THE SITUATION:

After a coffee and donut franchisee sold his Florida stores—more than 1,500 of them, to the tune of about $150 million—his transactions team made an unfortunate post-sale discovery. The franchise owner’s company was sitting on four years’ worth of unresolved Affordable Care Act (ACA) penalties, plus interest.

The company had been assessed with both Employer Shared Responsibility Payment penalties and separate information reporting penalties under the ACA for the 2016, 2017, 2018 and 2019 tax years related to the company’s provision of medical coverage for employees.

Paying the penalties and interest, in excess of $3 million, would impact the franchisee’s profits from the deal.

THE CHALLENGE:

The IRS determines whether employee healthcare coverage is affordable on an employee-by-employee basis, which can make it difficult for companies to plan around. In this case, under the ACA, the franchisee’s company was subject to an Employer Shared Responsibility Payment penalty because the IRS deemed its employee healthcare coverage to be unaffordable for a large number of employees. The penalty was triggered when some of the company’s employees went to the state healthcare exchange and received Premium Tax Credits for the corresponding tax years.

The IRS sent notices for both the Employer Shared Responsibility Payment penalties and separate information reporting penalties, many of which were ignored because of a lack of internal communication between the company’s HR and finance departments. When the penalties and interest were discovered, the company attempted to work with the IRS on a resolution. However, they lacked the technical knowledge, nuanced understanding and experience to communicate effectively, and the revenue officer originally assigned to the case refused to address the underlying issues.

OUR OBJECTIVE:

To help resolve the situation, the franchisee’s McDermott transactions team connected him with a cross-practice employee benefits and tax controversy team led by Jake Mattinson and Kevin Spencer.

The McDermott team represented the franchisee’s company before the IRS Independent Office of Appeals. Although the facts of the case were not in the franchisee’s favor, the goal was 100% penalty abatement—a $3 million savings.

THE OUTCOME:

Within just 16 months—an accelerated timeframe for resolving four years’ worth of penalties—the McDermott team succeeded in securing 100% penalty abatement for the company.

After initial conversations with the original revenue officer and a supervisor, McDermott got the case reassigned to a new IRS agent. The team was able to convince her to review all four years of penalties at once, rather than following the standard IRS practice of handling just one year at a time.

Following negotiations, the IRS ultimately agreed with the team’s argument that the company did offer healthcare coverage that was affordable to its employees based on the facts applicable to each individual employee who received Premium Tax Credits, and that the IRS never should have assessed the penalties in the first place. The IRS also agreed to reduce the information reporting penalties.

Drawing on skill and experience from handling dozens of similar matters, the McDermott team helped the client formulate proper responses, make an effective case and reach a resolution quickly and cost-efficiently.

MOVE FASTER:

ACA penalties have become increasingly common, particularly among companies with a significant number of hourly employees—such as restaurants, coffee shops and retail stores. These companies are more likely to offer health coverage the IRS considers unaffordable for their employees.

When issues are caught early, companies can avoid tax liens and additional penalties and come to a resolution with the IRS more quickly and easily. Because the franchisee’s company had ignored the IRS penalty notices for an extended time, the case was elevated and became more complex. Leaning on relationships within the IRS and years of experience, the McDermott team can help resolve Employer Shared Responsibility Payment penalties and related issues under the ACA at any stage, including pre-filing review and strategic planning.

Learn about our employee benefits and tax controversies capabilities.

THE SITUATION:

After growing rapidly, our client – a large supplier – controlled an organization that included more than 150 separate legal entities, including corporations, limited liability companies, partnerships and business trusts. These operating companies conducted business across multiple states, and each one had its own employees and corporate assets.

The organization’s leadership identified an opportunity to improve transparency, corporate governance and risk management by reducing the overall number of legal entities in the corporate structure, consolidating the ownership of assets and streamlining operations.

THE CHALLENGE:

The client and its advisory firm developed an implementation step plan to merge or liquidate the redundant legal entities and consolidate assets. In late September, they brought on a cross-practice McDermott team to develop a legal implementation plan, identify and resolve any related legal issues, and execute on the plan in conjunction with our client and its advisory firm.

The entire transaction, including the merger of the legal entities and consolidation of assets, was set to be effective from January 1 of the following year. Knowing that the client and its advisory firm would be out of the office during much of December, the McDermott team had just a few weeks to deliver results.

OUR OBJECTIVE:

Led by Rich Call, John Karasek and Christine Kretkowski, McDermott rapidly assembled the needed resources to complete the restructuring in a timely manner.

THE OUTCOME:

Leaning on guidance provided by the McDermott team, the client successfully closed its restructuring transaction on December 31.

