News & Insights: financial advisory services

DEVELOPING APPROPRIATE VALUATION PROVISIONS


By Eric J. Barr
November 10, 2016

Shareholder agreements document the intentions of the parties in connection with, among other things, the price to be paid for an ownership interest in the event of a shareholder’s death, disability, retirement or other triggering event. There are four commonly used methods to value a company.

This article was originally published in the November 2016 issue of Metropolitan Corporate Counsel. It was written by Eric J. Barr, CPA/ABV/CFF, CVA, CFE, the Partner-in-Charge of Valuation Services, Financial Advisory Services group, at Marks Paneth LLP.

Valuation and Litigation Briefing, August 2016


By Eric J. Barr
August 11, 2016

Marks Paneth has published the latest issue of Valuation and Litigation Briefing.

Fully Leveraging IP Assets


By Steven L. Henning
July 12, 2016

R&D is woven into the fabric of our economy, yet it receives very little attention from business magazines, let alone the mainstream press. It might seem like an altogether forgotten part of the American industrial machine, but in 2013, R&D expenditures in the U.S. amounted to a staggering $473 billion – almost 3 percent of the country’s total GDP.

This article, “Fully Leveraging IP Assets”, was originally published in The Metropolitan Corporate Counsel, July 2016. 

Valuation and Litigation Briefing, June 2016


By Eric J. Barr
June 22, 2016

Marks Paneth has published the latest issue of Valuation and Litigation Briefing.

Legal Issues and Valuation of Tangible Assets, Patents and Copyrights


By Steven L. Henning
May 16, 2016

Understanding the nature and value of the assets of a business is essential for a variety of reasons, and it has become increasingly clear that legal considerations can play an important role. In general, asset values are an important consideration in formulating asset management and protection policies. And many of the financial crises we have experienced in recent memory can be attributed, in part, to the subjective nature of some inputs used to determine fair value.

This article by Steven L. Henning,Partner-in-Charge of Advisory Services at Marks Paneth LLP, and Peter Twombly, a Partner with McCarter & English, is reprinted with permission from the May edition of The New York Law Journal© 2016 ALM Media Properties, LLC.

Creating the Bridge Between Transfer Pricing and the Valuation of Intangibles


By Angela Sadang
May 11, 2016

International mergers and acquisitions (M&A) are at their hottest pace since before the 2008 financial crisis, and an increasing percentage of this activity involves intangible assets as significant components of the transaction. 

As multinational companies shift ownership of intangible assets between legal entities and across jurisdictions for various strategic purposes, the most critical considerations in cross-border M&A include the identification and valuation of intangible assets and transfer pricing. 

In the article, Director Angela Sadang challenges the perception that the value of a transaction and its largely-acquired intangible assets is motivated by financial reporting valuation rather than by transfer pricing valuation. Moreover, she discusses the importance of aligning the two disciplines early on in the M&A process to create lasting, value-added synergies. 

This article, "Creating the Bridge Between Transfer Pricing and the Valuation of Intangibles," appeared in the May version of the Quick Read Buzz.  

Assigning Value Is More Than A Number


By Eric J. Barr
May 1, 2016

Approximately 80 percent of the businesses filing U.S. federal income tax returns are S corporations, partnerships or limited-liability companies, collectively known as pass-through entities (PTEs). Valuing PTEs is one of the oldest, least resolved and, some would say, most poorly defined issues challenging the business valuation profession.

In this articleEric J. Barr, CPA, Partner-in-Charge of valuation services in the Financial Advisory Services group at Marks Paneth, outlines the crucial matters attorneys need to know about valuing PTEs. 

This article, “Assigning Value is More Than a Number”, was originally published in the May 2016 issue of Metropolitan Corporate Counsel.

Taxing Intangible Assets: A New Global Approach


By Angela Sadang
April 28, 2016

In this article, Angela Sadang Director with the firm's Financial Advisory Services group, looks at the OECD’s 2015 final report on all 15 Action Plans, the aim of which was to, “restore confidence in the international tax framework by addressing weaknesses that create opportunities for BEPS”.  After pinpointing the important functions that contribute to the value of the intangible,  the piece goes on to discuss the ways in which to identify the intangibles that make up a particular transaction, as well as a look at five transfer pricing methods the OECD thinks would be appropriate when transferring intangibles, or rights in intangibles.

This article was originally published in Morison KSi's quarterly tax newsletter, Global Tax Insights, Q1 2016. It was reprinted by permission in Global Tax Weekly, April 28, 2016, published by CCH, a Wolters Kluwer business.

Use Caution: Foreign Agents Ahead


By Sareena M. Sawhney
April 1, 2016

In a recent case, four multinational corporations and a Japanese trading company paid a combined $1.7 billion in civil and criminal sanctions on their joint bribery scheme to win natural gas construction projects in Nigeria.  Too many companies are unaware that hiring local individuals or entities in a foreign country to help them conduct business may expose them to criminal or civil liability under FCPA.

Sareena Sawhney, Director with the firm's Financial Advisory Services group, examines how third-party compliance with anti-bribery provisions is under scrutiny in a recent article with Metropolitan Corporate Counsel.

This article, “Use Caution: Foreign Agents Ahead”, was originally published in the April 2016 issue of Metropolitan Corporate Counsel.

