The 5 Best Ways to Avoid Post-Liquidity-Event Litigation

For family offices or family enterprises, a liquidity event such as the sale of the main business can open your business up to a whole range of opportunities and vulnerabilities.  That’s why you need good advice at every stage.  By following these five simple guidelines, you’ll avoid the most serious problems and protect yourself, your family and your assets.

  1. Clarify your expectations

Ensure that absolutely everything you’re hoping for has been put in writing in terms that both sides understand.  What are you hoping for?  Don’t make assumptions, particularly about how things are “usually” or “always” done.  What are you expecting to be able to do after the sale?  For example, do you have related business that you are planning to carry on after the sale or do you hope to have an ongoing relationship with the company you’re selling?  Do you have all these assurances in writing?  Most importantly, don’t move forward until you reach consensus.  Some sellers assume things will just “fall into place,” and that’s a recipe for disappointment later on.

  1. Communicate

Lay it all on the line.  Your legal counselor is looking out for your best interests, so ensure that he or she understands all the assets of your business, and also any potential obstacles, such as intellectual property rights or disgruntled former partners or employees.  The best way to avoid litigation is to ensure that neither side has any surprises after the deal goes through and that any side plans and objectives you may have are clearly communicated to your lawyer to make sure they will be possible and that they are put in writing.

  1. Don’t rush

It’s natural to want to put this process behind you quickly.  But when it comes to closing, take your time and make sure that every detail is going according to plan.  Go over any agreements point by point, ensuring that you understand the terms and conditions fully.  Ask questions while you can.  Give your lawyer the authority to re-read and review documents from scratch even if it takes longer, and be clear about what the tax implications will be for you and your family members before signing.

  1. Have a backup plan

If your deal specifies an ongoing working relationship after the closing, it’s a good idea to plan ahead just in case things don’t work out.  Buyers often dispose of the seller’s services after a “honeymoon” period once they can manage on their own.  Though you may wish to stay connected, planning a graceful exit strategy ahead of time will ensure that you’re not taken by surprise.  Also, what is your plan if any future installment payments of the purchase price are not made, in a situation where the buyer cannot pay or refuses to pay, or if the buyer tries to negotiate the price down months after the deal has already closed.

  1. Plan your best team

Early in the process, hire a litigation counselor you can trust.  Many family offices and family enterprises rely on their regular attorney for a process like this, but without experience in these types of deals, that can be risky.  A qualified litigator will ensure that you get the best terms and that everything goes according to plan by reviewing the transactions in the background and understanding how the deal will play out; this will also help you avoid litigation further on down the line.

While most of these steps might seem like common sense, I’ve seen what happens when buyer and seller rush into a deal – and it happens far too often.  As any wise attorney will tell you, it’s better to delay a little before signing than to spend months or even years in a protracted and bitter court battle.  Following these five steps will give you peace of mind and ensure that your interests are protected – before, during and after the liquidity event.

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