Legal Brief: Summer Round Up – M&A deals, news and upcoming events!
Posted: July 29th, 2024
Posted: July 29th, 2024
Posted: July 25th, 2024
Campolo, Middleton & McCormick Senior Partner Christine Malafi was recently honored by Dan’s Power List of the East End, recognizing individuals for their commitment, impact and influence on the East End of Long Island. Malafi received her award at Giorgio’s in Baiting Hollow.
Malafi chairs the Corporate Department at CMM, which Forbes has recognized as a Top Corporate Law Firm in America. She has led the CMM legal team in closing countless M&A deals worth billions of dollars. She has vast experience advising on both buy-side and sell-side M&A transactions in a variety of industries, including technology, manufacturing, education, healthcare, and professional service sectors. Malafi is particularly adept at working closely and strategically with clients’ other professional advisors, including accountants, bankers, and M&A advisors, as well as forging those critical relationships for clients based on the deep network of relationships she has cultivated over years in the business.
Malafi has the unique perspective of being a corporate lawyer who spent the first half of her career as a litigator with extensive experience in municipal, insurance coverage, and fraud issues. She brings her deep understanding of litigation and the court system to all aspects of her corporate work and uses this experience to help protect clients from a variety of critical angles.
Congratulations, Christine!
Posted: July 25th, 2024
Event Date: November 20th, 2024
The CMM Cares Charity Casino Gala is set to be an evening of excitement and games to raise money for individuals and families in need on Long Island. Stay tuned for more details! For more information, please contact Victoria Tringone at vtringone@cmmcares.org.
Posted: July 23rd, 2024
As a corporate lawyer focused on complex M&A transactions, I’ve closed countless deals for corporations of all sizes and high-net-worth individuals. In my experience, here are the five most important things you need to know about disclosure schedules and their critical role in the process:
1. What are Disclosure Schedules?
A large part of an M&A agreement will consist of “representations and warranties,” i.e., “promises” that are being made on behalf of the parties. Disclosure schedules are an attachment to the M&A agreement which closely mirror the representations and warranties. In addition to providing an opportunity to correct existing facts that could otherwise result in breach of the agreement, they qualify statements to make exceptions that would otherwise clutter the main document.
2. Are There Different Types of Disclosures?
There are two main types of disclosures that can be made in the disclosure schedules. The first type is an “exception” to a representation. For example, let’s say a purchase agreement contains a warranty that the target entity has marketable title. However, the seller has knowledge of a claim that impairs the target entity’s marketable title. The seller would then describe the claim in the corresponding section of the disclosure schedule. By disclosing this “exception,” you avoid any breach of warranty issue.
The second type is a “listing” required by a representation. For example, an agreement requires you to list all real property associated with your company. In a corresponding section of the disclosure schedule, you would then list all real property associated with your company.
3. What is the Purpose of a Disclosure Schedule?
The disclosure schedules provide dual protection for both buyers and sellers. For sellers, the disclosure schedules shift risks to the buyer. For example, a seller could represent that the company does not have any outstanding tax liability “except” for all the tax liability represented on the disclosure schedule. Post-closing, this shifts the risk for all tax liability contained within that disclosure schedule to the buyer. For buyers, disclosure schedules advance due diligence by increasing the transparency that is difficult to detail in the main agreement. Also, they create the foundation for claims which may arise post-closing.
4. How Much Disclosure is Enough?
It can be difficult to determine the level of disclosure, but generally a seller should not be concerned about disclosing too much. Over-disclosing may cause additional work, but this level of transparency allows the seller to appropriately shift risk to the buyer, as the instances of breaching a representation or warranty is drastically reduced.
5. Is There Any Preparation Needed to Draft a Disclosure Schedule?
For guidance, contact Vincent J. Costa at 631-738-9100 ext. 343.
Thank you to Linda Reimann for her research and writing assistance.
Posted: July 19th, 2024
CMM recently represented a premier gymnastics studio in the sale of its assets to a local competitor. The studio, which has been in business since 1984, offers camps, competition teams, and more for aspiring Olympians.
The deal team, led by CMM Partner Vincent Costa with support from Zachary Mike, worked tirelessly to ensure a smooth transaction between parties.
“It was a pleasure working with CMM,” said the client. “They were so knowledgeable and led me through the sales process with ease.”
From gymnastics studios and pickleball facilities to manufacturing and tech companies, Campolo, Middleton & McCormick can expertly handle any M&A transaction.
