Wednesday, January 11, 2012

Loss of Convoyed Sales Justifies Upward Adjustment of Hypothetical Negotiation Starting Point

The court denied defendant's motion in limine to exclude plaintiff's damages expert's upward adjustment of the hypothetical negotiation starting point to account for lost convoyed sales. "[I]t was clear that [plaintiff] expected convoyed sales after licensing a compatible version of Java to [defendant]. [Plaintiff's] expectations were catalogued qualitatively in a variety of documents and quantitatively in financial projections. . . . While the amount of adjustment involves an element of uncertainty, [plaintiff's expert's] quantitative analysis was based on sufficiently reliable financial projections. The Federal Circuit has upheld a hypothetical royalty based on a contemporaneously created business plan projecting revenue. The convoyed-sales projections were contemporaneously calculated by . . . a senior director of business operations at [plaintiff]. [Defendant] does not explain why [she] would have projected an overly optimistic amount."

Oracle America, Inc. v. Google Inc., 3-10-cv-03561 (CAND January 9, 2012, Order) (Alsup, J.)

1 comment:

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