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## Posts

- [About Us](https://www.fulcrum.com/about-us/) - Fulcrum is a financial and economics consulting firm specializing in complex litigation, investigation and appraisal issues.
- [Avoiding Common Mistakes When Selecting An Expert Witness](https://www.fulcrum.com/selecting_an_expert_witness-htm/) - The following suggestions are intended to help attorneys avoid common mistakes in selecting an expert witness.
- [The Ten Commandments Of Demonstrative Evidence In Litigation](https://www.fulcrum.com/demonstrative_evidence/) - If you want to improve your chances of success, commit these ideas to stone. Then follow them religiously.
- [Improving Your Expert Deposition Results Is Easy](https://www.fulcrum.com/improving_expert_deposition_results/) - 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. 
- [Improving Cross-Examination Of Expert Witnesses](https://www.fulcrum.com/cross-examination_of_expert_witnesses/) - In many respects, the cross-examination of an expert witness is the same as for other witnesses. However, there are some important differences.
- [Helping Your Expert Witness Succeed](https://www.fulcrum.com/expert_witness_success/) - Assume that as part of your representation of your client, you have hired the best expert available. What do you do next to improve your chances for success?
- [Questionable Claims Regarding the Lost Earnings of a Professional Athlete](https://www.fulcrum.com/questionableclaims/)
- [The Value of Higher Education in Lost Earnings Claims May Not Be What You Think](https://www.fulcrum.com/valueofhighereducation/)
- [Chi-Square Statistical Test Evaluates Independence](https://www.fulcrum.com/chi-square/) - We explain this widely used and valuable test, other statistical alternatives, and non-discrimination uses. But the pièce de résistance is the online calculator that you can use yourself.
- [An Interactive Settlement Tool May Streamline Negotiations in Lost Earnings Matters](https://www.fulcrum.com/settlement_tool/) - A semi-automated settlement tool gives you the benefit of calculations and charts based on the facts of your case without the cost of expert time. We summarize how you can use this tool to investigate inputs and build scenarios, prepare a detailed, analysis-based settlement demand/offer and evaluate your opposing party’s position
- [Selecting Discount Rates For Personal Injury & Employment Damage Calculations](https://www.fulcrum.com/personal-injury-discount-rates/) - The majority of these economic damage calculations use discount rates that are too low. We provide an interactive calculator and related explanations. The same calculator also provides insights into your personal investments.
- [The Appropriate Discount Rate In A Lost Earnings Claim](https://www.fulcrum.com/lost-earnings/) - The discount rate methodology employed by many experts can provide Plaintiff with an impermissible windfall. We summarize the rules across various jurisdictions and provide a methodology that is economically sound.
- [Halloween Creates More Tricks than Treats in the Courts](https://www.fulcrum.com/halloween-ip-infringement/)
- [An Ill-Fated Scheme and a Voodoo Spell](https://www.fulcrum.com/fraud-and-voodoo-spell/)
- [Valuation Guide:  Trucking Companies](https://www.fulcrum.com/valuation-guide-trucking-companies/) - The trucking industry in the U.S. comprises both local and long-distance freight transportation (SIC 4213, NAICS 484000).
- [Supreme Court To Address Use of Statistics For Class Action Certification](https://www.fulcrum.com/statistics-for-class-action/) - The Supreme Court has agreed to re-visit the use of statistics to demonstrate the commonality required for class certification. We describe the case under review and how restricting the use of statistical sampling and related inferential statistics will seriously erode the ability of many groups of similarly situated individuals to achieve class certification and calculate damages.
- [Another Example Of False Economy When Presenting Damages](https://www.fulcrum.com/false-economy/) - A plaintiff with a large verdict against accounting giant KPMG lost its award because the appellate court could not find evidence that would support the damages.
- [Important Guidance On Commercial Damages in Court Decision](https://www.fulcrum.com/commercial_damages/) - A 2002 case, Energy Capital Corp. v. United States (302 F.3d 1314; 2002 U.S. App. LEXIS 16447), provides guidance on three issues that frequently arise in calculating damages.
- [Improper Expert Testimony Causes Federal Circuit to Reverse Verdict](https://www.fulcrum.com/federal-circuit-reverses/) - The Plaintiff failed to put on a complete damages analysis, yet the jury (and trial court) allowed a huge award. The broader lesson involves the need to present a complete damages analysis at trial using an expert witness who is willing to say “no” when the client’s desired result is clearly ridiculous.
- [Federal Health Care Fraud Enforcement Efforts Recover Record Amounts](https://www.fulcrum.com/healthcare-audit-results/) - A required annual report reported a record $4 billion in recoveries, and significant criminal prosecution. We describe the audit and statistical processes involved.
- [Poor Surveys Get Opposite Poll Results](https://www.fulcrum.com/poor-surveys/) - The possibility of bias warrants scrutiny of the methodology and questions used. We provide two poll results by nationally-known organizations that asked seemingly similar questions, yet provided quite different answers. We explain why, and provide a related humorous video.
- [RIF Statistical Audits Reduce Discrimination Risks](https://www.fulcrum.com/disparate-impact/) - Employers contemplating a reduction in force (RIF) can reduce exposure to discrimination claims through relatively inexpensive pre-RIF statistical testing. When compared to the cost of litigation, testing before final conclusions are reached is an inexpensive check. We review recent disparate impact cases, and provide best practices for avoiding litigation.
- [Beware Of Poll Results](https://www.fulcrum.com/poll-results/) - Ever wonder why different polls give such different answers? We compare the groups that AP, Gallup, and Rasmussen are using for their respondents. Of course the results come out differently!
- [Exxon Punitive Damages Case Has Broader Implications](https://www.fulcrum.com/exxon-punitive-damages/) - In deciding to limit punitive damages to no more than related compensatory damages, the U.S. Supreme Court set forth principles that go beyond maritime law.
- [U.S. Supreme Court Addresses Punitive Damage Limitations](https://www.fulcrum.com/court_address_punitive_damages/) - In the largest wrongful death damages award ever assessed against Philip Morris, the U.S. Supreme Court overturned the punitive damage award because the jury heard argument that the punishment should include victims who were not part of the current case. We summarize what happened. Surprisingly, the Court declined to address the existing guidance involving punitive damages not exceeding a single digit multiple of compensative damages.
- [Reasonable Royalty 25% Rule Is Dead](https://www.fulcrum.com/25rule/) - Like any rule of thumb, the 25% percent rule sacrifices accuracy for ease. Yet, the rule has been widely used to calculate reasonable royalty damages for over two decades. Generally speaking, the rule pushed patent infringement damages higher. The Federal Circuit ended the long debate.
- [Federal Circuit Court Of Appeals Provides Guidance On Reasonable Royalty Damage Calculations](https://www.fulcrum.com/resqnet/) - We summarize why plaintiff’s damages expert was rejected, and provide practical suggestions as what to do.
- [Perhaps $2 Billion Owed Under Music Contracts](https://www.fulcrum.com/music-contracts/) - Downloads of older singles were 648.5 million. If only half of the sales are under the older contract forms, damages would be around $2 billion.
- [FASB Toughens Off-Balance-Sheet Accounting](https://www.fulcrum.com/fasb-toughens/) - An important accounting rule change will be finalized this month that will result in $900 billion in liabilities being put on the balance sheets of the nation's 19 largest banks that just completed the Treasury’s stress tests. Some banks will have to record related losses that have previously been hidden.
- [Federal Circuit Approves Evidence Of Both Settlements And Related Negotiations In Reasonable Royalty Damages](https://www.fulcrum.com/reasonableroyalty_damage/) - Over the last few years, the Federal Circuit changed dramatically the damage evidence allowable in patent cases. Now, details of settlement negotiations are discoverable and admissible. Could this be a precedent for other cases?
- [Nash Bargaining Solutions In Patent Damages Is Not Always A 50%/50% Split](https://www.fulcrum.com/nashbargaining/) - Since the Federal Circuit banned the 25 percent rule for reasonable royalty damages calculations, some plaintiffs have advanced a 50%/50% profit split using the Nash Bargaining Solution. We describe why this model does not provide a replacement (and significantly more generous to plaintiffs) rule of thumb that can be relied upon for a proper damage calculation.
- [Regulators Find Whistleblower Hotlines To Be Effective...You (Or Your Clients) Should Be Talking To These Employees First](https://www.fulcrum.com/whistleblower_hotlines_effective/) - The SEC has already had great success with anonymous employee hotlines. Last week, the PCAOB opened its system. Public companies operating internal systems to comply with Sarbanes-Oxley Section 301(4) should rethink this decision.
- [Best Practices In Whistleblower Systems](https://www.fulcrum.com/best_practices_whistleblower/) - A whistleblower hotline is probably the easiest and least expensive means available to improve corporate governance.
- [Employers Should Implement Whistleblower Reporting Changes Because Of The Dodd-Frank Act](https://www.fulcrum.com/whistleblower-under-dodd-frank-2/) - Commonplace whistleblower reporting solutions use either (i) internal-only resources, or (ii) telephone answering services using untrained personnel who read scripts. In light of the dramatic changes to the whistleblower laws under SOX, and the new government-paid bounties payable by the federal government, a more serious approach is needed. We provide practical advice.
- [SEC Issues Final Rules On Their Whistleblower & Reward Program Under Dodd-Frank](https://www.fulcrum.com/whistleblower-under-dodd-frank/) - The SEC did not make changes broadly sought by the business community. To attempt to avoid having the SEC undercut corporate governance programs, employers should implement changes in their programs. We provide the full explanation, including last week’s regulations and practical implementation guidance.
- [Whistleblower Protection Does Not Require Fraud On Shareholders](https://www.fulcrum.com/fraud_on_shareholders/) - In contrast to the interpretation held by many companies, fraud on shareholders is not a prerequisite to whistleblower protection under Sarbanes Oxley. We summarize a recent case that clarified the breadth of whistleblower protection under the Act and suggest best practices for avoiding similar problems
- [DOL Continues To Ignore And Rewrite SOX’s Whistleblower Law](https://www.fulcrum.com/dol-ignores/) - Complaints involving this portion of SOX are initially administered though the Department of Labor’s OSHA. OSHA has dismissed almost half of employee complaints based on a strained interpretation of the law, and has substantively ruled against the employee in most of the rest of the actions. The authors of this portion of SOX have demanded change.
- [SOX Whistleblower Protection Covers Certain Private Company Employees](https://www.fulcrum.com/priv_employ_wb/) - 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, including advisors, law firms and accounting firms. We summarize SOX’s anti-retaliatory provisions and how an external whistleblower hotline serviced by accounting professionals can limit a company’s exposure to claims.
- [Financial Experts Improve Bankruptcy Litigation Results](https://www.fulcrum.com/improve-bankruptcy-litigation/) - Bankruptcy is largely a financial negotiation. The cost of getting expert appraisal and accounting assistance is a fraction of the “prize” that is being negotiated. We review the bankruptcy process and explain opportunities where financial expert help is necessary.
- [Valuation Guide: Fast Food Franchise](https://www.fulcrum.com/fastfood_appraisal/) - There are four different types of valuation methods that can be used to value fast food companies
- [Valuation Guide: Advertising Agencies](https://www.fulcrum.com/appraisal_advertising-agencies-2/) - Ad agencies (SIC 7310, 7311; NAICS 541810) are traditionally known to prepare and place ads through magazines, newspapers, the internet, television and radio.
- [Valuation Guide: Online Dating Industry](https://www.fulcrum.com/onlinedating_appraisal/) - valuation guide for online dating and matchmaking services
- [Cannabis Valuation Guide](https://www.fulcrum.com/cannabis-valuation-guide/)
- [Valuation Guide:  Casinos](https://www.fulcrum.com/valuation-guide-casinos/)
- [The International Community Has Different Opinions On Mandatory Auditor Rotation](https://www.fulcrum.com/auditorrotation/) - While the European Community is examining ways to increase competition among audit firms, the U.S. has recently acted to prohibit mandatory auditor rotation. We describe the different proposals and motivations.
- [10b5-1 Plans Deserve Greater Scrutiny by Boards of Directors](https://www.fulcrum.com/105b1_plan_abuse/) - 10b5-1 plans allow insiders to sell stock without incurring allegations of unlawfully using insider information. A recent academic study concludes these plans are generating unexpected profits because of abuse that circumvents the plans’ initial intentions. The amounts involved are substantial. Could this be the next big corporate scandal? We provide background and suggestions to Boards of Directors.
- [Delaware Case Alters Existing Practice Regarding Use Of Special Committees](https://www.fulcrum.com/delaware_case/) - A recent case found a waiver of the attorney-client privilege in circumstances that regularly occur when a Special Committee of the Board of Directors shares its findings with the entire Board. The case provides practical problems for Boards that attempt to exercise their normal fiduciary responsibilities whenever plaintiffs name individual Board members as defendants.
