VI. Quantifying Damages as the Sum of Discounted Lost Cash Flows

A. Is There Disagreement About But-For Revenues in the Past?

B. Is There Disagreement About the Costs That the Plaintiff Would Have Incurred but for the Harmful Event?

C. Is There Disagreement About the Plaintiff’s Actual Revenue After the Harmful Event?

D. What Is the Role of Inflation?

1. Do the parties use constant dollars for future losses, or are such losses stated in future dollars whose values will be diminished by inflation?

2. Are the parties using a discount rate properly matched to the projection?

3. Is one of the parties assuming that discounting and earnings growth offset each other?

E. Are Losses Measured Before or After the Plaintiff’s Income Taxes?

F. Is There a Dispute About the Costs of Stock Options?

G. Is There a Dispute About Prejudgment Interest?

H. Is There Disagreement About the Interest Rate Used to Discount Future Lost Value?

I. Is One of the Parties Using a Capitalization Factor?

VII. Limitations on Damages

A. Is the Defendant Arguing That Plaintiff’s Damages Estimate Is Too Uncertain and Speculative?

B. Are the Parties Disputing the Remoteness of Damages?

C. Are the Parties Disputing the Plaintiff’s Efforts to Mitigate Its Losses?

D. Are the Parties Disputing Damages That May Exceed the Cost of Avoidance?

E. Are the Parties Disputing a Liquidated Damages Clause?

VIII. Other Issues Arising in General in Damages Measurement

A. Damages for a Startup Business

1. Is the defendant challenging the fact of economic loss?

2. Is the defendant challenging the use of the expected value approach?

3. Are the parties disputing the relevance and validity of the data on the value of a startup?

B. Issues Specific to Damages from Loss of Personal Income

1. Calculating losses over a person’s lifetime

2. Calculation of fringe benefits

3. Wrongful death

4. Shortened life expectancy

5. Damages other than lost income

C. Damages with Multiple Challenged Acts: Disaggregation

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