Example of backdating

13-Jun-2016 18:10 by 3 Comments

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For a shorter piece with a few practical tips see Backdating – it’s illegal isn’t it?Setting aside such issues, avoiding unwanted side effects of backdating contracts can be tricky, especially when the purported effective date of an agreement is several months before the date it was actually signed, as can be seen in involves the ownership of a promissory note that was made to a bank in connection with a loan.

For those with an hour to kill thinking about the issues, Jeffrey Kwall and Stuart Duhl wrote an excellent article on backdating that was published in Business Lawyer in 2008.However, where a contract is ambiguous with respect to its effective date, the absence of an explanation for a retroactive effective date, and evidence that the parties had not agreed to the material terms of their contract as of the purported retroactive effective date, are relevant considerations in resolving the ambiguity.We cannot conclude, therefore, that in resolving the inconsistency between the FDIC/Weatherford Agreement and the Termination of Participation Agreements, the trial court erroneously relied on these uncontested facts to find “a lack of mutual assent” with respect to a November 7, 2008 effective date.FH Partners argued on appeal that, although the FDIC didn’t own the loan on December 16, 2008, the FDIC’s backdated transaction with Weatherford remedied the problem retroactively.The appellate court determined two separate issues: (1) whether the FDIC’s June 10, 2009 transaction with Weatherford was effective to retroactively transfer the loan to the FDIC as between the FDIC and Weatherford and (2) whether a retroactive effect applied to the FDIC’s earlier transaction with FH Partners.This keeps everything clean with no chance to mislead. Its good to have the voice of experience in the discussion.

The date of a contract can have revenue-recognition implications, as well as tax implications.Thus, the FDIC and Weatherford could have made their transaction retroactive, but they didn’t document the deal clearly enough to do so.The appellate court then considered whether, assuming that the FDIC/Weatherford transaction was retroactively effective (which it wasn’t), the retroactivity of that transaction had any legal effect on the transaction between the FDIC and FH Partners.It’s not unusual for parties to a contract to want the written agreement to cover a period before it’s actually signed.There are any number of contexts where this comes up — some legitimate and others not exactly aboveboard — but the logistics of negotiating and signing contracts are such that the issue is unavoidable.As Ken Adams has pointed out, if you want a contract to cover activity prior to its signature, you can just say so: This agreement applies to transactions between the parties on or after xxxx. The one area in which I relax this rule somewhat is in drafting corporate resolutions that are, as Kwall and Duhl characterize the situation, merely memorializing events that occurred at times in the past (for example, the continuation of named persons as directors and officers, the establishment of a banking relationship, etc.) and you’re just catching up on corporate housekeeping that may have slipped.

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