News & Analysis as of

Breach of Contract Mergers

Goodwin

Life Sciences Licensing and M&A Update: Catching Up on Recent Decisions Affecting Commercially Reasonable Efforts Definitions and...

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Recently, the Delaware Chancery Court and the Third Circuit issued three significant decisions on key issues affecting licensing and M&A transactions in the life sciences industry....more

Morris James LLP

Delaware Superior Court Holds That Attorney-Client Privilege Was Retained By Seller Post-Merger

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Biomerieux, Inc. v. Rhodes, C.A. No. N23C-10-067 (Del. Super. May 9, 2024). The default rule in Delaware is that the attorney-client privilege transfers from the target corporation to the surviving corporation in a...more

DarrowEverett LLP

Survival Periods and Delaware’s Statute of Limitations in M&A

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Delaware is well known as a favored jurisdiction for mergers and acquisition deals, and for good reason — the jurisdiction’s business-friendly legal environment offers numerous efficiencies and predictability. Attorneys and...more

Benesch

Earnout Held to Violate NY Fee Splitting Prohibition

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A pivotal decision by a New York Appellate Division court holding that earnouts based on the future revenue of a dental practice violated the NY Fee Splitting Prohibition could substantially impact the structuring of health...more

Winstead PC

Key Considerations in Review of NDAs as a Buyer

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When a company is in the process of pursuing a transaction involving the acquisition or merger of another company, one of the first negotiable documents encountered will likely be a non-disclosure or confidentiality agreement...more

Morris James LLP

Chancery Determines Pharmaceutical Company Complied with Merger Agreement’s Requirement To Use Commercially Reasonable Efforts

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Himawan v. Cephalon, Inc., C.A. No. 2018-0075-SG (Del. Ch. Apr. 30, 2024) - Stockholder representatives of an acquired corporation brought claims alleging that defendants had failed to use contractually-required...more

Morris James LLP

Court of Chancery Dismisses Aiding And Abetting Fraud Claim Against Corporate Officers And Directors On Grounds That A Corporation...

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Urvan v. AMMO, Inc., Consol. C.A. No. 2023-0470 PRW (Del. Ch. Feb. 27, 2024, corrected Mar. 14, 2024) - It is an axiom of Delaware law that a corporation acts through its human agents. This principle informs the causes of...more

Stradling Yocca Carlson & Rauth

Representation and Warranties Play a Crucial Role in Business Transactions

Representations and warranties play a crucial role in business transactions and are commonly used in merger and acquisition agreements to allocate risk between sellers and buyers. Accurate representations and reliable...more

Foley & Lardner LLP

Significant Recent Decisions Relevant To Private Company M&A

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In navigating the complex world of private company mergers and acquisitions (M&A), understanding recent legal decisions is paramount. This white paper serves as a guide, distilling intricate court rulings into digestible...more

White & Case LLP

The Delaware General Assembly to the Rescue: Proposed Legislative Fixes to Uncertainty Created by Three Significant Delaware...

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Summary - On March 28, 2024 the Council of the Corporation Law Section of the Delaware State Bar Association released a set of proposed amendments to the Delaware General Corporation Law (the "DGCL"). The proposed...more

Morris James LLP

Delaware Supreme Court Affirms Busted-Deal Decision and Attorneys’ Fees for Contingency Fee Based Representation

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Energy Transfer LP v. The Williams Companies, Inc., No. 391, 2022 (Del. Oct. 10, 2023) - Busted-deal litigation is commonplace in Delaware and often requires Delaware courts to interpret provisions in merger agreements...more

McGuireWoods LLP

Delaware Court of Chancery Questions Enforceability of Con Ed Provisions

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So-called Con Ed provisions emerged as M&A practitioners’ response to Consolidated Edison, Inc. v. Northeast Utilities, a 2005 case in which the 2nd U.S. Circuit Court of Appeals held that stockholder plaintiffs did not have...more

Morris James LLP

Chancery Denies Specific Performance in De-SPAC Transaction Based on Difficulty of Enforcement and Plaintiff’s Inequitable Conduct