- [Electronic Data Is Always Difficult … If You Don’t Try](https://www.fulcrum.com/obama-small-contributions/) - Comments by the Obama campaign express a common belief that this data stuff is just too complicated. It really isn’t. We offer our pro bono services to both campaigns to improve visibility into campaign financing. Our work will assist in understanding whether/how outdated campaign laws should be altered.
- [MF Global Trustee Reports Significant Management Malfeasance](https://www.fulcrum.com/mfglobal/) - In the eighth-largest U.S. bankruptcy, up to $1.6 billion of customer assets are missing. A trustee report indicates that initial disclosures and explanations were untruthful.
- [Standard Chartered Bank Still In Trouble Over Iranian Money Laundering Fraud](https://www.fulcrum.com/standard-charter-bank-still-in-trouble-over-iranian-money-laundering-fraud/) - A $340 million settlement with one regulator is just the start. The regulator claims Big Four firm Deloitte directly assisted the cover-up of over $250 billion of illegal transactions.
- [PCAOB Issues Second Mixed Report On Audits By Smaller Firms, But Ultimately Puts Them On Par With Larger Firms](https://www.fulcrum.com/pcaob_mixedrpt/) - On February 25, 2013, the Public Accounting Oversight Board (PCAOB) issued its summary report on smaller accounting firms. We summarize the findings, including the conclusion that there is “no evidence of any correlation between the size of a firm and its ability to perform an audit that complies with PCAOB standards”.
- [Research On Compensation And Fraud Point to the Fraud Triangle](https://www.fulcrum.com/fraud-triangle/) - A study in The Journal of Financial Economics suggests that certain compensation structures necessitate increased vigilance for fraud. We describe how this new research fits into the long established fraud triangle, a framework of the three elements that enable fraudulent activity.
- [CAQ Proposes Audit Quality Indicators To Assist Audit Committees With Oversight](https://www.fulcrum.com/caqoversight/) - Regulators and standard setters, such as the Public Company Accounting Oversight Board and the International Auditing and Assurance Standards Board 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”) has issued a proposal for objective measurements for audit work through a definition of audit quality, an audit quality framework, identification of the most relevant indicators of audit quality and how and to whom they should be communicated. We outline the recommendations of the CAQ and the appropriate approach for implementation.
- [Recent SEC Cases Demonstrate A Desire To Hold Audit Committee Members Accountable](https://www.fulcrum.com/auditcommitteeaccountable/) - The Securities Exchange Commission has set its sights on audit committee chairs who fail to exercise appropriate oversight and stewardship over financial reporting, recently targeting two who turned a blind eye to ongoing fraud in the organizations they were tasked with overseeing. We describe the function of an audit committee and alleged failures by these audit committee chairs to uphold the responsibilities that provide the necessary checks and balances to financial reporting and support market integrity.
- [Internal Control Failings At The IRS Contribute to Over $100 Billion in Improper Payments](https://www.fulcrum.com/improper-payments/) - The U.S. Government Accountability Office recently issued a report describing new and ongoing internal control deficiencies at the Internal Revenue Service related to their 2013 and 2012 financial statement audits. We describe how the deficiencies noted contribute to the over $100 billion of improper federal payments reported for 2013 and how certain recommendations would similarly benefit public and private companies.
- [IRS Payroll Tax Amnesty Regarding Independent Contractors Should Be Carefully Analyzed](https://www.fulcrum.com/independent-contractors/) - The IRS is offering a generous amnesty program regarding past misclassification of employees. But, there are other risks and considerations. We review the judgmental factual analysis of the underlying risks.
- [Tax Accrual Workpapers Are Probably Safe From The IRS’s Probing Eyes](https://www.fulcrum.com/tax_accrual_workpapers/) - To maintain accounting records under generally accepted accounting principles, companies need to assess the likelihood of judgmental positions being sustained.
- [Accounting Standard Will Require Significantly More Leases To Be Put On The Balance Sheet](https://www.fulcrum.com/acctingstndrd_leases/) - After more than a year of deliberation, the U.S. and international accounting standard setters agreed on an accounting for leases that generally will be simpler to implement than some of their earlier and more controversial proposals. But not all leases will be treated the same.
- [Punitive Damages That Are Limited To Simple Multipliers Require A Greater Focus On Compensatory Damages](https://www.fulcrum.com/punitive-damages/) - In Nickerson v. Stonebridge Life Insurance Company (B234271, Aug. 29, 2013), the California Court of Appeal affirmed the trial court’s reduction of the jury’s punitive damage award from $19 million to $350,000, despite agreement that the conduct arguably justified the much greater award. We describe the Appellate Court’s conclusions, the limitations applied, and why plaintiffs must focus on fully exploring their compensatory damages in order to fully realize their case’s potential.
- [Statistical Sophistication Would Have Provided A Different Liability Answer](https://www.fulcrum.com/statistical-sophisticat/) - A recently affirmed case by the Sixth Circuit Court of Appeals is a good example of how more robust analysis can provide different results. We describe how use of the commonly-accepted chi-square and Fisher Exact statistical tests could have led to a different Court decision than the simpler “four-fifths” rule (aka 80% rule) applied in this case.
- [Supreme Court Brings California Closer To The Federal Expert Witness Admissibility Standard](https://www.fulcrum.com/sargon/) - The Supreme Court’s unanimous decision is not surprising. What is surprising is that the two out of three Appellate Court justices let stand these large and wild lost profit conclusions. We explain the case and provide practical suggestions.
- [Daubert Provides For Liberal Admission Of Expert Testimony](https://www.fulcrum.com/expert-testimony/) - The Eighth Circuit Court of Appeals recently reversed a district court’s exclusion of three experts under Daubert, citing that both Daubert and the Federal Rule of Evidence 702 require liberal admission of expert testimony. We described the Court’s ruling, which emphasized that the trier of fact should be the one to assess the reliability of conflicting expert opinions.
- [Settlement May Not Provide Class Members with the Benefit They Expect](https://www.fulcrum.com/traderjoesrecenttuna/)
- [First Law Signed By Obama Will Increase Employment Discrimination Litigation](https://www.fulcrum.com/first-law-signed-by-obama/) - By reversing a Supreme Court the statute of limitations ruling, employees are now able to pursue discrimination cases that otherwise would not have been viable. Statistical analysis in these cases will likely be a tool used by both sides.
- [Baby Names As A Marketplace:  What Are Americans "Buying"?](https://www.fulcrum.com/baby-names/) - Recent controversy regarding a court ordered change of a baby’s name from Messiah to Martin raises some interesting questions regarding baby naming trends in America. We use advanced statistical techniques for calculating market concentration and other trend analysis to illustrate how naming patterns have changed over time.
- [California's New Punitive Damage Tax Can Be Problematic](https://www.fulcrum.com/punitive_damage_tax/) - New California Civil Code section 3294.5 gives California 75 percent of certain punitive damage awards. Unless the law is changed, California will never see a dime from its new tax. For lawyers, the law is important because it will frame negotiations between plaintiffs and defendants, and between plaintiff lawyers and their clients. Federal tax law creates an even larger problem for the successful plaintiff.
- [Federal Circuit Throws out Economic Damages as a Double Recovery](https://www.fulcrum.com/double_recovery/) - A recent case explained under what circumstances damages from multiple causes of action are allowed. The issue is avoiding an impermissible double recovery. We explain the damages principles that you should be using.
- [Court-Appointed Expert Will Likely Have The Final Word On Damages In Oracle vs. Google](https://www.fulcrum.com/court_appointed_expert/) - The District Court appointed an independent expert on the issue of damages pursuant to rarely-used Rule 706 of the Federal Rules of Evidence. The report is due this week. We review the procedure and our experience as a court-appointed damages expert.
- [Posner Opinion Provides Worthwhile Damage Guidance](https://www.fulcrum.com/posner-opinion-provides-worthwhile-damage-guidance/) - The principles that got the experts in trouble are not unique to patent cases, and are actually quite common. The case provides three worthwhile damages lessons for anyone litigating a commercial damages issue.
- [Lack Of Expert Results In Zero Damages, Despite A Liability Win](https://www.fulcrum.com/failure-to-use-expert/) - In granting Defendant’s motion for summary judgment, a New Jersey federal court found that Plaintiff failed to prove the amount of damages to which it was entitled after successfully proving patent infringement. We summarize the Court’s criticisms of Plaintiff’s decision not to employ a damages expert and why the fact witnesses’ testimony failed to meet the burden of proof.
- [Valuation Guide: Restaurants](https://www.fulcrum.com/restaurants_appraisal/) - There are four different types of valuation methods that can be used to value restaurant companies
- [Valuation Guide: Magazine Publishing](https://www.fulcrum.com/valuation-guide-magazine-publishing/) - The U.S. magazine and periodical industry (SIC 2721, NAICS 511120) includes general interest magazines, trade publications, and academic periodicals.
- [Fraudulent Revenue Recognition Order Causes Rift At The SEC](https://www.fulcrum.com/rift-at-sec/) - The dissenting opinion by one commissioner in a recent SEC settlement agreement has highlighted a leniency trend in SEC enforcement of fraud. We describe the circumstances of this case and the implications for companies and the marketplace.
- [Wrongful Termination Claims May Invoke Whistleblower Protections in COVID-19](https://www.fulcrum.com/wrongful-termination-claims-may-invoke-whistleblower-protections/) - The wave of COVID-19 litigation touches many areas of the law and related damages. We discuss employment-based claims and how third-party whistleblower reporting systems can help minimize both acts and assertions of whistleblower retaliation.
- [Breach of Contract and Economic Damages Claims During COVID-19](https://www.fulcrum.com/breach-of-contract-and-economic-damages-claims-during-covid-19/) - While breach of contract may sometimes be excused by force majeure, parties may disagree as to whether or how the current circumstances apply. We discuss how the pandemic environment impacts lost profits or lost business value under breach of contract claims.
- [Severance Agreements Cannot Dissuade Whistleblower Reports](https://www.fulcrum.com/severance-agreements/) - The SEC has been assessing civil penalties for severance agreements that interfere with whistleblower protections. We describe a recent order demonstrating what provisions the SEC deems improper and the preferred language to ensure that former employees are aware of their rights.
- [Fraud in the Time of Coronavirus](https://www.fulcrum.com/fraud-coronavirus/)
- [Asset Impairment and Other Financial Reporting Considerations Surrounding COVID-19](https://www.fulcrum.com/asset-impairment-covid-19/)
- [Valuation Guide: Dry Cleaners](https://www.fulcrum.com/drycleaning_appraisal/) - There are four different types of valuation methods that can be used to value dry cleaning businesses
- [Price Gouging in an Emergency](https://www.fulcrum.com/price-gouging/)
- [Claim Preparation Tips For Business Interruption Insurance](https://www.fulcrum.com/claim_preparation/) - The insurance company has plenty of professionals to look after their interests. Here is what the insured needs to do to obtain a fair recovery of its losses.
- [Recovering Coronavirus Related Lost Profits through Insurance](https://www.fulcrum.com/coronavirus-lost-profits/)
- [Defendants of TCPA Class Actions Just Got Some Help to Lower Damages](https://www.fulcrum.com/defendants-of-tcpa-class-actions/)
- [When Employee Dissatisfaction Becomes Employee Theft](https://www.fulcrum.com/employee-theft/) - Many organizations suffer from varying levels of employee discontent. Certain employees may feel, rightly or wrongly, that they are not being properly compensated for their contributions or otherwise treated incorrectly. Some of these employees, feeling their own financial pressures and given the opportunity, will take matters into their own hands.
- [Valuation Guide: Auto Dealerships](https://www.fulcrum.com/auto_appraisal/) - 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.
- [Valuation Guide:  Insurance Broker](https://www.fulcrum.com/valuation-guide-insurance-broker/)
- [Valuation Guide: Auto Repair Shops](https://www.fulcrum.com/auto-repair-shops/) - There are three different types of valuation methods that can be used to value auto repair shops
- [Valuation Guide: Hotels](https://www.fulcrum.com/hotel_appraisal-2/) - Capitalization rates are primarily used when valuing hotels.
- [Valuation Guide: Retail Clothing Store](https://www.fulcrum.com/clothing_appraisal/) - There are three common valuation methods that are used to value retail type businesses
- [Valuation Guide: Coin Laundry (Laundromat)](https://www.fulcrum.com/coinlaundry_appraisal/) - There are four different types of valuation methods that can be used to value coin-operated laundry businesses
- [Valuation Guide: Gas and Convenience Store](https://www.fulcrum.com/conveniencestore_appraisal/) - There are four different types of valuation methods that can be used to value gas and convenience stores.
- [Valuation Guide: Wholesale Distribution Companies](https://www.fulcrum.com/wholesale_appraisal/) - There are four different types of valuation methods that can be used to wholesale distribution companies.
- [Valuation Guide: Newspaper Publishing](https://www.fulcrum.com/valuation-guide-newspaper-publishing/) - The newspaper industry (SIC 2711-98, NAICS 511110) is engaged in the publication of daily, weekly, and bi-weekly newspapers as well as Internet news services.
