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MOTION FOR DIRECTED VERDICT PURSUANT TO RULE 50(A)

UPM-L1\00702754.000

TOMASI BRAGAR DUBAY

121 SW Morrison Street, Suite 1850 

Portland, Oregon 97204

Telephone: (503) 894-9900

Facsimile: (971) 544-7236

Kathryn P. Salyer, OSB #883017

Eleanor A. DuBay, OSB #073755

Blake Van Zile, OSB #184672

ksalyer@tomasilegal.com

edubay@tomasilegal.com

bvanzile@tomasilegal.com

Tomasi Bragar DuBay

121 SW Morrison Street, Suite 1850

Portland, Oregon 97204-3136

Telephone: (503) 894-9900

Facsimile: (971) 544-7236

Christopher W. Savage, D.C. Bar #362657

Katherine Sheriff, D.C. Bar #1632141

chrissavage@dwt.com

katherinesheriff@dwt.com

(Admitted Pro Hac Vice)

Davis Wright Tremaine LLP

1301 K Street NW, Suite 500 East

Washington, DC 20005-3317

Telephone: (202) 973-4200

Facsimile: (202) 973-4499

Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

UNIGESTION HOLDING, S.A., a foreign 

corporation, d/b/a DIGICEL HAITI,

Plaintiff & Counterclaim-Defendant,

v.

UPM TECHNOLOGY, INC., et al.,

Defendants & Counterclaim-Plaintiffs

Case No. 3:15-CV-00185-SI

SUPPLEMENTAL BRIEFING

REGARDING LOST PROFITS AND 

MOTION FOR DIRECTED VERDICT 

PURSUANT TO RULE 50(a)
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MOTION FOR DIRECTED VERDICT PURSUANT TO RULE 50(A)

UPM-L1\00702754.000

TOMASI BRAGAR DUBAY

121 SW Morrison Street, Suite 1850 

Portland, Oregon 97204

Telephone: (503) 894-9900

Facsimile: (971) 544-7236

LOCAL RULE 7-1 CERTIFICATION

Pursuant to Local Rule 7-1(a), Defendants state that their counsel determined that 

under the present circumstances, discussion of this motion with counsel for Digicel-Haiti would 

have been futile and the supplemental briefing set forth herein was requested by the Court, thus, 

this constitutes adequate compliance in the circumstances with Local Rule 7-1(a). 

MOTION

Defendants UPM Technology, Inc. and Bruce Tran (collectively, "UPM") hereby 

submit its supplemental briefing regarding the applicable legal standard for recovering lost profits 

in a fraud case—and, specifically, whether evidence of lost revenues alone is sufficient to establish 

damages with reasonable certainty, as requested by the Court during trial on November 15, 2022. 

Further, and in part based on these points, UPM moves for judgment as a matter of law as to 

Plaintiff Digicel-Haiti's claim for damages pursuant to Fed. R. Civ. P. ("Rule") 50(a). 

I. INTRODUCTION AND SUMMARY

There is no dispute between the parties that Oregon law allows a flexible approach 

for determining the appropriate measure of damages in a fraud case. See e.g., Dizick v. Umpqua 

Cmty. Coll., 287 Or. 303, 312, 599 P.2d 444 (1979). The pertinent issue, however, is whether that 

flexible standard can be extended past the minimum evidentiary requirements for establishing tort 

damages and allow Digicel-Haiti's wholly speculative damages claim against UPM to proceed to 

the jury. Judgment as a matter of law is appropriate here because, based upon Digicel-Haiti's trial 

materials, the current record, and the evidence anticipated in the remainder of Digicel-Haiti's casein-chief (as shown by its witness statements), Digicel-Haiti cannot and will not be able to establish 

a legally sufficient evidentiary basis for the jury to determine damages with reasonable certainty. 

