Insights from the inaugural National Economic Damages Virtual Conference

Attorneys and financial experts joined forces for the first-ever National Economic Damages Virtual Conference to discuss intellectual property damages, COVID-19 damages, forensic evidence, and the ins and outs of appearing in court. Here are a few interesting points:

• If an eligible business didn’t get a PPP loan, it may trigger a mitigation-of-damages issue;

• Courts are asking that valuations be made as current as possible to reflect COVID-19 impacts subsequent to the original valuation date;

• The concept “value of what was taken” has been revived—it first showed up over 100 years ago in court and has now re-emerged;

• Being excluded in court is not a career-ender, and, sometimes, it can be adequately explained;

• Don’t destroy drafts of valuation reports—you could violate spoliation rules (check state law);

• “Stay in your lane,” speakers advise—if something is outside your area of expertise, bring in a specialist to help; and

• Just because you pass a deposition with flying colors does not mean you will not be attacked on the witness stand.

Conference speakers were contributing authors to BVR’s Comprehensive Guide to Economic Damages, 6th edition. More detailed coverage of the conference will appear starting in the July issue of Business Valuation Update.

Connecticut Supreme Court clarifies double-counting rule

In a recent decision, the Connecticut Supreme Court clarified this jurisdiction's approach to double counting (or double dipping). The court acknowledged that it had never been asked to determine whether the rule against double counting applied where the case involved the distribution of the value of the owner’s business and the consideration of income from that business to determine alimony.

Value vs. ownership: The husband owned two closely held businesses that were the sole source of his gross annual income. The trial court credited the testimony of the wife’s valuation expert and found that the combined value of the two businesses was $904,000. Based on this finding, in turn, the court awarded the wife a permanent nonmodifiable alimony of $18,000 per month. Additionally, the trial court awarded the wife the sum of $452,000, representing her half of the value of the businesses.

The husband successfully appealed the ruling with the state appellate court, which found the trial court improperly double counted the husband’s income by permitting it to be considered for purposes of the division of property and then again for the determination of alimony.

In asking for review by the state Supreme Court, the wife argued that the appellate court had misapplied the double-counting test by treating the allocation of a portion of the business value to the wife as the equivalent of transferring an interest in the business. Here, the trial court awarded 100% of the ownership of the businesses to the husband, which meant he had an income stream from which to make the alimony payments that was separate from the lump-sum payment the plaintiff received as part of the property distribution.

The state Supreme Court agreed with the wife. The court explained that the issue of double counting has arisen in the context of pensions and retirement. The court noted that, while no case law says so specifically, the court itself has suggested it would be double counting if income from property that was awarded to the nonpaying spouse and, therefore, was no longer available to the paying spouse, would be awarded to the nonpaying spouse in the form of an alimony award.

But the high court had never “clearly extended our case law regarding double counting to the valuation of businesses.” The court said case law from other jurisdictions suggested “it is not double counting for a trial court to award a spouse a lump sum representing a portion of the value of a business and also awarding the spouse alimony that is based on the paying spouse’s actual income from that business.”

Here, the trial court did not improperly double count the value of the [husband’s] businesses “because any rule against double counting does not apply when the distributed asset is the value of a business and the alimony is based on income earned from that business.”

A digest of Oudheusden v. Oudheusden (II), 2021 Conn. LEXIS 111 (April 27, 2021), as well as the court’s opinion will be available soon at BVLaw. A digest of the appellate court ruling, Oudheusden v. Oudheusden, 209 A.3d 1282 (2019), and that court’s opinion are available to BVLaw subscribers.

Tomorrow! Catch up on fair value for
financial reporting

During a recent BVR Power Panel webinar, Ray Rath (Globalview Advisors) said there is “a lot of activity going on” in the area of fair value for financial reporting. He gave a rundown, including FASB’s efforts on a number of topics that impact fair value, including final guidance on impairments for private companies and not-for-profits, simplifying fair value of equity-class share-based awards, accounting for asset acquisitions, and underwriter restrictions. He also mentioned that PCAOB standards regarding auditing fair value measurements and the use of third-party specialists are becoming effective. The SEC has issued several releases, including a fund valuation framework and issues concerning SPACs. The Appraisal Foundation is working on guidance on company-specific risk, and the AICPA has a few guides in the works, he noted.

Deep dive: Rath, along with Bill Johnston (Empire Valuation Consultants), have put together the 2021 ASA Fair Value Virtual Conference, a full-day event that will be tomorrow, June 10. Nationally recognized speakers (including all the Big Four) will examine a variety of issues and new developments. BVWire attends this event every year, and it is the best of its kind.

Extra: David Crick (Davair Group, Australia) has been elected international president of the ASA. The full results of the ASA’s 2021-22 elections can be seen if you click here.

Zoom nightmare: trial verdict overturned

Wandering pets, faux backgrounds, technical glitches, and the like are common during Zoom calls, but it’s a serious matter when it comes to remote testimony in court. In a New Jersey case, a Zoom trial verdict was reversed on appeal because a witness was being coached off-camera, according to an article in the New Jersey Law Journal. The article also refers to a Michigan Zoom trial that was halted after it became apparent that the victim and defendant were appearing from the same apartment. Some judges have become adept at detecting signs of coaching of witnesses who are remote, such as eyes that dart off the screen, the article says, and some judges make the witness pan the camera 360 degrees to check for other people in the room. Our thanks to Ron Seigneur (Seigneur Gustafson LLP) for alerting us to this case.

