3/15/2013· Damages
Proving Damages in Trademark Cases
Proving damages in trademark litigation-typically lost profits or disgorgement of the defendant's profits-generally involves citing the infringer's sales of the infringing product.
By: Dr. Donald M. May, PhD, CPA
Tel: 212-390-0595
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One of the largest employee retirement funds in the country at the time with nearly $1b in assets under management.
The fund managers were alleged to have violated their fiduciary duty to maintain proper diversification in the fund by allowing one particular security to make up more than 25% of fund value and up to over 40% of fund value by mid-2015.
There were also allegations against the retirement fund managers of failure to prudently divest the security when accounting irregularities became publicly known in late 2015.
DMA was brought in to calculate how pension fund investors were harmed by the alleged breach of fiduciary duty in failure to adequately diversify the portfolio and prudently divest a particular security when its accounting irregularities became public.
DMA also assisted the client in engaging Richard Marin, a seasoned portfolio manager who could opine on the proper level of portfolio diversification and the time period when the security should have been divested.
DMA was asked to calculate damages to retirees based on simulated but-for portfolio values assuming the fund managers did not violate their fiduciary duty
DMA simulated fund performance under four alternative portfolio management strategies to calculate but-for performance and fund value had the fund not violated their fiduciary duty.
DMA calculated the value of the portfolio less the value of each but-for simulated portfolio to assess damages for the fund as a whole under each of the four scenarios.
Aggregate damages were calculated to be nearly $300 million under the most accepted scenario.
Damages were then allocated to each retiree based on a month-by-month basis their monthly account balances relative to the value of the fund as a whole.
Damages were calculated as of June 2016, when defendants ceased to manage the pension fund and brought forward to 2020 based on pre-judgment interest.
Using this approach DMA was able to calculate damages for over 400 individual fund investors.
Arbitrators have concluded that DMA’s calculations were rigorous and clearly communicated and accepted the damages calculations for over 90% of investors.
Thus far, almost every retirement fund investor has been able to recover damages which DMA Economics calculated to be nearly $300 million for all retirement account investors.
Donald M. May PhD, CPA, Managing Partner at DMA Economics, LLC, possesses over 30 years of Valuation and Economic Damages experience. He implements a broad range of damage analyses and valuations for clients, including billion-dollar investment funds under SEC investigation as well multi-national firms involved in intellectual property disputes, consumers in product mislabeling cases, and small to mid-sized businesses involved in complex commercial litigation.
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3/15/2013· Damages
Proving Damages in Trademark Cases
Proving damages in trademark litigation-typically lost profits or disgorgement of the defendant's profits-generally involves citing the infringer's sales of the infringing product.
12/27/2019· Damages
Attaining Reasonable Certainty in Economic Damages (Part II of III)
By: Michael Pakter
The purpose of this article—the second of three on this topic—is to provide the reader with an understanding of Chapter 2 (Costs) of the 2018 Practice Aid as well as certain other publications containing a body of knowledge on the best practices for developing “avoided or saved costs,” sometimes referred to by the courts as incremental costs.
3/20/2017· Damages
Use of the Internet and social media has become an increasingly essential element of conducting business in the United States and globally, which in turn raises new issues for calculating damages and performing valuations. With almost every business now using the Internet and social media to conduct business, cases of Internet IP infringement, IP misuse, and defamation have increased and evolved. Before the rise of these new media, cases of infringement and defamation typically occurred in print or on television and were visually obvious.