In the event the Court chooses to deny or defer UPM's motion for a directed verdict, 

UPM respectfully requests that the Court allow further briefing in support of this motion at that 

time. Moreover, as the Court continues to review the parties' respective proposed jury instructions, 
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UPM-L1\00702754.000

TOMASI BRAGAR DUBAY

121 SW Morrison Street, Suite 1850 

Portland, Oregon 97204

Telephone: (503) 894-9900

Facsimile: (971) 544-7236

UPM again urges the Court to adopt its proposed Jury Instructions and Verdict Form1for the 

reasons previously set forth and further articulated here.2 

II. DIGICEL-HAITI'S DAMAGES THEORY AND TRIAL EVIDENCE 

As noted by the Court, Digicel-Haiti's theory of damages arising from "lost profits"

is, in fact, based entirely on lost revenues. Thus far, Digicel-Haiti's corporate witness, Gerard 

Laborde, has testified that Digicel-Haiti lost revenues of approximately $18 million during the 

period of 2011 to 2015 due to bypass. Contemporaneously herewith, UPM is filing a motion to 

strike all of that testimony due to severe discovery violations by Digicel-Haiti. But even if that 

testimony remains, UPM notes that in its Witness Statements, Digicel-Haiti identified Mr. Laborde 

as "describ[ing] the damages suffered by Digicel Haiti measured in lost international call 

revenue."

3

 Those witness statements do not identify any witness as proffering testimony as to 

Digicel-Haiti's lost profits; likewise, no proposed trial exhibit offers such information or 

underlying data.4 Additionally, the data purportedly underlying Mr. Laborde's above-described 

lost revenue calculation was not presented at trial.

As a further example of the inadequacy of Digicel-Haiti's damages case, its Lay 

Witness Statement states that Mr. Laborde would also testify that "Digicel Haiti also experienced 

an increase in expenses related associated with anti-bypass and anti-fraud initiatives and consultant 

fees associated with anti-bypass and software to counter HBS," which Mr. Laborde's testimony 

 

1 Defendants' Proposed Jury Instructions (ECF #473) ("UPM Instructions") and Defendant's 

Proposed Verdict Form (ECF #465) ("UPM Verdict Form"). 

2 Specifically, UPM refers the Court to its Supplemental Briefing in Support of UPM Instructions 

and Verdict Form (ECF #505-506); Response to Plaintiff Unigestion Holdings, S.A.'s Objections 

to Defendants' Proposed Jury Instructions and Verdict Form (ECF #496) and Defendants'

Objections to Plaintiff's Jury Instructions and Verdict Form (ECF #470), fully incorporated herein 

by reference. 

3 Digicel-Haiti's Amended Phase I Lay Witness Statement (ECF #390), p. 11 at ¶ N. 

4

Id.; see also Digicel-Haiti's Amended Phase I Expert Witness Statement (ECF #391); DigicelHaiti's Amended Phase I Trial Exhibit List (ECF #448); Digicel-Haiti's Second Amended Phase I 

Trial Exhibit List (ECF #507). 
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TOMASI BRAGAR DUBAY

121 SW Morrison Street, Suite 1850 

Portland, Oregon 97204

Telephone: (503) 894-9900

Facsimile: (971) 544-7236

did touch upon, but failed to identify or establish those expenses with any specificity which the 

jury could reasonably ascertain any recoverable amounts.5 Also, Mr. Laborde was supposedly 

going to testify regarding the "diminution of call quality and company goodwill and reputation,"

but offered no such evidence. This testimony—unsupported by any underlying data or other 

documentary evidence—is clearly legally insufficient for the jury to reasonably approximate 

Digicel-Haiti's claimed damages with reasonable certainty. 

III. RULE 50(a) DIRECTED VERDICT STANDARDD

Rule 50(a) provides for judgment as a matter of law at trial: 

(1) In General. If a party has been fully heard on an issue during a jury trial 

and the court finds that a reasonable jury would not have a legally sufficient 

evidentiary basis to find for the party on that issue, the court may:

(A) resolve the issue against the party; and

(B) grant a motion for judgment as a matter of law against the party on a 

claim or defense that, under the controlling law, can be maintained or 

defeated only with a favorable finding on that issue.

(2) Motion. A motion for judgment as a matter of law may be made at any 

time before the case is submitted to the jury. The motion must specify the judgment 

sought and the law and facts that entitle the movant to the judgment.

