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Over the past 15+ years covered by the ABA studies, materiality scrapes have morphed from being a somewhat uncommon provision, seen in about 14% of transactions in 2005, to something near-ubiquitous in M&A purchase...more
In M&A transactions, unknown target liabilities are typically addressed in different ways throughout the M&A purchase agreement. A no undisclosed liabilities representation is one of the principal representations in an M&A...more
Representation and warranty insurance (“RWI”) is an increasingly important feature of private company M&A transactions. Every other year since 2005 the ABA has released its Private Target Mergers and Acquisitions Deal Point...more
By including a jury trial waiver in an M&A purchase agreement, the parties agree to waive their rights to a jury trial in any dispute under the M&A agreement. Jury trial waivers may also extend to disputes under all of the...more
In M&A transactions, the definitive purchase agreement (whether asset purchase agreement, stock purchase agreement, or merger agreement) typically contains representations, warranties, and covenants, along with related...more
In merger and acquisition (M&A) transactions, the definitive purchase agreement whether asset purchase agreement, stock purchase agreement, or merger agreement typically contains representations and warranties made by the...more
According to the American Bar Association's nine Private Target Mergers and Acquisitions Deal Point Studies, the use of stand-alone indemnities in reported private company M&A transactions has increased from 69% in its 2007...more
We had a great time at the ABA Business Law Section M&A Committee Meeting in beautiful Laguna Beach. It was a nice way to wrap up January with some warm weather and interesting discussions on new developments and predictions...more
Market Trends: What You Need to Know - As reflected in the American Bar Association's Private Target Mergers and Acquisitions Deal Points Studies: “Knowledge” is now almost always defined in private company...more
Market Trends: What You Need to Know - As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Points Studies: Over the time period covered by the nine studies (2005-2021), the level of...more
Market Trends: What You Need to Know - As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Points Studies: Express non-reliance provisions are increasingly common in merger and...more
Market Trends: What You Need to Know - As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Points Studies: Inclusion of damage mitigation provisions in merger and acquisition...more
Market Trends: What You Need to Know - Over the past 15+ years covered by the ABA studies, materiality scrapes have morphed from being a somewhat uncommon provision, seen in about 14% of transactions in 2005, to...more
Market Trends: What You Need to Know - As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Points Studies. Over the nine ABA studies (2005-2021), indemnity caps have declined as a...more
In Sutter Hill Management Corporation v. Mpire Capital Corporation (Sutter), the British Columbia Court of Appeal found that the acquiror of an Abbotsford, B.C. care home had breached the purchase and sale agreement by...more
As global M&A activity reached record highs this year, so too did the market's appetite for carve-out transactions. A carve-out transaction is the sale of a subsidiary, division, or other part of a larger business enterprise....more
Market Trends: What You Need to Know - As reflected in the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies... Originally Published in Bloomberg Law - February 2021....more
A year after Akorn v. Fresenius (Akorn case), the first Delaware case holding that a party was entitled to terminate a merger agreement based on a material adverse effect (MAE), the Delaware Court of Chancery, in Channel...more
In a recent decision arising out of the sale of Cablevision, the Delaware Court of Chancery issued important guidance regarding the interplay between what are commonly regarded as boilerplate merger agreement provisions and...more