Posted: July 9th, 2024
By: Patrick McCormick, Esq. email
Published In: The Suffolk Lawyer
Twin Objectives of Title IX of the Education Amendments of 1972
Title IX is landmark federal civil rights legislation that was enacted as part of the Education Amendments of 1972 (“Title IX”) to address education discrimination. Title IX provides in relevant part that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
Bostock v. Clayton County, Georgia
In Bostock v. Clayton County, Georgia,[1] the U.S. Supreme Court held that the prohibition of discrimination based on “sex” as set forth in Title VII of the Civil Rights Act of 1964 (“Title VII”)[2] precluded discrimination based on sexual orientation or gender identity. Based on this decision, the U.S. Department of Education (“Department”)[3] interprets Title IX to include protection against discrimination based on gender identity or sexual orientation.
2024 Amendment to Title IX
On April 29, 2024, and after a two-year proposal period, the Department released its 2024 Amendment to Title IX (“Final Rule”) which provides that: “Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”[4] This amendment is consistent with the Department’s prior interpretation and codifies the Bostock decision. In addition to the variety of feedback the Department received preceding the 2020 amendment to Title IX[5], the Department received and reviewed more than 240,000 comments regarding the Final Rule. This amendment expands and clarifies the definition of sex discrimination to include sex stereotypes, sex characteristics, pregnancy, sexual orientation, and gender identity. The recipients of Federal assistance were defined to include elementary schools, secondary schools, and postsecondary institutions. The plan is for the proposed regulation to take effect on August 1, 2024.
Additionally, a few notable revisions of the Final Rule pertain to off-campus conduct and reporting requirements for grievance procedures: for example, who is qualified to report, during what timeframe, the removal of mandatory live hearings. Moreover, the Final Rule does not address transgender or nonbinary students’ participation in athletic programs. Finally, the Final rule requires reasonable modifications for individuals based on pregnancy and expands protections for caregivers.
The Final Rule preempts state laws that contradict its new definitions, thus ensuring a uniform standard across all states. Each school district must adopt, publish, and implement a nondiscrimination policy that has appropriate notice and grievance procedures.
Challenges to the 2024 Amendment to Title IX
The Final Rule’s recent release has provided fresh impetus for several states to challenge the scope and authority of the Department in promulgating the recent amendment to Title IX. This wave of litigation may affect whether the proposed regulations will take effect on August 1, 2024.
Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming have initiated lawsuits over the Final Rule. The lawsuits allege, among other things, the Final Rule raises First Amendment[6] concerns and that the Final Rule is in violation of the Administrative Procedure Act.[7] A few states argue that the Final Rule misapplies the Bostock precedent.[8]
We will keep an eye on these cases and any impact on the Final Rule.
Thank you to Linda Reimann for her research and writing assistance.
[1] 140 S. Ct. 1731 (2020).
[2] 20 U.S.C. §§ 1681-1688 (LexisNexis, Lexis Advance through Public Law 118-62, approved May 13, 2024).
[3] Department of Education is an executive agency that enforces Title IX under 34 C.F.R. § 106.31 (2023).
[4] 89 FR 33474, 33886 (amending 34 C.F.R. § 106).
[5] Department of Education promulgated the 2020 amendment to Title IX under 85 Fed. Reg. 30,026 (May 19, 2020).
[6] U.S. Const. amend. I.
[7] Administrative Procedure Act, 5 U.S.C. §§ 701-06.
[8] Memorandum Ruling at 18, Rapides Par. Sch. Bd v. U.S. Dep’t of Educ., 3:24-cv-00563 (W.D. La. June 13, 2024).
Posted: July 1st, 2024
On May 1, 2024, the Appellate Division, Second Department unanimously affirmed the dismissal of an Article 78 Petition filed by two homeowners whose applications for seasonal floating docks were denied by the village board of the Village of Asharoken. The Village Code, adopted in 1992, originally banned all docks along a ¾ mile stretch of pristine beach known as the Ida Smith Beach, named after the person who took title to the beach following a grant in 1880 from the Town of Huntington. For more than 100 years, no docks were built along this area of the village.
In 1992, the village enacted a local law which expressly banned docks along the Ida Smith Beach, citing a number of justifications, including environmental, pollution, swimming, navigation, and aesthetics. This law was struck down because of a procedural defect in its adoption having nothing to do with the merits of the ordinance. In 1994, the village adopted a new dock ordinance which, although theoretically allowing dock permits to issue, placed the burden on applicants to show that their dock would not cause any of the harms cited in the 1992 ordinance. In addition, the ordinance made all dock applications along the Ida Smith Beach Type I actions for purposes of SEQRA, meaning that it was likely the docks would cause significant adverse impacts to the environment, and a Draft Environmental Impact Statement would more than likely be required.
The 1994 ordinance created an Environmental Review Board to hold hearings on dock applications and to make recommendations to the Board of Trustees. When someone who had been on the committee that recommended the ordinance adopted in 1994 was asked why the village did not simply ban all docks again, he responded that they did not think anyone would try and get a dock permit.