- [Valuation Guide: Pharmaceuticals](https://www.fulcrum.com/valuation-guide-pharmaceuticals/) - The pharmaceutical industry (SIC 2834, NAICS 325412) consists of companies engaged in manufacturing and developing prescription and over-the counter drugs.
- [Valuation Guide:  Dental Practices](https://www.fulcrum.com/dentalpractice_appraisal-2/) - There are four different types of valuation methods that can be used to value dental businesses
- [Valuation Guide: Hair and Beauty Salons](https://www.fulcrum.com/appraisal_salons/) - Valuation Guide: Hair and Beauty Salons
- [Valuation Guide:  Art Dealers and Galleries](https://www.fulcrum.com/valuation-guide-art-dealers-and-galleries/) - Guide to revenues, trends, and the valuation of companies engaged in the art gallery and art dealer industry (NAICS 453920, SIC 5999).
- [Valuation Guide: Grocery Stores](https://www.fulcrum.com/grocerystores_appraisal/) - Valuation Guide for Grocery Stores
- [Valuation Guide: Cargo Shipping](https://www.fulcrum.com/cargoshipping_appraisal/) - valuations of cargo shipping
- [Valuation Guide: Medical Device Industry](https://www.fulcrum.com/medicaldevice_appraisal/) - valuation guide for the medical device industry
- [Valuation Guide: Movie Theaters](https://www.fulcrum.com/valuation-guide-movie-theaters/) - The movie theater industry (SIC 7830, NAICS 51213) is engaged in exhibiting motion pictures in movie theaters, film festivals, and drive-in theaters.
- [Lost Health Benefits May Be A Shrinking Component of Lost Compensation Claims](https://www.fulcrum.com/lost-health-benefits-may-be-a-shrinking-component-of-lost-compensation-claims/)
- [Study Offers Statistical Evidence on the Value of Whistleblower Reporting Systems](https://www.fulcrum.com/value-of-whistleblower-reporting/)
- [Survey Reports Substantial Pressure to Misrepresent Financial Results](https://www.fulcrum.com/survey-reports-pressure/)
- [Damages from Misuse of Kardashian’s Assets](https://www.fulcrum.com/misuse-of-kardashians-assets/)
- [Historic Material Adverse Effect Ruling Demonstrates What It Takes to Establish One](https://www.fulcrum.com/historicmae/)
- [Tax Implications for Litigation Settlements and Awards](https://www.fulcrum.com/taximplicationslitigation/)
- [Daubert Challenge Threatens Class Certification](https://www.fulcrum.com/daubertchallenge/) - While Daubert provides common challenges to the admissibility of expert testimony, inconsistent positions regarding its applicability at the class certification stage remain.
- [Special considerations on hurricane-related insurance claims](https://www.fulcrum.com/special-considerations-on-hurricane-related-insurance-claims/)
- [The Deepening Crisis of Financial Elder Abuse](https://www.fulcrum.com/elder-abuse/)
- [Federal Circuit Allows Flexibility in Determining Royalty Rate](https://www.fulcrum.com/federalcircuitflexibilityroyalty_rate/) - 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).
- [Extraordinary Sentence Handed Down in Ponzi Scheme Case](https://www.fulcrum.com/extraordinarysentence/) - Roughly 7,000 victims in a Ponzi scheme perpetrated in the UAE recently had their day in court, to an extraordinary result.
- [Calculating Future Lost Earnings with No Earnings History](https://www.fulcrum.com/calculatingfuturelostearnings/) - One common point of disagreement amongst opposing sides of a lost earnings case is future earnings, especially when the claimant has no meaningful earnings history. This typically occurs in personal injury cases in which the injured party is a child or an adolescent.
- [Patent Features Double Count Leads To Daubert Exclusion](https://www.fulcrum.com/patent-features/) - A recent successful Daubert motion highlights the importance of ensuring your damages presentation does not create problems for your damages claim. We describe a recent case where an expert’s damages presentation double counted patent features across patents, putting the entire damage claim at risk.
- [CFTC Awarding 8 Figure Whistleblower Awards](https://www.fulcrum.com/cftcwhistleblower/) - The U.S. Commodity Futures Trading Commission recently announced a $10 million whistleblower award to an unnamed individual whose information facilitated a successful enforcement action regarding violations of the Commodity Exchange Act. We describe the rules surrounding such actions and how this underscores the need for companies to provide employees with a safe internal outlet for their concerns.
- [Another Major Vendor Billing Fraud Hits The Entertainment Industry](https://www.fulcrum.com/vendorbillingfraud/) - Two recent high profile cases of vendor fraud allegedly perpetrated by entertainment executives have cost their respective companies millions. We describe these vendor billing schemes and provide recommendations for preventing and detecting them.
- [Ninth Circuit Invites More Qui Tam Cases](https://www.fulcrum.com/qui-tam/) - The US Court of Appeals for the Ninth Circuit has opened the door significantly wider for those who wish to pursue qui tam False Claims Act suits. We describe the reduced criteria for qualifying as an “original source” of information and why companies would be wise to make every effort to encourage internal reporting.
- [SEC Utilizes Big Data And Statistics To Target Trading Fraud](https://www.fulcrum.com/secbig-data/) - The SEC recently announced its first fraud charges derived from tracking behavior using data analytics of large volumes of investment advisors’ trade allocation detail. We describe how the target was identified and investigated and how these practices can lead to early identification of perpetrators who might otherwise long go undetected.
- [GAO Tells SEC to Look in the Mirror Regarding Internal Control Failures](https://www.fulcrum.com/sec-internal-control-failures/) - The GAO, a government watchdog, has alerted the SEC to internal control failures involving its own affairs. We described the deficiencies at the SEC, the GAO’s recommendations, and how all companies should regularly examine their internal control policies and practices.
- [Court Requires Expert Witness to Have a Body and a Brain](https://www.fulcrum.com/expert-witness-body-and-brain/) - A recent ruling demonstrates why a corporation cannot serve as your expert witness. We describe the court’s rationale in concluding that expert testimony requires elements with which a corporation cannot comply, despite its “personification” under the law in other circumstances.
- [Planning For FASB’s New Revenue Recognition Standard](https://www.fulcrum.com/revenue-recognition/)
- [Costs Excluded From Prejudgment Interest Calculation In Personal Injury Award](https://www.fulcrum.com/personal-injury-award/) - The California Court of Appeals has ruled in a recent personal injury matter that the prejudgment interest available to plaintiffs on damages does not extend to awarded costs of litigation. We describe the basis for the ruling and how statutory prejudgment interest does not generally capture the time value of money as a discount rate for future damages calculated by an expert would
- [GAO Reports Worsening Improper Payments](https://www.fulcrum.com/gao-reports/) - The GAO recently summarized US Comptroller General Gene L. Dodaro’s testimony before Congress with regard to government efficiency and effectiveness, reporting that for the first time in recent years, the government-wide improper payment estimate has significantly increased. We describe the sources of the increase and how healthcare providers should be on guard against possible improper use of statistical extrapolations by government auditors.
- [FASB Says There’s Nothing Extraordinary About Your Financials](https://www.fulcrum.com/financials/) - FASB has issued its first accounting standards update of 2015, which eliminates the concept that extraordinary items require separate income statement reporting. We describe the change and its intended benefits.
- [Tax Relief Available to Ponzi Victims](https://www.fulcrum.com/ponzi-victims/) - With tax season in full swing, everyone is looking for additional deductions. One rarely used deduction is available to those who suffered a theft loss associated with a Ponzi scheme. We describe the circumstances and basis for calculating a deductible theft loss and include reference to advice on how to avoid a Ponzi scheme altogether.
- [Case Demonstrates the Limits of Whistleblower Protection](https://www.fulcrum.com/limits-of-whistleblower/) - A recent case has provided new guidance on who is a protected whistleblower. We discuss the application of the plain language definition of employee that resulted in summary judgment in favor of the defendant and denied the plaintiff whistleblower protection.
- [New Rules for Patent Royalty Arrangements May be Coming](https://www.fulcrum.com/new-rules-patent-royalty/) - Royalty arrangements within patent licenses have long been constrained by an almost 50 year old Supreme Court decision in Brulotte v. Thys Co that prevents collection of royalties after a patent has expired. We describe how this governing precedent conflicts with economic principals and the path that may end it its reversal.
- [Whistleblower Program to Pay $30 Million for a Late Report from Overseas](https://www.fulcrum.com/whistleblower-overseas/) - The 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. We describe the circumstances of the award and the associated corporate governance lessons.
- [Appeals Court Says Missing Information Doesn't Prevent Business Valuation](https://www.fulcrum.com/business-valuation/) - When performing a valuation of an opposing side’s company in litigation, the discovery process and the availability of relevant information are often issues that makes valuation more difficult, but not impossible. We discuss a recent divorce proceeding where a husband convinced a Trial Court that no value could be ascribed to a business for which he provided scant and conflicting data. However, the Appeals Court supported the wife’s CPA expert in finding that the available evidence was sufficient to establish a finding of value.
- [New Rules Aimed At Increasing Auditor Scrutiny Of Critical Fraud Areas](https://www.fulcrum.com/critical-fraud/) - The Public Company Accounting Oversight Board has issued new rules targeting three critical audit areas to combat financial reporting fraud: (i) related-party deals, (ii) significant unusual transactions, and (iii) financial relationships with executives. We describe the new rules and their implications.
- [Ninth Circuit Overturns Daubert Exclusion, Again Noting Trial Court Is A Gatekeeper, Not A Fact Finder](https://www.fulcrum.com/fact-finder/)
- [Spring Break Turns Sour For Investor](https://www.fulcrum.com/spring-brk/) - Division Entertainments, LLC and Wicks Walker v. Spring Breakers LLC and Muse Productions, Inc. et al. provides another instance of “Hollywood Accounting” and business practices on trial, with a neophyte film investor questioning how a successful film has not provided him a return on his investment. We describe the main contentions and why the circumstances in the complaint provide sufficient red flags to warrant further investigation.
- [Disgorgement Remedy Potentially Broadened By Second Circuit](https://www.fulcrum.com/disgorgementremedy/) - 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 in an insider trading action brought by the Securities and Exchange Commission. We summarize the finding and rationale, which presumably could be applied in other wrongful conduct.
- [The True Cost Of Lowering Audit Fees Is Increased Restatement Risk](https://www.fulcrum.com/increased-restatement-risk/) - In association with general cost cutting measures over recent years, many companies have put downward pressure on audit fees. The question is whether audit quality has been sacrificed in order to achieve these reductions. We describe a recent study that investigates this situation and warn of the unintended consequences of this trend, including the potential for litigation if a restatement is required.
- [Reducing The Valuation Gap In Business Transactions](https://www.fulcrum.com/valuation-gap/) - Pepperdine University’s recently released Private Capital Markets Project (“PCMP”) discusses how a failure to come to terms on valuation conclusions often prevents deals from closing and provides some interesting statistics, including how 41% of angel investors surveyed rely simply on “gut feel” valuations. We summarize how compliance with Uniform Standards of Professional Appraisal Practice (“USPAP”) improves the quality of appraisals and provides a basis for informed decisions and value conclusions that withstand scrutiny.
- [Newly Accelerated Damages Discovery Requires Immediate Expert Assistance](https://www.fulcrum.com/damages-discovery/) - The Eastern District of Texas has created a path to accelerated damage discovery in patent litigation with the issuance of General Order 14-3, which provides early disclosure of (i) plaintiff’s license and settlement agreements for the patents in question, (ii) defendant’s summary sales information, and (iii) a non-binding good faith damage calculation. We summarize the order and how this timeline allows for educated settlement discussions much earlier in the process with the proper expert involvement
- [Average Time To Regain Investor Confidence May Be Longer Than Previously Believed](https://www.fulcrum.com/regain-investor/) - When a financial restatement is necessary, it takes time to regain investor trust. A recent study suggests the duration of this recovery is longer than previously believed. We summarize the study’s key findings and how event studies are used to calculate damages associated with a particular restatement.
- [Valuation Conclusions for Michael Jackson’s Estate Differ by Over a Billion Dollars](https://www.fulcrum.com/michael-jacksons-estate/) - The IRS is seeking 40% penalties due to a billion dollar difference between its assessment of the value of Michael Jackson’s estate and the value claimed by the estate itself. We summarize the value differences and describe how to properly value a celebrity’s right of publicity.
- [New Standard For Revenue Recognition Standards Is Coming](https://www.fulcrum.com/revenuerecognition/) - FASB and the International Accounting Standards Board are finalizing a new, unified revenue recognition standard for those reporting based on GAAP or IFRS. We describe the changes that are coming and how it will impact financial reporting of not only revenues and profits, but also overall processes, commission structures and any revenue or profit-related targets or earn out agreements.
- [Addressing The Seventh Circuit's Concerns Regarding Consumer Surveys In Litigation](https://www.fulcrum.com/consumer-surveys/) - In discussing a consumer survey in Kraft Foods Group Brands LLC v. Cracker Barrel Old Country Store, Inc., 2013 WL 6017396, Judge Posner raised concerns regarding the associated risk of survey bias in results provided by experts in a litigation context. We describe how to properly design a survey without bias that will withstand court scrutiny.