Valuation and Litigation Briefing, March 2016


By Eric J. Barr
March 23, 2016

Marks Paneth has published the latest issue of Valuation and Litigation Briefing.

What's Next? Implications of Proposed IRS Regulations on Family-Owned Entities


By Angela Sadang
February 1, 2016

At the American Bar Association’s Section of Taxation meeting in May 2015, Cathy Hughes, Estate and Gift Tax Attorney Advisor with the US Treasury Department’s Office of Tax Policy, indicated that proposed regulations under IRC Section 2704(b)(4) (§2704) concerning restrictions on valuation discounts pertaining to the transfer of family-owned entity interests could be issued by mid-September 2015. As of this writing, no such regulations have been issued, though further informal communication on behalf of the Internal Revenue Service (IRS) suggests that new regulations are forthcoming. Meanwhile, questions and speculations abound. In a recent article, Angela Sadang discusses the implications of these proposed regulations on family-owned entities.

This article, “What's Next? Implications of Proposed IRS Regulations on Family-Owned Entities”, was originally published in the February 2016 issue of Metropolitan Corporate Counsel.

The Dangers of Letting Bribery Go Undetected


By Sareena M. Sawhney
January 26, 2016

The US Foreign Corrupt Practices Act (FCPA) includes both anti-bribery and accounting provisions. As detailed in A Resource Guide to the U.S. Foreign Corrupt Practices Act, from the Criminal Division of the Department of Justice (DOJ) and the Enforcement Division of the US Securities and Exchange Commission, the FCPA makes it a crime for American corporations or their subsidiaries to bribe foreign officials to obtain or retain business. 

In this article, Sareena M. Sawhney, director in the Financial Advisory Services group at Marks Paneth, details the ways to avoid an FCPA disaster and the serious consequences that may result if companies do not take necessary precautions. 

Valuation and Litigation Briefing, January 2016


By Eric J. Barr
January 18, 2016

Marks Paneth has published its latest issue of Valuation and Litigation Briefing.

Meeting US FATCA Reporting Requirements


By Sareena M. Sawhney
December 31, 2015

The Foreign Account Tax Compliance Act (“FATCA”) was enacted with the primary goal of providing the Internal Revenue Service (“IRS”) with the ability to locate US tax evaders hiding assets abroad.  Foreign Financial Institutions (“FFIs”) will now need to conduct the necessary due diligence and meet the necessary documentation requirements in order to help find such US tax avoiders.  Non-compliance can result in the FFI paying a 30% withholding tax on income from US sources. Sareena Sawhney outlines the overall steps an FFI needs to take to maintain FATCA compliance.

This article was originally published in Morison KSi's Global Opportunities Bulletin, December 2015. It was reprinted by permission in Global Tax Weekly, December 31, 2015, published by CCH, a Wolters Kluwer business.

The Dangers of Letting Bribery Go Undetected


By Sareena M. Sawhney
December 17, 2015

In 2012, the New York Times reported that Walmart routinely bribed public officials to speed its expansion into Mexico. As a result, executives at Walmart’s headquarters shut down an internal investigation in 2005 in spite of a wealth of evidence that illicit and illegal payments had been made. The company did not report the alleged violations of the Foreign Corrupt Practices Act (FCPA) until November 2011.  In the wake of investor lawsuits and U.S. investigations into its operations, eight executives left.  Walmart increased its compliance staff by more than 30 percent in response to a Department of Justice request to improve its internal controls and compliance programs and has spent more than $430 million on investigations and its compliance program.

Sareena M. Sawhney reviews the anti-bribery and accounting provisions of the FCPA in this article originally published in Corporate Compliance Insights on December 17, 2015.

What to Consider When Using Guideline Transaction Data


By Eric J. Barr
October 15, 2015

Income taxes play a major role in the pricing and structure of transactions because income taxes can substantially reduce the seller’s net proceeds and/or lower the net cost of a purchased ownership interest.  Transactions are priced and structured to address these tax consequences.  Failing to properly consider the tax consequences of the entity form of the seller or the decision to buy/sell assets or equity may result in an improper valuation conclusion.  In this article, Eric Barr, partner-in-charge, Valuation Services, discusses the impact of Federal income taxes on transaction prices and terms.  

This article appeared in the September/October 2015 issue of The Value Examiner, published by the National Association of Certified Valuators and Analysts (NACVA).

Valuing Physician Practices Using the Market Approach


By Monica Kaden
October 15, 2015

The changing regulatory environment caused by the passage of the Patient Protection and Affordable Care Act (PPACA) has led to additional uncertainty in the healthcare industry on many levels. Practices are consoldating to gain market share and increase efficiency, as many believe that a larger group or network will produce greater profitability. This article explores the factors that are affecting the healthcare industry and complicating the valuation of medical practices.

This article appeared in the September/October 2015 issue of The Value Examiner, published by the National Association of Certified Valuators and Analysts (NACVA).

Valuation and Litigation Briefing, October 2015


By Eric J. Barr
October 14, 2015

Marks Paneth has published the latest issue of Valuation and Litigation Briefing.

