FTI Consulting Global Tokyo Japan
FTI Consulting Global: The Price of Everything and the Value of Nothing
Business Valuation in the Context of Fraud or Misrepresentation
Since the global financial crisis, disputes arising from major corporate M&A transactions appear to be on the rise. This is particularly true in Asia, where investors are in an unfamiliar environment and negotiating with local businesses that have yet to reach maturity. When post-acquisition disputes do erupt, they frequently refer to allegations of misrepresentation or fraud, with the concerned parties engaging in litigation or arbitration to resolve their disputes. In such cases, questions can arise as to the true value of the acquired business. Yet valuing businesses in such circumstances brings a unique set of challenges, as Managing Director Mustafa Hadi discusses.
“HP Alleges Fraud In Autonomy Deal; Takes $8.8B Charge” proclaimed a newspaper headline in November 2012.1 A similar news story referring to the acquisition of a company in Asia by Caterpillar Inc. a year later read: “Cat Scammed: How A U.S. Company Blew Half A Billion Dollars In China.”2 In the post-financial crisis world, disputes arising from large corporate M&A deals appear to be on the rise. Such disputes are particularly common in Asia, where foreign investors acquiring local companies operate in an unfamiliar business environment, and where standards of corporate governance and regulatory scrutiny are often not as mature as in more developed markets.
International arbitration is increasingly the dispute resolution mechanism of choice for cross-border investors. As cross border investment continues to flow into (and increasingly out of) Asia (see Figure 1), it is likely that some cross-border acquisitions will result in disputes, and that many of these disputes will be resolved through arbitration. Post-acquisition disputes, which often relate to allegations of misrepresentation or fraud by the vendor, can require various, interrelated, questions of value to be addressed. Questions such as, ‘What is the true market value of the company acquired?’ or ‘What would the acquirer have paid had it been aware of the true financial performance of the target company?’ are commonly raised in the dispute resolution process. This article considers the common issues that arise in valuing a business following the discovery of fraud or financial misrepresentation.3 we begin by describing certain relevant principles of business valuation.
The Fundamental Drivers of Business Value
The Fundamental Drivers of Business Value Fundamentally, the value of a business (like any other asset) arises from its ability to confer economic benefits upon its owner. In the case of an operating business (as opposed to an investment holding company) that is a going concern, its value arises principally from the future operating profits it is expected to generate.4 Two other factors are also relevant: (i) the risk, or uncertainty, associated with the expected future profits, and (ii) any non-operating assets owned by the business. Risk is significant because investors are risk-averse (i.e. they will not accept additional risk without being compensated for it in the form of greater returns). All else being equal, a rational investor will place a lower value on an asset that has greater uncertainty concerning its future economic benefits.
Non-operating assets are assets that are not employed in generating the operating profits of the core business, such as investments in surplus real estate or financial assets. Non-operating assets can include cash, where it is surplus to the operating requirements of the business — a well-known example of this being that of Apple Inc., which amassed a cash surplus approaching US$100 billion prior to initiating a distribution to its shareholders in 2012. Such assets represent a source of value additional to the operating business, since they can be disposed of or put to other uses without the operating business being affected. Similarly, if a business does not possess all of the assets required to continue its operations (for example, if it has a deficit of working capital) this will also impact business value. This is because additional investment will be required to continue operations.
It is important to note that while various valuation methods can be applied to value a business, the fundamental drivers of business value remain the same. The above framework can either be applied explicitly — for example, in a Discounted Cash Flow (“DCF”) valuation — or implicitly, through the use of valuation multiples (such as the price/earnings ratio) derived from comparable companies. The aim of a comparable company’s analysis is to identify companies which are similar to the target in respect of the parameters described above, and to adjust for any differences that remain. A valuation based on comparable company multiples is therefore a ‘shortcut’ to considering the above fundamentals explicitly, based on the assumption that the market operates efficiently in valuing the comparable companies.
The Impact of Misrepresentation or Fraud on Business Value
The Impact of Misrepresentation or Fraud on Business Value Disputes between parties in M&A transactions that result in arbitration or litigation can arise over a number of issues, including closing adjustments for working capital, earn out provisions and material adverse change clauses. In this article we focus on fraud and misrepresentation claims, where the allegation is typically that the financial information provided by vendors overstated the earnings and/or assets of the target company.
Expected Future Operating Profits
Expected Future Operating Profits Expectations of the future performance of a business at any time are informed by many factors, such as its historical performance, the strength of its customer proposition at the relevant time, and market and competitive trends. In projecting future profits, analysts typically consider (i) the current and historical profits generated by the business, and (ii) the expected growth in these profits given company and market dynamics.5 This reduction in projected future profits can be a combination of (i) a lower starting base of ‘current’ profits and (ii) a potential reduction in the rate at which these profits are expected to grow in the future.
In quantifying the impact of misrepresented historical profits, it is important first to consider whether the misrepresentation has any impact on the expected future performance of the business. Where a future impact on the business is expected, it is necessary to consider whether this will be ongoing, or one off, in nature. For example, if the profits from a one-off sale of an asset in the past have been misstated, this may have no impact on expected future operating profits. In some cases, actual financial results for the post-acquisition period may be available at the time the valuation is undertaken (depending on the timing of the arbitration or litigation proceedings in comparison with the timing of the deal). These results can provide one possible reference point for determining what expectations of future business performance would have been at the acquisition date, based on the true historical performance of the business. Care must be taken, however, to distinguish between the effect on performance of fraud and financial misstatement, and that of other factors, such as changes in market conditions or the competitive environment, which may not have been foreseeable at the time of the acquisition. This is particularly relevant for deals concluded around the time of the global financial crisis, or during other periods of market disturbance, where acquired companies may have suffered a downturn in their fortunes for macroeconomic reasons. (Many of the post-acquisition disputes in arbitration or litigation in recent years related to deals done around the time of the global financial crisis. Six years on from the major events of the crisis, this trend is unlikely to continue.)