Litigation Insights

The New Jersey Appellate Division recently issued a ruling in a minority shareholder oppression case which reinforces the concept that the best way to resolve a minority shareholder oppression case is through settlement. The decision, Wisniewski v. Walsh, et al. (A-2650-13T3), is an unreported case but reaffirms that the finder of fact, whether it be jury or judge, is not bound by, or required to accept, the testimony of any expert and may, in fact, make its own determination of value, as long as it is based upon facts in the record.

Wisniewski v. Walsh is a case that has been in the courts for 20 years on a variety of legal issues. The issues in this particular ruling concerned whether a marketability or illiquidity discount had been imbedded in the valuation experts’ determination of the value of the company and, if not, what discount should be applied. On a prior appeal the Appellate Division had ruled that Norbert Walsh, the oppressing shareholder, was to be bought out and that a marketability discount should be applied to the value of his shares to reduce the purchase price and ensure that he, as the oppressing shareholder, did not receive a windfall by having the purchasing shareholders bear the full burden of the company’s illiquidity.

In this case the dueling experts had used different methods of valuation, one had used a discounted cash flow method of valuation while the other had used a market approach, and the trial court during the valuation aspect of the case had found the discounted cash flow approach more reliable and sound and adopted the first expert’s approach for valuation. The discounted cash flow approach involves estimating the company’s revenues over a period of time, normalizing its expenses and then discounting the resulting income stream to a present value at an appropriate rate. When determining the valuation, the trial judge accepted the first expert’s estimation of future revenues, but rejected his analysis of the company’s expenses, adopting instead the second expert’s approach to normalizing adjustments. The valuation trial judge then accepted the first expert’s discount rate of 12% for purposes of determining the present value of the resulting income stream.

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Complex Business Litigation Program Offers Significant Benefits

Commercial Litigators and the Business Community Should Take

Over the past several years, the New Jersey Judiciary has actively endeavored to address the concerns of litigants and practitioners involved in complex business and construction cases, by developing methods to streamline and simplify the often complicated and costly litigation process. The result of the Judiciary’s effort is the recent implementation of a statewide Complex Business Litigation Program (the “Program”) for the handling of complex business, commercial and construction cases. Counsel, accountants, financial advisers and others who are often on the front lines of complex business disputes would do well to familiarize themselves with the details and workings of this Program.

On April 14, 2015, the Department of Labor, Employee Benefits Security Administration (“EBSA”) released a proposed regulation defining who is a “fiduciary” of an employee benefit plan under the Employee Retirement Income Security Act of 1974 (“ERISA”) as a result of giving investment advice to a plan or its participants or beneficiaries.  If adopted, the new regulation would treat individuals who provide investment advice or recommendations to an employee benefit plan, plan fiduciary, plan participant or beneficiary, IRA, or IRA owners as fiduciaries under ERISA and the Internal Revenue Code (the “Tax Code”). The proposed rule seeks to increase consumer protection for plan sponsors, participants, beneficiaries and IRA owners by naming financial advisers and their firms as fiduciaries, thus compelling such advisers to abide by certain duties of good faith and loyalty to their clients, subject to specific carve-outs and exceptions.

Under the current statutory and regulatory scheme, fiduciary status is central to protecting the integrity of retirement and other important tax-favored benefits.  Generally, a person is a fiduciary to a plan or IRA to the extent that the person engages in specified plan activities, including rendering investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of a plan.  ERISA imposes standards of care and undivided loyalty on plan fiduciaries and holds such fiduciaries liable when these duties are violated.  IRA and plan fiduciaries are not permitted to engage in “prohibited transactions” which stem from conflicts of interest and endanger the security of retirement, health and other benefit plans.

EBSA’s new proposal expressly expands these duties to financial advisers and their firms, by broadening the definition of fiduciary “investment advice,” subject to specific exceptions or carve-outs for particular kinds of communications that are non-fiduciary in nature.  Under the new definition, a person renders investment advice by:

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