Transfer Pricing: A Primer for International New Entrants to the US


October 1, 2015

Regardless of structure and revenue levels, the operations of corporations with related entities across international tax jurisdictions inevitably involve intercompany transactions.  International and local rules and guidelines require that the arm’s length standard must be met in the pricing of intercompany transactions, requiring contemporaneous documentation.  International transfer pricing rules and guidelines are established by the Organisation for Economic Co-operation and Development (OECD) as set forth by the OECD Guidelines, while transfer pricing rules and regulations for the US are established by the US Department of the Treasury, Internal Revenue Service (IRS). 

This article, "Transfer Pricing: A Primer for International New Entrants to the US", was originally published in Morison International's quarterly tax newsletter, Global Tax Insights, Q3 2015. It was reprinted by permission in Global Tax Weekly, October 15, 2015, published by CCH, a Wolters Kluwer business

Developing a Fraud-Free Workplace for the Nonprofit Organization: A Fresh Perspective


By Eric A. Kreuter |  Hope Goldstein
September 16, 2015

Fraud is a significant and growing problem for nonprofit organizations, according to a number of sources, occurring more frequently and becoming more costly. According to the 2014 Report to the Nations by the Association of Certified Fraud Examiners (ACFE), nonprofit fraud accounted for 10.8% of total incidents of fraud in 2013, up from 9.6% reported in 2010. Nonprofit organizations lost a median $108,000 per incident in 2013, up from $90,000 reported in 2010. Since many nonprofits are relatively small, the financial impact is often far greater than the dollar amount implies. 

This article by Eric Kreuter, partner, Financial Advisory Services, and Hope Goldstein, partner, Nonprofit and Government, reviews the risks (financial, reputational and funding threats), fraud’s origins and the steps an organization should take to strengthen its control environment.

Developing a Fraud-Free Workplace for the Nonprofit Organization: A Fresh Perspective


By Eric A. Kreuter |  Hope Goldstein
September 16, 2015

Fraud is a significant and growing problem for nonprofit organizations, according to a number of sources, occurring more frequently and becoming more costly. According to the 2014 Report to the Nations by the Association of Certified Fraud Examiners (ACFE), nonprofit fraud accounted for 10.8% of total incidents of fraud in 2013, up from 9.6% reported in 2010. Nonprofit organizations lost a median $108,000 per incident in 2013, up from $90,000 reported in 2010. Since many nonprofits are relatively small, the financial impact is often far greater than the dollar amount implies. 

This article by Eric Kreuter, partner, Financial Advisory Services, and Hope Goldstein, partner, Nonprofit and Government, reviews the risks (financial, reputational and funding threats), fraud’s origins and the steps an organization should take to strengthen its control environment.

The Pass-Through Entity Conundrum


By Eric J. Barr
September 15, 2015

Entity form affects after-tax economic benefits and thus entity values, and the courts have provided conflicting guidance on how analysts should address the issue when valuing pass-through entities.  Does entity form impact after-tax economic benefits and thus entity value?  If so, why does it, and how much?  And if entity form affects economic benefits, what happens when tax laws or tax rates change?  These questions have vexed business appraisers for years.  This article, by Eric J. Barr, partner-in-charge of Valuation Services, examines how the appraisal community and the courts have addressed such entity form valuation issues. 

This article is reprinted with permission from Valuation Strategies (published by Thomson Reuters), September/October 2015.

Lost Profits: The Reasonable Certainty Standards and the Modern New Business Rule


September 9, 2015

While the vast majority of jurisdictions have moved away from the new business rule and adopted the modern new business rule, by which new/unestablished businesses can recover damages, such adoption does not diminish the requirements under the reasonable certainty standard. Given the lack of historical financial performance data and under the lens of the reasonable certainty standard, estimates of lost profits damages to new/unestablished businesses are subject to a higher level of scrutiny. This article by Josefina V. Tranfa-Abboud, principal, Financial Advisory Services group, focuses on new/unestablished businesses and the importance of post-incident business-specific data/facts to isolate the effects of the disputed event, and to establish a measure of lost profits damages that can be considered reasonably certain.

This article appeared in the September 9, 2015 issue of QuickRead, published by the National Association of Certified Valuators and Analysts (NACVA).

Valuation and Litigation Briefing, August 2015


By Eric J. Barr
August 11, 2015

Marks Paneth has published the latest issue of Valuation and Litigation Briefing.

Finding an Intersection Between Intangibles Valuation and Transfer Pricing


By Angela Sadang
July 9, 2015

In the recent boom of cross-border merger and acquisition (M&A) activity, the large proportion of transactions involving intangible assets or intellectual property (IP) as a dominant acquired asset has shed light on the importance of the identification and valuation of intangible assets and transfer pricing.

In this article, director Angela Sadang discusses how aligning these two disciplines early on in the M&A process can create lasting, value-added synergies.

This article, “Finding An Intersection Between Intangibles Valuation and Transfer Pricing in the US”, was originally published in Morison International’s quarterly tax newsletter, Global Tax Insights, Q2 2015.  It was reprinted by permission in Global Tax Weekly, July 9, 2015, published by CCH, a Wolters Kluwer business

Regulators Clamp Down on Casinos for Noncompliance


By Sareena M. Sawhney
June 17, 2015

In 2013, the Las Vegas Sands Corp. paid $47 million to the US government for failing to file the necessary activity report (SRC) required by federal law.  This penalty was the result of an investigation by the US Department of Justice into wire transfers and cashiers’ checks totaling $58 million the Las Vegas Sands Corp. received on behalf of one gambler.  This is just one of many examples of US regulators more aggressively brining enforcement actions against casinos and banks for failure to comply with anti-money laundering (AML) rules and regulations.

