Environmental Due Diligence in M&A Transactions: All Appropriate Inquiry, Bona Fide Purchaser Defense

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


Conducted on Tuesday, June 8, 2021

Recorded event now available

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Course Materials

This CLE course will discuss environmental due diligence in M&A transactions, including the types of environmental risks that can arise, assessing those risks in a transactional context, and certain liability defenses that may be available and obtained through the due diligence process.

Description

Environmental due diligence in M&A transactions involves the assessment of known, potential, and contingent environmental liabilities and obligations associated with the properties and operations of the target company and its affiliates.

Consequently, proper environmental due diligence includes assessing the target company's compliance with environmental requirements and the potential for liability at sites used by the business or sites to which the business arranged for hazardous material disposal. And while the scope of due diligence assessment varies, savvy counsel must structure the due diligence to identify the liabilities and risks associated with the target.

One of the best known--yet poorly understood--aspects of environmental due diligence is "all appropriate inquiry" (AAI). AAI is a gating issue to the bona fide purchaser defense. CERCLA and similar state laws provide that an owner or operator of real property can be held liable for any onsite contamination. But they also offer certain statutory defenses if the purchaser can prove it conducted an AAI. Such an inquiry qualifies the party as a bona fide purchaser such that it may be able to avoid CERCLA liability for any preexisting contamination subsequently found on the acquired land. Similar protections available to "secured creditors" will also be discussed.

Listen as our authoritative panel provides practical guidance on environmental due diligence in M&A transactions, the common and lesser-known types of environmental risks that can arise, how those risks can be assessed and mitigated in a transactional context, and robust liability defenses that may be available and obtained through the due diligence process.

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Outline

  1. Conducting "all appropriate inquiry" and qualifying for the bona fide purchaser defense
  2. Tailoring the scope of the due diligence
  3. Development deals
  4. Building materials and indoor air quality
  5. Emerging issues in environmental due diligence

Benefits

The panel will review these and other key issues:

  • What are the best practices for evaluating and managing environmental risks in complex commercial transactions?
  • How does a party conduct an "all appropriate inquiry"?
  • How does a purchaser qualify as a bona fide purchaser?
  • What are the most pressing emerging issues in environmental due diligence?

Faculty

Hwang, Marian
Marian Hwang

Principal
Miles & Stockbridge

Ms. Hwang Chairs the firm’s Environmental Practice. The breadth of her experiences representing multinational and...  |  Read More

Perel, Andrew
Andrew J. Perel

Partner
Troutman Pepper

With more than 25 years of experience, Mr. Perel’s practice encompasses all aspects of environmental law,...  |  Read More

Smith, Freedom
Freedom S.N. Smith

Partner
Ice Miller

Ms. Smith concentrates her practice in the areas of environmental and toxic tort litigation, environmental...  |  Read More

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Strafford will process CLE credit for one person on each recording. All formats include course handouts.

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