Pop 3 Ravinia, LLC v. Embark Holdco Management, LLC ( 2022 )

FIFTH DIVISION
MCFADDEN, P. J.,
GOBEIL and PINSON, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
June 22, 2022
In the Court of Appeals of Georgia
A22A0127. POP 3 RAVINIA, LLC v. EMBARK HOLDCO
MANAGEMENT, LLC
PINSON, Judge.
POP 3 Ravinia, LLC sued Embark Holdco Management, LLC, among others,
to recover unpaid rent and other expenses under a commercial lease. Embark was not
a party to the lease, but Ravinia claimed that Embark was liable as a successor to the
tenant, either because Embark was a “mere continuation” of the now-defunct tenant
or because Embark and the tenant had effectuated a “de facto merger.” The trial court
granted Embark’s motion for summary judgment, concluding that equitable
considerations cut against imposing liability under the continuation doctrine and that
the elements of a de facto merger were not satisfied.
We affirm in part and reverse in part. We agree with the trial court that the
evidence, even viewed favorably to Ravinia, does not establish all the elements of a
de facto merger. But that evidence would allow a jury to conclude that Embark is a
“mere continuation” of Access Holdco under the established elements of the
corporate continuation doctrine. As we will explain below, we are skeptical that
equitable considerations beyond those elements are properly considered under
Georgia’s version of that doctrine. But even if this equitable doctrine has some
flexibility, we do not think that the additional factors Embark and the trial court
injected into the analysis apply in Embark’s favor here.
Background
(a) The Lease
In 2010, Access Insurance Holdings, Inc., as tenant, entered into an agreement
with CRT Ravinia, LLC, as landlord, to lease about 77,000 square feet of space in an
Atlanta office building known as Three Ravinia Drive.1 The lease was to run for 10
years, until December 2020. In 2016, CRT Ravinia assigned its interest in the lease
1
In reviewing summary judgment orders, we view the evidence in the record
in the light most favorable to the party opposing summary judgment. Patterson v.
Kevon, LLC, 304 Ga. 232, 236 (818 SE2d 575) (2018). Here, Ravinia opposed
summary judgment so we construe the facts in the light most favorable to it.
2
to Appellant POP 3 Ravinia, LLC. Also in 2016, Access Insurance Holdings assigned
its interest in the lease to an affiliated company, Access Holdco Management, LLC.
(b) Access Holdco’s Financial Troubles
Access Holdco’s business was administering policies and claims for insurance
carriers—it was what’s called a managing general agent. Access Holdco did this work
for “nonstandard” auto insurance carriers: carriers who offer insurance to insureds
who, because of a lack of driving history or a poor driving record, are unable to
qualify for standard auto insurance. Most of the policies Access Holdco serviced were
issued by a single affiliated insurance carrier, Access Insurance Company.
In March 2018, following investigations by insurance regulators in California
and Texas, Access Insurance Company was placed into a receivership and enjoined
from selling insurance. Having suddenly lost its primary source of revenue, Access
Holdco defaulted on $55 million in secured debt, and the creditor began exercising
its default remedies.
Faced with possible liquidation, Access Holdco’s majority owner, private
equity firm Altamont Capital Partners LLC, set about to salvage its investment in the
company. According to an Altamont executive, Altamont believed “that there was
3
asset value [in Access Holdco] that . . . we could harvest if we bought the debt at a
price that made sense.” So in May 2018, an Altamont subsidiary called ACP
Insurance Finance, Inc. purchased Access Holdco’s debt from the creditor.
In the months that followed, Altamont marketed the company to third-party
buyers. During that time, Access Holdco laid off more than 200 employees. In the
meantime, ACP Insurance Finance—again, a subsidiary of Altamont, which also
owned Access Holdco—demanded more than $21 million in debt payments, which
Access Holdco paid.
