KATHRYN CASEY and SHEILA GAGLIANO v. AMBOY BANCORPORATION

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0715-04T3

KATHRYN CASEY and SHEILA
GAGLIANO,

Plaintiffs-Respondents/
Cross-Appellants,

and

CAROL DeSANCTIS, JOHN EVERITT,
and THOMAS MORRISSEY, individually
and as representative of the
Class,

Plaintiffs-Respondents/
Cross-Appellants,

v.

AMBOY BANCORPORATION, a New Jersey
corporation, and NEW AMBOY, INC.,
a New Jersey corporation,

Defendants-Appellants/
Cross-Respondents,

and

SUSAN HERMANOS,

Defendant-Intervenor/
Respondent/Cross-Appellant,

and

GEORGE B. BRENNAN, JOSEPH J.
DiSEPIO, PATRICIA M. KEYS,
FRANK T. KURZAWA, GEORGE E.
SCHARPF, HAROLD SMITH, JONATHAN
HEILBRUNN, ROBERT D. O'DONNELL,
and CARMEN YACUZZIO,

Defendants.

 

Text Box
 
August 10, 2006

Argued: March 8, 2006 - Decided:

Before Judges Fall, Parker and Yannotti

On appeal from the Superior Court of New Jersey, Chancery Division, Equity Part, Union County, Docket Number UNN-C-180-97.

Dennis T. Kearney argued the cause for appellants/cross-respondents Amboy Bancorporation and New Amboy, Inc. (Pitney, Hardin, Kipp & Szuch, attorneys; Mr. Kearney and Helen A. Nau, on the brief).

R. Bruce McNew (Taylor & McNew) of the Delaware bar, admitted pro hac vice, argued the cause for respondents/cross-appellants Carol DeSanctis, John Everitt, and Thomas Morrissey, individually and as representatives of the class (Trujillo Rodriguez & Richards and Mr. McNew, attorneys; Mr. McNew, of counsel; Lisa J. Rodriguez, on the brief).

David R. Strickler argued the cause for respondents/cross-appellants Catherine Casey and Sheila Gagliano (Norris, McLaughlin & Marcus, attorneys; Mr. Strickler, on the brief).

Kelly Strange Crawford argued the cause for respondent/cross-appellant Susan Hermanos (Riker, Danzig, Scherer, Hyland & Perretti, attorneys; Ms. Crawford, on the brief).
 
PER CURIAM
This appeal involves the ongoing issue of the determination of "fair value" of each share of bank stock to be paid to certain minority shareholders under a corporation reorganization and merger plan that included an election to be taxed as a Subchapter S corporation, as approved by more than two-thirds of the shareholders of Amboy Bancorporation at its November 19, 1997 shareholders' meeting. This represents the third appeal in this court after completion of the second remanded proceedings by the trial court.
Specifically, Amboy Bancorporation appeals from a final judgment entered on August 30, 2004, after a plenary hearing conducted after our second remand, finding that the fair value of shares of its stock, as of November 19, 1997, was $114.00 per share; awarding pre-judgment interest; entering judgment in favor of the members of the consolidated class action in the amount of $10,946,492.66, inclusive of pre-judgment interest to the date of judgment; continuing as unchanged the prior court determination concerning the award of counsel fees to class counsel at 20% of the judgment amount; awarding $92,997.08 in additional expenses of class counsel to be paid from the common fund; approving RSM McGladrey, Inc. as claims administrator; awarding $150,418.67 in counsel fees and expenses to defendant/intervenor Susan Hermanos to be paid by Amboy; entering judgment in favor of Hermanos against Amboy in the amount of $533,172.29, inclusive of those awarded counsel fees and costs, along with pre-judgment interest to the date of judgment; and entering judgment in favor of plaintiffs Kathryn Casey and Sheila Gagliano in the amount of $93,065.81 each against Amboy, inclusive of pre-judgment interest to the date of judgment. Plaintiffs Carol DeSanctis, John Everitt and Thomas Morrissey, individually and on behalf of the class, plaintiffs Casey and Gagliano, and defendant/intervenor Hermanos separately cross-appeal from those portions of the final judgment that established $114.00 as the fair value of each share.
The factual and procedural history leading to the remand proceedings currently under review is set forth in detail in our prior decisions, Casey v. Brennan, 344 N.J. Super. 83 (App. Div. 2001) (Casey I), aff'd, 173 N.J. 177 (2002), and Casey v. Bancorporation (Casey II), A-4590-01T5, A-4849-01T5, A-4850-01T5 (App. Div. June 26, 2003). Briefly, Amboy, through its board of directors and by vote of more than two-thirds of its shares at a special meeting held on November 19, 1997, approved a plan of corporate reorganization and merger that included an election to be taxed as a Subchapter S corporation. In order to obtain Subchapter S status, Amboy was required to reduce its then-current shareholder base from approximately four hundred and twenty down to less than seventy-five. Under the reorganization and merger plan adopted by Amboy's board of directors, shareholders owning 15,000 or more shares would continue to be shareholders; those owning fewer shares, who did not elect to purchase additional shares to meet the 15,000-share threshold, would receive cash for their shares and cease to be shareholders.
The plan, as adopted, was designed to result in a maximum of fifty-five continuing shareholders, consummated by an agreement and plan of merger between Amboy Bancorporation and New Amboy, Inc., a newly formed shell corporation. Under that agreement, Amboy Bancorporation merged into New Amboy, Inc. and was given the name "Amboy Bancorporation." Relying on an evaluation and a financial fairness opinion provided to it by Robert Walters, chairman of Bank Advisory Group, Inc. (BAG), Amboy's board of directors determined that the fair value to be paid for each cashed-out share under the reorganization and merger plan would be $73. Casey, supra, 344 N.J. Super. at 95.
Several shareholder actions resulted, challenging Amboy's reorganization and cash-out merger plan, and Amboy's determination of fair value to be paid for each share. On or about December 5, 1997, Casey and Gagliano filed a complaint in the Chancery Division against Amboy, New Amboy, Inc. and members of Amboy's board of directors. On January 29, 1998, DeSanctis and Everitt filed a class action complaint in the Chancery Division against essentially the same defendants, as did Morrissey on or about March 4, 1998. Those complaints alleged, inter alia, that Amboy had failed to offer the selling shareholders under the cash-out merger plan a price that represented the "fair value" for their shares as mandated by N.J.S.A. 14A:11-3(2). On March 12, 1998, Amboy filed a complaint in the Chancery Division against Hermanos, a statutory dissenting shareholder owning in excess of 15,000 shares, seeking a judicial determination of the fair value of her shares pursuant to N.J.S.A. 14A:11-7(1). Hermanos answered and counterclaimed, seeking judgment for the fair value of her shares; Hermanos was designated as a defendant-intervenor.
The class actions were certified and consolidated, and DeSanctis, Everitt and Morrissey were designated by the trial court as representatives of the class, consisting of all persons owning less than 15,000 shares of Amboy on November 19, 1997, whose shares were cashed-out under the approved merger plan. All actions were consolidated and heard in the Chancery Division in Union County. Although there were numerous issues determined in the resulting trial court proceedings, and by the referenced reported decisions in this court and the Supreme Court, the sole appellate issue subsequent to our reported decision in Casey supra, concerned the fair value that Amboy was to pay shareholders for the forced cash-out of their shares.
In granting partial summary judgment by an order entered on February 18, 1999, the trial court ruled that Amboy was to be valued as a going concern, and that marketability discounts, minority discounts, and control premiums were prohibited in the valuation calculus as a matter of law. Id. at 110. The trial court also held "that post-merger events and their effects were not to be considered [in the valuation analysis], because dissenting shareholders by definition relinquish the opportunity to share in the corporation's prospects." Ibid.
During a lengthy trial that ensued in the Chancery Division in 1999, "each of the parties presented expert witnesses who gave opinions as to the value of the stock." Id. at 101. Additionally, the trial court had appointed Christopher Hargrove of Professional Bank Services as an expert to value Amboy as a going concern, without marketability or minority interest discounts, and without a control premium. Hargrove issued a report dated March 8, 1999, containing his fair-value analysis of Amboy as of November 18, 1997, using financial data as of September 30, 1997. Id. at 102. We need not repeat the findings, analyses and conclusions of each expert concerning that proceeding.
After considering the testimony, evidence, and reports of the experts, the trial court found that the fair value to be paid by Amboy for each cashed-out share was $90. Although we agreed with much of the trial court's analysis, we reversed that conclusion and "remanded the matter for further proceedings not inconsistent with [our] opinion." Id. at 126.
In our prior reported opinion, we outlined controlling valuation principles and established guidelines for the remand proceedings. Noting that "fair value" as of November 19, 1997 (not "fair market value"), was to be the standard for valuation, we recognized that "[t]here is no inflexible test for determining fair value as '[v]aluation is an art rather than a science.'" Id. at 111 (quoting Lawson Mardon Wheaton, Inc. v. Smith, 160 N.J. 383, 397 (1999)).
We agreed with the conclusion of the trial court that when determining fair value, marketability and minority-interest discounts were not to be applied in the valuation calculus. Id. at 112. However, we disagreed with the trial court's ruling that consideration of a control premium as a valuation element was prohibited as a matter of law. Ibid.
We explained that "[a] control premium is 'the added amount an investor is willing to pay for the privilege of directly influencing the corporation's affairs.'" Id. at 112-13 (quoting Lawson Mardon Wheaton, Inc. v. Smith, 315 N.J. Super. 32, 67 (App. Div. 1998) (citations omitted), rev'd on other grounds, 160 N.J. 383 (1999)). Citing with approval to Rapid-American Corp. v. Harris, 603 A.2d 796, 805-06 (Del. 1992),
 
we conclude[d] that in a valuation proceeding a control premium should be considered in order to reflect market realities, provided it is not used as a vehicle for the impermissible purpose of including the value of anticipated future effects of the merger. Because the judge determined that a control premium was prohibited as a matter of law we are constrained to reverse and remand to permit the judge to consider what, if any, impact a control premium should have on valuation of the stock. If necessary, an adjustment should be made to exclude from the valuation anticipated future effects of the merger.

[Id. at 113.]
 
In considering application of valuation methods to determine fair value, the trial court had rejected the use of acquisition valuations. However, since that valuation technique was generally acceptable in the financial communities, we ruled that "it should not be excluded automatically." Id. at 114. (citing to Lawson, supra, 160 N.J. at 397). We instructed, as follows:
 
Accordingly, on remand, the judge may not reject acquisition valuations outright. However, there must be a correction for synergies. N.J.S.A. 14A:11-3(3)(c) (fair value must exclude any appreciation or depreciation resulting from the proposed merger).

[Ibid.]
 
We also concluded that the trial court should have considered the acquisition or control-discount approach testified to by Walters of BAG, stating, in pertinent part:
 
Under this approach, fair value is determined for a controlling block of stock. Although that approach contained an inherent control premium, Walters testified that it did not contain an element for synergies, at least when regarded as a "majority value." It also included the types of adjustments for the differences between the comparable banks and Amboy that the judge correctly required for a valuation of Amboy as a unique company, rather than as some kind of average of its peer group. That result was $110 per share before BAG incorrectly applied the impermissible minority and marketability discounts to bring it down to $70.13 per share. We also conclude, for essentially the same reasons, that the judge erred by failing to consider FinPro's and McConnell's acquisition approaches.

[Ibid.]
 
In its 1999 opinion, the trial court had also disregarded Clarke's guideline-valuation result, concluding "that the market-price approach contained an inherent control value." Ibid. In concluding that the trial court had erred in disregarding that approach, we stated:
 
For guidance, on remand, the judge should consider correcting [Clarke's] market-price result for the minority discount that Delaware courts have found inherent in that method. In addition, the judge's use of [Clarke's] and [Walters'] discounted-cash-flow result without correction for the inherent minority discount that it recognized in them raises the same concerns. On remand, the parties shall be given the opportunity to explore and seek to develop a methodology to correct for the inherent minority discount, and exclude the element of synergies and future benefits before applying a control premium.

[Ibid.]
 
We provided the following additional guidance concerning the issue of valuation on the remand:
 
In sum, on the question of valuation, we conclude that the judge erred by automatically excluding control premiums as an element of fair value, and also erred in disregarding valuations that had an inherent control premium. Accordingly, we are constrained to reverse and remand. On remand the judge must consider valuations that determine the acquisition value of Amboy as a going concern, or that, in effect, determine a sale price for Amboy as a going concern. In addition, on remand the judge may not reject automatically methods of valuation that involve a control premium. However, there must be an adjustment to exclude from control premiums anticipated synergies or other future effects of the merger. Finally, the judge must consider any method of valuation that is generally acceptable in the financial communities, and is otherwise admissible in court.

[Id. at 115.]
 
Subsequent to our reported decision, after a conference with all counsel on August 17, 2001, a dispute arose among counsel concerning the form of a scheduling order, centering on the issue of whether the parties had reached an agreement during the August 17, 2001 conference as to whether the existing record was to be considered adequate to complete the remand proceedings, or whether the issue of the reopening of the record should be left an open issue.
Ultimately, the court entered a scheduling order on December 4, 2001, reciting that the parties had agreed that the court would "initially address the issues on remand without reopening the record[.]" That order set a briefing schedule, with oral argument to be scheduled upon the court's review of the briefs. The order also provided that
 
the Court has indicated that it may contact the Court-appointed expert with questions it may have. Prior to oral argument, all communications from the expert shall be in writing with a copy to counsel at least five (5) days prior to oral argument[.]
 
