Commercial Litigation Support

We tailor our business valuations services to the specific requirements of your commercial litigation matter. Our team is one of the largest in Australia with many of our members being recognised by CAANZ as Business Valuation Specialists. This means that we have the resources, skills and experience required to support your commercial litigation matters.

Our business valuation services include providing valuations in commercial litigation matters such as:

• Shareholder disputes
• Breaches of contract
• Misrepresentation
• Common law and statutory negligence
• Professional negligence
• Resumption matters
• Breaches of fiduciary duties

We provide well-defined and reliable valuations prepared in a range of formats that clearly explain our conclusions. We are well placed to assist you in making smart and informed business and litigation decisions and to formulate strategies for the future.

The financial services sector is a complex and highly regulated industry. Financial advisors have duties under the Corporations Act, ASIC rules and regulations, financial industry professional codes of conduct, and common law duty of care. Our experts have specialised knowledge of financial services and products.

Our capabilities include:

• Reviewing and advising on the appropriateness of assessed risk profiles of individual investors
• Reviewing and advising on the appropriateness of investment decisions
• Reviewing fee structures for financial products using a variety of perspectives including benchmarking and profitability
• Advising on appropriate financial planning processes
• Reviewing the appropriateness of financial lending assessments

An intellectual property infringement occurs when your trademark, patent, copyright, or trade secret has been used without your permission.

If your intellectual property rights have been infringed, our team of experts can help you quantify either your loss or calculate an account of profits of the infringer. This information is crucial when seeking compensation.

Professionals such as accountants, financial advisors, lawyers, and engineers have a duty of care. Professional negligence occurs when those duties and responsibilities are breached.

If a breach causes you damage, injury, or loss as a result, you may wish to make a compensation claim.

Our team of experts assist you in determining the value of the financial loss you have suffered. Depending on the professional occupation involved, we may also advise as to whether the duty of care itself has been breached.

Our team of experts can assist you in identifying and quantifying the value of an economic loss you have suffered. Economic losses can take many forms and quantifying that loss requires forensic skill and experience. Our forensic services team can provide a clear and concise option for you to use in your claim.

Securities class actions are based on disclosures of listed companies and involve accusations of false, misleading, and omitted information.

Our economists can analyse the total mix of information and assess the impact of new information on a company’s stock price.

Our capabilities include:

• Reviewing company disclosures, investor presentations, analyst reports, economic and statistical releases, and market commentary to develop a picture of the total mix of information.
• Preparing detailed integrated chronologies that integrate market information with the results of market models.
• Identifying days where company specific information significantly impacted the share price using event study methodologies.
• Understanding a company’s disclosure process and tracing contemporaneous information related to the alleged omission or misleading statement through that process.

Knowing if and when a company became insolvent can be crucial to the successful recovery of funds against companies and directors in commercial litigation proceedings. Commencing action without having a full understanding of the relevant insolvency indicators and potential solvency arguments can prove costly.

Our team of experts can assist you in understanding the relevant indicators of insolvency. Along with the regularly seen defences put forward in response to these claims, we identify, through the application of regulatory tests, if and when a company has become insolvent.

In doing so, we can provide formal written reports for Court purposes or informal oral advice to assess the merits of a claim upfront.

Consumer related litigation includes allegations of misleading advertising, unsafe products, product defects, and disclosure practices. Our economists and data scientists have experience with a variety of analytical methods used to understand the alleged falsity of marketing messages, consumer perceptions and preferences, and the effect of marketing messages on consumers’ purchase decisions.

These techniques include regression analysis, survey and sampling design, conjoint analysis, and artificial intelligence. Our team also has expertise in estimating the value of product attributes as drivers of consumer purchasing decisions and evaluating the economic impact of defective products on consumers.

Our capabilities include:

• Understanding the precise nature of the claims by measuring the frequency and content composition of the at-issue marketing messages (including its text, images, and social media posts)
• Assessing whether the allegedly misleading messages influenced the purchase of the at-issue product by analysing consumer perceptions and sales trends
• Assessing the importance of certain product features by analysing the effect of defects, recalls, news coverage, social media, and other disclosures on product sales
• Assessing the importance of certain product features by analysing product return, customer satisfaction, and repeat purchase data
• Designing and implementing surveys and conjoint analyses to infer value to particular product or service attributes

Employment litigation is complex, with a range of legal frameworks, regulations, and agreements governing the employer-employee relationship. Disputes may involve wages and entitlements, discrimination, and wrongful termination. Our team has extensive experience in analysing employment related data and modeling economic loss.

Our capabilities include:

• Calculating underpayment of wages, superannuation, and benefits for economic loss calculations
• Analysing transactions for compliance with an organisation’s rules and guidelines
• Investigating the financial position and solvency of an employer
• Analysing the outcomes of different groups to assess discrimination claims
• Analysing an organisation’s operational and financial accounting system

Drafting of employment agreements and conditions requires the ability to understand and interpret the employment instrument to assess the impact it will have on the employer and employee.

Our capabilities include:

• Identifying conditions that require clarification and/or correction
• Designing alternative approaches to employment conditions
• Modelling to assess the impact of changes for stakeholders.