- [When Is A Whistleblower Not A Whistleblower?](https://www.fulcrum.com/not-a-whistleblower/) - The definition of a whistleblower and the criteria for reliance on associated protections has been the subject of a number of recent cases. In these matters, the reporting method has been the determining factor in whether and what protections are available. We describe two recent cases and the implications for employers
- [Speculative Damages Lead To Summary Judgment](https://www.fulcrum.com/speculative-damages/) - In order to provide evidentiary value, a damage calculation must be based on a reasonable degree of certainty.
- [DOL Rewrites Sox Whistleblower Provision to a New Employer-Friendly Standard](https://www.fulcrum.com/dol_sox_provision-htm/) - 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.
- [Get The Court's Daubert Rationale On The Record](https://www.fulcrum.com/daubert-rationale/) - This First Circuit ruling encourages any litigator sponsoring expert testimony to ensure that the Court memorializes its critique of the Court’s gatekeeping function of expert testimony.
- [Expert Thrown Out After Claiming Major Report "Typos" on Cross Examination](https://www.fulcrum.com/expert-thrown-out/) - A recently affirmed decision to grant judgment for the defendant as a matter of law in Rembrandt Vision Technologies, Inc. v. Johnson & Johnson Vision Care, Inc. highlights the importance of expert testimony that is consistent with previously disclosed opinions presented in a Rule 26 report. We describe the failings of the expert that unraveled the case.
- [AAA Updates Discovery Rules](https://www.fulcrum.com/aaa-revises/) - The American Arbitration Association ("AAA") has made revisions to its Commercial Arbitration Rules. One important area of update is the discovery process. We compare the old and new rules and describe how these new rules should make it easier for arbitrators to streamline discovery and resolve disputes.
- [Lack of Internal Controls Allows Repetitive Small Thefts To Really Add Up](https://www.fulcrum.com/small-thefts/) - A recent article in the Los Angeles Times describes how a small but regular embezzlement of lunch money at a California school district turned into a multi-million dollar fraud. We describe how proper internal controls, including segregation of duties, can prevent such occurrences.
- [Failing to Properly Manage Licensing Agreements Leaves Royalties on the Table](https://www.fulcrum.com/licensing-royalty-audits/) - Companies can improve performance by (i) licensing technology or other intellectual property, and (ii) more assertively performing audits of existing licensees. Both of these areas generate the need for legal assistance. Legal counsel wishing to add value to client services (and who isn’t during challenging economic times?) should inquire about client practices in these areas.
- [The Popularity Spike Of Nobel Prize Winners In The "Dismal Science"](https://www.fulcrum.com/nobel-prize/) - The announcement of the Nobel Prize winners every October means that at least once a year a handful of economists become relatively popular. We describe how the lasting impact of this announcement can be measured using the principles of an event study.
- [Whistleblower Tax Dispute Illustrates What Constitutes A Business And Related Expenses](https://www.fulcrum.com/whistleblower-tax/) - After obtaining a $37 million settlement in the qui tam case he brought against his former employer, a whistleblower went on to a second legal win in his battle with the IRS regarding tax treatment of his award. We describe what factors worked in favor of his tax position regarding deductible business expenses.
- [An Event Study Regarding Which "Presidential Name" Is Most Popular?](https://www.fulcrum.com/presidential-name/) - In response to the popularity of our prior article on baby names and marketplace concentration/trends, we expand our analysis to include an event study exploring the impact of presidential elections on the popularity of the associated president’s name.
- [Is Daubert Overapplied?](https://www.fulcrum.com/is-daubert-overapplied/) - 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. We summarize the proper application and frequent misuse of the Daubert rules.
- [Major Changes In Standard Audit Reports Coming?](https://www.fulcrum.com/standard-audit-reports/) - The Public Company Accounting Oversight Board (PCAOB) is considering changes to the standard auditor's report, which has remained relatively unchanged for decades. We summarize the proposed changes and the potential repercussions.
- [Why Do Some States Offer More Public Holidays?](https://www.fulcrum.com/public-holidays/) - Regressions are employed to determine why some states offer more holidays. Regression analysis can identify demonstrable relationships beyond what appears plausible.
- [Federal Circuit Decision Demonstrates The Risks When Defendants Decline To Calculate Possible Damages](https://www.fulcrum.com/calculate_damages/) - A recent damage award in the hundreds of millions demonstrates the risk when a defendant does not present its own calculation of damages assuming liability. We summarize the factual background and the decision to award Plaintiff’s full claim in the absence of an alternative.
- [New Guidelines To Assist Companies With Fraud Deterrence](https://www.fulcrum.com/fraud_deterrence/) - A recently issued framework from the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”) offers practical advice regarding internal control policy and implementation. We summarize the substance of the framework and the risks of a failure to implement effective internal controls.
- [Neither Expert Nor Inventor Allowed To Opine On Reasonable Royalty Damages](https://www.fulcrum.com/opine-on-royalty-damages/) - A federal judge excluded testimony regarding reasonable royalty damages from both an expert and a percipient witness. We summarize the failings of the expert testimony and the reasons that the proposed percipient testimony was improper.
- [Battling Auditor Involvement In Fraudulent SEC Reporting](https://www.fulcrum.com/fraudulent-sec-reporting/) - Combating fraudulent financial reporting can be difficult, even more so when the auditors either enable the fraud or participate in it. We summarize a recent report regarding instances where auditors and/or audit firms were sanctioned by the SEC for such issues and the steps that can be taken to reduce these types of occurrences.
- [Can Time Series Decomposition Allow Us To Settle The Score On Which Sport Is Best?](https://www.fulcrum.com/timeseries_sport/) - While it might not sway the opinion of any hardcore sports fans, we summarize the relative popularity of various professional and collegiate sports over time (based on Google search term usage statistics) to demonstrate how time series decomposition can improve trend analysis.
- [Court Cites Expert's Inappropriate Reliance On "Outlier" Conclusion Of Value](https://www.fulcrum.com/outlier_conclustio/) - The heavy reliance on the “outlier” valuation of Idearc under the DCF method was rejected by the Court, who was not impressed with the witness’ approach and conclusions
- [SEC Hesitating To Impose Internal Audit Function Requirement On NASDAQ Companies](https://www.fulcrum.com/sec-hesitating/) - A recent Nasdaq proposal to require an internal audit function has been stalled while the SEC considers resistance, mainly from Smaller Reporting Companies. We summarize the proposal and explain how the benefits should outweigh the cost.
- [Why Chocolate Doesn't Create More Nobel Laureates For Your Country](https://www.fulcrum.com/chocolate/) - The New England Journal of Medicine has published an article that improperly makes the leap from correlation to causation. We summarize the failings of the conclusion reached, which are also found in many other analyses.
- [Patent Infringement Damages Under Fire](https://www.fulcrum.com/damages-under-fire/) - The esteemed Judge Posner has gutted another patent infringement damages case. We summarize his criticisms of plaintiff’s reasonable royalty calculation.
- [Seventh Circuit Bars Class Certification Because Of Damages](https://www.fulcrum.com/barsclasscert/) - The Seventh Circuit agreed with the district court’s decision to not certify a class of employees containing wage and hour law violations because the 42 class representatives were not demonstrably representative. We summarize how statistics may have led to a different result.
- [A Roth 401(K) Conversion May Be Advantageous For Those Who Can Afford The Additional Tax Now](https://www.fulcrum.com/roth-401k/) - The American Taxpayer Relief Act of 2012 has loosened the restrictions on converting a 401(k) to a Roth 401(k). We summarize the reasons you should consider making the switch.
- [SEC To Utilize Data Analytics To Identify Accounting Irregularities](https://www.fulcrum.com/data-analytics/) - - The SEC is taking steps to comprehensively analyze the wealth of data available to it to identify areas of potential concern. We summarize the SEC’s approach and potential pitfalls.
- [IRS Whistleblower Program Provides Opportunities For Some, Pitfalls For Others](https://www.fulcrum.com/irs-whistleblower/) - The IRS whistleblower program is increasingly paying off, with a recent jump in awards paid. We summarize the IRS’s whistleblower bounties and the potential downside for those that provide information under the program.
- [The Northern District Court Of California Provides Useful ESI Guidelines That Should Be Duplicated](https://www.fulcrum.com/esi-guidlelines/) - The guidelines and tools offered by the Northern District could prove useful in streamlining your ESI discovery efforts.
- [Government Fraud Recovery Improves, Thanks to Private Citizens](https://www.fulcrum.com/fraud_recovery/) - The government has improved its fraud recovery record, in large part through the efforts of private citizens in exchange for a share of the resulting award.
- [Second Excess Fee And Revenue Sharing 401(k) Trial Again Results In A Big Plaintiff Victory](https://www.fulcrum.com/401k_revsharetrial/) - The case imposed extensive liability on a plan sponsor regarding common practices. Expect increased class action activity in this area.
- [Sixth Circuit Provides Practical Guidance Regarding Expert Testimony Admissibility](https://www.fulcrum.com/practicalguidance/) - Here are four tests to apply to your expert witness evidence.
- [Computer Forensics Deserve A Place In Your Human Resource Toolkit](https://www.fulcrum.com/computer-evidence-in-investigations/) - Employment lawyers, IP lawyers, and in-house counsel should be using computerized evidence as part of their proactive personnel decisions. Computers can provide information about user activities that otherwise might take months to confirm … but only if you look timely. We describe what you will learn, and the best practices to employ.
- [Estate & Gift Tax Set For The Next Two Years](https://www.fulcrum.com/estate-tax-changes/) - No provision of the new tax law is more controversial among Democrats than the estate & gift tax. Regardless of your politics, you should understand these major changes. We provide planning suggestions for the new law.
- [Avoiding A Contingency Fee Tax Trap](https://www.fulcrum.com/contingency_fee_tax_trap/) - The Supreme Court ruled that contingency attorney fees paid by an individual must be included in the taxpayer's income and then deducted.
- [Real Estate Tax Assessment Appeals Start Now](https://www.fulcrum.com/tax-appeal/) - Real estate values are dropping materially. With these value drops comes the possibility that you may be entitled to real property tax relief.
- [California's New Electronic Discovery Law Contains Important Difference From Federal Law](https://www.fulcrum.com/new-ed-law/) - California’s “Electronic Discovery Act” is effective now. While most of this closely follows federal law, there are a few important distinctions. We provide practical guidance on understanding and applying the new requirements.
- [Study Addresses Electronic Storage Best Practices](https://www.fulcrum.com/importance_of_managing_electronic_records/) - The prestigious Advanced Practices Council just released a study that was not intended for lawyers, but which litigators and in-house lawyers should understand. We summarize the recommended best practices, explain why most Information Lifecycle Management applications fall short, and tell you why many lawyers should care.
- [Substantially Reduce Electronic Discovery Costs](https://www.fulcrum.com/reduce_electronic_discovery_costs/) - Electronic storage volumes are growing exponentially. Tools that provide faster legal review of these records are no longer a viable cost solution. But, reliance on Boolean key word searches to reduce volumes leaves some worried that key documents are not being produced. Statistical sampling provides a means of testing and quantifying whether the keyword selections provide a complete solution.
- [IRS Loses Another Case Involving Auditor Work Papers](https://www.fulcrum.com/irs_loses_another_case/) - In Regions Financial Corp. v. United States the IRS lost another battle in its effort to get information from outside accountants’ tax accrual work papers.
- [How To Select The Right Form Of Electronic Discovery](https://www.fulcrum.com/electronic_discovery_data_types/) - Here are the pros and cons of the four major choices that you face, ranging from paper to native electronic discovery. No answer is right in all situations, so we tell you how you should make this important decision.
- [A Primer On Creating & Using Surveys](https://www.fulcrum.com/survey-primer/) - In litigation, surveys are often used in trademark, unfair advertising, and other business disputes to assist in determining issues involving customer behavior. We describe how a poll should be performed and what can go wrong. We end with an example of a terrible survey performed by one of the well-known polling organizations.
- ["Hollywood Accounting" Attack Upheld By The Ninth Circuit](https://www.fulcrum.com/hollywood/) - The agreement between the show’s owner and ABC involving “Who Wants to be a Millionaire” included a 50% share of the profits. But according to the profit participation accounting, the show lost millions of dollars. We describe the issues and effect.
- [DOJ & SEC Issue Guidance on Foreign Corrupt Practice Act](https://www.fulcrum.com/doj-sec/) - The book is useful because it accumulates in one place the DOJ’s and SEC’s frequent FCPA positions, and provides practitioners with guidance regarding these positions. Most interestingly, examples of non-prosecution (and why) are provided.