In accordance with instructions from the trial court, Hargrove issued a supplemental report dated January 31, 2002. After summarizing our remand instructions, Hargrove reviewed the valuation approaches used by the other experts, and noted their acknowledgment that part of their control premiums represented anticipated synergies, which they had not estimated or provided a method for quantifying. Hargrove stated that the experts had agreed, however, that in analyzing the acquisition valuations, the acquirers had paid a higher price when they used stock acquisitions than when they used cash acquisitions. Hargrove attributed that partly to the use of the "pooling of interest" accounting method where an acquisition is funded through an exchange of shares of the acquirer and the target of the merger, which produces superior financial results, when compared to the "purchase accounting method" used for cash acquisitions, because a share exchange at a higher price would actually not cost the acquirer more than would a cash acquisition at a lower price.
Hargrove then reviewed the data produced by Walters during his trial testimony on comparable banks that had been acquired for cash in 1996 and 1997. After excluding three "poor performers," Hargrove applied the average of the five remaining banks that he concluded more closely resembled Amboy in operating performance and capital structure. Hargrove concluded that those five banks exemplified the observation by himself and other experts that a bank with a superior return on equity will normally sell or trade at a higher ratio of price to book value, but a lower ratio of price to earnings. Hargrove also stated that "averages" were superior to "medians" for a group as small as five entities.
Using Budd's 2.02% figure for Amboy's return on assets and its 16.75% for return on equity, Hargrove applied Walters' unweighted average multiples of price to equity and to earnings for those five banks, resulting in a per-share value of $86.38 using a price-to-equity ratio, and a value of $105.01 per share using a price-to-earnings ratio. Those results implied a book value of $45 per share, and earnings per share of $7.01, respectively, which closely paralleled Clarke's figures of $44.99 for book value and $6.99 for earnings. Hargrove then averaged his results, and concluded that the resulting $95.69 per share value included consideration of a control premium and with no application of discounts, thereby consistent with our instructions on remand.
All parties submitted briefs in accordance with the scheduling order and the trial court heard oral argument on February 13, 2002. Counsel for the class action plaintiffs and counsel for plaintiffs Casey and Gagliano requested permission to take Hargrove's deposition before proceeding to a final hearing. The court reserved decision. On February 27, 2002, the court issued a letter opinion finding that all parties had agreed not to submit supplemental expert reports; that there was no need to depose Hargrove because his supplemental report was based on the prior record; that Hargrove's supplemental report was admitted into the record; and that the fair value of Amboy's shares, as of November 19, 1997, was $100 per share. A final judgment memorializing those findings was entered on that date.
In support of its decision, the court issued a second opinion letter. After analyzing and rejecting the positions on valuation argued by all counsel, the court found the analysis in Hargrove's January 31, 2002 supplemental report to be persuasive and stated, in pertinent part:
 
In the Hargrove report submitted to this Court prior to the hearing, he indicated a fair value of $95.69. This includes a control premium. It does not quantify nor adjust for synergies. Hargrove took the middle ground between a low of $86.38 to a high of $105.01. It is undisputed that Amboy was described as a high performer. It would appear that the range should be narrowed, therefore, to a more appropriate range of $95.69 to $105.01. Greater weight must be given on balance to price earnings. Consequently, it would be the opinion of this Court that this would be a fair method to determine a just and realistic number. It avoids the low numbers advocated by Walters and the high numbers advocated by Clarke, Budd and Musso. It considers all of the methodologies but selects acquisition value as the more realistic approach. In light of the fact that this Court originally held that $89.31 constituted fair value without a control premium, it is obvious that by adding a control premium as required by the remand, the valuation must be increased.

However, as observed by Amboy at the time, trade values and acquisition prices appear to have merged. It would not be appropriate to take the highest value in the range, i.e., $105.01. That factor requires constraint by this Court. On the other hand, Amboy being a good financial performer requires that it be treated higher than the $95.69 average proposed by Hargrove. The answer appears to be above $95.69 and below $105.01. The conclusion drawn by this Court to achieve the highest realistic value of a share that would be paid by a purchaser to acquire Amboy as [an] ongoing concern, would be $100.00 per share.
 
On March 14, 2002, the class action plaintiffs filed a motion for reconsideration or, in the alternative, for a new trial. On March 19, 2002, Casey and Gagliano filed a motion for a new trial or, in the alternative, for an order amending or altering the final judgment pursuant to R. 1:7-4(b) and R. 4:49-2, or relief from judgment pursuant to R. 4:50-1. Because the trial judge had retired, these motions were argued before a different judge on April 16, 2002. After reserving decision, the court issued a written opinion dated April 30, 2002, denying the motions.
On the second appeal, we reversed and remanded, concluding that the trial court had erred in considering Hargrove's supplemental report. Casey, A-4590-01T5, et al. (slip op. at 18). Specifically, we concluded that "[g]iven our remand instructions, at a minimum, [plaintiffs] had a right to examine Hargrove to determine how he reached the results in his supplemental report." Ibid. We found that "the scheduling order did not preclude the parties from seeking a review of Hargrove's supplemental report by their own experts, and submission of supplemental expert reports[.]" Id., slip op. at 19. In conclusion, we stated:
 
In light of the procedural deficiencies in the remand proceedings, we necessarily conclude that the trial court erred in determining the fair value of Amboy's stock to be $100 per share as of November 18, 1997. However, we make no substantive ruling in that regard.
 
We reverse the final judgment entered by the court on February 27, 2002 and the order entered on April 25, 2002, denying appellants' motion for reconsideration. We remand the matter for further proceedings consistent with this opinion. In doing so, we direct that each party be given the opportunity to submit a supplemental expert report on the issue of fair value of Amboy's stock as of November 18, 1997, specifically addressing our original remand instructions. The parties shall also have the right to cross-examine and depose all experts on their supplemental opinions. If all parties and the trial court can agree, they may: (1) determine to submit the matter to the trial court for argument and decision without further testimony after those supplemental reports are submitted and exchanged, without the necessity of further testimony; (2) determine to conduct depositions of the experts after submission and exchange of the supplemental reports, and then submit the supplemental reports and depositions to the trial court for argument and decision without the necessity of further testimony; or (3) agree upon any other method of hearing and disposition after the submission and exchange of the supplemental reports. If all parties and the trial court cannot agree, then the matter shall proceed to and be resolved after a full plenary hearing.

[Id., slip op. at 22-23.]
 
On the second remand, the trial court issued a case management order on August 4, 2003, providing for the preparation and exchange of supplemental expert reports, a motion schedule, a pretrial conference, and a trial date for January 26, 2004. However, upon the retirement of the judge issuing that order, the matter was transferred to Judge Thomas N. Lyons.
On January 2, 2004, Judge Lyons issued a second case management order providing for discovery, the issuance and critique of expert reports, a settlement conference, and rescheduling of the trial date to March 29, 2004. All five experts issued supplemental reports. The matter was tried before Judge Lyons on March 29, March 30, March 31, and April 1, 2004. The trial consisted of expert testimony from David Clarke of The Griffing Group; David Budd of McConnell, Budd & Romano; Donald Musso of FinPro, Inc.; Richard A. Place of Alex Scheshunoff & Co.; and Christopher Hargrove of Professional Banking Services.
On July 16, 2004, Judge Lyons issued a written opinion analyzing the testimony and reports of each expert. The judge concluded that $114 per share represented "fair value" that was just and equitable to all shareholders.
After receiving submissions from all parties, on August 13, 2004, the court conducted a hearing concerning the issues of pre-judgment interest, class action counsel fees and costs, and the statutory dissenter counsel fees and expenses. The court's determinations on those issues appear in the final judgment issued by the court on August 30, 2004.
On appeal, Amboy presents the following arguments for our consideration:
 
POINT I
BASED ON THEIR ACCEPTANCE OF THE BENEFITS OF THE JUDGMENT AFTER THE FIRST REMAND, PLAINTIFFS ARE ESTOPPED FROM ATTACKING THE $100 PER SHARE JUDGMENT.

POINT II
THE TRIAL COURT ERRED BY ADOPTING A "FAIR VALUE" STANDARD THAT IS UNSUPPORTED IN LAW.

POINT III
THE TRIAL COURT'S FAIR VALUE DETERMINATION IS CONTRARY TO FEDERAL LAW WHICH PERMITS BANKS TO REORGANIZE AS SUBCHAPTER S CORPORATIONS.

POINT IV
THE TRIAL COURT ERRED IN AWARDING HERMANOS ATTORNEYS' FEES AND COSTS.
 