IV. DIGICEL-HAITI'S BURDEN OF ESTABLISHING DAMAGES WITH 

REASONABLE CERTAINTY

The legal insufficiency of Digicel-Haiti's damages theory and trial evidence in 

support of its claim is two-fold. Oregon law requires that "the evidence must disclose the damages 

sustained with reasonable certainty, and they must be shown to be the proximate result of 

defendant's wrongful acts." Parker v. Harris Pine Mills, Inc., 206 Or. 187, 205, 291 P.2d 709 

(1955) (emphasis added). Digicel-Haiti's damages evidence fails to meet this standard.

First, Digicel-Haiti's claim for damages generally fails because proximate cause is 

lacking. "Damages properly recoverable in an action for intentional misrepresentation are those 

which are a direct and necessary result of defendant's acts or omissions." Oksenholt v. Lederle 

 

5

Id.
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TOMASI BRAGAR DUBAY

121 SW Morrison Street, Suite 1850 

Portland, Oregon 97204

Telephone: (503) 894-9900

Facsimile: (971) 544-7236

Labs., Div. of Am. Cyanamid Corp., 294 Or. 213, 223, 656 P.2d 293 (1982), citing Cluck et ux v. 

Fish et al, 230 Or 63, 368 P2d 626 (1962) (emphasis added). "Losses suffered through injury to 

reputation, lost business and impairment capacity are such that could flow naturally from an 

intentional misrepresentation." Id.; see also e.g., Knepper v. Brown, 345 Or. 320, 330-332, 195 

P.3d 383 (2008), citing Restatement (Second) of Torts § 548A, cmts. a-b (1977), W. Page 

Keeton, Prosser and Keeton on Torts § 110 at 767 (5th ed. 1984); Restat. 2nd of Torts §§ 550, 

546. There is no indication that Digicel-Haiti will offer any admissible, probative evidence of any 

injury actually and proximately caused by UPM's bypass activities in Haiti at all, much less 

evidence of damages caused by any UPM use of human behavior software ("HBS") to satisfy this 

preliminary burden of proof. 

Second, Digicel-Haiti's "recovery cannot be based upon mere guess work;" in order 

to recover any damages in this case, it still bears the burden of presenting "evidence upon which 

their existence and amount may be determined with reasonable certainty." Parker, 206 Or. at 197

(emphasis added). Where, as here, compensatory damages can be proven with approximate 

accuracy, "the necessary evidence must be supplied." Id., citing Porter Const. Co. v. Berry et al., 

136 Or. 80, 93, 298 P. 179 (1931)) (emphasis added) (finding plaintiff's evidence at trial too 

speculative to support jury verdict); see also Bixler v. First Nat'l Bank, 49 Or. App. 195, 202, 619 

P.2d 895 (1980) (same). As described below, Digicel-Haiti has not, and will not, provide the 

necessary evidence to ascertain its actual damages with reasonable certainty, therefore failing the 

second requirement for a viable damages claim. 

A. Lost Profits 

The Oregon Supreme Court has long held that "the established rule in Oregon that 

in order to recover damages for lost profits, both the existence and the amount of such profits 

must be proved with reasonable certainty." Pearson v. Schmitt, 259 Or. 439, 442, 487 P.2d 84 

(1971) (internal quotation marks and citations omitted; emphasis added); see also Buck v. Mueller, 

221 Or. 271, 282, 351 P.2d 61 (1960); Schafer v. Sunset Packing Co., 256 Or. 539, 544, 474 P.2d 
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TOMASI BRAGAR DUBAY

121 SW Morrison Street, Suite 1850 

Portland, Oregon 97204

Telephone: (503) 894-9900

Facsimile: (971) 544-7236

529 (1970). The Court further clarified that, in articulating that rule, 

We were speaking of net profits as distinguished from gross profits. The evidence 

submitted must provide the jury with a sufficient basis for estimating the amount 

of damages (lost profits) with reasonable certainty. Stubblefield v. Montgomery 

Ward & Co., 163 Or. 432, 96 P.2d 774 (1940). The evidence offered must not allow 

the jury to freely speculate as to the amount of damages for the lost net profits.

