In a recent journal post, I explained how my firm achieved a full settlement when through the aid of discovery, we were able to determine that the judgment debtor closed its old company and started a new one, running the exact same type of business.
This is essentially a fraudulent transfer, but the character of the transfer is a little different from you typical Debtor-conveys-property-to-third-party situation. When a debtor forms a new entity, which is opened for the sake of defrauding a creditor and is essentially the old entity in a different name, you have what is called successor liability.
While there may be legitimate circumstances where a company is transferred or purchased without the purchasing company or transferring company assuming the liabilities of the selling/transferor company, often in our context, we find that these transactions are more often than not just per se fraudulent.
General Rule Regarding Successor Liability
In Bernard v. Kee Mfg. Co., Inc., 409 So.2d 1047 (Fla. 1982), Florida’s Supreme Court adopted the traditional corporate law rule and its exceptions by holding that the liabilities of the selling predecessor will not be imposed on the buying successor company “unless (1) the successor expressly or impliedly assumes obligations of the predecessor, (2) the transaction is a de facto merger, (3) the successor is a mere continuation of the predecessor, or (4) the transaction is a fraudulent effort to avoid liabilities of the predecessor.” 409 So.2d at 1049. This rule is meant to protect companies that sell their businesses in proper arm’s-length transactions. More often than not, entity judgment debtors who try to defraud creditors by opening a new business, start new entities in a much more haphazard fashion without any sort of formality.
De Facto Merger and Mere Continuation
An exception to the above rule in Bernard is the focus of this journal entry. Courts will find successor liability if there is either a De Facto Merger or a Mere Continuation regarding the business entities.
A de facto merger occurs where a business is absorbed by another without complying with the statutory requirements for a merger. Lab. Corp of America, 813 So.2d at 270. In finding de facto merger, a court can look to numerous factors reasonably indicative of commonality or of distinctiveness with the main focus being “whether there has been a change in form, but not in substance.” Id. Courts have identified a few of the more significant factors. “To find a de facto merger there must be continuity of the selling corporation evidenced by the same management, personnel, assets and physical location; a continuity of the stockholders, accomplished by paying for the acquired corporation with shares of stock; a dissolution of the selling corporation; and assumption of the liabilities.” Amjad Munim, M.D., P.A. v. Azar, 648 So.2d 145, 154 (Fla. 4th DCA 1994).
This exception exists when the successor business is merely a “continuation or reincarnation of the predecessor corporation under a different name,” such as when the “purchasing corporation is merely a ‘new hat’ for the seller, with the same or similar entity or ownership.” Bud Antle, Inc. v. Eastern Foods, Inc., 758 F.2d 1451, 1458 (11th Cir. 1985). Thus, some key factors in finding a continuation of the predecessor business include a “common identity of the officers, directors and stockholders in the selling and purchasing corporation.” Munim, 648 So.2d at 154. Florida’s Fourth District Court of Appeal also explained that “while having common attributes does not automatically impose liability on a successor corporation, merely repainting the sign on the door and using new letterhead certainly gives the appearance that the new corporation is simply a continuation of the predecessor corporation.” Lab. Corp. of America, 813 So.2d at 270.
This Mere Continuation theory is what we often find in our collection practice. The principals of the Judgment Debtor “merely repaint” the sign on the door. When this occurs, a creditor can avail itself of Fla. Stat. 726.105 and these factors can be “badges of fraud,” can guide the court in its analysis of whether to unwind the transaction or assess new liability on the transferee. Typically, our firm prosecutes these matters under the umbrella of Fla. Stat. 56.29 (check out our post on that). Our firm is very familiar with this collection situation and would be happy to assist you in such matters. Contact Andre Law Firm today.