In her recent article in Gaming Law Review and Economics, Sareena M. Sawhney, director, Financial Advisory Services, provides a detailed analysis of the components of a robust AML program and discusses how organizations can mitigate the risk of exorbitant fines and other penalties brought on by regular enforcement.

This article has been reprinted with permission from Gaming Law Review and Economics, Vol. 19, Issue 5, June 2015, published by Mary Ann Liebert, Inc., New Rochelle, NY.

Health Care Fraud: Are You Prepared to Absorb the Costs?


By Sareena M. Sawhney
January 23, 2015

Health care fraud is a national problem affecting everyone in the US, either directly or indirectly.  It is also a growing criminal enterprise.  In Fiscal Year 2012 alone, various government teams involved in the Health Care Fraud and Abuse (“HCFAC”) Program recovered $4.2 billion from individuals and companies who attempted to defraud federal health programs.

This article outlines the schemes carried out by many segments of the health care system, including hospitals, physician practices and individuals, and discusses the various forensic accounting techniques used to identify fraudulent activity or the heightened risk of fraud. 

Originally published in HealthCare Business NewsJanuary 2015 issue.

The Challenge and Responsibility of Protecting Client Data


By Steven L. Henning
January 1, 2015

According to an October 2014 Gallup Poll, 69 percent of Americans frequently or occasionally worry about theft of their credit card information.  Other than having a computer or smartphone hacked, the majority of Americans worry about this crime more than any other crime they were asked about.  These worries are driven by the growing wave of hackers that hit major retailers throughout 2014, including Neiman Marcus, Sony, Morgan Stanley, eBay, AOL and others.  As businesses collect more and more information about their customers, and in spite of the concern over theft of this data, few Americans are taking actions to protect themselves.  And businesses, which seem to have ample incentives to protect themselves and have repeatedly been warned about data breaches, routinely ignore such threats for a variety of reasons.

This article, “The Challenge and Responsibility of Protecting Client Data”, was originally published in The Metropolitan Corporate Counsel, January 2015.

Consequences of Having a Poor Anti-Money Laundering Program


By Sareena M. Sawhney
April 25, 2014

A surge in recent investigations suggests that financial and non-financial institutions are increasingly in violation of Bank Secrecy Act (BSA)/Anti-Money Laundering (AML) policies and procedures as well as regulatory requirements.  IRS statistics illustrate that the number of money laundering investigations and Bank Secrecy Act investigations has increased from 1,597 to 1,663 and 738 to 923 from 2010 to 2012, respectively. Many different kinds of businesses are at risk for money laundering and for penalties if AML programs do not meet regulatory standards – all the more reason to ensure that adequate anti-money laundering programs are in place.

Health Care Fraud and Abuse


By Sareena M. Sawhney
April 25, 2014

Health care fraud is a national problem affecting everyone in the US, either directly or indirectly, and is carried out by many segments of the health care system, including companies or individuals, using various methods.  It is also a growing criminal enterprise:  In Fiscal Year 2012 alone, various government teams involved in the Health Care Fraud and Abuse (“HCFAC”) Program recovered $4.2 billion dollars from individuals and companies who attempted to defraud federal health programs.  And the Justice Department opened 1,131 new criminal health care fraud investigations involving 2,148 potential defendants.  For the health care provider or the insurer or the companies offering health care to their employees, detecting such schemes can involve various forensic accounting techniques.

Managing Intellectual Property In A Knowledge Economy


By Steven L. Henning
February 21, 2014

We frequently see new products, brands and creative designs that are the result of continuous innovation and creativity. Many of these innovations are driven by small businesses that possess innovative and creative capacity, but may lack awareness of the protection that our intellectual property system can provide. Left unprotected, an invention or creation may be lost to competitors who are in a better position to commercialize the product or service, leaving the original inventor or creator without financial benefit or reward. Therefore, securing adequate protection of a company’s intellectual property may be a crucial step in deterring potential infringement and in turning ideas into business assets with a real market value.

This article was originally published in The Metropolitan Corporate Counsel, February 2014.

Increased Regulation Drives Demand for Forensic Accounting Services


By Yasmine L. Misuraca |  Steven L. Henning
December 23, 2013

Major financial reforms and volatility following notorious frauds and scandals have led to outsized growth in the demand for forensic accounting services.  During the past decade or so, Congress reacted to the WorldCom Inc. and Enron bankruptcies resulting from fraudulent financial reporting by passing the Sarbanes-Oxley Act of 2002, adding regulation targeting internal controls over financial reporting, among other requirements.  The more recent financial crisis that is blamed for the Great Recession led Congress to pass the Dodd-Frank Wall Street Reform and Consumer Protection Act, requiring greater financial transparency of public companies.  This increased regulation has contributed to strong revenue growth for forensic accounting services providers. 

This article was originally published in The Metropolitan Corporate Counsel, December 2013.