McDermott’s Tax and Corporate Transformation Services Groups closely worked with the client and its external advisory firm to identify legal issues, overcome business hurdles and finalize a legal implementation plan. McDermott’s tax team provided invaluable support in deploying the client’s new business operating model by drafting inter-company agreements, reviewing tax calculations prepared by the client and its advisory firm and implementing asset transfers in a tax-efficient manner.

McDermott’s IP and Employment Practice Groups were also brought in to review and address issues relating to IP asset migration, employee transfers and pension plan rollovers. And the Corporate Transactions Group handled more than 184 legal entity mergers, liquidations and consolidations by the client’s deadline.

MOVE FASTER:

The team worked seamlessly across practices to coordinate the timely delivery of corporate, tax, IP and employment services to help our client achieve its business objectives on an expedited schedule.

Learn more about our Corporate Transformation Services capabilities.

THE SITUATION:

The market for canned cocktails, or ready-to-drinks, has flourished over the past several years.

But even while business was booming, Bronya Shillo saw additional growth opportunities for Fishers Island Lemonade, the canned-cocktail brand she founded during 2014. Recognized as one of the first craft cocktails in a can, Fishers Island Lemonade was inspired by the signature house cocktail served at Bronya’s family-owned business: vodka, whiskey, lemon and honey.

To fully achieve her vision in an increasingly competitive market, Bronya needed a partner with ample resources and experience in the ready-to-drink category.

THE CHALLENGE:

Bronya found the right home for Fishers Island with E. & J. Gallo, a global wine and spirits company. As an industry leader with a portfolio of ready-to-drinks (in addition to their leading wine portfolio), Gallo had existing sales teams, industry relationships and robust infrastructure to support Fishers Island and supercharge its growth. Bronya sought to sell the brand to Gallo while maintaining involvement in day-to-day operations.

OUR OBJECTIVE:

An all-female cross-practice McDermott team, led by Alva Mather, Anne Cox-Johnson and Jen Mikulina, collaborated closely with Bronya to identify and address regulatory, M&A and IP issues, deliver practical solutions and facilitate a smooth transaction.

Beyond closing the deal, they aimed to put Fishers Island and Bronya in a strong position to partner with Gallo into the future.

THE OUTCOME:

Within five months, Bronya and her McDermott team closed the deal, and Gallo acquired Fishers Island. During that time, McDermott coordinated finances, resolved a variety of IP, regulatory and other issues for Fishers Island and delivered the information Gallo needed to move forward with the transaction.

Because Bronya will continue as the face of the brand, and Gallo will use her name, likeness and story even if she parts ways with the brand in the future, the IP Group took the lead on creating and updating agreements to protect her long-term interests.

On the M&A side, the team’s work—with guidance from McDermott’s top-ranked in-house alcohol regulatory practice—ensured that Bronya could establish and maintain a positive relationship with Gallo. That solid foundation will help her seamlessly integrate Fishers Island into Gallo’s operations.

Throughout the process, the cross-practice McDermott teams communicated closely and worked in lockstep to ensure that problem-solving in one area of the transaction didn’t impact other areas.

DIG DEEPER:

M&A will continue to loom large in the alcohol space. Whether a company is an established player or seeking to enter the industry, alcohol is a commodity that holds consumer loyalty and value despite recessions and the COVID-19 pandemic.

Operating within a highly regulated industry, small or younger alcohol and beverage companies frequently encounter business issues with the potential to derail an acquisition. When it comes to resolving those issues and preparing to close a deal, it is important for M&A teams to understand the nuances around the filing and reporting requirements, beverage formulas and other operational issues that could raise regulatory or buyer red flags.

McDermott’s all-woman team includes a top-ranked alcohol regulatory practice that helped Bronya navigate potential pitfalls and quickly close the deal. Along with delivering skill, experience and a track record of success, the team worked with in-house counsel at Gallo to foster a collaborative deal environment that served Bronya’s best interests.

Learn more about our alcohol M&A and IP capabilities.

THE SITUATION:

For years, with increasing efficiency, solar panels have allowed us to harness sunlight as a source of renewable energy. Although the panels need light to produce energy, solar developers can use rechargeable batteries to store excess power for use at night or at other times when solar irradiance is low. In the US, to date, they have relied almost exclusively on lithium-ion batteries.

Pine Gate Renewables (PGR), a utility-scale renewable energy company, was among the first to explore lithium-ion alternatives in the US. While planning a hybrid solar project in Eastover, South Carolina, PGR selected a zinc battery—a reliable alternative used overseas—to handle its solar storage needs.

This exciting innovation in the US attracted a new corporate investor, Google, which re-entered the tax equity market to invest in the Eastover project (alongside construction debt financing from two leading institutional banks). We believe this to be the first tax equity investment and debt financing of a zinc battery in the US.

