Wayne Berry v. Post-Confirmation Trust for Fleming Companies, Inc.
In a copyright infringement case, Analysis Group assisted defense counsel in obtaining a jury verdict of $57,500 in actual damages and no disgorgement of profits. Analysis Group was retained by Kirkland & Ellis on behalf of the trustees of Fleming Companies in the lawsuit brought by Wayne Berry, a freight logistics software developer. Mr. Berry alleged that Fleming, a now bankrupt grocery supplier, had used unauthorized copies of his Freight Control System software.
Analysis Group Managing Principal Jeffrey H. Kinrich testified on actual damages and the amount of profits earned by Fleming through its infringement at the trial. He critiqued the opposing expert's actual damages claim of $2.7 million, which was based on a reasonable licensing fee per shipping container processed through the software during the period of infringement. Based on analysis of other licenses that Mr. Berry used for his software, Mr. Kinrich testified that actual damages were approximately $10,000.
Mr. Berry's expert also testified that Mr. Berry was entitled to over $45 million of profits that Fleming allegedly earned through its unauthorized use of the software. Mr. Kinrich countered that Mr. Berry was not entitled to any profits earned by Fleming during the period of infringement, and that Fleming had lost money during that period and thereby had no profits to disgorge.
The jury awarded $57,500 in actual damages, closely matching Mr. Kinrich's estimation of actual damages suffered by Mr. Berry, and agreed that there were no profits earned by Fleming through its infringement. The Analysis Group team included Vice President Kevin Gold.