Present: All the Justices
21ST CENTURY SYSTEMS, INC., ET AL.
OPINION BY
v. Record No. 110114 JUSTICE DONALD W. LEMONS
June 7, 2012
PEROT SYSTEMS GOVERNMENT SERVICES, INC.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge
Among the several issues we address in this appeal is
whether the Circuit Court of Fairfax County ("trial court")
erred when, upon a jury's verdict, it awarded Perot Systems
Government Services, Inc. ("Perot") damages for lost goodwill
and other theories against 21st Century Systems, Inc.
("21CSI"), James C. Ballard ("Ballard"), Charles L. Hopkins,
III ("Hopkins"), Charles S. Dellinger ("Dellinger"), and Joseph
Fallone ("Fallone") (collectively, the "Defendants").
I. Facts and Proceedings Below
In August 2009, Perot filed an amended complaint in the
trial court against the Defendants. 1 Specifically, Perot's ten-
count complaint alleged:
1
Perot filed its original complaint in June 2009 and, in
addition to those named above, the original complaint named
Gerald F. Hesch ("Hesch"), Patrona Corporation ("Patrona"), and
Joseph C. Novak ("Novak") as defendants. Perot subsequently
sought and was granted a nonsuit as to Hesch. The amended
complaint also named Patrona and Novak as defendants; however,
Perot subsequently stipulated, and the trial court ordered,
that the claims against these two defendants be dismissed with
prejudice.
1
Count I - breach of fiduciary duty against
Dellinger and Fallone;
Count II - aiding and abetting breach of
fiduciary duty against 21CSI, Ballard,
Hopkins, Patrona, and Novak;
Count III - breach of non-disclosure agreement
against Dellinger and Fallone;
Count IV - breach of non-competition and non-
solicitation agreements against
Fallone;
Count V - tortious interference with contract
against 21CSI, Ballard, Hopkins,
Patrona, and Novak;
Count VI - violations of the Virginia Computer
Crimes Act, Code § 18.2-152.1 et seq.,
against Dellinger and Fallone;
Count VII - violation of Virginia's Conspiracy
Act, Code § 18.2-499 et seq., against
the Defendants;
Count VIII - common law conspiracy to injure
against the Defendants;
Count IX - violation of Virginia's Uniform Trade
Secret Act, Code § 59.1-336 et seq.,
against the Defendants; and
Count X - conversion against the Defendants.
Perot alleged that the Defendants, including the
individual defendants, all of whom were former Perot employees,
conspired for the purpose of "willful[ly] and malicious[ly]
attempt[ing] to destroy [Perot] and steal away tens of millions
of dollars a year of [Perot] business by unfairly and
improperly using [Perot's] confidential and proprietary
2
information" so that 21CSI could establish itself in the United
States Navy consulting business. Among other things, Perot
sought damages to compensate for the loss of revenue and
profits associated with the business misappropriated by the
Defendants, damages to compensate for a forensic investigation
to determine the extent to which Perot's confidential files and
trade secrets had been compromised, and damages for the loss of
goodwill. Specifically, Perot sought $10 million in
"compensatory, incidental and other actual damages" on all ten
counts, with that figure being trebled to $30 million on
Perot's statutory business conspiracy claim (Count VII), and
$350,000 in punitive damages against the Defendants on all but
Counts VI and VII. 2
Prior to trial, the Defendants moved to strike the
testimony of Perot's designated expert, Michael A. Smigocki
("Smigocki"), arguing that "Smigocki's opinions concern matters
within the ordinary knowledge of the jury and therefore do not
assist the jury's understanding of the facts, and the rest are
admittedly so speculative and uncertain that the amount [of
damages] cannot be proved with a reasonable degree of
certainty." Significantly, Perot and its parent corporation,
Perot Systems Corp. ("PSC"), had been sold to Dell, Inc.
2
Perot also sought an award of pre-judgment interest on
all ten counts, as well as an award of $3 million in attorneys'
fees and costs on Counts VI, VII, and IX.
3
("Dell") in the fall of 2009, shortly before Smigocki was
called upon to analyze Perot's value and goodwill and several
months after Perot filed suit in this case. In support of
their motion to strike Smigocki's testimony, the Defendants
argued that "Smigocki admitted that he does not know whether
Dell . . . considered the alleged conduct in its goodwill
calculation at the time it purchased [Perot (several] months
after the suit was filed)." Accordingly, the Defendants
argued, Smigocki's opinions "are by definition the types of
speculative and uncertain damages opinions that Virginia law
and public policy preclude." The trial court denied the
Defendants' motion.
At trial, Smigocki, a certified public accountant and
certified valuation analyst, testified for Perot as an expert
witness in the fields of "lost profit calculations and goodwill
valuation, particularly in the government contracting
industry." Smigocki testified that, of the several types of
economic damage suffered by Perot as a result of the
Defendants' actions, the largest amount of damages results from
lost goodwill. Smigocki defined goodwill as "the difference
between the fair market value of the company, minus the fair
market value of its identifiable assets."
