Proximate Cause - Lost Profits - Circumstantial Evidence


Jostens, Inc., et al. v. Herff Jones, LLC, et al., [Ms. 1180808, Apr. 24, 2020] __ So. 3d __ (Ala. 2020). The Court (Mendheim, J.; Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers, Stewart, and Mitchell, JJ., concur) affirms the Mobile Circuit Court’s judgment entered on a $3.15 million dollar jury verdict on claims of breach of contract, tortious interference and misappropriation of trade secrets predicated on breach of covenants not to compete in the highly competitive scholastic recognition business.

Defendants Jostens and two independent contractor salesmen for Jostens challenged the verdict on the sole ground that there was no substantial evidence that the damages for lost profits awarded Herff Jones and its sales agent were proximately caused by the allegedly wrongful acts of Jostens and its salesmen Wiggins and Urnis who had previously been affiliated with Herff Jones and who were subject to covenants not to compete. Ms. *23.

In affirming the Court explained

“There is nothing wrong with a case built around sufficient circumstantial evidence, provided the circumstances are proved and not merely presumed. Richards v. Eaves, 273 Ala.120, 135 So. 2d 384 (1961). Any judgment in such a case must necessarily involve some amount of speculation or inference by the jury. There is conjecture only where there are two or more plausible explanations of causation, and the evidence does not logically point to one any more than the other. Where the evidence does logically point in one direction more than another, then a jury can reasonably infer that things occurred in that way.” Folmar v. Montgomery Fair Co., 293 Ala. 686, 690, 309 So. 2d 818, 821 (1975). ... As long as the circumstantial evidence presented by the plaintiffs was sufficient to allow the jury to reasonably infer that wrongful acts by the defendants led to the plaintiffs’ loss of the 47 school accounts, direct evidence was not required to submit the issue of causation to the jury. See Bell v. Colony Apartments Co., 568 So. 2d 805, 810-11 (Ala. 1990) (“A fact is established by circumstantial evidence if it can be reasonably inferred from the facts and circumstances adduced.”).

Ms. **42-43.

The plaintiffs were not required to present direct, customer-by-customer evidence of the reasons each of the 47 blue-list schools switched from Herff Jones to Jostens in order for the issue of causation to be submitted to the jury. The plaintiffs presented ample circumstantial evidence that would allow the jury to infer that the defendants’ wrongful conduct led to the plaintiffs’ loss of the school accounts at issue. Ms. *48.

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