I. GENERAL OUTLINE (WHAT CAN THEY GET, AND HOW MUCH?) A.

The Remedies Question:

1. Availability (Choices) a) Claim Dependence (e.g. no punitives for breach of K) b) Context Dependence (e.g. timing, culpability, uncertainty, burden) 2. Scope (Bottom Line) a) Money How high? b) Decree or declaration how broad?

B. Where Do Remedies Come From?

1. Entitlement (Legally-Protected Interest) a) Right to Use, exclude others from, sell, keep, or get back a resource b) Resource: any form of tangible or intangible prop, money, services, promised Kual performance, or combination of these 2. Violation a) Deprive: destroy, take, not deliver/pay as promised b) Impair: damage, disrupt, provide deficient/delayed/incomplete promised performance c) Infringe: use w/out permission d) Retain: fail to pay for or return 3. What to do? a) Prevent b) Avoid c) Undo (do-over?) d) Restore e) Compensate harms caused f) Capture benefit received g) Deter h) Punish 4. The Bulls-Eye

C. Remedies Menu

1. Compensatory Damages a) Cost-based (1) General Damages Formulas (2) Reimbursement of actual expenditures to replace (acquire a substitute, repair, or reproduce b) Impact-Based (1) Wasted Expenditures (2) Lost Gains (e.g. lost profits) (3) Other consequences c) Cost Plus Impact (1) Delayed Replacement (2) Inferior Replacement 2. Specific Relief a) Preventative and reparative injunctions b) Specific Performance c) TRO and Prelim Injunctions d) Restitutionary Specific Relief (1) Recission and Specific Restitution (2) Constructive Trust 3. Declaratory Judgment a) Offensive b) Defensive 4. Restitution a) Restitutionary Specific Relief (above) b) Monetary value of benefit received c) Use value of Ps Property d) Consequential Gains (e.g. Disgorgement of profits) 5. Punitive Damages

D. Framing Remedies Issues

1. Plaintiff a) Owner Hatahley b) Seller/Provider (output) c) Buyer/Payer (input) 2.Harms (Damages) and Benefits (Restitution) a) But-for thinking (counterfactual) (1) If we didnt have X, things would have been a lot worse etc. (2) What is Loss - In but/for terms, loss includes how much worse off you are than where you would have been but for the violation (3) b) Basic Causation c) Defining the scope d) Measuring the Consequences 3. Alternatives a) Plaintiffs Mitigation b) Defendants Same thing Different way 4. Market vs. Party-Specific Inquiry 5. Time a) Violation is future possibility, likely to happen, ongoing, over and done, or too long ago b) Ex Ante looking forward from the violation (1) At trial, look at situation back at time of violation (expected profits back then vs. expectation w/out violation c) Ex Post at trial, look at what we know now 6. Culpability a) Defendant b) Plaintiff 7. Substantive Policy behind violated entitlement 8. Process a) Judicial Discretion b) Feasibility and burden on the Ct. c) Uncertainty d) Effect on D

I. COMPENSATORY DAMAGES A. Measures of Property Loss

1.Hatahley (1958) Market Value of Navaho horses

a) Facts

notice. The Dis ct. awarded damages for each horse and uniform amounts for Ps pain + suffering. (2) CoA sent back to different dis judge for more precise award of damages. (3) Ps live in a barter economy, but unique horses can be traded for other animals w/ market value. b) Why CoA remandedquestion is what to do on remand. (1) CoA thought judge wasnt using mkt value, so std of putting P in Rightful Position wasnt met. (2) CoA also says shouldnt have homogenized Ps EMOTIONAL DISTRESS. c) ONE-SATISFACTION RULE: P can only recover for each item of damage once, even if he has multiple legal theories against multiple defendants. (1) PRO TANTO: nonsettling Ps get $-$ credit for settlement toward dmgs (2) PROPORTIONATE FAULT: each P liable for % dmgs matching % fault d) Class Notes (1) Calculating Remedies: (a) Value Comparable Sale at time of taking (Like animals in the immediate vicinity) (b)Problem Specific horses were Navaho-trained market for that? Navahos didnt participate in that market

(1) U.S. rounded up Ps unique horses and made glue without giving Ps proper

(c) Ct. Response You can train the horse you get (not happy w/ that) (2) Hatahleys rule fundamental principle of damages is to restore the injured

party as nearly as possible to position he would have been in but for the wrong is the essence of compensatory damages. (a) Calculated by what is equivalent to PLAINTIFF, not RP or otherwise

2.In re September 11th Litigation

a) Facts
before attacks, (destroyed 4 towers on which PP had net leases) (2) Ps Entitlement Net lease - Lessee is responsible for paying rent and operating expenses of building and property tax and insurance (3) What did Ps Lose? P didnt lose their net leases; lost the SPACE they could have rented out and used to pay off the port authority b) Issues (1) What was the PP asserted entitlement? (didn't own the buildings) (a) Four net leaseholds, protected interests, (2) What did they lose? (a) 99 year net leases, (leases were not destroyed) (3) They didn't lose leases, didn't lose buildings. So what did they lose? (a) Ability to make profit through use of buildings (input in their business) c) D/R (1) PP still had net lease on buildings that were destroyed by negligence (2) Court is valuing the lease ($2.8 billion, what they paid for the lease) (3) Court is valuing replacement cost of the building (a) Market value of towers is destruction, but the PP are not there for the destruction - net leases were not destroyed d) Class Notes (1) Assume PP own the towers (a) Court refers to replacement value/replacement cost (b) Going into the market to buy a substitute property is different from going into the market and buying everything necessary to put together a property like the one I lost (i)Very similar to Hatahlay - reproduction cost (ii) Distinction between replacement cost of buying a substitute and replacement cost of building one like the one you lost (c) Rebuilding b/c this is the one they wanted! That's why they leased it! Value to owner is higher than market value (d)But they use market value, because they can't delve into "value to you" (2) Ct says you can't recover cost of loss rents (similar concept to loss of use in Hatahlay). Formula says they get FMV on the date of loss = $2.8B (3) If you say you suffered loss of use after the date of the loss? (a) Formula stickler: Doesn't matter - formula says you get $2.8 billion (b)Judge in this case: Absurd! If P recovers market value, it necessarily recovers value of lost revenue streams. WTF? Would P still have paid 2.8 billion if they knew their revenue stream would be gone for 10 years? No! (4) COURT IS WRONG - All of these formulas assume IMMEDIATE replacement, and this takes 10 years to replace the building (5) Fair Market Value Willing buyer and a willing seller agree

(1) P companies entered into net leases on 4 of WTC towers less than 2 months

SECTION IICOMPENSATORY DAMAGES I. INTRO A. Remedies See opening outline

B. Measure of Property Loss (The Barge Cases)

1.King Fisher (Sunk Barge replacement value of 8x cost)

a) F: PP bought barge, lost the barge two days later and sought 8x damages for
what he paid for the barge b) D/R: HE WON! WTF. (1) When vessel is lost, usually look to market value at time of loss (2) If no market value look to replacement cost, depreciation, expert testimony, etc.

to the purchaser (4) Market value is established by other peoples needs Not Ps needs (5) Market-based compensation = private eminent domain (not good!) c) Market value v. Value to the owner (VttO) (1) difference b/w mkt value and VttO can exist in completely mkt context 2.Class Notes a) Value of Barge (1) As a barge $30K (2) As an input to a Drydock Business $200K (3) To build another barge $1million (4) Willingness to pay vs. Willingness to accept (a) Econ VttO is minimum willingness to accept not market value (b) Ps willingness to accept was at least $200k b) KingFisher is SO RARE! For the most part, you won't get higher than market value, more than someone is willing to pay. In KingFisher, the market value of the barge he would have needed is $600k - $1m, and he was willing to accept $233k. In most cases, the 's "willing to accept" is higher than the "willing to pay" (market value) so they don't get VttO c) This is why the Victorian home was awarded w/ less than owner would accept; it was market value not value to owner, but why KingFisher was awarded with more than owner paid because market value for that barge at that use was more.

(3) Must look to the Value to the Owner (specific) b/c barge was worth a lot more

3.O'Brien Bros (Sunk Barge Case 2)

a) Summary: Another measure of damages not based on the cost of buying in the market,
glimpse of another way to derive market values for damages purposes b) F: Barge owner in WWII went out-of-pocket to remedy D's wrongful conduct c) D/R: Damage Amt was not established by evidence. (1) 2nd Cir didnt want to grant damages to reimburse what he spent out of pocket (2) Didnt establish mkt value just established repair costs (not enough) (3) What SHOULD they have done? (a) Capitalization of earnings - Start w/ operating receipts of $101/day (b) Find Cost of Repair and compare to Diminished Market Value d) Class Notes: (1) Why is O'Brien different from KingFisher? (a) In KingFisher, they couldn't find the barge (b)In O'Brien, they knew where the barge was and they could bring it up (damaged) (2) O'Brien - similar to WTC, but owner had 2 avenues after the wrong (a) Fix the barge (damages = cost of repair) (b)Sell damaged barge and buy an equivalent barge (damages = diminished market value) (3) Translates to 2 formulas for measuring damages in damaged prop case (a) Cost of repair (b)Diminished market value of property (4) Standard Rule: (a) You get the lesser of Cost of Repair or Diminished Market Value (i) Usually the same amount (b)Totalled Car Cant spend $10k fixing car worth $5k and get $10k (5) P has burden of proving cost (repair or market value)

II.Measures of Transactional Loss: Breach and Fraud A. SUMMARY

1. For measures of transactional loss, have familiar market value formulas a) Measured from date of breach (if breach of K) or date of exchange (if fraud) 2.But, transaction loss if different from property loss a) W/ Property, baseline is status quo ante (restore like it never happened) b) W/ Transactions, people enter K to change status quo, so harm might be a lost benefit (tough to prove) So Measure loss in a forward looking way 3.Peevyhouse Lesser of formula doesnt work as well in a transactional setting a) Allows one party to retrade the deal 4. Materiality Important issue

a) In Fraud, must prove materiality b) Breach can be material, which can allow other party to cease following K c) Partial Breach
(1) Lead to damages that are based on getting a substitute transaction (1) Something was wrong with the Ps performance (2) Damages broken down

B. Breach: Expectancy Damages

1. 2 But For Tests for transactional harm measures of damages a) But for the Breach Expectancy Damages b) But for the K Put P back in original position 2.Under UCC K price Cover price = Damages a) Buyers Cover Remedy (1) If Cover is higher than K price, recover the difference (2) Argument in KGM is that he passed on added cost to another party, so should limit recovery to actual losses (but ct rules the other way theres a formula, dont care what happens down the line) 3.Rule: Cost Plus K (Actual Loss) doesnt limit damages (KGM Harvesting) a) F: Lettuce K Breach; buyer sold on cost plus, so made money b/c of breach b) D/R: Dont limit recovery from actual loss stick to formula c) Covering and Actual Loss: (1) If Seller breaches, buyer can Cover by buying comparable products (a)Recovery = (Cost of Cover) (K price) + Damages (b)OR, Recovery = (Market price) (K price) + Damages (c)Always Add Incidental and Consequential Damages (2) 3 Conditions Must be present to limit recovery to Actual Loss (a) Seller knew buyer had resale K (b) Buyer hasnt shown it will be liable in damages (c) No finding of bad faith on part of seller 4.Expectancy Damage: Limit damages to value of performance, not cost of performance if its INCIDENTAL to the K (Peevyhouse) Mine Cleanup breach; a) Basically lesser of Diminution of Value and Cost of Performance b) Prof hates this case (thinks its wrong)

C. Breach: Reliance Damages

1.Rule: Reliance damages recoverable if lost revenues from failure to deliver product are unknown
(Security Stove) But for the K standard a) F: D didnt deliver furnace; P received reliance damages 2.Reliance Damages: Rest (2nd) of K - But for the K standard a) Put you financially in position as you would be if a K did not exist b) Get expenditures if you cant prove future revenues/profits, UNLESS there would have been any LOSSES on the K (only forward-looking aspect of the rule)

3.Rule: Wasted Expenditures BEFORE K FORMATION w/in contemplation of parties Reliance

Damages (Anglia TV v. Reed) double-booked actor in play a) F: Famous actor (Reed) who broke K to appear in play in England; P sued b) D/R: if expenditures incurred before parties entered into K were reasonably w/in the contemplation of the parties as likely to be wasted if the contract were to be broken, that expenditure is recoverable. (1) When lost profit cant be proved, P can recover reliance damages c) Notes: (1) Takes a different view of Harm (2) Theory of Harm Effect of the Breach = expenditures devoted to K were wasted due to the breach (3) 2 Possibilities (a) Expectency (b) Reliance (PARTIAL EXPECTANCY): But for breach, my expenses would have been recouped (D has to prove they would not have been recouped)

D. Fraud Damages
1. Class Notes

a) Fraud Damages Generally

(1) Focus on fraud inducing exchange b/w parties (assume fraud by seller)

b) 2 Formulas for Fraud Damages

(1) Out of Pocket But for K (Buyers loss Sellers gain on exchange) (2) Benefit of the Bargain But for falsity (value repd Actual value)

c) Expectency Cap should there be a cap on out of pocket expenses?

