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Helping Your Expert Witness Succeed

Published in Los Angeles Lawyer, April 2003   Expert witnesses are more important than ever. Most complicated cases do not settle until after the experts have issued comprehensive reports or had their depositions taken. This trend will increase because education had not kept pace with the continuing increase in knowledge, causing an ever-widening gap between [...]

2018-11-21T15:31:40-08:00Commercial Damages|

Improving Cross-Examination Of Expert Witnesses

Published in Los Angeles Lawyer, April 2005 In many respects, the cross-examination of an expert witness is the same as for other witnesses. Some basics include: Be brief…Do not quarrel with the witness…Never ask a question to which you do not already know the answer…Avoid one question too many…and so on. However, there are some [...]

2015-05-13T11:07:38-08:00Commercial Damages|

Improving Your Expert Deposition Results Is Easy

Published in Los Angeles Lawyer, November 2004 In the vast majority of circumstances, your deposition results can be improved by adding a few questions that usually challenge expert witnesses. Consider the following practical advice gleamed from hundreds of actual depositions. These questions should be modified slightly depending upon your deposition strategy. Before the deposition begins, [...]

2016-11-10T11:30:50-08:00Commercial Damages|

Avoiding Common Mistakes When Selecting An Expert Witness

Published in Los Angeles Lawyer, November 2002 The following suggestions result from my experience serving as a witness, watching hundreds of other expert witnesses, and locating witnesses when servings as a confidential consultant. They are intended to help attorneys avoid common mistakes in selecting an expert witness. Be careful when your potential expert witness is too [...]

2015-05-13T11:07:59-08:00Commercial Damages|

Lost Health Benefits May Be A Shrinking Component of Lost Compensation Claims

June 2019 Lost compensation claims value the economic losses associated with employment that is eliminated, interrupted or reduced because of improper employment decisions or environments, personal injury or wrongful death, or other changes in employment circumstances associated with civil litigation.  In many cases, the loss of employer provided healthcare is a material component of these [...]

Study Offers Statistical Evidence on the Value of Whistleblower Reporting Systems

June 2019 A study published in April 2019 and conducted by researchers at George Washington University offers a quantification of the generally held understanding that effective whistleblower systems contribute to business performance.  The study, entitled Evidence on the Use and Efficacy of Internal Whistleblowing Systems, is based on analysis of a propriety dataset of nearly [...]

2019-07-02T11:44:14-08:00Whistleblower Systems|

Damages from Misuse of Kardashian’s Assets

February 2019 Kim Kardashian, the most recognizable name in reality television, has filed a $10 million lawsuit in California federal court asserting that fast fashion brand Missguided has made her into an “unwitting and unwilling spokesperson” for its celebrity knockoff clothing products. The filing describes "Missguided does not merely replicate the looks of these celebrities as [...]

Survey Reports Substantial Pressure to Misrepresent Financial Results

February 2019 A recent survey of 306 accounting and finance professionals, including more than 200 controllers from the U.S., Canada, Europe, Asia, Africa and Latin America, describes that almost two-thirds have experienced pressure to “cook the books”. The survey was conducted by Dimensional Research and sponsored by FloQast, an entity which provides management software for [...]

Valuation Guide: Commercial Banks

Industry Description According to the US Census Bureau, the commercial banking industry (NAICS 522110) is comprised of establishments primarily engaged in accepting demand and other deposits and making commercial, industrial, and consumer loans.  It is a global, multi-billion dollar industry that acts as in intermediary between those with money (their depositors) and those seeking money [...]

Valuation Guide: Casinos

Industry Description According to the US Census Bureau, casino hotels (NAICS 721120) comprises establishments primarily engaged in providing short-term lodging in hotel facilities with a casino on the premises. The casino on premises includes table wagering games and may include other gambling activities, such as slot machines and sports betting. These establishments generally offer a [...]

Valuation Guide: Skilled Nursing Facility

Industry Description The skilled nursing facility industry, as defined by the U.S. Census Bureau (NAICS 623110), consists of companies primarily engaged in providing inpatient nursing and rehabilitative services. The care is generally provided for an extended period of time to individuals requiring nursing care. These establishments have a permanent core staff of registered or licensed [...]

Tax Implications for Litigation Settlements and Awards

January 2019 Taxability affects the actual economic recovery from a litigation settlement or award.  In assessing whether to accept a settlement or make the investment to take a case to trial, tax implications are an important element in the evaluation of risk versus reward. Generally, whether litigation proceeds are taxed depends on the underlying basis [...]

Historic Material Adverse Effect Ruling Demonstrates What It Takes to Establish One

January 2019 In December 2018, the Delaware Supreme Court upheld a judgement in the matter of Akron, Inc. v. Fresenius Kabi AG wherein the Court of Chancery for the first time ever found that a “Material Adverse Effect” (“MAE”) justified a buyer’s termination of a merger agreement.  Establishing a MAE has historically proven difficult, even [...]

Daubert Challenge Threatens Class Certification

December 2018 While Daubert provides common challenges to the admissibility of expert testimony, inconsistent positions regarding its applicability at the class certification stage remain. Generally, it is advisable for both plaintiffs and defendants to involve expert witnesses as part of the class certification stage, to clarify appropriate approaches, achievable outcomes and/or demonstrate the strength of [...]

