What Forensic Accountants Need to Avoid Doing What do forensic accountants need to know when performing a business interruption loss engagement? What are some of the common errors and pitfalls that forensic accountants need to avoid? In this article, the author will answer these questions as well as walk through the process of performing a business interruption loss engagement. [su_pullquote align=”right”]Resources: Business Interruptions and Lost Profits [/su_pullquote] When natural disasters or damages occur and business operations are interrupted, forensic accountants are an invaluable tool for both the insured and the insurance companies. Forensic accountants are engaged to calculate a fair…
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Denny Construction, Inc. v. City and County of Denver, Colorado, acting by and through its Board of Water Commissioners This article presents a case analysis wherein a general contractor sued for breach of contract and litigated the owner for breach of co bid due to its impaired bonding capacity, which resulted from defendant’s declaration of default and claim against the contractor’s performance bond. This latter act had a negative impact on the general contractor since the surety company reduced or eliminated the general contractor’s bonding capacity until the litigation was resolved. Therefore, the general contractor was unable to bid on…
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An Appraiser in Court This is a review of Henry J. Wise’s, MAI, CBA, BVAL, CRE (Retired) recently released book, It’s Only an Opinion: An Appraiser in Court. In this book, comprised of 23 chapters, Mr. Wise is not only humorous but also insightful. He shares several nuggets from his 35-years of experience testifying in court on real estate controversies. He offers valuable information to business appraisers, real estate attorneys, and real property appraisers. This is a review of Henry J. Wise’s, MAI, CBA, BVAL, CRE (Retired), recently released book, It’s Only an Opinion: An Appraiser in Court. In this…
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Modern New Business Rule and How it Has Been Applied by the Courts Earlier this year, the author published two articles that appeared in QuickRead discussing calculating lost profits and defense responses for lost profits calculations in cases falling under the modern new business rule. The foundation for the article on defense strategies was an article published by Victor Goldberg. Following publication, the author was contacted by Mr. Goldberg, who recommended additional reading on this topic. That has led to this article. Under the new business rule, a new or unestablished business could not recover lost profits. This rule was…
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Selecting a Mediator is More Important Than Ever, Or? Mediation is the primary case management device used by the courts to resolve disputes, and the mediation process is frequently included in the dispute resolution section of most contracts. In some situations, mediation is even mandatory. What is interesting to note is that there are no uniform, national standards for training or regulating mediators. Some courts have standards for mediators on their rosters, but private practice mediators are virtually unregulated. Unfortunately, mediation has not met the test of a true profession. In this article, the author shares questions to consider asking…
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in Not-for-Profit Entities There is an established body of knowledge that addresses economic damages in connection with for-profit organizations, but little about how these concepts apply to not-for-profit organizations. In this article, the author sets forth how those concepts apply to charitable organizations. “You will be much more in control, if you realize how much you are not in control.”―Benjamin Graham, The Intelligent Investor Valuation experts deal with a variety of engagements when it comes to economic damages, which may include loss of profits, earnings (past or future), damage to property, or loss of business value. Most of literature and…
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The Role of the Expert in 21st Century Dispute Resolution—A Recovering Judge’s Perspective As technology evolves, the role of the expert and the interplay between experts and the judiciary will evolve. This change is already underway. In this article, QuickRead presents the presentation made by Retired Judge Platt at the NACVA and the CTI’s Annual Consultants’ Conference, held in Salt Lake City. Judge Platt describes this evolving landscape and employment opportunities. Introduction I appreciate this opportunity to discuss the role of the “expert” in the 21st Century profession of dispute resolution from the perspective of what I now call myself,…
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Of a Successful Negotiation It does not matter if you are going to be involved in direct negotiations or negotiating a settlement during mediation, the key is to determine the answers to five critical questions. In this article, Nancy Neal Yeend shares the five critical questions and answers that must be addressed to successfully negotiate. It does not matter if you are going to be involved in direct negotiations or negotiating a settlement during mediation, the key is to determine the answers to five critical questions: Who will attend the negotiations? What is the extent of their settlement authority? How…
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Attaining Reasonable Certainty in Economic Damages Calculations (Part III of III) The purpose of this article—the third of three (Part I and Part II) on this topic—is to provide the reader with an understanding of Chapter 3 (What Constitutes Best Evidence) of the 2018 Practice Aid as well as certain other publications containing a body of knowledge on the best evidence to support economic damages in a court of law. Prior articles dealt with Chapter 1 (Revenue and Growth Rates) and Chapter 2 (Costs) of the 2018 Practice Aid and related topics. In 2015, the American Institute of CPAs (AICPA)…
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Ownership Interests in Privately Held Companies This article focuses on concepts and issues that are important for family law attorneys to understand when navigating cases that involve divorcing clients with ownership interests in privately-held entities. One of the first questions that arises is whether we need to retain a valuation expert? This is an important question, where experts can provide attorneys and the parties important guidance and address expectations, preferably early in this emotional process. [su_pullquote align=”right”]Resources: Corporate Divorce Litigation—Understanding its Dynamics and Formulating Solutions Resolving Family Law Disputes The Power of Neutrality in Resolving Family Law Disputes Valuation Issues…
