Asset Purchases: Techniques and Best Practices to Avoid Successor Liability
As a general rule, a successor company will be held liable for its predecessor’s debts and liabilities in the merger or consolidation of the two parties. On the other hand, an asset purchaser does not assume the liabilities of its seller. One practical method to avoid successor liability is to acquire a limited number of assets rather than the whole business. Moreover, asset purchasing is often the preferred acquisition structure as an asset purchase agreement clearly distinguishes the liabilities between parties.
In this two-hour LIVE Webcast, a panel of key thought leaders and practitioners assembled by The Knowledge Group will discuss potential problems that may arise during corporate asset sale transactions and structuring. The panel will provide the best practices and techniques in mitigating the risk of corporate successor liabilities in asset purchases.
Key topics include:
- Asset Purchasing: Methods
- Assumptions of Liabilities: Legal Framework and Boundaries
- Successor Liability Claims: General Rules
- Common Acquisition Violations
- Potential Litigation Risks
- Possible Sanctions and Liabilities
- Best Compliance and Enforcement Practices
- Up-to-minute regulatory updates
Deryck A. Palmer, Partner
Pillsbury Winthrop Shaw Pittman LLP
- Highlight the knowledge that each speaker will bring to the topic
- Will structure the event.
- Is it a distressed transaction or more routine?
Keith J. Broady, Attorney / Shareholder
Lommen Abdo, P.A.
- The 4 theories of successor liability,
- Application of those theories to various claims, and defenses and statutes of limitations.
Michael J. O'Malley, Partner
Goodsill Anderson Quinn & Stifel
Corporate tax attorney – not a litigator
These points will be divided by Keith and Michael
Structure of Transaction
- Nature of the acquisition (stock purchase versus asset purchase)
- Contractual provisions on non-assumption
- Escrow provisions and holdbacks
- Representations and warranties from knowledgeable parties
- Accuracy of Books and Records
- Termination of specific risk before closing.
David S. Forsh, Counsel
Pillsbury Winthrop Shaw Pittman LLP
Bankruptcy background with restructuring and distress aspect
Asset Purchases in Bankruptcy: Section 363
- Process Overview
- Notice requirements
- Comparison to plan process
- Due process considerations
- Differences from ordinary APAs
- Limits on “Free and Clear” ability
- Future personal injury tort claimants
- Circuit differences
- Caselaw trends/Best practices
- ABI Reform Commission Report and Recommendations
- Notice to creditors
- Lessons from GM bankruptcy
- Sale Order language
- Order scope
- Retention of jurisdiction
Integration of Newco
- Separate subsidiary?
- Separate entities for separate business purposes, real estate ownership, operating companies, etc.
- Records retention policies
- Retain copies of all insurance policies of acquired co.
- Current insurance and whether occurrence based, claims based, and retroactive coverage dates.
Insurance policies of target company providing coverage to Newco?
Who Should Attend:
- In-house M&A Practitioners
- In-House Counsel
- Outsourcing Lawyers
- Risk and Compliance Professionals
- Finance Executives
- Merger and Acquisition Lawyers
- Account and Audit Preparers
- Securities Lawyers
- Private Companies
- Multinational Companies
- Other Related/Interested Professionals and Organizations
leads Pillsbury’s Insolvency & Restructuring practice and is based in New York. He has extensive experience advising domestic and multinational clients on out-of-court workouts, corporate restructurings and bankruptcy cases in a broad range of industries including financial services, healthcare, construction, real estate, energy, and manufacturing. Clients describe Deryck as "an outstanding adviser" and "a sharp and creative attorney," with "a depth of experience that only a few can match," as noted in Chambers Global and Chambers USA. Deryck has handled some of the largest and most significant restructuring matters in the country during the past three decades, including LyondellBasell Industries, the U.S. Treasury Department in the GM bankruptcy, and Citibank in the Lehman Brothers bankruptcy.
leads Pillsbury’s Insolvency & Restructuring practice and is based in New York. He has extensive experience advising domestic and multinational …
Is a counsel in Pillsbury’s Insolvency & Restructuring practice and is based in the New York office. His practice focuses on business reorganizations and capital structure workouts in distressed situations across a wide range of industries. David’s recent matters include representing the Dormitory Authority of the State of New York in connection with the refinancing and restructuring of certain distressed New York hospitals and Louis Berger in its successful out-of-court global restructuring and recapitalization.
