Fair v. Fair
The primary issue in this appeal was the value of Surgical Imaging Specialists Inc. (SIS), a subchapter S corporation that the parties formed in 2002. Stephan Fair, the husband, was the sole registered shareholder of SIS. Darlene Fair, the wife, was listed on all tax returns as an equal owner. The trial court awarded all community property interest to the husband and eliminated 25% of SIS’ goodwill as personal goodwill. On appeal, the husband contended that the trial court undervalued the personal goodwill discount and failed to apply a discount for lack of marketability. The husband also appealed the separate property award of an IRA account and a reimbursement to the wife for additional salary payments made by SIS to the husband. The court of appeal affirmed the trial court value of SIS, remanded the issue of IRA gains, and affirmed the reimbursement for additional salary payments.
Appellate Court Rules on the Value of the Marital Business as to Personal Goodwill, Minority, Liquidity, and Marketability Discounts
The primary issue in this appeal was the value of Surgical Imaging Specialists Inc. (SIS), a subchapter S corporation that the parties formed in 2002. Stephan Fair, the husband, was the sole registered shareholder of SIS. Darlene Fair, the wife, was listed on all tax returns as an equal owner. The trial court awarded all community property interest to the husband and eliminated 25% of SIS’ goodwill as personal goodwill. On appeal, the husband contended that the trial court undervalued the personal goodwill discount and failed to apply a discount for lack of marketability. The husband also appealed the separate property award of an IRA account and a reimbursement to the wife for additional salary payments made by SIS to the husband. The court of appeal affirmed the trial court value of SIS, remanded the issue of IRA gains, and affirmed the reimbursement for additional salary payments.
Weinstein v. Weinstein
In this Vermont divorce case, the Supreme Court affirmed the value of the husband’s law practice even though there was evidence of some potential personal goodwill left in the value determined by the lower court. The Supreme Court also affirmed the wife’s expert’s determination of the husband’s income for maintenance purposes. Note that, per the court, “decisions of a three-justice panel are not to be considered as precedent before any tribunal.”
Vermont Supreme Court Affirms Value of Husband’s Law Practice, Declines to Eliminate Personal Goodwill, Affirms Determination of Husband’s Income
In this Vermont divorce case, the Supreme Court affirmed the value of the husband’s law practice even though there was evidence of some potential personal goodwill left in the value determined by the lower court. The Supreme Court also affirmed the wife’s expert’s determination of the husband’s income for maintenance purposes. Note that, per the court, “decisions of a three-justice panel are not to be considered as precedent before any tribunal.”
BV News and Trends June 2022
A monthly roundup of key developments of interest to business valuation experts.
Takeaways from the ASA Fair Value Conference
The 2022 ASA NY Fair Value Conference was held in hybrid form (online and in-person from Hoboken, N.J.) on June 16.
Hollis v. Hollis
One of the main issues in this appeal was how to classify the husband’s “book of business,” i.e., his client relationships, assets under management, and related income. The husband was a financial advisor for UBS. The wife contended the book of business had value that constituted a marital asset. The husband pointed out that UBS now took the position that a financial advisor who left the company cannot take any information with him or her. The court also noted that “deferred cash agreements” were actually bonuses that were marital assets. The appellate court affirmed the trial court’s decision to exclude the book of business from marital assets. The court also affirmed the trial court decision on payment of alimony to the wife “in futuro.”
The Tennessee Appeals Court Affirms the Trial Court’s Decision to Exclude From the Marital Estate Financial Advisor the Husband’s ‘Book of Business’
One of the main issues in this appeal was how to classify the husband’s “book of business,” i.e., his client relationships, assets under management, and related income. The husband was a financial advisor for UBS. The wife contended the book of business had value that constituted a marital asset. The husband pointed out that UBS now took the position that a financial advisor who left the company cannot take any information with him or her. The court also noted that “deferred cash agreements” were actually bonuses that were marital assets. The appellate court affirmed the trial court’s decision to exclude the book of business from marital assets. The court also affirmed the trial court decision on payment of alimony to the wife “in futuro.”
In re Ascena Retail Grp., Inc. Sec. Litig.
In this securities putative class action litigation, plaintiff shareholders alleged that the defendants (Ascena) misrepresented the value of Ascena’s goodwill and trade names in order to inflate Ascena’s stock price artificially. In June 2017, Ascena announced an impairment charge to those assets of $1.3 billion “causing Ascena's already-declining share price to fall precipitously. Ascena ultimately declared Chapter 11 bankruptcy in July 2020.” The defendants moved to dismiss for failure to plead material misrepresentation or scienter or both. The court granted the motion to dismiss but allowed the plaintiffs to amend their complaint.
