Document Type
Article
Publication Title
Virginia Law & Business Review
Publication Date
Spring 2007
Volume
Volume 2, Number 1
First Page
53
Abstract
(Excerpt)
Legal valuation—the resolution of disputes over the value of legal entitlements—is an inevitable aspect of any legal system. Across time and place and doctrinal boundaries, the problem is the same: each side seeks to have a self-servingly high or low figure assigned to the entitlement in question, and a mechanism is needed to choose a conclusive value from a range of plausible outcomes. Usually the mechanism involves litigation of some sort, such as a trial before a judge, jury, or hearing officer. But not always.
This Article analyzes a transactional alternative to valuation litigation that has become increasingly popular: the contractual valuation mechanisms ("CVMs") that sophisticated firms use to resolve anticipated valuation disputes. Various CVMs recently adopted by public firms are introduced, and two contrasting approaches to CVM enforcement found in recent case law are evaluated. One of these enforcement approaches, developed by a federal court applying New Jersey law, involves intrusive judicial review of CVM-generated outcomes. The other approach, that of Delaware, defers to whatever value the CVM produces.
Comments
Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=983822