Identifying and Managing Environmental Risks in Commercial Transactions

Identifying, Quantifying and Allocating Potential Liabilities and Long-Term Environmental Obligations

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


Conducted on Thursday, February 9, 2017
Recorded event now available


This CLE webinar will provide guidance for counsel on key due diligence issues involved in corporate transactions. The panel will examine the impact of the deal structure and discuss due diligence methods and scope to identify environmental risks and liabilities as well as offer best practices for developing strategies to address and allocate these risks.

Description

Almost all corporate and commercial transactions involve environmental compliance considerations or potential environmental liabilities. Environmental due diligence is critical to assessing the viability of the pending deal and the allocation of liabilities between the parties.

The methods and scope of due diligence and its use have been evolving in recent years. Depending on the deal structure and size of the deal, the scope and timing of the due diligence can vary widely. The increasing prevalence of representation and warranty insurance can also affect the nature of the due diligence.

Environmental due diligence in corporate transactions involves the evaluation of the known and potential liabilities and obligations related to the target company’s properties and operations. Counsel for buyers, sellers and lenders must be prepared to address those liabilities and understand the interplay between the limits on due diligence pre or post-closing and the remedies in the deal.

Listen as our authoritative panel examines how the deal structure affects environmental due diligence. The panel will also discuss preparations for due diligence, including determining the method and scope, and what is sufficient for environmental due diligence. The panel will also explore the potential risks discovered and the available protections. The panel will offer best practices for developing strategies to deal with these issues in the transaction approach and business planning.

Outline

  1. Purpose of environmental due diligence
    1. Common environmental risks
    2. Identify and quantify environmental risks
    3. Determine whether there are pre- or post-closing environmental requirements (e.g., permit transfers, notices related to transfer, CTA/ISRA, disclosure obligations)
  2. Conducting environmental due diligence
    1. Types of environmental due diligence
    2. Impact of deal structure (e.g., asset v. stock, merger, bankruptcy sale)
    3. Buyer/seller/lender perspectives
    4. Common mistakes
  3. Allocating and mitigating environmental risks
    1. Key contractual concepts and provisions
    2. Contractually allocating environmental risks
    3. Use of federal and state mitigation tools
    4. Environmental insurance
  4. Review of recent cases interpreting environmental provisions in contracts

Benefits

The panel will review these and other key issues:

  • What impact will the deal structure have on assessing the environmental risks and liabilities?
  • What factors help determine the scope of environmental due diligence sufficient for corporate transactions?
  • What are the best practices for evaluating and managing environmental risks in corporate transactions?

Faculty

Lawrence P. Schnapf, Principal
Schnapf LLC, New York

Mr. Schnapf primarily concentrates on environmental risks associated with corporate, real estate and Brownfield transactions. He counsels clients on environmental compliance, and represents clients in federal and state environmental litigation, enforcement actions, administrative proceedings and private cost recovery actions. Mr. Schnapf has also written numerous articles on environmental law, and is the general editor/contributing author of “Environmental Issues in Business Transactions” published by the Business Law Section of the ABA. He is Chair of the Environmental Law Section of the New York State Bar Association and Co-Chair of the NYSBA Brownfield Task Force.

William J. Squires, III, Partner
Hinckley Allen & Snyder, Boston

Mr. Squires represents buyers, sellers and lenders in the purchase and sale of operating businesses, real property and industrial facilities. He negotiates and structures business transactions, drafts contracts, and negotiates environmental insurance policies addressing environmental issues. Mr. Squires also devotes a significant portion of his practice to permitting, regulatory compliance, enforcement defense, wetlands matters, and environmental insurance disputes.


Recordings

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Program Materials

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Program Materials

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Environmental Law Advisory Board

John J. Allen

Partner

Allen Matkins

Albert M. Cohen

Partner

Loeb & Loeb

Aaron Courtney

Partner

Stoel Rives

Andrew N. Davis

Partner

Shipman & Goodwin

David R. Gillay

Partner

Barnes & Thornburg

Brian D. Israel

Partner

Arnold & Porter Kaye Scholer

Thomas J. P. McHenry

Partner

Gibson Dunn & Crutcher

James B. Slaughter

Principal

Beveridge & Diamond

Jeffrey A. Smith

Senior Counsel

Sidley Austin

E. Gail Suchman

Special Counsel

Stroock & Stroock & Lavan

Gregory D. Trimarche

Senior Counsel

Ring Bender

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