Monday, August 1, 2011

Sales Evaluation Data Impacting Pricing of Accused Product is Necessary to Determine Lost Profits Due To Price Erosion

Plaintiff's expedited motion to compel the production of documents regarding sales evaluations of accused products was granted as the information was relevant to the question of lost profits from price erosion. "I do not agree with [defendant]’s argument that only [plaintiff's] prices are relevant to a calculation of price erosion. If [defendant]'s sales evaluation files show that [defendant] engaged in vigorous price competition with [plaintiff], such that [plaintiff] was forced to lower its prices relative to [defendant]'s prices, the sales evaluation files are relevant to a calculation of price erosion. To determine whether there is 'vigorous price competition' between two companies a court must necessarily analyze the prices set by both companies and their respective market shares. . . . For this reason the prices set by both [plaintiff] and [defendant] for training pants are relevant to price erosion."

Kimberly-Clark Worldwide Inc., et. al. v. First Quality Baby Products, LLC, et. al., 1-09-cv-00916 (WIED July 28, 2011, Order) (Griesbach, J.)

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