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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 [...]

Getting More Money From Licenses

  Intellectual Property licensing is big business, and is getting bigger.  But most licensors do not earn as much as they should because they fail to perform royalty audits allowed under their license agreements.  The remedy is obvious, but is often not done for fear of the audit's cost or concern over disrupting the licensee [...]

Steps In Valuing Intellectual Property

Intellectual property (including patents, trademarks, copyrights, trade secrets, software, entertainment assets, customer lists, in-process research, etc.) is a large portion of the value of most business enterprises. When entering into any transaction involving intellectual property, you need to properly value these assets. This is easier said than done. This article cannot provide a complete "how-to" [...]

2019-01-16T15:36:05-07:00Valuation and Appraisal|

Goodwill Valuations – The Good, The Bad and The Ugly

Because of the current recession and related bear market, practically every company will need to pay greater attention to its annual goodwill impairment test required under Financial Accounting Standard 142 ("SFAS 142"). Many companies performing an updated goodwill impairment analysis will find that impairment has occurred. In addition, earlier goodwill assessments probably need to be [...]

2019-01-16T15:42:37-07:00Valuation and Appraisal|

Buyer Beware – The Alphabet Soup Of Appraisal Credentials

Appraisal disciplines have a confusing array of credentials. This occurs because: There are numerous asset types (e.g. real estate, businesses, machinery, fine arts, jewelry), with each asset type having its own sponsoring organizations, and There are numerous appraisal and other organizations that sponsor appraisal certifications, with wide variance in the standards employed. This is important [...]

2018-12-05T11:58:51-07:00Valuation and Appraisal|

Additional Disclosure Regarding Fairness Opinions Now Required In Proxy Statements

On October 17, 2007, the Securities and Exchange Commission (SEC) published its approval of amended Rule 2290 in the Federal Register. The new rule 2290 involves disclosures and procedures related to the issuance of “independent” fairness opinions included in proxy statements. Specifically, any proxy statement that includes a fairness opinion will soon need to disclose: [...]

2019-01-14T10:39:13-07:00Valuation and Appraisal|

SOX Whistleblower Protections Again Interpreted Narrowly

May 2011 The Ninth Circuit took a narrow reading of the whistleblower protections provided under Sarbanes-Oxley, and thereby eliminated the applicability of any whistleblower protection. The would-be whistleblowers were two internal auditors at Boeing. Based on the Court’s description: “In January 2007, plaintiffs Matthew Neumann and Nicholas Tides began working as auditors in Boeing’s IT [...]

SEC Issues Final Rules On Their Whistleblower & Reward Program Under Dodd-Frank

June 2011 The Dodd-Frank Act, which was signed by President Obama on July 21, 2010, includes (in Section 922) a whistleblower program sponsored by the Securities and Exchange Commission (SEC). This law (i) makes significant changes in the existing whistleblower provisions of the Sarbanes-Oxley Act of 2002, and (ii) authorizes the SEC to pay between [...]

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 [...]

2018-11-21T15:31:40-07:00Commercial 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 [...]

2015-05-13T11:07:38-07:00Commercial 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, [...]

2016-11-10T11:30:50-07:00Commercial 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 [...]

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

Valuation Guide: Dry Cleaners

  Description of the Industry The dry cleaners industry (SIC 7211, 7212, and NAICS 812320) provides full service laundering and dry cleaning for consumers and commercial clients. The growth of a dry cleaning business depends on consumer spending, operating efficiency, and favorable locations.  The dry cleaning industry is highly fragmented, with the 50 largest firms [...]

Valuation Guide: Hotels

Industry Description The hotel and lodging industry (SIC 7011 and NAICS 721110)  includes a variety of properties that offer short-term lodging. [1]  The properties range from five-star hotels to recreational vehicle parks.  Within the United States, the industry includes 51,214 properties of 15 or more rooms. [2]  The industry generated $137.5 billion dollars in sales [...]

