Ambiguous drafting of earnout provisions in M&A agreements is a perennial source of post-closing disputes. What may have seemed clear to parties in the heat of negotiations can often become less so as time passes,...more
National Golf Management LLC sold 13 golf courses to a buyer represented by broker Andrew Waldo. NGM was represented in a previous transaction by Michael Cousins. Although Cousins had no written representation agreement with...more
We’ve all bought something that didn’t live up to our expectations. When it’s something small, we may grumble about it for a moment or two, and move on with our lives. When you’re buying a business, your financial life may...more
On October 6, 2022, in Kodiak Building Partners, LLC v. Philip D. Adams, C.A. No. 2022-0311-MTZ (Oct. 6, 2022), the Delaware Court of Chancery found that a restrictive covenant entered into in connection with an asset...more
Recent Delaware cases appear to make two things clear. First, it remains extremely unlikely that a court will find an event or occurrence to fall within the general provisions of a Material Adverse Effect condition and as a...more
When M&A transactions end in post-closing disputes, the right to assert privilege with respect to communications that the acquired business conducted with its counsel pre-closing can be of critical importance and possibly...more
This is our Quarterly Corporate / M&A Decisions Update for decisions in Q3 2020. This update is designed to highlight selected important M&A, corporate, and commercial court decisions on a quarterly basis. Brief summaries of...more
In the world of M&A and private equity deals, buyer-side representation and warranties insurance (RWI) transfers the risk of a seller’s representation to an insurer. To adequately safeguard the insurer, it therefore becomes...more
Buyers in M&A deals often contend that they value a target company based on the seller’s representations and warranties. If the buyer later determines those representations and warranties were false, it may argue that, as a...more
RWI valuation claims often arise from a breach of financial statement representation and warranties where the buyer asserts that the transaction was over-valued because prior earnings, on which the purchase price was based,...more
Does a seller’s breach of representations and warranties in a merger and acquisition (M&A) transaction automatically entitle the buyer to compensation?...more
This update is designed to highlight selected important M&A, corporate and commercial court decisions on a quarterly basis. The update contains brief summaries of each decision with links to more robust discussions. ...more