Post-acquisition disputes often arise when parties disagree on whether the terms of the sales and purchase agreement (SPA) were properly applied in calculating a closing date working capital or earnings metric during a specified period. Typically, SPAs mandate that closing working capital and/or earnout metrics be calculated in accordance with U.S. Generally Accepted Accounting Principles (GAAP) or IFRS, and applied consistent with “past practice.” For those areas of GAAP requiring the application of judgments and use of estimates, it can be difficult to ascertain whether and to what extent judgments and estimates applied to calculate a closing date working capital or earnout metric accurately reflect past practice.

If an independent accountant is retained to resolve the dispute, they will often require the parties to produce pre-acquisition documentation to help determine which of the parties' positions accurately reflect past practice. But there are times when past practice does not include preparing and/or retaining underlying documentation due to, for example, a lack of formal policies and financial controls, materiality, or the loss of key employees around the close of the transaction, making such documentation unavailable. Without supporting documentation, it becomes much more challenging to determine which competing position aligns with past practice when both positions are within the confines of GAAP, which can result in significant and unintended changes in the ultimate purchase price through post-close purchase price adjustment mechanisms.

Example: An Inventory Dispute

The value of inventory is a commonly contested area, with buyers often arguing for a lower value pursuant to GAAP, increasing inventory reserves or write-offs and thereby decreasing closing working capital or an earnout metric (where that metric is a net number, such as gross profit or EBITDA, and where such lower value is the result of a change in estimate during the prescribed earnout period). The seller may argue that this reduction to inventory does not reflect GAAP or past practice, and that the buyer is imposing its own practice(s) on the acquired entity post-close, running afoul of the agreed-upon conformity to those practices previously employed. The seller might even claim that the buyer's adjustment to inventory was made to avoid payment of additional consideration owed under the SPA's purchase price adjustment mechanism, escalating such disputes into allegations of the buyer's failure to act in good faith.

However, there may be a legitimate reason for an inventory adjustment to be made to the closing date working capital or earnout calculation. Perhaps inventory did not get sold as expected because a customer cancelled the order. But, on its face, a significant post-close increase in inventory reserves or write-offs invites scrutiny because the buyer has a financial incentive to make the argument, just as the seller has the same interest in contesting it.

In instances where there is little to no pre-acquisition documentation to support the parties' claims as to whether the adjustment is consistent with past practice, one of the parties may suffer the unanticipated financial burden of an adverse determination through the SPA's dispute resolution process.

Due Diligence Is Key

So, what preventive measures can buyers and sellers take to minimize the unintended consequences of insufficient documentation? First of all, a lack of underlying documentation is a clear flag to enhance due diligence. Although some M&A practitioners may bemoan the cost and timing effects on a deal, lackluster diligence can cause significant headaches down the road due to post-close disputes.

Diligence that examines specific accounts that are subject to management's judgments and estimates, with the goal of the parties having a mutual understanding of the accounting policies and methodologies that are to be applied constituting past practice can be a good preventative measure. If the acquired entity did not have a practice of preparing and/or retaining documentation to support past accounting practices, this is an optimal time to seek alignment on how these under-documented areas should be treated in purchase price adjustment mechanisms.

The SPA should be clear in all areas referring to “past practice” by referencing the specific guidelines (e.g., policies, methodologies and procedures) the parties will apply to the post-closing purchase price adjustment mechanism.

Plan for the Post-Close Reality

Once the deal closes, control of the acquired entity passes from seller to buyer, which is a source of potential conflict. Once the buyer takes control of the business, the accounting judgments and estimates employed may be viewed by the seller as inconsistent with past practice or even intended to prevent achieving a certain closing working capital or earnout amount. To reduce the likelihood of disputes, the buyer should give consideration to the value of retaining key accounting and finance personnel and/or keeping the governance of the acquired business separate from the rest of the buyer's enterprise during an earnout period.

Maintaining entirely separate books and records for the acquired entity is an ideal solution, but not always practical. Often, the buyer expects the acquisition to be complementary with the existing business and the synergy of the combination to generate the value that made the deal attractive in the first place. Notwithstanding, whether or not the buyer consolidates business functions to create value, sellers oftentimes claim that buyers' interference with past practice cause deflated closing working capitals and/or failure to achieve an earnout target. To alleviate such claims, the parties should first agree on which specific policies and methodologies are to be employed to calculate closing working capital and/or to measure the success of the acquired entity's post-close performance under an earnout mechanism.

By anticipating the areas of potential dispute, focusing due diligence on them prior to close and enhancing the SPAs terms commensurately, post-close disputes can be minimized, even when complete documentation is unavailable.

Gregg Peat is a Senior Director in the Forensic & Litigation Consulting segment at FTI Consulting. The views expressed herein are those of the author(s) and not necessarily the views of FTI Consulting, Inc., its management, its subsidiaries, its affiliates, or its other professionals.