Valuation Guide: Fast Food Franchise

Description of the Industry The fast food industry (SIC 5812, NAICS 722211) consists of eating establishments where customers pay before eating, including eat-in, take-out, drive-thru and delivery establishments.  Fast food franchises, carryout restaurants, delicatessens, pizzerias, and sandwich shops all fall within this category.  In general, fast food restaurants emphasize dining at a low cost with [...]

Valuation Guide: Restaurants

Description of the Industry The restaurant industry (SIC 5812, NAICS 722110) consists of table-service dining establishments.  These establishments may also engage in the sale of alcoholic beverages, takeout services, and entertainment.  In general, full service restaurants differ from fast-food or other dining places in that they (i) have a full menu of appetizers, entrees, desserts, [...]

Valuation Guide: Auto Repair Shops

  Summary Because the starting financial statements often contain important transactions with owner/operators and other related parties, the financial statements will need to be scrutinized and probably adjusted.   Once reliable adjusted financial statements are available, the following valuation methods are most commonly used to value auto repair shops: Asset-based valuation – Particularly for a company [...]

Valuation Guide: Auto Dealerships

Summary  The value of an auto dealership facility generally fluctuates with the strength of the auto sales market.  Although each appraisal assignment is different, the value of a healthy and profitable auto dealership is generally going to place primary reliance on the income and market approaches.  A summary of public and private transactions appears later [...]

Computer Forensics Deserve A Place In Your Human Resource Toolkit

June 2008 Computers contain evidence useful in many human resource circumstances. Allegations of discrimination, sexual harassment, and unfair discharge are serious threats that are better understood by knowing what an employee did. Since computers are such a pervasive part of most employees’ work lives, analysis of data stored on these computers helps address these issues. [...]

Keeping Track Of Federal Government Spending Is Supposedly Just Too Hard

March 2011 The Government Accountability Office (GAO) again reported that it “cannot render an opinion on the 2010 consolidated financial statements of the federal government, because of widespread material internal control weakness, significant uncertainties, and other limitations.” This has occurred for years. Although each year the federal government states improvements are being made, the bottom [...]

2019-02-28T12:26:07-07:00Government Deficits, Other|

Estate & Gift Tax Set For The Next Two Years

The Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010 (HR 4853) (the “Act”) is now law. The estate and gift tax is one of the most dramatic aspects of this tax law change. President Obama was sharply criticized within his own party for these estate tax provisions. Under the Act, estates will [...]

2019-03-04T10:52:33-07:00Valuation and Appraisal|

IRS Toughens Position On Deductibility Of Government Settlements

 In September and October 2008, the IRS issued two pronouncements that address when litigation settlement payments with governments are deductible. These settlements could occur under any government regulation, including for example the False Claims Act, Medicare billing, environmental laws, anti-trust laws, as well as any state law. This issue will likely arise more regularly under [...]

2019-02-28T12:10:38-07:00Commercial Damages|

Employers Should Implement Whistleblower Reporting Changes Because Of The Dodd-Frank Act

November 2010 The Dodd-Frank Act, which was signed by President Obama on July 21, 2010, includes (in Section 922) a whistleblower program sponsored by the Securities and Exchange Commission (SEC). This law (i) makes significant changes in the existing whistleblower provisions of the Sarbanes-Oxley Act of 2002, and (ii) authorizes the SEC to pay between [...]

Punitive Damages Now More Difficult In Patent Cases

September 2007 In a landmark decision that overturns long-standing precedent, the Court of Appeals for the Federal Circuit (CAFC) unanimously heightened the test to determine whether an infringer is subject to enhanced damages because of willful infringement of a patent. Such enhanced or punitive damages can be up to three times the compensatory damages. The [...]

Change In “Accredited Investor” Definition Will Cause The Investor Pool For Private Financings To Shrink

August 2010 Issuers conducting private offerings of securities often rely on Regulation D as the exemption from the registration requirements of the federal Securities Act of 1933. When raising money, most hedge funds, private equity funds, and private real estate investment vehicles, as well as those arranging angel financing, generally restrict themselves to “accredited investors”. [...]

