- It introduces some apparent conflicts (e.g., whether we take an aggressive approach for short term gains at the expense of a profitable counterparty-client relationship)... not to mention, who is our client anyway? It is often not one of the parties to a case.
- It often compromises our ability to provide timely service since we have to prioritize other work to ensure we have the cash to pay our employees for their work
- Our work will likely be inadmissible in court since contingency accountants or auditors have a financial stake in the outcome of the case
- For most of our clients, because they have a great deal of assets at stake, usually it is most cost-effective to engage us on our standard hourly basis
- On the other hand, it is not profitable for us to accept very small contingency matters
- There are lenders to clients who need to borrow money to afford legal costs - search "litigation financing" to learn more about this.
Showing posts with label forensic accountant. Show all posts
Showing posts with label forensic accountant. Show all posts
Friday, February 11, 2022
Why Your Forensic Accountant May Not Provide Services on a Contingency Basis (i.e., Compensated on a Percentage or Commission of Client Recoveries)
As a forensic accountant, I almost never perform work on a contingency or deferred fee basis for several reasons, including:
Labels:
contingency fee,
fee,
fee structure,
fees,
forensic accountant,
hourly,
percentage,
royalty auditor
Friday, January 1, 2016
2015 Year-In-Review: Damages
- What we learned about damages from "Blurred Lines" in 2015 | The Auditrix
- Allocation of Copyright Damages for Co-Owners - In re Isbell Records, Inc. | The National Law Review
- Grooveshark settles second case, #damages now $75 million | The Gainsville Sun
- Dr. Dre Unplugs Designer's $150M Beats Royalties Claim | Law360
- Slash's wife divorce settlement news - The Times of India on Mobile #community #property #royalties #music
- La Toya Jackson Settles Music Fraud Lawsuit, Singer Pays To End Court Complaint | Radar Online
- Distributor Valleyarm Reach Royalty Settlement With The Snowdroppers #laches
- MGM settles 'Raging Bull' #lawsuit for '$1 million-plus'
- Lee Daniels and Damon Dash settle $25 million lawsuit | The Voice Online
- Universal Music Agrees to Pay $11.5 Million to Settle Digital Royalties Class Action - The Hollywood Reporter
- Beastie Boys #Awarded $668,000 in "Cadillac" #Legal #Fees From Monster Energy | Billboard
- Judge throws out $533M verdict against Apple, sets damages trial
- 50 Cent Loses Another $2 Million in Sex Tape Suit #punitive #damages
- Cumulus, CBS, iHeartMedia #Sued By ABS Entertainment Over Pre-1972 Masters #damages #restitution
- Courtney Love Faces Second #Damages Bill For #Online Row
- Maximize #Royalty Settlements with #Audit #Rights Drafting Tips from @CherylHodgson #familylaw | The Auditrix
- #Sony And Yoon Mi Rae Reach #Settlement Over Unlicensed Song Usage In 'The Interview' #kpop
- Sirius XM #Settles Record Company #Suit - siri | Seeking Alpha
- Settlement Between Labels, SiriusXM Over Pre-1972 Royalties Challenged By The Turtles | ...
- Exeter firm, ex-Wild Cherry band member #settle #royalty dispute | New Hampshire
- Billboard: Turtles lose bid to stop Sirius $210 million #settlement with RIAA
- SESAC pays $3.5m to settle with commercial radio body RMLC - Music Business Worldwide
- Krewella Sisters #Settle Ex-bandmate's #Lawsuit - Report
- Corporate Shell Games May Make Collecting #Damages Almost Impossible - Law Firm Newswire
- Injured Concertgoer Fights for Damages in 50 Cent's Bankruptcy - WSJ
- Curren$y, Dame Dash Reach #Settlement in $3 Million #Lawsuit | BET
- How *not* to calculate #damages: Musician Demands Google, Majors Pay $325M For Removing Videos from Vevo | Techdirt
- #Privacy #damages @Facebook plaintiffs failed to demonstrate any "realistic economic harm or loss," must refile suit
- #Russia: vKontakte ordered to pay damages in two more #infringement cases | Complete Music Update
- UMG poised to settle major iTunes royalty case with artists - Music Business Worldwide
- Arbitrator settles in favour of Marty O'Donnell @martytheelder in Bungie case
- Kendrick Lamar #Settles Legal Battle Accusing Him of Stealing #Music
- After nearly four years, is it time to just settle the Megaupload case? by @sandoNET who has returned to The Verge
- John Frusciante's wife pressing for #divorce #settlement #family #law #royalties #spousal #support
- Modular hails win in high profile legal dispute with Universal, settles another with BMG | Complete Music Update
- Promo Company Wants Game To Pay Up Over Half A Milli In #Damages
- #Korea: Park Si Hoo loses court case and ordered to pay large sum in #damages
- Cox Communications to pay BMG $25m in damages
- Rocker Neal Schon Reaches Lawsuit Settlement With San Francisco City Officials
- Samsung agrees to pay $548M to Apple in epic patent case, but legal dispute still not settled
- Dru Hil Wins $1 Million Settlement Against Kedar Entertainment for Failed Record Sales
- Pandora, Music Rights Holders Settle Royalty Rate Dispute
Labels:
copyright,
damages,
forensic accountant,
litigation,
Settlements
Monday, November 2, 2015
Revenue Stability in the Music Market - Materials from Cedar Boschan's October Presentation at The University of Southern California Posted
Our founder Cedar Boschan had a great time speaking last month at the University of Southern California's 2015 Institute on Entertainment Law and Business. The topic was "The Search for Revenue Stability in the Evolving Music Market."
