Antitrust Liability in Mergers and Acquisitions: Assessing and Allocating Risk

Structuring Risk-Shifting and Sharing Provisions in M&A Agreements

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Tuesday, May 24, 2011

Recorded event now available

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Course Materials

This CLE course will provide guidance to counsel to assess antitrust implications in merger and acquisition deals and evaluate the use of risk-shifting and risk-sharing devices. The panel will discuss recent cases and transactions, illustrating the potential impact of risk-shifting and risk-sharing provisions.


With mergers and acquisition activity on the rise, counsel must assess the antitrust implications of these deals during the negotiation and drafting stages. Assessing antitrust risk early has meaningful impact on negotiating risk-shifting and risk-sharing provisions in purchase agreements.

Contract terms can be crafted to allocate antitrust risks in purchase agreement in merger and acquisition deals. Counsel can consider the practical effect of these provisions on negotiations between counsel and dialogue with agency staff.

Key contract provisions include those addressing commercially reasonable efforts to obtain clearance, duty to divest or agree-to conditions, MAE clauses, injunctions, employee defection, break-up fees and reverse break-up fees if clearance is not obtained, and cooperation clauses.

Listen as our authoritative panel of antitrust attorneys examines risk-shifting and risk-sharing devices, their application in strategic deals, and best practices to allocate risk using risk-shifting and risk-sharing devices.



  1. Assessing antitrust risk in M&A transactions
    1. Assessing the risk
    2. Anticipating reviewing agency objections and demands for remedies
    3. Allocating antitrust risk in the purchase agreement
  2. Antitrust risk-shifting and risk-sharing provisions
    1. Commercially reasonable efforts to obtain clearance
    2. Duty to divest or agree to conditions
    3. MAE provisions
    4. Injunctions
    5. Break-up and reverse break-up fees
    6. Cooperation clauses
    7. Other devices
    8. Pros and Cons
  3. Review use of risk-shifting and risk-sharing provisions in recent transactions and cases
    1. Agency reaction to devices
    2. Trends and patterns in today’s antitrust environment
  4. Best Practices for negotiating risk-shifting and risk-sharing provisions
    1. Treating antitrust provisions collectively
    2. Sharing analysis of antitrust risk
    3. Anticipating agency reaction


The panel will review these and other key questions:

  • What are the key considerations to decide whether to incorporate antitrust risk-shifting and risk-sharing provisions into M&A agreements?
  • What are the recent trends in antitrust regulation in M&A deals involving risk-shifting and risk-sharing devices, and what lessons can be learned from recent cases?
  • What considerations should be given to the practical effect of risk-shifting and risk-sharing terms on negotiations between counsel and dialogue with agency staff?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.


Mark J. Botti
Mark J. Botti

Akin Gump Strauss Hauer & Feld

He focuses on antitrust matters. He has extensive experience involving the antitrust review of mergers and...  |  Read More

Lynda K. Marshall
Lynda K. Marshall

Hogan Lovells

She focuses on antitrust and trade regulation issues, counseling clients on matters including distribution issues,...  |  Read More

Suzanne E. Wachsstock
Suzanne E. Wachsstock
Chief Antitrust Counsel
American Express

She is Chief Antitrust Counsel for American Express, advising business teams across the Company on the full range of...  |  Read More

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