On cross-appeal, the class action plaintiffs argue that the trial court erred in reducing the $120 fair value by $6 for synergies, and erred in reducing the post-judgment interest rate on their judgment. Plaintiffs Casey and Gagliano contend that the trial judge erred in his fair value analysis and should have adopted Musso's valuation of $144.48 per share; erred in reducing his determination of fair value by synergies; and erred in not establishing pre-judgment interest in accordance with court rules. Hermanos asserts that the trial court erred in reducing its determination of fair value by $6 on the basis of an adjustment for synergies.
I.
We begin our analysis with a lengthy, but necessary discussion of the expert reports and testimony submitted to the trial court during the second remand proceedings.
A. The expert reports in the second remand.
1. Griffing. On August 31, 2003, David Clarke of Griffing provided a supplemental appraisal report. It noted that Amboy's net income and total assets continued to increase from September 30, 1997, to the valuation date, and it concluded that use of the September 30, 1997 data from its original report would understate fair value. It accordingly used updated stock prices, from November 18, 1997, for its five guideline companies to adjust the multiples that it had used to calculate Amboy's fair value. It continued to use its 31.5% figure for adding a control premium to results that embedded a minority discount.
Griffing adjusted its prior discounted cash-flow result of $109.48 per share by subtracting $19.78, which represented "excess capital and unrealized gain" as opposed to productive assets or earnings; applying the control premium; and then adding back the $19.78, for a new discounted cash-flow valuation of $137.74 per share. Griffing disclaimed the presence of synergies "relating to the merger in question" in its discounted cash-flow results, on the ground that it never included an element for the particular operational efficiencies Amboy might have anticipated or for the benefits of changing from Subchapter C to Subchapter S status.
Griffing also updated its "controlling interest" discounted cash-flow analysis, while using the growth rates and "profitability assumptions" for Amboy from its initial valuation, to reach a value of $146.75. It confirmed the reasonableness of that result by comparing it to Amboy's actual performance from 1998 through 2002. Amboy's assets grew during that period at a compound annual rate of 9.4%, which was 70% above what Griffing had projected as part of its original valuations, and its net income for 2002 was $35.54 million, compared to Griffing's original projection of $21.58 million. Indeed, Griffing noted that "Amboy experienced significantly higher growth in assets and profitability than any expert projected." The results derived from what proved to be underestimates of Amboy's performance, both the updated controlling-interest discounted cash-flow result of $146.75 and the original result of $149, were thus "low when compared to Amboy's actual performance."
Griffing also related a valuation of $151.23 per share, achieved by applying the 31.5% control premium to its prior "minority interest" guidelines result. It averaged that result with the new $146.75 discounted cash-flow result to conclude that Amboy's fair value was $149 per share.
Griffing noted that the available data did not permit more than a guess at operational synergies, but nonetheless suggested that they were a minor element in the control premiums for acquisitions, because the data showed that those premiums were "not very different" from those in "going private" transactions, which by their nature created "few, if any," synergies.
Turning to the other experts, Griffing found that FinPro only needed to correct its misstatements of Amboy's book value as of September 30, 1997, and of Amboy's last-twelve-months' earnings per share to the proper figures of $142.43 million and $7.01. Those corrections, with FinPro's own multiples for earnings and book value, would result in $127.96 per share based on book value and $144.90 per share based on earnings. Similar adjustments to McConnell's guidelines approach, plus an increase by 31.5% to adjust for McConnell's use of minority-value trading multiples, would yield a fair value of $159.55 per share.
On December 1, 2003, Griffing again revised its valuation to reflect a correction in its guidelines analysis, namely, the use of November 18, 1997 prices for the guideline companies, rather than the December 2, 1997 prices that it had used by mistake. The change reduced Griffing's new guidelines result from $151.23 to $147.36 per share. Griffing then gave 60% of the weight to the revised guidelines result and 40% to its $146.75 DCF result to conclude that fair value was $147 per share.
2. Sheshunoff. In the meantime, on September 18, 2003, Richard A. Place of Alex Sheshunoff and Co. Investment Banking provided defendants with its critique report on the valuations performed by the other experts. It opined that their pricing multiples based on Amboy's book value were artificially high because they lacked a correction for Amboy's unusually high level of capital. Indeed, part of Amboy's motivation to change its capital structure was that the excess capital was not generating as high a return as the rest of its assets were. Subtracting the excess capital was thus required if the other experts' projections of a 5.5% rate of asset growth and a 2% return on assets were to be realistic.
Sheshunoff believed that "the potential improvements to earnings that an acquirer could expect to achieve [were] not sufficient to justify" a multiple of price to book value of more than 3.00, even at a capital level of 7%. Sheshunoff would, accordingly, have used the 7% figure for capital level, which was more sustainable than Amboy's actual capital level of 12.57% and thus "commonly considered to be reasonable" for its class of entity. Sheshunoff's own results at a capital level of 7% were an acquisition-value multiple of price to equity of 3.08, and a comparable-transaction multiple of 2.52. While the multiples of price to equity implied by the results of the other experts were all nominally less than 3.00, except for the multiple of 3.31 implied by Griffing's acquisition-value result, Sheshunoff found that if the capital level were adjusted to 7%, those implied multiplies rose to a range of 3.02 to 4.16, with the only lower figures being the adjusted multiples implicit in BAG's comparable-company result and Hargrove's initial acquisition-value result (2.57 and 2.90, respectively).
Sheshunoff held the parallel belief that "the potential improvements to earnings that an acquirer could expect to achieve are not sufficient to justify . . . an earnings multiple over 15.0." At earnings per share of $7.01, it derived implicit price-earnings multiples of 16.7 to 21.3 from the fair value results of Griffing, McConnell, and FinPro. Sheshunoff's own earnings multiples were 13.8 by the acquisition-value method, and 11.8 by the comparable-companies method.
Sheshunoff had one technical criticism of Griffing's discounted cash-flow analysis, namely, its use of a 12% discount rate instead of the 14% rate that Sheshunoff considered more appropriate for a valuation as of the last quarter of 1997. It believed in the higher rate based on: unnamed aspects of the capital asset pricing model, a construct that some of the other experts had also developed for their valuations; "the small-cap premium" that lenders tended to impose on smaller entities like Amboy; and the unlikelihood of Amboy's sustaining its rate of return on assets at the 12.57% capital level that Griffing assumed, much less sustaining the rate of return on assets that Griffing projected.
Sheshunoff's own calculation of fair value included "the revenue enhancements, cost savings, [and] changes in asset growth that would be achieved as a result of" a recapitalization of Amboy which retained its management, a form of transaction which Sheshunoff called a "stand-alone acquisition." The use of a 14% discount factor to reflect those elements rather then 12% yielded an "enterprise value," or "value per share on a stand-alone control basis without acquisition synergies," of $94; that was Sheshunoff's opinion of "fair value" as it understood New Jersey law to define the term. Sheshunoff performed other calculations to see what improvements acquirers might anticipate from a merger with Amboy, but it excluded their value from its opinion because they all represented synergies.
As a separate assessment of whether $120 per share could be a reasonable value for Amboy, Sheshunoff looked for a reasonable "set of assumptions" that could yield such a result in a discounted cash-flow analysis. Using Griffing's projected cash flows, Sheshunoff found that a value of $120 would require a discount rate of 11.45% rather than 14%, which it considered too low for "the inherent risk" that Amboy would be less attractive to investors because it was less likely than "alternative investments" to achieve those cash flows. Even if the discount rate were set at the 14% that Sheshunoff considered reasonable, Amboy's return on assets would still have to increase from 2% to 2.8%, a forty-percent improvement that Sheshunoff considered "highly unlikely." Sheshunoff accordingly opined that "there is no combination of cash flows and risk that would justify a value of $120 per share regardless of the approach used to generate the value."
3. McConnell. On September 18, 2003, David Budd of McConnell, Budd & Romano, Inc. issued a revised version of its valuation of Amboy's stock as of November 18, 1997, based on what it called judicial directives "to eliminate the financial impact of the consideration of synergies (if any) from the analysis." McConnell believed that there was a distinction between synergies and cost savings, and it viewed cost savings "as a critical motivator in the whole" banking industry. Furthermore, McConnell believed that it would be wrong to ignore cost savings, stating: "We are assuming that the courts are not saying that cost savings are 'synergies' and thus cannot be considered. To do so, in our opinion would be to depart so radically from economic reality as to render any analysis worthless."
In its analysis based on comparable transactions, McConnell used the same figures as previously, except for two multiples that were slightly higher: Amboy's multiple of price to last- four-quarters' earnings was 10.58 instead of 10.41, and the multiple of Amboy's price over tangible book value was 1.65 instead of 1.62. The new multiples yielded small decreases when applied to the earnings and book values of McConnell's most-comparable banks: $124.89 versus $126.87 when using the mean of those banks' earnings, $122.13 versus $124.15 with their median earnings, $112.50 versus $114.36 from their mean book value, and $113.38 versus $115.17 with their median book value. Instead of finding the "midpoint" again, it chose, based on its "extensive actual experience that merger multiples are primarily based on earnings" to assign a relative weight of three-quarters to the mean and median of the comparables' earnings multiples and one-quarter to the mean and median of their book-value multiples, yielding a fair value for Amboy of $121.80 per share.
McConnell then performed an "upstream" analysis as a separate test, simply to confirm that the slightly higher new result remained feasible. It found that three of the potential acquirers named in its initial report could have acquired Amboy without diluting their earnings per share, although McConnell assumed that each acquirer would achieve "associated cost savings," which it did not describe beyond stating that they "would likely have been viewed as easily accomplished by some hypothetical acquirers and not possible to accomplish by others." McConnell also used its new $121.80 result in a present-value analysis that it saw as separate confirmation of its reliability.
4. FinPro. On September 19, 2003, Donald Musso of FinPro, Inc. issued a supplemental expert report with a revision to its April 1998 valuation. FinPro understood our two opinions as requiring it to address three matters: (1) a correction to the figures it had used for Amboy's earnings per share; (2) the possibility of adjusting for "cash versus stock" in the comparable bank mergers; and (3) the elimination of synergies "if possible."
FinPro had previously relied on BAG's statement of Amboy's earnings per share, which meant that it had erroneously used the December 31, 1996 figure for last-twelve-months' earnings of $6.01, as opposed to the September 30, 1997 figure of $7.01 per share, or $6.99 on the fully diluted basis of 3,175,000 outstanding shares rather than 3,166,000. When it made those corrections (while using the same 20.67 price-earnings multiple), FinPro's comparable-transactions result increased from $124.23 to $144.48 per share, which was the figure it embraced as Amboy's fair value.
FinPro considered the Amboy merger to be a stock-based transaction rather than cash-based, because the remaining shareholders all received fair value in the form of stock, while cash was used only to pay the excluded minority a lesser amount. For that reason, FinPro saw no need to adjust its analysis to account for the use of stock in most mergers rather than cash, and instead found reinforcement for its perception that such an adjustment would be wrong here.
On the issue of synergies, FinPro cited the Pratt treatise See footnote 1 as having observed that there "'is no formula to sort out'" the synergy element of an acquisition price, and that the absence of a formula has led to continuing debate about the propriety of using synergies "'to resolve disputed valuations'" or as part of "'a challenge to the analyst's judgment.'" FinPro agreed, "and as such does not believe that any computational adjustment for synergy can be provided." Nonetheless, it represented that its original and current calculations of fair value "do not include any synergistic benefit derived from this particular transaction."
5. Griffing's response. On October 16, 2003, Griffing issued its assessment of the Sheshunoff report. Griffing disagreed with Sheshunoff's belief that a company being fully acquired by an outsider could have a higher acquisition value if it has a controlling shareholder than if no individual shareholder has control. Griffing found no support for such a distinction in any "valuation treatise or court case," and saw it instead as "a weak attempt to avoid applying a control premium" as this court had mandated for all minority-value results.
Griffing also believed that a discounted cash-flow calculation had to address Amboy's excess capital either by including it or by presuming that it was paid out proportionately to all shareholders, and opined that Sheshunoff failed to make either adjustment on the pretext that "'[m]inority shareholders do not have access to these value drivers on a going-concern basis.'" Griffing considered Sheshunoff's discount rate of 14% to be too high and to lack support, given the use of 12% by BAG and by the Ibbotson yearbook of capital costs that Sheshunoff itself cited. The excessive discount rate served to undervalue Amboy, as did Sheshunoff's assumption that Amboy would retain the excess capital despite its being a drag on performance, rather than reduce it in order to improve the return on assets and return on equity. In sum, Griffing opined that Sheshunoff's "novel" theories were not logical and were "not accepted in the business appraisal community."
6. Sheshunoff's response. Also on October 16, 2003, Sheshunoff sent Amboy's counsel a report in which it concluded that the supplemental reports of Griffing, FinPro, and McConnell repeated their prior inclusion of synergies in all the valuations that assumed a third party would be willing to pay some form of control premium to acquire Amboy.
7. FinPro's response. On October 20, 2003, FinPro issued a report on Sheshunoff's and Griffing's use of the income approach to value Amboy. It noted that the approach "depends upon future projections that are highly sensitive to the assumptions employed," and it disagreed with nearly all of Sheshunoff's assumptions and thus with its result.
Turning to Griffing, FinPro disagreed with its assumptions that Amboy's excess capital would be distributed. FinPro assumed instead that it would not be distributed immediately after the merger, and further assumed an 8% average rate of asset growth rather than Griffing's 5.5%, as well as an 8% average rate of earnings growth compared to Griffing's 4.86%. Those departures from Griffing's assumptions were related, as FinPro believed that "such large distributions of equity capital were not common" in the banking industry due to the double taxation that they suffered, and that it was "more reasonable" to assume instead that a bank "would deploy excess capital to grow the average asset base" at a higher rate than if assets were to grow from its ordinary business operations alone.
FinPro also disagreed with Griffing's capitalization rate for determining Amboy's residual or "terminal value," meaning the discounted present value of all future income beyond the first several years. FinPro believed that Griffing's assumption of annual cash-flow growth of 3% was "extremely low" in light of Amboy's historically higher earnings, and that the capitalization rate of 11.1 times earnings which Griffing derived from it was "substantially below" the multiples of price to last-twelve-months' earnings for New Jersey banks in general and for the banks that FinPro regarded as comparable, which were 18.30 and 20.67, respectively. FinPro chose to rely on the more conservative of those multiples, namely, the 18.30 figure, and derived an income-approach valuation of $145.79 per share, which was close to Griffing's DCF result of $146.75 per share.

