- 32 -
Based on the plaintiffs' factual allegations in the pretrial
order that the District Court treated as established, that Court
held in its opinion that FIG was liable to the plaintiffs for
breaches of contract, indemnity, and fraudulent misrepresenta-
tions.
The District Court then proceeded in its opinion to deter-
mine the damages to be awarded to the plaintiffs as a result of
FIG's liability. In making that determination, the District
Court relied on evidence that the plaintiffs presented at the
damages hearing with respect to their claims for damages for lost
profits due to FIG's breaches of contract and fraudulent
misrepresentations, including Analysis 1 and the testimony of Mr.
Wharton regarding that analysis. Mr. Wharton testified at the
damages hearing (1) that it was his understanding that ETS was
owned by the Diamonds; (2) that it was formed sometime during
1982; (3) that it provided services almost exclusively to DCI;
(4) that, in determining lost profits, he took account of the
profits lost by DCI, as well as the profits lost by ETS, and that
he treated ETS as a division of DCI; (5) that he and others
working under his supervision prepared several analyses of the
profits lost by DCI and by ETS as a result of FIG's breaches of
contract and fraudulent misrepresentations and that, in determin-
ing those profits, he relied principally on Analysis 1; (6) that,
in reaching the conclusions shown in Analysis 1, he aggregated
the operations of DCI and ETS; and (7) that although he was
Page: Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 NextLast modified: May 25, 2011