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26 Capital Acquisition Corp. v. Tiger Resort Asia Ltd., CA No. 2023-0128-JTL (Del. Ch. September 7, 2023) - Even where the parties have contractually agreed that specific performance is the preferred remedy for a breach,...more

Morris James LLP

Chancery Finds Defendants Liable for Fraud Based on the Failure to Disclose Internal Billing Practices

Morris James LLP on

NetApp Inc. v. Cinelli, C.A. No. 2020-1000-LWW (Del. Ch. Aug. 2, 2023) - This decision arose out of the sale of the company Cloud Jumper to NetApp, Inc. The seller’s management had been recording internal software use as...more

Morris James LLP

Chancery Refuses to Order Specific Performance Due to Inaccurate Representations and Warranties

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Restanca, LLC v. House of Lithium, Ltd., C.A. No. 2022-0690-PAF (Del. Ch. Jun. 30, 2023) - The parties seeking specific performance of an agreement must establish a clear right to performance, including that all conditions...more

Morris James LLP

Chancery Denies Sellers’ Claim Against Buyers for Failure to Close, Finds That Sellers’ Award of “Phantom Equity” to Former...

Morris James LLP on

HControl Holdings LLC vs. Antin Infrastructure Partners S.A.S., C.A. 2023-0283-KSJM (Del. Ch. May 29, 2023) - In Delaware, buyers bear the burden of proving by a preponderance of the evidence their claims for breach of a...more

Holland & Knight LLP

What Representations & Warranties Insurance Can Do for Your M&A Deals in Latin America

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In recent years, the use of representations and warranties insurance (RWI) in mergers and acquisitions (M&A) transactions has experienced dramatic growth worldwide. Consequently, deal participants in Latin America are showing...more

Proskauer - Minding Your Business

Negotiating with a Noob M&A Target? Go Easy on Them, says Delaware Chancery

Buy-side executives in an M&A deal negotiate with their sell-side counterparts for months, plying them for information, assessing the seller’s weaknesses and pressure points, and even making informal entreaties when the...more

Woodruff Sawyer

Understanding the Rising Tide of R&W Claims: A Mid-Year Review

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Now that we are halfway through 2023, it’s a good time for a representations and warranties (R&W) claims trend update. Overall, the rate of claims has been relatively consistent with previous years, while the number of claims...more

Kramer Levin Naftalis & Frankel LLP

Case Alert: AluminumSource, LLC v. LLFlex, LLC

A recent post-trial decision from Delaware regarding alleged breaches of representations and warranties in an asset purchase agreement is noteworthy. First, the decision highlights how buyers may not be able to rely on...more

Woodruff Sawyer

M&A Insurance: 2023 First Quarter Roundup

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With March now squarely in the rearview mirror, we thought it was time to look at the first quarter of 2023 from a historical perspective in terms of pricing and retentions and to discuss some emerging trends....more

Morgan Lewis - Power & Pipes

Real-World Litigation Impacts of Contract Clauses in Energy Contracts: Defining Change of Control Provisions Favorably

A change of control provision gives a party certain rights under a contract, such as the right to receive payment, require consent, or terminate the contract, in the event of a specified trigger. Triggers can relate to a...more

Woodruff Sawyer

Representations and Warranties Trends for 2023

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With 2022 fully in the rearview mirror, we would like to highlight some trends we expect to see continuing into 2023. The economy continues to face tremendous uncertainty. According to the World Bank’s Global Economic...more

J.S. Held

[Webinar] Post-Merger & Acquisition Dispute Resolution - December 7th, 12:30 pm - 1:30 pm EST

J.S. Held on

Global Investigations expert Frank Lazzara, CPA, CFF, ABV, CFE, and Economic Damages & Valuations expert David Golbahar, CPA, CFF, CGMA, will present a one-hour* course, which will cover: - An overview of purchase price...more

Woodruff Sawyer

R&W Claims 101: Types of Loss

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There’s been a breach in your mergers and acquisitions (M&A) agreement—you suspect the seller misrepresented something. If you had the foresight to purchase reps and warranties insurance, you can now file a claim to recover...more

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