In the ever-evolving world of mergers and acquisitions, the demand for expert financial opinions has never been greater. A central requirement in many transactions is a fairness opinion – a professional evaluation that verifies a transaction is financially fair to shareholders.
As M&A transactions grow more specialized and intricate, expert fairness opinions from conflict-free sources are crucial for ensuring integrity, transparency, and regulatory compliance. At Sanli Pastore & Hill (SP&H), we have witnessed firsthand the essential role these opinions play in ensuring fair and balanced transactions.
Understanding the Need for Fairness Opinions
Fairness opinions serve as independent assessments that the transaction terms are fair from a financial perspective. This is particularly important when there are multiple shareholder groups with different interests. For example, management often holds shares and may stand to gain from the sale, potentially through benefits such as “golden parachutes” or better career prospects with the acquiring company. Meanwhile, non-management shareholders may not have the same direct benefits and are instead focused solely on obtaining a fair price for their shares.
Hiring an independent provider to issue a fairness opinion adds a layer of protection for all involved, ensuring that the transaction has been objectively reviewed. Shareholders, especially in public companies or those with diverse ownership structures (e.g., private companies with multiple generations of shareholders), need the peace of mind that comes from knowing an unbiased party has verified the fairness of the transaction.
The Role of Multiple Fairness Opinions
In complex deals, shareholders may even seek multiple fairness opinions from different firms to ensure independence and objectivity. This can be necessary when there are perceived conflicts of interest, such as when a fairness opinion provider has a longstanding relationship with company management. Having multiple opinions can facilitate comprehensive discussions about the transaction terms, ensuring transparency and satisfaction for everyone involved.
Increasing Specialization and Complexity in Financial Opinions
With the growing complexity of transactions, fairness opinions have become more specialized. Financial advisory firms use advanced valuation techniques, thorough research, and intricate due diligence processes to issue fairness opinions. These opinions now require not only deep valuation expertise but also sector-specific knowledge, as the nuances in certain industries (e.g., tech, pharmaceuticals) demand familiarity with unique market dynamics, regulations, and growth prospects.
Engaging an independent firm with a sole focus on valuation and fairness opinions, like SP&H, mitigates conflicts and ensures the opinion is grounded in solid financial analysis rather than incentives tied to transaction completion. This distinction is critical as it limits potential biases and helps stakeholders trust the fairness opinion’s validity.
The Problem with Investment Banks Issuing Fairness Opinions
Investment banks frequently play dual roles in M&A transactions by representing the seller and offering fairness opinions on the deal. This scenario creates a significant conflict of interest. Investment banks are financially motivated to complete the transaction, often making millions in advisory fees. When the same bank is hired to issue a fairness opinion – typically for a fraction of the transaction fee – there is pressure to support the deal, regardless of its true fairness to shareholders.
Even when banks claim a “Chinese wall” separates the advisory and fairness opinion teams, this division is often impractical in practice. Legal cases have demonstrated how rushed fairness opinions can be, sometimes issued within days on multi-billion-dollar deals, without sufficient due diligence. In one notable case, Lazard Frères provided a fairness opinion on a $3 billion transaction within three days, which the court deemed implausible given the scope of work required. This ruling highlighted the skepticism that courts, shareholders, and regulators hold toward fairness opinions issued by parties with a vested interest in deal completion.
Consequences of Incorrect or Biased Fairness Opinions
When biased fairness opinions go unchallenged, the results can be disastrous. If a transaction proceeds on the basis of a biased opinion, shareholders may later discover they were misled and pursue legal action. Lawsuits and class-action suits have occurred when shareholders alleged they were harmed by transactions endorsed by fairness opinions from conflicted parties. This not only risks financial penalties but can lead to reputational damage for companies and individuals involved, loss of licenses, and even criminal investigations. Punitive damages, particularly in cases involving alleged fraud, can amplify the financial consequences, as courts may order multipliers on damages to discourage similar actions in the future.
Bridging Public and Private Transactions
Aside from corporate M&A, fairness opinions also play a vital role in public-private partnerships, where taxpayer funds and resources are involved. A city might offer land or tax incentives to a private developer for a project such as a sports stadium. In these cases, a fairness opinion protects public interests by assessing whether the transaction is financially fair to taxpayers. Without an independent evaluation, the deal might be perceived as a “sweetheart deal” that undervalues public resources, benefiting private parties at taxpayer expense. By engaging independent fairness opinion providers, cities can ensure they are making sound financial decisions and maintain public trust in their stewardship of community assets.
Selecting Conflict-Free Experts
One of the most effective ways to ensure unbiased opinions is to choose a fairness opinion provider with no conflicts of interest. Companies can screen for potential conflicts by requesting written disclosures from providers. This includes confirming that the provider has no financial, managerial, or advisory ties to any parties involved in the transaction. Ideally, the chosen firm should be independent of any transactional incentives, perhaps even operating in a different jurisdiction or specializing solely in valuation services. These firms offer fairness opinions that reassure shareholders and other stakeholders of their unbiased commitment to financial accuracy and transparency.
For selling companies, obtaining a pre-sale business valuation from an independent firm can be invaluable. For instance, SP&H offer pre-sale assessments that aid in setting realistic expectations, structuring deals advantageously, and even identifying areas where value can be enhanced before a sale. This preparation not only optimizes the sale price but also provides a credible foundation for the fairness opinion process, as stakeholders can trust that the valuation was derived independently of any transaction fees or conflicting interests.
Moving Forward With Confidence
As M&A transactions grow more complex, the demand for expert and independent financial opinions will continue to rise. At Sanli Pastore & Hill, we remain dedicated to offering our expertise to help navigate these challenging waters. We pride ourselves on our long-standing track record of providing impartial fairness opinions since 1992. Our boutique firm structure allows us to refrain from engaging in investment banking activities, ensuring that our opinions are not influenced by transaction fees.
Whether evaluating a cross-border M&A deal or a public-private partnership, we deliver opinions rooted solely in financial diligence and integrity, offering clients the assurance they need to move forward with confidence.
Nevin Sanli of Sanli Pastore & Hill has been a financial consultant for over 30 years, specializing in forensic accounting, business, brand & IP valuations, fairness & solvency opinions and transaction advisory services.
For further information and advice, contact Nevin at:
(310) 571-3400
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