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Trish

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So far Trish has created 242 blog entries.

The Appropriate Discount Rate In A Lost Earnings Claim

September 2016 Damage experts don't always agree regarding the appropriate discount rate and underlying methodology for a lost earnings claim and certain commonly applied methods actually provide a windfall to Plaintiffs.  The chosen rate can make a meaningful difference in the economic damages conclusion.  A recent article, “Lost Compensation Settlement Tool Allows You To Assess [...]

Injury & Employment Damages|

Patent Features Double Count Leads To Daubert Exclusion

September 2016 A recent successful Daubert motion highlights the importance of taking a step back from a damages calculation to assess the critical question of “Does this damages presentation really make sense?”  Finjan, Inc. (‘Finjan”) vs. Sophos, Inc. (“Sophos”) is a patent infringement action involving 14 different claims related to six different patents for computer [...]

Severance Agreements Cannot Dissuade Whistleblower Reports

September 2016 The Securities and Exchange Commission (“SEC” or the “Commission”) protects whistleblowers through Rule 21F-17, enacted under the Dodd-Frank Wall Street Reform and Consumer Protection Act, which states that "[n]o person may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation.” Prior cases have [...]

Another Major Vendor Billing Fraud Hits The Entertainment Industry

May 2016 Vendor billing schemes can occur in any industry, but two recent cases demonstrate the particular risks of the entertainment industry, which relies heavily on services whose actual delivery and consumption may be harder to track. A fraudulent billing scheme using a shell company can sometimes be accomplished with little more than a fictitious name [...]

CFTC Joins The Group Of Government Agencies Awarding 8 Figure Whistleblower Awards

May 2016 The U.S. Commodity Futures Trading Commission (“CFTC”) recently announced its largest ever whistleblower award, providing over $10 million to an unnamed individual whose information facilitated a successful CFTC enforcement action regarding violations of the Commodity Exchange Act (“CEA”). The CFTC’s whistleblower program derives from section 748 of the Dodd-Frank Wall Street Reform and [...]

SEC Utilizes Big Data And Statistics To Target Trading Fraud

July 2015 The Securities and Exchange Commission recently announced its first fraud charges involving what some have called an attempt at “Robocop”, derived from tracking behavior using data analytics of large volumes of investment advisors’ trade allocation detail.  The enforcement target is Welhouse & Associates Inc. and its owner Mark P. Welhouse. Mr. Welhouse is [...]

The IRS Wants More Of Your Gambling Winnings

June 2015 The taxation of gambling winnings is widely misunderstood (or at least widely not followed).  Gambling gains are included in gross income, reported on “other income” on form 1040.  Losses from gambling are allowed to the extent of gambling gains, but only as an itemized deduction.  The amount spent to generate any win reduces [...]

Tax Advice & News|

Supreme Court To Address Use of Statistics For Class Action Certification

June 2015 The April 2013 Supreme Court decision in Comcast Corp. v. Behrend, No. 11-864, was a profound change benefitting companies facing class action lawsuits.  The Court held that a plaintiff seeking certification must establish through “evidentiary proof” that damages can be measured on a class-wide basis.  Individual damage issues can defeat class certification where [...]

Court Requires Expert Witness to Have a Body and a Brain

May 2015 A recent case addressed the interesting question of whether a corporation could serve as an expert witness.  The matter involved a breach of fiduciary duty case coordinated with an appraisal proceeding, in re Dole Food Company (“Dole”).  The defendants designated Stifel, Nicolaus & Company, Incorporated (“Stifel”), a corporation, to serve as their expert [...]

GAO Tells SEC to Look in the Mirror Regarding Internal Control Failures

May 2015 The U.S. Government Accountability Office (“GAO”), a government watchdog group, recently reported the results of its 2014 audit of the Securities and Exchange Commission (“SEC”) financial statements.  The findings included (i) troubling reports of internal control failures at the very agency tasked with policing the reporting activities of others and (ii) warnings of [...]