(1) Yes would be a windfall to P

d) Current Rule: P chooses b/w Out of Pocket vs. Benefit of Bargain

(1) Deterrence - Most cts go with benefit of bargain (no deterrence if only out of
pocket damages are awarded)

(2) No it was fraud, so D shouldnt be able to keep any windfall from

2.Out of Pocket Rule Damages = Actual (fraud-tainted) price Mkt price then 3.Smith v. Bolles (1889) Worthless mining stock Measure of damages = amt lost in fraud, not
amt expected to be gained in value of fraudulent stock 4. Notes on Expectancy in Tort: a) Expectancies in Fraud: Expectancy damages are recoverable in K, not in Tort (1) Rest (2nd) Torts Rule Defrauded person can get Reliance Damages, but also additional damages for benefit gained by D through fraud b) Dura and Impact (Loss Causation) (1) Loss Causation P must prove and plead loss was caused by misrep 5. Benefit of the Bargain Rule Kendrick v. Ryus Fraud mine purchase a) D/R: Damages = Purchase price actual value of prop (1) P Lost more than just the money he spent lost the opportunity to enter a valid bargain, or NOT ENTER INTO AN INVESTMENT AT ALL 6.Rest (2nd) Torts - gives Benefit of Bargain for Fraud Damages

III.Consequential Losses A. What Are Consequential Damages?

1.Generally: Includes everything else that might have been damages to P but must be
Reasonably Forseeable arise naturally from breach or w/in contemplation of parties at time the K was made 2. Class Notes: a) Commercial litigation Consequential Damages is where the money is. b) P-specific (uncertainty burden on ct) c) Impact of not having entitlement or immediate or suitable replacement d) Reliance and Consequential damages are very close cousins 3.Foreseeability: Rest (2nd) K - Damages formula normally follows normal course of events Requires damage to be foreseeable (inability to find a replacement, etc) a) Foreseeable if: (1) Normal course of events (2) Special circumstances D was aware of b) Recovery Can be limited by the Judge

4.Rule: Can recover consequential damages for reasonably foreseeable losses due to breach -

Buck v. Morrow (1893) Rancher kicked off land, gets expenses a) F: rancher kicked off ranch after 2 years found replacement pasture after 5 months sued for expense over 5 months b) D/R: app ct gave special damages on top of trial cts actual damages (1) This is Loss of Use Case (like Hatahlay) Consequential Damages (2) Not always allowed

5.Rule: Foreseeability test applies to type, not amount of damages - FL Power & Light v.
Westinghouse Electric, (1984) Nuclear reactor huge damages a) F: 1980s, Spent nuclear fuel case; builders didnt dispose of fuel properly b) D/R: Theres no way to have foreseen the damages (1) This is the cost of something D promised to do (2) Foreseeability All that matters under Rest is that the kind of loss was foreseeable its not required to foresee the AMOUNT c) Note: Not consequential **Law is slippery on this topic

6.Union Carbide (1986) [See Chart and other outline]

a) Class Notes

(1) F: Buyer broke K in falling market; market-based damages was 120; seller wanted to recover $1.2Mill; (2) Damage suffered b/w two parties to K expectancy damages (called lost profits) are not consequential damages. Its not being suffered outside of bounds of K plus, its foreseeable (3) I: Do we measure damages based on cost of replacing consumer purchases in the market? (4) Another to consider: (a) Additional Consequential Damages - B/c consumer breached, P was liable to Petrostar for not buying from them (it settled, but so what) (b)Incidental Damages Ct called (5) Bottom Line: Whats the difference b/w consequential and non-consequential damages? Theyre usually downstream of the K

IV. Consequential Losses (Continued) A. Formulas versus Consequences

1.Rule: No consequential Damages for failure to pay money even w/ actual notice of
business venture losses unrelated to K Meinrath wanted bonus $$ a) D/R: SJ for D; No consequential Damages (1) Damages for delay payment of money = withholding + interest (period). (2) P could have bargained for those liquidated damages in the K w/ D b) Class Notes (1) Completely outside K, so definitely consequential (2) D had actual notice of consequential damages (3) Ct rejected consequential damages for formula (a)IRRECONCILABLE W/ REST 351 (b) Essentially says forget about foreseeability and rightful possession (c) Ct goes off on process would allow too much evidence in other cases

B. Damages to Crops
1.Wrong Rule: Damage crop consequential damages = value of crop at sale (after maturity)
Decatur v. Young (1980) Ct decides when to measure dmgs a) D/R: Ct allowed to measure damages to crops (time of sale good enough) (1) Made the formula OPTIONAL value in this case was the value to Young after having it, holding it, and selling it in the Spring (which he always did no uncertainty) WRONG!! (Reversed in next case) 2.Right Rule: Damaged crop consequential damages = value of crop at maturity APPLY FORMULA Decatur v. Young, (1981) Measure dmgs when market exists a) D/R: Reversed for D; measure value at time of crop maturity (1) No market for crop when damage occurred must measure damage when a market exists (first value exists at time of crop maturity) (2) Dont care what P did with crop after damage thats speculation b) Prof Correct rule b/c P could have bought 342 bushels from his neighbor, held it, and then resold it for the additional profit he was seeking

3.No Passing on Defense (like in KGM) for illegal overcharge Hanover Shoe, (1968)
Shoemaker anti-trust overcharge treble damages awarded by Clayton Act, even if P Passed damages on to the customers by raising price a) Alleged D monopolized machinery industry in violation of Sherman act b) D/R: Affirmed treble damages for P, Cts rejected this passing-on defense (1) Damages = Amt Paid in Rental Amt of Sale (if D had been willing) (2) If P shows price paid is illegally high and shows amount of overcharge = prima facie case of injury and damage (what happens after is irrellevant) (3) Passing on defense would require a convincing showing of a bunch of unascertainable figures task would be insurmountable. (a) *-shoe buyers unlikely to bring suit antitrust law violators would retain fruits of illegality because no one was available whod bring suit against them (4) Note: situation may be different in a cost-plus contract c) Class Notes

(1) Landmark SCOTUS anti-trust case (2) F: P simply paid too much; (3) In price-fixing case, how do we define injury under the statute? (4) I: How do you define harm of anti-trust (like tort) and whether (like in Meinrath and Young) ct will use a formula to close the books and exclude evidence (a) If Ds are monopolies/co-conspirators, private parties can sue for damages for reason of anti-trust violation (statutory provision overcharge damages) (5) Ds Theory on Measuring Damage (a) Ps had no injury, b/c they passed the cost to consumers (b) Ds WANT CONSEQUENTIAL DAMAGES (to make damages go lower) (6) Cts Reaction (a) Ct didnt care about that said the statute allows for treble damages, so threw up their hands (b) Damages = price of what it was what it should have been (period)

C. Causation
1.Scope of Liability (pp. 106-7)

a) Proximate Cause vs. Cause in Fact

(1) Ex: IHS Cedars Psych ward releasing patient who has a psychotic episode

b) Substantial Factor and its Alternatives

while driving the next day and injures P not liable

(3) 2 Rules proposed (a) 1) Liable for harms resulting from risks that made conduct tortous (b)2) Not liable for harm when tortious aspect of conduct would not generally increase risk of that harm 2.Causation and Scope of Liability: Rest (3rd), Torts: Liability for Physical and Emotional Harm a) 26 Basic But-for Causation first step in getting into damages (1) But-For Cause test does not depend on extent of actors action that led to harm (just ask if harm would have occurred without wrongful conduct) (a) Ex: negligently put straw that breaks camels back, negligent for back b) 29 Extent of harm does not have to be foreseeable (1) King Fisher is extreme (liable for lots of damages for little damage)

(1) Substantial Factor rejected as too confusing by Rest (3rd) (2) Rest (3rd) Def: Cause-in-fact = But-for Cause

3.Rule: Consequential damages allowable if proximate cause of identifiable professional

opportunities (Not sufficient in this case) - Redgrave v. Boston Symphony Orchestra, (1988) Moviestar seller of services, wanting consequential damages for narration K breach Ct ruled No Harm to reputation a) D/R: P may receive consequential damages if proves breach of K proximately caused loss of identifiable professional opportunities (1) P must show facts for jury reasonable to infer P lost wages/ opportunities, that such losses were result of BSOs cancellation rather than result of other factors, and that damages for such losses are capable of being ascertained by referring to some definite std, either market value, established experience or direct inference from known circumstances. (2) Ps evidence wasnt sufficient to support damages greater than $12K, less expenses (other independent factors present) b) Class Notes: (1) Main issue is CAUSATION was it b/c of breach or her political views?

4.Rule: Cant get damages for denied anticipated increase in mkt shares b/c D simply stayed in

business and increased competition - Pueblo Bowl-O-Mat (1977) a) F: D acquired bunch of bowling alleys; D claimed anti-trust b/c they were so big b) I: Are Anti-trust Damages available when sole injury is that competitors continued in business, thereby denying P of anticipated increase in market shares? c) D/R: No, not available; case Dismissed for D (didnt decrease competition) d) Class Notes (1) Anti-Trust Injury Limitation on Damages Created - There was a but-for

cause BUT violation not related to reason they suffered harm not an anti-trust damage (2) Idiot Hunter Example: Idiot Hunter hands child a gun child drops gun on foot and breaks foot. Negligent? (a) Ps Argument: Clearly tortious conduct but-for cause. (b)Ds Argument: Handing child gun did not create risk that led to harm (3) 29 n. (d) Harm different from harms risked by tortious conduct

5.Rule: Must be a direct Victim of RICO to get damages - Anza (2006) Indirect victim, such as
investor after NY City relied on false info given by D, cant recover damages are too remote to calculate (no proximate cause) a) F: D didnt charge NY sales tax to customers; NY relied on fraudulent tax returns. P competitor claimed was suffering b/c D was taking competition b) D/R: NY was victim, not P (even though P harmed, no prox. cause) (1) Directness Test Prices themselves were not illegal so (a) had to make multiple steps to get to damage: (i)Fraud to NY b/c no tax Lower Prices Take customers from P (b)Other Factors were affecting Lower Prices and Ideals lost sales c) Dissent no risk of double-recovery Ps damages are not indirect

D. Quantification
1.Rule: Compensatory damages ok under anti-trust - Bigelow (1946) Movie release date
conspiracy Awarded lost profits even though not exact a) F: Conspiracy among film companies re: release dates to preferred theaters b) D/R: Reversed for P Dont have to be exact when calculating damages (1) 2 Possible Methods for Calculating Damages proposed by P: (a) Yardstick Method Compare earnings of Ps theater to competitor (i)Problem here yardstick was a beneficiary of the conspiracy. Want to ISOLATE effect of conspiracy (b)Before and After Method showed a drop-off of profits for 5 years after conspiracy (method adopoted by trial ct) (i)Same method used in Hatahley (ii) Also gives real world data (different context): Ps own performance (2) Imprecise verdict for P ok so long as jury made a "just and reasonable estimate of damage based on relevant data". c) Class Notes (1) Issue = Proof of Amount of Damages (a) Problem uncertain (all hypothetical and counter-factual) (b) Methods (i)Ex Post: What P would have experienced over time (ii) Ex Ante: What prospects would P have but for the act (2) Test/Standard of Proof for Anti-Trust Damages (said CoA too strict) (a) Jury cannot base the verdict on Speculation and Conjecture (b)P must provide evidence for Just and Reasonable Estimate (3) Other factor P started showing double features so ct doesnt have a noviolations period in the real world to make a basis for judgment (a) Response Risk falls on wrongdoer for uncertainty of amt of harm (b)Why? More extensive (longer-running) wrong would benefit from creating a lot more uncertainty (4) TIP: Keep But-for conduct as close to wrongful conduct as possible.

