Successor Liability: What You Need to Know
In November 2014, the Department of Justice (DOJ) has issued a Foreign Corrupt Practices Act (FCPA) Opinion Procedure Release that underscores the relevance of observing pre and post- acquisition due diligence and offers guidance on successor liability.
In this CLE webinar, the Knowledge Group has assembled a panel of key thought leaders to provide the audience with an in-depth analysis of Successor Liability under Foreign Corrupt Practices Act. Speakers will discuss best enforcement practices and strategies to minimize risks and violations.
Key topics include:
- Foreign Corrupt Practices Act Opinion Release
- Legal Framework and Boundaries of Successor Liability
- Pre-Acquisition Due Diligence and Post-Acquisition Integration
- Common Acquisition Violations
- Potential Litigation Risks
- Possible Sanctions and Liabilities
- Best Compliance and Enforcement Practices
Keith J. Broady, Attorney/President
Lommen Abdo, P.A
- U.S. Courts have traditionally examined successor liability under four theories summarized as follows:
- "Traditional corporate successor law provides that a purchaser of corporate assets is not responsible for the liabilities of the selling corporation unless:
- The purchaser expressly or impliedly has agreed to assume such liability;
- The transaction amounts to a consolidation or merger;
- The purchasing corporation is merely a continuation of the selling corporation; or
- The transaction is entered into fraudulently to escape liability."
- Sylvester Bros. Dev. Co. v. Burlington Northern, 772 F.Supp. 443, 447-49 (D. Minn. 1990);
- Cooper v. Lakewood Engineering and Mfg. Co., 45 F.3d 243, 245 (8th Cir. 1995); and U.S. v.
- Mexico Feed and Seed Co, Inc., 980 F.2d 478, 487 (8th Cir. 1992).
- The U.S. Department of Justice Opinion Procedure Release No. 14-02 dated November 7, 2014 addresses a proposed transaction under which a U.S. company proposed to acquire 100% of the shares of the Target Company, a foreign corporation. The Opinion refers to the basic principle of corporate law that a company assumes certain liabilities when merging with or acquiring another company, but the DOJ will not take enforcement action against the acquiring company under the FCPA based on none of the potentially improper preacquisition payments was subject to the jurisdiction of the U.S.
- An examination of the underlying elements of the four theories of traditional corporate successor liability should provide guidance on structuring transactions and whether an acquiring company would be subject to enforcement action by the DOJ for the potential FCPA pre-acquisition liabilities of a target company.
Christopher C. Hagenow, Attorney at Law, Managing Director
Blackwell, Burke & Ramsey, P.C.
- Pre-acquisition due diligence
- Potential litigation risks, i.e. successor liability (even if it is an asset purchase only)
- Drafting agreements/ structuring the transaction to protect against successor liability (e.g., indemnification baskets; holdback/escrow; etc.)
Paul Edward Sumilas, Senior Attorney
Norton Rose Fulbright US LLP
- Analyzing key lessons from recent FCPA enforcement actions and OPRs regarding successor liability
- Drafting and implementing an anti-corruption M&A due diligence work plan
- Mitigating anti-corruption risk associated with successor liability
- Undertaking appropriate post-acquisition steps to mitigate risk of ongoing or continuing anti-corruption issues
Who Should Attend:
- In-house M&A Practitioners
- In-House Counsel
- Outsourcing Lawyers
- Risk and Compliance Managers
- Compliance Professionals
- Merger and Acquisition Lawyers
- Account and Audit Preparers
- Securities Lawyers
- Revenue Authorities
- FCPA Securities and Corporate Governance Attorneys
- Private Companies
- Multinational Companies
- Other Related/Interested Professionals and Organizations
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 …
Christopher C. Hagenow is the Managing Director of Blackwell, Burke & Ramsey, P.C. Mr. Hagenow joined the firm in 2003 and has 23 years of experience in business litigation, banking and business transactions, and general business counsel. He serves as a Director on the FORUM Credit Union Board of Directors and is a member of the Indiana Association for Corporate Renewal and the Indiana Banker’s Association. Mr. Hagenow attended the University of Notre Dame to earn his Bachelor of Arts and Washington and Lee University School of Law for his J.D.
Christopher C. Hagenow is the Managing Director of Blackwell, Burke & Ramsey, P.C. Mr. Hagenow joined the firm in 2003 …
Paul Sumilas joined the Washington D.C. office in 2011. As a senior associate, Paul focuses his practice on white collar criminal defense for both corporations and individuals, with an emphasis on the Foreign Corrupt Practices Act, insider trading, public corruption and federal election law.
Paul has extensive experience advising clients in relation to the FCPA and general anti-corruption compliance, including conducting internal investigations, designing and implementing compliance programs, conducting training for employees and third parties, and managing risk assessments. He has worked for multinational clients across a variety of industries (oil and energy, aerospace, telecommunications, financial services, retail, maritime) and around the world, including leading investigations and reviews in Latin America, Europe, and Asia. Paul's experience includes drafting and revising anti-corruption manuals, policies, and procedures; drafting and implementing investigation plans; interviewing witnesses; managing and assisting reviews of books and records; managing document collections, reviews, and productions; and preparing investigation reports and presentations for clients and government agencies.
Paul Sumilas joined the Washington D.C. office in 2011. As a senior associate, Paul focuses his practice on white collar …
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About Lommen Abdo, P.A
Lommen Abdo is a multi-faceted Midwestern-based law firm providing practical, effective legal services to both businesses and individuals. We have trial attorneys, entertainment attorneys, vaccine injury attorneys, appellate advocates, employment attorneys, real estate attorneys, family law attorneys, estate planning attorneys and much more. Our best credentials are our clients' successes, but we are also recognized by our peers: 19 are AV-rated by Martindale-Hubbell, five were selected for inclusion in The Best Lawyers in America® 2015, 13 are included in the Super Lawyers list, and many have obtained certifications in trial practice and real estate. Lommen Abdo evolved over the past 75 years, expanding services as our clients have prospered. Lommen Abdo matches each client’s needs with the most appropriate and affordable expertise available in our firm, drawing upon the knowledge of attorneys best qualified to meet and exceed those needs.
About Blackwell, Burke & Ramsey, P.C.
Blackwell, Burke & Ramsey, P.C. is a boutique law firm in Indianapolis, IN that specializes in business law, banking law and creditor’s rights. As a small firm, they have the ability to offer their clients the attention and dedication needed for every aspect of their business. The firm was established in 1991and brings a total of 150 years of combined experience to the Indianapolis community. Blackwell, Burke & Ramsey, P.C. serves the entire state of Indiana in state and federal courts. The team at Blackwell, Burke & Ramsey is diversely seasoned in all the legal nuances any business may encounter.
About Norton Rose Fulbright US LLP
Norton Rose Fulbright is a global legal practice. We provide the world’s pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers and other legal staff based in more than 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.
Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.
Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.