Another Excess Fee And Revenue Sharing 401(K) Lawsuit Ends In A Large Plaintiff Recovery 

April 2015 Just prior to trial, a group of workers at Ameriprise Financial Inc. settled their federal lawsuit against the company regarding the management of their 401(k) contributions that were invested in Ameriprise funds and generated millions in allegedly excessive fees for the company.  The $27.5 million settlement value is the latest in a string [...]

Commercial Damages|

Planning Should Continue Despite FASB’s New Revenue Recognition Standard Delay

April 2015 The Financial Accounting Standards Board (“FASB”) has announced a proposal to delay by one year the effective date of implementation of the new revenue recognition standard under Generally Accepted Accounting Principles (“GAAP”), making the new date of change for public companies those reporting periods beginning after December 15, 2017.  Private companies would have [...]

GAO Reports Worsening Improper Payments

March 2015 The Government Accountability Office (“GAO”) recently published a summary of the testimony of US Comptroller General Gene L. Dodaro regarding government efficiency and effectiveness.  The GAO reports annually to Congress on federal programs, agencies, offices, and initiatives (both within departments and government-wide) that are fragmented, overlapping, or duplicative.  It also identifies opportunities for [...]

Costs Excluded From Prejudgment Interest Calculation In Personal Injury Award

March 2015 Prejudgment interest is often applied to a personal injury award in an attempt to capture the lost value of the use of monies prior to the judgment date.  A recent case, Bean v. Pacific Coast Elevator Corporation (“Pacific Coast”), has addressed whether costs awarded to a plaintiff in addition to damages are also [...]

FASB Says There’s Nothing Extraordinary About Your Financials

January 2015 The Financial Accounting Standards Board (“FASB”) has issued its first accounting standards update of 2015.  Simply put, FASB wishes to inform preparers of financial statements that there is nothing special about the results they are reporting, i.e., the end of the concept of “Extraordinary Items” on Income Statements. Accounting Standards Update No. 2015-01, Income Statement—Extraordinary [...]

Gap in Damages Timeline Leaves Money on the Table

January 2015 The difficulty when calculating damages caused by production cutoffs was aptly demonstrated in TransPerfect Global, Inc. (“TransPerfect”) v. MotionPoint (“MotionPoint Corporation”), a recent case involving language translation patents. The fact that the jury award did not clearly describe the damage measurement adopted or period covered likely left significant damages on the table. During [...]

How Likely Are You To Get Audited?

January 2015 Tax season is gearing up, an annual source of tension for many Americans. The Internal Revenue Service (“IRS”) looms in the background, with a mission to “Provide America’s taxpayers top-quality service by helping them understand and meet their tax responsibilities and enforce the law with integrity and fairness to all”. Yet the benevolent [...]

Tax Advice & News|

Case Demonstrates the Limits of Whistleblower Protection

December 2014 The efforts to encourage and protect whistleblowers have been wide-reaching. However there are differences between the rewards and the protections based on the agency and laws involved. A recent case entitled Gary Vander Boegh v. EnergySolutions, Inc. demonstrated that not all protections are equal. The U.S. Department of Energy (“DOE”) hired Mr. Vander [...]

Whistleblower Program to Pay $30 Million for a Late Report from Overseas

October 2014 The Securities and Exchange Commission (“SEC”) has announced that it will award over $30 million in its latest high profile payout to a whistleblower who provided key original information that led to a successful SEC enforcement action. The award is getting a lot of attention for a number of reasons. This $30 million [...]

Fraudulent Revenue Recognition Order Causes Rift At The SEC

September 2014 A settlement agreement has been reached In the Matter of Lynn R. Blodgett, Adm. Proc. File No. 3-16045 (August 28, 2014), but without consensus on the part of the Securities Exchange Committee (“SEC”) as to the appropriate penalty. The underlying circumstances involve a financial fraud action against two executives at Affiliated Computer Services, Inc. [...]

Conflicting Definitions Create A Confusing Tax System

July 2014 There is no doubt that the current tax laws are lengthy and complex, making it difficult for many taxpayers to comply without the assistance of professional advice. However, the already burdensome task is exacerbated by conflicting definitions across various provisions. The U.S. Government Accountability Office (“GAO”) recently issued a letter to the Senate [...]