- [Rules Of Thumb And Other Short-Cuts Are Dangerous For Damage Calculations](https://www.fulcrum.com/formulaic-software-models/) - Plaintiffs often desire short cuts to damage measurements. Given the cost of using experts employing proper methods and data, the temptation is obvious. We summarize a recent case where this evidence, even though based on a widely-used model, was disregarded entirely.
- [Conflicting Rulings About SOX’s Scope Cause Private Company Employees To Stay With DOL Adjudication](https://www.fulcrum.com/soxsscope/) - The Administrative Review Board (ARB) for the U.S. Department of Labor (DOL) recently issued a decision regarding the scope of the whistleblower protections under Sarbanes-Oxley Act of 2002 (SOX).
- [Severance Pay FICA Tax Treatment May Change](https://www.fulcrum.com/ficatax/) - In a decision having significant impact, the Sixth Circuit ruled that payments to employees as part of a severance program are not subject to tax under the Federal Insurance Contributions Act, or FICA. The IRS is fighting the decision. Employers should file protective claims before the statute of limitations runs out.
- [SEC Report Is Relevant To Litigators Presenting Financial Information](https://www.fulcrum.com/secrpt/) - A report issued last week provides insights regarding how little jurors can be expected to understand business records and commercial damage calculations. Skilled expert witnesses, and graphic presentation techniques are required to overcome this challenge.
- [Federal Circuit Corrects Recurring Errors With The Entire Market Value Rule](https://www.fulcrum.com/federal-circuit-corrects-recurring-errors-with-the-entire-market-value-rule/) - A recent reasonable royalty case addresses three issues that arise often in damages calculations.
- [Proposed Changes To Litigation Accounting And Disclosures Are Dropped](https://www.fulcrum.com/sfas5-amendment/) - The Financial Accounting Standards Board (FASB) ended a controversial project that would have required companies to disclose more about contingent losses, including most notably those arising from litigation.
- [Whistleblower Recovery Is Ordinary Taxable Income](https://www.fulcrum.com/whistleblower_income/) - The Ninth Circuit decided a taxation case of first impression involving whether a qui tam recovery provides a taxable capital gain from a sale of property, or ordinary taxable income.
- [The 12 Days Of Christmas - A Lesson In How A Complex Appraisal Can Go Astray](https://www.fulcrum.com/12days_christmas/) - We dissect a price index for the popular carol. Plenty of avoidable mistakes were made.
- [DOL’s ARB Limits SOX & Dodd-Frank Whistleblower Protections To U.S. Employees](https://www.fulcrum.com/dol_arb/) - This case provides substantial protection to multi-national employers.
- [A Primer On Regression Analysis](https://www.fulcrum.com/primer_regressanalysis/) - Regression analysis is a statistical technique that is commonly used in litigation because of its unique ability to ascertain both liability and damages.
- [Statistics Remains A Viable Means Of Gathering A Wide Range Of Factual Evidence](https://www.fulcrum.com/statistics_factualevidence/) - A recent class action reversal is not the landmark relief for defendants that some suggest. Instead, it is a simple statement that the trial court failed to follow basic statistics. We also provide a one-of-a-kind online sample size calculator.
- [Solving Everyday Puzzles Using Regression Analysis](https://www.fulcrum.com/puzzles_regressionanalysis/) - Regression analyses are commonly used in litigation because of their ability to ascertain both liability and damages. We present two real world questions/puzzles as a demonstration.
- [Reasonable Compensation Analysis Needed For Closely-Held Corporations](https://www.fulcrum.com/comp_closelyheld/) - A recent Eighth Circuit decision addressed how much payroll taxes are due from the earnings of the business. While one might view the case as an IRS victory, the case also stands for the proposition that a professional services business does not have to classify all of its earnings as taxable compensation subject to payroll taxes.
- [Seventh Circuit Provides Primer On Regression Analysis And What Can Go Wrong](https://www.fulcrum.com/seventhcircuit_primer/) - In reversing a $66 million jury verdict, the Court provides advice that has wide applicability on how to present a complex damages claim. Apparently, both the plaintiff and defendant were unable to create an understandable presentation.
- [AOL Surprise Sale Shows Value Of Mapping Technology](https://www.fulcrum.com/aol_surprise/) - We summarize the sale and what Microsoft is thinking. Google beware.
- [A Primer For Valuing Options](https://www.fulcrum.com/valuingoption/) - When used with financial instruments, options are a contract between two parties in which one party has the right, but not the obligation, to do something. Usually, the option involves buying or selling an underlying asset.
- [IRS Criticizes Every Marketability Valuation Approach But Does Not Explain What Should Be Done Instead](https://www.fulcrum.com/marketability_discounts/) - Marketability discounts are important in many estate plans and related transfers. The IRS recently released a lengthy practice aid that described its view of the primary tools and methodologies used in this area.
- [Federal Circuit Again Redefines A Reasonable Royalty](https://www.fulcrum.com/reasonable_royalty/) - A royalty significantly exceeding the readily-available gross sales price for the patented product would not normally be considered reasonable. Yet, by focusing solely on the defendant’s costs savings, such a result was upheld.
- [California Passes Tough Law On Independent Contractor Misclassification](https://www.fulcrum.com/independent_contractor_misclass/) - Violators are subject to significant penalties. By creating a private right of action with enormous penalties, expect significant class action litigation.
- [Practical Observations From The Oracle vs. SAP Damages Reversal](https://www.fulcrum.com/oracle_vs_sap/) - Oracle’s $1.3 billion copyright infringement award was reversed last month. We analyze what happened, and explain how this should affect your next intellectual property (or perhaps other large) case.
- [Audit Report Discloses $4.2 Billion Annually Is Paid To Illegal Aliens Through A Refundable Tax Credit, With Practically No Offsetting Tax Revenues](https://www.fulcrum.com/child_credit/) - Last week, an audit by the Treasury Inspector General for Tax Administration recommended changes in how these payments are made. The IRS dismissed the recommendations, saying (without support) that they did not have the authority to do anything more than make the payments.
- [Goodwill Impairment Tests Become Easier](https://www.fulcrum.com/goodwill_valuations/) - This month, the Financial Accounting Standards Board amended guidance that significantly simplifies current procedures. The only losers in this change are the business valuation firms that will no longer receive annual “annuity” business valuation assignments to make the more formal assessments that are no longer required. We also provide a background primer on what goodwill is and how it is treated for accounting purposes.
- [Nortel Bankruptcy Patent Auction Is Biggest Technology Patent Sale Ever](https://www.fulcrum.com/nortel_bankruptcy_patent_auction/) - The final cash price, paid by a consortium of six technology giants, is a surprisingly high $4.5 billion. We review the technology and the purchase motivations. Expect additional patent infringement lawsuits.
- [SOX Whistleblower Protections Again Interpreted Narrowly](https://www.fulcrum.com/sox-protection-interpreted-narrowly/) - The Ninth Circuit took a narrow reading of the whistleblower protections provided under Sarbanes-Oxley, and thereby eliminated the applicability of any whistleblower protection.
- [Keeping Track Of Federal Government Spending Is Supposedly Just Too Hard](https://www.fulcrum.com/too-big/) - The federal government is unable to produce reliable consolidated financial statements. One of the biggest offenders is the Department of Defense.
- [IRS Toughens Position On Deductibility Of Government Settlements](https://www.fulcrum.com/irs-toughens-position/) - The IRS recently issued two pronouncements that specify limited conditions under which settlement payments made to any government will be deductible. Lawyers negotiating settlement agreements will need to be more specific before their taxpayer clients can get a deduction.
- [Punitive Damages Now More Difficult In Patent Cases](https://www.fulcrum.com/punitive_damages_are_now/) - Overturning a 24-year old precedent, the CAFC creates a new standard for when enhanced patent infringement damages apply. Under the new standard, legal opinions are less important, but will probably be obtained by most clients anyhow.
- [Change In “Accredited Investor” Definition Will Cause The Investor Pool For Private Financings To Shrink](https://www.fulcrum.com/accredited-investor/) - The value of one’s primary residence is no longer part of the net worth test.
- [Patent Damages Case Redefines A “Reasonable Royalty”](https://www.fulcrum.com/monsanto_reasonable_royalty_case/) - The Federal Circuit issued a ruling that significantly changes patent infringement damages. By allowing consideration of product benefits received by the potential customer/infringer, the CAFC upheld a royalty that exceeds the gross sales price of the patented product. Under this ruling, plaintiffs will have much more evidence to argue about, and damages will likely increase.
- [Largest Patent Infringement Damage Award Ever](https://www.fulcrum.com/jnj_abbott/) - The plaintiff-friendly Eastern District of Texas, known for its “rocket docket”, dished up a Texas-sized damages award involving a blockbuster drug. The filings, docket, and time incurred look more like a small-time breach of contract case than a $1.7 billion case between industry titans. This district houses 11% of all patent cases nationally, and is the largest jurisdiction for patent cases in the country.
- [Post-Judgment Reasonable Royalty Rates Get Important Additional Guidance](https://www.fulcrum.com/paice-vs-toyota/) - As part of the fallout from the Supreme Court’s eBay decision, trial courts must make separate non-jury findings regarding post-verdict damages when a permanent injunction is not granted. Under this recent case, all other things being equal, the royalty rate will always be higher than what the jury found.
- [New Caution Warranted When Selling To Entities In Bankruptcy](https://www.fulcrum.com/co/) - Although no harm occurred to the estate, the Eleventh Circuit required return of an administrative claim payment. Suppliers should not make post-petition sales until their customer in bankruptcy provides a cash collateral order that protects payments from subsequent recovery. This applies equally to “Cash on Delivery” or COD sales.
- [Expert Witness Federal Rule Changes Take Effect December 2010](https://www.fulcrum.com/aba_proposes_less_expert_witness_disclosure/) - The FRCP amendments would greatly expand work-product protection to the discovery of draft reports and related communications between testifying expert witnesses and retaining counsel. Three limited exceptions are still discoverable.
- [Two Bankruptcy Cases Threaten Secured Lenders’ Position](https://www.fulcrum.com/secured-lender/) - Secured lenders should be concerned about two recent rulings in which the bankruptcy court used its discretion in performing its role as a court of equity. The cases (i) expand the definition of an “insider” to include a creditor with a “close relationship” to a debtor, and (ii) under what circumstances a lender can be equitably subordinated.
- [Affluent Should Consider Roth Conversions In 2010](https://www.fulcrum.com/roth-conversion/) - Starting in 2010, affluent taxpayers can convert assets from a traditional IRA to a Roth IRA. We review the various factors that should be addressed in making this decision. Many affluent taxpayers should take advantage of this in 2010.
- [Litigation Settlement Errors Are Remarkably Common](https://www.fulcrum.com/litigation-settlement-errors/) - A recent statistical analysis demonstrates that litigants should be settling more. A shockingly large percentage of litigants are getting trial results that are substantially worse than the offers they rejected. We summarize the study, when the errors are most common, and how to avoid this situation with better analysis.
- [Employee vs. Independent Contractor Status Receiving Increased Attention](https://www.fulcrum.com/independent-contractor/) - The IRS announced a new audit initiative. In light of employers’ risk under both tax and employment laws, companies and their legal advisors should proactively review this area. We summarize the IRS and employment law rules for making these judgmental decisions.
- [Disgorgement Returned As A Monetary Remedy In Delaware Cases](https://www.fulcrum.com/disgorgement-as-a-monetary-remedy-in-delaware/) - 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 are incorporated in Delaware.
- [Ninth Circuit Reinstates More Lenient Standard For Whistleblower Protection](https://www.fulcrum.com/lenient-standard/) - Because of the DOL’s hostility to whistleblowers otherwise protected under Sarbanes-Oxley, the only real relief for employees has been through the district courts. Last week, the Ninth Circuit made its first ruling on the standard necessary for fired employees to claim protection under SOX’’s whistleblower provisions.
- [GAAP Reorganization Will Cause Short-Term Frustration, But Should Improve Research Capabilities](https://www.fulcrum.com/gaap-reorganization/) - On July 1, 2009, the new “Accounting Standards Codification” (ASC) becomes the sole authoritative accounting guidance for U.S. generally accepted accounting principles. The ASC divorces new codification content from historical pronouncements, and will require certain accounting disclosures to be re-written. Accounting and legal professionals will need to re-learn everything they know about how U.S. GAAP is documented, updated, referenced, and accessed.
- [Litigation: NASD Proposes Modified Arbitration Rules](https://www.fulcrum.com/nasd_rules/) - Because of widespread use of arbitration clauses in the securities industry, the National Association of Securities Dealers conducts practically all securities industry dispute resolutions. New rules regarding the composition/selection of panels, and arbitration rules were proposed this month. In addition to summarizing the rules, we provide a primer on NASD arbitrations.
