Interested in training for your team? Click here to learn more

Sandbagging Issues in M&A: Pro- and Anti-Sandbagging Provisions, Applying State Law

Interplay of Sandbagging With Reps and Warranties Insurance and Indemnity Provisions

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.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Wednesday, May 10, 2023

Recorded event now available

or call 1-800-926-7926

This CLE webinar will examine sandbagging issues in M&A, including different approaches counsel can take in acquisition agreements, and how Delaware and New York courts have addressed sandbagging when deal documents are silent on the issue. The panel will also discuss sandbagging in the context of R&W insurance policies and any related indemnities in acquisition agreements.


The practice of sandbagging has become common in M&A. Deal counsel have three options they can pursue in acquisition agreements: a buyer-friendly pro-sandbagging clause; a seller-friendly anti-sandbagging clause; or no provision, in which event the parties defer to the default rule of the state whose law governs the agreement.

A pro-sandbagging clause permits a buyer to seek recovery for breach of a representation or warranty even if the buyer knew or should have known that the representation or warranty was false. An anti-sandbagging clause prohibits a buyer from seeking recovery in such a circumstance. Deal parties also may draft pro-sandbagging language that applies to specifically negotiated indemnities, particularly when such risks are excluded under a representation and warranty insurance policy.

The parties also can remain silent about sandbagging, an approach that is increasingly common. Where an acquisition agreement is silent, a court will apply the default rule in the jurisdiction that provides the law governing the agreement. New York and Delaware generally permit sandbagging, but the case law is varied in the analysis of the issue.

Listen as our authoritative panel analyses the different approaches that can be taken to sandbagging in M&A documents and the interpretations of sandbagging under New York and Delaware law.



  1. Sandbagging defined
  2. Strategies to address sandbagging in deal documents
    1. Pro-sandbagging provisions
    2. Anti-sandbagging provisions
    3. Silence
  3. Interpreting applicable state law: N.Y. and Deleware
  4. Interplay with reps and warranties insurance


The panel will review these and other critical issues:

  • What are the rationales for including pro-sandbagging or anti-sandbagging provisions in an acquisition agreement?
  • How can sandbagging provisions be tailored for indemnity provisions and reps and warranty insurance?
  • How do New York and Delaware state laws address sandbagging when an acquisition agreement is silent on the issue?


McLean, Sarah
Sarah McLean

Willkie Farr & Gallagher

Ms. McLean is a leading private equity lawyer with over 20 years of experience advising private equity funds and...  |  Read More

Westhoff, Bryan
Bryan M. Westhoff


Mr. Westhoff is a creative, business-minded litigator with substantial experience handling a wide variety of complex...  |  Read More

Access Anytime, Anywhere

Strafford will process CLE credit for one person on each recording. All formats include course handouts.

To find out which recorded format will provide the best CLE option, select your state:

CLE On-Demand Video