Ostermueller Group Blog

Project Nature:   Valuation of private “mini-conglomerate” group of commonly-owned but otherwise unrelated entities under terms of an IRS Private Letter Ruling in a planned family split-up, including advice to privately market one of the component companies at a significant premium to FMV by selling to a strategic competitor and distributing the resultant proceeds among the remaining family ownership groups
SIC: Various (Retail; Mfg.; Whsle. Distrb’n., etc.)
Company Size:  Various; Ranging from $5MM to $15MM   in approximate  FMV.
Assignment Issues:  The sub-level patriarchs/ matriarchs of a family owning & managing the subject component entities desired to split ownership among the various 2nd & 3rd generation family sub-groups in a non-taxable transaction based on independently-appraised Fair Market Values of the component individual entities, including appropriate cash/ financing exchange vehicles to equalize the respective differences in the various family sub-groups’ appraised entity interests, all according to the terms of an IRS private letter ruling.  We concurrently managed each entity’s management/ financial staff & outside professionals in concurrent independent valuations’ data gathering & related field work/ research to provide the needed independent valuation opinion findings & resultant reports thereon, working with the overall familys’ outside legal & financial advisors.  In this process, we advised and identified to the client (s) that one of the component entity units had the potential to be marketed at a significant premium to otherwise Fair Market Value if marketed & sold in an auction setting to specific competitors for whom a purchase/takeover of the subject entity unit had significant strategic value.  In acting upon our suggestions, the client family group was able to identify an appropriate industry-specific M&A advisor & successfully marketed that specific entity/ at a significant premium to our otherwise Fair Market Value opinion amount.

Following is a sampling of the subjects and situations for which we have performed business valuation, transaction planning and financial or forensic analysis services.   We work for other CPAs’ & Attorneys’ client entities in a broad range of industries & have provided related dispute resolution expert testimony in multiple U.S. local, state, federal (District & Bankruptcy) & Canadian supreme courts:

• Arbitration Hearings
• Bankruptcy/ Liquidation issues
• Buy-sell agreements
• Buy-sell planning/ M&A strategic consulting
• Business brokerage, buy-sell – services/ consulting
• Business strategy
• Capital finance transactions
• Closely held business Interests
• Collaborative divorce
• Commercial damages
• Compensation reasonableness determinations/ disputes
• Construction & other industry-related issues
• Corporate ownership and valuation disputes
• Corporate/ Mezzanine financing
• Corporate securities
• Court-appointed assignments
• Damages compilations/ dispute analysis – defense & plaintiff
• Dissenting minority shareholder/ shareholder oppression matters
• Divorce
• ESOPs
• Estate and gift tax-planning or reporting/ tax filings
• Forensic accounting
• Fraud investigations & inquiries
• Finance – planning/ analysis
• Income and charitable contributions
• Insurance claims – plaintiff & defense
• Intellectual property/ Intangibles-related
• IRS challenges (e.g., valuation, officer compensation &/or related  constructive dividend/ reasonableness  issues)
• Liability & Debt Instruments’ valuations
• Marital Dissolution-related financial/ valuation issues and      executive compensation/ marital estate attribution  issues
• Mediation/ arbitration/ settlement-related services
• Mergers, acquisitions and other forms of Corporate Reorganization
• Mezzanine & capital finance – services/ consulting
• Personal/ Entity Damages matters – Plaintiff & Defense
• Professional practice valuation & dispute-related issues, E.g.: Legal, Health Care, CPA Services,  Other Financial Services (E.g., insurance, real estate, Investment, finance).
• Stock option valuations & related consulting to publicly-held entities.
• Shareholder/partner disputes
• Tax planning and compliance issues
• Third appraiser mediative appointments
• Transaction-related valuation advisory services

Project Nature: Wrongful Death  Claim- Expert Witness (Plaintiff) – Whitehorse, Yukon Canadian Supreme Court  

SIC:  8021 (Dentists, Orthodontists)

Company Size:  Confidential

Assignment Issues:  Engaged by non-US attorneys for an  international insurance firm.  Their client’s husband, an orthodontist, died when his hired airplane crashed while on a Canadian back-woods private trip.  Liability was clearly established, insurance coverages were outlined, and the trial in Canadian Supreme Court focused on damages.

We profiled the deceased orthodontist’s practice versus all others in the U.S., and proved it to be of the highest caliber, from a financial productivity standpoint.  Our report and in-court testimony was cited in the presiding Justice’s Reasons for Judgment as being acceptable without change as the final basis for damages, which were the largest amount  ($4 million)  ever awarded  by that court for a wrongful death action.