Increased Regulation Drives Demand for Forensic Accounting Services


By Yasmine L. Misuraca |  Steven L. Henning
December 23, 2013

Major financial reforms and volatility following notorious frauds and scandals have led to outsized growth in the demand for forensic accounting services.  During the past decade or so, Congress reacted to the WorldCom Inc. and Enron bankruptcies resulting from fraudulent financial reporting by passing the Sarbanes-Oxley Act of 2002, adding regulation targeting internal controls over financial reporting, among other requirements.  The more recent financial crisis that is blamed for the Great Recession led Congress to pass the Dodd-Frank Wall Street Reform and Consumer Protection Act, requiring greater financial transparency of public companies.  This increased regulation has contributed to strong revenue growth for forensic accounting services providers. 

This article was originally published in The Metropolitan Corporate Counsel, December 2013.

VIDEO: The Part of Dodd-Frank Investors Can't Live Without


By Steven L. Henning
July 23, 2013

It's easy for investors to balk at increasing financial regulations since 2008. However, one provision of the Dodd-Frank Act which permits surprise audits of investment companies is important to protecting investors and institutions. Surprise audits can actually provide comfort and protection to ensure you have what you and the investment company say you have.

Before The Measurement Of Lost Profits: Investigating To “Isolate” The Source Of A Decline


July 22, 2013

Evaluating the reasons why a business may have experienced a decline requires that factors such as general economic conditions, shocks to a specific industry or locale, changes in relationships with suppliers or in the demand for goods and/or services, etc. be investigated and analyzed. A more telling story about the historical financial performance of a business is revealed when put into the context of its industry, the local economy and the market in which it operates.

This article, 'Before The Measurement of Lost Profits: Investigating the Business and the Market to "Isolate” the Source of a Decline' was originally published in The Metropolitan Corporate Counsel, July-August 2013.

The Importance Of Business Continuity Planning: Dealing With Inevitable Risk


By Eric A. Kreuter
July 18, 2013

Increased awareness of the need to prepare for risk and risk of disaster does not always translate into action. One reason is because businesses feel prior events are not likely to recur or effects would not be overly severe. Business managers should plan for the worst and commit to the development of a responsible strategic plan to minimize the impact of harmful events, even unlikely ones.

This article was originally published in The Metropolitan Corporate Counsel, June 2013.

Reaping the Full Benefits of Intellectual Property


By Glenn D. Sacks |  Steven L. Henning
February 5, 2013

Intellectual Property (IP) accounts for nearly $6 trillion value added, roughly equal to 40 percent of US GDP. Moreover, IP is critical to our balance of trade, as goods from IP-intensive industries account for 60 percent of all U.S. exports. Given the jobs, exports and wage premiums those businesses support, many will say we must protect our IP from infringers in developing nations and elsewhere. But we must also protect our IP from ourselves.

This article was originally published in The Metropolitan Corporate Counsel, February 2013.

Reaping the Full Benefits of Intellectual Property


By Glenn D. Sacks |  Steven L. Henning
February 5, 2013

Intellectual Property (IP) accounts for nearly $6 trillion value added, roughly equal to 40 percent of US GDP. Moreover, IP is critical to our balance of trade, as goods from IP-intensive industries account for 60 percent of all U.S. exports. Given the jobs, exports and wage premiums those businesses support, many will say we must protect our IP from infringers in developing nations and elsewhere. But we must also protect our IP from ourselves.

This article was originally published in The Metropolitan Corporate Counsel, February 2013.

U.S. And China Look To Each Other For Opportunity


By Steven L. Henning
December 24, 2012

U.S. investors have been enthusiastically investing in Chinese businesses listing on U.S. exchanges in order to achieve returns that were believed to exceed those available in lower growth Western economies, including the U.S. Ironically, Chinese businesses have been buying U.S. businesses and assets in record amounts because of the opportunity for growth the U.S. offers. Can these seemingly disparate strategies both work?

This article was originally published in The Metropolitan Corporate Counsel, December 2012.

At the Crossroads of Health Care Reform, Corporate Restructuring and Employment Litigation


December 20, 2012

The Patient Protection and Affordable Care Act (PPACA), recently upheld by the US Supreme Court, brings into the marketplace many significant changes affecting individuals and organizations, both of which will be required to comply with the changes established by this new legislation. The most significant changes established by the PPACA will become effective as of January 2014, specifically, the directives referred to as the Individual Mandate and the Employer Mandate.

This article was originally published in The Metropolitan Corporate Counsel, December 2012.

US and China Ensnared in Regulatory Cold War


By Steven L. Henning
December 17, 2012

The regulatory stalemate has accelerated the pace at which Chinese companies are “going dark” and withdrawing from US exchanges. Many of these companies are seeking listing status on Hong Kong’s Hang Seng stock market. Moreover, the impasse diminishes the competitiveness of the US markets as other companies seek to raise capital elsewhere.

VIDEO: The Credit Agencies Lesson... Applicable to Everyone and Every Business


By Steven L. Henning
December 1, 2012

Despite the few noticeable outcomes of the downgrade of US debt, S&P, Moody's and Fitch are still worth paying attention to. Steven Henning discusses how rating agencies continue to hold sway over big business, small business and individual decisions.

VIDEO: Raising Capital: The Private Placement Advantage


By Steven L. Henning
December 1, 2012

Companies are pursuing growth opportunities by entering new markets, launching new products or increasing market share. To fund this growth, companies may want to consider a private placement, an oft-overlooked source of capital. Private placements enable companies to raise capital quickly and at substantially lower transactions costs than capital raised through an initial public offering.

