the Court stated, "[a] consummated agreement of merger or consolidation imposes upon the surviving corporation all liabilities of the constituent corporations so merged or consolidated", citing NRS § 78.495, a provision which was a precursor of NRS § 92A.250. The consequences of a merger or consolidation under Nevada law were not otherwise considered in Lamb.
69 Quixtar concerned an application for summary dismissal in a proceeding brought against several defendants who, prior to their purported joinder, had merged into another corporate entity pursuant to NRS § 92A.200. In granting the application, the judge stated, inter alia –
Quixtar expresses concern that if the pending motion to dismiss is granted, the constituent corporations "might be permitted to insulate themselves (and their co-conspirators) from liability and deny Quixtar rights to satisfy a judgment." (P.'s Opp. 1 (#239).) This concern is not warranted. By law, all liabilities of a constituent corporation pass to the surviving corporation. NEV. REV. STAT. § 92A.250(1)(c); see Lamb v. Leroy Corp., 85 Nev. 276, 454 P.2d 24, 26 (Nev. 1969) ("A consummated agreement of merger or consolidation imposes upon the surviving corporations all liabilities of the constituent corporations so merged or consolidated."). Any rights that Quixtar could have asserted against the constituent defendants absent the merger can instead be asserted against Sky Scope as the surviving entity after the merger. There is no basis for concluding that this transfer of liability to the surviving entity would not include liability for conspiracy or for fraudulent conveyance, Quixtar's suggestion to the contrary notwithstanding.
In short, under Nevada law, after a business entity merges into another, the constituent entity cannot later sue or be sued because the separate existence of every entity except the surviving entity ceases. All liabilities of the constituent entity, however, survive the merger, and are the responsibility of the surviving entity. The discovery with regard to Quixtar's claims against the constituent defendants that has, according to Quixtar, "barely commenced," should therefore proceed. Those claims are still a part of this case. The sole, nominal difference is that the corporate entity that is liable for the alleged wrongful acts by the constituent defendants is Sky Scope.
70 In addressing NRS § 92A.250(1)(d), Mr Bogatz said that a "liability" is something that is incurred and has to be paid. In reaching this view, Mr Bogatz relied on the following principles of construction for which he cited decisions of the Supreme Court of Nevada –
- (a) Nevada courts look to "similar based statutes" in finding the meaning of a statute;
- (b) the court "has a duty to construe statutes as a whole, so that all provisions are considered together and, to the extent practicable, reconciled and harmonized";
- (c) "when the same word is used in different statutes that are similar in respect to purpose and content, the word will be used in the same sense, unless the statutes' context indicates otherwise";
- (d) "when the legislature enacts a statute, this court presumes that it does so 'with full knowledge of existing statutes relating to the same subject'"; and
