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BV News and Trends May 2022

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

DOL proposes change to ESOP prohibited transaction exemption requirements

ESOP appraisers should take note of a proposed rule to amend the Department of Labor (DOL) prohibited transaction exemption procedure, reports the American Society of Appraisers (ASA).

Harrison v. Envision Mgmt. Holding, Inc.

The U.S. District Court (Colorado) denied a motion to compel arbitration the defendants brought in a case the plaintiff participants brought (a purported class action) in an ESOP the defendant company, et al. established. “The Plaintiff argues that the Defendants’ actions related to the sale caused him and all other ESOP participants to suffer significant losses to their ESOP retirement savings.” The court denied the motion.

U.S. District Court Denies Motion of Defendants in an ESOP Case to Compel Plaintiff Into Arbitration

The U.S. District Court (Colorado) denied a motion to compel arbitration the defendants brought in a case the plaintiff participants brought (a purported class action) in an ESOP the defendant company, et al. established. “The Plaintiff argues that the Defendants’ actions related to the sale caused him and all other ESOP participants to suffer significant losses to their ESOP retirement savings.” The court denied the motion.

Stout Risius Ross, LLC v. Aspen Specialty Ins. Co.

Stout Risius Ross LLC asked for a declaratory judgment to require Aspen Specialty Insurance Co. to defend Stout Risius Ross in a lawsuit brought against it by its former client, Wilmington Trust, in an ESOP matter. Stout Risius Ross performed a valuation for an ESOP transaction that the court later criticized in that matter (Brundle). After being sued by Wilmington Trust, Stout Risius Ross filed a claim with Aspen, which was denied by Aspen, citing the “prior knowledge” clause. The court denied Stout Risius Ross’ motion for declaratory judgment and did not allow Stout Risius Ross to amend its motion.

U.S. District Court Dismisses Accounting Firm’s Plea to Require Insurance Company to Defend a Lawsuit Against It

Stout Risius Ross LLC asked for a declaratory judgment to require Aspen Specialty Insurance Co. to defend Stout Risius Ross in a lawsuit brought against it by its former client, Wilmington Trust, in an ESOP matter. Stout Risius Ross performed a valuation for an ESOP transaction that the court later criticized in that matter (Brundle). After being sued by Wilmington Trust, Stout Risius Ross filed a claim with Aspen, which was denied by Aspen, citing the “prior knowledge” clause. The court denied Stout Risius Ross’ motion for declaratory judgment and did not allow Stout Risius Ross to amend its motion.

ESOP companies more optimistic about recovering

Valuation experts assessing how a subject company will recover from the pandemic will be interested in a new study.

15 Cautionary Areas to Review in ESOP Valuations

Business valuation practitioners perform private-company equity appraisals for many applications including gift/estate tax planning, transaction opinions, and financial reporting; yet ESOP valuation assignments present complex challenges. Not only is the purpose of the appraisal unique, but the particular client, an ESOP trustee (acting as a fiduciary), also has many ESOP-specific disclosures and requirements. A well-developed ESOP valuation report may not simply achieve the appraisal prescription set forth in Revenue Ruling 59-60 or USPAP compliance. Join ...

Silver lining to Vinoskey ESOP appeal decision

In the well-publicized Vinoskey ESOP case (our latest coverage is here), the appellate court affirmed the district court in deciding that the company owner had extensive knowledge about the company and its prior valuations, and, thus, it was plausible to infer that “something was off.”

An Inside Look at the Landmark ESOP Valuation Case

For over a decade, the Department of Labor has not lost a major ESOP case on a valuation issue, but its winning streak ended with Walsh v. Bowers. The case involves many key valuation issues, and Ken Pia (Marcum LLP) and Ian Rusk (Rusk O’Brien Gido + Partners LLC), expert witnesses for the defense, give their insights.

BV News and Trends November 2021

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

Key ESOP case underlines importance of the management interview

In the published opinion in the groundbreaking recent Walsh v Bowers ESOP case, the court noted that the DOL’s valuation expert’s “failure to follow Uniform Standards of Professional Appraisal Practice (USPAP) introduced substantial errors into [his] analysis.”

Will the landmark ESOP valuation case open the door?

During an amazing webinar with the testifying experts in the recent Walsh v Bowers ESOP case, a question came in from the audience: “Do you think this case will open the door for the Department of Labor and the valuation profession to work together to develop guidance around ESOP valuations?”

Landmark ESOP Ruling: Inside the Walsh v. Bowers Case with the DOL

Join experts Ken Pia and Ian Rusk for a deep dive into the recent ESOP case decision involving the Department of Labor, a Hawaii-based ESOP company (Bowers & Kubota), the ESOP’s trustee, and selling shareholders. Many key valuation issues and standards were addressed through expert testimony and later in the district court’s decision. The expert witnesses for the defense will walk the participants through each phase of the case through the trial and court’s decision.

Experts in landmark ESOP valuation case give the inside story

For over a decade, the Department of Labor has not lost a major ESOP case on a valuation issue, but its winning streak ended with Walsh v. Bowers.

Insurer not required to defend valuation firm in ESOP lawsuit

A valuation firm can no longer force its professional liability insurer to defend a lawsuit challenging the firm’s ESOP valuation because the case’s surviving claim falls under a policy exclusion, a federal court has ruled.

Major win in ESOP valuation case vs. DOL

A district court has ruled “decisively” against the Department of Labor (DOL) in an ESOP valuation case, stressing that the DOL failed to follow standard valuation practices.

District Court Rules ‘Decisively’ Against the DOL in an ESOP Overvaluation Case

The Department of Labor sued the defendants, which included two individual owners, Bowers & Kubota Consulting Inc. and the Bowers & Kubota ESOP, alleging that the defendants had violated ERISA laws by manipulating data to induce the ESOP to pay $40 million for the shares of the individual shareholders that the DOL claimed was in excess of the fair market value of the shares. After extensive testimony of valuation experts and analysis of the facts of the case, the court determined that no ERISA violations have been established.

Walsh v. Bowers

A district court has ruled “decisively” against the Department of Labor (DOL) in an ESOP valuation case, stressing that the DOL failed to follow standard valuation practices.

BV News and Trends May 2021

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

BVU News and Trends April 2021

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

New evolving ESOP case raises familiar valuation-related issues

A new ESOP litigation is underway in federal district court related to a 2011 transaction in which the majority owner of the company sold his remaining stock to the company’s ESOP.

BVU News and Trends March 2021

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

Pepperdine private cost of capital project is back up and running

On the brink of ending its long run, the Private Capital Markets Project from Pepperdine University has secured funding to continue its ongoing survey of expected rates of return of providers in the private capital market.

Scalia v. Reliance Trust Co.

In an evolving ESOP case, court says DOL’s allegations that ESOP trustee and various directors engaged in breaches of fiduciary duties and caused the ESOP to enter a prohibited transaction (i.e., overpaid for company stock) require “fact-intensive inquiry” and cannot be resolved on summary judgment.

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