d) Requirement of Reasonable Certainty

(1) Uncertainty ok, but requires reasonable certainty (?) (2) Lack of proof 2 rules of looking at risk of uncertainty (inconsistent?) (a) Ds must bear the risk of uncertainty in the AMOUNT of damages (b)However, Ps must prove w/ reasonable certainty the CONSEQUENTIAL damages and they cant base it on speculation (3) Failure of Proof Glendale (1999)- Bank proved lost profits when US reneged on accounting fiction K, but ct held they couldnt prove amount, so awarded no consequential damages (4) Success of Proof Brinks (1983) Meter collection company workers stole

change collection went up after switched companies; sued original company; consequential damages awarded based on evidence and expert witness, even though lots of other factors present (5) K vs. Tort Standards of Proof Glendale was K, Brinks was Tort standard of proof usually higher in K e) Notes on Litigating Commercial Damages (1) Going-concern value of lost profits (a) Depending on the method, it can yield significantly different damages values in the same case b/c the harm changes the future! (ex: 9/11) (b)Ex Ante: If corp lost customer, look @ value before/after, note change (c) Ex Post: look at all data after the wrong to assess damage over time. (d)9/11 Case Ps want Ex Ante, but Ds want Ex Post (not always true) (e) Discounting Hindsight adjustment; (i)Note: Doesnt work well w/ multiple harms over long period (a) Economists hate Ex Post b/c theyll say P DIDNT TAKE THE RISK for the business AND P would not HAVE to sue if D actually SAVED them a lot of money (f) Out of Business Rule: If P is OUT OF BUSINESS, some cts dont allow ex-post must be Ex Ante (including in TX)

2.Energy Capital (2002) Gvt breach on accounting fiction

a) F: P was allowed to lend out money by Gvt (D) under affordable housing legislation
(AHELP) GVT reneged, although P didnt issue any loans. However, there had been over 100 applications for loans under program. b) PH: Trial Ct awarded $10Mill lost profits using risk-free discount rate c) I: Were damages calculated correctly? (1) (1) What discounting date to use (date of judgment or breach)? (2) (2) Use risk-free discount rate, or risk-adjusted discount rate? d) D/R: Remanded for P recalculate damages (1) (1) use date of BREACH for discount/damages calculation (2) (2) Should use risk-adjusted rate e) Class Notes (1) Gvt was giving an input in form of lifting reg restriction on lending (2) Direct Modeling Consequential damages case damages downstream (3) Formula = look at date of the breach this case was over course of K (a) Start discounting at date of judgement (ex post) or date of wrong (ex ante) look for biggest value. In this case, P wanted to go ex post, b/c the corp lost money before judgment (4) Lost profits use risk-adjusted rate (higher rate for riskier businesses)

3.Celebrity Cruises (2007) Legionnaires disease on cruise ship

a) F: Faulty filters; P sought lost profits and lost enterprise value in sale of line b) D/R: Yardstick method approved (errors and all)

(1) Lost Profits Case 3 types of evidence (a) Stigmatization of P in market (b) Perceived effect on bookings (c) Expert testimony quantifying lost profits (i)Difference b/w Earnings (EBITDA) they could have reasonably expected, and what they actually got (d) **Used Yardstick Method w/ 3 comparables** (2) Lost Enterprise Case Projected cash-flow had outbreak not occurred (3) Ct says yardsticks help prove causation

E. Mitigation
1. Class Notes a) Expectation Ps will go to market to find suitable replacement b) Question becomes Has P properly minimized its loss? (1) Alternatives may have been there because of the breach; or (2) Alternatives may have always been there c) Ds failure to mitigate; or P being unable to prove causation of the loss; Unclear Conceptual boundary (1) Ds argument may be to prove a lack of causation (Ps failure to mitigate =

intervening cause after the wrong) (2) Hathaley Determined it was a causation case, but Gvt could have argued failure to mitigate by not buying more horses for 5 years d) Cost of Mitigation = type of damages recoverable (must be reasonable)

2.Failure to Mitigate Rule: Money Market not sufficient mitigation for experienced investor -

Prusky (2008) Market Timing traders cant swap to money market a) F: Investment advisors specializing in market-timing trades (not available elsewhere b/c almost illegal); D breached K and wouldnt allow trades, P mitigated by putting money from mutual funds into money market account b) D/R: Mitigation was NOT PROPER Should have used alternative method of performing trades w/out market timing ($100K in damages) (1) Mitigation Affirmative Defense; to overcome, D must show: (a) What P SHOULD have done (b) That those actions would have reduced damages (c) Amount by which damages would have been reduced (2) Followed Fishman NBA purchase Case cant use 3-month treasury rate as next best alternative to risky equity invest in NBA team (3) An experienced investor would not be content leaving $7Mill in a money market account for multiple years (not next-best alternative) (4) Ex-post reasoning is required, unfortunately c) Concurrence Judicial ruling not clearly erroneous this was not a de novo ruling. However, Ps actions were reasonable (1) Law doesnt require next-best alternative just reasonable alt d) Class Notes (1) Ds but-for world Analyze via but-for failure to mitigate (a) Decreases, but does not eliminate damages (unless immediate equivalent replacement for what was lost) (2) P creates uncertainty, but is not a wrongdoer, so D must prove (3) Ex-Ante and Ex-Post in Mitigation (a) Ps Claim of Damages (Ex Post) diff b/w money market amt and hypo value of accts if allowed to continue trading (b)Damages Calculation vs. Decision to Mitigate Use info available at trial for damages HOWEVER, decision to mitigate is made Ex-Ante

3.Rule: Once P proves damages, burden in proving amount of damages relaxed Pierce v.

Ramsey Winch (1985) Winch resale Price-fixing; Mitigation Reasonable a) F: Winch resaler bought in bulk and sold cheap; other sellers complained; D terminated K; P sold different winches, changed marketing strategies to mitigate b) D/R: Mitigation reasonable; affirm for P w/ treble damages c) Class Notes (1) Consequential Damages replacement was not as good as entitled to (2) After Breach, profits went up, but would have been doing a LOT better

V. Prejudgment Interest (pp. 193-200)

A. Interest on Past Damages
1.Rule: Prejudgment interest can be awarded despite good-faith dispute + mutual fault Milwaukee v. Natl Gypsum (1995) - Sunken ship; both at fault, a) F: Dis Ct found both parties negligent, apportioned liability primarily to D, and entered a partial judgment for stipulated amount of D's damages, excluding prejudgment interest. CoA held mutual fault cant deny prejudgment interest. b) I: Does fact that P's loss primarily attributable to own negligence, together with the existence of a genuine dispute over liability, justify departure from the general rule that prejudgment interest should be awarded in maritime collision cases? c) D/R: No, affirm for P; prejudgment interest awarded (1) Calculating the amount of the loss for which the relatively innocent party is responsible denial of prejudgment interest on basis of mutual fault would unfairly penalize a party twice for same mistake. 2. Notes on Interest a) Class Notes (1) No settled law re: prejudgment interest in country (a) No underlying rationale

(b) No method of calculating which rate

(2) Purpose of Prejudgment interest: Compensatory, not punish/award

(a) Compensation w/in litigation itself for delay of compensation (b)Also used as incentive to D to hurry up the litigation (3) What should prejudgment interest be doing pending the judgment? (4) Formula: Legal Rate of Interest (avoids risk and party-specific stuff) (a) Avoids party-specific formula (b) Avoids any risk of coming up w/ interest rate (5) What do economists recommend to find prejudgement interest? (a)Economists Agree on the following: (i) Choosing arbitrary legal rate is not appropriate (ii) Interest rate should be compounded (iii) Should be some recognition of risk when you set interest rate (b) 3 Different Camps among economists (i)Ascertainability Argument - Interest rate is P borrowing cost (a) Because it doesnt have Ds money right away, itll have to borrow more or pay down more debt than it otherwise would (b) Problem: sounds like impact (ii) Involuntary Creditor View Interest rate is Ds borrowing cost P is an involuntary creditor of D (a) Majority View (b) The way the money was actually used was that it was in Ds pocket instead of P, so that amt of money is owed (and has been owed) since time of injury (iii) Risk-Free Rate (a) Most dont follow this (b) Cant use Ps borrowing cost, b/c D didnt cause that

B. Case Studies
1. 9/11 Litigation a) Class Notes (1) Consequential Damages Injury affect their output market (selling/renting commercial space) (a) $3.9 Billion + $8.4 Billion (cost to replace very limited recovery) (i)Gets put into formula: lesser-of mkt value or cost to reproduce (ii) P treats cost to rebuild (and lost profits) as cost of business (2) Status Conference (a) P wants DAMAGES for loss, not value (b)Judge responds that no, this is for the loss in Value of the lease (i) If you had walked away from the lease, you would have just lost the value of the lease, right? (ii) Prof: Thinks this is wrong shouldnt apply this way (3) Ps Opposition to Ds MSJ (a) Specialty Property Argument - Ps made argument that theyre entitled to cost to rebuild b/c its specialty property (b)Prof Thinks this is a mistake (c) If prop is damaged and therefore you cant rent it out, you can collect for loss of use BUT if the building is totally destroyed, you get Market Value and nothing else (criticized Sandoro case) b) *****Look at full class notes for (bad) 9/11 case study notes******

2.Fantastic Yardstick Case **********SEE FULL NOTES********

SECTION IIIINJUNCTIONS AND SPECIFIC PERFORMANCE I. A.Preventive and Reparative Injunctions: Timing and Scope A. Intro (Specific Relief)
1.4 Differences b/w Damages and Specific Relief

a) Real Time When asking ct for specific relief, need ct to act in real time (unlike
damages, which can litigate at your leisure (comparatively))

(1) Ripeness of Case Matters Shelf life is limited

b) Real World Ct is being asked to intervene in real world

(1) Regulate Ds conduct (Cts authority is on the line) (2) Lots of process concerns (Cts are scared to use it)

c) Maybe Yes, Maybe No Ct has discretion to grant specific relief d) No Numbers Dont have to quantify/value anything (necessarily)
(2) As close to rightful position bullseye as possible

(a) Not default remedy (damages is) under abuse of discretion std

(1) Ex: VttO doesnt have to be calculated (can protect value literally)

B. Scope of Injunctions
1. Preventing Wrongful Acts a) GITMO Rule: No injunction if evidence of future injury is based on remote and speculative evidence - Almurbati (2005) - transferring detainees (1) F: Detainees fear being sent elsewhere based on credible news repts (2) D/R: Rule for D; No injunction (Fear of transfer remote/speculative) (a) Uncertainty about future no relief (3) Notes (a) Injunctions, Ripeness, and Rightful Position (i)Ripeness Rule Must show threat of injury is ripe (ii) Violation = Contempt in Ct (criminal or civil) (b) Ds Intent (i)Must show D has specific intent (Lyons case police choking; P couldnt prove cop would do it again SCOTUS said no injunction) (c) Scope of Injunctions to Prevent Wrongful Acts (i)IP Examples Injunction must be limited to devices previously admitted or adjudged to infringe, and to other devices which are no more than colorably different and clearly are infringements (4) Ripeness - Class Notes (a)Type of evidence that Ps can use to support claim of ripeness (i)Announced Intention to commit act (ii) Previous Conduct (or current conduct) (iii) Evidence of planning to commit act (press) (iv) Necessary preparations (their behavior would be a complete waste of time if they were not going to do X) (v) Response of D that there is no prohibition on expected conduct (vi) Imminence (not required) (vii) Propensity (Prof prefers Probability of future act occuring) (viii) Incentive of D (b) Type of evidence Ds can use to rebut claims (i)Lack of imminence (other necessary steps required first) (c) How probable does it have to be? More than mere possibility, but otherwise no numbers assigned to it ct discretion (d)Severity of harm Shouldnt matter (logically), but it does 2. Preventing Lawful Acts that might have Wrongful Consequences a) Prophylactic Injunctions (1) Limited by 2 principles: (a) Must be aimed at a legally cognizable harm idd in the case (b)Factual connection b/w prophylactic order and legally relevant harm must be sufficiently close to justify inclusion of conduct in cts order 3. Repairing Consequences of Past Wrongful Conduct a) Reparative Damages Rule: Cannot receive damages for past wrong and reparative injunction to fix the wrong if causes Double Recovery - Forster v. Boss (1996) (295) Lake property claim (breach of K/fraud already occurred) (1) F: Ps bought property on lake from Ds. Ds told them they could get a boat permit, which turned out to be false. Ds also told P they would remove swim dock, but didnt. Ps brought suit for fraud and breach of K. (2) PH: Compensatory & punitive damages for boat dock fraud, and compensatory damages for swim dock. Ps also got permanent injunctions ordering Ds to remove swim dock, and issued a permit (3) D/R: Reverse for D Damages + Injunction = double-recovery

(4) RULE - P can get damages and an injunction if no double recovery (5) Concurrence: Ps already elected the injunction as their remedy (shouldnt be
able to give up the injunction) (6) Notes (a) Reparative just prevents some of the harm from past violation (b)Reparative injunction appropriate when P will suffer additional harm in future, and when its possible to prevent additional harm from happening

b) How much Harm Should Injunctions Prevent? -- Undo?

