A blog about patent, copyright and trademark law in the U.S. District Court
for the Southern District of New York

Court Denies Indirect Profits in Copyright Infringement Action as Lacking Causal Link to Infringement

In a November 8, 2013 ruling, Judge Katherine B. Forrest granted defendant ABN Ambro Bank, N.V.'s motion in limine to preclude plaintiff Complex Systems, Inc. from offering evidence of indirect profits in its copyright infringement action.  Judge Forrest had previously granted summary judgment of liability in favor of Complex Systems on its claim that ABN Ambro infringed its copyright in a software program known as BankTrade 8.0, which is used by ABN Ambro "in its letter of credit and guarantee business."  ABN Ambro then moved to preclude evidence of Complex Systems' indirect profits as part of its damages.

Judge Forrest first described the way in which the BankTrade 8.0 software was used by ABN Ambro.  In particular, "BankTrade is one of four trade processing systems used by ABN to process letters of credit and guarantees; BankTrade is not used to process foreign exchange spreads, treasuring funding, loans, lines of credit, or overdrafts."  Based on this use, Complex Systems argued for a portion of ABN Ambro's profits under the following reasoning (as characterized by ABN Ambro):  "'(1) without BankTrade, ABN could not process letters of credit, (2) without letters of credit, [ABN] would not conduct other types of trade finance transactions, and (3) therefore, without BankTrade, ABN would not conduct other types of trade finance transactions.'"

The Court then examined the reports of Complex Systems' experts, Jarosz and Smith.  The Court concluded that "Jarosz has proffered reasonable estimates of revenues somehow connected to or touching BankTrade.  His extensive analysis supports this much. . . . [W]hat is missing is the necessary causation component" between the revenues and the use of BankTrade.  Judge Forrest further found that "Smith's reports and deposition provide significant support for ABN's (and not [Complex Systems']) position on this motion:  that a causal connection between BankTrade itself and specific trade finance revenues is lacking."

In determining to grant the motion in limine, the Court noted that the "profits associated with ABN's use of BankTrade are necessarily indirect:  they are based on assumptions regarding the use of BankTrade to lead to a transaction, which may lead to subsequent transactions (and subsequent profits) for ABN. . . . [I]n order to make out such a claim for indirect profits, [Complex Systems] bears the burden of showing a causal connection between ABN's use of BankTrade and the profits sought."  Judge Forrest held that while "it is clear that BankTrade is related to and supports ABN's work in the trade finance sector -- specifically by processing letters of credit and guarantees for ABN -- [Complex Systems] has failed to identify the ways in which ABN's profits are attributable specifically to BankTrade."  Accordingly, Judge Forrest ruled that Complex Systems "has failed to make a sufficient evidentiary showing of a causal connection between BankTrade and ABN profits," and granted the motion in limine.

The general information and thoughts posted to this blog are provided only as an informational service to the web community and do not constitute solicitation or provision of legal advice. Nothing on this blog is intended to create an attorney-client relationship and nothing posted constitutes legal advice. You should understand that the posts by the author, who is an attorney at U.S. law firm Allegaert, Berger & Vogel, may or may not reflect the views of that firm and that the author of this blog is only authorized to practice law in the jurisdictions in which he is properly licensed to do so. For additional information, click here.