B. The expert testimony in the second remand.
1. David Clarke of Griffing Group. Clarke stated he understood a company's "going-concern value" to mean either its acquisition value or its sale value, whereas "stand-alone" value is used for a company that is not being merged or acquired. It was a generally accepted practice in the financial community, particularly in Delaware, to use publicly reported data on acquisition prices in determining fair value without trying to subtract the expected synergies of "cost savings or revenue enhancements or other things that would occur as a result of a merger." Clarke testified he did not know of any generally accepted method for removing synergies from the reported data on acquisitions and control premiums, and he believed that no such method existed because the synergy element would reflect information that the reported data would not capture, namely, the expectations of the buyer and seller in a particular transaction concerning the enhancements that the merger would bring and the extent to which they actually negotiated over them.
Clarke had believed the projections Griffing used for the DCF valuation in its original report came from Amboy's management and were of a kind "prepared on a regular basis." When he learned that those projections had instead come from BAG and were of uncertain provenance, he devised his own based primarily on Amboy's historical results, which was the generally accepted approach in the absence of projections by management. Clarke presumed a capital level of 7% because it was "commonly used" and close to the 7.2% median capital level for Griffing's guideline banks. Griffing derived its discount rate from its capital asset pricing model, which he described as using a "beta," which is a general business-risk factor for banks of Amboy's size in the region, and as also using a "size premium" to account for the cost of capital for companies of that size. Clarke believed that the beta was the factor most dependant on the evaluator's judgment.
As for the guideline analysis in Griffing's original report, Clarke said that Griffing did not realize that the company supplying the data on the comparable banks "would go back and revise the historical stock price to reflect" changes in the number of shares outstanding. Clarke testified to new calculations based on the correct numbers of shares, which the version of Griffing's supplemental report in this record does not contain. In those calculations, the guidelines result increased from the original $92.75 per share without a control premium. See footnote 2
Clarke recognized three of the types of valuation that Sheshunoff mentioned, namely, controlling-interest value, marketable minority value, and nonmarketable minority value. He did not recognize Sheshunoff's fourth type, which it called "stand-alone control" value, and he had not seen it discussed in any treatise. Clarke also thought that Sheshunoff defined the excludable synergies too broadly as "anything to do with a merger," with the result that its approach "never applies a control premium" and "never really confirms whether [its] value is anywhere near where the level of the acquisition market is in terms of valuation multiples," thus understating Amboy's true acquisition value. In addition, Clarke disagreed with all of Sheshunoff's multiples as being much lower than the multiples derived from "the publicly traded markets and the acquisition markets" and from "any of the experts' data."
Clarke criticized Sheshunoff's use of a 14% discount rate by opining that there was no justification for increasing the more-typical 12% rate by "a 2 percent company-specific risk factor," and that doing so served to double-count the kinds of risk that were already incorporated in the beta factor for banks like Amboy. Amplifying the risk element in that manner should be reserved for "a very unusual material" risk, such as a bank's operating under a memo of understanding from the Federal Reserve, and not used in ordinary circumstances such as Amboy's having superior performance or a higher-than-average proportion of real estate among its assets. By contrast, Griffing had calculated an 11.65% discount rate, which it rounded up to 12%, by starting with the 6.1% Treasury bill rate; applying a beta of 0.5 to the 7.5% "equity risk premium" from the Ibbotson yearbook on capital costs; and adding 1.8% as Ibbotson's "size risk" for a company of Amboy's size with no debt. That rate was generally valid for banks like Amboy, so there was no need to add or subtract any amount to represent Amboy's "company-specific risk."
2. David Budd of McConnell, Budd & Romano. Budd testified that he did not identify any synergies or anticipated cost savings in McConnell's initial valuation that needed to be removed, as he thought this court called for excluding only those synergies that would have been particular to Amboy's merger. Although McConnell's results did not explicitly include such elements, Budd cautioned that there was no way to quantify and eliminate such elements from the prices for the comparable banks used in its acquisition analysis. He agreed with Clarke's position that, while hopes for synergies probably exist in every merger, they are "unique to every buyer" and impossible for an outsider to quantify. McConnell did not adjust any of its valuations for synergies, anticipated cost-savings, "leveraging of the excess capital," or anything else.
Budd observed that some of McConnell's comparable banks had balance sheets that were "not dissimilar to" Amboy's, as there were "plenty of commercial bank holding companies who have thrift-like balance sheets." He explained that McConnell's supplemental report used the relative weights of 75% for its earnings result and 25% for its book-value result because acquirers typically put greater weight "on the earning stream that they're acquiring than on the balance sheet characteristics of what they are acquiring." He could not recall why McConnell's initial valuation used different weighting.
Budd testified that an acquisition of Amboy at $121.80 per share would have been feasible for three of McConnell's potential acquirers. He acknowledged that McConnell's valuation was thus at "the high end of the range" of what would have been feasible for the five to seven potential acquirers in the tri-state area that it considered. He did not consider $147 per share to be realistic, and stated that "[s]omeone would have to demonstrate how on earth they could make that work to me for me to believe that."
3. Donald Musso of FinPro, Inc. Musso testified that FinPro did not explicitly include synergies in its valuation. He added that the prices of comparable mergers may have reflected "both positive and negative synergies" because markets go down as well as up. Nonetheless, if a comparable bank were acquired at a negative premium in the absence of a general market trend to that effect, FinPro would have excluded it on the assumption that the transaction had to involve "some material problem."
Musso stated that five years was the industry standard for projecting future earnings, because that was the outer limit for reliably forecasting a bank's cash flows. He accordingly thought that Sheshunoff was unrealistic in calculating a terminal value for "years 11 and out" as if that could be done with reasonable accuracy. For its discount rate, FinPro used the Ibbotson yearbook and did a "build-up" as Griffing had. Musso regarded Sheshunoff's beta of 0.75 as "more of a national beta"; he thought that Sheshunoff should have done what Griffing did, which was to choose a lower beta in order to eliminate the influence of the more-volatile cash flows of banks outside the Mid-Atlantic region.
Musso further criticized Sheshunoff for assuming that Amboy would distribute its excess capital to shareholders, because in his opinion simply giving it back to them "doesn't build value." It would have been more logical to assume that Amboy would use the excess capital to foster growth by opening more branches, issuing more loans, acquiring another bank, or driving up share prices through repurchases. Distributing it to the shareholders would have the disadvantage of making it taxable to them on the excess of its worth over book value. On the other hand, Musso thought that a growth rate of 8% was reasonable even though "Amboy's growth rate had slowed down," given that the "median earnings growth rate for the industry" was 11.9%; in that light, Sheshunoff's and Griffing's growth rate 5.5% seemed too low.
When asked by the court about Budd's feasibility conclusion, which the court represented as being that no bank could have feasibly acquired Amboy at more than approximately $120 per share, Musso disagreed. He thought that Budd was wrong to limit the feasibility inquiry to "just a handful" of potential acquirers, on the ground that a bank truly seeking to be acquired would have no reason to limit the opportunity to a small set of presumptive candidates. Musso was involved in many acquisitions where he was "surprised" when the acquirer was a buyer that was not "on the original list."
4. Richard Place of Sheshunoff. Place testified as a valuation expert for defendants. He acknowledged that Sheshunoff did not attempt to determine the highest price that a ready, willing, and able buyer would have paid for Amboy as of the valuation date. He said that synergies accounted for the $4 difference in its discounted cash-flow results, which were a stand-alone control value of $97 per share and a $101 acquisition value. He was comfortable with a general estimate of synergies at 5%, in part because the control premium for Amboy mostly reflected its excess capital instead. He agreed that anticipated cost savings were sometimes not the only expected synergies, and that it was unknowable to what extent the parties to a merger insisted on including any particular synergy element in the final price.
Place related that Sheshunoff used a 14% discount rate because in 1997 it was using rates between 12% and 18% to value banks, and explained that 14% was a "very reasonable" way to account for the greater risk that Amboy's "relatively strong" return on assets, like any superior performance, could not be sustained. He did not think that presuming a 5% improvement in Amboy's return on assets would represent synergies, because it would not require new management or other resources that only an acquirer could provide.
On the other elements of Sheshunoff's discounted cash flow analysis, Place said that Amboy's excess capital would have distorted the multiple of price to book value, but that Sheshunoff corrected for it by adjusting Amboy's equity to 7% to resemble the comparable banks, which was the better practice because it put Amboy and the comparables on "the same level." It used a higher beta than the other experts because it was willing to project a return on assets of 2% "going forward to infinity," but it had to account for the attendant risk that Amboy would not continue to sustain its superior performance. Sheshunoff calculated the terminal value based on its own projection of Amboy's growth rate and its own understanding of the nature of this merger; the alternative of using a "publicly traded or an acquisition multiple" would have amounted to importing a market-based approach into what was supposed to be purely an income analysis. Another reason for not using acquisition multiples was that Sheshunoff's projected growth rates already reflected the likely improvements in Amboy's earnings for the first five years, so to the extent that an acquisition multiple included an element for such improvements, they would be double-counted.
Place thought that Griffing's DCF result of $124.23 per share was not feasible because it required a 16% growth in the rate of return on assets, whereas the FinPro DCF result of $144.48 was not feasible because it depended on a 37.5% increase in return on assets.
5. Christopher Hargrove of Professional Bank Services. Hargrove testified that a stock-for-stock acquisition reflects the financial characteristics of the acquirer nearly as much as those of the target, which meant that considering such transactions would have introduced elements that were external to the value of the target as an on-going business. For that reason, and because "the dissenters are to receive cash" in this case, he opined that the court "should look at cash acquisitions" only. Hargrove believed that cash acquisitions were influenced primarily by interest rates, not by share prices and other elements that figured in mergers and acquisitions that occurred as share exchanges.
Hargrove said that there was no way to excise the synergy element from the prices at which other mergers and acquisitions occurred. He estimated it at $3 to $5 per share, whether in his own $95.69 result or in the result of "somewhere around $120" that he thought it would be "safe to say" for "a pooling transaction for Amboy."
In rejecting Clarke's opinion that the fair value of Amboy stock was, as of November 18, 1997, $149 per share, the judge stated, in pertinent part:
 
The primary difficulties this court has in accepting Mr. Clarke's analysis is that it lacks proof that his 10% discounted cash flow rate is supportable. Secondly, the comparables he used to determine the control premiums are questionable as to locale, as well as the size of the individual transactions (only three greater than $300 million). Thirdly, there are inherent synergies contained within the comparables used to produce a control premium. However, the most difficult problem this court has in accepting Mr. Clarke's report is Mr. Budd's unrefuted testimony, which this court finds as credible, that there would be no buyers for this bank at prices in excess of $120 a share because of the dilutive effect such a price would have on a potential acquirer. The court, therefore, does not place great weight in his analyses for the reasons set forth above and finds if one were to use the initial analysis of $92 and $93 per share, together with a reasonable control premium, that the result would be somewhere under $120 per share, the price at which Mr. Budd testified would be a feasible and realistic acquisition price in a stock for stock transaction.

[Footnote omitted.]
 
The judge found the testimony of Budd persuasive, stating in pertinent part:
 
Mr. Budd delivered a revised opinion dated September 18, 2003. Mr. Budd again performed an analysis similar to his earlier report and determined a value of $121.80 by attributing a 75% weight to the most comparable mean for the value determined from earnings multiples and a 25% weight for the value determined from book value multiples. He again performed a test of the economic capacity of likely third party buyers to pay the dollar ranges set forth. He used New Jersey and adjacent states commercial banking institutions. Mr. Budd stated that at a price of $121.80, three out of the seven selected acquirers could feasibly do the transaction. Mr. Budd's present value analysis was based on a discounted cash flow method, and again produced price ranges in the area of $120. Again, he used an 11.08% discount rate as opposed to the 12% derived from the Capital Asset Pricing Model of other experts.

It should also be noted that he used a 7% asset growth rate when doing the discounted cash flow analysis for feasibility purposes, together with the 11.08% discount rate, both of which were higher than the other experts. Mr. Budd's conclusion was that the value would range from $112.50 to $124.89 and that $121.80 would be appropriate.

This court was favorably impressed by the fact that Mr. Budd stressed the feasibility of a transaction. He pointed out that no control premium was needed to be added to his number since it was built into the comparables utilized since these were acquisition comparables. However, as also noted, since these comparables were acquisitions and since almost all acquisitions envision some positive synergies, these numbers have, in addition to a control premium, specific synergies which cannot be accurately quantified and reversed. That must be reflected in any final assessment.

Mr. Budd's concept of looking to stock for stock pooling transactions again seemed most realistic, given 90% of all acquisitions at the time were for stock. His number of $121.80 seemed somewhat on the high end of the range since he used a 7% asset growth factor and an 11.08% discount rate.

Most importantly, however, was his testimony in court that at $120, only two out of the seven potential acquirers could complete the deal with favorable resulting financial numbers. He also stated that his value of $121.80 is at the top of the feasibility range and in the upper end of the reasonable range, and that he would have to lower the value to make Amboy more marketable to be sure of getting a transaction.

Overall, however, Budd appears to be the most consistent and the most reasonable when given an opportunity to take a second look after [Casey, supra, 344 N.J. Super. 83]. He stood by his position, as opposed to making changes in assumptions with an effort toward producing a higher number. Mr. Budd's $120 price, while not the theoretically highest possible price a shareholder could have gotten, was, rather, an attempt to arrive at an appropriate acquisition value.
 
In rejecting the opinions provided by Musso, the judge stated:
 
The weaknesses this court found in Mr. Musso's analysis were the narrow choice of comparables and the fact that the comparables did not match in asset size to the transaction that would have occurred with Amboy. There was no discussion of synergy issues up until the October 20, 2003 report. The earnings multiples were the primary foundation for the resulting value, and, most tellingly, there was no feasibility testing done.
 
The court also rejected the opinion advanced by Place, on behalf of Amboy, in his reports dated September 22, 2003 and December 17, 2003. Judge Lyons explained:
 
Mr. Place noted at the outset [in his September 22, 2003 report] that the book multiples are distorted because of Amboy's level of tangible capital, 12.52%[,] which is above that which is normal (7% in most banks). As such, Mr. Place removed the excess capital for purposes of computing multiples and then added the excess back in at the end of his analysis on a dollar-for-dollar basis. He came to $94 per share using a 2.09 price-to-book multiple and a 13.4 price-to-earnings multiple. He arrived at a $97 per-share, so-called acquisition value, using 2.16 price-to-book multiple, 13.8 price-to-earnings multiple.

Mr. Place used a 14% discount rate when doing a discounted cash flow, and also excluded some of the excess capital and unrealized gains, claiming that minority shareholders do not have access to these value drivers on a going-concern basis. His calculations, therefore, resulted in a price of $83 per share. This analysis appears seriously flawed. The ratios certainly do not square with the other comparables shown by the other experts. For instance, if one were to take the Budd multiple of 2.56 for price-to-book and 17.71 price-to-earnings using the adjusted equity of Mr. Place, the range would be between $85 and $116. Then using the 75% earnings weight and 25% book weight, the value would be almost $109 per share. This is not only closer to actual comparables, but feasible when viewed in light of Budd's testimony. There is no real support for using a 14% discount rate, especially when earlier reports agreed with a 12% discount rate.

The Place analyses have a number of deficiencies which undermine their credibility with this court. As stated above, at first a 12% discount rate was found acceptable, but then after the appeal, 14% was used without establishing a significantly credible basis. In doing the discounted cash flow, as well as the multiples, the excess equity and unrealized gains are backed out, but comparable multiples are low and force a low price as a result. The fact that BAG initially set a value of $110 is never adequately addressed, and again undermines the credibility of the analyses. Lastly, all of the comparables used are for cash when the evidence clearly proves that 90% of the transactions done at the time were done as stock for stock pooling transactions which again, created an artificially low price in these reports.

On December 17, 2003, the Place report was again amended revising the acquisition value to $101; a stand alone value to $97, with minority value to $89; and publicly traded value at $81. This amended report does nothing to address the issues discussed above. Place's 14% discount rate is explained as necessary to account for the risk of Amboy continuing to perform above the market. This explanation appeared strained and illogical to the court, as well as unsupported by empirical evidence.
 
The judge also rejected, in part, Hargrove's reports because he had limited his analysis to "using only cash transactions to measure value." However, the judge noted:
 
During Hargrove's testimony, he expressed concern that using comparable prices of publicly traded stock and then applying a 31.5% control premium might result in an inflated value, since the trading value may have in it some elements comparable to a takeover premium which would be reflected in the price. In other words, if the market perceived a bank was about to be sold, the price would be driven up by that news and putting a control premium on top of that price would be inappropriate since it would inflate the value over the price which already reflected a takeover control premium.