THE CHALLENGE:

Zinc batteries differ significantly from lithium ion. Because the use of zinc battery technology in conjunction with solar energy generation had been limited in the US, the legal, commercial and technological implications of its use were not broadly understood by the market at the time.

PGR turned to a knowledgeable and experienced cross-practice McDermott team—led by Carl Fleming, Jim Salerno, Seth Doughty and Elle Hayes—to represent it in the tax equity investment, debt financing, and long-term zinc battery warranty and services agreement negotiation for the Eastover project.

The project would call upon McDermott’s industry-leading storage development and offtake work shaping the forms and standards used across the US storage market. It would also break new ground in facilitating the use of zinc solar storage in the US.

To secure financing, the McDermott team first needed to align the requirements of the power purchase agreement (PPA) with the capabilities that a zinc battery can provide. The team provided PGR with analysis, insights and counsel throughout the process of discussing zinc battery technology with the utility buying the output of the Eastover project. This included crafting bespoke PPA provisions to better align the zinc battery with the project and investment. PGR was able to use these insights in discussions with the utility and in negotiating the warranty and services agreement with the original equipment manufacturer.

As the McDermott team helped PGR bring a novel technology to commercial use in the United States through the Eastover project, along with financing it, they were simultaneously handling aspects of two other solar projects for PGR. Because an affiliate of Google would be the tax equity investor for all three projects, PGR sought to streamline the process by negotiating one set of documents for all three transactions. That involved orchestrating three separate closings, along with fundings with one tax equity provider but three different lenders.

In addition to remaining in lockstep with team members across practices and offices, McDermott communicated with PGR every day, providing guidance and managing the moving pieces of the project through the shifting policy and trade landscape the solar energy industry faced in the first half of 2022. McDermott’s renewable energy trade team provided extensive analysis and guidance on the Auxin investigation and its level of risk on the projects, helping to close the financings much faster once all parties were in alignment.

OUR OBJECTIVE:

To help PGR bring additional clean energy to South Carolina and other parts of the US, the McDermott team worked to draft, negotiate and execute the documents that would allow PGR to pay for the Eastover hybrid solar and storage project and two other solar projects.

This included bringing the Eastover PPA and long-term battery warranty and services agreement into alignment with the capabilities of zinc battery technology, negotiating with Google on tax equity structure across three transactions, and securing consistent debt financing terms with three separate lenders.

THE OUTCOME:

PGR’s McDermott renewable energy development, storage, tax equity, debt and trade teams drew on considerable legal, commercial and technical knowledge of both zinc and lithium-ion batteries and energy storage markets to help PGR achieve its business objectives and transition the use and hybridization of zinc battery technology to market in the US.

The Eastover hybrid solar project will bring clean energy to 18,000 homes in South Carolina, furthering PGR’s mission to positively impact local communities and the nation’s environmental footprint.

The McDermott team successfully represented PGR in the negotiation of a long-term warranty and services agreement with respect to the zinc battery component of the Eastover project. McDermott also represented PGR in the $173 million total tax equity commitment and investment by Google’s renewable energy investing subsidiary into all three projects—including a $75 million tax equity commitment and investment into the Eastover project, which to our knowledge was the first tax equity investment and debt financing of a utility-scale zinc battery energy system.

On the debt side, to serve PGR’s goal of streamlining all three projects, the team used creativity and persistence to negotiate consistent terms with three separate lenders while maintaining a high level of efficiency. They secured a total of $179 million in financing.

DIG DEEPER:

PGR worked closely with its McDermott team to drive clean energy industry innovation. With significant experience in developer-side energy matters, McDermott was well equipped to help PGR adapt and build the Eastover project, harnessing zinc battery technology in a way that facilitated its financing.

At the same time, the McDermott team drew on its deep experience in renewable debt finance to effectively and efficiently close multiple financings in a short period of time.

The work required high-powered coordination between multiple McDermott teams, pulling together elements of the top-ranked energy group ranging from development, trade and Federal Energy Regulatory Commission (FERC) practices to tax, tax equity and debt financing.

Learn about our energy and project finance capabilities.

THE SITUATION:

More than “windows to the soul,” the eyes are the only external part of the body that can give doctors a glimpse into patients’ cardiovascular health. The same blood vessels that feed the heart are visible through the eyes.

With that in mind, Toku, Inc.—a healthcare artificial intelligence (AI) developer—recognized a revolutionary opportunity for monitoring a patient’s risk of cardiovascular disease, stroke and diabetes. The company created Cardiovascular Risk AI (CLAiR), an AI-based retinal imaging technology platform that detects subtle changes in an individual’s blood vessels, pigmentation and other markers to help optometrists and ophthalmologists assess broader health risks during routine eye exams.

