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dunn on daMageStHe econoMic daMageS report for litigatorS and
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robert l. dunn
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Marcie D. Bour, CPA/ABV, CFE, BVAL, CFFA, CVAFlorida Business
Valuation Group, Hollywood, FL
Brian P. Brinig, J.D., CPA/ABV, ASABrinig & Company, Inc.,
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Michael A. Crain, CPA/ABV, ASA, CFA, CFEThe Financial Valuation
Group, Ft. Lauderdale, FL
Darrell Dorrell, CPA/ABV, ASA, CVA, CMA, DABFAFinancial
Forensics, Lake Oswego, OR
Robert L. Dunn, J.D.San Francisco, CA
Melinda M. Harper, CPA/ABV/CFF, CFEHarper Lutz Zuber Hofer &
Assoc., LLC, Denver, CO
Everett P. Harry, CPAHarry • Torchiania LLP, San Francisco,
CA
James R. Hitchner, CPA/ABV/CFF, ASAFinancial Valuation Advisors,
Ventnor, NJ
Michael G. Kaplan, CPA, CVA, CFFAKaplan Forensics, Los Angeles,
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Robert M. Lloyd, J.D.The University of Tennessee, Knoxville,
TN
William H. G. Norman, J.D.Cooper, White & Cooper, San
Francisco, CA
Vincent E. O’Brien, DBAOSKR, LLC, Emeryville, CA
Robert C. Schubert, J.D.Schubert Jonckheer & Kolbe LLP, San
Francisco, CA
Ralph Q. Summerford, CPA/ABV/CFF, CFE, CIRAForensic/Strategic
Solutions, Birmingham, AL
Kelly J. Todd, CPA/ABV/CFF, CFEForensic/Strategic Solutions,
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Michael J. Wagner, J.D.LitiNomics, Mountain View, CA
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Blackman, Quebec, Canada
SubScription inforMation
Although the information in this journal has been obtained from
sources that VPS believes to be reliable, we do notguarantee its
accuracy, and such information may be condensed or incomplete. This
journal is intended for information purposes only, and it is not
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Valuation Products and Services, LLC, (VPS) disclaims all
responsibility for its content.
Check out this stellarPanel of Experts!
co
nt
en
ts
Letter from the Editorby Robert L. Dunn
.........................................................................................
1
Sue Your Expert—Liability of Expert Witnesses for Damages
by Robert L. Dunn
.........................................................................................
1
Damages Measurement and the BV Report—Challenges and Pitfallsby
Everett P. Harry
.........................................................................................7
Business Factors and Alter Egoby Melinda M. Harper
................................................................................
14
Infringer’s Profits Should Not Be the Focus of Patent Damages
Casesby Douglas G. Kidder and Vincent E. O’Brien
...................................... 18
Unlocking the Potential of Electronically Stored Information in
Damages Cases
by Kelly Todd and Jeffrey Windham
....................................................... 20
Panel of
Experts...................................................................................................
23
Please enjoy the following article, reprinted from Dunn on
Damages, with my compliments!
Melinda M. Harper, cpa/abv/cff, cfe
Founding member of Harper Lutz Zuber Hofer & Associates,
LLC, Ms. Harper hasbeen testifying about complex commercial damages
for almost 30 years. She is a formerchair of the AICPA’s Consulting
Services Executive Committee and its Litigation andDispute
Resolution Services Subcommittee. Ms. Harper serves as an
arbitrator, expertconsultant and special master. She is a member of
the Colorado Supreme Court’s Attorney Disciplinary Hearing Panel.
She is also an author of PPC’s Guide to LitigationSupport
Services.
http://www.valuationproducts.com/dunn.html
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dunn on daMages issue 4 fall 2011 page 14
INTRODUCTIONPiercing the corporate veil may result inthe rights
or duties of a corporationbeing treated as the rights or
liabilities ofthat corporation's shareholders or direc-tors. Being
able to pierce the corporateveil can make assets available for
judg-ments that would otherwise be protectedby the corporate veil
or shield. The de-termination that it is appropriate topierce the
corporate veil is an equitableremedy.
