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contingent debt. The term disputed liability or asset denotes a condition where the liability or asset is not
acknowledged by the alleged debtor. Causes of action are examples of disputed debt.

If all of the conditions and circumstances that give rise to a disputed liability or asset have already oc-
curred as of the valuation date, an argument can be made for considering post-valuation date information
in assessing the amount of the disputed liability or asset as of the valuation date. This is because nothing
changed between the valuation date and the date of the post-valuation date information. All that re-
mained as of the valuation date was for the results of the conditions and circumstances that existed as of
the valuation date to manifest themselves. Under these circumstances, many practitioners assert that us-
ing post-valuation date information as the basis for establishing the amount of a disputed liability or as-
set represents an appropriate use of hindsight because such information was knowable as of the valua-
tion date and merely represents a manifestation of conditions and circumstances that existed as of that
date.

This view is espoused in several sources. For example, Business Valuation and Bankruptcy states the
following in reference to the opinion issued in Advanced Telecommunication Network, Inc. v. Allen (In
re Advanced Telecommunication Network, Inc.): fn 55

But the appeals court apparently thought that the WATS claim was a contingent claim, which it
clearly was not. We submit that the proper result would have been to allow hindsight. The parties
that had the best ability to value the dispute did so, by agreement, and settled the case for $10.5
million. Had they done so the day before the transfer, the claim would have been liquidated and
this valuation issue would never have arisen. Had they done so the day after the transfer was
made, it would seem ridiculous to ignore virtually contemporaneous evidence of the claim’s fair
valuation as determined by the parties. A later settlement should be just as conclusive and, in any
event, has the benefit of taking at least one theoretical task off the expert’s already long list of
judgment calls needed to come to an opinion regarding solvency. fn 56

Several court cases also support the use of post-valuation date information in such circumstances. For
example, Gillman v. Scientific Research Prods., Inc. (In re Mama D’Angelo) fn 57 articulates appropriate
use of hindsight information. In particular, it states the following:

But we "may consider information originating subsequent to the transfer date if it tends to shed
light on a fair and accurate assessment of the asset or liability as of the pertinent date." Thus, it is
not improper hindsight for a court to attribute current circumstances which may be more correct-
ly defined as current awareness or current discovery of the existence of a previous set of circum-
stances. In this case, even Scientific's witnesses acknowledge a current "discovery" or "aware-
ness" of circumstances then in existence: "most of the problems were inherent with the original
construction of the plant which, you, would have been there as of [the] day we moved into the
plant," and management had "stuck millions upon millions of dollars fruitlessly into this facili-
ty." Circumstances did not change between July and the November shut-down date; it simply

fn 55 490 F.3d 1325 (11th Cir. 2007)

fn 56 Ratner, Stein, and Weitnauer, Business Valuation and Bankruptcy, 139.

fn 57 55 F.3d 552, 556 (10th Cir. 1995)

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