(c) Access Holdco’s Assets Are Transferred to Embark
In August 2018, Access Holdco formally converted from a Georgia LLC to a
Delaware LLC. Nine days later, on August 23, 2018, Access Holdco initiated a
proceeding known as an assignment for the benefit of creditors (“ABC”) in the
Delaware Chancery Court. An ABC is an alternative to bankruptcy, sanctioned under
the laws of some states, in which the debtor voluntarily transfers its assets to a
fiduciary assignee, who is responsible for selling the assets and distributing the
proceeds to creditors. See 9 NORTON BANKR. L. & PRAC. 3D §§ 171:1-171:2 (Apr.
2022); see also Jonathan P. Friedland, STRAT. ALT. DIS. BUS. § 10:1 (Jan. 2022) (“an
4
ABC is the state law equivalent to liquidation under chapter 7 of the Bankruptcy
Code”).2 To start the process, Access Holdco assigned its assets to certain fiduciary
entities (“ABC Entities”), which in turn filed an ABC petition in the Chancery Court.
On the same day the ABC petition was filed, the ABC Entities transferred
Access Holdco’s assets to a newly-formed company called Embark Holdco
Management, LLC. Embark was wholly owned, albeit indirectly, by Altamont.3
Under the agreement, Embark bought all of Access Holdco’s assets except its interest
in the lease for Three Ravinia Drive. As consideration, ACP Insurance Finance
agreed to discharge $27 million of Access Holdco’s secured debt and to assume
certain liabilities. The net result was the transfer of Access Holdco’s assets, free of
any secured debt, to Embark.4 Access Holdco was subsequently dissolved. As
described by Access Holdco’s former operations and facilities director, the purpose
2
Such proceedings have apparently become “commonplace” in Delaware as
a more cost-effective alternative to bankruptcy proceedings. Friedland, at § 23:4. See
Del. Code Ann. tit. 10, §§ 7381 to 7387.
3
The corporate chain connecting Embark to Altamont runs through four other
corporate entities, including ACP Insurance Finance, each a wholly-owned subsidiary
of the other.
4
Two independent appraisals valued the company’s assets at approximately
$13.4 million and $15 million, respectively. Thus, using either appraisal, the value
of the assets was significantly less than the value of the discharged debt.
5
of the transfer of assets to Embark was “to continue the Access [Holdco] business
without paying certain . . . vendors, including [Ravinia].”
(d) The Insurance Administration Business Continues
Amidst these machinations, the insurance administration business continued.
In the days after August 23, 2018, Embark was conducting the same business, using
the same assets and employing the same personnel, as Access Holdco had before the
asset transfer. Employees continued using the same company-issued computers and
email accounts, and their accumulated leave and seniority were carried over from
Access Holdco to Embark. The company used the same computer server, which
contained all of Access Holdco’s historical documents. For several weeks after
August 23, Embark continued occupying the office space at Three Ravinia Drive,
until it moved into new space in October 2018. The management team at Embark was
“exactly the same” as the former management team at Access Holdco. And even
before the sale, Access Holdco’s accounting team had been instructed to ask vendors
to begin directing invoices to Embark and to “get new contracts under the Embark
name.”
(e) Proceedings Below
6
Embark vacated the office space at Three Ravinia Drive in October 2018.
Ravinia demanded rent for September 2018 from Access Holdco, and Access Holdco
refused, so Ravinia filed suit against Access Holdco and Embark, seeking damages
of over $5 million in rent and other expenses recoverable under the lease.5 Following
discovery, Embark moved for summary judgment, contending that it could not be
held liable under the lease because it neither signed the lease nor assumed any
obligations thereunder. In response, Ravinia argued that Embark should be held liable
as a successor to Access Holdco, citing principles of common law corporate successor
liability. Ravinia contended that Embark remains liable either because (1) Embark is
a “mere continuation” of Access Holdco or (2) the asset purchase constituted a “de
facto merger” between the two companies.