The corporate veil is the “legal fic-tion” that corporate assets
and debts areowned and controlled by the corporateperson, not by
the owners and employ-ees. Generally, under that fiction,
share-holders are not liable for debts of thecorporation. Piercing
the corporate veilis the process whereby the owners or em-ployees
of the entity become responsiblefor the entities’ debts. In other
words, theacts of a corporation can be attributed toits owners.
In some venues, it is possible to at-tribute the activities of
an owner or in-sider to a corporation, whereby the entitybecomes
responsible for the acts of theindividual; this is termed “reverse
pierc-ing.”1 Please note that this article ap-proaches the topic
from the traditionalview, where piercing is looking throughthe
corporation to the protected individ-ual. While the concepts and
tests are sim-ilar in reverse piercing,2 the factorsdiscussed below
may differ in their rele-vance and application.
Financial experts are involved inalter ego and piercing cases in
order toanalyze the business aspects of the fac-tors and tests. The
court will evaluatethese in making findings on alter ego andthe
appropriateness of allowing piercing.Financial experts in these
cases provideopinions on the underlying factors ortests, not on the
ultimate issue; the ulti-mate issue will be decided by the trier
offact.
PIERCING CONCEPTS AND DEFINITIONSThe following summarizes
concepts anddefinitions addressed in this article:
Alter egoAn alter ego is a person or entityvicariously liable
for another (as anagent).3
Corporate veilThe concept of an entity as a legalperson is a
fundamental legal fic-tion. An entity with legal personal-ity may
shield its shareholders frompersonal liability. In other words,this
legal fiction or concept sepa-rates the personality of a
corpora-tion from the personalities of itsshareholders, protecting
them frombeing personally liable for the com-pany's debts and other
obligations.However, the protection is not ab-solute.Piercing the
corporate veil (disre-garding the corporate entity)Where a court
determines that acorporation exists merely as a com-pletely
controlled front (alter ego)for an individual or managementgroup,
or that its function was toperform illegal activities, it mayhold
the shareholders personally li-able for the company's
obligationsunder the legal concept of lifting, orpiercing, the
corporate veil. Provingthat an organization is a mere cover,or
alter ego, for the businessowner(s) is one way to ‘pierce theveil’
of the corporation or limited li-ability company, taking away
theowners’ limited liability protection.Reverse piercing of the
corporateveil (disregarding the corporate en-tity to attach the
assets of a control-ling party)Where a court determines that
indi-viduals control an entity for theirbenefit, it may allow
creditors toreach beyond the assets of the indi-
vidual to the assets of the corpora-tion, thereby piercing the
corporateveil. Using the assets of the corpo-ration to provide for
payment of acontrolling individual’s debts is re-ferred to as
‘reverse piercing.’
WHEN CAN THE CORPORATEVEIL BE PIERCED?In summary, the corporate
veil can bepierced when shareholders have actedintentionally and
illegally within the cor-porate shelter, when the corporation
hasneglected corporate formalities, or whenthe corporation is found
to be a merealter ego of the shareholders. In somevenues, there
must be both a finding ofalter ego and the use of the
corporatestructure to cause an injustice or inequityor to
perpetrate a fraud in order to allowpiercing.
The first step is determiningwhether alter ego status has been
estab-lished and any other tests required bythe appropriate case
law have been met.The second step is determining whetherpiercing
will be authorized. The thirdstep will be to marshal available
assets.
WHY PIERCE THE CORPORATEVEIL?Attempts to pierce the corporate
veilhave the goal of reaching the resources(money or other assets)
of the alter ego(s)or making them personally responsiblefor the
entities’ debts. Closely held cor-porations have been typical
targets; now,with complex corporate structures(many-layered
entities with parents, sub-sidiaries, siblings, affiliates,
entitiesunder common control, successor corpo-rations, etc.), the
assets of affiliated4 en-tities are also evaluated for
accessibilityunder an alter ego theory.
As one example, if a parent entitynever provides adequate
capital to a sub-sidiary and continuously drains all re-Continued
on next page
business factorsand alter ego tests
Melinda M. Harpercpa/abv/cff, cfe
Harper Lutz Zuber Hofer
& Associates, LLC
Denver, CO
[email protected]
-
dunn on daMages issue 4 fall 2011 page 15
sources from it, so that it never had itsown resources for
paying any incurreddebts, it may be appropriate to lookthrough the
corporate veil of the sub-sidiary to the assets of the parent.
