The BERO Group Case Studies

A brief overview of select engagements.

Intellectual Property Litigation

Patent Infringement

The BERO Group was hired by the plaintiff in a patent infringement case involving snowplow attachment assemblies. Our client was the market leader, while the accused snowplows represented the defendant’s first attempt to enter the market. Based on plaintiff’s detailed, internal market information and interviews with customers and dealers, we determined the plaintiff’s market share and confirmed the patented technology was a major consideration in customer purchasing decisions. As a result, we opined market share lost profits were appropriate with a reasonable royalty applied to entire snowplow assembly for the remaining sales.

The defendant sold its snowplow attachment assemblies at prices well below prices charged by the plaintiff and other market competitors. We opined that, even though the reasonable royalty we calculated may have left the defendant without any net profit for some periods, the defendant could have either increased its prices to cover the royalty, maintained its pricing and accepted lower profits, or increased its pricing to cover a portion of the royalty. Before trial, the judge ruled defendant did not infringe the patent-in-suit. On appeal, in a published decision, the Federal Circuit reversed the lower court’s ruling of non-infringement, found the plaintiff’s patent was infringed, and remanded for a new trial on damages. The Federal Circuit also stated the defendant could have increased its prices to cover the proposed royalty. We testified at trial, and the jury awarded the substantial majority of damages we claimed. On appeal for a second time, the Federal Circuit affirmed the jury’s verdict.

Trademark Infringement

We were hired by the plaintiff in a trademark infringement matter regarding plaintiff’s service mark. The plaintiff was a regional financial institution and the defendant was a large national bank. In its marketing, defendant used a substantially similar phrase to the phrase plaintiff used in its marketing, which the plaintiff claimed created confusion in the market. We determined damages, including corrective advertising damages. After multiple reports and our deposition, the case settled before trial on terms favorable to our client.

Patent Infringement

We were hired by the defendant in a patent infringement case concerning lawnmower blades. The parties were indirect competitors focusing on different market segments. The plaintiff’s damages expert claimed a combination of lost profits and reasonable royalties. We determined lost profits were inappropriate because the Panduit factors were not met. Based on internal surveys and extensive interviews with the defendant’s top customers, we determined there were multiple reasons customers purchased the accused blades and the patented technology did not appear to be a major purchasing consideration for customers. After our deposition, the case settled for an amount closer to our claimed damages than the damages claimed by the plaintiff.

Commercial Litigation

Breach of Contract

The BERO Group was hired by the defendant to rebut damages in a breach of contract case. Plaintiffs started a co-op retail store that failed and they sued the co-op claiming the store never could have been profitable. The plaintiffs’ damages expert claimed that, but-for the investment in the store, plaintiffs otherwise would have earned a safe rate of return on their savings. We opined the plaintiffs’ damages analysis was unrelated to the facts of the case.  We testified at trial and plaintiffs were not awarded any damages.

Distributor Termination

The BERO Group was hired by the defendant to rebut damages claimed by a terminated distributor, who claimed damages under several scenarios related to its inventory liquidation and inability to collect on its receivables. Based on the quality of its inventory, we determined the plaintiff sold its inventory at appropriate prices. We also opined none of plaintiff’s claimed damages under any of its scenarios had been quantified to a reasonable degree of economic certainty. We testified in arbitration and the ruling was favorable to our client.

Bankruptcy/Breach of Contract

We represented a plaintiff bank in a foreclosure action. The defendants counterclaimed, alleging they lost profits because the bank foreclosed on a business that otherwise would not have failed. We determined the business failed largely due to owner mismanagement. Based on our analysis, the owners mixed personal and business expenses, withdrew too much money from the business, and ignored the advice of their outside accountant. After our report issued, the case settled favorably for our client.

Forensic Accounting

Criminal Fraud Matter

The BERO Group was hired to conduct a forensic investigation by a distributor and victim of a multi-year fraud perpetuated by one of its employees, who also had a second career representing several professional athletes. Our investigation and analysis showed the employee at issue had requisitioned company funds for amounts far greater than the cost of events the company was sponsoring or thought it was sponsoring.  We assisted the FBI in its criminal investigation of the employee, including additional allegations the employee improperly used company credit cards. The FBI used our analysis as part of its basis for filing multiple criminal counts against the employee.