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BVU News and Trends May 2018

A monthly roundup of key developments of interest to business valuation experts.

New Mergerstat edition includes premiums over EV

Users of the 2018 Mergerstat Review will be happy to see that four new tables focus on premiums paid over the targets’ enterprise values.

Control premium advisory revisited

A member of the working group involved in the creation of Valuations in Financial Reporting Valuation Advisory 3: The Measurement and Application of Market Participant Acquisition Premiums, issued by The Appraisal Foundation, has written an article that reiterates the findings of the advisory.

Court Stands Behind Earlier ESOP Liability and Damages Rulings

Notwithstanding errors related to the court’s liability and damages determinations, the court rejects trustee’s motion for reconsideration as an inappropriate effort to introduce new legal theories and a late attempt to present a competing damages methodo ...

New Tennessee law streamlines DLOM use in divorce valuation

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.

Trustee Liable for Inadequate ESOP Valuation Vetting

Court finds ESOP trustee liable for allowing overpayment for company shares; trustee rushed transaction and failed to scrutinize financial advisor’s valuation ignoring red flags related to projections, use of control premium, beta, rounding up of values.

Brundle v. Wilmington Trust N.A. (II)

Notwithstanding errors related to the court’s liability and damages determinations, the court rejects trustee’s motion for reconsideration as an inappropriate effort to introduce new legal theories and a late attempt to present a competing damages methodo ...

Court Defends Earlier ESOP Liability and Damages Rulings

Notwithstanding errors related to the court’s liability and damages determinations, the court rejects trustee’s motion for reconsideration as an inappropriate effort to introduce new legal theories and a late attempt to present a competing damages methodo ...

ESOP trustee’s failure to vet valuation causes significant overpayment

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.

Brundle v. Wilmington Trust N.A. (I)

Court finds ESOP trustee liable for allowing overpayment for company shares; trustee rushed transaction and failed to scrutinize financial advisor’s valuation ignoring red flags related to projections, use of control premium, beta, rounding up of values.

Trustee Liable for Inadequate ESOP Valuation Vetting

Court finds ESOP trustee liable for allowing overpayment for company shares; trustee rushed transaction and failed to scrutinize financial advisor’s valuation ignoring red flags related to projections, use of control premium, beta, rounding up of values.

Chancery Recognizes Reality of Control Premium in Third-Party Offers

Court says special committee’s accepting controlling shareholder’s lower bid over third-party’s higher offer is not sign of bad-faith dealing but of reality that “buyers of corporate control will be required to pay a premium” to acquire the whole company.

Chancery says bids in squeeze-out merger are not comparable

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.

In re Books a Million Stockholders Litig.

Court says special committee’s accepting controlling shareholder’s lower bid over third-party’s higher offer is not sign of bad-faith dealing but of reality that “buyers of corporate control will be required to pay a premium” to acquire the whole company.

Chancery Recognizes Reality of Control Premium in Third-Party Offers

Court says special committee’s accepting controlling shareholder’s lower bid over third-party’s higher offer is not sign of bad-faith dealing but of reality that “buyers of corporate control will be required to pay a premium” to acquire the whole company.

Two Theories of Control

This paper identifies two different theories of control premiums: One theory supposes control only benefits controlling shareholders; the other supposes control benefits all shareholders. We first examine the logical implications of each theory. We then examine the implications of each theory on the relationship between the magnitude of a control premium percentage and the percentage of controlling ownership. We analyze a database that is commonly used to quantify control premium percentages and do not find ...

Two Methods to Adjust Observed Control Premia for Valuation Purposes

The greater a target company’s leverage, the less cash, or acquirer’s shares, a buyer needs to control the target enterprise. Based on this idea, the Appraisal Foundation Working Group’s Discussion Draft, The Measurement and Application of Market Participant Acquisition Premiums, recommends as a best practice that appraisers adjust takeover premia for leverage. Previous recent research found empirical results consistent with this, namely, that higher equity takeover premia are related to higher pre-deal leverage levels, controlling ...

Court Rebuffs Attempt to Allocate Excess Value to Intangible Assets

Bankruptcy Court rejects proposition that sales price increase has to be attributed to one debtor’s business, as goodwill, because other debtor’s real property allegedly remains constant in value; court denies request to change allocation of proceeds.

In re Case No. 800 Bourbon St.

Bankruptcy Court rejects proposition that sales price increase has to be attributed to one debtor’s business, as goodwill, because other debtor’s real property allegedly remains constant in value; court denies request to change allocation of proceeds.

Court Hitches DLOM Application to Probability of Sale

In fair value appraisal proceeding, New York court finds DLOM inappropriate given low probability of sale of family business and finds assumption of hypothetical impediments to sale irrelevant; New York law does not mandate DLOM in every circumstance.

Zelouf International Corp. v. Zelouf (I)

In fair value appraisal proceeding, New York court finds DLOM inappropriate given low probability of sale of family business and finds assumption of hypothetical impediments to sale irrelevant; New York law does not mandate DLOM in every circumstance.

Court Rejects Expert’s Regression Equation to Determine DLOM

In determining the fair market value of a revocable trust’s interest in an LLC, the Tax Court adopts the IRS expert’s marketability discount and valuation; he rightly assumed it was reasonably foreseeable at the time of the decedent’s death that the trust ...

New thoughts on adjusting control level cash flows

Estate of Koons v. Commissioner

In determining the fair market value of a revocable trust’s interest in an LLC, the Tax Court adopts the IRS expert’s marketability discount and valuation; he rightly assumed it was reasonably foreseeable at the time of the decedent’s death that the trust ...

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