(1) IP Preventative Injunction Should only issue injunction for appropriate
period after D used trade secret - Winston v. MN Mining (1965) (300) 2-yr injunction from selling product they built using illegally-optained info (delay puts D in position of other competitors) (a) D/R Rule for P; 2-yr injunction against using product (i) Cts will not issue damages where P has not been damaged and D has not been unjustly enriched (ii) Appropriate Injunction period is that which competitors would require after public disclosure to develop a competitive machine (b)Applied Here (i)Permanent injunction inappropriate public interest to allow R&D (ii) 2 year injunction deprives D of benefit from unfair advantage (iii) No money damages as Ds didnt sell anything, so no injury, evidence of possible future profits were speculative (c)Notes (i)Is this Reparative or a Preventative Depends on how you characterize the wrong (a) If wrong = stealing trade secrets injunction is reparative (b) If wrong = selling prods made w/ TS preventative (d) Class Notes (i)Ct is in a position in Real Time to do something about Ps property. (ii) This is for a Permanent Injunction (not perpetual)

c) Rule: Permanent prophylactic Injunctions allowed if recurrence of harm likely, and Ds

have acted in serious bad faith - Bailey v. Proctor (1947) (276) Liquidate fraud-filled corp, even after solvency (Counterpoint to Winston) (1) D/R: Yes, Ct liquidates, everyone gets money back, and trust is no more (2) RULES (a) Ct of equity has inherent power (jurisdiction) to appoint a receiver to liquidate corp/investment trust where fraud, mismanagement or abuse of trust is present (whether or not insolvent) (b) Liquidation, being a drastic remedy, will only be decreed in an extraordinary case or where special and peculiar circumstances exist (3) Applied Here (a) trust was insolvent and was gross abuse of trust justified jurisdiction (b)Strong likelihood of similar events occurring again (solvency irrelevant) (4) Notes: (a) receivership is an equitable remedy (5) Class Notes: (a) This is a big example of Equitable Discretion Went beyond scope (b)Ct cant just fix the problem like in Winston. Cant make sure capital structure doesnt create excessive risk. Could only liquidate (lawful) trust

II.B.Irreparable Injury A. Injunctions

1. Class Notes a) Availability of Specific Relief (1) Necessity for even probable future conduct Is it necessary to enjoin conduct when P could wait to see what happens, etc (and then sue for damags, etc). (2) Regulates that choice Could be read to prefer damages after the fact

2.RULE - injunction necessary when its the only thing to keep P in rightful position (ct wont grant

equitable remedy if legal remedy would be adequate) - Pardee v. Camden Lumber (1911) (375) Injunction necessary to prevent D from cutting down Ps trees legal remedy insufficient (no need to show insolvency) a) Applied Here: Injunctions dont require D to be insolvent; P has right to control his property if P can demonstrate uniqueness of real property such that money damages would be inadequate, then injunction is ok

(1) Timber has become a scarce resource, moreover, once timber is turned into lumber, cant be converted back to normal state

b) Class Notes:
damaged prop w/ adequate or just as good stuff (think stolen horse) (a) Law seems to turn on quality of replacement goods Replacement must be very thing lost, but how similar do they need to be? (2) Another Approach (Pro-injunction, minority): When mkt value of good is less than its worth to P, mkt-based damages are insufficient (a) Suggests you can get an injunction unless you can immediately get an equivalent replacement after damage Notes: (1) Why do we have an irreparable injury rule? (a) Injunctions have greater burden on ct to enforce over time (b)injunctions impose greater intrusion over Ds property requires a particular type of conduct (damages allow D to continue but pay) (c) sometimes timing is an issue, when preventing something (2) Laycock argues that irreparable injury rule is dead: (a) Def of adequacy for legal remedies: legal remedy is adequate only if is as complete, practical and efficient as equitable so always gives way to equitable relief (legal remedies almost never meet adequacy standard)

(1) Adequate Remedy if damages can be used to substantially replace

c)

3. Reasons for Irreparable Injury Rule a) Modern Justifications: Burdens on Ct, Ds Liberty, Jury Trial, Timing b) Econ Analysis: Preference for voluntary transactions, transaction costs, Prop rights?, Efficient theft?

4.RULE Where there is in fact harm, the fact that its hard to calculate or establish economic harm
supports proposition that damages would be inadequate, thus equitable relief is better Continental v. Intra Brokers (1994) (387) D sold discount tix to travel agents for resale to customers; injunction ok not just b/c harm would be difficult to calc D was damaging Ps power/control of business a) Class Notes: (1) Ct says P must argue damages are beyond calculation to get injunction (2) Problem if you argue this and lose, throwing damages claim out

5.RULE - Specific performance warranted when legal remedy would be inadequate inadequacy is
a case-by-case analysis - Campbell Soup v. Wentz (1948) (391) Sale of Chantenay carrots; Cant just breach in rising market for specific goods a) Class Notes: (1) Other carrots were not equivalent b/c they no uniform appearance (2) W/out injunction, would have had to sue for consequential damages re: lost profits and harm to the brand itself. No more efficient breach b) Notes: (1) The Cover Principle inability to cover is strong evidence of other proper circumstances in which SP is appropriate (2) Specific performance for ordinary goods - Allowed when: (a) there is a scarcity (b) time constraints (c) or the size of the order

6.Rule: Specific Performance is properly denied where damages are adequate remedy and

equitable relief would impose disproportionate burden on D Van Wagner (1986)(402)Billboard lease Efficient breachNo SP (damages sufficient) a) D/R: Limit to damages; No SP b/c not unique enough, SP would be inequitable (1) Value of the unique qualities could be fixed with reasonable certainty

b) Notes

and without a high risk of undercompensating P

(1) Old rule: damages arent adequate remedies for loss of real estate (2) Right to use side of building for billboard is a moderate interest but good

c) Prof thinks this goes too far sometimes damages are more adequate than specific
relief! (at least compared to Pardee)

example of proposition that every real estate parcel is unique

a) Irreparable Injury Summary

(1) 2 Pieces: (a) Damages are an adequate remedy and specific relief must be denied if: (i)(1) Damages will be recoverable, AND (a) Not speculative (b) Pass standard of proof (ii) (2) Damages must be collectible from this D (iii) (3) (Hard Part) Good Enough Replacement (a) Damages claim will fund or reimburse the cost of getting a good enough Replacement (i) How immediate? How close? (ii) PURE Consequential damages are usually here (b)Damages are inadequate and SP will be allowed if (i)Not Recoverable, OR (ii) Not Collectible (iii) Then Not Good enough 7. Class Notes Consequential Damages Generally a) Consequential damages are not cost of getting (eg. FL Power and Light) b) Effect of not having entitlement, or immediate and equivalent replacement (1) Replacement can be delayed, and P can suffer loss of intermediate use, and replacement may be detrimental to P in long term (all consequential) (2) May be able to claim damages for cost of getting replacement, or cost of maintaining the replaced good c) If there is no replacement, loss is entirely consequential d) Direct Damages Not consequential (1) Reliance Damages for Breach of K measure actual effect of breach (2) Sellers lost gain (cant resell) like measuring actual effect of breach e) Consequential Damages Key actual effect of P in dealings w/ 3rd parties (1) Typical settings: (a) Owner is deprived of input and business, hurts downstream market (i)(WTC, Buck, Bigalow, Pierce, etc.) (b)Input is provided that is somehow deficient Buyer suffers damages in downstream market (Celebrity Cruiselines; rejected in Young). (c) Sellers output market disrupted by conduct (Anza, Yardstick Case) (2) Atypical Settings (a) Buyers breach causes disruption in sellers downstream market (b)Seller liable to supplier b/c buyer wont take delivery (Union Carbide) f) But-For logic: would P be better off but for violation, then, if D can show there really was no impact no harm (Redgrave) g) Discounting Present Value (1) How to derive that number: (a) Use discount rate applied to future numbers (represents rate of return) (b) Takes into account inflation and risk

B. Burdens on D (Whitlock) or the Court (Argyll)

1. Class Notes a) Now were protecting wrongdoers b) What sort of burdens? Inconvenience of complying with court decree c) 3 types of burdens: (1) Out of pocket expense of honoring entitlement to P (very large vs. what P will get out of performance) (Whitlock) (2) Consequential losses if have to comply w/ specific relief (Argyll) (3) Loss of Consequential Gains if allowed to breach (Van Wagner)

d) Holding Out Dark side of SP litigation in the case of deliberate breach

(1) Bilateral Monopoly - Exploit Ds willingness to pay (laches) to get more than
equitable entitlement (D would pay more than P would accept)

e) Strange Rule from Van Wagner: Enormously Profitable Wrong will be successful, but
a moderately profitable wrong will not be successful (1) Odd case b/c D deliberately violated (shouldnt be able to invoke undue hardship, but does, citing a disparity) (2) Private Eminent Domain (ct says go ahead and break K) (3) Escape Hatch if sufficiently culpable, no undue hardship defense.

2.Rule (Burden on D): Intentional wrongdoers cant use undue hardship defense - Whitlock
(1999) Intentional encroachment injunction (no balancing hardship) a) D/R: Reversed for P Injunction granted (1) Normal Rule: If Ds burden is high and Ps benefit is low damages (2) Distinction: if encroachment is intentional, injunction may issue w/out balancing hardships. (a) "One who knows of a claim to land that he proposes to use as his own proceeds at his peril if he goes forward in the face of protest or warnings from the owner and places a structure on the land." b) Note: Courts will consider: (1) Undue burden on the D (2) Ds culpability (and intent) (3) Relationship b/w parties (4) Ps diligence (laches defense?) c) If ct denies injunction because of undue hardship, usually give damages.

3.Rule (Burden on Ct): Usually no specific performance for D to carry on a business - Argyll

(1997) (416) No SP to require D to keep supermarket open (Burden on Ct to monitor D after the order) a) D/R: No SP, Public Interest damages end litigation (1) Public interest against requiring someone to operate a business at loss undue burden on D (2) Burden on ct to have to supervise performance for so many years (3) waste of resources and prolongs the battle (4) Damages brings litigation to an end

III. (D) Preliminary Injunctions

A. The Substantive Standards for Preliminary Relief

1. Class Notes a) Before trial P may or may not win on merits, and its an interim remedy b) Should be harder to get this b/c (1) Risk of error is higher (2) No complete record (3) Have to decide quickly (4) D has not been adjudicated a breacher/wrongdoer c) Aggressive SP Potentially a problem for system and D d) 4-factor balancing test (see below) (1) Is irreparable injury the same as in permanent injunction context? (2) No If damages are available in case of brief, ct will typically not act (3) In Winter, balance of equities favors P; however, its not the same analysis of a permanent injunction analysis (bigger hurdle) e) Preliminary Injunction Bonds Coyne covers any harm that D suffers b/c of preliminary injunction if it was wrongfully enjoined (1) D has to win on the merits (2) Even if D does win, D has to prove he was actually harmed by injunction (3) Bond is surety for P, so after the fact, D can go after the bond (a) D may be able to collect more than bond

2.Rule: Preliminary injunction requires 4-factor balancing Test - Winter (2008) (440) No
injunction for Possible Harm due to naval excercises must be likely a) D/R: Rule for D; No injunction issued

b) RULE - Preliminary injunction 4-factors P must show (balancing Test):

(1) Likelihood of Ps success on merits (2) Possibility of irreparable injury to P if preliminary relief not granted (3) Balance of hardships favoring P (4) Advancement of public interest

3. Notes on Preliminary Relief a) basic function of preliminary injunction is to preserve the status quo b) Risk of harm must be sufficiently irreparable to override the risk of error. (1) Leubsdorf-Posner Test: Grant Prelim relief IF: P x Hp > (1 P) x Hd (a) In other words, Grant Prelim relief if harm to P (if injunction is denied), multiplied by probability denial would be an error (ie P will win at trial) exceeds harm to D (if the injunction is granted), multiplied by probability granting injunction would be an error (ie D will win at trial) c) NFL Example NFL (1980) Raiders wanted to move to LA, NFL wanted to block transfer through leagues Bylaws. Dist. Ct. granted a preliminary injunction prohibiting league from preventing the transfer. NFL appealed. 9th Cir. Reversed

SECTION IV DECLARATORY JUDGMENT - Non-Coercive Remedy I. Declaratory Judgment: Federal Statute & Federal Rule A. 28 USC 2201(a) Creation of remedy
1.In a case of actual controversy w/in its jurisdiction, except wrt certain statutory proceedings, any
ct of US may declare rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.

