Publications

• What are Sandbagging and Anti-Sandbagging Clauses?

  April 10, 2017

  To close our discussion of representations and warranties, I want to provide a brief overview of sandbagging and anti-sandbagging clauses. A sandbagging clause allows a buyer to sue the seller after closing for a breach of a seller representation and warranty that the buyer knew about prior to closing. An anti-sandbagging clause prohibits a buyer from […]

• Fundamental Representations and Warranties

  March 27, 2017

  Continuing with the theme of representations and warranties, this week’s M&A Monday update is about fundamental representations and warranties, survival periods, and caps. In many deals, some representations and warranties are deemed to be more important than others. Those representations and warranties that are most important are termed “fundamental representations and warranties.” The determination of […]

• Vapor Intrusion: Afraid to Inhale?

  March 26, 2017

  That’s understandable, given the recent publicity regarding vapor intrusion (“VI”).  Local evacuations of residences and businesses, the installation of vapor mitigation systems by governmental agencies, a joint VI initiative announced by the Michigan Department of Environmental Quality (MDEQ) and the State Department of Health and Human Services, and the MDEQ budget request to fund a […]

• What are the differences between qualified and unqualified representations and warranties?

  March 20, 2017

  As discussed last week, representations and warranties are truths or assertions made by a party to a purchase agreement. Representations and warranties can either be qualified or unqualified and are often used to shift risk between the seller and the buyer. The following seller representation and warranty is unqualified: “The company’s financial statements are GAAP-compliant.” […]

• What Are Representations and Warranties and Why Do We Have Them?

  March 13, 2017

  Representations and warranties are assertions or assurances given by the parties to the agreement. While most purchase agreements contain representations and warranties from seller and buyer, the seller representations and warranties typically are the most extensive and more important. The seller representations and warranties are assurances by the seller about the company and, in the […]

• Michigan’s DAPT Law Protects Assets from Creditors

  March 8, 2017

  Governor Snyder recently signed Michigan’s Qualified Dispositions in Trusts Act, which takes effect on March 8, 2017.  In so doing, Michigan joins 16 other states that permit a particular form of trust commonly known as “domestic asset protection trust” (or DAPT).  A DAPT is an irrevocable trust whose assets the grantor’s creditors cannot reach if […]

• Pay Deductions for Salaried Employees: You Ask, We Answer

  March 7, 2017

  Q: Do I need to pay a salaried-exempt employee for time off if they already exhausted all of their PTO? A: It is important for employers to be cautious when considering whether or not to take deductions from a salaried-exempt employee’s pay. One wrong move could result in a misclassification claim for not only the employee subject […]

• Recent Legislation Improves Michigan Brownfield Program

  February 22, 2017

  The “traditional” sources of funds for the development of real estate include senior debt and equity.  However, certain development projects would never launch without the use of additional funding mechanisms in the form of state or federal financial incentives.  These projects include sites with historic contamination, deteriorated infrastructure, and/or inadequate or obsolete structures, referred to […]

• Form or Substance: Enhanced Practice for Physician’s Assistants?

  February 8, 2017

  (February 9, 2017) The Michigan Legislature in December amended an existing law governing the practice of medicine by physician’s assistants.  The new law, 2016 P.A. 379, takes effect March 22, 2017.  It is intended to give physician’s assistants (PAs) greater autonomy in day-to-day operations by allowing them to practice without daily supervision of a physician.  […]

• Michigan Legislature Abolishes Dower

  January 22, 2017

  Governor Rick Snyder signed legislation on January 6, 2017 abolishing a surviving wife’s dower right in her deceased husband’s property, making Michigan the final state to eliminate this law. However, some states still retain a form of dower, but in order to prevent discrimination on the basis of sex, they offer a reciprocal right to […]