Forensic Accounting|

SEC Warns Against Social Media Investor Scams

July 2014 The Internet provides many tools useful in assessing investment decisions. The easy access to analyst research, background information, historical performance and current events has made it indispensable to many investors. Although the benefits are many, one must be cautious of the risks, especially when using information outside the bounds of well-known, established sites. [...]

Daubert Provides For Liberal Admission Of Expert Testimony

July 2014 The 8th Circuit Court of Appeals has reversed a district court decision to grant summary judgment based on excluding three plaintiff experts regarding causation. While the district court ruled the experts did not reliably exclude alternative causes of injury and therefore their testimony was inadmissible under Daubert, the Court of Appeals concluded that [...]

Internal Control Failings At The IRS Contribute to Over $100 Billion in Improper Payments

July 2014 The U.S. Government Accountability Office (“GAO”) recently issued “Management Report: Improvements Are Needed to Enhance the Internal Revenue Service’s Internal Controls”, describing how the Internal Revenue Service (“IRS”) continues to have internal control deficiencies, both new and old. The purpose of the report is to present internal control deficiencies identified during the GAO’s [...]

Ninth Circuit Overturns Daubert Exclusion, Again Noting Trial Court Is A Gatekeeper, Not A Fact Finder

June 2014 In a recent case involving the City of Pomona (“Pomona”) v. SQM North America Corporation (“SQM”), Pomona alleged that SQM’s importation of sodium nitrate for fertilizer caused a perchlorate contamination in the city. Although the district court excluded under Daubert the expert testimony of Pomona’s expert witness on causation, the Ninth Circuit reversed [...]

New Rules Aimed At Increasing Auditor Scrutiny Of Critical Fraud Areas

June 2014 With its new audit standards and amendments aimed at specific transaction types, the Public Company Accounting Oversight Board (“PCAOB”) has targeted three critical areas in its ongoing efforts to combat financial reporting fraud. The new rules are intended to increase heighten auditor scrutiny regarding (i) related-party deals, (ii) significant unusual transactions, and (iii) [...]

IRS Can’t Find $2.3 Billion In Alimony Payments

May 2014 Tax reporting for alimony payments is a relatively straightforward process.  Those who pay alimony deduct the amount on their tax return when calculating their taxable income.  Those who receive alimony must report the amount received as taxable income.  These requirements should result in a shifting of taxable income without changing the total amount. [...]

Tax Advice & News|

By Some Measures, US Corporate Transparency Lags Behind China, Russia

May 2014 In order to have efficient markets, stakeholders must have access to clear and accurate data and related disclosures that allow for insight and interpretation of that data.  The Western world has long touted the importance and benefits of such corporate transparency and has numerous organizations and government agencies tasked with defining appropriate practices [...]

Investor-Related Regulation, Other|

New Federal Option To Fight Trade Secret Theft

May 2014 A bipartisan bill by U.S. Senators Chris Coons and Orrin Hatch called the Defend Trade Secrets Act was recently introduced to build on the Economic Espionage Act of 1996 and create a federal private right-of-action for theft of corporate trade secrets, providing the same federal protections available for patents, trademarks, and copyrights. The bill’s [...]

Spring Break Turns Sour For Investor

May 2014 In the matter of Division Entertainments, LLC and Wicks Walker v. Spring Breakers LLC and Muse Productions, Inc. et al., Mr. Walker asserts that he was denied a return of his investment, along with an additional profit, because of Defendants’ breach of contract via improper business practices and faulty accounting.  Mr. Walker, a [...]

Recent SEC Cases Demonstrate A Desire To Hold Audit Committee Members Accountable

April 2014 The Securities Exchange Commission (“SEC”) has set its sights on audit committee chairs who fail to exercise appropriate oversight and stewardship over financial reporting, recently targeting two who allowed ongoing fraud in the organizations they were tasked with overseeing.  Audit committee chairs of two firms with major Chinese operations, L&L Energy (“L&L”) and [...]