Id. (last emphasis in original) (holding that the plaintiff's testimony that "his lost earnings 

were about $ 4,900," without any evidence of what it cost him to operate his business, failed to 

meet the required test of reasonable certainty). As such, "[a] person seeking lost profits must

present evidence that refers 'unambiguously to net profits," because 'only net lost profit may be 

recovered.'" Cruz Dev., Inc. v. Yamalova, 174 Or. App. 494, 497, 26 P.3d 174 (2001) (internal 

quotation marks, internal citation, and brackets omitted; emphasis added).

In order to meet the reasonable certainty standard, moreover, a plaintiff must 

present more than speculative or unverifiable estimates of loss to recover lost profits. JH Kelly, 

Ltd. Liab. Co. v. Quality Plus Servs., 305 Or. App. 565, 585, 472 P.3d 280 (2020), citing

Willamette Quarries v. Wodtli, 308 Or. 406, 412, 781 P.2d 1196 (1989) ("Lost profits or sales, 

however, are not proved merely by testimony of unverifiable expectations of profits." (emphasis 

added)); Buck, 221 Or. at 282 ("[L]oss of profits must not be uncertain and speculative."). Like 

any other damages, when determining "whether the proof measures up to the requirements of the 

law governing the right to recover damages for anticipated profits in a tort action, 

[t]he general rule is that such profits are a proper element of damage when the loss 

is the direct and necessary result of the defendant's acts and the profits can be 

shown with a reasonable degree of certainty. Damages which are speculative and 

contingent may not be recovered...Absolute certainty that there would have been 

profits, or certainty as to their amount, is, of course, not required. But it is essential 

that the plaintiff "present such evidence as might reasonably be expected to be 

available under the circumstances". Restatement, Torts, 580, § 912. See, 15 Am. 

Jur., Damages, 574, § 157, where the author says: "The proof must pass the realm 

of conjecture, speculation or opinion not founded on facts, and must consist of 

actual facts from which a reasonably accurate conclusion regarding the cause and 

the amount of the loss can be logically and rationally drawn", citing Homestead Co. 

v. Des Moines Electric Co. (C. C. A. 8th) 248 F. 439, 12 A. L. R. 390.

Randles v. Nickum & Kelly Sand & Gravel Co., 169 Or. 284, 286-288, 127 P.2d 347 (1942)
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TOMASI BRAGAR DUBAY

121 SW Morrison Street, Suite 1850 

Portland, Oregon 97204

Telephone: (503) 894-9900

Facsimile: (971) 544-7236

(citations partially omitted; emphasis added) (while there was substantial evidence that the 

defendant converted the plaintiffs' lumber, the plaintiffs' "mere estimate" of anticipated profits 

from certain construction contracts, with no supporting data from which the jury could have 

ascertained whether the amount claimed or any other amount would have been realized failed the 

reasonable certainty standard). 

In short, although the type and quantum of evidence establishing fraud damages

depends on the circumstances of the case,

claims for damages resulting from torts consisting of alleged loss of earnings or 

income of a business, as in this case, whether past or future, must nevertheless be 

established with "reasonable certainty" in the sense that "supporting data" must 

be offered to the extent that such data is reasonably available to show both the 

existence and amount of the alleged loss of past or future earnings or income, 

and in terms of net, rather than gross earnings or income. See Pearson v. Schmitt, 

259 Or. 439, 442, 487 P.2d 84 (1971). Cf. Verret v. Leagjeld, 263 Or. 112, 115, 501 

P2d 780 (1972). See also McCormick on Damages, 309-313, § 87 (1935).

Jenks v. Larimer, 268 Or. 37, 41-42, 518 P.2d 1301 (1974) (emphasis added) (because the plaintiff, 

a self-employed driver, claimed the gross amount payable to him as a driver, less only the cost of 

operating that car, the evidence offered failed to satisfy the reasonable certainty standard; thus, the 

trial court erred in submitting lost income claim to the jury and remanded for a new trial). 

