BV News and Trends June 2023
A monthly roundup of key developments of interest to business valuation experts.
EllDan Corp. v. Steele (In re EllDan Corp.)
The remaining matter in this bankruptcy adversary proceeding was whether the covenants not to compete in the prepetition franchise agreements were enforceable. The debtor rejected the franchise agreements after the petition date of the bankruptcy proceedings. The court ruled that the covenants were reasonable in duration and geographic scope under Minnesota law and public interest was not harmed. The court also found that the debtor breached the covenants the franchisor was contractually entitled to injunctive relief.
Despite Rejection of Franchise Agreements in Bankruptcy, Debtor Remained Obligated Not to Compete
The remaining matter in this bankruptcy adversary proceeding was whether the covenants not to compete in the prepetition franchise agreements were enforceable. The debtor rejected the franchise agreements after the petition date of the bankruptcy proceedings. The court ruled that the covenants were reasonable in duration and geographic scope under Minnesota law and public interest was not harmed. The court also found that the debtor breached the covenants the franchisor was contractually entitled to injunctive relief.
Celebrity poses and gestures as protected trademarks
Celebrities are famous for being poseurs, but can their body movements be protected as a trademark, subject to damages for infringement?
New case on damages in the metaverse
An artist is liable for trademark infringement after creating and selling a series of non-fungible tokens (NFTs) that depict fur-covered purses resembling the iconic Hermès Birkin bag.
Lack of quantifiable damages dooms IP complaint
In a California case concerning intellectual property (IP), the defendant asked the court to dismiss the plaintiff’s complaint alleging violations of the state’s Unfair Competition Law (UCL) and asking for damages.
U.S. District Court Grants in Part and Denies in Part Motions of Dismissal by Company Against Blockchain Researcher
The defendant, CasperLabs LLC, in this trademark dispute in U.S. District Court (California) moved for dismissal of eight causes of action from the plaintiff Vlad Zamfir’s (Zamfir) second amended complaint. The actions dealt primarily with trademark infringement and alleged damages therefrom. The actions also included allegations of fraud and misrepresentation under California law. After analysis of each of the actions, the court granted dismissal of some of the actions and denied dismissal of some of the actions.
Zamfir v. CasperLabs, LLC
The defendant, CasperLabs LLC, in this trademark dispute in U.S. District Court (California) moved for dismissal of eight causes of action from the plaintiff Vlad Zamfir’s (Zamfir) second amended complaint. The actions dealt primarily with trademark infringement and alleged damages therefrom. The actions also included allegations of fraud and misrepresentation under California law. After analysis of each of the actions, the court granted dismissal of some of the actions and denied dismissal of some of the actions.
Secret witnesses may appear in overvaluation case
In a New Jersey class action, plaintiff shareholders of publicly held Ascena Retail Group alleged that the company misrepresented the value of its goodwill and trade names to inflate the stock price artificially.
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.
Keys to Using a Royalty Database
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IP damages experts dodge exclusion in trademark case
In a trademark infringement case in Florida, the plaintiff’s expert (an economist) was to testify as to corrective advertising damages, but the defendant made a motion that she be excluded.
Therapeutics MD, Inc. v. Evofem Biosciences, Inc.
In this trademark infringement case before a U.S. magistrate judge, the magistrate recommended to the District Court whether certain experts should be allowed to testify. The recommendations were for granting or denying motions of both parties to exclude testimony of the other party’s experts. The magistrate reviewed not only the qualifications of each of the experts, but also the subject of their testimony and opinions and whether they are appropriate and helpful to the court in resolving the issues. In the end, the magistrate recommended to deny the plaintiff’s motion to exclude the defendant’s experts and the defendant’s motion to exclude the plaintiff’s experts be granted in part and denied in part.
Magistrate Judge Recommends That the Plaintiff’s Motion to Exclude the Defendant’s Experts Be Denied and That the Defendant’s Motion to Exclude Plaintiff’s Experts Be Granted in Part and Denied in Part
In this trademark infringement case before a U.S. magistrate judge, the magistrate recommended to the District Court whether certain experts should be allowed to testify. The recommendations were for granting or denying motions of both parties to exclude testimony of the other party’s experts. The magistrate reviewed not only the qualifications of each of the experts, but also the subject of their testimony and opinions and whether they are appropriate and helpful to the court in resolving the issues. In the end, the magistrate recommended to deny the plaintiff’s motion to exclude the defendant’s experts and the defendant’s motion to exclude the plaintiff’s experts be granted in part and denied in part.
