`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`F'REAL FOODS, LLC and RICH
`PRODUCTS CORPORATION,
`
`Plaintiffs,
`
`V.
`
`Civil Action No. 16-41-CFC
`
`HAMIL TON BEACH BRANDS,
`INC. and HERSHEY CREAMERY
`COMPANY,
`
`Defendants.
`
`MEMORANDUM ORDER
`
`On July 16, 2020, I issued an Order granting in part and denying in part
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`Plaintiffs' Motion for Supplemental Damages, Accounting, Pre-Judgment Interest,
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`and Post-Judgment Interest (D.I. 303). See D.I. 378. In that order, I requested that
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`Plaintiffs submit a revised supplemental damages calculation that reflected the
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`Court's remittitur. Id. at 3. Plaintiffs have done so, see D.I. 382, and Defendants
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`have submitted a competing supplemental damages calculation, see D.I. 385.
`
`The parties' dispute is over the proper "adjustment ratio" to apply to the
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`supplemental lost-profits calculation. The parties agree that the jury discounted the
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`Plaintiffs' lost profits calculation at trial. See D.I. 382; D.I. 385. The parties also
`
`
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`Case 1:16-cv-00041-CFC Document 391 Filed 08/14/20 Page 2 of 3 PageID #: 15476
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`agree that a discount should be applied to Plaintiffs' post-trial lost profits
`
`calculation. See D.I. 382; D.I. 385. The parties, however, disagree about how to
`
`calculate the adjustment ratio used in that discount.
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`Plaintiffs argue that the jury awarded them 76.39% of the lost profits that
`
`Plaintiffs' damages expert testified they were owed and, therefore, I should adopt
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`76.39% as the adjustment ratio used to calculate post-trial lost profits. See D.I. 382
`
`at 1-2. Defendants argue that because of the Court's remittitur, 76.39% is not the
`
`correct adjustment ratio, and instead the adjustment ratio should reflect only the
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`lost profits that were upheld rather than the lost profits the jury awarded. See D.I.
`
`385 at 2-3. In other words, in Defendants' view, the adjustment ratio should be
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`the lost profits awarded minus the remittitur divided by the lost profits requested
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`minus the remittitur. Id. That adjustment ratio is 69.37%. Id.
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`Neither paiiy has cited any law in support of its position. Thus, I am
`
`painting on a blank canvas. With that in mind, Defendants' position makes sense
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`to me, and I will adopt it. I see no reason why the p01iion of the lost profits award
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`that was not supp01ied by any evidence should factor into the proper adjustment
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`ratio for post-trial lost profits.
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`Plaintiffs argue that "[b ]ecause Hershey Creamery switched nearly all
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`customers to the upcharge program by April 2019" the adjustment ratio for post(cid:173)
`
`trial lost profits should "not [be] affected by the remittitur." D.I. 3 82 at 3. But this
`
`2
`
`
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`Case 1:16-cv-00041-CFC Document 391 Filed 08/14/20 Page 3 of 3 PageID #: 15477
`
`argument is backwards. At trial Plaintiffs' lost profits calculation was based in
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`part on lost rentals and in part on lost sales of upcharged cups of ice cream. My
`
`remittitur order held that "the portion of the damages award attributable to lost
`
`rentals is clearly not supported by the evidence" and ordered a remittitur for the
`
`amount of rental lost profits calculated by Plaintiffs' damages expert. D.I. 366 at
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`9-10. Plaintiffs' method of calculating the adjustment ratio incorporates lost
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`profits due to lost rentals. But lost rentals should have no bearing on the damages
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`calculation now that Defendants have switched to the upcharge program.
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`Accordingly, I will reject Plaintiffs' supplemental damages calculation and adopt
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`Defendants' supplemental damages calculation.
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`WHEREFORE, in Wilmington on this Fourteenth day of August 2020, IT IS
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`HEREBY ORDERED that the award of damages in the Judgment (D.I. 286) is
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`amended as follows:
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`1. Judgment is entered in favor of Plaintiffs and against Defendants for
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`damages and interest in the amount of $3,066,724 for Defendants'
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`infringement of the #150, #658, and #662 patents through July 31, 2020; and
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`2. Interest shall accrue at a rate of $145.93 per day from August 1, 2020, until
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`Defendants satisfy the judgment.
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`UNITED ST
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`3
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