There are many other circum-stances in which attempting to
pierce thecorporate veil may be appropriate, in-cluding:• Using
assets of a corporation for the
benefit of an owner/officer• Hiding fraudulent or illegal acts
be-
hind the corporate veil5
• Preferring insiders over creditors in aninsolvent or
dissolving entity
• Fraudulent transfers• Bankruptcy6
WHAT ARE THE TESTS?State case law defines the tests that
de-termine whether the acts of the partieshave created an alter ego
situation. Thesehave evolved over time and continue toevolve. They
differ from venue to venue,but generally identify similar concepts
tobe considered in making the alter ego de-termination. The trier
of fact evaluatesthe application of the concepts to thefacts and
circumstances of each case inmaking the decision whether to
permitthe piercing of the corporate veil. As ex-amples, the
Colorado and Pennsylvaniatests are listed in the side bar at
right.
Because there are many piercingcases, and because each one has
specificnuances of facts and circumstances, iden-tifying the
appropriate state case law forthe specific facts and circumstances
atissue should be done before applying thetests. For instance, is
this a case of estab-lishing a corporate alter ego resulting inthe
ability to pierce the corporate veil?Or is it a case of reverse
piercing whereattaching the assets of the corporationcontrolled by
its owner or officer is thegoal? Or is the goal to attach the
assets ofan LLC manager or employee? Counselfor the client will be
in the best positionto identify cases that have relevant factsand
circumstances. Note: several statecases are referenced later in
this article.
The most commonly referencedfederal alter ego case is United
States v.Bestfoods, 524 U.S . 51, 61 (1998) (Best-foods). I t
distinguishes direct liability asan operator of sites subject to
environ-mental cleanup under the Comprehen-sive Environmental
Response
Compensation and Liability Act of 1980(CERCLA)7 from
responsibilities de-rived via establishing an alter ego basisfor
piercing the corporate veil. In a foot-note to Bestfoods, the court
notes that“There is significant disagreementamong courts and
commentators overwhether, in enforcing CERCLA’s indi-rect
liability, courts should borrow statelaw, or instead apply a
federal commonlaw of veil piercing.” The court also ref-erences
argument in the same note thatthere may be little practical
difference inthe two.
In a different federal case lawissue, an article written by
Roger Wieg-ley, CEO, “The Corporation Secre-tary,”8 lays out the
possibility thatpiercing standards may be more le-niently applied
in federal cases arisingunder ERISA than those brought understate
law.
These varying views make clearthe need to work with counsel to
identifythe appropriate tests and parameters.
In summary, the factors and testsevaluate compliance with
corporationnorms, separating personal and businessactivities and
benefits, the treatment ofthird parties creditors in comparison
toinsiders, the existence of fraudulent cor-
porate activity and any unjust resultfrom the inability to
pierce. Summariesof some of the procedures that can beperformed to
challenge the tests are de-scribed below.
APPROACH TO THE TESTSThe tests are substantive. The tests
areperformed separately but are evaluatedon an overall basis. Some
of the testsmay not apply or violations may be im-material. Some
tests are generally as-signed more weight than others.
The tests are not mechanical; nei-ther is the judicial
decision-making me-chanical. The courts take seriously thepublic
policy benefits of limited liabilityentities. In addition, each
case has itsown unique facts and circumstances thathave to be
assessed in light of the generalframework.
Applying the tests may result in apattern that supports the
finding that thecorporate person and the owner are
in-distinguishable; that the owner treats thecorporation as his
personal piggy bank;9
or that the entity is merely a shell orfaçade. The nuances of
the decision mak-ing are described in case law in supportfor the
determination that the attempted
Continued on next page
COLORADO ExAmPLE:11
Determination of whether the corporate entity is the alter ego
of the person or en-tity at issue by applying these tests:• Whether
the corporation is operated as a distinct business entity
• Whether funds and assets are commingled• Whether adequate
corporate records are maintained• Whether the nature and form of
the entity’s ownership and control facilitate
misuse by an insider• Whether the business is thinly
capitalized• Whether the corporation is used as a “mere shell”•
Whether shareholders disregard legal formalities• Whether corporate
funds or assets are used for non-corporate purposes• Determination
of whether the use of the entity form was “used to perpetrate a
fraud or defeat a rightful claim”• Determination of whether
disregarding the entity form will achieve an equitable
result.