Is a counsel in Pillsbury’s Insolvency & Restructuring practice and is based in the New York office. His practice focuses …
Keith Broady represents individuals and businesses in a wide variety of litigation and transactional matters. His litigation practice includes professional liability defense, real estate disputes, construction disputes, title insurance, insurance coverage and real estate agents liability. His litigation cases have also involved shareholder disputes, corporate alter ego and successor liability, environmental and mold claims, creditor's claims and fraudulent transfers, burglary and fire losses, contract and agency claims, and probate and trust disputes. His transactional practice includes mergers and acquisitions, real estate sales and leasing, and estate planning. He also serves as a mediator and arbitrator. Keith has repeatedly been named to the Minnesota Super Lawyers list and is rated AV® Preeminent™ 5.0 out of 5 by Martindale-Hubbell.
Keith Broady represents individuals and businesses in a wide variety of litigation and transactional matters. His litigation practice includes professional …
Michael O'Malley, a Harvard Law School graduate, represents businesses and their owners in initial organization and structuring, business dealings, merger & acquisition transactions, infrastructure, capital and other financings, tax planning and proceedings before tax authorities, and advises on issues of corporate governance and fiduciary duty.
He is Chair of Hawaii Dental Service and serves on the boards of Kapi`olani Medical Center for Women and Children, Hawaii Strategic Development Corporation, and Natural Energy Labs of Hawaii, as well as a number of other for-profit and exempt organizations boards. He is a frequent speaker on tax and corporate topics.
Michael O'Malley, a Harvard Law School graduate, represents businesses and their owners in initial organization and structuring, business dealings, merger …
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About Pillsbury Winthrop Shaw Pittman LLP
Pillsbury Winthrop Shaw Pittman LLP is a full-service international law firm with an industry focus on financial services, real estate & construction, technology, and energy & natural resources. Based in the world's major financial, technology and energy centers, Pillsbury advises clients on global business, restructuring, regulatory and litigation matters. Pillsbury works collaboratively with its clients in complex situations to better mitigate risks, take advantage of new opportunities, and exceed business objectives. Recognized by Financial Times as one of the most innovative law firms, Pillsbury and its lawyers are highly regarded for their forward-thinking approach and their commercial awareness.
About Lommen Abdo, P.A.
Established in 1979, Lewis Brisbois Bisgaard & Smith LLP is a national, full-service law firm with nearly 1,000 attorneys and 34 offices in 22 states. Our national practice is sophisticated, multi-faceted and well-versed in current legal trends, while our individual state practices provide vast resources and knowledge of procedural and legal nuances. Lewis Brisbois offers legal practice in more than 30 specialties, and a multitude of subspecialties associated with each practice area. Our attorneys have broad knowledge, expertise, and sensitivity to their clients’ unique needs. Through interaction among its practice groups, Lewis Brisbois provides a wide range of legal services to each client with a continuity of representation over multiple disciplines. We have built longstanding relationships with corporate and institutional clients based on our ability to provide comprehensive service on a national scale. At Lewis Brisbois, diversity is an integral part of our firm culture and our daily life. We have a Diversity & Inclusion Committee whose mission is to promote and advance diversity and inclusion within the firm. The success of the firm’s diversity initiatives is reflected in the fact that Lewis Brisbois has repeatedly received national recognition for its commitment to embracing diversity. Lewis Brisbois is committed to hiring and retaining a diverse group of talented lawyers and staff, and demonstrates that commitment through non-discriminatory hiring, retention and promotion policies. The diversity of the firm’s client base is matched by the diversity of our attorneys. With offices from Los Angeles to New York, our attorneys reflect the communities in which they live. The firm’s culture has fostered a diverse group of professionals committed to promoting the best interests of our clients, our communities and the legal profession. We are committed to supporting diversity through new and ongoing relationships with minority and women-owned businesses.
About Goodsill Anderson Quinn & Stifel
Goodsill Anderson Quinn & Stifel has served the legal and business needs of clients in Hawaii and around the world since 1878. With approximately 60 attorneys located in downtown Honolulu, Goodsill offers knowledge and experience in a broad range of business matters and practice areas, including business and securities law, banking, real estate, tax, trusts and estates, public utilities, immigration, international transactions and civil litigation. In addition, Goodsill attorneys have expertise in such specialized areas as mergers and acquisitions, environmental law, antitrust, aviation, admiralty, international trade, labor and employment, media, technology, start-ups, venture financing and health law.