Current Trends in Dispute Resolution

By Philip A. Zimmerman

A major plenary session, “Maintaining a Healthy Corporate Body: A Dialogue on Major Corporate Disputes of the Last Decade,” included Neal Batson, examiner for the Enron bankruptcy. One role he identified for CPA consultants in bankruptcy is to help determine how it happened by examining the use of accounting techniques to create false financial statements. Among the lessons learned from Enron that Batson cited were that compliance with technical accounting rules was not enough, integrity requires adequate disclosure, understanding the corporate business is necessary, and financial statements need to be transparent.

Consultants Kevin D. Kreb, from PricewaterhouseCoopers LLP, and Harvey Kelly, from AlixPartners, presented a case study of a dispute arising from the purchase of a chain of sporting goods stores. The dispute centered on how, in accordance with the language of the sales contract, GAAP, and the historical accounting policies and practices of the chain, EBITDA was to be computed for the earn-out formula. The contract also provided for arbitration in the event of any dispute between the buyer and seller. Based on these facts, they posed several questions, including: What type of background must the arbitrators possess to best decide this dispute? Should the arbitration be decided by a panel of three, or by one arbitrator?

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