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BVR offers resources to help UK business valuation professionals

Financial analysts in the UK have often struggled to find auditable market and financial data to support their assumptions and conclusions.

In re Aerogroup International, Inc.

Bankruptcy court performs allocation analysis to divide proceeds from section 363 asset sale between two competing lenders, finding debtor’s intellectual property is most valuable asset; court notes that, at time of sale, debtor was neither healthy going concern nor subject of forced liquidation.

My Imagination v. M.Z. Berger & Co. (II)

Court denies plaintiff’s motion for reconsideration, affirming earlier finding that the expert did not offer an opinion as to damages for loss of business value; expert never offered any opinion of business’s value at any time, court says.

Olive v. General Nutrition Centers

In IP case, appeals court upholds exclusion of expert testimony; one expert’s damages analysis was based on speculative assumptions as to link between increase in defendant’s revenue and infringement; second expert’s analysis was inadmissible, hinging on first expert’s unreliable opinion.

MY Imagination v. M.Z. Berger & Co. (I)

Court says plaintiff fails New York test for lost profits; plaintiff lacks coherent damages theory and, by its own admission, is unable to do more than speculate about future profitability; expert calculation represents “the sort of conjecture the reasonable certainty standard prohibits.”

Court Concludes Plaintiff Cannot Satisfy Three-Part New York Lost Profits Test

Court says plaintiff fails New York test for lost profits; plaintiff lacks coherent damages theory and, by its own admission, is unable to do more than speculate about future profitability; expert calculation represents “the sort of conjecture the reasonable certainty standard prohibits.”

Meridian Mfg. v. C&B Mfg.

Court admits expert opinion that reasonable royalty cannot exceed cost of developing noninfringing alternative because opinion is based on facts of the case; court excludes opposing expert’s royalty because he failed to assess comparability of selected licenses to patented technology.

BVU News and Trends May 2018

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

Intellectual property trends: Average royalty rates, most active industries, and more

Explore intellectual property trends, including average royalty rates, most common royalty payment agreement bases, and most active industries. View real-world statistics based on thousands of actual license agreements.

Royalty rates for university-bred technology

Many universities rely on the money they earn by licensing intellectual property they develop as part of their research activities.

2nd Circuit Affirms Nixing of Award Due to Bad Yardstick Analysis

Appeals court validates nixing of future lost profits award where expert calculated damages for a startup company based on revenues of market leader; court finds expert failed to use reasonable comparator, making his yardstick analysis legally unsound.

Washington v. Kellwood Co. (IV)

Appeals court validates nixing of future lost profits award where expert calculated damages for a startup company based on revenues of market leader; court finds expert failed to use reasonable comparator, making his yardstick analysis legally unsound.

Back-solving Unobservable Trademark Royalty Rates—The Case of ITT vs Xylem Group

Intangible assets like trademarks and patents are typically not traded on active markets, and the measurement of their fair values is based on valuation models that use significant unobservable (Level 3) inputs (i.e., guideline royalty rates under the relief-from-royalty method). Although widely accepted, all authors and lecturers emphasize the difficulties when determining guideline royalty rates under this method. Often, royalty rate analyses fail to survive audit, appeal, or other scrutiny. In developing robust Level 3 ...

Federal Circuit reacts coolly to ‘pseudo’ lost profits argument; royalty analysis may consider profits

The Federal Circuit recently found a reasonable royalty calculation that took into account the plaintiff’s profit margin was not a lost profits analysis in disguise. The plaintiff’s expert did not try to circumvent the “but for” causation requirement that applied to a lost profits claim.

Court Sets Aside Big Lost Profits Award Based on Bad Yardstick Analysis

Court strikes down multimillion-dollar lost profits award, finding it was based on expert testimony that was “sheer surmise and conjecture”; using yardstick method, expert claimed upstart company would have achieved 50% of sales of market leader.

Court Sets Aside Big Lost Profits Award Based on Bad Yardstick Analysis

Court reconsiders earlier order for retrial on lost value damages, finding plaintiffs “had no intention of pursuing a realistic damages award” and lack admissible evidence supporting multimillion-dollar value claims; instead, court awards one dollar.

Washington v. Kellwood Co. (III)

Court reconsiders earlier order for retrial on lost value damages, finding plaintiffs “had no intention of pursuing a realistic damages award” and lack admissible evidence supporting multimillion-dollar value claims; instead, court awards one dollar.

Court Sets Aside Big Lost Profits Award Based on Bad Yardstick Analysis

Court reconsiders earlier order for retrial on lost value damages, finding plaintiffs “had no intention of pursuing a realistic damages award” and lack admissible evidence supporting multimillion-dollar value claims; instead, court awards one dollar.

Arctic Cat v. Sabertooth Motor Group

Court says prior licensing agreements undergirding expert’s hypothetical reasonable royalty have no bearing on what the parties would have negotiated for the ...

Washington v. Kellwood Co. (II)

Court strikes down multimillion-dollar lost profits award, finding it was based on expert testimony that was “sheer surmise and conjecture”; using yardstick method, expert claimed upstart company would have achieved 50% of sales of market leader.

Court Sets Aside Big Lost Profits Award Based on Bad Yardstick Analysis

Court strikes down multimillion-dollar lost profits award, finding it was based on expert testimony that was “sheer surmise and conjecture”; using yardstick method, expert claimed upstart company would have achieved 50% of sales of market leader.

SIGA Technologies, Inc. v. PharmAthene, Inc.

In major pharmaceutical case, state Supreme Court finds DE Chancery did not abuse its discretion when it awarded plaintiff lump-sum expectation damages and its findings supporting the new damages determination were not clearly erroneously.

Federal Circuit Weighs Use of EMVR in Pharmaceutical Case

Federal Circuit affirms award of 50% of gross margin, finding that, even though the entire market value rule is not per se inapplicable in the pharmaceutical context, it does not apply in this case because patents cover the entire infringing product.

AstraZeneca AB v. Apotex Corp.

Federal Circuit affirms award of 50% of gross margin, finding that, even though the entire market value rule is not per se inapplicable in the pharmaceutical context, it does not apply in this case because patents cover the entire infringing product.

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