Expert Witness Profiler

Tag: Unjust Enrichment

  • Risk Management Expert’s Testimony on the Required Team Composition Excluded

    Risk Management Expert’s Testimony on the Required Team Composition Excluded

    Andre Pauwels, the Plaintiff, filed an unjust enrichment claim against The Bank of New York Mellon Corporation and The Bank of New York Mellon, collectively referred to as “BNYM.”

    In short, Pauwels, who previously served as a consultant for BNYM, alleged that BNYM was unjustly enriched by its continued use of his “proprietary computational model”—the Pauwels Model—which is used to analyze proposed tax-equity investments in wind energy projects and monitor the investment BNYM chose to pursue.

    Pauwels sought to quantify the amount by which BNYM was unjustly enriched through the expert testimony of Slim Bentami. Bentami, in his Report and proposed testimony, opined on the cost BNYM, or a similar large bank, would expend to recreate the Pauwels Model from scratch. BNYM filed a motion to exclude Bentami’s testimony from trial.

    Risk Management Expert Witness

    Slim Bentami has over 30 years of experience in the finance industry. He previously held various leadership roles within the Risk Division at Goldman Sachs, where he was responsible for “ensuring that the models used by the firm were fit for purpose and error free.”

    Discover more cases with Slim Bentami as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    BNYM argued, in short, that Bentami’s report and anticipated testimony (1) support a theory of damages which is not cognizable as a matter of New York law, (2) rely on insufficient facts or data; and (3) use an unreliable methodology.

    BNYM primarily attacked Bentami’s relatively terse explanation of why various staff members would be necessary as a part of his “hybrid equivalent” team replicating the Pauwels Model in-house.

    Bentami justifies the composition of such a team as follows:

    “Based on my experience and analysis, I would expect a team of quantitative modeling professionals of various levels to be dedicated to the development of a Pauwels Model equivalent from scratch. In my opinion, such a team would likely consist of (1) one Managing Director (“MD”) level person experienced with this type of investment; (2) two senior Vice President (“VP”) level persons experienced with this type of investment as well as with enterprise systems and processes; and (3) three Associate level staff who would perform the brunt of the development. Such staff would typically be part of a structuring modeling team and/or quantitative development team. The necessity for three associate-level staff follows from the need for redundancy and for cross-validation of work.”

    I. Bentami’s Report Is Relevant Under Rule 702

    BNYM first argued that Bentami’s report and testimony should be “excluded because they merely attempt to quantify a theory of damages that is not recoverable as a matter of law.”

    Pauwels contended that Bentami’s opinions speak to the “value of the thing that BNYM took from Plaintiff” by quantifying the “development cost” of the Pauwels Model.

    It should be noted that Pauwels performed consulting work for BNYM from 2014 to 2017. Pauwels stopped monitoring BNYM’s investments in September 2017, when BNYM replaced him with Deloitte LLP, Deloitte Tax LLP, and Deloitte USA LLP (together, “Deloitte”). The parties disputed the extent to which Deloitte used the Pauwels Model when it took over this monitoring work. 

    Bentami is offering an opinion on the costs that would be incurred if BNYM or an equivalent bank sought to replicate the Pauwels Model. He did not opine on the costs Pauwels himself incurred to create the Pauwels Model or the third-party costs BNYM avoided through the use of the Pauwels Model. Notably, as BNYM has argued, Bentami’s valuation “does not even correspond to . . . the costs that BNY[M] purportedly avoided paying to Deloitte in performing the ongoing investment monitoring work.”

    BNYM attempted to preclude admission of Bentami’s report and testimony on the basis that it does not, and cannot, accurately reflect BNYM’s avoided costs through a reduction in the work done by Deloitte. Bentami’s report, however, clearly indicated that it attempted to measure BNYM’s own cost to replicate the Pauwels Model, rather than its avoided costs with respect to Deloitte.

    Accordingly, the Court found that Bentami’s opinions could support a legally cognizable theory of damages.

    II. Bentami’s Report Should Be Excluded as Unreliable under Rule 702

    Despite Bentami’s substantial experience developing financial models inside large financial institutions, Bentami did not explain with any specificity how his experience led him to reach certain conclusions.

    Bentami provided a relatively terse explanation of why various staff members would be necessary as a part of his “hybrid equivalent” team replicating the Pauwels Model in-house. 

