Damages

Question 1

Harolds Stores v. Dillards

Answer 1

1) Dillards admits it stole dress design from Harolds

2) Harolds uses survey to determine damages
a) Survey uses only college age women
b) Dillards argues that this is not representative of all customers

3) Court disagrees; Harolds caters mostly to college women; most stores located near campuses

Question 2

VW v. Uptown Motors

Answer 2

1) VW claim
a) Uptown’s use of the VW logo confused consumers re: whether it is an “authorized” VW dealer

2) VW evidence
a) True experiment

3) Subjects
a) People getting VW’s serviced at 3 NYC VW dealers

4) Independent variable
a) Shown ad with VW logo, or with logo replaced with the word “Volkswagen”

5) Results (%Yes)
a) Logo condition: 45%
b) Name Condition: 28%
c) Logo effect: 17%

6) Holding
a) Likelihood of confusion demonstrated

7) Damages
VW awarded 17% of Uptown’s profits= $221,000

Question 3

Cimino v. Raymark Industries

Answer 3

i. the class consisted of 2,298 claims.
ii. jury found that the defendants sold products that were unreasonably dangerous and that each defendant was guilty of gross negligence.
iii. district court divided the plaintiffs’ damages into five categories of disease that might have resulted from exposure to asbestos: mesothelioma, lung cancer, other cancer, asbestosis, and pleural disease
iv. The district court then randomly selected 160 sample cases (a statistically significant percentage of the total claims) that included plaintiffs from each disease category. As to each of these 160 cases, the district court charged the jury with respect to determining whether the individual plaintiff sustained harm from an asbestos-containing product and, if so, the amount of damages that should be awarded.

d. Cimino appeal (5th Circuit)
i. Can’t aggregate sample under 7th amendment
Right to individual trial

Question 4

Marcos Human Rights Litigation

Answer 4

i. Plaintiff uses aggregate sampling to determine damages for torture, execution, disappearance
1) Variables:
a) Torture prior to death
b) Actual killing/disappearance
c) Victim family’s mental anguish
d) Lost earnings
2) Special master makes recommendations to jury

ii. Defense says aggregating plaintiffs would deprive them of 7th amendment rights
iii. Moves to face plaintiffs individually

iv. 9th circuit upholds use of aggregate sampling
1) Dissent says it violates 7th amendment

Question 5

Walker & Monahan Damages Proposal (1998)

Answer 5

(1) certify class = population to be sampled
(2) plaintiff retains expert to conduct a survey of damages

(3) expert is admissible,
if testimony passes FRE 702/Daubert test

(4) defendant free to retain a survey expert
(5) findings of survey(s) presented to jury, stratified by subclasses
(6) No individual damages permitted.

Question 6

Dukes v. Walmart

Answer 6

i. Aggregate sampling of class was not representative of all female employees
1) Women hold all different positions at Walmart

ii. Case must be manageable or it will be thrown out

iii. SCOTUS upholds the right to raise individual affirmative defenses
1) Walmart has right to face plaintiffs individually

Question 7

Tyson Foods

Answer 7

i. No overtime pay for time spent donning and doffing protective gear
ii. SCOTUS upholds use of statistical evidence
1) Different than Walmart because all these Tyson employees were the same class of employees