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Managing Expert Determinations
the most recent audited financial statements and, once agreed, the purchase price is locked and not subject to adjustment post-closing.This may, or may not always, prove successful, but further discussion is outside the scope of this chapter. What is important to note is that cross-border transactions involving US-based counterparties still commonly include net-working-capital-based purchase price adjustments and dispute resolution provisions.As a result, purchase price adjustment disputes and expert determinations are still relevant in the cross-border context, even if not prevalent in some intra-country transactions.
Other types of M&A disputes can involve a variety of contractual, legal and damages issues that are typically more appropriately handled through commercial arbitration involving an attorney or a tribunal of attorneys, not an expert determination by a single accounting or industry expert. Expert determinations can be utilised for other types of M&A disputes, such as indemnity claims that are related to net working capital items, for example taxes, but this is relatively infrequent. More commonly quantumor valuation experts would assist client counsel with such disputes in an arbitration.
Identifying the types of M&A disputes that most frequently involve expert determinations is a good starting point, but managing the overall expert determination process will require an understanding of the common expert determination framework and how to document the process in the transaction agreement. Not only will such steps assist in smoother dispute resolution they can also help avoiding a protracted negotiation, or even a dispute, regarding the process itself.
Defining the expert determination process
An important aspect of managing expert determinations is understanding and defining the dispute resolution process.This Section on defining the expert determination process will address this topic from two perspectives – first by describing and defining the common expert determination process and second by describing how to sufficiently document (define) that process in the transaction agreement.
What does expert determination look like?
If a post-closing purchase price adjustment dispute does arise, the resolution process should be about resolving the dispute, not a protracted negotiation about the process itself. In some cases, the negotiation about the process becomes a dispute in itself, separate from the substantive issues. If, however, the transaction agreement adequately provides for the dispute resolution process, this negotiation can be streamlined.
Expert determination for a purchase price adjustment dispute would commonly include the following steps:
•The parties agree on the expert to resolve the dispute.
•A schedule is agreed that provides specific due dates for the various activities described below.
•The parties provide simultaneous submissions (initial submissions) to the expert in support of their positions on the items in dispute.
•The parties provide simultaneous rebuttal submissions to the expert, restricted to addressing arguments raised by the opposing party in their respective initial submission.
•The expert has the opportunity to submit interrogatories or document requests to the parties regarding the items in dispute or the parties’ submissions.
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•The parties respond to the expert.
•The expert provides the written determination to the parties.
The expert determination process in most cases is not bound by formal rules or procedures as is arbitration.The common process outlined above is only a guide and may be altered in any way the parties agree. For example, the parties may wish to provide for a hearing in person or via teleconference to present their positions live to the expert; or the parties may wish to forgo the rebuttal submissions.The overall goal should be a fair process designed to provide the expert with sufficient information to reach a fully informed determination.
Depending on the nature and magnitude of the items in dispute, this may involve more or fewer steps.The effort required for each activity and the timeline depend on the number and complexity of the items in dispute.
Defining the expert determination process in the transaction agreement
Armed with a basic understanding of what is involved in an expert determination, the parties and their counsel can better manage the process by incorporating various aspects into the transaction agreement. Doing so will assist in focusing the parties efforts on resolving the dispute, should one arise, rather than on the process itself. By the time a dispute is imminent, the parties are most likely not on good terms, which can create difficulties when negotiating the procedures.Therefore, the time to include such items is during the drafting of the agreement.
In practice,the importance of clarity in the implementation of some post-closing related provisions, such as purchase price adjustments, representation and warranty claims, leakage, and potential disputes related to such issues, is sometimes overlooked (or considered less important) when drafting. Obviously (and understandably), the parties would rather focus on the excitement surrounding a transaction and other perceived weightier matters such as agreeing a purchase price, the due diligence results, or the prospect of adding a new product or service.After all, a post-closing dispute may not actually happen, right?
