Measuring Business Interruption Losses and Other Commercial Damages
An updated explanation of the methodology for how lost profits should be measured Now fully revised and updated, focused on commercial litigation and the many common types of cases, this is the only book in the field to explain the complicated process of measuring business interruption damages. The book features an easy to understand and apply, step-by-step process for how losses should be measured so as to be accurate and reliable and consistent with the relevant laws. With a new chapter on the economics of punitive damages, the new edition also explains detailed methods for measuring damages in contract litigation, intellectual property lawsuits, antitrust, and securities cases. This new Second Edition incorporates the latest developments in the fields of economics and accounting, while also integrating the most current changes in case law. Here's what you will find Each chapter includes new materials and updated content Added websites for sources of data Includes a website for updated tables that can be utilized by readers A section of the new cases involving Daubert challenges to economists Includes methods on how to do industry research A new section covering the equity risk premium and the various recent research studies, which set forth the debate on what the premium should be Containing exhibits, tables, and graphs, new cases involving Dauber, how to do industry research, equity risk premium, research studies on the marketability discount, anti-trust, punitive damages, and more, Measuring Business Interruption Losses and Other Commercial Damages, Second Edition incorporates the relevant literature and research that has come out in this field over the past four years.
Preface. 1 Introduction. Development of the Field of Litigation Economics. Development of the Field of Forensic Accounting. Lost Profits Business Interruption Analysis Compared to Personal Injury and Employment Litigation. Qualifications of an Economic Expert. Qualifications of an Accounting Expert on Damages. Interdisciplinary Nature of Commercial Damages Analysis. Difference Between Disciplines of Economics and Finance. Finding a Damages Expert. Critically Reviewing a Potential Expert's Curriculum Vitae. Getting the Damages Expert on Board Early Enough. Court's Position on Experts on Economic Damages. Standards for Admissibility of Expert Testimony. Expert Reports. Defense Expert as a Testifying Expert, Not Just a Consultant. Quantitative Research Evidence on the Benefits of Calling a Defense Expert. Treatment of the Relevant Case Law. Legal Damage Principles. Other Types of Damages Cases. Summary. References. 2 Economic Framework for the Lost Profits Estimation Process. Foundation for Damages Testimony. Role of Assumptions in Damages Analysis. Hearsay. Approaches to Proving Damages. Causality and Damages. Using Demonstrative Evidence to Help the Client Understand its Losses or Lack of Losses. Causality and Loss of Customers. Graphical Sales Analysis and Causality. Causality and The Special Case of Damages Resulting from Adverse Publicity. Length of Loss Period: Business Interruption Case. Length of Loss Period: Plaintiff Goes Out of Business. Length of Loss Period: Breach of Contract. Methodological Framework. Summary. References. 3 Economic Analysis in Business Interruption Loss Analysis. Economic Fluctuations and the Volume of Litigation. Macroeconomic Analysis. Definition of a Recession. Measuring Economic Growth and Performance. Business Cycles and Economic Damages. Using More Narrowly Defined Economic Aggregates. Overstatement of Inflation Statistics. Regional Economic Trends. International Economic Analysis. Macroeconomic and Regional Economic Analysis and The Before and After Method. Summary. References. 4 Industry Analysis. Sources of Industry Data. New North American Industry Classification System. Retaining an Industry Expert. Conducting an Industry Analysis. Relating Industry Growth to The Plaintiff's Growth. Other Industry Factors. Yardstick Approach and Industry Analysis. Summary. References. 5 Projecting Lost Revenues. Projections Versus Forecasts: Economic Versus Accounting Terminology. Using Graphical Analysis as an Aid in the Forecasting Process. Methods of Projecting Lost Revenues. Curve-Fitting Methods and Econometric Models. Understanding Regression Output and Diagnostics. Common Problems Affecting Regression Models. Confidence in Forecasted Values. Frequency of the Use of Econometrics Techniques in Commercial Litigation. Seasonality and the Forecasting Process. Capacity Constraints and Forecasts. Sensibility Check for the Forecasted Values. Projecting Lost Sales for a New Business. Projecting Losses for an Unestablished Business. Summary. Appendix. References. 6 Cost Analysis and Profitability. Presentation of Costs on the Company's Financial Statements. Measures of Costs. Profit Margins and Profitability. Appropriate Measure of Profitability for a Lost Profits Analysis. Burden of Proof for Demonstrating Costs. Fixed Versus Variable Costs. Using Regression Analysis to Estimate Costs as Opposed to More Basic Methods. Pitfalls of Using Regression Analysis to Measure Incremental Costs. Possible Nonlinear Nature of Total Costs. Limitations of Using Unadjusted Accounting Data for Measuring Incremental Costs. Treatment of Overhead Costs. Must a Plaintiff Be a Profitable Business to Recover Damages? Mitigation of Damages. Cash Flows versus Net Income: Effects ont Discounting Process. Recasted Profits. Firm-Specific Financial Analysis. Cross-Sectional Versus Time Series Analysis. Summary. References. 7 Time Value of Money Considerations. Determination of Interest Rates. Types of Interest Rates. Financial Markets: Money Market versus Capital Market. Money Market Securities and Interest Rates. Capital Market. Real Versus Nominal Interest Rates. Determinants of Interest Rates. Rejudgment Losses. Components of The Cost of Capital. Discounting Projected Future Profits. Common Errors Made in Discounting by Damages "Experts". Summary. References. 8 Business Valuations. Legal Standard for Business Valuations in Business Interruption and Business Failure Lawsuits. Lost Profits Versus Lost Business Value. Business Valuation Framework. Theoretical Value of a Business. Public versus Private Companies. Business Valuation Parameters. Revenue Ruling 59-60 and Factors to Consider in Valuation. Valuation Concepts. Most Commonly Used Valuation Methods. Capitalization of Earnings. Comparable Multiples. Adjustments and Discounts. Summary. References. 