Project Nature:  Lost Profits Litigation (Defense)

SIC:  3053, 5085 (Rubber Gaskets, Seals and Industrial Supplies)

Company Size:  $4.3 million in sales

Assignment Issues:  Working with defense attorneys for a major aircraft company and selected suppliers, we were engaged to examine lost profits damage claims by the business whose owner/operators were injured in a private plane accident, causation of which was claimed / attributed to failure of a component part of the downed plane.

Plaintiff’s CPA-produced financial statements clearly showed multiple years’ sub-standard results, including losses, immediately following the accident, with eventual return to pre-accident profit levels.  However, by digging through past contract documents boxed away in plaintiff’s office basement, we discovered a non-disclosed accounting aberration.

Plaintiff’s major income source was not commercial sales as originally represented.  Instead, they had turned to pursuit of large government contracts.  These were accounted for on a completed contract basis.  That is, start-up and production costs were expensed as incurred, but income was paid and recognized only upon final contract deliveries, which were often made very long after costs were incurred.

We found that the plaintiff had been awarded a new, large government contract just prior to the accident, but the actual start-up of the contract’s actual funding advances and related product deliveries had been delayed for a year or so.  Plaintiff had decided to gear-up and produce in anticipation of the formal contract start-up, thus incurring large amounts of costs, without matching revenues.  These pre-delivery costs showed as” losses” initially, but were eventually recovered (plus profit and overhead reimbursements) when the major deliveries were made in subsequent years at the end of the contract.  In fact, the injuries to plaintiff’s owner/employees had not had a measurable negative effect on profits.

After our preliminary report of findings and conclusion, a total settlement of about 20% of the initially-claimed $multi-million total damages amount was agreed upon, with virtually no amounts allocated to business lost profits.

Project Nature:  Lost Profits Litigation (Plaintiff)

SIC:  5013 (Motor Vehicle Supplies and New Parts)

Company Size:  $8.2 million in sales

Assignment Issues:  The client company had sustained a severe loss of sales, after building to a 55% annual sales growth rate.  Plaintiff attorneys attributed the losses to a component part malfunction, which was supplied by the defendant.  The defense argued that market demand for our client’s products had fallen, without respect to the malfunctions, thus accounting for the loss in sales.  We provided a detailed market share and cost analysis of the client, its industry and of each of its major competitors.  Our exhibits clearly showed that the client’s sales volume drop was only partially the result of the modest decline in market demand.  Our independent analysis substantiated our claimed damages for lost profits related primarily to the subject part’s malfunction , including loss of capital asset value.  Our client successfully obtained a large pre-trial settlement with negotiations beginning within a few days after our final work product was submitted to defense counsel.

Attorney Solutions for Business Valuation in planning or dispute resolution settings.

For over 35 years The Ostermueller Group has been collaborating with law firms throughout the United States & Canada to provide consulting, business valuation services and forensic/ expert testimony services. We are experienced at explaining and/or defending our analysis and conclusions to a variety of audiences:

• Attorneys’ & CPAs’ clients,
• tax authorities,
• judges/juries and
• other dissident parties

We have provided these services in planning, mediative/ settlement and litigative settings and we have testified in various U.S. state and federal District & Bankruptcy courts and in the Canadian Supreme courts.   

Further, as Instructor for the AICPA/ Thurgood Marshall Federal Judicial Center’s  joint program for Federal courts’  judges, held at the Center’s Washington, D.C. national training/ A-V facility, Mr. Ostermueller co-developed & co-presented a full day class presentation, Business Valuation & Use of Experts by the Federal Judiciary, to the attending Federal Judiciary there from the U.S. Tax, Claims, District & Bankruptcy courts, including videotapings for distribution to the U.S. Federal Judiciary.

Attorneys contact us for purposes of:

• Planning for ownership transfer
• Mergers & acquisitions and sale negotiations
• Valuing intellectual property for licensing or sale
• Divorce, including joint appraisals and collaborative divorce
• Business litigation support regarding valuation and/or damages
• Business planning
• Buy/Sell agreements
• ESOPs
• Estate planning or gifting, including charitable contributions
• Employee incentives and options
• Enhanced earnings determination
• Financing & SBA loans
• Bankruptcy

Damage analysis and expert witness testimony for:

• Patent, copyright, trademark and
• Shareholder disputes
• Insurance claims
• Breach of contract
• Loss of key person
• Malpractice
• Lost earnings
• Loss of business opportunity
• Termination of dealership

Other Services We Provide to Attorneys and CPAs:

• Examination and critique of opposing valuation reports and opinions
• Forensic accounting/tracing
• Calculation of reasonable royalty rates
• Executive Compensation Reasonableness determinations in litigation settings
• Defense of IRS & Dissident Stakeholder challenges to Exec Comp Reasonableness

Building our business around these specialties gives attorneys, CPAs and business owners confidence in the outcomes we provide because we independently arrive at our onclusions and can clearly explain them to all parties involved.

Contact Us to discuss your client’s needs today.