In November 2023, CLAiR received Breakthrough Device status from the US Food and Drug Administration (FDA), which will accelerate the development and review process.

THE CHALLENGE:

After building the patented AI technology in New Zealand, Toku set its sights on entering the United States, a market with greater potential for securing partners, customers, investors and other opportunities.

OUR OBJECTIVE:

Toku was selected for McDermott’s Life Sciences Entrepreneurs Acceleration Program (LEAP) and connected with a US-based team led by Brian Gordon, Byron Kalogerou, Jacob Kuipers and Sarah Sarb, with assistance from Joan-Elisse Carpentier.

McDermott worked closely with the company in achieving its goals: 1) relocating its headquarters from New Zealand to the US and 2) raising capital to fast-track technology development and make vital health screenings more accessible to patients worldwide.

THE OUTCOME:

In April 2023, Toku secured $8 million in Series A preferred financing from two lead investors, both prominent US-based suppliers in the eye care industry.

While negotiating with the investors and structuring the financing, the McDermott team simultaneously helped Toku navigate a pre-closing “Delaware flip,” which involved aligning the interests of Toku’s New Zealand shareholders with the new investors. The Delaware flip allowed Toku to establish a US corporate governance presence, making it more appealing to US investors. The company is now headquartered in California with a subsidiary in New Zealand.

In close communication with Toku, the McDermott team collaborated across its tax and transactions practices to manage complexities and achieve objectives. For example, negotiations with investors impacted the team’s approach to the Delaware flip and corporate structuring. At the same time, both factors were affected by Toku’s discussions with its legacy shareholders and New Zealand law. Toku and its McDermott team triangulated all three work streams to align and finalize the necessary legal pieces concurrently.

McDermott also helped Toku executives navigate the US immigration and visa process as part of the move overseas.

GO FURTHER:

Through deferred fees and other benefits, LEAP provides promising early-stage life sciences companies with high-quality legal services prior to a substantial fundraising round. Toku was selected as a LEAP participant in 2022.

Toku’s lead investors operate a combined 60,000 clinics around the world. Having obtained FDA Breakthrough Device status, Toku plans to roll out CLAiR in US clinics by mid-2025, with locations in Australia, New Zealand and the United Kingdom to follow. At-risk patients will benefit from CLAiR’s affordable, noninvasive technology and ability to deliver results immediately, which could lead to early prevention and better health outcomes.

Learn more about our venture capital, transactions and cross-border capabilities.

For the latest AI updates emerging in the healthcare sector, visit our AI in Healthcare resource center.

THE SITUATION:

As a sports enthusiast and former NCAA basketball player, owning a professional sports franchise had long been a dream of Mat Ishbia’s.

Mat graduated from Michigan State University (MSU) and was a member of MSU’s 2000 national champion basketball team. He is currently president and CEO of United Wholesale Mortgage (UWM), the largest mortgage company by volume in the United States. UWM went public in 2021 and trades on the New York Stock Exchange.

THE CHALLENGE:

In September 2022, Robert Sarver, the former majority owner of the Phoenix Suns NBA franchise and the Phoenix Mercury WNBA franchise, put both basketball teams up for sale.

When he heard the news, Mat recognized an opportunity to bring his business acumen and people-first mentality to the storied Arizona programs. He sought to acquire a controlling interest in both franchises.

OUR OBJECTIVE:

With the priority of protecting Mat’s interests in the transaction, his McDermott team led the tax- and trust-related aspects of the transaction and provided substantial assistance in other aspects of the deal. Another law firm led the transaction vis-à-vis the sellers and NBA, with the McDermott team working closely with the other law firm in an integrated approach.

The cross-practice McDermott team, led by Patrick McCurry, Nicole Pearl, Alex Farr, Andrew Granek and John Hammond, worked in close collaboration with Mat’s family office throughout the process.

THE OUTCOME:

In February 2023, the NBA Board of Governors approved the sale, turning Mat’s longtime dream of owning an NBA team into his new reality. He officially became the new governor of the Suns and Mercury with a controlling stake.

GO FURTHER:

The transaction valued the Suns and Mercury at $4 billion, making it the largest control transaction in NBA history and one of the largest transactions in the history of professional sports. With the acquisition, Mat also became the NBA’s youngest controlling owner.

The McDermott team is honored to have played an integral role in helping Mat clinch the deal and attain this years-long personal and professional goal.

Learn more about our Family Office Capital & Investment Strategies (FOCIS), Tax, Private Client and Transactional capabilities.