A 13% discount rate on a discounted cash flow analys[i]s would be appropriate in Mr. Hargrove's view. During Mr. Hargrove's testimony, he said that if he were doing a pooling transaction, that the value would be somewhere around $120. Mr. Hargrove went on to say that if you wished to remove the synergies of that $120 number, the value would be close to $115. Mr. Hargrove also confirmed that 90% of the deals being done then were stock for stock "pooling" transactions.
 
In formulating his opinion of fair value, the judge noted that the differences in the opinions of the experts in utilizing the guideline company approach and the discounted cash flow approach were "in the assumptions used and the comparables selected." Judge Lyons stated:
 
This court has determined that the north star in ascertaining fair value is to arrive at a value that is just and equitable to all of the shareholders. It should also be a number that is based in reality. In other words, the value arrived at has to be supportable in the market place at the relevant time and academic, theoretical values arrived at by the strained use of assumptions, while intellectually competent, do not meet the measure of reality; and hence could not, by its very terms, be fair. Fair value is clearly a value that is just, equitable, and feasible.
 
The judge rejected the proposition that "fair value" must translate to "highest possible price," noting that "[t]he Legislature could easily [have] used 'highest possible value,' instead of 'fair value,' but did not." Judge Lyons stated that "the value which reflects the highest realistic and reasonable price which could have been had for the securities on the day before the merger is more attuned to the concept of fair value."
After again reviewing the expert testimony, Judge Lyons concluded:
 
The two experts who appeared to be most straightforward were Hargrove and Budd. Mr. Budd, throughout the case, has stood relatively steady in his estimation of value. He sees it in the low $120's. Yet, he ran a feasibility test, and with those feasibility tests indicated that the $120 value would be on the high end of being able to do a merger. He even indicated that out of seven major institutions in the area, only two could do a transaction at a price of $120. When the number is reduced to $114, that number appears to be a feasible transaction for almost six out of the seven potential acquirers. His resulting ratios are supportable. Moreover, when you couple his analyses with that of Mr. Hargrove, who states that if there were to be a stock for stock pooling transaction, he could see $120 a share as a reasonable price. He also testified consistent with Mr. Budd, that the $120 number would have some synergies in it, and Mr. Hargrove reduced that to $115, whereas Mr. Budd said that he could not reduce that number with any precision.

After discounting Clarke and Musso's unsupportable later values and BAG and Place's cash for stock unsupportable values, it appears that a range of $110 to $120 per share seem[s] "fair." Since the $120 end of the spectrum contains some unquantifiable synergies, and is feasible for only a limited few potential acquirers, it is reasonable to look to Mr. Hargrove's $115 value on a stock for stock pooling without synergies and Mr. Budd's feasibility analyses which shows at $114 almost all of the potential reasonable acquirers could accomplish a transaction without significant dilutive effect. Thus, $114 per share is a "fair value" - one that is reflective of the highest, reasonably feasible transaction as an acquirer would contemplate and is just and equitable to all shareholders.
 
II.
Turning to the issues, Amboy first claims that the other parties' acceptance of payment of the first remand judgment amount estopped them from appealing for an increase in the damage award for their fair value claims. More specifically, Amboy argues that the case law prohibits appeals following acceptance of a damage award whenever there is the possibility that the appeal could serve to decrease the award as well as to increase it.
After the entry of the first remand judgment, Amboy moved to pay that judgment amount into court on the condition that any party who then accepted payment from the court would be estopped from challenging the determination of fair value. The trial court denied the motion, finding that the R. 4:48-3 conditions for involving the court in payment of the judgment amount were not satisfied, because the case law allowed a party "to accept payment and appeal to a higher court if they are not satisfied with the judgment" as long as the defendant "makes no showing of having been prejudiced and no reason of substance has been advanced for considering the plaintiff's appeal as voluntarily waived or barred." Indeed, even if Amboy was to make "[a] good faith offer to the plaintiffs" to pay the judgment amount "without conditions attached," the only effect would be to "cease post judgment interest" from continuing to accrue.
Appellate courts decide questions of law de novo, as they owe no deference to a lower court's "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). There is no indication in the record on appeal that Amboy appealed the trial court's ruling on that point. However, the second remand from which defendants now appeal was a new proceeding which produced a higher judgment amount in the other parties' favor, and therefore would have furnished a fresh premise for raising a similar estoppel claim if Amboy had paid the second remand judgment amount, instead of obtaining a stay. Because Amboy failed to raise this estoppel claim until now, we may decline to address it. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (appellate courts generally decline issues not "properly presented" below unless they concern jurisdiction or questions of great public interest); Murin v. Frapaul Const. Co., 240 N.J. Super. 600, 613 (App. Div. 1990).
Nonetheless, we elect to reach this issue as we find no prejudice to the other parties. The claim here does not relate to the fact-finding process in any way, it was litigated to a disposition that included a reasoned opinion, and the preservation of the full record on it means that addressing it now is no more burdensome than addressing it in the prior appeal would have been. See Cornblatt v. Barow, 153 N.J. 218, 230-31 (1998).
Rule 4:48-3 sets forth the legal effects of the losing party's paying the judgment amount into court, and of the winning party's collection of that amount. A party must move for permission to pay the judgment amount into court instead of directly to another party, and the motion may be granted in three circumstances: if the party entitled to receive it rejects tender, or refuses to acknowledge it as satisfaction of the judgment; if the party entitled to receive it cannot be located; or if the party liable for the judgment is pursuing relief from it by motion or appeal. R. 4:48-3(a). Those circumstances did not apply here, because defendants did not appeal the first remand judgment, the other parties were present, and they did not contest that the sums defendants sought to pay into court represented the full judgment amount.
The Rule further specifies that "[p]ayment to the clerk" of the judgment amount "shall not be deemed to affect the right of any party to the action to appeal or to move for relief or for a new trial." R. 4:48-3(b). The Rule does not say what effect a party's collection of its judgment amount from the clerk is to have, and neither has any case to date. However, our courts have addressed whether a party's acceptance of the judgment amount directly from the liable party limits its right to appeal, and we see no reason why the answer would be different simply because the judgment proceeds passed through the court at some point between tender and collection.
In Adolph Gottscho, Inc. v. Am. Marking Corp., 26 N.J. 229, 232 (1958), the judgment was in the plaintiff's favor, the defendant appealed, and the plaintiff cross-appealed. A few weeks after the plaintiff filed its notice of cross-appeal, it accepted the judgment amount and gave the defendant a warrant of satisfaction. Id. at 241-42. The defendant did not formally move to dismiss the cross-appeal, but rather argued in its reply brief that the cross-appeal was "moot" due to the payment of the judgment and the issuance of the warrant. Id. at 241. The Court rejected the argument on the ground that the plaintiff's delivery of the warrant, "while at all times [it] continued to assert that an additional sum was due, was in nowise inconsistent and furnished no real basis for an estoppel," as the defendant made "no showing of having been prejudiced and no reason of substance has been advanced for considering the plaintiff's cross-appeal voluntarily waived or technically barred." Id. at 242.
The Court then observed that the plaintiff was cross-appealing on a single issue, whose "outcome could serve to increase but not to reduce the amount of the judgment." Ibid. It noted that many other jurisdictions "recognize the right of a party to accept a sum to which he is in any event entitled and still pursue his request for a legal ruling on appeal which would increase that sum." Ibid.
The Court's observation concerning the possible effect of the plaintiff's cross-appeal applies to the appeals of the first remand judgment in this case. The former trial judge had relied on the lowest expert valuation without a minority or marketability discount and rejected all the others as legally deficient, so reversal to any extent would require consideration on remand of at least some of the other valuations, which could only lead to an increase in the damage award for fair value. Defendants could then appeal such an increase, but the other parties had no influence over what defendants could do as of right, so they are properly held accountable only for maintaining the consistency of their own positions.
Furthermore, we have explained that a party who accepts the benefits of a judgment is not barred from appealing to increase the damage award, but rather only from appealing on a claim that could invalidate the cause of action for which the damage were awarded. Simon v. Simon, 148 N.J. Super. 40, 42 (App. Div.), certif. denied, 75 N.J. 12 (1977). In Simon, we held that the wife was not estopped from appealing for increases in alimony and child support because her right to relief of that kind "was never in serious dispute." Ibid. If for some reason she were to challenge "the judgment of divorce itself," which was the legal predicate for the trial court to award her alimony and child support in any amount, only then would her appeal create the possibility of showing that she was "not entitled to what was received under the judgment appealed from." Ibid.; accord Esposito v. Esposito, 158 N.J. Super. 285, 301 (App. Div. 1978). This case resembles the circumstances in Simon, because nothing in the shareholders' appeals from the first remand could have served to invalidate their right to receive fair value for their shares, whatever that amount would prove to be.
We therefore conclude that the shareholders were not estopped from appealing the first remand judgment.
III.
Amboy also argues the trial court erred by adopting a "fair value" standard that is unsupported in law. Amboy claims that Judge Lyons erred by choosing improper standards and methods for valuing Amboy. Amboy contends that the judge's insistence on finding the highest feasible sale price and his reliance on the prices in acquisitions that occurred by exchanging shares rather than for cash violated our instruction for a valuation that reflected both the actual Amboy merger transaction and the "market realities." More particularly, Amboy argues that McConnell's acquisition analysis was not generally accepted in the financial community, as demonstrated by its use of a proprietary model for its upstream feasibility analysis and by Budd's inability while testifying to articulate a definition of fair value. Amboy also argues that an analysis that lacked a mechanism for quantifying and eliminating synergies is legally inadequate, and that Budd's admission that McConnell's method lacked such a mechanism made its valuation inadmissible as a matter of law.
Amboy further asserts that Judge Lyons should have respected the reality of the instant merger by considering only cash-acquisition values and disregarded stock-for-stock acquisitions, because Judge Boyle had properly decided to do so in accordance with commentator admonitions to use "cash equivalent" values, and we had not criticized him for that approach. Amboy also argues that Judge Lyons improperly limited himself to stock-for-stock acquisitions as the only acceptable valuations, in the absence of case law support or even evidence that such values ever represented "going concern" value. Furthermore, Amboy contends Judge Lyons was wrong to ignore valuation methods that contained minority discounts, because the market prices of bank stock in 1997, which admittedly tended to bear a minority discount as the prices for buying or selling a minority interest, nonetheless incorporated "takeover premiums" that were high enough to render the minority discounts de minimis. Finally, Amboy contends the judge failed to address the unique financial characteristics of Amboy, which tended to depress a bank's value.
We conclude these arguments are without merit, as Amboy's arguments are misstatements of the governing law, and we have already rejected many of them on the merits in the prior appeals.
A. Standard of review.
Appellate review of factual findings is limited. "Trial court findings are ordinarily not disturbed unless 'they are so wholly unsupportable as to result in a denial of justice.'" Meshinsky v. Nichols Yacht Sales, 110 N.J. 464, 475 (1988) (quoting Rova Farms Resort v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)); see also Rolnick v. Rolnick, 262 N.J. Super. 343, 358 (App. Div. 1993). However, appellate courts decide legal questions without deference to a lower court's "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, supra, 140 N.J. at 378.
In the context of determining fair value, questions concerning whether a particular element or perspective may be considered or must be excluded are questions of law, which an appellate court reviews de novo. Balsamides v. Protameen Chems., 160 N.J. 352, 372-73 (1999); Lawson Mardon Wheaton, Inc. v. Smith, 160 N.J. 383, 398 (1999). By contrast, factual questions, such as the reliability of a set of assumptions or calculations, or the credibility of an expert's testimony that a particular approach included or excluded a particular element or perspective, must be approached with "great deference." Balsamides, supra, 160 N.J. at 372.
 
A trial court's determination of value in a statutory appraisal proceeding is accorded a high level of deference which will be overturned only if the trial court abuses that discretion, as when its factual findings do not have support in the record and its valuation is not the result of an orderly and logical deductive process.

[Lawson Mardon Wheaton, Inc. v. Smith, 315 N.J. Super. 32, 54-55 (App. Div. 1998), rev'd on other grounds, 160 N.J. 383 (1999).]
 