Federal Circuit Throws out Economic Damages as a Double Recovery

November 2018 In Texas Advanced Optoelectronic Solutions Inc. v. Renesas Electronics America Inc, f/k/a Intersil Corporation, the Federal Court of Appeals recently overturned the trial court’s economic damages award based on an impermissible double recovery across the multiple causes of action involved. Texas Advanced Optoelectronic Solutions, Inc., (“TAOS”) and Intersil Corporation (“Intersil”) each develop and [...]

Post-Judgment Reasonable Royalty Rates Get Important Additional Guidance

May 2009 The Supreme Court in eBay v. MercExchange, 547 U.S. 388 (2006) overturned the Federal Circuit's "general rule" of automatically issuing a permanent injunction after a finding of patent infringement. District courts must now use a four-factor test to exercise equitable discretion in deciding whether to issue a permanent injunction. The four factors are: [...]

Federal Circuit Court Of Appeals Provides Guidance On Reasonable Royalty Damage Calculations

April 2010 In, Inc. v. Lansa, Inc., Nos. 08-1365, -1366, 09-1030 (Fed. Cir. Feb. 5, 2010), the United States Court of Appeals for the Federal Circuit (CAFC) provides useful instruction regarding common (but poor) practices that are seen in reasonable royalty damages analyses in patent infringement cases. The CAFC referenced its recent decision in [...]

Reasonable Royalty 25% Rule Is Dead

January 2011 The Federal Circuit ruled in Uniloc USA, Inc. v. Microsoft Corp. (January 4, 2011) that the widely used but fatally flawed 25 percent rule can no longer be part of reasonable royalty damages calculations. Generally speaking, the rule pushed patent infringement damages higher. Because a reasonable royalty is the most frequently used measure [...]

Avoiding A Contingency Fee Tax Trap

In re: Commissioner vs. Banks and Commissioner vs. Banaitis, the Supreme Court ruled (8-0) that contingency attorney fees paid by an individual must be included in the taxpayer's income and then deducted.  This has the following adverse outcomes: Once included in gross income, the legal fee is deducted as an itemized deduction, causing: i. the standard [...]

2019-03-04T10:49:32-07:00Commercial Damages|

Disgorgement Returned As A Monetary Remedy In Delaware Cases

June 2011 Although the case at issue involves insider trading, the limitations involving disgorgement as a monetary remedy could be applied to other circumstances. The Delaware Supreme Court took little time in reversing a lower court decision that could have had widespread effects. The case is important because of the large number of companies that [...]

Real Estate Tax Assessment Appeals Start Now

As indicated in our recent article, real estate values are dropping materially. With these value drops comes the possibility that you may be entitled to real property tax relief. However, unless the assessor is in a shockingly generous mood, you must specifically ask for the lower taxes. On January 1, 2008, if your home was [...]

2019-03-04T10:47:19-07:00Valuation and Appraisal|

Litigation: NASD Proposes Modified Arbitration Rules

May 2006 This month, the National Association of Securities Dealers (NASD) filed with the Securities and Exchange Commission (SEC) changes to its Code of Arbitration Procedure.  The changes are intended to simplify and reorganize the language/rules. The proposal makes the following changes: Divides the current Code into three separate codes: the Customer Code, the Industry [...]

2019-02-28T10:05:27-07:00Current Events, Other|

GAAP Reorganization Will Cause Short-Term Frustration, But Should Improve Research Capabilities

May 2009 On July 1, 2009, the Financial Accounting Standards Board (FASB) is expected to issue their “Accounting Standards Codification” (ASC) as the sole authoritative accounting guidance for U.S. generally accepted accounting principles (GAAP). The ASC will not change GAAP, but nevertheless represents a major shift in its organization and presentation. It is intended to [...]

