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Lost Profits and Other Commercial Damages

A Case Study (Part II of II) This is the second of a two-part article. In the first part, Dr. Needham provided factual background regarding this commercial damages case where he served as plaintiff’s damages expert—the case ultimately went to trial. In this second part, Dr. Needham describes the financial data, discovery challenges, the Daubert motion to disqualify him, how the case was decided, and then se ...

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Lost Profits and Other Commercial Damages

A Case Study (Part I of II) Most commercial damages assignments call for the calculation of lost profits or lost business value. However, some cases, particularly those relating to lost profits, contain elements of additional economic damages. These situations require the expert to focus on multiple areas of loss while insuring each element does not contain losses claimed by another. In this two-part articl ...

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Damages Remedies

A Closer Look at Unjust Enrichment Financial experts typically calculate damages remedies that focus on a plaintiff's loss that is quantified either through lost profits or lost business value. In contrast, unjust enrichment is a damages remedy that measures the defendant's benefit or gain. While the three remedies all serve to quantify damages, an expert must understand the similarities and differences amo ...

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Abolition of Mediation Joint Session

Can it Hurt the Expert? Mediation is a dispute resolution process. So, what is a process? A process is a procedure, a course of action, or a methodology. Mediation has been around for several thousand years, and the joint session has always been a pivotal part of that process. Historically, the mediation process included beginning with a joint session. Mediation is after all a facilitated negotiation. When ...

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How Much Information Do You Share With Your Spouse?

In re Marriage of Schneeweis, 2016 IL. App. 2d No. 140147 Marital law varies from jurisdiction to jurisdiction. In this article, Daniel R. Stefani discusses a recent Illinois Appellate Court case where the issue before the court was whether husband dissipated assets. The term dissipation is defined and the question raised is how much information do you share with your spouse and how that can impact an equit ...

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Impact of Inadequate Discovery

in a Divorce Proceeding Not all is fair in love and war when it comes to the fight for business records within a matrimonial action. When one spouse is denied adequate discovery, his or her case can quickly begin to unravel. Usually, some records are available either because the spouse had some previous access or there was a partial document production. Business appraisers should consider all appropriate me ...

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Analyzing Lost Earning Capacity for the Self-Employed

Income of Partners and Owners of Pass-through Entities (Part I of II) This is a two-part article where the author discusses the methodology for assessing the lost earning capacity of a self-employed person. This, basically, is the same as that for a traditional wage and salary worker. Even though the methodology is the same, assessing the data for the self-employed is different. The loss calculations are no ...

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The Court Has Spoken

You’re In or You’re Out (Part VII of VII) Will your testimony be admissible? Inadmissible? This series was written to help newly minted (and experienced) experts be mindful of Daubert, or a state’s own variation of Daubert or Frye throughout the litigation process. The key points made include: remember to only accept cases that you are qualified for, ensure you have a sound methodology in which to form your ...

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The Income Tax Treatment of Economic Damages Awards

Part 1: The Income Tax Treatment of Personal Economic Damages Awards Financial experts are frequently asked about the tax impact of damage awards, both paid and received. The complexities of the Internal Revenue Code (“IRC”) and judicial interpretations thereof make determining the taxability of receipts or payments difficult. The same is true when dealing with the taxability of economic damages awarded to ...

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Lost Profits versus Lost Business Value

Differences Between the Two Values Damages remedies often focus on lost profits and lost business value, with such remedies typically calculated by financial experts. There continues to be a trend in the courts to preclude experts from testifying, or to disregard them altogether because their opinion does not meet the reasonable certainty standard. Either of these outcomes can be a devastating result for th ...

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Evaluating the Valuation Expert

Challenges and the Emergence of Peer Review Judges are often required to pick apart complicated expert analysis to assess the validity and reliability of an expert’s work when its admissibility is challenged. But in the professional domain, we would not expect a tax auditor to be able to analyze a report on macroeconomic theory. Why, then, do we ask courts to perform these analyses in fields from accounting ...

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Transitioning the Financially Inexperienced Divorce Client to Self-Sufficiency

The Emergence of the Transitional Support Advisor Following a divorce, how does a financially naïve former spouse transition to become a financially independent former spouse? In this article, the author discusses what is a Transitional Support Expert and that professional’s role in a dissolution proceeding and following entry of the decree. ...

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Reasonable Certainty in Lost Profits Calculations

Prepare, Verify, and Excel at Trial In order to recover lost profits in a commercial damage case, three standards must be met. First, plaintiff must show proximate cause; second, the foreseeability; and third, reasonable certainty. This article will focus on the third standard, reasonable certainty. Experts seeking to provide realistic lost profit estimates must be aware of this standard. The following disc ...

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Taking a Deeper Look into Momentive, Part 1

Secured Creditors Lost Almost $200 Million in Economic Value Due to the Imposition of Below Market Interest Rates Many bankruptcy practitioners have focused on the recent decisions in Momentive[1] that forced secured creditors to refinance prepetition loans at below market interest rates.  Most of these practitioners’ publications focus on the courts’ findings and the potential implication on future matters ...

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Discount Rates

The Present Value of Future Lost Profits, and the Time Value of Money Experts estimating the present value of a business’ future lost profits have much less direction from the courts than their counterparts estimating the present value of a person’s lost earning capacity. Professional literature has attempted to fill this gap providing many articles discussing the differing methods for analyzing lost profit ...

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