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Pursuing or Defending Against M&A Post-Closing Indemnification Claims: Guidance for Deal Counsel

Evaluating Claims, Navigating the Process, Leveraging Claim and Damages Limitations, and More

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

This program is included with the Strafford CLE Pass. Click for more information.
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Conducted on Thursday, January 13, 2022

Recorded event now available

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This CLE course will guide deal counsel pursuing or defending against post-closing indemnification claims alleging breaches of representations, warranties, and covenants contained in purchase agreements for M&A transactions, whether relating to issues identified by the buyer or as a result of third-party claims. The panel will discuss practical tips for evaluating how to formulate an indemnification claim, the process for pursuing and defending claims, and procedural and substantive strategies for buyers and sellers embroiled in indemnification disputes.


Post-closing indemnification claims are common in M&A transactions involving acquisitions of privately held companies. For buyers, they can be a crucial way to recoup value lost due to seller misrepresentations concerning the acquired business. For sellers, they can result in exposure to millions of dollars in liabilities after the acquisition has closed. When a buyer becomes aware of a seller's alleged breach of the purchase agreement's representations, warranties, or covenants, the buyer may pursue an indemnification claim against the seller for the indemnifiable losses it suffered on the terms and conditions contained in the purchase agreement.

When evaluating whether to pursue an indemnification claim, buyers and their counsel must understand how the claim process works, as well as common challenges buyers face in evaluating potential bases for indemnification claims, preparing the claim notice, and resolving the claim. Similarly, sellers and their counsel must develop strategies for responding to indemnification claims, including arguing for the applicability of deductibles, caps, materiality, and material adverse effect (MAE) thresholds, time limits to bring claims, limitations on indemnifiable damages, anti-sandbagging provisions, and more.

Listen as our authoritative panel discusses key legal considerations and strategies for buyers, sellers, and their counsel for asserting or defending against post-closing indemnification claims in M&A transactions.



  1. Buyer considerations in evaluating how to formulate an indemnification claim
  2. Navigating the indemnification claim process
  3. Strategies for asserting or defending claims: buyer and seller perspectives
    1. Procedural
    2. Substantive


The panel will review these and other key issues:

  • What are some common bases for post-closing indemnification claims in M&A transactions?
  • What are some considerations and best practices for buyers pursuing indemnification claims?
  • What are some strategies for sellers to most effectively defend against indemnification claims?


McDonald, John
John J. McDonald

General Counsel and Managing Director
Bankers’ Capital International

Mr. McDonald currently serves as General Counsel and FINRA-licensed Managing Director at Bankers’ Capital...  |  Read More

McEnroe, Elisa
Elisa P. McEnroe

Morgan Lewis & Bockius

Ms. McEnroe litigates commercial contract disputes and indemnification issues that arise from matters involving...  |  Read More

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