HomeWebcastFinancial Damages Calculations and Valuations in US Litigation: 2019 Perspective
Online CLE Financial Damages CLE

Financial Damages Calculations and Valuations in US Litigation: 2019 Perspective

Live Webcast Date: Thursday, May 30, 2019 from 12:00 pm to 1:30 pm (ET)
CPE FinanceCPE ValuationRecording

Online CLE Financial Damages

Join us for this Knowledge Group Online CLE Financial Damages Webinar. Determination of financial damages and valuations should always include strong adherence to relevant rules and procedures. It can be challenging, and it is possible to undervalue a claim. It is, therefore, of utmost importance for counsel and financial and accounting experts to efficiently work together on complex litigation matters. They should also keep themselves abreast of the current trends and developments to be able to implement effective valuation strategies.

Join a respective panel of key thought leaders and professionals assembled by The Knowledge Group as they bring the audience to a road beyond the basics of understanding calculation and valuation of financial damages in litigation. Speakers will also provide the audience with practical and cost-effective valuation strategies in light of the recent trends this 2019.

The panel will also discuss, but not limited to:

  • Financial Damages Calculation and Valuation – Overview and Statistics
  • Notable Cases and Court Rulings
  • Recent Trends and Developments
  • Managing Challenges
  • Valuation Strategies

Who Should Attend

  • CPAs
  • Valuators
  • CFOs
  • Appraisers
  • Finance Specialists
  • In-house and Outside Counsel
  • Litigation Officers
  • Litigation Practicing Lawyers
  • Lawyers and Consultants involved in intangible assets, IP & related
  • Senior Management
  • And others interested in learning how to value intangible assets

Preview Podcast

Please click the podcast below to hear the speakers discuss the key topics for this webcast.

Faculty

Online CLE Financial Damages
Foster C. Johnson
Attorney
Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C.
Online CLE Financial Damages
Y. David Scharf
Partner & Chair, Real Estate Loan Work-Outs, Restructurings & Foreclosures
Morrison Cohen LLP
Online CLE Financial Damages
Vincent E. Gentile
Partner
Drinker Biddle & Reath LLP

Click Here to Read Additional Material

Online CLE Financial Damages

SEGMENT 1: 
Y. David ScharfPartner & Chair, Real Estate Loan Work-Outs, Restructurings & Foreclosures
Morrison Cohen LLP

SEGMENT 2: 
Foster C. JohnsonAttorney
Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C.

SEGMENT 3: 
Vincent E. GentilePartner
Drinker Biddle & Reath LLP

Speakers talking points:

  • Types of Damages
    • General damages, also called “direct damages”
    • Consequential damages, also called “special damages”
    • Case law examples show these are often difficult to apply
      • Expert testimony
      • Different causes of action
      • Jury vs. non-jury trials
      • Choices of law: New York, New Jersey, and Texas
    • Expectation damages – i.e., lost profits
      • Speculative vs. not reasonably foreseeable
        • Proof hurdles
      • Recent cases and effect of New York’s Biotronik decision (2015)
      • Factors that govern the analysis:
        • Special cases: New business/lost profits cases
        • Special cases: Destruction or loss of business cases
  • Contractual Provisions
    • Consequential damages
      • Can be prohibited by contract
      • Sample provisions: arguments based on language
    • Special issues involving indemnification
      • High River case
      • Indemnification provisions cannot be used as prevailing party/attorneys’ fees provisions. High bar to reverse the American Rule.
      • Third-party vs. first-party claims: Presumption that indemnification provisions protect against third-party claims unless contract states otherwise
      • Sample provisions that protect against third- and first-party claims
    • Breaches of representations and warranties/ why important
      • Provide example of contractual limitation on time to sue for breach of representations and warranties (“contractual statute of limitations”)
      • Many real estate contracts state that right to sue for breach of representations and warranties expires upon closing of title (i.e., merger; cite Court of Appeals case)
      • Provide examples of contractual provisions (a) stating that right to sue for breach of representations and warranties expires upon closing of title and (b) stating that right to sue for breach of representations and warranties survives closing. Arguments based on language
      • Recent First Department case permitting absolutely duplicative causes of action for breach of contract and fraudulent inducement
    • Liquidated damages
      • Must be specified by contract
      • Permissible unless punitive.
      • Sample provisions. Arguments based on language
    • Contractual damages cap
      • Example: vendor contracts limiting damages to fees paid to vendor.
      • Arguments to support and avoid the cap
  • Damages under the UCC
    • Resale remedies for Sellers (2-706)
    • Cover remedies for Buyers (2-712)
    • How damages are measured? Difference between pre- and post-acceptance remedies
    • What is market price and when can it be recovered?
    • “Windfall damages.” Can they be recovered under the UCC?
    • Damages for willful breach
    • Duty to mitigate: commercial reasonableness and good faith
  • Proving Damages
    • Economic damages vs. valuation
      • Calculation of damages often overlap with business valuation principles
      • How to determine a hypothetical loss or price
      • Actual results (assuming a harm or contemplated transaction) compared against the “but for world” (assuming the harm or transaction did not occur)
      • Reasonableness of assumptions: rates of return, sales volumes, customer growth, inflation, macroeconomic factors affecting those factors; more subjective factors like management ability, good will, brand strength in market
      • Tax consequences: S-corporation vs. C-corporation
      • Reliability of underlying support:  access to documents, availability of information, historic/projections/budgets
    • Valuation approaches: What value are you talking about
      • FMV or FV:  different standards depending on context
      • Substantive state law requirement will govern, i.e., use of discounts (DLOM or DLOC)
      • Ex ante (as of the time of the event) vs. ex post (taking later events into account)
      • Income (DCF) – typically if the information is available historical or projected
      • Comparables/Market - if available, Yardstick approach
      • Asset approach - may use for extractive industries for example
    • Expert testimony

Online CLE Financial Damages

Online CLE Financial Damages

Foster C. JohnsonAttorneyAhmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C.

