Incongruent Court Advice: Examining Fair Value and Fair Market Value Standards in Commercial Damage Cases Pursuant to Minority Claims

Abstract

The standard of value in shareholder oppression and dissolution cases for a valuation of a minority shareholder's interest in a business in most U.S. states is fair value. The fair value standard in most U.S. states excludes discounts for control and lack of marketability. However, the three valuation approaches commonly used (income, market, and asset) all yield different levels of value. Consequently, this can unfairly negatively or positively impact minority and oppressed shareholders. In this paper we examine these inconsistencies and offer a solution to arriving at a level of value the trier of fact is seeking to obtain.