For remands, it is a settled principle that "the trial court is under a peremptory duty to obey in the particular case the mandate of the appellate court precisely as it is written." Flanigan v. McFeely, 20 N.J. 414, 420 (1956). A trial judge may in good conscience doubt the wisdom of "the pronouncements of appellate courts," but that "privilege does not extend to non-compliance." Reinauer Realty Corp. v. Borough of Paramus, 34 N.J. 406, 415 (1961). The parties may assert on remand any claim that the appellate court has not foreclosed. See Marioni v. 94 Broadway, Inc., 374 N.J. Super. 588, 621 (App. Div.), certif. denied, 183 N.J. 591 (2005).
B. Analysis.
The statute governing the valuation of the shares of a New Jersey corporation, N.J.S.A. 14A:11-3, mandates the payment of "fair value" to dissenting shareholders. The Legislature enacted it to give dissenting shareholders "'a simple and expeditious remedy,'" so its terms "should be liberally construed in favor of the dissenting shareholders." Lawson, supra, 160 N.J. at 400 (quoting Bache & Co. v. Gen. Instrument Corp., 42 N.J. 44, 51 (1964)). Those terms should be applied similarly for the benefit of minority shareholders, by virtue of the majority's fiduciary duty to treat the minority fairly. See Brundage v. New Jersey Zinc Co., 48 N.J. 450, 475-77 (1967); Stuart Pachman, Title 14A - Corporations, comment 6 on N.J.S.A. 14A:10 at 357 (1998-99).
New Jersey courts find Delaware law "helpful" when analyzing issues of corporate law. Lawson, supra, 160 N.J. at 398. Our courts may also consider the ALI Principles in deciding how to apply N.J.S.A. 14A:11-3, because their "'valuation principles . . . are appropriate for appraisal'" when applied with due regard to the statutory purpose. Id. at 399-400 (citation omitted). That means a court may rely on the provision in 2 ALI Principles, supra, 7.22(c), that courts "generally should give substantial weight to the highest realistic price that a willing, able, and fully informed buyer would pay for the corporation as an entity," because the emphasis on remediation comports with our case law.
As for assessing the evidence on value, the trial court has the discretion to determine the credibility of an expert witness and is "free to accept or reject in whole or in part the testimony of" any expert. Southbridge Park, Inc. v. Borough of Fort Lee, 201 N.J. Super. 91, 94 (App. Div. 1985). Accord Fox v. Township of W. Milford, 357 N.J. Super. 123, 131 (App. Div.), certif. denied, 176 N.J. 279 (2003). This discretion applies in valuation cases, with the court having the ultimate responsibility of determining fair value in conformity with the statutory and case-law standards. Torres v. Schripps, Inc., 342 N.J. Super. 419, 434 (App. Div. 2001) ("The judge may use any acceptable method to calculate the value, but he must determine that the chosen method yields the fair value of the shares"). Accordingly, Judge Lyons had the authority to rely on a valuation that required him to make a synergy adjustment but that was otherwise legally acceptable, and defendants are wrong when they argue that he should have considered only valuation analysis that incorporated a mechanism for quantifying synergies.
Judge Lyons did not err by choosing to rely on the highest result among the legally acceptable valuations, because fair value is a remedial provision that he was to construe liberally for the minority's protection. See Lawson, supra, 160 N.J. at 400. The only constraint beyond legal acceptability was that the chosen result be reasonable. "Valuation techniques, regardless of the approach selected, are to be measured against a reasonableness standard." Steneken v. Steneken, 183 N.J. 290, 297 (2005).
Amboy is incorrect in asserting that we deemed stock-for-stock acquisitions to be unrepresentative of "market realities" in the particular circumstances of Amboy's merger. On the contrary, we specifically found that the guideline or acquisition valuations from Griffing, FinPro, and McConnell, which the Casey I record thoroughly documented as being based on comparable stock-for-stock transactions rather than cash transactions, were admissible as compliant with New Jersey law. Casey I, supra, 344 N.J. Super. at 114. We further indicated that the McConnell and FinPro results, like BAG's acquisition result if the discounts were removed, had the added virtue of containing adjustments to account for Amboy's unique characteristics rather than simply treating Amboy as "some kind of average" of the comparable banks. Ibid. There has never been evidence in this case that potential acquirers of Amboy would have preferred to use cash; therefore, it was the stock-acquisition valuations which reflected the "market reality" at the time, namely, that the great majority of acquisitions were conducted as stock exchanges instead.
Amboy also incorrectly argues that management's insistence on an all-cash restructuring was the relevant "reality," because their fiduciary duty required them to put the minority's interests ahead of management's preferences in choosing how to proceed with a merger. Judge Lyons's implicit rejection of the prior trial judge's finding that the use of stock transactions "flies in the face of reality" was compelled by the case law and our instructions, and was not "inexplicable" as Amboy contends.
Our approval of stock-for-stock acquisitions as measures of going-concern value is consistent with the Delaware Supreme Court's observation that fair value "is more properly described as the value of the company to the stockholder as a going concern, rather than its value to a third party as an acquisition." M.P.M. Enter. v. Gilbert, 731 A.2d 790, 795 (Del. 1999). Contrary to Amboy's reading of M.P.M., the Delaware Supreme Court was trying to avoid understating fair value, not overstating it. Ibid. The "acquisition" that it cited was not like the acquisitions of comparable banks which the experts in this case used, but rather a two-step merger with control passing in the second step, with the corporation making the argument that the minority was entitled only to a share of its value as determined in the first step, which the Delaware Supreme Court characterized as a liquidation value for including only the assets and excluding the value of control. Ibid. n.36 (citing the rejection of such a liquidation value in Cede & Co. v. Technicolor, 684 A.2d 289, 298-99 (Del. 1996)). Stated differently, the M.P.M. decision simply joined the long line of Delaware cases upholding the use of a control premium; it said nothing to invalidate the use of what we and Judge Lyons called "acquisition" valuations in accordance with ordinary usage.
Thus, we conclude that Judge Lyons was in conformity with the case law and with our instructions when he considered the stock-for-stock acquisition valuations as the proper way to measure Amboy's value as a going concern and then chose one of them as being more credible than the rest. We specified in Casey II that the parties could submit supplemental reports with the adjustments mandated by Casey I. In contending that Judge Lyons improperly failed to follow the prior trial judge's decision to consider only cash-acquisition valuations, Amboy misconstrues Casey II.
The prior trial judge's rejection of the legally acceptable stock-for-stock acquisition valuations was unwarranted. Hargrove's supplemental report simply took BAG's data for the price-earnings and price-equity multiples of five of BAG's comparable banks, averaged them, and applied McConnell's figures for Amboy's return on assets and return on equity, which was the same general approach to acquisition analysis that the other experts used. The prior trial judge had provided no reason for approving Hargrove's comparable banks, other than that they had been acquired for cash, thus failing to justify his finding that Hargrove's comparable banks were more representative of Amboy as a going concern than were FinPro's and McConnell's comparables. Conversely, the prior trial judge did not criticize the FinPro and McConnell valuations, other than their use of comparable transactions that had occurred by exchange of shares rather than for cash. Therefore, he failed to indicate a basis for regarding FinPro's and McConnell's target banks and Amboy as "dissimilar entities." Accordingly, there was no evidence to support the prior trial judge's conclusion that only Hargrove's choice of comparable banks satisfied our instruction in Casey I to value Amboy as a "unique company" rather than as an average of its peer group.
We also reject Amboy's contention that Judge Lyons sought the highest result for fair value; instead, he explicitly chose McConnell's result as the highest value that was confirmed by a separate analysis to have been feasible at the time for potential acquirers. His choice of the highest feasible and legally acceptable result reflected the case-law mandate to interpret the governing statute liberally in favor of the dissenting and minority shareholders. See Lawson, supra, 160 N.J. at 400; Brundage, supra, 48 N.J. at 475-77; Pachman, supra, Title 14A - Corporations, at 357.
More importantly, Judge Lyons's choice satisfied the requirement of using a "reasonableness standard" by relying on a feasibility analysis that defendants do not attempt to depict as unsound other than to call it "proprietary." McConnell's feasibility analysis was a confirmatory test separate from the acquisition valuation itself, so Judge Lyons did not err by finding it credible for its stated purpose without concern for whether its methodology was generally accepted as a primary valuation tool. In addition, McConnell described how the feasibility analysis used a particular discount rate, asset growth rate, and rate of return on assets in sufficient detail for Judge Lyons to assess its credibility in comparison to the capital-asset pricing models of the other experts. Our courts have readily recognized that valuation, which relies on significant exercises of judgment, is accordingly more of an art than a science; that makes it only natural for experts to use different "proprietary" approaches rather than a rigidly uniform methodology, and for the trial court to assess their credibility and decide for itself how much reliance they merit when determining fair value in the particular circumstances before it. Lawson, supra, 160 N.J. at 397; Balsamides, supra, 160 N.J. at 367-68; Casey I, supra, 344 N.J. Super. at 111, 115.
The remaining arguments advanced by Amboy are without sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E). Accordingly, we affirm Judge Lyons's decision to value Amboy at the highest price for a stock-for-stock acquisition that was feasible for potential acquirers.
IV.
Amboy further argues that the "fair value" determination by the trial court is contrary to federal law, which permits banks to reorganize as Subchapter S corporations. Amboy claims that Judge Lyons erred by ignoring the limitations which federal banking law imposed on the valuation of Amboy. Specifically, Amboy argues that the use of a special dividend to cash out enough shareholders for Amboy to elect Subchapter S status was the "market reality" of this merger, and that federal law permitted only a special dividend large enough to pay the dissenting and minority shareholders $73 per share.
We reject this contention. The record on this and the prior appeals demonstrates that Amboy raised this claim in the first trial and in Casey I. We addressed it only implicitly, by stating that the "contentions" which were "not specifically addressed" were deemed "to be without sufficient merit to warrant discussion" pursuant to R. 2:11-3(e)(1)(E). Casey I, supra, 344 N.J. Super. at 126.
Amboy seeks to elevate its desire to maintain Amboy's independence above its duty to pay fair value as defined by statute and case law, yet cites no authority for its proposition that maintaining a bank's independence can be important enough to override that obligation. There is nothing in the record to suggest that the determination of fair value must bend to accommodate management's goals or its preferred manner of structuring a transaction. In the absence of authority to that effect, a corporation should expect that it has to live within its financial and legal constraints. If Amboy's reason for failing to offer fair value was that it could not afford a cash-out merger at fair value, then its management was bound to find an alternative manner of proceeding that would permit the payment of fair value.
V.
Lastly, Amboy argues that the trial court erred in awarding attorneys fees and costs to Hermanos. Amboy claims that Judge Lyons erred by awarding excessive fees and costs to Hermanos for litigating the second remand. It argue that N.J.S.A. 14A:11-10 permitted the award of a dissenter's legal fees only if the corporation's offer of payment was not made in good faith, and that Hermanos's acceptance of the first remand judgment amount estopped her because their offer of the full judgment amount "[b]y its very terms . . . demonstrated good faith." Amboy also argues that the fee award was unreasonable and disproportionate when measured against her incremental success in the second remand of obtaining only $14 more per share.
Our review of the record discloses that this contention is without merit. Judge Lyons concluded that our finding in Casey I that the offer of $73 per share was a violation of defendants' fiduciary duty, and was therefore not made in good faith, was the only finding that N.J.S.A. 14A:11-10 required before conferring on him the discretion to make an award of legal fees and costs. As for the approximately $150,000 that Hermanos requested for fees and costs, the judge recognized that the ratio of that request to the additional $288,792 in fair-value damages that she won was "a factor to be considered," but he found it "more reasonable to look at what went into those fees," and found both the hourly rates and "the gross amount of hours spent" to be reasonable, in part, because Hermanos's expert proved to be the most helpful and the one on which he ultimately relied.
A dissenting shareholder is to receive "[t]he costs and expenses of bringing an action" for fair value, including "reasonable compensation for the appraiser," but the award "shall exclude the fees and expenses of counsel for and experts employed by any party." N.J.S.A. 14A:11-10. However, if "the court finds that the offer of payment made by the corporation under section 14A:11-6 was not made in good faith," it has the discretion to award the dissenter "reasonable fees and expenses of his counsel and of any experts employed by the dissent[er]." Ibid. The referenced offer of payment is the one that the corporation must make "[n]ot later than 10 days after the expiration of the period within which shareholders may make written demand to be paid the fair value of their shares," N.J.S.A. 14A:11-6(1), which is never longer than thirty days, N.J.S.A. 14A:11-2(2) and (3). Within the next thirty days, the corporation and a dissenter may agree that the offered amount or some other amount is "the fair value of the shares." N.J.S.A. 14A:11-6(2).
We conclude that Judge Lyons correctly interpreted the governing statutes as having given Amboy a maximum of forty days following shareholder approval of the merger to make a good-faith offer of fair value, and another thirty days to secure Hermanos's agreement on its offer or on some other amount. Their language bears no suggestion that the Legislature intended a corporation's tender of the judgment amount of a fair-value action to confer the same protections as a timely offer of fair value, and Amboy cites no authority for such an intention. The only offer that Amboy made during the seventy days following shareholder approval of the merger was $73 per share, and Amboy does not contest our agreement with the prior trial judge in Casey I, supra, 344 N.J. Super. at 124, that the offer was not made in good faith. Therefore, it is irrelevant whether Amboy's subsequent tender of the first remand judgment amount was made in good faith.
Turning to the amount of Hermanos's award, Amboy cites the Supreme Court's admonition that a counsel-fee award should be reduced "if the level of success achieved in the litigation is limited as compared to the relief sought." Rendine v. Pantzer, 141 N.J. 292, 336 (1995). Accord Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 446 (2001). One of the factors to be considered is whether "'a substantial portion of a claim sought is ultimately rejected,'" although the Court did "'not establish a per se requirement that there be a close relationship between recovery and fees awarded for services rendered,'" Packard-Bamberger, supra, 167 N.J. at 446 (quoting N. Bergen Rex Transp., Inc. v. Trailer Leasing Co., 158 N.J. 561, 573-74 (1999)), and the Court stated that the determination is made at the trial court's discretion, ibid.
Here, Hermanos's cause of action was a claim for fair value as determined by her expert, and she achieved almost exactly that, the only difference being the adjustment for synergies that her expert admitted was necessary but believed it lacked the ability to estimate. We conclude that Judge Lyons was well within his discretion to conclude that Hermanos had largely achieved her aim and thus deserved a fee award that was reasonable for the amount of effort needed to obtain it.
VI.
On their cross-appeals, Casey and Gagliano contend that Judge Lyons erred by failing to define fair value as the highest price that would have been paid at the time for Amboy as a going concern. They argue that the highest such price was the proper conception of "value," that FinPro's result of $144.48 per share was legally acceptable because it demonstrated that actual market actors at the time would have paid that amount for Amboy, and that McConnell's feasibility analysis was unacceptable because it was not established as generally accepted in the financial community and because it arbitrarily limited the number of potential acquirers. Our review of the record discloses that these arguments are without merit.
Judge Lyons was impressed by the consistency of McConnell's valuations, which remained at $120 per share or slightly higher, which used both the multiple of price to earnings and of price to book value, and which McConnell confirmed with a separate feasibility analysis. He noted that Hargrove corroborated McConnell's valuation by stating that he would value Amboy at $120 per share if it were to be acquired by an exchange of stock rather than for cash. Judge Lyons referenced McConnell's use of a weighted average of the results derived from the comparable banks' earnings and book values without criticizing it as a new device and legally acceptable, presumably because McConnell explained that the weighting reflected its experience that acquirers gave greater emphasis to the target's earnings than to its book value, as FinPro had observed even earlier.
By contrast, Judge Lyons noted that FinPro's acquisition analysis used only the multiple of price to earnings and did not use the multiple of price to book value at all. The judge criticized FinPro for failing to perform a feasibility check and for having only one comparable bank that, like Amboy, was worth over $300 million; that bank's multiple of price to earnings would have implied a value for Amboy of only $133 per share, not the $144.48 that FinPro opined based on all of its comparables. FinPro did not do a DCF analysis until afterward, in response to the other experts' work; while FinPro's 12% discount rate was the same as most of the other experts, its 8% figure for average asset growth was "well in excess of" the 5.5% rate "used by others," as was its 8% rate for earnings growth.
Judge Lyons's detailed review of Griffing's DCF and guideline valuations generated four main objections. The updated DCF results were not credible because the 12% discount rate that Griffing had initially derived from its capital asset pricing model and explained "in great detail" was abandoned in favor of the 10% discount rate that a large acquirer might enjoy, even though "the actual cost of capital to the acquirer" was not a factor in Griffing's model and there was no other "empirical or even anecdotal evidence" to support the change. For Griffing's guidelines results, the comparable banks were "questionable as to locale, as well as the size of the individual transactions," given that "only three are greater than $300 million." Griffing's DCF and guideline results exceeded McConnell's unrefuted position about the highest price at which potential acquirers could have afforded to purchase Amboy without diluting their own value. In general, Judge Lyons concluded that Griffing had increased its fair value results whenever a new "stage of the proceedings" gave it the opportunity to do so.
Our prior discussion concerning the remand instructions and controlling legal authorities applies here as well, as does our discussion of how Judge Lyons's approach to determining Amboy's value as a going concern complied with them. Accordingly, we conclude that Judge Lyons was correct to seek the highest feasible value rather than the highest possible value. In addition, he was within his discretion to find that the valuations that exceeded McConnell's, namely, those of FinPro and Griffing, were less credible because they were based on comparable banks that were less like Amboy than McConnell's banks were, or because they were based on a discount rate or asset-growth rate that was farther than McConnell's rates were from the figures that most of the other experts used.
Casey's and Gagliano's remaining arguments equally lack merit. Judge Lyons relied on McConnell's acquisition-method valuation to determine fair value, not on its feasibility analysis. That analysis served solely as a confirmatory test, so it only had to be credible on its own terms and did not have to meet the standards for use as a primary valuation tool. More specifically, Judge Lyons had the discretion to find that McConnell's limited set of likely potential acquirers was credible, particularly when no party presented evidence that other banks were potential acquirers and could feasibly have paid a higher price, or that they would have paid a higher price for other reasons notwithstanding the earnings dilution that they would incur. Furthermore, he rejected FinPro's and Griffing's valuations for their particular flaws, which rendered them less credible than McConnell's consistent valuations even without regard to McConnell's feasibility analysis.
VII.
Casey and Gagliano further claim that Judge Lyons erred by reducing his determination of Amboy's going-concern value as a supposed synergy adjustment. They argue that only the synergies unique to this merger, namely, the benefit from converting to Subchapter S status and the value of remaining independent, needed to be excluded, and that all the experts here had done so. By contrast, the general synergies typically expected of a merger are nothing more than a "market reality" that in fairness should be shared with the cashed-out shareholders on a proportionate basis rather than redounding entirely to the remaining shareholders' benefit. For that reason, Delaware law, which New Jersey courts have followed in this area, does not adjust control premiums to remove synergies. However, they argue that this record did not provide an adequate basis for attempting a synergy adjustment, citing Judge Lyons's admission that he needed to estimate the synergy element due to the absence of specific information about the supposed synergies in any of the bank acquisitions that the experts here considered in determining Amboy's going-concern value.
In their cross-appeal, De Sanctis, Everitt, and Morrissey claim that Judge Lyons erred by misconstruing our remand instructions, arguing that we specified only the exclusion of synergies particular to this merger which is all that the governing statute requires and we did not mention the synergies that might be contained in comparable transactions used for analysis. They infer that in Casey I we considered McConnell's acquisition valuation as not containing embedded synergies, and argue that the prior trial judge's decision to disregard synergies due to the lack of sufficient evidence for determining them became the law of the case, because no party appealed it.
In her cross-appeal, Hermanos also claims that Judge Lyons erred by making a synergies reduction, relying on arguments similar to the other shareholders. In the alternative, she asserts that the synergy adjustment should not have exceeded the only evidence in the record, namely, Hargrove's guess of no more than $5 per share. Hermanos asks that we avoid yet another remand by exercising its original jurisdiction to find that no synergy adjustment was warranted.
In Casey I, supra, we noted the language in N.J.S.A. 14:11-3(3)(c) that fair value "shall exclude any appreciation or depreciation resulting from the proposed action." 344 N.J. Super. at 111. Accordingly, we stated that "in a valuation proceeding a control premium should be considered in order to reflect market realities, provided it is not used as a vehicle for the impermissible purpose of including the value of anticipated future effects of the merger." Id. at 113. "If necessary, an adjustment should be made" in order to avoid such inclusion. Ibid. We related Walters's testimony that BAG's "control discount" approach did not incorporate synergies "at least when regarded as a 'majority value,'" but it did not make an express finding to that effect about BAG's approach. Id. at 114. We similarly made no finding to that effect about FinPro's and McConnell's "acquisition approaches" in its unelaborated conclusion that, "for essentially the same reasons, [the prior trial judge] erred by failing to consider" them as well. Ibid.
In the summation of our instructions on valuation, we emphasized that "acquisition valuations" were to be "considered," with adjustments to eliminate synergies if they were present. Casey I, supra, 344 N.J. Super. at 113-14. Regardless of which valuation method would prove to be most reliable, we stated that "there must be an adjustment to exclude from control premiums anticipated synergies or other future effects of the merger" from the final determination of fair value. Id. at 115.
Judge Lyons referenced our instruction that acquisition values were permissible, but must have "'a correction for synergies,'" in accordance with the requirement to "'exclude any appreciation or depreciation resulting from the proposed merger'" that we found in N.J.S.A. 14A:11-3(3)(c). The judge's mandated "consideration" of control premiums was therefore, he stated, subject to "the Appellate Division's directions and existing law" that "synergies or anticipated future [e]ffects of the subject transaction must be excluded from the valuation analysis."
Judge Lyons chose stock-for-stock acquisition valuations for a going concern over cash valuations, on the ground that the intent of the statutory appraisal remedy is "'to provide shareholders dissenting from a merger on grounds of inadequacy of the offering price with a judicial determination of'" what he called "the intrinsic worth of the shareholdings, as opposed to the value of the shareholdings as a result of a particular transaction, and 'without regard to the events that trigger the dissent.'" (quoting Lawson, supra, 315 N.J. Super. at 47 (internal citations omitted)).
Judge Lyons saw those principles as dictating that a control premium "cannot be used to add on the value of anticipated future effects of the merger." Accordingly, he found that a control premium may not include "the advantages of the resultant Subchapter S structure, or the advantages any one particular acquirer may have as a result of the synergy which may result from its acquisition of Amboy."
Judge Lyons similarly inferred the need to adjust for the synergies in the prices of the comparable banks that the experts used to derive their acquisition valuations of Amboy, stating:
 
