Brattle’s experts have testified in, or consulted on, matters involving breach of fiduciary duty, appraisal/dissenting shareholders, breach of contract, lack of good faith and fair dealing, and unfair competition. Brattle has been engaged on transaction litigation matters before courts in Delaware, New York, California, and Texas, and on matters before national and international arbitration forums.
- Business enterprise and securities valuation
- Fair price/entire fairness
- Going private transactions
- Valuation of derivative lawsuits
- Statutory fair value
- Forensic accounting
The Brattle Group was retained by a plaintiff, following a cash-out merger, in a combined breach of fiduciary duty and appraisal action before the Delaware Court of Chancery. Brattle principals prepared expert reports and provided trial testimony valuing the shares of a closely-held energy services company, structured as an S-corporation. The court found in favor of the plaintiff and determined that fair value was twice that estimated by the defendant’s expert.
The Brattle Group was retained to advise Enel Green Power in its action against Inversiones Energéticas S.A. de C.V. (INE) and Comisión Ejecutiva Hidroeléctrica del Río Lempa (CEL). INE and CEL were Salvadoran state agencies that owned and operated a geothermal power producer, LaGeo. Enel was granted the right to acquire an ownership stake in LaGeo. The shareholders’ agreement permitted Enel to increase its ownership stake in LaGeo to a controlling stake, but the state-owned entities refused to issue additional shares to Enel. An ICC arbitration tribunal, followed by the Supreme Court in Paris, granted Enel’s right to subscribe for additional shares to achieve a controlling stake in LaGeo.
The Brattle Group was retained in a high-profile dispute over control rights and the proposed merger of two major retailers in Brazil. Brattle valued the opportunity to pursue the combination, including a review of synergies and an analysis of events surrounding announcements related to the proposed transaction.
A Brattle principal was retained to provide an expert report on the fair value of preferred shares issued by a broker-dealer. The shares were valued in connection with an appraisal action before the Delaware Court of Chancery. The matter settled following the completion of the principal’s valuation analysis.
The Brattle Group was retained on behalf of the Delphi class of common shareholders in a proposed $2.7 billion merger with Tokio Marine. Tokio offered additional consideration to a class of high-voting Delphi held by the CEO and controlling shareholder. Brattle analyzed the entire fairness of the merger consideration, with a focus on precedent for differential consideration in dual-class stock mergers. Brattle also analyzed the negotiations between the special committee, Tokio Marine, and the CEO. The case settled for $69 million.
A Brattle principal was retained by a litigation special committee to provide a retrospective fairness opinion for a related-party acquisition transaction. The Brattle principal performed an independent fairness analysis, reviewed the contemporaneous investment banker opinion and analysis, and assisted legal counsel in estimation of the value of the contingent asset associated with a shareholder derivative lawsuit.
The Brattle Group was retained on behalf of the class of ACS common shareholders in a proposed $6.4 billion merger with Xerox. Brattle analyzed the entire fairness of the additional consideration offered to a high-voting class of ACS stock held by the CEO and controlling shareholder. Brattle’s analysis focused on the value of the stock and precedent for differential consideration in dual-class stock mergers. Brattle also analyzed the valuation of ACS performed by ACS’s financial advisor for its special committee. The case led to one of the largest class recoveries in the history of the Delaware Court of Chancery.
A Brattle principal provided credit analysis in connection with litigation arising from Dow Chemical’s $16.3 billion acquisition of the specialty chemical firm, Rohm and Haas. Dow Chemical sought to delay the acquisition based, in part, on concern that the acquisition would negatively affect Dow's credit rating. The principal supported an expert report and expected trial testimony of a former senior executive at Standard & Poor’s. The case settled on the eve of trial, with Dow agreeing to acquire Rohm and Haas on the terms set forth in the original merger agreement.
A Brattle principal led the economic analysis on behalf of NRG Energy in litigation related to a $7.5 billion hostile takeover attempt by Exelon Corporation. The principal supported NRG’s expert witness in evaluating the conditions of Exelon’s exchange offer as compared with other unsolicited offers and evaluating whether Exelon’s bid was illusory and in violation of the Williams Act.
A Brattle principal provided an expert report and testimony on additional consideration due for target shareholders, resulting from a subsequent sale of the target company’s assets. The expert report included an opinion as to whether shareholder advances were economically consistent with equity or debt.
The Brattle Group was retained by the debtor estate of NorthPoint in its lawsuit against Verizon Communications following a failed $2.5 billion merger. Northpoint alleged Verizon improperly terminated the merger. Verizon alleged a material adverse change resulting from restated financial results and significant declines in quarterly revenue. The matter settled before trial with Verizon agreeing to pay $175 million to the estate of NorthPoint and withdrawing certain bankruptcy claims against the estate.
The Brattle Group was retained on behalf of First Eagle SoGen Funds, Inc. in its action against the Bank for International Settlements (BIS). First Eagle held shares issued by BIS that became subject to a mandatory redemption at a fixed price. First Eagle alleged that the redemption price undervalued the shares. Brattle provided expert testimony on the fair market value of the shares. First Eagle and other private shareholders were granted an award of $500 million in additional compensation for their shares.
The Brattle Group was retained on behalf of a Brazilian battery manufacturer in arbitration against a global consumer products company. Brattle evaluated economic and accounting claims relating to indemnification and earn out provisions of a Share Purchase Agreement.
The Brattle Group was retained on behalf of sellers of a Japanese cosmetics business over alleged misrepresentation of intellectual property ownership and the calculation of the earn-out. Brattle advised the seller and provided expert testimony on damages.
The Brattle Group was retained on behalf of a large South American beverage company in a dispute over the call option price formula with respect to the currency in which the acquisition multiples were to be quoted. Brattle provided an expert report on the proper implementation of the acquisition formula. The matter settled before hearing.
Published in the June 2016 Issue of Financier Worldwide
BMC Software's Lessons For Expert Witnesses
February 23, 2016
Published on Law360
Returns to Acquirers of Public and Subsidiary Targets
Torben Voetmann, Jeffrey Jaffe, Jan Jindra, and David Pedersen
Published in the Journal of Corporate Finance
Rural Metro Redefines Investment Banks' Role In M&A
March 27, 2014
Published in Law360
Recent Guidance from the Delaware Court of Chancery - Summer 2013
Published by The Brattle Group, Inc.
Recent M&A Litigation Provides Updated Guidance for Fairness Opinions
Published in Deal Points of the American Bar Association's M&A Committee