Foster C. Johnson is a trial lawyer who focuses on complex commercial litigation. He has represented a variety of Fortune 100 companies in contract disputes, oil and gas matters, intellectual property litigation, and large-scale consumer and securities class actions. His recent successes include a six-week trial that ended in a $41.6 million jury verdict against Lloyd’s of London. Mr. Johnson has also handled numerous civil appeals and mandamus proceedings in state and federal courts. He was recognized on the 2018 Texas Rising Stars list for his excellence in business litigation. Mr. Johnson received his J.D. from Stanford Law School, where he served on both the Stanford Law and Policy Review and the Stanford Technology Law Review. He served as a law clerk to Judge Priscilla Owen of the United States Court of Appeals for the 5th Circuit.

Online CLE Financial Damages

Y. David ScharfPartner & Chair, Real Estate Loan Work-Outs, Restructurings & ForeclosuresMorrison Cohen LLP

David Scharf is one of the country’s leading trial and appellate lawyers and serves as a senior counselor to CEOs and multi-national companies. He is an expert in bankruptcy law, specifically as it relates to the retail sector and national debt restructuring, such as in Puerto Rico. He has more than 25 years of experience representing, and advising, clients in securities, M&A, restructurings, complex commercial and real estate transactions, and other high-stakes business matters. Mr. Scharf leads a vibrant litigation and counseling practice that services some of the country’s foremost companies, financial institutions, entrepreneurs and family offices.

Online CLE Financial Damages

Vincent E. GentilePartnerDrinker Biddle & Reath LLP

Vincent E. Gentile represents major corporate clients in complex, multiparty cases and individuals and businesses in trials, appeals and in arbitration proceedings. His practice focuses on financial litigation including defense of accountants and auditors, and on shareholder and governance disputes involving closely held corporations. 

He has also authored a number of articles on shareholder litigation and accounting liability issues and has been certified by the New Jersey Supreme Court as a civil trial attorney since 2001. Before entering private practice in New Jersey, he served as an Assistant U.S. Attorney for the District of New Jersey and chief of the Civil Division.

Online CLE Financial Damages

Course Level:
   Intermediate

Advance Preparation:
   Print and review course materials

Method Of Presentation:
   On-demand Webcast; Group-Internet Based

Prerequisite:
   General knowledge of commercial litigation

Course Code:
   147994

NY Category of CLE Credit:
   Areas of Professional Practice

NASBA Field of Study:
   Finance – Technical

Total Credits:
    1.5 NASBA-CPE

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About the Knowledge Group

The Knowledge Group

The Knowledge Group has been a leading global provider of Continuing Education (CLE, CPE) for over 13 Years. We produce over 450 LIVE webcasts annually and have a catalog of over 4,000 on-demand courses.

About the Knowledge Group

The Knowledge Group

The Knowledge Group has been a leading global provider of Continuing Education (CLE, CPE) for over 13 Years. We produce over 450 LIVE webcasts annually and have a catalog of over 4,000 on-demand courses.

AZA is first and foremost a trial firm with nearly 50 lawyers, and a trial almost every month. AZA lawyers’ courtroom experience, knowledge of what will matter to a jury or judge, and command of trial technology permit the firm to do this efficiently. Being trial-ready also strongly influences settlement. Opponents recognize that after more than 225 trials, AZA lawyers have confidence in their position and their ability to advocate for clients. In fact, AZA is often hired on the eve of trial, once it has become clear that a case must be tried. Although many of AZA’s cases involve high-stakes litigation for multinational companies, the firm also excels at representing individuals and mid-sized businesses with serious legal issues. AZA lawyers understand that a superior result does not always involve a verdict or judgment and are equally skilled at developing creative solutions to business problems. Houston-based AZA is rated as a top Texas commercial litigation firm by Best Law Firms, Chambers USA and Benchmark Litigation.

Website: http://www.azalaw.com/

Morrison Cohen is a relatively unique shop in the top-end commercial law firm market. We offer our clients deep experience and senior-level attorney attention at rational billing rates. We are a firm of approximately 100 very experienced and hard-working attorneys, providing a full array of highly sophisticated corporate, capital markets, business litigation, real estate, bankruptcy and reorganization, compensation, benefits and employment, and other commercial, transactional, and individual client legal services, principally to the middle market.

Website: https://www.morrisoncohen.com/

Drinker Biddle & Reath LLP is a national, full-service law firm providing litigation, regulatory and business solutions to public and private corporations, multinational Fortune 100 companies and start-ups. Drinker Biddle’s nearly 600 lawyers across 13 offices combine a comprehensive range of legal services with significant national roles in industries, including education, financial services, health care, insurance, pharma and life sciences, and retail.

Website: https://www.drinkerbiddle.com/

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