Smigocki testified that the starting point for developing
a goodwill calculation is to determine the fair market value of
4
a company. Smigocki further testified that in conducting the
market value method, in which comparable sales of publicly
traded companies are used to approximate the value of a
particular company, he would typically look for sales of
companies comparable to Perot. He stated that was not required
in this case, however, because PSC had actually been sold to
Dell, establishing an actual value of the company and
eliminating the need to approximate its value based upon
comparable sales.
Accordingly, to estimate the goodwill lost as a result of
the Defendants' actions, Smigocki examined the actual sale of
PSC to Dell in the fall of 2009. Smigocki subtracted the value
of PSC's assets, $1.551 billion, from its sales price, $3.878
billion, to determine the goodwill associated with its sale.
Smigocki concluded that PSC's total goodwill was $2.327
billion. Smigocki then determined that, of that $2.327 billion
in total goodwill, Dell had assigned about $1.6 billion in
goodwill to Perot. All of these figures were reported by Dell
in publically available sworn statements submitted to the
Securities and Exchange Commission ("SEC").
Smigocki then "spread that goodwill over the contracts of
[Perot]," by taking Perot's total annualized revenue, $627
million, and developing "a ratio of that number against the
total goodwill number of [$]1.6 billion." Taking Perot's $1.6
5
billion total goodwill, Smigocki concluded that, "for every
dollar of revenue that [Perot] had," his calculation
demonstrated "that there was $2.57 of goodwill."
Smigocki testified that, based upon the departed
employees' billing rates, Perot lost approximately $1.45
million in revenue "that had gone over to 21CSI as a result of
these individuals leaving." Multiplying this lost revenue by
the 2.57 ratio described above, Smigocki valued Perot's lost
goodwill at $3,742,843. Smigocki also testified that Perot
suffered $64,598 in lost profits as a result of the individual
defendants' departure, based upon the revenues that the former
employees' labor would have generated. However, he testified
that these damages were included in his estimate of lost
goodwill.
The Defendants again moved to strike Smigocki's testimony
at the close of Perot's case-in-chief and at the close of all
the evidence, incorporating all of their previous arguments,
and arguing that Smigocki's opinion regarding Perot's goodwill
was "founded on assumptions that have an insufficient factual
basis." The trial court denied the Defendants' motions.
Bruce G. Dubinsky ("Dubinsky"), a certified public
accountant and certified valuation analyst, testified briefly
for the Defendants at trial as an expert "in commercial
damages, business valuations, and general accounting matters
6
for corporations." Dubinsky's testimony was offered to
demonstrate that Smigocki's opinions regarding damages,
particularly lost goodwill damages, are "highly speculative,
flawed and unreliable." The Defendants sought to elicit
testimony from Dubinsky related to: (1) the "discounted cash
flow method" of valuing goodwill; (2) the problem with
Smigocki's "attempt to try to quantify the loss of goodwill
related to a customer relationship"; (3) certain "allowable
costs"; and (4) an "expected productive hours calculation"
relating to certain of Smigocki's damages testimony. Perot
objected to such testimony, however, citing John Crane, Inc. v.
Jones, 274 Va. 581, 591-92, 650 S.E.2d 851, 856 (2007), and
arguing that Dubinsky's pretrial expert report did not disclose
any opinion as to these various topics. The trial court
sustained Perot's objections.
The jury returned a verdict in favor of Perot on all
claims, and awarded Perot:
Count I - $217,800 in compensatory damages and
$217,800 in punitive damages against
both Dellinger and Fallone;
Count II - $64,598 in compensatory damages and
$64,598 in punitive damages against
21CSI, and $32,299 in compensatory
damages and $32,299 in punitive damages
against both Ballard and Hopkins;
Count III - $217,800 in compensatory damages
against both Dellinger and Fallone;
7
Count IV - $16,916 in compensatory damages
against Fallone;
Count V - $64,598 in compensatory damages and
$64,598 in punitive damages against
21CSI, and $32,299 in compensatory
damages and $32,299 in punitive damages
against both Ballard and Hopkins;
Count VI - $217,800 in compensatory damages and
$217,800 in punitive damages against
both Dellinger and Fallone;
Count VII - $4,113,845 in compensatory damages,
trebled to $12,341,535, against the
Defendants;
Count VIII - $4,113,845 in compensatory damages
and $12,341,535 in punitive damages
against the Defendants;
Count IX - $4,113,845 in compensatory damages
and $4,113,845 in punitive damages
against 21CSI, and $1,028,461 in
compensatory damages and $1,028,461 in
punitive damages against each of the
individual defendants; and
Count X - $12,920 in compensatory damages and
$25,840 in punitive damages against
each of the Defendants.
Following the jury's verdict, the Defendants moved to "Set
Aside the Verdicts and Strike the Counts or, in the
alternative, for Mistrial or Remitt[it]ur," arguing that Perot
"failed to prove its damages by using a proper method or
factual foundation," the "jury's verdict form calculations show
duplicative recovery," and the "duplicative damages must be
eliminated, goodwill damages struck, and [certain other]
damages reduced such that they reflect damages actually
8
incurred by Perot as a result of Defendants' conduct." The
trial court denied the Defendants' motion to set aside the
verdict but it granted the Defendants' motion for remittitur,
in part, and struck the duplicative awards of damages by the
jury.
