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Discount Rates for Lost Profits

A Question of Facts and Varying Rates “How could an expert apply such a high or low discount rate to a stream of future lost profits and the court find it acceptable?” This article highlights my research looking into discount rates for lost profits and why there are so many variations of a theme when it comes to making such a calculation. When attending professional conferences, I enjoy talking with other e ...

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Core Elements in Quantifying Lost Profits

Reminders from an Experienced Expert that Go Beyond a Checklist Calculating lost profits is a crucial aspect of many legal and financial matters, particularly in the realm of business disputes, insurance claims, and litigation. Lost profits represent the financial harm suffered by a plaintiff due to a specific incident or event. In a business context, lost profits aim to restore the injured party to the fin ...

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Challenges to Expert Witnesses Under New Rule of Evidence 702

Experts on Notice Federal Rule of Evidence 702 has undergone changes; these were made in 2000 and 2011. The recent amendments clarify the gatekeeping function of the trial court. A trial court is charged not with weighing the expert’s opinion; rather it is charged with determining if the testimony is admissible. This article discusses the recent changes to this rule and how this will impact proposed experts ...

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The Panduit Test

Guidance Provided by Godinger Silver Art Ltd. The Panduit test is a widely used four factor test that is applied primarily in patent cases but also intellectual property cases. The test factors can be found in Panduit Corp v Stahlin Bros. Fibre Works, Inc. This article will focus primarily on the 2024 Godinger Silver Art Ltd. decision. The language of that decision has been used to explain the court’s under ...

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Ex-Ante Versus Ex-Post Damages Calculations

Damages Before? Or Damages After? For those that perform lost profits and other commercial damage calculations, you are most likely familiar with the ex-ante versus ex-post approaches and applications when it comes to applying discounts to present value calculated damages. But what about the application of the ex-ante and ex-post theories and approaches to the damages calculations themselves? This article a ...

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To Be Certified or Not Certified

The Tax Court Says Certified A recent Tax Court opinion brought to light the importance of having an appraiser designation from a professional appraiser organization. While the decision is limited to Tax Court cases, it provides a cautionary tale for all who provide business appraisals in litigious situations. A recent Tax Court opinion brought to light the importance of having an appraiser designation from ...

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Amended Rule 702’s Unimpeachably Neutral Impact

The Death of Testimonial Overstatement The proper interpretation for the standard of admissibility under the amended Rule 702 of the Federal Rules of Evidence will hopefully result in an evidentiary change that flies in the face of every hired gun’s essence, as the real impact of the trial court truly being a gatekeeper is that it will shield the jury from the testimonial overstatement salaciously proffered ...

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Challenges for Expert Witnesses Valuing Private Equity and Hedge Fund General Partner Interests in Divorce Matters

When You are Retained by Counsel for the Out-Spouse Valuing private equity and hedge fund general partner interests is a complex matter. Valuing them in a divorce proceeding can be an even more complex matter. The focus of this article is to share the challenges valuators may face when engaged to value general partner interest in private equity and hedge fund businesses in divorce matters when NOT engaged b ...

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Daedalus Blue, LLC v. MicroStrategy, Inc.

Court Admits Royalty Analysis on a Convoyed Sales Approach and Denies Motion to Exclude Patent Infringement Case This case arose from a patent infringement lawsuit filed by the Plaintiff, Daedalus Blue, LLC against the Defendant, MicroStrategy Incorporated. Daedalus alleged that MicroStrategy’s analytics software products infringed on two patents originally developed by IBM: the ‘172 patent related to data ...

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Looking Back to Go Forward

A Review of the Basics for Lost Profits (Part VI) The first five installments of this series have been a review of the basics for calculating lost profits. In the series, lost profits was defined, the common methods used for calculating lost profits (yardstick, before and after, sales projections, market) were discussed, the court standards for assessing lost profits (foreseeability, proximate cause, reason ...