CAQ Proposes Audit Quality Indicators To Assist Audit Committees With Oversight

April 2014 Regulators and standard setters, such as the Public Company Accounting Oversight Board (“PCAOB”) and the International Auditing and Assurance Standards Board (“IAASB”) have been working to develop and standardize a framework for evaluating and encouraging audit quality.  After a two year effort, the Center for Audit Quality (“CAQ”), an autonomous public policy organization [...]

Disgorgement Remedy Potentially Broadened By Second Circuit

April 2014 In a sharply-divided 2-1 vote, the Second Circuit Court of Appeals found that a civil disgorgement amount can exceed the profit that the defendant personally received. Although the case facts and Opinion directly involved insider trading in an action brought by the Securities and Exchange Commission, the rationale could presumably be applied in [...]

College Football Players Get Employee Status

April 2014 The National Labor Relations Board (“NLRB”) regional director Peter Sung Ohr recently ruled that a group of Northwestern University football players on scholarship are properly classified as employees of the university and thereby have rights to unionize and engage in collective bargaining. The NLRB relied upon the common law definition of an employee [...]

New Path For Accelerated Damages Discovery Requires Immediate Expert Assistance

March 2014 The Eastern District of Texas is well known for its intense patent activity and already provides early disclosure of infringement and invalidity contentions to facilitate faster resolution of these cases.  The Court has now taken similar action by providing an option for accelerated damage discovery, including requiring a two week turnaround between defendant’s [...]

SOX Whistleblower Protection Covers Certain Private Company Employees

March 2014 The Supreme Court has held in the case of Lawson v. FMR LLC that the whistleblower protection available under the Sarbanes-Oxley Act of 2002 (“SOX”) properly extends to employees of privately held contractors and subcontractors who perform work for a public company.  Although the case in question was brought by employees of advisors [...]

Reducing The Valuation Gap In Business Transactions

March 2014 Pepperdine University’s recently released Private Capital Markets Project (“PCMP”) reveals some interesting statistics derived from their survey of the current marketplace for privately-held business sales.  One of the key topics is how a failure to come to terms on valuation conclusions often prevents deals from closing.  For instance, investment bankers surveyed report that [...]

Valuation and Appraisal|

The True Cost Of Lowering Audit Fees Is Increased Restatement Risk

March 2014 In association with general cost cutting measures over recent years, many companies have pressured their vendors to reduce fees.  This downward pressure has extended to the accounting firms hired to provide independent audit opinions, resulting in a significant drop in audit fees.  According to Audit Analytics, audit fees in 2012 were $472 per [...]

Auditing Standards Board Provides Guidance for Reliance on Internal Auditors

February 2014 The Auditing Standards Board (“ASB”) has issued its Statement on Auditing Standards (SAS) No. 128, “Using the Work of Internal Auditors”.  SAS 128 defines the external auditor’s responsibilities in situations where they are (a) using the work of the internal audit function to obtain audit evidence or (b) using internal auditors to provide [...]

Average Time To Regain Investor Confidence May Be Longer Than Previously Believed

February 2014 When a financial restatement is necessary, it is not surprising that investors will take some time to regain trust and give full credit to future earnings announcements.  Exactly how long is a function of various factors, including the nature of the restatement and the corrective actions taken.  A recent study, developed through a [...]

Addressing The Seventh Circuit’s Concerns Regarding Consumer Surveys In Litigation

January 2014 In the course of affirming the district court’s decision in Kraft Foods Group Brands LLC v. Cracker Barrel Old Country Store, Inc., 2013 WL 6017396, Judge Posner went a step further.  While upholding the injunction, he ended his assessment with some comments “for future reference” when it comes to consumer surveys offered to demonstrate [...]

New Standard For Revenue Recognition Standards Is Coming

January 2014 The final touches are being put on the new single, principles-based standard that will update and converge revenue recognition under the Financial Accounting Standards Board (“FASB”) and the International Accounting Standards Board.  The change will impact entities that use US generally accepted accounting principles (“GAAP”) or International Financial Reporting Standards (“IFRS”).  FASB describes the [...]