The trial court granted Embark’s motion. Adopting an order prepared by
Embark’s counsel, the court held that the elements of a “de facto merger” were not
satisfied, and it declined to impose liability on Embark as a “mere continuation” of
Access Holdco based on certain equitable considerations. In declining to apply the
5
Access Holdco’s predecessor on the lease, Access Insurance Holdings, was
also named as a defendant, but it was later dismissed from the suit after reaching a
settlement with Ravinia. Ravinia also dismissed its claims against Access Holdco
after the latter’s dissolution. Embark is thus now the sole defendant in the case.
7
continuation doctrine, the court relied heavily on Acme Sec., Inc. v. CLN Props., LLC
(In re Acme Sec., Inc.), a federal bankruptcy case in which the federal bankruptcy
court declined to impose successor liability, even though the elements of the
continuation doctrine were established under Georgia law, concluding that it would
not serve the interests of equity under the circumstances. 484 B.R. 475 (Bankr. N.D.
Ga. 2012). Without a basis for imposing successor liability, the court concluded,
Embark, a non-party to the lease, could not be held liable under it. Ravinia appealed.
Discussion
On appeal, orders granting or denying summary judgment are reviewed de
novo. Johnson v. Omondi, 294 Ga. 74, 76 (751 SE2d 288) (2013). Summary judgment
is appropriate where no genuine issues of material fact remain and the party seeking
summary judgment is entitled to judgment as a matter of law. Id. at 75.
Ravinia’s basic claim here is that Embark is liable for rent and other expenses
owed to Ravinia by Access Holdco. The underlying legal theory is one of successor
liability: that the transfer of assets from Access Holdco to Embark and the
circumstances surrounding that transfer made Embark a “successor” to Access
Holdco that is liable for its debts. See Davis v. Concord Comm’l Corp., 209 Ga. App.
8
595, 596 (1) (434 SE2d 571) (1993) (“The term ‘successor’ means . . . another
corporation which by a process of amalgamation, consolidation, or duly authorized
legal succession has become invested with the rights and has assumed the burdens of
the first corporation.”).
Generally speaking, a corporation does not become a successor when it buys
another corporation’s assets. See, e.g., Carswell v. Nat’l Exchange Bank, 165 Ga. 351(4) (140 SE 755) (1927). But our Supreme Court has listed four common-law
exceptions to this general rule, see Bullington v. Union Tool Corp., 254 Ga. 283, 284
(328 SE2d 726) (1985), which “[m]ost jurisdictions recognize,” Bud Antle, Inc. v. E.
Foods, Inc., 758 F.2d 1451, 1456 (IV) (11th Cir. 1985). Under these exceptions, a
purchasing corporation is a successor liable for the seller’s debts if “(1) there is an
agreement to assume liabilities; (2) the transaction is, in fact, a merger; (3) the
transaction is a fraudulent attempt to avoid liabilities; or (4) the purchaser is a mere
continuation of the predecessor corporation.” Bullington, 254 Ga. at 284. Accord
Wilson v. Wernowsky, 355 Ga. App. 834, 845 (3) (846 SE2d 101) (2020).
The second and fourth of these exceptions are at issue here. Ravinia contends
that Embark is a successor either as a “mere continuation” of Access Holdco or
because the asset transfer amounted to a “de facto merger” between the two
9
companies. The trial court rejected both grounds for successor liability as a matter of
law and so granted summary judgment to Embark. We review each conclusion in
turn.
1. The common law continuation doctrine is essentially what it sounds like: the
new corporation assumes the liabilities of the old corporation when the new
corporation, with the same or similar owners, continues the old corporation’s
business. Johnson-Battle Lumber Co. v. Emanuel Lumber Co., 33 Ga. App. 517, 517
(126 SE 861) (1925) (explaining that a new corporation that is “incorporated for the
same objects and purposes” and “takes over the entire assets and business of the old
corporation” and has the same stockholders, among other similarities, is “but a
continuance of the old corporation” and thus is “liable for [its] debts”). We have said
that the doctrine applies when the old and new corporations share both (a) “a
substantial identity of ownership” and (b) “a complete identity of the objects, assets,
shareholders, and directors.” Dan J. Sheehan Co. v. Fairlawn on Jones Condo. Ass’n,
Inc., 334 Ga. App. 595, 597 (1) (780 SE2d 35) (2015) (cleaned up); accord Wilson,
355 Ga. App. at 845 (3).
(a) A “substantial identity of ownership” does not require complete identity and
may involve merely “some” identity of ownership. Bullington, 254 Ga. at 284. We
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have thus found a substantial identity of ownership where the new corporation
succeeded to the assets of a partnership, even though only three of the four partners
were stockholders in the new corporation. Pet Care Professional Ctr., Inc. v.