UPM has found no controlling authority contrary to this well-established standard, 

or any caselaw indicating that a tort plaintiff would ever be entitled to recovery of loss revenue, or 

gross profits, based solely on testimonial estimates, without any basis in evidence or other 

supporting data. Rather, in Cruz, for instance, the defendant "submitted no evidence of lost net 

profits" in support of her counterclaim for lost profits; she just testified at trial to her lost rental 

income and offered subsequent rental agreements to prove the amount of that lost income, which 

only identified her lost revenue, not her lost net profits. 174 Or. App. at 498. The Court of Appeals 

found that this evidence was insufficient to establish lost net profits and, moreover, the rental 

agreements showing her maintenance/repair obligations showed that her lost rental income 

necessarily failed to account for operating expenses and there was "no evidence from which a jury 

could calculate defendant's lost net profits without engaging in pure speculation." Id., citing
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UPM-L1\00702754.000

TOMASI BRAGAR DUBAY

121 SW Morrison Street, Suite 1850 

Portland, Oregon 97204

Telephone: (503) 894-9900

Facsimile: (971) 544-7236

Pearson v. Schmitt, 259 Or. 439, 442, 487 P.2d 84 (1971). See also e.g., Summa Real Estate Grp., 

Inc. v. Horst, 303 Or. App. 415, 464 P.3d 483 (2020) ("Once the trial court determined that there 

was insufficient evidence to determine the amount of expenses, it should have concluded that 

respondents had failed to prove lost profits with reasonable certainty, and it erred in awarding the 

individual respondent lost profits as damages on his intentional interference with economic 

relations claim." (emphasis added)); Neikes v. Ticor Title Co., 291 Or. App. 720, 726, 423 P.3d 

102 (2018) ("Plaintiff presented no evidence or supporting testimony about the market to back up 

his belief as to his lost profit from a sale, which...amounts to pure speculation on the part of 

plaintiff."); Frogge v. US West Communications, Inc., 120 Or. App. 619, 620, 853 P.2d 1323, on 

recons 124 Or. App. 669 (1993), rev den, 319 Or. 36 (1994) ("Plaintiff's brief relates testimony 

that either refers expressly to lost gross profits, or is ambiguous. Plaintiff directs us to no evidence, 

nor have we found any, that establishes her lost net profits. The directed verdict was proper, 

because plaintiff presented no evidence from which a reasonable trier of fact could find the amount 

of her damages."). 

Relevant here, and as noted by the Court, Digicel-Haiti's damages theory appears 

to be entirely premised on lost revenues—which are not recoverable under controlling law. 

Digicel-Haiti argues that each minute of bypass traffic should have generated revenue at the rate 

of $0.23 per minute.6 Because Digicel-Haiti has not presented, or suggested that it will present, 

any evidence of its lost net profits, its entire theory as to lost international calling revenue is 

fundamentally flawed. And, even if Digicel-Haiti were actually trying to claim lost profits, "the 

essential ingredient of proof of lost profits to a reasonable certainty is supporting data," and 

Digicel-Haiti has none. Verret v. Leagjeld, 263 Or. 112, 115, 501 P.2d 780 (1972) (emphasis 

added); see also e.g., Rindlisbacher v. Steinway & Sons Inc., 497 F. Supp. 3d 479, 512-13 (D. Ariz. 

 

6

It also argues, somewhat bizarrely, that it is entitled to that revenue in addition to the $0.09 per 

minute that UPM paid for using Digicel-Haiti's local service from within Haiti. Bizarre or not, this 

is also a revenue-based theory, not a profits-based theory, and therefore insufficient under Oregon 

law.
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MOTION FOR DIRECTED VERDICT PURSUANT TO RULE 50(A)

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TOMASI BRAGAR DUBAY

121 SW Morrison Street, Suite 1850 

Portland, Oregon 97204

Telephone: (503) 894-9900

Facsimile: (971) 544-7236

2020) (lost profits theory too speculative to support a judgment; "[t]o accept the 

Rindlisbachers' lost-profit damages theory, the Court would be required to make numerous, 

unjustified inferential leaps that are wholly unsupported by the record."). 

