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Emory Bankruptcy Developments Journal

Abstract

We often measure that which we can as opposed to that in which we are most interested, and fail to appreciate the difference between the two. Experts may aid a trier of fact in measuring fair market value, fair value, investment value, or some other measure of value; however, courts make determinations with regard to a legal standard, not a financial standard. For example, “fair valuation” may be used for determinations of insolvency or the “fair and equitable” rule may be used for determinations of chapter 11 cramdown plan confirmation disputes. Other measures of value may be used in determining the amount of a claim or to satisfy other financial tests in bankruptcy. There is a difference between employing common valuation standards using traditional and well-accepted techniques and fashioning equitable relief demanded by bankruptcy law. Through the lenses of the “insolvency” and “fair and equitable” tests in the bankruptcy process, I suggest that principles of equity offer a competing vision in approaching valuation issues where an expert provides significant input in an overall assessment of the totality of circumstances, the bedrock principle of exercises of equitable remedies. In building the case, I challenge the body of criticisms directed at experts and courts in their construction of valuation models, susceptibility to hindsight bias, and manipulations of assumptions and inputs. I also modestly reject the notion that a market approach is less speculative than an income approach. Both approaches require considerable judgment—one more transparent and the other more opaque. Both approaches must be considered in the robust context of unique disputes, and their use may be driven by the application of specific statutory language. Throughout this Article, I identify various assumptions and inputs to classic valuation approaches and methods that have been rightly contested or unnecessarily confused. The process often requires an expert and a court to make tradeoffs between degrees of (i) relevance and reliability and (ii) opaqueness and transparency. In the end, valuations in bankruptcy disputes look less like lessons in finance, and more like classic fashionings of equitable relief in a court of equity, a needed reminder that finance is the handmaiden of the court and not its jailer.

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