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In re Hebert

In this New Hampshire divorce appeal, the husband appealed the trial court’s property division, the awarding of 13 years of alimony, awarding of 100% of the proceeds of the sale of residences, and awarding 50% of the value of the husband’s business and the real estate where the business was located. The Supreme Court of New Hampshire affirmed in part and remanded in part.

New Hampshire Supreme Court Affirms in Part and Vacates in Part and Remands Divorce Trial Court—Husband Fails to Provide Support for Expenses

In this New Hampshire divorce appeal, the husband appealed the trial court’s property division, the awarding of 13 years of alimony, awarding of 100% of the proceeds of the sale of residences, and awarding 50% of the value of the husband’s business and the real estate where the business was located. The Supreme Court of New Hampshire affirmed in part and remanded in part.

Gore v. Gore

The key element in the appeal of this divorce case revolved around the valuation of the wife’s business, selling dietary supplements online. The wife failed to produce in a timely manner the documents the husband requested. She also failed to timely declare an expert who could testify as to the value of her business. “Wife appealed the circuit court’s award of monetary sanctions and the court’s exclusion of her and her expert’s testimony regarding her company’s valuation, as well as her attempts to testify regarding the value of her business. Husband cross-appealed the court’s distribution of marital property and the resultant monetary award.”

Appellate Court (Maryland) Affirms Trial Court’s Decision to Exclude Testimony of Wife’s Expert

The key element in the appeal of this divorce case revolved around the valuation of the wife’s business, selling dietary supplements online. The wife failed to produce in a timely manner the documents the husband requested. She also failed to timely declare an expert who could testify as to the value of her business. “Wife appealed the circuit court’s award of monetary sanctions and the court’s exclusion of her and her expert’s testimony regarding her company’s valuation, as well as her attempts to testify regarding the value of her business. Husband cross-appealed the court’s distribution of marital property and the resultant monetary award.”

Court OKs including PPP loan in cash flows for CCF

In a Vermont divorce case, the valuation expert for the husband valued his business by excluding proceeds from a Paycheck Protection Program (PPP) loan as a one-time windfall for purposes of a capitalized cash flow (CCF) analysis.

Griggs v. Griggs

The husband appealed this Vermont divorce case to the State Supreme Court inter alia to challenge the inclusion of PPP loan proceeds by the wife’s expert in determining the cash flows of the husband’s electrician services business for purposes of determining a value of the business using the capitalization of earnings method. The Supreme Court affirmed the lower trial court on this issue and allowed the PPP proceeds to be included in the cash flows.

Vermont Supreme Court Allows Inclusion of PPP Proceeds in Cap Earnings Cash Flow for Determination of Value

The husband appealed this Vermont divorce case to the State Supreme Court inter alia to challenge the inclusion of PPP loan proceeds by the wife’s expert in determining the cash flows of the husband’s electrician services business for purposes of determining a value of the business using the capitalization of earnings method. The Supreme Court affirmed the lower trial court on this issue and allowed the PPP proceeds to be included in the cash flows.

O’Mahony v. Whiston

In a case of disputes among the owners of an Irish soccer bar in New York City, the court awarded economic damages and punitive damages after the controlling owners took proceeds of a lease buyout of the bar’s prior location to establish a new identical bar in a new location while cutting out the minority owners from the new bar. Using assets of the old corporation and thereby misappropriating a corporate opportunity of the old corporation, they started a new identical bar (including the name) in a new location in a corporation the control owners set up.

New York Court Awards Lost Corporate Opportunity and Punitive Damages in Restaurant-Related Case

In a case of disputes among the owners of an Irish soccer bar in New York City, the court awarded economic damages and punitive damages after the controlling owners took proceeds of a lease buyout of the bar’s prior location to establish a new identical bar in a new location while cutting out the minority owners from the new bar. Using assets of the old corporation and thereby misappropriating a corporate opportunity of the old corporation, they started a new identical bar (including the name) in a new location in a corporation the control owners set up.

Blockchain Forensics—Part 1

This presentation is about discovery of cryptocurrency assets in divorce and valuation. This presentation will not cover the origin stories or the inner cryptographic workings of various blockchains and cryptocurrencies. Attendees will learn forensic methods for identifying the existence of cryptocurrency assets, tracing transactions with public sources, and identifying when additional records exist that are accessible by the account holder only.

Mikalacki v. Rubezic

In this Arizona marital dissolution case, the Court of Appeals affirmed the trial court’s acceptance of a calculation of value to determine the value of a couple’s law practice, awarded to the husband as part of the equitable distribution. Other matters not related to valuation issues were part of the appellate decision.

Arizona Appeals Court Affirms Trial Court’s Acceptance of a Calculation of Value

In this Arizona marital dissolution case, the Court of Appeals affirmed the trial court’s acceptance of a calculation of value to determine the value of a couple’s law practice, awarded to the husband as part of the equitable distribution. Other matters not related to valuation issues were part of the appellate decision.

