There are resources all around you that can help you find the perfect attorney for your case and situation. First, you can ask other professionals whose judgment you trust, such as your doctor or accountant, for the name of a good lawyer. Also try business people who often work with attorneys, as well as legal service organizations like your state bar association.

The State Bar of Michigan works to promote good relations between the legal profession and the public, and they are an excellent resource. Using their website www.michbar.org, you can research attorneys, get referrals, find out about legal aid options, and read about legal issues.

Remember that you are entitled to interview lawyers. At the meetings ask questions about the attorney’s experience with matters like yours and about their practice. Ask how long it should take to deal with your matter and whether there are alternative ways to deal with your situation. Always remember though, that things can occur to lengthen the process. Make sure you ask about the attorney’s methods of communication and how often you will hear from him or her. You should be able to communicate effectively with the lawyer you choose. Always be completely comfortable with the lawyer you hire.

Once you have chosen an attorney, they may give you a written retainer or fee agreement. Be sure to read it carefully and discuss any questions you have before signing the agreement. The agreement should at least set forth the amount of legal fees to be paid and how the fees will be billed and due, and which costs will be your responsibility. You can ask for an estimate of costs, their hourly rates and who in the lawyer’s office will be working on your matter. Remember that it will be an estimate, and that circumstances can affect the total fee amounts.

It is your attorney’s responsibility to give you objective advice and protect your rights. It is your responsibility to be honest with this attorney and to get him or her all relevant documents and information. Your attorney cannot represent you effectively without knowing the whole situation.

Remember also, that you are entitled to make the final decisions about how to proceed with your case and about any settlement options. You are entitled to consult with your lawyer about the methods to be used in your case but your attorney is bound by certain ethical conduct standards. The attorney is not allowed to employ means that would violate those standards, even if that is what you request. Your attorney is also allowed to make certain legal decisions on your behalf if necessary.

At the end of your matter your attorney will retain your file for a period of time. He or she will notify you and give you an opportunity to have any “client property” returned to you before the file is destroyed. Client property is anything you provided to the lawyer, and any original documents like wills, deeds, etc.

There are resources all around you that can help you find the perfect attorney for your case and situation. First, you can ask other professionals whose judgment you trust, such as your doctor or accountant, for the name of a good lawyer. Also try business people who often work with attorneys, as well as legal service organizations like your state bar association.

The State Bar of Michigan works to promote good relations between the legal profession and the public, and they are an excellent resource. Using their website www.michbar.org, you can research attorneys, get referrals, find out about legal aid options, and read about legal issues.

Remember that you are entitled to interview lawyers. At the meetings ask questions about the attorney’s experience with matters like yours and about their practice. Ask how long it should take to deal with your matter and whether there are alternative ways to deal with your situation. Always remember though, that things can occur to lengthen the process. Make sure you ask about the attorney’s methods of communication and how often you will hear from him or her. You should be able to communicate effectively with the lawyer you choose. Always be completely comfortable with the lawyer you hire.

Once you have chosen an attorney, he or she may give you a written retainer or fee agreement. Be sure to read it carefully and discuss any questions you have before signing the agreement. The agreement should at least set forth the amount of legal fees to be paid and how the fees will be billed and due, and which costs will be your responsibility. You can ask for an estimate of costs, their hourly rates and who in the lawyer’s office will be working on your matter. Remember that it will be an estimate, and that circumstances can affect the total fee amounts.

It is your attorney’s responsibility to give you objective advice and protect your rights. It is your responsibility to be honest with this attorney and to get him or her all relevant documents and information. Your attorney cannot represent you effectively without knowing the whole situation.

Remember also, that you are entitled to make the final decisions about how to proceed with your case and about any settlement options. You are entitled to consult with your lawyer about the methods to be used in your case but your attorney is bound by certain ethical conduct standards. The attorney is not allowed to employ means that would violate those standards, even if that is what you request. Your attorney is also allowed to make certain legal decisions on your behalf if necessary.