Image courtesy of NARIP (c) 2015 L-R: Tess Taylor, President of NARIP, Todd Brabec, Esq., author of "Music, Money & Success," Cedar Boschan of Boschan Corp., Kent Liu, Esq. of Rhino Entertainment |
Ms. Boschan was honored to serve as a panelist at her alma mater (USC conferred Ms. Boschan's bachelor of science in music industry), where her instructors included fellow speaker Todd Brabec, attorney and co-author of the classic, "Music, Money & Success."
Following the panel discussion, many audience members requested copies of Ms. Boschan's presentation. Due to overwhelming demand, our sister site, Boschan.com today posted the presentation images as well as some written materials that were included in the materials that attendees of the USC event received.
Images courtesy of NARIP (c) 2015 Top, L-R: Tess Taylor, President of NARIP, Thomas White, program chair, Kent Liu, Esq. of Rhino Entertainment, Anita Rivas, Esq., materials chair, Todd Brabec, Esq., author of "Music, Money & Success," Cedar Boschan of Boschan Corp.
|
Since Auditrix readers may find Ms. Boschan's presentation of interest, we are including a link here:
Note: During the time since Cedar prepared the above-linked materials, updated music publishing revenues figures were released by the NMPA and CISAC. Therefore, don't miss Cedar Boschan's next music industry presentation for the most up-to-date analysis.
Tuesday, September 29, 2015
A Forensic Accountant Does Not a CPA or CFE Make
Beyond navigating all kinds of accounting and record keeping systems, a modern forensic accountant needs the ability to ascertain compliance with relevant regulations and/or contracts and, often, to process terabytes of information using sophisticated database software, plus the ability to communicate findings in a manner in which a layperson can comprehend.
It isn't easy to find an expert who possesses all of the above qualities and when you do, your counterparty will likely endeavor to bar the expert from auditing or testifying.
Some of the strategies to limit a party's top choice of forensic accountant include attempting to:
Modern forensic accounting is really a blend of:
While some CPAs, CFEs and economists have this, the vast majority do not, as I once observed when a highly degreed certified public accountant had a meltdown on the stand when he had to admit during questioning that he had no relevant expertise that pertained to the matter at hand.
Fortunately, the curriculum at the University of Southern California - where I studied under highly respected IP attorneys, accountants and economists - and my decades of work experience focus on all of the above areas, so I am a very well rounded forensic accountant, particularly in the entertainment and IP sectors, where I bring deep industry expertise.
My recommendations for finding the right auditor or forensic accountant for you or your client are to search for someone with a balance of industry expertise and relevant accounting and/or testimony experience. Request the potential expert's CV, a list of cases in which they have testified and/or participated and client references. If the potential expert forensic accountant doesn't ask a lot of questions and clear conflicts before learning details of the case, it is a red flag that he or she is inexperienced.
Finally, make sure you discuss your or your client's budget with the expert; a rate sheet alone won't tell you how many hours of work will be required on your case and if you think all you need the forensic accountant to do is spend an hour putting together a spreadsheet and signing a declaration that you drafted, you may be mistaken; although we often need to define the scope of an engagement to meet a budget, a forensic accountant's work is usually a bit more complex than meets the eye, so do not assume you know how much time a particular engagement may take.
It isn't easy to find an expert who possesses all of the above qualities and when you do, your counterparty will likely endeavor to bar the expert from auditing or testifying.