That held true until 2015 when two property owners along the beach submitted dock permit applications. The Environmental Review Board held five public hearings over the course of two years. The Asharoken Bayside Association (“ABA”), consisting of almost all the other property owners along Ida Smith Beach, was formed to intervene in the hearings to oppose the applications. They retained Frederick Eisenbud, Chair of the Environmental and Land Use practice group at CMM, and Ron Abrams, Ph.D., a wetlands expert, to represent them. As a result, a complete record was created which essentially showed that it was impossible for the applicants to prove that none of the six express factors that had to be considered by the ERB and Board of Trustees would arise from approval of the dock permit applications. If the applicant for a dock permit could show the proposed dock would not cause any of the harms set out in the ordinance, the permit still had to satisfy objective criteria for the docks themselves.
The applicants argued that their applications met the objective criteria for docks, and their common law riparian rights mandated that they be granted permits, even if some of the adverse impacts set out in the ordinance would be created. A riparian owner has the right of reasonable, safe and convenient access to navigable water, and this right ordinarily includes the right to make this access a practical reality by building a pier or wharfing out. The applicants in this case assumed their riparian rights were absolute. In 2017, however, the Board of Trustees unanimously adopted the recommendation of the ERB, which voted, 4-3, against approving the docks, and thus denied the permit applications.
The applicants then filed an Article 78 Petition to challenge the denial of their permits. The ABA, concerned that only they, and not the village, had argued that riparian rights were not absolute, again retained Eisenbud to intervene in the Article 78 Petition to support the dismissal of the challenges to the denial of their permits. Eisenbud prepared the ABA’s opposition, and in 2019, the Supreme Court, Suffolk County, dismissed the challenge to the dock permit denials. In part, the lower court found that “Riparian rights are not unfettered and must yield to the legitimate governmental exercise of police power. Specifically, the right of access for navigation and the right to make a landing, wharf or pier for one’s own use or for the use of the public, are subject to such general rules and regulations as the legislature may see proper to impose for the protection of the rights of the public, whatever those may be.”
The Appellate Division affirmed. Eisenbud, with the assistance of CMM Senior Associate Richard DeMaio, were retained by the ABA to represent their interests as intervenors on appeal to make certain all arguments which would support the lower court’s dismissal would be raised. First, the Appellate Division held that the ERB’s recommendation and the Board of Trustees denial of the permits were not arbitrary or capricious because they were supported by express criteria in the ordinance. Then, they rejected the applicants’ riparian rights argument, finding that “The board’s determinations also did not violate the petitioners’ riparian rights, as the board’s determinations enforced the Village Code, which constituted a reasonable restriction of those rights.” The ordinance expressly found there were reasonable alternatives to building docks which would permit property owners along Ida Smith Beach to access navigable waters, such as using row boats to access boats that are moored off-shore, or taking advantage of the many marinas nearby.
Important Take-Aways from the Akeson v. Village of Asharoken Case
Posted: June 25th, 2024
Campolo, Middleton, & McCormick, LLP is proud to announce that CMM Partner David Green has been recognized by Blank Slate Media as a 2024 Top Business Leader of Nassau County. David accepted his award at the gala dinner on June 20 at Leonard’s Palazzo of Great Neck. The Top Business Leaders ceremony celebrates the most influential and accomplished individuals who find ways to lead and inspire.
David represents businesses and individuals in various areas of litigation with a particular emphasis on clients in the construction and real estate development sectors. He believes that supporting New York businesses and facilitating a robust business community is essential to the growth and advancement of Long Island.
David has spent many years fighting for his clients and developing a reputation as an attorney with knowledge, skill, and talent. His experience includes complex discovery, trials, appeals, securing settlements, and alternative dispute resolution. David is unique as a litigator in that he views litigation as one of many available legal strategies to help clients navigate a complicated legal system. His experience inside and outside the courtroom allows him to craft creative and effective solutions that help his clients save critical time and resources.
David is a key member of CMM’s Westbury office, where he is based. David is a Trustee of the Sea Cliff Village Library as well as a member of the Gold Coast Business Association.
Posted: June 20th, 2024
CMM has secured a meaningful win for the Town of Riverhead.
In this personal injury case, the Plaintiff claimed that the Town was liable for injuries sustained by a minor at a public skateboard park. CMM successfully moved for summary judgment (essentially, asking the Court to find that there are no facts in dispute and to rule in our favor), arguing that the Plaintiff was solely responsible for the accident.
The team, led by Scott Middleton with significant contributions from Joseph Townsend, drafted the winning motion, which resulted in a dismissal of all claims.
Had the Plaintiffs been able to proceed with their case, it would have subjected the Town to significant exposure due to the Plaintiff’s injuries.
CMM has a proven track record in representing Suffolk and Nassau County towns and villages. Visit our Municipal Liability page to read about more successful cases.