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Court Says That Buyer of Business Not Likely to Win Trade Secret Suit

Introduction A buyer of a business sued the seller’s owner to stop him from competing against the owner’s old business. The deal This case involved the sale of a seafood distribution business. The seller was a San Francisco based organic

Posted in asset purchase agreement, trade secret misappropriation by former seller employee Tagged with: , ,

Franchise Buyer’s Fraud Claim Bars Seller’s Summary Collection of Note

Introduction It can be easy for a creditor to obtain a judgment against a debtor that has defaulted on payment of a promissory note. Essentially all the creditor must do is produce the signed note and prove nonpayment. But not

Posted in asset purchase agreement, fraud in business sale, promissory note, rescission Tagged with: ,

Franchisee’s Fight with Franchisor Costs It a Sale of its Franchise

Introduction This is a story of a broken deal: a sale of a restaurant franchise that did not happen because of a dispute with the franchisor. The deal The case here involved a franchise for seven Tim Hortons restaurants located

Posted in approval of franchisor, asset purchase agreement, franchise sale, integration clause, no oral modifications of contract Tagged with: ,

Business Seller Can’t Break Delaware Forum Selection Clause

Introduction This case demonstrates how hard it is for a party to an M&A agreement to get out of the forum selection clause. The deal The buyer was a Georgia based Delaware company providing nationwide accounts receivable and revenue cycle

Posted in forum selection clause Tagged with: , ,

Seller Loses Earnout Suit – No Strategic Buyer Bad Faith

Introduction The Seller got past a motion for summary judgment in its gross profits earnout lawsuit against its strategic buyer. See http://www.mk-law.com/wpblog/court-gives-pharmacy-seller-chance-to-collect-earnout/ for my earlier blog about the summary judgment motion. But, although the seller won the battle, it ultimately

Posted in earn outs, implied covenant of good faith and fair dealing Tagged with: ,

Strategic Buyer’s Refusal to Sign APA Authorized by LOI

Introduction The Mississippi high court held that an LOI gave a strategic buyer the right to not sign an APA. The deal The seller started operations as a Mississippi hospice in June of 2007. The founder and owner ran it

Posted in implied covenant of good faith and fair dealing, letter of intent, nonbinding Tagged with:

Bankruptcy Court Permits 363(f) Sale of Business Free of Pension Claim

Introduction A pension plan unsuccessfully tried to stop a company from selling a business to a buyer in a 363(f) (3) sale free and clear of the seller’s pension fund liability. The deal The seller was engaged in environmental and

Posted in 363(f)(3) sale, asset purchase agreement, bankruptcy sale, distressed business acquisitions, federal multiemployer pension plan withdrawal liability, successor liability Tagged with: , , , , ,

Lawsuit Over EBITDA Earnout “Determined in Accordance With Buyer’s Historical Reporting Policies”

Introduction This is another post-closing M&A dispute over an EBITDA earnout. The deal The seller was a San Jose based small security guard service. It sold its assets in September 2016 to a Georgia based nationwide security company with about

Posted in bad faith, corporate overhead, de facto merger exception, earn outs, EBITDA Tagged with: ,

Purchase Price Royalty for SaaS Business Didn’t Include Professional Fees

Introduction The seller’s purchase price royalty for sale of a software as a service business did not include post-closing hourly professional fees. The deal The seller is a Seattle based systems integration firm that developed a cloud-based application that lets

Posted in purchase price, royalty Tagged with: ,

APA Integration Provision and Exclusive Remedy Clause Bars Seller Claim

Introduction A seller of a mortgage service business could not sue its asset buyer in tort for negligent misrepresentation. The deal The seller was a Denver based company that was formed after the 2008 financial crisis to assess and verify

Posted in earn out, economic loss doctrine, exclusive remedy, integration clause Tagged with: , ,

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