Against the Odds
In a unique trade secrets dispute, a small technology company alleged that proprietary and confidential information it had taken years to develop had been misappropriated by its largest corporate client. The plaintiff further alleged that the trade secrets represented the foundation of its business model. Absent a ruling in its favor, the small company faced the very real prospect of going out of business.
Nonetheless, litigation over these claims represented an uphill battle for the plaintiff. To begin with, the defendant was prepared to mount a vigorous defense and had ample financial resources at its disposal. Additionally, the defendant was a well-respected, well-known company with a strong brand and reputation. Furthermore, the defendant had developed evidence to support the argument that the alleged trade secrets were no more than ideas, estimates and opinions that the defendant helped the plaintiff to implement through a trial program. And that the program's success was largely due to the defendant's reputation and credibility.
The VLF Evaluation ProtocolSM was employed to analyze these, as well as other factors. The results of the analysis indicated that this matter would have met our funding criteria. When the case was eventually tried to a jury, the plaintiff not only prevailed on its claims, but was awarded both compensatory and punitive damages.
In one particularly emotion-laden dispute, plaintiffs filed suit against a large television production and distribution company. They alleged that a reality show produced by the company exploited their privacy; manipulated the portrayal of a family member's unexpected death and the family's reaction to it; and caused severe emotional distress. The family was seeking tens of millions of dollars in damages.
Indications were that the venire was not only sympathetic to the plaintiffs, but was also overwhelmingly predisposed to believe a key allegation underlying the plaintiffs' legal claims. Namely, that companies involved in the production and distribution of real-life drama programs would do anything to increase their ratings.
In spite of these factors, which favored the plaintiffs, the VLF Evaluation ProtocolSM tapped into a unique set of constructs. Constructs that are more informative of jurors' likely decision-making than are simple “who do you favor” measures. After collecting and analyzing data critical to understanding these constructs, the VLF Evaluation ProtocolSM concluded that this matter would not have met our criteria for funding.
Interestingly, despite the risks inherent in a jury trial involving such sensitive and emotionally-charged issues, the defendant chose not to settle the matter and the case was tried to verdict. The result was a complete victory for the defense. The VLF Evaluation ProtocolSM correctly indicated that this matter would not have been appropriate for VLF financing.
When a "Win" is Not a Win
In a toxic tort matter that took many years to resolve, a consortium of agricultural businesses brought suit against a chemical manufacturer. The plaintiffs alleged that the use of defendant's product caused contamination and disease to spread through their sites, destroying their businesses and ruining their livelihood. The plaintiffs sought a compensatory award of tens of millions of dollars and much more in punitive damages.
Here again, significant vulnerabilities in the defendant's case were present. As an example, prospective jurors were predisposed to believe that the defendant had previously demonstrated a reckless disregard for the safety and welfare of the public. Likewise, prospective jurors were inclined to believe that the defendant had, for many years, intentionally concealed the risks and dangers of using their product.
However, when this matter was assessed using the VLF Evaluation ProtocolSM, the results indicated that it would not have been suitable for VLF funding. The analysis provided by the VLF Evaluation ProtocolSM would have been correct on two counts.
First, the case was eventually tried to verdict in front of a jury. And the jury rendered a verdict in favor of the plaintiffs. However, the jury awarded the plaintiffs only a small fraction of the damages they were seeking. As compared to the time and expense of prosecuting the litigation, the award was barely worth the cost. For VLF, as well as the client, the case would not have been prudent to pursue.
Second, the verdict was ultimately appealed by the defendant. And the appellate court threw out the jury's damage award – essentially handing the defense a victory, and the plaintiffs a staggering loss.
Cutting Through the Noise
In a matter involving a high-profile plaintiff company and well-known public figures, the VLF Evaluation ProtocolSM would have provided valuable guidance. A large, publicly-traded company brought a suit against a smaller, but very aggressive rival. The plaintiff alleged that key personnel – who had at one time served as executives with the plaintiff company – had misappropriated corporate assets.
Furthermore, it was alleged that those assets had been earmarked to fund the incentive compensation plans of thousands of employees at the plaintiff company. At the time the suit was brought, in the midst of the recent recession, the plaintiff company was at risk of collapsing due to the turmoil caused by the financial crisis.
Additionally, several of the most important fact witnesses for the defense had been embroiled in highly publicized matters relating to their involvement in unrelated financial and accounting irregularities.
Despite the context surrounding the case, and the whirlwind of subplots and tangential issues that existed at the time, the VLF Evaluation ProtocolSM was able to objectively assess the merits of the claims and the chances for obtaining a recovery. The guidance it provided suggested that the probability of achieving a successful outcome was not great enough to provide VLF with the confidence we require to fund a case.
In the end, the matter was tried to verdict – and the jury handed the defendant a complete victory.