At the end of your matter your attorney will retain your file for a period of time. He or she will notify you and give you an opportunity to have any “client property” returned to you before the file is destroyed. Client property is anything you provided to the lawyer, and any original documents like wills, deeds, etc.

Business Buyers can find themselves with an unexpected, expensive surprise when a court makes them pay up for the Seller’s liabilities, especially employment law violations.  A recent case expands the list of Seller liabilities that a Buyer could end up paying the bill for. Buyers should carefully plan to assess and mitigate those risks, especially if the Seller is experiencing financial difficulty.  

Generally, the Buyer of a corporation’s assets does not assume the Seller’s corporate liabilities. But there are exceptions to the rule. The Supreme Court imposes successor liability on asset Buyers in employer-employee contexts. Specifically, a Buyer may be bound by a Seller’s collective bargaining agreement or liable for a seller’s unfair labor practices. Other Federal Courts have expanded the doctrine of successor liability to delinquent pension fund contributions under ERISA, the Fair Labor Standards Act (minimum wage and overtime), the Family and Medical Leave Act, and Title VII of the Civil Rights Act. 

A court looks at two things before it imposes successor liability on a Buyer: 

1. the Buyer’s awareness of the Seller’s liability; 
2. a substantial continuity of identity in the business enterprise. 

There are no hard and fast rules when it comes to evaluating substantial continuity. It depends on all the circumstances, but courts typically look at the similarity of the new business to the old, as well as the type of liability at question. 

Recently, a Second Circuit Court was asked to expand the doctrine of successor liability to hold an asset buyer liable for its predecessor’s withdrawal liability under the Multiemployer Pension Plan Amendment Act (MPPAA). The MPPAA amended ERISA to provide that if an employer withdraws from a multiemployer plan, it is liable for its portion of unfunded vested benefits. This was adopted to reduce the burden on the plan and remaining participants, protect the financial solvency of multiemployer plans, and to ensure employees do not lose their retirement benefits. 

In New York State Teamsters Conference Pension and Retirement Fund V. C&S Wholesale Grocers, Inc., 24 F.4th 163 (Jan. 27, 2022), the Defendant, C&S, bought most of the assets of Penn Traffic, a grocery wholesale business, excluding a warehouse in Syracuse and the warehouse employees who were members of the Plaintiff multiemployer union. Penn Traffic continued to operate the Syracuse warehouse and employ the Plaintiff union member employees. Penn Traffic went bankrupt and pulled out of the Plaintiff multiemployer pension plan, creating significant withdrawal liability. The Plaintiff sued to collect Penn Traffic’s withdrawal liability from C&S on the doctrine of successor liability. The Court easily found that an asset Buyer could be liable for a Seller’s withdrawal liability under the doctrine of successor liability. Because Federal Courts already used  the successor liability doctrine to make Buyers pay for Sellers’ delinquent pension fund contributions under ERISA, the Court had no trouble expanding the reach of successor liability to include withdraw liability under the MPPAA. In the Court’s words:

The primary reason for making a successor responsible for its predecessor’s delinquent ERISA contributions is that, “absent the imposition of successor liability, present and future employer participants in the union pension plan will bear the burden of the predecessor’s failure to pay its share,” which will threaten the health of the plan while the successor reaps a windfall. That rationale applies with equal, if not greater, force to a predecessor’s MPPAA withdrawal liability. 

But the case also contains good news for Buyers: the Court held that C&S could not be liable for Penn Traffic’s withdraw liability, because C&S did not buy the Syracuse warehouse and did not hire the employees who work there (the withdrawal liability related to those employees). Because C&S was not Penn Traffic’s successor to that business it was not on the hook for Penn Traffic’s withdraw liability.   

Buyers should carefully investigate and assess employment related exposures as part of due diligence. And when risks pop up, Buyers should mitigate them appropriately. If the Teamsters opinion tells us anything, one way to do that is to carve out riskier business units altogether. Sometimes that’s not practical, and that’s when a quality legal team can help you control the risk.