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Upcoming Changes to Federal Rules for Experts

Admissibility of Expert Witness Testimony and Reliability of Methodology On April 24, 2023, the Supreme Court of the United States approved two amendments to Rule 702. The language of these amendments was modified slightly from the language of the proposed amendments approved by federal judiciary’s Advisory Committee on Evidence Rules. This article discusses the amendments and how the changes will impact th ...

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Florida Alimony Reform

Consideration of Adultery in a No-Fault State and Elimination of Permanent Alimony (effective in Florida as of July 01, 2023) Florida has eliminated permanent alimony. This article discusses this change in the law, including the new alimony structure, consideration, burden of proof, and fact that the court now is allowed to consider adultery in determination of support. More than 200 laws passed in the rece ...

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Guarding Against Fraud

The Vital Role of Seamless Internal Communications When occupational fraud occurs within an organization, it is not a surprise that the root cause of the fraud was due to deficient internal controls. However, what does “internal controls” mean to all parties involved at an organization? Accountants should know what “internal controls” are, but does this concept resonate with the personnel within the sales o ...

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Nailing Down the Numerator in the DCF Method

Theory to Practice VPS StraightTalk Webinar, June 15, 2023 This article summarizes key takeaways from the June 15, 2023, VPS StraightTalk Webinar presentation co-led by R. James Alerding, CPA, ABV and Carli D. Lehr, CPA, CVA, CSEP. The speakers discussed how to differentiate between a projection and forecast, the importance of developing a reliable cash flow or projection evaluation of specific risk to the ...

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Advanced Financial Analytics in Divorce Litigation

An Interview with Zain Kalson, founder of Etheia As part of a broader dialogue around business valuations in the context of divorce, this article features an interview conducted by Andrew Thompson, Esq., with Zain Kalson, the founder of Etheia. The article discusses trends regarding how advanced data analytics are helping attorneys and experts sort through hidden assets, analyze expenses, and improve outcom ...

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The Latest Greatest Internet Scheme

Currency Investment Scams Step aside e-mail compromises and romance scams. Make way for the crypto investment scam, the newest in an ever-changing sea of schemes and scams available on the World Wide Web to minimize your life savings in as little as a few weeks. This article is a refresher for traditional indicators beyond the “too good to be true” mantra and will detail the slight modifications occurring w ...

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Unimpeachable Diagnosis

An Unimpeachable Cure for Delusive Exactness This 15th article of the unimpeachable neutrality series discusses the pathology, symptoms, and treatment for a bad case of delusive exactness. Delusive exactness affects thousands of financial experts every day and can be fatal to a case if left untreated. On balance, delusive exactness, as described herein, refers to the testimonial delirium exhibited by a fina ...

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Emerging Cryptocurrency Valuation Litigation

A Primer for Business Valuation, Forensic, and Litigation Support Professionals This is the first article in a series related to the cryptocurrency valuation and litigation. This is an emerging area of practice. In this first article, the author explains what is a blockchain and the purposes blockchains serve. Cryptocurrency litigation in the past decade has appeared in various dispute types: Matrimonial di ...

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AI Odyssey: Beyond the Hype

Business Revolution, Ethical Implications, Strategies for Business, and the Path Forward In this article, the authors examine the fine line between the unparalleled benefits of AI and its potential pitfalls. The authors advocate for a future where humans and AI work together harmoniously, driving innovation, productivity, and long-term success in an increasingly competitive global landscape. As professional ...

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Valuing Lost Profits of a License Agreement

Avoiding Speculation The author of this article, Dr. Kreuter, recently testified in a jury trial in New York State Supreme Court. The case was heard in April 2023. In the case, Kela Tennis, Inc. (“Kela”) sued the City of Mt. Vernon (“Mt. Vernon” or “the City”). On behalf of Kela, Dr. Kreuter calculated the economic damages in connection with the City’s breach of contract with Kela. The City had wrongfully d ...

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