Employee Benefits: Not All Are Created Equal


July 31, 2012

In every instance of employment, a potentially significant difference exists between an employee’s take-home pay and the actual cost of employment to the employer. This difference may be greatly increased in the presence of employer-provided ‘fringe benefits’ – non-wage compensation provided to employees in addition to normal wages or salaries. Fringe benefits represent an additional cost to the employer, above and beyond the actual wages, salaries, bonuses and other compensation directly paid to the employee. They may also impose a cost on the employee, reducing the net amount that an employee may receive at the end of each pay period.

See Josefina's article originally published in The Metropolitan Corporate Counsel July/August 2012.

Owner-Manager Fraud: Getting Worse...How to Detect It


April 2, 2012

Statistics show that private businesses -- often owner-managed -- typically lack internal controls mandated by federal laws and the human and managerial resources to focus on possible employee crimes such as embezzlement, corruption and trade secret theft. But there's a bigger problem at privately-held companies: Owners themselves committing fraud.

Reproduced with permission of the copyright owner © White-Collar Crime Fighter, April 2012.

Exchanges Need to Take Initiative to End New Scam: Fraudulent Listings of Chinese Companies on U.S.


By Steven L. Henning
April 1, 2012

The problem with reverse mergers is that they have long been a favorite technique of financial fraudsters - and they are now giving many Chinese companies easy entry to US markets. Some of those Chinese companies, however, do not actually exist and those that do often publish false, misleading or incomplete financials.

Reprinted from the April 2012 issue of the Financial Fraud Law Report.

Compensatory Damages in Lost Wages Claims: The Relevance of Unemployment Trends Adjustments


March 27, 2012

When claims of lost compensation arise, the role of the economic expert is to provide a reasonable estimate of the potential damages. The economic damages model designed should be tailored to the claim and its jurisdiction, but should also incorporate the effect of the economic environment and the effect of potential unemployment on the estimation of expected compensation. A simplified hypothetical example highlights the impact of the probability of unemployment on the lost compensation estimate.

See Josefina's article originally published in Employee Relations Law Journal, March 2012.

Bad Benchmarking in Damages Determinations: Consulting Experts Can Help


By Donald M. May
March 6, 2012

In the complex world of commercial litigation and damages calculation, even experts can make critical mistakes that put litigation at risk. In particular, experts sometimes use the wrong benchmarks to calculate damages, making assumptions that don't stand up under legal scrutiny and causing their testimony to be excluded on Daubert challenge.

This article was originally published in Bullseye: A Legal Blog on Expert Topics, March 6, 2012.

Will The New Patent Law Remove Barriers to Monetization?


By Glenn D. Sacks
February 20, 2012

At OpportunIP LLC we work with owners of intellectual property (IP) to foster innovation by helping them realize the hidden value inherent in their patent portfolios. Specifically, we work with IP owners to develop strategic relationships with other entities that result in alternative applications of existing technologies, thereby further enhancing the value of the IP. However, it is our experience that certain IP owners are fearful of the increased risks of making their IP available to other entities, including real or perceived increases in litigation risk. Increased litigation risk brings with it the potential for significant costs to defend the IP against allegations of infringement.

See Glenn's article originally published in The Metropolitan Corporate Counsel, February 2012.

Surviving Daubert: Bad Benchmarking Puts Cases at Risk


By Donald M. May
February 16, 2012

Expert Witnesses Misstep by Using the Wrong Benchmarks to Calculate Damages

To the challenges of managing complex litigation, add one more: Expert witnesses often make critical mistakes that put litigation at risk.

Specifically, experts often use the wrong benchmarks to calculate damages for lost profits, lost enterprise value, or shareholder damages, making assumptions that don't stand up to scrutiny, and causing their testimony to be excluded on Daubert challenge.

Benchmarking: A Challenging Task for Expert Witnesses


By Donald M. May
December 2, 2011

In civil litigation, few questions are as important as where to set damages. Beyond the basic issue of who prevails, litigants, juries and courts struggle with the issue of how loss should be compensated. What is an accurate estimation of the impact on the plaintiff of the event under dispute?

Damages in Labor and Employment Disputes: Designing the Economic Damages Model and the Role of the E


October 26, 2011

Labor and employment disputes may result from allegations of employment discrimination, and from work-related injury, wrongful death incidents, or medical malpractice. In many cases, such disputes lead to claims of lost earnings and other compensation, and may also include a claim of damages to family members. Differences in the nature of the claim, the basis of ‘but-for’ and post-incident compensation, potential inclusion of damages to family members, along with jurisdiction-specific rules are just some of the factors that render the estimation of damages in these matters complex. The general economic environment makes the task more complicated still. A fitting economic model, one that accounts for relevant factors and is structured as allowed by the specific jurisdiction, is at the heart of the proper estimation of damages. The economic expert, serving as part of the litigation team, can and should play a central role in developing it.

See Josefina's article originally published in The Metropolitan Corporate Counsel November 2011.

Compensatory Damages in Lost Wages Claims: The Case for Employment Trends Adjustments


September 2, 2011

Claims for lost wages and other forms of compensation are at the heart of wrongful dismissal, workplace injury, and workplace discrimination lawsuits.  But the economic model designed for the estimation of damages may be incomplete if it does not adjust for unemployment trends and the probability of continued "but-for" employment, according to an economics expert. There is never a 100% guarantee of continued employment, and the probability of economic fluctuations and recessions, and other factors affecting long-term employment, should always be considered when estimating lost wages.