B. 28 USC 2202 Further Relief

1.Further necessary or proper relief based on declaratory judgment may be granted, after
reasonable notice, against any adverse party whose rights have been determined by such judgment

C. FRCP 57 Declaratory Judgment

1.Existence of another adequate remedy does not preclude declaratory judgment thats otherwise
appropriate; ct may order speedy hearing of declaratory judgment action

II.The General Case A. Class Notes

1. Its a declaration not coercive (milder remedy) 2. Not specific relief, but similar a) 4 Characteristics of specific relief (and compare to DJ) (1) Real Time (same with DJs) (2) Real World (less dramatic supposed to affect real world behavior) (3) Discretion (same) (4) Timing is important (too early, too late, etc. are all the same) 3. 2 Contexts for Seeking DJ a) Offensive: Brought by traditional P (has a cause of action) b) Defensive: Brought by prospective D (no CoA, and is contemplating conduct that someone else might think creates a CoA against them) 4.Jurisdiction: Still need to satisfy Case or Controversy requirements

B. Case or Controversy Requirement

1.RULE - There must be a case or controversy (rights affected by someones actions) in order for a
court to issue DJ Opinion. No advisory opinions - Wallace (1933) (573) State tax invalid under 14A DJ issued (case/constroversy ok) a) F: Appellant brought to secure a judicial declaration that a state tax was invalid under the commerce clause of 14th Amend. b) D/R: Affirm for P. c) Note (1) DJs arent advisory opinions, more like a watered down injunction, while cts have no coercive authority, still preventing future harm (2) Dont have to show irreparable injury to get a DJ. (3) Scarecrow patent where potential Ps assert claims without filing suit (4) 2 things you can do to avoid it: (a) sue first for a DJ or file counterclaim for a DJ

(b)sue to enjoin a suit but you must show irreparable injury

d) Notes on Declaratory Judgments and Tactical Advantage (1-4 on 586)

C. Declaratory Judgment Case Study: Hexion v. Huntsman (2008)

1. Case Brief a) F: Hexion agreed to buy Huntsman; was going to do it w/ borrowed money (1) Bank Required certificate of solvency of new entity, to include all new debt (2) D required to pay $325 million if couldnt get financing (3) If knowing and intentional breach, damages could go up to $3 BILLION (4) However, if MAE before closing, D could walk from the deal b) D filed Declaratory Judgment action in DE before closing of the deal (1) Defensive DJ action trying to find out about liability if entity is deemed insolvent and cant get financing (2) Effect It worked; Gave Hexion opportunity c) I: In case of default, and absent Material Adverse Effect (MAE), is Ds liability capped at $325 Million under the K, or is it uncapped? d) I2: Did D knowingly and intentionally breach covenants in Merger Agreement that caused damages above the K amount? e) D/R: SP Granted to P; had to go through w/ merger; (1) Acquiror (Hexion, D) knowingly and intentionally breached its covenants under merger agreement to use reasonable best efforts to obtain financing and antitrust approval. (2) Rejected Ds claims that P suffered material adverse effect (MAE). (3) Remedy Ct granted SP and warned that buyer (D) could be subject to uncapped monetary damages if merger did not close.

SECTION VRESTITUTION

I.Restitution Causes of Action

A. Introducing RestitutionMistake
1. Class Notes a) Exotic Flower of Remedies (Vocabulary is unsettled) b) 3 Parts of Restitution (1) Substantive gives someone a cause of action who doesnt have a CoA in tort or K (Freestanding Restitution Pt. V(A) of syllabus) (2) Remedial Party who has a CoA in tort or K, and one of choices given to party is a restitutional remedy (3) Restitutional Devices (a) Constructive Trust eg. Blue Cross (infra) (b) Accounting of Profits c) Thus (1) Judgment in restitution looks a lot like damages (2) Restitution can be a specific form of relief (can order D to do something) (3) No Double Recovery - Cant recover Ds gain and Ps loss from same act

d) Remedial Restitution

(1) How does monetary restitution compare to damages? (a) Monetary restitution = mirror image of damages (i)Damages are about harm and loss (compensating P) (ii) Restitution is about benefit and gain (enrichment of D) (2) Rescission Undoing K w/out measuring benefit (may = winfall for P) (3) Why does restitution matter? It matters when gain > loss (a) This is an option for P re: which path of recovery theyd pursue (b) D may be more efficient than P, so might just want to go after Ds gain (c) If recovery is limited to damages, D may go ahead (efficient breach) (4) Why do we do this? Deterrence (5) Restitution vs. Damages (continued) (a) Objective (bullseye for D): Making D indifferent b/w committing violation and having to pay gain vs. not committing violation at all. (b)Problem: If D believes hes not wrong No incentive issue e) 2 Parts of Measuring Damages:

(1) Getting (substantive damages) (a) P Side = cost incurred (Getting After violating entitlement) (b) D Side = benefit gained by not asking permissing (getting before action) (2) Not Having (consequential damages) (a) D Side = impact of D having (consequential gains)

2.Rule: Cant keep money meant for someone else; P gets restitution regardless of fault - Blue

Cross (1990) (619) Mistaken med insurance payment a) F: Discovered error 3 years later; D and family/businsess cashed checks b) D/R: Reverse for P; Restitution = Remedy for Payment by mistake (1) Doesnt matter if caused by Ps lack of care or inadvertence (2) Ds may have had some fault, but Restitution is simpler claim (3) No Affirmative Defenses (a) Contributory Negligence No, b/c mistake = restitution regardless (b)Change of Position Can act as Affirmative Defense, but not here (i)Burden is on D to show change from payment was so dramatic that requiring restitution would be unjust (time passing not enough) (ii) Notice = reasonable person would have made further inquiry that would have revealed the truth 3. Intro Notes on Restitution a) Distinction from Damages (1) Alternative measure of monetary recovery (2) Damages recovery for Ps Loss (3) Restitution recovery for Ds Gain b) Measuring Restution (1) Interest - runs from date D had notice of Ps rights c) Claim for unjust enrichment is often available in cases of: (1) intentional tort or breach of fiduciary duty, (2) in cases of statutory torts such as infringement intellectual property, (3) and sometimes in suits for breach of K d) Rest (3rd) of unjust enrichment enrichment that is legally unjustified (1) Enrichment or gain that lacks an adequate legal basis it results from a transfer that the law treats as ineffective 4. Examples of Unjust Enrichment a) Mistakes receiving money or property by mistake is unjust enrichment (1) Overpay bank for debt, mistakenly convey property or perform service b) Actual or supposed Ks Quantum meruit, party who performs partially can recover benefits conferred even if statute of frauds or impossibility voids K c) Judgments money paid from judgment, if reversed must be refunded d) Emergencies reasonably provide essential goods/ services in emergency excused from not securing promise to pay e) Joint obligations pay more than share of joint obligation restitution from other obligors (Roommates, one pays for others share of rent sue for rent) f) Wrongful acts acquire benefit from theft, conversion, fraud, etc. restitution g) Examples of restitutionary labels - Rescission, equitable liens, indemnity, accounting of profits, constructive trust, quasi-K

B. Unenforceable Ks and Quantum Meruit

1.Rule: measure of recovery under quasi-K isnt amt of enrichment, but amt of unjust enrichment
- Anderson v. Schwegel (1990) (638) Misundertood restore Car work unjust enrich = cost to perform, not just prop enhancement) a) D/R: Affirm for P; D must pay for additional benefit (1) Agreed to work performed, so a Quasi-K (a) Quasi-K (assented to) unjust enrichment (b)Quantum Meruit (no assent) reasonable value of services rendered (2) Thus: P entitled only to value of property enhancement b) Rule: Mistaken improvements = restitution (includes enhanced property value) c) Rule: When improvements are assented to damages include unjust enrich

d) Class Notes - D wanted to just pay the added benefit (vs. cost of performance)
2. Measuring Restitution from Innocent Ds a) Rest (3rd) 49 Measures of Enrichment (642) (1) 5 potential Measure (4 for innocent Ds): No guidance on which to use (a) Value in advancing purposes of D Potentially lowest amt (i)demonstrable value to P, based on what we know of situation (b)Cost to P Straightforward, Out of pocket expense (2nd highest amt) (c) Market Value Quantum Meruit (3rd highest value) (d)Agreed Price In a defective K (wildcard most accurate) (2) Note (a) If D had Requested services focus on Mkt value and Agreed Price (b)If not a requested service receive LEAST of first 3 ((a), (b), or (c)) (3) Hypo Painter accidentally paints your house (a) Possible Valuations (i) Mkt value = $1200 (ii) Ps cost = $800 (iii) Price in other K = $1000 (Cant argue for this) (b) Arguments (i)Depends on facts probably going to be the lowest of three b) Rest (3rd) 50 Innocent Recipients (Rules for which in 49 to apply) (1) Benefits conferred at Ps request market value or agreed price (2) Nonemergency conferred w/out request no recovery (or smallest amt)

II.Capturing Wrongful Gains A. Disgorging Profits of Conscious Wrongdoers

1. Basic Principle a) RULE If D (tortfeasor) benefits from wrong, P may waive tort action and bring suit in assumpsit for restitution Ie. P may elect to disgorge Ds profits as a remedy for unjust enrichment - Olwell (1946) (649) Egg washing machine P may collect restitution for gains Disgorgement (1) D/R: Rule for P, Conscious wrongdoer disgorge price of next best alt (a) P had right to sue in tort or assumpsit (his choice b/c conscious wrong) (b)Here there is a K for who owns machine P can choose b/w tort or Quasi-K (like lease - D must pay $10/week cost of labor w/out machine) (2) Notes (a) DISGORGEMENT if he was conscientiously tortious in acquiring benefit, he is also deprived of profit from subsequent dealing with it (b)Ds culpability decides whether he is liable for all profits (i)Conscious wrongdoer liable for all profits (ii) Negligent, illegal but in good faith only liable for FMV of it (c) Look at which measure of recovery will give you the greatest recovery (d)Ex: Cave Case Edwards (1936) (infra): cave tourist attraction. Cave went under Ps land but P couldnt access it. Ct awarded P part of profits (i)Even though restitution generally measure recovery based on what D gained, also see restitution resembling damages award measuring recovery based on mkt value (unintentional wrongdoer relaxed stds) (3) Class Notes (a)Ct awards $1,560 ($10/week for 3 years) (i) $1.43/hour for 7 hours a day, 1 day a week (ii) No explanation for why $1.43/hour (iii) 2 possible measures of gain: (a) Impact Model - Based on D not having the machine and having to hand-wash (b) Quasi-K - Based on D getting permission to use machine and paying rental fee (would have been higher amount) (b)D Argues damages should be based on Ps loss, which was nothing (c) Ct responds to Ds argument that P wasnt going to use the machine by saying property = right to exclusive use eff off. (d) Ds State of Mind Conscious Wrongdoer (i)D cant claim undue hardship or irreparable injury

(e)Olwellian Worlds Handout (calculating gains) (i)If no alternative to Ps machine (indispensable) no profits (ii) If $0 in actual gain (just turned on machine b/c liked it), then FMV of rental would be higher (and most appropriate, even though itd be like private eminent domain) (iii) Restitution IS NOT PUNITIVE just recover the gain attributable to conduct cant recover additional gains just b/c business was tainted (iv)D has to pay the higher of gains or rental cost 2. In Trademark Cases a) Rule: If D deliberately infringes TM P can collect ALL of Ds profits (even if no damages) - Maier Brewing (1968) (658) Whiskey TM award restitution (1) PH: D deliberately infringed on TM. No competition b/w products, but consumers might get confused awarded accounting by Ds of profits. (2) D/R: Affirm for P; 9th Cir. awarded profits (3) RULES concept of unjust enrichment, utilized subject to the principles of equity will be applied to trademark infringement remembering that the trademark infringement must remain unprofitable (a) If infringe but no direct competition accounting of profits based on unjust enrichment is appropriate removes motive/deters infringement (b)Infringe = knowing/deliberate accounting of profits appropriate (c) If infringement is innocent injunction would be appropriate 3. More Class Notes a) Specific Relief Key Points (1) What is it? (a) Real time, real world intervention by ct (b) Ct has wide discretion whether and scope of specific relief (c) Dont need to quantify anything protects value to owner (2) Practicalities (a) Irreparable injury and legal remedy same question (b)Ps dont have to dump on their damages claim when trying to get DJ (3) Indifference Principle (a) Should grant relief only if P would be indifferent to that or alternative (b)Ideal position should be granted if and when it matters (4) Undue hardship to D (a) May overrule or refuse to grant specific relief if inequitable (b)If D was deliberate in action, this rule does not apply b) Declaratory Relief (1) Offensive (a) Doesnt add a lot to damages, etc. re: past acts (b) Threatened future harm usualy inferior to injunctive relief (2) Defensive (a) Ppl who profess to have claims otherwise have complete control over whether theory gets challenged in ct (b)Ripeness Cant have complete uncertainty must make some choices before going to ct (i) P also must have taken some action (threaten suit, etc)

B. Measuring the Profits

1.Apportionment: Separating profit from wrongdoing and lawful activity 2.Rule: Only Reasonable Approximation necessary to apportion wrongful gains in infringe
cases - Sheldon (1940) (665) Infringing Play 1/5th profits awarded a) I: Should profits be apportioned, and if so, how? b) D/R: Affirmed; 1/5th of profits apportioned, not all. Other factors present c) RULE under equity, need compensation for wrongful acts, not penalty by giving to proprietor profits not attributable to the infringement APPORTIONMENT is appropriate then and only a reasonable approximation is needed (demonstrated by expert testimony) (1) Only when the d portions are so intermingled with the rest of the pirated work, then entire profits should be given to the P. See Callaghan v. Myers (activities were so blended that it was impossible to separate out the works D had to live with consequences)

d) Class Notes
(1) Statute can collect all profits attributable to d work (2) Attributable To brings in apportionment (3) Real world evidence of what D was willing to pay for permission?