Nash Bargaining Solutions In Patent Damages Is Not Always A 50%/50% Split

December 2013 The Federal Circuit ruled in Uniloc USA, Inc. v. Microsoft Corp. that the widely used (but fatally flawed) 25 percent rule can no longer be part of reasonable royalty damages calculations.  This article provides the details of this reasonable royalty damages decision.  Since that time, plaintiffs have advanced the Nash Bargaining Solution, a [...]

Artificial Intelligence Can Be Used To Identify Authorship And Authenticity Of Evidence

December 2013 A recent academic article by the Stanford Technology Law Review demonstrates how machine learning and natural language processing techniques can be used to identify authorship.  Machine learning, a technique developed in the field of artificial intelligence, typically uses computer algorithms to “learn” patterns in large datasets, and then can use such patterns to identify [...]

Current Events, Other|

Instead Of More Taxes, How About Enforcing The Taxes All Ready Passed?

November 2013 The Obama Administration continues to not enforce a tax penalty contained in a May 2007 law.  Based on current estimates contained in a recent report (Reference Number: 2013-40-123 – hereinafter the “Report”) by the Treasury Inspector General for Tax Administration (TIGTA), the unenforced law involves around $1.5 billion annually.  The TIGTA Report and [...]

Government Deficits, Other|

Get The Court’s Daubert Rationale On The Record

November 2013 A recent ruling encourages any litigator sponsoring expert testimony to ensure that the Court memorializes its critique of the Court’s gatekeeping function of expert testimony. The ruling also reversed two inherently speculative damage claims that are not that uncommon. In Smith v. Jenkins, F.3d (1st Cir. Oct. 15, 2013) (Nos. 11–2349, 11–2378, 11–2389), the Appellate [...]

DOL Rewrites Sox Whistleblower Provision to a New Employer-Friendly Standard

June 2007 Like most lawsuits, many cases settle for undisclosed amounts. Nevertheless, of almost 1,000 whistleblower cases filed under the Sarbanes-Oxley Act (SOX), not a singe whistleblower has survived the various company appeals and “won” the case formally. The case that might have otherwise been the first employee victory was just overturned. SOX Section 806 [...]

Statistical Sophistication Would Have Provided A Different Liability Answer

October 2013 Economists and other financial experts are often hired to assess damages, assuming that liability will be proven.  However, liability it self can sometimes be established or disproven based on statistics. For example, in a recently affirmed case involving employment discrimination, the application of a simple method failed to provide the Court with information [...]

The Popularity Spike Of Nobel Prize Winners In The “Dismal Science” Has Dismal Staying Power

October 2013 The announcement of the Nobel Prize winners every October means that at least once a year a handful of economists become relatively popular, at least momentarily. Like many public announcements, the lasting impact of this announcement can be measured using the principles of an event study.  In this case, one measure of this [...]

A Lack Of Internal Controls Allows Repetitive Small Thefts To Really Add Up

October 2013 A recent article in the Los Angeles Times (found here) exemplifies how relatively small repetitive thefts can translate into large dollar amounts when allowed to perpetuate undetected over many years.  In this circumstance a Rialto school district accountant is accused of embezzling between $1.8 and $3.16 million of school lunch money, in weekly [...]

AAA Updates Discovery Rules

September 2013 The American Arbitration Association ("AAA") has made substantive revisions to the AAA's Commercial Arbitration Rules which are effective for any AAA-administered arbitration filed on or after October 1, 2013.  One important area of update is the discovery process. These new rules should make it easier for arbitrators to more closely control discovery and its [...]

Expert Thrown Out After Claiming Major Report “Typos” on Cross Examination

September 2013 A recently affirmed decision to grant judgment for the defendant as a matter of law highlights the importance of expert testimony that is consistent with previously-disclosed opinions presented in a Rule 26 report.  In Rembrandt Vision Technologies, Inc. v. Johnson & Johnson Vision Care, Inc., the expert's testimony was struck because of critical [...]

