The ability for plaintiffs to plead and prove lost profits, and for defendants to avoid the results of such potential adverse judgments, has long been a unique, shifting and challenging issue in New York state and federal litigation.
Lost profits do not need to be merely speculative damages if a plaintiff can provide a strong basis for the damages alleged. For their part, defendants can overcome claims for lost profits by making a substantial showing that the plaintiff cannot demonstrate damages with reasonable certainty.
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