Monthly Archives: November 2012

Has Ashland Management trumped Kenford Company with respect to claims for ‘new venture’ lost profits?

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(Victor M. Metsch is Senior Litigation/ADR counsel at Smith, Gambrell & Russell, LLP.  He can be reached at  He maintains a website at and can be found on Twitter @LegalVictor1.)    

A recent decision by the First Department reversed an Order of Supreme Court granting a motion in limine to preclude use at trial of expert testimony and “evidence regarding lost profits from international sales.”  The decision appears to have opened the door to routine challenges to the conventional legal wisdom on the “[in]admissibility” of proof regarding claims of lost profits by a “new business endeavor” with no “track record” of earnings. Wathne Imports, Ltd. v. PRL USA Inc., 953 N.Y.S.2d 7,2012 NY Slip Op. 07045 (1st Dept. Oct. 18, 2012). Continue reading