News & Analysis as of

Contract Terms

Weil, Gotshal & Manges LLP

There is Such a Thing as a “Material Adverse Effect”: Delaware Court Supports Buyer’s Right to Terminate

by Weil, Gotshal & Manges LLP on

For as long as many of us can remember, buyers and sellers in transactions of all types, including 363 asset sales and new money investments, have utilized “Material Adverse Effect” clauses (also known as “Material Adverse...more

Dorsey & Whitney LLP

MAE is MIA No Longer: Delaware Court Upholds Use of “Material Adverse Event” Clause for the First Time

by Dorsey & Whitney LLP on

In Akorn, Inc. v. Fresenius Kabi AG, the Delaware Chancery Court held that Fresenius, a German pharmaceutical company, was justified in invoking a “material adverse event” (MAE) clause to terminate its $4.8 billion merger...more

Bennett Jones LLP

British Colombia Court of Appeal Reforms Fresh Consideration Principles

by Bennett Jones LLP on

In a recent decision, Rosas v Toca, 2018 BCCA 191 [Rosas], the British Columbia Court of Appeal turned sharply away from traditional contract law principles by holding that parties may modify a contract without providing...more

Bradley Arant Boult Cummings LLP

Eleventh Circuit Rules Reverse Mortgage Companies Not Prohibited from Foreclosing on Non-Borrowing Spouses

Mortgagees of Home Equity Conversion Mortgages (“HECMs,” more commonly known as reverse mortgages) obtained a significant victory in an important federal appellate court, which ruled last month that non-borrowing spouses are...more

Stinson Leonard Street - Arbitration Nation

Alabama Won’t Enforce Arbitration With Nursing Home When Patient Had Dementia

Every time I think the spate of state supreme court opinions about nursing home arbitration surely must be over, another one comes out to prove me wrong. Last week, it was one from Alabama, finding an arbitration agreement...more

Faegre Baker Daniels

Constructive Eviction: A Guide to Landlord-Tenant Disputes

by Faegre Baker Daniels on

“The condition of this space is unacceptable.” “I am not paying rent until you come and repair this leaking roof, the HVAC system, the plumbing, etc.” “The smell or the noise is unbearable – you have to do something about...more

Foley & Lardner LLP

Akorn v. Fresnius Kabi: Delaware Court Provides Guidance on What Constitutes a Material Adverse Event

by Foley & Lardner LLP on

A Delaware Chancery Court has allowed a buyer to cancel a deal based on a material adverse effect. The decision is believed to be the first of its kind in Delaware. In Akorn, Inc. v. Fresenius Kabi AG, the Delaware Court...more

Stinson Leonard Street - Dodd-Frank and the...

Chancery Describes Commercially Reasonable Efforts

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

Mayer Brown Free Writings + Perspectives

Mandatory Arbitration

In recent comments, Commissioner Peirce shared her views on the role of the Securities and Exchange Commission in expressing a view regarding mandatory arbitration provisions....more

White & Case LLP

Delaware Chancery Court Finds Material Adverse Effect Permitting Buyer to Walk Away from Merger Agreement

by White & Case LLP on

In a first-of-its-kind decision, the Delaware Chancery Court ruled that Fresenius Kabi AG was not required to close its $4.3 billion merger agreement with Akorn, Inc. because, after signing, Akorn suffered a Material Adverse...more

Dechert LLP

Recent Delaware Case Makes First Finding of "Material Adverse Effect": Key Takeaways

by Dechert LLP on

The recent decision of the Delaware Court of Chancery in Akorn, Inc. v. Fresenius Kabi AG et. al is the first time a Delaware court has found a material adverse effect in the M&A context, and reinforces current Delaware law...more

Thompson Coburn LLP

California fraudsters beware: Protection by ‘integration clause’ less than rare

by Thompson Coburn LLP on

Parties to contracts sometimes want it both ways: They want solid, ironclad contracts that can’t be altered or disputed, but they also want an escape hatch if it turns out they were defrauded in the formation of the...more

Nutter McClennen & Fish LLP

SJC Finds Massachusetts Choice of Law Provision Unenforceable as to California Employee

by Nutter McClennen & Fish LLP on

Last month, the Supreme Judicial Court dismissed a suit brought by a Massachusetts employer to enforce a non-compete on its California-based employee on the ground of forum non conveniens. The SJC held that the non-compete’s...more

Ward and Smith, P.A.