BellSouth Advertising & Publ’g Corp., 219 Ga. App. 117, 118 (1) (464 SE2d 249)
(1995). Similarly, we have held that this element was satisfied where the new entity,
an LLC, was formed by one of two members in the old LLC. Wilson, 355 Ga. App.
at 845-46 (3).
Here, the evidence viewed in the light most favorable to Ravinia shows a
substantial identity of ownership as between Access Holdco and Embark. Embark
admits that its ultimate parent company, Altamont, indirectly owned a substantial
majority share—more than two-thirds—of the former Access Holdco. And Embark
admits that Altamont now owns, indirectly, 100% of Embark. The same person or
entity having a substantial controlling interest in both the old and new entities counts
as a substantial identity of ownership for purposes of the continuation doctrine. See
Wilson, 355 Ga. App. at 845-46 (3); Pet Care, 219 Ga. App. at 118 (1).
(b) The identity-of-assets-and-objects element gets at whether the new
company is running a business that just looks something like the old company’s
business (not enough), as opposed to continuing to run the old’s company business.
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See Dan J. Sheehan Co., 334 Ga. App. at 597 (1) (continuation doctrine applied
where “[f]or practical purposes, nothing changed except the name of the
[corporation]”). To assess this element, we have compared things like the old and new
entities’ operations, assets, employees, management, location, vendors, and clients.
See Wilson, 355 Ga. App. at 845-46 (3) (new company was properly held liable for
old company’s obligations where new company provided the same services, used the
same brokers, employed the same personnel, had the same assets, and serviced the
same clients as old company); Dan J. Sheehan Co., 334 Ga. App. at 597-98 (1) (new
homeowners’ association should have been held liable as a matter of law for
liabilities of old HOA where the new HOA had, among other things, the same
purpose, subject property, board of directors, officers, voting members, unit owners,
and physical location as the old HOA); Pet Care, 219 Ga. App. at 118 (1) (new
corporation was properly held liable for old company’s obligations where it was
incorporated to operate the same type of business from the same location and used the
same assets and vendors). Cf. Perimeter Realty v. GAPI, Inc., 243 Ga. App. 584, 592-
93 (5) (c) (533 SE2d 136) (2000) (purchasing corporation did not share a “complete
identity of assets” with seller where it acquired the seller’s name but just 60-90% of
the its real estate holdings).
12
The evidence here, viewed in the light most favorable to Ravinia, shows that
the asset transfer resulted in a seamless continuation of Access Holdco’s business,
unencumbered by certain liabilities, including those under the Three Ravinia lease.
As of August 23, 2018, Embark was conducting the same business—administering
insurance policies and claims—and using the same assets, including computers,
historical records, and email accounts, as Access Holdco had until then. Embark’s
management team was “exactly the same” as Access Holdco’s, and it continued
employing the same personnel, who carried over their leave and seniority from the old
company. Embark continued its relationships with many of Access Holdco’s vendors,
taking steps before the asset transfer to accomplish this.
Embark points out one difference between Access Holdco and Embark: Access
Holdco’s largest former client—the defunct Access Insurance Company—is not a
client of Embark. But this difference does not preclude a finding of identity of
corporate assets and objects, at least not as a matter of law. For one thing, this is not
so clearly a difference between the two companies at all. Access Insurance collapsed
several months before the transfer of assets from Access Holdco to Embark, so at the
time of the transfer, Access Insurance was not a client of Access Holdco, either. In
other words, Embark’s book of business was the same as Access Holdco’s book of
13
business at the time of the transfer, which supports viewing Embark as a continuation.
