Post-closing disputes can be extremely time consuming and costly, especially the costs of attorneys’ fees. Consideration should always be given to whether the purchase agreement should include a provision dealing with attorneys’ fees. In the United States, unless the parties to a contract agree how attorneys’ fees will be handled, each side is responsible for its own attorneys’ fees. Purchase agreements often contain provisions requiring the “loser” in a dispute to pay attorneys’ fees. Several issues arise. First, what amount of attorneys’ fees will the loser be required to pay? Although the provision often states that the loser pays all attorneys’ fees incurred by the winner, courts almost always require that the attorneys’ fees be reasonable in order to be recoverable. Another question is, exactly which party is entitled to recover attorneys’ fees? The attorneys’ fees clause is often drafted to state that the “prevailing” party is entitled to recover fees from the “non-prevailing” party. Exactly who is the prevailing and non-prevailing party in litigation is not always clear. Courts are often reluctant to award attorneys’ fees. It is therefore important that the attorneys’ fees provision be as clear as possible to allow the judge or arbitrator to easily determine what the parties’ intentions were and to decide who is entitled to attorneys’ fees.
ABOUT GLENN D. SOLOMON
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Glenn D. Solomon is a principal at Offit Kurman and has provided counsel to businesses and business owners for more than twenty-five years. He has extensive experience in the purchase and sale of businesses, structuring ownership agreements, and advising companies in financial distress.
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