Measuring Unjust Enrichment
Part 7 of BVR's Special Series presented by The Comprehensive Guide to Economic Damages
Wednesday, December 14, 2016
10:00am-11:40am PT • 1:00pm-2:40pm ET
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Choosing the right approach to measuring damages is critical for the best outcome. At times, unjust enrichment may be the only possible financial remedy. At other times, especially in claims for intellectual property, fiduciary duty or fraud, the measurement principles for unjust enrichment may provide a superior alternative remedy for the client’s case. This remedy does not require economic projections or discount rates, but rather an understanding of their legal rationale. In this session with George Roach, learn the legal background and rationale for unjust enrichment and how its measurement is distinct. The application and measure of unjust enrichment is then contrasted with standard approaches to demonstrate how its distinctions are sometimes advantageous, especially in relation to corporate disputes. As a bonus, hear a discussion on the increasing popular topic of compensation forfeiture (relating to disloyalty or a breach of fiduciary duty by an employee or agent), and learn how it can be stacked on top of actual and punitive damages for a greater result.
- Unjust Enrichment as an alternative remedy
- When is unjust enrichment the only viable remedy?
- How unique causation standards and measurement practices for unjust enrichment can result in a larger remedy.
- In claims against senior corporate executives for breach of fiduciary duty or disloyalty, the remedy of compensation forfeiture acts is an additional remedy that can be stacked on top of actual and punitive damages.
- Unjust Enrichment as a misunderstood remedy and cause of action
- The nature and extent of semantic confusion in the legal community
- Unjust Enrichment = Disgorgement = Restitution = Accounting in Equity
- The unique goal of unjust enrichment
- Disgorgement as an alternative remedy.
- Permissive jurisdiction and the requirement for proof of irreparable injury
- The trial judge’s broad discretion
- The unique appeal of a claimant’s ‘good story.’
- Disgorgement as the standard remedy for claims relating to intellectual property, fraud and breach of fiduciary duty
- The impact of applying usage value and ex post evidence
- Assessment of values and profits at the time of trial
- The impact of the anti-netting rule and offsetting losses and profits
- How the measure of the applicable profit or benefit differs from GAAP.
- The impact of shifting burdens of proof
- How attribution differs from ‘but for’ causation.
- The defendant’s burdens of proof and how shifting the burden can increase disgorgement.
- Disgorgement of revenues not profits.
- Compensation forfeiture is an add-on remedy for breach of fiduciary duty or disloyalty
- Disloyalty defined and compared to the faithless servant doctrine
- Proof of claimant’s loss or damage are independent of compensation forfeiture
- Stacking compensation forfeiture on top of actual and punitive damages.
- Limits on the amount of compensation forfeiture
- Compensation defined and described
- Discussion of example claims
- Learn when disgorgement will be the only remedy available for certain claims or in certain discovery patterns
- Discuss how equity’s causation standard and shifting burdens of proof can result in a larger remedy
- Understand the unique measures of the defendant’s “profit” are practiced and what evidence is admissible that can permit recoveries in excess of normal common law measures
- Learn how courts are increasingly awarding forfeiture of the defendant’s compensation which is stacked on top of other common law damages in a manner similar to exemplary damages for corporate clients against their agents or employees
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