Date: Tue, 27 Feb 2007 00:38

From: David Cheifetz

Subject: Waiver of tort

Jason,

That's changing the facts of the case and the evidence, as I read it. There was no evidence that the fraudsters would have paid the higher price. The fraud was designed to allow the fraudsters to qualify for the lower price which was an existing 3Com program. If we say they would have paid some higher price, on what basis? And what would it be?

The trial reasons are here.

Look at paras 52 and 53 of the trial judgment - the rebates issue - and you'll see how the trial judge got around the problem. But then look at para 58 of the CA judgment. That means only one of the 3 rebates that made up the trial award was an actual loss. So, the rest is loss of profit for notional sales for which there seems to have been no evidence. Wouldn't the proper procedure have been to discount by the likelihood of the sales having been made, assuming here was enough evidence of a substantial enough possibility of sales?

David

--------------------------------------------------------------------------------
From: Jason Neyers
Sent: February 26, 2007 10:10 AM
Subject: Re: ODG: Waiver of tort

But there was a loss the price they would have gotten but for the deceit from the purchaser.

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