We recently reported on a case in which annotated expert draft reports were subject to discovery notwithstanding Federal Rule of Civil Procedure 26(b)(4). Valuation professionals who frequently work on federal cases also need to know that Rule 26 does not protect expert notes and nonattorney communication, as an important 11th Circuit ruling explains.
In an estate and gift tax case, the U.S. Tax Court recently sided with the Internal Revenue Service when the court found the value of assets transferred from the decedent to a family limited partnership was includible in the value of the decedent’s gross estate. The real surprise lay in the court's decision to propose a new way of calculating the includible amount.
The 11th Circuit recently affirmed a four-year-old Tax Court valuation of a revocable trust’s interest in a limited partnership. The linchpin in the valuation was the marketability discount.
Valuators may think they know all there’s to know about quantifying the appreciation of nonmarital property by using the active versus passive framework. Think again. A recent Florida divorce case illustrates that the premature categorization of assets may lead to an improper valuation.
Federal discovery rule 26 expressly protects draft expert reports from discovery. But experts testifying in federal court know that this protection is by no means absolute. Questions as to the scope of protection persist, and a recent discovery ruling in a patent infringement case makes clear that concern over the strength of protection is warranted.
For the second time in March 2017, a court found an ESOP trustee liable for causing the plan to overpay. The most recent decision chronicles in exhaustive detail how the trustee failed the plan in terms of ensuring that no more than fair market value would be paid for the seller’s shares.
Inadequate trustee performance was at the center of a recent case, featuring a nontraditional ESOP structure. The court found that, if the trustee had engaged with the underlying valuation, it would have discovered numerous weaknesses and prevented the ESOP from overpaying for the company stock.
A recent Wisconsin case illustrates that a shareholder agreement in place is no guarantee for a smooth buyout of the minority shareholder. The case also includes a caution to experts to strive for clarity in their expert reports.
Missouri's governor recently signed into law a bill in favor of adopting the Daubert standard applicable to the admissibility of expert testimony. The move by the governor apparently is the first in several major tort reform measures he hopes to accomplish during his term.
Merger valuation disclosures were adequate. Chancery applies business judgment rule to breach of fiduciary duty action
The business judgment rule has featured prominently in a number of recent breach of fiduciary duty cases in front of the Delaware Court of Chancery. Under the rule, the court must not interfere in a transaction if a majority of the minority shareholders approved the deal and the vote was “uncoerced and fully informed.”
Class actions have their own rules, including when it comes to expert testimony. An unresolved issue is whether damages expert testimony is subject to a Daubert inquiry at the class certification stage, before the court has approved the request to proceed as a class action. The U.S. Supreme Court has yet to give clear guidance, but defendants are increasingly proactive and move to exclude the testimony at the beginning of the litigation in an attempt to thwart class certification and knock the case out early.
Tennessee does not consider personal goodwill in a solo proprietorship a marital asset. But what about trail income, the money a financial planner makes from managing his or her clients’ funds and portfolios? In Fuller v. Fuller, the owner-spouse argued the goodwill analysis applied to the treatment of trail income as well. The Tennessee Court of Appeals recently disagreed.
New Jersey court applies DLOM in forced buyout: Defendant’s conduct created ‘extraordinary circumstance’
In adjudicating a New Jersey family dispute that escalated into an oppressed shareholder action, the trial court recently found the oppressing shareholder had created a situation that mandated the application of a discount for marketability (DLOM) in order to achieve a “fair and equitable” outcome.
Federal Circuit reacts coolly to ‘pseudo’ lost profits argument; royalty analysis may consider profits
The Federal Circuit recently found a reasonable royalty calculation that took into account the plaintiff’s profit margin was not a lost profits analysis in disguise. The plaintiff’s expert did not try to circumvent the “but for” causation requirement that applied to a lost profits claim.
The use of the Delaware block method in Tennessee recently came under attack in a case involving a closely held Nashville, Tenn.-based media company whose controlling shareholders had pursued a squeeze-out merger and later asked the trial court for a judicial appraisal of the dissenting shareholders' interest.
A recent bankruptcy-related case in front of the California Court of Appeal raises important questions about how one quantifies the value of a dated piece of art, a film, for which there never was a market in the first place.
Double dipping is a tricky issue because different states have developed different approaches to it. Valuators specializing in divorce issues must know the controlling case law in the state in which they practice. A recent decision by the Washington state Court of Appeals clarifies its state's analytical framework in a case featuring a successful management consulting business the husband had set up and grown during the marriage.
In a statutory appraisal action, the Delaware Court of Chancery recently found the deal price did not reflect fair value because the sales process was suboptimal. Certain other methods the parties' experts used also were inadequate to the task, the court said.
U.S. Tax Court Judge David Laro frequently has cautioned experts not to give in to hiring attorneys who want to shape the appraisal. Although federal and state discovery rules offer some protection for attorney-expert communication, there is a risk of exposure and with it a risk of damage to the expert’s work product and reputation. A recent Section 1031 case, which Judge Laro handled, illustrates what happens when the communication is discovered.
The Delaware Court of Chancery recently cut short a challenge to a going-private merger when it dismissed the plaintiffs' complaint. The plaintiffs unsuccessfully argued the defendants breached their fiduciary duties when they favored the controller's lower bid over a third-party bidder's higher offer.
Appraisers working on litigated disputes face special challenges. Several workshops at the recent AICPA conference in Nashville provided insights and survival tips that benefit both the seasoned financial expert witness and the upstart.
A drawn-out damages case in which a startup compression sportswear company sued the defendant "private label" manufacturer over an abandoned licensing deal promised to make the plaintiff rich but ultimately ended with nominal damages.
A recent ESOP decision involving allegations of breach of fiduciary duty and engaging in a prohibited transaction turned on whether the ESOP trustee’s financial advisor had performed proper due diligence and issued defensible fairness and valuation analyses.
In a Mississippi divorce, the husband's sole-owned fitness training company was the key asset. An accurate valuation was central to achieving an equitable distribution of property, but the parties did not hire experts or even submit much financial information to the trial court.
The plaintiff, representing the debtor enterprises, sued executives of related family-run consumer lending and retail businesses that had filed for Chapter 11 bankruptcy over allegedly fraudulent transfers.