Cannabis Valuation Guide

October 2018 The general principles of valuing enterprises apply to a cannabis company. However, the regulatory and growth attributes of the cannabis industry complicates considerably the valuation of a cannabis-related enterprise. This guide discusses unique valuation considerations for cannabis-related appraisals. Currently, there are numerous publicly-traded companies in the cannabis area. Although there is considerable money [...]

The Deepening Crisis of Financial Elder Abuse

October 2018 America’s aging population, who hold trillions of dollars in assets, are a common target for financial abuse.  Every year, millions of American seniors are scammed by fraudsters who exploit their financial vulnerability, or in some cases diminished cognitive capacity, through a variety of financial schemes.  The National Adult Protective Services Association (“NAPSA”) describes [...]

IRS Confirms Continued Partial Deductibility of Business Meals

October 2018 For months, the American Institute of CPAs (AICPA) and American businesses have been requesting guidance from the U.S. Treasury Department and Internal Revenue Service ("IRS") regarding changes made by the Tax Cuts and Jobs Act (TCJA) (Pub. L. No. 115-97).  These changes disallowed the deductibility of entertainment, amusement, recreation and qualified transportation fringe expenses beginning [...]

Settlement May Not Provide Class Members with the Benefit They Expect

September 2018 In a case highly reminiscent of a prior lawsuit against StarKist Tuna, Trader Joe’s has been embroiled in a class action claim regarding the degree to which it fills its tuna cans.  Plaintiffs’ claim that reasonable consumers would believe that the cans contained an adequate amount of tuna and were misled because the [...]

The Value of Higher Education in Lost Income Claims

September 2018 Higher education can provide a host of benefits. In certain industries, opportunities for increased pay are directly tied to credentials. Many assume that such outcomes uniformly favor additional education from a financial perspective. In a typical lost earnings case, many might similarly expect that the more education the Plaintiff has or is expected [...]

Federal Circuit Allows Flexibility in Determining Royalty Rate

April 2018 The US Court of Appeals for the Federal Circuit's recent decision in Exmark Manufacturing Company  v. Briggs & Stratton Power Products Group, LLC (January 12, 2018) validates that there is no clear-cut method to value a patented invention’s contribution to a larger, multicomponent product (aka apportionment).  Specifically, the Federal Circuit stated that “…apportionment [...]

The Appropriate Discount Rate In A Lost Earnings Claim

October 2018 Damage experts often disagree regarding the appropriate discount rate in a lost earnings claim, a factor that can make a meaningful difference in the economic damages conclusion. A recent article, “Calculate Economic Damages Associated with Lost Earnings Claims Accurately and Efficiently”, demonstrates the significance of the applied rate on damages. A low discount [...]

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 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 [...]

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 [...]

Planning For FASB’s New Revenue Recognition Standard

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 [...]

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 [...]

Appeals Court Says Missing Information Doesn’t Prevent Business Valuation

September 2014 A recent Appeals Court decision addressed what level of evidence is required to demonstrate business value in a divorce proceeding. In Hugh v. Hugh, 2014, the wife in a divorce proceeding filed a cross-appeal on a number of issues, including the trial court’s failure to value her husband’s business (“E-Tech”). The Appeals Court [...]

2019-03-06T11:37:44-08:00Valuation and Appraisal|

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. [...]

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) [...]

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 to [...]

Newly 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 [...]

2019-03-06T11:19:31-08:00Valuation 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 [...]

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 [...]

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”

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 [...]

Failing to Properly Manage Licensing Agreements Leaves Royalties on the Table

October 2013 A patent and license portfolio can provide a consistent and reliable revenue stream. However, many companies have technology, trademarks, and merchandising opportunities that are not fully exploited. Even if fully licensed, there is often considerable upside available via vigilant enforcement of audit provisions to ensure all amounts due are paid. Unlike almost any [...]

Lack of Internal Controls Allows Repetitive Small Thefts To Really Add Up

October 2013 A recent article in the Los Angeles Times 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 increments of [...]

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 45211) 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.  Department stores may also offer various services such as hair styling, photography, gift wrapping, and personal shopping. Global [...]

Valuation Guide: Pharmaceuticals

Industry Description The U.S. pharmaceutical industry, as defined by the U.S. Census Bureau, consists of companies primarily engaged in researching, developing, manufacturing and marketing drugs for human or veterinary use (NAICS 3254).  The industry consists of both brand name and generic drugs, with different companies specializing in each type.  Brand name drugs are patent protected [...]

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.  Approximately 60% of industry sales are generated from sales of feature film admissions, the remaining comes primarily from the concession and advertising business.[1]  Movie theaters’ profitability is largely dependent [...]

Valuation Guide: Trucking Companies

Industry Description The trucking industry in the U.S. comprises both local and long-distance freight transportation (SIC 4212, 4213, NAICS 484000).  Long distance trucking makes up approximately 70% of the industry, while local trucking encompasses the remaining 30%.[1]  The industry is also further divided into truckload and less-than-truckload (LTL) services. In the U.S., truck transportation contributes [...]

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 [...]

2019-03-06T10:14:30-08:00Tax 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 [...]

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 [...]

Research On Compensation And Fraud Point to 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.  The United States is both the leading producer and consumer of medical devices.  The industry experienced annual double digit growth from 2007 to 2012[1]; however, it experienced negative [...]

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 [...]