Rather than viewing them as less important, defining the expert determination provisions sufficiently in the transaction agreement can actually have a double benefit: (1) they will clearly spell out the overall process the parties should follow if a dispute arises, thereby streamlining the process, and (2) they will add clarity that may actually assist in preventing all or part of a dispute that may otherwise arise. A failure to sufficiently attend to post-closing dispute resolution provisions, especially for complicated or heavily negotiated transactions, can create an opportunity for post-closing issues to arise or be magnified. Such issues often originate in avoidable ambiguities or omissions in the transaction agreement.A crafty counterparty may attempt to exploit them if left unaddressed.
While it is important to include some guidelines regarding the dispute resolution process, a great level of procedural detail is not warranted or even possible in most cases. Failing to include any procedural details in the transaction agreement, however, is also not an appropriate option. So, where should the parties focus their efforts? The transaction parties should allocate time to the post-closing provisions of the transaction agreement that could be susceptible to varying interpretations or negotiation several months after the closing. These provisions include, but are not limited to, those related to post-closing purchase price adjustments, as well as any related dispute resolution provisions. Clarity in provisions
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describing the implementation of the post-closing purchase price adjustment methodology, calculation and dispute resolution process is important, and will prove a valuable reference should a dispute occur.
Following are a few key items to consider including in the transaction agreement.
•Specify a firm, individual or list of individuals to serve as the expert. Failing to do so can lead to a protracted search and negotiation (and potentially a dispute) about selection. This does not mean that the firm or the individual named in the purchase agreement will not have a conflict when a dispute arises, but if chosen carefully the odds of this occurring are greatly reduced.The transaction agreement should also specify the process to select an alternative expert if the firm or individual named has a conflict. For example, the agreement could state that if the nominated firm is conflicted, an alternative firm that is an international public accounting firm with operations in the United Kingdom will be selected. (Considerations in the selection of the specific expert to serve are discussed later in this chapter.)
•Specify the general procedures.These could be similar to those in the example provided above or could include a provision for a hearing, additional submissions, fewer submissions, etc. Setting out the process will eliminate the need to obtain agreement between the parties later, when the parties are contemplating a dispute. Many transaction agreements only generally refer to the process. For example, the agreement may state that the parties will provide submissions to the expert who will rely exclusively on such information to determine the disputed items. Such a general reference to the process leaves much open for interpretation by the parties and the expert.
•Specify the applicable provisions, calculations, methodologies, etc., that have an impact or relation to the post-closing purchase price adjustment and dispute resolution process. In this regard, any calculation impacting the determination of net working capital and the purchase price adjustment should have an example calculation included in
the transaction agreement. These should be very detailed to mitigate opportunities for differing interpretations. For example, for a net-working-capital-based purchase price adjustment mechanism, the example calculation of net working capital should not simply list the balance sheet accounts that are to be included, because balance sheet accounts are often consolidated amounts of several sub-ledger accounts.The example calculation should include detail of the sub-ledger components to avoid subsequent misinterpretation. Months later in a dispute process, when this example may need to be referred to, is when memories become vague because one interpretation of a provision negatively impacts a party’s position on a disputed item, while an alternative interpretation supports the position. Adding such rigour to the transaction agreement will provide the expert an easy-to-follow guide in reaching a determination on the items in dispute. It could also help avoid certain disputes due to the clarity of the example.
Alternative dispute resolution processes are often less expensive than litigation, but that does not mean they are inexpensive. Post-closing disputes can be very costly to resolve. By just paying attention to a few key post-closing provisions in the transaction agreement, parties can often mitigate (i.e., manage), the nature and magnitude of post-closing disputes. The time invested in defining the expert determination process before closing can result in time and cost savings after closing.
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Assess your strength of position
Prior to the expert determination process, an additional step the transaction parties can take is to assess the relative strength of position on each of the items in dispute. A good tool to use is a resolution matrix.This is basically an analytical assessment of the strength of position and likelihood of prevailing on each of the items in dispute.The assessment-of- strength spectrum can be useful with either three or five strength-of-argument classifications. For example, a five-class spectrum would include these categories: strongly favours seller, favours seller, neutral, favours buyer, strongly favours buyer.
