The New York Law Blog: May 2016
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Friday, May 27, 2016

Partnerships/Joint Ventures Due Diligence for International Business JVs in New York, New Jersey & Connecticut: Partnership Law Updates

We, regretfully, see too many New York, New Jersey and Connecticut residents entering into business relationships with foreign nationals and domestic corporations with little foresight.

The following Merger & Acquisition Due Diligence Checklist is intended as a guide to vetting a prospective partner/joint venture.  The list is not exhaustive and an experienced attorney is, normally, necessary to join your due diligence team.

Please don't chase an opportunity and not consider the risks.  The cost is, likely, less than you think and risks are, likely, greater than you think.

This New York-Focused Merger & Acquisition Due Diligence Checklist is not a substitute for retaining an attorney to assist with your M & A. Please, only, use this checklist as an initial guide and insure that your attorney is checking off all of the boxes.

If your prospective counterpart is an Asian-based company, these companies often are very poor at keeping accurate records that reflect a rational present reality.  This is, sometimes, caused by neglect and is sometimes intentional.  Please don't avoid a review of their partner company abroad.

Thus, it is essential to find a good Asian-based attorney that understands where to find the red flags. This skill comes with experience working in Asia.  If the attorney is not in Asia, the attorney will be unable to have the tools necessary to do a proper DD.  The flags our lawyers find in Korea, China, Southeast Asia are vastly different from the flags our lawyers find in New York, New Jersey and Connecticut.

M & A Due Diligence Checklist
  • Company History
    • Company History/Background
    • Founder, Family & Key Individuals in Company
    • Historical Profitability
    • Historical Client List
    • Credit Rating Present and Historical
    • Primary Present Customers, Suppliers & Vendors
    • Reason for Sale or Merger
    • Change in Present Market for Company
    • Stinky Fish & Stinky People
    • Old Hats
  • Financials & Shareholder Distributions
    • Audited Financial Statements
    • Tax Returns, Tax Certificates, Tax Filings & VAT, Sales Tax Receipts etc.
    • Government Filings, Government Notices and Tax Office Communications
    • Local Taxes & Communications
    • Compliance with local and international accounting standards
    • Insurances
    • Cash Flow, Current Financials & Year End Statements
    • Shareholder Distributions
    • Interested Transactions
    • Lawsuits by Shareholders
    • Government Liens
    • Liens & Attachments
  • Company Formation Documents
    • Business Licenses, Tax License & Commercial Register
    • Articles/Constitution, By-laws, Amendments etc.
    • Shareholder Agreements/Joint Venture Agreements
    • Government Approvals & Certificates
    • Interested Directors, Officers, Share Holdings
    • Representative Director & Directors Acceptance Documents
    • Formation Docs
    • Insurance Contracts
    • Seal Certificate
  • Assets & Receivables
    • Receivables List & Records
    • Real Property List & Records
    • Movables List & Records
    • IP (trademark, patents, copyrights, licenses etc.)
    • Registration documents for IP
    • Worldwide IP List
    • Contact for IP Manager
  • Liabilities & Lawsuits
    • Lawsuits & Administrative Actions
    • Government Liabilities
    • Loans & Guarantees
    • Interested Transactions
    • Licenses
    • Contingents
    • Liabilities to Shareholders, Employees, Family & Directors
  •  Customers & Relationships
    • Major Customers
    • Agreements & POAs
    • Customer & Vendor Relationship Issues
    • Customer Relationship with Key Employees Leaving
  • Employee/Directors
    • Employee List
    • Job Specs
    • Employment Contracts
    • Government Obligations
    • Severance Obligations
    • Director Contracts
    • Former Director List
    • Employees Terminated in Last Year
    • Independent Contractor Contracts
    • Employment Related Tax Obligations
    • Labor Union Representatives/Union
    • Disciplinary Dismissals
    • Contact for Human Resources
  • Real Property
    • Title, Lease, Property Records
    • Adjoining Landowners
    • Tax Assessment
    • Mortgages, Liens & Encumbrances etc.
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*Sean Hayes may be contacted at: SeanHayes@ipglegal.com.

