David Benick, ASA Senior Director

David Benick, ASA
Senior Director
Contact
Gavin/Solmonese LLC
1140 Avenue of the Americas
9th Floor
New York, NY 10036
o: 646.380.6615
m: 917.751.7571
[email protected]
Education
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Muhlenberg College, BA –
Accounting
Lehigh University, MBA –
Finance
Memberships & Affiliations
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American Society of
Appraisers (ASA)
American Bankruptcy Institute
(ABI)
New York International
Arbitration Center (NYIAC)
Lehigh Lawyers Association
Dave Benick is an Accredited Senior Appraiser and certified
business valuation expert with over 20 years of experience. Many
of his assignments have been performed for a variety of
purposes, including disputes, bankruptcy, tax reporting, and
management planning.
He has extensive experience in
estimating damages, lost profits, and other economic calculations
in connection with litigation. His engagements include estimating
the economic loss from intellectual property infringement and
determining the fair value of equity and other business interests in
matters involving fraudulent conveyance, dissenting shareholders,
IRS disputes, and the unwinding of joint ventures and marital
dissolution.
Other damages calculations have included valuation analyses
resulting from a variety of causes of action such as breach of
contract, business interruption, tortious interference, and breach
of fiduciary duty. He has determined the investment value for
financial and strategic buyers such as private equity investors
when deals are incorrectly valued as a result of fraudulent activity.
He has worked in a wide variety of industries, including
advertising, chemicals, distribution, financial services (banks,
asset managers, insurance), healthcare (hospitals, insurance),
hospitality, manufacturing, medical paper, metals, nutraceutical,
professional services, real estate, restaurants, retail, technology,
and transaction clearing. His typical engagement scope covers
reviewing projections, budgets, and performing financial ratio
analyses for comparative studies.
Dave’s expert reports have been examined in numerous highprofile trials and arbitrations – domestically, and within the British
Court system. He also has delivered testimony to the Securities
Exchange Commission and participated as an expert witness for
the National Institute for Trial Advocacy on a number of
occasions.
Prior to joining Gavin/Solmonese Dave worked for several
international accounting and consulting firms in financial advisory,
including Deloitte and Grant Thornton.
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David Benick, ASA
Selected Litigation Analytics
Business Interruption
§ Damascus Bakery, Inc. v. Dennis Elwell, Vincent Massaro, Frank Leanza, Secaucus Municipal
Utilities Authority, The Town of Secaucus et al (Case No: 2:08cv1568): Assisted in calculating the
lost profits associated with an alleged failed expansion plan. The analysis involved developing a
but-for valuation methodology and calculating the incremental profit margin as well as drafting the
expert report.
§ Prepared various valuation analyses in connection with insurance claims associated with the
September 11th Terrorist Attack – including Silverstein Properties (World Trade Center buildings)
and Viacom (WCBS-TV).
Commercial Litigation – Economic Loss
§ Various investors against [Madoff Feeder Fund Matters]. A private equity firm allegedly transferred
their assets to Bernard L. Madoff Investment Securities, Inc. (“BLMIS”) without disclosing the fact
that their assets were being invested in BLMIS. The investors claimed that their assets had a
certain investment strategy according to the fund’s offering memorandum and were unaware that
money was being sent directly to BLMIS. Thus, upon the collapse of the Ponzi Scheme, the
investors alleged a loss on investment against the director/officer of the fund. The case involved
what would have been the investors’ return had they invested in the strategy as outlined in the
offering memorandum. The analysis involved researching certain returns over specified investment
horizons and drafting the expert report.
§ G.L.M. Security & Sound, Inc. v. Lojack Corporation (Case No: 10-CV-4701): Assisted in preparing
the expert report and developed the lost profits calculation associated with the breach of a distributor
agreement. The parties in this matter were in the auto parts distribution industry; thus, the analysis
involved preparing an extensive but-for damages methodology, since damages were to be
calculated during the downturn in the auto industry.
§ Phoenix Four, Inc. v. BDO Seidman LLP, BDO Mann Judd, BDO Binder and BDO International
(Case No: AAA 50 104 T 00396 05): Examined the requirements of the Uniform Standards of
Professional Appraisal Practice in connection with the various levels of due diligence for a specific
work-product, since a dispute arose over the reliance of limited scope appraisals. Scope of services
also included drafting the expert report.
Employment Disputes
§ D&S Consultants, Inc. v. Jose Ucles, Netcentric Technologies Inc. and Randy Korich (Case No:
MON-L-00041-11): The Plaintiff claimed that certain customers migrated when an officer accepted
employment at competitor. The analysis included examining the remaining life and economic benefit
of certain customer contracts as well as examining the defense contracting industry at a time in
which the market was declining. Assistance was also provided in authoring the expert report.
§ S.J.A. Inc. & Sherry Jacobson v. Bernard Hodes Group Inc. (Case No: 13 117 Y 01712 08):
Assisted in critiquing the valuation report offered by the opposing expert that was prepared in
connection with a buy-out provision of an executive’s employment agreement.
