Shareholder Dispute: Economist at Deposition

By Christopher Skerritt, M.Ed., MBA, Chief of Economic Services · Published · Reviewed

Deposition preparation in a partnership or shareholder dispute covers the valuation report from the standard of value through the reconciliation of approaches. Opposing counsel will test the normalization adjustments, the capitalization or discount rate, the selection and adjustment of market comparables, the weighting of approaches, and any discounts for lack of control or marketability. The economist should be able to explain why the standard of value applied fits the claim, support each normalization adjustment from the records, and show the value under the alternative assumptions the opposing valuation adopts.

Checklist

  1. Confirm the standard of value, valuation date, and premise in the report match the claim and the agreements
  2. Review each normalization adjustment and its support in the compensation and related-party records
  3. Prepare the economist to explain the capitalization or discount rate and the market comparables
  4. Review the discounts applied or excluded and the basis for each under the standard
  5. Compare the opposing valuation's inputs and prepare a reconciliation

Questions to ask the economist

Timeline

One to two preparation sessions in the two weeks before the deposition, after the valuation report and the opposing valuation are served.

Required documents

Common pitfalls

Frequently Asked Questions

What is the most common point of disagreement between opposing valuations?

The rate applied to the earnings stream and the normalization of owner compensation, because small changes in either move the value materially. The economist supports the rate from market data and the adjustments from the company's records, and the reconciliation shows how much of the gap between the two valuations each disagreement explains.

How does the economist address a prior offer or transaction in the company's equity?

By explaining whether it was considered and how much weight it received: an arm's-length transaction near the valuation date is strong evidence of value, while an offer made under different circumstances, for a different interest, or years earlier is not. The report states the treatment, and the preparation session covers why the transaction supports or does not support the conclusion.

What should the reliance file contain for a valuation deposition?

The valuation report and its schedules, the normalized financial statements with each adjustment supported, the market data for the rate and for any comparables, the governing agreements, the prior valuations and transactions in the equity, and the management interview or site visit notes. Opposing counsel will work from the schedules, so they should reconcile to the report without a calculator.

References

Request a consultation on Partnership and Shareholder Dispute or call (201) 343-0700. Plaintiff and defense counsel.