To read the rest of this article, please click the download link below.

Factors to Consider When Hiring an Expert


By Donald M. May
May 26, 2011

Expert guidance and testimony play a central role in the late stages of legal proceedings, when experts provide reports and serve as witnesses concerning the substance of the case and the appropriate damages. In the hope of minimizing fees, many insurers often wait until the late stages to engage them.

See Don May's article originally published in Claims Journal May 26, 2011.

Case Study: Assessing Damages in Lost Wages Claim


April 6, 2011

When an employee is terminated, injured or for some other reason unable to work, what wages has he or she lost? What damages should be awarded? The question is central to thousands of personal injury claims each year. The answer is by no means straight forward.

Empowering Intellectual Property


By Glenn D. Sacks |  Glenn D. Sacks
February 1, 2011

Intellectual property ("IP") is an untapped frontier in value creation. The problem is the basic tendency regarding IP, including patents, as the single, proprietary, closely guarded holding of the patent developer. That tendency is fundamental to the patent system – indeed, to all property rights, because at the root, we are talking about patent ownership.

See Steven and Glenn's article originally published in The Metropolitan Corporate Counsel, February 2011.

Empowering Intellectual Property


By Glenn D. Sacks |  Glenn D. Sacks
February 1, 2011

Intellectual property ("IP") is an untapped frontier in value creation. The problem is the basic tendency regarding IP, including patents, as the single, proprietary, closely guarded holding of the patent developer. That tendency is fundamental to the patent system – indeed, to all property rights, because at the root, we are talking about patent ownership.

See Steven and Glenn's article originally published in The Metropolitan Corporate Counsel, February 2011.

An Alternative Approach to a Critical Issue in Employment: Identifying and Correcting Potential Disp


December 1, 2010

Employers define human resources policies and practices and make employment decisions that, while based on legitimate business decisions, may have a disparate effect on different groups of employees. A hypothetical example of selections for a proposed reduction in force (RIF) illustrates how an evaluation can reveal a disparate impact of a protected class group. Unveiling potential disparities before the implementation of the proposed RIF allows management to revise the goals, objectives, and the planning of the selections for termination, correcting a potential disparate effect of protected class groups, and minimizing the likelihood of legal disputes.

See Josefina's article originally published in Employee Relations Law Journal, Winter 2010.

Mitigating Corporate Fraud Roundtable


November 30, 2010

Cases of corporate fraud have become more prevalent since the worldwide economic downturn, with a rise in financial and accounting fraud, money laundering, bribery, insolvency-related fraud, market abuse, and other violations. Meanwhile, regulators have intensified anti-corruption laws and their enforcement. Companies need to address the issue with an effective anti-fraud program.

Forensic Accountants: An Essential Part of the Bankruptcy Team


By Sareena M. Sawhney
September 21, 2010

Bankruptcy is rampant. According to the United States Bankruptcy Court, there were 1.4 million bankruptcy filings in fiscal year 2009, a 32 percent increase over 2008. Bankruptcy filings for 2010 are higher still - data from AACER (Automated Access to Court Electronic Records) shows 379,000 bankruptcy filings in the first quarter of 2010, a 17 percent increase over the same quarter of the previous year. July 2010 saw a 24.2 percent increase in bankruptcy filings over the previous month. The upsurge in bankruptcy filings is unsurprising, given the severe economic downturn and the slow pace of recovery. Predictably, along with the high rate of bankruptcy filings comes another trend – a sharp and prolonged spike in bankruptcy fraud. Economic desperation – of the sort that drives individuals and businesses into bankruptcy – also drives them into complex schemes designed to conceal assets and shelter them from creditors.

Economic Downturn Brings a Return to Classic Fraud


July 14, 2010

The mid-2000s financial bubble has run its course. Enron and MCI/Worldcom are history, Bernard Madoff has been sentenced, other major frauds have been exposed, and the world has moved from irrational exuberance to a new challenge: coping with the effects of what might become a prolonged downturn.

Recipe for a Hedge Fund Litigation Nightmare


By Donald M. May
June 25, 2010

In many cases, domestic hedge funds are structured as limited partnerships with a general partner receiving the performance allocation and a separate limited liability company serving as the investment manager and receiving an asset-based investment management fee.

Securities Litigation Report, Discounted Cash Flow Methodology Can Give Litigators the Upper Hand


By Donald M. May
June 15, 2010

Most formulas used to arrive at valuations are based on Wall Street criteria. This is obviously the case in transactions, but not only in that instance. Valuation assumptions based on transactional formulas are commonly used by private equity investors to make strategic decisions about their portfolio companies, and by litigators and courts to argue for and arrive at determinations of damages.

The Use of Attrition Rates for Economic Loss Calculations in Employment Discrimination Cases: A Hypo


May 21, 2010

In cases involving employment discrimination, claims such as failure to promote or wrongful termination, economists are asked to calculate the difference between what the plaintiff(s) would have earned had the alleged discriminatory act not occurred offset by what the plaintiff is now expected to earn given that the alleged discriminatory action did occur. The economic losses are based upon the plaintiff's past and future income specific to the employer who committed the alleged discriminatory act. By contrast, in cases involving personal injury and a permanent reduction in the plaintiff's earnings capacity, the economic losses are usually based upon the plaintiff's entire worklife expectancy, regardless of where the plaintiff would be working.