PENNSYLVANIA ExAmPLE:12
• Undercapitalization• Failure to adhere to corporate
formalities• Substantial intermingling of corporate and personal
affairs• Use of the corporate form to perpetrate fraud
Examples of Case Law Tests for Establishing Existence of Alter
Ego10
-
dunn on daMages issue 4 fall 2011 page 16
piercing succeeded or failed.The fact finder will evaluate
the
total picture revealed by performing thetests, and the other
facts and circum-stances. I t is unlikely that all the testswill be
applicable and some will con-tribute more substance to the
analysisthan others. In other words, the decisionon piercing will
be made based on theoverall facts and circumstances, not onany one
test in isolation.
APPLYING THE TESTSI t is necessary to understand the
rela-tionship between an entity or individualand its possible alter
ego, the corporateveil and the goal of piercing that veil, andother
related allegations before perform-ing the identified tests. I t is
also helpfulto have that information and to assistwith discovery
requests focused on therelevant information. Initial steps to
takeinclude:• Identifying all entities and individuals
for conflict and relationship reviews• Asking counsel to
identify the state or
federal case(s) that are most appropri-ate to the situation
• Working with counsel to draft initialrequests for production
(hopefullydiscovery is still open!)
The sidebar to this article (previouspage) lists the tests from
a representativecase from both Colorado and Pennsylva-nia as
examples of the criteria that will beapplied. I t is worth noting
that the crite-ria are very similar. The Colorado case,with its
more expansive descriptions, isdiscussed below.
In applying the Colorado tests, thefinancial expert can assist
the court byevaluating the factors under the first testand the
second test. The third test is ap-plied by the trier of fact.
• Identifying related party payments• Considering any unusual
account
balances• Reviewing existence and
magnitude of any due to/due from accounts
• Reviewing disbursements for non-business expenditures or
extensive discretionary payments (meals, vehicles, travel,
supplies)
• Ascertaining the existence of financial reporting for
manage-ment or creditors
• Locating tax returns• Evaluating tax id numbers and
NAICS code on tax return• Evaluating compliance with
regulatory reporting•Identifying with counsel the legally
required corporate records and locating them
• Determining the activities of owners and any employees
• Considering involvement of familymembers and any
compensation
• Locating web sites and other marketing materials and
efforts
• Considering the existence of a physical business presence
• Locating online information, including directory listings
• Summarizing names and addresseson business records, including
checks, client invoices, vendor invoices, loans, leases, etc.
• Considering compensation levels for owners, officers and
family members
• Identifying other payments to owners, officers, and family and
affiliates (frequency, nature and amounts of transfers or
payments)
• Identifying non-business assets paid for by the business
• Reviewing customer ledgers or accounts receivable and sales
records
• Evaluating reconciliations of inter-company accounts
• Cancelled checks• Evaluating charges to corporate
credit cards or personal credit cards paid by the business
• Evaluating expense reports• Requesting payroll records
and1099s• Requesting office and other leases
In providing examples of stepsthat can be performed in
conjunctionwith the related factor, some of the fac-tors have been
grouped as some of thesteps to be performed would be similar.I .
The factors are grouped by the type of
procedures that could effectively beperformed as part of the
same process.Factors:- Whether funds and assets are
commingled- Whether the corporation is operated
as a distinct business entity- Whether corporate funds or
assets
are used for non-corporate purposes- Whether adequate corporate
records
are maintainedDiscussion:Findings about these factors are
likelyto be influential in the fact finders de-cision whether to
permit piercing thecorporate veil. Any commingling canbe of the
activities of various corporateentities and of personal affairs,
andnot just cash. Paying some limited per-sonal bills from a
corporate account isnot commingling if the accounting isseparated
and the assets are availableto make distributions to the owner,but
at some level, the activity wouldmeet the commingling test. The
eval-uation should consider the use of cor-porate employees and
resources forpersonal and other business benefits.In other words,
commingling corpo-rate and personal assets and resources,even with
an accounting, may be com-mingling. Also, commingling canoccur
among related entities, as wellas with the owner and the
entity.
