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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Class Action and Other Litigation

Date & Time
  • event Date

    Tuesday, November 14, 2023

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE webinar will discuss sufficiently proving damages and damages strategies in breach of contract cases, offering best approaches for each phase of a dispute from discovery through closing argument and verdict forms. The panel will identify the types of available damages and their components, the type of proof needed to recover, defenses, burdens of proof, mitigation, and the effectiveness--or lack thereof--of contractual limitations on damages. Since most breach of contract lawsuits also allege unjust enrichment, the panel will review damages for this cause of action.

Faculty

James J. Boland
Partner
Smith Gambrell Russell

Mr. Boland is a Partner in the Litigation and Insurance Practices of Smith, Gambrell & Russell, LLP. He was a Partner Freeborn & Peters, which combined with SGR in 2023. Mr. Boland focuses his practice on complex commercial litigation and domestic and international arbitration. He has extensive experience and has represented a variety of corporations, businesses and professional firms in matters involving reinsurance (life & health, property & casualty), antitrust, securities fraud, accountant liability, consumer protection, shareholder and derivative disputes, mergers and acquisitions disputes, including post-closing disputes, and a variety of other commercial matters. Mr. Boland also has extensive experience in class action litigation, representing corporations and businesses in matters involving antitrust, securities fraud, residential and commercial mortgage practices, false advertising, commercial leasing and other retail sales and marketing practices, and has experience in SEC and other governmental investigations.

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Anthony L. Cochran
Partner
Smith Gambrell Russell

Mr. Cochran represents individuals and businesses in a wide variety of matters. He has tried jury trials, bench trials, administrative and regulatory hearings, and medical peer review hearings. He has appeared on many panels and spoken at seminars on a variety of topics, including the application of the Daubert rule and a host of topics related to white-collar criminal law and investigations.

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Katheleen A. Ehrhart
Partner
Smith Gambrell Russell

Ms. Ehrhart is a Partner in the Litigation Practice of Smith, Gambrell & Russell, LLP. She was a Partner at Freeborn & Peters, which combined with SGR in 2023. Ms. Ehrhart has extensive experience working with executives, senior management, and in-house counsel of corporations in managing litigation as well as advising on litigation risks and strategy. Her areas of focus include complex commercial litigation with particular emphasis on restrictive covenant cases, class actions, reinsurance, antitrust, securities fraud, accountant liability, employment and breach of contract claims.

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Description

Determining and proving breach of contract damages can be rife with uncertainty, and parties may be tempted to put off analyzing damages until the end of the case. Early evaluation, however, is crucial to a winning strategy that avoids surprises and increases the likelihood of a satisfactory result.

In general, the injured party is entitled to recover damages that are the natural and probable consequence of the breach, but determining this is not as easy as it sounds. Contracts routinely attempt to prevent recovery of "consequential" damages and require careful analysis to determine if such clauses are effective. In many cases, the clauses have been poorly drafted or do not apply to the damages in question.

The doctrine of unjust enrichment permits recovery without the benefit of an enforceable contractual obligation, where the defendant has unfairly benefited from the plaintiff's efforts without compensation.

Listen as this experienced panel of commercial litigators discusses damages strategies in breach of contract cases.

Outline

  1. Damages overview
    1. Actual damages
      1. Benefit of the bargain and expectation damages
      2. Reliance and sunk cost damages
      3. Necessary expenses as damages
      4. When are market value damages consequential vs. general?
    2. Consequential damages
      1. Lost profits
    3. Nominal damages
    4. Liquidated damages
    5. Punitive damage
    6. Legal fees
    7. Interest
    8. Unjust enrichment
    9. Disgorgement
    10. What is the "loss of chance" doctrine in breach of contract claims?
  2. How do you claim/prove contract damages? What is required to sufficiently obtain compensatory damages?
    1. Pleading damages
    2. Damages models or valuation methods
      1. Example – Lost profits – What is required to recover lost future profits?
    3. Necessity and selection of experts
    4. What is the legal standard/requirement for the category of damages you seek? “Do your homework”
    5. Are there ways to avoid application of "no consequential" damages clauses in contracts?
    6. Focus on the business records – be a technician
      1. Can you use Rule 1006 summary evidence?
  3. How do you attack/disprove contract damages?
    1. Daubert challenge?
    2. Mitigation?
      1. Burden of proof?
    3. Alternative causes? (Market forces?)
    4. What are unforeseeable damages?
      1. For instance, can the non-breaching party recover losses incurred from its dealings with third parties?
      2. When does the “economic loss rule” apply?
    5. What is the standard to establish an enforceable liquidated damages clause?
    6. Reducing settlement value?
    7. Discussing damage amounts at trial?
    8. Voir dire, opening and closing statements

Benefits

The panel will review these and other key issues:

  • What is required to sufficiently prove compensatory damages?
  • What are foreseeable damages?
  • Are there ways to avoid application of "no consequential" damages clauses in contracts?
  • When are market value damages consequential vs. general?
  • What is the "loss of chance" doctrine in breach of contract claims?
  • Can the non-breaching party recover losses incurred in its dealings with third parties?