Lytle v. Nutramax Laboratories, Inc. et al.—Challenging a Proposed Class Action In Lytle v. Nutramax Laboratories, Inc., et al., 2024 U.S. App. LEXIS 9722; __ F.4th __; 2024 WL 1710663 (9th Cir. April 22, 2024), the court affirmed certification of a class of dog food purchasers alleging the defendants made fraudulent claims about the health benefits of the supplements they manufactured. Andy Rooney famously said, “The average dog is a nicer person than the average person.” He was almost certainly right, and because of that, many dog owners go to great expense trying to protect their dogs’ health. In Lytle…
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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 experts involved in the litigation support field. During almost every discussion regarding commercial damages (lost profits or business destruction), there is a comment about the discount rate applied for…
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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 financial position they would have been in had the incident not occurred. This article delves into the core elements of quantifying lost profits, providing insights into methodologies. Calculating lost profits is a crucial aspect of…
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Empirical Evidence Supporting IPCPL Theory (Part III) In this third article, the authors present the empirical evidence supporting use of the IPCPL theory. In the second article in this series, it was shown that the general empirical implications of implied private company pricing line (IPCPL) theory are that buyers of privately owned businesses pay higher transaction costs in exchange for higher returns on their investments. The IPCPL theory treats transaction costs (TC) as a proportion or percentage of transaction price (P) stated as a decreasing convex function of P. (The higher the price, the lower the percentage transactions costs are…
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A Comprehensive Guide to Successful Claims Outcomes (Part II of II) In this second of a two-part article, the authors discuss areas where outside expertise may be needed and policy exclusions. Read Part I here. Introduction: Navigating Claims Challenges and How Experts Can Help Throughout the fidelity claims handling process, issues or challenges may arise for which parties involved must reconcile. Here are some common issues that may be encountered: Proof of Loss: One of the primary challenges in fidelity claims is establishing the proof of loss. The insured party must provide evidence of the fraudulent or dishonest acts committed…
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A Principle-Driven Framework to Standard Setting This 17th article of the unimpeachable neutrality series will attempt to elevate your understanding of standards beyond mere compliance and foster a world rich in principle-driven actions. In a world increasingly governed by complex standards and regulatory landscapes, the craft of creating standards that stand the test of time has never been more crucial. Just as it is insufficient to teach a child not to murder merely because it is illegal, effective parenting also nurtures a respect for life and the well-being of others that transcends legal mandates. This approach parallels the essence of…
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A Comprehensive Guide to Successful Claims Outcomes (Part I of II) Fidelity/crime/financial institution bonds, in a general sense, cover an insured from the willful theft of property, money, and securities by one of their employees or an outside third-party carried out through a variety of means. Such fraud can impact myriad industries. In this two-part article, the authors provide fundamental aspects of a fidelity investigation, from inception to recovery of stolen funds. Introduction: Understanding Fidelity Investigations Fidelity/crime/financial institution bonds, in a general sense, cover an insured from the willful theft of property, money, and securities by one of their employees…
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Navigating Bias in Business Valuations Valuation analysts are tasked with gathering information, analyzing data, summarizing findings, and communicating the results. This includes quantifying the expected cash flows and risks of the business through often conflicting and misrepresented information. This article provides an overview of bias, how it affects business valuations, and provides readers with the standards and tools they need to confidently support their opinions when challenged. Introduction “When the facts change, I change my mind. What do you do?” – Sir John Maynard Keynes Our waking hours are bombarded with more information than can be absorbed. From 2009 to…
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What is the #1 thing on your website that will convince a prospect that your firm is the right choice for a project? Rod Burkert shares his views on what is needed to go from zero to hero and land that engagement. Imagine I am a prospect for getting your BVFLS services. I found you on Google or LinkedIn. Or maybe I saw an article you wrote. Maybe heard a presentation you gave. Or maybe I got a recommendation from a colleague. It (almost) doesn’t matter. But now, I’m knocking at your website door. What is the #1 thing on…
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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 and their counsel’s choice of experts. Ever since the United States Supreme Court rendered its groundbreaking decision in 1993 in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), expert witnesses have…
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Is There a Need to Broaden Regulation? Can humans achieve economic market efficiency without the “visible hand” or is the collateral damage of decisions an unfortunate reality in exchange for the freedom of unregulated markets. This article discusses the role of regulation in an unregulated market and potential shifts. How do you measure ability when the parameters are not clearly defined? As valuation analysts, we determine the cost of capital using inputs such as return on regulated public markets. Restrictions of public securities markets are often set in place through governmental bodies which impose arguable economic checks and balances. The…
