Business Valuation in the Context of Insolvency
This webinar will dive into the complex world of bankruptcy. It will include a look at the valuation nuances that one needs to consider when preparing a valuation analysis and report in the context of bankruptcy.
Vieira v. Think Tank Logistics, LLC (In re Levesque)
In this adversary Chapter 7 proceeding, the trustee sought to avoid the debtor’s transfer of his interest in two corporate entities and either recover the interests or the value of such interests from the defendants. As part of this proceeding, the court was asked to decide on two motions in limine regarding an valuation expert from each side. The motions (Daubert) asked that the experts not be allowed to testify. The court granted in part and denied in part the motions of the parties.
Bankruptcy Court (South Carolina) Grants in Part and Denies in Part Motions to Exclude Experts in Daubert Motions
In this adversary Chapter 7 proceeding, the trustee sought to avoid the debtor’s transfer of his interest in two corporate entities and either recover the interests or the value of such interests from the defendants. As part of this proceeding, the court was asked to decide on two motions in limine regarding an valuation expert from each side. The motions (Daubert) asked that the experts not be allowed to testify. The court granted in part and denied in part the motions of the parties.
Are you up on the recent BV-related court cases?
One of the highlights of the BVR webinar schedule is the regular update on valuation-related court cases.
New case on qualifying for Subchapter V in bankruptcy
In 2020, the Small Business Reorganization Act (SBRA) added Subchapter V to Chapter 11 of the Bankruptcy Act, which changes or eliminates some of the Chapter 11 requirements, making it more debtor-friendly.
Bankruptcy Appeals Panel Affirms Confirmation of Chapter 11 Plan Despite Objection of Largest Unsecured Creditor
The debtor was a manufacturer of wet wipe cleaning products. It contracted with a new customer to manufacture wipes for the customer in the U.S. and to sell such wipes to the new customer. The customer failed to obtain EPA and state-level product registrations and refused to purchase manufactured wipes or to honor its commitments regarding loans to the debtor for new equipment leases and other costs to expand the debtor’s facilities to meet the demands of the contracts. The debtor ultimately filed for bankruptcy and delivered a Chapter 11 plan that included selling its assets. The Bankruptcy Court approved the plan. The creditor appealed the approval of the plan, but the appeals panel affirmed.
Albaad USA, Inc. v. GPMI, Co. (In re GPMI, Co.)
The debtor was a manufacturer of wet wipe cleaning products. It contracted with a new customer to manufacture wipes for the customer in the U.S. and to sell such wipes to the new customer. The customer failed to obtain EPA and state-level product registrations and refused to purchase manufactured wipes or to honor its commitments regarding loans to the debtor for new equipment leases and other costs to expand the debtor’s facilities to meet the demands of the contracts. The debtor ultimately filed for bankruptcy and delivered a Chapter 11 plan that included selling its assets. The Bankruptcy Court approved the plan. The creditor appealed the approval of the plan, but the appeals panel affirmed.
In re Hillman
The Bankruptcy Court decided and ordered on the issue of whether the debtor qualified as a “small business debtor” under subchapter V of Chapter 11. The court decided that, as of the petition date, the debtor was engaged in commercial or business activity in both of its business activities. The debtor met her burden of proof as qualifying under Subchapter V of Chapter 11.
Bankruptcy Court Decides on Debtor Qualification as a ‘Small Business’ Under Chapter 11
The Bankruptcy Court decided and ordered on the issue of whether the debtor qualified as a “small business debtor” under subchapter V of Chapter 11. The court decided that, as of the petition date, the debtor was engaged in commercial or business activity in both of its business activities. The debtor met her burden of proof as qualifying under Subchapter V of Chapter 11.
EllDan Corp. v. Steele (In re EllDan Corp.)
The remaining matter in this bankruptcy adversary proceeding was whether the covenants not to compete in the prepetition franchise agreements were enforceable. The debtor rejected the franchise agreements after the petition date of the bankruptcy proceedings. The court ruled that the covenants were reasonable in duration and geographic scope under Minnesota law and public interest was not harmed. The court also found that the debtor breached the covenants the franchisor was contractually entitled to injunctive relief.
Despite Rejection of Franchise Agreements in Bankruptcy, Debtor Remained Obligated Not to Compete
The remaining matter in this bankruptcy adversary proceeding was whether the covenants not to compete in the prepetition franchise agreements were enforceable. The debtor rejected the franchise agreements after the petition date of the bankruptcy proceedings. The court ruled that the covenants were reasonable in duration and geographic scope under Minnesota law and public interest was not harmed. The court also found that the debtor breached the covenants the franchisor was contractually entitled to injunctive relief.
Business Valuation Case Law Yearbook, 2023 Edition
January 2023 PDF, Softcover (195 pages)
BVR (editor)
Business Valuation Resources, LLC
Appellate court rules on valuation of inventory in Sears bankruptcy
Sears (the Amazon of its day) recently emerged from bankruptcy after four years and thousands of court filings.
