After the petitioners in a statutory appraisal action recently lost big, they undertook a multifaceted assault on the Delaware Court of Chancery’s decision to use the unaffected market price as the indicator of value. Their motion for reargument went nowhere.
Arkansas is one of the many states that differentiate between enterprise goodwill and personal goodwill. The former is marital property and divisible at divorce; the latter is not. A question that has come up in recent years is whether the owner of a nonprofessional business can claim personal goodwill whose value is excludable from the marital estate.
Case law matters. Every month, BVLaw analyzes the most noteworthy court decisions dealing with valuation and damages issues. Subscribers should check out digests of three recent divorce rulings different state courts issued. All the cases dealt with the issue of whether it was appropriate to discount the owner-spouse’s interest in a closely held business.
In a developing ESOP case, the government recently suffered a setback when the court agreed with the trustee that portions of the damages testimony the government’s expert proposed failed to hold up under the Daubert reliability prong.
A recent Tennessee appeals court decision found that the trial court presiding over a drawn-out divorce had discretion to apply a marketability discount when it valued the owner-spouse’s interest in two companies in 2016.
Recent rulings from the Delaware Supreme Court make it seem as if the discounted cash flow analysis has lost its top ranking among valuation methodologies in statutory appraisals involving publicly traded companies. Not exactly.
The Delaware Court of Chancery recently had an opportunity to put into practice the directives the state’s high court had issued in DFC Global and Dell in terms of calculating fair value in a statutory appraisal proceeding.
The overarching issue in a recent Michigan divorce case was appreciation. Did the nonowner spouse (wife) have a right to a portion of the increase in value of her husband’s separate property, an S corporation? A related issue, and one that posed a question of first impression in Michigan, was how to treat the company’s retained earnings.
It’s written in stone that experts developing a reasonable royalty for a multicomponent product must be careful to apportion damages to the product’s protected features. However, there is flexibility in how experts perform the apportionment, the Federal Circuit recently confirmed.
The United States Supreme Court has agreed to review a patent infringement case on the scope of damages. The issue is whether a patent holder may obtain lost profits for actions that occurred outside the United States, where the patentee has proven a domestic act of infringement.
Every month, BVLaw analyzes and digests federal and state court decisions (including opinions from the United States Tax Court) that focus on valuation and damages issues and feature expert testimony. A BVLaw subscription is an efficient way for financial experts to keep up with developments in their areas of expertise and with the various courts’ takes on valuation methodology, Daubert and the art of presentation, and policy concerns.
Twice, in 2017, the Delaware Supreme Court struck down statutory appraisal rulings by the Delaware Court of Chancery that dismissed the importance of the market price.
Causation presents one of the most vexing problems for damages experts. But ignoring causation and simply working off the assumption that it exists may end up being the biggest problem for an expert.
A recent case shows just how difficult it is to value a startup. Here, there was an extra challenge because the subject was a pharmaceutical venture that required years of funding for the development of two drugs working toward FDA approval. The trial court needed to determine the fair value of the plaintiff’s interest prior to the company’s ultimate success.
The 8th Circuit recently upheld a sizable damages award in an unusual business tort case litigated under Nebraska law. One noteworthy aspect in terms of determining economic damages was that the court allowed expert testimony regarding the loss of value to the plaintiff even though the plaintiff did not fail completely upon the wrongdoing.
The Federal Circuit recently examined a paramount damages issue that comes up in patent cases: whether, in terms of calculating lost profits, the patent holder’s ability to meet the Panduit factors makes a separate apportionment analysis unnecessary.
In assessing the soundness of valuations, courts in a variety of cases have been paying close attention to the management projections appraisers have used or decided not to use in performing their value analyses. If courts are scrutinizing projections for reliability and plausibility, experts hoping to prevail in the litigation context must do so as well.
In a complex bankruptcy case involving players in the petrochemical industry, the court trained its eyes on the management projections underlying a merger that led to the formation of a company that went bankrupt only a year after the close of the transaction.
The Delaware Supreme Court recently overturned a 2016 ruling by the Delaware Court of Chancery that arrived at fair value by weighting the results of three valuation techniques equally. The high court's Chief Justice Strine, who once headed the Chancery, found this approach was problematic and used the decision to provide valuation advice to his successor, Chancellor Bouchard, who had overseen the appraisal proceeding.
The flashpoint in a protracted New Jersey divorce proceeding was the valuation of the owner spouse's equity partner interest in a large law firm. A critical issue was whether the value of the interest should include an additional amount stemming from the firm's enterprise goodwill. The trial court's decision elicited stinging criticism from the appellate court.
A recent Washington state divorce case included a noteworthy discussion of goodwill where the owner spouse’s business arguably was separate property. Divorce experts will notice that the court’s goodwill analysis has much in common with an appreciation analysis.
Management projections are the sine qua non of a discounted cash flow analysis, and, in a recent statutory appraisal action involving the pet product giant PetSmart, the Delaware Court of Chancery found they did not cut the mustard. The court called the projections, “at best, fanciful,” and concluded the most accurate measure of fair value was the merger consideration.
When, in a Mississippi accounting malpractice case, the trial court used an outside "technical advisor" to determine the admissibility of the parties’ proposed expert testimony, the Daubert hearing assumed a whole other dimension. It was no longer simply a battle between the opposing experts, but an occasion for outside experts to judge the work of the parties’ experts.
In a controversial ESOP case that turned on the trustee’s oversight of the pretransaction valuation work, the defendant trustee recently filed a motion for reconsideration. It argued the court had committed errors related to its liability and damages findings. Although the court owned up to some mistakes, including a misunderstanding of the concept of beta, it ultimately stuck to its earlier decision.
When and whether to apply a discount for marketability in divorce valuations has been an open question in Tennessee, owing to some confusing court rulings. However, a recent amendment to the Tennessee Code seeks to provide clarity to valuators handling divorce cases in this jurisdiction.