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Valuation-Shopping Investigated On December 19, 2023, the U.S. Department of Justice (DOJ) announced that it had entered into a $345 million settlement with Community Health Network Inc. (CHN), a healthcare network headquartered in Indianapolis, to resolve claims that the hospital violated the False Claims Act (FCA) by knowingly submitting Medicare claims for services which were referred in violation of the Stark Law. This settlement is notable in part because it is the largest Stark-related FCA settlement ever reached by the DOJ. This article discusses this controversy. On December 19, 2023, the U.S. Department of Justice (DOJ) announced that it had…
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A Key Formula Used in Business Valuation Net working capital is a crucial component of business valuation since it impacts both a company’s enterprise value via its projected cash flows and its equity value via excess or deficient net working capital levels as of the valuation date. In addition, net working capital for valuation purposes is more nuanced than simply taking current assets minus current liabilities, as is often done when calculating net working capital in an accounting context. This article discusses what is net working capital and why it is important to value a business. When valuing a business,…
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Patchwork Approach Continues in Congress On March 9, 2024, President Biden signed into law a $460 billion spending package to continue funding the federal government for the remainder of the 2024 fiscal year. Contained within the spending package was legislation to cut in half the 2024 Medicare physician payment update of approximately -3.4%. This article discusses the payment update, other healthcare provisions contained in the bipartisan spending bills, and responses from stakeholders. On March 9, 2024, President Biden signed into law a $460 billion spending package to continue funding the federal government for the remainder of the 2024 fiscal year.[1]…
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Watts v. Smith–Long-Term Means Long-Term In the business valuation world, valuators attempt to consider a benefit stream into perpetuity, which is a very long time. Sadly, many business owners have difficulty grasping long time periods as they execute agreements dealing with multi-generational ownership and family relationships. In Watts v. Smith, 2023 Ky. App. (Unpub.) (Ky. Ct. App. September 8, 2023), the children and grandchildren of a family business’ founders learned just how long stock agreements can last and the lengths to which courts will go to enforce them. In the business valuation world, valuators attempt to consider a benefit stream…
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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 understanding of how experts should apply the Panduit factors. Experts are asked to apply their education, training, and experience to assignments in estimating lost profits or critiquing the opposing expert’s analysis.…
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Marketing is difficult. Yet, there are ways one can make more effective inroads. In this article, the author makes four suggestions to make your marketing efforts more effective. If the ultimate goal of your marketing effort is to increase the number of leads/prospects in your pipeline, the article includes some metrics one can measure to assess success. Do you know what is working and what is not with your marketing and practice development efforts? For many business valuation practitioners, the honest answer is that they cannot answer that question; not really. They have a “feeling.” What can you do about…
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A Call to Opportunity (and Survival) As the use of artificial intelligence (AI) tools continues to become mainstream, it is no wonder that so many professional services are becoming even more commoditized than they were pre-AI. Many professional service providers, including valuation practitioners, are feeling the combined impact of price compression from clients and higher expectations of service quality and responsiveness. For those of us who plan to continue practicing as professionals for longer than the next few years, the long view is rather disconcerting. Within the next decade, AI is expected to become one-million times more powerful than it…
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The Principles of Conservatism in Action Most business owners understand the industry in which they operate and tend to be good at running the day-to-day operations. Yet, that does not mean they have made optimal decisions or that they have the necessary controls and financials in place that enable them to make sound financial decisions. Companies that do not keep high quality data will likely have a lower value. This article focuses on the data problems with the valuation of a sawmill that I recently completed; minor facts and circumstances have been altered to preserve client anonymity. Most business owners…
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Consider the SLAT and GRAT in Gift Planning Understanding gift tax regulations is crucial for individuals and their advisors because it impacts estate planning strategies and can significantly affect the overall tax liability. Properly utilizing exemptions and understanding the rules surrounding gift taxation can help individuals minimize their tax burden and ensure a smooth transfer of assets to their intended beneficiaries. This article discusses the availability of the SLAT and GRAT gifting techniques. Understanding gift tax regulations is crucial for individuals and their advisors because it impacts estate planning strategies and can significantly affect the overall tax liability. Properly utilizing…