New Jersey U.S. District Court Dismisses Plaintiffs’ Complaint That Public Company Defendant Overvalued Its Goodwill
In this securities putative class action litigation, plaintiff shareholders alleged that the defendants (Ascena) misrepresented the value of Ascena’s goodwill and trade names in order to inflate Ascena’s stock price artificially. In June 2017, Ascena announced an impairment charge to those assets of $1.3 billion “causing Ascena's already-declining share price to fall precipitously. Ascena ultimately declared Chapter 11 bankruptcy in July 2020.” The defendants moved to dismiss for failure to plead material misrepresentation or scienter or both. The court granted the motion to dismiss but allowed the plaintiffs to amend their complaint.
FASB hits ‘pause’ on goodwill project
The big news at the 2022 ASA NY Fair Value Conference last week was that the FASB has dropped its project on goodwill, but it could be revisited in the future.
Global BV News and Trends May 2022
Business valuation news from a global perspective.
Ohio Appellate Court Affirms Trial Court’s Denial of Permanent Injunction and Dismisses a Claim of Tortious Interference
An Ohio appellate court affirmed the trial court’s denial of a permanent injunction to the plaintiff because the evidence did not show that it faced immediate and irreparable injury or harm. It was also held that the trial court properly dismissed the plaintiff’s claim for tortious interference because the plaintiff did not allege that the defendant induced a third party not to continue to do business with the plaintiff.
Total Quality Logistics, LLC v. Tucker, Albin and Assocs.
An Ohio appellate court affirmed the trial court’s denial of a permanent injunction to the plaintiff because the evidence did not show that it faced immediate and irreparable injury or harm. It was also held that the trial court properly dismissed the plaintiff’s claim for tortious interference because the plaintiff did not allege that the defendant induced a third party not to continue to do business with the plaintiff.
New York Supreme Court Confirms That ‘Entire Interest’ in a Company Dissolution Agreement Includes Goodwill
The New York Supreme Court was asked to provide a preliminary injunction enjoining the defendants from conducting business that resulted in damage to the goodwill of a company it had sold in its entirety as part of a dissolution agreement. The court granted the “limited preliminary injunction.”
Ng v. Ng
The New York Supreme Court was asked to provide a preliminary injunction enjoining the defendants from conducting business that resulted in damage to the goodwill of a company it had sold in its entirety as part of a dissolution agreement. The court granted the “limited preliminary injunction.”
Koch v. Koch
This shareholder dispute case involved two businesses three brothers in Minnesota owned. One of the brothers, Jim Koch, had a falling out with the other two, Randy and Dave Koch. A temporary agreement was made among them in 2006, but subsequently the relationship and actions of the parties deteriorated. In particular, an IRS audit of the two businesses triggered a disagreement as to whether required payments under the agreement had to be tax deductible. Certain actions by the defendants breached the 2006 agreement as determined by a jury resulting in a damages award of $12 million. The court then held a bench trial to determine the value of the two businesses for determining the buyout amount for Jim’s interest in both businesses. Experts for each side testified as to value. The opinion provided a good analysis of the various issues in the methodologies each of the experts used.
Minority Shareholder Receives Award of $12 Million for Breach of Contract, $58 Million Buyout Award for Minority Interest
This shareholder dispute case involved two businesses three brothers in Minnesota owned. One of the brothers, Jim Koch, had a falling out with the other two, Randy and Dave Koch. A temporary agreement was made among them in 2006, but subsequently the relationship and actions of the parties deteriorated. In particular, an IRS audit of the two businesses triggered a disagreement as to whether required payments under the agreement had to be tax deductible. Certain actions by the defendants breached the 2006 agreement as determined by a jury resulting in a damages award of $12 million. The court then held a bench trial to determine the value of the two businesses for determining the buyout amount for Jim’s interest in both businesses. Experts for each side testified as to value. The opinion provided a good analysis of the various issues in the methodologies each of the experts used.
Global BV News and Trends April 2022
Business valuation news from a global perspective.
Nothing personal about goodwill in dental practice
In a South Carolina divorce case, the appellate court reversed the family court on the issue of personal versus enterprise goodwill.
Goodwill impairments in U.S. doubled in 2020: Kroll study
Total goodwill impairment in U.S. public companies was $142.5 billion in 2020, more than double the $71 billion recorded in 2019, according to the “2021 U.S. Goodwill Impairment Study” by Kroll.
No proof of personal goodwill in Utah divorce case
In some states, personal goodwill in a business is not part of the marital estate—but you have to have evidence that it exists.
Purchase price equals value of business caught up in divorce
In Wisconsin, the valuation opinions of two experts were deemed not credible for a business caught up in a marital dissolution.
BV News and Trends March 2022
A monthly roundup of key developments of interest to business valuation experts.
Global BV News and Trends March 2022
Business valuation news from a global perspective.