Above the Line

And you thought YOUR performance review was bad…

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No one – no one – likes performance reviews. Whether your firm/company does them mid-year, at the end of the year, or some other time, it’s pretty much a given that it doesn’t matter which side of the table you’re on – giver or recipient – you’re not going to be happy.

But at least it’s private (for most people). Your boss (probably) doesn’t stand at the head of the department and say “Bob really screwed up this year! Boy, it’s amazing that Fishbottom is still a client after he handled their leveraged buyout! I haven’t seen work that sloppy since I looked at my six-year-old’s homework!”

So, imagine, if you will, how much fun it must have been to the attorneys for Canal Corporation (formerly Chesapeake) from Troy Gould (Clifton Cates III) and Ivens, Phillips & Barker (David Sherwood and Robert Wellen) to get out of bed on Friday and find that not only had they lost, but that the court had made the effort to shred the work done by Pricewaterhousecoopers that formed the basis of their arguments. And David Miller of PWC is probably wishing that he’d let Donald Compton handle the opinion letter instead. Why? Well, read what the court wrote (thanks to TaxProfBlog for the tip):

Mr. Miller did not have direct authority requiring this percentage. He merely made this determination based on Rev. Proc. 89-12, 1989-1 C.B. 798, which was declared obsolete by Rev. Rul. 2003-99, 2003-2 C.B. 388.8 …

A bad start, considering Mr. Miller was an attorney for the now-defunct Jenkins & Gilchrist (who bit it as a result of Enron…) and should know better than to cite without checking if the cite’s still good. But it gets worse..

Chesapeake paid PWC an $800,000 flat fee for the opinion, not based on time devoted to preparing the opinion. Mr. Miller testified that he and his team spent hours on the opinion. We find this testimony inconsistent with the opinion that was admitted into evidence. The Court questions how much time could have been devoted to the draft opinion because it is littered with typographical errors, disorganized and incomplete. Moreover, Mr. Miller failed to recognize several parts of the opinion. The Court doubts that any firm would have had such a cavalier approach if the firm was being compensated solely for time devoted to rendering the opinion.

In addition, the opinion was riddled with questionable conclusions and unreasonable assumptions. Mr. Miller based his opinion on WISCO maintaining 20 percent of the LLC debt. Mr. Miller had no case law or Code authority to support this percentage, however. He instead relied on an irrelevant revenue procedure as the basis for issuing the “should” opinion. A “should” opinion is the highest level of comfort PWC offers to a client regarding whether the position taken by the client will succeed on the merits. We find it unreasonable that anyone, let alone an attorney, would issue the highest level opinion a firm offers on such dubious legal reasoning.

Ouch. So if your performance review wasn’t the best, just be glad you’re not David Miller today. He probably feels embarrassed to show his face at the office. And David, if your caller ID today says “Canal Corporation,” you probably want to let it go to voice mail.

One wonders: Can Canal get a refund without a receipt or just a firm credit?


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