- 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 the
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: May 25, 2011