By Thomas P. Donnelly, Esquire, Reprinted with permission from the March 27, 2014 issue of The Legal Intelligencer. (c)
2014 ALM Media Properties. Further duplication without permission is prohibited.
It happens all the time. A potential or existing client calls and advises they have been stiffed by a customer on a commercial contract. Often times, your client has provided goods or services to a client business only to be advised their client, the other named party to agreements in place, has ceased business operations. [As filing under Chapter 7 of the Bankruptcy Code does not result in a discharge of corporate obligations, a bankruptcy filing is generally not forthcoming.] There is no event which gives the client finality as to their loss. The client is left with only their suspicions that operations have commenced under a new corporate umbrella and whatever assets remained have simply been transferred out of the client’s reach.
While certainly not in an advantageous position, your client’s claims may not be dead. Under the right factual circumstance, recovery may still be had. Claims against successors, affiliated business entities, and corporate principals are fact specific and often necessitate pre complaint development through available public information or, potentially, through the issuance of a writ of summons. If sufficient information can be mined, causes of action for violation of the Uniform Fraudulent Transfers Act, successor liability under the de facto merger doctrine, unjust enrichment, and claims for piercing the corporate veil may have merit and be successfully pursued.