And in any event, this is but one potential difference among a number of key
similarities. Given the substantial carryover from Access Holdco to Embark—of
business model, assets, management, personnel, vendor relationships, and more—we
can’t say that Embark replacing Access Holdco’s “captive” client with other clients
over time precludes a finding of identity of assets and objects as a matter of law.
(c) The trial court rejected Ravinia’s mere-continuation argument for successor
liability as a matter of law, but its analysis made only a passing reference, in a
footnote, to the two required elements of the doctrine. Instead, in an order prepared
by Embark’s counsel and following the lead of a single federal bankruptcy decision,
the court introduced “other factors” to the mere-continuation analysis and concluded
that they foreclosed that theory of liability as a matter of law.6
This alternative approach to the continuation doctrine does not work here. To
begin with, we are skeptical that the continuation doctrine as it has developed in
Georgia allows courts to consider factors beyond the two core elements of the
doctrine, which already mark a narrow path to successor liability. In adopting this
6
The wholesale adoption of orders prepared by counsel is “greatly disfavored.”
Hughes v. Cornerstone Inspection Group, Inc., 336 Ga. App. 283, 284 (1) (784 SE2d
116) (2016).
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other-factors approach, the trial court relied on In re Acme, 484 B.R. 475, which
reasoned that meeting the elements of the continuation doctrine “do[es] not end the
inquiry” if “other factors establish[] that the successor liability doctrine should not
apply based on equitable principles and the fundamental purposes of the doctrine.”
Id. at 488. But federal bankruptcy court decisions are not binding on Georgia courts,
see Nissan North America, Inc. v. Walker-Jones Nissan, LLC, 345 Ga. App. 447, 455
(1) (812 SE2d 130) (2018), and In re Acme cited no Georgia cases for its novel
approach. Nor could it: Every Georgia case applying this doctrine that we can find
has focused only on identity of ownership, assets, and objects. See, e.g., Wilson, 355
Ga. App. at 845-46 (3); Dan J. Sheehan Co., 334 Ga. App. at 597-98 (1); First
Support Svcs., Inc. v. Trevino, 288 Ga. App. 850, 853-54 (655 SE2d 627) (2007);
Perimeter Realty, 243 Ga. App. at 593 (5) (c); Pet Care, 219 Ga. App. at 118 (1);
Ney-Copeland & Assocs., Inc. v. Tag Poly Bags, Inc., 154 Ga. App. 256, 256 (267
SE2d 862) (1980); Johnson-Battle Lumber Co., 33 Ga. App. at 517. See also In re
Acme, 484 B.R. at 491 (noting that “[n]one of the Georgia cases state any
requirements for imposition of successor liability based on the mere continuation
theory beyond the essential elements of identity of ownership, assets, and objects”).
And both of our Supreme Court’s cases addressing this doctrine declined efforts to
15
modify that basic test. See Farmex Inc. v. Wainwright, 269 Ga. 548, 549-50 (501
SE2d 802) (1998) (declining to expand the application of the continuation doctrine
in products-liability cases); Bullington, 254 Ga. at 284 (same).
But even if the continuation doctrine has some play in the joints beyond the
two “identity” elements (it is, after all, a creature of equity, see Wilson, 355 Ga. App.
at 845 (3)), we are not persuaded that the factors Embark relies on make sense as part
of that inquiry here.