The trial court awarded Perot: (1) $16,916 on Perot's
breach of non-competition and non-solicitation agreements claim
(Count IV) against Fallone; (2) $4,113,845 in compensatory
damages (consisting of $3,742,843 in lost goodwill damages and
$371,002 in computer forensics damages), trebled to
$12,341,535, jointly and severally, against the Defendants on
Perot's statutory business conspiracy claim (Count VII); and
(3) $350,000 in punitive damages against each of the defendants
on Perot's trade secrets claim (Count IX). The trial court
also awarded Perot $547,541.27 in attorneys' fees in connection
with Perot's statutory business conspiracy claim (Count VII),
and $861,336.29 in attorneys' fees in connection with Perot's
trade secrets claim (Count IX).
The Defendants timely filed their notice of appeal, and we
granted an appeal on the following assignments of error:
1. The trial court committed error when it abused its
discretion and permitted Plaintiff's expert witness
to give opinion testimony based on a model of
goodwill damages that was unprecedented in Virginia
and that was unsupported by the evidence.
9
2. The trial court committed error when it abused its
discretion and it failed to permit Defendants' expert
to present rebuttal testimony on the model of
goodwill damages that was unprecedented in Virginia
and that was unsupported by the evidence.
3. The trial court committed error when it failed to set
aside the damages based upon the model of goodwill
damages that was unprecedented in Virginia and that
was unsupported by the evidence, even if viewed in
the light most favorable to Plaintiff.
4. The trial court committed error when it failed to set
aside the jury verdict awarding duplicative trebled
and punitive damages.
5. The trial court committed error when it failed to set
aside damages that were costs of litigation.
II. Analysis
A. Standard of Review
"Generally, [this Court] review[s] a trial court's
decision to admit or exclude evidence using an abuse of
discretion standard and, on appeal, will not disturb a trial
court's decision to admit evidence absent a finding of abuse of
that discretion." Avent v. Commonwealth, 279 Va. 175, 197, 688
S.E.2d 244, 256 (2010) (quoting John Crane, Inc., 274 Va. at
590, 650 S.E.2d at 855). Additionally, "[w]here the trial
court has declined to strike the plaintiff's evidence or to set
aside a jury verdict, the standard of appellate review in
Virginia requires this Court to consider whether the evidence
presented, taken in the light most favorable to the plaintiff,
was sufficient to support the jury verdict in favor of the
10
plaintiff." Sunrise Continuing Care, LLC v. Wright, 277 Va.
148, 154, 671 S.E.2d 132, 135 (2009) (quoting Bitar v. Rahman,
272 Va. 130, 141, 630 S.E.2d 319, 325-26 (2006)).
A trial court is authorized to set aside a
jury verdict only if it is plainly wrong or
without credible evidence to support it. This
authority is explicit and narrowly defined.
Trial court judges must accord the jury
verdict the utmost deference. If there is a
conflict in the testimony on a material point, or
if reasonable people could differ in their
conclusions of fact to be drawn from the
evidence, or if the conclusion is dependent on
the weight to be given to the testimony, the
trial court may not substitute its conclusion for
that of the jury merely because the judge
disagrees with the result.
. . . In reviewing the evidence, we will
accord the recipient of the verdict the
benefit of all substantial conflicts of evidence,
and all fair inferences that may be drawn from
the evidence.
Bussey v. E.S.C. Rests., Inc., 270 Va. 531, 534-35, 620 S.E.2d
764, 766 (2005) (citations omitted).
B. "Goodwill" Damages and Sufficiency of Evidence of Damages
On appeal, the Defendants argue that the trial court erred
both when it allowed Smigocki "to give opinion testimony based
on a model of goodwill damages that was unprecedented in
Virginia and that was unsupported by the evidence" and when it
"fail[ed] to strike Mr. Smigocki's goodwill damages and damages
calculations because such calculations were clearly unable to
support the jury's verdict."
11
To the contrary, Perot argues that "Smigocki's calculation
of lost goodwill damages mirrored that upheld by this Court in
Advanced Marine [Enters. v. PRC Inc., 256 Va. 106, 501 S.E.2d
148 (1998)]." Accordingly, Perot argues that, in light of our
opinion in Advanced Marine, the trial court properly admitted
Smigocki's testimony regarding lost goodwill damages and
properly refused "to strike the evidence concerning Perot's
damages in the form of lost goodwill." We disagree with Perot.
Any entity injured as the result of a conspiracy to injure
its business may recover the damages sustained because of that
conspiracy. See Code § 18.2-500. Damages for loss of goodwill
may be recovered if proven. We have previously stated that
goodwill "is one of those intangible assets of an established
business difficult to describe and impossible of valuing with
mathematical precision, but . . . of very real existence and of
substantial value." Wood v. Pender-Doxey Grocery Co., 151 Va.