    For example, Bentami includes no detail as to why a “Managing Director” and two “senior Vice Presidents” would be necessary to recreate a model one man created himself.  And without the benefit of any explanation from Bentami, the Court did not see how it “follows” that three associate level staff would also be necessary to satisfy the need for “redundancy and cross-validation of work.”

    Bentami’s estimation of the compensation paid to each of these team members was accomplished through a similarly superficial exercise. He simply stated that, “based on his experience and analysis, he estimated the team compensation costs,” for which he lists annual compensation figures.

    Bentami’s unexplained equivalence between one hour of Pauwels’ work and one hour of his “hybrid equivalent” team of seven people was also puzzling. 

    Bentami’s conclusions regarding the length of time an in-house team would spend developing an equivalent to the Pauwels Model appeared to be based exclusively on unsupported, approximately one-to-one equivalence between an hour of Pauwels’ time and an hour of hybrid-equivalent team time. He offered no indication as to why his experience would lead him to opine that this rough equivalence in productivity would be sufficient as even a crude proxy for the work necessary to replicate the Pauwels Model.

    It should be noted that Bentami only reviewed two out of the twelve Pauwels Model spreadsheets created to analyze BNYM’s investments.

    Held

    The Court granted BNYM’s motion to strike Slim Bentami’s report and preclude his testimony.

    Key Takeaway:

    Bentami did not offer even anecdotal evidence as to why such a team composition would be necessary or why this team would work a “hybrid-equivalent” number of hours to Pauwels, through specific reference to his own experience or what is customary in the industry. An expert basing his opinion solely on experience must do more than aver conclusorily that his experience led to his opinion. Bentami provided no detail to support his assumptions beyond a generalized reference to his expertise. And he did not explain “how his experience supports his conclusion” as to the required team composition, compensation, or time spent on the replication project.

    Because critical steps of Bentami’s methodology are supported by nothing more than his “ipse dixit,” the Court found his methodology to be unreliable.

    Case Details:

    Case Caption: Pauwels V. Bank Of New York Mellon Corporation
    Docket Number: 1:19cv2313
    Court Name: United States District Court, New York Southern
    Order Date: October 31, 2025
  • Accounting Expert’s Opinions on the Potential Damages Admitted

    Accounting Expert’s Opinions on the Potential Damages Admitted

    Go Global Retail sued Defendants Dream On Me Industries and Dream On Me, Inc. (collectively DOM) for misappropriation of trade secrets, breach of contract, and unjust enrichment.

    Go Global is a “private equity and brand investment firm” that often buys up “distressed retail assets.” It uses its in-house research and industry know-how to try to spot profitable opportunities. When it learned that Bed Bath & Beyond planned to auction off assets of its subsidiary, buybuy BABY (BBBY), Go Global started to structure a bid.

    During that process, Go Global—together with DOM and at least thirty potential investors—were granted access to a data room that contained hundreds of documents with BBBY’s financial information, so that they could conduct due diligence. 

    Using that data, Go Global developed three alleged trade secrets: its Financial Model, its Bidding Strategy, and its Technology Plan. 

    But the alleged trade secrets alone weren’t enough to win a bid: Go Global needed financing. It eventually turned to DOM. After the parties talked about bidding on BBBY’s assets jointly, Go Global sent DOM a nondisclosure agreement (NDA), and DOM’s Chief Marketing Officer, Avish Dahiya, signed it.

    Like Go Global, DOM already had access to BBBY’s historical financial data. But it didn’t have access to Go Global’s Financial Model. So after DOM signed the NDA, it downloaded the contents of Go Global’s data room, which included the Financial Model.

    DOM filed a motion to exclude the opinions of Go Global’s expert Alan Schachter.

    Accounting Expert Witness

    Alan A. Schachter, CPA, ABV, CFF, CVA, CFE has been a senior executive and partner in various consulting and accounting firms for 40 years. His experience includes assisting government agencies, private companies and their counsel with complex valuation, economic damages, and compliance issues. During his professional career, he has been very active in several types of matters that relate to intellectual property, healthcare, financial services, franchising, white-collar criminal defense, personal injury, matrimonial, wrongful termination, partnership disputes, and other civil & criminal matters.

    Want to know more about the challenges Alan Schachter has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    DOM asserted that because Schachter’s damages model relied on terms of a planned joint bid that are “entirely speculative,” it flunked the Daubert test. 

