Antitrust Risk Allocation in Merger Agreements: Anticipating and Managing Risks of Deal Delay or Non-Completion

Negotiating Divestiture, Hell or High Water, and Reverse Breakup Fee Provisions; Navigating Interplay With Non-Antitrust Risk-Shifting Clauses

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

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Conducted on Tuesday, July 29, 2014

Recorded event now available

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Course Materials

This CLE course will guide counsel in assessing and allocating antitrust risks in merger agreements. The panel will examine commonly negotiated antitrust risk-shifting provisions and explain the legal implications of including risk-shifting provisions in the merger agreement when dealing with the antitrust enforcement agencies. The panel will also address the important role corporate deal attorneys play in coordinating the antitrust risk-shifting provisions with other clauses in the merger agreement.


Businesses contemplating a merger often negotiate provisions in the merger agreement to allocate the risk of the deal being delayed or derailed due to antitrust concerns by the Department of Justice (DOJ) or the Federal Trade Commission (FTC). As the FTC and DOJ have stepped up their merger enforcement efforts in recent years, antitrust risk-shifting provisions have increased in importance.

Common antitrust risk-shifting provisions include hell or high water, divestitures of certain assets or businesses, and breakup and reverse breakup fees. Reverse breakup fees have been a heavily negotiated deal point in the pending Sprint and T-Mobile merger. Determining which provisions are most appropriate for specific types of deals requires an understanding of the potential antitrust harm of the deal and the individual assets of the buyer and the target.

When including antitrust risk-shifting provisions in merger agreements, counsel to the deal parties must remain mindful of the practical effect of the provisions when dealing with the DOJ and FTC. The inclusion of risk-shifting clauses may cause antitrust regulators to believe a potential merger is fraught with anti-competitive risks and effectively delay or derail the deal. Antitrust counsel must also coordinate closely with corporate deal counsel to outline the interplay of the antitrust risk-shifting provisions with other clauses in the merger agreement.

Listen as our authoritative panel discusses current trends in the use of antitrust risk-shifting provisions in merger agreements, best practices for drafting and negotiating the clauses, and the potential adverse impact of including the provisions in the merger agreement.



  1. Types of antitrust risk-shifting provisions
  2. Implications of including antitrust risk-shifting provisions on DOJ and FTC merger review
  3. Best practices and practical considerations for drafting and negotiating risk-shifting provisions
  4. Interplay of antitrust risk-shifting provisions with other clauses in the merger agreement


The panel will review these and other key questions:

  • What are the key considerations in deciding whether to include antitrust risk-shifting provisions in merger agreements?
  • What factors should antitrust counsel take into account when deciding which risk-shifting provisions are appropriate to include in merger agreements?
  • What are the recent trends in DOJ and FTC regulation of mergers that include risk-shifting provisions, and what lessons can be learned from these trends?
  • How can the perspectives of corporate deal attorneys help inform the drafting and negotiation of the antitrust risk-shifting provisions?


Mark J. Botti
Mark J. Botti

Squire Patton Boggs (US)

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

Keith A. Pagnani
Keith A. Pagnani

Sullivan & Cromwell

Recognized as a “Dealmaker of the Year” by The American Lawyer for his role advising Alcon,...  |  Read More

Sawyer, Melissa
Melissa Sawyer

Sullivan & Cromwell

Ms. Sawyer is a partner in the firm’s M&A Group, focusing her practice on a variety of corporate...  |  Read More

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