706, 712, 144 S.E. 635, 637 (1928). Significantly, however, we
have also recognized that, "[i]t is obvious that its value in a
given case, would be of no great assistance in assessing it in
other cases where the facts and circumstances were dissimilar."
Id.
In affirming an award of damages for lost goodwill as the
result of a conspiracy to damage a business, we have recognized
that "the market value approach [is] a frequently-used method
12
for computing goodwill damages [and goodwill] is based on the
difference between the price a business would sell for and the
value of its non-goodwill assets." Advanced Marine, 256 Va. at
120, 127, 501 S.E.2d at 156, 160. In Advanced Marine, the
plaintiff's expert witness testified that the plaintiff company
suffered lost goodwill damages as a result of the departure of
its employees to the defendant company and defined "goodwill as
the excess of the sales price of a business over the fair
market value of the business' identifiable assets." Id. at
114, 501 S.E.2d at 153. The facts of this case are
distinguishable, however, from those in Advanced Marine and,
accordingly, our decision in Advanced Marine is not controlling
here.
In Advanced Marine, the plaintiff company announced it
would be sold to another company sixteen days before the
relevant employees resigned. Id. at 111, 113, 501 S.E.2d at
151-52. Advanced Marine made secret job offers to every member
of the plaintiff company’s marine engineering department,
coordinated their simultaneous immediate resignations, and had
those employees transfer confidential and proprietary
information in an attempt to secure all marine engineering
business done by the plaintiff company. See id. The record
further demonstrated that the sale of the plaintiff company was
completed between the time when the employees resigned and the
13
time when the chancellor decided that case. See id. at 121,
501 S.E.2d at 157 (stating that "the record shows that the
price for the sale of [the plaintiff company] did not change
after the departure of the [relevant] employees"). However,
unlike this case, the expert witness in Advanced Marine did not
look to the sale of the plaintiff company to determine its lost
goodwill damages; rather, the expert witness analogized the
improperly taken business to the sale of that business and
"utilized a variation of [the market value] approach by
determining the value of goodwill associated with comparable
sales [of businesses] and adjusting [those] figure[s] to
approximate [the plaintiff company's] lost goodwill caused by
the departure of the [relevant] employees." Id. at 120, 501
S.E.2d at 156.
Specifically, "[t]o estimate the lost goodwill associated
with the departure of the [plaintiff company's employees, the
expert witness] examined two sales of comparable businesses."
Id. at 114, 501 S.E.2d at 153. The expert witness then
"subtracted the value of each 'comparable company's' assets
from its sales price to determine the goodwill associated with
each comparable sale." Id. To adjust the loss of goodwill in
the comparable sales to account for the differing numbers of
employees involved, the expert witness then "apportioned the
estimated goodwill figure for each of the two comparable
14
businesses among the total number of employees involved in each
transaction." 3 Id. at 115, 501 S.E.2d at 153. "This
calculation yielded a ratio or percentage that [the expert
witness] applied to calculate the goodwill lost by [the
defendant company's] acquisition of the [plaintiff company's]
employees." Id.
Relying upon the comparable prior sale of part of the
plaintiff's own business and another comparable sale as an
appropriate and accurate measure of the plaintiff company's
lost goodwill, the chancellor accepted the plaintiff's expert
witness' methodology for calculation of goodwill damages and
awarded the plaintiff damages. Id. at 120-21, 501 S.E.2d at
156-57. The defendant company in Advanced Marine argued that
the chancellor "failed to consider that . . . the price for the
sale of [the plaintiff company] did not change after the
departure of the [relevant] employees." Id. at 120, 501 S.E.2d
at 156. Significantly, however, we affirmed the award of lost
goodwill damages stating that, "[a]lthough the record shows
that the price for the sale of [the plaintiff company] did not
change after the departure of the [relevant] employees, [the
expert witness] emphasized that the departing group [of
employees] had goodwill value for purposes of maintaining the
3
The methodology used was not objected to, although the
opposing party objected to the expert’s calculations.
15
customer relationships necessary for contract retention." Id.
at 121, 127, 501 S.E.2d at 157, 160 (emphasis added). Smigocki
provided no such testimony in this case.
Additionally, unlike the expert in Advanced Marine, who
determined the value of the plaintiff company's lost goodwill
by considering the comparable sale of part of the plaintiff's
own business, 256 Va. at 114-15, 120, 501 S.E.2d at 153, 156,
Smigocki looked directly to PSC's subsequent sale price and the
value of its identifiable assets to determine Perot's goodwill
lost as a result of the conspiracy. Specifically, Smigocki
valuated Perot's goodwill by using figures reported by Dell to
the SEC following its purchase of PSC, namely: (1) the actual
sale price of PSC to Dell, $3.878 billion, which sale occurred
during the pendency of this litigation and several months after
Dellinger and Fallone left Perot; (2) the value of PSC's
identifiable assets, $1.551 billion; and (3) Dell's valuation
of the goodwill attributable to Perot as PSC's public sector,
$1.613 billion.