North Carolina Law Adds Predictability to Litigation Involving Business Contracts

by Ward and Smith, P.A. on

North Carolina businesses commonly enter into contracts to buy or sell goods and services west of Murphy, north of Mt. Airy, south of Charlotte, and even east of Ocracoke. When contracts such as these extend beyond state...more

Cozen O'Connor

A Delaware First: Chancery Court Upholds Termination of Merger Based on MAE

by Cozen O'Connor on

On October 1, 2018, in Akorn, Inc. v. Fresenius Kabi AG, the Delaware Court of Chancery held for the first time that a buyer had validly terminated a merger agreement due to the occurrence of a “material adverse effect”...more

Bennett Jones LLP

Limitation Law and the Enforcement of Credit and Security Agreements

by Bennett Jones LLP on

In June 2018, we wrote on the British Columbia Court of Appeal decision in Leatherman v 0969708 BC Ltd, 2018 BCCA 33, where the court considered sections 14 and 15 of the "new" Limitation Act, SBC 2012, c. 13 in the context...more

Bennett Jones LLP

Delaware Judge Finds Elusive MAC—Does It Change Anything?

by Bennett Jones LLP on

Purchasers of businesses often want an "escape hatch" prior to closing if the target business suffers a "material adverse change" (or a "material adverse effect"). Historically, based on court decisions primarily out of the...more

Dentons

How good is your guarantor?: A reminder of the distinction between a guarantee and an indemnity

by Dentons on

The High Court recently handed down its decision in Catalyst Business Finance v. Very Tangy Television Limited, Richard Tuckwell, Very Tangy Media Limited [2018] EWHC 1669 (QB). The judgment provides a useful reminder of the...more

Littler

Kentucky Supreme Court Rejects Conditioning Employment on Agreement to Arbitrate

by Littler on

On September 27, 2018, the Kentucky Supreme Court in Northern Kentucky Area Development District v. Snyder held that the Federal Arbitration Act (FAA) does not preempt a Kentucky statute, KRS § 336.070(2), barring employers...more

Hogan Lovells

M&A Update - Delaware Court Of Chancery Makes Notable MAE Finding, Allows Fresenius To Terminate Proposed US$4.3 Billion...

by Hogan Lovells on

On October 1, 2018, the Delaware Court of Chancery issued a post-trial opinion by Vice Chancellor Laster in which the court determined that Fresenius Kabi AG validly terminated its proposed US$4.3 billion acquisition of...more

White & Case LLP

Proving force majeure claims: a difficult enterprise

by White & Case LLP on

Two recent English High Court decisions highlight the difficulty in successfully establishing a claim to force majeure. Even if there is no dispute that a force majeure "event" occurred, has it caused the failure to perform?...more

Shearman & Sterling LLP

Delaware Court Of Chancery Rules For The First Time That MAE Justifies Termination Of Deal

by Shearman & Sterling LLP on

In a first-of-its-kind ruling, Vice Chancellor J. Travis Laster of the Delaware Court of Chancery ruled post-trial that Fresenius SE & Co. KGaA (“Fresenius”) properly terminated its $4.3 billion agreement to acquire Akorn,...more

Butler Snow LLP

Contracts May “Legally” Obligate a Party to Pay, Even Without a Court Judgment

by Butler Snow LLP on

Time and again, courts have been tasked with construing ambiguous and inconsistent terms in contracts. Recently, the Sixth Circuit revisited the issue of interpreting contractual language in Dark Horse Express, LLC v. Lancer...more

Burns & Levinson LLP

Arbitration Clauses in Electronic Agreements May Be Difficult to Enforce

by Burns & Levinson LLP on

Electronic agreements have become a staple of today’s e-commerce world, and such agreements generally are as enforceable as those written on parchment and signed with a quill pen. One notable exception, however, is where the...more

Carlton Fields

Second Circuit Affirms Summary Judgment for Bona Fide Purchaser in STOLI Action

by Carlton Fields on

In a June 8, ruling in AEI Life v. Lincoln Benefit Life Co., the Second Circuit upheld the District Court for the Eastern District of New York’s application of New York’s two-year incontestability period to a STOLI policy....more

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Updated: May 25, 2018:

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