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foreign investors. In that context, the foreign investors placed
a $50 million “value” on the trademark to infuse capital into
DHL. Without first obtaining a valuation, petitioners’
representatives reduced the value to $20 million for tax and
other purposes. At one point, the DHL shareholders made a
counteroffer of $100 million for the trademark. After all of
that maneuvering, Bain was given the job of valuing the trademark
and supported the $20 million figure. In this connection,
respondent points out that, although the Bain “valuation” was in
the record and testimony offered in connection with it, Bain was
not offered as an “expert” in support of the $20 million value.
In that connection, petitioners did offer several other experts
who attempted to sustain the $20 million value.
Considering all of the above, we hold that it was not
reasonable for petitioners to rely on (or more properly hide
behind) the Bain appraisal or comfort letter. If the parties to
the transaction had given the valuation to an independent
valuation entity before any values being placed on the trademark
by the parties and/or not advised the evaluator of a value, it
might have been reasonable for petitioners to rely on such an
appraisal.29 As this trial has again demonstrated, parties can
find experts who will advance and support values that favor the
position of the person or entity that hired them.
29 We would find it difficult to believe that Bain
independently reached the same $20 million figure as the parties
and/or their representative had already devised.
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