Because Smigocki and, by extension, Perot relied on PSC's
actual subsequent sale to Dell, rather than a comparable sale,
Perot was required to demonstrate that its sale price to Dell
reflected an actual loss of goodwill as a result of the
conspiracy. It failed to do so.
16
The evidence at trial demonstrated that Dellinger left
Perot on June 5, 2009, and Fallone left Perot on June 10, 2009.
Further evidence demonstrated that Dell's purchase of PSC and
Perot was completed in November of 2009. Significantly,
however, Perot introduced no evidence at trial demonstrating a
diminution in value of either PSC's fair market value or
identifiable assets during the relevant time period. Nor did
Perot introduce any evidence demonstrating that the sale price
of PSC to Dell was affected, negatively or otherwise, by the
Defendants' actions in this case. As a result, Perot
introduced no evidence demonstrating a diminution in value of
its goodwill.
To the contrary, the evidence introduced at trial
demonstrated that Dell purchased PSC at a significant premium
several months after the Defendants' alleged wrongful conduct.
Specifically, Smigocki testified that PSC was a publicly traded
company "selling for about $17, $18 a share at the time" Dell
purchased PSC, and that Dell purchased PSC for "$30 a share.
It was about a 68 percent premium that had been paid over and
above what the general marketplace was saying was the value of
the company." Perot introduced no evidence at trial explaining
how or why Dell decided upon that particular premium. In fact,
Smigocki admitted at trial that he had asked to see Dell's
analysis concerning the allegations in this case because that
17
analysis would provide Dell's perspective on "why . . . there
[was] such a premium that was paid for Perot," but that Dell
did not make that analysis available to him. Accordingly,
without any evidence demonstrating that the departing employees
had goodwill value with regard to the customer relationships
necessary to retain contracts and that PSC's actual sale price
to Dell was affected in any way by the Defendants' actions in
this case, Perot cannot demonstrate that it actually lost any
goodwill.
We hold that Perot's evidence, which lacked comparable
sales information, was insufficient, as a matter of law, to
support an award of lost goodwill damages because of the
conspiracy, and we hold that the trial court: (1) abused its
discretion when it denied the defense motions to strike
Smigocki's testimony regarding his theory of lost goodwill
damages; and (2) erred when it refused to set aside the award
of damages relating to Perot's lost goodwill.
C. Punitive and Treble Damages
The Defendants argue that the awards entered in favor of
Perot for trebled and punitive damages "represent an
impermissible double recovery" because, in Virginia, "trebled
damages are punitive." We disagree.
We have previously held that a trial court may award both
punitive and treble damages when the awards are "based on
18
separate claims involving different legal duties and injuries."
Advanced Marine, 256 Va. at 124-25, 501 S.E.2d at 159.
Awarding punitive and treble damages in such circumstances
would not be duplicative. See id.
In this case, the awards of punitive and treble damages
were based on separate claims involving different legal duties
and injuries. Specifically, the trial court stated:
I conclude that the jury determined that all five
defendants were liable for the elements of the
claim under the trade secret[s] act claim [Count
IX] and the [business] conspiracy claim [Count
VII]. And while the plaintiff can recover the
compensatory damages only once, the plaintiff is
entitled to treble those damages under the
[business] conspiracy claim and to recover
punitive damages under the trade secret claim to
a maximum of the cap.
(Emphasis added.) Accordingly, the trial court found that
Perot was "entitled to $12,341,535 against each of the
defendants, which is the statutory conspiracy award having been
trebled . . . and then $350,000 in punitive damages against
each of the defendants."
To prevail in its business conspiracy claim, Perot was
required to prove that two or more persons "combine[d],
associate[d], agree[d], mutually undert[ook] or concert[ed]
together for the purpose of . . . willfully and maliciously
injuring another in his reputation, trade, business or
profession by any means whatever." Code § 18.2-499(A). In
19
contrast, Perot's claim asserting violation of Virginia's
Uniform Trade Secret Act does not require such proof and
relates solely to the misappropriation of trade secrets. See
Code § 59.1-336 et seq. Accordingly, we hold that the award of
both punitive and treble damages in favor of Perot does not
constitute an impermissible double recovery.
We have previously observed that "[i]t is well-established
that 'an award of compensatory damages . . . is an
indispensable predicate for an award of punitive damages,
except in actions for libel and slander.' " Syed v. ZH Techs.,
Inc., 280 Va. 58, 74-75, 694 S.E.2d 625, 634 (2010) (quoting
Gasque v. Mooers Motor Car Co., 227 Va. 154, 159, 313 S.E.2d
384, 388 (1984)). While the trial court struck the jury's
award of compensatory damages related to Perot's trade secrets
claim, it did not do so because such damages were unjustified.
Rather, the trial court struck those damages as duplicative of
other damages awards. Accordingly, the trial court's award of
punitive damages in connection with Perot's trade secrets claim
was not improper.
D. Computer Forensics Damages
The Defendants argue that Perot was not entitled to
recover as damages fees it paid to Stroz Friedberg, LLC ("Stroz
Friedberg"), a computer forensics firm, to conduct a forensics
investigation because such fees were "costs Perot incurred
20
litigating this case." Accordingly, the Defendants argue that
"[t]he trial court committed error when it failed to set aside
damages that were costs of litigation." We disagree.