More Resources Will Be Allocated To Financial Fraud Initiatives

February 2009 Government resources are usually allocated based on the political sentiment of the day. Those in charge of investigations understandably want to show that they are accomplishing something. Consequently, once resources are allocated to an investigative area, prosecutions invariably follow. White collar defense lawyers face improving business conditions. This is occurring because (i) increased [...]

Detailed Audit Provisions Save Headaches

February 2013 The audit provision within many licensing agreements is nothing more than a short paragraph in what may otherwise be a highly detailed document. We sometimes see audit provisions that are nothing more the following: Licensor, at their own expense, shall have the right to nominate an independent certified public accountant satisfactory to Licensee, [...]

Largest-Ever Ponzi Scheme Hiding in Plain Sight

January 2009 In mid-December, Bernard Madoff was arrested for operating a giant ponzi scheme. After his two sons reported him to regulators, Madoff admitted that losses could be as much as $50 billion. Bloomberg tallied around $37 billion that is currently invested with Madoff, but the total numbers will obviously include amounts not subject to [...]

Electronic Data Is Always Difficult … If You Don’t Try

November 2008 Many times discovery is resisted or analyses are not pursued because of a misguided notion that the work would be too difficult or time consuming. The sheer volume of electronic data sometimes makes it appear that the data is too cumbersome to address. However, with the correct skills and tools, this initial perception [...]

Business Interruption and Related Insurance Claims

Updated November 2018 California is facing increasing losses from wildfires, which create special insurance claim issues.  Businesses are interrupted because of physical damage to their own facilities, as well as to their surrounding communities, transportation options or the operations of key suppliers and major clients. These insurance claims are often complex, requiring the assistance of [...]

Substantially Reduce Electronic Discovery Costs

April 2008 Why Electronic Discovery is Expensive Actually, discovery using electronic tools is not expensive at all. The high cost of electronic discovery is instead caused by having to review a large volume of electronic records (largely email) that businesses are creating and keeping. The ever-declining cost of electronic storage is the culprit. Currently, a [...]

2019-03-04T10:40:36-07:00Discovery Advice|

Weak Credit and Economic Conditions Cause Litigation Over “Material Adverse Change” Clauses

February 2008 A number of current stalled deals involve material adverse change clauses. Litigation in this area will increase because of uncertainties involving (i) the credit markets and (ii) operating disappointments associated with an economic downturn. Regardless of whether you represent sellers, buyers, or lenders, lawyers are well-advised to pay greater attention to these “standard” [...]

Nonprofit Organizations Need A Whistleblower Reporting Mechanism

February 2008 The IRS Form 990 calls for significantly expanded corporate governance disclosures. A charity’s Form 990 is publicly available, including most importantly to potential donors and regulators outside of the IRS. For the 2018 tax year (returns filed in 2019), most tax-exempt organizations with gross receipts over $200,000 or total assets over $500,000 will [...]

Delaware Case Alters Existing Practice Regarding Use Of Special Committees

January 2008 The Delaware Chancery Court issued a ruling in Ryan v. Gifford, C.A. No. 2213-CC (Del. Ch. Nov. 30, 2007) that runs afoul of current common practice in dealing with investigations performed by a Special Committee of the Board of Directors. Although the case involves stock option backdating, the rationale applies equally to any [...]

New Advice for Special Committees And Their Financial Advisors

November 2007 The Delaware Chancery Court issued an opinion (Tele-Communications, Inc. Shareholders Litigation, C.A. No. 16470, December 21, 2005) that questions a number of widely-established procedures used when addressing the fairness of merger transactions.  Wise corporate directors and lawyers will need to more closely scrutinize (i) conflicts of interest issues involving investment bankers and (ii) [...]

