Risk Allocation in Merger Agreements in an Era of Increased Enforcement

Wilson Sonsini Goodrich & Rosati

Our antitrust practice is pleased to present a new report addressing the prevalence of risk-shifting provisions in merger agreements. As antitrust agencies continue to galvanize enforcement efforts, such provisions have emerged as a critical counterbalance to increased regulatory scrutiny. The firm, working with NERA Economic Consulting, examined over 700 merger agreements from 2004-2019 to construct an empirical analysis of the prevalence of efforts clauses, divestiture and litigation requirements, break-up and reverse break-up fees, and termination date provisions. This analysis serves as a benchmark that can help inform optimal transaction-specific negotiating strategies and protect against aggressive counterparties.

Please see full Report below for more information.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Wilson Sonsini Goodrich & Rosati

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