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BVU News and Trends December 2020

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

Company or Damage Valuation in a Mediation Context

The number of online mediations has soared due to the pandemic. This article outlines the standard phases of a valuator-assisted mediation and the concept of the best alternative to a negotiated agreement (BATNA) and includes some real-world case studies.

Back to Basics for Lost Profit Damages Calculations Amid COVID-19

Does the pandemic have an impact on the measurement of future lost profits, particularly where the underlying breach occurred before the pandemic arose? This is an area of law that could change as courts begin to face disputes in the context of a COVID-19 world. In the meantime, this article gives a primer on calculating lost profits damages.

Global BVU News and Trends October 2020

Business valuation news from a global perspective.

Alleged reveal of secret KFC recipe points up valuation question

Ever wonder what those secret 11 herbs and spices are in KFC’s original recipe fried chicken?

D&P’s de Gray releases new financial damages guide for lost value calculations

Neil de Gray, a director in the Toronto office of Duff & Phelps, makes a strong argument for the use of business valuation professionals in any calculation of damages in his new guide The Financial Damages Model for Loss of Value, published late last month by Lexology.

Court ‘Sympathizes’ With Businesses Claiming COVID-19-Related Losses but Finds No Coverage Under Policy

In a business interruption case resulting from mandatory shutdowns to control COVID-19, court dismisses plaintiff barbershops’ claims against insurance company; plaintiffs failed to show accidental direct physical loss to premises as required for coverage and did not overcome express virus exclusion.

Diesel Barbershop, LLC v. State Farm Lloyds

In a business interruption case resulting from mandatory shutdowns to control COVID-19, court dismisses plaintiff barbershops’ claims against insurance company; plaintiffs failed to show accidental direct physical loss to premises as required for coverage and did not overcome express virus exclusion.

Rose’s 1, LLC v. Erie Ins. Exch.

D.C. court, ruling on parties’ motions for summary judgment, finds restaurant owners cannot show that mayor’s COVID-19-related closure orders constituted “direct physical loss” to the property, as required under the existing business interruption policy; court rules for insurer and closes case.

Court Says Restaurants Fail to Meet Requirements for COVID-19-Related Business Interruption Coverage

D.C. court, ruling on parties’ motions for summary judgment, finds restaurant owners cannot show that mayor’s COVID-19-related closure orders constituted “direct physical loss” to the property, as required under the existing business interruption policy; court rules for insurer and closes case.

Deviations From Historical Cash Flow and Their Implications to Effective Discount Rates for Lost Profits Analyses

The authors address the direct relationship between projected cash flows (that is, those being measured for risk) and discount rates in a lost profits analysis.

BVLaw Case Update

Join Jim Alerding, a veteran valuator, and Sylvia Golden, BVR’s legal editor, for a discussion of some of the most consequential recent valuation decisions. This selection of state and federal cases includes two key state court rulings on the use of discounts in valuing minority interests in buyback situations, a state court decision on the admissibility of calculations of value in divorce proceedings, an expansive statutory appraisal ruling involving a public company from a North ...

Accounting fraud causes Berkshire Hathaway subsidiary to overpay for sinking German manufacturer

Financial experts were unable to prevent a Berkshire Hathaway subsidiary, Precision Castparts Corp. (PCC), from acquiring a German family business for five times as much as the collapsing company was worth, recent articles in the New York Times and the German newspaper Handelsblatt report.

Damage Valuation in a Financial Advisor Termination Case

In a wrongful termination of a financial advisor, the damage calculation involves a determination of the value of the advisor’s book of business at the time of termination as well as consequential and any special damages.

Expert’s Damages Calculation Based on Extensive Experience in Field Is Reliable, Court Finds

Court admits survey evidence, finding expert’s methodology conformed to accepted principles in the field and noting that technical objections go toward weight; court also admits both parties’ damages experts, finding they had extensive experience in the field and were both qualified; questions as to reliability of method “can be explored at trial.”

Geiger v. Creative Impact Inc.

Court admits survey evidence, finding expert’s methodology conformed to accepted principles in the field and noting that technical objections go toward weight; court also admits both parties’ damages experts, finding they had extensive experience in the field and were both qualified; questions as to reliability of method “can be explored at trial.”

NetOne, Inc. v. Panache Destination Management

Court says plaintiff fails to show defendant breached contract in COVID-19-related damages case; plaintiff’s invocation of force majeure clause is futile where clause is silent as to whether plaintiff has a right to full deposit after termination of contract due to imposed travel restrictions.

Plaintiff’s COVID-Related Contract Claim Falters Despite Force Majeure Provision

Court says plaintiff fails to show defendant breached contract in COVID-19-related damages case; plaintiff’s invocation of force majeure clause is futile where clause is silent as to whether plaintiff has a right to full deposit after termination of contract due to imposed travel restrictions.

Book Review: Best Practices: Thought Leadership in Valuation, Damages, and Transfer Price Analysis

A “gem” is what this reviewer calls a new book by Robert F. Reilly and Robert P. Schweihs of Willamette Management Associates.

A ‘gem’ of a book from Reilly and Schweihs

That’s what Roberto H. Castro (Central Washington Appraisal, Economics & Forensics LLC and Gravis Law PLLC) says in his review of Best Practices—Thought Leadership in Valuation, Damages, and Transfer Price Analysis.

Best Practices – Thought Leadership in Valuation, Damages, and Transfer Price Analysis

March 2020 Hardcover

Robert F. Reilly, Robert P. Schweihs

Best Practicesincludes more than 1,200 pages of thought leadership on a wide range of topics, including the valuation of private company securities and intangible assets, valuation for property tax purposes, valuation for ESOPs, fair value measurement for financial accounting purposes, transfer price analysis, and economic damages measurement. Learn more >>

Court Finds Delayed Disclosure of Expert’s Complete Report ‘Substantially Justified’

Court denies defendants’ Rule 37 motion to exclude opposing expert’s report and testimony; court notes reason for expert report’s ...

Wright v. Old Gringo, Inc.

Court denies defendants’ Rule 37 motion to exclude opposing expert’s report and testimony; court notes reason for expert report’s lateness was defendants’ litigation strategy, including efforts to thwart production of financial information vital for valuation of company and damages calculation.

Lack of Valuation Credentials Does Not Disqualify Expert, but Failure to Perform Valuation Does, Court Finds

Court finds proposed expert testimony inadmissible under Rule 702 and Daubert where expert did not himself prepare the value determination, conceded any estimate of value by his firm was prepared for marketing purposes, and where damages model that expert testimony supported was fatally flawed.

Eurochem North America Corp. v. Ganske

Court finds proposed expert testimony inadmissible under Rule 702 and Daubert where expert did not himself prepare the value determination, conceded any estimate of value by his firm was prepared for marketing purposes, and where damages model that expert testimony supported was fatally flawed.

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