A guest post today from Taylor Phillips (an attorney with Bass Berry & Sims in Washington, D.C.).
Imagine you deliver pizza for a living. You are good at your job, but there is another deliveryman who is the best in the business – Hiro Protagonist. Thanks to a remarkably fast car, Hiro always makes his deliveries on time.
One day, however, Hiro asks if you are interested in buying the car. He tells you that he had a “near miss” with a pedestrian and, shaken, he has decided to hang up his insulated pizza bag for good. Because he offers you a good price on the car, you accept.
A few months later, the police show up at your door. They inform you that Hiro did not have a “near miss” – he hit a pedestrian while making a delivery. Worse, they say that because you bought substantially all of Hiro’s business assets, you are criminally culpable for the hit-and-run. Moreover, because pizza delivery is a highly regulated industry, the Sicilian Edibles Commission brings an administrative action against your business based on Hiro’s failure to properly account for expenses related to the hit-and-run.
Obviously, this hypothetical is grossly oversimplified, but its patent injustice highlights the problems with expansive successor liability. As FCPA practitioners know, successor liability is a key part of the government’s enforcement of the FCPA. Consequently, as the FCPA Professor put it recently, “the FCPA is a fundamental skill set for all business lawyers and advisers, including in the mergers and acquisitions context.”
Of course, many attorneys who are not well-versed in the FCPA will look first to the DOJ and SEC’s Resource Guide to the U.S. Foreign Corrupt Practices Act. It emphasizes that “[a]s a general legal matter, when a company merges with or acquires another company, the successor company assumes the predecessor company’s liabilities. . . . Successor liability applies to all kinds of civil and criminal liabilities, and FCPA violations are no exception.” But is that right?
To assess the statement in the Resource Guide, it’s worth stepping back and considering how companies are purchased by other companies. The most common acquisition structures are mergers, stock purchases, and asset purchases. In a statutory merger, the resulting company assumes all the civil and criminal liability of its predecessor companies. Thus, no transactional lawyer should be surprised that FCPA liabilities will transfer in a merger. Conversely, in a stock purchase, there is no “successor”—the purchased company still exists, with all its existing liabilities.
Thus, asset purchases typically are the only cases in which “successor liability” is meaningfully analyzed by courts. Interestingly, the rule is different from that stated in the Resource Guide: as a general legal matter, when a company acquires substantially all of another company’s assets, it does not assume the seller’s liabilities – even when it continues the seller’s business, brand, and contracts.
Of course, most rules have their exceptions, and there are four commonly recognized exceptions to the general rule of nonliability for asset purchasers. The first exception—express or implied assumption of liabilities—simply states that where an acquirer intends to assume the liabilities of the seller, the law will enforce that intent. The second exception—fraud—applies when the sale of assets would work a fraud on the seller’s creditors. Finally, the third and fourth traditional exceptions—“mere continuation” and de facto merger—commonly are considered to be a single exception which can involve a number factors, depending on the idiosyncrasies of state law. Critically, however, continuity of ownership between the buyer and seller typically is considered to be an indispensable factor for these two exceptions. Thus, in accordance with traditional common law, an arms-length buyer that does not intentionally assume the seller’s liabilities nor engage in fraud will not be liable for the seller’s legal violations. In other words, if only these exceptions applied to the hypothetical, the police would be wrong, and you would not have any successor liability, civil or criminal, for Hiro’s hit-and-run (even if you were well aware of it prior to the transaction).
Given this fairly clear answer, what explains the government’s silence regarding asset purchasers in the Resource Guide? One potential answer is the “substantial continuity” exception. In addition to the four traditional exceptions to successor nonliability referenced above, some federal courts have applied federal common law to find arms-length asset purchasers liable for violations of the seller where the asset purchaser (1) knew of the liability prior to the acquisition and (2) continued the enterprise of the seller. Thus, unlike the traditional exceptions of “mere continuation” and “de facto merger,” the “substantial continuity” exception does not require continuity of ownership – merely continuity of enterprise. Thus, if the substantial continuity exception applied to FCPA violations, there would be a plausible argument that China Valves had successor liability for Watts Waters’ FCPA violations (and that you would be at least civilly liable for Hiro’s hit-and-run).
Supreme Court precedent, however, strongly suggests that federal courts should incorporate state law rather than expand federal common law. In particular, the Supreme Court’s decisions in United States v. Kimbell Foods, 440 U.S. 715 (1979), and United States v. Bestfoods, 524 U.S. 51 (1998), indicate that federal courts should adopt state law, rather than create a federal law of corporate liability. Accordingly—as many circuit courts have found in other contexts—state successor liability law is applicable to many federal causes of action. Because most states do not recognize the federal substantial continuity exception, several circuits do not apply the exception except in environmental, labor, and employment cases.
In short, there is a compelling argument that arms-length asset purchasers—even asset purchasers who continue the business of the seller and know about the seller’s FCPA violations—do not, as a matter of law, have successor liability for the FCPA violations of the seller. For additional development of this argument see The Federal Common Law of Successor Liability and the Foreign Corrupt Practices Act, ___ William & Mary Business Law Review ___ (forthcoming).
Despite the general rule of successor nonliability, the Resource Guide does not squarely address FCPA liability for asset purchasers. If only there was some way to ask the government for guidance on its present enforcement position with respect to successor liability…