Galiotos v. Galiotos—The Tale of a Sibling Feud This legal update provides a summary of how the trial and appellate courts addressed a dispute amongst siblings that were co-trustees of trusts holding commercial real estate assets. The case provides valuation and litigation support professionals an opportunity to assess what has happened when an impasse of this nature results in litigation. “If you ever start feeling like you have the goofiest, craziest, most dysfunctional family in the world, all you have to do is go to a state fair. Because five minutes at the fair, you’ll be going, ‘You know, we’re…
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Use in Private-Business Valuation (Part II) This article in this continuing series explains the Implied Private Company Pricing Line (IPCPL), theory, evidence, and application of the IPCPL. How to Understand IPCPL Theory In the first article in this series (published in two parts 02/01/24 and 02/08/24), it was shown that the Implied Private Company Pricing Line (IPCPL) theory explains and predicts the relationship between a capital asset seller’s opportunity cost of capital (OCC) and a buyer’s OCC. That difference is attributable to transaction costs, which is assumed to be a function of the fair market value (FMV) of the capital…
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How to Avoid Them! A 409A valuation refers to a method of determining the value of a company’s common stock. In other words, the 409A valuation is a method of calculating fair market value (FMV) according to the regulations under the Internal Revenue Code (IRC). This valuation can be carried out using various types of valuation methodologies, however, it is important to avoid pitfalls in 409A valuation when carrying out the valuation to obtain a more accurate result. In this article, we will discuss some of the most common mistakes that can be made when carrying out a 409A valuation,…
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Elements of the Valuation Analysis (Part II of V) This second article of the five-part series on Intellectual Property Valuations summarizes the typical elements of the intellectual property valuation analysis. This part of the discussion focuses on benchmarking and the use of research databases. [su_pullquote align=”right”]Resources:Intellectual Property Valuations: The Relief from Royalty Method (Part I of V)[/su_pullquote] Introduction This five-part series of discussions introduces the market approach and the relief from royalty (RFR) method of intellectual property valuation. Part one of this discussion introduced the typical types of intellectual property and the generally accepted intellectual property valuation approaches and methods.…
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To Create a Visual Picture Every profession has its own unique vocabulary, and although everyone in the field understands the terms or abbreviations, the public most likely does not. An easy way to help people understand technical terms or a profession’s distinctive vocabulary is to create a “word picture” that links that unique word to some everyday idea or object. The author suggests that metaphors and similes are keys to enabling the client to make these connections. Every profession has its own unique vocabulary, and although everyone in the field understands the terms or abbreviations, the public most likely does…
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Implementing the Practicability Exception under ASC 2016-01 An adverse economic consequence of COVID-19 that has made headlines is the significant impairment charges business entities have taken related to their non-financial assets, such as intangible assets and goodwill. Less notable has been the pandemic’s similar effect on an entity’s financial assets, including equity securities without readily determinable fair values. Fair value for these types of equity investments is measured in accordance with FASB Accounting Standards Update (ASU) 2016-01, Financial Instruments—Overall (Subtopic 825-10): Recognition and Measurement of Financial Assets and Financial Liabilities (ASU 2016-01), which is codified within ASC 321, Investments in…
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Connecticut Appellate Court Affirms Trial Court’s Decision Not to Tax-Affect Earnings In a dispute over the buyout of the minority shares in a family business, the Connecticut appellate court addressed several important valuation issues. Notably, the appellate court upheld the trial court’s decision not to tax-affect the company’s earnings in determining the fair value of the shares, even though both the plaintiffs’ and defendants’ experts had done so. The appellate court also upheld the trial court’s findings that (1) the company engaged in shareholder oppression and, therefore, the value of the minority shareholder’s interest would not be subject to a…
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In a SPAC Merger Transaction The fair value of equity consideration issued in a merger involving a public company is generally calculated as the product of the quoted price for the individual equity instrument times the quantity issued (commonly referred to a “P times Q”). However, if the merger involves a special purpose acquisition company (SPAC), determining “P” can be subjective and may result in different interpretations of U.S. GAAP fair value between the valuation specialist and the parties involved in the deal. Introduction The fair value of equity consideration issued in a merger involving a public company is generally…
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Buyer and Seller Beware When a privately-held acquirer uses its stock to partly purchase a company, it is imperative that both the acquirer and the target in a transaction have support for, and a level of comfort with, the value assigned to the acquirer’s shares if they are being issued as part of the deal. It is especially important for the seller to conduct its own due diligence to better assess its risk exposure and understand the fair value of intangible assets. This article discusses procedures that sellers and buyers should consider before finalizing the terms. We are all familiar…