After years of litigation, Digicel-Haiti has not identified or provided any supporting 

data to substantiate its claimed damages, and the bare estimates of witnesses (without any 

underlying evidentiary basis) is clearly insufficient to reasonably establish the existence and 

amount of lost net profit. In addition to the numerous other problems with its damages claim (as 

detailed in UPM's various filings on this point), therefore, Digicel-Haiti's damages claim should 

be rejected because it is inconsistent with Oregon law. The Court should enter judgment as a matter 

of law against Digicel-Haiti's lost "profits" claim because any verdict rendered would be 

impermissibly speculative. 

B. Digicel-Haiti Otherwise Fails to Provide Sufficient Data to Support Its Other 

Compensatory Damages Theories, Including Supposed Bypass Reduction And 

Mitigation Costs

1. Bypass Reduction and Mitigation Costs. 

Not only can Digicel-Haiti not recover its lost revenues on a "lost profits" theory; 

it cannot recover its expenses and costs supposedly incurred in detecting, reducing and/or 

mitigating unwanted bypass operations on its network that do not proximately arise from DigicelHaiti's investigation and blocking of UPM's bypass operations based on HBS software specifically. 

In the Third Amended Complaint (ECF #200) ("TAC"), Digicel-Haiti alleges that 

"[i]n early 2014, Digicel Haiti uncovered evidence of possible fraudulent activity using bypass 

techniques and discovered equipment typically used in bypass fraud during monitoring and 

investigation designed to detect and deter bypass operations," which discovery purportedly 

ultimately led to the identification of UPM's activities in Haiti.7 And, insofar as Digicel-Haiti will 

attempt to establish its investigation costs at trial, Mr. Laborde will describe "how Digicel Haiti 

 

7 TAC at ¶¶ 72-29.
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TOMASI BRAGAR DUBAY

121 SW Morrison Street, Suite 1850 

Portland, Oregon 97204

Telephone: (503) 894-9900

Facsimile: (971) 544-7236

first became aware that UPM was involved in bypass on its network" and, "in particular, the 

operation that discovered UPM's Bypass involvement in Haiti in July 2014."

8

 It follows that, 

because Digicel-Haiti cannot allege and prove that it was aware of UPM's bypass operations using 

HBS software specifically before 2014, it cannot recover any costs of detecting/investigating 

bypass activity generally which pre-date Digicel-Haiti's awareness of UPM's use of its network or 

which relate to investigation of other entities engaged in bypass either before, during, or after its 

investigation relating to UPM. 

Moreover, even with respect to 2014, Digicel-Haiti cannot show that UPM's use of 

HBS was the cause of any such costs. Assuming that Digicel-Haiti could establish non-speculative 

mitigation costs in the first place, which it has not done, it must still present sufficient evidence 

that those costs arose directly from detecting, investigating, blocking or otherwise mitigating 

UPM's activities using HBS software. Parker, Oksenholt, supra. For example, Digicel-Haiti has 

presented no evidence regarding how much it costs (or might cost) to identify and investigate 

bypass activities that do not involve HBS, nor has it presented any evidence that any UPM use of 

HBS made identifying UPM's operations any more difficult than the non-HBS baseline. 

Additionally, it has not presented any evidence that UPM used multiple gateways to virtually 

"move" SIMs from place to place, nor has it presented any evidence that UPM varied the pattern 

of calls made by any SIM that would delay or deter Digicel-Haiti in identifying and blocking 

UPM's operations. In this regard, any damages based on costs that Digicel-Haiti incurred in 

detecting or mitigating bypass in general may not be considered. That is, Digicel-Haiti is not 

entitled to damages for bypass-related costs that it would have incurred irrespective of UPM's use 

of HBS software. Because bypass per se is not fraudulent, costs that Digicel-Haiti incurred to 

detect or mitigate bypass in general are not recoverable.

