Instead of proving what you would have earned, prove what they did earn. It is a different problem, and often an easier one.
Start a conversation with Cournot, the Institute’s damages concierge, already scoped to unjust enrichment & disgorgement. Pick a starting point, or describe the dispute directly.
The conventional measures ask the plaintiff to establish a world that did not happen. Unjust enrichment asks a different question: what did the defendant gain from the conduct? That reversal is its central advantage. The plaintiff no longer has to construct a counterfactual about its own business — no trading history required, no comparator to defend, no projection to justify — and instead measures something that actually occurred, on records the defendant kept for its own purposes. This makes it particularly valuable where the plaintiff is small, new, or was never going to capture the sales itself. The difficulty moves rather than disappears: gain has to be attributed to the conduct rather than to everything else the defendant did, and which costs the defendant may deduct against revenue becomes the central fight. Whether the measure is available at all is a question of the cause of action, and that is counsel's.
Revenue is usually the easy part. Everything after it is contested.
Which sales are in scope. Usually the plaintiff’s initial burden and the easier half.
How much of the gain came from the wrongdoing rather than the defendant’s brand, distribution, or other features.
Which costs the defendant may set against revenue. Incremental only, or a share of overhead too.
Gross, operating or net. The choice changes the number substantially.
Over what period gains are counted, including whether continuing benefit is captured.
Claiming the defendant’s gain and the plaintiff’s loss for the same sales draws a double-recovery objection.
How the Institute approaches a gain-based claim.
It can be the difference between a claim that is provable and one that is not.
A defendant will argue that its sales came from its brand, its distribution and its salesforce — not from the misappropriated thing. A gain figure with no apportionment analysis is the easiest damages opinion in the case to attack.
Because of who has to prove what. Lost profits requires the plaintiff to establish a counterfactual about its own business, which is hard for a company with no trading history, no capacity to have made the sales, or no comparable to point to. A gain-based measure sidesteps all of that by measuring the defendant's actual results from the defendant's actual records. It is also sometimes simply larger — where the defendant was better placed to exploit the thing than the plaintiff was, its gain can exceed anything the plaintiff could credibly claim to have lost. Availability is a legal question that varies by claim.
This is the central fight and the answer is claim- and jurisdiction-specific, so treat any general statement with caution. The economic question underneath is which costs would not have been incurred but for the wrongful activity — genuinely incremental costs — as against fixed overhead that the defendant would have carried anyway. Defendants argue for a full allocation of overhead, which reduces the number substantially; plaintiffs argue for incremental costs only. Where the deduction question sits materially affects the outcome, and counsel should know their jurisdiction's position before the expert models anything.
With evidence rather than assertion, which is harder than it sounds. The defendant will say its profits came from its own brand, distribution, salesforce, and features unrelated to the wrongdoing, and it is generally right that some did. A credible apportionment ties the share attributed to the conduct to something observable — price differences before and after, the role of the misappropriated feature in purchasing decisions, consumer survey evidence, or comparison to products without it. An expert who attributes all profit to the conduct without addressing what else drove sales has produced the most attackable opinion in the case.
Generally not for the same sales, and that is the constraint to plan around. Awarding the plaintiff its lost profit on a sale and the defendant's profit on that same sale compensates one transaction twice. Where the measures are pleaded together they are usually alternatives, with the fact-finder choosing. There are situations where they cover genuinely different ground — lost profits on sales the plaintiff would have made itself, and gain on sales it never could have — and that division is coherent, but it has to be drawn explicitly and defended.
Describe the conduct and the gain. The Institute will help you see what has to be requested.