Suffolk Technologies, LLC v. AOL, Inc., et. al., 1-12-cv-00625 (VAED April 12, 2013, Order) (Ellis, J.).
Tuesday, April 16, 2013
Expert Damages Testimony Based on “Nash Bargaining Solution” Excluded
The court granted defendant's motion to exclude the testimony of plaintiff's damages expert which was based on the Nash Bargaining Solution. "[T]he hypothetical negotiation conducted by [plaintiff's expert], based on the Nash Bargaining Solution, does not appear to be tied to the facts of this case. . . . [His] opinion is, in essence, (i) the application of Georgia-Pacific factors, followed by (ii) the application of a 50/50 split, derived from the NBS. Put simply, [his] damages opinion is not meaningfully distinguishable from the [25% rule of thumb] damages opinion rejected in [Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292 (Fed. Cir. 2011)]. . . . [He] does not explain why these parties would have accepted a 50/50 split. Thus, the '50/50 split' is plainly not tied to the facts of this case and is essentially no different from the 25% rule of thumb rejected in Uniloc."