- 12 - Neither party has advanced evidence or affidavits completely resolving, as a factual matter, the question of whether arm’s- length parties to a similar transaction would share the cost of employee stock options. There are also questions about whether the options had any cost to petitioner at the time of issuance and/or the appropriate time to measure the cost of the stock options. Under these circumstances, we are compelled to hold that there is a genuine dispute about material facts. We cannot say that either party has presented or had the opportunity to fully present facts or other evidence adequately addressing, for the benefit of a fact finder, whether the regulatory standard has been met. Accordingly, this matter is not ripe for summary adjudication, and further development and/or a trial may be necessary to resolve the disputed factual aspects of this case. As to petitioner’s argument that there is no genuine dispute about a material fact because respondent relies solely on opinion evidence, we disagree with petitioner’s perspective. Petitioner chooses to focus on the means by which respondent may attempt to convince the Court that his determination is well founded and/or that his determination is based on conditions that are comparable to those that would have been adopted by unrelated parties similarly situated had they entered into such an arrangement. Even though an expert’s opinion may be hearsay (i.e., not based on the expert’s personal knowledge but on his perception of thePage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: May 25, 2011