Some of the strategies to limit a party's top choice of forensic accountant include attempting to:
- Proactively limit contractually:
- Who can conduct an audit (e.g., requiring it be a CPA and/or nationally recognized firm, even though the "Big 4" accounting firms are not especially well regarded as royalty audit or forensic accounting experts and many are unwilling to take on such engagements)
- When an audit can be conducted by your auditor of choice (e.g., certain companies try to prevent the best auditors from conducting more than one audit at a time at any particular company)
- Reactively attempt to discredit your expert by attempting to equate the term "accountant" with "CPA" (although they are not the same) and frame your accounting expert's credentials solely in terms of CPA certification (or other certification or degree), even if the expert is opining on industry practice or damages calculations (and not a public-accounting-related matter, such as compliance with GAAP).
Modern forensic accounting is really a blend of:
- Accounting
- Eeconomics
- Industry expertise
- IT
- language arts
- Above-average understanding of certain legal concepts
While some CPAs, CFEs and economists have this, the vast majority do not, as I once observed when a highly degreed certified public accountant had a meltdown on the stand when he had to admit during questioning that he had no relevant expertise that pertained to the matter at hand.
Fortunately, the curriculum at the University of Southern California - where I studied under highly respected IP attorneys, accountants and economists - and my decades of work experience focus on all of the above areas, so I am a very well rounded forensic accountant, particularly in the entertainment and IP sectors, where I bring deep industry expertise.
My recommendations for finding the right auditor or forensic accountant for you or your client are to search for someone with a balance of industry expertise and relevant accounting and/or testimony experience. Request the potential expert's CV, a list of cases in which they have testified and/or participated and client references. If the potential expert forensic accountant doesn't ask a lot of questions and clear conflicts before learning details of the case, it is a red flag that he or she is inexperienced.
Finally, make sure you discuss your or your client's budget with the expert; a rate sheet alone won't tell you how many hours of work will be required on your case and if you think all you need the forensic accountant to do is spend an hour putting together a spreadsheet and signing a declaration that you drafted, you may be mistaken; although we often need to define the scope of an engagement to meet a budget, a forensic accountant's work is usually a bit more complex than meets the eye, so do not assume you know how much time a particular engagement may take.
Labels:
CPA,
forensic accountant,
forensic accounting
Saturday, March 28, 2015
Introducing Boschan Corp.
Dear readers,
It is my great pleasure to announce that audit and forensic expert services successfully launched this week at Boschan Corp., the sister company of Auditrix, Inc.
Boschan Corp. is dedicated to empowering attorneys to optimize client claims / counterclaims through:
Personally speaking, I am thrilled to return to an entrepreneurial role focused on music, IP, interactive and other select clientele, not to mention a commute that saves hundreds of hours!
Please update your contact records as follows:
Cedar Boschan
President & CEO
Boschan Corp. & Auditrix, Inc.
8383 Wilshire Blvd.
Suite 800
Beverly Hills, CA 90211
Web: Boschan.com
Tel: 424-248-8866
E-m: clientservice@boschan.com
I hope to hear from and see you soon!
Have a wonderful week ahead,
Cedar
It is my great pleasure to announce that audit and forensic expert services successfully launched this week at Boschan Corp., the sister company of Auditrix, Inc.
Boschan Corp. is dedicated to empowering attorneys to optimize client claims / counterclaims through:
- Contract and royalty audits
- Damages, property and restitution valuation
Personally speaking, I am thrilled to return to an entrepreneurial role focused on music, IP, interactive and other select clientele, not to mention a commute that saves hundreds of hours!
Please update your contact records as follows:
Cedar Boschan
President & CEO
Boschan Corp. & Auditrix, Inc.
8383 Wilshire Blvd.
Suite 800
Beverly Hills, CA 90211
Web: Boschan.com
Tel: 424-248-8866
E-m: clientservice@boschan.com
I hope to hear from and see you soon!
Have a wonderful week ahead,
Cedar
Labels:
Boschan Corp.,
damages,
forensic accountant,
royalty audits
Friday, January 9, 2015
Five Things to Consider Before Filing a Music Copyright Case
By Gerard P. Fox, Esq.
Gerard P. Fox, Esq. and his firm handle general business, contract and IP litigation across the entertainment industry and beyond. |
Attorney Gerard P. Fox has acted as lead trial counsel for corporate clients such as Vivendi and Clear Channel. Mr. Fox has also represented high profile entertainers including Madonna, Anita Baker and the Isley Brothers.
From hiring experts to damage awards, in his post below, Mr. Fox shares some very useful tips from his years of copyright litigation experience. For a personalized consultation, contact the Law Offices of Gerard Fox and also check out his Fox's Litigation Strategies Blog.
1.