Reminder: IRS is hiring BV experts

The IRS is looking to hire experienced business appraisers for six open positions in various locations across the U.S. According to the job posting, the salary ranges from $92,143 to $146,120 per year, and the positions have the title of financial analyst. Duties include preparing and reviewing appraisals of businesses and business interests, serving as an expert witness in court, meeting with taxpayers, and more. To get all the details, including job description, experience requirements, locations offered, how to apply, and more, click here.

First hybrid (in-person and virtual) BV conference June 21-25 from NACVA

We’re looking forward to the first of the national BV conferences: the National Association of Certified Valuators and Analysts (NACVA) 2021 Business Valuation and Financial Litigation Hybrid and Virtual Super Conference to be held June 21-25 in Park City, Utah. The exciting news is that the event will be held in person at the Chateaux Deer Valley as well as broadcast virtually, so you have the option of how to attend. All super conference sessions will be broadcast virtually and are also available a la carte. The conference has multiple tracks, including current trends, best practices in business valuation, company growth, healthcare, project management tools, exit planning, applications and models, M&A, and more.

Full agenda available for ASA
International Conference

The American Society of Appraisers (ASA) has posted the agenda for this year’s International Appraisers Conference to be held October 24-26. The conference brings together appraisers of all disciplines, and the BV agenda is available if you click here. Sessions include a mock trial (multisession), cost of capital inputs, cannabis, earnouts, debt valuations, digital assets, VC/PE funds, sports businesses, global issues, and much more. This will be a hybrid event featuring a live in-person event at Planet Hollywood in Las Vegas combined with a simultaneous virtual online option for remote attendees. Early-bird pricing is currently available.

Miss the free IVSC webinar series? No problem

Over 3,000 attendees from around the world listened to the International Valuation Webinar Series May 17-27 from the International Valuation Standards Council (IVSC). If you missed a session, the entire series is available for replay if you click here. The series, sponsored by Duff & Phelps, A Kroll Business, consists of five panel discussions, assembling over 20 leading experts from around the world, on topics such as the post-pandemic economic environment and its impact on valuation, the treatment of operating leases, IBOR reform, valuing alternative investments, and more.

CBV Congress marks 50-year milestone

The Chartered Business Valuators Institute (CBV Institute), Canada’s valuation professional organization (VPO), will present a very special Congress to mark the great milestone of reaching 50 years of service as a CBV profession. The CBV Congress 2021 is a three-day event that will be online June 16-18. The first day is devoted to business valuation, and there will be a keynote by Dr. Aswath Damodaran (New York University Stern School of Business). The second day will examine the world of litigation, and the third is devoted to recent trends in M&A. You can check out the full agenda if you click here.

BV movers . . .

People: Jeff George, CPA, ABV, has been admitted as a partner at Chicago-based Baker Tilly US LLP; he is in the firm’s global forensics and litigation services consulting practice in the Denver office … Hubert Klein, CPA, ABV, CFF, CVA, CFE, CGMA, a partner and practice leader at New York City-based EisnerAmper, has been appointed to the editorial board of the National Association of Certified Valuators and Analysts membership publication, The Value Examiner, and to the American Institute of CPAs’ National Accreditation Commission … Steve Pittman, CPA, CA, CBV, has joined Ottawa-based Andrews & Co. as a partner; he has over 25 years of experience in business valuation, forensic accounting, economic loss, and damage quantification services and is also skilled in a variety of litigation-related services, including family law … The governing council of the AICPA has elected Bill Pirolli, CPA, CGMA, CFF, PFS (DiSanto Priest & Co.), as the organization’s new chairperson; he succeeds outgoing chair Tracey Golden in the volunteer post.

Firms: New York City-based EisnerAmper has launched a new group focused on serving special-purpose acquisition companies (SPACs); the group consists of experts in risk management, formation, valuation, and accounting for these entities … Milwaukee-based Wipfli LLP is adding St. Louis-based Mueller Prost, a firm that focuses on closely held businesses and organizations in the healthcare, manufacturing and distribution, nonprofit, and real estate and construction industries; Wipfli now has more than 2,900 associates … Cherry Hill, N.J.-based Alloy Silverstein Accountants and Advisors is adding bookkeeping and consulting practice JB Financial Associates LLC (Mount Laurel, N.J.) …Calgary-based MNP is adding Sudbury, Ontario-based McLelland Crawford Topp, a firm that provides taxation services, trust and estate planning, and financial planning.

CPE events

• Business Combinations and Fair Value for Financial Reporting. June 10, 10:00 a.m.-11:40 a.m. PT/1:00 p.m.-2:40 p.m. ET. Featuring: Dr. G. William Kennedy (Duff & Phelps, A Kroll Business). CPE Credits: 2.0.

The nuances of the GAAP fair value standard and history of how it was developed as part of the GAAP-IFRS convergence project is discussed. Also, how the valuation approaches and methods used in fair value assessment differ from valuation approaches used in a fair market value appraisal is examined.

• Federal Tax Litigation, Expert Witnesses, and the IRS. June 29, 10:00 a.m.-11:40 a.m. PT/1:00 p.m.-2:40 p.m. ET. Featuring: Michael Gregory (Michael Gregory Consulting). CPE Credits: 2.0.

A former IRS manager will address key rules for federal expert witnesses, discuss valuation issues with the IRS, identify key recent BV federal cases, and reveal what to expect in 2022.