Remedies for Unjust Enrichment: Disgorgement Methods, Damages Assessment, and Practical Case Insights

Shawn Fox | Fox Forensic Accounting, LLC

Shawn Fox founded Fox Forensic Accounting LLC (FFA) in May 2019, to provide the highest quality service on legal and regulatory matters with a more competitive fee structure than traditional accounting and consulting firms. This client-service approach will enable FFA to more efficiently while providing flexibility to meet client-specific dispute, investigation, and valuation project requirements. FFA will be able to better leverage a client-centric approach utilizing highly experienced professionals with FFA. FFA has offices in Chicago, Dallas, and Kansas City.

He brings more than 28 years of experience providing fraud and forensic accounting, dispute advisory, and valuation services to the business and legal community. Mr. Fox has been engaged in high profile disputes and investigations involving hundreds of millions of dollars to billions of dollars. With significant experience in expert testimony and the preparation of expert reports, Mr. Fox assists clients in all phases of complex litigation, including case assessments, discovery, document review, damages analysis, complex modeling, rebuttal report, and demonstrative exhibits. He has testified in 75 different cases at deposition, trial, and arbitration as an expert witness and has served as a court-appointed receiver. He has been qualified as an expert witness in federal district, bankruptcy, and state courts across the U.S. Mr. Fox is also retained as a consultant to quantify the potential damages or exposures in disputed matters.

Mr. Fox has also worked on more than 1,000 dispute advisory matters across a wide range of areas, including high stakes litigation, complex damages, lost profits, disgorgement of profits, unjust enrichment, economic damages, diminution of value, reasonable royalty, intellectual property infringement, bad faith, breach of contract, breach of fiduciary duty, misappropriation of trade secrets, tortious interference, securities, fraud, purchase price disputes/post-acquisition disputes, class action, family law, bankruptcy litigation, as well as valuation and insurance claims recoveries.

He also brings experience leading forensic investigations on financial restatements and financial reporting fraud, regulatory investigations, assessing fraud risk, internal corporate investigations, employee misconduct, whistleblower, and construction cost overrun matters.

Mr. Fox also provides valuation, financial modeling, and analytical services of businesses, ownership/equity interests, and intellectual property for transaction advisory, restructuring, tax compliance and planning, shareholder agreements, financial reporting, and bankruptcy purposes.

Prior to starting FFA, Mr. Fox’s prior experience was with national and global accounting and consulting firms in leadership and partner roles, including the Partner-in-Charge of RSM’s litigation and investigation consulting services practices for the Central Region, a director in Grant Thornton’s forensic accounting and investigative services practice, Managing Director of BDO’s litigation and dispute resolution practice, and a Managing Director and national leader of economic damages practice at Willamette Management Associates. Most recently, Mr. Fox was the National Managing Director of the forensic and valuation services practice of Sikich LLP.

Shawn Fox has presented more than 80 presentations in the last 20 years for continuing legal education (CLE) for attorneys and continuing professional education (CPE) for accountants at bar and industry associations, law firms, learning organizations, law schools, insurance companies, and accounting firms. These presentations include topics pertaining to forensic accounting, lost profits, damages, reasonable royalty generally accepted accounting principles (GAAP), Daubert challenges, valuation, insurance claims, and more.

I. Understanding unjust enrichment | 2:00pm – 2:12pm

• Definition and principles of unjust enrichment
• Key vocabulary words
• Important difference between defendant’s unjust enrichment and plaintiff’s actual damages

II. Choosing the appropriate remedy | 2:12pm – 2:24pm

• How do you choose the appropriate remedy
• Choice of remedy will impact the disclosure requirement of the parties
• Types of cases in which unjust enrichment is often used

III. Different methodologies of unjust enrichment | 2:24pm – 2:36pm

• Defendant’s profits
• Head start advantage
• Cost savings
• Reasonable royalty avoided
• Value of intellectual property

IV. Additional considerations when calculating ill-gotten gains | 2:36pm – 2:48pm

• Time horizon
• Defendant’s revenues
• Deduction of defendant’s expenses
• Apportionment considerations

V. Case examples of unjust enrichment | 2:48pm – 3:00pm