The overall goal of the resolution matrix is the identification of certain disputed items that it might make sense to attempt to negotiate away prior to commencing the expert determination.The items with the lower likelihood of success in the expert determination might be settled through negotiation. Another objective could be to resolve or settle less significant items beforehand so the parties do not incur costs from advisors and the expert to resolve items with less significant monetary impact. Further, the results of the resolution matrix may provide a party with information that can be used to its benefit even before the expert determination process begins. For example, if a party identifies an item in dispute that the resolution matrix indicates it is likely to lose, that party can attempt to negotiate a 50/50 split on the item with the other party. If successful, it could be considered a win of 50 per cent on an item it assessed as a likely 100 per cent loss.
If both parties utilise a strength-of-argument assessment, like a resolution matrix, an expert determination process focused solely on the significant issues in dispute can often be achieved.A note of caution: the resolution matrix process is an imperfect estimation of the outcome in an expert determination. It can be useful in assessing strength of position and in indicating items for potential negotiation, but it should not be relied on as an infallible predictor of the expert’s ruling for each item in dispute.
Submissions to the expert should be robust
If a dispute does occur that is submitted for an expert determination, such a determination will ultimately be reached based on the information provided to the expert. In an expert determination process, each party will be required to provide information to the expert in support of its respective positions on the disputed items. Many expert determinations are conducted solely in writing and, as a result, the parties will typically have only two opportunities to provide information to the expert – the initial and rebuttal submissions. Sometimes a third opportunity is available through providing responses to the expert’s interrogatories or requests, but only if the expert makes such requests.The limited opportunities to provide information to the expert in support of a party’s positions heightens the importance of the completeness and quality of the submissions.
The initial submission is each party’s first opportunity to provide detailed information to the expert supporting their positions. Beyond a detailed discussion of the disputed items, there are a few other categories of information that each party should cover to provide context.
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Background information
The parties have been dealing with this transaction for many months, or longer, that has now proceeded to a dispute. It can be easy for the parties to forget that the expert most likely knows very little, if anything, about the parties, the target entity, the transaction agreement, or the disputed items.While such information is often not determinative of disputed items, it provides necessary background information to more fully understand them.
Company and industry specifics
Similarly, the expert may or may not have significant experience in the specific industry of the target company.While a lack of industry experience typically has no bearing on the expert’s ability to appropriately resolve the dispute, the parties would be well advised to provide any industryor company-specific information to aid the expert’s understanding. These specific facts and circumstances of the business can be important as they provide context to certain disputed items and potentially impact the ultimate resolution. For example, describing that the company commonly stocks higher than normal levels of inventory at certain times of the year because it has seasonal sales, can provide information to the expert relevant to rebutting a proposed adjustment to inventory for excess inventory levels.Another example could be describing specific economic factors that have impacted the business operations or the industry temporarily or in the long term. Other accounting considerations can include, for example, the methodology used to determine the allowance for doubtful accounts. Under IFRS, there are multiple acceptable methods for determining this, including those based strictly on the ageing of receivables and others based on specific identification of accounts with potential collection issues.All of this information is useful to the expert in understanding the business and can have an impact on the determination of certain items.
Detailed disputed item discussion and support
Finally, the submissions should include very detailed discussions of the disputed items and sufficient supporting documentation. The discussions should describe and quantify the disputed item, reference the applicable accounting guidance, refer to specific applicable transaction agreement provisions, discuss why one party is correct and the other is not, and give a conclusion that links back to the transaction agreement (e.g., consistent with historical accounting practices). All of this information is necessary to provide the expert with sufficient information regarding each disputed item to make an informed determination. The supporting documentation is also key and it should be relevant. It is especially critical to provide supporting documentation that may not be obvious. An expert will typically request accounting related information if not provided with a party’s submission, but he or she may not be aware of certain information relevant to a disputed item. For example, for disputed items related to excess inventory, typical supporting documentation would include historical sales or usage of the inventory items in dispute.While useful, such information may be incomplete when considered in isolation because there may be additional information such as a product improvement or a new sales channel that would provide the expert with a better understanding of the future expected inventory usage. If this additional information is not provided (or not requested because the expert was unaware of its existence), the expert could unknowingly make a determination that is not fully informed.
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