Damages are not just a matter of arithmetic: they require creativity, disciplined use of data, and error-free execution. The longer the time horizon, the more likely that plaintiffs’ damage quantification will be challenged as speculative. The more complex defendants’ damage reconstruction is, the greater the probability that a jury will discard it in favor of a simpler answer.
Whether working with plaintiffs or defendants, the right approach to any damages project depends on what needs to be measured. OnPoint engages in all forms of damage estimation, including:
- Lost profits, requiring a thoughtful construction of the hypothetical “but-for” world in which defendants’ wrongful conduct would not have occurred
- Economic losses suffered by wholesalers, consumers or competitors as a result of anti-competitive conduct such as price fixing, supply foreclosure, or false advertising
- Unjust enrichment, measuring the gains experienced by defendants which would not have been earned had they not acted wrongfully
- Running royalties determined by evaluating not only industry norms and comparable licenses, but all of the business factors that would have influenced the parties had they entered into a hypothetical licensing negotiation
- Benefit of the bargain damages calculating the value of performance under a contract that has been lost due to breach
- Environmental damages including lost commercial, residential and recreational use values, remediation costs and long term health effects
- Punitive damages calibrated to deter future misconduct (given defendant’s financial condition and its ill-gotten gains) and to set an example for others.
Regardless of which type of damage is involved, proper use of the best available data lends credibility to the analyses. OnPoint’s focus on thorough research, detailed data usage and sound empirical techniques helps to explain why our experts have been responsible for major damage decisions which, over the last year, have included a plaintiff’s verdict for $577 million in favor of a drug manufacturer whose product was terminated mid-way through development, and a defense victory refusing class certification in a fraud on the market case, based in part on a finding that damages could not be quantified. Where appropriate, OnPoint and its experts also allocate damages across defendants based upon their respective responsibility.