The case of Garriott v. NCsoft presented a challenge to a $28 million judgment for breach of an employee’s stock option contract. After resolving a liability issue under South Korean law about the employee’s termination, the Court considered whether the judgment impermissibly considered post-breach stock appreciation. The Court faulted the defendant for not raising its challenge to the damages calculation in a Daubert motion, evidence objection, or charge objection, and rejected the argument under “plain error” review. Op. at 7-9 (“Displeased with the jury’s decision, NCSoft now asks for a mulligan.”) The Court also found sufficient direct evidence, consistent with the expert models, as to when the employee would have sold his shares. Op. at 9 (reminding that damages “may be too speculative if based on ‘assumptions without basis in the real world,'” but that the plaintiff “need not prove damages with mathematical certainty”).
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