The implied covenant of good faith and fair dealing is a notoriously misunderstood doctrine. It can be invoked much less often than most people think, and its application is highly state-specific. A recent ruling from the...more
On Oct. 13, 2023, a New York federal court held that sellers who breached representations made in an asset purchase agreement were liable to the buyer for damages calculated using an implied purchase price multiple from the...more
On June 6, 2023, in a unanimous decision written by Justice Karen L. Valihura, the Delaware Supreme Court affirmed the Court of Chancery’s April 27, 2022, opinion in In re Tesla Motors, Inc. Stockholder Litigation....more
Insurance policies invariably require insureds to submit timely written notice of a “Claim” made by third parties to obtain coverage from the insurer. A recent decision from the United States District Court for the Southern...more
On Jan. 25, 2023, the Delaware Court of Chancery issued an opinion with significant implications for American corporate law. In denying the defendants’ motion to dismiss in In re McDonald’s Corporation Stockholder Derivative...more
In a March 9, 2022, opinion, the Delaware Chancery Court examined a seller’s argument that the buyer in an asset purchase agreement was prohibited from asserting claims for contractual breach of representations in the...more
Buyers, sellers, their counsel and other advisers sometimes give short shrift to post-closing adjustment provisions in M&A deals; however, it’s important to make sure that language and calculation methods are clear and don’t...more
In a recent case examining a purchase agreement’s post-closing purchase price adjustment provision, the Delaware Supreme Court held that the agreement demanded that the provision be applied correctly when determining the...more
In an Aug. 12, 2021, opinion, the Delaware Chancery Court examined two seller-friendly purchase agreement provisions and held that public policy and Delaware law prevented the seller from invoking the provisions to block...more
On Jan. 15, 2021, a New York state court judge issued an opinion denying an insurer’s motion to dismiss a claim for coverage under a representations and warranties insurance (RWI) policy in WPP Group USA, Inc. v. RB/TDM...more
A June 1, 2020, unpublished opinion from the Delaware Chancery Court clarified the default rule governing the retention of privileged communications in asset purchases, as distinct from mergers or other transactions in which...more
On Nov. 27, 2019, the New York Appellate Division for the Second Department affirmed New York’s longstanding rule that the attorney-client privilege regarding pre-acquisition or pre-merger communications about the transaction...more
The U.S. District Court for the Western District of Texas recently clarified the applicable rate for the calculation of prejudgment interest under the Texas Securities Act (TSA). In FDIC v. Deutsche Bank Securities Inc., the...more
Purchase agreements commonly include contractual limitations on the potential liability of breaching parties, absent fraud or other wrongful behavior. These “damages caps” generally set a party’s liability at a fixed amount...more