American Federal Group, Ltd. And Dennis A. Herman, Plaintiff-Appellee-Cross-Appellant v. Barnett Rothenberg, Defendant-Appellee-Cross-Appellee

How courts have described this case

Verbatim parenthetical descriptions written by other courts when citing this decision. Ranked by citation-network relevance.

• noting that “to recover damages for lost earnings or profits one must prove with certainty that the loss was caused by a breach....”
• explaining that waiver of an unpleaded affirmative defense “may not be proper where the defense is raised at the first pragmatically possible time and applying it at that time would not unfairly prejudice the opposing party”
• “[W]aiver may not be proper where the defense is raised at the first pragmatically possible time and applying it at that time would not unfairly prejudice the opposing party.”
• “Waiver by failure to plead is indeed the general rule, but it is a rule not applied automatically and as a practical matter there are numerous exceptions to it.”
• “[W]aiver [of an unpleaded defense] may not be proper where the defense is raised at the first pragmatically possible time and applying it at that time would not unfairly prejudice the opposing party.”
• less stringent “substantial factor” standard inappropriate where “the remedy sought is damages to compensate for a claimant’s loss” because in that context “the usual damages-causation rule for tort and contract breach cases is appropriate”

Source: CourtListener parenthetical corpus (CC0).