2. No Harm to Network/Costs to Infrastructure. 

Digicel-Haiti has presented no evidence, and has not indicated that any of its 

 

8 Digicel-Haiti's Amended Phase I Lay Witness Statement (ECF #445), p. 8.
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121 SW Morrison Street, Suite 1850 

Portland, Oregon 97204

Telephone: (503) 894-9900

Facsimile: (971) 544-7236

witnesses have any evidence, to suggest that any UPM bypass activities at all – much less bypass 

using HBS – caused any harm to, or imposed any costs on, Digicel-Haiti's network infrastructure. 

To the contrary, Mr. Laborde testified that Digicel-Haiti itself set the rate for local calling at $0.09 

per minute in order to cover the costs of operating its network. The only possible conclusion is that 

UPM's use of the network fully compensated Digicel-Haiti for that use.

Moreover, Digicel-Haiti has no evidence to present as to how much traffic UPM 

terminated onto Digicel-Haiti's network. Mr. Laborde testified that Digicel-Haiti's network 

handles several billion minutes of traffic each year. Without evidence that UPM sent a significant 

fraction of that amount to Digicel-Haiti, any claim of harm to its network fails.9

3. No Evidence of Loss of Goodwill. 

As to claims involving damages to the good will of a business, the Oregon Supreme 

Court has adopted a rule similar to the standard for lost profits:

The evidence must afford sufficient data from which the court or jury may properly 

estimate the amount of damages, which data shall be established by facts rather than 

by mere conclusions of witnesses. 25 C.J.S., Damages, 813, § 162. It appears, 

however, that there is no specific rule for determining the value of good will, and 

that each case must be considered and determined in the light of its own particular 

facts. Schuh Trading Co. v. Commissioner of Internal Revenue, (C.A.7th) 95 F. 2d 

404, 410; 38 C.J.S., Good Will, 953, § 6. Elements which may be considered are, 

length of time the business has been in existence; the nature and character of the 

business; its success or lack thereof; its average profits; and the probability of its 

continuance under the same name. 2 Sutherland, Damages, 4th ed, p. 1459, § 448. 

Past profits may be established, and the value of the good will estimated therefrom 

as a basis, subject to being reduced by a showing of a depression in trade or other 

circumstances that would tend to make the business less valuable. 1 Sedgwick on 

Damages, 9th ed., p. 513, § 254."

 

9 Using three billion minutes as a rough estimate, one percent of that amount would be 30,000,000 

minutes in a year. Even if one assumes that traffic at that level could somehow harm DigicelHaiti's network, there is no evidence whatsoever – Digicel-Haiti certainly has none – that UPM 

ever sent that amount of traffic (or any amount of traffic). UPM's evidence will shows that it only 

sent about 1.4 million minutes of traffic over the course of about 14 months, spread over two 

periods. The point here, though, is that because Digicel-Haiti has no evidence from which a jury 

could conclude that UPM's use of HBS generated enough traffic to harm Digicel-Haiti's network, 

its claim for harm to the network fails. 
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121 SW Morrison Street, Suite 1850 

Portland, Oregon 97204

Telephone: (503) 894-9900

Facsimile: (971) 544-7236

Kwipco, Inc. v. Gen. Trailer Co., 267 Or. 184, 188-89, 515 P.2d 1317 (1973), quoting 

Levene et ux v. City of Salem, 191 Or. 182, 200, 229 P.2d 255 (1951); see also Buck v. 

Mueller, 221 Or. 271, 285, 351 P.2d 61 (1960) (damage to goodwill claim rejected for 

insufficient evidence); Western Rebuilders v. Felmley, 247 Or. 577, 579, 430 P.2d 348 

(1967) (same). Digicel-Haiti has no such evidence to present. It has, at most, the "mere 

conclusions" of witnesses. This aspect of Digicel-Haiti's damages claim, therefore, fails as 

well. 

C. Because Digicel-Haiti Cannot Recovery Compensatory Damages, Its Claim for 

Punitive Damages Fails as a Matter of Law. 

