Unlike several other states, California’s assignment for the benefit of creditors (ABC) statute law provides for a robust and effective out-of-court procedure for smoothly terminating a business. This process is preferred by many technology companies, startups and entrepreneurs because it helps principals to easily move on to new projects.
An ABC provides for several advantages. For example, an ABC is initiated by the business itself, not by its creditors, and the business can set the stage for a controlled termination. Specifically, the business evaluates and selects its own general assignee to handle the termination, and the professionals who will be involved are known in advance. (By contrast, the trustee appointed in a Chapter 7 bankruptcy case is unknown, and the trustee’s investigation of assets and financial affairs can be expensive and uncomfortable.) Moreover, the business has the opportunity to plan, prepare and marshal its resources prior to initiating the ABC.
A chief advantage is that an ABC allows the business to take steps to maximize value, including by potentially selling assets as a going concern and identifying potential asset purchasers in advance. Approaches to asset sales can be tailored to maximize value, including strategic marketing, private sales, and simple or highly structured auctions. An ABC is also a low-profile, out-of-court procedure that minimizes the principals’ exposure to unwanted scrutiny. Other advantages of an ABC include:
- Streamlined process for finally resolving claims
- Priority claims for employees
- Opportunity to undo certain transactions (fraudulent transfers and preferences)
- Avoidance of unperfected liens
Our lawyers represent businesses, general assignees and creditors in ABCs. Specifically, in one example, we represented a creditor in a large technology company’s ABC. Through careful and practical negotiation, we were able to obtain a carve-out agreement such that our client was entitled to be paid certain funds that would have gone to the former principal of the company while simultaneously preserving key business relationships.