§ In the Matter of Megan Thode v. Nicholas Ladany, Amanda Carr and Lehigh University (Claim No:
C0048cv2010-11525): Assisted in calculating the lost earnings associated with the award of an
advanced degree that was allegedly denied without cause. This case included examining various
economic reports regarding salaries by profession, geography, and age.
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David Benick, ASA
Intellectual Property Infringement and Valuation
§ Private International Restaurant Chain: Determined a reasonable royalty rate for the use of the
company’s intellectual property; calculated the lost royalties to the minority shareholders of the entity
that held the intellectual property.
§ National Healthcare Insurance Company: Calculated the lost profits in connection with trademark
infringement. The analysis involved developing the appropriate incremental profit margin associated
with the lost revenues.
§ International Paper Company: Determined the value of certain contracts that were not renewed in
connection with alleged unfair competition resulting from the theft of proprietary/confidential
information. This matter also involved quantifying the value of certain trade secrets.
§ Purchase Price Allocations: Performed a fair value analysis of certain tangible and intangible assets
for financial reporting purposes in connection with a company’s acquisition. Notable intangible
assets included customer relationships, developed technology, non-compete agreements, patents
and trade name/trademarks. These analyses have been performed for a variety of companies,
including but not limited to: Air Products & Chemicals, Inc., Citibank N.A., Federated Investors,
Greenwich Associates, Honeywell, Inc., Prudential Financial, Inc., and Merrill Lynch & Co., Inc.
International Arbitration
§ International Center for the Settlement of Investment Disputes (ICSID): Renee Rose Levy de Levi v.
The Republic of Peru (Case No: ARB 10/07): Assisted in preparing an expert report that quantified
the claimant’s alleged lost development rights associated with 5km of seafront property in Lima,
Peru. This engagement included preparing trial exhibits that were presented at The World Bank in
Washington, D.C.
§ International Centre for Dispute Resolution (ICDR): Starlight Investments, LLC v. Oceanfresh
Seafoods PTY Ltd. (Case No: 50 148T 0029911): Assisted in preparing the rebuttal report
regarding the valuation of certain warrants that were to be granted as compensation to the
investment banker for securing the alleged financing.
Insolvency & Fraudulent Conveyance
§ In Re: Nellson Nutraceuticals, Inc., Debtor: Designated as co-consulting expert in a valuation
dispute with respect to confirmation of the plan. Debtor’s original expert was dismissed on a
Daubert challenge and attorneys required financial expertise to challenge and critique the
assumptions supporting a number of expert reports submitted by the creditors.
§ William Tacon and Alastain Beveridge (in their capacity as Joint Liquidators of Ortland Equities
Corporation (in Liquidation)), Claimants v. Pitkin Group Limited, Defendant (Claim No: BVI HCV
(CIV) 2010/11): Assisted in preparing the expert report that valued a limited partnership in a fund
that was allegedly transferred at a price below fair value. Designated as the consulting expert during
trial and developed direct and cross examination questions for Queen’s Counsel while the testifying
expert was sequestered.
Marital Dissolution
§ Assisted in valuing a professional services firm for the wife of a prominent and successful attorney in
the northeast market. My analysis also included preparing a life-style analysis, developing
numerous schedules for many attempts at settlement and explaining the valuation analyses to the
judge presiding over the mediation.
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David Benick, ASA
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Designated the expert in a dispute over the value of marital asset, which included a 25 percent
interest in a closely-held oil distribution business. After preparing the rebuttal report, no testimony
was required and case settled.
Marketability/Minority Interest Discounts Valuation
§ Fisher East River Associates, LLC v. Solow East River Development Company, LLC (Case No:
600110/09): A dispute arose over the value of a 10 percent interest in a joint venture developed
between the named parties. The minority shareholder claimed that its interest should be subject to
the appropriate discounts for non-marketable and minority interests. The analysis involved
examining various restricted stock studies and pre-IPO studies that studied the impact of liquidity.
Assistance was also provided in drafting the various qualitative factors that impact marketability and
minority interest discounts for the expert report.
Corporate Valuation
§ Electronic Payments Company: Valued a transaction clearing company for its Board of Directors for
purposes of adding another significant shareholder, an international financial institution. This
engagement involved advising the board and presenting the valuation conclusion to the
stockholders.
Tax Valuation
§ International Tax: Assisted an international waste-water conglomerate based in Europe in
connection with an IRS dispute involving a worthless stock deduction for its U.S. subsidiaries.
Prepared and delivered responses to panel of IRS agents.
§ Tax Disputes: Aided U.S. Attorneys in the Southern District of New York to examine the
amortization benefits associated with value of certain intangible assets (the trade name/mark of a
well-known woman’s apparel business).
§ Gift & Estate Tax Administration: Valued many types of closely-held businesses for gift and estate
tax planning purposes.
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