Suffolk Tech. LLC v. AOL Inc., No. 1:12cv625 (E.D. Va. April 12, 2013 (Dkt. No. 518).


The Nash Bargaining Solution (“NBS”) continues to struggle for acceptance in some courts. In Suffolk Technologies, the court rejected an expert’s attempt to use the NBS to arrive at a 50/50 profit split when the expert failed to tie the NBS to the case. Seeing no difference between the NBS and the “25% Rule of Thumb” rejected in Uniloc, the court struck the expert’s testimony.


Defendant moved to exclude the testimony of Plaintiff’s damages expert, Roy Weinstein. Id. at *1. Holding that the hypothetical negotiation conducted by Weinstein based on the NBS did not appear to be tied to the facts of the case, the court granted the motion and excluded the testimony. Id. at *3, *5.

Weinstein appeared to apply the Georgia-Pacific factors to the revenue stream associated with the accused product and then created a hypothetical negotiation based on the NBS. Id. at *3. Weinstein’s opinion, in essence, applied the Georgia-Pacific factors followed by application of a 50/50 profit split based on the NBS. Id.

The court rejected the expert’s opinion: “Simply put, Weinstein’s damages opinion is not meaningfully distinguishable from the damages opinion rejected in Uniloc.Id. Weinstein failed to explain why the parties to the case would agree to a 50/50 split. Thus, the 50/50 split was “plainly not tied to the facts of this case and is essentially no different from the 25% rule of thumb rejected in Uniloc.” Id. at *4.