Punitive Damages That Are Limited To Simple Multipliers Require A Greater Focus On Compensatory Damages

September 2013 In many cases, punitive damages dwarf compensatory damages. However, one should not overlook the importance of the compensatory element of damages, as they can serve as a limiting factor for the punitive component. In Nickerson v. Stonebridge Life Insurance Company (B234271, Aug. 29, 2013), the California Court of Appeal affirmed the trial court’s [...]

Valuation Guide: Department Stores

Industry Description The department store industry (SIC 5311, NAICS 452111) consists of retail establishments that sell a variety of products such as clothing, cosmetics, footwear, and home furnishings, typically through decentralized points of sale throughout the store.  For the purposes of this valuation guide, the department store category does not include big-box discount stores such [...]

Valuation Guide: Pharmaceuticals

The pharmaceutical industry (SIC 2834, NAICS 325412) consists of companies engaged in manufacturing and developing prescription and over-the counter products to treat illnesses. Specifically, companies in this industry produce chemically or biologically derived substances used to treat, cure, prevent or mitigate disease. The pharmaceutical industry consists of both brand name and generic drugs, with different [...]

Valuation Guide: Movie Theaters

Industry Description The movie theater industry (SIC 7830, NAICS 51213) consists of companies engaged in exhibiting motion pictures in movie theaters, film festivals, and drive-in theaters. Approximate annual revenues for 2013 are estimated at $14.5 billion, with profits at $610.2 million.[1] In 2012, U.S. and Canada box office (admissions) revenue was $10.8 billion, and the [...]

Valuation Guide: Trucking Companies

Industry Description The trucking industry in the U.S. comprises both local and long-distance freight transportation (SIC 4213, NAICS 484000).  Long distance trucking makes up approximately 85% of the industry, while local trucking encompasses the remaining 15%.[1] The industry is also further divided into truckload and less-than-truckload (LTL) services. Truck transportation is by far the most [...]

The Impact Of Rising Mortgage Rates On Housing Prices

September 2013 In recent years, the Federal Reserve’s efforts to resuscitate the economy enabled historically low mortgage rates for participants in the housing market. At times, a 30 year fixed mortgage was accessible at an annual percentage rate (“APR”) of approximately 3%. Such low cost financing predictably allowed people to either afford to purchase a [...]

Valuation and Appraisal|

Whistleblower Tax Dispute Illustrates What Constitutes A Business And Related Expenses

September 2013 A federal district court, in the matter of Bagley, No. 2:10-cv-00483-RT-FMO (C.D. Cal. 8/5/13), has determined that Richard Bagley was engaged in the trade or business of pursuing False Claims Act lawsuits against his former employer and was thereby entitled to deduct legal expenses related to that endeavor as ordinary and necessary business expenses. Mr. Bagley was the chief financial [...]

Tax Advice & News|

Baby Names As A Marketplace: What Are Americans “Buying”?

August 2013 For economists and data analysts, many interesting pop culture newsbytes spawn a desire to understand the greater forces at work.  Powerful analytical tools we often use for complex questions of market share fragmentation, competitive landscape analysis, event studies and pricing models can also help us frame everyday questions of cultural norms. The press [...]

Major Changes In Standard Audit Reports Coming?

August 2013 The Public Company Accounting Oversight Board (PCAOB) is considering changes to the standard auditor's report, which has remained relatively unchanged for decades.  The hope is that these changes will make the standard auditor’s report more informative, relevant and useful to investors and other financial statement users.  The proposed expanded language would require auditors to [...]

Is Daubert Overapplied?

August 2013 Recently, another Daubert exclusion of expert evidence was overturned on appeal.  On July 19, in re: Gregory Call vs. Pure Earth, et al, the Third Circuit reversed a district court’s ruling that excluded expert witness testimony based on Daubert grounds.  The matter was remanded for a new trial on damages.  Although the Third [...]

