Proving and Defending Lost Profit and Business Interruption Damages. CLM003 Monday April 28, 2014 2:00 PM - 3:00 PM CCC, 501/502. Lee Wertz is a Partner at Harrison Bettis McFarland LLC whose practice includes civil litigation and insurance matters.
Proving and Defending Lost Profit and Business Interruption Damages
Monday April 28, 2014
2:00 PM - 3:00 PMCCC, 501/502
What are “lost profits”?
Lost profits are damages for the loss of net income to a business.
The claim is for income from lost business activity, less expenses that would have been attributable to that activity.
Value at Event
- Value After the Event
You must prove something that never happened!
“Damages are not recoverable for loss beyond an amount the evidence permits to be established with reasonable certainty.”
BUT. . . . .
Causation is often assumed by the expert.
Quantifying Lost Profits
Basic Economic Research – industry, markets, etc.
Specific PEO Industry Research
Construction & Manufacturing Industry Research (industries served by AstroStaff)
America’s Favorite Chicken Co. v. Samaras
929 S.W.2d 617 (Tex. App. – San Antonio 1996, writ denied)
Brennan’s Inc. v. Dickie Brennan & Company, Inc., 376 F.3d 356 (5th Cir. 2004)
The success of a new and unproven enterprise.
“The focus is on the experience of the persons involved in the enterprise and the nature of the business activity, and the relevant market.”
The enterprise is the “activity” not the entity.
Texas Instruments v. Teletron, 877 S.W.2d at 279
The T-2000 – a voice-prompted programmable thermostat
No sales, no production, not even a prototype
“Teletron’s expectations were at best hopeful, in reality, they were little more than wishful.”
Evidence and Documentation