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Beware of 'Calculations' of Business Value
Recent cases highlight how dangerous experts can be when they report that their finding of business value is based on a “calculation.” This wording has special meaning, implying a quick, cheap set of procedures that is tantalizing, especially for clients and attorneys struggling with placing a cash-equivalent value on an intangible asset, such as equity in a privately held business. Calculations are usually based on assumptions of the client (or perhaps the attorney), not on the independent judgment of the appraiser. But danger lurks in the darkness of ignorance, for these simplified “valuation” procedures are too often a crippled form of analysis without complete judgment that mistakenly conveys the assurance of a formal opinion expected of an expert.
Cases in Point
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
Second Circuit Reinforces Bankruptcy Code Settlement Payment Safe Harbor
The Second Circuit affirmed the lower courts' judgment that a "transfer made … in connection with a securities contract … by a qualifying financial institution" was entitled "to the protection of ... §546 (e)'s safe harbor ...."