In my opinion the Federal District Courts have
been improperly applying a quantitative and not qualitative copyright analysis
in music and film cases. This means that they take the totality of your
copyrighted work which you claim has been infringed, and hold it up against the
totality of the infringing work and actively look for dissimilarities.
This is incorrect under the law because in truth a song often includes many
small, integrated and unique copyrightable works. Unfortunately, because the
courts are taking this approach, it is much harder to win a copyright case in
district court. I tried one of the last published wins where I
represented an artist claiming a part of their song was infringed. See Three Boys Music (Ronald Isley) v.
Michael Bolton. It’s not common.
2.
You will need to hire a musicologist up
front. If you want to have any chance of negotiating an early settlement
or defeating an early motion for summary judgment (see below), you will need to
retain an accomplished and respected musicologist. First, you should secure
their independent opinion as a consultant, then if their opinion is one you
respect and one that supports your contentions you should retain them as a
formal expert. Good musicologists, who are respected by defense counsel
and the court, will usually ask for an up front retainer of no less than $5,000
or $10,000. Keep in mind that this retainer is not a cap of their total
billings. If the case proceeds through to depositions, summary judgment
and trial, the musicologist would likely charge you upwards of $25,000.
3.
Another consideration is that the defendants
will most assuredly make an early motion for summary judgment wherein they will
argue that the infringed elements of your song are common and not unique, and
that the two musical works are not substantially similar. They may make
other arguments that are common to these type cases, but these are the two most
likely arguments. In making these arguments, they will put forth cases
that move away from the proper application of Copyright law to a quantitative
analysis of the works. It is imperative that you retain attorneys who
have a deep and up to date understanding of the case law, legislative history
and this process to have any chance of defeating this type of motion.
This is no area for a general practitioner. Defeating this summary
judgment motion is essential, because if you do, which is rare in these cases,
you will have all the leverage, as the defendants would be left to face a
public jury trial.
4.
The prevailing party may be awarded their
attorney’s fees under Copyright law. Under 17 U.S.C. § 505 “the court may
also award reasonable attorney’s fees to the prevailing party” in a copyright
infringement case. This is a huge issue
to consider if you are the artist because if you lose, you could be ordered to
pay hundreds of thousands of dollars of defense fees. Now, awarding
attorney’s fees and costs is discretionary with the district court judge, and
many of these judges will NOT award the defendants their fees even if they win,
on account of their very human concern about the financial devastation such an
award would cause the artist, but this is a risk.
5.
Finally, when it comes to estimating your
damages, you will not be awarded all of the infringing defendants’ net profits
from the infringing distribution and use of the song, but an apportioned
amount. 17 U.S.C. § 504(b) provides that the defendants are entitled to
prove that certain elements of the profits are “attributable to factors other
than the copyrighted work.” See Mackie v. Rieser, 296 F.3d 909,
915–16 (9th Cir.2002) (In the Ninth Circuit, on a claim to recover profits that
are attributable to the copyright infringement, a plaintiff must show that the
infringement itself, that is, the use of the plaintiff's work, was causally
linked to the gross revenue claimed.).
This means that the defendants will argue that their notoriety, other
songs on an album, the marketing behind them and their songs, the market that
pre-exited for their music and other non-infringing parts of the song at issue
were responsible for most of the profits earned, and that you should only be
awarded a small apportioned amount of the net profits. Of course, most
defendants are not truthful about their actual net profits and will try to hide
the true amount of their profits. To combat this it is important that you hire
a forensic accountant who is knowledgeable about the music industry, such as
Green Hasson Janks, to figure out the actual net profits, and then use your
musicologist and maybe another music industry expert to argue that the piece of
music stolen from you drove the sales and as a result defendants’ profits.
# # #
Gerard
("Gerry") Fox graduated from Georgetown Law School, magna cum laude,
and earned an accounting degree from the University of Richmond. Mr. Fox acted
as lead trial counsel for clients such as Vivendi, Clear Channel and Dow
Chemical.
Gerry
started his career at Covington & Burling, followed by Kaye, Scholer,
before forming Fox & Spillane, where Mr. Fox honed his trial skills for
twelve years. Four years ago, Gerry
began the Law Offices of Gerard Fox.
Gerry
handles General Business Litigation, Contract Litigation and Intellectual
Property Litigation across the entertainment industry and beyond.
Gerry
is admitted to practice in Maryland, Washington, D.C., California, has served
as a media commentator, and wrote the book “Sue the Bastards.”
Labels:
attorney,
copyright,
damages,
Federal District Courts,
forensic accountant,
Gerard Fox,
infringement,
litigator,
music,
musicologist,
Net Profits,
song,
trial lawyer
Subscribe to:
Posts (Atom)