The International Community Has Different Opinions On Mandatory Auditor Rotation

July 2013 In the past year, the issue of mandatory auditor rotation has been an active area of debate, both domestically and abroad.  The idea of mandatory auditor rotation has been around for years, but has consistently (and successfully) been opposed by the public accounting profession and its large clients.  While the European Union still [...]

Whistleblower Protection Does Not Require Fraud On Shareholders

June 2013 A recent decision has clarified the reach of the protections offered to whistleblowers under Section 806 of the Sarbanes-Oxley Act of 2002 (“SOX”).  In the matter of Lockheed Martin Corporation v. Administrative Review Board, United States Department of Labor, it has been determined that SOX whistleblower protection extends beyond employee reporting of frauds [...]

New Guidelines To Assist Companies With Fraud Deterrence

June 2013 Internal Control – Integrated Framework, is a new framework for fraud deterrence that was recently released by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”).  It provides expanded practical advice regarding effective implementation of internal controls.  COSO is a joint initiative of five private sector organizations with a shared interest in [...]

PCAOB Chinese Agreement Will Not Provide Needed Transparency Into Chinese Stocks

June 2013 In order to address ongoing concerns with transparency into the underlying financials of Chinese companies, the Public Company Accounting Oversight Board (PCAOB) recently announced that it entered into a Memorandum of Understanding (MOU) with the China Securities Regulatory Commission (CSRC) and the Ministry of Finance (MOF). While this is an important step forward, [...]

Investor-Related Regulation, Other|

Federal Circuit Decision Demonstrates The Risks When Defendants Decline To Calculate Possible Damages

June 2013 The Federal Circuit affirmed a $391 million damage award in Versata Software, Inc. v. SAPAmerica, Inc., No. 2012-1029, -1049 (Fed. Cir. May 1, 2013). In reviewing the damage portion of the ruling, one cannot help but question the strategy that the defendant employed, which offered only criticisms to the plaintiff’s damages calculation without [...]

Battling Auditor Involvement In Fraudulent SEC Reporting

May 2013 Even after the increased regulation associated with the Sarbanes-Oxley Act (SOX) in July 2002, the audit profession continues to deal with questions of whether they are truly independent from the companies who employ them and overall audit effectiveness. A recent report commissioned by the Center for Audit Quality (“CAQ”) specifically examines Securities and [...]

Neither Expert Nor Inventor Allowed To Opine On Reasonable Royalty Damages

May 2013 A Delaware federal court recently closed the door on each of two possible paths to damages for Plaintiff in the matter of AVM Technologies, LLC v. Intel, Inc. (Civil Action No. 10-610-RGA). U.S. District Judge Richard G. Andrews granted Defendant’s motion to exclude Plaintiff’s expert, while also granting Defendant’s motion in limine to [...]

Recent Research On Compensation Structure And Fraud Reinforces The Principals Of The Fraud Triangle

May 2013 A recent study in The Journal of Financial Economics suggests that a compensation structure that relies on financial performance measures can be tied to incidences of fraud.  Generally, the study concludes that individuals are more likely to engage in financial misstatements when the there is little downside and high upside.  The implication is that [...]

Valuation Guide: Medical Device Industry

Industry Description The medical device industry (SIC 3840, NAICS 339112) consists of companies engaged in manufacturing medical and surgical instruments used to diagnose and treat healthcare patients. U.S. surgical and medical device manufacturers generate annual revenues of approximately $29 billion.[1]  Around 22 percent of industry sales are for surgical and orthopedic instruments, followed by catheters [...]

Valuation Guide: Online Dating Industry

Industry Description The online dating industry (SIC 7299, NAICS 812990) consists of companies engaged in online matchmaking services. Most companies generate revenue under a subscription model.  Often, “browsing” will be free, but messaging or contacting other users will require a subscription.  Alternatively, some websites generate revenue solely through advertising and are free for users. In [...]

SEC Hesitating To Impose Internal Audit Function Requirement On NASDAQ Companies

April 2013 On March 4, 2013, NASDAQ issued a proposed new rule (Release No. 34-69030; File No. SR-NASDAQ-2013-032) which would require listed companies to have an internal audit function: “Each Company must establish and maintain an internal audit function to provide management and the audit committee with ongoing assessments of the Company’s risk management processes [...]