    But the factual basis is the NDA itself: If DOM had complied with the Non-Circumvention Obligation, then DOM would have had to bid for BBBY with Go Global. Given that DOM won the bid on its own, it isn’t “entirely speculative” that Go Global would have won a bid as DOM’s partner. And any argument that DOM would have chosen not to bid at all rather than bid with Go Global is foreclosed by DOM’s admission that it was “always going to submit a bid for the [BBBY] assets, with or without Go Global.” 

    Next, DOM challenged Go Global’s lost profits theory on the grounds that Schachter’s calculation “ignores the actual financial performance of BBBY since it was acquired by DOM which shows net losses of approximately $17.4 million.” 

    But to the extent DOM argues that Schachter relies on “unrealistic assurances provided by Go Global” in preparing his model, that boils down to whether Go Global is correct that it would have turned BBBY profitable had it bought the company with DOM—a question that is firmly within the province of the jury.

    The Court permitted Schachter to testify at trial about the opinions in his report.

    Held

    The Court denied DOM’s motion to exclude the testimony of Go Global’s damages expert, Alan Schachter.

    Key Takeaway:

    Alan Schachter calculated damages in the form of actual losses, unjust enrichment, and reasonable royalty for the Damages Period. Schachter’s testimony was grounded on sufficient facts and data in accordance with the Daubert standard.

    Case Details:

    Case Caption: Go Global Retail, LLC V. Dream On Me, Inc.
    Docket Number: 1:23cv7987
    Court Name: United States District Court, New York Southern
    Order Date: September 26, 2025
  • Accounting Expert Witness’ Testimony is Not Relevant to Any Claim for Damages 

    Accounting Expert Witness’ Testimony is Not Relevant to Any Claim for Damages 

    Defendants Dahv Kliner and Roger Farrow were former employees of JDS Uniphase, Plaintiff Lumentum’s predecessor. They had signed an “Employee Proprietary Information and Inventions Agreement” with the company which prohibited them from disclosing JDS Uniphase’s proprietary information to anyone outside the company.

    Kliner and Farrow left JDS Uniphase in 2012 and 2013, respectively, to join Defendant nLIGHT. Plaintiff Lumentum later claimed that Kliner and Farrow used JDS Uniphase’s proprietary information to help nLIGHT secure two types of patents: the “adjustable beam patents” and the “triple-clad fiber patents.” Lumentum also alleged that nLIGHT used these patents to develop fiber laser products, including the “Corona” and “AFX” models.

    In 2022, Lumentum filed a lawsuit, asserting breach-of-contract claims against Kliner and Farrow.

    To support its breach-of-contract claims, Lumentum intended to present testimony from its damages expert witness, Donald Gorowsky, on three topics:

    (1) Kliner and Farrow’s total compensation from JDS Uniphase,

    (2) their compensation from nLIGHT, and

    (3) the total revenues and gross profits from nLIGHT’s Corona fiber laser products.

    Defendants nLIGHT, Dahv Kliner, and Roger Farrow moved to exclude Gorowsky’s testimony, arguing that it is unnecessary and unreliable.

    Accounting Expert Witness

    Donald Alan Gorowsky, C.P.A., J.D., has more than 40 years of combined experience in audit, accounting, finance, general management, financial consulting, and expert witness services. Gorowsky has specialized in financial consulting and expert witness services since 1990. As a financial expert on damages, Gorowsky provides assistance to attorneys in a variety of litigation matters and disputes involving many types of claims including business litigation, employment, intellectual property infringement, misappropriation of trade secrets, breach of contract, insurance claims and forensic accounting. Don also has significant experience with employment disputes involving financial advisors in the securities industry (FINRA).

    Want to know more about the challenges Donald Alan Gorowsky has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    A. Defendants’ Argument

    Defendants sought to exclude Gorowsky’s testimony, arguing it was both unnecessary and unreliable. They contended that Gorowsky’s opinions were irrelevant since Lumentum could not legally claim the types of damages Gorowsky would address. They also pointed out that there was no claim for monetary damages against nLIGHT. Consequently, Gorowsky’s opinions on nLIGHT’s revenues and profits could be misinterpreted as evidence of damages against nLIGHT, rather than the individuals involved in the breach of contract.

    B. Plaintiff’s Counterargument

    Lumentum countered that Gorowsky’s testimony was essential for proving damages related to unjust enrichment. Lumentum claimed it was entitled to some of Kliner’s and Farrow’s compensation from JDS Uniphase and nLIGHT due to their alleged breach of non-disclosure agreements and the subsequent use of proprietary information. They argued that Gorowsky’s insights on calculating compensation and revenues would assist the jury in determining damages.