At trial, Perot's president, Eugene V. Carrick
("Carrick"), testified that the almost simultaneous departures
of a number of Perot executives was "[v]ery much out of the
ordinary," and, as a result, Carrick "asked [his] team to just
make sure that we're not going to lose any proprietary
information." It was subsequently discovered that certain
individuals, including defendants Dellinger and Fallone, were
"exporting or taking large numbers of files off of [Perot's]
system and copying them off on to other devices." Carrick
specifically testified that because of the discoveries that "a
number of key people," including defendants Dellinger and
Fallone, "were taking a lot of information and it was happening
right after the day of the resign[ations]" and because Perot
employee e-mails revealed that employees were "working together
and corroborating" to leave Perot, Perot hired Stroz Friedberg
to help Perot "figure out what exactly [was] going on."
Shannon Perkins ("Perkins"), a computer forensic examiner
for Stroz Friedberg, testified for Perot as an expert in
computer forensic analysis. Specifically, Perkins testified
that Dellinger copied thousands of files from his desktop
computer at Perot to external hard drives and that numerous
21
files with names matching the files from the desktop computer
at Perot were later found to have been copied to his computer
at 21CSI shortly after leaving Perot's employ. Perkins further
testified that, just as Dellinger had done, Fallone copied
hundreds of files from his computer at Perot to an external
drive.
In addition to the testimony described above, the trial
court admitted into evidence Stroz Friedberg's highly detailed
invoices, totaling $371,002, related to the computer forensics
investigation it conducted on Perot's behalf. Significantly,
the Defendants did not object to the admission of Stroz
Friedberg's invoices into evidence when they were offered. The
Defendants argued to the trial court that the fees paid to
Stroz Friedberg were costs of litigation as opposed to damages
after the case had been submitted to the jury.
Moreover, the Defendants offered no evidence that would
allow the jury to appropriately discount or apportion the
damages related to computer forensics in the Defendants' favor;
rather, the Defendants merely elicited testimony upon cross-
examination that Stroz Friedberg "provided services in
connection with this litigation," that "that work was located
in the [invoices admitted into evidence]," and that Perot did
not "separate those amounts in [their] calculations." "In the
absence of such evidence, the [jury] as the trier of fact would
22
have been required to resort to speculation and conjecture in
order to find that [Perot's computer forensics damages
calculation] was not the appropriate remedy." Nichols Constr.
Corp. v. Virginia Mach. Tool Co., 276 Va. 81, 91, 661 S.E.2d
467, 473 (2008) (affirming an award where the defendant failed
to provide the fact finder with the evidence necessary to
calculate a discount in its favor). The question of damages
was submitted to the jury upon proper instructions, which are
not challenged in this appeal, and the jury decided what
damages to award Perot.
Accordingly, we hold that the evidence at trial was
sufficient to demonstrate that the Defendants' actions caused
Perot to initiate the computer forensics investigation and that
the trial court did not err when it refused to set aside the
jury's award of $371,002 in computer forensics damages in favor
of Perot.
III. Conclusion
We hold that: (1) the trial court abused its discretion
when it denied the defense motions to strike Smigocki's
testimony regarding lost goodwill damages and, accordingly, the
trial court erred when it refused to set aside the jury's award
of lost goodwill damages based upon Smigocki's testimony; (2)
the trial court did not err when it refused to set aside the
jury's award of both punitive and treble damages in favor of
23
Perot; and (3) the trial court did not err when it refused to
set aside the jury's award of computer forensics damages.
As recited above, the jury awarded Perot damages for each
of the ten counts Perot alleged in its complaint, and the trial
court subsequently struck the jury's awards of damages for all
but Counts IV, VII, and IX. The trial court also struck the
jury's award of compensatory damages related to Perot's trade
secrets claim (Count IX) but awarded Perot $350,000 in punitive
damages against each of the defendants on that claim. Counts
I, II, III, IV, V, VI, VIII, and X are not the subject of an
assignment of error and are not before us on appeal.
Accordingly, with regard to Count VII, Perot's statutory
business conspiracy claim, we will reverse the trial court's
award of $3,742,843 in lost goodwill damages, trebled to
$11,228,529, and affirm the trial court's award of $371,002 in
computer forensics damages, trebled to $1,113,006, jointly and
severally against the Defendants.
With regard to Count IX, Perot's trade secrets claim, we
will affirm the trial court's award of $350,000 in punitive
damages against each of the defendants.
Additionally, the trial court awarded Perot $547,541.27 in
attorneys' fees in connection with Perot's statutory business
conspiracy claim (Count VII), jointly and severally against the
Defendants, predicated upon an award of $12,341,535
24
representing lost goodwill and computer forensics damages.
However, because that award has been extensively modified, we
will remand to the trial court for a reconsideration of the
award of attorneys' fees relating to Perot's statutory business
conspiracy claim, consistent with this opinion. 4
Accordingly, we will affirm in part and reverse in part
the judgment of the trial court, and we will remand for further
proceedings and for entry of a final judgment order consistent
with this opinion.
