This case involves alleged competitive damages suffered by an IT provider that implemented a cloud-based solution for public sector entities. The IT provider successfully completed a large project that was one of the first implementations of this type of solution. A competitor, another IT firm, presented information to the potential clients about their previous project experience alluding to the fact that they were a prime contractor having a direct relationship with the client and thereby misrepresenting their ability to satisfy proposal qualification requirements. It was alleged that the competitor’s misrepresentations have created customer and business partner confusion and given them an improper competitive advantage.
Question(s) For Expert Witness
- 1. Please describe your experience/knowledge in the public sector enterprise software industry, specifically your familiarity with how clients and projects in this field are identified and how RFPs are created.
- 2. Have you ever opined on damages in a case involving unfair competition between government contractors?
Expert Witness Response E-074143
I have worked on similar cases that involved false advertising. One involved a provider of internet-based legal services that sued a competitor that marketed a specific service as free that in reality was not (it required a state registration fee). By claiming it was free, we had to prove that the competitor was taking business away from the company. I developed a damage model to determine how much business they were losing, which involved examining how much follow-up business the company had been receiving. I also calculated damages due to false advertising for a hospital product in a different case. For this case, I would look at the rate that this company was winning bids, the rate of continuing business, and the growth/decline in their business since the competitor started falsely marketing themselves. Another aspect that must be addressed is the sales process of their competitor.
Expert Witness Response E-035715
I have extensive experience calculating and opining on damages for IP infringement. I have worked on two cases that concerned trade secrets as well as trademark and copyright infringement. For this case, I would calculate and opine on the damages that the plaintiff has suffered due to the defendant’s misrepresentation of their clients and services. This would entail examining the opportunities the plaintiff lost to the defendant. Further damages could be calculated by analyzing all of the plaintiff’s past projects and, for example, looking at the percentage of past projects that they won where the client came back with new projects. This would further demonstrate not only the bids they tried to win and lost to the defendant but other bids that they lost to the defendant that they were never even considered for.