Court Cites Expert’s Inappropriate Reliance On “Outlier” Conclusion Of Value

April 2013 A discounted cash flow (DCF) analysis is a commonly-used and conceptually excellent method of performing a business valuation in which a projection is made of expected future results. However, it is possible to manipulate the inputs into the future projection to arrive at specifically-desired results. Once completed, it is also important to consider [...]

Valuation and Appraisal|

Can Time Series Decomposition Allow Us To Settle The Score On Which Sport Is Best?

April 2013 Every fan loves his sport.  There is much debate over which sports are growing in popularity and which are on the decline.  Although popularity does not necessarily indicate superiority, it does tell us something about public opinion on the topic.  One way to approximate each sport’s relative popularity is to look at web [...]

PCAOB Issues Second Mixed Report On Audits By Smaller Firms, But Ultimately Puts Them On Par With Larger Firms

April 2013 On February 25, 2013, the Public Company Accounting Oversight Board (PCAOB) issued its summary report on smaller accounting firms. The PCAOB described its inspections and related reporting here as follows: “This report covers domestic audit firms that audit the financial statements of issuers, and that regularly issue 100 or fewer audit reports each [...]

Valuation Guide: Cargo Shipping

Industry Description The freight shipping industry in the U.S. comprises deep sea freight transportation, inland water freight transportation, and coastal and Great Lakes freight transportation (SIC 4412, 4424, 4432, 4449; NAICS 483111, 483211, 483113).  The global containerized shipping and logistics industry generates approximately $155 billion in revenue annually.[1] Approximately $9 billion of that revenue is [...]

Valuation Guide: Grocery Stores

Industry Description The grocery industry (SIC 5411, NAICS 7445110) consists of retail locations selling food products.  There are almost 65,000 grocery and supermarket locations across the U.S., according to Census data.[1]  U.S. supermarkets and grocery stores generate annual revenues of approximately $491 billion.[2] A typical grocery store is about 46,000 square feet in size and [...]

Lost Compensation Settlement Tool Allows You To Assess Economic Damages Accurately And Efficiently, Under Various Scenarios

March 2013 Lost compensation is a method of capturing economic damages in personal injury, medical malpractice, wrongful termination, failure to promote and other similar torts.  Independent damages experts are often employed to calculate lost compensation because of their unique background/skill set.  However, the desire to minimize costs means that these experts are often employed after [...]

Injury & Employment Damages|

Seventh Circuit Bars Class Certification Because Of Damages

March 2013 The Seventh Circuit decided Espenscheid vs. DirectSat, Inc., (No. 12-1943, February 4, 2013), upholding the district court’s decision to not certify a class of employees containing wage and hour law violations. The ruling is notable as class certification was denied because the class members had different amounts of claimed work that had not [...]

Top Five Reasons That Chocolate Doesn’t Create More Nobel Laureates For Your Country

March 2013 The article “Chocolate Consumption, Cognitive Function, and Nobel Laureates” recently published in the New England Journal of Medicine (NEJM) demonstrates that even published research may contain errors. The author, Franz H. Messerli, examines the correlation between countries’ chocolate consumption per capita and Nobel laureates per 10 million people. The linear relationship is strong, [...]

IRS Whistleblower Program Provides Opportunities For Some, Pitfalls For Others

February 2013 The IRS has had a whistleblower program for decades, but it was not widely used and not much was paid to whistleblowers. However, the efforts to improve the program are bearing fruit.  The current program is outlined on www.irs.gov, where information is available regarding the purpose of the program, how to make a [...]

Private Annuity Transaction Upheld As An Estate Planning Tool

February 2013 In the Estate of Virginia Kite vs. IRS, T.C. Memo 2013-43 (February 7, 2013), affluent taxpayers were given support for a potentially substantial estate planning tool. This is a significant decision. The decision involved Mrs. Kite’s lifetime revocable trust, and the family partnership interests it held which were transferred to Mrs. Kite’s children [...]