Finkel v. Palm Park, Inc.

In allowing LLC members to buy out a departing member to avoid the dissolution of the company, a court had to determine the fair value of the departing member’s interest in a holding company. The court, in large part, relied on the fair market valuation the remaining members’ BV expert performed, which was premised on an orderly liquidation of the company.

The plaintiff and the defendants owned a limited liability company (TONG). The plaintiff owned 37.5%, whereas the defendants owned 62.5%. TONG’s only asset was its 100% stock ownership in another holding company, Palm Park, which owned three properties. Neither TONG nor Palm Park were involved in managing the properties.

The plaintiff sued the defendants for constructive fraud and judicial dissolution. The court initially concluded TONG should be dissolved as a matter of law. But, in an amended final judgment, the court, under the applicable state statute, found the defendants had the option of buying out the plaintiff’s membership interest.

Net asset value approach

Both parties agreed the net asset value approach was appropriate to determine the fair value of the plaintiff’s interest in TONG. Only the defendants offered a valuation from a BV expert, who said he was retained to “determin[e] the Fair Market Value of a 37.5% Membership Interest in [TONG] on a control marketable basis” as of the valuation date. The expert’s fair market value determination was based on a hypothetical “orderly liquidation” of TONG, including the sale of Palm Park. Under the orderly liquidation premise, the expert accounted for capital gain taxes related to the various transactions and other obligations a liquidation would trigger. He concluded that the fair market value of the members’ equity in TONG was worth almost $3.1 million and the plaintiff’s 37.5% interest was worth a little less than $1.2 million.

The plaintiff objected that the liquidation premise made no sense where the defendants elected to purchase Horizon’s interest in TONG instead of having the company be liquidated so that the defendants could continue to benefit from the investment in TONG and Palm Park “as a going concern.” Therefore, the court should not give any weight to the expert’s valuation.

The court disagreed. It noted that “there is no dispute that the orderly liquidation premise is an accepted method for determining the fair market value of holding companies” (referencing IRS Rev. Rul. 59-60). Further, the court said, fair market value was concerned with a hypothetical sale involving a hypothetical buyer and a hypothetical seller. It “is not determined by deciding the price that would be arrived at by the specific buyer and seller involved in the particular transaction under consideration.” The likelihood of liquidation was not a proper consideration for determining the FMV of the plaintiff’s interest in TONG “and is not a basis for refusing to consider [the expert’s] valuation report.” However, acknowledging that the case did present “something of a conundrum,” the court said it would consider the fact that there would not be an actual dissolution when assessing the equities of the case. At the same time, “it would be a sad end to the unfortunate story underlying this case” if the buyout would jeopardize the continued existence of Palm Park. In an effort to conclude the lawsuit quickly and enable the parties to get on with their respective business lives, the court found the fair value of the plaintiff’s interest was $1.65 million.