Sample of recent digests added to BVLaw

Boltar LLC v. Commissioner, 2011 WL 1314445 (U.S. Tax Ct.)(April 5, 2011) Tax Court rejects charitable easement appraisal under Daubert, finding the appraisers ignored the before and after method and rejected relevant facts in favor of those that exaggerated value.

Experts: Integra Realty Resources (taxpayer); Steven Albert (IRS)

Judge:  Cohen

State/Jurisdiction: federal

Court: U.S. Tax Court

Type of case:  federal tax

Ritchie v. Rupe, 2011 WL 206845 (Neb. App.)(Jan. 25, 2011) Texas Court of Appeals affirmed availability of forced buy-out remedy for shareholder oppression and held that when minority oppressed shareholder wants to sell, the fair market value standard (including discounts) is appropriate.

Experts: Donald Latin, Richard Latin, and Alan Tolmas (minority shareholder)

Judge:  Moseley

State/Jurisdiction: Texas

Court: Court of Appeals

Type of case:  shareholder oppression

Nuveen v. Nuveen, 2011 WL 988826 (N.D.)(March 22, 2011) Divorce court prefers BV-certified appraiser over broker for valuation of orthodontic practice, in particular his reliance on intangible asset sale three years prior to divorce.

Experts: Leonard Sliwoski (husband); Kevin Shea (wife)

Judge:  Kapsner

State/Jurisdiction: North Dakota

Court: Supreme Court

Type of case:  marital dissolution

Level 3 Communications v. Floyd, 2011 WL 11000078 (M.D. Tenn.)(March 22, 2011) Federal district court precludes defendant’s expert from opining on the appropriateness of legal remedy (loss of use damages vs. lost profits), but admits his testimony criticizing the plaintiff’s loss of use calculus and proposing an alternative damage amount.

Experts: Gregory Schuelke (defendant)

Judge:  Trauger

State/Jurisdiction: federal/ Tennessee

Court: U.S. District Court

Type of case:  tort

Gary’s Implement, Inc. v. Bridgeport Tractor Parts, 2011 WL 1198401 (Neb.)(April 1, 2011) Nebraska Supreme Court affirms admission of expert lost profits calculations that relied on comparable companies owned by defendant.

Experts: John Wenande (defendant)

Judge:  McCormack

State/Jurisdiction:  Nebraska

Court: Supreme Court

Type of case:  breach of contract

S. Muoio & Co., LLC v. Hallmark Entertainment Investments, 2011 WL 863007 (Del. Ch.)(March 9, 2011) Delaware Chancery urges experts to use “robust” “triangular” valuation approach, including DCF, comparable companies, and comparable transactions.

Experts:  Daniel Schecter and Robert Hamada (plaintiffs); Christopher Lee and Jerry Hausman (defendants)

Judge:  Chandler

State/Jurisdiction: Delaware

Court: Court of Chancery

Type of case: breach of fiduciary duty

Mattel, Inc. v. MGA Entertainment, 2011 WL 836418 (C.D. Cal.)(March 4, 2011) Federal district court strikes portions of expert copyright infringement damages that apply the ex post Georgia-Pacific reasonable royalty calculations, because federal law requires ex ante approach.

Experts: Michael Wagner (plaintiff’s)

Judge:  Carter

State/Jurisdiction: federal/California

Court: U.S. district court

Type of case:  IP

Salumbides v. Salumbides, 2011 WL 835102 (Neb. App.)(March 8, 2011)(unpublished) Divorce court values medical practice based solely on accounts receivable, largely due to lack of evidence and cooperation from owner-spouse.

Experts: Steve Groetke

Judge:  Moore

State/Jurisdiction: Nebraska

Court: Court of Appeals

Type of case:  Marital dissolution

Flowers Bakeries Brand, Inc. v. Interstate Bakeries Corp., 2011 WL 1004657 (N.D. Ga.)(March 17, 2011) Federal court admits reasonable royalty rates based on past licensing agreements, but bars lost profits evidence that fails to account for market factors that could have caused the loss.

Experts: Donald Raulerson

Judge:  Thrash

State/Jurisdiction: federal  / Georgia

Court: U.S. District Court

Type of case:  IP

Rubin v. Murray, 2011 WL 873472 (Mass. App.)(March 16, 2011) Court relies on expert evidence and survey data to find that reasonable compensation for officers of midsize, closely held corporation comprised 4% to 7% of net revenues, plus 3% “success premium.”

Experts: Howard Gordon (plaintiffs) and Thomas Quinn (defendants)

Judge:  Katzmann

State/Jurisdiction: Massachusetts

Court: Appeals Court

Type of case:  breach of fiduciary duty

American Savings Bank v United States, 2011 WL 1206472 (Fed.Cl.)(April 1, 2011) Federal Court of Claims awards $83.3 million in lost profits based on bank’s analysis of the growth it would have achieved, based on historic performance and business plans, but for government’s enactment of FIRREA.

Experts: Antonio Ramirez Jr. (plaintiff); Terry Musika, Dr. Anjan V. Thakor, and Dr. William G. Hamm (defendant)

Judge:  Smith

State/Jurisdiction: federal

Court: U.S. Court of Federal Claims

Type of case:  breach of contract