will likely increase.

Punitive Damages

Exxon Valdez Punitive Damages Case Has Broader Implications

In deciding to limit punitive damages to no more than related compensatory damages, the U.S. Supreme Court set forth principles that go beyond maritime law.

California Appellate Court Limits Punitive Damages in a Commercial Setting to a 1:1 Ratio

In a surprising and important ruling affecting the majority of business litigation, California punitive damages were severely limited. This occurred despite underlying case facts of a fiduciary’s theft that would ordinarily deserve greater punishment. The case makes it even more important to address compensatory damages properly.

U.S. Supreme Court Addresses Punitive Damage Limitations

In the largest wrongful death damages award ever assessed against Phillip Morris, the U.S. Supreme Court overturned the punitive damage award because the jury heard argument that the punishment should include victims who were not part of the current case. We summarize what happened. Surprisingly, the Court declined to address the existing guidance involving punitive damages not exceeding a single digit multiple of compensative damages.

California's New Punitive Damage Tax Creates Attorney Conflicts-of-Interest, and Tax Problems for Successful Plaintiffs

In enacting its new punitive damages tax, California failed to consider the plaintiff's likely federal income tax impact. As a result, plaintiffs in certain cases are better off not getting any punitive damage award at all.

California Supreme Court Clarifies Permissible Punitive Damages

In two rulings issued in June 2005, the California Supreme Court interpreted the U.S. Supreme Court guidance on punitive damages. It was the first time in at least two decades that the California Supreme Court addressed punitive damages.

Other Commercial Damages

First Law Signed By Obama Will Increase Employment Discrimination Litigation

By reversing a Supreme Court the statute of limitations ruling, employees are now able to pursue discrimination cases that otherwise would not have been viable. Statistical analysis in these cases will likely be a tool used by both sides.

Litigation Settlement Errors Are Remarkably Common

Interactive Calculators Facilitate Statistical Sampling

Statistical sampling saves considerable money. These online interactive calculators show how sample size changes as other variables are altered.

Ninth Circuit Provides New Cost-Based Rule For Antitrust Cases

Earlier this month, the Court established a new “discount attribution” rule when dealing with bundled sale transactions. The case is important because bundled transactions occur almost everywhere, and the ruling establishes a circuit split. Under the rule, which is more friendly to defendants than prior case law, competitors need to perform a cost-based analysis that assumes all discounts associated with the bundle are attributed to products that are offered by the plaintiff.

Fees Recoverable in Trade Secret Disputes

In the legislative session that just ended, Civil Code 3426.4 was amended to permit recovery of costs by a prevailing party in litigation of claims for trade secret misappropriation when a party acts maliciously or in bad faith. Costs include expert witness fees that are “actually incurred and reasonably necessary”.

Energy Capital Corp Case Provides Important Guidance on Commercial Damages

A 2002 case, Energy Capital Corp. v. United States (302 F.3d 1314; 2002 U.S. App. LEXIS 16447), provides guidance on three issues that frequently arise in calculating damages. .

Federal Circuit Criticizes Ninth Circuit Damages Ruling. Double Recovery Must Be Avoided

In Aero Products vs. Intex Recreation (no. 05-1283, Fed Cir. October 2, 2006), the Court held that damages arising from the same sales is an impermissible double recovery, even if multiple causes of action are involved. The instant case involved both patent and trademark infringement.