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FASB litigation accounting IV

Beck and Herrmann weigh in with several links including one to the FASB's own page allowing the visitor to view copies of letters it's received commenting on the proposed standard. For example, V.P. and General Counsel Michael H. Gibbs of restaurant chain Whataburger writes:

1. There is absolutely no limit on what plaintiffs can demand - as such these outrageous demand amounts constitute hyperbole, disclosure of which has little, if any, bearing on what the actual reasonably estimable exposure might be.
2. These rules would require waiver of attorney client privilege for highly sensitive case assessment information in most states, including Texas.
3. These rules would therefore result in providing great benefits to plaintiff lawyers who would no doubt argue to juries that the maximum identified exposure is an admission of what should be paid (or at a minimum, the actual reserve would be such an admission). Notwithstanding the perceived benefit for accounting rules etc, what the jury will hear is "the company admits exposure of $ X".
4. Once disclosed or discoverable, the actual per claim reserve amount will become the floor demand of the other party in any dispute - after all, once reserved, it costs the company "nothing" from an accounting standpoint to pay that amount on that particular claim.
5. Perhaps worst of all, once individual case ranges are provided to accounting firms, it invites them to substitute their judgment for the professional opinion of counsel, as opposed to simply auditing the process used. If you give them numbers, they will be constitutionally incapable of avoiding the tendency to challenge the range, the probabilities, or any other calculations.

John A. Hepp of the Illinois CPA Society, on behalf of his society's relevant committee, deems the disclosure of short-term unlikely exposures "neither relevant nor beneficial":
The Committee is concerned that the inclusion of large numbers of cases, especially frivolous ones, will mask the actual exposure. There is an emerging body of academic research indicating that the "wordiness" of MD&A increases as news gets worse in an attempt to discourage users from reading the document or to overwhelm them with information in order to hide relevant disclosures.

And the U.S. Chamber's Institute for Legal Reform comments here. Earlier coverage here, here, and here.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.