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such evidence indicates that the defamatory materials were not received from the [D]efendants
and/or did not cause a decline in sales. fn 55

Furthermore, to the extent that the plaintiffs’ expert had any basis for establishing a causal link between
the defendants’ conduct and the plaintiffs’ losses, the court found that it was based upon unsupported
statements made by the plaintiffs.

[T]he only evidence Sigur has presented concerning the impact of market factors on his sales in
2005 is his own statements contained in his affidavit, and self-serving and unsubstantiated state-
ments by a plaintiff do not serve as competent summary judgment evidence. fn 56

Concluding that the plaintiff failed to demonstrate that the alleged decline could not be attributed to any-
thing other than the cyclical nature of its customers’ businesses, its damages expert was excluded. Ulti-
mately, this case is useful for its indication of potentially other "obvious" factors that experts may con-
sider when performing a damages calculation.

Lowry’s Reports Inc. v. Legg Mason Inc.

In this copyright infringement case, fn 57 the plaintiff alleged that the defendant, who had a single-copy
subscription to the plaintiff’s investment reports, disseminated the information contained in these reports
to its national network of brokers. The plaintiff’s reports had also been faxed to branch offices where the
reports were further duplicated and distributed, in violation of the plaintiff’s copyrights. Under the Cop-
yright Act, the copyright owner is not only entitled to its own actual damages but also the following:

[A]ny profits of the infringer that are attributable to the infringement and are not taken into ac-
count in computing the actual damages. In establishing the infringer's profits, the copyright own-
er is required to present proof only of the infringer's gross revenue, and the infringer is required
to prove [its] deductible expenses and the elements of profit attributable to factors other than the
copyrighted work. fn 58

To establish infringer’s profits, however, a causal link between the infringement and the infringer’s rev-
enues must be established: "The court ‘must conduct a threshold inquiry into whether there is a legally
sufficient causal link between the infringement and the subsequent indirect profits.’ ....It may deny re-
covery if the profits "are only remotely or speculatively attributable to the infringement." fn 59

The plaintiff’s expert acknowledged that he could not say whether a causal link connected the infringe-
ment to the defendant’s profits. The court’s opinion cited the following testimony by the expert:

fn 55 Id. at 569.

fn 56 Id. at 570.

fn 57 Lowry’s Reports Inc. v. Legg Mason Inc., 271 F. Supp. 2d 737 (D. Md. 2003).

fn 58 Id. at 751 (quoting 17 U.S.C. Section 504(b).

fn 59 Id. (citations omitted).

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