Calculation of Damages

News & Analysis as of

Contractual Or Tortious Damages: What Is The Difference (And When Does It Matter)?

There are different measures for calculating damages depending on whether the claim is for a contractual or a tortious cause of action. Where both claims are available, a party is free to choose whichever measure produces the...more

LSREF III Wight Ltd v Gateley LLP [2016] EWCA Civ 359

The Court of Appeal has handed down judgment in LSREF III Wight Ltd v. Gateley LLP [2016] EWCA Civ 359, a case which concerned what, if any damages had been caused by solicitors' negligence and whether the claimant had failed...more

Supreme Court Stops Short of Bright-Line Rule Regarding Statistical Evidence in Class Actions

On March 22, the Supreme Court issued its decision in Tyson Foods, Inc. v. Bouaphakeo. For those unfamiliar with the case, Tyson Foods is a Fair Labor Standards Act (FLSA) case that involved an alleged failure to pay...more

SCOTUS OKs Statistics to Establish Class Action Liability with Limits, Leaves Open Uninjured Class Member Question

Plaintiffs can count the first class action decision to be issued by the U.S. Supreme Court since the death of Justice Scalia as a win; although, they did not receive broad authorization to proceed carte blanche, as some had...more

Advertising Law - April 2016 #2

FTC Hits Volkswagen With Suit Over Emissions Ad Campaign - The Federal Trade Commission filed suit against Volkswagen Group of America, charging the automaker with deceiving consumers in violation of Section 5 of the...more

Will Antitrust Cases Relating to Securities Transactions Invite More Objections Because of Their Complexity?

The deadline for parties to object to the settlement in the In re Credit Default Swaps Antitrust Litigation, Master Docket No. 13-MD-2476 (DLC) in the Southern District of New York recently passed on February 29, 2016. Unlike...more

Bottom of the Ninth Disclosure of New Damages Theory Warrants More Discovery

In a recent opinion in a patent infringement case concerning a baseball pitching simulator, Judge Vanessa Bryant in the District of Connecticut issued an order to administratively close the case, pending further damages...more

Yet Another Bite at this Apple: Damages in Design Patent Cases - Samsung Electronics Co., Ltd. v. Apple Inc.

The Supreme Court of the United States has now agreed to review a 2015 decision by the US Court of Appeals for the Federal Circuit regarding the proper measure of damages in cases of design patent infringement. Samsung...more

U.S. Supreme Court Affirms Class Certification Based on “Representative Evidence” of Liability and Damages

On March 22, 2016, the Supreme Court of the United States issued a 6-2 opinion in Tyson Foods, Inc. v. Bouaphakeo, affirming the certification of a class based on the “representative evidence” of a statistical sample used to...more

DOJ Briefing Attempts to Avert Fourth Circuit Ruling on Use of Statistical Sampling in FCA Cases

On March 17, 2016, the U.S. Department of Justice (“DOJ”) filed a brief in an eagerly anticipated case that addresses the use of statistical sampling in FCA cases for the first time at the appellate level. The case is United...more

The Supreme Court Emerges From Its Carbon Freeze on Design Patents

When we last left our story, Jedi combatants Apple and Samsung were circling the Supreme Court imploring it to review their dispute involving design patents—an area of the law that the Court has not touched in over a century....more

U.S. Supreme Court’s Tyson Foods v. Bouaphakeo Opinion Reaffirms The Importance Of Challenging Plaintiff’s Experts In Class...

On March 22, 2016, the United States Supreme Court decided Tyson Foods, Inc. v. Bouaphakeo, et al., No. 14-1146, a class action under Rule 23 of the Federal Rule of Civil Procedure (“Rule 23”) and a collective action under...more

Lessons from the Supreme Court: Do Not Settle for Average, Keep Exceptional Time Records

As we have reported several times before, much litigation has been directed at exposing and litigating the uncertainties posed by the Fair Labor Standards Act (FLSA) in the area of donning (i.e., putting on) and doffing...more

SCOTUS: Statistical or Representative Evidence Can Be Used In Class and Collective Actions

Class and collective action plaintiffs can establish liability through statistical or “representative” evidence, the U.S. Supreme Court ruled in Tyson Foods, Inc. v. Bouaphakeo, released last week. The decision could have...more

Quick Hits: Persuader Rules, Class Action Lawsuits, Prevailing Party, E-mail Phishing

With Opening Day of baseball season nearly upon us, it’s time again to bring back a “Quick Hits” segment to recap a few noteworthy (but not completely post-worthy) employment law items you might have missed recently....more

Supreme Court Says Averages May be Used to Establish Classwide Liability

In its 2011 Dukes decision, the U.S. Supreme Court limited the circumstances under which groups of employees can maintain class action claims relating to their employment. In that case, the Court concluded that Wal-Mart...more

District Court Precludes Plaintiff from Presenting Damage Theories That Were Not Disclosed in Rule 26(a) Disclosures

The plaintiff, Radware, planned to present damages theories in its closing argument seeking more than twice the damages that its retained expert on damages computed. The district court noted that "[w]hile expert testimony is...more

SCOTUS Opens the Door to Representative Evidence in Donning and Doffing Cases

In a decision that comes as a surprise to many observers, the U.S. Supreme Court held this week in Tyson Foods, Inc. v. Bouaphakeo et al. that plaintiffs can use representative evidence in a donning and doffing class or...more

Taking an Evidentiary Approach, the Supreme Court Rules that Employees Can Use Representative Samples to Establish Classwide...

The United States Supreme Court ruled Tuesday that Tyson Foods employees could use representative evidence to establish liability and damages for class certification purposes. The opinion gives the plaintiffs’ class action...more

The Supreme Court - March 2016 #4

The Supreme Court of the United States issued decisions in four cases on March 22, 2016: Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146: Respondents, employees at a pork processing plant of petitioner Tyson Foods, filed a...more

Tyson Foods v. Bouaphakeo: “Representative” Evidence May Be Used in (Some) Class Actions

On March 22, 2016, the United States Supreme Court affirmed the certification of a class of Tyson Foods employees under Rule 23(b)(3) and a collective action under the Fair Labor Standards Act (FLSA). The Court held that...more

Certification by Statistics: U.S. Supreme Court Upholds Use of Statistical Sampling in Tyson Foods Employment Class Action

Yesterday, the U.S. Supreme Court issued a 6-2 decision affirming a $2.9 million judgment against Tyson Foods, Inc. in an employment overtime pay case where statistical sampling was used to establish classwide liability and...more

New U.S. Supreme Court Class Action Decision

On March 22, 2016, the United States Supreme Court ruled 6-2 that employees can potentially rely on admissible statistical sampling data to establish classwide liability in Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146...more

What does Tyson Foods, Inc. v. Bouaphakeo mean for class actions?

The class action plaintiffs’ bar celebrated yesterday’s Supreme Court’s decision in Tyson Foods, Inc. v. Bouaphakeo (pdf), rejecting Tyson’s challenge to class certification. One lawyer called it “a huge David v. Goliath...more

Supreme Court Permits Use of Statistical Evidence to Prove Classwide Liability, but Declines to Adopt Categorical Rule

In Tyson Foods, Inc. v. Bouaphakeo, et al., the United States Supreme Court affirmed a judgment in favor of a class of Tyson employees, holding that averaged statistical analysis or so-called “representative evidence”...more

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