- [Expert Fees Recoverable In Trade Secret Disputes](https://www.fulcrum.com/trade_secret_cost_recovery/) - Based on the premise that "that complex nature of trade secret law makes the input of an expert witness a virtual necessity in the litigation of any claim," California Civil Code was amended. Recovery of outside expert costs is now allowed when a party acts maliciously or in bad faith. We review common circumstances where experts are useful, and the allowable remedies.
- [A Graphical Explanation Of The Financial Restructuring Process](https://www.fulcrum.com/financial-restructuring/) - Troubled company restructurings are complex endeavors. To be successful, a company must fix both the challenges that caused the problem in the first place, and create revisions to the debt that accumulated from past transactions.
- [California’s Postmortem Publicity Rights Are In Flux](https://www.fulcrum.com/ca_postmortem_publicity_rights/) - 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.
- [Report From Senior Litigators Proposes Dramatic Changes To The Discovery Process](https://www.fulcrum.com/suggested-litigation-reforms/) - The American College of Trial Lawyers (ACTL) and The Institute for the Advancement of the American Legal System at the University of Denver issued a final report that proposes dramatic changes to the federal and state court systems.
- [Ninth Circuit Supports Lone Pine Orders Without Restrictions](https://www.fulcrum.com/lone-pine/) - Although these orders started in mass tort cases, they are being applied more broadly.
- [Detailed Audit Provisions Save Headaches](https://www.fulcrum.com/detailed-audit-provisions/) - The audit provision within many licensing agreements is nothing more than a short paragraph in what may otherwise be a highly detailed document.
- [More Resources Will Be Allocated To Financial Fraud Initiatives](https://www.fulcrum.com/white-collar-investigations/) - Government resources are usually allocated based on the political sentiment of the day. Currently, white collar financial crimes associated with the recession are in favor. We summarize statistics released by the FBI and Treasury department. White collar defense lawyers face improving business conditions.
- [Largest-Ever Ponzi Scheme Hiding in Plain Sight](https://www.fulcrum.com/ponzi-scheme/) - $50 billion was duped from wealthy and otherwise sophisticated investors who could have avoided their losses if they followed some easy rules. We summarize the Madoff scandal, and explain how Ponzi schemes and other financial frauds can be avoided.
- [Business Interruption and Related Insurance Claims](https://www.fulcrum.com/business_interruption/) - If your business has key suppliers or customers in the Gulf Coast area, your business could be significantly affected. This is true even though your own business property may not have sustained physical damage. This frequently occurs because of (i) strategic supplier and customer relationships, (ii) outsourcing agreements, and (iii) just-in-time inventory systems. We explain this specialized type of insurance coverage (called contingent business interruption), and provide additional advice regarding hurricane-related claims.
- [Investment Calculator – Should You Sell Before New Capital Gains Rate Increases Occur?](https://www.fulcrum.com/investment-calculator/) - Normally, a taxpayer is motivated to delay taxes, since taxes reduce the amount available to invest. However, if tax rates are going to increase, taxpayers are potentially motivated to do just the opposite, thereby incurring an accelerated but smaller tax.
- [USPTO Is Getting It Wrong On Tax Strategy Patents](https://www.fulcrum.com/tax_strategy_patents/) - Method patents can cover a wide range of business processes...but not compliance with the Internal Revenue Code. Last week, Congress held a hearing to learn what is happening and why.
- [California Supreme Court Clarifies Permissible Punitive Damages](https://www.fulcrum.com/punitive_damages/) - Two recent California cases interpret an important U.S. Supreme Court ruling. Plaintiffs probably won more than they lost. The rulings will make both punitive damage discovery and trials more complicated.
- [Home Equity Lines Of Credit May Be Dischargeable Even When Borrower Lies](https://www.fulcrum.com/liar-loans-dischargeable-in-bankruptcy/) - A bankruptcy ruling from the Northern District of California could have enormous impact to the subprime loan crisis. Despite finding that the borrowers lied and would otherwise not be eligible for a bankruptcy discharge, the Court concluded that typical “liar loans” which underlie much of the subprime crisis are dischargeable because no lender would have reasonably relied on the representations contained in the loan application.
- [California Appellate Court Limits Punitive Damages in a Commercial Setting to a 1:1 Ratio](https://www.fulcrum.com/punitive_damages_limits/) - In a surprising and important ruling affecting the majority of business litigation, California punitive damages were severely limited. This occurred despite underlying case facts of a fiduciary’s theft that would ordinarily deserve greater punishment. The case makes it even more important to address compensatory damages properly.
- [New M&A Accounting Contains Important Changes](https://www.fulcrum.com/new_merger_accounting/) - We describe the new rules and how they will affect lawyers. Increased valuation assistance will be required to address these new complications.
- [Nonprofit Organizations Need A Whistleblower Reporting Mechanism](https://www.fulcrum.com/whistleblower-for-nonprofit/) - The IRS adopted a substantially revised Form 990 that calls for significantly expanded corporate governance disclosures.
- [Weak Credit and Economic Conditions Cause Litigation Over “Material Adverse Change” Clauses](https://www.fulcrum.com/weak_credit/) - Whenever an economic downturn occurs, litigation over these ambiguous provisions increase. This time is no different. Regardless of whether you represent sellers, buyers or lenders, lawyers are well-advised to pay greater attention to these “standard” provisions. The fact that these provisions are standard does not mean they are well understood.
- [New Advice for Special Committees And Their Financial Advisors](https://www.fulcrum.com/special_committees_and_financial_advisors/) - The Delaware Chancery Court issued an opinion that questions a number of widely-established procedures used when addressing the fairness of merger transactions.
- [Electronic Storage Best Practices](https://www.fulcrum.com/reducing_discovery_costs/) - In-house and outside counsel should be taking leadership and ownership of this area because (i) many of the underlying issues are legal and regulatory, and (ii) lawyers are responsible for most of the hidden costs when this area is handled poorly. We explain why most companies are doing a poor job in this area, and provide practical advice regarding how to address this area properly.
- [How To Get The Discovery You Need From Your Opponent](https://www.fulcrum.com/how_to_get_the_discovery/) - Since practically all business records are now computerized, it makes sense to learn about your opponent’s systems BEFORE you start to make requests. A corporate-representative deposition on electronic-discovery issues should be the very first discovery action you take. When done at the beginning of a case, senseless argument over what information exists and does not exist is avoided, because you then have the benefit of a party admission. We provide a list of records that you should be requesting in this initial deposition.
- [Court Rules Retention Of Draft Expert Reports Is Not Necessary](https://www.fulcrum.com/draft_expert_report_retention/) - Driven by technology changes, disputes over the requirements to retain and produce expert reports are becoming more common. A recent case describes facts commonly seen, and provides guidance as to what is required. The Court scolded legal counsel, but the wrongful conduct could have been easily avoided.
- [U.S. Supreme Court Makes Recovery By Whistleblower Plaintiffs More Difficult](https://www.fulcrum.com/whistleblower_supreme_court/) - Despite the government’s opposition to the limitation, the U.S. Supreme Court said successful whistleblowers in False Claims Act litigation should sometimes not share in the recovery. This additional risk will certainly reduce the cases brought by such plaintiffs.
- [Using Statistics To Establish (Or Disprove) Relationships](https://www.fulcrum.com/using-statistics/) - 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).
- [High Personal Cost Risk When Whistleblower Anonymity Is Not Maintained](https://www.fulcrum.com/whistleblower_fraud_study/) - A study released last week covered the largest 230 public company frauds between 1996 and 2004. Like every similar study before it, the report concludes that whistleblowers are the best and most common means of learning the truth. But, the study also shows the painful process that non-anonymous whistleblowers have endured. The obvious conclusion for attorneys and boards of directors is that whistleblower systems are cost effective, but need to be handled independently and anonymously.
- [IRS Raises Stakes on Tax Whistleblower Claims](https://www.fulcrum.com/irs_informant/) - Congress and the IRS are realizing that big money can be collected by using informants. Litigants in partnership/shareholder disputes and in family law matters continue to ignore the risks when attempting to use restated financial information that is inconsistent with prior tax reporting. We describe the new law change and the IRS whistleblower program.
- [IRS Issues Guidance on Appraisal Standards](https://www.fulcrum.com/irs_issues_guidance/) - The Internal Revenue Service (IRS) released Notice 2006-96, which provides guidance regarding the meaning of “qualified appraiser” and “qualified appraisal”.
- [Fair Value Accounting Gets Additional Guidance](https://www.fulcrum.com/fair_value_accounting/) - FASB defines fair value, establishes a framework for measuring fair value in generally accepted account principles (GAAP), and expands disclosure about fair value measurements.
- [Charitable Contributions of Property Become More Restricted](https://www.fulcrum.com/charitable_contributions/) - The Pension Protection Act of 2006 is aimed at improving defined benefit plans, but it also contains important unrelated changes affecting charitable contributions.
- [Alter-Ego Allegations Require Expert Accounting Assistance](https://www.fulcrum.com/corporate_veil/) - "Piercing the corporate veil" is often contemplated, but requires a lot of work. Unless the defendant has been just stupid, expert accounting assistance is probably necessary. We review the major factors that the courts consider, and how you can gather information.
- [Handling Whistleblowers is Tricky](https://www.fulcrum.com/whistleblower_implementation/) - Because of this hidden complexity, many companies have done little to address its provisions.
- [New Accounting Rule Requires Lawyer Input](https://www.fulcrum.com/legal_confirmation_letters/) - Lawyers issuing legal confirmation letters to their client's auditor will have one more item to consider. No later than December 31, 2005, companies with future environmental cleanup obligations may (depending upon the practices previously adopted) face a major change.
- [Fraud Survey Highlights The Value Of Whistleblower Systems](https://www.fulcrum.com/fraud_survey/) - A recent survey contains interesting facts about economic crimes within a company. Systems that encourage employee reporting are shown to be effective, yet cost less than most other control improvements.
- [Valuation Guide:  Commercial Banks](https://www.fulcrum.com/valuation-guide-commercial-banks/)
- [Valuation Guide: Skilled Nursing Facility](https://www.fulcrum.com/skillednursing/)
- [Valuation Guide: Book Publishing](https://www.fulcrum.com/valuation-guide-book-publishing/) - Guide to revenues, trends, and the valuation of companies engaged in book publishing. The industry (SIC 5111, NAICS 511130) is engaged in the production of books.
- [Goodwill Valuations - The Good, The Bad and The Ugly](https://www.fulcrum.com/library_valuationappraisal/) - 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.
- [Steps In Valuing Intellectual Property](https://www.fulcrum.com/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.
- [Fixed Fees Benefit Everyone If Well Planned](https://www.fulcrum.com/fixed-fees/) - Clients like fixed fees. My firm also likes fixed fees. We explain how to control expert and consultant fees. Even if you do not regularly use experts, the same process is applicable to other service providers (like lawyers).
- [Valuation Case Instructs Controversial Valuation Topics, And The Proper Use Of Expert Witnesses](https://www.fulcrum.com/valuation_and_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.
- [Analysis of Technology Spending Underscores Key Appraisal Concepts](https://www.fulcrum.com/booz_allen_ip_study/) - Intellectual property obtains its value because of the ability to make money. One makes money with technology either by (i) using improved features to sell more, or (ii) saving costs through streamlined processes or production.
- [How Principles-Based Accounting Affects Lawyers](https://www.fulcrum.com/principles-based_accounting/) - A subtle but important change will occur in the setting of accounting standards. This will likely affect lawsuits against issuers of financial statements and their auditors.
- [Additional Disclosure Regarding Fairness Opinions Now Required In Proxy Statements](https://www.fulcrum.com/fairness_opinion_expert/) - The new rule 2290 involves disclosures and procedures related to the issuance of “independent” fairness opinions included in proxy statements.
- [Calculating Sample Size](https://www.fulcrum.com/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.
- [Getting More Money From Licenses](https://www.fulcrum.com/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.
- [Valuation Guide: Department Stores](https://www.fulcrum.com/valuation-guide-department-stores/) - Department store revenues, trends, and valuation guidelines. The department store industry (SIC 5311, NAICS 452111) consists of stores selling a variety of products.
- [Buyer Beware - The Alphabet Soup Of Appraisal Credentials](https://www.fulcrum.com/appraisal_credentials/) - Appraisal disciplines have a confusing array of credentials.
- [Checklist for Damages Expert Witness Selection](https://www.fulcrum.com/damages-expert-witness-checklist/) - Here are items you need to determine when selecting a financial expert to address your damages calculation