Punitive damages can only be assessed after the jury has awarded compensatory 

damages. Klinicki v. Lundgren, 298 Or. 662, 687, 695 P.2d 906 (1985) ("Punitive damages cannot 

exist alone"; "actual damages are to compensate the injured party, whereas punitive damages are 

'to give bad actors a legal spanking,'" quoting Lane County v. Wood, 298 Or. 191, 203, 691 P.2d 

473 (1984)); see also Roshak v. Leathers, 277 Or. 207, 211, 560 P.2d 275 (1977)

("Punitive damages can only be justified on the theory of determent...It is only in those instances 

where the violation of societal interests is sufficiently great and of a kind that sanctions would tend 

to prevent, that the use of punitive damages is proper." (citations omitted)). Accordingly, where 

compensatory damages fail, so too must a claim of punitive damages. Because Digicel-Haiti 

cannot meet its burden of establishing compensatory damages, its punitive damages claim must 

also be dismissed. 

Dated: November 16, 2022. TOMASI BRAGAR DUBAY

By: /s/ Eleanor A. DuBay

Kathryn P. Salyer, OSB #883017 

Eleanor A. DuBay, OSB #073755

Blake Van Zile, OSB #184672

ksalyer@tomasilegal.com

edubay@tomasilegal.com

bvanzile@tomasilegal.com

Telephone: (503) 894-9900
Page 13 – SUPPLEMENTAL BRIEFING REGARDING LOST PROFITS AND 

MOTION FOR DIRECTED VERDICT PURSUANT TO RULE 50(A)

UPM-L1\00702754.000

TOMASI BRAGAR DUBAY

121 SW Morrison Street, Suite 1850 

Portland, Oregon 97204

Telephone: (503) 894-9900

Facsimile: (971) 544-7236

DAVIS WRIGHT TREMAINE LLP

By: /s/ Christopher W. Savage

Christopher W. Savage, D.C. Bar #362657

chrissavage@dwt.com

(Admitted Pro Hac Vice)

Katherine Sheriff, D.C. Bar #1632141

katherinesheriff@dwt.com

Telephone: (202) 973-4200

Of Attorneys for Defendants
Page 1 – CERTIFICATE OF SERVICE

TOMASI BRAGAR DUBAY

121 SW Morrison Street, Suite 1850 

Portland, Oregon 97204

Telephone: (503) 894-9900

Facsimile: (971) 544-7236

CERTIFICATE OF SERVICE

I hereby certify that on November 16, 2022, I served the foregoing DEFENDANTS'

SUPPLEMENTAL BRIEFING REGARDING LOST PROFITS AND MOTION FOR 

DIRECTED VERDICT PURSUANT TO RULE 50(a) on the following individuals by 

electronic service to said individuals:

Robert C.L. Vaughan 

Cherine Smith Valbrun

Leah Storie

Anisha Carla Atchanah

Kim Vaughan Lerner LLP

One Financial Plaza

100 SE Third Avenue • Suite 2001

Fort Lauderdale, FL 33394

Email: rvaughan@kvllaw.com

Email: cvalbrun@kvllaw.com

Email: lstorie@kvllaw.com

Email: aatchanah@kvllaw.com

Anne M. Talcott

Kathryn E. Kelly

Andrew J. Lee

Schwabe, Williamson & Wyatt, PC

Pacwest Center

1211 SW 5th Ave., Suite 1900

Portland, OR 97204

Email: atalcott@schwabe.com

Email: kkelly@schwabe.com

Email: ajlee@schwabe.com

Kent D. Bressie

HWG LLP

1919 M Street N.W., Suite 800

Washington, D.C. 20036

Email: kbressie@hwglaw.com

Dated: November 16, 2022.

TOMASI BRAGAR DUBAY

By: /s/ Eleanor A. DuBay

Kathryn P. Salyer, OSB #883017

Eleanor A. DuBay, OSB #073755

Blake Van Zile, OSB #184672

ksalyer@tomasilegal.com

edubay@tomasilegal.com

bvanzile@tomasilegal.com

Telephone: (503) 894-9900

DAVIS WRIGHT TREMAINE LLP

By: /s/ Christopher W. Savage

Christopher W. Savage, D.C. Bar #362657

chrissavage@dwt.com

(Admitted Pro Hac Vice)

Katherine Sheriff, D.C. Bar #1632141

katherinesheriff@dwt.com

Telephone: (202) 973-4200

Of Attorneys for Defendants