H. Mitigation Issues

• Library: South Carolina Damages (SCBar) (2009 Ed.)

H. Mitigation Issues

An express statutory claim for damages, such as that arising under the South Carolina securities laws cannot be negated or undercut by a claim the plaintiff failed to mitigate damages.¹⁰⁷

Some courts take a hard line and punish shareholders who could have lessened their losses by taking action in advance of suit. For instance, "[t]he law does not permit an investor to stay and see how things work out after discovering the alleged past impropriety which brought him to the decision to stay or get out, and then recover damages for events which follow the investor's decision to stay."¹⁰⁸

When mitigation is an issue, the plaintiff risks seeing his or her damage claim diminished if he fails to jettison the offending investment within a reasonable period of time after discovery. Likewise, a customer claiming securities positions have been liquidated in violation of his or her rights may be found to have an obligation to...