## Pages

- [Home](https://www.fulcrum.com/) - Fulcrum offers Litigation Support for Lost Profits, Forensic Accounting and Fraud Investigations, Valuation, Insurance, Personal Injury, Wrongful Termination & Economic Damages Nationwide.
- [Service Overview](https://www.fulcrum.com/services/whistleblower-systems-2/whistleblower-systems/) - SOX compliant hotline for collection of complaints covering financial and accounting control issues. The system allows for anonymous, confidential submissions.
- [Benefits](https://www.fulcrum.com/services/whistleblower-systems-2/benefit/) - SOX compliant hotline for collection of complaints covering financial and accounting control issues. The system allows for anonymous, confidential submissions.
- [Costs](https://www.fulcrum.com/services/whistleblower-systems-2/costs/) - SOX compliant hotline for collection of complaints covering financial and accounting control issues. The system allows for anonymous, confidential submissions.
- [Contact Info](https://www.fulcrum.com/contact/contact-info/) - Fulcrum is a financial and economics consulting firm specializing in complex litigation, investigation and appraisal issues.
- [Injury and Employment Damages](https://www.fulcrum.com/our-team/injury-and-employment-damages/)
- [Restaurants](https://www.fulcrum.com/experience/industry-type/restaurants/) - Forensic investigations and business valuations in the restaurant industry. Fulcrum's experience runs from large chains to single location, family-run businesses.
- [Real Estate & Construction](https://www.fulcrum.com/experience/industry-type/real-estate-construction/) - We have substantial experience in construction claims, delay claims, and consequential damages from lack of capital or bonding capacity.
- [Intellectual Property](https://www.fulcrum.com/experience/industry-type/internet/) - Intellectual property and entertainment & media experience has provided Fulcrum with the opportunity to work with emerging internet businesses.
- [Hospitality](https://www.fulcrum.com/experience/industry-type/hospitality/) - We have worked for a substantial number of hotels, casinos, and restaurants. Our prior engagements involve the most well known companies in these industries.
- [Technology](https://www.fulcrum.com/experience/industry-type/high-technology/) - We have extensive experience in assisting a wide variety of technology companies, including computer hardware, software, electronics, and medical technology.
- [Health Care](https://www.fulcrum.com/experience/industry-type/health-care/) - Damages analysis for hospitals, alternate care facilities, medical supply distributors, doctor groups, research firms, and pharmaceutical companies.
- [Entertainment](https://www.fulcrum.com/experience/industry-type/entertainment/) - Extensive entertainment industry experience, including motion pictures, television, radio, merchandising, and publishing.
- [Valuation and Appraisal](https://www.fulcrum.com/experience/valuation-and-appraisal-2/) - Our appraisers have the highest credentials and meet the highest professional standards. As CPAs and forensic accountants, we can critique the financial information upon which valuations are based.
- [Record Reconstruction](https://www.fulcrum.com/experience/forensic-accounting/record-reconstruction/) - Our investigation, computer, and accounting skills combine to allow us to assemble required data more cost effectively and more accurately than otherwise possible.
- [Royalty Audits](https://www.fulcrum.com/experience/forensic-accounting/royalty-audits/) - Using computer audit skills, our royalty, licensing, and other compliance audits are more complete, yet cost less.
- [Insurance Claims](https://www.fulcrum.com/experience/forensic-accounting/insurance-claims/) - We determine business interruption damages, and compile related documentation needed to achieve a fair insurance settlement.
- [Fraud Examinations](https://www.fulcrum.com/experience/forensic-accounting/fraud-examinations/) - Financial fraud investigations, including defalcations, embezzlement, fraudulent financial reporting, and money laundering.
- [Arbitrator/Special Master](https://www.fulcrum.com/experience/damage-analysis/arbitratorspecial-master/) - In disputes in which damages, accounting, valuation or discovery are at issue, our skills add value for judges, arbitrators and mediators.
- [Trade Secret Theft](https://www.fulcrum.com/experience/damage-analysis/trade-secret-theft/) - To determine trade secret damages, we quantify the harm, calculate the benefit received from the stolen trade secrets, and value the technology involved.
- [Securities Disputes](https://www.fulcrum.com/experience/damage-analysis/securities-disputes/) - Securities allegations can involve investments in publicly-traded or private firms. Fulcrum assesses accounting presentations, analyzes damages associated with capital markets, and values assets.
- [Lost Profits & Disgorgement](https://www.fulcrum.com/experience/damage-analysis/lost-profits-and-disgorgement/) - Lost profits experts with extensive experience calculating lost profits and disgorgement damages. Whether damages are historical or projected, our techniques are accurate and persuasive.
- [Intellectual Property](https://www.fulcrum.com/experience/damage-analysis/intellectual-property/) - Patent, trademark and copyright damages calculations should address a combination of appraisal, accounting, and market analysis issues – all areas where we are expert.
- [Appraisal-Related Damages](https://www.fulcrum.com/experience/damage-analysis/appraisal-related-damages/) - Fulcrum's valuation experts have appraised numerous businesses for litigation purposes. Our CPAs and forensic accountants have the highest valuation credentials in the industry.
- [Class Action](https://www.fulcrum.com/experience/damage-analysis/class-action/) - Fulcrum assists with data analysis that will help defend or defeat class certification, testifies on appropriate damages, and administers class settlements.
- [Antitrust and Unfair Business](https://www.fulcrum.com/experience/damage-analysis/antitrust-and-unfair-business/) - We quantify effects of market definition, allegations of unfair competition, price fixing, predatory pricing, and market power.
- [Sampling and Surveys](https://www.fulcrum.com/experience/damage-analysis/sampling-and-surveys/) - Sampling and surveys are tools used to dramatically reduce required work while still obtaining useful data.
- [Quantitative Models](https://www.fulcrum.com/experience/damage-analysis/quantitative-models/) - Advanced quantitative models are useful in making reliable predictions of what is expected to happen. We use these complex mathematical models in damage analyses.
- [Labor and Employment](https://www.fulcrum.com/experience/damage-analysis/labor-and-employment/) - Employment-related damages for wrongful termination, discrimination, sexual harassment, failure to promote, and retaliatory conduct suits.
- [Personal Injury/Wrongful Death](https://www.fulcrum.com/experience/damage-analysis/personal-injury-2/) - We calculate economic damages that address lost earnings and benefits for both plaintiffs and defendants in cases such as personal injury and wrongful death.
- [Our Clients](https://www.fulcrum.com/about-us/our-clients/) - Forensic accounting consulting firm specializing in complex litigation, investigation and appraisal. Our financial professionals have served hundreds of clients of all sizes.
- [Forensic Accounting](https://www.fulcrum.com/services/forensic-accounting/) - Fulcrum offers Forensic Auditing, Fraud Accountant Experts, Internal Audits & Litigation Support. Nationwide. Call (213) 787-4100.
- [Neutral Evaluations](https://www.fulcrum.com/services/neutral-evaluations/) - Fulcrum offers Expert Witness Services in Neutral Investigations & Settlement Assistance. Business Valuations and Purchase Price Adjustments.
- [Commercial Damages](https://www.fulcrum.com/services/damage-analysis/) - Fulcrum offers Expert Witness Services for Commercial Damages, Lost Earnings & Lost Profits. Nationwide. Call (213) 787-4100.
- [Valuation and Appraisal](https://www.fulcrum.com/services/valuation-and-appraisal/) - Fulcrum offers Litigation Support for Forensic Accounting, Business Appraisals & Valuations. Nationwide. Call (213) 787-4100.
- [History](https://www.fulcrum.com/about-us/history/) - Financial and economics consulting firm specializing in complex litigation, investigation and appraisal issues. Fulcrum was founded in May 2002.
- [Team Leaders](https://www.fulcrum.com/our-team/) - Expert witnesses with over 30 years experience. CPAs regularly testify on economic damage calculations or other matters involving accounting, finance or business valuation.
- [Getting Started](https://www.fulcrum.com/contact/getting-started/) - We will gladly provide an initial phone consultation at no cost or further obligation. This initial consultation will allow us to discuss your specific situation.
- [Costs](https://www.fulcrum.com/services/injury-employment-damages/costs/) - Proprietary interactive damages model for personal injury and employment damages generates a report suitable for settlement discussions.
- [Service Overview](https://www.fulcrum.com/services/injury-employment-damages/personalinjury_services/) - Economic damage calculations associated with personal injury, medical malpractice, wrongful termination, failure to promote, and other lost earnings.
- [Commercial Damages](https://www.fulcrum.com/our-team/damage-analysis/) - Expert witnesses with over 30 years experience. CPAs regularly testify on economic damage analyses or other matters involving accounting, finance or business valuation.
- [Whistleblower Systems](https://www.fulcrum.com/services/whistleblower-systems-2/) - SOX compliant system for collection of complaints covering financial and accounting control issues. The system allows for anonymous, confidential submissions.
- [Injury & Employment Damages](https://www.fulcrum.com/services/injury-employment-damages/) - Personal injury and employment damages and lost earnings calculations for litigation.
- [Legislation](https://www.fulcrum.com/services/whistleblower-systems-2/legislation/) - Litigation related to a SOX compliant, anonymous, confidential hotline for collection of complaints covering financial and accounting control issues.
- [FAQ](https://www.fulcrum.com/services/whistleblower-systems-2/faq/) - SOX compliant hotline for collection of complaints covering financial and accounting control issues. The system allows for anonymous, confidential submissions.
- [Experience](https://www.fulcrum.com/services/injury-employment-damages/injury-experience/) - Economic damages calculations that address personal injury damages and future lost earnings and costs for both plaintiffs and defendants.
- [FAQ](https://www.fulcrum.com/services/injury-employment-damages/faq/) - Proprietary interactive personal injury and employment damages model generates a report suitable for settlement discussions.
- [Contact](https://www.fulcrum.com/contact/) - Fulcrum is a financial and economics consulting firm specializing in complex litigation, investigation and appraisal issues.
- [Settlement Report](https://www.fulcrum.com/services/injury-employment-damages/sample-reports/) - Interactive personal injury and employment damages model generates a report suitable for settlement discussions.
- [Services](https://www.fulcrum.com/services/) - Expert witness accounting, valuation, and damages analysis services for complex litigation.
- [Articles](https://www.fulcrum.com/articles/) - Financial experts produce a biweekly e-newsletter of issues involved with law and accounting for our clients and the accounting and legal communities at large.
- [Commercial Damages](https://www.fulcrum.com/experience/damage-analysis/) - Fulcrum is a financial and economics consulting firm specializing in calculating damages for complex litigation, investigation and appraisal issues.
- [Forensic Accounting](https://www.fulcrum.com/experience/forensic-accounting/) - Fulcrum is a licensed CPA firm. Our expert accountants have substantial experience performing a wide variety of fraud, internal, royalty and outside investigations.
- [Industry-Specific](https://www.fulcrum.com/experience/industry-type/) - Our experts possess a broad range of specialties which enable us to serve numerous industries and both large and small companies.
- [Employment](https://www.fulcrum.com/about-us/employment-2/) - Although our clients expect us to work hard and deliver our best, our services are performed in an atmosphere that emphasizes teamwork and balance.
- [Guest Speakers](https://www.fulcrum.com/contact/guest-speakers/) - We provide no-cost educational seminars as a service to the legal and business communities. If desired, these courses can be tailored to your firm’s particular needs
- [Valuation and Appraisal](https://www.fulcrum.com/our-team/valuation-and-appraisal/) - Expert witnesses with over 30 years experience. CPAs regularly testify on economic damage calculations or other matters involving accounting, finance or business valuation.
- [Forensic Accounting](https://www.fulcrum.com/our-team/forensic-accounting/) - Expert witnesses with over 30 years experience. CPAs regularly testify on economic damage calculations or other matters involving forensic accounting.
- [Model Policy](https://www.fulcrum.com/services/whistleblower-systems-2/model-policy/)
- [Bankruptcy and Restructuring](https://www.fulcrum.com/our-team/bankruptcy-and-restructuring/) - As forensic accountants and appraisers with CPAs, our expert witnesses provide restructuring advice and use financial information to draw valuation conclusions.
- [Disclaimer](https://www.fulcrum.com/disclaimer/) - The information is provided with the understanding that the authors are not rendering legal, accounting, tax, or other professional advice and services.
- [Privacy Policy](https://www.fulcrum.com/privacy-policy/)
- [Site Map](https://www.fulcrum.com/site-map/) - Financial and economics consulting firm specializing in complex litigation, investigation and appraisal issues.
- [Experience](https://www.fulcrum.com/experience/) - Fulcrum is a financial and economics consulting firm specializing in complex litigation, investigation and appraisal issues.
- [Blog](https://www.fulcrum.com/about-us/blog/) - Between the Numbers is a sponsored blog by Fulcrum Inquiry. Fulcrum is a consulting firm whose services include calculation of litigation damages and related expert testimony.