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in Economic Damages Calculations (Part II of III) The purpose of this article—the second of three on this topic—is to provide the reader with an understanding of Chapter 2 (Costs) of the 2018 Practice Aid as well as certain other publications containing a body of knowledge on the best practices for developing “avoided or saved costs,” sometimes referred to by the courts as incremental costs. A prior article dealt with Chapter 1 (Revenue and Growth Rates) and part three will cover Chapter 3 (What Constitutes Best Evidence) of the 2018 Practice Aid and related topics. In 2015, the American Institute…
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in Economic Damages Calculations (Part I of III) The AICPA has issued two practice aids, one on 2015 and most recently in November 2018, focused on the calculation of economic profits and damages. The purpose of this article—the first of three on this topic—is to provide the reader with an understanding of Chapter 1 (Revenue and Growth Rates) of the 2018 Practice Aid as well as certain other publications containing a body of knowledge on the best practices for developing “but for” revenues and revenue growth issues in lost profits models. Later articles will deal with Chapter 2 (Costs) and…
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and Defense Strategies Beyond Reasonable Certainty Experts estimating lost profits under the modern new business rule know that lost profit estimates in these cases are held to a higher reasonable certainty standard than calculations for lost profits in cases with established businesses. Failing to meet this higher standard may cause an expert’s calculations to be ruled as speculative. To this level of greater scrutiny, Victor Goldberg has introduced additional defense strategies for reviewing new or unestablished businesses claims. His strategies move the focus away from assessing what revenues and profits would have been “but for” the wrongful act to non-cash…
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for the Modern New Business Rule A recent Fifth Circuit Court of Appeals decision has thrown additional light on the reasonable certainty standard used to assess lost profits for claims made by new or unestablished businesses. The decision helps put into perspective what information can and, more importantly, cannot be used to calculate lost profits for a new or unestablished business. While sometimes a daunting task, calculating lost profits for new or unestablished businesses should not be an impossible task. But for the protection of the expert and the product of his or her work, knowledge of what courts have…
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of Patent Litigation Damages In the last 18 months, we have seen numerous decisions which will likely have a dramatic impact on the landscape of patent litigation damages. Two of the most impactful decisions, Apple v. Samsung and WesternGeco v. Ion Geophysical, made their way to the United States Supreme Court. However, we will not see the true practical outcome of either of these hallmark decisions for many years. This article provides an overview of these two cases and discusses their potential impact on the landscape of patent litigation damages. In the last 18 months, we have seen numerous decisions…
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on Expert Witness Testimony Expert witness testimony has played a vital role in both criminal and civil trials in the United States. Testimony from expert witnesses constantly helps judges and jurors reach conclusions in controversial and complex cases. Therefore, the Daubert Standard is important to know and understand in general, and especially as an expert witness. The Daubert Standard helps courts determine whether an expert witness’ testimony during trial should be admitted into evidence. Expert witness testimony has played a vital role in both criminal and civil trials in the United States. Testimony from expert witnesses constantly helps judges and…
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and an Expert Witness While there are hundreds of Daubert decisions issued every week, only a few go a long way in shaping the way experts are screened by judges in the future. And even fewer times, a multimillion-dollar verdict is hinged solely on the expert witness testimony! In this article, the author discusses the district and appellate court decision in Alaska Rent-A-Car v. Avis Budget Group.
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Un-Impeaching Opinions of Calculated Values Valuation or calculation? That is the question asked, answered, and argued by judges, experts, lawyers, and industry thought leaders apropos to whether a calculation of value can be used in litigation. The answer echoed throughout courtrooms across America thus far is a resounding “it depends.” This article offers a synopsis of the debate over calculation engagements being used in litigation. The full version appears in The Value Examiner, September/October 2018 issue.
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To Measure Trustee Breach of Fiduciary Duty Damages The but for investment portfolio is a tool that damages analysts utilize to estimate economic damages when there is an allegation of a breach of fiduciary duty with regard to the management of an investment. In its simplest form, the but for investment portfolio estimates the value of a portfolio but for the alleged breach of fiduciary duty. Case law precedents established the but for investment portfolio analysis as a method to estimate economic damages on a market adjusted basis. While the concept of a but for investment portfolio analysis is simple,…
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Must Know Accounting Rules Earnouts are often used in transactions to bridge the gap between what a buyer is willing to pay up front and what a seller wants in the way of total compensation to complete a deal. Therefore, earnouts are typically constructed to allow the seller to enjoy additional upside if the acquired company reaches certain performance targets after the sale while providing the buyer with downside protection if the projected performance after the deal closes does not materialize. That said, practitioners must understand accounting rules that could result in an earnout not being deemed an earnout. The…