Relevant steps in a relatively simplecase would include:•
Identifying bank accounts, along
with account names, used by the entity and the individual
• Locating signature cards and corporate resolutions for bank
accounts
• Identifying existence and content of books and records of the
accounting system
• Evaluating the activities beingrecorded in the books and
records
• Reviewing cash receipts and cash disbursement records;
evaluatingany unusual payees and amountsin light of the business
purpose Continued on next page
• identify ALL entities and individu-
als for conflict and relationship re-
views
• Ask Counsel to identify the state or
federal case(s) that are most ap-
propriate to the situation
• Work with Counsel to draft initial
requests for production (hopefully,
discovery is still open!)
First steps
-
dunn on daMages issue 4 fall 2011 page 17
Factors:- Whether the business is thinly
capitalized- Whether the corporation is used as a“mere
shell”
Discussion:Findings about these factors are likelyto be
influential in the fact finders de-cision whether to permit
piercing thecorporate veil. I f business activity isminimal by
design, it may be that anattempt is being made to shield per-sonal
activity in a corporate form.Relevant testing steps in a
relativelysimple case would include:• Reviewing the balance sheets
and
equity statements, perhaps from inception
• Reviewing statements of cash flows
• Reviewing an aged payables summary
• Considering working capital balances and needs
• Calculating receivables and payables turnover
• Evaluating debt levels over time• Evaluating monthly expense
levels
compared to cash levels• Evaluating business expenditures
in relation to personal expenditures• Considering a business
purpose
for expenditures• Evaluating whether any undercapi-
talization was generated by drain-ing the company of assets or
is dueto unprofitable business activities
• Considering any asset or activity transfers to substantially
equivalent entity
Factors:- Whether the nature and form of the
entity’s ownership and control facil-itate misuse by an
insider
- Whether shareholders disregard legal formalities
Discussion:Findings about these factors are likelyto be less
influential in the fact findersdecision whether to permit
piercingthe corporate veil; however, they mayadd to the overall
picture dependingon the circumstances.
Relevant testing steps in a relativelysimple case would
include:• Identify reporting via Secretary of
State’s web site• Locate appropriate corporate
records• Read corporate minutes and
resolutions• Evaluate level of control and
override by insiders• Consider roles of and influence by
professional employees and advisors
• Consider qualifications of financialand accounting
personnel
• Identify agreements with key insiders (i.e., shareholder
loans)
• Identify transactions with insiders and evaluate fairness of
terms
• For affiliated and co-located entities, evaluate cost sharing
arrangements for office space, computers, employees and
administration
II . Determination of whether the use of the entity form was
“used to perpetrate a fraud or defeat a rightful claim”
Discussion:Defining the steps to take if this cir-cumstance is
suspected will be case-specific and will be driven by the factsand
circumstances. Knowledge offorensic techniques may be
helpful.Gaining an understanding of the busi-ness activities of the
target entity andany affiliates and evaluating the bene-fits of
segregating various activitiesand the interrelationship or
segrega-tion of business segments may also behelpful in evaluating
the business pur-pose of various transactions.
Issues that may come up includepossible fraudulent transfers,
com-mingling personal and business trans-actions, labeling and
treating personalexpenses or liabilities as business ex-penses,
paying family members forservices not performed, making pay-ments
to related parties mislabeled aslegitimate business expenses,
divert-ing business receipts to personal ac-counts or accounts
apparently outsidethe corporate veil, making paymentswithout a
business purpose to entitiesoutside the corporate veil, etc.
Structural issues can also be usedto perpetuate fraud. One
possiblestructure consists of many entities thathave no or very
limited resources, ex-cept as provided at the sole discretion
of a parent entity, that then incur lia-bilities that may not be
repaid.
REPORTING AND CONCLUSIONSAssessing the factors can generate a
lotof information. A format that describesthe procedures performed
and the re-lated findings, organized by area, canhelp guide the
reader through the detail.I t can also be helpful to provide
interimfindings about the information and test-ing, and summary
overall conclusions atthe end of the report. Generally, puttingthe
important findings early in the analy-sis section will promote
utility of the in-formation. Clear explanations andattaching
summaries and key documentswill also promote credibility.
