On September 25, 2017, the firm co-hosted a Continuing Legal Education course with the Association of Corporate Counsel at Coors Field on issues in mergers, acquisitions, and related transactions.
Speakers from the firm included David Ringelman and Lee Fanyo presenting on letters of intent; Deb Shinbein Howitt discussing intellectual property and data privacy issues; Carlos Romo speaking on environmental, health, and safety audits for new owners; and Bronwyn Pepple leading a panel of in-house counsel on labor and employment matters. Presentations are available here.
Firm speakers were joined by Julia Guynn, General Counsel at CARDNO, Karen Sanford, General Counsel at the company formerly known as Intrawest, Scott Rowekamp, Counsel at Envision HealthcareEmployment, and James Lebeck, Associate General Counsel with SM Energy.
The program covered best practices in transactions, strategies to avoid pitfalls, and lessons learned. Some of the lessons learned include:
- Letters of intent may impose binding obligations on parties unless they are carefully drafted;
- The parties conduct and communication must be consistent with their nonbinding intent; even emails can result in a binding agreement;
- When parties include an obligation to negotiate in good faith, it may materially reduce a party’s ability to act in its own interest and obtain a better deal;
- The U.S. Environmental Protection Agency and states are incentivizing new owners to conduct Environmental Health & Safety (EHS) audits as a “clean start” after acquisitions;
- Knowing you have the ability to conduct an EHS audit post-acquisition can reduce risk and assist in negotiating final deal terms on environmental liabilities;
- Engaging outside consultants and attorneys in EHS audits can help keep materials confidential;
- Due diligence on a company’s data security practices (including searching the darknet) can uncover unknown data breaches and legal violations. Potential target companies should be prepared by having an incident response plan and other security policies in place;
- If customer information is an important asset in a purchase transaction, review the target company’s privacy policy to confirm that the data can legally be transferred to and used by the new owner;
- Be sure to check public records, chain of title, and agreements with the creators of intellectual property to confirm ownership of IP and domain names;
- Carefully consider the impact that a stock or asset deal may have on your employment liabilities as both a buyer and a seller;
- Detailed diligence on employment-related topics can save headaches after an acquisition; and
- In preparing for integration, be especially mindful of wage and hour, immigration, leaves of absence, unions, cultural fit and successor liability issues.
After the CLE, attendees gathered on the terrace at Coors Field for a Rockies game.