(a) Had agreed to $30K deal (b)Too speculative to use as a basis for restitution (c) Plus Ds were deliberate wrongdoers (4) How to calculate apportionment? (a) Gain for next best alternative? no yardstick or incremental approach (b)HELD: Pro Rata Approach (really just a guess of % impact) (i) Weighing actual contributions of various inputs (ii) Find % of impact of different impacts (a) Plagiarised material (b) Star power (c) Advertising (d) Etc. (iii) In this case apportioning revenues (a) No real standard Decides 20% really just a guess (5) Issue: Reduction of overhead for net profit? (a) Ct deliberately apportions net profit (b) Incremental Approach (i) Say movie took in $1.6Mill and actors/etc. cost $500K (ii) $1.1Mill would be gross profit (incremental method) (iii) w/ $500K overhead (woulda been there regardless of movie) (iv) Then youd have $600K for NET PROFIT (allocate overhead in terms of the corporate entity as a whole)

e) Notes
(1) Sheldon is often applied to music cases CDs distinguished from cookbooks
(a) manner in which they are marketed

(2) usually 2 types of fights (a) Revenue fights while we made some revenue from infringement, we
also made revenue from things we legally did (b)Cost fights b/c profits = revenue costs, Ds want costs to be high (3) 2 ways of look at the apportionment of profits: (a) Pro rata method: when you have to figure out relative importance of infringing product. Infringing product generally separate entity. (Sheldon) (b)Actual profits method: looks at all the revenues and expenses attributable to the infringing product (Hamil). (4) Fed rule is that conscious wrongdoer gets no credit for income taxes paid on disgorged profits. (1936) Cave Case, % of cave under P = % profits apportioned a) F: D found an entrance to a cave on his land and turned it into a tourist attraction. The cave went under Ps land but P could not access it. b) PH: Ct awarded P part of the profits according to % of cave on Ps land c) D/R: Affirmed; fair determination of benefits accruing to D from use of Ps prop (1) restitution resembling dmgs measuring recovery based on market value (2) see this in innocent, negligent situations, unintentional wrongdoer d) Concurrence Proposes joint ownership model, since Ps portion of cave was worthless w/out entrance on Ds land same apportionment though e) Class Notes (1) Survey Assignment (a) Attribution questions - Why did you go? most important (2) What they did in this case Ct had a great proxy in the advertising (a) Why? in sellers interest to know what buyers are influenced by

3.Apportionment Rule: Can apportion wrongful profits based by % ownership in land - Edwards

4.Incorrect Rule: Deduct overhead expenses in apportionment gains - Hamil v. GFI (1999) (611)
Dress infringe Case; Incorrect decision!! a) RULE - Equity calls for compensation due to wrongful acts thus overhead which doesnt assist in the production of the infringement should not be credited to the infringer, and that

which does, should be a question of fact in all cases (1) 2 step procedure for deducting overhead from infringers profits (a) determine what overhead expense categories are actually implicated by production of infringing product and that theres sufficient nexus b/w category of overhead and production or sale of infringing product b) Class Notes (1) THIS CASE IS WRONG!!! (2) Burden is on D to seek apportionment but ct reads it to mean something else and doesnt use apportionment at all (3) Argument: infringement enhanced demand for dresses (4) Wrongful Gain: Incremental vs. Net Profit (chart on TWEN) (a) Incremental? Allocate % of overhead to net profit? chart shows shouldnt (allows D to use some unlawful gains to cover fixed expenses)

C. Class Notes (REVIEW)

1.In this area of restitution, its about putting D in Ds rightful position 2.Hierarchy of remedies w/ that objective (for D committed a wrong and to what extent
entitlement is protected): a) Injunction (highest protection hypo world = real world) b) Apportionment Ex-post award P after the fact (1) Pro Rata Sheldon (a) Involuntary partnership (b) Doesnt try to figure out next best alternative (c) Shows profit D actually made, and then portion out based on all inputs (2) Incremental Olwell (a) Ds rightful position is they have to use the next best alternative (b) In cave case in hypo world, what would profits have been if they had shut off Ps part of the cave? c) Reasonable Royalty Ex ante measure (1) Assume they figured out licensing agreement before (2) Party-specific (subjective) d) Market Value (seller becomes involuntary seller private eminent domain) (1) Ex-ante what they would have paid before (objective measure) (2) Non-deliberate wrongdoer

III.C. Transactional Restitution: Breach and Fraud A. Rescission

1.Generally Rescission cancels the transaction and reverses all benefits

a) Insured P gets money back w/ interest; insurer released from policy obligations 2. 3 Pieces of Rescission a) Nullify transaction b) Actual physical return of performances c) Mutual accounting of value of benefits exchanged that cant be retured 3.Specific Remedy (ie. specific unperformance) a) Court has to make an order b) Intervening in real time c) Gives greater value to promisee
4.Rescission Rule: Entitled to restitution after D breached, even if K performance is impossible Mobil Oil - (2000) Oil Drill Leasing; Gvt passed law performance by P impossible P still entitled to restitution b/c D breached a) Rescission is available in the event of (1) fraudulent material misrepresentation, (2) innocent or negligent misrepresentations, (3) undue influence (4) substantial breach, (5) mutual mistake of fact, (6) duress (7) Mutual mistake of fact (8) Unilateral mistake, not relied on b) Misrepresentation is material if knowledge by insurer of facts misrepresented, would

have led to a refusal by the insurer to make such K

c) Notes
(1) Rescission for FRAUD Cherry v. Crispin (688) Termite Case, sellers
fraudulently concealed fact that house was infested with termites Ps get back what they exchanged, and Ds get back what they exchanged (restoration for both sides) no disgorgement (a) D/R: Rescission for Fraud granted (i) If transaction is fraudulent, unlike breach, both a seller and a buyer can get rescission of a partially or even completely performed K (2) Breach Rule: P can choose b/w Reliance damages or Restitution in case of breach - Bush v. Canfield (1818) rescission breach of K case. (a) F: P paid in advance for flour. Price of flour went down. But seller still breached (didnt deliver). P looking at losing K, but wants $ back (b)P can choose remedies (1-Way Option) (i)Reliance Recovery Better if K would have created a gain (ii) Restitution Recovery Better if K would have created a loss (3) Restitution and Ks (a) Issue of restoration vs. restitution - Trend is to give P back only restoration rather than restitution (breach of K isnt that bad) (4) P can choose whether to sue for rescission or damages (5) Grounds for rescission - varied, but recurring theme is that grounds must be substantial to justify giving P this option to enforce or undo the K. (6) General Rule: If you have a K thats enforceable, restitution should not be used (This case is an EXCEPTION) (7) Sellers Damages (Chart) (a) Expectency = Price Savings (b) Reliance = Spent Loss (c) Restitution = Value of Benefit (Boomer) (8) 38 Performance-Based Damages for Breach (sup. 90) (a) If this situation takes place, the only remedy is damages (b) READ THIS!!!

B. Quantum Meruit
1.Generally: Rescission where parties cant physically give back what they put in. 2.Laycock 692-94: Losing Ks Where Benefit Cannot Be Returned
3. Performance-Based Damages for Breach: Restatement (Third), Restitution and Unjust Enrichment (Tentative Draft)

C. Disgorgement

1. Class Notes a) Disgorgement Generally - P in K case getting the gains D would not have derived had he not breached the K (1) Not restoring anything (2) P is going to gain something it never had and never promised, and wouldnt be able to argue that it could have had because of the breach b) Restatement: no disgorgement remedy for breach of K claims (1) So why are we studying this?

1.RULE Disgorgement appropriate where P has suffered an irreparable injury or where D is an

intentional wrongdoer - Snepp v. United States (1980) (678) No CIA book approval Disgorgement (unusual case. forfeiture, not disgorgement) a) D/R: Constructive trust reinstated; breach of fid duty Disgorgement (1) Irreparable harm was done through Snepps failure to submit his material for prepublication review possibility of compromising information and other agents (2) it wouldve been speculative to calculate damages, the trial couldve revealed sensitive information, and thus difficult to quantify damages (3) constructive trust protects both govt, and agent from unwarranted risks conforming relief to the dimension of the wrong: b) Class Notes (1) No But-For Causation D would have made same profits even if hadnt breached. the book would have been the same

(2) Publishing of book was unauthorized by CIA (like Olwell egg washing
machine) Need a deterrant from bypassing the market? (a) Get the greater of the gain received or the fair market value of rental (b)Answer in this case: b/c no gain from the breach, and no rental value for CIA approval, so D had to give over all his profits

2.Rule: If D Sells Land and then sells fill on land to 3rd party Disgorgement, not damages for
property lost value - May v. Muroff (1986) a) F: Landowner sold land, then, before changing hands, sold fill (dirt/rocks/etc) on land to 3rd party. Purchaser claimed profits b) PH: Trial ct awarded damages for the lost value to property c) D/R: Held for P; changed damages to disgorgement (more than damages) (1) Deliberate Wrongdoer P entitled to value of materials moved (2) D should not be allowed a winfall from deliberate acts

3. Notes on Disgorging Profits from Breach of K a) Rest (3rd) 39 (General Rule) If deliberate breach of K results in profit and available damage remedy gives inadequate protection to Kal entitlement, promisee has claim to restitution of profit realized by promisor in breach b) Basically 3 Requirements c) Profitable d) Deliberate e) Damages = Inadequate Remedy

IV.Restitution Case Study: Conoco v. United States

A. Bottom Line: SCOTUS awarded bonus amt paid for leases, but not rental
payments or exploration expenses B. Class Notes
1. Takings Claim Argument a) Gvt Activity was a regulatory taking b) Thus, P entitled to just compensation (1) What is this? Compensatory damages (expectancy dmgs specifically) c) Need a value of the taking (1) Dates of taking (2) Market value changed from date of purchase (3) Must evaluate value of leases at date of breach much different d) Note this was a losing K for the P (1) NC wouldnt have been able to drill anyway, so no expectancy dmgs 2.Restitution Argument - Once you establish liability, you just add up the dollars 3.Bottom line - Often better for rescission claim b/c its way more complicated to seek expectancy damages

C. Rescission Arguments

1. Bonus payments a) D (Gvt) P wasnt harmed at all for 9 years out of the 10 years in the K should only be entitlted to 1/10th of bonus payments b) P (winning argument) This is a 10-yr option to drill the way the market works in this case is to give rights to any producing well for the period (would have gotten all gains in 10th year) (1) Restitution Terms P did not have to prove gains 2. Rental Payments a) P same argument as above b) D (winning argument) each rental payment was for the previous year received material benefit for each year P got what it paid for 3. Expenditure Expenses (reliance damages not paid to the gvt.) a) Problem w/ reliance damages Expectancy cap (1) They were never going to be able to explore those wells (2) Breach did not waste those expenditures P would not have been able to drill, so breach didnt deprive them of chance to regain expenditures

SECTION VI. DEFENSES

I.Unclean Hands / In Pari Delicto

A. Generally/Class Notes:
1.Rules regarding in pari delicto- raised to bar recovery by P, when P has engaged in
wrongdoing as well thus he cant recover 2.Remedies against P haphazard remedy b/c wont know if itll be imposed, and damages limitation is absolute (bars case), so not related to amt gained