1 Reverse piercing is a relatively new concept and
may not be provided for in every venue. Reverse
piercing was adopted in Colorado on June 26,
2008 in Connolly v. Englewood Post No. 322 Vet-
erans of Foreign Wars of the United States, Inc. (In
re Phillips), No. 05SA316 (Colo. June 26, 2006).2 In reverse
piercing, it may be possible to look to
the assets of a corporation for payments of the
debts of a controlling shareholder or other insider.3
http://research.lawyers.com/glossary/alter-ego.html.4 Affiliates
are commonly understood to include enti-
ties that are directly or indirectly controlled by or
share common control with a parent, subsidiary or
brother/sister entity.5 Piercing the corporate veil can be used
as a tool in
disrupting the flow of money to terrorist organiza-
tions.6 The factors and tests in evaluating alter ego and
the ability to pierce in the bankruptcy context are
not addressed in this article. Under those circum-
stances, the Bankruptcy Code and related case
law should be requested of counsel.7 If the financial expert is
working in a case where
CERCLA is being applied, ask counsel for specific
relevant case law. 8 http://vcexperts.com/
vce/news/buzz/archive
_view.asp ?id=979&referrer=rss9 This terminology, the
“owner’s piggy bank” is not
uncommonly used in case analysis.10
http://research.lawyers.com/glossary/alter-
ego.html11 Colorado and Pennsylvania were selected be-
cause of my experience in evaluating the alter ego
factors in both states.12 McCallum Family LLC v. Winger, Case
No.
09CA0212 (Colo. App. Oct. 20, 2009)12 Lumax Industries, Inc. v.
Aultman, 543 Pa. 38, 41-
41, 669 A.2d 893, 895 (Pa. 1995)
* Also see Suggested Resourceslisted on page 21.
-
dunn on daMages issue 4 fall 2011 page 21
SUGGESTED RESOURCES:1. “Counterterrorism: Conventional Tools for
Uncon-
ventional Warfare,” Darrell D. Dorrell and Gregory
A. Gadawski, Financial Forensics I, March 2005,
Volume 53, Number 2.
2. “Piercing The Corporate Veil: Focusing The In-
quiry,” Cathy S. Krendl and James R. Krendl,
Denver Law Journal, 1978, Vol. 55, Number 1.
3. “Defining ‘Unreasonably Small Capital’ in Fraudu-
lent Conveyance Cases: Ratio Analysis May Pro-
vide an Answer,” Garrick A. Hollander, Business
Lawyer, May 1994.
4. “Colorado Court of Appeals Rules on Piercing
Corporate Veil,” Brent W. Houston, Esq., Col-
orado Law Letter, October 29, 2009.
5. “In re: Phillips – Colorado Adopts ‘Reverse Pierc-
ing’ in a Split 4-3 Decision,” Peter H. Schwartz,
Katelin Oakley, Jennifer Stoldt, Davis Graham &
Stubbs LLP.
6. “Disputing Limited Liability, Northwestern Univer-
sity School of Law,” Northwestern University Law
Review, Christina L. Boyd and David A. Hoffman.
7. “The Content of Veil Piercing Complaints,” Dave
Hoffman, www.concurringopinions.com, October
6, 2009.
8. “Who Gets Sued in Veil Piercing Cases?” Dave
Hoffman, www.concurringopinions.com, October
7, 2009.
9. “What Does Veil Piercing Success Mean Any-
way?” Dave Hoffman,
www.concurringopinions.com, October 8, 2009.
10. “What Factors Correlate With Veil Piercing Suc-
cess?” Dave Hoffman,
www.concurringopinions.com, October 9, 2009.
11. “Piercing the Corporate Veil,” Frank L. Brunetti,
Scarinci Hollenbeck.
12. “Is There Now a Federal Veil Piercing Standard?”
Roger Wiegley, CEO, The Corporation Secretary,
3/31/2011.
13. “Environmental Law-Owners or Operators: Two
Distinct Paths to Parent Corporation Liability
Under CERCLA, United States v. Bestfoods,”
Robert J. Suphin Jr., Lexsee 30 N.M. L. Rev. 109,
Winter 2000.
14. “Consistency in Judicial Interpretation? A Look at
CERCLA Parent Company and Shareholder Lia-
bility After United States v. Bestfoods,” Jennifer S.
Martin+ - Lexsee 17 GA. ST. U.L. Rev. 409,
Winter 2000.
business factorsand alter ego testsby Melinda M. Harper (pp.
14-17)
Harper cover page_Layout 1Fall 2011_Harper article