Affirmed in part,
reversed in part,
and remanded.
4
The trial court also awarded Perot $861,336.29 in
attorneys' fees in connection with Perot's trade secrets claim
(Count IX); however, because the awards related to Perot's
trade secrets claim have not been modified, and because the
Defendants did not assign error to the trial court's awards of
attorneys' fees, the award of attorneys' fees relating to
Perot's trade secrets claim will stand.
25
JUSTICE McCLANAHAN, concurring in part and dissenting in part,
in which JUSTICE POWELL joins in part.
This case is not distinguishable from Advanced Marine
Enters., Inc. v. PRC Inc., 256 Va. 106, 501 S.E.2d 148 (1998),
as precedent for Smigocki's calculation of Perot's damages in
the form of diminished goodwill. The majority disapproves of
Smigocki's calculation because he relied on Perot's actual sale
to Dell for his goodwill number rather than comparable sales;
and, therefore, the majority requires a higher standard of
proof for Perot to establish its damages.
To the extent Dell's post-injury assessment of Perot's
goodwill ($1.6 billion) does not, in fact, account for the lost
gross revenue wrongfully caused by the defendants, that number
would appropriately reflect a pre-injury goodwill baseline
figure for calculating the diminution of that figure resulting
from defendants' wrongful acts - just like the comparable sales
figure used in Advanced Marine. Alternatively, to the extent
Dell's post-injury goodwill figure reflects Perot's diminished
goodwill resulting from defendants' actions, then Smigocki's
calculation of diminished goodwill simply underestimated the
damage to Perot's goodwill caused by the defendants. * Either
*
That is to say, under this scenario, Smigocki's multiplier of
2.57 ($1.6 billion in goodwill divided by $627 million in total
annualized revenue) for determining Perot's lost goodwill (2.57
26
way, Perot's diminished goodwill was not overstated by
Smigocki. Thus, whether or not Dell accounted for that damage
in determining the value it placed on Perot's post-injury
goodwill was not a material consideration for the trial court
in its decision to allow Smigocki's expert testimony.
For these reasons, the trial court did not err when it
denied the defendants' motion to strike Smigocki's testimony
and refused to set aside the jury's award of damages relating
to Perot's diminished goodwill. In holding to the contrary,
the majority has assumed the role of finder of fact and expert
to justify its reversal of these rulings.
Because I would affirm the trial court's decision to allow
Smigocki to testify as he did, I would address defendants'
argument that the trial court abused its discretion when it
limited the testimony of Dubinsky, defendants' expert witness
offered as rebuttal to Smigocki's testimony. In doing so, I
would affirm the trial court in preventing Dubinsky from
offering testimony related to the four topics at issue in this
evidentiary dispute. Based on our holding in John Crane, Inc.
v. Jones, 274 Va. 581, 591-93, 650 S.E.2d 851, 856-57 (2007),
and its progeny, the trial court did not abuse its discretion
multiplied by $1.45 million in lost revenue) could have been
larger, thus increasing the amount of Perot's lost goodwill
damages, had the larger pre-injury goodwill figure been used as his
baseline number (i.e., the numerator) for his calculation.
27
when it excluded Dubinsky's testimony as to those four topics
on the ground that defendants' disclosure of his opinions
through his expert report, pursuant to Rule 4:1, was
insufficient as to those topics.
For the remaining issues on appeal regarding the awards of
punitive and trebled damages, and computer forensics damages,
in favor of Perot, I concur with the holdings of the majority.
JUSTICE POWELL, concurring in part and dissenting in part.
I disagree with the majority’s analysis and result as to
the sufficiency of PSC’s evidence of goodwill damages.
Therefore, I respectfully dissent from the majority decision as
it relates to the first three assignments of error. Regarding
the remaining assignments of error, however, I join with the
majority.
The majority decides as a matter of law that PSC’s
evidence was insufficient to support an award of lost goodwill
damages “[b]ecause Smigocki and, by extension, Perot relied on
PSC's actual subsequent sale to Dell, rather than a comparable
sale.” The majority concludes that in this circumstance “Perot
was required to demonstrate that its sale price to Dell
reflected an actual loss of goodwill as a result of the
conspiracy.” When one considers the intangible nature of
goodwill, the impossibility of this standard becomes readily
28
apparent. See Wood v. Pender-Doxey Grocery Co., 151 Va. 706,
712, 144 S.E. 635, 637 (1928) (describing goodwill as “one of
those intangible assets of an established business difficult to
describe and impossible of valuing with mathematical precision,
but . . . of very real existence and of substantial value”).
In support of its holding, the majority contends that PSC did
not introduce any evidence “demonstrating a diminution in value
of either PSC’s fair market value or identifiable assets during
the relevant time period.” Alternatively, the majority asserts
that Perot failed to “introduce any evidence demonstrating that
the sale price of PSC to Dell was affected, negatively or
otherwise, by the Defendants’ actions in this case.” Looking
at the basic facts of this case, however, demonstrates the
error in the majority’s analysis.
