Page 80 - M & A Disputes

Many neutral practitioner prefer to allow for such cross examination if witnesses are put forth because
such cross examination may aid in assessing the credibility of such witnesses.

An often asked question is whether court reporters should be present to create a record of the hearing.
Again, this is up to the parties to decide if this procedure is necessary or even desired. These hearings
can be formal in that sense, or they can be less formal without having a court reporter.

Each of the components previously discussed can be part of an efficient and cost-effective resolution of
the disputed items. The components to be included in any specific proceeding may be subject to acquisi-
tion agreement terms and the parties’ desires with respect to timing and cost factors. Smaller disputes, in
terms of dollars and the number of items involved, can be streamlined and resolved quickly through the
use of simultaneous submissions and neutral practitioner questions. Alternatively, large, complex dis-
putes may best be resolved in a longer time frame allowing for discovery, multiple submissions, neutral
practitioner questions, and perhaps a hearing. The benefits of most acquisition agreements not providing
much detail in terms of the rules or procedures to be followed include allowing the parties to design a
process that best fits the nature and amounts of the disputed items. A practitioner who is experienced in
this area can provide valuable insight into the process and navigate the parties to an efficient and a suc-
cessful resolution.

Decision and Award (Reporting)

The culmination of the neutral assignment for all the parties is the final award and decision of the neutral
practitioner. The final award and decision can take many forms. Often, the parties require that the neu-
tral practitioner provide a reasoned report setting forth not only the amount(s) to be awarded for each is-
sue in dispute but also providing the neutral practitioner’s rationale for awarding the amount ultimately
determined. In certain situations, the parties may only ask that the neutral accountant include the final
determination for each item in dispute, rather than his or her rationale. In still other situations, the parties
may not want the neutral practitioner’s finding on each issue in dispute but may choose instead to have
one final number that incorporates all the items in dispute. Any means of reporting is appropriate, but
there should be a clear understanding in advance among the interested parties about what will ultimately
be provided by the neutral practitioner because there are pros and cons to the different types of reports,
including cost and other considerations.

Subsequent to the final award and determination by the neutral practitioner, a procedure is often includ-
ed that allows any interested party to the arbitration proceeding to point out any clerical, mathematical,
or other errors of a factual nature for the consideration of the neutral practitioner. Such a procedure
should be limited only to the identification of factual errors and should not be an opportunity for new ar-
guments by any of the interested parties.

Engagement Performance

The practitioner who agrees to serve as a neutral practitioner should be aware of the applicable profes-
sional standards that govern forensic practitioners who perform these services.

Fee Allocation

An important consideration for the forensic practitioner is to require that all fees and expenses incurred
by the neutral practitioner and their team be paid in full prior to the release of the neutral practitioner’s
final decision. The award and decision letter should provide a final fee allocation to the extent that the
acquisition agreement denotes other than a 50/50 split of costs. It is common for parties to ultimately

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