(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.

Fulcrum Library

Damages Analysis

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Interactive Calculators Facilitate Statistical Sampling

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

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.

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.

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.

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.

Damages Shortcut Causes Reversal Of Enormous Award

The temptation to get just a little bit more was apparently too much to resist. Consequently, a sophisticated plaintiff fails to put on required damages testimony, and entirely loses his eminently collectible $1.6 billion award. The mistakes were basic, yet serve as important reminders. In short, get a proper damages witness, and let the person do his work.

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.

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”.

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.

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.