You have just had an initial meeting about a potential litigation support engagement

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You have just had an initial meeting about a potential litigation support engagement.  You met with an attorney who represents an individual named John Tower.  Tower holds a real estate investment that is currently the subject of a dispute. 

 

The case facts

 

The formation of a partnership and purchase of Manhattan commercial real estate

 

In 1996, a woman named Penninah Flowers identified a commercial building in the borough of Manhattan, part of New York City.  She believed it was a great investment opportunity.  The building was run down, and Mrs. Flowers was convinced that it would be a profitable if it were purchased, improved and held for the long term as a rental income-producing property.  

 

Mrs. Flowers met with Mr. Tower and Mr. Parsons, among others, to discuss the investment.  Mr. Tower later discussed the opportunity with his brother, Anthony.  John and Anthony Tower decided to invest together.  They formed an entity called Two Brothers LLC to make this investment. 

 

Ultimately, the following parties made initial investments to form FPT Partners Realty LLC ("FPT"):

• Penninah Flowers
• Paul Parsons
• Two Brothers LLC (owned 90% by John and 10% by Anthony)

 

Each of these parties signed an Operating Agreement for FPT.  According to the Operating Agreement, if not otherwise terminated, the partnership would dissolve on December 31, 2016.

 

Each of the Members made an initial capital contribution and the partnership obtained debt financing.  With the capital that had been raised, the partnership purchased the building, which had street-level retail space and residential apartments.  The building looked like this:

For many years, the investment generated positive cash flows.  The rent income generally exceeded the loan payments and operating costs.  For the most part, capital improvements and repairs were funded over time out of the operating cash flow.   Some working capital was retained in the partnership.  Excess cash flow, as determined by the Managing Partner, was distributed once a year from the partnership to the partners.   The partnership generated a cash distribution in each and every year since it was founded, although the amounts varied. John Tower has generally been happy with the investment returns.

 

From the outset, it was understood that Mrs. Flowers would be the Managing Member of the partnership and would make the decisions regarding the management of the property.  In 1996, Mrs. Flowers was 54 years old.  She came from a family that owned and managed a number of commercial properties in the metropolitan New York area.  Mrs. Flowers has a daughter, Barbara Meadows and a son-in-law Timothy Meadows.  Timothy Meadows, Barbara's husband, is a well-regarded real estate executive and owner and CEO of Meadows Property Management, a company that specialized in managing Manhattan commercial real estate. 

 

Sometime after the Operating Agreement was executed, Mrs. Flowers appointed Meadows Property Management to provide property management services for an agreed-upon fee.  That fee was an expense of the partnership.  John Tower and Paul Parsons were aware that Meadows Property Management was a related party and was providing management services. 

 

Changes over the years relating to Two Brothers LLC and Paul Parsons

 

Around 1998, Anthony Tower wanted out of his partnership with his brother John.  John purchased his brother's interest in Two Brothers LLC.  John became the sole 

owner of Two Brothers LLC.  Around that time, John notified Penninah Flowers of the change in the ownership of Two Brothers LLC.  Since approximately 1999, all the mailings and filings were directed to John Tower as the sole owner of Two Brothers LLC.  Correspondence between John Tower and FPT always indicated John's status as "member" or "partner" of FPT.

 

Sometime in 2005 or 2006, Paul Parsons was effectuating some estate tax planning, and transferred his interest in FPT to a Family Limited Partnership. John Tower doesn't have much information about that transfer.

 

Performance of the investment and events relating to the dissolution date

 

Throughout the years, Mr. Tower received annual distributions and occasional correspondence from FPT.   He was never involved in the management of the building or the operations of the partnership.  He understood that his investment was illiquid.   He always saw himself as a passive investor and was content to receive cash distributions of the profits until the end of the partnership in 2016.  He spoke to Mr. Parsons from time to time, but had little contact with Mrs. Flowers except through the limited correspondence about FPT.  Shortly after each year end, he received a Form K-1 partnership tax report from FPT, which he used to file his income taxes.  

 

By early 2016, Mr. Tower began thinking about FPT.  He was retired by this time and he wanted to be rid of the investment.  He was glad FPT would be wrapping up at year end.   He began to wonder why he hadn't heard anything from FPT about the upcoming dissolution.   

 

He suspected that Mrs. Flowers had retired and that Meadow Management was handling all the day-to-day management matters.  He called the office of Meadow Management to try to speak to Mrs. Flowers, but his calls were not returned.  Finally, he sent letter to Mrs. Flowers at the Meadow Management office address to inquire about the dissolution.  Instead of receiving a response from Mrs. Flowers, as he had expected, he got a strange letter from Timothy Meadows of Meadow Management.  The letter was unsigned, but indicated "on behalf of the managing member of FPT Realty LLC" that "the building continues to be a solid investment and we are not currently anticipating sale of the building in the near future."   Mr. Tower sent a reply letter to Mr. Meadows and Mrs. Flowers stating that it was his understanding that the partnership would dissolve as of December 31, 2016 and that he hoped that Mrs. Flowers would maximize the returns to the partners by liquidating while the commercial real estate market in New York remained strong.

