A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: damages

Update on Judge Andrews' Order to File Settlement Agreements to Determine Damages After Default

Andrew E. Russell, June 22, 2021
Settlement Default Judgment Settlement Agreements Damages

Last month we wrote about Judge Andrews' order that a plaintiff who won a default judgment against Aston Martin, LLC must file any settlement agreements from seven other patent suits, in order to help the Court determine the proper damages award.

Plaintiff has now responded.

We wondered in our last post whether the Court would permit plaintiff to file under seal. The answer is yes: the Court found the following short paragraph from the briefing to be sufficient to permit filing the settlement agreements and settlement amounts under seal:

Good cause exists to seal these Settlement and License Agreements. The Agreements contain confidentiality clauses such that if the documents were not filed under seal, Plaintiff might be in breach …
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You Won a Default Judgment? Congratulations! Now File Your Settlement Agreements.

David M. Fry, May 19, 2021
Settlement Default Judgment Settlement Agreements Damages

Checkered Flag
Bas van den Eijkhof, Unsplash

Default judgments are uncommon in Delaware patent cases. In the rare instance where a defendant misses an answer deadline, the issue is typically resolved with minimal court intervention, either because the plaintiff agrees to an extension or the court sets aside the entry of default.

But in a recent case against Aston Martin, LLC (brought by Display Technologies, LLC), it appears that a default judgment might actually be moving forward. (Side note: it isn't clear to us whether the correct legal entity was sued or served, and we take no position on that front.)

The complaint was filed in February 2020, the summons was served in May, and the clerk entered a default in July. The plaintiff eventually moved for a default judgment in December, seeking an award of $75,000 to $1 million (based on damages estimates from a client affidavit).

On Monday, Judge Andrews recognized that it would "be necessary to have a hearing in order to determine the amount of damages[,]" but made clear that he wasn't going to take the plaintiff's word for the damages number ...

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Willfulness Evidence Comes In During Liability Phase, Rules Chief Judge Stark

Jeff Castellano, May 18, 2021
Bifurcation Damages Willfulness

In a recent order, Judge Stark ruled that evidence of willfulness would come in during the liability phase of a jury trial in which liability and damages are being tried separately. The ruling was one of several issued in the lead up to the June jury trial in Sunoco Partners Marketing & Terminals L.P. v. Powder Springs Logistics, LLC, C.A. No. 17-1390-LPS.

In his ruling, Judge Stark noted that "[t]he Court's interest in conservation of resources disfavors Defendants' request,"...

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Judge Connolly Tosses Damages Opinion Based on CEO's Testimony

Jeff Castellano, May 11, 2021
Daubert False Advertising Lanham Act Damages

In a recent Daubert ruling in CareDx, Inc. v. Natera, Inc., C.A. No. 19-662-CFC-CJB, Judge Connolly excluded the opinion of the plaintiff's expert regarding "corrective advertising damages," in part because it was based on "vague, undocumented, and back-of-the-envelope . . . estimates" by the plaintiff's CEO. The Judge granted the defendant's motion to exclude the expert's testimony under both Rule 702 and Rule 403, indicating that not only did the expert's opinion fail to satisfy the Daubert hallmarks for admissible expert testimony, it would also confuse the jury and be prejudicial because it "would essentially place the imprimatur of an expert on [the CEO] Maag's undocumented and dubious damages calculation."

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The Rare Daubert Motion That Consistently Succeeds

Nathan R. Hoeschen, March 18, 2021
Daubert Damages

Daubert motions are as tough as they are common. It seems every case spawns at least one on each side, and the vast majority are denied with the Court finding that any deficiencies in the expert's methodologies are merely grounds for exploration on cross-examination.

One type that consistently beats these odds (at least in Delaware) is directed to damages experts that attempt to use the damages figures from prior jury verdicts as starting points for a hypothetical negotiation.

Judge Andrews in particular has held a hard line on this issue as shown in his decision on Wednesday in Sprint Communications Company L.P. v. Charter Communications, Inc, C.A. No. 17-1734-RGA, D.I. 573 (D. Del. Mar. 16, 2021). …

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Chief Judge Stark Confirms $137m Damages Award on 65% Royalty Theory, But Reverses Jury Finding of Willfulness

Andrew E. Russell, Nov. 30, 2020
Experts JMOL Verdict Jury Trials Post-trial Motions

Dollar Bills
Sharon McCutcheon, Unsplash

Chief Judge Stark today released his opinion on post-trial motions in Roch Diagnostics Co. v. Meso Scale Diagnostics, LLC, C.A. No. 17-189-LPS (D. Del.), following a jury trial last year that resulted in a $137m verdict and a finding of willfulness.

Damages Award on 65% Royalty Theory Confirmed

The Court denied a post-trial motion to undo the jury's damage finding, which equated to an approximately 65% royalty rate (or more, depending on the royalty base).

Interestingly, the jury awarded damages after a one-sided royalty rate presentation by Roche, the accused infringer. The Court had previously excluded the patentee's damages expert's opinion as to the royalty rate, because it used the wrong date …

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Court Orders "Unusual" Preliminary 30(b)(6) Deposition, Suggests Sanctions After Defendant Potentially "Hiding the Ball" on Damages

Andrew E. Russell, Oct. 18, 2020
Discovery Sanctions 30(b)(6) Sua Sponte Damages

Google tells me
Google tells me "hide the ball" is a football thing. Dave Adamson, Unsplash

In Guest Tek Interactive Entertainment, Ltd. v. Nomadix, Inc., C.A. No. 18-1394-RGA (D. Del.), plaintiff sent RFPs for various financial documents, but defendant produced only a single page profit and loss statement for each year, claiming no more was available.

Plaintiff brought a discovery dispute and asked Judge Andrews to order production of any further documents in defendant's possession.

Judge Andrews declined. Instead, he sua sponte suggested that the parties resolve this via a 30(b)(6) deposition about the kinds of financial information that defendant keeps:

[D]o a 30(b)(6) deposition and find out if there are any other documents. And you know, …
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