2019-02-06T11:38:52-07:00Valuation and Appraisal|

How To Get The Discovery You Need From Your Opponent

October 2007 An extraordinary amount of time is incurred in discovery asking for records that may not even exist, or asking for records that do exist, but the other side declines to produce records that were not requested using just the right terms. Once the records are identified, wasteful paper-based productions occur because the requesting [...]

2019-02-06T10:05:34-07:00Discovery Advice|

Electronic Storage Best Practices

October 2007 The majority of commentators regarding electronic discovery bemoan the high cost of dealing with all the electronic records. This usually misses the point. On a page-for-page basis, electronic records management and related electronic discovery costs a small fraction of what the same effort would be in paper. Why is this such a problem? [...]

2019-02-06T10:07:55-07:00Discovery Advice|

Tax Accrual Workpapers Are Probably Safe From The IRS’s Probing Eyes

September 2007 To maintain accounting records under generally accepted accounting principles, companies need to assess the likelihood of judgmental positions being sustained. The recent tax case United States vs. Textron, No. 06-198T (Aug. 29, 2007), is important in establishing a taxpayer’s right to prevent disclosure of (i) its internal analyses of these controversial tax positions, [...]

IRS Loses Another Case Involving Auditor Work Papers

September 2007 In Regions Financial Corp. v. United States, (N.D. Ala., No. 2:06-CV-00895-RDP, 5/8/08), the IRS lost another battle in its effort to get information from outside accountants’ tax accrual work papers. This case could be particularly damaging to the IRS’s position because the Court’s rationale arguably would apply regardless of which split in authority [...]

California’s Postmortem Publicity Rights Are In Flux

Two recent court cases and related proposed legislation affect publicity rights for some of the more notable entertainment icons. This article also summarizes common questions about valuing publicity and privacy rights. What is a Right of Publicity? Although sometimes blurred by courts and commentators, the right of publicity and the right of privacy are different [...]

2019-02-26T11:29:05-07:00Valuation and Appraisal|

Beware Of Poll Results

June 2011 Based on results of its May 2011 survey, the Associated Press (AP) reported that President Obama hit his highest approval rating in two years, with his approval shooting past 50 percent based on the economy: “President Barack Obama's approval rating has hit its highest point in two years — 60 percent — and [...]

10b5-1 Plans Deserve Greater Scrutiny by Boards of Directors

July 2007 Stock option backdating scandals have grabbed headlines for quite some time. These scandals were initially identified by academic research that noted unexplained stock movements relative to option grant dates. A similar issue may exist with 10b5-1 plans. The volume of potential insider trading is substantial. For example, in late July, the former CEO [...]

Chi-Square Statistical Test Evaluates Independence

June 2013 Statisticians describe independence as whether the occurrence of one event or characteristic makes it neither more nor less probable that other event(s) or characteristic(s) occur(s). The chi-square test described below is one of the most widely used tests for evaluating independence of variables, particularly when the number of observations and/or variables becomes larger. [...]

First Law Signed By Obama Will Increase Employment Discrimination Litigation

February 2009 The first piece of legislation signed by President Obama is the Lilly Ledbetter Fair Pay Act of 2009 (“FPA”). This anti-discrimination law overturns a Supreme Court ruling that established a short statute of limitations. Under the new law, employment discrimination claims are certain to increase. The Act takes effect as if enacted on [...]

Analysis of Technology Spending Underscores Key Appraisal Concepts

Fulcrum regularly appraises patents, technology, and other intellectual property.  We often encounter resistance from those who are seeking large appraised values to support sales or financing.  When the technology has not been successfully exploited, and there are no tangible plans for such exploitation, the clients often exclaim, “How can the value be this low?  You [...]

2019-01-15T10:08:13-07:00Valuation and Appraisal|

Using Statistics To Establish (Or Disprove) Relationships

February 2011 Statisticians describe independence as whether the occurrence of one event or characteristic makes it neither more nor less probable that other event(s) or characteristic(s) occur(s). The chi-square and Fisher exact tests described below are the most widely used tests for evaluating independence of variables. The classic tool for teaching probability involves placing different [...]

