Vernon Walden, Inc., v. Lipoid Gmbh, et al.
June 21, 2010
Slip Copy, 2005 WL 3088333 (D.N.J.)
(United States District Court, D. New Jersey, 11/17/05)
This was a breach of contract and Robinson-Patman anti-trust action brought in Federal Court by a former agent Itkowitz’s client, Lipoid GmbH and Lipoid USA, LLC. The major threat in this case was the Robinson-Patman anti-trust cause of action because under Section 4 of the Clayton Act, a prevailing plaintiff is entitled to treble damages. In this particular case, the plaintiff’s expert sought to establish that it had suffered injuries to the “violation” of the Robinson-Patman Act in the amount of $1,729,191 or, when trebled, $5,187,573. Itkowitz was able to get the expert’s testimony excluded because the expert testimony failed to connect the alleged antitrust damage proofs to sales losses directly to price discrimination. The court also excluded the testimony on the ground that the expert improperly relied upon his client’s “speculations” as to sales (and profits) that would have occurred in the absence of the alleged violation. The court held that because the foundation of the expert’s opinion was “unreliable”, the court found that the “opinion itself is unreliable”. Once this decision was issued, which foreclosed the possibility of treble damages on the day before the jury trial was scheduled to commence, the case was settled on favorable terms. Link to Full Text of Decision
