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Dispute Resolution Keyed to Goldberg, 7th Ed.
Hoeft v. MVL Group, Inc.
Citation:
343 F.3d 57 (2003)Facts
In February 2000, Richard and Carol Hoeft sold their market research companies to MVL Group for $6.5 million, with an agreement that they would receive a purchase price adjustment if the companies’ EBITDA for the year following the sale equaled or exceeded the EBITDA for the year preceding the sale. The parties’ agreement specified that EBITDA would be “determined in accordance with generally accepted accounting principles consistently applied.” When calculating the pre-sale EBITDA, a dispute arose over whether certain one-time payments (sale-related bonuses and stock option extinguishment costs) should reduce “income from operations.” The agreement designated Steven Sherrill, a CPA who had represented the Hoefts in the transaction, to resolve any disputes over EBITDA calculations, with his decision to be “binding and conclusive” and “not subject to any type of review or appeal whatsoever.” Sherrill ruled in favor of the Hoefts, determining that the one-time payments should not reduce EBITDA, resulting in a $1,402,565 award to the Hoefts.
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