Earn-out clauses in business acquisitions are notoriously fertile ground for disputes. Complicated post-closing performance metrics, access to information, modifications to accounting methodologies after closing, tracking and collection of revenue information all present opportunities for buyer and seller to disagree. The classic struggle of seller’s effort to maximize sale return juxtaposed against buyer’s focus on transforming the operations of the acquired enterprise for long term success necessarily create friction. Both sides bring their unique perspectives to the interpretation of the exhaustively negotiated purchase agreement with the new benefit of hindsight.
Certainly, arbitration pursuant to the Commercial Rules of the American Arbitration Association is common in any number of business contracts. When the parties elect that process, they accept the applicable rules and agree to adopt the procedures that have been developed by AAA. In the earn out or deferred consideration context, however, acknowledging the sheer number of potential conflicts surrounding inherent accounting practices, scriveners often incorporate a unique mechanism for dispute resolution in their transactional documents. When the issue is theoretically limited to a calculation, the parties go to great pains to define the applicable accounting terms and may design a system of dispute resolution which does not contemplate many of the applicable provisions of the Commercial Rules or empower any judicial or quasi-judicial third party to control the process.
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