B. Case Example
1.RULE No recovery if unclean hands Institutional concern (cts dont want to get involved in
illegal Ks) Pinter v. Dahl (1988) (935) unregistered securities in worthless oil wells; P was promoting same unregistered securities, so cant recover a) In pari delicto defense available where: (1) From own actions, P bears at least substantially equal responsibility for violations he seeks to redress, and (a) careful sometimes people make mistakes with this rule, Ps wrongdoing must somehow relate to the harm at heart of the issue (2) preclusion of suit would not significantly interfere with the effective enforcement of the securities laws and protection of the investing public (a) 2nd prong generally stated, would preclusion of the suit interfere with general public policy concerns? these defenses are created in equity, thus public policy is usually involved

1.Note - Another nuance Ps behavior must be directed towards D Beelman v. Beelman P

and husband fraudulently convey prop to brother in law, husband dies, brother doesnt give back, ct nevertheless imposed a constructive trust, as fraud was directed towards the IRS, not the D

II. Laches (957-66)

A. General/Class Notes
1. Only works for equitable remedies 2.Once ct finds Laches, regardless of merits, case is barred 3. Key Elements of Laches a) Delay - Doesnt have to be deliberate (ie to exploit D) b) Prejudice 4. Seen Before? a) Whitlock (encroaching wall case) exploiting D? (1) If D deliberately encroaches, but P allows encroachment, will laches be allowed as defense? (before adverse possession) Prof doesnt think so

B. RULE Doctrine of Laches bars relief to those who delay assertion of

claims for unreasonable time; Laches applies in disparagement cases - ProFootball, Inc. v. Harjo (2005) Indians barred from cancelling Redskins TM in NFL b/c of laches (to include very young Ps)
1.F: Delayed 8 years b/w reaching age of majority and filing suit (Link:
http://businesslawbrief.com/pro-football-inc-v-harjo/) a) Lanham Act - Disparagement case can be brought at any time b) HOWEVER, this is a SOL issue, not a Laches issue c) RELIANCE issue but for laches, what would D have done? (1) Redskins spent a lot of money in the interim period promoting the TM (2) Ct let Redskins off easy on this issue found economic prejudice d) 3 affirmative requirements to claiming laches (1) substantial delay by a P prior to filing suit (2) Ps awareness that the disputed trademark was being infringed, and (3) reliance interest resulting from Ds continued development of goodwill during this period of delay e) Factors may negate invocation of laches by excusing the delay (1) ongoing negotiations (2) conscious fraud or bad faith by D f) Laches may bar injunctive relief when D established a substantial reliance interest investing substantial labor and capital that builds TMs goodwill g) MERE DELAY IS NOT ENOUGH

2. Notes

a) Requirement of reliance or harm to D emphasized close link between laches and

estoppel emphasis in laches is delay, estoppel is misleading (1) Differences between the two is blurry when D is misled by Ps silence b) 3 forms of prejudice (1) Detrimental reliance (2) Lost evidence (3) P tries to claim prop after D has borne burden/risk of developing prop

III. Statute of Limitations (966-73)

A. General/Class Notes:
1. 3 major issues with SOL a) Continuing violation b) Discovery rule c) Fraudulent concealment

B. CONTINUING VIOLATION
1.Generally - A wrong committed by a D. The cause of action accrues when the wrongdoing occurs
but there are points on the way to filing where the wrong doing happens over and over again - Each new wrongdoing creates a new statute of limitations period 2.Continuing Violation Rule can only recover for damages w/in period of limitations and which occur as a result of the most recent violation - Klehr v. A.O. Smith Corp. (1997) Silos sold by fraud; passed SoL suit barred a) D/R: Reverse for D; SOL bars suit b) Applied here (1) No wrongdoing other than the initial fraud (one-time event), and SOL barred suit on that cause of action c) Class Notes (1) Steps for SOL Analysis (a) What is the limitations period? (Point of file minus SOL) (b)Ask What happened during that period. (i) Additional lies told during the limitations period? (ii) Continued to rely on lies, and suffered losses during the limitations period (cant get losses from before) (c) Constructing Model: But-for world has to change during the limitations period have to go after recent acts d) Notes (1) Tolling Principle even if act occurred way back when, SOL doesnt start until you couldve realized harm due to Ds conduct (see next case)

C. Restitution Review/Summary
1.Based on benefit P has placed on D, or D has achieved at Ps expense 2.Innocent D Still liable b/c independent basis of liability

a) Important Boundary: Cant assert liability in restitution to get over terms of an

enforceable K W/ 1 EXCEPTION BOOMER case b) Grounds for Restitution (1) Mistake (2) Performance of Unenforceable K c) Measures of Recovery (1) If benefit = Cash Usually benefit = amt of cash (2) Non-cash benefit (a) P requested benefit (but still no enforceable K) Mkt Value (b)Enforceable K + requested benefit Mkt Value (usually amt paid) (c) Not requested by P Often no liability (i)If liability Lesser of Ps cost and Market value (d)If received by mistake, and value to D is less than (i) Key: market value is objective, but this is a party-specific measure 3. Wrongful Gains a) Into remedial restitution; no innocent Ds b) Issue: Was Ds Conduct Conscious? (1) Some are strict liability (fraud, etc)

(2) Laycock mentions intermediate level of culpability (D somewhat responsible for receiving benefit, measures get more flexible) c) Measure of Restitutions: What would D pay for benefit in the market (Olwell, (1) Measure of Ds Profit (prof disagrees w/ this) (2) Reasonable Royalty IP statutes, not common law. (a) Shortcoming No incentive to D to work something out w/ P (no deterrence but this is a non-deliberate wrongdoer anyway) (3) Calculating Restitutition Higher of Mkt Value/RR or gains that were actually derived from the wrong (consequential gains/disgorgement) d) Apportionment (1) 2 ways to measure wrongful gain: Incremental (Olwell) or Pro Rata (Sheldon) (2) Incremental (a) Measure of wrong vs. next best alternative (b) Will we look at lawful alternative every time? Doesnt work every time (think of plagerizing a play) (c) Ignores overhead (3) Pro Rata: Compare inputs by % (very imprecise depends on evidence) (a) Assign overhead (P gets a share of venture) 4. Quantum Meruit a) Boomer: Partial Performance Majority Rule (1) Recovery = reliance damages (partial expectancy cap) (2) Arises in K for services b) Disgorgement for opportunistic breaches of K Treats it like a conscious tort, only a bit more 5. Rescission a) Removes material breach b) Creates a 1-way option that gives P the option of whether to seek whatever recovery it wants (not fair, but creates a remedial economy) c) Must be reasonably able to physically return (1) If P waits too long, rescission will be denied (laches)

SECTION VII - PUNITIVE DAMAGES I. Class Notes A. 5 Rationales:

1. Punishment 2. Discouraging D from acting in future (specific) 3. Discouraging others from that conduct (general) 4. Effiecient deterrence (avoid) 5. Add incentives to sue

II.The Rest A. Common Law and Statutes

1.Rule: Ct can award Punitives for EE wrongs; Exxon (2008) Oil Spill, SCOTUS applying State
Supreme Ct Maritime common law; Limited punitives to 1:1 ratio a) D/R: Rule for Exxon (5-3 votes) (1) Ct split evenly 4-4 on the issue of whether judges may award punitive damages against a company for employee misdeeds. affirmation could not be used as precedent because it merely reflected an even split in the Court. b) Class Notes (1) Measuring Decided Ratio of 1:1 appropriate here (a) Souter Addressing inconsistency w/ punitive awards (b)Prof This shouldnt matter, should it? (2) Proposed Guidelines: (a) Limits should be imposed chose a ratio to compensatory (b)Problem: punitives are not about the amount of harm you caused, but how awful the behavior was (c) Escape Hatch: If compensatory damages are low, ratio can be higher.

2.Notes on Punitive Damages (1-5)(226-28)

a) Why Punitive Damages? Uncertainty necessary, and most cases settle or arent
worth much anyway, so need punitive to deter

b) Why in Exxon? much environmental harm goes uncompensated b/c of economic loss
doctrine c) Vicarious Liability 2 standards (1) Half require managerial employees be involved in outrageous conduct (a) P must show EE exercised substantial discretionary authority over significant aspects of Corps business (2) Other half have normal respondeat superior rules (w/in scope of EEnt) 3. Notes on Measuring Punitive Damages a) Problem What to tell juries? (1) Amt of compensatories (2) Reprehensability of conduct (3) Ds wealth (4) Likelihood of wrong being discovered and provoking a lawsuit b) Hard Ratio? Exxon was odd; states dont seem to be following it much c) Considering Net Worth Punishing so P can feel it (but inconsistent) d) Should Wealth Matter? Obviously does when D has no money

B. Jacque v. Steenberg Homes Landmark Punitive Trespass Case

1.Rule re: harmless violation of rights: flagrantly disregarding the rights of P creates right to
punitives, even if no harm (award is discretion of the jury) 2. Class Notes: a) F: Delivery of mobile home, intentional trespass over Ps home; unauthorized use of Ps land as an input to his mobile home business b) Covers All 5 rationales from Exxon: (1) Punishment (culpability is the key) (2) Incentive for P to sue (and for lawyers to bring suit) (3) Harm (should this matter?) c) 2 questions on Punitive Damages: (1) Will they be available? (a) Exxon referred to this in passing Evil motive or wreckless indifference to the rights of others (b)Jacque didnt reference at all except to basic availability to what extent should harm matter? flagrantly disregarding the rights of P creates right to punitives, even if no harm (2) What amount will they be? d) Factors for Punitives (availability and amount): (1) Ds Culpability (Punishment should fit crime) rationale in both availability and amt. (2) Ps Harm available b/c of punishment rationale, amt based on ratio (3) Ds Gain available b/c of punishment rationale, but amt is deterrence (4) Likelihood of Detection of wrong Efficient deterrence idea (a) Logical evildoer will analyze based on probability of being detected (b)If 20% chance of being detected when harm he causes is 100, he only expects to lose 20 so punitives should apply a multiplier to get total award up to 500 (thus punitive will be 400) (5) Ds Wealth not a factor in availability, punishment rationale 3. Summary of Punitive Damages a) Availability/Triggers: (1) Culpable state of mind: Wreckless disregard of rights/harm; Intent to harm; punishment rationale (2) Cts Require compensatory damages in some form b) Ds wealth is always a factor c) Cant get punitives for breach of K d) *3 factors court must consider when determining whether a punitive damage award violate the DPC: (1) 1) degree of reprehensibility of the conduct; (2) 2) the disparity between the harm or potential harm suffered by the P and the punitive damage award; and (3) 3) the difference between this remedy and the civil or criminal penalties authorized or imposed in comparable cases.

e) In sum, although actual harm and criminal penalties have some relevance to he amt of
punitive damages and may be factors in determining the reasonableness of the punitive damage award, not willing to adopt formula for awarding punitives.

SECTION VIII: FIELD STUDY: PATENT INFRINGE REMEDIES I. Patent Law Background A. Class Notes

1. Patent infringement a) Much like Trespass b) Patented invention is typically used in part of an infringing product c) Unauthorized use of patented product as an Input in a product as part of a profitable business 2. Lost Profits a) Only when competing seller is using the same invention inventor is using when selling product b) In Restitution, Incremental gain for unauthorized use Ds Gain c) In Lost profits, were looking at how much P lost Ps loss d) Under Patent Act No disgorgement for unauthorized use (1) Reasonable Royalty (minimum) (2) Damages adequate to compensate for infringement e) But For Question But for infringing product, would customers have bought Ps product? (1) Bic and Grain (below) (2) Assume Patentee suing infringing competitor (3) Customer switches to competitor proof of lost profits? (a) Must show switch is attributable to infringement (b)If switch to competitor had nothing to do w/ invention, no loss due to infringement (other reasons to switch)

B. Patents
1.Item must be novel & not obvious (to someone of ordinary skill in relevant field) 2.Novelty/Obviousness based on pre-existing knowledge PRIOR ART
3. Patent Right = Intangible Personal Property (can be assigned/licensed)

C. Infringement
1.Unauthorized Use make/uses/sell/offers to sell/imports either:

a) Patented product b) Product made through patented process a) Product could already be on the market

2.Must be brought after patent is issued

D. Invalidity E. Licensing

3.Depends on embodiment description in patent document, not how it looks 1.PTO Patents Presumed Valid Affirmative Defense to say patent is invalid 2.If ruled invalid, patent is dead letter and cant be enforced against anyone
1. Might not get a license b/c you think youre not infringing, the patent is bad, or you can design around the patent (sufficiently different)

F. Remedies
1.Damages = compensage for infringe, but not less than reasonable royalty for use 2.Notice of patent is required
3. Statute of limitations = 6 years 4.If willfully infringed enhanced damages up to 3 times compensatory 5.Can also issue an Injunction

II. Rule: But-For Causation and competing market share required to get lost profits vs.
royalties - Bic Leisure (1993) windsurf boards A. Summary: Patent Holder entitled to lost royalties, not lost profits, b/c

licensed patent to many competitors, used more expensive process to make more expensive boards (different market), and didnt prove lost sales from infringement (no but for causation).
1.Rule: lost profits require causal relation b/w infringement and lost profits 2.D/R: D not entitled to lost profits; just lost royalties for patent

a) D valued patent by royalties, not increased sales from excluding other sellers 3. Class Notes a) Patentee suffered declining market shares; D didnt have a license and increased his market share b) Market Share Approach: (1) What customers would have stayed w/ P but for the infringement? (2) Probably none these are different market shares (subgroups) (3) This approach is allowed, c) Describing Methodology: (1) Assuming Bic had not been in the market, what would Ds market share have been? (2) In terms of apportioning, apportion Ds market share to the remaining sellers based on % of whole. (3) Assumption: Only lawful alternative to infringement is to not be in the market at all (appropriate? Could sell a non-infringing board) d) Another Option Survey (1) Ask customers of Bic whether they would have bought infringing board absent the infringing feature

III. Lawful Alternative Rule: If a noninfringing alternative was available during

infringement (even if only could have been available) limited to reasonable royalty - Grain Processing (1999) 2 weeks to get non-infringing product No lost profits A. Summary - P could not recover lost profits because a non-infringing alternative was "available" even though it was not actually on the market when the damages period began. Royalties awarded, not lost profits
1.D/R: affirm for D noninfringing substitute was available during infringement. Sub was
acceptable to all purchasers of infringing product. D therefore rebutted the inference of but for causation for Ps alleged lost sales.