[I]n virtually every real transaction, there is some anticipated synergy which the experts state they cannot specifically quantify. If one were to take an average of comparables with respect to the various multiples that are used, there is, in the resulting average, an inherent synergistic value which cannot be identified. Thus, it appears that it is up to the trial judge to scrupulously look at the comparables to determine if there is anything blatant regarding the transactions which gives an insight into the extent of any synergistic effect, and to temper the resulting number with the knowledge that in all likelihood there is some synergy built into that actual transaction.
 
Because "the experts agreed that quantifying the synergies could not be done without getting the individual acquirers['] private projections and work papers," Judge Lyons reasoned that the appropriate way "to temper the values derived from acquisition comparables" that "contain their own unique synergies" was for the court to "consider[] the results derived from comparable acquisitions as at the high end of a fair value range." The judge concluded, based on his own analysis of McConnell's feasibility data, that $114 was the price at which an acquisition of Amboy became feasible for a sufficient number of potential acquirers. The judge's reasoning was confirmed by Hargrove's testimony that he would value Amboy at $120 per share in a stock-for-stock acquisition, or at an estimated $115 per share if synergies were excluded. On that basis, Judge Lyons found that $114 was "fair value" because it was "reflective of the highest, reasonably feasible transaction [price] an acquirer would contemplate," inclusive of a control premium but then discounted "to remove some inherent synergies."
The cross-appellants contend that New Jersey law excludes only the particular synergies expected from the merger in question. We disagree. Judge Lyons correctly observed that the synergies embedded in the prices at which comparable mergers occurred did not cease to exist simply because outsiders could not have as clear a view of them as the participants, and furthermore, that applying the financial multiples derived from those prices without a synergy adjustment necessarily carried the synergy element into the resulting valuation of Amboy. His determination that the acquisition valuations needed a synergy adjustment was logically unavoidable, and consistent with our categorical instruction to exclude synergies.
As for McConnell's acquisition analysis, we had refrained in Casey I from making our own findings on whether the very nature of that analysis, or even the nature of BAG's "control discount" analysis, necessarily excluded synergies. Our restraint on that matter, coupled with our emphasis in Casey I on the need for a fresh approach in assessing the valuation evidence, as well as its emphasis on the need to avoid synergies, demonstrate that we did not intend to circumscribe the remand court's inquiry into synergies, much less to insulate any expert's work from a needed synergy adjustment.
Judge Lyons's decisions to exclude the synergies from the comparable transactions which were embedded in the acquisition valuations and to estimate their amount in the absence of specific evidence is also in accord with the Delaware case law that applied statutory language similar to ours. The Delaware Supreme Court has explained that the mandate in 8 Del. Code Ann. tit. 8, 262(h) (2005), for fair value to be determined "exclusive of any element of value arising from the accomplishment or expectation of the merger or consolidation," requires that the subject company be valued as an "operating entity" or "going concern." Cede, supra, 684 A.2d at 298. That means the trial court "is free to consider the price actually derived from the sale of the company being valued, but only after the synergistic elements of value are excluded from that price." Montgomery Cellular Holding Co. v. Dobler, 880 A.2d 206, 220 (Del. 2005). Accord Union Ill. 1995 Inv. Ltd. P'ship v. Union Fin. Group, 847 A.2d 340, 343 (Del. Ch. 2004); Kleinwort Benson Ltd. v. Silgan Corp., Civ. A. No. 11107, 1 995 Del. Ch. LEXIS 75, at *10 (Del. Ch. June 15, 1995).
Indeed, any synergies which need to be estimated are excludable as "'speculative' elements of future value arising from the expectation or accomplishment of a merger," and only those "elements of future value that are known or susceptible of proof as of the date of the merger may be considered." Montgomery Cellular, supra, 880 A.2d at 222. Judge Lyons implicitly paid due regard to that distinction by accepting the experts' shared presumption that, even if no merger occurred, Amboy would improve its deployment of excess capital as it had resolved to do in its 1996 strategic plan.
On the question of how to effect the synergy exclusion, Delaware courts have required that synergies be removed from the prices of comparable transactions used to value the subject corporation. In Hintmann v. Fred Weber, Inc., Civ. A. No. 12839, 1 998 Del. Ch. LEXIS 26 (Del. Ch. February 17, 1998), the court agreed with the dissenters' expert about the need to reduce the median control premium in comparable transactions in order to eliminate "post-merger values expected from synergies." Id. at *31. Similarly, in Borruso v. Commc'n Telesys. Int'l, 753 A.2d 451 (Del. Ch. 1999), the court reduced from 40% to 30% the control premium that the dissenters' expert derived from comparable transactions, in order to achieve "the elimination of impermissible elements of post-merger value." Id. at 458-59. More recently, in Union Illinois, supra, it regarded one expert's figure of 13% for a "synergy discount" to be reasonable, based on another expert's "mid-range synergy assumptions of 15%-20% for the synergy value that would be shared" between the target and acquirer. 847 A.2d at 353 and n.26.
The Union Illinois court did not explain how the experts arrived at their synergy figures, or suggest that it had any other basis for relying on them beyond their similarity and "the nature of" the companies that had submitted bids for the corporation. Id. at 348, 353 and n.26. The Borruso court likewise failed to indicate how it settled on a 10% reduction in the control premium as the proper synergy adjustment other than to cite to the reductions in Hintmann, supra, 1998 Del. Ch. LEXIS at *31, and Kleinwort, supra, 1 995 Del. Ch. LEXIS 75, at *9-13, that were made with equally little explanation. Borruso, supra, 753 A.2d at 459. In Hintmann, supra, the dissenters' expert reduced the median control premium in his comparable transactions from approximately 55% to 20% to eliminate "post-merger values expected from synergies." 1998 Del. Ch. LEXIS at *31. The court noted the expert's admission that the adjustment "could be considered somewhat arbitrary and subjective, as are many of the judgments appraisers make when valuing a corporation," but agreed with the adjustment because the expert testified that it was "based on all the relevant information." Ibid.
Similarly, in Kleinwort, supra, the court's expert stated that the premium "necessary to remove the minority discount inherent in publicly traded stock" was "somewhere between zero and" the median control premium paid in the comparable mergers that the plaintiff's expert used. 1 995 Del. Ch. LEXIS 75 at *11-12. However, in discussing the company's expert's valuation, the court said only that the expert testified that a "reasonable estimate" of the minority discount inherent in his stock-price method was "around 10-15%," which prompted the court to make an adjustment of 12.5%. Id. at *12. The Hintmann and Kleinwort opinions were typical in not naming the particular synergistic elements or conditions being excluded, not stating the basis for estimating them, and not explaining how the expert on which they relied reached his or her synergy figure.
Another approach used by Delaware courts to estimate synergies is to consider the simple existence of a range of otherwise legally acceptable valuations as a demonstration that synergies are present, which is similar to Judge Lyons's decision to regard the acquisition valuations as being at the high end of the range for fair value. In Prescott Group v. Coleman Co., Inc., Civ. No. A. 17802, 2 004 Del. Ch. LEXIS 131 (Del. Ch. 2004), the court stated without further explanation that the valuation on which it relied
 