## Portfolio

- [Nicole A. Liska](https://www.fulcrum.com/portfolio-items/nicole-a-liska/) - Ms. Liska specializes in applied economic and statistical modeling, with over 25 years of experience on a diversity of cases across industries. She has extensive experience addressing economic damages, most often in the areas of (i) personal injury/wrongful death, (ii) employment-related cases (e.g., wrongful termination, discrimination), (iii) analyses to address class action claims (e.g., wage Ms. Liska specializes in applied economic and statistical modeling, with over 25 years of experience on a diversity of cases across industries. She has extensive experience addressing economic damages, most often in the areas of (i) personal injury/wrongful death, (ii) employment-related cases (e.g., wrongful termination, discrimination), (iii) analyses to address class action claims (e.g., wage
- [Renee Howdeshell](https://www.fulcrum.com/portfolio-items/renee-howdeshell/)
- [Renee Howdeshell](https://www.fulcrum.com/portfolio-items/renee-howdeshell-3/)
- [Renee Howdeshell](https://www.fulcrum.com/portfolio-items/renee-howdeshell-2/)
- [Annette Miller](https://www.fulcrum.com/portfolio-items/annette-miller/)
- [Bill Sharp](https://www.fulcrum.com/portfolio-items/bill-sharp/)
- [Terry Kupfer](https://www.fulcrum.com/portfolio-items/terry-kupfer-2/)

## FAQs

- [Do you offer a complete solution?](https://www.fulcrum.com/faq-items/do-you-offer-a-complete-solution/)
- [Will you work with our audit committee to establish guidelines and procedures?](https://www.fulcrum.com/faq-items/will-you-work-with-our-audit-committee-to-establish-guidelines-and-procedures/)
- [Does the Sarbanes Oxley act apply only to publicly traded companies?](https://www.fulcrum.com/faq-items/does-the-sarbanes-oxley-act-apply-only-to-publicly-traded-companies/)
- [What costs will I face to resolve complaints that are received?](https://www.fulcrum.com/faq-items/what-costs-will-i-face-to-resolve-complaints-that-are-received/)
- [Your service is much more complete than internet-only and phone hotline companies. How much more expensive are you?](https://www.fulcrum.com/faq-items/your-service-is-much-more-complete-than-internet-only-and-phone-hotline-companies-how-much-more-expensive-are-you/)
- [Do you operate a “call center”?](https://www.fulcrum.com/faq-items/do-you-operate-a-call-center/)
- [Do you provide foreign language reporting?](https://www.fulcrum.com/faq-items/do-you-provide-foreign-language-reporting/)
- [Do you provide 24/7 coverage?](https://www.fulcrum.com/faq-items/do-you-provide-247-coverage/)
- [What if you receive information that isn’t financial?](https://www.fulcrum.com/faq-items/what-if-you-receive-information-that-isnt-financial/)

## Categories

- [Commercial Damages](https://www.fulcrum.com/category/damage-analysis/)
- [Forensic Accounting](https://www.fulcrum.com/category/forensic-accounting/)
- [Valuation and Appraisal](https://www.fulcrum.com/category/valuation-and-appraisal/)
- [Whistleblower Systems](https://www.fulcrum.com/category/whistleblower-systems/)
- [Bankruptcy and Restructuring](https://www.fulcrum.com/category/bankruptcy-and-restructuring/)
- [Discovery Advice](https://www.fulcrum.com/category/discovery-advice/)
- [Tax Advice & News](https://www.fulcrum.com/category/tax-advice-news/)
- [Other](https://www.fulcrum.com/category/other-articles/)
- [Government Deficits](https://www.fulcrum.com/category/other-articles/government-deficits/)
- [Current Events](https://www.fulcrum.com/category/other-articles/current-events/)
- [Investor-Related Regulation](https://www.fulcrum.com/category/other-articles/investor-related-regulation/)
- [Personal Financial Advice](https://www.fulcrum.com/category/other-articles/personal-financial-advise/)
- [Changes to Accounting Principles](https://www.fulcrum.com/category/forensic-accounting/changes-to-accounting-principles/)
- [Tax Contingencies](https://www.fulcrum.com/category/forensic-accounting/tax-contingencies/)
- [Intellectual Property](https://www.fulcrum.com/category/damage-analysis/intellectual-property/)
- [Punitive Damages](https://www.fulcrum.com/category/damage-analysis/punitive-damages/)
- [Statistics and Sampling](https://www.fulcrum.com/category/damage-analysis/statistics-and-sampling/)
- [Other Commercial Damages](https://www.fulcrum.com/category/damage-analysis/other-commercial-damages/)
- [Litigation-related Analysis](https://www.fulcrum.com/category/forensic-accounting/litigation-related-analysis/)
- [Royalty Audits](https://www.fulcrum.com/category/forensic-accounting/royalty-audits/)
- [Insurance Claims](https://www.fulcrum.com/category/forensic-accounting/insurance-claims/)
- [Fraud and Other Corporate Investigations](https://www.fulcrum.com/category/forensic-accounting/fraud-and-other-corporate-investigations/)
- [Government and Regulatory Investigations](https://www.fulcrum.com/category/forensic-accounting/government-and-regulatory-investigations/)
- [Whistleblower Best Practices](https://www.fulcrum.com/category/whistleblower-systems/whistleblower-best-practices/)
- [Important Whistleblower Litigation](https://www.fulcrum.com/category/whistleblower-systems/important-whistleblower-litigation/)
- [Valuation Guides](https://www.fulcrum.com/category/valuation-and-appraisal/valuation-guides/)
- [Injury & Employment Damages](https://www.fulcrum.com/category/damage-analysis/injury-employment-damages/)

## Tags

- [expert testimony](https://www.fulcrum.com/tag/expert-testimony/)
- [valuation](https://www.fulcrum.com/tag/valuation/)
- [appraisal](https://www.fulcrum.com/tag/appraisal/)
- [bankruptcy](https://www.fulcrum.com/tag/bankruptcy/)
- [restructuring](https://www.fulcrum.com/tag/restructuring/)
- [fica](https://www.fulcrum.com/tag/fica/)
- [damage analysis](https://www.fulcrum.com/tag/damage-analysis-2/)
- [injury damages](https://www.fulcrum.com/tag/injury-damages/)
- [employment damages](https://www.fulcrum.com/tag/employment-damages/)
- [Statistics](https://www.fulcrum.com/tag/statistics/)
- [whistleblower](https://www.fulcrum.com/tag/whistleblower/)
- [litigation](https://www.fulcrum.com/tag/litigation/)
- [intellectual property](https://www.fulcrum.com/tag/intellectual-property-2/)
- [forensic accounting](https://www.fulcrum.com/tag/forensic-accounting-2/)
- [economists](https://www.fulcrum.com/tag/economists/)

## Portfolio Categories

- [Damage Analysis](https://www.fulcrum.com/portfolio_category/damage-analysis/)
- [Forensic Accounting](https://www.fulcrum.com/portfolio_category/forensic-accounting/)
- [Valuation and Appraisal](https://www.fulcrum.com/portfolio_category/valuation-and-appraisal/)
- [Bankruptcy and Restructuring](https://www.fulcrum.com/portfolio_category/bankruptcy-and-restructuring/)
- [Injury and Employment Damages](https://www.fulcrum.com/portfolio_category/injury-and-employment-damages/)

## FAQ Categories

- [Whistleblower](https://www.fulcrum.com/faq_category/whistleblower/)