First, citing OCGA § 11-9-627 (c) (4), Embark points out that the “disposition”
of Access Holdco’s assets was “commercially reasonable” because it was “approved”
in the Delaware ABC process by the assignee for the benefit of creditors. But even
assuming this is correct, it’s hard to see how that conclusion is relevant to the
continuation question here. “Commercially reasonable” status under this provision
just means that a secured party complied with its obligation under the UCC to collect
or enforce debts, and dispose of or accept collateral, in a commercially reasonable
manner. See OCGA §§ 11-9-607 (c); 11-9-610 (b); 11-9-622 (a). Not even the In re
Acme court was willing to treat that status alone as a “safe harbor that prevents
imposition of successor liability.” In re Acme, 484 B.R. at 489-90. Indeed, that court
noted the general agreement among other jurisdictions “that an intervening exercise
16
of a secured creditor’s rights with regard to its collateral does not provide an
automatic exemption from the imposition of successor liability.” Id. (citing Ed Peters
Jewelry Co., Inc. v. C & J Jewelry Co., Inc., 124 F.3d 252, 267 (1st Cir. 1997)
(applying Rhode Island law) (collecting cases); Glynwed, Inc. v. Plastimatic, Inc., 869
F.Supp. 265, 273-75 (D.N.J.1994) (applying New Jersey law) (collecting cases).
Count us in too: Nothing in these UCC provisions grants a creditor and debtor the
power to, in effect, discharge underlying third-party debts (in the ABC process or
otherwise) outside of bankruptcy. We decline to effectively grant that novel power
by weaving it into an equitable doctrine that exists largely to prevent just that kind
of conduct. See Ed Peters Jewelry Co., 124 F.3d at 267 n.15 (“Unlike a bankruptcy
court, however, a secured creditor and its nonbankrupt debtor lack the power—either
at common law or by statute—to effect a discharge of underlying third-party debts,
even for the most beneficent of reasons.”).
Second, Embark asserts that Access Holdco was insolvent when it went
through the ABC process. Embark says this shows that the asset transfer (and
shedding of its liability to Ravinia) did not prejudice Ravinia because, as an
unsecured creditor, it would have been left with nothing had Access Holdco been
liquidated. Other jurisdictions have rejected this argument, either expressly or
17
implicitly, as a basis for denying successor liability. See Ed Peters Jewelry Co., 124
F.3d at 266-68 & n.15 (rejecting old corporation’s insolvency as a basis for denying
successor liability); see also Gladstone v. Stuart Cinemas, Inc., 878 A.2d 214, 223
(Vt. 2005) (reversing summary judgment, permitting continuation-doctrine claim to
proceed even where first corporation was insolvent); Cont’l Ins. Co. v. Schneider,
Inc., 810 A.2d 127, 133 (Pa. Super. Ct. 2002) (permitting unsecured creditor’s claim
based on successor liability following foreclosure by secured creditor of insolvent
predecessor), aff’d, 873 A2d 1286 (Pa. 2005). We don’t find it persuasive either, at
least under the circumstances here. The notion that taking away an otherwise valid
breach-of-contract claim would cause Ravinia zero prejudice is based on an alternate
history where Access Holdco liquidated its business and Ravinia was left out in the
bankruptcy. Maybe that all would have happened. But if Ravinia has a breach-of-
contract claim under the lease, it has that legal claim whether or not it can ultimately
collect on it. See Ed Peters Jewelry Co., 124 F.3d at 267 (noting that old corporation
“unquestionably remained legally obligated to [the plaintiff] for its sales
commissions, even if the lack of corporate wherewithal rendered the obligation
unenforceable as a practical matter”). We see no sound basis—as a matter of equity
or otherwise—for denying Ravinia the right to bring that claim now merely because
18
it seems unlikely that the claim would have been paid in a hypothetical scenario that
didn’t happen.
Finally, Embark cannot rely on one factor the In re Acme court weighed
heavily. That court highlighted the fact that ALK was a closely-held, family-owned
company that, faced with insolvency, had through these transactions been trying to
preserve its business as a going concern and maintain the jobs and customer needs
that depended on it. Id. at 494 (III) (B). Imposing liability on Acme, its successor,
would disserve those interests and potentially destroy the livelihood of the small
business owner, a result that the court viewed as inconsistent with equity. Id. at 494-
95 (III) (B). Embark, unlike Acme, is not a closely-held, family-owned business, so
the particular equities of applying successor liability under the circumstances in In
re Acme are not present here.
