A merger or acquisition is, ideally, the culmination of thoughtful strategy, appropriate due diligence and effective negotiations. Under the best circumstances, the transaction closes, the parties move on, and each’s objective—whether financial, operational or strategic—is achieved.
Today’s deals environment is characterized by heightened representation and warranty considerations, and a continued uptick in the presence of provisions regarding purchase price adjustments (most commonly regarding working capital or some other balance sheet metric) and earn-out. As such, the specter of uncertainty may loom over a closed deal months (even years) after the closing date. This condition may hamper a buyer’s ability to focus on integration, execution of core business plans, and development and enhancement of relationships; and a seller may find itself unable to enjoy the fruits of the deal or to focus on its next objective with full attention.
EisnerAmper’s Post-M&A Dispute Services team, as part of the firm’s Forensic, Litigation & Valuation Services Group (“FLVS”), provides consulting services to sellers, buyers and their counsel on crafting deal document language to minimize the risk of those circumstances. And when disputes do arise, as is inevitable in some cases, we stand ready to assist the parties and their attorneys in navigating through the resolution process, which often involves a form of arbitration or proceedings before an independent accountant or other neutral party.
Qualifications Aligning with Parties’ Goals
As industry-leading consultants, expert testifiers, and highly seasoned accounting arbitrators and neutrals, we bring decades of subject matter experience and multiple technical and sector-specific resources to the parties’ benefit. Our approach—bringing the right expertise to the matter—is singularly oriented toward resolving post-transaction matters quickly, decisively and economically.
An Ounce of Prevention
Parties, at the outset and throughout negotiations, are strongly encouraged to make every effort to prevent actual post-transaction disputes from happening or, at the very least, minimize their potential impact. Our consultants thoroughly understand the intricacies and nuances of agreement language and can identify, before the deal is made final, potential risks such as:
- Purchase-price adjustment-provision ambiguities
- Earn-out clause susceptibilities
- Financial representation and warranty risks
- Dispute resolution protocol vagueness
More valuable than just being able to identify such issues, we stand ready to help parties and their legal advisors craft stronger, more definitive language versus the “boilerplates” that are often seen from deal to deal. Addressing and eliminating contractual weaknesses, and being “on the same page,” before the agreement is signed often allows the parties to veer from turning down the road of arbitration or litigation later.*
Further, working seamlessly with our firm’s Transaction Advisory Services (“TAS”) team, we can assist with the preparation of agreement-compliant closing statements, metric computations, and earn-out statements.
Navigating the “Sometimes Inevitable”
Recognizing, however, that a dispute is often unavoidable for various reasons, such as changes in business, industry and economic conditions; buyer and seller remorse; and even fundamental mistrust; we provide services that have proven invaluable to our clients:
- Acting as accounting arbitrators or neutrals (on deals for which we have not previously been involved, for parties from whom we are independent) via joint retention by the parties.
- Providing the following advisory services to one party:
- Assisting with the identification and selection of arbitrators/neutrals, establishment of suggested protocols, and negotiation of engagement letters.
- Consulting with counsel to develop clear, effective, and persuasive written submissions including initial statements, rebuttals and interrogatory responses.
- Preparing estimated, affirmative and responsive calculations.
- Conducting strength, weakness, opportunity, and threat (“SWOT”) analyses regarding various strategies.
- Hearing participants and acting as a party representative in hearings.*
- Representing or advising party representatives in settlement negotiations.*
- Serving in expert testifying witness roles in formal hearings and in court.
The EisnerAmper FLVS Group’s Post-M&A Dispute Services team stands ready to leverage the experience garnered from involvement in hundreds of successful transactions throughout the years. With decades of Big Four, international and boutique firm experience; freedom from the conflict footprints of many larger accountancies and consultancies; and a lean, cost-sensitive structure; EisnerAmper stands as the premiere choice to buyers and sellers seeking to avoid, minimize the risk of, and resolve post-transaction disputes.
*The services described on this page are consulting services only, and do not constitute legal services or legal representation in any negotiations or proceedings.
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