Valuation of Intangibles Could be a Slippery Slope Down to Fraud

Last Wednesday, I spoke with our Chairman Emeritus, Lord Daniel Brennan. He brought me up to date on the current and heated public discussion in London over a report by Muddy Waters Research on Burford Capital Ltd. as it pertains to the importance of company valuations.

Burford has a market capitalization of 2.45 billion English pounds. Its business is to invest in litigations and share in any proceeds recovered from defendants. The assets of the firm are mostly contract claims for a share of future winnings. These are very intangible assets. The underlying factors which determine the probability of winning the selected lawsuits are human skills in judgment as to the merits of the plaintiff’s case, research, data analysis, legal argument and persuasion of judge and jury. Rather like betting on who will win a prize fight or a football or soccer game. The bet is only a contract claim to be paid a sum of money depending on an outcome. How, then, should the chances of winning be valued in either case?

The Muddy Waters Research report concluded:

We are short BUR. For years, it was the ultimate “trust me” stock. Thanks to a light disclosure regime, the esoteric nature of its business, and unethical behavior by its largest shareholder, Invesco, it turned Enron-esque mark-to-model accounting into the biggest stock promotion on the AIM. This has all recently changed though. Just this year, BUR began publishing more detailed investment data. This data proves that BUR has been egregiously misrepresenting its ROIC and IRRs, as well as the state of its overall business. We have identified seven methods by which BUR manipulates Concluded Investment ROIC and IRR.

BUR’s top management, through their shareholdings (and sales), is in effect primarily compensated for aggressively marking cases in order to generate non-cash fair value gains. Until now, BUR has gotten away with aggressive and unwarranted marks by touting ROIC and IRR metrics. We show that BUR heavily manipulates these metrics. BUR then actively misleads investors about how its accounting for realized gains works. As a result of this deception, we believe investors give credence to BUR’s fair value gains. In actuality, BUR’s net realized returns have relied on a very small number of cases. Just four cases have produced approximately two-thirds of BUR’s net realized gains since 2012. (One of the four outsized contributors was actually a loss at trial, and was bailed out by BUR’s largest shareholder, Invesco, at the direction of Neil Woodford protégé Mark Barnett. Absent the bailout, the case almost certainly would have been a total loss.)

BUR is a perfect storm for an accounting fiasco. BUR’s governance strictures are laughter-inducing. The CFO is the wife of the founder/CEO. Under the best of circumstances, this should alarm investors; however, with a company that consistently books non-cash accounting profits, it is unforgivable. BUR has cycled through four prior CFOs or senior finance managers (none of whom stayed for long). These facts beg the question “Is (current CFO) Elizabeth O’Connell the only CFO who can be relied upon to approve the accounts?” (see here)

The full Muddy Waters Research report can be found here.

The issues around Burford’s accounting and valuation estimates raise very difficult questions about the valuation of intangibles. One set is how to do this responsibly. Another set is how to prevent misrepresentation and fraud in the use of assumptions about the probability of future events. And a third set is what rules and standards should be adopted to constrain forecasts which will easily and quickly slip-slide away into fairytales and artfully constructed ratios and financial categories which will mislead even sensible investors.

Since it is more and more accepted that in today’s global economy, intangible assets are growing in importance as drivers of profits, getting them measured properly and their valuations disclosed properly is also more and more necessary.