Sean Hayes is co-chair of the Korea Practice Team and Chair of International Practice Group at IPG Legal.  He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty.  Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw.  He has, also, received the highest rating by AVVO and other legal rating services.


Wednesday, May 18, 2016

Beating Summary Judgment in a New York Court: He Said She Said

"While they are arguing, I'm winning."
Here is a perfect example of how a skilled attorney can use proper strategy that applies to just about any dispute, whether it be a claim for injury or a dispute over money: when you have more than one target, you can pit one against the other to maximize your position. 


My client, a front seat passenger in a motor vehicle, doesn't know what happened to him. All he knows is that he was injured in a car accident - and that was enough to win the day for him.  

My client was sitting in the front seat of a vehicle driven by a young relative of his.  While traveling on Jericho Turnpike on Long Island, this vehicle collided with one driven by a third party.  The impact was so severe that my client was knocked unconscious, remembering nothing until paramedics removed him from the twisted metal that was the vehicle.  

The driver of his vehicle contended that she did nothing wrong and that the fault was with the other driver.  And of course, the driver of the other vehicle had a completely different story, as you'd imagine.  But our driver moved for summary judgment.  

Summary judgment motions are the gateway to moving from discovery to preparing for trial.  The standard for granting a motion for summary judgment is that the case should be similarly decided when there is no issue to be resolved at trial. Andre v. Pomeroy, 35 N.Y.2d 361 (1974). When faced with a motion for summary judgment, the Court must decide whether there is no genuine factual issue. Richard v. Credit Suisse, 242 N.Y. 346, 152 N.E. 110 (1926).  To beat the motion, I would have to show a triable issue of fact that can only be resolved at trial. 

The challenge laid out for me was clear - how to obtain full compensation for my client's injuries.  To do that,  I would need to defeat this summary judgment motion to not only keep his relative in the matter, but more importantly, to keep her insurance company - and its greater coverage -  in it as well. To do so, I pitted driver against driver. 

The driver of the vehicle which my client was in claimed in her sworn testimony that the other vehicle was traveling in the opposite direction and turned as if to pass through the intersection where the accident occurred and struck her while she was traveling with a green light.  

For his part, the other driver testified that he did not turn at all. He claimed to be standing at a red turn signal on Jericho Turnpike when the other vehicle plowed into him head-on, driving his vehicle back several yards.

The divergent stories made my life so easy - and the decision easy for the Judge, who held that "significant issues of fact exist[ed] sufficient to require a plenary trial" based upon "the parties' conflicting testimony concerning how the accident occurred".   

But, this matter would never see trial, as this ruling strengthened our negotiating posture and resulted in a much more favorable outcome than had been envisioned before this decision.

***

I didn't even really have to work to reach my client's goals:  the other side did all the work for me!  It's a handy tactic to employ when you have multiple defendants who are both looking to avoid responsibility, but who ultimately put themselves on the hook.
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*Gene Berardelli may be contacted at: GeneBerardelli@ipglegal.com.

Gene is a New York street-smart attorney with an extreme passion for success. Gene specializes in litigation, arbitration and general corporate law for New York-based and international clients. He, also, is the host of a popular New York talk radio program.
  

Tuesday, May 17, 2016

Welcome To The New York Law Blog!


Welcome to The New York Law Blog,  brought to you by the attorneys, staff and other professionals at IPG Legal.

This site will be the home for blogs containing first-hand legal experience, analysis of legal news and current events in the practice of law in New York and a resource for attorneys and non-attorneys alike to understand the law a little better.

There will be something for everyone - some insight into legal issues for lawyers, cautionary tales for potential clients, and education for all. And a little bit of wit and fun along the way.

We hope you stop back here often, as we will be updating this site regularly.  Feel free to comment on stories and offer feedback whenever you like.