Xodus Med. v. Prime Med. (I)
This was a patent infringement case related to technology "related to patient slippage within the context of the Trendelenburg position for surgery—when using a viscoelastic foam." Justin Blok was the defendants’ damages expert. The plaintiffs sought to exclude Blok’s testimony on the reasonable royalty because they contended he used unreliable and irrelevant documents to support his opinion. The defendants argued, and the court agreed, that Blok’s opinions go to the weight and not to the admissibility of his opinions.
Court Denies Plaintiffs’ Motion to Exclude Expert Testimony—The Subject of the Testimony Goes to the Weight and Not the Admissibility
This was a patent infringement case related to technology "related to patient slippage within the context of the Trendelenburg position for surgery—when using a viscoelastic foam." Justin Blok was the defendants’ damages expert. The plaintiffs sought to exclude Blok’s testimony on the reasonable royalty because they contended he used unreliable and irrelevant documents to support his opinion. The defendants argued, and the court agreed, that Blok’s opinions go to the weight and not to the admissibility of his opinions.
BVU News and Trends March 2021
A monthly roundup of key developments of interest to business valuation experts.
Monetary Remedies in Trademark Infringement Litigation
Remedies in the Lanham Act are used to punish wrongdoers in trademark infringement litigation, but courts applying that law have dealt differently with some key issues, especially monetary remedies. This article outlines some such problems and how the courts have dealt with them.
Fingertip guides to valuation cases in new BVR compendium guides
BVR’s valuation and case law compendium guides contain a very helpful feature: a handy summary table of hundreds of cases (by jurisdiction) that gives you the case name, date, specific court, and the main valuation issue in the case.
Revised resource for IP valuation insights and case law
New chapters and over 200 case digests—plus online access to the full text opinions—are available in BVR’s Intellectual Property Valuation Case Law Compendium, 4th edition.
Coca-Cola Co. v. Comm'r
Coca-Cola had been applying a transfer pricing method called the 10-50-50 since it entered into a closing agreement with the IRS in 198, covering the years 1987 to 1995. Coca-Cola had consistently followed that transfer pricing method; the IRS had audited Coca-Cola annually and “signed off” on that transfer pricing method for over a decade. Upon examination of Coca-Cola’s tax returns for 2007 to 2009, the IRS determined that Coca-Cola’s transfer pricing methodology did not reflect arm’s-length norms because it overcompensated the supply point and undercompensated Coca-Cola. The IRS reallocated income between Coca-Cola and its supply points employing the comparable profits method (CPM) pursuant to Reg. Sec. 1.482-5. The IRS increased Coca-Cola’s taxable income by over $9 billion assessing over $3 billion in additional taxes!
2020’s Most Important Transfer Pricing Case—Coca-Cola
Coca-Cola had been applying a transfer pricing method called the 10-50-50 since it entered into a closing agreement with the IRS in 1986, covering the years 1987 to 1995. Coca-Cola had consistently followed that transfer pricing method; the IRS had audited Coca-Cola annually and “signed off” on that transfer pricing method for over a decade. Upon examination of Coca-Cola’s tax returns for 2007 to 2009, the IRS determined that Coca-Cola’s transfer pricing methodology did not reflect arm’s-length norms because it overcompensated the supply point and undercompensated Coca-Cola. The IRS reallocated income between Coca-Cola and its supply points employing the comparable profits method (CPM) pursuant to Reg. Sec. 1.482-5. The IRS increased Coca-Cola’s taxable income by over $9 billion assessing over $3 billion in additional taxes!
Journal of Business Valuation 2015 Edition
From the CBV Institute ...
Supreme Court reviews damages issue in trademark infringement case
The U.S. Supreme Court is about to hear arguments in a trademark infringement case that turns on whether the plaintiff, in order to obtain the infringer’s profits, has to show willful infringement by the defendant.