4th Circuit Says Record Supports Liability and Damages Findings Against ESOP Trustee
In key ESOP case, 4th Circuit affirms liability and damages findings against ESOP trustee; court says trustee’s reliance on ESOP appraiser’s contemporaneous valuation was not “reasonably justified”; district court used correct measure of damages and justifiable methodology, 4th Circuit finds.
ESOP court denies discovery of DOL expert’s prior work for government
In an ongoing ESOP litigation, the defendant trustee’s effort to obtain information on the DOL expert’s prior valuation work for the government was thwarted.
Post-trial briefs in Vinoskey ESOP trial point to fierce valuation fight
The DOL’s aggressive oversight strategy concerning ESOPs has led to a number of controversial lawsuits, including, most recently, the Acosta v. Vinoskey case, which, in the past few months, went to trial over the DOL's overpayment claim.
Starkly different valuation narratives in Vinoskey ESOP trial
Post-trial briefs in last year’s Acosta v. Vinoskey ESOP case reveal insights into how each side shaped the valuation narrative.
In ESOP Dispute, Court Orders Disclosure of Communications Involving Independent Financial Advisor
In ESOP discovery dispute, court orders disclosure of documents involving company’s independent financial advisor; there is no attorney-client privilege where parties’ engagement agreement expressly designated advisor as an “independent contractor with no fiduciary or agency to the Company.”
Acosta v. Wilmington Trust, N.A. (HCMC)
In ESOP discovery dispute, court orders disclosure of documents involving company’s independent financial advisor; there is no attorney-client privilege where parties’ engagement agreement expressly designated advisor as an “independent contractor with no fiduciary or agency to the Company.”
In ESOP Discovery Dispute, Court Affirms Protection of Expert Drafts Under Rule 26
In ESOP case, court, citing Rule 26 of federal rules of civil procedure, denies defendant trustee’s motion to compel disclosure of information related to DOL expert’s prior work in valuation industry and expert’s other work for DOL on ESOP-related matters.
Acosta v. Wilmington Trust, N.A. (II) (Graphite)
In ESOP case, court, citing Rule 26 of federal rules of civil procedure, denies defendant trustee’s motion to compel disclosure of information related to DOL expert’s prior work in valuation industry and expert’s other work for DOL on ESOP-related matters.
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.
Congressional members accuse DOL of undermining ESOPs
As reported by the ESOP Association, in a letter to the White House dated October 1, 27 members of Congress (including one who identified as a CPA) have voiced serious concerns about the DOL’s “investigatory and enforcement policies toward Employee Stock Ownership Plans (ESOPs).”
‘Benchmark average’ approach dominates for DLOM
The use of restricted stock studies is the most cited methodology for quantifying a discount for lack of marketability (DLOM), according to the results of our DLOM survey.
How valuation experts estimate DLOM
Restricted stock studies and pre-IPO studies remain the most cited methodologies for quantifying a discount for lack of marketability (DLOM), according to the results of our DLOM survey.
BVU News and Trends October 2018
A monthly roundup of key developments of interest to business valuation experts.
Reminder: Take our DLOM survey
Our thanks to those who have responded so far to our survey designed to narrow down the methods most frequently used for determining a discount for lack of marketability (DLOM).
Chrem v. Commissioner
Court finds using ESOP appraisal to show “qualified appraisal” is a long shot to meet charitable contribution verification requirements because appraisal did not consider tax consequences or value shares individual petitioners donated, but petitioners may have reasonable cause defense.
Find out what DLOM methods are used the most
By our count, there are almost 75 methods for estimating a discount for lack of marketability (DLOM), and more are in the works.
Update to ‘Stout Restricted Stock Study Companion Guide’
The most widely used restricted stock transaction database for providing empirical support for a discount for lack of marketability (DLOM) is the Stout Restricted Stock Study (formerly FMV Opinions).
DOL urges court to uphold judgment against trustee in Brundle ESOP litigation
In the ongoing Brundle v. Wilmington Trust ESOP saga, which is now in the appeals stage, the Department of Labor recently filed an amicus brief in support of the district court’s $29.8 million judgment against the ESOP trustee. The case arose out of a plan participant’s claim that the ESOP trustee breached its fiduciary duties to the plan by causing the ESOP to pay more than fair market value for the employer’s stock.
Virginia court nixes challenge to appraisal done according to valuation agreement
In the category of buyout disputes notwithstanding a valuation agreement, a recent Virginia case stands out for showing the evidentiary hurdle a challenger must overcome to defeat a third-party appraisal done in accordance with a controlling agreement.
DOL backs judgment against trustee in Brundle ESOP litigation
In the fiercely litigated Brundle v. Wilmington Trust ESOP case, in which the district court concluded the ESOP trustee had caused the plan to overpay by almost $29.8 million, the trustee has appealed and outside interests have started to weigh in.
ASA squarely aligns itself with trustee and appraiser in Brundle ESOP litigation
One of the most controversial ESOP cases, Brundle v. Wilmington Trust, has now entered the appeals court phase. In 2017, the district court found that the trustee had caused the plan to overpay by $29.8 million by failing to scrutinize the financial advisor’s obviously flawed valuation analysis and value conclusions. The trustee and valuator had strong ESOP credentials.
ASA vigorously supports trustee and appraiser in Brundle ESOP litigation
Readers may remember the 2017 Brundle v. Wilmington Trust case in which the district court concluded the ESOP trustee had caused the plan to overpay by almost $28 million.
American Society of Appraisers Business Valuation Committee Special Topics Paper #5 Consideration of Stock-Based Compensation in the Valuation Process
Under FASB Accounting Standards Codification 718 (formerly FAS 123[R]), equity compensation granted to employees is valued at fair value at the time of the grant and then expensed. Valuation analysts routinely quantify the dilutive effect that stock-based compensation (SBC) has on entity equity value. This dilution can be attributed to SBC that was granted in periods prior to the valuation date and SBC that is expected to be granted in future periods. It is important ...
Liquidity and Private Placement Discounts in the TARP Preferred Stock Auctions
The liquidity discounts in the first 72 Troubled Asset Relief Program (TARP) auctions of preferred stock averaged 9.6%. The liquidity discounts were significantly lower for publicly held banks and banks that had never missed a bailout dividend. In addition, auction yields were significantly higher, 152 basis points higher, in private placements open only to accredited investors. This paper develops two different valuation frameworks based on accounting: call report data to estimate the yields and present ...