Overcharging or excessive fee matters involve accusations that customers were charged above a ‘reasonable’ or contracted price. For example, a company may be accused of charging excessive fees on a financial product. Our economists and accountants can assess the basis and reasonableness of the at-issue fees.

We use managerial accounting, operations, and economics frameworks to understand cost structures and cost drivers, and to devise cost allocation methodologies based on sound principles and operating data. Our team has experience in estimating product and service level profitability, and evaluating the relative quality and performance of products and services that may justify disparities in fees.

Our capabilities include:

• Identifying and classifying costs to support product or service-specific cost and profitability estimates
• Understanding economic behaviours that drive costs to support robust cost allocation methodologies and product cost estimates
• Estimating the profitability of the at-issue products or services using Activity Based Costing (ABC) and time in motion studies
• Analysing price setting processes and market pricing dynamics to assess the at-issue fees
• Evaluating contracts, invoices, work papers and other documents to assess the design and transparency of the at-issue fee disclosures
• Reviewing internal governance processes and underlying information to assess the reasonableness of the process that supported a particular fee-setting decision

Discrimination matters involve allegations of unequal treatment of individuals who have certain characteristics.  For example, a company may be accused of using selection criteria that led to an unfavorable impact for some groups of applicants. In addition, many industries are embracing artificial intelligence to drive decision making. Our economists and data scientists employ a range of objective tools to analyse the practices and outcomes that are subject to the discrimination claims.  We have expertise in statistics, econometrics, and artificial intelligence.

Our capabilities include:

• Applying statistical techniques to assess inferences of discrimination by examining differences in outcomes between groups of individuals
• Designing regressions and econometric analyses to assess inferences of discrimination by examining differences in outcomes after controlling for non-discriminatory factors
• Performing content analysis on unstructured data, such as emails, to identify potential discriminatory practices within an organisation
• Using machine learning techniques, such as decision tree algorithms, to identify step-by-step how approval decisions may have worked in practice
• Bias auditing to address discrimination claims by evaluating algorithms and training data sets used in artificial intelligence-based decision making

Corporate governance litigation calls into question the character of a corporate decision. These can relate to financial decisions such as those concerning M&A and insolvent trading claims, as well as adverse events such as cyber security, inappropriate or illegal management behaviour (e.g., sexual misconduct, bribery), product defects, environmental disasters, and regulatory investigations.

We can help analyse both liability and damages aspects of governance allegations. Our team has experience placing ‘smoking gun’ revelations within the broader context and analysing the decisions of directors, officers, and their advisors to help determine whether they acted in a manner consistent with their roles and fiduciary duties. We also have expertise in analysing the impact of specific allegations for the purposes of economic loss estimation.

Our capabilities include:

• Evaluating decisions in the context of the company’s governance and control system of policies and procedures, information flows, and decision-making functions
• Tracing technical information flows related to specific events to assess the actions of the defendants
• Analysing valuations, accounting reports, and other technical financial and accounting information that may have informed a specific decision
• Assessing the timing and quality of relevant information flows
• Analysing financial and non-financial measures of corporate separateness between the parent and its subsidiaries

The widespread use of IT in delivering products and services, and the collection of sensitive personal information, have created new sources of potential litigation including those related to artificial intelligence bias, defamation, cyber security, and privacy.

Our data scientists have expertise in assessing technical issues surrounding cyber security, the use of personal information, and the design of artificial intelligence algorithms. Our economists and cost accountants can also help estimate the losses stemming from data breaches and the misuse of personal data.

Our cyber security capabilities include:

• Assessing the company’s cyber security risk disclosures
• Identifying and analysing the company’s cyber security framework, policies and systems, employee training and awareness, and incident response plan
• Reviewing internal company records related to security and compliance measures.  E.g., Employee training metrics, financial investments in cyber security, audit workpapers, software updates, and prior incident reports
• Assessing the timing and quality of the information flows related to cyber security events and the company’s response and disclosures (including timing) following an event
• Estimating the costs to a company and its consumers caused by a cyber security event
• Analysing social media data to assess impacts on affected customers

Our privacy and artificial intelligence capabilities include:

• Evaluating the company’s disclosures about the collection and use of personal information
• Scrutinising computer code and training data to analyse claims of bias in artificial intelligence-based decision making
• Identifying and analysing the company’s artificial intelligence governance including formal governance structures, controls, resources, and testing and monitoring procedures
• Analysing how personal information was used by a company and identifying any departures from the intended use

Litigation frequently requires the analysis of both economic and accounting costs. This includes in the context of contract and fee disputes, intellectual property matters, and consumer protection litigation.

Our economists and managerial accountants have diverse experience as industry consultants and testifiers on complex cost issues.

We have specific expertise in cost allocation methodologies, cost tracing, economics, pricing, and unit profitability estimation.
Our capabilities include:

• Identifying relevant implicit and explicit costs
• Analysing drivers of costs to inform cost allocation methodologies
• Calculating product and service specific unit costs
• Estimating hypothetical costs and lost profits
• Working closely with engineers and product managers to understand complex production and service delivery processes