    C. Defendants’ Rebuttal

    Defendants argued that Gorowsky’s testimony was irrelevant and unsupported by both law and fact. They maintained that California law did not allow for recovery of compensation earned during employment for breaches occurring afterward. Additionally, they stated that nLIGHT’s profits did not benefit Kliner and Farrow, and no evidence suggested they received a portion of nLIGHT’s profits.

    D. Court’s Analysis

    i) Kliner and Farrow’s total compensation from JDS Uniphase

    The Court observed that Lumentum’s request could set a troubling precedent by seeking to recover salaries and benefits paid over a decade ago based on a single breached provision. California’s Labor Code prohibits employers from reclaiming wages already paid. The statute broadly defines wages to include all forms of compensation and benefits, and Section 221 prevents recovery of these from past employment.

    A relevant case, DHR Int’l Inc. v. Charlson, illustrated that recovery of paid bonuses was barred by the same legal principle. Similarly, since Kliner and Farrow had earned their salaries and benefits from JDS Uniphase, Lumentum could not reclaim these amounts as damages.

    The Court also noted that contract damages are generally limited to what was foreseeable at the time the contract was made. California law supports the notion that employers cannot recover wages paid during the period of employment unless expressly stated in the contract. Thus, Lumentum could not claim these as damages.

    ii) Kliner and Farrow’s compensation from nLIGHT

    Lumentum’s claim for unjust enrichment was also addressed. California law does not support an unjust enrichment claim when an enforceable express contract exists. Lumentum’s complaint did not include a claim under California’s Uniform Trade Secrets Act, nor did it request unjust enrichment damages explicitly. Therefore, Lumentum could not pursue unjust enrichment damages based on the current claims.

    Furthermore, Lumentum failed to provide sufficient evidence to support an unjust enrichment claim. Lumentum wanted Gorowsky to testify about the salaries and benefits paid to Kliner and Farrow by nLIGHT. Lumentum would need to prove how much of these payments were related to the intellectual property in dispute. On the existing record, a jury would need to speculate as to how much, if at all, Kliner and Farrow were unjustly enriched by the disclosure of the disputed information. This lack of clarity was insufficient to establish a factual issue for trial.

    iii) Kliner and Farrow’s total revenues and gross profits from nLIGHT’s Corona fiber laser products

    Lumentum aimed to have Gorowsky testify about nLIGHT’s revenues and gross profits from the Corona series fiber laser products. However, this request was also impermissible. Defendants pointed out that there was no evidence showing that Kliner and Farrow received any portion of the nLIGHT profits that Lumentum sought to reclaim. They emphasized that these benefits belonged to nLIGHT, which was neither a party to the contracts in question nor a defendant in the breach of contract claims. Gorowsky’s testimony regarding nLIGHT’s revenues and profits was deemed irrelevant.

    The Court granted the motion to exclude Gorowsky’s testimony as it did not pertain to any claim for damages in this case. However, this decision did not affect the potential for Lumentum to pursue other claims, including nominal damages for breach of contract.

    Held

    The Court granted the Defendants’ motion to exclude Plaintiff’s damages expert witness, Donald Gorowsky’s testimony.

    Key Takeaway:

    The Court deemed Gorowsky’s testimony on Kliner and Farrow’s compensation and nLIGHT’s revenues irrelevant to the breach-of-contract claims. California’s Labor Code bars recovering wages and benefits already paid during employment.

    Lumentum’s unjust enrichment claim was also invalid, as it neither invoked California’s Uniform Trade Secrets Act nor requested unjust enrichment damages. Furthermore, Lumentum failed to prove how Kliner and Farrow were unjustly enriched, making Gorowsky’s testimony speculative.

    The Court excluded Gorowsky’s opinions on nLIGHT’s profits because there was no evidence linking those profits to Kliner and Farrow, and nLIGHT was not a party to the breach-of-contract claims.

    In conclusion, the Court held that Gorowsky’s testimony did not pertain to the permissible claims for damages in this case and granted the motion to exclude his testimony.

    Case Details:

    Case Caption: Lumentum Operations LLC V. nLIGHT, Inc.
    Docket Number: 3:22cv5186
    Court Name: United States District Court for the Western District of Washington
    Order Date: September 6, 2024