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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 ...

Stowe v. Stowe

In divorce case, appeals court overturns trial court’s valuation for an independent insurance agency; the trial court, without analysis, accepted there was goodwill and adopted expert’s calculation of goodwill using multiple “derived from a non-analogous source applying un-adjusted factors.”

Expert’s Goodwill Calculation Based on Rule of Thumb Sinks Under Appellate Scrutiny

In divorce case, appeals court overturns trial court’s valuation for an independent insurance agency; the trial court, without analysis, accepted there was goodwill and adopted expert’s calculation of goodwill using multiple “derived from a non-analogous source applying un-adjusted factors.”

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.”

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.”

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.

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.

In re Manhattan By Sail, Inc.

In damages case involving unique ship for which there was no active market, court says parties’ experts provided some data points relevant to valuing ship but failed to give adequate explanations of rationales and calculations, making testimony unreliable; court performs its own analysis.

Court Rejects Parties’ Expert Valuations of Unique Sailing Vessel as Unreliable

In damages case involving unique ship for which there was no active market, court says parties’ experts provided some data points relevant to valuing ship but failed to give adequate explanations of rationales and calculations, making testimony unreliable; court performs its own analysis.

Pawelko v. Hasbro, Inc.

In trade secrets dispute, court denies defendant’s Daubert motion, finding exclusion of opposing damages expert testimony for failure to apportion is premature; whether or not entire market value rule applies is determination for jury “after hearing all the documentary and testimonial evidence.”

Court Decides Daubert Exclusion of Expert Testimony for Failure to Apportion Is Premature

In trade secrets dispute, court denies defendant’s Daubert motion, finding exclusion of opposing damages expert testimony for failure to apportion is premature; whether or not entire market value rule applies is determination for jury “after hearing all the documentary and testimonial evidence.”

Parties fight over notes-containing expert report: draft or final version?

Several sessions at the recent AICPA conference in Las Vegas highlighted the importance of expert discovery in litigation and noted that draft reports continue to be a hot-button issue.

County of Maricopa v. Office Depot Inc.

In denying defendant’s pretrial motion to exclude plaintiff’s expert testimony under Daubert and Rule 37, which specifies sanctions for failure to make disclosures or cooperate in discovery, court finds note-containing version of expert report is a draft not subject to discovery under Rule 26.

Expert Report Containing Notes Qualifies as Draft Not Subject to Discovery

In denying defendant’s pretrial motion to exclude plaintiff’s expert testimony under Daubert and Rule 37, which specifies sanctions for failure to make disclosures or cooperate in discovery, court finds note-containing version of expert report is a draft not subject to discovery under Rule 26.

Cline v. Sunoco

In class-certification context, court says plaintiff’s damages expert meets Rule 702/Daubert requirements as they apply in early stage of litigation; expert is qualified, and, damages model, even if not fully developed, provides a sufficiently reliable way to calculate damages on classwide basis.

Expert Testimony Offered at Class-Certification Stage Survives Daubert Challenge

In class-certification context, court says plaintiff’s damages expert meets Rule 702/Daubert requirements as they apply in early stage of litigation; expert is qualified, and, damages model, even if not fully developed, provides a sufficiently reliable way to calculate damages on classwide basis.

Daubert Rulings Reflect Courts’ Disparate Views on Gatekeeping Role

As several recent court decisions show, different judges interpret the gatekeeping role, which they assume under Rule 702 and Daubert, very differently. Some courts take a liberal approach while others favor close scrutiny of the expert’s qualifications and proposed opinion.

Recent Daubert rulings show courts’ different takes on the role of gatekeeper

A series of recent Daubert cases illustrate how different courts may interpret the role of “gatekeeper,” which they perform under Rule 702 and Daubert.

Grove US LLC v. Sany America Inc.

In Daubert case centering on misappropriation of trade secrets, court says plaintiff expert’s valuation of trade secrets based on defense projections of sales and profits derived from offending product is admissible; defendant failed to show this approach to determine asset’s value is improper.

Court Admits Unjust Enrichment Damages Based on Profit Projections

In Daubert case centering on misappropriation of trade secrets, court says plaintiff expert’s valuation of trade secrets based on defense projections of sales and profits derived from offending product is admissible; defendant failed to show this approach to determine asset’s value is improper.

Colvin v. Syrian Arab Republic

In wrongful death suit arising from extrajudicial killing of famed war correspondent, court credits plaintiff expert’s “reasonable estimate” of loss of prospective income and benefits but finds expert failed to offset amount by consumption costs; court asks for updated expert report.

Court Awards Loss of Income Damages Related to Acclaimed War Correspondent’s Killing

In wrongful death suit arising from extrajudicial killing of famed war correspondent, court credits plaintiff expert’s “reasonable estimate” of loss of prospective income and benefits but finds expert failed to offset amount by consumption costs; court asks for updated expert report.

In Gatekeeper Role, Court Trains Attention on Expert Methodology, Not Conclusions

In ESOP case pivoting on valuation, court denies parties’ Daubert challenges; court notes “gatekeeping” means focusing “on principles and methodology, not the conclusions that [the experts] generate”; parties’ objections are mostly quarrels with opposing expert’s conclusions, court finds.

Acosta v. Wilmington Trust, N.A. (I) (Graphite)

In ESOP case pivoting on valuation, court denies parties’ Daubert challenges; court notes “gatekeeping” means focusing “on principles and methodology, not the conclusions that [the experts] generate”; parties’ objections are mostly quarrels with opposing expert’s conclusions, court finds.

Ferraro v. Convercent, Inc.

In contract and tort case, court declines to exclude plaintiff’s damages expert, noting court’s gatekeeping function “is not a role that emphasizes exclusion of expert testimony”; expert’s background in economics and business valuation experience qualified him to value subject company.

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