Owners of real property generally understand that their property rights can be impacted by litigation in which they are a party. However, what’s less clear, but perhaps equally important to understand and guard against, is...more
How Do I Hold You Liable? Let Me Count The Ways . . . When the owner(s) incorporate an existing business, the corporation is not necessarily a tabula rasa with respect to the creditors of the business being...more
Market Trends: What You Need to Know - According to the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies, financial statement representations are universally required from sellers in...more
When buying a business, purchasers must take into consideration the possibility of “successor liability” – that is, the buyer’s assumption of the seller’s liabilities and prior conduct upon purchasing a corporation....more
Yesterday, John Jenkins wrote in DealLawyers.com about successor liability in asset purchase transactions. Many practitioners may be unfamiliar with potential successor liability under California's Unemployment Insurance...more
The Sixth U.S. Circuit Court of Appeals (Ohio, Kentucky, Tennessee and Michigan) recently expanded successor liability for an underfunded pension plan to an asset purchaser holding common control over assets purchased from...more
South Carolina courts evaluate the enforceability of noncompete provisions executed in the employment context and in connection with the sale of businesses under the same reasonableness test. To be enforceable in South...more
On June 1, 2018, the U.S. Court of Appeals for the Ninth Circuit ruled that an asset purchaser that was deemed a successor was liable to pay the seller’s withdrawal liability even though the purchaser did not have actual...more
A common method for business expansion is for one company to acquire another company’s operations and then merge the operations into the acquiring company. However, even when care is taken to structure such acquisitions to...more
Noble Energy Inc. v. ConocoPhillips Company, a 6-to-3 Texas Supreme Court decision, is a reminder of two things: How parties to a property transaction describe what’s being acquired and what’s being left behind can have...more
We regularly field questions from companies in the process of an asset purchase, asking whether they can obtain an assignment of the seller’s non-competition agreements with its employees. While this question has never been...more
A Texas Court of Appeals affirmed a summary judgment last month in favor of an ex-employee declaring that a noncompete clause in an asset purchase agreement and separate noncompete agreement did not bar him from competing...more
In a typical corporate transaction, the parties structure the deal as an asset purchase, whereby the buyer purchases essentially all of the company’s property, equipment, goodwill, customer lists, etc. If the asset purchase...more
Most if not all courts recognize that selling a corporation's stock transfers ownership of the corporation's privileged communications. These can include even communications about the sale transaction. Great Hill Equity...more
In a recent decision that has important implications for purchasers of assets that come with a multiemployer union pension plan, the U.S. Court of Appeals for the Seventh Circuit held in Tsareff v. ManWeb Services, Inc., 794...more
In Tsareff v. ManWeb Services, Inc., the U.S. Court of Appeals for the Seventh Circuit held that an asset purchaser’s pre-closing knowledge of a seller’s potential multiemployer plan withdrawal liability could be sufficient...more
On March 5, 2015, Chromcraft Revington, Inc.(“Chromcraft”) and Sport-Haley Holdings, Inc. (“Sport-Haley”) filed voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code....more
Buying an existing business can be exhilarating and frightening all at once. It is important to find out as much about the business, its operations and finances as possible before purchase. Typical asset purchase agreements...more
Once again we are reminded that covenants not to compete given in connection with the sale of a business are an entirely different species from the employment kind. Last week, in Oros & Busch Application Technologies, Inc. v....more