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Observations and Delaware Fair Value (Part II of II) This is the second of a two-part article, read Part I here, that focuses on empirical evidence supporting the size premium adjustment, observations regarding the CRSP size premium 10th decile category, liquidity issues that may account for the size premium, and certain Delaware Chancery Court decisions involving a size premium discussion. In this second part, the author focuses on the latter two points. These are discussed since in the past few years there have been numerous fair value business valuation related disputes decided by the Delaware Court of Chancery that involved…
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In Dissenting Shareholder Appraisal Rights Matters (Part II of II) The Delaware Court of Chancery decisions on the treatment of synergistic value in dissenting shareholder appraisal rights cases provide meaningful guidance to valuation analysts, legal counsel, and other courts. This final part of the article continues the discussion on recent judicial decisions issued by the Delaware Court of Chancery where synergistic value was a consideration in a dissenting shareholder appraisal rights matter. This discussion provides insights related to the treatment of synergistic value within the context of a statutory appraisal rights fair value controversy. [su_pullquote align=”right”]Resources: Foundations of Financial Forensics…
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Finding the Culprits Whatever happened to the expected post-acquisition income? The author identifies the potential culprits. One of my favorite games as a kid was the murder-mystery classic Clue. How many of you remember trying to deduce the culprit, the murder weapon and the room in which the attack took place? “I think it was Colonel Mustard in the kitchen with the candlestick.” “I think it was Mrs. Peacock in the hall with the knife.” “I think it was Mrs. White in the billiard room with the lead pipe.” Clue was a great “whodunit” game in which players had to…
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Everything is Changing (Part I of II) In this two-part article, the authors present some illustrations that indicate the illusion of value of many businesses. Business appraisers have many tools to determine the value of a closely held business. So many so, that many “official” conclusions of value for the same business generate significant differences. This borne out by the normal expectation of rebuttal reports in marital and shareholder disputes, tax litigation over estate, gift and charity values of family businesses, and fair value situations. In some instances, there are multiple valuations. Many valuations are prepared to fulfill a purpose…
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FASB addressed two lessor implementation issues and clarified an exemption for lessors and lessees from a certain interim disclosure requirement associated with adopting the board’s new lease accounting standard. To read the full article in the Journal of Accountancy, click: New FASB Standard Clarifies Lease Accounting Issues.
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Bargain Purchase Transactions This article summarizes the fair value measurement guidance and financial accounting considerations in business combinations—and specifically, in bargain purchase transactions. This discussion also describes the principles of acquisition accounting as they relate to fair value measurement. And, this discussion describes many of the valuation analyst considerations regarding the fair value measurement for a bargain purchase transaction.
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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…
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Highlighting Recent Delaware Court Cases In this Case Law Update, three recent Delaware Court cases are reviewed. Two cases focus on whether the deal value is fair value and the third focuses on matters discovered following approval of a merger and who has standing to sue and what remedy, if any, is available to the disgruntled plaintiffs. The first two cases also delve into the role of experts, inputs that are used in the DCF (and usually contested), and the role of board members overseeing the process, as well as the value of process itself discovering price. The third case…
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A Study of the Experts’ Inputs and Court Opinion How does a court go about deciding a valuation case when two experts oppose each other? The author examines the DFC Global Corporation decision to see what that reveals and how that may impact an expert’s future engagement. The author finds three takeaways for readers.
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Fair Value Not Based on the Merger Price (Part II of II) This is the second of a two-part article (read part one here) that focuses on the SWS Group, Inc. case and the interplay between merger price and fair value. In earlier cases, the Delaware Court of Chancery rejected a merger price indication in favor of its own discounted cash flow analysis. Yet, in the SWS Group, Inc. appraisal decision, instead of a decision supporting a higher fair value, the court ultimately found that the merger price was too high. This ruling highlights the risk of an arbitrage appraisal…
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Fair Value Not Based on the Merger Price, Part I of II This is a two-part article that focuses on the SWS Group Inc. case and the interplay between merger price and fair value. In earlier cases the Delaware Court of Chancery rejected a merger price indication in favor of its own discounted cash flow analysis. Yet, in the SWS Group, Inc., appraisal decision, instead of a decision supporting a higher fair value, the court ultimately found that the merger price was too high. This ruling highlights the risk of an arbitrage appraisal strategy and may give dissenting shareholders something…