 

A couple of weeks later, Mr. Tower received a letter on Meadows Management letterhead from Mr. Meadows offering to purchase his interest in FPT for $500,000.  The letter said, "we are authorized to offer $500,000 for your interest.  This offer is valid for 8 days."

 

Mr. Tower's daughter Alana Tower had recently begun to help him with his financial affairs. When he discussed the recent correspondence with Alana, she asked to look at the documents. She was surprised at how little documentation he had.  There were only Forms K-1 that provided an annual report of income for tax purposes, the original Operating Agreement and the correspondence relating to the cash 

distributions that John Tower had received over the years.  Alana did a Google search on the name of Penninah Flowers.  To her surprise, Google returned an obituary that indicated that Mrs. Flowers had passed away in Palm Springs in December 2013!

 

The litigation

 

The news that Mrs. Flowers had passed away over two years earlier shocked Mr. Tower into action.  He hired legal counsel to assert his rights, if any, under the partnership agreement.

 

Mr. Tower also telephoned Mr. Parsons, although he hadn't talked to him in years.  Mr. Parsons was also surprised to hear that Mrs. Flowers had passed away.  Mr. Tower told him that he was exploring legal options to enforce the December 31, 2016 dissolution of the partnership.  Mr. Parsons said that he was in poor health and did not want to sue anyone or be sued.   

 

Mr. Tower's attorney made preliminary oral and written inquiries of the attorneys for Meadow Management and the Flowers family.  During these communications, the counsel for Meadow Management and/or the Flowers family disclosed the following:

 

• Prior to her passing, on October 15, 2013, Penninah Flowers and Barbara Meadows had signed documents to transfer 33% of her interest in FPT to the Penninah Flowers 2009 Family Trust, effective as of September 30, 2010.

 

• Barbara Meadows is the trustee of the Penninah Flowers 2009 Family Trust.

 

• Barbara Meadows is also the personal representative (executor) of the Estate of Penninah Flowers.

 

• On August 2015, the Penninah Flowers 2009 Family Trust was designated the Managing Member of FPT.

 

• Meadows Management continues to manage the building.

 

• A one-page financial summary was provided to counsel.

 

Mr. Tower has filed suit in New York, seeking to enforce his rights under the partnership agreement.   The complaint was filed in January 2017 and the defendants filed a motion to dismiss in March 2017. 

 

The attorney provided you with a few documents to consider:

• The original Operating Agreement from 1996
• The litigation complaint filed by John Tower
• The defendants' motion to dismiss
• The one-page summary of financial information

Case study questions

 

The attorney who has called you is asked for you to consult on this litigation matter.    He would like some help in thinking through the forensic accounting and real estate valuation aspects of this, including help in preparing document requests for the discovery phase of the litigation. The attorney suspects that the early offer to buy John Tower's interest suggests that the Meadows family would be interested in a cash settlement of the dispute, if the price was right.   

 

You are using the following questions as a guideline for your discussion with the attorney to scope out the case and plan the engagement.

 

1. Engagement acceptance:  What are your initial considerations as you consider whether or not to accept an engagement to serve as a forensic accountant in this matter?

 

1. Key forensic accounting issues: What are the most significant forensic accounting issues you want to raise with the attorney?  Focus on the ones that will be most important to Mr. Tower and his counsel.  It is not helpful to list every possible issue. In general, focusing on the most important issues will be helpful to your potential client.

 

1. Other key issues: What are the most significant non-accounting issues you see?  What are the critical questions that must be addressed by someone other than the forensic accountants?  Ex the forensic accounting work?

 

1. Suggested work scope: What is the forensic accounting work scope would you suggest to the attorney?   In suggesting a work scope remember the following:

 

1. The client will want to know your work scope and how much this will cost.  For this exercise, do not prepare a budget.  But, be cognizant of the scope of work you are proposing and the amount of work that will be entailed.  The client, Mr. Tower is fee-sensitive.  He wants to do whatever work will help him maximize his return on the matter, but he doesn't want to spend a ton of money on forensic accounting. Be sure your suggestions are focused and targeted on work that will make a difference.
2. General statements are not helpful.  (e.g. "We need to investigate" is inadequate.)       Be sure that you are suggesting specific tasks and areas of inquiry.
3. Remember your professional obligations to speak candidly and objectively with your potential client.
4. Make sure that you are suggesting a work scope that reaches an appropriate understanding about what you will do and what you will not do.  Do not over-promise what you may not be able to achieve.
5. Documents request:  Your client will want a list of documents and information you will need.  What information and documents should be requested from the client and from the opponent in discovery?   In framing your response, consider the following: a)Be specific.  (e.g., "Financial records" is too general to be helpful.  A good request list uses specific names of specific documents and provides a date range or specifies the document set.  For example, "Financial statements including balance sheet, income statement and statements of cash flows, together with footnotes disclosures as of and for the periods ended December 31, 2019, December 31, 2018 and December 31, 2017" is specific.) b)Try to frame your answer in such a way that the attorneys could prepare an information request from your response.