4 ms·

In a case like this, does that mean that Smyte (the company, even if they no longer own the trademark) still exists and is liable for all the penalties? Would t

In a case like this, does that mean that Smyte (the company, even if they no longer own the trademark) still exists and is liable for all the penalties? Would they usually ask for the cash to pay for them as part of the asset purchase?

voxadam 8y ago
In a case like this what's left other than an empty sack? Unless you're able to pierce the corporate veil there isn't anyone/anything with assets left to be made whole by (e.g. sue).
- t3soro 8y ago
  The argument that penalties should be paid out of the purchase price would probably hold water. When Smyte entered into those contracts they took on some duty to honor them and to suddenly dishonor them and divert all the assets out of the company so that penalties wouldn't ve avoided would be constructive fraud.
- Gibbon1 8y ago
  One could argue the transfer was fraudulent. And go after both parties. Twitter and the founders. Don't know, not a lawyer.
  - civilitty 8y ago
    IANAL but I was a plaintiff in a similar case. We were made whole in a settlement but before that, the judge tore the defendants a new one over this tactic leading to a bitter dispute between the acquierer and shareholders (or the board of officers, don't remember) over who was liable for breach of contract. Eventually it came out that the auditors had done the math and included cost of litigation/liabilities on these contracts into their valuations, basically admitting that they knew about the obligations beforehand, so the acquierer ended up settling. At the end of the day, judges (and appellate panels) have to interpret the law and they don't function like automatons. They take into account the spirit of laws/contracts as well as the letter and most have enough common sense to get missed off at these naive tactics.
- thecatspaw 8y ago
  in that case smyte would still exist and now have lots of money from the acquisition you could sue for
- DannyBee 8y ago
  Well, usually they are using the money to wind down. (All of this is a good reason i hate LLC's. They aren't necessary anymore to actually do risky innovation in 90%+ of cases. In a non-LLC, they shareholders would be liable, and then you'd still have someone to go after)
DannyBee 8y ago
Yes, it does mean the former. Usually, they would use the cash to wind down.

voxadam 8y ago

In a case like this what's left other than an empty sack? Unless you're able to pierce the corporate veil there isn't anyone/anything with assets left to be made whole by (e.g. sue).

t3soro 8y ago
The argument that penalties should be paid out of the purchase price would probably hold water. When Smyte entered into those contracts they took on some duty to honor them and to suddenly dishonor them and divert all the assets out of the company so that penalties wouldn't ve avoided would be constructive fraud.
Gibbon1 8y ago
One could argue the transfer was fraudulent. And go after both parties. Twitter and the founders. Don't know, not a lawyer.
- civilitty 8y ago
  IANAL but I was a plaintiff in a similar case. We were made whole in a settlement but before that, the judge tore the defendants a new one over this tactic leading to a bitter dispute between the acquierer and shareholders (or the board of officers, don't remember) over who was liable for breach of contract. Eventually it came out that the auditors had done the math and included cost of litigation/liabilities on these contracts into their valuations, basically admitting that they knew about the obligations beforehand, so the acquierer ended up settling. At the end of the day, judges (and appellate panels) have to interpret the law and they don't function like automatons. They take into account the spirit of laws/contracts as well as the letter and most have enough common sense to get missed off at these naive tactics.
thecatspaw 8y ago
in that case smyte would still exist and now have lots of money from the acquisition you could sue for
DannyBee 8y ago
Well, usually they are using the money to wind down. (All of this is a good reason i hate LLC's. They aren't necessary anymore to actually do risky innovation in 90%+ of cases. In a non-LLC, they shareholders would be liable, and then you'd still have someone to go after)

DannyBee 8y ago

Yes, it does mean the former. Usually, they would use the cash to wind down.