The M&A Word of the Day® from the Book of Jargon® – Global Mergers & Acquisitions Is Best Efforts
The EU’s 14th “package” of sanctions against Russia introduces anti-circumvention measures targeting the non-EU subsidiaries of EU entities and creates new restrictions, including on LNG. This Client Alert is published in...more
“Best-efforts” clauses in commercial contracts are not enforceable absent an objectively measurable standard or guideline for determining performance, according to the Court of Appeals for the First District of Texas, which...more
The Seventh Circuit Court of Appeals affirmed an Indiana court's order dismissing a claim by inventor Thomas Russell that his exclusive distributor, Zimmer, Inc., failed to use commercially reasonable efforts to sell...more
FEATURED ARTICLE - Efforts clauses are common in commercial agreements, including those involving real estate. Where one or both parties cannot guarantee a particular outcome, efforts clauses attempt to qualify obligations....more
Efforts clauses - Efforts clauses are common in commercial agreements, including those involving real estate. Where one or both parties cannot guarantee a particular outcome, efforts clauses attempt to qualify...more
Ohio- “Best efforts“ Cintrifuse Landlord LLC v. Panino, LLC, 1st Dist. Hamilton, No. 2022-Ohio-4104- In this appeal, the First Appellate District reversed the trial court’s decision to grant the plaintiff’s motion for...more
A recent decision of the British Columbia Court of Appeal, Sutter Hill Management Corporation v Mpire Capital Corporation [Sutter Hill], 2022 BCCA 13, offers an illustration of the potentially harsh consequences that can...more
Over the past several weeks, the novel coronavirus (COVID-19) has upended the marketplace and imposed upon industries, companies, and their workforce new and often unanticipated challenges and delays. Many deal and...more
In 2019, the Council of the European Union’s Committee of Permanent Representatives approved a Directive on Copyright in the Digital Single Market to respond to developments in the modes and markets for creation, production...more
On December 7, 2018, the Delaware Supreme Court affirmed the Court of Chancery's decision in Akorn, Inc. v. Fresenius Kabi AG , C.A. No. 2018-0300-JTL, which upheld, for the first time under Delaware law, the ability of a...more
Akorn, Inc., v. Fresenius Kabi AG et al will undoubtedly become known as the first case where a Delaware court found a material adverse effect, or MAC (often referred to as a material adverse effect, or MAE), to exist....more
Commercial agreements typically specify specific standards in describing the degree of effort that a party is expected to undertake in order to carry out certain contractual obligations. For example, in many contracts,...more
Since 2013, the Blue Cross Blue Shield Association has faced a series of purported class actions consolidated in the U.S. District Court in Alabama. In a recent decision focused upon the appropriate standard of review, the...more
A court’s decision regarding the proper standard of review in a Sherman Act Section 1 case—whether to analyze the defendant’s conduct as a per se antitrust violation or under the “rule of reason”—is highly significant. The...more
On April 5, United States District Judge David Proctor (N.D. Alabama) granted partial summary judgment to the plaintiffs in the In re Blue Cross Blue Shield Antitrust Litigation, ruling that a network of trademark licensing...more
It is difficult to play a violin in tune. For one thing, unlike with a guitar, there are no frets or markings on a violin fingerboard to tell the violinist where to put his/her fingers. The fingers must move up and down the...more
There are many ways for a public company to raise money, but one of the more increasingly popular choices is through an “at-the-market” or ATM offering, whereby a company can sell its securities into an existing trading...more
Background - Contracting parties frequently use terms such as “commercially reasonable efforts,” “reasonable efforts,” “best efforts” or similar standards when describing their expectations regarding the performance of a...more
Agenda - Letters of Intent - Best Efforts - Indemnification - Sandbagging - Non-Reliance - Fiduciary Duties - Letters of Intent: • Buyer may seek letter of intent that is generally not binding on either party...more
On March 23, 2017, the Supreme Court of Delaware affirmed the Court of Chancery’s denial of an injunction sought by plaintiff The Williams Companies, Inc. to prevent defendant Energy Transfer Equity, L.P. from terminating a...more
UCLA Law School Professor Stephen Bainbridge posted some thoughts yesterday on the meaning of contractual “best efforts” requirements. See What do “best efforts” and variants mean? A proposed set of definitions. The...more
Merger and purchase agreements involving Maryland corporations and REITs may be governed by Maryland law. For lawyers accustomed to agreements governed by Delaware or New York law, we are frequently asked to describe key...more
The recent Delaware case, Williams Cos v. Energy Transfer Equity LP (No. CV 12168-VCG, (Del. Ch. June 24, 2016)), sought to provide some additional guidance on this question, but at bottom the standard adopted by the court is...more
When a contract spells out that its obligations are to be carried out in a “commercially reasonable best efforts” manner, it will be harder to argue there is any gap that the covenant of good faith and fair dealing may fill....more
“Commercially Reasonable Efforts” Diligence Obligations in Life Science M&A" - More than 80 percent of all deals in the pharmaceutical, medical device and biotech industries include an earnout structure that provides...more