Avoiding Employer Successor Liability in Asset Sales

Navigating Courts' Balancing Test, Privity and Notice Requirements

Recording of a 90-minute CLE webinar with Q&A

Conducted on Wednesday, December 13, 2017

Recorded event now available

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Program Materials

This CLE webinar will provide guidance to employment counsel for mitigating the risk of successor liability for labor and employment law claims following an asset sale. The panel will discuss the legal standards for determining whether a successor company is liable for its predecessor's alleged violations of the FMLA, FLSA, ERISA and other employment laws, proactive approaches to consider prior to an asset sale, and solutions for problems that arise thereafter.


Counsel for employers must ensure their clients understand that contract provisions in asset purchase agreements cannot always disclaim successor liability for employment law violations. In fact, there is a presumption that a successor will be liable for some employment law claims made against its predecessor.

Practitioners must assess—and address—exposure to successor liability claims before completing an asset purchase of a business that has or had employees, and ensure that the buyer has appropriate indemnification protections from the seller. Counsel must also advise employers of the alternatives and solutions available to avoid or mitigate liability, including adjusting the structure of the acquisition.

Listen as our authoritative panel reviews the legal standards for determining successor liability for employment law claims. The panel will discuss key issues, such as the requirement of privity and notice to impose such liability, and prepare counsel to assist employers in structuring asset purchase deals in a manner that mitigates or eliminates successor liability.



  1. Case law framework for successor liability
    1. Balancing test and nine factors
    2. Privity requirement
    3. Notice requirement
  2. Mitigating risk when structuring an asset purchase with potential employment law claims
    1. Indemnification clauses
    2. Pricing/valuation
    3. Bankruptcy alternative


Our panel will review these and other key issues:

  • Under what circumstances are asset purchasers liable for employment law claims made against predecessor owners?
  • What is the current prevailing legal standard for determining successor liability for violations of employment statutes such as the FMLA, FLSA and ERISA?
  • What should counsel consider when advising clients on whether to proceed with an asset purchase? What adjustments or alternatives are available once successor liability exposure is identified?


Colliins, Michael
Michael Collins

Gibson Dunn & Crutcher

Mr. Collins is Co-Chair of the firm’s Executive Compensation and Employee Benefits Practice Group. His practice...  |  Read More

Levine, Elizabeth
Elizabeth K. Levine

Goulston & Storrs

Ms. Levine’s practice focuses on management-side employment law, defending organizations in litigation and...  |  Read More

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