*
In sum, Ravinia has presented evidence from which a jury could conclude that
Embark is a “mere continuation” of Access Holdco under the established framework
for applying that doctrine. And even assuming that framework is malleable, the trial
court identified no compelling reason to reject successor liability based on other
factors. The trial court therefore erred in holding that Embark was entitled to
19
summary judgment on this theory of liability, and we reverse the trial court’s order
on this issue. See, e.g., Wilson, 355 Ga. App. at 845-46 (3) (evidence was sufficient
to submit “mere continuation” question to jury where both old and new companies
were engaged in the same work, used the same brokers, and had the same employees,
assets, and clients).
3. We turn now to Ravinia’s alternative “de facto merger” theory of successor
liability. We have described a de facto merger as one company being “absorbed” into
another. See Perimeter Realty, 243 Ga. App. at 593 (5) (c). Four elements are
required to establish a de facto merger: (1) a continuation of the seller corporation’s
enterprise, which involves “a continuity of management, personnel, physical location,
assets, and general business operations”; (2) “a continuity of shareholders which
results from the purchasing corporation paying for the acquired assets with shares of
its own stock, [which] ultimately com[es] to be held by the shareholders of the seller
corporation so that they become a constituent part of the purchasing corporation”; (3)
the cessation and dissolution of the seller corporation “as soon as legally and
practically possible”; and (4) the assumption by the purchaser of “those liabilities and
obligations of the seller ordinarily necessary for the uninterrupted continuation of
20
normal business operations of the seller corporation.” Id. (citation omitted); accord
Howard v. APAC-Ga., Inc., 192 Ga. App. 49, 50 (383 SE2d 617) (1989).
Although the facts viewed most favorably to Ravinia may establish the first,
third, and fourth of these elements, those facts do not establish the second element.
That element is established if the buyer pays for the assets with its own stock and that
stock ends up being held by the shareholders of the seller, so that it becomes a
“constituent part” of the buyer. Perimeter Realty, 243 Ga. App. at 593 (5) (c). But the
transaction here did not involve any transfer of stock. Instead, the consideration paid
for Access Holdco’s assets was primarily debt forgiveness by ACP Insurance
Finance. Further, because Altamont owned only 68 percent of Access Holdco, the
remaining 32 percent interest in Access Holdco did not become a “constituent part”
of Embark as the established de facto merger test requires.
Ravinia contends that the “continuity of shareholders” element is still met
because the transaction really just converted debt owed to one Altamont-controlled
entity into equity held by another Altamont-controlled entity. Because “Altamont
controlled all of the entities involved,” Ravinia suggests that the effect of the
transaction here was practically the same as the required stock transfer, and so the
transaction should satisfy the “continuity-of-shareholders” element. But Ravinia cites
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only a single New York Appellate Division case for that novel view of our de facto
merger test, Tap Holdings, LLC v. Orix Fin. Corp., 109 A.D.3d 167, 176 (3) (N.Y.
App. Div. 2013) (citation and punctuation omitted). That case is not controlling
authority, and we don’t find it persuasive. Tap Holdings, which addressed a different
kind of transaction than the one before us here, reasons that the de facto merger
question should be analyzed “in a flexible manner” to determine whether the “intent”
was to “absorb and continue the operation of the predecessor.” Id. But in our view,
applying the de facto merger test in that way would effectively collapse that test into
the continuation doctrine. We decline to merge those two doctrines, which are distinct
under Georgia law. See, e.g., Bullington, 254 Ga. at 284 (delineating two doctrines
as distinct theories of successor liability); Perimeter Realty, 243 Ga. App. at 593 (5)
(c) (separately analyzing plaintiff’s claims under each doctrine).
For these reasons, we agree with the trial court that Ravinia’s de facto merger
theory fails as a matter of law, and so we affirm the part of the trial court’s order
granting summary judgment as to this theory of successor liability.
Judgment affirmed in part and reversed in part. McFadden, P. J., and Gobeil,
J., concur.
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