RIF Statistical Audits Reduce Discrimination Risks

March 2009 Unfortunately, current difficult economic times are forcing many employers to lay off employees. Employers considering a reduction in force (RIF) can reduce risk of discrimination allegations through relatively inexpensive pre-RIF statistical testing. When compared to the cost of litigation, testing before final conclusions are reached is an inexpensive check on the proposed actions. [...]

Valuation Case Instructs Controversial Valuation Topics, And The Proper Use Of Expert Witnesses

A 2006 case from the Delaware Chancery Court (Open MRI vs. Kessler - Case No. C.A. 275-N) addresses several current valuation issues. However, in the process of explaining its rationale, the Court also provides important reminders regarding how (not) to handle expert testimony. Important Valuation Principles Perhaps the most important (and currently the most controversial) [...]

2019-01-16T12:34:23-07:00Valuation and Appraisal|

How To Select The Right Form Of Electronic Discovery

February 2007 The form in which you receive electronically stored information can make or break a case. The new FRCP rules provide for document production in various forms. Selecting the proper form in your situation can save costs, and/or provide additional information. There are four primary forms of production: Native Semi-native Paper Semi-paper As described [...]

2019-03-04T10:35:49-07:00Discovery Advice|

High Personal Cost Risk When Whistleblower Anonymity Is Not Maintained

February 2007 A February 2007 study by three professors looks at 230 of the U.S.’s largest public company frauds disclosed between 1996 and 2004. The study, entitled “Who Blows the Whistle on Corporate Fraud?” addresses how each fraud was discovered. Consistent with every other study on the subject, employee whistleblowers are the largest discovery mechanism. [...]

Calculating Sample Size

Sampling is an accepted way of making estimates at a much lower cost and when done properly, statistics can provide useful information regarding the likelihood that information obtained from the sample is representative of the entire population from which the sample was taken. This article provides a primer of information that the person considering a [...]

IRS Issues Guidance on Appraisal Standards

November 2006 The Internal Revenue Service (IRS) released Notice 2006-96, which provides guidance regarding the meaning of “qualified appraiser” and “qualified appraisal” contained in Internal Revenue Code (IRC) Section 170(f)(11).  This portion of the IRC requires that a taxpayer substantiate the value of non-cash charitable contributions by obtaining an appraisal of the donated property. Appraisals [...]

2019-02-05T13:06:07-07:00Valuation and Appraisal|

Fair Value Accounting Gets Additional Guidance

October 2006 The Financial Accounting Standards Board (FASB) issued Statement 157 entitled "Fair Value Measurements" on September 15, 2006. The statement defines fair value, establishes a framework for measuring fair value in generally accepted account principles (GAAP), and expands disclosure about fair value measurements. The statement does not require new fair value measurements, but it [...]

2019-02-05T13:02:13-07:00Valuation and Appraisal|

Alter-Ego Allegations Require Expert Accounting Assistance

March 2013 Alter-ego is one of the most commonly alleged equity-based principals.  Where the facts warrant, courts will disregard the separate legal existence of corporations (including LLCs) and its shareholders (or members).  The purpose of "piercing the corporate veil" is to prevent the abuse of corporations, and thereby protect creditors who might otherwise not be [...]

Best Practices In Whistleblower Systems

November 2012 A whistleblower hotline is probably the easiest and least expensive means available to improve corporate governance.  Waste, fraud, and the abuse of authority can all be combated by having an independent reporting mechanism that uses employees to report malfeasance. Public companies are required by Section 301(4) of the Sarbanes Oxley Act to have [...]

Claim Preparation Tips For Business Interruption Insurance

September 2012 Beyond the physical property loss, your business will incur significant additional costs and will not be as profitable as before.  Most businesses have business interruption (BI) insurance to address these risks.  However, getting a proper claim prepared and paid will likely be a challenge.  The tragedy that caused your business interruption may have [...]

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