Triggering a Bit of Déjà Vu, Delaware Judge Throws Out Flawed Damages Case on Eve of Trial

November 26, 2021

Before the Thanksgiving holiday in the US, District of Delaware Judge Richard G. Andrews excluded a fact-based damages theory put together by inventor-controlled NexStep Inc. on the eve of its September 2021 trial against Comcast. That damages theory was so last minute because Judge Andrews had previously stricken from NexStep’s actual damages expert report a cost-savings approach, based on the expert’s “arbitrary” opinion that Comcast would have been willing to split any purported cost savings equally with NexStep, a choice that Judge Andrews found was “without support by facts specific to these parties” and thus was based on a “fundamentally flawed premise”. This ruling—throwing out a last-ditch damages theory after an earlier cost-savings approach was rejected—might sound familiar, as it echoes the circumstances now at the center of Finjan, Inc.’s appeal of an award of roughly $6M in attorney fees in its litigation against Juniper Networks.

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