See Josefina's article originally published in Journal of Forensic Economics, 2004.

Worldwide Tax Daily, Audit Might Be Best Choice for U.S. Taxpayers in Voluntary Disclosure Program


April 19, 2010

U.S. taxpayers who enrolled in the IRS's voluntary disclosure program may find it in their best interests to challenge the IRS penalty through an audit, David Gannaway, director in the Litigation and Corporate Financial Advisory Services Group at Marks Paneth & Shron LLP in New York, told Tax Analysts on April 7.

The Case for the Forensic Accountant


By Sareena M. Sawhney
March 26, 2010

Suddenly, Ponzi schemes seem to be everywhere. Credit for the renewed attention to this classic financial fraud is of course due in large measure to Bernard Madoff, the now-convicted financier who defrauded investors of an estimated $65 billion. Madoff's widely publicized crime was a classic Ponzi – he took on investor funds, diverted them to finance his own lifestyle, falsified his clients' financial statements to show investment positions when there weren't any, then used new investments to pay "dividends" and "interest" to past investors. It was the largest and most dramatic example of a Ponzi scheme to date.

Executive View, Why the US Must Adopt International Financial Reporting Standards


By Steven L. Henning
March 16, 2010

Can you envision a world in which the U.S. is no longer the world's premier marketplace for capital? We can. In fact, unless U.S. companies and exchanges act, we believe that the world may be well on its way to a new financial order, one in which the U.S. no longer leads.

Executive View, Prepare Now for the Knock on the Door: As Tax Enforcement Accelerates, Legal Counsel


March 15, 2010

Is your client a target of federal tax authorities? The odds that you answered "yes" are higher today than they have been at any time in recent memory. The federal government is on a drive to increase tax revenue, and part of their effort involves a much higher level of tax enforcement – up to and including the dreaded "knock on the door" – a full-scale visit to the taxpayer's home, often after hours, by multiple law-enforcement agencies, not just the IRS but also the FBI, as well as local and state law enforcement agencies.

Financier Worldwide, IFRS Roundtable


By Steven L. Henning
March 3, 2010

Recent events in worldwide markets have shed light on accounting principles and the differences that exist in the way assets are valued and reported. In recent years, the globalisation of financial markets has intensified calls for a unified set of accounting principles. Not only will changes impact financial reporting, but there may also be implications for tax policies, M&A, financial planning and compensation structures.

Financier Worldwide, Anti-Money Laundering Measures and Tax Fraud Enquiries


January 26, 2010

It is often the case that cases of money laundering and tax fraud seem to rise during a downturn. This economic downturn is no exception, and has led to a surge in white collar crime. However, pinning the rise to a single factor is difficult to justify, and unlikely to be correct – ultimately, there are myriad drivers.

Tax Litigation Risk Increases for High Net Worth Individuals


September 17, 2009

Federal tax authorities are on the hunt. Their sights are trained in particular in three categories of tax payers: sole proprietors, officers of closely-held businesses and high net worth individuals.

IRS Targets Offshore Bank Accounts: Taxpayers Need Professional Guidance on Quick, Complete Disclosu


September 3, 2009

To many, tax management is imperative. But one approach – offshore banking – has recently caught the attention of policymakers. The misuse of offshore bank accounts now, more than ever, has the potential to land tens of thousands of Americans in some very hot water.

Controlling Real-World Risks of Mark-to-Market Valuation


By Steven L. Henning
June 1, 2009

In an article recently published in Accounting Today, Steve Henning, the Partner-in-Charge of the Marks Paneth Litigation and Corporate Financial Advisory Services Group urges companies and financial executives to take a hard, skeptical look at their balance sheets for assets that may be portraying false, overly optimistic valuations.

The Future of Accounting Principles


By Steven L. Henning
February 10, 2009

The events of the last few months have shed light on accounting principles and the role they might have played in prolonging the current market turmoil. Fair value accounting, in particular, has been accused, by some professionals and officials, of being at least partly responsible for the current financial troubles.

Preparing for a Fraud Investigation: A View from the Trenches


August 1, 2007

Case study: New York Corp (NYC), a Manhattan-based maker of household products, such as tableware, cookware and flatware, manufactured all of its goods in a New Jersey plant for over 100 years. A year ago management decided that, to remain competitive, the company would move its manufacturing operations to Tijuana, Mexico. The new Tijuana plant is a wholly-owned subsidiary of NYC.

Global Presence, Local Excellence


June 1, 2007

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JHI is a leading international business association for independent business advisers, financial consulting, and accountancy firms. JHI exists to support the development of its member firms by facilitating communications, exchange, networking, and resource sharing worldwide. Its members benefit from global networking while maintaining total practice independence.

Global Presence, Local Excellence


June 1, 2007

 | 

JHI is a leading international business association for independent business advisers, financial consulting, and accountancy firms. JHI exists to support the development of its member firms by facilitating communications, exchange, networking, and resource sharing worldwide. Its members benefit from global networking while maintaining total practice independence.