9 Intellectual Property. Patents. Computation of Damages for Patent Infringement. Legal Requirements Necessary to Prove Lost Profits. Lost Profits Due to Price Erosion. Lost Profits Due to Changing Cost Conditions. Royalty Arrangements Copyrights. Measurement of Damages for Copyright Infringement. Trademarks. Trade Secrets. Summary. References. 10 Securities-Related Damages. Key Securities Laws. Damages in Securities Litigation. Fraud-on-the-Market. Comparable Index Approach. Event Study Approach. Broker Raiding Cases. Mergers-Related Damages. History of Mergers in the United States. Client-Broker Claims. Churning. Appendix 10 A: Case Study: In Re Computer Associates, International, Inc. References. 11 Antitrust. Antitrust Laws. Antitrust Enforcement. Economics of Monopoly. Changing Pattern of Antitrust Enforcement. Antitrust and the New Economy. Monopolization and Attempts at Monopolization. Market Definition and Microeconomic Analysis. Market Power. Measures of Market Concentration. Common Types of Antitrust Cases. Summary. References. 12 The Economics of Punitive Damages. Evolving Position of the U.S. Supreme Court on Punitive Damages. Frequency of Punitive Damages. Frequency of Punitive Damages and the Shadow Effect of Punitive Damages. Purposes of Punitive Damages. Punishment of Corporations and Corporate Governance. Spillover Effects and Punishment of Corporations. Deterrence Theory and the Changing Litigation Environment. Deterrence and Regulatory Processes. Typical Financial Measures Used in the Determination of Punitive Damages. Net Worth. Market Capitalization. The Uncertain Litigation Environment. Summary. References. Index.
"An updated explanation of the methodology for how lost profits should be measured. Now fully revised and updated, focused on commercial litigation and the many common types of cases, this is the only book in the field to explain the complicated process of measuring business interruption damages. The book features an easy to understand and apply, step-by-step process for how losses should be measured so as to be accurate and reliable and consistent with the relevant laws." (AccountingWEB.com, February 1, 2010)
Patrick A. Gaughan has published eight books, including the award-winning Mergers Acquisitions and Corporate Restructurings, Fourth Edition, published by Wiley. He is President of Economatrix Research Associates, Inc., a firm that has conducted damages analysis for the past twenty years for corporate clients such as Airbus, GE, GM, Ford, Philip Morris, and Wyeth as well as insurance companies including Liberty Mutual, Zurich, State Farm, and many of the major law firms in the United States.
Computing damages in business interruption lawsuits requires a sound knowledge of fields such as litigation economics, forensic accounting, and law. Now, one comprehensive volume has been developed for practitioners in this field specifically for dealing with the diverse demands presented by commercial damages analysis. The only book in this field to explain the complicated process of measuring business interruption damages—whether caused by wrongful acts of defendants in lawsuits or natural disasters—Measuring Business Interruption Losses and Other Commercial Damages, Second Edition provides a comprehensive framework for how such losses should be measured. The areas covered in this updated second edition include: Recent developments in the courts on damages Selecting a damages expert and challenging an opposing expert Understanding the role of the economy in business interruptions Doing an industry analysis to support or refute loss claims Methods of projecting lost sales Computing the costs of lost sales to arrive at lost profits Discounting to present value and addressing risk This book then goes on to show how damages are measured in important specialized areas such as: Intellectual property litigation, including patent, copyright, and trademark cases Securities litigation, including fraud on the market, mergers and acquisitions, and broker-related damages Antitrust litigation, including how markets are defined and ways of measuring anticompetitive behavior Economics of punitive damages, with discussion on the various effects caused by imposing punitive damages on corporate defendants Clearly written, this major contribution's self-contained chapters are an invaluable resource for the various busy practitioners working in this area.
Praise for Measuring Business Interruption Losses and Other Commercial Damages Second Edition "This is a terrific tool for business litigators. Commercial damages is an increasingly important area in complex litigation and Dr. Gaughan explains the subject in thorough detail with his characteristic knack for making it understandable." —Wayne W. Bost, Chair, Commercial Litigation Practice Group, Winstead PC "This work belongs on every trial lawyer's bookshelf! Dr. Gaughan's Second Edition gives the experienced as well as the aspiring trial lawyer an updated, comprehensive, multidisciplinary approach to, and methodical framework for, measuring all types of commercial damages. You will consult this wonderful resource in analyzing, evaluating, and presenting the damages components of your next case!" —John C. Maloney, Jr. Esq., Partner, Day Pitney LLP "Dr. Gaughan's Second Edition of his book on economic damages in the context of litigation has appeal to a wide variety of readers. At one extreme, this book is directed to an attorney seeking to obtain a grasp of how to use economists and accountants in litigation, and how to go about the process of finding such an expert. At the other extreme, practicing forensic economics and accountants can use this book both as a learning tool to develop new skills in forensic economics or as a permanent reference source in one's library. I believe this book should be owned both by attorneys practicing in business litigation and by experts working for those attorneys." —Robert R. Trout, PhD, CFA, Partner, Lit.Econ, LLP "This book is the finest in the field. It covers the law, economics, finance, and accounting of commercial damages. I use and recommend it. Pat Gaughan's first edition was the most comprehensive look at commercial damages for practicing experts available, and the Second Edition expands on what was already an indispensable text." —Patrick L. Anderson, CEO, Anderson Economic Group LLC
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