could arguably include synergies, but [the expert's] ultimate fair value figure . . . falls so close to the bottom end of [his] valuation range . . . that the only fair conclusion must be that if any synergies were, in fact included, they were eliminated ("backed out") by the selection of an almost bottom-of-the-range value.

[Id. at *97 n.141.]
 
Here, the experts agreed that all the acquisition valuations tended to contain synergies. Supporting Judge Lyons synergy adjustment are an interpretation of McConnell's data as showing a significantly broader scope of feasibility at $114 per share than at $121.80; Hargrove's testimony that a stock-pooling acquisition of Amboy would have occurred at approximately $120 per share, of which $5 would have represented synergies; and Place's testimony that 5% was a reasonable general estimate for synergies (5% of $120 is $6). We conclude that Judge Lyons's synergy adjustment was within the range of his discretion in that this record contains sufficient support for it, and because Judge Lyons's analysis was least as rigorous as the adjustments that the Delaware courts have accepted.
The remaining arguments advanced by the cross-appellants on this issue are unavailing. It may well be unfair that the squeezed-out minority cannot participate in the acquirer's payment of the merger's anticipated synergy value. However, cross-appellants do not cite authority for a common-law right to resist being squeezed out or to receive a different measure of payment than the statutory definition of "fair value." That matter is a question of policy for the Legislature to address, not this court. The doctrine of "the law of the case" did not compel Judge Lyons to follow the prior trial judge's ruling that the evidence on synergies was too thin to permit an estimate, because the doctrine only requires a court to abide by the "decisions of law" in the course of litigation that were contested and then decided on the merits by an equal or higher court. Lanzet v. Greenburg, 126 N.J. 168, 192 (1991). Although that doctrine reflects the judicial policy that the relitigation of decided issues "should be avoided if possible," Sisler v. Gannett Co., 222 N.J. Super. 153, 159 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988), it is discretionary and "should be applied flexibly to serve the interests of justice." State v. Reldan, 100 N.J. 187, 205 (1985). That doctrine certainly does not prevent a court from revisiting a question when "the prior decision was clearly erroneous," Sisler, supra, 222 N.J. Super. at 159; accord Underwood v. Atlantic City Racing Ass'n, 295 N.J. Super. 335, 340 (App. Div. 1996), certif. denied, 149 N.J. 140 (1997), and it does not prevent a court from revisiting its own error. See Polidori v. Kordys, Puzio & Di Tomasso, 228 N.J. Super. 387, 394 (App. Div. 1988). Here, we provided an express instruction to eliminate synergies, which the prior trial judge violated by not attempting to determine whether an estimate could be reasonable. There was no support for that judge's insistence that addressing synergies required a precise measurement, given the Delaware courts' acceptance of estimates as legally adequate under a set of legal rights, doctrines, and principles similar to our own.
We conclude that Judge Lyons's ruling that McConnell's acquisition valuation required a synergy adjustment, as well as his manner of using this record to make that adjustment, is fully supported by the record and controlling principles.
VIII.
On their cross-appeals, Casey and Gagliano also claim that Judge Lyons erred in determining the rate for the award of prejudgment interest. They argue that court rules dictated a higher rate, and that the case law required a "commercially realistic" rate, which in this case meant the return that Amboy earned on the funds that it should have paid out as fair value. We disagree.
The record in Casey I indicated that the parties stipulated before the first trial that interest would be awarded on any judgment from December 2, 1997, at the rate of 5.5% per year. Judge Lyons correctly observed that the rate equaled the rate on the State's cash-management fund at the time. See Pressler, Current N.J. Court Rules, publisher's note to R. 4:42-11 at 1533 (2006). The judge found that the shareholders were entitled to prejudgment interest as "some form of unjust enrichment," and that the principles for determining the rate were the same as for post-judgment interest. He agreed with defendants "that it would be almost punitive" and "certainly not fair" to use "the rate that a sophisticated lender" could obtain on a commercial loan of the judgment amount as "the benchmark rate for what a consumer would get" on an investment of the same amount, given that "the average person would make a normal consumer investment with that kind of money" instead of taking a more speculative risk. The judge concluded that "the State fund rate is a good bench mark" and that it was fair because its annual variance was similar to that of the federal funds rate and of the rates "that consumers were getting" on money-market accounts.
Rule 4:42-11(b) mandates awards of prejudgment interest, except as otherwise provided by law, only in tort actions. By contrast, prejudgment interest on contractual claims is not mandated, but a court has the discretion to award it in accordance with equitable principles. Meshinsky, supra, 110 N.J. at 478; Sulcov v. 2100 Linwood Owners, Inc., 303 N.J. Super. 13, 38 (App. Div. 1997), appeal dismissed, 162 N.J. 194 (1999). Equitable discretion is "broad," and merits appellate deference "unless it represents a manifest denial of justice." Musto v. Vidas, 333 N.J. Super. 52, 74 (App. Div. 2000). Accord County of Essex v. Waldman, 244 N.J. Super. 647, 667 (App. Div. 1990), certif. denied, 126 N.J. 332 (1991). The purpose of prejudgment interest is compensatory, to indemnify claimants for the loss of what they would have earned on the amounts ultimately awarded to them if they had received those amounts when due. Rova Farms, supra, 65 N.J. at 506; Busik v. Levine, 63 N.J. 351, 358, appeal dismissed, 414 U.S. 1106, 94 S. Ct. 831, 38 L. Ed. 2d 733 (1973).
For tort judgments "not exceeding the monetary limit of the Special Civil Part at the time of entry, regardless of the court," prejudgment interest is to be awarded at the rate "for the corresponding fiscal year . . . of the State of New Jersey Cash Management Fund," rounded to the nearest one-half percent. R. 4:42 11(a)(ii) and 11(b). That limit is currently $15,000. R. 6:1-2(a)(1). Prejudgment interest on larger tort judgments is to be at the cash-management fund rate "plus 2% per annum." R. 4:42-11(a)(iii) and -11(b).
In Musto, supra, we affirmed the award of prejudgment interest at the prime rate on the contractual claims of a shareholder of a closely held corporation who was being oppressed by the other two shareholders. 333 N.J. Super. at 57, 74-75. Accord Tobin v. Jersey Shore Bank, 189 N.J. Super. 411, 416 (App. Div. 1983) (proper rate of prejudgment interest on wrongfully withheld funds is prime rate, absent a showing that claimant would have earned a lower rate on the funds had they not been withheld). However, more recently, we upheld the award of prejudgment interest on a contractual claim at the R. 4:42-11(a)(ii) cash-management fund rate, rather than at the higher rate of subsection (iii) or the prime rate at the time, on the ground that R. 4:42-11 required a higher rate only for tort claims. DialAmerica Mktg., Inc. v. KeySpan Energy Corp., 374 N.J. Super. 502, 506-08 (App. Div.), certif. denied, 184 N.J. 212 (2005).
Casey's and Gagliano's citation to Sports & Expo. Auth. v. Del Tufo, 230 N.J. Super. 609, 623 (App. Div. 1989), certif. denied, 171 N.J. 611 (1990), as mandating a "commercially realistic prejudgment interest rate in commercial litigation," is misplaced because that case simply upheld the award of prejudgment interest with no discussion of rates at all. Additionally, their reliance on Benevenga v. DiGregorio, 325 N.J. Super. 27, 34-35 (App. Div. 1999) (insured won $279,000 judgment on policy claim), certif. denied, 163 N.J. 79 (2000), as mandating the subsection (iii) rate for prejudgment interest on contractual claims, is also misplaced because the failure of the Benevenga parties to mention subsection (iii) gave us no reason to address it. See DialAmerica, supra, 374 N.J. Super. at 510-11. There, we adhered to our declaration in Benevenga, supra, 325 N.J. Super. at 34-35, that "the rate of return earned by the State Treasurer contemplated by R. 4:42-11(a)(ii) is the standard to which trial judges should adhere" when awarding prejudgment interest on a contractual claim, unless the "circumstances" or "the equities of the matter" are "unusual." DialAmerica, supra, 274 N.J. Super. at 511. We added only that "we do not in any sense foreclose the use of subsection (a)(iii) in connection with a rule-based calculation of prejudgment interest, should the equities demand it." Ibid.
Accordingly, Judge Lyons's determination of the rate for prejudgment interest on the contractual claims at issue here is reversible only if it resulted in a manifest denial of justice. However, Casey and Gagliano do not state what manifest injustice they suffered, or that they could have earned a higher return on the wrongfully-withheld funds than the second remand judgment's rate. In that light, we conclude that Judge Lyons's use of the R. 4:42-11(a)(ii) rate conformed to the case law and was within his discretion.
IX.
On their cross-appeal, De Sanctis, Everitt, and Morrissey also claim that Judge Lyons erred by setting an impermissibly low rate for post-judgment interest. They argue that the prior trial judge's determination of the rate in the first trial was the law of the case because no party appealed it. They also argue that Judge Lyons should have used the R. 4:42-11(a)(iii) rate to effect an "equitable disgorgement."
Judge Lyons did not distinguish between pre-judgment interest and post-judgment interest in setting rates. Rule 4:42-11(a) provides that, "[e]xcept as otherwise ordered by the court or provided by law, judgments . . . shall bear simple interest" which is to be calculated under subsections (ii) and (iii). See Brown v. Davkee, Inc., 324 N.J. Super. 145, 147-48 (App. Div. 1999) (the Rule applies to all causes of action). Although "the usual practice" is to award post-judgment interest, "unless there is a legal impediment to the payment of such interest, its grant or denial is discretionary with the trial judge." Lehmann v. O'Brien, 240 N.J. Super. 242, 249 (App. Div. 1989).
Here, the parties' stipulation on judgment interest named the 5.5% rate which happened to be in effect at the time. The record does not indicate whether the parties meant to deviate from the Rule's practice of adjusting interest annually, or whether the prior trial judge thought there was a reason to do so beyond accommodating the stipulation. In the absence of a showing that the rate of interest recited in a prior judgment represented a "decision of law" that was contested and then decided on the merits, it does not represent the law of the case. Lanzet, supra, 126 N.J. at 192. De Sanctis, Everitt, and Morrissey do not assert that they could have obtained higher earnings on the withheld funds than at the second remand judgment's rate. In the absence of a demonstrated manifest injustice we conclude that Judge Lyons's determination of post-judgment interest was within his discretion.
Affirmed.

Text Box
 
 

Footnote: 1 Shannon P. Pratt, Robert F. Reilly, and Robert P. Schweihs, Valuing a Business, 245 (4th ed. 2000).
Footnote: 2 Those results were averages of the median multiple of price to earnings for the guideline companies and their median multiple of price to book value. Clarke testified that the median price-to-earnings multiple increased from 14.9 to 16.91, raising the price-to-earnings result from $104.50 to $118.59, while the median price-to-book value multiple increased from 1.77 to 2.48, raising the price-to-book value result from $81 to $118.59. We note that adding a 31.5% control premium to the $115.78 figure would yield a majority-value guideline result of $152.25.

A-