ESL Invs., L.P. v. Sears Holdings Corp. Debtor-Appellee (In re Sears Holdings Corp.)
Second-lien holders, entitled to payment only after the debts of first-lien holders have been discharged, argued that the value of the collateral that secured their claims, as measured on the petition date, vastly exceeded what they had been paid and that they were accordingly entitled to priority payment of the difference. At trial, all parties put on evidence as to the value of the assets at the petition date. The differences varied widely. “The differences among these values turned primarily on how the experts calculated the revenue Debtors could expect to earn from selling their inventory.” The appeal dealt primarily with this inventory issue and how it should be valued.
Valuation of Inventory Key to Decision on Collateral Value in Bankruptcy
Second-lien holders, entitled to payment only after the debts of first-lien holders have been discharged, argued that the value of the collateral that secured their claims, as measured on the petition date, vastly exceeded what they had been paid and that they were accordingly entitled to priority payment of the difference. At trial, all parties put on evidence as to the value of the assets at the petition date. The differences varied widely. “The differences among these values turned primarily on how the experts calculated the revenue Debtors could expect to earn from selling their inventory.” The appeal dealt primarily with this inventory issue and how it should be valued.
Official Comm. of Unsecured Creditors of LB Steel, LLC v. Steelcast Ltd. (In re LB Steel, LLC)
The Bankruptcy Court in this case dealt with an adversary complaint from the Official Committee of Unsecured Creditors. The committee sought to avoid and recover payments the debtor made within the 90 days leading up to the bankruptcy filing to the parent company. For reasons including that the debtor was insolvent during that 90-day period, the court decided in favor of the committee and ordered the payments avoided and ordered the parent company to repay the debtor’s estate.
Bankruptcy Court Orders Parent Company to Repay Payments Within 90 Days of Filing
The Bankruptcy Court in this case dealt with an adversary complaint from the Official Committee of Unsecured Creditors. The committee sought to avoid and recover payments the debtor made within the 90 days leading up to the bankruptcy filing to the parent company. For reasons including that the debtor was insolvent during that 90-day period, the court decided in favor of the committee and ordered the payments avoided and ordered the parent company to repay the debtor’s estate.
BV News and Trends June 2022
A monthly roundup of key developments of interest to business valuation experts.
In Re S-Tek 1, LLC
The debtor, S-Tek 1 LLC, submitted a motion to value to the Bankruptcy Court to determine the value of the collateral of Surv-Tek Inc. as to debt owed it by the debtor pledged as collateral for debt owed by S-Tek to Surv-Tek. The valuation was to be used in the confirmation of a Chapter 11 reorganization of S-Tek. The court used the replacement value standard of value instead of the “ongoing concern” value since the replacement value provided a value greater than the “enterprise value” (i.e., ongoing concern value).
Bankruptcy Court Uses the ‘Replacement Value Standard’ as It Determines That Debtor ‘Enterprise Value’ Is Lower and Inappropriate
The debtor, S-Tek 1 LLC, submitted a motion to value to the Bankruptcy Court to determine the value of the collateral of Surv-Tek Inc. as to debt owed it by the debtor pledged as collateral for debt owed by S-Tek to Surv-Tek. The valuation was to be used in the confirmation of a Chapter 11 reorganization of S-Tek. The court used the replacement value standard of value instead of the “ongoing concern” value since the replacement value provided a value greater than the “enterprise value” (i.e., ongoing concern value).
Breaking Into Bankruptcy Valuations With Little—or No—Experience
There are a lot of opportunities for business valuation analysts in the context of financially distressed or bankrupt companies. A veteran expert gives some advice on how to add this area to your practice regardless of your level of direct experience.
Tennis great Becker convicted of hiding assets in bankruptcy
In London, ex-tennis star Boris Becker has been found guilty of four charges under the UK’s Insolvency Act relating to his 2017 bankruptcy, the BBC reports.
The Long Arm of the Bankruptcy Court: Valuation in Fraudulent Transfer Matters
When a company files for bankruptcy, the first analysis is to determine what the company has and what the company owes as of the filing date. Next is a thorough analysis of what had been paid out of the company before the filing date to determine whether such payments can be clawed back into the estate for the benefit of creditors. Payments made within 90 days of the filing may automatically be considered preferential. Beyond ...
Business Valuation Case Law Yearbook, 2022 Edition
January 2022 PDF, Softcover (177 pages)
BVR (editor)
Business Valuation Resources, LLC
The legal coverage and in-depth analysis from the BVR legal team deliver lessons learned to help appraisers reach better and more defensible valuation conclusions. All the cases featured in this book impart important lessons about applicable legal principles, approved and discredited valuation methodology, and the act (and art) of presenting expert opinions. This must-have collection benefits both the generalist as well as the specialist.
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Valuation experts spar over fraudulent transfer matter
In the bankruptcy court, two valuation experts squared off in a case where the trustee argued that a cash transfer by the debtor was a constructively fraudulent transfer under the bankruptcy code.