It is undisputed that Dell purchased PSC for $3.878
billion. Approximately six months before the sale was
completed, the Defendants left Perot. There is evidence that
when the Defendants left they took approximately $1.45 million
in revenue with them to 21CSI. 1 This, in turn, amounted to a
loss of approximately $3,742,843 in goodwill, based on the
revenue to goodwill ratio offered by Smigocki. Thus, in order
1
It is further worth noting that the loss of the six
employees who went to work for 21CSI at that time was a
“specific loss of an identifiable asset,” especially when the
revenue generated by those employees is considered.
29
to reach the conclusion that PSC failed to demonstrate any
diminution in value or loss of identifiable assets, the
majority necessarily ignores this clearly demonstrated loss of
revenue and goodwill.
Similarly, the only logical inference to which this loss
of revenue and goodwill leads is that the sale price of PSC was
negatively affected. To hold otherwise would, in effect, mean
that PSC failed to prove that Dell did not pay for something it
knew it would not receive. “In reviewing the evidence, we will
accord the recipient of the verdict the benefit of all
substantial conflicts of evidence, and all fair inferences that
may be drawn from the evidence.” Bussey v. E.S.C. Rests.,
Inc., 270 Va. 531, 535, 620 S.E.2d 764, 766 (2005). As the
only rational inference is that Dell paid only for what it knew
it would receive, PSC clearly proved that the sale price of PSC
to Dell was negatively affected, at least to some degree, by
the Defendants’ actions.
Moreover, I do not believe that the facts in the present
case are as distinguishable from those presented in Advanced
Marine Enters. v. PRC Inc., 256 Va. 106, 501 S.E.2d 148 (1998),
as the majority contends. It is important to note that, with
the exception of the fact that Advanced Marine involved the
approximate goodwill values of comparable companies, the expert
in that case used the exact same methodology to approximate the
30
goodwill values as Smigocki used in the present case. In
Advanced Marine the expert “subtracted the value of each
‘comparable company’s’ assets from its sales price to determine
the goodwill.” Id. at 114, 501 S.E.2d at 153. 2 Here, the same
formula was used, only, instead of using the value of a
comparable company, the actual value of PSC’s assets ($1.551
billion) were subtracted from its actual sale price ($3.878
billion) to approximate the goodwill value of the entire
company ($2.327 billion). The only significant difference
between the present case and Advanced Marine is the fact that,
because Perot was only a part of PSC, the entire goodwill value
could not be allocated to Perot alone. However, as Smigocki
explained, Dell allocated the amount of goodwill to the various
subsidiaries of PSC, including Perot. In its 10-K report, a
publically available, sworn statement submitted to the
Securities and Exchange Commission, Dell allocated $1.613
billion to Perot (as the “Public” operating part of PSC).
Thus, aside from relying on Dell’s allocation of the total
goodwill, there is no difference between the methodology used
to determine goodwill in Advanced Marine and the methodology
used and accepted by the trial court to determine the goodwill
of Perot in the present case.
2
Indeed, this Court endorsed this formula as “a
frequently-used method for computing goodwill damages.”
Advanced Marine, 256 Va. at 120, 501 S.E.2d at 156.
31
The only other notable difference between this case and
Advanced Marine is that the expert witness in Advanced Marine
apportioned the goodwill among the total number of employees
involved (i.e. he determined the amount of goodwill per
employee). In the present case, Smigocki apportioned Perot's
goodwill based on revenue (i.e. he determined the amount of
goodwill per dollar of revenue). Smigocki explained that this
was a more accurate measure of the potential loss of goodwill
due to the nature of this case. 3 We have previously recognized
that, due to its intangible nature, the value of goodwill in
one case “would be of no great assistance in assessing [its
value] in other cases where the facts and circumstances were
dissimilar.” Wood, 151 Va. at 712, 144 S.E. at 637. Along
these same lines, it is only logical that slight differences in
the methodology are to be expected based on the facts of each
case.
Based on the foregoing, and in light of our decision in
Advanced Marine, I do not believe that PSC’s evidence,
including Smigocki's testimony regarding lost goodwill damages,
was insufficient, as a matter of law, to support an award of
3
Smigocki’s methodology is not obviously flawed.
Therefore it was up to the Defendants to provide the fact-
finder or judge, as gatekeeper, with enough evidence to find
that the use of revenue was irrelevant or otherwise flawed.
Having failed to offer such evidence at trial, either through
cross-examination or its own expert, the Defendants cannot now
attack the validity of Smigocki’s approach.
32
lost goodwill damages. Accordingly, I would hold that the
trial court did not abuse its discretion when it allowed
Smigocki to testify regarding lost goodwill damages and did not
err when it refused to set aside the award of damages relating
to Perot's lost goodwill. 4
4
As a result of its decision regarding goodwill damages,
the majority does not address the Defendants’ second assignment
of error. I agree with Justice McClanahan’s analysis of that
issue. Accordingly, I would also affirm the trial court’s
decision to exclude the Defendants’ expert on goodwill damages.
33