M&A Post-Closing Claims for Breaches of Reps and Warranties: Strategies for Pursuing or Defending Recovery

Identifying and Addressing Trouble Spots That Risk Post-Closing Losses, Impede Recovery or Undermine Defenses

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


Conducted on Thursday, April 13, 2017
Recorded event now available


This CLE webinar will examine the types of post-closing breach claims that arise most frequently in M&A transactions, share practical tips to help buyers and sellers negotiate and draft stronger deal documents, and discuss litigation strategies that should prove useful to parties who find themselves entangled in reps and warranties breach disputes. The panel will also address the pros and cons of representation and warranty insurance, which can shift the risk of reps and warranties breaches to a third party.

Description

Post-closing claims for breaches of representations and warranties are common in the context of M&A transactions, and they can expose sellers to millions of dollars in unexpected liabilities. From a buyer’s perspective, inadequate representations or obstacles to recovering for breaches of reps and warranties can chip away at the value of an acquisition—or eliminate it entirely.

Attorneys who negotiate M&A deals or litigate disputes arising from breaches of reps and warranties can achieve better outcomes for their clients, whether buyers or sellers, by learning to focus on “trouble spots” where post-closing losses are most likely to arise, identify potential weaknesses in transaction documents that may impede recovery or undermine a defense, and develop work-arounds to address these pitfalls.

Listen as our authoritative panel discusses the types of situations that often lead to reps and warranties breach claims, opportunities and pitfalls when pursuing or defending against recovery for losses resulting from a breach, and the latest developments in the use of M&A reps and warranties insurance to supplement or replace other options for recovery.

Outline

  1. Common source of M&A reps and warranties breach claims
  2. Strategies for pursuing claims
  3. Strategies for defending claims
  4. Leveraging M&A reps and warranties insurance

Benefits

The panel will review these and other key issues:

  • Which reps and warranties in the M&A agreement are most commonly the subject of breach claims?
  • What are best practices for buyers pursuing breach of reps and warranties claims?
  • What are some strategies for sellers to most effectively defend against breach of reps and warranties claims?
  • How can M&A reps and warranties insurance help mitigate the risk of loss for buyers and sellers?

Faculty

Brendan A. Donahue
Jenner & Block, Chicago

Mr. Donahue is assigned to the firm's Corporate Department. He a member of the Young Lawyers Division of the American Bar Association. Mr. Donahue was named a Janet D. Steiger Fellow by the ABA Section of Antitrust Law in 2012. Prior to joining Jenner & Block, he worked in information technology.

Jason D. Osborn, Partner
Jenner & Block, Chicago

Mr. Osborn is a transactional lawyer. He counsels clients on their business development strategies and regularly represents private equity funds and public and private company clients in complex transactions, including mergers and acquisitions, leveraged buyouts, going-private transactions, joint ventures, divestures, private financings, recapitalizations and restructurings, and in related corporate governance, executive compensation and general corporate matters.

Rachel S. Morse, Partner
Jenner & Block, Chicago

Ms. Morse concentrates her practice on complex commercial litigation. She has significant experience litigating in a variety of substantive areas, including intellectual property disputes, business torts, information technology outsourcing, and contract disputes. She is a member of her firm’s Complex Commercial Litigation, Real Estate and Construction Litigation, and Technology Litigation Practices.


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Mergers and Acquisitions Law Advisory Board

Charles H. Baker

Partner

DLA Piper

Igor Kirman

Partner

Wachtell Lipton Rosen & Katz

Kevin C. Logue

Partner

Paul Hastings Janofsky & Walker

Mark D. Williamson

Principal

Gray Plant Mooty

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