Business interruptions are becoming more common and it is expected that claims associated with lost profits will likely increase. In these situations, it is important to know the legal requirements and to vet your experts accordingly. For example, California law- see California Civil Jury Instructions 3903N. Lost Profits (Economic Damage)- does not require lost profits arising from business interruption to be calculated with mathematical precision. However, it does require a reasonable basis for calculation. In business cases, damages must be based on net profits as opposed to the gross revenue of the business1.
To calculate the lost profit the expert will generally take one of three approaches: 1) The before and after approach, 2) the comparables approach, or 3) the sales projection approach. All of these require the expert to make some judgments concerning the relevant projected cash flows and costs. In order to do so, the expert must first ascertain the relevant information from the financial statements, contracts, or business plans to support the basis of lost profits. Projections have to be examined from a multi-faceted perspective. A well trained eye should lookout for seasonality, cyclicality, and underlying macroeconomic conditions adjusting projections accordingly.
The expert should also be familiar with how to appropriately breakdown the cost structure of a business and distinguish between fixed and variable costs when analyzing financial statements. As these are the factors that allow the economist to determine “the gross amount the business would have received but for the interruption and then subtract from that amount the expenses.”2
After the reasonable basis for the losses has been established, the present value of the loss of profit due to the interruption must be calculated. In general, for a lost profits case, the expert economist should know to not use the weighted average cost of capital as would be used in a loss of business value case. Lost profits are typically discounted less heavily by using the plaintiff’s marginal cost of capital. Thereby taking into account the rate associated with the plaintiff’s ability to borrow as opposed to the company’s opportunity cost should extra capital be required.
California Law Specifies: Damages must be pled with particularity but they must also be proven to be certain both as to their occurrence and their extent, albeit not with “mathematical precision.”3 Evidence makes reasonably certain their occurrence and extent.’ Such damages must ‘be proven to be certain both as to their occurrence and their extent, albeit not with ‘mathematical precision. ”4 Historical data, such as past business volume, supply an acceptable basis for ascertaining lost future profits. In some instances, lost profits may be recovered where plaintiff introduces evidence of the profits lost by similar businesses operating under similar conditions.”5
In Sargon, the California Supreme Court reinstated a trial court decision to exclude the testimony of James Skorheim, who projected that a small start-up company would have become a giant in the dental implant industry for purposes of projecting damages. The trial court had excluded Skorheim’s lost profits testimony as speculative. A Court of Appeals decision had held that Skorheim should have been permitted to testify. The California Supreme Court explained the trial court decision in some detail and reinstated the trial court decision, saying:
The trial court’s preliminary determination whether the expert opinion is founded on sound logic is not a decision on its persuasiveness. The court must not weigh an opinion’s probative value or substitute its own opinion for the expert’s opinion. Rather, the court must simply determine whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is based on a leap of logic or conjecture. The court does not resolve scientific controversies. Rather, it conducts a “circumscribed inquiry” to “determine whether, as a matter of logic, the studies and other information cited by experts adequately support the conclusion that the expert’s general theory or technique is valid.” (Imwinkelried & Faigman, supra, 42 Loyola L.A. L.Rev. at p. 449.) The goal of trial court gatekeeping is simply to exclude “clearly invalid and unreliable” expert opinion. (Black et al., Science and the Law in the Wake of Daubert: A New Search for Scientific Knowledge (1994) 72 Tex. L.Rev. 715, 788.) In short, the gatekeeper’s role “is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” (Kumho Tire Co. v. Carmichael, supra, 526 U.S. at p. 152.)
Regarding lost business profits, the cases have generally distinguished between established and unestablished businesses. “Where established business is prevented or interrupted, as by a … breach of contract . . . , damages for the loss of prospective profits that otherwise might have been made from its operation are generally recoverable for the reason that their occurrence and extent may be ascertained with reasonable certainty from the past volume of business and other provable data relevant to the probable future sales. ”6
Complexities arise due to the nature of the business and sales process. A retail store, online store, or both have terminals or point of sales systems providing different types of information in terms of transactions would exist and there may be duplicate entries and so on. A well prepared expert will examine all available information, confirm and project sales & expense records and figure out what the sales, expenses, and hence profits would have been had the interruption not happened, considering seasonality, and cyclicality and time trends.
As one can see, the issues associated with lost profits from business interruptions can be complex and vary widely. From the cause of the interruption to the very details that establish a reasonable basis and determine the award. Contact an economist, should you need help with calculating your losses.
1 Parlour Enterprises, Inc. v. Kirin Group, (2007) 152 Cal.App.4th 281, 287
2 California Civil Jury Instructions 3903N. Lost Profits (Economic Damage)
3 Greenwich v. Wong (2010) 190 Cal.App.4th 739, 754 [118 Cal.Rptr.3d 531]
4Lewis Jorge Construction Management, v. Pomona Unified School Dist. (2004) 34 Cal.4th 960, 975
5Berge v. International Harvester Co. (1983) 142 Cal.App.3d 152, 161-162
6 6 Grupe v. Glick, supra, 26 Cal.2d, 692