While the economies of New York and New Jersey have rebounded since the 2008 recession, small businesses still face challenges. Unfortunately, when a company with which you do business closes, it may leave you seeking options so that you are not a victim of that company’s failure.So what can you do if your contract partner goes under? In most cases, your legal remedies depend on the circumstances of the business closing and the terms of the underlying contract.
Best case scenario
In some cases, businesses that are suffering financial trouble will be proactive and reach out to their contract partners. If the other party seeks to make a contract modification, make sure any deal you make is memorialized in writing. If you have rights under the existing contract that you don’t want to lose, make sure the new writing protects those rights. If the business owes you money or product, state that in the writing, so that it is not a subject for later dispute – even though you may be waiving a portion of what you are owed as a compromise.
When dealing with mergers
If another firm bought the company – as in a corporate merger – usually the new company must take responsibility for the contract obligations of the former company. Many agreements specifically address “contract assignment,” in which a new party steps into the shoes of an existing party and assumes all of the obligations and rights under the contract. Some contracts may include a provision prohibiting assignment, while others may require the other party to consent to the assignment.If you have such rights, notify the acquiring company that you have them, and try to assert yourself into the mix in the sale, using your contract as leverage for a new direct agreement with the acquiring company. Keep in mind the politics of the situation; that is, if it appears that the acquiring company may walk away if you interfere, and the continuation of the contract relationship is not threatened by the merger, you will want to stay silent.
Worst case scenario
If the company has initiated the bankruptcy process, the U.S. Bankruptcy Court may notify you as a potential claimant. Under the federal Bankruptcy Code, a debtor can often decide whether to either “assume” or “reject” certain executory contracts. There is a potential trap here with regard to payments made within 90 days of bankruptcy that may be subject to recapture as a preference over other creditors.
If the company has completely ceased its business operations, with no likelihood of continuing or sale, or has filed for bankruptcy protection, your ability to recover your losses is less certain.
Bankruptcy reorganization
If the company reorganized in bankruptcy decides to assume the contract, it must cure all prior defaults and show that it will be able to satisfy its future obligations under the contract. If the company in bankruptcy rejects the contract, it is considered a breach and you may seek to recover damages.
However, as to claims under your contract you will likely be in line with other unsecured creditors, so it is important to review the bankruptcy filing to see your chances for a recovery in the bankruptcy.
Collecting money owed
If you have a contract that still is in force with a defunct company and it can’t fulfill its obligations, you may have to get the rest of your contract needs filled by another company. Then, you may have a damages claim against the company that went under. Of course, the difficulty will again be collecting any money owed.
Was it a corporation?
If the closed business was not a corporation, you are likely to be able to bring claims against the individuals who owned the business. Remarkably, even if the closed business was a corporation, you are likely to be able to bring claims against the individual shareholders for recovery of your damages under the contract with the corporation if the shareholders dissolved the corporation and made payments to themselves or assigned or took out some corporate assets for themselves in dissolving the corporation. It is not uncommon for shareholders of a dissolving corporation to repay to themselves debts owed to them by the dissolved corporation for money they invested into the business. Cash businesses are particularly suspect, as are businesses that close, but are re-opened under a different name by one or more of the former owners.
In any case, if you are unsure whether your legal rights are protected when your contract partner goes under or if you would like to discuss the matter further, please contact me, Dan Brecher, at 201-806-3364.
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