Parties' Motions to Exclude Each Other’s Experts Are Granted in Part and Denied in Part

In this trade secrets and breach of contract case, portions of each expert’s testimony were found to be offering a factual narrative that is within the purview of a lay jury to ascertain. Those portions of testimony were excluded for both experts, but the parties’ arguments as to the qualifications of the experts and supposed reliance of an expert on the work of another were denied.

Redcell Corp. v. A.J. Trucco, Inc.

In this trade secrets and breach of contract case, portions of each expert’s testimony were found to be offering a factual narrative that is within the purview of a lay jury to ascertain. Those portions of testimony were excluded for both experts, but the parties’ arguments as to the qualifications of the experts and supposed reliance of an expert on the work of another were denied.

Kuzma v. N. Ariz. Healthcare Corp.

The defendants in this qui tam case asked for summary judgment against the plaintiff Relator, who had alleged violations of the False Claims Act as it related to the sale of Surgery and Rehabilitation Centers by the defendants. Relator brought suit against the defendants, alleging they violated the FCA by overpaying the physician-owners of the Summit Center to reward them for past business and to induce future business in violation of the federal Anti-Kickback Statute. The defendants advanced three arguments in favor of summary judgment: (1) the acquisition price paid for the Summit Center was fair market value; (2) Relator had no evidence that the defendants acted with the requisite scienter; and (3) Relator cannot show a causal link between the alleged kickback and the submission of false claims.

U.S. District Court Partially Denies Motion for Summary Judgment Regarding Qui Tam Case on Excess Purchase Price Under the False Claims Act

The defendants in this qui tam case asked for summary judgment against the plaintiff Relator, who had alleged violations of the False Claims Act as it related to the sale of Surgery and Rehabilitation Centers by the defendants. Relator brought suit against the defendants, alleging they violated the FCA by overpaying the physician-owners of the Summit Center to reward them for past business and to induce future business in violation of the federal Anti-Kickback Statute. The defendants advanced three arguments in favor of summary judgment: (1) the acquisition price paid for the Summit Center was fair market value; (2) Relator had no evidence that the defendants acted with the requisite scienter; and (3) Relator cannot show a causal link between the alleged kickback and the submission of false claims.

In re Marriage of Brown

In this Illinois divorce case, the appellate court affirmed the circuit court’s determination of value of the husband’s business by the husband’s expert even though evidence was presented that the expert did not follow the AICPA Business Valuation Standards. Further, the husband’s expert did not consider any enterprise goodwill and used an unorthodox method to determine the value of the business. The wife’s expert asserted that the husband’s expert did not provide a fair market value but rather did a “calculation.” The appellate court also affirmed the circuit court’s decision not to exclude the testimony of the husband’s expert witness.

Illinois Appellate Court Does Not Accept Valuation Including Enterprise Goodwill

In this Illinois divorce case, the appellate court affirmed the circuit court’s determination of value of the husband’s business by the husband’s expert even though evidence was presented that the expert did not follow the AICPA Business Valuation Standards. Further, the husband’s expert did not consider any enterprise goodwill and used an unorthodox method to determine the value of the business. The wife’s expert asserted that the husband’s expert did not provide a fair market value but rather did a “calculation.” The appellate court also affirmed the circuit court’s decision not to exclude the testimony of the husband’s expert witness.

Maginnis v. Maginnis

In this unpublished opinion, the Kentucky Appellate Court remanded the decision as to the value of the husband’s business for, among other things, the Family Court’s failure to consider an apportionment of goodwill between enterprise and personal goodwill. It also remanded for a reconsideration of the maintenance award to the wife since that award is based in part on the value of the business and the income of the husband.

Trial Court Fails to Consider Apportionment of Goodwill in a Marital Dissolution Case

In this unpublished opinion, the Kentucky Appellate Court remanded the decision as to the value of the husband’s business for, among other things, the Family Court’s failure to consider an apportionment of goodwill between enterprise and personal goodwill. It also remanded for a reconsideration of the maintenance award to the wife since that award is based in part on the value of the business and the income of the husband.

Discovery dispute over damages expert’s undisclosed work paper

In a discovery dispute, a federal court recently found the defendant had no duty to disclose to the opposing side its expert’s “intermediary” working paper that he used to prepare his damages calculation.

Fingertip guides to valuation cases in new BVR compendium guides

BVR’s valuation and case law compendium guides contain a very helpful feature: a handy summary table of hundreds of cases (by jurisdiction) that gives you the case name, date, specific court, and the main valuation issue in the case.

Whitesell Corp. v. Electrolux Home Prods.

In this Rule 26 discovery case, court says sanctions are inappropriate where the defendant had no duty to disclose its expert’s “intermediary” working paper; however, sanctions are appropriate related to the expert’s miscalculations; court finds expert testimony is admissible under Daubert.

Expert’s Damages Testimony Prompts Motion for Sanctions and Motion to Exclude Under Daubert

In this Rule 26 discovery case, court says sanctions are inappropriate where the defendant had no duty to disclose its expert’s “intermediary” working paper; however, sanctions are appropriate related to the expert’s miscalculations; court finds expert testimony is admissible under Daubert.

BVU News and Trends December 2020

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

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