B. Class Notes
1.F: 10 years of infringement; then found process for non-infringing product; then argued that could
have introduced process 4 way at the beginning, and customers cant tell the difference, so butfor world wouldnt change from actual world 2.D/R: Ct sides w/ D; a) Controversial assumes lawful alternative even when it wasnt there b) Like Bigalow argument lawful alternative c) Why did Fed Cir accept the argument this time? (1) Was not really a willful infringement (if there had been, probably would have had to pay 3x royalties) (2) Only took 2 weeks to implement (3) Had good reason not to implement alt (cost, unsure if infringing, etc.) (4) D actually used the lawful alternative and showed no market effect

IV. Reasonable Royalty A. Class Notes

1. Minimum Damages for infringing use 2. Just like market rental (cost of permission to use) except for how its calculated a) Uses a hypothetical negotiation b/w the parties EXCLUDES ACTUAL MARKET

B. Factors to Calculate Reasonable Royalty

1.Georgia-Pacific (1970), modified (2d Cir. 1971) -

a) Summary Established Reasonable Royalty Rate Factors (15)

(1) 15 Georgia Pacific factors used for setting reasonable royalty rate in

C. Class Notes

patent infringement litigation (a) 1. royalties received by the patentee for licensing of the patent in suit, proving or tending to prove an established royalty (b)2. rates paid by infringer for use of other comparable patents (c) 3. nature/scope of the hypo license, as exclusive or non-exclusive; or as restricted or non-restricted in terms of territory or with respect to whom the manufactured product may be sold (d)4. patentees established policy and marketing program to maintain his patent monopoly by not licensing others to use the invention or by granting licenses under special conditions designed to preserve monopoly (e) 5. commercial relationship b/w patentee and infringer, such as (competitors in same territory in same line of business, etc) (f) 6. effect of selling infringing product in promoting sales of other products of infringer; existing value of invention to patentee as generator of sales of his non-patented items; and extent of such derivative or convoyed sales (g)7. remaining term of patent and term of hypo license (h)8. established profitability of product made under patent; its commercial success and current popularity (i)9. utility and advantages of patent over old modes/devices, if any, that had been used for working out similar results (j)10. nature of patented invention; the character of the commercial embodiment of it as owned/produced by the patentee; and the benefits to those whove used the invention (k) 11. extent to which the infringer has made use of the invention; and any evidence probative of the value of that use (l)12. portion of profit or of selling price that may be customary in the particular business or in comparable businesses to allow for the use of invention or analogous inventions (m) 13. the portion of the realizable profit that should be credited to the invention as distinguished from non-patented elements, the manufacturing process, business risks, or significant features or improvements added by the infringer (n)14. the opinion testimony of qualified experts (o) 15. the amount that a licensor and licensee wouldve agreed upon (at time infringement began) if both had been trying to reach agreement. b) Established royalty uniform royalty rate patentee has charged in prior licenses granting authority to use the patent infringed by the D. (1) -if it meets some requirements, can be treated as the market price for use of the patented invention and no further analysis is necessary (2) -look at what the parties wouldve agreed upon, if both were reasonably trying to reach an agreement (3) Reasonable royalty def assumes, after payment, infringer will profit

1.Watershed Case for Reasonable Royalties well-established body of law

2. Too bad its crap in terms of analysis 3.Ct Analysis Ex Ante a) What royalty would parties have negotiated back then? b) Even if assuming ex ante analysis, they can still take into effect facts that occurred after that couldnt have been predicted (??) 4. Does patentee have to prove patentee would have come to an agreement? a) No, they might not have come to an agreement at all b) Its like a damages analysis (not a lost royalty just a reasonable royalty) c) Not impact-based 5. Factors a) Generally what would P have given up; what would D have gained b) 1, 2, and 12 market rates in other transactions (problem w/ this licenses are very different tough to get comparables) c) 5, 6, 8 What gains would prospective licensee have expected from license d) 6, 9, 10, 11 e) 9 old modes and devices (incremental approach) f) 13 attributable contribution of patented invention to profits (pro rata) g) 15 Ceiling of reasonable royalty expected profits of licensee

(1) Cant expect to pay expected royalty for more than he can make 6. Problem

a) What if royalty rate willingness to accept and willingness to pay dont overlap? b) These cases put a cap on willingness to pay kinda screws P, if his willingness to accept
is higher

D. Rule: Cts RR calculation must be outrageous to be overturned - Rite-Hite

(1995) (en banc) vehicle restraint, accepted Ps calculation of RR
1.Rule: if just challenging cts reasonable royalty calculation must show award is either so
outrageously high or so outrageously low as to be unsupportable as an estimation of a reasonable royalty 2. Class Notes a) D/R: P won; Rate based on Ps testimony of min willingness to accept royalty (1) Testimony by patentee: Wed only license for of expected lost profits (2) Ct Accepted testimony for calculation (set based on minimum willingness to accept by patentee) VERY ODD usually base on D, and gives them an expected profit (3) Basically gives P equivalent of an injunction (D makes no profit) (4) Contrary to Grain Processing and GA Pacific

V.Guidelines for Designing Data Demonstratives (193-96) A. Convince a Jury

1. Make Good Visual Comparisons 2. Show Cause and Effect 3. Charts and Graphs Should be Multivariate 4. Completely Integrate Words, Numbers, and Images 5. Have Good Content 6. Info for Comparison Should be put Side-by-Side 7.Use Small Multiples Show changes over time in same frame of view 8. Do not De-Quantify 9. Use Colors Carefully 10. Use 3d Effects Judiciously

VI. Patent Injunctions A. Ebay v. Mercexchange, LLC (2006) 4-factor injunction test

1. Class Notes a) 4-factor test came out of NOWHERE b) 4-factor Test for Permanent Injunctions P must show: (1) Causes Irreparable injury (2) Remedies available at law (monetary etc) are inadequate to compensate (3) Remedy is warranted considering comparable hardships of parties (4) Public interest would not be disserved by permanent injunction c) Alternative Idea (Prof) RR until able to switch over, and then require an injunction after they switch 2.Aftermath of Ebay a) Non-Automatic Injunctions b) What do you do when P is seeking injunction against ongoing activity? (1) Give reasonable royalty in first case (2) THEN SUE AGAIN airtight willfulness case Trebel Damages (3) Instead just increase royalty by certain %, and hope it deters enough

B. SanDisk Corp (2007) Scarecrow Patent Issue

1. Class Notes a) F: Fairly standard patent situation; Scarecrow Patent (just threatening to sue), so cts allowed defensive declaration to see if patent was invalid; Defense of Declaratory judgment becomes a tactical weapon for patentees b) Concurrence: Safe Haven idea (1) patentee would send a letter and enclose a patent, saying here are a few patents that might interest you (doesnt accuse them of anything, which would force them to go to court, but may get them to come to you for licensing)

SECTION IX: EXPERT WITNESSES AND CONSULTANTS I. Admissibility A. Federal Rules of Evidence 702 and 703, with Advisory Committee Notes on 2000 Amendments
1. Rule 702 Testimony By Experts a) Expert Can Testify IF: (1) Testimony is based on sufficient facts or data (2) Testimony is product of reliable principles and methods (3) Witness has applied principles and methods reliably to facts of the case 2. Committee Notes on Amendments a) This was a response to Daubert (see infra) (1) Pre-trial Daubert motion is now a staple in trials w/ experts b) Daubert Factors for assessing reliability of scientific expert testimony: (1) Whether experts technique or theory has been tested objectively (2) Whether technique has been subject to peer review and publication (3) Known or potential rate of error (4) Existence and maintenance of standards and controls (5) Whether technique or theory has been accepted in scientific community c) Not a conclusive list (nor comprehensive) d) Other relevant factors (still not conclusive) (1) If evidence/results grew directly for testifying, or independently (2) If expert has unjustifiably extrapolated from an accepted premise (3) Adequately accounted for obvious alternative explanations (4) Being as careful as he would be in his regular professional work outside paid litigation consulting e) Dont have to prove merits to be admissible just reliability (1) Most experts are allowed into evidence (2) Cross-examine well (3) Rule 703 has to do w/ experts reasonable reliance on other stuff narrower inquiry 3. Rule 703 Bases of Opinion Testimony by Experts a) Admissible Testimony: (1) May rely on inadmissible data, if reasonably relied-upon (2) Cannot disclose inadmissible data to the jury, unless ct determines jury needs to hear it to evaluate experts opinion b) Committee Notes (1) Balancing Test: Ct must consider whether probative value with the prejudicial effect in allowing data to come in (2) Adverse Party can submit this data to the jury, though

B. PricewaterhouseCoopers, Daubert Challenges to Financial Experts:

10-Year Study of Trends and Outcomes 2000-2009 (2010)
1. Generally a) Challenges to expert witnesses have been rising since Daubert (1) 28% of financial experts were exluded (2) Another 17% were partially excluded (3) About 45% of motions for exclusion were accepted (on both sides) b) Says this is bad c) Wrt Causation - How does Ct determine whether to allow testimony? (1) If expert misses considering an obvious alternative cause, exclude (2) If expert misses non-obvious alternative causes, allow (goes to weight)

C. Rule: 25% Rule of Thumb can no longer act as baseline for RR rate in
expert damages testimony - Uniloc v. Microsoft (2011)
1.D/R: New Trial for D; Testimony inadmissible

a) 25% Rule of Thumb Doesnt take into account relationship b/w product and patent, or
b/w the parties (arbitrary) FUNDAMENTALLY FLAWED TOOL (1) Have to tie expert testimony on damages to facts of the case

(2) Doesnt negate the Georgia Pacific Factors

b) Entire Market Value Rule

(1) Patent does not create basis for customer demand or substantially create value of component parts (2) $19Billion figure was prejudicial and inapplicable

2. Class Notes a) Reasonable royalty case question of whether to allow 25% Rule in patent infringement cases KILLED IT!! b) Proof reqt for damages in patent infringement cases Patent verdicts were getting too big, so they were wanting to reform the system c) 25% rule said baseline royalty was 25% of gross profits for product (1) This was adjusted by facts in the case d) Entire Market Value Problem Reasonable Royalty = royalty rate x royalty base (actual sales of the infringing product)

D. Celebrity Cruises Inc. v. Essef Corp., (2006) (Supp. 164)

1. Lots of witnesses and analysis of whether to admit them. 2. Just browse it again 3. Class Notes a) Very rigorous review of damages experts (both P and D) b) Prof Ct gets very close to fact-finding instead of gatekeeping c) P Witnesses: (1) Winchester Lost profits (a) Uses yardstick of other cruiselines (b) Goes through occupancy, pricing, etc, and ends up throwing it out (c) Seems like a shaky opinion, but prof thinks it should have been allowed

II. Life Cycle of a Litigation Engagement (From a Financial Experts Perspective)

A. Damages Skills Needed for Litigation Matters
1.Accounting profitability of product whose sales were diminished by conduct 2.Economics What is the market, who are the competitors, what market share? 3.Engineering Patents;
4. Finance 5. Statistics 6. Writing 7. Communications

B. Lost Profits Damages

1. 2 questions to ask/answer a) Would D have made less sales in absence of alleged infringement? b) Would patent holder have made more sales in absence of alleged infringement?